Opposition — Swain v. Lehman

No, &2-1644

—__—

d Stutes

In the Supreme Court of the Unite

OCTOBER TERM, 1982

VIRGINIA L. SWAIN, PETITIONER

Vv,

JOHN LEHMAN, JR., SECRETARY OF THE NAVY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Re» E. Lee

Solicitor General

Department of Justice

Washington, D. C. 20530

202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Alveska Pipeline Service Co. v. Wilderness

DONNY; SE as POO saa cree eckiartacn views 2

De Fries v. Hoorhues, 488 F. Supp.

(SOE Ee At Baten Corre eae sr er ysAD tama ye 7

Fedorenko vy. United States, 449 U.S.

EEE TO ee Ey SOP Pee ere TTT EET 3

Kennedy v. Whitehurst, 690 F.2d

DOS visser vas eaden vey PERS CRC ECE Y CORTE 2,4

Lehman v. Nakshian, 453 U.S.

Rey rer Serre Tere PEE Ee y

Lorillard v. Pons, 434 U.S. 575 wn. ccc ce cece ees 3

Muth v. Marsh, 525 F. Supp. 604 ....... cea 7

S & H Riggers & Frectors, Inc. v. OSHRC,

I a coda wis Ghd Ges ke ee eee eae 7

Summit Valley Industries v. Carpenters

Roenl Fie: SOUT wa cicrccksieeckss 2, 6

Tyler Business Services, Inc. v. NLRB,

SE ow eblcaie sd bos ea Ae wee ke bar 7

United States v. Bodcaw Co., 440 U.S.

UE sas ts Caen ESE A Pade S eNO SERA. RES 5

United States v. Mitchell, 445 U.S.

BE aie Gee baa kioaln Xx Oe OA SR AREAS ANS AA DAES 2

United States v. Testan, 424 U.S. 392 .......0.4. 2

(1)

Constitution and statutes:

oF a ee et eeunbaecewe 5

Age Discrimination in Employment Act,

29 U.S.C. (& Supp. V) 621 ef seq. :

Section Gat. Ze U.S. GSMO) ciccccseccuen 4

Section 7(b), 29 U.S.C.

| ERR OOP er arrears eae.

Section 7(c), 29 U.S.C. (Supp. V)

eaten aan Cuba eeenn 4.6

Section 15, 29 U.S.C.

RE: Sn gs ee sana Srey a Pe PES Se

Section 1S(c), 29 U.S.C.

SN Cs one Rh Ado a CaN S8 ca cee Se

Section 15(d), 29 U.S.C. 633a(d) ...... cece 7

Section 15(f), 29 U.S.C. (Supp. V)

RN 505044 C cua eke eeeedba céawess 4.5

Civil Rights Act of 1964, Title VII,

Pub. L. No. 92-261, 86 Stat. 103,

42 U.S.C. 2000e et seq. :

Section 706(k), 42 U.S.C.

DED coe eka ea aus nn ehaaaes 4

Section 717, 42 U.S.C. 2000e-16 ........... 4

Section 717(c), 42 U.S.C.

RA Pr ey eee” 7

Section 717(d), 42 U.S.C.

EN 5 chia x kn wieeae a vckiou kin ne cs 4

Equal Access to Justice Act Title II,

Pub. L. No. 481, 94 Stat 2325 er seq. :

Section 204(a)(d)(3), 28 U.S.C.

(Supp. V) 2412(GMS) ...rccceccccccccncs 6

Section 208, 94 Stat. 2330 ..cccuccccccees 6-7

Page

Constitution and statutes— Continued:

Fair Labor Standards Act, 29 U.S.C.

oe Me ge ren a

Section 16(b), 29 U.S.C,

eo ed 3

4 ee RO 3

Pub. L. No. 93-259, Section 28.

ce , SPA J I a 4

Inthe Supreme Court of the United States

OcTOBER TERM, 1982

No. &2-1644

VIRGINIA L. SWAIN, PETITIONER

Vv.

