Swain v. Lehman, Jr. Petition for Writ of Certiorari

    No. 82-

I n  THE

i§>uprm£ (flmort nf tfye Initpii States
O otobeb T eem , 1982

V irginia  L . S w a in ,

v.
Petitioner,

J o h n  L e h m a n , J b ., Secretary o f  the Navy.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

J ack  Gbeenbebg 
C harles S teph en  R alston* 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

V aleeie V . A mbler

815 Fifteenth St., N.W. 
Washington, D.C. 20005 
(202) 393-5900

Attorneys for Petitioner 

* Counsel of Record



Questions Presented

Is a federal employee who prevails in 
the administrative process on her claim of 
discrimination because of age, in violation 
of 28 U.S.C. § 633a, entitled to an award 
of attorneys' fees?

1



TABLE OF CONTENTS

Questions Presented .................  1
Opinions Below ........................ 2
Jurisdiction ..........................
Statutory Provisions Involved ......... 3

Statement of the Case ...............    11
REASONS WHY THE PETITION SHOULD BE

GRANTED........................... 1 5
I. This Case Presents Important

Issues Unresolved by The Court 
Relating to The Administration of 
The Age Discrimination in Employ­
ment Act..................  15

II. The Decision of the Court Below
Conflicts with The Decision of This 
Court And Is Inconsistent with The 
Purpose of Congress. ©»•«©•..... 20

A. Counsel Fees Are Available toFederal Employees Under The
A.D.E.A. .................... 20

B. A Contemporanenous Statute Makes 
It Clear That Congress Intended- 
That Federal A.D.E.A. Complaints 
Be Able to Receive Attorneys'
Fees. ...............   31

III. The Decision Below Is Contrary to 
Decisions of This Court Governing 
The Retroactive Application of Statutes..............  38

Conclusion ................   42

Page

ii



TABLE OF CASES
Page

Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975) ......................  23

Bradley v. School Bd. of Richmond,
416 U.S. 696 (1974) ............. 39,40,41

Brown v. G.S.A., 425 U.S. 820
(1976) ..........................  18,30

Cannon v. University of Chicago, 441
U.S. 667 (1979) .....    25

DeFries v. Haarhues, 488 F. Supp.
1037 (D.C. 111. 1980) ............. 22

Greene v. United States, 376 U.S. 149
(1964) ..........................  39,41

Johnson v. Hidalgo, 23 E.P.D. 1(31,125
(D.D.C. 1980) ...................  22

Jones v. Cleland, 466 F. Supp. 34 (N.D.
Ala. 1978) ..................... 22

Kennedy v. Whitehurst, 690 F.2d 951
(1982) .........................  2,14,17

Lehman v. Nakshian, 453 U.S. 156
(1981) .........................  15,23,30

New York Gaslight Co. v. Carey, 447 U.S.
54 (1980) .............  17,18,19,25,28

Parker v. Califano, 561 F.2d 320 (D.C.
Cir. 1977)  .................. 17,28

Thorpe v. Housing Authority of Durham, 
393 U.S. 268 (1969) ............ 39,40,41



Page

Other Authorities
5 C.F.R. Part 7 1 3.. ................. 11
5 C.F.R. § 713.501 .................... 30
5 C.F.R. § 713.511 ...............   11
5 C.F.R. § 713.521 ...........   30
5 C.F.R. § 1613.218 ................... 29
5 C.F.R. § 1613.511 ..............   11
29 C.F.R. Part 1613 ..... . 11
S. Rep. No. 94-1611 ........... ao...... 26,27
S. Rep. No. 95-969 ...... . 34
5 U.S.C. § 2302(b) .........   32
5 U.S.C. § 7701(g) .........   33
23 U.S.C. § 2412 .......a.®............ 27,28
29 U.S.C. § 216 ---------------....---- 38
29 U.S.C. § 633a ............. 20,22,23,26,29
42 U.S.C. § 1981 .............   25
42 U.S.C. § 1982 ....    25
42 U.S.C. § 1988 ...   26
42 U.S.C. § 2000e-16 ..............  15

- IV



No. 82-

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1982

VIRGINIA L. SWAIN,

v.
Petitioner,

JOHN LEHMAN, JR., 
SECRETARY OF THE NAVY.

Petition For A Writ Of Certiorari 
To The United States Court of Appeals 
For the District of Columbia Circuit

The petitioner, Virginia L. Swain, 
respectfully prays that a writ of certi­
orari issue to review the judgement and 
opinion of the United States Court of 
Appeals for the District of Columbia 
Circuit entered in this proceeding on 
January 6, 1983.



2

Opinions Below
The opinion of the Court of Appeals is 

unreported and is set out in the appendix 
hereto at pages la—2a The opinion of the 
district court of January 19, 1982 is
reported at 28 E.P.D. 1(32,574, and 27 FEP 
Cases 1434 (D.D.C. 1982), and is set out in 
the appendix hereto at pages 3a-17a. The 
order of the district court is set out in 
the appendix at page 18a. The opinion of 
the United States Court of Appeals for the 
District of Columbia Circuit in the case of 
Kennedy v. Whitehurst, 690 F.2d 951 (1982), 
which formed the basis of the per curiam 
affirmance below, has also been set 
out in the Appendix for the convenience of 
the court at pages 19a-87a.

Jurisdiction
The judgement of the Court of Appeals 

was entered on January 6, 1983. Jurisdic­
tion of this court is invoked under 28



3

U.S.C. § 1254(1) .
Statutory Provisions Involved 
This case involves provisions of the 

Age Discrimination in Employment Act, 29 
U.S.C. §§ 633a and 29 U.S.C. § 216(b):

29 U.S.C. §633a:
(a) All personnel actions 

affecting employees or applicants 
for employment (except with 
regard to aliens employed outside 
the limits of the United States) in military departments as 
defined in section 102 of Title 
5, in executive agencies as 
defined in section 105 of Title 5 
(including employees and appli­
cants for employment who are paid 
from nonappropriated funds), 
in the United States Postal 
Service and the Postal Rate 
Commission, in those units of the 
government of the District of 
Columbia having positions in 
the competitive service, and in 
those—units of the legislative 
and judicial branches of the 
Federal Government having posi­
tions in the competitive service, 
and in the Library of Congress 
shall be made free from any 
discrimination based on age.

(b) Except as otherwise 
provided in this subsection, the



4

Civil Service Commission is 
authorized to enforce the provi­
sions of subsection (a) of this 
section through appropriate 
remedies, including reinstatement 
or hiring of employees with or 
without back pay, as will 
effectuate the policies of this 
section. The Civil Service 
Commission shall issue such 
rules, regulations, orders, and 
instructions as it deems neces­
sary and appropriate to carry 
out its responsibilities under 
this section. The Civil Service 
Commission shall —(1) be responsible for the 

review and evaluation of all 
agency programs designed to 
carry out the policy of this 
section, periodically ob­
taining and publishing (on 
at least a semiannual basis) 
progress reports from each 
department, agency, or unit referred to in subsection 
(a) of this section;
(2) consult with and 
solicit the recommendations 
of interested individuals, groups, and organizations 
relating to nondiscrimina­
tion in employment on ac­
count of age; and
(3) provide for the 
acceptance and processing of 
complaints of discrimination 
in Federal employment on 
account of age.



5

The head of each such department, 
agency, or unit shall comply with 
such rules, regulations, orders, 
and instructions of the Civil 
Service Commission which shall 
include a provision that an employee or applicant for employ­
ment shall be notified of any final action taken on any com­
plaint of discrimination filed by 
him thereunder. Reasonable 
exemptions to the provisions of 
this section may be established 
by the Commission but only when 
the Commission has established a 
maximum age requirement on the 
basis of a determination that age 
is a bona fide occupational 
qualification necessary to the 
performance of the duties of the 
position. With respect to 
employment in the Library of 
Congress, authorities granted in 
this subsection to the Civil 
Service Commission shall be 
exercised by the Librarian of 
Congress.

(c) Any person aggrieved 
may bring a civil action in any Federal district court of compe­
tent jurisdiction for such legal 
or equitable relief as will ef­
fectuate the purposes of this 
chapter.

(d) When the individual 
has not filed a complaint con­
cerning age discrimination with 
the Commission, no civil action 
may be commenced by any individ-



6 -

ual under this section until the 
individual has given the Commis­
sion not less than thirty days' 
notice of an intent to file such 
action. Such notice shall be 
filed within one hundred and eighty days after the alleged 
unlawful practice occurred. Upon receiving a notice of intent 
to sue, the Commission shall promptly notify all persons named 
therein as prospective defendants 
in the action and take any 
appropriate action to assure the 
elimination of any unlawful 
practice.

(e) Nothing contained in 
this section shall relieve any 
Government agency or official of 
the responsibility to assure 
nondiscrimination on account 
of age in employment as required 
under any provision of Federal 
law.

Public Law 93-259, effective May 1, 1974.
In 1978, § 633a was amended in the

following ways:
Subsection (a) added age require­
ment of at least 40 years of age, 
and "personnel actions" following 
"except".

The following two new subsections were 
added in 1978;



7

(f) Any personnel action
of any department, agency, or other entity referred to in
subsection (a) of this section
shall not be subject to, or
affected by, any provision of 
this chapter, other than the 
provisions of section 631(b) of 
this title and the provisions of 
this section.

(g) (1) The Civil Service
Commission shall undertake a 
study relating to the effect of
the amendments made to this 
section by the Age Discrimination 
in Employment Act Amendments of 
1978, and the effects of section 
631(b) of this title.(2) The Civil Service
Commission shall transmit a 
report to the President and to 
the Congress containing the findings of the Commission under 
paragraph (1) of this subsection. 
Such report shall be transmitted 
no later than January 1, 1980.

Subsection (f) was made effective September
30, 1978; subsection (g) was made effective
April 6, 1978.

29 U.S.C. § 216;
(b) Any employer who 

violates the provisions of section 6 or section 7 of 
this Act [29 use §§ 206 or 207]



8 -

shall be liable to the employee 
or employees affected in the 
amount of their unpaid minimum 
wages, or their unpaid overtime 
compensation, as the case may be, 
and in an additional equal amount 
as liquidated damages. Action to 
recover such liability may be 
maintained against any employer 
(including a public agency) in 
any Federal or State court of competent jurisdiction by any one 
or more employees for and in 
behalf of himself or themselves 
and other employees similarly 
situated. No employee shall be a 
party plaintiff to any such action unless he gives his 
consent in writing to become such 
a party and such consent is filed in the court in which such 
action is brought. The court in 
such action shall, in addition to 
any judgment awarded to the 
plaintiff or plaintiffs, allow a 
reasonable attorney's fee to be 
paid by the defendant, and costs 
of the action. The right pro­
vided by this subsection to bring 
an action by or on behalf of any 
employee, and the right of 
any employee to become a party 
plaintiff to any such action, 
shall terminate upon the filing 
of a complaint by the Secretary 
of Labor in an action under 
section 17 [29 USC §217] in which 
restraint is sought of any 
further delay in the payment of 
unpaid minimum wages, or the 
amount of unpaid overtime compen-



9

sation, as the case may be, owing 
to such employee under section 
6 or section 7 of this Act [29 
USC §§ 206 or 207] by an employer 
liable therefor under the provi­
sions of this subsection.

This case also involves provisions of
the Civil Service Reform Act of 1978, 5
U.S.C. §§ 2302(b) and 7701(g)(2):

5 U.S.C. § 2302(b):
"(b) Any employee who has the 
authority to take, direct others 
to take, recommend, or approve 
any personnel action, shall not, 
with respect to such authority- "(1) discriminate for or 
against any employee or applicant 
for employment-"(A) on the basis of 

race, color, religion, sex, or national origin, as 
prohibited under section 717 
of the Civil Rights Act of 
1964 (42 U.S.C. 2 0 0e-l6);

"(B) on the basis of 
age, as prohibited under 
sections 12 and 15 of 
the Age Discrimination in 
Employment Act of 1976 (29
U.S.C. 631, 633a);"(C) on the basis of 
sex, as prohibited by 
section 6(d) of the Fair 
Labor Standards Act of 1938 
(29 U.S.C. 206(d);



10

"(D) on the basis of 
handicapping condition, as prohibited under section 
501 of the Rehabilitation 
Act of 1973 (29 U.S.C.791); 
or

"(E) on the basis of 
marital status or political
affiliation, as prohibited
under any 
regulation;

law , rule, or

This provision was added on October 13,
1978 , P.L. 95-454, Title If § 101a), 92
Stat. 1114.

5 U.S.C. § 7701(g)(2)s
(2) If an employee or 

applicant for employment is the 
prevailing party and the decision 
is based on a finding of dis­
crimination prohibited under 
section 2302(b)(1) of this title, 
the payment of attorney fees 
shall be in accordance with the 
standards prescribed under sec­
tion 706(k) of the Civil Rights 
Act of 1964 ( 42 U.S.C. 2000e-
5 (k) )•

Sept. 6, 1966, P.L. 89-554, § 1.80 Stat
530; Oct. 13, 1978, P.L.-454, Title II
§ 205, 92 Stat. 1138



Statement of the Case
This is an action brought by a federal 

government employee under the Age Discrimi­
nation in Employment Act. Petitioner, 
plaintiff below, filed an administrative 
complaint on August 11, 1977, complaining 
of age discrimination in her nonselection 
to a GS-6 branch secretary position and 
her not receiving a Quality Step Increase. 
(App. p. 4a) In the initial stages of her 
complaint she was assisted by a fellow 
employee who acted as her lay representa­
tive. (Affidavit of Petitioner in Support 
of Motion for Summary Judgment, p. 2.) An 
investigation was conducted under the 
provisions of 5 C.F.R. Part 713 (now 29
C.F.R. Part 1613),—^ and, as a result,

1/ 5 C.F.R. § 713.511, now 29 C.F.R.
§ 1613.511, provides for the processing of 
age discrimination complaints under 
the provisions governing complaints brought 
under Title VII, with certain exceptions.



