Nowd v. Rubin, DOT

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1796
ROBERT J. NOWD,
Plaintiff, Appellant,
v.
ROBERT RUBIN, SECRETARY DEPARTMENT OF TREASURY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Cyr, Boudin and Stahl,
Circuit Judges.
Edward L. Hoban for appellant.
Lori J. Holik, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, was on brief for appellee.
February 12, 1996
CYR, Circuit Judge. After securing an advantageous
CYR, Circuit Judge.
pretrial settlement of his age discrimination claim against the
Secretary of the United States Department of the Treasury,
plaintiff Robert J. Nowd, a Special Agent with the Bureau of
Alcohol, Tobacco and Firearms, unsuccessfully sought an attorney
fee award under both the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. 621 et seq., and the Equal Access to
Justice Act ("EAJA"), 28 U.S.C. 2412(b), then initiated the
present appeal. We vacate the district court order and remand
for further proceedings.
DISCUSSION
DISCUSSION
The district court, relying on Lewis v. Federal Prison
Indus., Inc., 953 F.2d 1277 (11th Cir. 1992), held that neither
the ADEA nor the EAJA authorizes an attorney fee award to a
federal employee who prevails against the United States in an age
discrimination in employment action. Nowd faults the district
court ruling in two respects. First, he contends that Lewis
misconstrued the ADEA attorney fee provision. Second, he argues
that the Lewis reasoning does not extend to the dissimilar EAJA
attorney fee provision.1
A. The ADEA
A. The ADEA
Congress enacted the ADEA in 1967 to enable legal
recourse by private sector employees subjected to age
discrimination in the workplace, see Lorillard v. Pons, 434 U.S.
1We review the challenged statutory interpretations de novo.
See Riva v. Commonwealth of Mass., 61 F.3d 1003, 1007 (1st Cir.
1995).
2
575, 577-81 (1978), by providing that "the court[s] shall have
jurisdiction to grant such legal or equitable relief as may be
appropriate to effectuate the purposes of [the ADEA], including
without limitation judgments compelling employment, reinstatement
or promotion." 29 U.S.C. 626(b) (emphasis added); see also id.
626(c)(1) ("Any person aggrieved may bring a civil action in
any court . . . for such legal or equitable relief as will
effectuate the purposes of this chapter.") (emphasis added).
ADEA 626(b) expressly incorporated particular provisions of the
Fair Labor Standards Act ("FLSA"), including FLSA 216(b) which
states that "[t]he court . . . shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable
attorney's fee to be paid by the defendant." 29 U.S.C. 216(b)
(emphasis added).
It was not until 1974, see id. 633a, that certain
federal government employees became entitled to protection under
the ADEA. Lewis, 953 F.2d at 1281. Moreover, Congress did not
explicitly extend the FLSA attorney fee provision, viz., FLSA
216(b), to public sector employees, as it had done earlier with
respect to private sector employees. Id. Finally, subsection
633a(f) flatly states that any ADEA claim brought by a public
sector employee under new section 633a is neither affected by nor
subject to "any provision of . . . [the ADEA], other than the
provisions of section 631(b) of this title [pertaining to age
limits] and the provisions of this section [633a]." 29 U.S.C.
633a(f); see also Lewis, 953 F.2d at 1281.
3
4
Nowd nonetheless argues that subsection 633a(c),
authorizing "such legal or equitable relief as will effectuate
the purposes of [the ADEA]," should be read to empower an award
of attorney fees against the United States. We do not agree.
For one thing, the explicit restriction set forth in
subsection 633a(f) at the time that section 633a (including
subsection 633a(c)) was enacted, plainly provides that section
633a is a self-contained provision applicable exclusively to ADEA
claims against public sector employers. Lewis, 953 F.2d at 1281-
82; see Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981) (holding
that federal employees do not have the right to jury trial
available to private sector ADEA claimants). Second, under the
so-called "American Rule," parties in litigation ordinarily bear
their own attorney fees. See BTZ, Inc. v. Great Northern Nekoosa
Corp., 47 F.3d 463, 465 (1st Cir. 1995); Committee on Civic
Rights of the Friends of Newburyport Waterfront v. Romney, 518
F.2d 71, 72 (1st Cir. 1975). Exceptions normally obtain only for
fee shifting awards expressly authorized by statute. Id. (citing
Alyeska Pipeline Serv. Co. v. The Wilderness Soc'y, 421 U.S. 240
(1975)). Third, the availability vel non of attorney fees under
section 633a directly implicates the doctrine of sovereign
immunity. See United States v. Horn, 29 F.3d 754, 761 (1st Cir.
1994) (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 685
(1983)). Absent an express and unequivocal waiver, the United
States is immune from suit. Id. at 761-62; see also Lehman, 453
U.S. at 160-61. Waivers of sovereign immunity are to be strictly
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construed in favor of the United States and "must not be enlarged
beyond such boundaries as [the statute's] language plainly
requires." Horn, 29 F.3d at 762 (citing United States v. Nordic
Village, Inc., 503 U.S. 30, 33-34 (1992)); cf. Lehman, 453 U.S.
at 160-61 (limiting right to jury trial under ADEA).