JOHN LEHMAN, JR... SECRETARY OF THE NAVS

ON PETITION FOR A WRI OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLL MBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Petitioner, a federal emplovee. contends that the courts

below erred in declining to award her attorney's fees and

costs in connection with administrative proceedings on her

complaint under Section I$ of the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. 633a.

|. Petitioner, an employee of the Department of the

Navy. filed an administrative complaint on August 11,

1977, claiming that she had been denied a quality step

increase and a promotion because of her age, in violation of

Section 1S of the Age Discrimination in Emplovment Act

(ADEA), 29 U.S.C. 633a. Administrative hearings were

held in 1979. On October 29, 1980, the Department of the

Navy. adopting the decision of a Complaints Examiner of

the Equal Employment Opportunity Commission, issued a

final decision finding that the Department had discrimi-

nated against petitioner by failing to promote her. Peti-

tioner Was awarded a retroactive promotion, back pay, and

retirement adjustments (Pet. App. 4a-Sa).

2

On December 3, 1980, petitioner filed this action in the

United States District Court for the District of Columbia.

On September 18, 1981. the parties stipulated to the volun-

tary dismissal of all aspects of the complaint, with the

exception of petitioner's claim for attorney's fees and costs

In connection with the administrative proceedings (Pet.

App. Sa). On January 19, 1982, the district court entered

summary judgment for the government on that issue, hold-

ing that attorney's fees and costs incurred in connection

with administrative proceedings may not be awarded to a

person who prevails on a complaint against the federal

government under Section 15 of the ADEA (Pet. App.

3a-17a). The court of appeals affirmed by judgment order

(id. at la-2a) on the basis of its prior holding to the same

effect in Kennedy v. Whitehurst, 690 F.2d 951 (D.C. Cir.

1982),

2. The decision of the court of appeals is correct and

consistent with the holding of this Court in Lehman vy.

Nakshian, 453 U.S. 1S6(1981), and it does not conflict with

the decision of any other court of appeals. Further review

therefore is not warranted.

a. Itis, of course, well established that under the Ameri-

can Rule, a prevailing party is not entitled to recover attor-

ney'’s fees from the opposing party and that the federal

courts should not recognize exceptions to that Rule absent

specific congressional authorization. See, e.g., Summit Vai-

ley Industries \. Carpenters Local 112, 456 U.S. 717, 721-

723 (1982); Alveska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240, 260-262 (1975). Moreover, where, as

here, the federal government is the defendant, principles of

sovereign immunity require that any authorization for the

award of fees one of the terms of the government's con-

sent to be sued--must be “unequivocally expressed.” See

United States v. Mitchell, 445 U.S. 535, 538 (1980); United

States v. Testan, 424 U.S. 392, 399 (1976). The Court

3

recently held that these principles of sovereign immunity

apply to suits under Section 15 of the ADEA, the statutory

provision at issue here. See Lehmany. Nakshian, 453 U.S.

156, 160-161 (1981). Relying on these principles, the Court

held in Lehman \. Nakshian that there is no right to a jury

trial ina suit against the federal government under Section

1S of the ADEA. The analysis employed by the Court in

Lehman vy. Nakshian requires the conclusion that attor-

ney's fees likewise may not be awarded ina suit against the

federal government under Section 15 of the ADEA.

Section 15(c) of the ADEA provides that “[a]ny person

aggrieved [by age discrimination in federal employment]

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 [Act].” 29 U.S.C.

633a(c). There is no express authorization for an award of

attorney's fees. Under the American Rule and the doctrine

of sovereign immunity, this alone is a sufficient basis for

concluding that fees may not be awarded. This conclusion is

reinforced by the fact. explained below, that when Congress

wanted to authorize an award of attorney's fees under other

sections of the ADEA, itexpressly so provided. Lehman v.

Nakshian, supra, 453 U.S. at 162-163; Fedorenko vy.

United States, 449 U.S. 490, §12-$13 (1981).

When it originally was enacted in 1967 (Pub. L. No.

