This сase presents the question whether, under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1967 & Supp. IV 1980) (ADEA or the Act), federal employees who gain redress at the administrative level are entitled to recover attorneys’ fees for legal services rendered at that stage. United States District Judge Oliver Gasch ruled that Congress had not provided the requisite statutory authorization for an award of fees in cases in which the process of administrative conciliation is successfully employed in the federal employee’s favor, and he accordingly denied appellant Bess Kennedy’s prayer for such an award against appellee William Whitehurst, the Acting Director of the District of Columbia Department of Human Services (DHS). Since the date of Judge Gasch’s ruling, two other district judges have considered the same issue and have reached the identical result, though each judge employed a slightly different reasoning. Although we too shall travel a somewhat different course than did Judge Gasch in considering the question, we agree that federal employees who prosecute successfully claims оf age discrimination under the ADEA at the administrative level are not entitled to an award of attorneys’ fees. Accordingly, we affirm.
I.
To the old adage that death and taxes share a certain inevitable character, federal judges may be excused for adding attorneys’ fees cases. The years that have elapsed since the Supreme Court confirmed the prevalence of the so-called “American Rule” that requires each party to bear its own counsel fees absent a contrary statutory provision or common law exception,
see Alyeska Pipeline Service Co. v. Wilderness
Society,
We may well expect this boom of litigation involving attorneys’ fees to continue. In the civil rights area in particular, Congress has wholeheartedly embraced the “private attorney general” rationale and accordingly has encouraged private action to implement public policy through the subsidization of the work of plaintiffs’ counsel by private and government defendants. The Supreme Court in
Newman v. Piggie Park Enterprises,
Nevertheless, courts considering prayers for attorneys’ fees must bear in mind the
Alyeska
Court’s admonition that specific statutory authorization for an award of fees is required before the incidence of counsel costs can be shifted.
Rodriguez,
It is against this backdroр that we consider appellant’s request for attorneys’ fees.
A. The Facts
Neither party questions the factual findings of the district judge. Appellant Bess Kennedy has since 1970 been an employee of the District of Columbia DHS and of its predecessor agency, the Department of Human Resources. In 1978 appellant, then a sixty-two-year-old white female employed as a GS-9 Social Service Representative, applied for a promotion to fill one of twelve vacant positions as a GS-11 Supervisory Social Service Representative. She also applied for a promotion to a position as a GS-11 Employee Development Specialist. Appellant was denied both promotions, the *954 first in November 1978 and the second in March 1979.
In August 1979 Mrs. Kennedy filed a complaint with the District of Columbia’s Office of Human Rights in which she alleged that the promotion denials were the result of discrimination on the bases of race, gender, and age. 5 In September 1979 appellant filed a complaint alleging only age discrimination with the United States Equal Employment Opportunity Commission (EEOC). 6 Mrs. Kennedy was assisted by counsel in the preparation of both complaints and in the administrative proceedings that followed.
The administrative efforts at resolution of the dispute proved successful, with no judicial proceedings of any kind required to secure the relief accorded appellant. The parties and the EEOC negotiated a settlement agreement that, as appellant notes, appears to have resolved the age discrimination claim in her favor and that provided for her retroactive promotion to the GS-11 level with an award of back pay. 7 The settlement agreement did not, however, provide for an award of attorneys’ fees.
After this success at the administrative level, appellant filed a request with the DHS for the cost of the legal services provided on her behalf before the EEOC. The DHS denied the request, contending that it lacked the statutory authority to award fees. 8 Mrs. Kennedy then filed in the district court the complaint that instituted the instant litigation, contending that, as a prevailing party 9 under the ADEA, she was entitled to an award of attorneys’ fees for the costs of counsel she incurred at thе administrative level. Appellant Kennedy thereupon moved for summary judgment, arguing that the language of the ADEA authorized an award of fees to a federal employee who prevails exclusively through administrative proceedings.