12

the Department of the Navy issued a pro­
posed disposition that found no discrimina­
tion against petitioner. (Ibid.)

In May, 1978, petitioner retained 
private counsel to represent her. Her 
attorney requested a hearing on her 
behalf and asked to be provided with 
relevant documents of the agency. A 
hearing was initially set for August, 1978, 
and the complaints examiner ordered that 
the defendant provide many of the documents 
that had been requested. (Affidavit 
of Valerie V. Ambler, pp. 1-2.) As a 
result, the hearing was delayed until the 
following year when a three-day hearing 
was held on July 16 and 17 and September 
11, 1979. At the hearing the agency was
also represented by a lawyer who was 
an agency employee. (App. p. 4a. ) Four­
teen witnesses were called for examination 
and cross-examination, and plaintiff's



13

attorney filed a written closing statement. 
(Affidavit of Valerie V. Ambler, p. 2.)

In August, 1980, the complaints 
examiner issued his recommended decision 
finding in favor of the petitioner. 
Subsequently, on October 29, 1980, the
defendant issued a final decision adopting 
the recommended decision and finding 
discrimination against the plaintiff 
because of her age. Appropriate relief, 
with the exception of attorneys' fees, 
was ordered. (App. pp. 4a-5a).

A civil action was initiated in the 
United States District Court for the 
District of Columbia. By stipulation 
the issues were limited to the question of 
whether plaintiff could obtain attorneys' 
fees and costs for the work done in 
the administrative process which resulted 
in her prevailing in the case. (App. p. 
5a. )



14

On January 19, 1982, the district
court issued a memorandum opinion and order 
denying plaintiff's motion for attorneys' 
fees and costs. (App. pp. 3a-18a. ) This 
opinion was subsequently affirmed summarily 
by the Court of Appeals based on its 
earlier decision in Kennedy v. Whitehurst, 
690 F .2 d 951 (D.C. Cir. 1982 ). (App.
la-2a.) In Kennedy the Court of Appeals 
held that under the statutory scheme set up 
by Congress employees of the federal 
government, unlike all other employees, 
could not recover attorneys' fees and costs 
when they prevailed on the merits of their 
age discrimination claim in the administra­
tive process. In Kennedy the court cited 
with approval and relied upon the district 
court's opinion in the present case. (App. 
19a-87a.)

This petition is filed to seek review 
of the decision of the Court of Appeals.



15

REASONS WHY THE PETITION SHOULD BE 
GRANTED

I.
This Case Presents Important Issues 
Unresolved by The Court Relating to 
The Administration of The Age Dis­
crimination in Employment Act.

In 1967 Congress passed the Age 
Discrimination in Employment Act, which 
prohibited discrimination against employ­
ees because they were between the ages of 
40 and 70. In 1974 the Act was amended to 
provide similar protection for federal 
employees. As this Court has noted, the 
language adopted to extend the protection 
to federal employees was modeled closely 
upon the language of Section 717 of the 
Equal Employment Act of 1972 (42 U.S.C. 
§ 2000e-16) which extended the protection
of Title VII of the Civil Rights Act of 
1964 to federal employees. Lehman v.



1 6

Nakshian, 453 U.S. 156, 163-64 (1981).—^
In Nakshian this Court, for the first 

time, interpreted the federal government 
provisions of the A.D.E.A. and held that 
they did not provide the right to a jury 
trial to federal employees. One of the 
grounds for the Court so holding was that 
the 1974 Act was patterned after Title VII 
which also did not provide for a jury 
trial. But the Court indicated that 
Congress did intend to give federal employ­
ees who claim age discrimination the same 
rights as federal employees that claimed 
race, sex, religious, or national origin 
discrimination under Title VII. Of course,

2 / In 1978 the A.D.E.A. was further 
amended to provide, inter alia, that "any 
personnel action of any department, agency, 
or other entity referred to in subsection 
(a) of this section shall not be subject 
to, or affected by, any provision of 
this Act under the then provisions of 
Section 12(b) of this Chapter other than 
the provisions of this section."



17

employees raising claims under Title VII 
are entitled to recover their attorneys' 
fees if they prevail for work done at both 
the administrative and court levels. See 
New York Gaslight Co. v. Carey, 447 U.S.
54, 61 n. 2 (1980), citing with approval,
Parker v. Califano, 561 F.2d 320 (D.C. Cir. 
1977) .

Nevertheless, in Kennedy v. White­
hurst , supra, the court below interpreted 
Lehm an v. Nakshian and the somewhat 
convoluted statutory scheme enacted by 
Congress, to bar the recovery of attorneys' 
fees at the administrative level by
federal employees whose discrimination

3 /claims are based on their age. — The

3/ The Court in Kennedy did not hold 
that federal employees were not entitled 
for fees for legal work done in connection 
with court proceedings, but left the issue 
open. See App., pp. 85a-86a.



- 18 -

implications of such a decision are impor­
tant since they could seriously undermine 
the Congressional purpose of encouraging 
the informal resolution of discrimination 
complaints, and lead to the filing of 
actions in federal court prematurely and 
unnecessarily. See New York Gaslight Co. 
v. Carey, 447 at 65.

Here plaintiff-petitioner followed, in 
good faith, the administrative procedures 
held out to her as being an available and, 
indeed, perhaps necessary, predicate to 
her obtaining relief for her claim of 
discrimination. See Brown v. General 
Services Administration, 425 U.S. 820 
(1976). She was fully successful in those 
endeavors, but only after she had retained 
private counsel who vigorously and effec­
tively prosecuted her claim.

As noted supra, the Department of the 
Navy was represented by counsel, a Navy



19

employee on full salary. It can only be 
assumed that had petitioner remained 
unrepresented she would have failed in the 
administrative process and would then, if 
she still sought vindication of her merit­
orious claim, have had to file in district 
court. A rule that fees will be available 
only if the plaintiff went to court would 
simply encourage avoiding available admin­
istrative remedies and the consequent 
overburdening of the federal courts with 
cases which couldbe resolved otherwise. 
See New York Gaslight Club v. Carey, 447 
U.S. at 65.

The effect of such a result on the 
administration of the federal courts 
presents important issues which should 
be addressed and resolved by this Court. 
The protection of the statutory rights of 
many thousands of federal employees 
who are entitled to the protection of the



20

A.D.E.A. makes the issue of broad public 
importance.

II.
The Decision of the Court Below 
Conflicts with The Decisions of This 
Court And Is Inconsistent with The 
Purpose of Congress.____________

A. Counsel Fees Are Available to Federal 
Employees Under The A.D.E.A.
On May 1, 1974, by Public Law 93-259,

the A.D.E.A. was amended to provide the
following relevant sections for federal

4/employees in Section 15: —
(a) All personnel actions 

affecting employees or applicants 
for employment (except with 
regard to aliens employed outside 
the limits of the United States) 
in military departments...in 
executive agencies...(including 
employees and applicants for 
employment who are paid from

4/ By the 1978 amendments to the A.D.E.A., 
Congress inserted the words in (a) "who 
are at least 40 years of age" after 
"applicants for employment" and "personnel 
actions" after "except."



21

nonappropriated funds), in the 
United States Postal Service and 
the Postal Rate C o m m i s s i o n a n d  
in the Library of Congress shall 
be made free from any discrimina­
tion based on age.

(b) Except as otherwise 
provided in this subsection, the 
Civil Service Commission is 
authorized to enforce the provi­
sions of subsection (a) through 
appropriate remedies, included 
reinstatement or hiring of 
employees with or without back­
pay, as will effectuate the policies of this section. The 
Civil Service Commission shall 
issue such rules, regulations, 
orders, and instructions as 
it deems necessary and appro­
priate to carry out its respon­sibilities under this section....

(c) Any persons aggrieved 
may bring a civil action in any 
Federal district court of compe­
tent jurisdiction for such legal 
or equitable relief as will 
effectuate the purposes of this 
Act.

Following the inclusion of federal 
employees under the A.D.E.A. in 1974, courts 
ruled that federal employees who prevailed 
in an A.D.E.A. action had the same right to 
attorneys' fees and costs as private



22 -

employees. See, for example, Johnson v. 
Hidalgo, 23 E.P.D. 1(31,125 (D.D.C. 1980);
Jones v. Cleland, 466 F. Supp. 34 (N.D.
Ala. 1978); DeFries v. Haarhues, 488 F. 
Supp. 1037 (D.C. 111. 1980).

Effective September 30, 1978, Section 
15 of the A.D.E.A. was amended to provide, 
inter alia, that "Any personnel action of 
any department, agency, or other entity 
referred to in subsection (a) of this 
section shall not be subject to, or af­
fected by, any provision of this Act, other 
than the provisions of section 12(b) of 
this Act and the provisions of this sec­
tion." (§15(f)). The issue before this 
Court is whether the 1978 amendments 
deleted a federal employee's right to 
attorneys' fees and costs when he prevailed 
in an A.D.E.A. action. Recent court 
decisions and the legislative history of 
the A.D.E.A. and other civil rights legis­



23

lation indicate that this right was not so 
deleted.

First, an award of attorneys' fees is 
not a "personnel action" and does not 
affect personnel actions. It is an award 
of relief to the age bias claimant to make 
him or her whole. Thus, by the very 
language of subsection (f) it is not 
applicable to an award of attorneys' fees 
and costs. Hence, as before passage of the 
1978 amendments, reference can be made to 
the full act to determine Congressional 
intent on the subject of relief.

As noted above, in Lehman v. Nakshian,
453 U.S. at 163-64, this Court held that,

§§15(a) and (b) [of the ADEA] are 
patterned after §§717(a) and (b) 
of the Civil Rights Act of 1964, 
as amended in March 1972, see 
Pub. L. 92-261, 86 Stat. 111-112, 
which extend the protection of 
Title VII to federal employees. 
42 U.S.C. §§2000e-16(a) and (b). 
See 118 Cong. Rec. 24397 (remarks 
of Sen. Bentsen, principal 
sponsor of §15 of ADEA).



24

Title VII claimants are entitled to any 
relief to make them "whole" for the dis­
crimination they have suffered. Albemarle
Paper Co ._v_._Mood y , 422 U.S. 405, 418
(1975). Federal employees have long been 
entitled to back pay, retroactive promo­
tions, reinstatement rights, training, 
injunctive relief, attorneys' fees, costs 
and any other relief to make them "whole" 
under Title VII.

Congress specifically provided in 
section 15 of the A.D.E.A. that federal 
employees are entitled to "such legal and 
equitable relief as will effectuate the 
purposes of this Act". It is beyond doubt 
that attorneys' fees and costs are relief 
that will not only effectuate the purposes 
of the Act but without which the effectua­
tion of the Act will be substantially 
diminished. If a plaintiff is required 
to bear the costs of his/her attorneys'



25

fees, few plaintiffs will assert their 
rights under the Act.

Congress has found that attorneys' 
fees and costs will effectuate the purpose 
of all civil rights acts, including Title 
VII, the A.D.E.A. when it was passed in 
1967, the Equal Pay Act (29 U.S.C. § 206), 
and the Civil Rights Act of 1866 (42 U.S.C. 
§§ 1981, 1982). Furthermore, Congress
has never indicated it intended to carve 
out an exception for federal age bias 
claimants by denying them recovery of 
attorneys' fees and costs.

On the contrary, Congress has repeat­
edly demonstrated its concern that civil 
rights litigants be afforded attorneys' 
fees and costs. For example, in the 
legislative history—^of the Civil Rights

5/ The legislative history of this 
statute may be relied upon in construing 
other related states. Cannon v. University 
of Chicago, 441 U.S. 677, n.6 (1979); New
York Gaslight Co. v. Carey, 447 U.S. 54, 70 
n.9 (1980).



26

Rights Attorneys' Fees Act of 1976 ( 42
O.S.C. § 1988), the Senate Report states,

The remedy of attorneys' fees 
has always been recognized as 
particularly appropriate in the 
civil rights area, and civil 
rights and attorneys' fees have 
always been closely interwoven. 
In the civil rights area, Con­gress has instructed the courts 
to use the broadest and most 
effective remedies available to 
achieve the goals of our civil rights laws. The very first 
attorneys' fees statute was a 
civil rights law, the Enforcement 
Act of 1870, 16 Stat. 140, which 
provided for attorneys' fees in 
three separate provisions pro­
tecting voting rights.

*  *  *

Since 1964, every major civil 
rights law passed by the Congress 
has included, or has been amended 
to include, one or more fee provisions. (footnotes omitted)

S. Rep. No. 94-1611 (94th Cong. 2d Sess.)
p. 3.

Since, in Section 15(c), Congress gave 
federal employees the right to such legal 
and equitable relief as would effectuate 
the purposes of the Act, that section



27

includes attorneys' fees and costs. As 
Congress indicated on p. 2 of S. Rep. No. 
94-1611, supra;

In many cases arising under 
our civil rights laws, the 
citizen who must sue to enforce 
the law has little or no money 
with which to hire a lawyer. If 
private citizens are to be able 
to assert their civil rights, 
and if those who violate the 
Nation's fundamental laws are not to proceed with impunity, then 
citizens must have the oppor­
tunity to recover what it costs 
them to vindicate these rights in 
court.

All civil rights claimants have the 
right to attorneys' fees, a fact re-empha­
sized by Congress in 1980 when it enacted 
the Equal Access to Justice Act. Effective 
October 21, 1980, Congress provided for
fees and expenses of attorneys to a pre­
vailing party in an action against an 
agency of the United States. (28 U.S.C. 
§ 2412 as amended (1980).) The statute 
provides that "Unless expressly prohibited 
by statute, fees and costs may be awarded



28

in any civil action where a party prevails 
against the federal government." 28 U.S.C.
§ 2412(b). Thus , after passage of the
Equal Access to Justice Act it is now clear 
that any ambiguities concerning the en­
titlement to attorneys' fees for prevailing 
parties in civil rights cases are to be 
resolved in favor of the claimant.

