Noble v. Claytor

• Decision Date: 13 April 1978
• Docket Number: Civ. A. No. 77-1745.
• Citation: 448 F. Supp. 1242
• Parties: Leroy N. NOBLE, Plaintiff, v. W. Graham CLAYTOR, Jr., Defendant.
• Court: U.S. District Court — District of Columbia

448 F. Supp. 1242

Leroy N. NOBLE, Plaintiff, v. W. Graham CLAYTOR, Jr., Defendant.

Civ. A. No. 77-1745.

United States District Court, District of Columbia.

April 13, 1978.

Laura J. Rayburn, Mark T. Wilson, Washington, D. C., for plaintiff.

David H. Shapiro, Sp. Asst. U. S. Atty., Washington, D. C., for defendant.

MEMORANDUM AND ORDER

CORCORAN, Senior District Judge.

I

This is an action for award of attorney's fees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. resulting from the successful resolution at the administrative level of a complaint of discrimination.

On March 25, 1977, plaintiff, a black employee of the Department of the Navy filed a formal administrative complaint with defendant alleging race and age discrimination in that he had been denied promotion to certain supervisory positions.

On August 18, 1977, defendant found that plaintiff had been "discriminated against on the basis of race in the selection process for the position of Utilities System Operator Leader WL-5406-9." It awarded him a retroactive promotion with back pay.¹

Further, and importantly to this case, the defendant acknowledged that plaintiff was "the prevailing party in this proceeding and, if (he) is entitled to a reasonable attorney's fee, it shall be in the amount of $780. . . ."²

Plaintiff filed this action on October 5, 1977. He seeks attorney's fees for services both at the administrative level, and in maintaining this action. On January 6, 1978, he filed a Motion for Summary Judgment. Defendant sought, and obtained, an extension of time until February 13, 1978, in which to respond to plaintiff's motion. On that date, defendant filed a "Motion to Hold in Abeyance and Stay Proceedings" pending decision as to whether the government would appeal Smith v. Califano, C.A. 76-2311, 446 F.Supp. 530 (D.D.C. January 28, 1978, as amended January 31, 1978).³ This Court denied defendant's motion for stay on March 9, 1978, and ordered defendant to respond to plaintiff's motion within ten (10) days. No response has been filed. Accordingly, we move to consider plaintiff's uncontested motion for summary judgment.

II Agency Authority to Award Fees

The issues before us can be simply stated viz., (1) whether Title VII authorizes an award of attorney's fees to a party who prevails in his complaint of discrimination at the administrative level and, if so, (2) whether the discriminating agency is authorized to award such fees. Though the issues are easily stated, their resolution is considerably more difficult.

A. Prior Case Law

We begin with Fischer v. U. S. Dep't of Transportation, 430 F.Supp. 1349 (D.Mass. 1977). In Fischer plaintiff prevailed in her discrimination claim before the Civil Service Commission which awarded her retroactive promotion and back pay. She then sued in district court seeking interest and an award of attorney's fees. Citing the holdings of Alyeska Pipeline Co. v. Wilderness Society,⁴ and United States v. Testan,⁵ to the effect that "attorney's fees are not recoverable in a federal action absent `specific and explicit provisions' for their allowance"<sup>6</sup> and that "a waiver of sovereign immunity must be `unequivocally expressed;'⁷ Fischer held that 42 U.S.C. § 2000e-16(b)⁸ does not specifically or explicitly provide that the Commission may award attorney's fees. The court also rejected plaintiff's argument that 42 U.S.C. § 2000e-5(k), which authorizes a district court to award attorney's fees "In any action or proceeding under this subchapter . . .," allows a district court to award attorney's fees for services performed at the administrative level. As to this latter argument, the Court specifically held that the word "proceeding" did not include administrative proceeding, but rather referred only to "actions or proceedings in which the court participates." Fischer, supra at 1352.⁹

Subsequent to Fischer, our Court of Appeals decided Parker v. Califano, 182 U.S. App.D.C. 322, 561 F.2d 320 (1977). In Parker, the Court faced the issue of "whether in a suit brought by a federal employee under Title VII of the Civil Rights Act of 1964—in which the employee is the `prevailing party'—a federal District Court has discretion to award attorney's fees that include compensation for legal services performed in connection with related administrative proceedings." (emphasis supplied) (footnotes omitted). Parker, supra, 182 U.S.App.D.C. at 323, 561 F.2d at 321. The Court of Appeals concluded that 42 U.S.C. § 2000e-5(k) as made applicable by 42 U.S.C. § 2000e-16(d) did in fact authorize district courts to make awards for attorney's fees which included compensation for work done at both judicial and administrative levels. Parker, supra, 182 U.S.App. D.C. at 326, 561 F.2d at 324. A similar result was reached by the Fourth Circuit in Johnson v. United States, 554 F.2d 632 (4th Cir. 1977). In reaching this common result, both Circuit Courts specifically indicated that they were expressing no opinion as to the situation which now confronts us viz., whether a prevailing party would be entitled to attorney's fees for representation in an administrative proceeding which took place entirely independently of, or prior to, an action in the district court. However, despite this limitation on their holdings both courts suggested, by innuendo, how they might resolve this issue.

