GASCH, District Judge.
This case, fashioned as an action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., is currently before the Court on plaintiff's motion for summary judgment. By this complaint, plaintiff seeks only to recover the costs of attorney's fees for services of counsel at the administrative level which resulted in the settlement of her case on the merits by a retroactive promotion. Because the Court has concluded that the ADEA does not authorize the Court to award attorney's fees for services at the administrative level, the plaintiff's motion will be denied. Further, in light of this disposition, it is apparent that no further refinement of the factual record or the legal arguments provided by counsel would alter the conclusion that plaintiff is not entitled to prevail on this claim for relief. For this reason, there is no cause for the Court to delay the entry of summary judgment for defendant. Accordingly,
Plaintiff has been an employee of the District of Columbia Department of Human Services and its predecessor agency, since December of 1970. In August 1979, plaintiff, then employed as a GS-9, step 5, Social Service Representative, filed a complaint with the District of Columbia Office of Human Rights alleging that she had been denied promotion opportunities because of her race, gender and age.
The parties are in disagreement as to the effect of the settlement agreement in the present case. The defendant asserts that the settlement entered under the EEOC's "no-fault" settlement procedures
The starting point for any discussion of the availability of attorney's fees for a successful litigant in federal court is the rule announced by the United States Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Simply stated, the Court there held that any deviation in the federal courts from the traditional "American rule" that parties are to pay their own attorneys must be based on a long recognized exception to that rule
As the present case does not fall within any of the recognized exceptions to the American rule, plaintiff seeks to justify an award of fees by reliance on § 7(b) of
Id. That section's reference to section 216 is to § 16 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216, which provides in pertinent part:
Id. (emphasis added). The narrow question presented by this case is whether the sections quoted above authorize the Court to make an award of attorney's fees to an ADEA plaintiff for services performed at the administrative level when the underlying claim was settled without resort to the district court.
As a threshold matter, it should be noted that claims of age discrimination in federal employment, including those by employees "in those units in the government of the District of Columbia having positions in the competitive service" are governed by 29 U.S.C. § 633a. That section provides in pertinent part:
Subsection (f) added by § 5(e) of the Age Discrimination in Employment Amendments of 1978, Pub.L. 95-256, 92 Stat. 191, states that:
29 U.S.C. § 633a(f).
For purposes of the present motion, the Court assumes that federal employees in actions under 29 U.S.C. § 633a enjoy the same right to an award of attorney's fees as employees in the private sector in actions under 29 U.S.C. § 626 as provided by 29 U.S.C. § 216(b). The question remains whether those sections authorize an award of attorney's fees for services performed at the administrative level.
This appears to be a case of first impression. Plaintiff places principal reliance on cases decided under the attorney's fees provision at § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). That section provides:
Reasoning by analogy is often instructive but remains persuasive only as long as similar considerations are germane to the respective inquiries. Thus, where the question is one of the plaintiff's burden of proof, analogy between Title VII and ADEA cases is manifestly appropriate since in each the crucial inquiry is whether the actions in question were prompted not by individual merit but by some impermissible motive. Likewise, the rate at which a successful litigant is compensated for attorney's fees presents an appropriate occasion for analogy since in both Title VII and ADEA cases the question is the reasonable value of the services performed. A review of the Supreme
Resolution of the question whether Congress intended to authorize an award of attorney's fees must logically begin, as it did in the New York Gaslight case, with an examination of the language of the relevant statute. In New York Gaslight, Justice Blackmun writing for the Court reached the following conclusion:
100 S.Ct. at 2029. The language of 29 U.S.C. § 216(b) relied upon by plaintiff refers only to an "action." Further suggesting the restrictive approach evidenced therein is the mandate that such an award is to be "in addition to any judgment awarded to the plaintiff or plaintiffs." The use of the words "judgment" and "plaintiff" clearly contemplates a court action rather than an administrative proceeding.
