DATE: December 7, 1995
CASE NO. 94-ERA-9
IN THE MATTER OF
MAGED GABALLA,
COMPLAINANT,
v.
THE ATLANTIC GROUP,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
INTERIM ORDER
This case arises under the Energy Reorganization Act of
1974, 42 U.S.C. § 5851 (1988 and Supp. V), as amended by
Section 2902 of the Comprehensive National Energy Act of 1992,
Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). On June 19,
1995, the Secretary issued a Preliminary Order requiring the
Complainant, Maged Gaballa (Gaballa) to submit an itemized
petition for the payment of costs, expenses and fees incurred
in bringing the complaint against Respondent, The Atlantic Group
(TAG). The Secretary's Order was issued pursuant to the
Administrative Law Judge's (ALJ) May 16, 1995, Recommended
Decision and Order (R. D. and O.) holding that TAG discriminated
against Gaballa because of protected activity. R. D. and O.
at 14.
On Aug. 21, 1995, Gaballa through his attorneys, filed
Complainant's Request for Attorneys' Fees and Costs (Request)
pursuant to the Secretary's Preliminary Order. TAG through its
attorneys, filed Respondent's Brief in Opposition to Attorney's
Fees and Costs (Opposition) on Sept. 7, 1995. Briefs have
[PAGE 2]
already been filed by the parties regarding the merits of the
ALJ's R. D. and O. A final Secretarial decision with regard to
the ALJ's recommended award must await the Secretary's final
decision on the substance of the case, which will be issued in
due course.
As I concluded in C. D. Varnadore v. Oak Ridge National
Laboratory and Lockheed Martin Energy Systems, Inc., Case
Nos. 94-CAA-2, 94-CAA-3, Sec. Preliminary Order, Sep. 11, 1995,
slip op. at 3-8, where a complainant has prevailed after a
hearing before an ALJ and a recommended decision issued, the
Secretary shall, pursuant to § 5851(b)(2)(A) and (B), issue
an interim order awarding to the complainant, an amount equal to
the aggregate amount of all costs and expenses (including
attorneys' and expert witness fees) which the Secretary
determines to have been reasonably incurred for, or in connection
with, bringing the complaint. If TAG is successful in its appeal
of the ALJ's recommended decision, it is anticipated that
recoupment of the attorney's fees would not pose a substantial
problem. Varnadore at 9-10; 29 C.F.R. § 18.36
(1994).
In calculating attorney fees under the statute, I employ the
lodestar method, which requires multiplying the number of hours
reasonably expended in pursuing the litigation by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983).
Gaballa's attorney, David Colapinto, has requested that his
hourly rate be set at $225. Request at 8. Respondent suggests
that an hourly rate of $150 would be appropriate. Opposition at
18. In December 1994, I considered materials submitted by
Colapinto in Jenkins v. U.S. Environmental Protection Agency,
Case No. 92-CAA-6, Dec 7, 1994, and determined at that time
that an hourly rate of $190 per hour was reasonable. I find that
a 5% increase in Colapinto's hourly rate, increasing that rate to
$200, would now be appropriate.
Respondent does not object to the $100 hourly rate for
Melissa Brown, Colapinto's associate, nor to the $50 hourly rate
for Andrean Eaton, a law clerk assisting Colapinto in this case.
However, Respondent does object to the hours claimed for them
because of the lack of an itemized breakdown. Objection at 15.
Respondent likewise raises a number of objections to the number
of hours claimed by Colapinto in the fee petition.
Gaballa was represented by Colapinto in the underlying
discrimination complaint against the Arizona Public Service
Company (APS), the Arizona Nuclear Power Project (ANPP) and TAG.
The discrimination suit arose out of certain occurrences
regarding Gaballa's employment by TAG at APS's Palo Verde Nuclear
Generating Station (PVNGS). That matter, along with alleged
negative employment references by Vance Pettus, TAG's Site
Manager at PVNGS, which gave rise to Gaballa's allegations of
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blacklisting, were the bases of Gaballa's complaints to the Wage
and Hour Administrator in December 1993, and January 1994.
Gaballa's suit with regard to the allegations of discrimination
by APS, ANPP and TAG, not including the blacklisting by TAG, was
settled on June 7, 1994.
Colapinto's accounting of the time he spent litigating this
matter up to the date of the settlement does not distinguish,
for the most part, between the time he spent pursuing the
discrimination matter involving TAG and APS and the alleged
blacklisting which concerns only TAG. The blacklisting claim
against TAG is the only basis for the fee award in this
proceeding.[1] Request, Exhibit 2 at 3-9.
