
USCA1 Opinion

	




                            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                                          5          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                                          6          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.;                                                                       ___                                          7          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                                          9          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.            _______                                          10
