B-198571, APRIL 6, 1982, 61 COMP.GEN. 326

B-198571: Apr 6, 1982

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GENERAL ACCOUNTING OFFICE - JURISDICTION - ATTORNEY FEE CLAIMS - DISCRIMINATION COMPLAINT CASES EMPLOYEE FILED DISCRIMINATION COMPLAINT AND WAS AWARDED RETROACTIVE PROMOTION IN 1979. CLAIM FOR ATTORNEY FEES IS DENIED SINCE GENERAL ACCOUNTING OFFICE (GAO) IS WITHOUT AUTHORITY UNDER TITLE VII OF CIVIL RIGHTS ACT OF 1964. REGULATIONS AUTHORIZING PAYMENT OF ATTORNEY FEES IN DISCRIMINATION CASES WERE ISSUED SUBSEQUENT TO THIS EMPLOYEE'S CASE AND ARE NOT RETROACTIVELY EFFECTIVE. ATTORNEYS - FEES - CIVIL SERVICE REFORM ACT OF 1978 - "APPROPRIATE AUTHORITY" DECISIONS - REVIEW - BACK PAY ACT REGULATIONS EMPLOYEE FILED DISCRIMINATION COMPLAINT AND WAS AWARDED RETROACTIVE PROMOTION AS REMEDY UNDER TITLE VII OF CIVIL RIGHTS ACT.

B-198571, APRIL 6, 1982, 61 COMP.GEN. 326

GENERAL ACCOUNTING OFFICE - JURISDICTION - ATTORNEY FEE CLAIMS - DISCRIMINATION COMPLAINT CASES EMPLOYEE FILED DISCRIMINATION COMPLAINT AND WAS AWARDED RETROACTIVE PROMOTION IN 1979. CLAIM FOR ATTORNEY FEES IS DENIED SINCE GENERAL ACCOUNTING OFFICE (GAO) IS WITHOUT AUTHORITY UNDER TITLE VII OF CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. 2000E-5(K) AND 2000E-16, TO CONSIDER DISCRIMINATION COMPLAINTS OR CLAIMS FOR ATTORNEY FEES INCIDENT TO SUCH COMPLAINTS. REGULATIONS AUTHORIZING PAYMENT OF ATTORNEY FEES IN DISCRIMINATION CASES WERE ISSUED SUBSEQUENT TO THIS EMPLOYEE'S CASE AND ARE NOT RETROACTIVELY EFFECTIVE. ATTORNEYS - FEES - CIVIL SERVICE REFORM ACT OF 1978 - "APPROPRIATE AUTHORITY" DECISIONS - REVIEW - BACK PAY ACT REGULATIONS EMPLOYEE FILED DISCRIMINATION COMPLAINT AND WAS AWARDED RETROACTIVE PROMOTION AS REMEDY UNDER TITLE VII OF CIVIL RIGHTS ACT. CLAIMS FOR ATTORNEY FEES UNDER BACK PAY ACT, AS AMENDED, 5 U.S.C. 5596, IS DENIED SINCE EMPLOYEE IS APPEALING TO GAO ONLY AGENCY'S DENIAL OF ATTORNEY FEES WHICH IS NOT PERMITTED UNDER REGULATIONS IMPLEMENTING THE BACK PAY ACT.

MATTER OF: TRINIE A. HELLMANN - ATTORNEY FEES - DISCRIMINATION COMPLAINT, APRIL 6, 1982:

ISSUE

THE ISSUE IN THIS DECISION IS THE ENTITLEMENT OF AN EMPLOYEE TO ATTORNEY FEES INCIDENT TO HER DISCRIMINATION COMPLAINT THAT RESULTED IN AN AWARD OF A RETROACTIVE PROMOTION. WE HOLD THAT OUR OFFICE IS WITHOUT JURISDICTION TO CONSIDER DISCRIMINATION COMPLAINTS OR CLAIMS FOR ATTORNEY FEES UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED. IN ADDITION, REGULATIONS AUTHORIZING THE PAYMENT OF ATTORNEY FEES BY FEDERAL AGENCIES UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 WOULD NOT BE APPLICABLE TO THIS CASE BECAUSE THE RELIEF SOUGHT BY THE COMPLAINT WAS GRANTED PRIOR TO THE ISSUANCE OF THESE REGULATIONS. FURTHERMORE, WE FIND NO AUTHORITY UNDER THE BACK PAY ACT, AS AMENDED, FOR PAYMENT OF ATTORNEY FEES UNDER THESE CIRCUMSTANCES.