The accounting references to "DRC" and "Rankin" (Documented
Reference Check and Mike Rankin, a DRC employee), undoubtedly
pertain to the alleged blacklisting, since it was DRC's report
of Pettus' comments to Rankin that gave rise to the blacklisting
allegation. However, there is no indication with regard to the
balance of the time claimed by Colapinto prior to June 7, 1994,
that his efforts were not related to issues pertaining to the
discrimination claim. Gaballa is entitled to only those fees
incurred in furtherance of his blacklisting litigation against
TAG.
TAG's request that Colapinto's travel time to Phoenix in
January 1994, when he prepared and accompanied Gaballa to the
Wage and Hour interview, as well as the time he spent in Phoenix
in May 1994, at the Pettus' deposition, be reduced by half is
well taken. A review of Gaballa's statement given to Wage and
Hour at that time reveals only the details of his discrimination
allegations and is silent on the alleged blacklisting.
Similarly, Pettus' deposition may have dealt with the
discrimination allegations as well as the alleged blacklisting.
I find, therefore that 1.0 hour on 11/22/93; 5.0 hours on 1/10-
12/94; .50 hour on 1/31/94; and 7.50 hours on 5/14-16/94 is
reasonable to attribute to Gaballa's blacklisting allegation.
The time in May 1994, pertaining to the DRC report and the
Rankin and Taylor depositions are allowable. Ellen Taylor is
TAG's Personnel Manager at its Norfolk VA home office. I will
also allow half of the time claimed for the preparation and
response to TAG's requests for documents and interrogatories.
All of the time claimed in June 1994, is allowable except the
.35 of an hour pertaining to correspondence with APS's counsel
on June 10.
I find Colapinto's claimed time of 13.75 hours to review the
more than 400 page hearing transcript and to prepare proposed
findings of fact reasonable, and reject TAG's request that the
same be reduced to 8.0 hours. I likewise reject TAG's request
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to reduce Colapinto's claimed 24.25 hours to draft the 40 page
conclusions of law as excessive. I deduct the .50 hour claimed
on 9/26 which pertains to correspondence to APS's counsel.
Accordingly, I note that Colapinto reasonably claimed 140.20
hours for pursuit of Gaballa's blacklisting complaint.
I accept Colapinto's request for 25 hours of work done by
Brown. I find ten hours of preparation for the hearing and 15
hours at the hearing reasonable. I am reducing the hours claimed
for Eaton by 50% given Colapinto's personal time and involvement
in reviewing the transcript, drafting the conclusions of law and
preparing for the Norfolk hearing.
I reject Colapinto's statement of costs incurred prior to
June 7, 1994, since it likewise lacks any differentiation between
costs pertaining to the discrimination action and those
pertaining to the blacklisting action. I do allow those costs
attributable to the two trips to Phoenix, which I reduce by 50%.
I accept all of the costs attributable to the trip to Norfolk.
These costs total ,243.63. The costs claimed from July-
November 1994, are accepted as presented, and total ,129.64.
Gaballa's accounting of his costs for "[p]hone, faxes
& photocopying" are not substantiated with regard to his
blacklisting action, nor is his claim for expenses with regard
to his deposition in April 1994. Request at 14. His claimed
costs for hotel and meals in June 1994, the fee for Documented
Reference Check, milage and expert fees are accepted. These
costs total $2,097.90.
In reviewing Colapinto's affidavit, Request, Exhibit 2,
I note the depth of his experience and the level of expertise
he has obtained in the environmental whistleblower field.
Id. at 9-12. The request for attorney's fees on behalf of
Stephen M. Kohn, Request, Exhibit 1 at 1-2, appear to be
duplicative of Colapinto's activities and do not appear to have
added an appreciable element in the litigation of this case. I
therefore deny Kohn's request for attorney's fees in this case.
ORDER
Accordingly, The Atlantic Group is ordered to reimburse the
Complainant as follows:
1) Maged Gaballa for costs and expenses in the amount of
$2,097.902) Kohn, Kohn, and Colapinto for costs and expenses in
the amount of $2,373.27
3) Attorney's fees for David K. Colapinto, 140.20 hours at
$200/hour = $28,040
4) Attorney's fees for Melissa Brown, 25 hours at
$100/hour = $2,500
5) Attorney's fees for Andrean Eaton, 40 hours at
$50/hour = ,000
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SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Gaballa's General Release to TAG concerning the settlement of
the discrimination allegations releases TAG from liability for
all costs and attorney's fees pertaining thereto. Release,
paragraph F.