The language of 29 U.S.C. § 216(b) is semantically closer akin to the language of the attorney's fees provision in Title II of the Civil Rights Act, 42 U.S.C. § 2000a-3(b). This comparison is of more than passing concern since, as Justice Blackmun went on to note in the New York Gaslight case:
100 S.Ct. at 2029.
While this simple comparison of the language of 29 U.S.C. § 216(b) and 42 U.S.C. § 2000e-5(k) may appear overly formalistic, a comparison of the remedial schemes contemplated by the two statutes lends further support to the conclusion that Congress did not contemplate an award of attorney's fees for services performed at the administrative level in ADEA cases. Neither the FLSA of which § 216(b) is a part nor the ADEA to which it is applied by reference, 29 U.S.C. § 626(b), requires an employee seeking redress to exhaust any administrative remedies prior to instituting a civil action in federal court. The only administrative prerequisite to the filing of a civil action under the ADEA is the requirement of 29 U.S.C. § 626(d) that:
Id. For a federal employee, the applicable provision, 29 U.S.C. § 633a(d), provides in pertinent part:
Id. While 29 U.S.C. § 633a(b) provides for the enforcement of that section through administrative procedures, pursuit of a remedy through those channels is optional and not a mandatory prerequisite to the filing of a civil action. Thus, the only necessary administrative step in the bringing of an ADEA action is the statutory requirement that the would-be plaintiff give notice to the appropriate federal official of the intention to sue. This requirement does not
In the New York Gaslight case, the fees in question were incurred in furtherance of state administrative proceedings to which the plaintiff was required to resort prior to the filing of a Title VII complaint in federal court. See 42 U.S.C. § 2000e-5(c). The Court stressed the adversarial nature of these proceedings and the fact that representation by competent counsel, if not a necessity, is certainly very helpful in preserving a would-be plaintiff's rights throughout that aspect of the case. 100 S.Ct. at 2033-34. Similar factors animated the same concerns in Parker v. Califano, prompting the court of appeals to reach the same result with respect to attorney's fees for federal employees in Title VII actions. 561 F.2d at 329; see also Smith v. Califano, 446 F.Supp. at 534. These concerns are not applicable, however, where the first adversarial step in which a party is required to present his case is the filing of a complaint in the district court. The requirement that the party give notice is one easily satisfied by a layman or, if counsel has been retained, inexpensively accomplished.
By way of brief summary, the Court upon a review of the language of 29 U.S.C. § 216(b) has concluded that it does not authorize an award of fees to a successful ADEA litigant for services performed at the administrative level. It appears that Congress did not contemplate such an award because, in ADEA actions, unlike Title VII actions, administrative proceedings are not a pervasive and integral part of the overall scheme of enforcement. See Parker v. Califano, 561 F.2d at 329.
Plaintiff finally argues that, in any event, a holding that such fees are not available to a successful ADEA litigant will deter claimants from voluntarily pursuing administrative settlement of their claims. Assuming this to be true,
421 U.S. at 270-271, 95 S.Ct. at 1628 (footnotes omitted).
For the foregoing reasons, the Court has determined that attorney's fees are not available to the plaintiff in this action. Since attorney's fees are all that plaintiff is requesting and are all that plaintiff could request, her underlying claim having been already remedied, it is apparent that plaintiff cannot prevail in this action under any
The Court holds that the ADEA does not entitle a successful claimant to attorney's fees for services performed at the administrative level. This is particularly true where, as here, full relief for the underlying claim of discrimination has been afforded at the administrative level and without the need for judicial intervention. Since this resolution of the controlling question of law mandates judgment for the defendant on the undisputed facts of this case, the Court grants summary judgment for defendant.
Id. It is interesting to note that neither party cited 29 U.S.C. § 633a in their moving papers though both admitted at oral argument that plaintiff was an employee covered by that section.
87 F.R.D. at 489 n.1. Likewise, the Court does not rest its decision in the present case on that argument which has not been raised by the defendant.
488 F.Supp. at 1044.
Although the precise issue before the Court in DeFries is not presented by this case, the rationale that the general direction of § 633a(c) for courts to fashion relief to "effectuate the purposes" of the Act may be taken by the courts as a legislative invitation to award attorney's fees appears to this Court as inconsistent with the spirit, if not the letter, of the Alyeska Pipeline case.