BACKGROUND

THIS DECISION IS IN RESPONSE TO THE APPEAL BY MS. TRINIE A. HELLMANN FROM OUR CLAIMS GROUP SETTLEMENT, Z-2819117, MARCH 14, 1980, DENYING HER CLAIM FOR ATTORNEY FEES. IN PRESENTING THIS CLAIM, MS. HELLMANN HAS BEEN REPRESENTED BY HER ATTORNEY, MR. SHELBY W. HOLLIN.

MS. HELLMANN, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, FILED A DISCRIMINATION COMPLAINT ON MARCH 2, 1979, REGARDING A PROMOTION ACTION. FOLLOWING AN INVESTIGATION IT WAS FOUND THAT MS. HELLMANN WAS DENIED PROMOTION TO GRADE GS-11 BECAUSE OF HER SEX, AND ON AUGUST 3, 1979, THE AGENCY GRANTED HER A RETROACTIVE PROMOTION TO GRADE GS-11 EFFECTIVE FEBRUARY 25, 1979. MS. HELLMANN'S CLAIM FOR REIMBURSEMENT OF ATTORNEY FEES IN CONNECTION WITH THE DISCRIMINATION COMPLAINT WAS DENIED BY THE AIR FORCE AND OUR CLAIMS GROUP.

ON APPEAL MR. HOLLIN ARGUES ON BEHALF OF MS. HELLMANN THAT REIMBURSEMENT OF ATTORNEY FEES IS APPROPRIATE UNDER THE BACK PAY ACT, 5 U.S.C. 5596, AS AMENDED BY THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, 92 STAT. 1111, 1216, OCTOBER 13, 1978, AND UNDER THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. 2000E-5(K) (1976). IN ADDITION, MR. HOLLIN ARGUES THAT OUR OFFICE RETAINS THE AUTHORITY TO REVIEW CLAIMS FOR ATTORNEY FEES DESPITE LANGUAGE TO THE CONTRARY IN RECENTLY PUBLISHED FINAL REGULATIONS IMPLEMENTING THE BACK PAY ACT. SEE 46 FED.REG. 58271, DECEMBER 1, 1981.

DISCUSSION

WE NOTE THAT MS. HELLMANN'S DISCRIMINATION COMPLAINT WAS FILED UNDER PROCEDURES SET FORTH IN TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. 2000E-16 (1976), AND 29 C.F.R.PART 1613. HOWEVER, WE HAVE HELD THAT IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO INVESTIGATE OR RENDER DECISIONS ON CLAIMS OF DISCRIMINATION IN EMPLOYMENT IN OTHER AGENCIES OF THE GOVERNMENT. SEE MARTHA B. POTEAT, B-196019, APRIL 23, 1980; CLEM H. GIFFORD, B-193834, JUNE 13, 1979.

