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02/16/95 BRIAN R. KENNEDY v. DISTRICT COLUMBIA

DISTRICT OF COLUMBIA COURT OF APPEALS


February 16, 1995

BRIAN R. KENNEDY, APPELLEE/CROSS-APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLANT/CROSS-APPELLEE

On Petition for Rehearing

Before Ferren and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: In response to a petition for rehearing, and an opposition thereto from our initial decision in this matter, we take this opportunity to resolve the specific questions raised. *fn1 Kennedy contends he is entitled to recover both attorneys' fees and compensatory damages under the provisions of Mayor's Order 75-230 § 19 (b), 1975 D.C. Stat. at 526. Section 19 (b) of Mayor's Order 75-230 states, in pertinent part:

When the Director EEO finds that an employee of a department was discriminated against . . . the department shall take remedial actions which shall include one Or more of the following, but need not be limited to these actions: (1) Retroactive promotion, with backpay . . . (2) Consideration for promotion . . . (3) Cancellation of an unwarranted personnel action and restoration of the employee (4) Expunction from the department's records of any reference to or any record of unwarranted disciplinary action . . . (5) Pull opportunity to participate in the employee benefit denied him . . .

Mayor's Order 75-230 § 19 (b), 1975 D.C. Stat. at 526-27 (emphasis added). Specifically, Kennedy asserts he is entitled to attorneys' fees and compensatory damages because section 19 (b) states that remedial actions "need not be limited" to those enumerated. We find this assertion unpersuasive.

Under the "American Rule," a prevailing party is not entitled to recover attorneys' fees in the absence of express statutory or contractual authorization. See, e.g., Schlank v. Williams, 572 A.2d 101, 108 (D.C. 1990); Key Tronic Corp. v. United States, 128 L. Ed. 2d 797, 114 S. Ct. 1960, 1965 (1994); Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 257, 44 L. Ed. 2d 141, 95 S. Ct. 1612(1975). "The absence of specific reference to attorney's fees is not dispositive if the statute otherwise evinces an intent to provide for such fees. . . . Mere 'generalized commands,' however, will not suffice to authorize such fees." Key Tronic, supra, 114 S. Ct. at 1965(citation omitted) (emphasis added); see also Schlank, supra, 572 A.2d at 108 ("Unless the legislature has made 'specific and explict provisions for the allowance of attorneys' fees,' [citation omitted] or there is 'clear support' in the language or legislative history of a statute for such an intent, [citation omitted] no statutory basis for an award of attorneys' fees exists") (emphasis added). Without statutory Or contractual authorization, a prevailing party will be entitled to recover attorneys' fees only if one of the recognized exceptions to the "American Rule" is applicable. See, e.g., Alyeska, supra, 421 U.S. at 257-59. *fn2

In Zenian v. Office Of Employee Appeals, 598 A.2d 1161(D.C. 1991), we held that the term "compensation system" within the context of the Comprehensive Merit Personnel Act (CMPA) should be construed to include attorneys' fees. Id. at 1162. In so holding, we gave a broad construction to the City Council's use of the words "need not be limited to." Id. at 1164. However, the critical difference between this case and Zenian is that in Zenian there was explict statutory authorization for the recovery of attorneys' fees. Although the CMPA did not expressly mention attorneys' fees, the CMPA expressly incorporated by reference the "compensation system . . . in effect on December 31, 1979," which included the Federal Back Pay Act (FBPA) and, the FBPA contained an express provision for attorneys' fees. Id. at 1165. Thus, attorneys' fees were found to be recoverable because "the FCPA's explicit authorization for such 'make whole' relief had been effectively incorporated by reference." Id. at 1166 n.10. Because the legislative intent was clear from the overall remedial structure of the CMPA, we concluded in Zenian that attorneys' fees were recoverable even though they were not specifically mentioned in the text of the CMPA.

