Swain v. Lehman, Jr. Memorandum for the Respondent in Opposition

    No. 82-1644

<31 tt i\\t Supreme (Etmrt of i\\t Pnttefr States
October Term, 1982

Virginia L. Sw ain , petitioner

v.
John Lehman, Jr ., Secretary of the N avy

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

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Rex E. Lee 
Solicitor General 
Department o f Justice 
Washington, D. C. 20530 
(202) 633-2217



Cases:
Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 ........................................... 2
DeFries v. Hoorhues, 488 F. Supp.

1027 ...................................................................... 7
Fedorenko v. United States, 449 U.S.

490 ...................   3
Kennedy v. Whitehurst, 690 F.2d 

951 ....................................................................  2,7
Lehman v. Nakshian, 453 U.S.

156 ............................................................ 2, 3, 4, 5

Lorillard v. Pons, 434 U.S. 575 ...........................  3
Muth v. Marsh, 525 F. Supp. 604 .......................  7
S & H Riggers & Frectors, Inc. v. OSHRC,

672 F.2d 426 ........................................................  7
Summit Valley Industries v. Carpenters 

Local 112, 456 U.S. 717 .................................  2,6
Tyler Business Services, Inc. v. NLRB,

695 F.2d 73 .........    7
United States v. Bodcaw Co., 440 U.S.

202 ......................................................................................  5
United States v. Mitchell, 445 U.S.

535 ........................................................................ 2
United States v. Testan, 424 U.S. 392 .................. 2

TABLE OF AUTHORITIES
Page

(I)



II
Page

Constitution and statutes:
U.S. Const. Amend. V ...........................................  5
Age Discrimination in Employment Act,

29 U.S.C. (& Supp. V) 621 et seq. :
Section 4(a), 29 U.S.C. 623(a) ........................ 4
Section 7(b), 29 U.S.C.

626(b).....................................................3, 5, 6
Section 7(c), 29 U.S.C. (Supp. V)

626(c)...........................................................4 ,6
Section 15, 29 U.S.C.

633a .....................................  1,2, 3, 4, 5, 6, 7
Section 15(c), 29 U.S.C.

633a(c)..................................................... 3,5,6
Section 15(d), 29 U.S.C. 633a(d) .....................  7
Section 15(f), 29 U.S.C. (Supp. V)

633a(f) ......................................................... 4,5
Civil Rights Act of 1964, Title VII,

Pub. L. No. 92-261, 86 Stat. 103,
42 U.S.C. 2000e et seq. :

Section 706(k), 42 U.S.C.
2000e-5(k) ..................................................... 4

Section 717, 42 U.S.C. 2000e-16 .................... 4
Section 717(c), 42 U.S.C.

2000e-16(c) ................................................... 7
Section 717(d), 42 U.S.C.

2000e-16(d) ..............................    4
Equal Access to Justice Act Title II,

Pub. L. No. 481, 94 Stat 2325 et seq. :
Section 204(a)(d)(3), 28 U.S.C.

(Supp. V) 2412(d)(3) ...................................  6
Section 208, 94 Stat. 2330 ...........................  6-7



Ill

Constitution and statutes—Continued:
Fair Labor Standards Act, 29 U.S.C.

(& Supp. V) 201 et seq......................................  3, 4
Section 16(b), 29 U.S.C.

(Supp. V) 216(b)................... ....................... 3
Pub. L. No. 90-202, 81 Stat. 602 ...........................  3
Pub. L. No. 93-259, Section 28,

88 Stat. 7 4 ............................................................  4
5 U.S.C. (Supp. V) 7701(g)(2) ........f l ..................  6

Page



tlj£ Supreme (Etmrt of tl|£ States
October Term, 1982 

No. 82-1644
Virginia L. Sw ain , petitioner

v.
John Lehman, Jr ., Secretary of the N avy

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Petitioner, a federal employee, contends that the courts 
below erred in declining to award her attorney’s fees and 
costs in connection with administrative proceedings on her 
complaint under Section 15 of the Age Discrimination in 
Employment Act of 1967 (ADEA), 29 U.S.C. 633a.

