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NOBLE v. CLAYTOR

April 13, 1978

Leroy N. Noble, Plaintiff
v.
W. Graham Claytor, Jr., Defendant



The opinion of the court was delivered by: CORCORAN

 I

 This is an action for award of attorney's fees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. resulting from the successful resolution at the administrative level of a complaint of discrimination.

 On March 25, 1977, plaintiff, a black employee of the Department of the Navy filed a formal administrative complaint with defendant alleging race and age discrimination in that he had been denied promotion to certain supervisory positions.

 On August 18, 1977, defendant found that plaintiff had been "discriminated against on the basis of race in the selection process for the position of Utilities System Operator Leader WL-5406-9." It awarded him a retroactive promotion with back pay. *fn1"

 Further, and importantly to this case, the defendant acknowledged that plaintiff was "the prevailing party in this proceeding and, if (he) is entitled to a reasonable attorney's fee, it shall be in the amount of $780. . . ." *fn2"

 Plaintiff filed this action on October 5, 1977. He seeks attorney's fees for services both at the administrative level, and in maintaining this action. On January 6, 1978, he filed a Motion for Summary Judgment. Defendant sought, and obtained, an extension of time until February 13, 1978, in which to respond to plaintiff's motion. On that date, defendant filed a "Motion to Hold in Abeyance and Stay Proceedings" pending decision as to whether the government would appeal Smith v. Califano, 446 F. Supp. 530 (D.D.C. 1978). *fn3" This Court denied defendant's motion for stay on March 9, 1978, and ordered defendant to respond to plaintiff's motion within ten (10) days. No response has been filed. Accordingly, we move to consider plaintiff's uncontested motion for summary judgment.

 II

 Agency Authority to Award Fees

 A. Prior Case Law

 We begin with Fischer v. U.S. Dep't of Transportation, 430 F. Supp. 1349 (D.Mass. 1977). In Fischer plaintiff prevailed in her discrimination claim before the Civil Service Commission which awarded her retroactive promotion and back pay. She then sued in district court seeking interest and an award of attorney's fees. Citing the holdings of Alyeska Pipeline Co. v. Wilderness Society,4 and United States v. Testan,5 to the effect that "attorney's fees are not recoverable in a federal action absent 'specific and explicit provisions' for their allowance" *fn6" and that "a waiver of [sovereign] immunity must be 'unequivocally expressed;' *fn7" Fischer held that 42 U.S.C. § 2000e-16(b) *fn8" does not specifically or explicitly provide that the Commission may award attorney's fees. The court also rejected plaintiff's argument that 42 U.S.C. § 2000e-5(k), which authorizes a district court to award attorney's fees "In any action or proceeding under this subchapter . . .," allows a district court to award attorney's fees for services performed at the administrative level. As to this latter argument, the Court specifically held that the word "proceeding" did not include administrative proceeding, but rather referred only to "actions or proceedings in which the court participates." Fischer, supra at 1352. *fn9"

 Subsequent to Fischer, our Court of Appeals decided Parker v. Califano, 182 U.S.App.D.C. 322, 561 F.2d 320 (1977). In Parker, the Court faced the issue of "whether in a suit brought by a federal employee under Title VII of the Civil Rights Act of 1964 -- in which the employee is the 'prevailing party' -- a federal District Court has discretion to award attorney's fees that include compensation for legal services performed in connection with related administrative proceedings." (emphasis supplied) (footnotes omitted). Parker, supra 561 F.2d at 321. The Court of Appeals concluded that 42 U.S.C. § 2000e-5(k) as made applicable by 42 U.S.C. § 2000e-16(d) did in fact authorize district courts to make awards for attorney's fees which included compensation for work done at both judicial and administrative levels. Parker, supra, 561 F.2d at 324. A similar result was reached by the Fourth Circuit in Johnson v. United States, 554 F.2d 632 (4th Cir. 1977). In reaching this common result, both Circuit Courts specifically indicated that they were expressing no opinion as to the situation which now confronts us viz., whether a prevailing party would be entitled to attorney's fees for representation in an administrative proceeding which took place entirely independently of, or prior to, an action in the district court. However, despite this limitation on their holdings both courts suggested, by innuendo, how they might resolve this issue.

 In Johnson, the Court, after indicating it was expressing no opinion on the issue just delineated, cited to Fitzgerald v. United States Civil Service Commission, 180 U.S.App.D.C. 327, 554 F.2d 1186 (1977). That case held that section 14 of the Veterans Preference Act of 1944 which inter alia directs the agency guilty of the wrongful discharge to "take corrective action that the Commission finally recommends" did not include the requisite express waiver of sovereign immunity nor the express Congressional intent to allow attorney's fees. Accordingly, the Court reasoned, the language did not authorize the Civil Service Commission to award attorney's fees for parties prevailing at the ...


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