In Johnson, the Court, after indicating it was expressing no opinion on the issue just delineated, cited to Fitzgerald v. United States Civil Service Commission, 180 U.S. App.D.C. 327, 554 F.2d 1186 (1977). That case held that section 14 of the Veterans Preference Act of 1944 which inter alia directs the agency guilty of the wrongful discharge to "take corrective action that the Commission finally recommends" did not include the requisite express waiver of sovereign immunity nor the express Congressional intent to allow attorney's fees. Accordingly, the Court reasoned, the language did not authorize the Civil Service Commission to award attorney's fees for parties prevailing at the administrative level. In citing to Fitzgerald, the Johnson Court would seem to suggest that a similar conclusion might be the appropriate disposition of the issue which we now confront.

The Parker court, in a footnote,¹⁰ addressed itself to an anomaly posed by the appellant if the court were to hold that in Title VII suits district courts could award fees for services performed at the administrative and judicial level, but that such fees could not be awarded for services performed at the administrative level alone. The appellant pointed out the possibility that a plaintiff who was unsuccessful at the administrative level but later successful in court might be able to recoup attorney's fees for all legal services rendered, while, on the other hand, a plaintiff who was successful at the administrative level and, accordingly, had no reason to go to court, might not be able to recoup any fees. While not deciding whether such anomaly would, in fact, result the Court alluded to two suggestions offered by appellee as providing a possible resolution:

The first possibility is to allow the plaintiff to come to court on the single issue of whether, and in what amount, attorneys' fees are to be awarded. The second is for the agency itself to award fees pursuant to its authority under § 717(b), 42 U.S.C. § 2000e-16(b), to `enforce the provisions prohibiting employment discrimination through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section . . ..' Parker, supra, 182 U.S.App.D.C. at 331, n. 24, 561 F.2d at 329 n. 24.

The Court appeared to accord further weight to these suggestions in Foster v. Boorstin, 182 U.S.App.D.C. 342, 561 F.2d 340 (1977) when it noted "For reasons stated in Parker v. Califano, 182 U.S.App.D.C. 331, at n. 24, 561 F.2d 329, at n. 24, we believe this potential anomaly is far from inevitable." Id., 182 U.S.App.D.C. at 345, 561 F.2d at 343 n. 8.

With Fischer, Johnson and Parker in the background, a U.S. District Court for the District of Columbia faced the anomaly raised in Parker. In Taylor v. Claytor, 15 EPD § 7854 (D.D.C.1977), the Court resolved that anomaly by adopting the first alternative suggested by Parker, supra. It directed the defendant agency to reimburse the plaintiff for fees incurred at the administrative level as well as those incurred in the suit to obtain such fees.

Subsequent to the Taylor decision, a different D.C. District Court in Smith, supra adopted the second alternative suggested by the Parker appellee and held that § 2000e-16(b) authorized the award of attorney's fees by the defendant agency to a party who prevails in his complaint of discrimination at the administrative level¹¹ and without subsequent court action. While acknowledging that "Title VII does not expressly state that an agency may award attorney's fees . . .,"¹² the Court noted that "it does state that the agency is to enforce the Act `through appropriate remedies . . . as will effectuate the policies of this section . . ..' 42 U.S.C. § 2000e-16(b) (Supp. V 1975)."¹³ Finding that "one of the central policies of Title VII is to make whole the person who has been subjected to discrimination,"¹⁴ the Court held that § 2000e-16(b) "can be read to permit the agency to award attorney's fees . . .."¹⁵

On the issue of whether § 2000e-16(b) constitutes a waiver of sovereign immunity, the Court in Smith cited Parker as authority for the proposition that Title VII contains an express waiver of sovereign immunity in authorizing the award of attorney's fees and that, to the extent Fischer was contrary, Parker was controlling

We agree with Smith insofar as it holds that Title VII authorizes the award of attorney's fees to a complainant who prevails at the administrative level and, we acknowledge considerable appeal in the practicality of allowing agencies as such to award such...