The petitioner is entitled to fees and 
costs incurred in the administrative 
process as a "prevailing party". The 
importance of attorneys' fees for services 
rendered at the administrative level has 
long been recognized. New York Gaslight 
Co. v. Carey, supra; Parker v. Califano, 
561 F. 2d 320, 333 (D.C. Cir. 1977). The
petitioner was unable to obtain relief in 
the administrative process until she 
retained an attorney. A hearing was held 
in which an attorney represented the 
agency. The hearing lasted three days,



29

during which fourteen witnesses were 
examined and cross-examined. The hearing 
procedures demonstrate the need for an 
attorney as reference is made to opening 
statements, examination and cross-examina­
tion of witnesses, objections, offers of 
proof, and closing statements.—^ Those 
procedures also make specific reference to
representatives of both the complainant and 

7 /the agency.—
Congress specifically provided in 

Section 15 of the A.D.E.A. that, "the 
[then] Civil Service Commission shall... 
provide for the acceptance and processing 
of complaints of discrimination in Federal

6/ These provisions are now found at 29 
C.F.R. § 1613.218.
7/ Indeed, the petitioner has alleged 
■that she would not have known what to do or 
how to do the things her attorney did to 
represent her in preparation for and at the 
hearing. She further stated that she did 
not believe she could have won if she had 
not been represented by an attorney.



30

employment on account of age." In re­
sponse, the Civil Service Commission 
promulgated 5 C.F.R. §§ 713.501-713.521
wherein it provided that age complaints 
would be processed in accordance with 
§ 713.213-.22, the sections utilizd to
process complaints under Title VII.

Thus, Congress has clearly evinced an 
intent that age complaints be processed in 
a manner similar to Title VII complaints. 
As noted, this court has held in Nakshian, 
supra, that age complaints are to be 
patterned after Title VII. In Brown v . 
General Services Administration, 425 U.S. 
820, 831-833 (1976), this Court further
held that "Sections 717(b) and (c) [of 
Title VII] establish complementary adminis­
trative and judicial enforcement mechanisms 
designed to eradicate federal employment 
diuscrimination." It further found that



31

§ 717 "provides for a careful blend of
administrative and judicial enforcement 
powers."

Sections (b) and (c) of the A.D.E.A. 
are very similar to sections (b) and (c) of 
Title VII. Therefore, the conclusion 
should also follow that Congress intended 
to provide complementary administrative and 
judicial enforcement mechanisms under the
A. D.E.A., including attorneys' fees and 
costs for the administrative processing of 
these cases.

B. A Contemporanenous Statute Makes It 
Clear That Congress Intended That FecTeral A.D.E.A. Compraxnants Be Able 
to Receive Attorneys' Fees.
In 1978, contemporaneously with the

passage of Section 15 of the A.D.E.A.,
Congress passed the Civil Service Reform
Act of 1978. As part of the Civil Service
Reform Act, Congress created the Merit



32

Systems Protection Board (MSPB) to hear 
cases brought by federal employees. Con- 
gress also defined the prohibited personnel 
practices about which an employee could 
complain to the MSPB in 5 U.S.C. § 2302 to 
include the following prohibition:

"(b) Any employee who has the authority to take, direct 
others to take, recommend, 
or approve any personnel action, 
shall not, with respect to such 
authority-"(1) discriminate for 
or against any employee or 
applicant for employment-"(A) on the basis 
of race, color, religion, sex, or 
national origin, as prohibited 
under section 717 of the Civil Rights Act of 1964 (42 U.S.C.
200e-16); "(B) on the basis 
of age, as prohibited under 
sections 12 and 15 of the Age 
Discrimination in Employment 
Act of 1976 ( 29 U.S.C. 631,
633a);

"(C) on the basis 
of sex, as as prohibited by 
section 6(d) of the Fair Labor 
Standards Act of 1938 (29
U.S.C.206(d);

"(D) on the basis 
of handicapping condition, as prohibited under section 501 of



33

the Rehabilitation Act of 
1973 (29 U.S.C. 791); or"(E) on the basis 
of marital status or political 
affiliation, as prohibited under 
any law, rule, or regulation;

(emphasis supplied). Thus, clearly "pro­
hibited discrimination" includes age 
discrimination as proscribed by the A.D.E.A.

As to the question of attorneys' fees, 
Congress further provided, in 5 U.S.C.
§ 7701(g)(2), which governs MSPB proceed­
ings :

(2) If an employee or 
applicant for employment is the 
prevailing party and the decision 
is based on a finding of dis­crimination prohibited under 
section 2302(b)(1) of this title, 
the payment of attorney fees 
shall be in accordance with the 
standards prescribed under section 706(k) of the Civil 
Rights Act of 1964 (42 U.S.C.
2000e-5(k)).

Thus, attorneys' fees are allowable for any 
type of discrimination, including age, in 
which the appellant is found to be the



34

prevailing party in the administrative 
process.

In the legislative history, Congress
stated the following:

"...statutory law already 
provides for the award of 
attorney fees whenever a party in a discrimination suit prevails. The section 
[7701] preserves the right 
of the Board to award attor­
neys fees under this differ­
ent [prevailing party] 
s t a n d a r d  w h e n e v e r  it 
finds the employee's rights 
under the laws prohibiting discrimination have been 
violated." 96 Cong. 2d 
Sess., Senate Report No. 
95-969, p. 61 (emphasis 
added).

Thus, it is clear that Congress believed 
and so stated that attorneys' feeswere- 
already available to federal employees 
in administrative cases of age discrimina­
tion at the time of passage of the Civil 
Service Reform Act of 1978.

By virtue of these provisions of the 
Civil Service Reform Act, federal employees



35

who raise an issue of age discrimination 
administratively before the MSPB are 
clearly entitled to attorneys' fees and 
costs if they are a prevailing party. This 
provision was intended to preserve the 
right to fees which Congress stated already 
existed. Issues of discrimination may be 
raised before the MSPB in so-called "mixed 
cases" which are otherwise appealable to 
the MSPB (5 U.S.C. § 7702(a)), such as 
adverse actions. An employee who is the 
subject of an adverse action which s/he 
believes is discriminatory because of age 
or other illegal bases, may appeal to the 
MSPB or may file a complaint of discrimina­
tion through the agency EEO procedures, the 
same procedures utilized by the petitioner.

In sum, when Congress created the MSPB 
in 1978, it defined the powers of this new 
administrative agency and clearly stated it 
was preserving (not creating) the right to



36

attorneys' fees at the administrative level 
when a federal employee prevailed on an age 
discrimination claim. Thus, Congress 
clearly believed that statutory law already 
provided for attorneys' fees.

This statement was made contempora­
neously with Congress' enactment of the 
1978 amendments to the A.D.E.A. Indeed, 
the Senate Report quoted above was issued 
and the Civil Service Reform Act was passed 
after the passage of the amendments to the 
A.D.E.A. —^ Therefore, it is clear that 
at the time the Congress was considering 
the Civil Service Reform Act, it believed 
that the just enacted A.D.E.A. amendments 
provided attorneys' fees in the administra­
tive process and that this existing right

8/ The A.D.E.A. amendments were passed by 
the Senate on March 23, 1978 (P.L. 92-256). 
S. Rep. No. 95-969 was issued on July 10, 
1978, and the Civil Service Reform Act was 
passed by the Senate on October 4, 1978 
(P.L. 95-454).



37

had to be preserved.
Petitioner therefore urges that the 

legislative history of the Civil Service 
Reform Act provides clear evidence of 
Congressional intent to award counsel fees 
even in the absence of an explicit authori­
zation of fees in the statute. To hold 
otherwise would be contrary to the clear 
statement of intent of Congress and create 
the anomolous result that only federal 
employee age bias victims who do not take 
the route of administrative redress to the 
MSPB are not entitled to attorneys' fees 
upon prevailing while private sector, 
federal sector court litigants, and federal 
sector MSPB claimants are entitled to 
attorneys' fees. Nowhere has Congress 
indicated it intended this result.



38 -

III.
The Decision Below Is Contrary to 
Decisions of This Court Governing The 
Retroactive Application of Statutes.
Prior to the 1978 amendments to 

A.D.E.A., there was no question but that 
federal employees had the right to attor­
neys' fees and costs when they prevailed 
under the A.D.E.A. Those fees and costs 
were recovered pursuant to 29 U.S.C. § 
216, which was incorporated by reference 
into the A.D.E.A. by Section 7(b) of the 
A.D.E.A. Specifically, Section 7(b) 
provides, "The provisions of this Act shall 
be enforced in accordance with ... 29
U.S.C. §211(b), 216, 217---" Section 216
of 29 U.S.C. provides, inter alia, "The 
court in such action shall, in addition to 
any judgment awarded to the plaintiff or 
plaintiffs, allow a reasonable attorneys' 
fee to be paid by the defendant, and costs
of the action.



39

Since this case commenced prior to the 
1978 amendments, and the agreement between 
the plaintiff and her attorney was reached 
prior to those amendments (effective 
September 30, 1978), under this Court's 
decisions in Bradley v. Richmond School 
Board, 416 U.S. 696 (1974), and Thorpe v. 
Housing Authority of Durham, 393 U.S. 268 
(1966) plaintiff should be awarded attor­
neys' fees and costs.

In addressing the question of whether 
a law should be applied retroactively, the 
Supreme Court held in Thorpe, supra, at 282 
that the general rule is a court must apply 
the law in effect at the time it renders 
its decision-,— unless manifest injustice 
would result. Thorpe cited Greene v . 
United States, 376 U.S. 149 (1964), in 
which the Court held a claimant's right to 
lost earnings had matured or vested 
and declined to give retroactive effect to



- 40

a new regulation that took effect while his 
claim was being processed.

In Bradley, the Court further ex­
plained its holding in Thorpe,

Although the precise cate­
gory of cases to which this 
exception applies has not been 
clearly delineated, the Court in 
[U.S. v.] Schooner Peggy [1
Cranch 103, 2 L ed 49, 51 (1801] suggested that such injustice 
could result "in mere private 
cases between individuals," and 
implored the courts to "struggle 
hard against a construction which 
will, by a retrospective opera­
tion, affect the rights of par­
ties." 1 Cranch, at 110, 2 L Ed 
49.

*  *  *

The concerns expressed by 
the Court in Schooner Peggy and 
in Thorpe relative to the pos­
sible working of an injustice 
center upon (a) the nature and 
identity of the parties, (b) the 
nature of their rights, and (c) the nature of the impact of the 
change in law upon those rights.

416 at 717.

9/ The Court then applied those three 
factors to the facts in Bradley and deter­mined that "manifest injustice" would 
not result there. JEd. p. 718-721.



41

Applying that analysis to the present 
case, the parties consist of (1) an indi­
vidual who has suffered age discrimination 
and (2) the federal government agency who 
was responsible for that discrimination. 
The nature of their rights is that at the 
time the plaintiff filed her administrative 
complaint, there was clearly a right to 
attorneys' fees for federal age bias claim­
ants who were prevailing parties. The 
federal government did not have a right 
to discriminate, nor a right to expect 
successful civil rights litigants to bear 
their own attorneys' fees. Thus, even as­
suming that there is no present right 
to attorneys' fees and costs under the 
A.D.E.A., under Bradley, Thorpe , and 
Greene, attorneys' fees and costs should be 
awarded here, since otherwise manifest 
injustice would result. Therefore,
the decision of the Court below is contrary



42

to those decisions and should be reviewed 
by this Court.

Conclusion
For the foregoing reasons, the peti­

tion for a writ of certiorari should be 
granted and the decision of the court below 
reversed.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON * 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

VALERIA V. AMBLER
815 Fifteenth St., N.W. 
Washington, D.C. 20005 
(202) 393-5900

Attorneys for Petitioner
* Counsel of Record



APPENDIX



DECISION OF THE COURT OF APPEALS,
January 6, 1983

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 82-1290 September Term, 1982

Civil Action No. 80-03090

VIRGINIA L. SWAIN,
Appellant

v.
JOHN LEHMAN, JR., Filed Jan. 6, 1983
Secretary of the Navy, et al.

Appeal From The United States District 
Court for The District of Columbia
Before ROBINSON, Chief Judge, WILKEY andMIKVA, Circuit Judges.

J U D G M E N T

This cause came on for consideration 
on the record on appeal from the United 
States District Court for the District of 
Columbia, and briefs were filed herein by 
the parties. While the issues presented 
occasioned no need for an opinion, they



have been accorded full consideration by 
the Court. See Local Rule 13(c).

On consideration of the foregoing, it 
is ORDERED and ADJUDGED by this Court that 
the order of the district Court appealed 
from in this cause be and hereby is af­
firmed. See Kennedy v. Whitehurst, ___
U . s .  App. D.C. ___, 690 F. 2d 951 ( 1982).

It is further ordered that the Clerk 
shall withhold issuance of the mandate 
herein until seven days after disposition 
of any timely petition for rehearing. See 
Local Rule 14, as amended on November 30, 
1981 and June 15, 1982.

Per Curiam 
By the Court

__ ______  /s/Georqe A. Fisher
Clerk

2a



DECISION OF THE DISTRICT COURT,
January 19, 1983

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

Civil Action 
No. 80-3090

FILED
JAN. 19, 1982

SECRETARY, U.S. DEPARTMENT 
OF THE NAVY, Defendant.

VIRGINIA L. SWAIN,
Plaintiff 

v s .

MEMORANDUM OPINION

Plaintiff, who prevailed in an age 
discrimination claim against her federal 
employer at the administrative level, seeks 
attorney's fees and costs. No factual 
issues remain in dispute and both parties 
have moved for summary judgment. For the 
reasons that follow, we conclude that 
plaintiff is not entitled to such fees and 
costs and, accordingly, that defendant's

3a



motion for summary judgment should be 
granted.

Factual Background
On August 11, 1977, plaintiff filed an 

administrative age discrimination complaint 
against her employer, the Department of the 
Navy. Plaintiff, who at that time was a 
60-year old GS-5 level employee, alleged 
that the Navy discriminated against her on 
the basis of age by not selecting her for a 
GS-6 position and by denying her a Quality 
Step Increase.