1. Petitioner, an employee of the Department of the 
Navy, filed an administrative complaint on August 11, 
1977, claiming that she had been denied a quality step 
increase and a promotion because of her age, in violation of 
Section 15 of the Age Discrimination in Employment Act 
(ADEA), 29 U.S.C. 633a. Administrative hearings were 
held in 1979. On October 29, 1980, the Department of the 
Navy, adopting the decision of a Complaints Examiner of 
the Equal Employment Opportunity Commission, issued a 
final decision finding that the Department had discrimi­
nated against petitioner by failing to promote her. Peti­
tioner was awarded a retroactive promotion, back pay, and 
retirement adjustments (Pet. App. 4a-5a).



2

On December 3, 1980, petitioner filed this action in the 
United States District Court for the District of Columbia. 
On September 18, 1981, the parties stipulated to the volun­
tary dismissal of all aspects of the complaint, with the 
exception of petitioner’s claim for attorney’s fees and costs 
in connection with the administrative proceedings (Pet. 
App. 5a). On January 19, 1982, the district court entered 
summary judgment for the government on that issue, hold­
ing that attorney’s fees and costs incurred in connection 
with administrative proceedings may not be awarded to a 
person who prevails on a complaint against the federal 
government under Section 15 of the ADEA (Pet. App. 
3a-17a). The court of appeals affirmed by judgment order 
(id. at la-2a) on the basis of its prior holding to the same 
effect in Kennedy v. Whitehurst, 690 F.2d 951 (D.C. Cir. 
1982).

2. The decision of the court of appeals is correct and 
consistent with the holding of this Court in Lehman v. 
Nakshian, 453 U.S. 156 (1981), and it does not conflict with 
the decision of any other court of appeals. Further review 
therefore is not warranted.

a. It is, of course, well established that under the Ameri­
can Rule, a prevailing party is not entitled to recover attor­
ney’s fees from the opposing party and that the federal 
courts should not recognize exceptions to that Rule absent 
specific congressional authorization. See,e.g., Summit Val­
ley Industries v. Carpenters Local 112, 456 U.S. 717, 721- 
723 (1982); Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240, 260-262 (1975). Moreover, where, as 
here, the federal government is the defendant, principles of 
sovereign immunity require that any authorization for the 
award of fees—one of the terms of the government’s con­
sent to be sued—must be “unequivocally expressed.” See 
United States v. Mitchell, 445 U.S. 535, 538 (1980); United 
States v. Testan, 424 U.S. 392, 399 (1976). The Court



3

recently held that these principles of sovereign immunity 
apply to suits under Section 15 of the ADEA, the statutory 
provision at issue here. See Lehman v. Nakshian, 453 U.S. 
156, 160-161 (1981). Relying on these principles, the Court 
held in Lehman v. Nakshian that there is no right to a jury 
trial in a suit against the federal government under Section 
15 of the ADEA. The analysis employed by the Court in 
Lehman v. Nakshian requires the conclusion that attor­
ney’s fees likewise may not be awarded in a suit against the 
federal government under Section 15 of the ADEA.

Section 15(c) of the ADEA provides that “[a]ny person 
aggrieved [by age discrimination in federal employment] 
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 [Act].” 29 U.S.C. 
633a(c). There is no express authorization for an award of 
attorney’s fees. Under the American Rule and the doctrine 
of sovereign immunity, this alone is a sufficient basis for 
concluding that fees may not be awarded. This conclusion is 
reinforced by the fact, explained below, that when Congress 
wanted to authorize an award of attorney’s fees under other 
sections of the ADEA, it expressly so provided. Lehman v. 
Nakshian, supra, 453 U.S. at 162-163; Fedorenko v. 
United States, 449 U.S. 490, 512-513 (1981).