Assuming both that a competitive service employee of the DHS is a federal employee for the purposes of the ADEA and that federal employees have the same rights to attorneys’ fees under the Act as do private sector workers, the district court nonetheless held that the ADEA did not authorize an award of fees for legal services rendered at the administrative level.
Kennedy v. Whitehurst,
B. The Statutory Background
The relevant provisions of the ADEA are, regrettably, a model in imprecision. The ADEA was passed in 1967 to protect older members of the nation’s workforce from discrimination premised on age differences.
Lorillard v. Pons,
The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title ....
ADEA § 7(b), 29 U.S.C. § 626(b) (1976). The critical cross-reference for present purposes is to section 16 of the FLSA, 29 U.S.C. § 216 (1976 & Supp. IV 1980). In pertinent part, that section provides:
An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction .... The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the dеfendant, and costs of the action.
29 U.S.C. § 216(b) (1976 & Supp. IV 1980). This incorporation by reference makes it. clear that, at a minimum, a private sector employee who secures a judgment in litigation under the ADEA is additionally entitled to an award of attorneys’ fees against the defendant.
In 1974 Congress amended the ADEA to bring federal employees under the Act’s protective umbrella. As amended, section 15 of the ADEA, 29 U.S.C. § 633a (1976 & Supp. IV 1980), “prohibits age discrimination in federal employment.”
10
Lehman
v.
Nakshian,
Any person aggrieved 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 chapter.
Although this language is quite broad and tracks the wording of the provision of the ADEA covering private sector employees, 11 section 15 does not include the language contained in section 7 that incorporates the FLSA remedial scheme. Thus, in contrast to the ADEA private enforcement scheme dеtailed in section 7 through reference to FLSA section 16, the Act’s federal employ *956 ee compliance scheme contains no explicit reference to the provision of any form of attorneys’ fees. Rather, federal courts are simply empowered to grant such relief “as will effectuate the purposes” of the Act. 29 U.S.C. § 633a(c) (1976) (emphasis added).
Perhaps the most difficult and confusing issue in the instant case involves the relationship between the public and private sector enforcement schemes. In 1978 amendments to the ADEA, Congress added a subsection (f) to the federal compliance mechanism contained in section 15 that, literally read, mandates a complete divorce between the two schemes. The new subsection, 29 U.S.C. § 633a(f) (Supp. IV 1980), provides:
Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this chapter, other than the provisions of section 631(b) of this title and the provisions of this section.
Id.; see supra
n.10. As the district judge noted in the ease at bar, a strict reading of this subsection would require that questions involving attorneys’ fees under section 15— and, for that matter, all issues of relief and remеdies for federal employees under the ADEA — be resolved by exclusive reference to the terms of that section.
Kennedy,
As the government appellee notes, however, an opinion of the Supreme Court that issued subsequent to the district judge’s decision in this case casts additional light on the relationship between sections 7 and 15 of the ADEA. In
Lehman v. Nakshian,
We are left, then, with the following matrix. It is clear that Congress intended that sections 7 and 15 of the ADEA be distinct enforcement mechanisms; the Supreme Court’s holding in Nakshian clearly indicates that different rights and remedies may obtain under each of the two enforcement schemes. By the same token, the Court’s ruling suggests, as appellant notes, that the enforcement mechanisms for federal employees under the ADEA and Title VII are similar and should be construed in pari materia. As we shall discuss below, the Court’s decision in Nakshian provides grist for the mills of both the appellant and the government appellee.
C. The District Judge’s Ruling
The district judge properly treated appellant, a competitive service employee of the District of Columbia, as a federal employee for the purposes of the ADEA.
Kennedy,
Even this favorable assumption proved of no avail to Mrs. Kennedy, however. She argued in the district court that the ADEA should be read to permit a fee award for administrative legal services, just as similar language in Title VII had been construed to ground such awards.
