federal employee ADEA actions was that subsection (f) precluded reading section 7's authorization of jury trials into section 15. Id. at 2703. Similarly, in this case subsection (f) bars reading the remedial provisions incorporated into section 7 into section 15. If there is any significant inconsistency in this result it is produced by clear legislative language.
Equal Access to Justice Act
Having concluded that the ADEA does not authorize an award of attorneys' fees or liquidated damages, the question is whether any other statutes waive sovereign immunity to provide such relief.
Depending upon the outcome of this lawsuit, the plaintiff may be eligible to recover legal fees and costs for services performed in connection with this judicial proceeding under the Equal Access to Justice Act. P.L. 96-481, 94 Stat. 2327 (1980). The Act amended Section 2412 of Title 28 of the U.S. Code to permit an award of attorneys' fees as well as costs "to the prevailing party in any civil action" against the United States or an agency official, unless such an award is "expressly prohibited by statute." 28 U.S.C.A. § 2412(b) (1981 Supp.). The Act further provides that "(t)he United States shall be liable for such fees and expenses to the same extent that any other party would be liable under ... the terms of any statute which specifically provides for such an award." Id. Since a successful ADEA litigant may recover legal fees and costs from a nongovernment defendant, see, e.g., Cleverly v. Western Elec. Co., 594 F.2d 638 (8th Cir. 1979), the Act's rule of equal treatment as to public and private defendants permits a prevailing party to recover attorneys' fees and costs in an ADEA action against the United States. The Act became effective on October 1, 1981, and applies to any civil action "pending on, or commenced on or after such date." § 208, P.L. 96-481, 94 Stat. 2325 (1980). This action was obviously pending on October 1 and plaintiff may therefore apply for fees and costs pursuant to 28 U.S.C.A. § 2412 (1981 Supp.) should he be the "prevailing party" in this Court.
The Equal Access to Justice Act does not, however, authorize an award of attorneys' fees or costs for work performed in connection with the administrative proceedings in this case. First, the administrative proceedings held on plaintiff's complaint were not pending as of the effective date of the Act. Second, the Act authorizes a Court to award fees and costs only in connection with a civil action or an "adversary adjudication." 28 U.S.C.A. § 2412(d)(3) (1981 Supp.). The definition of an "adversary adjudication" excludes a proceeding that involves "a matter subject to subsequent trial on the law and the facts de novo in a court." See 5 U.S.C. § 554(a) (Supp. III 1979). Since this action is a de novo proceeding on plaintiff's claims of discrimination and reprisal and his demand for additional relief, the proceedings below did not constitute an "adversary adjudication" within the meaning of the Act. Accordingly, the Equal Access to Justice Act does not authorize this Court to award fees and costs for the administrative work in this case.
In summary, the Court holds that plaintiff would be eligible to apply for legal fees for work performed in connection with this action pursuant to the Equal Access to Justice Act if he should prevail on his claim that his failure to receive promotion to a GS-13 supervisory audiologist position was the result of illegal discrimination or the claim that he was the victim of "retaliation." However, the Court concludes that plaintiff is precluded as a matter of law from recovering attorneys' fees for work performed at the administrative level or liquidated damages. An appropriate order is attached hereto.
For the reasons set out in a Memorandum filed herewith, and for the purpose of bringing into focus the remaining issues in this case, it is hereby
ORDERED that defendant's motion to dismiss a portion of this case is granted in part and plaintiff's claims for attorneys' fees for work performed at the administrative level and for liquidated damages are dismissed; and it is further
ORDERED that except as indicated above defendant's motion to dismiss a portion of this case is denied; and it is further
ORDERED that a further status conference with counsel is set for 9:00 a.m. on November 3, 1981, for the purpose of setting a trial date and discussing other matters suggested by counsel.