When it originally was enacted in 1967 (Pub. L. No. 
90-202, 81 Stat. 602), the ADEA applied only to private 
employers, not to the federal, state and local governments. 
Lehman v. Nakshian, supra, 453 U.S. at 166. Under Sec­
tion 7(b) of the ADEA, 29 U.S.C. 626(b), the Act is 
enforced against private employers in accordance with 
procedures provided in the Fair Labor Standards Act 
(FLSA), 29 U.S.C. (& Supp. V) 201 et seq. See Lehman v. 
Nakshian, supra, 453 U.S. at 160; Lorillard v. Pons, 434 
U.S. 575, 578-583 (1978). Section 16(b) of the FLSA, 29 
U.S.C. (Supp. V) 216(b), expressly provides for the award



4

of attorney’s fees and costs in an action brought by a person 
against an employer who violates that Act, and such fees 
and costs therefore may be awarded in a suit against a 
private employer under Section 7(c) of the ADEA, 29 
U.S.C. (Supp. V) 626(c).

Congress amended the ADEA in 1974 (Pub. L. No. 93- 
259, Section 28,88 Stat. 74) to cover federal, state and local 
government employees. State and local governments were 
brought under the existing enforcement scheme applicable 
to private employers by expansion of the term “employer” 
in Section 4(a) of the ADEA, 29 U.S.C. 623(a), to include 
state and local governments. This had the effect of extend­
ing the procedural provisions of the FLSA to suits against 
such entities (Lehman v. Nakshian, supra, 453 U.S. at 166), 
including the provision for attorney’s fees. But although it 
was first proposed to include the federal government under 
the existing FLSA enforcement scheme as well (id. at 166- 
167 n.14), Congress instead enacted a separate provision— 
Section 15—addressing age discrimination in federal employ­
ment. As this Court has observed, Section 15 does not 
incorporate the FLSA enforcement scheme for federal sec­
tor ADEA cases (Lehman v. Nakshian, supra, 453 U.S. at 
163, 166-167), and the FLSA’s authorization for the award 
of attorney’s fees and costs therefore does not apply to 
federal sector cases.1 This conclusion was reinforced in 1978 
by the enactment of Section 15(f) of the ADEA, 29 U.S.C. 
(Supp. V) 633a(f), which provides that, with one exception

'Congress instead patterned Section 15 of the ADEA after Section 
717 of Title VII of the Civil Rights Act of 1964, as amended in 1972 
(Pub. L. No. 92-261, 86 Stat. 111-112), 42 U.S.C. 2000e-16, which 
governs discrimination in federal employment on the basis of race, 
color, national origin, religion and sex. Significantly, under Title VII, 
Congress expressly incorporated into the federal sector Title VII provi­
sions the attorney’s fee provision applicable to private sector cases. See 
42 U.S.C. 2000e-16(d), incorporating 42 U.S.C. 2000e-5(k).



5

not relevant here, federal personnel actions “shall not be 
subject to, or affected by, any provision of this chapter 
other than * * * the provisions of this section.” This lan­
guage makes explicit that Section 7(b) of the ADEA—the 
section that incorporates the FLSA procedures for ADEA 
suits against private employers and state and local govern­
ments—does not apply to federal sector ADEA suits under 
Section 15. See Lehman v. Nakshian, supra, 453 U.S. at 
163, 167-168.2

b. Petitioner acknowledges that there is an “absence of 
an explicit authorization of fees in the statute” (Pet. 37), but 
she contends (Pet. 24-31) that an award of attorney’s fees is 
encompassed within the provision in Section 15(c) for the 
award of “such legal and equitable relief as will effectuate 
the purposes of [the] Act.” This contention is without merit. 
The quoted language cannot be viewed as the requisite 
“unequivocally expressed” waiver of the government’s sov­
ereign immunity to the payment of attorney’s fees. See 
United States v. Bodcaw Co., 440 U.S. 202, 203-204 & n.3 
(1979) (litigation costs not part of “just compensation” 
required to be paid by Fifth Amendment). Nor, against the

