CASE NO.: 97-ERA-53

In the Matter of

    CURTIS C. OVERALL
       Complainant

       v.

    TENNESSEE VALLEY AUTHORITY
       Respondent

APPEARANCES:

Charles W. VanBeke, Esq.
Wagner, Myers & Sanger
P. O. Box 1308
Knoxville, TN 37901-1308
    For the Complainant

Thomas F. Fine, Esq.
Assistant General Counsel
Angela Tyson Floyd, Esq.
Office of the General Counsel
Tennessee Valley Authority
400 West Summit Hill Drive
Knoxville, TN 37902-1499
    For the Respondent

BEFORE:

    CLEMENT J. KENNINGTON
    Administrative Law Judge

   On April 27, 1998, the Administrative Review Board remanded this case to

me for issuance of a preliminary order pursuant to 63 Fed. Reg. 6624 (Feb. 19, 1998), to be codified at 24 C.F.R. § 24.7 (c)(2). That regulation states:

(2) In cases brought under the Energy Reorganization Act, when an administrative law judge issues a recommended order that the complaint has merit and containing the relief prescribed in paragraph (c)(1) of this section, the administrative law judge shall also issue a preliminary order providing all of the relief specified in paragraph (c)(1) of this section with the exception of compensatory damages. This preliminary order shall constitute the preliminary order of the Secretary and shall be effective immediately, whether or not a petition for review is filed with the Administrative Review Board. Any award of compensatory damages shall not be effective until the final decision is issued by the Administrative Review Board.

In accord with the remand order I hereby issue the following preliminary order and supplemental order on attorney's fees and costs providing that:

   (1) TVA shall reinstate Overall to his former position of power plant maintenance specialist (SD-4) at Watts Bar, or, if no longer available, to a substantially equivalent position with back pay from November 4, 1995, until his reinstatement and provide him with such other benefits as he would have been entitled to had he not been discriminated against. TVA shall receive credit for all compensation and wages paid amounting to $13,415.99 with the exception of his earnings from unemployment compensation amounting to $6,240.00.¹

   (2) TVA shall pay interest on the back pay at the rate specified in 26 U.S.C. § 6621 through the date of compliance with this order.

   (3) TVA shall reimburse Overall for the additional cost he incurred for health insurance amounting to $6,822.24 in health premiums; medical cost of $98.00 for treatment by Gary Leigh, Ph.D; out of pocket expenses exclusive of legal fees incurred by Overall is carrying forward the instant complaint amounting to ,726.11; late fees on accounts Overall has been unable to keep current as was his custom while employed by TVA amounting to $902.22; travel expenses for consultation with his attorney and psychologist, and to attend depositions and trial amounting to

$664.34; telephone calls by Overall to his attorney and prospective employers amounting to

$184.40; and incurred interest of $220.00 on $20,203.15 which Overall borrowed from his mother over the past two years at 3.25% to pay his mortgage.²

   (4) TVA shall expunge from Overall's personnel records all derogatory or negative information relating to his employment with TVA with the exception of Overall's November 22, 1995 job evaluation which did not constitute part of TVA's discriminatory treatment of Overall.

   (5) TVA shall post the attached Recommended Notice to Employees (Appendix 1) on all bulletin boards at its Watts Bar and TVA Services facilities, where TVA's official documents are posted, for 60 days ensuring that it is not altered, defaced or covered with other material.

   (6) TVA shall pay Overall's counsels the fees appearing opposite their respective names plus legal expenses of $4, 659.05: Charles W. Van Beke - $53,260 (254.80 hours at $200 per hour and 23 hours of travel time at $100.00 per hour); Barbara Boulton - $23, 017.50 (170.5 hours at $135.00 per hour); Della Volpe - $192.00; Summer H. Stevens - $200.00 legal expenses in the amount of $4,659.05 for a total compensation of $ 81,328.55.³

   ORDERED this 12th day of May, 1998, at Metairie, Louisiana.

       CLEMENT J. KENNINGTON
       Administrative Law Judge

¹ Attached as Exhibit 1 to this Preliminary Order, is a recent Amended Joint Stipulation No. 34 signed by the parties reflecting additional expenses incurred by Claimant as well as earnings following his layoff by TVA.

² All of these expenses are set forth in the attached Amended Stipulation No. 34.

³Mr. Van Beke filed a Petition for Attorney Fees and Expenses with supporting affidavits on April 20, 1998 and a Supplemental Petition for Attorney Fees on April 27, 1998. Mr. Fine filed a response on behalf of TVA. Copies of these documents are attached as Exhibits 2 and 3 respectively. In his response Mr. Fine asserts the following: (1) travel time for depositions should be listed separately and charge at a lower rate; (2) 10.4 hours charged for the motion for an extension of time to respond to TVA's motion for summary judgment is excessive; (3) 64.7 hours charged for Claimant's response to TVA's motion for summary judgment is excessive; (4) 18.5 hours charged for the time spent by Ms. Boulton in researching the issue of compensatory damages is excessive; (5) 41.5 hours charged by Ms. Boulton for reading and indexing the hearing transcript is excessive; (6) 217.65 hours of time charged for a post hearing brief is excessive; (7) the fee of Dr. W. T. Becker, metallurgical consultant to evaluate metallurgical reports is unwarranted because any information supplied by Dr. W. T. Becker relative to the ice basket screw issue was irrelevant.

   My review of the fee petitions indicates that travel time for depositions was properly listed on 3 separate occasions for a total of 23 hours ( 10/23/97-8 hours; 10/27/98-9 hours; 12/31/97-6 hours). The hourly rate for travel is excessive and is reduced 50 percent to $100.00 per hour for a total compensation of $2,300.00. Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (Sec'y Dec. 7, 1994).

   The times charged for the motion for summary judgment and motion for extension of time appear to be reasonable and will not be reduced. However the time charged by Ms. Boulton for reading and indexing the hearing transcript (41.5 hours) is excessive and is reduced by 50 percent to 20.75 hours. McCafferty v. Centerior Energy, 96-ERA-6 ( ARB Sept 24, 1997). In like manner the time charged for brief writing of 147 hours by Ms. Boulton and 67.2 hours by Mr. Van Beke is excessive considering the number of hours of pre-trial preparation and research particularly with regard to the motion for summary judgment which was allowed in full. Accordingly the time spent by Ms. Boulton and Mr. Van Beke is reduced by 50 percent to 73.5 hours for Ms. Boulton and 33.60 hours for Mr. Van Beke.

   I find nothing objectionable in the expenses charged for the services of Dr. W.T. Becker. However, I find, that the supplemental fee of 18 hours charged for fee petition preparation is excessive and is reduced to 8 hours.

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