See Smith v. Califano,
The district judge rejected the proposed analogy. Although he noted that both the ADEA and Title VII were appropriately given liberal construction, the
differences
between the enforcement schemes of each made clear that only under the Title VII regime is an award of attorneys’ fees permitted for administrative legal services. The district judge’s scrutiny of the relevant statutory language made clear that the authorization of attorneys’ fee awards is broader under Title VII than under the ADEA; while Title VII permits fee awards any “action or proceeding,” the FLSA language contained in the ADEA authorizes awards only to a “plaintiff or plaintiffs” who secure a “judgment” in an “action.”
12
Relying on a similar parsing of statutory language conducted by the Supreme Court in
New York Gaslight Club, Inc. v. Carey,
Recognizing the formalistic overtones to such a distinction, the district court found that a structural comparison of Title VII — • under which an award of fees for administrative legal services has been held authorized 13 — and the ADEA further dictated the conclusion that Congress did not contemplate an award of fees for legal services performed at the administrative level in the age discrimination context. While Title VII’s enforcement scheme mandates the exhaustion of administrative remedies before a lawsuit may be filed, the ADEA mechanism requires as a practical matter only that notice be given the government of the existence of a complaint. As the district judge put the matter, pursuit of ADEA administrative remedies is “optional and not a mandatory prerequisite to the filing of a civil action.” Id.
The district court concludеd that the enforcement procedures of the ADEA and Title VII were structured in a purposefully divergent fashion by the Congress: “in ADEA actions, unlike Title VII actions, administrative proceedings are not a pervasive and integral part of the overall scheme of enforcement.” Id. at 231. In particular, the district judge noted, ADEA administrative proceedings lack the “adversarial nature” of Title VII’s administrative process; whereas Title VII mandates the presentation of the complainant’s case at the admin *958 istrative level, all the ADEA demands at that stage is notice of a complaint. Id. at 230-31. In the absence of a sufficiently specific congressional authorization of fee awards at the administrative level, the district judge invoked the Alyeska presumption against the shifting of the cost of legal services and entered summary judgment in appellee’s favor.
D. Related Cases
Subsequent to the district court’s judgment in the instant case, that court reached the identical result in two other cases, albeit by somewhat divergent means. In
Muth v. Marsh,
In Swain v. Secretary, 28 Empl.Prac.Dec. (CCH) 1132, 574, at 24, 585 (D.D.C. Jan. 19, 1982), Judge Pratt similarly ruled that a federal ADEA complainant who secured relief through administrative proceedings was not entitled to an award of counsel fees.
Finding the issues in Swain “strikingly similar” to those the district court faced in Kennedy, Swain at 24,587, Judge Pratt concluded that both the language of the relevant FLSA provision and the statutory scheme of the ADEA indicates that Congress did not intend an award of attorneys’ fees at the administrative level to age discrimination claimants. He noted that in contrast to the administrative exhaustion requirement mandated by Titlе VII, the ADEA administrative scheme is only “an alternative option” to the commencement of judicial proceedings. Id. Thus, the district judge reasoned, because the ADEA enforcement scheme provided the complainant with the option of proceeding initially in federal court after simple administrative notice, the denial of counsel fees at the administrative stage was not an inappropriate result. 14
E. Summary of the District Court Rulings
Scrutiny of the district court opinions in Kennedy, Muth, and Swain reveals two distinct paths to the same result of denying a fee award to federal employees who prevail at the administrative level under the ADEA. Under the approach adopted by the Kennedy and Swain courts, federal and private sector employees are treated similarly for ADEA remedial purposes; 15 the necessary implication of this assimilation would seem to be that employees in neither class are entitled to an award of counsel fees when relief is obtained through administrative proceedings. 16 By contrast, under the approach adopted by the Muth court, *959 federal employees are deemed subject to a totally distinct ADEA enforcement regimen. The necessary corollary of embracing the reаsoning adopted by the Muth court would, however, apparently be that no federal employee is ever entitled to an award of attorneys’ fees under the ADEA, even where he prevails in exclusively judicial proceedings. In sum, each approach denies by implication an award to a group of ADEA prevailing parties not before the court — either to private sector complainants who prevail at the administrative level (Kennedy, Swain), or to federal employees who prevail in judicial proceedings (Muth).
