The opinion of the court was delivered by: FLANNERY
This case comes before the court on plaintiff's petition for attorneys' fees and costs incurred in pursuing his age discrimination case in this court. Plaintiff claims that he is entitled to this award as a successful plaintiff under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Defendant argues that plaintiff is not entitled to attorneys' fees under this act, or any other.
Plaintiff is a management analyst employed in the Office of Hearings and Appeals of the Social Security Administration, Department of Health and Human Services, and its predecessors, in that capacity since December 1968. Plaintiff alleged that he was denied promotions on the basis of age in violation of the ADEA. Plaintiff further alleged that his First and Fifth Amendment rights had been violated by defendants.
The bases of plaintiff's complaint were the denials of his applications in 1976 and 1977 for five separate promotions. He claimed that he had not been selected for the first four positions because of his age. In regard to the fifth position, he alleged that he was not selected as a result of reprisals against him for his earlier complaints of discrimination. Plaintiff exhausted his administrative remedies and then appealed to this court.
On July 9, 1981, this court dismissed plaintiff's First and Fifth Amendment claims. On February 9, 1983, this court, after trial on the merits of plaintiff's claims, entered judgment on behalf of plaintiff under 29 U.S.C. § 633a, with respect to the first promotion that plaintiff applied for, and on behalf of defendant for all other promotion actions at issue in the case.
Plaintiff now applies to this court for an award of attorneys' fees under the ADEA and the Equal Access to Justice Act, (EAJA), 28 U.S.C. § 2412. For the reasons stated below, this court finds that the ADEA authorizes the award of attorneys' fees to successful plaintiffs. It also finds that the plaintiff in this case is a "successful plaintiff" entitled to reasonable attorneys' fees.
In 1967, Congress passed the ADEA to protect workers against discrimination in the workplace on the basis of age. 29 U.S.C. § 621(b). As originally passed, the Act's protection was limited to employees in the private sector. Pub.L. 90-202, § 11, 81 Stat. 605, 29 U.S.C. § 630(b) (1970 ed.). In 1974, however, Congress amended ADEA to extend its protection to public employees. 29 U.S.C. § 633a. Although the prohibitions against age discrimination are virtually identical in the sections that apply to private and public employees, the enforcement provisions differ.
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.
29 U.S.C.§ 216(b). Thus, a plaintiff who prevails against a private employer under the ADEA is entitled to recover reasonable attorney's fees. See, e.g., Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 842 (3d Cir. 1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 770 (1978); Brennan v. Ace Hardware Corp., 495 F.2d 368, 374 n.11 (8th Cir. 1974).
The section of the ADEA that applies to the federal government does not explicitly incorporate these enforcement provisions. Indeed, 29 U.S.C. § 633a(f) states:
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 ...