Palmer v. General Services Administration

787 F.2d 300, 40 Fair Empl. Prac. Cas. (BNA) 630
Court of Appeals for the Eighth Circuit·Decided March 18, 1986·No. No. 85-1121·Published·Cited by 2 cases

Opinions

FAGG, Circuit Judge.

Alfred Palmer appeals the dismissal of his civil complaint brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. We affirm.

Palmer is a former employee of the General Services Administration (GSA). In 1980, Palmer filed an administrative complaint against GSA claiming it had discriminated against him because of his age in violation of the ADEA. Palmer eventually prevailed on that complaint and was awarded both a retroactive promotion and back pay. GSA, however, refused to award Palmer attorneys’ fees and costs (collectively attorneys’ fees or fees).

Palmer then instituted the present judicial action seeking an award of fees against GSA. The district court rejected Palmer’s claim and dismissed his action after concluding that the ADEA did not authorize it to award fees to someone in Palmer’s position. This appeal followed.

A single issue is presented by Palmer’s appeal. Specifically, is this court authorized to award attorneys’ fees to a federal employee who prevails at the administrative level on a claim of age discrimination brought under the ADEA?

As an initial matter, we note that the issue presented in this case was addressed by the Court of Appeals for the District of Columbia in Kennedy v. Whitehurst, 690 F.2d 951 (D.C.Cir.1982). In that case, a claim of attorneys’ fees was filed in federal district court by a federal employee who like Palmer had prevailed on an age discrimination complaint at the administrative level. See id. at 953-54.

As here, the district court rejected the employee’s claim and refused to award fees. On appeal, the court of appeals affirmed the district court, concluding it was not authorized to award fees “to a federal employee who secures relief [on his ADEA claim] solely through administrative processes.” Id. at 966. Like the court in Kennedy, we are constrained to conclude that we have no authority to make an award of fees in this case.

[301] Because any liability imposed in this case will run against the federal government, the doctrine of sovereign immunity imposes an initial barrier to Palmer’s claim. Under that doctrine, this court is without authority to impose any type of liability on the government, unless an “unequivocally expressed” congressional waiver is present. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980)). Additionally, even if Congress has waived the government’s immunity in a particular case, the terms and conditions of that waiver must be strictly and narrowly construed and all doubts must be resolved in favor of the government. Premachandra v. Mitts, 753 F.2d 635, 641 (8th Cir.1985) (en banc); see also Tongol v. Donovan, 762 F.2d 727, 730 (9th Cir.1985).

Underscoring the overriding principle of sovereign immunity in this case is the American Rule of attorneys’ fees. Under that rule, absent express statutory authorization to the contrary, each party is ordinarily required to pay its own attorneys’ fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247-62, 95 S.Ct. 1612, 1616-24, 44 L.Ed.2d 141 (1975); see also Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983); Cornelia v. Schweiker, 728 F.2d 978, 981 (8th Cir.1984); see generally Alyeska, 421 U.S. at 260 n. 33, 95 S.Ct. at 1623 n. 33; Marek v. Chesny, — U.S. -, 105 S.Ct. 3012, 3036-39, 87 L.Ed.2d 1 (1985) (Brennan, J., dissenting) (both listing numerous specific attorneys’ fees provisions adopted by Congress).

Further, the American Rule traditionally applies in all cases, including those in which the government has waived sovereign immunity and consented to suit. Consequently, “a general waiver of sovereign immunity should not be construed to extend to attorney’s fees unless Congress has clearly indicated that it should.” Fitzgerald v. United States Civil Service Commission, 554 F.2d 1186, 1189 (D.C.Cir. 1977). Rather, in addition to a general waiver of immunity, Congress must in some way expressly indicate its intent to depart from the general rule that each party is to pay its own fees.

In light of these principles, the appropriate scope of our inquiry is whether Congress, in addition to a general waiver of sovereign immunity, has “clearly and unequivocally,” Lehman, 453 U.S. at 162, 101 S.Ct. at 2702, by “specific and explicit” statutory provision, Alyeska, 421 U.S. at 260, 95 S.Ct. at 1623, provided for the recovery of attorneys’ fees by a federal employee who successfully prosecutes an ADEA claim at the administrative level. To answer this question, “the starting point for our analysis must be the plain language of the [ADEA] itself.” United States Marshals Service v. Means, 741 F.2d 1053, 1056 (8th Cir.1984) (en banc).

As originally enacted, the ADEA was not applicable to federal employees. In 1974, however, Congress amended the ADEA for the specific purpose of including federal employees within the scope of the Act. To accomplish this purpose, Congress, rather than simply incorporate federal employees within the existing provisions of the ADEA, adopted a new provision applicable only to federal employees.

This provision, section 15, 29 U.S.C. § 633a, authorizes federal employees to challenge potentially discriminatory decisions both administratively and judicially. Id. § 633a(b)-(d). And, with respect to the remedies available to federal employees who have been discriminated against, section 15 authorizes this court to award “such legal or equitable relief as will effectuate the purposes of [the ADEA].” Id. § 633a(c).

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Palmer v. General Services Administration, 787 F.2d 300, 40 Fair Empl. Prac. Cas. (BNA) 630 (8th Cir. 1986).

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Palmer v. General Services Administration
787 F.2d 300 (Eighth Circuit, 1986)