same rights the agencies are to protect. Thus, finding authority for the agency also to award counsel fees to one who prevails at the administrative level would not create a "far-reaching" new exception to the Rule. Rather, it would make the existing exception applicable regardless of the stage at which that federal right is protected. In spite of this significant factual distinction, defendant nevertheless contends that as a result of Alyeska, the particular section authorizing the agency to grant relief from discrimination must specifically include the magic words "attorneys' fees" or else they are not included within its arsenal of remedies. This Court disagrees. 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.
Several courts have emphasized the important role an attorney may play during the administrative phase of a Title VII proceeding.
The Supreme Court has emphasized that one of the central policies of Title VII is to make whole the person who has been subjected to discrimination,
and an award of attorneys' fees is a significant means of accomplishing that.
Thus, although Title VII does not expressly state that an agency may award attorneys' fees, it does state that the agency is to enforce the Act "through appropriate remedies . . . as will effecuate the policies of this section . . . ." 42 U.S.C. § 2000e-16(b) (Supp. V 1975). Because the "make-whole" concept is one of those policies, this provision can be read to permit the agency to award attorneys' fees, thereby making whole one who prevails before it.
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.
The court went on to say in Fitzgerald that even assuming there had been a waiver of sovereign immunity, it did not necessarily follow that it extended to an award of attorneys' fees "unless Congress had clearly indicated that it should." Id. at 1189. In a footnote the court suggested that this indication might come from "particularly clear legislative history." Id. at 1189 n.8.
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 other remedial action consistent with the purposes of the Act, the intent was that "any remedy needed to fully recompense the employee for his loss, both financial and professional" would be appropriate.
A broader interpretation of the agency's authority could not have been expressed, and from the clear acknowledgement by Congress elsewhere in the legislative history of the importance of awarding attorneys' fees, including those for services at the administrative level,
it must be concluded that this mandate to the agency provides authority for it to make such awards.
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, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (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.
The utility of the administrative proceeding also might be diminished absent this authority in the agencies. The complainant and his counsel might conclude that it is not cost-efficient to invest the time necessary at the administrative level to develop his case properly. Thus, the administrative proceeding might be relegated to a pro forma exhaustion step decreasing the likelihood that claims could be resolved without resorting to the courts. It might also mean that the administrative record, which can be admitted as evidence in court, would be less complete and thus of less assistance in conserving the courts' time in suits that are filed. See Parker v. Califano, 561 F.2d at 334.
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 agency's determination as to the amount of the award, he may then seek judicial review of that determination. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 446 F. Supp.]
Ordered that plaintiff's motion for summary judgment be, and hereby is, granted to the extent of a declaration of entitlement to an award of attorneys' fees; and it is further
Ordered that defendant's motion for summary judgment be, and hereby is, denied; and it is further
Ordered that the case be, and hereby is, remanded to the defendant for a determination as to the amount of attorneys' fees to be awarded plaintiff.