award of attorney's fees to a party who prevails in his complaint of discrimination at the administrative level and, if so, (2) whether the discriminating agency is authorized to award such fees. Though the issues are easily stated, their resolution is considerably more difficult.
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"
and that "a waiver of [sovereign] immunity must be 'unequivocally expressed;'
Fischer held that 42 U.S.C. § 2000e-16(b)
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.
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 administrative level. In citing to Fitzgerald, the Johnson Court would seem to suggest that a similar conclusion might be the appropriate disposition of the issue which we now confront.
The Parker court, in a footnote,
addressed itself to an anomaly posed by the appellant if the court were to hold that in Title VII suits district courts could award fees for services performed at the administrative and judicial level, but that such fees could not be awarded for services performed at the administrative level alone. The appellant pointed out the possibility that a plaintiff who was unsuccessful at the administrative level but later successful in court might be able to recoup attorney's fees for all legal services rendered, while, on the other hand, a plaintiff who was successful at the administrative level and, accordingly, had no reason to go to court, might not be able to recoup any fees. While not deciding whether such anomaly would, in fact, result the Court alluded to two suggestions offered by appellee as providing a possible resolution:
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. . .' Parker, supra 561 F.2d at 329 n. 24.
The Court appeared to accord further weight to these suggestions in Foster v. Boorstin, 182 U.S.App.D.C. 342, 561 F.2d 340 (1977) when it noted "For reasons stated in Parker v. Califano, 182 U.S. App. D.C. 322, 561 F.2d 320 at 329, at n. 24, we believe this potential anomaly is far from inevitable." Id. at 343 n. 8.
With Fischer, Johnson and Parker in the background, a U.S. District Court for the District of Columbia faced the anomaly raised in Parker. In Taylor v. Claytor, 15 EPD § 7854 (D.D.C. 1977), the Court resolved that anomaly by adopting the first alternative suggested by Parker, supra. It directed the defendant agency to reimburse the plaintiff for fees incurred at the administrative level as well as those incurred in the suit to obtain such fees.
Subsequent to the Taylor decision, a different D.C. District Court in Smith, supra adopted the second alternative suggested by the Parker appellee and held that § 2000e-16(b) authorized the award of attorney's fees by the defendant agency to a party who prevails in his complaint of discrimination at the administrative level
and without subsequent court action. While acknowledging that "Title VII does not expressly state that an agency may award attorney's fees . . .,"
the Court noted that "it does state that the agency is to enforce the Act 'through appropriate remedies . . . as will effectuate the policies of this section . . .' 42 U.S.C. § 2000e-16(b) (Supp. V 1975)."
Finding that "one of the central policies of Title VII is to make whole the person who has been subjected to discrimination,"
the Court held that § 2000e-16(b) "can be read to permit the agency to award attorney's fees . . . "
On the issue of whether § 2000e-16(b) constitutes a waiver of sovereign immunity, the Court in Smith cited Parker as authority for the proposition that Title VII contains an express waiver of sovereign immunity in authorizing the award of attorney's fees and that, to the extent Fischer was contrary, Parker was controlling.
We agree with Smith insofar as it holds that Title VII authorizes the award of attorney's fees to a complainant who prevails at the administrative level and, we acknowledge considerable appeal in the practicality of allowing agencies as such to award such fees. However, we do not find in either the language or the legislative history of § 2000e-16(b) the express congressional intent required
to authorize agencies to award attorney's fees. Rather we deem Congress to have vested such authority only in the courts.
B. The Statutory Language of 2000e-16(b)
The precise language of § 2000e-16(b) which Smith found to have authorized an agency's award of fees reads:
. . . the Civil Service Commission shall have authority to enforce the [prohibition against discrimination in federal employment] through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section . . . (emphasis supplied).