II.
A. The Parties' Positions
In light of the detailed recitation of background information above, the parties’ respective positions on appeal may be briefly stated. Appellant Kennedy’s principal contention is that, because ADEA section 15 is “patterned after” comparable Title VII enforcement provisions, the ADEA section is properly read as incorporating the Title VII remedial scheme. Brief for Appellant at 5, 11 (quoting
Nakshian,
Appellant discounts the purported distinctions between the ADEA enforcement scheme and the mechanism that obtains under Title VII. Although acknowledging the obvious differences noted by the district judge, appellant contends that administrative procedures play vital roles under both the ADEA and Title VII. The absence in the ADEA’s attorneys’ fee provision of the “action or proceeding ” 19 language, appellant submits, does not evince a congressional intent to authorize fee awards only in cases of actual litigation. Rather, appellant contends, at the time the FLSA was passed, no administrative enforcement procedures existed, and, thus, no fee authorization for such proceedings was required to “make whole” a сlaimant. Brief for Appellant at 11-12. Appellant concludes that the subsequent development of an administrative reconciliation process necessarily implied the authorization for an award of attorneys’ fees.
Finally, appellant cites considerations of public policy in support of her position. The concerns that support a fee award to prevailing race and sex discrimination complaints are equally germane, appellant submits, in the age discrimination context. Similarly, she argues, the congressional policies of “making whole” victims of discrimination and of encouraging the private vindication of civil rights augur in favor of an award of counsel fees to federal employees who secure age discrimination relief at the administrative level. In appellant’s view, *960 the failure to permit such awards would, moreover, potentially create the anomaly that one who prevailed administratively would secure no fee award, while one who either lost at the administrative level or even bypassed it 20 but prevailed later in litigation would be reimbursed for the services of counsel. In effect, appellant contends, the approach adopted by the district court penalizes the age discrimination complainant who prevails at the administrative level and results in convolution of the enforcement scheme by discouraging dispute resolution prior to actual litigation.
The government appellee contends initially that the district court lacked jurisdiction over appellant’s prayer for fees because appellant allegedly filed her complaint at the administrative level in an untimely fashion and because she failed to exhaust administrative remedies. Brief for Appellee at 7 n.6. On the attorneys’ fees issue itself, appellee, adopting the position later embraced by the Muth court, argues initially that the Congress established a distinct enforcement scheme for federal employees, one that does not authorize an award of attorneys’ fees under any conditions.
Appellee relies heavily' on
Nakshian
in support of his position. The Court in that case made clear, appellee submits, that ADEA section 15 is separate and “completе in itself,”
Nakshian,
In the alternative, appellee contends that the language and structure of the general ADEA remedial scheme suggest that, while an award of counsel fees for work performed on behalf of federal claimants at the judicial level may be available, no such award is contemplated for legal services rendered at the administrative stage. Although conceding the similarities between the federal employee provisions of Title VII and those of the ADEA, appellee submits that the ADEA’s attorneys’ fee provision is considerably narrower in scope than that of Title VII: whereas Title VII authorizes an award of counsel fees to any federal employee who succeeds in an “action or proceeding," 42 U.S.C. § 2000e-5(k) (1976) (emphasis added), the ADEA permits comparable awards only in connection with an *961 “action.” Appellee argues that this linguistic distinction, when combined with the differing roles played by administrative proceedings under Title VII and the ADEA, suggests the absence of the congressional authorization required by Alyeska to ground an exception to the American Rule proscribing fee-shifting.
III.
