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MUTH v. MARSH

October 23, 1981

Edward Byrd MUTH, Plaintiff,
v.
John O. MARSH, Jr., Secretary of the Army, Defendant



The opinion of the court was delivered by: GESELL

MEMORANDUM

This is an action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1976 & Supp. III 1979) (ADEA) against the Secretary of the Army. After prevailing in part at the administrative level the plaintiff brought suit in this Court seeking additional relief. The defendant has moved to dismiss a portion of this case on the ground that a prevailing plaintiff in an ADEA suit against the Federal Government is not entitled to recover either liquidated damages or attorneys' fees for legal services performed in connection with administrative or judicial proceedings.

 The plaintiff, who is 54 years old, was removed from his position as a supervisory audiologist in the Army Audiology and Speech Center at Walter Reed Medical Center and reduced in grade from GS-12 to GS-11. After the plaintiff filed a formal complaint and an investigation was held the Army concluded that plaintiff had been demoted because of age discrimination on the part of plaintiff's supervisor and ordered cancellation of his reduction in grade, awarded him back pay and directed that plaintiff's personnel records be corrected. The plaintiff also sought retroactive promotion to a GS-13 supervisory audiologist position created shortly after his demotion that plaintiff claims he would have assumed but for discrimination. The Army refused to award this relief and also rejected plaintiff's claims for liquidated damages or attorneys' fees. The plaintiff then requested a hearing before an EEOC complaints examiner to review his request for broader relief and his claims of retaliation *fn1" and continuing discrimination. The complaints examiner found that plaintiff was the victim of retaliation and recommended that the Army award attorneys' fees, but otherwise concurred with the relief which the Army had already awarded. In its final decision on January 10, 1979, the Army refused to accept the complaints examiner's finding of reprisal or his recommendation that plaintiff be awarded attorneys' fees. The plaintiff then appealed from the Army's final decision to the EEOC and after 180 days filed this action.

 In this action plaintiff alleges that he was the victim of age discrimination and retaliation and seeks relief beyond what he has already received at the administrative level in the form of a retroactive promotion to GS-13, additional back pay, liquidated damages in an amount equal to the back pay which he has already received and which he seeks in this action, and an award of attorneys' fees for work performed at the administrative level and in connection with this judicial action. This motion to dismiss a portion of this case deals only with plaintiff's claim for liquidated damages and attorneys' fees.

 The United States, as sovereign, "is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 953, 47 L. Ed. 2d 114 (1976). In addition, the so-called American rule generally bars a prevailing litigant from collecting attorneys' fees unless fee-shifting is specifically authorized by statute. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). Thus, where the loser is the Federal Government an award of attorneys' fees is barred both by the doctrine of sovereign immunity and the American rule. Accordingly, even a general waiver of sovereign immunity by Congress does not authorize an award of attorneys' fees unless Congress has clearly indicated that it should. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S. Ct. 2024, 64 L. Ed. 2d 723 (1980); Fitzgerald v. United States Civil Service Commn., 180 U.S. App. D.C. 327, 554 F.2d 1186 (D.C.Cir.1977). Similarly, the doctrine of sovereign immunity bars an award of liquidated damages unless Congress has clearly indicated that liquidated damages may be recovered and their amount.

 Age Discrimination in Employment Act

 Plaintiff's first line of argument is that the ADEA contains a clear indication that the Federal Government has waived its general immunity from the payment of attorneys' fees and liquidated damages. The Court concludes that this argument is without merit.

 The ADEA was enacted in 1967 to protect older workers from discrimination based on age. See Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). The protection of the Act was originally limited to private sector employees. In order to effectuate the purposes of the Act Congress incorporated the enforcement scheme of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1976 & Supp. III 1979) (FLSA) into § 7 of the ADEA, thereby making available awards of attorneys' fees, costs and liquidated damages to successful ADEA litigants. 434 U.S. at 579, 98 S. Ct. at 869. The 1974 amendments to the ADEA amended section 15, bringing the Federal Government within the scope of the Act for the first time. P.L. 93-259, 88 Stat. 74 (1974). Section 15(c) provides:

 
Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter. 29 U.S.C. § 633a(c) (1976).

 Section 15 does not include the language contained in section 7 incorporating the FLSA remedial scheme. Moreover, in 1978, section 15 was amended by the addition of subsection (f), P.L. 95-256, 92 Stat. 191 (1978), which provides:

 
Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this chapter, other than the provisions of section 631(b) of this title and the provisions of this section. *fn2" 29 U.S.C. § 633a(f) (Supp. III 1979).

 The question presented is whether, in light of these statutory provisions, section 15 can be read to authorize awards of attorneys' fees and liquidated damages.

 The plaintiff does not argue that section 15 contains an explicit authorization of an award of attorneys' fees and liquidated damages. Nevertheless, he argues that the language authorizing a federal employee to sue "for such legal or equitable relief as will effectuate the purposes of this chapter" should be construed to permit an award of legal fees and liquidated damages, especially in view of the broad remedial purposes of the Act and the Act's express incorporation of the FLSA remedial scheme through section 7. The Court finds that plaintiff's argument is effectively rebutted by the decision of the Supreme Court in Lehman v. Nakshian, 453 U.S. 156, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981), holding that a federal employee does not have a right to trial by jury under the ADEA.

 The Court noted in Nakshian that Congress had specifically authorized a jury trial in private employee ADEA cases under section 7. Id. at 2704. See 29 U.S.C. § 626(c)(2) (Supp. III 1979). Since Congress had "demonstrated that it knew how to provide a statutory right to a trial jury when it wished to do so," 101 S. Ct. at 2702, the Court concluded that Congress had declined an opportunity to extend a right to a trial by jury to federal employee plaintiffs by omitting similar language from section 15. Second, the plaintiff in Nakshian argued that section 15's directive that the courts award appropriate "legal relief" supported a right to trial by jury. The Court rejected this argument on the ground that the Seventh Amendment has no application in actions at law against the United States and therefore Congress' use of the words "legal relief" does not imply a right to trial by jury. Id. at 2703. Finally, the Court read subsection (f) as a clear indication that section 15 is "self-contained and unaffected by other sections, including those governing procedures applicable to actions ...


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