no final agency action for purposes of the APA.
As explained previously, plaintiff contends that it was futile for him to seek administrative review. He states that defendants always took the position that he had simply been "detailed" to Batavia and that the was therefore not entitled to a hearing. The regulations do not indicate that an employee may file a grievance to contest a detail. Plaintiff, of course, maintains that in reality he had been permanently transferred to Batavia and that defendants simply described this as a detail to deny him his rights.
The important point, however, is that plaintiff did not even attempt to pursue the matter administratively beyond his single letter to Puri. If he believed that his transfer was in fact permanent, he should have filed a grievance and requested a hearing. Whether the hearing was granted or not, only when the VA's action became final, could plaintiff have sought review of that action under the APA.
The essential defect with the proposed APA claim, then, is that while the gravamen of the claim is that plaintiff was denied procedures to which he was entitled, plaintiff never sought to avail himself of those procedures. Having failed to do so, plaintiff has not exhausted his administrative remedies, and there is no "final" agency action to review in this Court.
I also note that plaintiff complains about a number of other actions taken by defendants, such as late issuance of his performance evaluations, denial of staff privileges, and unfair, incorrect performance appraisals. Because these matters are simply alleged factually in the complaint as having occurred (sometimes with the vague assertion that they were "in violation of law and regulations," see, e.g., Proposed Amended Complaint P 44), and because the proposed Title 38 and APA claims simply allege that plaintiff's procedural rights have been violated, it is not clear whether plaintiff contends that these actions also entitled him to some procedural rights which he was denied. If those are separate claims, however, they also fail to state a claim under the facts here because again plaintiff has not exhausted his administrative remedies. Plaintiff alleges that he sometimes expressed displeasure with some of these actions, and that he occasionally indicated an intention to fight them, but he has not shown that he actually sought to pursue any administrative remedies. Again, having not attempted to use any administrative procedures, plaintiff cannot seek review under the APA based on his assertion that those procedures were denied to him.
I conclude, therefore, that plaintiff's current claim under Title 38, and his proposed claims under Title 38 and the APA, cannot stand. Accordingly, the second cause of action must be dismissed, and the motions to amend the Title 38 claim, to add a claim under the APA, and for summary judgment on these claims, must be denied. The only remaining claim, then, is the claim under the ADEA.
IV. Defendants' Motion to Dismiss the ADEA Claim Against Puri and Manley
Defendants move to dismiss the ADEA action against Puri and Manley. Defendants contend that in an ADEA action by a federal employee, the only appropriate defendant is the agency head, in his official capacity.
I agree. Although the Second Circuit has not spoken on this issue, the majority of courts which have addressed the issue have held that the agency head is the proper defendant. See, e.g., Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir.), cert. denied, 481 U.S. 1050, 95 L. Ed. 2d 840, 107 S. Ct. 2183 (1987); Ellis v. USPS, 784 F.2d 835, 838 (7th Cir. 1986); Smith v. Office of Personnel Mgmt., 778 F.2d 258, 262 (5th Cir. 1985), cert. denied, 476 U.S. 1105, 90 L. Ed. 2d 358, 106 S. Ct. 1949 (1986); Healy v. USPS, 677 F. Supp. 1284, 1288-89 (E.D.N.Y. 1987). Although plaintiff contends that these cases are based on a flawed analysis of the ADEA, I am not persuaded by that argument.
In addition, to the extent that plaintiff seeks to hold Manley and Puri liable in their individual capacities, the action against them must be dismissed because individuals cannot be held liable under the ADEA. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.), cert. denied, 130 L. Ed. 2d 600, 115 S. Ct. 666 (1994); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir. 1993), cert. denied, 127 L. Ed. 2d 372, 114 S. Ct. 1049 (1994); Dundas v. Convalescent Hospital for Children, 92-CV-6005L (W.D.N.Y. Mar. 9, 1995); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (individuals cannot be held liable under Title VII).
V. Defendants' Motion to Strike Demands for Jury Trial and for Compensatory and Punitive Damages and Attorney's Fees
Defendants also move for an order striking plaintiff's demand for a jury trial on the ground that there is no right to a jury trial in an ADEA action by a federal employee or under Title 38. See Lehman v. Nakshian, 453 U.S. 156, 168-69, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981).
