adequately for trial also was evident when Goldstein was not called back as a rebuttal witness, after a particularly strong (defense witness. Such was a serious tactical error which, were it not for the excellent testimony of one of the witnesses called by the Complainant, certain documents and the believable quality of Mr. Goldstein's relevant testimony, might have cost Complainant his case. I consider the testimony of the aforementioned witness to have been a key factor, not through any good preparation by counsel for the Complainant, but because that particular witness was experienced in testifying and had a particularly logical mind. By contrast I noted that Mr. Hooper's good trial skills brought about an orderly procession of witnesses, short responsive answers and the ability of witnesses to handle cross-examination well. The contrast between opposing counsel was marked.

    Although some of the documentary evidence was of great importance to the Complainant, much of such evidence was minimally relevant and not worth the excessive time devoted to questions put to witnesses about same or to the introduction of it. Proper trial preparation could have eliminated some of such documents or at least relegated them to a possible use for impeachment depending on unexpected developments at trial.

    Accordingly, I have deducted many hours of trial preparation and conferences listed prior to the hearing dates, and during the hearings, for Ms. Garde. I have deducted almost all of the trial preparation hours listed by Mr. Condit along with his time spent at the trial. Condit had, if anything, less experience than Garde, therefore it is difficult to see how he could have been of any assistance at the trial. It would be unfair for the defense to pay for observers. An excessive amount of time was spent by both of Complainant's attorneys on "research," on the preparation of the post-hearing briefs and on the Fee petition work. Much of the material attached to the Fee petition was immaterial to the issue of the attorneys' worth to Mr. Goldstein on this case, impressive as GAP's general work in this field may be. As the Respondent's attorney properly argued, the institutional strength of GAP bears neither on litigation experience nor on the efforts on Goldstein's behalf. The research and preparation of the post-trial brief included time spent in reviewing Mr. Hooper's post-trial brief, clearly supporting Hooper's argument of extra tine gained by the Complainant to the disadvantage of the defense. Clear instructions were that there would be as close to a simultaneous submission of briefs as possible. Further, much time on the research and

preparation of the brief by Complainant's attorneys should have been much shorter since this case required little that GAP attorneys had not already become familiar with prior to handling this case. Total hours deducted from the Condit and Garde listed hours: 304.6 hours.

    I find the lodestar hours for Condit and Garde to be 106.7 hours.

    I reject attorney Hooper's viewpoint that paralegal hours are to be deducted totally. Such may be considered part of the "costo and expenses" mentioned in the Act. Nevertheless because of the excessive "digesting" of transcripts, depositions, the "legal research" duplication and the totally unfair digesting of Respondent's brief, my cuts of the paralegal hours will be draconian. I will cut all of Ms. Bauman's hours as either a duplication of attorney's work or properly the province of the trial attorney. Sandra Shepherd was observed to be of assistance in keeping track of trial exhibits at the time of trial, and she was certainly needed to organize the paper work for trial along with assisting in communicating with witnesses. All of the balance of work is considered unnecessary and an unreasonable cost and expense, I cut 541.7 hours from the paralegal work. The voluntary deductions of travel time and the unexplained drop of one-third of Ms. Shepherd's hours are noted, but since such was confusing I chose to take the hours listed in Appendix A. This leaves 34.5 paralegal hours that I find as reasonable expenses directly relating to the preparation for and the trial of the case.

    I next address the hourly rate that I consider reasonable for the work done by the trial attorney and her assistant to determine the lodestar rate.

    First, I do not find this case to be the rare or exceptional case contemplated by the United States Supreme Court in the 1987 Pennsylvania v. Delaware Valley Citizens' Council supra, case, This case was one with clear and definite factors to be proven, and involving two differing views of "protected activity." The law on the opposing views of two circuits and the Secretary's choice were very clear, though sharply differing between the two appellate courts. As has been stated above, the trial handling was poor and at times endangered the Complainant's case due to lack of trial skills. Therefore there will be no enhancement of the lodestar fee. Such fee is presumed to be the reasonable fee and unnecessary

to enhance. Pennsylvania I (1986) at 3098.

    Second, I reject attorney Hooper's point of view that the scale should be a lower one because this was an "administrative" bearing. The instant case was heard as an adversary hearing equivalent to any non-jury trial in a court of unlimited jurisdiction. I do consider the merit of Mr. Hooper's comment that using Washington, D.C. firms for comparison is improper since Ms. Garde's insistence in receiving mail pertaining to this case at her Appleton, Wisconsin address gave her certain advantages and such would more properly be the geographic area for determining the customary rate for attorneys of her experience. Unfortunately, neither counsel submitted the customary rates for attorneys in the latter area. Having considered the factors listed in Pennsylvania I and the earlier case of Blum v. Stenson, 104 S. Ct. 1541, 1548-1550, i.e. special skill and experience of counsel, quality of representation, and the results obtained, I have already pointed out the limited experience and the poor quality of representation. I need only add that the results obtained had little to do with the representation. The elements assisting Goldstein in winning his case have been mentioned. Further, I will add that Complainant's damages were only incidentally proven with no discernible plan. The stipulation on damages was partially unenforceable under the Act and no argument on damages was submitted in Complainant's brief. Accordingly, the results obtained were akin to those of the ordinary associate trying his first case.

    It would be unconscionable to allow rates at the partnership level of the listed firms. The United States Supreme Court, in discussing fee-shifting statutes, stated:

    A strong presumption that the lodestar figure--the product of reasonable hours times a reasonable rate--represents a "reasonable" fee is wholly consistent with the rationale behind the usual fee-shifting statute, including the one in the present case. These statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client. Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws.

Pennsylvania I, Id. at 3098.

    I find that the hourly rate for the two attorneys should be set at the lower end of the scale for associates in the prestigious Washington, D.C. firms listed. I find that $65.00 per hour is the lodestar hourly rate. The lodestar fee is therefore 106.7 times $65.00, or $6,935.50.

    The paralegal expense of $35.00 per hour is proper. The total allowable paralegal hours of 34.5 times $35.00 is ,207.50.

    Provided that business records, bills and receipts are produced for Respondent, the expenses listed on page 20 of Complainant counsel's petition are approved, with the exception of "out-of-office" copying which is considered part of normal office overhead.

    IT IS RECOMMENDED THAT:

1. Respondent pay Complainant attorneys $6,935.50 for attorney fees, ,207.50 for paralegal expense; and

2. Respondent pay those expenses listed in page 20 of Complainant Attorney's Fee Petition, in the total amount of $9,981.00, provided that Respondent be presented with office records, bills and receipts supporting such expenses

       ROBERT J. BRISSENDEN
       Administrative Law Judge

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