In 1979, hearings were held on plain­
tiff's complaint at the administrative 
level at which both parties were rep­
resented by counsel. In August, 1980, the 
Equal Employment Opportunity Commission 
Complaints Examiner issued a decision which 
held that the Navy had discriminated 
against plaintiff by failing to promote 
her. On October 29, 1980, defendant
issued the Complaints Examiner's opinion as

4a -



a final decision and awarded plaintiff a 
retroactive promotion to the GS-6 level 
plus back pay and corresponding retirement 
adjustments.

The present action was filed on 
December 3, 1980. On September 18, 1981,
the parties stipulated to the voluntary 
dismissal of both counts of the complaint 
except for the issue in count one of 
attorney's fees and costs sought by plain­
tiff in connection with the administrative 
proceedings. Plaintiff and defendant filed 
cross-motions for summary judgment and the 
remaining issue of law has been thoroughly 
briefed.

Discussion
The specific issue which confronts us 

concerns plaintiff's entitlement to 
recover costs and attorney's fees in 
connection with a 1980 administrative 
decision which found age discrimination 
against plaintiff in her job with the

5a



federal government.
In general, under the "American Rule," 

a successful litigant is not entitled to 
recover fees and costs from the opposing 
party. While Congress has carved out 
certain explicit exceptions for the allow­
ance of attorney's fees under specific 
statutes, the Supreme Court has cautioned 
that the courts should not create an 
entitlement to attorney's fees absent 
such express congressional authorization. 
Alyeska Pipeline Service Co. v. Wilderness 
So c i e t y , 421 U.S. 240, 260-62 (1975).

A separate limitation against the 
shifting of fees and costs, in addition to 
the "American Rule," arises where the 
United States is the party to be charged 
with such expenses. This is the ancient 
and well-established doctrine of sovereign 
immunity. Under this doctrine, attorney's 
fees and costs may be lodged against the 
federal government only where Congress

6a



clearly has consented by statute to be
liable for those expenses. N.A.A.C.P. v. 
Civiletti, 609 F.2d 514, 516-17 (D.C. Cir.
1979); Fitzgerald v. United States Civil 
Service Commission, 554 F.2d 1186, 1189
(D.C. Cir. 1977).

Plaintiff brought her successful 
administrative claim under the Age Dis­
crimination in Employment Act of 1967 
(ADEA), 29 U.S.C. §§ 621 et seq. Section 
15 of the ADEA, which was added to the 
Act by an amendment in 1974, provides a 
cause of action for discrimination on 
account of age in federal government 

• 2 9 U.S.C. § 633a. In 29
U.S.C. § 626(b) the ADEA incorporates by
reference the general provision of the Fair 
Labor Standards Act (FLSA) which provides 
for the award of attorney's fees and costs. 
29 U.S.C § 216(b).—^ However, under a 1978

V  29 U.S.C. § 216(b) provides in perti- 
ment part, "The court in such action shall, in addition to any judgment awarded to the

7a



amendment to the ADEA, the section of the 
FLSA concerning attorney's fees and 
costs is not made applicable to claims of 
age discrimination in federal government 
employment. 29 U.S.C § 633a(f).

Defendant insists that 29 U.S.C. § 
633a(f) prohibits an award of attorney's 
fees and costs in the present case. 
Plaintiff contends that §633a(f) does not 
expressly prohibit such an award and 
that Congress intended to provide relief 
which includes fees and costs for federal 
employees who are the victims of age 
discrimination. However, we need not 
address the general availability of at­
torney's fees and costs to a prevailing 
party in age discrimination suits against 
the federal government. We conclude that

_1/ continued
plaintiff or plaintiffs, allow a reasonable 
attorney's fees to be paid by the defen­
dant, and costs of the action.

8a -



regardless of the impact of 633a(f), 
plaintiff is not entitled to attorney's 
fees and costs.

Judge Gasch of this court, in a case 
strikingly similar to the present action, 
held that attorney's fees and costs are not 
available to a successful age discrimina­
tion litigant for services of counsel at 
the administrative level. Kennedj_v. 
Whitehurst, 509 F. Supp. 226 (D.D.C. 1981). 
While plaintiff in Kennedy was an employee 
who fell within the ADEA provision applic­
able to federal employees, the court did 
not base its decision on 29 U.S.C. § 633a 
(f). Rather, it concluded that even 
under the attorney's fee provision of 
FLS A , as incorporated into ADEA by 29 
U.S.C. § 626(b), successful age discrimina­
tion claimants are not entitled to recover
the costs of representation at the adminis- 

2/trative level.—'

2/ Plaintiff argues that the attorney's
9a



In Kennedy, the court reasoned that
both the language of 29 U.S.C. § 216(b) and 
the statutory scheme of the ADEA indicate 
that Congress did not intend to award 
attorney's fees and costs at the adminis­
trative level to age discrimination claim­
ants. The language of § 216(b) speaks of 
an award to "plaintiff," after an "action," 
and "judgment;" words associated with 
judicial rather than administrative pro­
ceedings. In addition, the court observed 
that unlike discrimination claims brought 
under Title VII of the Civil Rights Act,

2/ Fee provision of FLSA (29 U.S.C. 
§ 216(b)) applies to her claim because she 
commenced suit at the administrative 
level and retained counsel before Congress 
made that section inapplicable to federal employees through 29 U.S.C. § 633a(f). 
However, we need not address the retroac­tive applicability of § 633a(f) because 
even if § 216(b) applies to plaintiff's 
claim, she is not entitled to attorney's 
fees and costs for services of counsel at 
the administrative level. Kennedy v . 
Whitehurst, supra, at 230-231.

10a



which provides for attorney's fees at the 
administrative level, the ADEA does not 
include a provision requiring exhaustion of 
administrative remedies beyond a simple 
notice requirement. Thus, because resort 
to administrative procedures is merely 
an alternative option to the commencement 
of a judicial action for an age discrimina­
tion claimant, that claimant is not en­
titled to the expenses of counsel at 
the administrative level. Kennedy, supra, 
at 230-231. Another recent decision 
similarly concluded that because the 
applicable statutory enforcement scheme 
provided plaintiff with "the option of 
proceeding initially in federal court," 
attorney's fees and costs were not avail­
able for the assistance of counsel at the 
"optional" administrative proceedings. 
Spancrete Northeast, Inc, v. International 
Association of Bridge, Structural and

11a



Ornamental Ironworkers, 514 F. Supp. 326,
334 (N.D.N.Y. 1981) (request for attorney's 
fees and costs after a favorable decision 
by the National Labor Relations Board).

In response, plaintiff argues that 
the right under Title VII to attorney's 
fees and costs at the administrative level 
should be applied to age discrimination 
claims based on federal government employ­
ment. For support, plaintiff points to 
dicta in a recent Supreme Court decision 
which notes, "§§ 15(a) and (b) [29 U.S.C § 
633a] are patterned after §§ 717(a) and (b) 
of the Civil Rights Act of 1964 . . . which 
extend the protection of Title VII to 
federal employees." Lehman v. Nakshian, 
49 U.S.L.W. 4835, 4837 (1981)(age discrimi­
nation claimant not entitled to a jury 
trial in action against the federal govern­
ment under 29 U.S.C. § 633a. From the 
court's general observation that the

12a



extension of the ADEA to federal workers 
was modelled after an earlier extension of 
Title VII to those same employees, plain­
tiff concludes that § 15 of ADEA incorpor­
ates the specific section of Title VII 
which grants attorney's fees and costs for 
services of counsel at the administrative 
level. We do not agree.

In Nakshian the Court cited remarks of 
Senator Lloyd Bentsen (D-Tex.), the princi­
pal sponsor of § 15 of the ADEA, for the
assertion that § 15 was patterned after the 
portion of Title VII which extends the 
Act's protections to federal employees. 
Nakshian, supra, at 4837. The Senator's 
cited comments, however, are limited to an 
observation that "The measures used to 
protect Federal employees" under § 15 "would 
be substantially similar" to the provision 
extending Title VII protections to those 
employees. 118 Cong. Rec. 24397. The

13a



Senator's remarks do not support plain­
tiff's assertion that Congress intended to 
apply the specific Title VII attorney's 
fee provision to claims brought under § 15 
of the ADEA. Instead, they indicate merely 
that the purpose of that section is to 
provide federal workers with substantive 
protections against age discrimination 
similar to those which they enjoy against 
other types of discrimination covered under 
Title VII.

Moreover, had Congress desired to 
apply the attorney's fee provision of Title 
VII to § 15 of the ADEA, it could have 
expressly done so, as it did in applying 
the attorney's fee provision of FLSA to the
other sections of the ADEA^.-- As noted
earlier, courts must be careful not to 
create entitlements to attorney's fees 
absent explicit and specific congressional 
authorization. Alyeska, supra, 260-262.

14a



It is important once more to under­
score the narrow scope of our decision. We 
hold only that attorney's fees and costs 
for services at the administrative level 
are not available to a claimant who alleges 
age discrimination in federal government 
employment. Arguably, Congress has
provided such relief pursuant to the Equal 
Access to Justice Act (EAJA), P.L. 96-481 
(1980). However, the EAJA applies only to 
actions pending on, or commenced on or 
about October 1, 1981. As plaintiff
entered a voluntary dismissal of all her
substantive claims prior to that date, the

3/EAJA does not apply to the present action.— 
Plaintiff presents sound and persua­

sive policy arguments for providing at-

3/ The parties to the present action 
entered into a stipulation, approved by 
this court on September 18, 1981, which voluntarily dismissed all plaintiff's 
claims except her request for attorney's 
fees under count I.

15a



torney's fees and costs for services at the 
administrative level to successful federal 
ADEA claimants. We have sympathy for her 
position. It may be, as Judge Gasch noted 
in Kennedy, that the failure to provide 
such relief was the product of "congres­
sional oversight," supra at 231. However, 
whatever the reason for this omission, it 
is for Congress to determine in clear 
language the class of litigants, to whom 
and under what circumstances, an award of 
attorney's fees and costs is appropriate. 
We find that in the present case, the 
requisite explicit expression of congres­
sional intent to award such fees and costs 
to plaintiff is absent.

16a



Conclusion
For the above reasons, we conclude 

that defendant's motion for summary 
judgment should be granted.

An order consistent with the foregoing 
has been entered this day.

_________ /s/______________John H. Pratt
United States District Judge

January 19th, 1982.

17a



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

VIRGINIA L. SWAIN,
Plaintiff, 

v s .

SECRETARY, U.S. DEPARTMENT 
OF THE NAVY,

Defendant.

O R D E R
Upon consideration of the cross-mo­

tions for summary judgment submitted by the 
parties, the memoranda of points and 
authorities filed in support and opposition 
thereto, and the entire record herein, it 
is by the court this 19th day of January, 
1982.

ORDERED that defendant's motion for 
summary judgment be and the same hereby is 
granted.

_________ /s/___________ ___John H. Pratt
United States District Judge 

January 19th, 1982.

Civil Actio 
No. 80-3090

FILED JAN. 19, 1982

- 18a



G| 
*
OPINION IN KENNEDY V. WHITEHURST

Bess KENNEDY, Appellant,
V .

William H. WHITEHURST, Acting 
Director, Department of 
Human Services,

No. 81-1374

United States Court of Appeals District of Columbia Circuit.
Argued Jan. 12, 1982.
Decided Sept. 17, 1982

Appeal From The United States District 
Court for The District of Columbia (D.C. Civil Action No. 80-1183).

Before TAMM, Circuit Judge, ROBB, 
Senior Circuit Judge, and HOWARD T. 
MARKEY,V Chief Judge, United States 
Court of Customs & Patent Appeals

Opinion for the court filed by Circuit 
Judge TAMM.

Sitting by designation pursuant to 28 
•S.C. § 293(a)(1976).

19a



TAMM, Circuit Judge:
This case presents the question 

whether, under the Age Discrimination in 
Employment Act of 1967, 29 U.S.C. §§ 621- 
634 (1967 & Supp. IV 1980) (ADEA or the
Act), federal employees who gain redress at 
the administrative level are entitled to 
recover attorneys' fees for legal services 
rendered at that stage. United States 
District Judge Oliver Gasch ruled that 
Congress had not provided the requisite 
statutory authorization for an award of 
fees in cases in which the process of 
administrative conciliation is successfully 
employed in the federal employee's favor, 
and he accordingly denied appellant Bess 
Kennedy's prayer for such an award against 
appellee William Whitehurst, the Acting 
Director of the District of Columbia 
Department of Human Services (DHS). Since 
the date of Judge Gasch's ruling, two other

20a



district judges have considered the same 
issue and have reached the identical 
result, though each judge employed a 
slightly different reasoning. Although 
we too shall travel a somewhat different 
course than did Judge Gasch in considering 
the question, we agree that federal employ­
ees who prosecute successfully claims of 
age discrimination under the ADEA at the 
administrative level are not entitled 
to an award of attorneys' fees. Accord­
ingly, we affirm.

I.
To the old adage that death and taxes 

share a certain inevitable character, 
federal judges may be excused for adding 
attorneys' fees cases. The years that have 
elapsed since the Supreme Court confirmed 
the prevalence of the so-called "American 
Rule" that requires each party to bear its 
own counsel fees absent a contrary statu­
tory provision or common law exception, see

21a



Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 
1616, 44 L„Ed.2d 141 (1975), have witnessed 
no abatement in the number of cases involv­
ing attempts to shift the incidence of the 
costs of lawyers. The judicial focus has, 
rather, shifted from consideration of the 
inherent equitable power of courts to award 
attorneys' fees to the construction of the 
plethora of federal statutes enacted 
to create exceptions to the American Rule. 
There are more than 120 federal statutes
authorizing the award of counsel fees in

1 /specific situations,— many of which were 
enacted in response to the Alyeska decision. 
In recent years this court and many others

j_/ See 4 FED. ATTORNEY FEE AWARDS REP. 2-3 (Harcourt Brace Javanovich) No. 6 (October 
1981). Before the decision in Alyeska Pipeline Service Co. v. Wilderness Soci­
ety , 421 U.S. 240, 95 S.Ct. 1612, 44
L.Ed.2d 141 (1975), approximately thirty
federal statutes authorized courts to award 
attorneys' fees. Alyeska, 421 U.S. at 260 
n.33, 95 S.Ct. at 1623 n.33.