90-202, 81 Stat. 602), the ADEA applied only to private

employers, not to the federal, state and local governments.

Lehman \. Nakshian, supra, 453 U.S. at 166. Under Sec-

tion 7(b) of the ADEA, 29 U.S.C. 626(b), the Act ts

enforced against private employers in accordance with

procedures provided in the Fair Labor Standards Act

(FLSA), 29 U.S.C. (& Supp. V) 201 et seq. See Lehman v.

Nakshian, supra, 453 U.S. at 160; Lorillard vy. Pons, 434

U.S. 575, 578-583 (1978). Section 16(b) of the FLSA, 29

U.S.C. (Supp. V) 216(b), expressly provides for the award

4

of attorney's fees and costs in an action brought by a person

against an employer who violates that Act. and such fees

and costs therefore may be awarded in a suit against a

private employer under Section 7(c) of the ADEA, 29

U.S.C. (Supp. V) 626(c).

Congress amended the ADEA in 1974 (Pub. L. No, 93-

259, Section 28, 88 Stat. 74) to cover federal, state and local

government employees. State and local governments were

brought under the existing enforcement scheme applicable

to private employers by expansion of the term “employer”

in Section 4(a) of the ADEA, 29 U.S.C, 623(a). to include

state and local governments. This had the effect of extend-

ing the procedural provisions of the FLSA to suits against

such entities (Lehman v. Nakshian, supra, 483 U.S. at 166),

including the provision for attorney's fees. But although it

Was first proposed to include the federal government under

the existing FLSA enforcement scheme as well (id. at 166-

167 n. 14), Congress instead enacted a separate provision

Section IS addressing age discrimination in federal emplov-

ment. As this Court has observed, Section 15 does nor

incorporate the FLSA enforcement scheme for federal sec-

tor ADEA cases (Lehman y. Nakshian, supra, 453 US. at

163, 166-167), and the FLSA’s authorization for the award

of attorney's fees and costs therefore does not apply to

federal sector cases.! This conclusion was reinforced in 1978

by the enactment of Section IS(f) of the ADEA, 29 U.S.C

(Supp. V) 633a(f), which provides that. with one exception

Congress instead patterned Section 1S of the ADEA after Section

717 of Tithe VIL of the Civil Rights Act of 1964, as amended in 1972

(Pub. L. No. 92-261, 86 Stat. TE1-112), 42 U.S.C, 2000e-16, which

governs discrimination in federal employment on the basis of race.

color, national origin, religion and sex. Significantly, under Title VII,

Congress express/y incorporated into the federal sector ithe VII provi-

sions the attorney's fee provision applicable to private sector cases. See

42 U.S.C. 2000e-16(d), incorporating 42 U.S.C. 2000e-S(k).

5

not relevant here, federal personnel actions “shall not be

Subject to, or aftected by, any provision of this chapter

other than * * * the provisions of this section.” This lan-

guage makes explicit that Section 7(b) of the ADEA~-the

section that incorporates the FLSA procedures for ADEA

Suits against private employers and state and local govern-

ments does not apply to federal sector ADEA suits under

Section IS. See Lehman v. Nakshian, supra, 453 U.S. at

163, 167-168."

b. Petitioner acknowledges that there is an “absence of

an explicit authorization of fees in the statute”(Pet. 37), but

she contends (Pet. 24-31) that an award of attorney's fees is

encompassed within the provision in Section 1 5(c) for the

award of “such legal and equitable relief as will effectuate

the purposes of [the] Act.” This contention is without merit.