Plaintiff concedes that he is not entitled to a jury trial on the ADEA claim. See Plaintiff's Supplemental Brief (Item 89) at 1-2. Plaintiff's demand for a jury trial was based on his attempted assertion of civil-rights claims. Since the ADEA claim is the only claim remaining, defendant's motion is granted.
Defendants move to strike plaintiff's demands for compensatory and punitive damages and attorney's fees, on the ground that such damages and fees are not available in this action. See Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 147-48 (2d Cir. 1984); Agugliaro v. Brooks Bros., Inc., 802 F. Supp. 956, 964 (S.D.N.Y. 1992).
Again, plaintiff concedes that compensatory and punitive damages are not available under the ADEA, and states that those damages were sought only pursuant to plaintiff's other claims. See Plaintiff's Reply to Defendants' Memorandum of Law (Item 82) at 6. Defendants' motion to strike the demand for punitive and compensatory damages is therefore granted.
Defendants contend that attorney's fees are not available in an ADEA action by a federal employee against the government. In support of this assertion, defendants rely on Palmer v. GSA, 787 F.2d 300 (8th Cir. 1986), in which a two-to-one majority held that because Congress, in enacting section 15 of the ADEA, 29 U.S.C. § 633a, which makes the ADEA applicable to federal employees, did not provide for attorney's fee awards, the court had no authority to award such fees to a federal employee plaintiff. Defendants also cite Lewis v. Federal Prison Indus., Inc., 953 F.2d 1277, 1282 (11th Cir. 1992), which reached the same conclusion.
Plaintiff argues that these cases were wrongly decided, and urges the court to follow the dissent in Palmer, in which Judge Heaney opined that attorney's fees should be allowed.
Although the Second Circuit has not spoken on this issue, "the courts which have addressed the issue of whether a federal employee may recover fees for administrative efforts by counsel have uniformly held that such an award is not authorized under section 15 of the ADEA, 29 U.S.C. § 633a, and in consideration of the government's sovereign immunity." Landry v. National Bd. of Med. Examiners, No. 86-6819, 1987 U.S. Dist. LEXIS 5360 *7 (E.D.Pa. June 19, 1987). "These cases make it clear that the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a (ADEA) does not provide for an award of attorney fees in public sector cases." Hicks v. Cheney, No. 92-2123, 1994 U.S. Dist. LEXIS 20348 *2, 65 Fair Empl. Prac. Cas. (BNA) 508 (W.D.Pa. June 29, 1994). See also Edwards v. Shalala, 846 F. Supp. 997, 1002 n. 8 (N.D.Ga. 1994) ("Though liquidated damages and attorney's fees are provided for in the private-action portion of the ADEA, such relief is not available when proceeding against the federal government under § 633a"), aff'd, 64 F.3d 601 (11th Cir. 1995). Although plaintiff cites some district court authority to the contrary, those cases were decided prior to Palmer and Lewis
Plaintiff contends that fees should be allowed here because some courts have allowed attorney's fees in Title VII actions against the government. Plaintiff argues that the reasoning of those cases is applicable here as well.
As the majority in Palmer pointed out, however, "when Title VII was amended to include [federal] employees, 42 U.S.C. § 2000e-16, express provision was made for the awarding of attorneys' fees, id. § 2000e-16(d). By contrast, when Congress amended the ADEA to include federal employees, section 15 contained no attorneys' fees provision even though section 15 was patterned in part on key provisions of the federal employees' section of Title VII." 787 F.2d at 302. In this regard, therefore, I do not believe that cases decided under Title VII are apposite to the case at bar.
The Supreme Court has cautioned that courts should not create an entitlement to attorney's fees absent express congressional authorization. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 260-62, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). No such authorization exists here, and in accordance with the majority of courts that have addressed the issue, I find that an award of attorney's fees is not available in this action. Defendants' motion to strike the demand for attorney's fees is therefore granted.
Plaintiff's motion (Item 68) to amend the complaint and to conform the pleadings to the proof is denied. Plaintiff's motion (Item 70) for partial summary judgment is denied.
Defendants' motion (Item 67) to dismiss all the claims against defendants Puri and Manley is granted. Defendants' motion to dismiss the second cause of action is granted, and the second cause of action is dismissed in its entirety. Defendants' motion to strike plaintiff's demands for a jury trial, compensatory and punitive damages, and attorney's fees, is granted.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
January 5, 1996.