The generalized language in subsection 633a(c)
(authorizing "such legal or equitable relief as will effectuate
the purposes of [the ADEA]") is insufficient to overcome either
the American Rule or sovereign immunity. Whatever else the
Congress may have intended to accomplish by its enactment of
subsection 633a(c), it made no express reference to attorney fee
awards against the United States. Furthermore, the broad
language in subsection 633a(c) relied on by Nowd "legal or
equitable relief" cannot be deemed an express statutory
authorization of attorney fee awards against the United States
without ignoring Congress' explicit incorporation of FLSA
216(b) which specifically provided for attorney fee awards in
private sector cases, notwithstanding the presence of the
identical phrase "legal or equitable relief" in ADEA 626(b) at
the time FLSA 216(b) was incorporated.
Were we to construe the phrase "legal or equitable
relief" as encompassing attorney fee awards against the United
States, Congress' explicit incorporation of FLSA 216(b) into
the private sector ADEA scheme would be reduced to an empty
exercise and no effect would be given to ADEA 633a(f), which
expressly confines the federal-employee ADEA claims procedure
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within a self-contained scheme and defines the remedial limits of
federal government liability under the ADEA. See Lehman, 453
U.S. at 168; see also Rodriguez v. United States, 480 U.S. 522,
525 (1987) ("'[W]here Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate . . . exclusion.'")
(citations omitted); State of Rhode Island v. Narragansett Indian
Tribe, 19 F.3d 685, 702 (1st Cir.), cert. denied, 115 S. Ct. 298
(1994). Accordingly, we affirm the district court ruling that
the ADEA itself does not authorize attorney fee awards against
the United States.
B. The EAJA
B. The EAJA
Alternatively, Nowd contends that he is entitled to an
attorney fee award against the United States by virtue of the
EAJA, which provides, in part, that "[u]nless expressly
prohibited by statute, a court may award reasonable fees and
expenses of attorneys . . . to the prevailing party in any civil
action brought . . . against the United States." 28 U.S.C.
2412(b) (emphasis added). The EAJA provides for awards against
the United States "to the same extent that any other party would
be liable under . . . the terms of any statute which specifically
provides for such an award." Id. (emphasis added). Thus, EAJA
2412(b) permits an attorney fee award against the United States
where a private litigant would be amenable to a fee award under
the statute establishing the particular cause of action. Id.;
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see also H.R. Rep. No. 1418, 96th Cong., 2d Sess. 8 (1980),
reprinted in 1980 U.S.C.C.A.N 4984, 4987.
As noted above, see supra p. 3, the ADEA expressly
imports various remedial provisions from the FLSA, including FLSA
216(b), which permits attorney fee awards in actions against
private sector employers. See 29 U.S.C. 626(b). Consequently,
a prevailing ADEA claimant is entitled to a reasonable attorney
fee award against a private sector employer. Thus, it is
entirely consistent with the EAJA's purpose that the United
States, qua employer, assume responsibility on a "completely
equal footing" with private sector employers in regard to
attorney fee awards under the ADEA. See H.R. Rep. No. 1418,
reprinted in 1980 U.S.C.C.A.N. at 4987 (citing Natural Resources
Defense Council v. E.P.A., 484 F.2d 1331 (1st Cir. 1973)).
Further, in keeping with the proviso to EAJA 2412(b), ADEA
633a(c) cannot be said by its silence, cf. supra Section A
to "expressly prohibit[]" attorney fee awards against the United
States. See 29 U.S.C. 633a(c). We therefore conclude that the
EAJA empowers the district courts, in their reasonable
discretion, to award prevailing ADEA claimants attorney fees and
expenses against the United States.
C. The Nowd Application
C. The Nowd Application
The United States nonetheless contends that Nowd is not
entitled to an attorney fee award under the EAJA, since the fee
application is deficient. See, e.g., Grendel's Den, Inc. v.
Larkin, 749 F.2d 945, 952 (1st Cir. 1984) (noting potential
8
adverse consequences of counsel's failure to maintain
contemporaneous time records). As the district court has yet to
decide whether to exercise its discretion in this case, it should
be afforded an opportunity to consider the Nowd application in
the first instance. See Foster v. Mydas Assocs., Inc., 943 F.2d
139, 144-45 (1st Cir. 1991) (noting that determination of fee
award by appellate court in first instance would usurp trial
court function); see also Grendel's Den, Inc., 749 F.2d at 952
(noting that absence of contemporaneous time records does not
invariably result in total disallowance of fee application, but
instead may warrant only a "substantial reduction"). Moreover,
it appears that Nowd did not have an adequate opportunity to
respond to the contention that the fee application was deficient.
The record reveals that the district court disallowed the fee
application, on other grounds, two days after the government
first opposed it as deficient in form. As Nowd should be given
an opportunity to respond, or amend the fee application, we
remand to the district court for further proceedings consistent
with this opinion.
CONCLUSION
CONCLUSION
In sum, we hold that the ADEA, 29 U.S.C. 633a, does
not mandate an award of attorney fees and expenses against the
United States for the benefit of a prevailing public sector
employee, but that the EAJA, 28 U.S.C. 2412(b), nonetheless
permits a discretionary award of attorney fees and expenses
against the United States for the benefit of a prevailing ADEA
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claimant.
For the foregoing reasons, we vacate the district court
For the foregoing reasons, we vacate the district court
order and remand for further proceedings consistent with this
order and remand for further proceedings consistent with this
opinion.
opinion.
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