A. Jurisdiction
As a preliminary matter, we must rule on the government appellee’s claim that the district court lacked jurisdiction to hear appellant’s prayer for attorneys’ fees. Appellee argues that, because Mrs. Kennedy’s discrimination complaints were allegedly filed in an untimely fashion with the relevant administrative agencies and because she failed to pursue to fruition her claims in those agencies, the district court was precluded as a matter of jurisdiction from hearing the instant case. With regard to the allegation of untimely filing, appellant responds that the timeliness requirement is not jurisdictional but rather is akin to a statute of limitations; accordingly, appellant argues, charges of untimeliness, however valid, are subject to waiver and estoppel and were here waived by appellee’s failure to press the arguments in the district court. Similarly, appellant contends both that the ADEA exhaustion requirement is not a jurisdictional matter and that, at any event, she in fact met thе requirement.
We agree with appellant’s position on both the timeliness and the exhaustion issues. To be sure, the requirements that a federal age discrimination complainant file a notice of complaint and exhaust available administrative remedies may be prerequisites for the institution of a lawsuit in federal court based on the discrimination allegation.
See, e.g., Milton v. Weinberger,
As for the timeliness dispute, our ruling that the ADEA’s timing requirements are not jurisdictional prerequisites is fortified by the Supreme Court’s recent decision in
Zipes v. Trans World Airlines,
With regard to the claim that appellant’s prayer for fees should be dismissed for her failure to exhaust administrative remedies, it would again appear that this requirement is not jurisdictional in character for the reasons stated above.
See Bethel,
*962 Accordingly, appellant's demand for attorneys’ fees was properly before the district court.
B. Analysis
As noted above, the district judge properly treated appellant, a competitive service employee of the District of Columbia, as subject to the ADEA’s federal employee provisions.
Kennedy,
This conclusion has a significаnt bearing on the analytical model that we apply to the resolution of the issue
sub. judice,
for it means — precisely as the district court feared — that the question must be resolved by reference to the language of section 15 alone.
See Kennedy,
Although the sole source of authorization for the fees requested by appellant is thus the language of section 15(c) of the ADEA, it is not the case that our focus must be solely on that subsection; indeed, the very language of section 15(c) mandating such relief as is necessary to implement the purposes of the ADEA suggests that the determination of appropriate remedies must be informed by the ADEA as a whole. Recognizing this interplay, appellant argues that a fee award in cases such as the instant one would facilitate the vindication of civil rights and stresses that the same language as that аppearing in ADEA section 15(c) has been held to authorize administrative fee awards under Title VII.
See Smith,
It is true, as appellant notes, that an award of fees for administrative legal services might contribute to the resolution of age discrimination complaints through agency processes and that this enhancement of the role of administrative proceedings might obviate frequent recourse to federal courts for relief. It is also true that a statutory provision need not contain the words “attorneys’ fees” to permit such awards; rather, it is sufficient if the Congress has “clearly indicated” that the provision should so be construed.
Fitzgerald v. United States Civil Service Comm’n,
We are, however, mindful of the Alyeska Court’s admonition that a specific, if not explicit, authorization is required to overcome the presumption against fee-shifting. In light of this admonition, the general language employed in section 15(c), and, quite significantly, the more limited role played by administrative proceedings under the ADEA, we have reached the conclusion that no award of fees may be made in the present case. The structure of the ADEA, the wording of section 15(c), and the logic of prior judicial decisions all lead to this result.
Although the language of section 15(c) may be “sweeping” and “exceptionally expansive,”
Bertrand v. Orkin Exterminating Co.,
Appellant places in this regard considerable reliance on a district court decision,
DeFries v. Haarhues,
We agree with the basic approach of the DeFries court; when the statutory language invites a consideration of “the purposes” of a piece of legislation to determine relief, scrutiny must be accorded the overall goals and structure of the statute. We need express no opinion, however, on the correctness of the result in DeFries, for judicial actions clearly play a role distinct from administrative proceedings in the ADEA enforcement scheme. We cannot agree with appellant that DeFries compels or even strongly suggests a finding that an award of fees for administrative legal services “effectuates the purposes” of the ADEA.
