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KENNEDY v. WHITEHURST

March 10, 1981

Bess KENNEDY, Plaintiff,
v.
William H. WHITEHURST, Defendant



The opinion of the court was delivered by: GASCH

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, the Court will enter summary judgment for defendant.

 I. BACKGROUND.

 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. *fn1" In September of 1979, plaintiff filed a complaint of age discrimination with the United States Equal Employment Opportunity Commission (EEOC). *fn2" As a result of the latter complaint, the EEOC negotiated a settlement agreement with defendant by which plaintiff was retroactively promoted to the GS-11 level with an award of back pay. *fn3" Despite plaintiff's requests, made through counsel, the settlement did not include an award of attorney's fees.

 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 *fn4" does not represent either a finding or a concession that plaintiff had in fact been the victim of age discrimination. Plaintiff, on the other hand, relying on certain communications between the EEOC and defendant, *fn5" contends that this resolution conclusively established that plaintiff was the victim of discrimination based on her age. The Court's disposition of the present dispute does not, however, necessitate the resolution of the question thus presented. Even assuming plaintiff is correct and these events at the administrative level conclusively establish that plaintiff was the victim of unlawful discrimination, the Court's interpretation of the ADEA still precludes an award of attorney's fees in the present case.

 II. DISCUSSION.

 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 *fn6" or some specific statutory authorization. 421 U.S. at 270-71, 95 S. Ct. at 1628, see also Montgomery Environmental Coalition v. Costle, 646 F.2d 595 at 596 (D.C.Cir. 1981).

 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 the ADEA, 29 U.S.C. § 626(b), which provides in part:

 
The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, ....

 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:

 
An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction.... The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

 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:

 
(c) Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will ...

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