22a -



have attempted to establish doctrines to
govern the exercise of a trial judge's
statutory discretion to award attorneys' 

2/fees— and have sought to give content 
to terms of art such as "prevailing 
party"—^and "reasonable fee."—^

2/ Compare Newman v. Piggie Park Enter­
prises , 390 U.S. 400, 402, 88 S.Ct. 964, 
966, 19 L.Ed.2d 1263 (1968)(per curiam) 
(prevailing plaintiffs in civil rights cases entitled to fee awards "unless special circumstances would render such 
an award unjust"), with Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)(pre- 
vailing defendants in civil rights suits entitled to fee award only when plaintiff's 
underlying claim is "frivolous, unreason­
able, or groundless"). See generally 
Roadway Express, Inc. v. Piper, 447 U.S. 752, 762, 100 S.Ct. 2455, 2462, 65 L.Ed.2d 
488 (1980)(distinction between fee awards to civil rights plaintiffs and defendants 
"advances the congressional purpose to en­courage suits by victims of discrimination 
while deterring frivolous -litigation").
3/ See e.g., Maher v. Gagne, 448 U.S. 
122, 129-30, 100 S.Ct. 2570, 2574-75, 65 L.Ed.2d 653 (1980)(fact that plaintiff "prevailed" through settlement rather than 
litigation does not compromise right to 
counsel fees under Civil Rights Attorney's 
Fees Awards Act of 1976).
4/ See, e.g., Copeland v. Marshall, 641

23a



We may well expect this boom of 
litigation involving attorneys' fees to 
continue. In the civil rights area in 
particular, Congress has wholeheartedly 
embraced the "private attorney general" 
rationale and accordingly has encouraged 
private action to implement public policy 
through the subsidization of the work of 
plaintiffs' counsel by private and govern­
ment defendants. The Supreme Court in 
Newman v. Piggie Park Enterprises, 390 U.S. 
400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), 
made clear that the congressional policy 
favoring private enforcement of civil 
rights legislation mandated a liberal 
construction of attorneys' fees provisions 
in the area of personal rights. 390 U.S. 
at 401-02, 88 S.Ct. at 965-66. Because the

4/ continued
F.2d 880 (D.C. Cir. 1980 (en banc); LindyBros. Builders, Inc, v. American Radiator & 
Standard Sanitary Corp., 540 F .2d 102(3d Cir. 1976)(en banc).

24a



right to seek and maintain employment in an 
environment free from age discrimination 
has now been declared such a civil right, 
we view as fundamental this mandate of a 
broad reading of the remedial provisions 
at issue in the instant case. See Rod­
riquez v. Taylor, 569 F.2d 1231 , 1244 (3d
Cir. 1 977)("unqulified legislative and 
judicial authority for an award of fees to 
all successful plaintiffs" in ADEA cases).

Nevertheless, courts considering 
prayers for attorneys' fees must bear in 
mind the Alyeska Court's admonition that 
specific statutory authorization for an 
award of fees is required before the 
incidence of counsel costs can be shifted. 
Rodriquez, 569 F.2d at 1245. This admoni­
tion is buttressed by the doctrine of 
sovereign immunity where attorneys' fees 
are sought against the federal government; 
we have held that a waiver of that immunity 
with regard to an award of attorneys' fees

25a



must either be express or manifest from the 
relevant legislative history. See Fitz­
gerald v. United States Civil Service 
Comm'n, 554 F.2d 1186, 1189 & n.8 (D.C.
Cir. 1977); see also United States v. King, 
395 U.S. 1, 3-5, 89 S.Ct. 1501, 1502-03, 23 
L.Ed.2d 52 (1969); NAACP v. Civiletti, 609
F .2d 514, 516 (D.C. Cir. 1 979), cert .
denied, 447 U.S. 922, 100 S.Ct. 3012, 65
L.Ed.2d 1114 (1980). Thus, federal courts 
lack the power to award attorneys' fees 
to a prevailing party against the govern­
ment where the only justification is 
that public policy favors an award. As we 
noted in Fitzgerald, even if a denial of 
fees might "make a mockery and a sham of 
the mandate of Congress,'" no award can be 
made absent express statutory authoriza­
tion. 554 F.2d at 1190 (quoting Fitzgerald 
v. United States Civil Service Comm'n, 407 
F. Supp. 380, 386 (D.D.C. 1975)). Argu-

26a -



ments centering on the inequities caused by 
the absence of fee-shifting are properly 
addressed to the Congress and not to the 
courts.

It is against this backdrop that we 
Consider appellant's request for attorneys' 
fees.

A. The Facts
Neither party questions the factual 

findings of the district judge. Appellant 
Bess Kennedy has since 1970 been an em­
ployee of the District of Columbia DHS and 
of its predecessor agency, the Department 
of Human Resources. In 1978 appellant, 
then a sixty-two-year-old white female 
employed as a GS-9 Social Service Represen­
tative, applied for a promotion to fill one 
of twelve vacant positions as a GS-11 
Supervisory Social Service Representative. 
She also applied for a promotion to a 
position as a GS—11 Employee Development 
Specialist. Appellant was denied both

27a



promotions, the first in November 1978 and
the second in March 1979.

In August 1979 Mrs. Kennedy filed a
complaint with the District of Columbia's
Office of Human Rights in which she alleged
that the promotion denials were the
result of discrimination on the bases of

5 /race, gender, and age.— in September 
1979 appellant filed a complaint alleging 
only age discrimination with the United 
States Equal Employment Opportunity Commis-

5/ Complaint, Kennedy v. Department of
Human Resources, District of Columbia Office of Human Rights Docket No. 9-DC-598 
(filed Aug. 22, 1979), Joint Appendix(J.A .) at 19-20. On May 14, 1980, this
complaint was dismissed by the Office of Human Rights because investigation revealed 
no evidence to support the discrimination 
allegations. Memorandum from Anita Bellamy Shelton, Director, Equal Employment 
Opportunity, Office of Human Rights, to James Buford, Director, Office of Human 
Rights (May 14, 1980), J.A. at 26. After
that dismissal, however, the complaint was remanded to the Office of Human Rights 
for further consideration. See Kennedy v. 
Whitehurst, 509 P. Supp. 226, 227 n.1
(D.D.C. 1981).

28a



sion (EEOC).- Mrs. Kennedy was assisted 
by counsel in the preparation of both 
complaints and in the administrative 
proceedings that followed.

The administrative efforts at resolu­
tion of the dispute proved successful, with 
no judicial proceedings of any kind re­
quired to secure the relief accorded 
appellant. The parties and the EEOC 
negotiated a settlement agreement that, as 
appellant notes, appears to have resolved 
the age discrimination claim in her favor 
and that provided for her retroactive 
promotion to the GS-11 level with an award 
of back pay.—^ The settlement agreement

6/ Charge of Age Discrimination Equal 
Employment Opportunity Commission Charge No. 032-798025 (Sept. 10, 1979), J.A. at 
17-18.
1/ An employee of the Equal Employment 
Opportunity Commission (EEOC) concluded that "age was a factor" in the denial of a 
promotion to appellant and recommended 
certain remedial action as a response. Letter from May Short, Equal Opportunity

29a



did not, however, provide for an award of 
attorneys' fees.

After this success at the administra­
tive level, appellant filed a request with 
the DHS for the cost of the legal services 
provided on her behalf before the EEOC. The 
DHS denied the request, contending that it

7/ continued
Specialist, Equal Employment Opportunity 
Commission, to Albert P. Russo, Director, 
Department of Human Resources (Dec. 13,1979) , J.A. at 21. The Department of Human 
Resources, although it carried out the recommended remedial action, conceded only 
that it "appear [ed] that age was a factor" 
in the denial of a promotion to appellant. Letter from Albert P. Russo, Director, Department of Human Resources, to May 
Short, Equal Opportunity Specialist, Equal 
Employment Opportunity Commission (Jan. 23,1980) , J.A. at 22.

Although they pressed the point in the 
district court, appellees do not contend 
here that appellant was not a prevailing 
party under the Age Discrimination in Employment Act (ADEA). Accordingly, we 
assume, as did the district judge, that 
appellant prevailed under the ADEA. See Kennedy v. Whitehurst, 509 F. Supp. at 227.

30a



lacked the statutory authority to award
8 /fees.- Mrs. Kennedy then filed in the 

district court the complaint that insti­
tuted the instant litigation, contending

9/that, as a prevailing party—' under the ADEA, 
she was entitled to an award of attorneys' 
fees for the costs of counsel she incurred 
at the administrative level. Appellant 
Kennedy thereupon moved for summary judg­
ment, arguing that the language of the ADEA 
authorized an award of fees to a federal 
employee who prevails exclusively through 
administrative proceedings.

Assuming both that a competitive 
service employee of the DBS is a federal 
employee for the purposes of the ADEA and 
that federal employees have the same rights

8. Letter from William H. Whitehurst, 
Acting Director, Department of Human 
Resources, to Joel P. Bennett, Esq. (Mar. 
28, 1980), J.A. at 25.
9. See supra note 7.

31a



to attorneys' fees under the Act as do 
private sector workers, the district court 
nonetheless held that the ADEA did not 
authorize an award of fees for legal 
services rendered at the administrative 
level. Kennedy v. Whitehurst, 509 F.Supp. 
226, 231-32 (D.D.C. 1981). The district
judge concluded that, although an award of 
such fees might be a sound policy result, 
Congress had failed, perhaps inadvertently, 
to empower courts to award counsel fees for 
legal work done before administrative 
agencies. I_d. at 231 & n.11. As no
material facts were in dispute and as the 
dispositive legal question had been fully 
briefed, the court sua sponte entered 
summary judgment in favor of the government 
agency. _I d_. at 231-32. This appeal
followed.

B. The Statutory Background
The relevant provisions of the ADEA

32a



are, regrettably, a model in imprecision. 
The ADEA was passed in 1967 to protect older 
members of the nation's workforce from 
discrimination premised on age differences. 
Lorillard v. Pons, 434 U.S. 575, 577, 98
S.Ct. 866, 868, 55 L.Ed.2d 40 (1978). As
originally enacted, the ADEA applied only 
to employees in the private sector and 
adopted as its private enforcement 
mechanism the compliance scheme that 
obtained under the Fair Labor Standards 
Act, 29 U.S.C. §§ 201-219 (1976 & Supp. IV 
1980)(FLSA). The relevant ADEA language 
appears in section 7(b) of the Act and 
provides:

The provisions of this chapter shall 
be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for sub­
section (a) thereof), and 217 of this 
title ....

ADEA § 7(b), 29 U.S.C. § 626(b) (1976).
The critical cross-reference for present

33a



purposes is to section 16 of the FLSA, 29 
U.S.C. § 216 (1 976 & Supp. IV 1980). In
pertinent part, that section provides:

An action to recover the liability 
prescribed in either of the preceding 
sentences may be maintained against any employer (including a public agency) in 
any Federal or State court of competent jurisdiction .... The court in such 
action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's 
fee to be paid by the defendant, and costs of the action.

29 U.S.C. § 216(b) (1976 & Supp. IV 1980).
This incorporation by reference makes it 
clear that, at a minimum, a private sector 
employee who secures a judgment in litiga­
tion under the ADEA is additionally enti­
tled to an award of attorneys' fees against 
the defendant.

In 197 4 Congress amended the ADEA to 
bring federal employees under the Act's 
protective umbrella. As amended, section 
15 of the ADEA, 29 U.S.C. § 633a ( 1 976 &
Supp. IV 1980), "prohibits age discrimina-

34a



Lehmantion in federal employment." 
v. Nakshian, 453 U.S. 156, 162, 101 S.Ct.
2698, 2702, 69 L.Ed.2d 548 (1981). Section 
15(c) of the ADEA, 29 U.S.C. § 633a(c)
(1976), supplies the means for judicial 
enforcement of the prohibition against age

10/ ADEA section 15(a) provides:
All personnel actions affecting 

employees or applicants for employment 
who are at least 40 years of age (except personnel actions with regard 
to aliens employed outside the limits 
of the United States) in military departments as defined in section 102 of title 5, in executive agencies as 
defined in section 105 of title 5 (including employees and applicants 
for employment who are paid from 
non-appropriated funds), in the United States Postal Service and Postal Rate 
Commission, in those units in the government of the District of Columbia having positions in the competitive 
service, and in those units of the 
legislative and judicial branches of the Federal Government having 
positions in the competitive service, 
and in the Library of Congress shall be made free from any discrimination 
based on age.
29 U.S.C. § 633a(a) (Supp. IV 1980).

35a



discrimination; it provides:
Any person aggrieved may bring a 

civil action in any Federal district 
court of competent jurisdiction for such 
legal or equitable relief as will effec­tuate the purposes of this chapter.

Although this language is quite broad and
tracks the wording of the provision of the

11 /ADEA covering private sector employees,— ■' 
section 15 does not include the language 
contained in section 7 that incorporates the 
FLSA remedial scheme. Thus, in contrast 
to the ADEA private enforcement scheme 
detailed in section 7 through reference to 
FLSA section 16, the Act's federal employee 
compliance scheme contains no explicit ref­
erence to the provision of any form of at­
torneys' fees. Rather, federal courts are

V\_/ Section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), provides, in pertinent 
part, that any court enforcing the statute 
"shall have jurisdiction to grant such 
legal or equitable relief as may be approp­riate to effectuate the purposes of this 
chapter ...."

36a



simply empowered to grant such relief "as 
will effectuate the purposes" of the Act. 
29 U.S.C. § 633a(c)(1976)(emphasis added).

