dissenting.
I respectfully dissent. In my view, the majority opinion ignores the intent of Congress to give individuals who have been discriminated against because of their age the same remedies that they would have had if they had been victims of race or sex discrimination. It will also discourage settlement of cases at the administrative level and will lead to an increased filing of ADEA cases in the federal courts.
Although the ADEA does not expressly state that an agency may award attorneys’ fees, it does state that “the Equal Employment Opportunity Commission is authorized to enforce the [federal employee section of the Act] through appropriate reme*303dies * * * as will effectuate the policies of this section.” 29 U.S.C. § 633a(b).
Identical statutory language was construed in Smith v. Califano, 446 F.Supp. 530 (D.D.C.1978), a Title VII case, to authorize the award of administrative attorneys’ fees by an agency:
The Supreme Court has emphasized that one of the central policies of Title VII is to make whole the person who has been subjected to discrimination, and an award of attorneys’ fees is a significant means of accomplishing that. Thus although Title VII does not expressly state that an agency may award attorneys’ fees, it does state that the agency is to enforce the Act “through appropriate remedies ... as will effectuate the policies of this section ____” 42 U.S.C. § 2000e-16(b) (Supp. V 1975). Because the “make-whole” concept is one of those policies, this provision can be read to permit the agency to award attorneys’ fees, thereby making whole one who prevails before it.
Smith v. Califano, 446 F.Supp. 530, 533 (1978) . And, “since section 633a is patterned after the provisions of Title VII covering federal employees, we may use the case law interpreting Title VII as precedent when construing section 633a.” Smith v. Office of Personnel Management, 778 F.2d 258, 262 (5th Cir.1985); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) . Thus, section 633a(b) should be construed to permit attorneys’ fees at the administrative level.
Further, the ADEA is intended to give administrative agencies limited opportunities to resolve problems of employment discrimination and thereby to make resort to federal relief by victims of the discrimination unnecessary. Denying recovery of fees would encourage complainants to wait out the thirty-day deferral period and focus only on obtaining judicial relief. Only the authorization of fee awards ensures incorporation of administrative procedures as a meaningful part of the ADEA enforcement scheme.
Finally, if the logic of the majority opinion is to be accepted, then there would be no basis for allowing attorneys’ fees to federal employees who are victims of age discrimination who establish the validity of their claim in a judicial proceeding. Yet, the government cites no case in which such attorneys’ fees have been disallowed. At least three district courts have specifically authorized attorneys’ fees in this context. See, Sterling v. Lehman, 574 F.Supp. 415, 417 (N.D.Cal.1983); Krodel v. Young, 576 F.Supp. 390, 395 (D.D.C.1983); DeFries v. Haarhues, 488 F.Supp. 1037, 1045 (C.D.Ill. 1980). Two circuit courts have similarly authorized attorneys’ fees in this context and did so without discussion. Smith v. Office of Personnel Management, 778 F.2d 258, 264 (5th Cir.1985); Johnson v. Lehman, 679 F.2d 918, 919 (D.C.Cir.1982). And these Courts have done so without relying on specific statutory language. The fact is that there is no specific provision in the ADEA which authorizes the payment of attorneys’ fees in a judicial proceeding. The right to such a fee is inferred from 29 U.S.C. § 633a(c): “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.” The majority fails to explain how we can infer the right to attorneys’ fees in a judicial proceeding and not infer it in an administrative proceeding from section 633a(b). A conclusion that the purpose of the ADEA is to make plaintiffs who participate in a judicial proceeding whole but those who participate in an administrative proceeding something less than whole is anomalous and is not supported by the language, history or structure of the act, or by logic.