Date: March 16, 1993

CASE NO. 89-ERA-3

IN THE MATTER OF

RICHARD ADAMS,
   Complainant

    v.

COASTAL PRODUCTION OPERATORS, INC.
   Respondent

   By order dated August 5, 1992, the Secretary remanded this case to determine the additional back pay owed to complainant from November 29, 1988 to the date of reinstatement (or declination) and to rule on counsel for complainant's 1989 petition for attorney fees as well as any post-remand fee petition filed by such counsel.

   Due to the unavailability of the administrative law judge who initially heard this case, this matter was assigned to the undersigned for resolution of the issues presented on remand. Thereafter, a hearing was scheduled for September 29, 1992. The parties, however, waived their right to a hearing electing instead to file a stipulation an the issue of back pay. The substance of that stipulation is:

From November 28, 1988, to September 29, 1992, Employer Coastal Production Operators, Inc., had employment available for complainant, Richard Adams, which would have paid complainant wages totalling $2,520.00.

   It is recognized that the specific direction of the Secretary has not been met with this stipulation. It is understood that complainant has not been offered reinstatement. Indeed, unless and until the Secretary's order in this proceeding becomes final, there is not legal requirement that complainant be offered reinstatement. Thus, the matters contained in the stipulation are thought to be all that can be secured on this issue on remand.

   With respect for counsel for complainant's 1989 fee petition, respondent argues that consideration of the fee petition is premature and that the fee petition does not meet the requirements set forth in Johnson v. Georgia Highway Express Inc, 488 F.2d 714, 717-719 (5th Cir. 1974). While liability to pay an attorney fee award is contingent upon securing a final order, it is appropriate to consider the attorney fee issue in the course of the litigation. This procedure permits the appeal of issues pertaining to attorney fees along with the substantive order so that resolution of this subordinate issue will not be unduly protracted. With respect to the objection raised as to the lack of specificity in the fee petition, the matters presented in the petition describe the activities for which a time charge is claimed with sufficient particularity to meet the requirements. Thus, neither objection is meritorious.

   Respondent also objects to the hourly rate of $150.00 claimed by counsel on the basis that counsel presented no evidence of fee awards in similar cases or that his also. Do hourly rate is his usual rate. Taking into consideration counsel's experience, the complexity of the case and the rates paid counsel who prevails in other whistleblower cases, it is found that an hourly rate of $125.00 is fair and reasonable in this instance.

   Respondent's first specific objection is that approximately 8.00 hours are claimed for activities which could have been accomplished by non-lawyers commanding a lesser rate. While there may be merit in this general contention, the specific entries which respondent contends could have been performed by non legal personnel are not identified. Accordingly, this objection cannot serve as a basis for disallowing or reducing the time claimed.

   Respondent also objects to the 1.8 hours claimed for researching state law on the basis that there has been no showing that such research was necessary. This objection is well Taken and the 1.8 hours claimed is disallowed. For the same reason, the 2.2 hours claimed for researching "Department of Labor Jurisdiction"s after complainant filed his complaint alleging violation of 33 U.S.C. §1367 is also disallowed.

   Respondent next objects to the 27.95 hours claimed for drafting complainant's post-hearing brief. Respondent argues that the time claimed is excessive and should be reduced. This objection is also well taken and the 27.95 hours claimed is reduced to 21.00 hours.

   Respondent's final objection is that the amount claimed as a fee far exceeds the benefits obtained and should be reduced commensurably. In support of this contention, respondent asserts that counsel for complainant could have settled the case before trial for as much as he secured as damages which would have

reduced the litigation costs dramatically. The fallacy of this argument is that it ignores the benefits derived from the injunctive relief secured by counsel and focuses exclusively on damages. Additionally, there has been no showing that any specific offer of settlement was made to respondent below the $10,000.00 figure proposed by complainant. Thus, whether any settlement could have been reached below that figure is a matter of conjecture and cannot serve as a basis for reducing the fee award granted herein. For these reasons, respondent's final objection is rejected.

   In view of the foregoing, it is recommended that the number of hours claimed in counsel for complainant's 1989 fee petition be reduced from 60.95 hours to 51.81 hours. It is further recommended that counsel be awarded $125.00 per hour for his services aggregating an attorney fee award of $6,476.25 plus expenses in the amount of $23.59.

   Counsel for complainant has also submitted a supplemental petition for attorney fees and expenses wherein he claimed an additional $3,666.00 for attorney fees plus an additional $258.00 for costs. This supplemental petition includes all fees and costs incurred in this matter subsequent to the filing of counsel's 1989 fee petition. Since opposing counsel was granted an opportunity to file objections to this supplemental fee petition and since no opposition to the petition has been filed, the fees and expenses claimed therein are taken to be uncontested. Having reviewed these and having concluded that they are both reasonable and necessary it is recommended that they be allowed as claimed.

   1. Respondent shall pay complainant additional back pay in the amount of $2,520.00; and

   2. Respondent shall pay complainant's counsel an additional amount of $10,142.25 as an attorney fee plus $281-59 for expenses incident to counsel's representation of complainant in this proceeding.

      QUENTIN P. MCCOLGIN
      ADMINISTRATIVE LAW JUDGE

Dated: March 16, 1993
Metairie, Louisiana
QPMC:dqcf