Upon close study of the ADEA remedial scheme, we are convinced that any mild “effectuation” of the purposes of the Act flowing from an award of counsel fees to one in appellant’s position is insufficient to overcome the hurdle posed by
Alyeska.
Notwithstanding appellant’s repeated invocation of Title VII and the similarity of the federal employee provisions of the ADEA to it, it rеmains the case that administrative proceedings are not intended to serve the same purposes under the two statutes. Under Title VII, the federal complainant
must
initially seek relief in the agency that has allegedly discriminated against him; if the complainant is dissatisfied with the agency’s final decision, he may in turn either appeal to another agency or, if he prefers, file suit directly in federal court after the
*964
expiration of thirty days from the date of the final ruling. At any event, the complainant under Title VII may file a federal court action once 180 days have elapsed from the date of the filing of the initial charge or the filing of the appeal, if the initial agency or the appellate body has not taken final action.
See
42 U.S.C. §§ 2000e-16(c) and (d) (1976),
incorporating
42 U.S.C. §§ 2000e-5(f) through (k) (1976);
Parker,
By contrast, under the ADEA “pursuit of a remedy through [administrative] channels is optional and not a mandatory prerequisite to the filing of a civil action.”
Kennedy,
Thus, we agree with the district judge that administrative proceedings under the ADEA are not a “pervasive and integral part of the overall scheme of enforcement.” Id.; accord Swain v. Secretary, 28 Empl. Prac.Dec. (CCH) 132, 574, at 24, 585 (D.D.C. Jan. 19, 1982). It is thus difficult to determine how an award of counsel fees for services performed in such optional proceedings could “effectuate the purposes” of the ADEA in any significant way. This conclusion is, moreover, reinforced when we examine the language of the attorneys’ fee provision under the private enforcement section of the ADEA. As noted above, that provision calls for the award of fees to any “plaintiff” who secures a “judgment” in an “action” brought under the Act; as the district judge noted, the litigative orientation of these terms is manifest. In both the New York Gaslight Club and Parker decisions, the respective tribunals in awarding administrative legal fees under Title VII emphasized the use of the disjunctive phrase “action or proceeding” as evidence of congressional intent to authorize such awards. By necessary implication, the absence of such language in the ADEA counsels against an award of fees in the instant case.
In response to this position, appellant contends that when initially enacted in 1967 no significant administrative procedures existed for which reimbursement for the work of counsel might be required. Brief for Appellant at 12. Thus, appellant contends, when Congress amended the ADEA in 1974 to cover federal employees, it must have intended to provide those employees with attorneys’ fees for administrative legal
*965
services for the administrative processes that were added in that year. Whatever the merits of this argument might be as a matter of theory, there is not a whit of evidence in the legislative history to support it; general remarks regarding the breadth of relief intended under section 15 cannot substitute for the sort of concrete indicia of congressional intent to award counsel fees needed to permit an exception to
Alyeska.
Moreover, in this spirit of reasoning by implication, we would note that Congress amended the ADEA in 1978 to provide,
inter alia,
that section 15 was not affected by any other substantive provision of the Act.
See
29 U.S.C. § 633a(f) (Supp. IV 1980). Thus, in amending the section as it did, Congress could quite easily have amended it further to provide explicitly for an award of attorneys’ fees under the circumstances at issue in the case at bar.
