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KRODEL v. YOUNG

October 8, 1985

Richard Krodel, Plaintiff,
v.
Andrew J. Young, et al., Defendants


Thomas A. Flannery


The opinion of the court was delivered by: FLANNERY

Thomas A. Flannery

 This matter comes before the court on plaintiff's motion for addition to award of attorney's fees and costs, plaintiff's motion for interest on award of back pay, and plaintiff's former attorney Patricia J. Barry's application for issuance of an order to show cause regarding contempt. For the reasons set forth below, plaintiff's motions and attorney Barry's application are denied.

 I. Background

 On February 9, 1983, this court issued a judgment and order awarding plaintiff back pay under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. (1982) in the amount of the differential, with all increases and benefits, between the salary plaintiff would have earned at Grade 13 and the salary he was paid at Grade 12, retroactive to April 11, 1976.

 On December 8, 1983, this court issued a judgment and order awarding plaintiff attorney's fees under the ADEA in the amount of $ 33,939.00. This figure represented $ 29,864.00 in attorney's fees for Roy J. Bucholtz, $ 1,950.00 in attorney's fees for Patricia J. Barry, and $ 2,125.00 in costs 576 F. Supp. 390 (1983).

 Defendants filed an appeal of this court's order awarding back pay and, on November 20, 1984, the Court of Appeals issued an opinion affirming the order. Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701 (D.C. Cir. 1984).

 Though defendants also filed an appeal of the order awarding attorney's fees and costs, defendants subsequently moved to voluntarily dismiss that appeal in light of the Court of Appeals' affirmation on the merits. This motion to dismiss was granted on March 15, 1985.

 On April 4, 1985, plaintiff filed both a motion for interest on the award of back pay and a motion for an addition to the award of attorney's fees and costs. Plaintiff argues that the defendant has engaged in unwarranted delay tactics in paying the award and in doing so has damaged plaintiff.

 On April 15, 1985, the attorney who initially represented plaintiff in this suit but who was later replaced, Patricia J. Barry, applied to this court for the issuance of an order to show cause regarding contempt against defendants Department of Health and Human Services and its Secretary for failure to pay the award. Barry had been informed by one of defendants' attorneys that she would be paid by early April.

 II. Discussion

 The central question that arises in this case is to what degree a losing defendant in an ADEA case can be held accountable for delay of payment of the amount awarded to plaintiff when defendant is the United States. It is best to deal with the two motions separately.

 a. Motion for Interest on Award of Back Pay

 With regard to the delay in the payment of the award of back pay, although this court's judgment granting the award to plaintiff issued on February 9, 1983, defendant pursued a bona fide appeal, completely briefed and argued, which ended on November 20, 1984, with an affirmation by the Court of Appeals of this court's order. Defendants then sought and received a short extension of time pending a final determination of whether the government would seek further Supreme Court review. The Solicitor General decided not to seek further appellate review, and on February 19, 1985, defendants moved to dismiss voluntarily their attorney's fees appeal, which was granted by the Court of Appeals on March 15, 1985. Defendants assert that they were prepared at this point to take the proper ...


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