Petitioner contends (Pet. 38-42) that prior to the 1978 amendments 
adding Section 15(f), the FLSA procedures—including the authoriza­
tion for the award of attorney’s fees—applied to federal sector cases and 
that the 1978 amendment should not be applied retroactively to her 
case, which was commenced administratively by the filing of a com­
plaint in 1977, before passage of the 1978 amendments. This argument 
is frivolous. The FLSA procedures were inapplicable to federal sector 
ADEA cases even prior to the enactment of Section 15(f), which simply 
made this inapplicability explicit. Lehman v. Nakshian, supra, 453 
U.S. at 166-167. Moreover, even if the 1978 amendments were thought 
to adopt new law barring the award of attorney’s fees for the first time, 
those amendments were enacted prior to the administrative hearing that 
presumably consumed most of petitioner’s attorney’s efforts. Finally, to 
the extent that petitioner’s claim depends upon the construction of 
pre-1978 law, it is of no continuing importance.



6

background of the American Rule, can the ordinary mean­
ing of the language be extended to encompass the distinct 
element of fees. Cf. Summit Valley Industries v. Carpen­
ters Local 112, supra, 456 U.S. at 724-725.

Moreover, Section 7(c) provides for the award of relief in 
non-federal sector ADEA suits in the same language as that 
in Section 15(c), upon which petitioner relies. The identical 
language in Section 7(c) is not the source of the authoriza­
tion for the award of attorney’s fees in non-federal sector 
cases. Congress instead found it necessary to authorize the 
award of attorney’s fees and costs in Section 7(b), through 
the incorporation of the provision for attorney’s fees and 
costs under the FLS A. The same language therefore cannot 
be construed in Section 15(c) implicitly to include an 
authorization for the award of fees. Furthermore, this 
Court recently has stressed that the American Rule barring 
the award of attorney’s fees except where Congress has 
expressly so provided cannot be circumvented—and fees in 
connection with prior administrative proceedings allowed— 
merely because a court might believe that such an award 
would further the congressional purpose underlying the 
statute. See Summit Valley Industries v. Carpenters Local, 
supra, 456 U.S. at 723-726.3 That rationale applies equally 
here.4

Petitioner errs in relying (Pet. 31-37) on the authorization in 5 
U.S.C. (Supp. V) 7701(g)(2) for the award of fees in certain proceedings 
before the Merit Systems Protection Board. Congress there, of course, 
expressly authorized the award of fees in connection with a particular 
type of administrative proceeding. Congress did not do so, however, 
under Section 15 of the ADEA.

Petitioner does not contend that she is entitled to an award of fees 
and costs under the Equal Access to Justice Act, 28 U.S.C. (Supp. V) 
2412(d)(3). There would be no occasion to consider that question here 
in any event, because the administrative proceedings in this case termi­
nated well before the October 1, 1981 effective date provided in Section



7

In any event, even if the award of attorney’s fees in 
connection with judicial proceedings could be said to be 
appropriate to effectuate the purposes of the Act (see De- 
Fries v. Haarhues, 488 F. Supp. 1037 (C.D. 111. 1980)), as 
the court of appeals held in Kennedy v. Whitehurst, supra, 
690 F.2d at 963-965 (Pet. App. 73a-79a), this rationale does 
not apply to fees incurred in connection with administrative 
proceedings. Unlike the situation under Title VII of the 
Civil Rights Act of 1964 (see 42 U.S.C. 2000e-l 6 (c)), the full 
pursuit of administrative remedies under Section 15 of the 
ADEA is optional; the only requirement is that notice be 
given to the Equal Employment Opportunity Commission 
at least 30 days in advance of filing suit. 29 U.S.C. 633a(d). 
Administrative proceedings thus play a somewhat less 
important role under the ADEA.

It is therefore respectfully submitted that the petition for 
a writ of certiorari should be denied.

Rex E. Lee 
Solicitor General

J un e  1983

208 of that Act, Pub. L. No. 96-481,94 Stat. 2330. S & H Riggers & 
Erectors, Inc. v. OSHRC, 672 F.2d 426, 428 (5th Cir. 1982); Tyler 
Business Services, Inc. v. NLRB, 695 F.2d 73, 76-77 (4th Cir. 1982); 
Muth v. Marsh, 525 F. Supp. 604, 609 (D.D.C. 1981).

DOJ-1983-06



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