The opinion of the court was delivered by: GASCH
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
permits an award of attorneys' fees to a party who prevails in his complaint of discrimination at the administrative level and who receives there the complete relief requested. Although this circuit specifically left open this issue in its recent decision of Parker v. Califano, 182 U.S. App. D.C. 322, 561 F.2d 320 (D.C. Cir. 1977), the holding and opinion in that case are of significant importance to this Court's resolution of it. Accordingly, it is necessary at the outset to discuss that case briefly in order to establish the foundation on which this decision rests.
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:
[A] Title VII plaintiff who is unsuccessful in the administrative proceedings but succeeds in court will be able to recoup attorneys' fees for all legal services rendered, while a plaintiff who is successful at the administrative level will not be able to recoup any attorneys' fees.
The first possibility is to allow the plaintiff to come to court on the single issue of whether, and in what amount, attorneys' fees are to be awarded. The second is for the agency itself to award fees pursuant to its authority under § 717(b), 42 U.S.C. § 2000e-16(b), to "enforce the provisions [prohibiting employment discrimination] through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section. . .. "
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.
Such a determination is the task this Court now addresses.
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, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (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 farreaching 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 (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. The Court further noted that Congress has not
extended any roving authority to the Judiciary to allow counsel fees . . . whenever the courts deem them warranted. What Congress has done, however, . . . is to make specific and explicit provision for the allowance of attorneys' fees under ...