Case No. 89-ERA-00006

IN THE MATTER OF: FREDERICK E. MCCUISTION,
    Complainant,

TENNESSEE VALLEY AUTHORITY,
    Respondent,

    This case arose under Section 210 of the Energy Reorganization Act of 1974, 42 USC Section 5851 (1982) (ERA) when the complainant filed his complaint with the Department of Labor on August 19, 1988. He was represented throughout the proceedings by attorney Carol S. Nickle. The actual trial on the merits consumed seven days. A paralegal assisted counsel in the preparation and at the trial of this case.

    A recommended Decision was rendered by this Administrative Law Judge in favor of the complainant and said Decision and Order will be reviewed by the Secretary who will issue the final Decision and Order including approval of fees for legal service, costs and expenses reasonably incurred by the complainant.

    Now comes counsel for the complainant and presents her statement itemizing time spent for legal services and expenses paid on behalf of the complainant and seeks reimbursement from the respondent.

    Respondent argues that the matter of attorney fees does not appear "ripe for decision" and that the Secretary has sole authority to consider and award attorney fees only upon the issuance of an order finding discrimination and awarding relief.

    This Administrative Law Judge finds that the respondent fails to admit that the instant Recommended order, like the Recommended Decision and order by this Administrative Law Judge has no judgmental finality since the final and binding Decision and Orders must be authored and issued by the Secretary, as clearly provided by law and the regulations. (29 CFR 24.6

    This being a recommended Order and consistent with the regulation requiring that a recommended Decision by the Administrative Law Judge be submitted to the Secretary for issuance of the final order, this Administrative Law Judge concludes that it is proper and necessary to consider the request for attorney fees at this point in the proceedings in order to assist the Secretary in her determination of the final order. This Administrative Law Judge presided throughout the proceedings including the seven days of trial and is best informed from actual observation of all counsels' efforts, expertise, legal arguments, preparation and presentation of their respective positions upon the numerous issues involved in this complex case.

    This Administrative Law Judge concludes that it is proper to include items for services performed prior to submission of the matter to the Office of Administrative Law judges. The regulation provides for recovery of expenses and costs incurred by the complainant from the time of bringing the complaint upon which the final order was issued (29 CFR 24.6 (b)(3). Since the complaint was filed on August 19, 1988, it was proper for counsel to itemize all services with respect thereto as having commenced on August 11, 1988.

    It is interesting to note that both the complainant and respondent requested that subpoenas be issued. The legal activity and effort expended by both parties on the matter of subpoenas was fully considered at length by the Court and is found to be a compensable item properly contained in the request for legal fees.

    Similarly, the complainant's Motion to Strike Post-Trial submissions was not ruled upon as frivolous and is considered to be consistent with counsel's effort to protect her client's interest and is found to be compensable.

    Complainant's counsel seeks payment for Court/Deposition representation at the rate of $110.00 per hour and for all other

services $100.00 per hour. This Administrative Law Judge finds the rate requested is considerably lower than experienced in the multitude of cases heard and decided by this Administrative Law Judge over a span of years while in the Tennessee, Kentucky, Virginia and West Virginia area. Suffice it to say that the fee rates of $100.00 and $110.00 per hour are very reasonable and are not subject to challenge because of being "unreasonable and unsupported" as claimed by respondent.

    This Administrative Law Judge recommends that the Secretary award the following relief with respect to the compensation to complainant's counsel for legal services, expenses and costs reasonably incurred on behalf of the complainant in connection with the bringing of the complaint upon which the final order will be issued:

    1) The fee requested for time spent in preparation of the fee petition, namely 2.4 hours is not allowed and is hereby deleted.

    2) All other itemizations appearing in the statement, as listed therein, on pages one through fifteen are allowed in full. This includes all items included in the total fees and expenses, amounting to $47,194.29 appearing on page 15 of the statement less 2.4 hours at $100.00 per hour for preparation of the fee petition.

    3) The itemization of paralegal services appearing on pages one and two submitted by Cheryl S. Mahaffy, Legal Assistant, is approved in full and found to be fair, proper, and reasonable.

    Accordingly, the respondent is to pay the following fees to Carol S. Nickle, attorney for the complainant:

$46,954.29 to Attorney Carol S. Nickle $ 4,711.00 to Cheryl S. Mahaffy, Legal Assistant to Attorney Nickle

    This recommended Order for payment of legal services and expenses incurred by the complainant, Frederick E. McCuistion was rendered on April 12, 1990.

       CLEMENT J. KICHUK
       Administrative Law Judge