

                  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.                                   

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          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                

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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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