GASCH, District Judge.
This is an action for award of attorneys' fees as a result of successful resolution of a complaint of discrimination against the defendant. Plaintiff is a black employee of
Plaintiff then requested a hearing before the Civil Service Commission (CSC). As a result of that hearing, the complaints examiner upheld plaintiff's charge of racial discrimination and recommended that plaintiff be retroactively promoted. On November 17, 1976, the agency adopted that recommendation. By December 16, 1976, defendant had taken the necessary personnel actions to effectuate the retroactive promotion. Apparently plaintiff was not informed of this. Consequently on December 17, 1976, he filed his complaint in this Court seeking enforcement of the CSC's recommendation. Soon thereafter plaintiff was promoted, and so on February 9, 1977, he filed an amended complaint asking only for the award of attorneys' fees and costs.
It is clear from the procedural history of this case that the filing of this action in court did not serve as a catalyst in successfully resolving the discriminatee's complaint. The Court thus faces the issue of whether Title VII of the Civil Rights Act of 1964
In Parker, the plaintiff alleged that she had been discriminated against on the basis of her race and sex. The agency's Equal Employment Office investigated the charge. It concluded that discrimination had occurred and recommended that she be promoted to GS-13. The agency promoted her to GS-11 and assured her that a full promotion would soon follow. Subsequently, however, the agency issued its final decision, which stated that the investigative report would be disregarded and no further remedial action would be taken. Plaintiff then filed suit. Two months later the agency issued a new decision confirming the finding of discrimination and directing that plaintiff be retroactively promoted to GS-13 and be awarded back pay. The district court approved the settlement and awarded plaintiff attorneys' fees for services rendered at both the administrative and judicial levels. Id. at 321-22.
The award of attorneys' fees was the only issue on appeal. Based on "the statutory language, legislative history, case law, and relevant policy concerns," the court of appeals held that "a federal District Court has discretion to award attorneys' fees that include compensation for legal services performed in connection with related administrative proceedings." Id. at 321; accord, Johnson v. United States, 554 F.2d 632, 633 (4th Cir. 1977).
In urging reversal of the award, one of the arguments made by the defendant therein was that approving attorneys' fees in those circumstances would create an anomaly:
Id. (emphasis added by the court of appeals). The court, of course, qualified these suggestions by stating that it was expressing no opinion on the merits of either.
First for consideration will be the possible authority of the agency to award attorneys' fees since a complainant must raise his claim there before coming to Court. Moreover, if the agency does have this authority, it will eliminate the necessity to come to court when this is the only issue remaining to be resolved. The defendant has correctly noted that whether or not Title VII confers such authority in the agency depends on an interpretation of the Supreme Court's decision in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
Under the American Rule, the prevailing litigant usually is not entitled to recover reasonable attorneys' fees from the loser. In Alyeska, the Court had to determine whether the judiciary could "fashion a far-reaching exception to this" Rule by using its equitable power to award attorneys' fees on the theory that the prevailing party had functioned as a "`private attorney general.'" Id. at 241, 247, 95 S.Ct. at 1616 (emphasis added). In holding that such an exception could not be created, the Court stated that "it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in [this] manner and to [this] extent . .." Id. at 247, 95 S.Ct. at 1616. The Court further noted that Congress has not
Id. at 260, 95 S.Ct. at 1623.
This case is significantly distinguishable from the facts in Alyeska. There the Court was concerned that the exception advanced would permit courts to pick and choose among situations in which counsel fees would be awarded depending on their sympathies with the party, statute, or public policy involved. Id. at 269, 95 S.Ct. 1612. Title VII is a statute in which Congress already has specifically provided for an award of attorneys' fees. Although the expression of that exception is contained in the remedial authority of the courts,
Several courts have emphasized the important role an attorney may play during the administrative phase of a Title VII proceeding.
In another recent decision from this circuit, Fitzgerald v. United States Civil Service Commission, 180 U.S.App.D.C. 327, 554 F.2d 1186 (1977), the sole question for review was whether section 14 of the Veterans' Preference Act of 1944 authorized the Civil Service Commission to award attorneys' fees to a wrongfully discharged employee entitled to protection under the Act. That section directs the agency guilty of the wrongful discharge to take "the corrective action that the Commission finally recommends." 5 U.S.C. § 7701 (1976). The court held that this did not include authority to award attorneys' fees. Id. at 1188.
In reaching that decision, the court noted that section 14 not only lacked any specific reference to attorneys' fees but also that it made no provision for any other kind of monetary relief. The court then rejected the district court's reasoning that in the absence of contrary legislative history the section should be interpreted broadly to promote the goals of the Act. Id. at 1188-89. The court's primary concern in Fitzgerald was that there had been no express waiver of sovereign immunity under that Act for an award of money damages against the Government. Title VII, however, does contain such a waiver.
With respect to the specific remedial authority of the agency under Title VII a portion of the legislative history indicates that by authorizing the agency to take any
This conclusion is consistent with one of the purposes in allowing awards of attorneys' fees under Title VII, which is to reduce the hardship on a complainant in bringing a meritorious suit. Parker v. Califano, 561 F.2d at 334. Were an award of fees not available if plaintiff succeeded before getting to court, he might not think his rights were worth the cost of vindicating them. Id. He would have to hope his claim is good enough to prevail, but not so good that he would prevail too early.
Moreover, this conclusion supports the interrelatedness of the administrative and judicial enforcement mechanisms under Title VII emphasized by the Supreme Court in Brown v. GSA, 425 U.S. 820, 829-33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Were the agencies not authorized to award attorneys' fees, the balance of this interrelatedness would be severely upset. The section granting federal courts jurisdiction in Title VII cases provides that a complainant may come to court either 30 days after notice of final action by the agency or Civil Service Commission or after 180 days from filing the charge of discrimination if no final action has occurred. 42 U.S.C. § 2000e-16(c) (Supp. V 1975). Thus, a party who knew he could recover all fees once he got to court but would recover none if he prevailed at the administrative level would rush to court after the 180 days had passed rather than wait for a final agency decision.
Having concluded that the agency has authority to award attorneys' fees to complainants who prevail before it, the Court need not address the other alternative raised in the Parker opinion: whether, absent any such authority in the agency, the Court could still exercise jurisdiction and itself enter an award of attorneys' fees when that is the sole issue for consideration. The case is therefore remanded to the agency for it to exercise this authority it thought was lacking. Should the plaintiff subsequently feel aggrieved because of the
42 U.S.C. § 2000e-5(k) (1970), made applicable by 42 U.S.C. § 2000e-16(d) (Supp. V 1975).