Finney v. Department of Corrections

Carley, Justice.

Appellant in the instant appeal was successful in the pursuit of her claim under OCGA § 45-19-20 et seq., the Fair Employment Practices Act (FEPA). Although she incurred no attorney’s fees, the special master nevertheless awarded her attorney’s fees. On appeal to the superior court, the special master’s award of attorney’s fees was affirmed. The Court of Appeals granted appellee’s application for a discretionary appeal and reversed. Department of Corrections v. Finney, 203 Ga. App. 445 (416 SE2d 805) (1992). This court granted appellant’s petition for a writ of certiorari.

1. Nothing in OCGA § 45-19-38 expressly authorizes a special master to award reasonable attorney’s fees to a successful claimant. Compare OCGA § 45-19-39 (c), which expressly authorizes the superior court, in its discretion, to award “reasonable attorney’s fees and the costs of litigation” in connection with judicial review. However, OCGA § 45-19-38 does implicitly authorize a special master to award reasonable attorney’s fees to a successful claimant. Kilmark v. Bd. of Regents, 175 Ga. App. 857, 870 (5) (334 SE2d 890) (1985). Appellant urges that a successful FEPA claimant who actually incurs no attorney’s fees whatsoever in connection with the special master proceeding should nevertheless be entitled to recover attorney’s fees because federal courts have construed similar federal statutes to authorize such a recovery.

It is undoubtedly true that, in construing FEPA, our courts may seek guidance from federal decisions construing similar federal statutes. Department of Human Resources v. Montgomery, 248 Ga. 465, 467 (2) (284 SE2d 263) (1981). However, it is equally true, and very significant, that FEPA does not track the language of any similar federal statute regarding the recovery of attorney’s fees. Similar federal statutes authorize without limitation the recovery of “a reasonable attorney’s fee.” For example, 42 USC § 1988 provides:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part *302of the costs.

(Emphasis supplied.) Obviously, if there is statutory authority for the unlimited recovery of “a reasonable attorney’s fee,” the private fee arrangement as between the prevailing party and counsel is not determinative as to either the recovery of attorney’s fees or the amount thereof. Blanchard v. Bergeron, 489 U. S. 87 (109 SC 939, 103 LE2d 67) (1989); Blum v. Stenson, 465 U. S. 886 (104 SC 1541, 79 LE2d 891) (1984). The prevailing party is statutorily entitled to “a reasonable attorney’s fee” and

[a]s we understand [42 USC] § 1988’s provision for allowing a “reasonable attorney’s fee,” it contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less.

Blanchard v. Bergeron, supra at 93.

Our General Assembly could have authorized the unlimited recovery of “a reasonable attorney’s fee” by a successful FEPA claimant. If it had, the decisions in Blanchard and Blum and other federal cases construing similar federal statutes could then be considered as persuasive authority. However, our General Assembly did not authorize the unlimited recovery of “a reasonable attorney’s fee” by a successful FEPA claimant. To the contrary, it limited a successful FEPA claimant’s recovery by providing that u[a]ny monetary award ordered pursuant to this article [, OCGA § 45-19-20 et seq.,] shall be for actual damages only.” (Emphasis supplied.) OCGA § 45-19-38 (d). Having the federal statutes as a model, the General Assembly’s intent not to authorize a successful FEPA claimant’s unlimited recovery of “a reasonable attorney’s fee,” but to limit a recovery of reasonable attorney’s fees to successful claimants who are contractually obligated to pay counsel, could not have been clearer. An award of attorney’s fees is payable to the successful claimant, not to the successful claimant’s counsel. Counsel is relegated to a recovery pursuant to his or her contractual agreement with the successful claimant. Permitting a recovery of reasonable attorney’s fees by the successful claimant who is not contractually obligated to pay counsel would permit a monetary recovery of more than the “actual damages” incurred and would be in contravention of the express language of OCGA § 45-19-38 (d).

There are policy considerations as to why an award of reasonable attorney’s fees should be authorized for all successful claimants in FEPA cases, regardless of whether attorney’s fees were actually incurred. The purpose of the judiciary is not, however, to determine what FEPA should provide. Our authority extends only to a construe*303tion of FEPA as it was enacted by the General Assembly. The primary rule of statutory construction is to ascertain the legislative intent. The legislative intent to limit a successful FEPA claimant to a recovery of such reasonable'attorney’s fees as were actually incurred is clear. Pursuant to OCGA § 45-19-38, a special master is implicitly authorized to award reasonable attorney’s fees to a successful FEPA claimant who actually incurred attorney’s fees in pursuit of the claim. In no event, however, would the special master be authorized to award attorney’s fees to a successful FEPA claimant who has incurred no attorney’s fees whatsoever. “Any monetary award ordered pursuant to this article [, OCGA § 45-19-20 et seq.,] shall be for actual damages only.” OCGA § 45-19-38 (d).

Accordingly, we hold that, when FEPA is properly construed, appellant in the instant case is not authorized to recover attorney’s fees in connection with the special master proceeding because she incurred none and that no successful claimant in a FEPA case can recover attorney’s fees when none were actually incurred unless and until the General Assembly amends that statute to authorize such a recovery. As the Court of Appeals correctly held, since appellant’s

rights under [FEPA] were maximized by the provision to her of counsel... at no charge to her, she was not entitled to the benefits extended under the other available alternative, i.e., an award of attorney [’s] fees.

Department of Corrections v. Finney, supra at 446 (1).

The policy arguments advanced in favor of a [recovery of a reasonable attorney’s fee without regard to whether attorney’s fees were actually incurred] should be addressed to [the General Assembly] rather than to this Court.

Blum v. Stenson, supra at 895-896 (II).

2. The superior court failed to award appellant attorney’s fees in connection with the judicial review of the special master’s award. In her cross-appeal in the Court of Appeals, appellant raised the issue of her entitlement, pursuant to OCGA § 45-19-39 (c), to recover attorney’s fees in connection with the superior court’s judicial review of the special master’s award. However, the Court of Appeals failed to address this issue.

The issue of appellant’s entitlement to a recovery under OCGA § 45-19-39 (c) is an entirely separate issue from her entitlement to a recovery of attorney’s fees in the special master proceeding. That separate issue was properly raised in the Court of Appeals and should have been addressed. Accordingly, we remand this case to the Court of Appeals with direction to address the issues of whether appellant *304may be eligible to recover attorney’s fees pursuant to OCGA § 45-19-39 (c) and, if she is eligible, whether the superior court erred in failing to make such an award to appellant. When the Court of Appeals has ruled on this issue which was properly before it, the losing party shall be entitled to petition this court for a writ of certiorari.

Judgment affirmed in part and case remanded in part with direction.

All the Justices concur, except Clarke, C. J., and Hunt, P. J., who concur specially; Benham and Sears-Collins, JJ., who dissent.