The quoted language cannot be viewed as the requisite

“unequivocally expressed” waiver of the government's sov-

ereign immunity to the payment of attorney's fees. See

United States v. bodcaw Co., 440 U.S. 202, 203-204 & n.3

(1979) (litigation costs not part of “just compensation”

required to be paid by Fifth Amendment). Nor, against the

*Petitioner contends (Pet. 38-42) that prior to the 1978 amendments

adding Section IS(f), the FLSA procedures— including the authoriza-

tion forthe award of attorney's fees— applied to federal sector cases and

that the 1978 amendment should not be applied retroactively to her

case, which was commenced administratively by the filing of a com-

plaint in 1977, before passage of the 1978 amendments. This argument

is frivolous. The FLSA procedures were inapplicable to federal sector

ADEA cases even prior to the enactment of Section 15(f), which simply

made this inapplicability explicit. Lehman vy. Nakshian, supra, 453

U.S. at 166-167. Moreover, even if the 1978 amendments were thought

to adopt new law barring the award of attorney's tees for the first time,

those amendments were enacted prior to the administrative hearing that

presumably consumed most of petitioner's attorney's efforts. Finally, to

the extent that petitioner's claim depends upon the construction of

pre-1978 law, it is of no continuing importance.

6

background of the American Rule, can the ordinary mean-

ing of the language be extended to encompass the distinct

element of fees. Cf. Summit Valley Industries vy. Carpen-

ters Local 112, supra, 456 U.S, at 724-725.

Moreover. Section 7(c) provides tor the award of reliet in

non-federal sector ADEA suits in che same language as that

in Section 15(c), upon which petitioner relies. The identical

language in Section 7(c) is not the source of the authoriza-

tion for the award of attorney's fees in non-federal sector

cases. Congress instead found it necessary to authorize the

award of attorney's fees and costs in Section 7(b), through

the incorporation of the provision for attorney's fees and

costs under the FLSA. The same language therefore cannot

be construed in Section 15(c) implicitly to include an

authorization for the award of fees. Furthermore, this

Court recently has stressed that the American Rule barring

the award of attorney's fees except where Congress has

expressly so provided cannot be circumvented— and fees in

connection with prior administrative proceedings allowed

merely because a court might believe that such an award

would further the congressional purpose underlying the

statute. See Summit Valley Industries v. Carpenters Local,

supra, 456 U.S. at 723-726.) That rationale applies equally

here.4

‘Petitioner errs in relying (Pet. 31-37) on the authorization in §

U.S.C. (Supp. V) 7701(g)(2) for the award of fees in certain proceedings

before the Merit Systems Protection Board. Congress there, of course,

expressly authorized the award of fees in connection with a particular

type of administrative proceeding. Congress did not do so, however,

under Section 15 of the ADEA.

*Petitioner does not contend that she is entitled to an award of fees

and costs under the Equal Access to Justice Act, 28 U.S.C. (Supp. V)

2412(d)(3). There would be no occasion to consider that question here

in any event, because the administrative proceedings in this case termi-

nated well before the October |, 1981 effective date provided in Section

7

/

In any event. even if the award of attorney's fees in

connection with judicial proceedings could be said to be

appropriate to effectuate the purposes of the Act (see De-

Fries \. Haarhues, 488 F. Supp. 1037 (C.D. Ill. 1980)), as

the court of appeals held in Kennedy v. Whitehurst, supra.

690 F.2d at 963-965 (Pet. App. 73a-79a). this rationale does

notapply to fees incurred in connection with administrative

proceedings. Unlike the situation under Title VII of the

Civil Rights Act of 1964 (see 42 U.S.C. 2000e-16(c)), the full

pursuit of administrative remedies under Section 15 of the

ADEA is optional: the only requirement is that notice be

given to the Equal Employment Opportunity Commission

at least 30 days in advance of filing suit. 29 U.S.C. 633a(d).

Administrative proceedings thus play a somewhat less

important role under the ADEA.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lee

Solicitor General

JUNE 1983

208 of that Act. Pub. L. No. 96-481, 94 Stat. 2330. § & H Riggers &

Erectors, Inc. v. OSHRC, 672 F.2d 426, 428 (Sth Cir. 1982); Tyler

Business Services, Inc. v. NLRB, 695 F.2d 73, 76-77 (4th Cir. 1982);

Muth v. Marsh, 825 F. Supp. 604, 609 (D.D.C. 1981).

DOJ-19% 4-06