Perhaps the most difficult and confus­
ing issue in the instant case involves the 
relationship between the public and private 
sector enforcement schemes. In 1978 
amendments to the ADEA, Congress added a 
subsection (f) to the federal compliance 
mechanism contained in section 15 that, 
literally read, mandates a complete divorce 
between the two schemes. The new subsec­
tion, 29 U.S.C. § 633a(f) (Supp. IV 1980), 
provides:

Any personnel action of any depart­
ment, agency, or other entity referred 
to in subsection (a) of this section shall not be subject to, or affected by, 
any provision of this chapter, other than 
the provision of section 631(b) of this title and the provisions of this section.

Id.; see supra n.10. As the district judge
noted in the case at bar, a strict reading
of this subsection would require that ques-

37a



tions involving attorneys' fees under 
section 15--and, for that matter, all 
issues of relief and remedies for federal 
employees under the ADEA--be resolved by 
exclusive reference to the terms of that 
section. Kennedy, 509 F.Supp. at 228-29. 
The district judge declined to separate so 
rigidly the two enforcement patterns, 
however, in light of his conclusion that 
neither the public sector nor the private 
sector enforcement schemes under the ADEA 
authorized an award of attorneys' fees for 
legal services performed at the administra­
tive level, ^d. at 229, 231-32.

As the government appellee notes, how­
ever, an opinion of the Supreme Court that 
issued subsequent to the district judge's 
decision in this case casts additional light 
on the relationship between sections 7 and 
15 of the ADEA. In Lehman v. Nakshian, 453 
U.S. 156, 101 S.Ct. 2698, 69 L.Ed.2d 548

38a



(1981), the Court ruled that, although a 
private employee who brings an action 
under section 7 of the ADEA does have 
the right to a jury trial, a federal 
employee suing under section 15 does not 
have that right. _Id. at 165, 101 S.Ct. at 
2704. Writing for a closely divided court, 
Justice Stewart stressed the divergence of 
the public and private employee enforcement 
schemes; citing the subsection (f) added 
in 1978 the Court stated that "Congress did 
not incorporate the FLSA enforcement 
scheme into § 15," but rather patterned the 
enforcement mechanism for federal employees 
after those sections of the Civil Rights 
Act of 1964 that extended the protection 
of Title VII to federal employees. Id. 
at 163-64, 101 S.Ct. at 2703. Justice
Stewart relied on the House Report accom­
panying the 1978 ADEA amendments, which 
stated that "Section 15 ... is complete

39a



in itself." H.R.Rep. No. 527, 95th Cong., 
1st Sess. 11 (1977). The Court concluded 
that the federal employee enforcement 
provision is "self-contained and unaffected 
by other sections" of the ADEA. Nakshian, 
453 U.S. at 168, 101 S.Ct. at 2705.

We are left, then, with the following 
matrix. It is clear that Congress intended 
that sections 7 and 15 of the ADEA be dis­
tinct enforcement mechanisms; the Supreme 
Court's holding in Nakshian clearly indi­
cates that different rights and remedies 
may obtain under each of the two enforce­
ment schemes. By the same token, the 
Court's ruling suggests, as appellant 
notes, that the enforcement mechanisms for 
federal employees under the ADEA and Title 
VII are similar and should be construed in 
pari materia. As we shall discuss below, 
the Court's decision in Nakshian provides 
grist for the mills of both the appellant

40a



and the government appellee.
C. The District Jugdes1 Ruling

The district judge properly treated 
appellant, a competitive service employee of
the District of Columbia, as a federal
employee for the purposes of the ADEA.
Kennedy, 509 F.Supp. at 228 (D.D.C. 1981)
(citing 29 U.S.C. § 6 3 3 a (a ) (Supp. IV
1980)). He accordingly shifted the focus of 
his consideration to the rights of federal 
employees under the ADEA and to the rela­
tionship of section 15 to the ADEA's 
private enforcement provisions. Fearing 
that a "literal interpretation" of the 
language of subsection (f) of section 633a 
would prove too much by creating totally 
distinct public and private enforcement 
schemes, the district judge assumed, 
arguendo, that federal employees have the 
same right to attorneys' fees for legal 
services performed at the administrative

41a



level under the ADEA as do private sector 
employees; in light, perhaps, of the fact 
that his decision antedated Nakshian, the 
district judge was unwilling to assume that 
a strict dichotomy between the rights and 
remedies of federal and private sector 
employees existed. Kennedy, 509 F.Supp. at 
228-29. These assumptions were critical, 
for they necessarily meant that the 
attorneys' fees inquiry would turn on 
analysis of the more generous language of 
section 7, which contains a specific 
reference to the provisions of such fees.

Even this favorable assumption proved 
of no avail to Mrs. Kennedy, however. She 
argued in the district court that the ADEA 
should be read to permit a fee award for 
administrative legal services, just as 
similar language in Title VII had been 
construed to ground such awards. See Smith 
v. Califano, 446 F.Supp. 530 (D.D.C. 1978)

42a



(Gasch, J. ) . Mrs. Kennedy contended that 
the analogy between the two pieces of civil 
rights legislation is strong: both the ADEA 
and Title VII are broad, remedial statutes 
designed both to proscribe discrimination 
and to "make whole" those who are the 
victims of forbidden personnel practices.

The district judge rejected the pro­
posed analogy. Although he noted that both 
the ADEA and Title VII were appropriately 
given liberal construction, the differences 
between the enforcement schemes of each 
made clear that only under the Title VII 
regime is an award of attorneys' fees per­
mitted for administrative legal services. 
The district judge's scrutiny of the rele­
vant statutory language made clear that 
the authorization of attorneys' fee awards 
is broader under Title VII than under the 
ADEA; while Title VII permits fee awards in 
any "action or proceeding," the FLSA

43a



language contained in the ADEA authorizes
awards only to a "plaintiff or plaintiffs"

1 2who secure a "judgment" in an "action." 
Relying on a similar parsing of statutory 
language conducted by the Supreme Court 
in New York Gaslight Club, Inc, v. Carey, 
447 U.S. 54, 100 S.Ct. 2024, 63 L.Ed.2d
723 (1980), the district judge concluded
that the ADEA's use of words suggesting 
a litigative context indicates that fees 
are to be awarded only in a court "action" 
and not in an administrative "proceeding." 
Kennedy, 509 F.Supp. at 230.

Recognizing the formalistic overtones 
to such a distinction, the district court 
found that a structural comparison of Title 
VII--under which an award of fees for 
administrative legal services has been held

12. Compare § 706(k) of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C.S2000e-5(k) (1976) with Fair Labor Standards 
Act § 16(b), 29 U.S.C. § 216(b) (Supp. IV
1980).

44a



authorized— '— and the ADEA further dictated 
the conclusion that Congress did not 
contemplate an award of fees for legal 
services performed at the administrative 
level in the age discrimination context. 
While Title VII's enforcement scheme 
mandates the exhaustion of administrative 
remedies before a lawsuit may be filed, 
the ADEA mechanism requires as a practical 
matter only that notice be given the gov­
ernment of the existence of a complaint. 
As the district judge put the matter, pur­
suit of ADEA administrative remedies is 
"optional and not a mandatory prerequisite 
to the filing of a civil action." Id.

The district court concluded that the 
enforcement procedures of the ADEA and 
Title VII were structured in a purposefully 
divergent fashion by the Congress: "in

13/ See Smith v. Califano, 446 F.Supp. 530 
(D.D.C. 1978).

1 3/

45a



ADEA actions, unlike Title VII actions, 
administrative proceedings are not a 
pervasive and integral part of the overall 
scheme of enforcement." Ik3. at 231. In 
particular, the district judge noted, 
ADEA administrative proceedings lack the 
"adversarial nature" of Title VII's 
administrative process; whereas Title 
VII mandates the presentation of the 
complainant's case at the administrative 
level, all the ADEA demands at that stage 
is notice of a complaint. Id. at 230-31 . 
In the absence of a sufficiently specific 
congressional authorization of fee awards 
at the administrative level, the district 
judge invoked the Alyeska presumption 
against the shifting of the cost of legal 
services and entered summary judgment 
in appellee's favor.

D. Related Cases
Subsequent to the district court's

46a



judgment in the instant case, that court 
reached the identical result in two other 
cases, albeit by somewhat divergent means. 
In Muth v. Marsh, 525 F.Supp. 604 (D.D.C.
1981), Judge Gesell concluded that the 
decision of the Supreme Court in Nakshian 
had made clear that, although both private 
sector and federal employees are protected 
under the ADEA, Congress has created alter­
native remedial schemes for each class of 
employees. Thus, he concluded, ADEA sec­
tion 15 does not incorporate the remedial 
scheme of section 7, and the structure of 
remedies for each employee group differs. 
Examining only the language of section 15, 
Judge Gesell found it too general to permit 
an award of attorneys' fees and refused to 
make such an award to a federal ADEA 
complainant who had prevailed at the 
administrative level.

In Swain v. Secretary, 28 Empl.Prac.

47a



(CCH) 1[ 32,574 at 24,585 (D.D.C. Jan. 19,
1982), Judge Pratt similarly ruled that a 
federal ADEA complainant who secured relief 
through administrative proceedings was not 
entitled to an award of counsel fees. 
Finding the issues in Swain "strikingly 
similar" to those the district court faced 
in Kennedy, Swain at 24,587, Judge Pratt 
concluded that both the language of the 
relevant FLSA provision and the statutory 
scheme of the ADEA indicates that Congress 
did not intend an award of attorneys' fees 
at the administrative level to age 
discrimination claimants. He noted that in 
contrast to the administrative exhaustion 
requirement mandated by Title VII, the ADEA 
administrative scheme is only "an 
alternative option" to the commencement of 
judicial proceedings. _I d . Thus, the 
district judge reasoned, because the ADEA 
enforcement scheme provided the complainant

48a



with the option of proceeding initially in 
federal court after simple administrative 
notice, the denial of counsel fees at the
administrative stage was not an inappro- 

14priate result.

E. Summary of the District Court Rulings 
Scrutiny of the district court opin­

ions in Kennedy, Muth, and Swain reveals 
two distinct paths to the same result of 
denying a fee award to federal employees 
who prevail at the administrative level 
under the ADEA. Under the approach adopted

14. Mention should also be made at this 
point of DeFries v. Haarhues, 488 F.Supp. 1037 (C.D. 111. 1 980), in which the court 
held that a prevailing federal age discrim­ination complainant is entitled under § 
15(c) of the ADEA to an award of attorneys' fees for services rendered in connection 
with j udicial processes. Relying on the 
general language of § 15(c), the DeFries court ruled that an award of attorneys' 
fees to federal employees "effectuates the purposes" of the ADEA and is thereby authorized. J[cL at 1045. The DeFries case 
is discussed at p. 963, infra.

49a



by the Kennedy and Swain courts, federal 
and private sector employees are treated 
similarly for ADEA remedial purposes;^ ̂ 
the necessary implication of this assimila­
tion would seem to be that employees in 
neither class are entitled to an award of
counsel fees when relief is obtained

1 6through administrative proceedings.
By contrast, under the approach adopted by 
the Muth court, federal employees are

15. This similarity of treatment was an 
explicit assumption in Kennedy. See 509
F.Supp. at 228-29. In Swain, although the district judge suggested that his decision 
was limited to ADEA claims involving federal employees, 28 Empl.Prac.Dec . at 
24,588, language in that opinion indicates that, for the purpose of administrative 
level attorneys' fees, private sector and federal employees are treated identically. 
Id.
16. This result follows necessarily from 
the express assimilation in Kennedy of private and federal sector employees' rights to administrative stage counsel 
fees; it follows by implication from the 
language of the Swain opinion and by that court's express reliance on Kennedy. See 
also supra note 15.

50a



deemed subject to a totally distinct ADEA
enforcement regimen. The necessary 
corollary of embracing the reasoning 
adopted by the Muth court would, however, 
apparently be that no federal emloyee is 
ever entitled to an award of attorneys' 
fees under the ADEA, even where he prevails 
in exclusively judicial proceedings. In 
sum, each approach denies by implication an 
award to a group of ADEA prevailng parties 
not before the court— either to private 
sector complainants who prevail at the 
administrative level (Kennedy, Swain), or 
to federal employees who prevail in 
judicial proceedings (Muth).

II.'
A. The Parties' Positions

In light of the detailed recitation of 
background information above, the parties' 
respective positions on appeal may be 
briefly stated. Appellant Kennedy's

51a



principal contention is that, because ADEA 
section 15 is "patterned after" comparable 
Title VII enforcement provisions, the ADEA 
section is properly read as incorporating 
the Title VII remedial scheme. Brief for 
Appellant at 5, 11 (quoting Nakshian, 453 
U.S. at 163, 101 S.Ct. at 2703). Accord­
ingly, appellant argues, because the broad
"such ... relief as will effectuate the 

1 7[purposes]" language has been construed 
to authorize an award of fees for adminis­
trative legal work done for federal employ­
ees in the Title VII context, see Parker v. 
Calif ano, 561 F.2d at 320, 333 (D.C. Cir. 
1977); Smith v. Califano, 446 F.Supp. 530, 
534 (D.D.C. 1978); the similar ADEA lang-

17. The relevant language in Title VII federal employee context is, in fact, such relief "as will effectuate the policies" of 
the statute. 42 U.S.C. § 2000e-16(b) (1976). We assume that no substantive 
difference was intended in the substitution in the ADEA of the word "purposes" for 
Title VII's "policies."

52a



uage should be read to authorize comparable
awards. In support of this position,
appellant relies on the observations made
by the Supreme Court in Nakshian to the
effect that Congress patterned the federal
employee provisions in the ADEA after
similar Title VII provisions, see 453 U.S.
at 163-64, 101 S.Ct. at 2703, and on
statements in the legislative history
suggesting that the ADEA was intended to
provide "substantially similar" protections
and remedial measures to federal employees

1 8as those available under Title VII.
Appellant discounts the purported dis-

18. The principal sponsor of section 15 of 
the ADEA, Senator Bentsen of Texas, ob­served that " [t]he measures to protect 
Federal employees [from age discrimination] would be substantially similar" to those contained in the federal employee provi­
sions of Title VII. 118 Cong.Rec. 24,397 
( 1972) .