Neither the language nor the legislative history of Mayor's Order 75-230 offer "clear support" for the recovery of attorneys' fees (nor for the recovery of compensatory damages). Pursuant to § 29.3 of Title 34 DCRR, Mayor Washington, on October 31, 1975, issued Mayor's Order 75-230. *fn3 In 1977, the District of Columbia Council reenacted Title 34 DCRR as the D.C. Human Rights Act of 1977, D.C. Code § 1-2501 et seq. (1987), without making any substantive changes in its provisions. *fn4 Title III of the D.C. Human Rights Act is entitled "Procedures, "and it is in Title III, at § 313, that the Council authorized the D.C. Commission on Human Rights to award a successful discrimination complainant "compensatory damages" and "reasonable attorney fees." See D.C. Code § 1.2553 (1987). Also in Title III, at § 303, the Council directed the Mayor to establish a separate set of rules of procedure for the investigation, conciliation and hearing of complaints filed against District government agencies . . . alleging violations of this act." D.C. Code § 1-2543 (1987) (emphasis added). Since the remedial provisions were included under the "Procedures" subdivision of the Act, in directing that the Mayor establish "rules of procedure," the Council was directing the Mayor to establish, inter alia, the remedies that would be available to persons who filed complaints of discrimination against the District government. *fn5

In terms Of compensatory damages, Kennedy is seeking recovery for his emotional trauma arising from his employer's discriminatory treatment towards him prior to the filing of his claim and for a ten-year period thereafter. *fn6 Our case law in this area is both sparse and admittedly unsettled. However, one point is crystal clear: if Kennedy was seeking recovery for discriminatory acts engaged in by a private employer (or other private entity), he would be entitled to both compensatory damages and attorneys fees under the D.C. Human Rights Act. See D.C. Code § 1-2553 (a)(1) (1987). In this situation, upon an adequate showing of discrimination, Kennedy would be entitled to recover for embarrassment and humiliation, but not necessarily for pain and suffering and emotional distress. See Doe v. D.C. Comm'n On Human Rights, 624 A.2d 440, 447-48 (D.C. 1993). *fn7 As a former D.C. government employee, however, Kennedy is not entitled to compensatory damages or attorneys' fees.

In Williams v. District of Columbia, 467 A.2d 140(D.C. 1983), we clearly stated that D.C. government employees, unlike non-government employees, are required to exhaust the administrative remedies available to them under the D.C. Human Rights Act. Id. at 142. In Lamont v. Rogers, 479 A.2d 1274(D.C. 1984) we indicated that the remedies available to a D.C. government employee under Mayor's Order 75-230 need not be limited to those enumerated in section 19 (b). Id. at 1277. *fn8 We have observed, however, that the Human Rights Act places the remedies provisions under the "Procedures" subdivision of the Act. Therefore, in directing the Mayor to establish "rules of procedure" for the resolution of complaints filed against the D.C. government, it is logical to conclude (as both Mayors Washington and Barry have done in the past) that the Council was directing the Mayor to establish, inter alia, the remedies available to complainants who successfully pursue Human Rights violations against the District. *fn9 Moreover, in Lamont we never stated which remedies -- beyond those enumerated in section 19 (b) -- (if any) were available under Mayor's Order 75-230. *fn10

Although it is clear from the language of section 19 (b) of Mayor's Order 75-230 that the remedies available to a successful complainant are not limited to those enumerated therein, it is not clear enough from the language or legislative history of the Order that the Council intended for the recovery of attorneys' fees and compensatory damages, which are quite different in kind from the types of remedies specified in section 19 (b). Therefore, absent explicit statutory language or other clear legislative intent, we must rely upon rules of statutory construction, including the doctrine of ejusdem generis. We conclude that we lack the requisite statutory authorization to award attorneys' fees or compensatory damages. As to the latter, compensatory damages are an important form of relief. A right of action is much more valuable when such a remedy is available. Under these circumstances, we deem it improbable that the drafters intended such a remedy to be inferred from language which makes no mention of it, especially where other remedies of equal or lesser significance are explicitly enumerated.

So Ordered.


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