Cf. Nakshian,
In sum, the conjunction of the vague authorizing language of section 15(c), the more circumscribed role of administrative proceedings under the ADEA enforcement scheme, and the omission of the word “proceeding” from the attorneys’ fee provision in the private employee section of the statute combine to convince us that Congress did not intend to award counsel fees to an ADEA claimant in appellant’s position. We do not view this result as in any fashion inconsistent with Smith v. Califano, in which language identical to that of ADEA section 15(c) was held to authorize an award of attorneys’ fees for administrative legal work. That case involved federal employee rights under Title VII, and, as we have stressed above, administrative proceedings are clearly intended under that statute to play a central role in dispute resolution. Thus, although we express no opinion on the correctness of the Smith result, it is manifest that the two contexts are distinguishable notwithstanding the similarity of the statutory language. Moreover, we might note en passant that the same district judge who wrote the Smith decision issued the opinion under сhallenge in the instant case; apparently the differences in structure between the two statutes were sufficient to persuade him that the question of fee authorization under each was a distinct matter, and with that we agree.
Finally, we address briefly the arguments of policy proffered by appellant in support of her position. On what might be called the positive side of the ledger, appellant contends that the provision of attorneys’ fees for administrative proceedings under the ADEA will enhance the utility of those proceedings as a mode of dispute resolution, thus aiding all concerned and leading to the “conservation of judicial time.”
Parker,
IV.
Given the confusing and arguably conflicting decisions in the area of the authority of federal courts to award federal employees fees for legal services performed under civil rights legislation at the administrative level, it is useful for us to summarize what our holding today does not involve. We do not hold that federal ADEA claimants have no entitlement to a fee award for the services of counsel rendered in connection with judicial actions. We thus do not by our holding in the case at bar express any view on the argument of appellee, apparently embraced by the court in Muth v. Marsh, that section 15 provides an insufficient authorization for any award of counsel fees irrespective of the nature of the action. 25
Secondly, we do not today express a view on the availability of fee awards to private sector employees for legal services performed under the ADEA at the administrative level. Since the district judge in the instant case assumed that private sector and federal employees enjoy the same right to administrative level fee awards, his decision involved as a necessary concomitant a ruling that private sector employees have no such fee right as well. As discussed above, we have not made the same assumption of identity of rights, and thus we express no conclusion on the availability of administrative counsel awards to private sector employees proceeding under section 7 of the ADEA.
Our holding today is only that an award of attorneys’ fees and costs may not be made under section 15 of the ADEA to a federal employee who secures relief solely through administrative processes. Because the district judge reached the same conclusion, his decision is
Affirmed.
Notes
.
See
4 Fed. Attorney Fee Awards Rep. 2-3 (Harcourt Brace Jovanovich) No. 6 (October 1981). Before the decision in
Alyeska Pipeline Service Co. v. Wilderness Society,
.
Compare Newman v. Piggie Park Enterprises,
.
See, e.g., Maher v. Gagne,
.
See, e.g., Copeland v. Marshall,
. Complaint,
Kennedy v. Department of Human Resources,
District of Columbia Office of Human Rights Docket No. 9--DC-598 (filed Aug. 22, 1979), Joint Appendix (J.A.) at 19-20. On May 14, 1980, this complaint was dismissed by the Office of Human Rights because investigation revealed no evidence to support the discriminatiоn allegations. Memorandum from Anita Bellamy Shelton, Director, Equal Employment Opportunity, Office of Human Rights, to James Buford, Director, Office of Human Rights (May 14, 1980), J.A. at 26. After that dismissal, however, the complaint was remanded to the Office of Human Rights for further consideration.
See Kennedy v. Whitehurst,
. Charge of Age Discrimination, Equal Employment Opportunity Commission Charge No. 032-798025 (Sept. 10, 1979), J.A. at 17-18.
. An employee of the Equal Employment Opportunity Commission (EEOC) concluded that “age was a factor” in the denial of a promotion to appellant and recommended certain remedial action as a response. Letter from May Short, Equal Opportunity Specialist, Equal Employment Opportunity Commission, to Albert P. Russo, Director, Department of Human Resources (Dec. 13, 1979), J.A. at 21. The Department of Human Resources, although it carried out the recommended remedial action, conceded only that it “appearjed] that age was a factor” in the denial of a promotion to appellant. Letter from Albert P. Russo, Director, Department of Human Resources, to May Short, Equal Opportunity Specialist, Equal Employment Opportunity Cоmmission (Jan. 23, 1980), J.A. at 22.