53a



tinctions between the ADEA enforcement 
scheme and the mechanism that obtains un­
der Title VII. Although acknowledging the 
obvious differences noted by the district 
judge, appellant contends that administra­
tive procedures play vital roles under both 
the ADEA and Title VII. The absence in 
the ADEA's attorneys' fee provision of the

1 Q"action or proceeding" language, appel­
lant submits, does not evince a congression­
al intent to authorize fee awards only in 
cases of actual litigation. Rather, appel­
lant contends, at the time the FLSA was 
passed, no administrative enforcement pro­
cedures existed, and, thus, no fee author­
ization for such proceedings was required 
to "make whole" a claimant. Brief for 
Appellant at 11-12. Appellant concludes 
that the subsequent development of an

19. See text accompanying note 12 supra.

54a



administrative reconciliation process 
necessarily implied the authorization for 
an award of attorneys' fees.

Finally, appellant cites considera­
tions of public policy in support of her 
position. The concerns that support a fee 
award to prevailing race and sex discrimi­
nation complaints are equally germane, 
appellant submits, in the age discrimina­
tion context. Similarly, she argues, the 
congressional policies of "making whole" 
victims of discrimination and of encourag­
ing the private vindication of civil rights 
augur in favor of an award of counsel fees 
to federal emloyees who secure age discrim­
ination relief at the administrative level. 
In appellant's view, the failure to permit 
such awards would, moreover, potentially 
create the anomaly that one who prevailed 
administratively would secure no fee award, 
while one who either lost at the adminis-

55a



buttrative level or even bypassed it 
prevailed later in litigation would be 
reimbursed for the services of counsel. In 
effect, appellant contends, the approach 
adopted by the district court penalizes the 
age discrimination complainant who prevails 
at the administrative level and results 
in convolution of the enforcement scheme 
by discouraging dispute resolution prior 
to actual litigation.

The government appellee contends 
initially that the district court lacked 
jurisdiction over appellant's prayer for 
fees because appellant allegedly filed her 
complaint at the administrative level in an 
untimely fashion and because she failed to

20. All parties agree that under the ADEA 
enforcement scheme applicable to federal employees the complainant may simply supply 
the requisite thirty days' notice and pro­ceed directly thereafter in federal court; 
no invocation of administrative remedies is required. 29 U.S.C. § 63 3a (d ) ( 1 976) .

56a



exhaust administrative remedies. Brief for
Appellee at 7 n.6. On the attorneys' fees 
issue itself, appellee, adopting the posi­
tion later embraced by the Muth court, 
argues initially that the Congress estab­
lished a distinct enforcement scheme for 
federal employees, one that does not 
authorize an award of attorneys' fee under 
any conditions.

Appellee relies heavily on Nakshian in 
support of his position. The Court in tht 
case made clear, appellee submits, that 
ADEA section 15 is separate and "complete 
in itself," Nakshian, 453 U.S. at 168, 101 
S.Ct. at 2705 (quoting H.R.Rep. No. 527, 
95th Cong., 1st Sess. 1 1 ( 1977)), and is 
"unaffected by other sections" of the ADEA. 
Nakshian, 453 U.S. at 168, 101 S.Ct. at 
2705. Appellee concedes that section 15 is 
patterned after Title VII's comparable

57a



federal employee provisions but argues that 
the failure of Congress to incorporate a 
separate attorneys' fees provision into ADEA 
section 15— as that body unquestionably so
incorporated into the comparable Title VII 

2 1scheme --deals a fatal blow to appel­
lant's position. Moreover, appellee 
contends that the broad language of section 
15 authorizing such "relief as will 
effectuate the purposes" of the ADEA cannot

21. The federal employee provisions of 
Title VII include § 717(d), 42 U.S.C. § 
2000e-16(d) (1976), which specifically
incorporates several of the private employee provisions of the statute. 
Included in this incorporation is § 706(k), 
42 U.S.C. § 2 0 0 Oe-5(k ) ( 1 976), whichspecifically provides for the award of 
attorneys' fees to a prevailing party. 
Thus, as this court noted in Parker v . CalA!ano, 561 F.2d 320, 323 (D.C.Cir.
1977), "[t]he effect of Section 717(d) 
coupled with Section 706(k) is, therefore, to allow a federal court, in its 
discretion, to award reasonable attorneys' 
fees to a federal employee or applicant who is the prevailing party in any 'action or 
proceeding' under Title VII." No such incorporation exists, it is worth noting, 
with regard to the ADEA.

58a



be given unlimited scope; appellee notes
that the Naksh i an Court, for example, 
clearly indicated that the language does 
not give courts carte blanche to structure 
either the process or the provision of 
relief. Appellee thus concludes that the 
general language of section 15 is 
insufficient to authorize an award of 
attorneys' fee for work performed at either 
the administrative or the judicial level. 
Accordingly, appellee argues that the 
district judge was correct in denying Mrs. 
Kennedy a fee award, although he of course 
demurs to the reasoning employed.

In the alternative, appellee contends 
that the language and structure of the 
general ADEA remedial scheme suggest that, 
while an award of counsel fees for work 
performed on behalf of federal claimants at 
the j ud ic i al level may be available, no 
such award is contemplated for legal

59a



services rendered at the administrative
stage. Although conceding the similari­
ties between the federal employee provi­
sions of Title VII and those of the ADEA, 
appellee submits that the ADEA's attorneys' 
fee provision is considerably narrower in 
scope than that of Title VII: whereas 
Title VII authorizes an award of counsel 
fees to any federal employee who succeeds 
in an "action or proceeding," 42 U.S.C. 
§2000e-5(k) (1976) (emphasis added), the
ADEA permits comparable awards only in 
connection with an "action." Appellee 
argues that this linguistic distinction, 
when combined with the differing roles 
played by administrative proceedings under 
Title VII and the ADEA, suggests that 
absence of the congressional authorization 
required by Alyeska to ground an exception 
to the American Rule proscribing fee-shift­
ing .

60a



III.
A. Juristiction

As a preliminary matter, we must rule 
on the government appellee's claim that the 
district court lacked jurisdiction to hear 
appellant's prayer for attorneys' fees. 
Appellant argues that, because Mrs. Ken­
nedy's discrimination complaints were 
allegedly filed in an untimely fashion with 
the relevant administrative agencies and 
because she failed to pursue to fruition 
her claims in those agencies, the distrct 
court was precluded as a matter of juris­
diction from hearing the instant case. 
With regard to the allegation of untimely 
filing, appellant responds that the timeli­
ness requirement is not jurisdictional but 
rather is akin to a staute of limitations; 
accordingly, appellant argues, charges of 
untimeliness, however valid, are subject to 
waiver and estoppel and were here waived by

61a



appellee's failure to press the arguments 
in the district court. Similarly, appel­
lant contends both that the ADEA exhaustion 
requirement is not a jurisdictional matter 
and that, at any event, she in fact met 
the requirement.

We agree with appellant's position on 
both the timeliness and the exhaustion 
issues. To be sure, the requirements 
that a federal age discrimination complain­
ant file a notice of complaint and exhaust 
available administrative remedies may 
be prerequisites for the institution of 
a lawuist in federal court based on the 
discrimination allegation. See, e .g ., 
Milton v. Weinberger, 645 F.2d 1070,
1074-77 (D.C.Cir. 1981); Siegel v. Kreps, 
654 F.2d 773, 783 (D.C.Cir. 1981)(Robinson, 
J., concurring in part and dissenting in 
part). We are convinced, however, that the 
timeliness and exhaustion requirements are

62a



not jurisdictional in nature but rather are
statutory conditions precedent to the 
instigation of litigation and are therefore 
subject to waiver, estoppel, and equitable 
tolling. The failure to raise these issues 
in the district court thus precludes 
reliance on them here.

As for the timeliness dispute, our 
ruling that the ADEA's timing require­
ments are not jurisdictional prerequisites 
is fortified by the Supreme Court's recent 
decision in Zipes v. Trans World Airlines,
__  U.S. ___, 102 S.Ct. 1127, 71 L. Ed. 2d
1127 (1982). In Zipes the Court held that 
the timely filng with the EEOC of a charge 
of discrimination in violation of Title VII 
is not "jurisdictional" in nature but 
rather is a mere statutory precondition 
subject to equitable defenses. Accord 
Bethel v. Jefferson, 589 F.2d 631, 641 n.64 
(D.C.Cir. 1978). The analogy to the ADEA

63a



is strong in this regard, and we think it 
clear that Congress did not intend the 
statutory deadlines it inserted in the ADEA 
to be jurisdictional in character. Thus, 
we need not determine whether, in fact, 
appellant failed to comply with administra­
tive regulations regarding timeliness 
or, indeed, whether those regulations 
bind appellant at all. Appellee's failure 
to raise the issue in the district court 
precludes its consideratin here.

With regard to the claim that appel­
lant's prayer for fees should be dismissed 
for her failure to exhaust administrative 
remedies, it would again appear that this 
requirement is not jurisdictional in 
character for the reasons stated above. 
See Bethel, 589 F.2d at 640-46. At any
event, appellant satisfied the only exhaus­
tion requirement mandated by section 15 of

64a



the ADEA, that of either providing the EEOC 
with notice of an intent to sue within 180 
days of the unlawful practice, or actually 
filing a discrimination complaint with the 
EEOC.^/ See 29 U.S.C. § 633a(d) (1976); 
Siegel v. Kreps, 654 F.2d at 778 n.16.

Accordingly, appellant's demand for 
attorneys' fees was properly before the 
district court.

B. Analysis
As noted above, the district judge 

properly treated appellant, a competitive 
service employee of the District of 
Columbia, as subject to the ADEA's federal 
employee provisions. Kennedy, 509 F. Supp.

22/ Following the latter course, Mrs. 
Kennedy filed such a complaint on September 
10, 1979, and secured all relief sherequested, save for attorneys' fees. That 
she also had pending a complaint with the District of Columbia's Office of Human 
Rights does not, it is clear, affect her 
rights to sue under the ADEA.

65a



at 228. We cannot agree, however, with 
the district judge's critical assumption 
that federal employees in actions brought 
under ADEA section 15 enjoy the same right 
to an award of counsel fees as do privae 
sector employees under section 7. Although 
construction of the respective sections 
could, in fact, lead to that result, the 
district court's inextricable correlation 
of federal and private emloyee remedies 
cannot stand in light of the Supreme 
Court's subsequent decision in Nakshian. As 
discussed earlier, the Court in that case 
concluded that the ADEA enforcement schemes

23. Section 15(a) of the ADEA is applic­
able, inter alia, to personnel actions in "those units of the government of the District of Columiba having positions in 
the competitive service ...." 29 U.S.C. §633a(a) (Supp. IV 1980). Mrs. Kennedy was, 
or course, employed in the competitive 
service of the District of Columbia at the time of the alleged e m p l o y m e n t  
discrimination.

66a



for public and private sector employees 
differ in fundamental respects and that 
divergent rights and remedies may obtain 
under the schemes. Thus, we conclude that 
the remedial structure of section 15 is, as 
the Supreme Court noted, "self-contained 
and unaffected by other sections [of the 
ADEA], including those governing procedures 
applicable in actions against private 
employers." Nakshian, 453 U.S. at 168, 101 
S.Ct. at 2705.

This conclusion has a significant 
bearing on the analytical model that we 
apply to the resolution of the issue sub 
j udice, for it means— precisely as the 
district court feared— that the question 
must be resolved by reference to the 
language of section 15 alone. See Kennedy, 
509 F.Supp. at 228. Thus, the issue we 
face, simply stated, is whether language 
empowering a court to grant such legal or

67a



equitable relief "as will effectuate the 
purposes" of the ADEA provides a sufficient
basis for an award of attorneys' fees for 
administrative legal servies. See ADEA § 
15(c), 29 U.S.C. § 633a(c) (1976).

A l t h o u g h  the sole source of 
authorization for the fees requestd by 
appellant is thus the language of section 
15(c) of the ADEA, it is not the case that 
our focus must be solely on that subsec­
tion; indeed, the very language of section 
15(c) mandating such relief as is necessary 
to implement the purposes of the ADEA 
suggests that the determination of approp­
riate remedies must be informd by the ADEA 
as a whole. Recognizing this interplay, 
appellant argues that a fee award in cases 
such as the instant one would facilitate 
the vindication of civil rights and stresses 
that the same language as that appearing in 
ADEA section 15(c) has been held to

68a



authorize administrative fee awards under 
Title VII. See Smith, 446 F.Supp. at 534.

It is true, as appellant notes, that 
an award of fees for administrative legal 
services might contribute to the resolution 
of age discrimination complaints through 
agency processes and that this enhancement 
of the role of administrative proceedings 
might obviate frequent recourse to federal 
courts for relief. It is also true that a 
statutory provision need not contain the 
words "attorneys' fees" to permit such 
awards; rather, it is sufficient if the 
Congress had "clearly indicated" that the 
provision should be so construed. 
Fitgerald v. United States Civil Service 
Common, 554 F.2d 1186, 1189 & n.8 (D.C.Cir. 
1977). We thus agree with appellant that
clear evidence of congressional intent to
award counsel fees may suffice, in the
absence of an explicit authorization, to

69a-



ground an exception to Alyeska and that the 
omission of the magic words "attorneys' 
fees" is not necessarily fatal to a prayer 
for such an award.^

24. There have been post-Alyeska cases in 
which a fee award has been made in the 
absence of express authorization. See, 
e.g., Smith v. Califanq, 446 F.Supp. at 533 (D.D.C. 1978) ("Although the Congressional
intent to include attorneys' fees must be clear, it may be expressed in terms other 
than the use of those specific words.") On 
the other hand, most of the cases cited in support of this proposition by appellant either embrace the point only in dicta, or, 
indeed, refuse to permit a fee award on 
such a basis. See Director, Office of Workers' Comp. Programs v. South East Coal 
Co_. , 598 F . 2 d 1046 (6th Cir. 1979)
(specific authorization involved by virtue 
of incorporation); National Ass'n of Letter Carriers v. United States Postal Service, 
59 0 F .2 d 1171 (D.C.Cir. 1 978) (award denied); Republic Steel Corp. v. U.S. Dep't 
of Labor, 590 F . 2 d 77 (3d Cir. 1978)
(specific authorization involved by virtue of incorporation); Fitzgerald v. United 
States Civil Servie Comm'n, 554 F.2d 1186 
(D.C.Cir. 1977) (award denied). See generally Reply Brief for Appellant at 2-3. 
Thus, the mandate of Alyeska would appear to demand quite clear— indeed, virtually incontrovertible— evidence of congressional 
intent to ground a fee award by 
implication.