WITH REGARD TO THE PAYMENT OF ATTORNEY FEES UNDER TITLE VII OF THE CIVIL RIGHTS ACT, WE HAD PREVIOUSLY HELD THAT FEDERAL AGENCIES HAD NO AUTHORITY TO PAY SUCH FEES ADMINISTRATIVELY IN THE ABSENCE OF SPECIFIC LEGISLATION OR APPROPRIATE REGULATIONS. SEE POTEAT, SUPRA, AND DECISIONS CITED THEREIN. HOWEVER, ON APRIL 9, 1980, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) ISSUED INTERIM REVISED REGULATIONS AUTHORIZING THE PAYMENT OF ATTORNEY FEES BY FEDERAL AGENCIES INCIDENT TO THE SETTLEMENT OF DISCRIMINATION COMPLAINTS. 45 FED.REG. 24130 (PUBLISHED IN 29 C.F.R. 1613.271 (1981)). ACCORDING TO THE EEOC'S SUPPLEMENTARY INFORMATION ACCOMPANYING THE REVISED REGULATIONS, THESE REGULATIONS APPLY ONLY TO PENDING AND FUTURE COMPLAINTS AS OF THEIR EFFECTIVE DATE, APRIL 11, 1980. THE NEW AUTHORITY, THEREFORE, WOULD NOT APPLY TO MS. HELLMANN'S CLAIM. POTEAT, SUPRA.

AS IS THE CASE WITH DISCRIMINATION COMPLAINTS, THERE IS NO RIGHT OF APPEAL TO OUR OFFICE ON CLAIMS FOR ATTORNEY FEES UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND 29 C.F.R. 1613.271 WHICH HAVE BEEN DENIED BY AN AGENCY OR THE EEOC. THEREFORE, WE CONCLUDE THAT WE ARE WITHOUT AUTHORITY TO CONSIDER CLAIMS FOR ATTORNEY FEES ARISING OUT OF DISCRIMINATION COMPLAINTS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964.

AS TO MR. HOLLIN'S CLAIM UNDER THE BACK PAY ACT, AS AMENDED, WE NOTE THAT WITH THE ENACTMENT OF THE CIVIL SERVICE REFORM ACT, THE BACK PAY ACT NOW PROVIDES FOR THE PAYMENT OF "REASONABLE ATTORNEY FEES" RELATED TO THE FINDING OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. 5 U.S.C. 5596(B)(1)(A)(II) (SUPP. III 1979). HOWEVER, WE BELIEVE THIS CLAIM FOR ATTORNEY FEES UNDER THE BACK PAY ACT MUST BE DENIED FOR THE FOLLOWING REASON.

AS NOTED ABOVE, THE EMPLOYEE'S COMPLAINT WAS FILED UNDER THE PROCEDURES OF TITLE VII OF THE CIVIL RIGHTS ACT, AND THE REMEDY WAS GRANTED UNDER THAT AUTHORITY, NOT UNDER THE BACK PAY ACT. MOREOVER, UNDER THE BACK PAY ACT AND THE IMPLEMENTING REGULATIONS, THERE IS NO APPEAL TO GAO OF THE CLAIM FOR ATTORNEY FEES UNDER THESE CIRCUMSTANCES. REGULATIONS ISSUED PURSUANT TO THE BACK PAY ACT PROVIDE IN SECTION 550.806(A) THAT THE REQUEST FOR ATTORNEY FEES MAY BE PRESENTED ONLY TO THE APPROPRIATE AUTHORITY THAT CORRECTED OR DIRECTED CORRECTION OF THE PERSONNEL ACTION. THE REGULATIONS ALSO PROVIDE IN SECTION 550.806(G) THAT THE AWARD OF ATTORNEY FEES AND THE AMOUNT OF SUCH FEES IS SUBJECT TO REVIEW ONLY IF PROVIDED FOR BY STATUTE OR REGULATION. 46 FED.REG. 58276-7, DECEMBER 1, 1981. IN THE PRESENT CASE MS. HELLMANN'S CLAIM FOR ATTORNEY FEES WAS PRESENTED TO THE AIR FORCE, THE AGENCY WHICH CORRECTED THE PERSONNEL ACTION, AND THE CLAIM WAS DENIED. WE FIND NO AUTHORITY TO CONSIDER A CLAIM FOR ATTORNEY FEES SEPARATE AND APART FROM A CLAIM FOR BACKPAY UNDER THE BACK PAY ACT.

ACCORDINGLY, WE SUSTAIN OUR CLAIMS GROUP SETTLEMENT DENYING MS. HELLMANN'S CLAIM FOR ATTORNEY FEES.