Although they pressed the point in the district court, appellees do not contend here that appellant was not a prevailing party under the Age Discrimination in Employment Act (ADEA). Accordingly, we assume, as did the district judge, that appellant prevailed under the ADEA.
See Kennedy
v.
Whitehurst,
. Letter from William H. Whitehurst, Acting Director, Department of Human Resources, to Joel P. Bennett, Esq. (Mar. 28, 1980), J.A. at 25.
. See supra note 7.
. ADEA section 15(a) provides:
All personnel actions affecting employees or applicants for employment who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid from non-appropriated funds), in the United States Postal Service and Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on age.
29 U.S.C. § 633a(a) (Supp. IV 1980).
. Section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), provides, in pertinent part, that any court enforcing the statute “shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter ... . ”
. Compare § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (1976), with Fair Labor Standards Act § 16(b), 29 U.S.C. § 216(b) (Supp. IV 1980).
.
See Smith v. Califano,
. Mention should also be made at this point of
DeFries
v.
Haarhues,
. This similarity of treatment was an explicit assumption in
Kennedy. See
. This result follows necessarily frоm the express assimilation in Kennedy of private and federal sector employees’ rights to administrative stage counsel fees; it follows by implication from the language of the Swain opinion and by that court’s express reliance on Kennedy. See also supra note 15.
. The relevant language in the Title VII federal employee context is, in fact, such relief “as will effectuate the policies” of the statute. 42 U.S.C. § 2000e 16(b) (1976). We assume that no substantive difference was intended in the substitution in the ADEA of the word “purposes” for Title Vil’s “policies.”
. The principal sponsor of section 15 of the ADEA, Senator Bentsen of Texas, observed that “[t]he measures used to protect Federal employees [from age discrimination] would be substantially similar” to those contained in the federal employee provisions of Title VII. 118 Cong.Rec. 24,397 (1972).
. See text accompanying note 12 supra.
. All parties agree that under the ADEA enforcement scheme applicable to federal employees the complainant may simply supply the requisite thirty days’ notice and proceed directly thereafter in federal court; no invocation of administrative remedies is required. 29 U.S.C. § 633a(d) (1976).
. The federal employee provisions of Title VII include § 717(d), 42 U.S.C. § 2000e-16(d) (1976), which specifically incorporates several of the private employee provisions of the statute. Included in this incorporation is § 706(k), 42 U.S.C. § 2000e-5(k) (1976), which specifically provides for the award of attorneys’ fees to a prevailing party. Thus, as this court noted in
Parker v. Califano,
. Following the latter course, Mrs. Kennedy filed such a complaint on September 10, 1979, and secured all relief she requested, save for attorneys’ fees. That she also had pending a complaint with the District of Columbia’s Of *962 fice of Human Rights does not, it is clear, affect her rights to sue under the ADEA.
. Section 15(a) of the ADEA is applicable, inter alia, to personnel actions in “those units of the government of the District of Columbia having positions in the competitive service ____” 29 U.S.C. § 633a(a) (Supp. IV 1980).’ Mrs. Kennedy was, of course, employed in the competitive service of the District of Columbia at the time of the alleged employment discrimination.
. There have been
post-Alveska
cases in which a fee award has been made in the absence of express authorization.
See, e.g., Smith v. Califano,
. Indeed, in light of the centrality of
judicial
actions to the remedial scheme of the ADEA, one could at least argue that attorneys’ fees for work performed hi connection with court actions
are
necessary
to effectuate the remedial
purposes of the Act.
See, e.g., DeFries v. Haarhues,