70a



We are, however, mindful of the
Alyeska Court's admonition that a specific, 
if not explicit, authorization is required 
to overcome the presumption against 
fee-shifting. In light of this admonition, 
the general language employed in section 
15(c), and, quite significantly, the more 
limited role played by administrative 
proceedings under the ADEA, we have reached 
the conclusion that no award of fees may be 
made in the present case. The structure of 
the ADEA, the wording of section 15(c), and 
the logic of prior judicial decisions all 
lead to this result.

Although the language of section 
15(c) may be "sweeping" and "exceptionally 
expansive," Bertrand v. Qrkin Exterminating 
Co. , 432 FD.Sup. 952, 953, 956 (N.D.Ill.
1977) (construing identical language in 
section 7(b) of the ADEA, 29 U.S.C. § 
626(b) (1976)), it is also exceedingly

7 1 a -



vague. We are accordingly hesitant to hold 
that such broad language constitutes the 
specific statutory exception to the Ameri­
can Rule demanded by Alyeska, at least in 
the absence of compelling support in other 
statutory language or in the legislative 
history.

Appellant places in this regard con­
siderable realiance on a district court 
decision, DeFries v. Haarhues, 488 F.Supp. 
1037 (C.D.I11. 1980). In DeFries the court 
held that a federal employee was entitled 
to an award of counsel fees for services 
performed in connection with ADEA litiga­
tion; although the court did not hold that 
the attorneys' fees provision of ADEA 
section 7 inured to the benefit of federal 
employees, it did rule that an award for 
services performed at the judicial level was 
authorized by section 15 because the award 
"effectuate[d] the purposes" of the ADEA. 
Id. at 1045.

72a



We agree with the basic approach of 
the DeFn.es court; when the statutory- 
language invites a consideration of "the 
purposes" of a piece of legislation to 
detreraine relief, scrutiny must be accorded 
the overall goals and structure of the 
statute. We need express no opinion, 
however, on the correctness of the result 
in DeFries, for judicial actions clearly 
play a role distinct from administrative 
proceedings in the ADEA enforcement scheme. 
We cannot agree with appellant that DeFries 
compels or even strongly suggests a finding 
that an award of fees for administartive 
legal services "effectuates the purposes" 
of the ADEA.

Upon close study of the ADea remedial 
scheme, we are convinced that any mild 
"effectuation" of the purposes of the Act 
flowing from an award of counsel fees to

73a



one in appellant's position is insufficent 
to overcome the hurdle posed by Alyeska. 
Notwithstanding appellant's repeated 
invocation of Title VII and the similarity 
of the federal employee provisions of the 
ADEA to it, it remains the case that 
administrative proceedings are not intended 
to serve the same purposes under the two 
statutes. Under Title VII, the federal 
complainant must initially seek relief in 
the agency that has allegedly discriminated 
against him; if the complainant is dissat­
isfied with the agency's final decision, he 
may in turn either appeal to another agency 
or, if he prefers, file suit directly in 
federal court after the expiration of 
thirty days from the date of the final 
ruling. At any event, the complainant 
under Title VII may file a federal court 
action once 180 days have elapsed from 
the date of the filing of the inital charge

74a



or the filing of the appeal, if the initial 
agency or the appellate body has not taken 
final action. See 42 U.S.C. §§ 2000e-16(c) 
and (d) (1976), incorporating 42 U.S.C. §§ 
2000e-5(f) through (k) (1976); Parker, 561 
F.2d at 3223. As the Supreme Court noted 
in Brown v. General Services Administation, 
425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 
(1976), the federal employee provisions of 
Title VII "establish complementary ... 
enforcement mechanisms" providing for a 
"careful blend of administrative and 
judicial enforcement powers." JId. at 831, 
833, 96 S.Ct. at 1 968. The "bottom line" 
in this regard is clear: Congress mandated 
that Title VII complainants exhaust certain 
admnistrative remedies as a precondition to 
filing an action in federal court.

By contrast, under the ADEA, "pursuit 
of a remedy through [administrative] chan­
nels is optional and not a mandatory prere-

75a



quisite to the filing of a civil action.
Kennedy, 509 F.Supp. at 230. Neither the
private nor the federal employee sections 
of the ADEA requires anything more by the 
way of "exhaustion" than the provision of 
notice to the appropriate federal official 
of the intention to sue. 1̂ 3. Although 
Congress established a supplementary 
administrative procedure to assist in the 
enforcement of the ADEA, it remains the 
case that resort to that procedure is op­
tional and that, in contrast to the usual 
course under Title VII, no quasi-adversar- 
ial proceedings of any sort are required. 
See Parker, 561 F.2d at 331-33; see also
New York Gaslight Club v. Carey, 447 U.S. 
54, 69-70, 100 S.Ct. 2024, 2033-34, 64
L.Ed.2d 723 (1980). Accordingly, it is
beyond cavil that the administrative 
proceedings required under the ADEA are not 
of the same ilk as those under Title VII 
that prompted us in Parker to observe that

76a



"[a]ny realistic assessment of Title VII 
administrative proceedings requires the 
conclusion that— despite the fact that they 
are not strictly adversarial— an employee 
would often be ill-advised to embark 
thereon without legal assistance." 561 
F.2d at 332. As the district judge noted 
in the case at bar, these concerns of fair 
play and equity are not apposite "where the 
first adversarial step in which a party is 
required to present his case is the filng 
of a complaint." Kennedy, 509 F.Supp. at 
231. The notice requirement could easily 
be fulfilled by the layman or inexpensively 
performed by counsel. Id.

Thus, we agree with the district judge 
that administrative proceedings under the 
ADEA are not a "pervasive and integral part 
of the overall scheme of enforcement." 
Id.; accord Swain v. Secretary, 28 Empl.

77a



Prac.Dec. (CCH) fl 35,574, at 24,585 (D.C.C.
Jan. 19, 1982). It is thus difficult to
determine how an award of counsel fees for 
services performed in such optional 
proceedings could "effectuate the purposes" 
of the ADEA in any significant way. This 
conclusion is, moreover, reinforced when we 
examine the language of the attorneys' fee 
provision under the private enforcement 
section of the ADEA. As noted above, that 
provision calls for the award of fees to 
any "plaintiff" who secures a "judgment" in 
an "action" brought under the Act; as the 
district judge noted, the litigative 
orientation of these terms is manifest. In 
both the New York Gaslight Club and Parker 
decisions, the respective tribunals in 
awarding administrative legal fees under 
Title VII emphasized the use of the 
disjunctive phrase "action or proceeding" 
as evidence of congressional intent to

78a



authorize such awards. By necessary 
implication, the absence of such language 
in the ADEA counsels against an award of 
fees in the instant case.

In response to this position, 
appellant contends that when initially 
enacted in 1967 no signi f i c a n t  
administrative procedures existed for which 
reimbursement for the work of counsel might 
be required. Brief for Appellant at 12. 
Thus, appellant contends, when Congress 
amended the ADEA in 1974 to cover federal 
employees, it must have intended to provide 
those employees with attorneys' fees for 
administrative legal services for the 
administrative processes that were added in 
that year. Whatever the merits of this 
argument might be as a matter of theory, 
there is not a whit of evidence in the 
legislative history to support it; general 
remarks regarding the breadth of relief

79a



intended under section 15 cannot substitute 
for the sort of concerte indicia of 
congressional intent to award counsel fees 
needed to permit an exception to Alyeska. 
Moreover, in this spirit of reasoning by 
implication, we would note that Congress 
amended the ADEA in 1978 to provide, inter 
alia, that section 15 was not affected by 
any other substantive provision of the Act. 
See 29 U.S.C. § 633a(f) (Supp. IV 1980).
Thus, in amending the section as it did, 
Congress could quite easily have amended it 
further to provide explicitly for an award 
of attorneys' fees under the circumstances 
at issue in the case at bar. CJf. Nakshian, 
453 U.S. at 1 678 , 1 0 1 S.Ct. at 2705
(Congress failed to amend ADEA to provide 
right to jury trial for federal ADEA 
complainants.) Moreover, though the point 
that "Congres knew how to do it if it had 
wished" is easily made and rarely refuted

80a



regardless of its probity, we would note 
that, in spite of the obvious model 
supplied by the incorporation susbsection 
of Title VII, Congress did not incorporate 
even the more limited FLSA attorneys' fee 
provision into the section 15 enforcement 
scheme. Though we fully recognize that the 
failure of Congress to act in a particular 
way is often of limited evidentiary value, 
such a failure is, in our opinion, no less 
probative of congressional intent than is 
the "silent adoption" approach urged by 
appellant.

In sum, the conjunction of the vague 
authorizing language of section 15(c), the 
more circumscribed role of administrative 
proceedings under the ADEA enforcement 
scheme, and the omission of the word 
"proceeding" from the attorneys' fee 
provision in the private employee section 
of the statute combine to convince us that

81a



Congress did not intend to award counsel 
fees to an ADEA claimant in appellant's 
position. We do not view this result as in 
any fashion inconsistent with Smith v. 
Califano, in which language identical to 
that of ADEA section 15(c) was held to 
authorize an award of attornyes' fees for 
administrative legal work. That case 
involved federal employee rights under 
Title VII, and, as we have stressed above, 
administrative proceedings are clearly 
intended under that statute to play a 
central role in dispute resolution. Thus, 
although we express no opinion on the 
correctness of the Smith result, it is 
manifest that the two contexts are 
distinguishalbe notwithstanding the 
similarity of the statutory language. 
Moreover, we might note en passant that the 
same district judge who wrote the Smith 
decision issued the opinion under challenge

82a



in the instant case; apparently the 
differences in structure between the two 
statutes were sufficent to persuade him 
that the question of fee authorization 
under each was a distinct matter, and with 
that we agree.

Finally, we address briefly the 
arguments of policy proffered by appellant 
in support of her position. On what might 
be called the positive side of the ledger, 
appellant contends that the provision of 
attorneys' fees for administrative 
proceedings under the ADEA will enchance 
the utility of those proceedings as a mode 
of dispute resolutoin, thus aiding all 
concerned and leading to the "conservation 
of judicial time." Parker, 561 F.2d at
333. While this may well be true, it is 
not our province to rewrite the scheme of 
remedies adopted by the Congress in 
enacting the ADEA to establish a more

83a



perfect system to combat age discrimina­
tion. On the negative side, appellant 
argues that a denial of counsel fees will 
encourage victims of discrimination to 
intiate court actions "prematurely" and 
will discourage them from pursuing dili­
gently admninistrative processes to frui­
tion; appellant accordingly contends that 
the failure to award fees will relegate the 
administrative process to a "pro forma 
exhaustion step." Brief for Appellant at 23 
(quoting Smith, 446 F.Supp. at 534). The 
simple answer to this point is that Cong­
ress apparently anticipated, and indeeed, 
authorized, this rush to the courthouse, 
and, again, it is not our province to re­
write the legislation in a more "rational" 
manner. Even if, moreover, the failure to 
authorize an award of fees to one in 
appellant's position was a product of 
congressional oversight or inadvertence, we

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can only endorse the position of the 
district judge on this score— any such 
cries of oversight or omission are properly 
addressed to the Congress and not to the 
courts. See Kennedy, 509 F.Supp. at 231 & 
n. 1 1 .

IV.
Given the confusing and arguably 

conflicting decisions in the area of 
authority of federal courts to award 
federal employees fees for legal services 
performed under civil rights legislation at 
the administrative level, it is useful for 
us to summarize what our holding today does 
not involve. We do not hold that federal 
ADEA claimants have no entitlement to a fee 
award for the services of counsel rendered 
in connection with judicial actions. We 
thus do not by our holding in the case at 
bar express any view on the argument of 
appellee, apparently embraced by the court

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in Muth v. Marsh, that section 15 provides
an insufficient authorization for any award
of counsel fees irrespective of the nature 

25of the action.
Secondly, we do not today express a view 

on the availablity of fee awards to private 
sector employees for legal services per­
formed under the ADEA at the administrative 
level. Since the district judge in the 
instance case assumed that private sector 
and federal employees enjoy the same right 
to administrative level fee awards, his 
decision involved as a necessary concomi­
tant a ruling that private sector employees 
have no such fee right as well. As dis-

25. Indeed, in light of the centrality of 
judicial actions to the remedial scheme of 
the ADEA, one could at least argue that attorneys' fees for work performed in 
connection with court action are necesary 
to effectute the remedial purposes of the Act. See, e.g., DeFries v. Haarhues, 488 
F.Supp. 1037, 1045 (C.D.I11. 1980).

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cussed above, we have not made the same 
assumption of identity of rights, and thus 
we express no conclusion on the availabil­
ity of administrative counsel awards to 
private sector employees proceeding under 
section 7 of the ADEA.

Our holding today is only that an award 
of attorneys' fees and costs may not be 
made under section 15 of the ADEA to a 
federal employee who secures relief solely 
through administrative processes. Because 
the district judge reached the same 
conclusion, his decision is

Affirmed.

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