We also gave Pillow thirty
days "to submit all documents showing the amount of attorney's fees, costs, and interest
claimed" together with a brief, and afforded Bechtel the opportunity to respond.
Citing 42 U.S.C. §5851(e), Bechtel argues that because the
Secretary has issued a final decision, only the United States District Court has jurisdiction over
this dispute concerning the enforcement of the settlement agreement. Resp. Brief at 4-5. That
statutory provision states:
(e)(1) Any person on whose behalf an order was issued under [42
U.S.C. §5251(b)(2)] may commence a civil action against
the person to whom such order was issued to require compliance
with such order. The appropriate United States district court
shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce such
order.
DISCUSSION
Board Jurisdiction
We agree with the general proposition that after a final decision has
been issued, the Board lacks jurisdiction over a dispute about the proper interpretation of a
settlement agreement. See, e.g., Ing v. Jerry L. Pettis Veterans Affairs Medical
Ctr. , Case No. 96-ERA-32, ALJ Rec. Dec. and Ord., Sept. 4, 1996, slip op. at 2-3,
aff'd , ARB Ord. of Dismissal, ARB Case No. 96-193, Sep. 27, 1996. Unlike the
situation in Williams v. Public Serv. Elec. & Gas Co ., Case No. 94-ERA-2, Sec'y.
Remand Order, Apr. 10. 1995, there is no provision in the settlement agreement in this case
retaining jurisdiction for the Board to enforce the agreement. Pursuant to 42 U.S.C.
§5251(e), the District Court has jurisdiction to enforce the Board's Final Decision and
Order. Pillow's contentions concerning any agreement of the parties to pay any additional
interest may be addressed to the District Court in an enforcement action.
The settlement agreement here, which was entered into prior to the
judicial review proceeding, does not explicitly preclude an award of attorney's fees for the
appellate court proceeding. Further, issues concerning fees and costs may be addressed after
the issuance of a final decision. See Delcore v. W.J. Barney Corp. , Case No. 89-ERA-38 ARB Order, Oct. 31, 1996 (awarding costs and attorney's fees incurred during appeal
of Final Decision and Order issued June 9, 1995).
Thus, there is one issue that properly remains before the Board,
Pillow's request for "attorney's fees" for his participation in the judicial review
proceeding. The ERA provides that a successful complainant automatically is entitled to an
award of "a sum equal to the aggregate amount of all costs and expenses (including
attorneys' and expert witness fees) reasonably incurred, as determined by the Secretary,
by the complainant for, or in connection with, the bringing of the complaint upon which
the order was issued." 42 U.S.C. §5251(b)(2)(B) (emphasis added). The Court
of Appeals for the Fourth Circuit held in Blackburn v. Reich , 79 F.3d 1375, 1379
(4th Cir. 1995) that "attorney's fees related to prosecuting an appeal before the court of
appeals are costs . . . incurred . . . in connection with [ ] the bringing of [a] complaint'"
under the ERA "and, therefore, the Secretary has the authority to award such
fees." But see DeFord v. Secretary of Labor , 715 F.2d 231 (6th Cir. 1983)
(contra ). Whereas we are compelled to follow the DeFord rule
disallowing appellate fees in cases that arise within the Sixth Circuit, Sprague v.
American Nuclear Resources, Inc. , Case No. 92-ERA-37, Final Dec. and Ord., July
15, 1996, slip op. at 2 n.4, we are not so constrained in this case because it arises within the
Eleventh Circuit. See, e.g., Delcore, slip op. at 2 (granting appellate level fees
in a case arising outside the Sixth Circuit).
In Delcore we granted appellate level costs and attorney's
fees where, like here, the complainant prevailed before the Secretary and the complainant
participated in the judicial review proceeding. Accordingly, we will consider Pillow's request
for attorney's fees for appellate level work.
The Attorney's Fee Request
Pillow's fee request is set forth in its entirety below. We have
numbered each item to facilitate our discussion.
SERVICE PERFORMED HOURS
1. Review Incoming Correspondence and Documents 4.5
2. Preparation of Outgoing Correspondence and Documents 7.8
3. Telephone Conferences 4.8
4. File Administration 4.0
5. Review Incoming Pleadings, Notices, and Court Filings 3.6
6. Preparation Outgoing Pleadings, Notices, and Court Filings 12.4
7. Review Bechtel Brief 2.0
8. Research Cases Cited in Bechtel Brief 8.0
9. Review Entire Record in Preparation of Pillow Brief 6.0
10. Research Case Law in Support of Pillow Brief 12.5
11. Preparation of Pillow Brief 40.0
12. Review Secretary of Labor Brief 1.5
13. Prepare for and Attend Oral Argument 8.0
14. Research and Prepare Papers in Support of Entitlement to
Interest and Fee Awards 16.0
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TOTAL HOURS 131.1
This aggregation of hours is not sufficiently specific to permit the
Board to determine whether all the attorney's time was reasonably expended. We usually
require an itemized list that includes the date on which the attorney's time was expended, the
amount of hours expended, and a specific description of the tasks undertaken by the attorney
during that time. In the list above, the items 1 through 6 were not sufficiently described for
us to find that the time reasonably was spent in connection with the appellate proceeding. We
disallow a total of 37.1 hours for these items.
Bechtel objects to attorney time spent in preparing Pillow's brief in the
appellate court because Pillow "volunteered to file a brief in the appeal" and his
appearance "was gratuitous only." Resp. Brief at 18. Even though Pillow was
not required to file a brief in the appellate proceeding, he clearly had an interest in the
outcome and we find that preparing and submitting the brief was reasonable under the
circumstances. In this instance, since the brief was filed, we may authorize attorney's fees for
work performed in producing the brief even though Pillow's counsel has not provided a
specific itemization of the date, time and work performed. Given the lack of specificity in the
attorney's fees request, the total number of hours claimed for items related to preparing
Pillow's appellate court brief, items 8 through 11, was unreasonable. We find half the claimed
amount of time for these items to be reasonable and disallow 33.25 hours.
The description of tasks for items 7 and 12 are sufficient and the
claimed number of hours are reasonable and we allow those items. Bechtel objects to the time
claimed in item 13 concerning oral argument because "Pillow's lawyer did not attend
oral argument -- he arrived after it was over -- and was not invited or slated to
participate." Resp. Brief at 18. Counsel for Pillow has not contested the accuracy of
this statement. We disallow the eight hours claimed for this item for the reasons Bechtel
states.
We have disallowed 78.35 hours and consequently we allow 52.75
hours for appellate level attorney work reasonably incurred in bringing the complaint.
Pillow's counsel did not provide an affidavit attesting to his
qualifications or that $250 is a reasonable hourly billing rate in his community. Rather,
counsel stated that the claimed hourly fee is less than that charged by opposing counsel. We
find this statement inadequate to demonstrate entitlement to the $250 hourly fee and instead
authorize $125 as a reasonable hourly fee. We have authorized 52.75 hours at $125 per hour,
for a total attorney's fee of $6,593.75.
CONCLUSION
The request for an order requiring the payment of interest is
DENIED for lack of jurisdiction over the dispute about the meaning of the
settlement agreement.
The request for attorney's fees for appellate level work is granted
in part and denied in part. Respondent is ordered to pay Complainant's attorney's fees in the
amount of $6,593.75.
SO ORDERED .
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
[ENDNOTES]
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