This record was closed on July 21, 1999, as no further documents were filed.

   A prevailing party in a so-called whistleblower case is entitled to recover costs for attorney fees and expenses. In this context, a party may be considered to have prevailed if he or she succeeded on any significant issue in litigation which achieves some of the benefits the party sought in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Pursuant to the May 18, 1999 Recommended Decision and Order, Complainant is a prevailing party, thus, Complainant's counsels are entitled to a reasonable fee. A reasonable fee is typically calculated by the lodestar method, meaning the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Id. The party seeking a fee award must submit evidence documenting the hours worked and the rates claimed: all of Complainant's counsel have submitted such documentation. It is this Administrative Law Judge's responsibility to analyze all documentary evidence, as well as the arguments of all parties, in determining the appropriate and reasonable fee under the circumstances.

Altman Weil Survey

   At the outset, I must address the issue of the 1998 Altman Weil Survey of Law Firm Economics. This Administrative Law Judge, in the May 18, 1999 Recommended Decision and Order, permitted the parties to brief the issue of whether or not this Court should take judicial notice of the rates listed in the 1998 Altman Weil Survey. This survey compiles and reports attorney fee information in the different regions of the United States for partners, associates and paralegals. The Western region includes: Alaska, Arizona, Colorado; Hawaii; Idaho; Montana; Nevada; New Mexico; Oregon; Utah; Washington and Wyoming.

   When a court takes judicial notice, it recognizes the existence and truth of certain facts having a bearing on the controversy at bar which, from their nature, are not properly the subject of testimony, or which are universally regard as established by common notoriety. See Fed. Evid. Rule 201. I, upon careful reflection of the arguments of the parties, decline to take judicial notice of the Altman Weil Survey. While I find the survey informative and useful, I do not believe it is of such common notoriety, or of such a complete scope, to warrant a finding of established fact through judicial notice. I wish to stress, however, that I consider the study relevant and persuasive evidence of prevailing rates, as shall be discussed below in my discussion of what constitutes a reasonable attorney fee rate in this matter. Therefore, while the study is relevant, I decline to recognize it as a proven fact or as conclusive per se.

   In the present case, Attorneys Levitt and Anderson have submitted a joint fee petition, representing their service with the Government Accountability Project and the Project on Law

and the Workplace. Attorney Levitt requests a fee based upon a rate of $195.00 per hour, for 158 hours of time. Attorney Anderson requests a fee based upon a rate of $235.00 per hour, for 464.5 hours of time. They also request expenses in the amount of $12,245.94. The Respondents have challenged Complainant's proposed hourly rates, and VECO has raised specific challenges to both the hours expended and the costs incurred.

   Attorney Anderson requests a rate of $235.00 per hour, and Attorney Levitt requests a rate of $195.00 per hour. Complainant's petition, supported by affidavits, asserts that the fee is in conformity with the reasonable fees both in the Washington D.C. area, and with the rates typical of their national and specialized public interest practice. Further, Complainant's note that their fees are in conformity with the Laffey Matrix, which is sometimes utilized in cases within the Washington, D.C. area.

   Respondents, on the other hand, argue that both hourly rates are excessive. Respondent argue that the appropriate rate should be based on the prevailing rate in the community where the case is tried, and not the national rate or the Washington D.C. rate typically charged by Complainant's counsels. In support, Respondents submitted the 1998 Altman Weil Survey to demonstrate a fee of $179.00 or $175.00 per hour as appropriate for attorneys in the Western United States, including Alaska.

   Initially, I note that a reasonable attorney's fee is based on rates prevailing in the community for similar services. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Blackburn v. Metric Constructors, Inc., 1986-ERA-4 (Sec'y Oct. 30, 1991). This case was tried in Alaska, and the parties and evidence were located in Alaska. Thus, I conclude that a reasonable fee must be in conformity with the prevailing rates in Alaska and, specifically, the greater Anchorage area.

   In reaching this conclusion, I reject Complainant's argument that I should apply an exception to the local-community general rule, and adopt a non-local wage rate where either: (a) the complexity, specialized nature or undesirability of a case requires outside counsel; or (b) where the plaintiff was unable to retain local counsel. See National Wildlife Federation v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988). Initially, I note that this was a difficult and detailed case, however, I do not believe the case was of such complexity, or required such specialized skills, that the Complainant had to seek non-local counsel. While I acknowledge Complainant's counsels' expertise in this field and their thorough and most professional presentation of this case, I do not feel the general nature of the case was such that an Alaska-based employment law attorney or firm could not prosecute this claim. Further, while I find that Complainant made a good faith effort to obtain local counsel, I disagree that this is ground for approving an attorney fee that is in great disparity to the local community standard. Therefore, I reject Complainant's proposed fees, and I decline to utilize the Laffey Matrix in determining the proper hourly rate for this case.

incurred. The travel was not excessive, and I note that Complainant's counsel utilized the travel time to prepare the case. Therefore, I reject VECO's argument to reduce the fee due to the travel time. I wish to reiterate, however, that even though use of out-of-state counsel was reasonable, such counsel will be granted fees based on the prevailing rates of the area of the hearing.

   Respondent VECO also challenges seven (7) hours of Attorney Anderson's time spent becoming acquainted with the file after Attorney Garde's withdrawal. I reject VECO's argument. I conclude that this time was reasonable and necessary to her proper representation of Complainant in this matter, especially in light of the complexity of this case and the voluminous file as perfected by the parties at that point.

   Finally, I must address the issue raised by Complainant's July 21, 1999 filing of a Supplemental Fee Request. Specifically, Attorney Levitt requests an additional 3 hours, and Attorney Anderson requests an additional 4.5 hours be added to reflect the time they spent researching and drafting the Supplemental Brief on Rule 68's applicability. I find and conclude that such a request is proper. First, this Judge permitted the additional filing after denying Complainant's motion to strike. Further, the arguments put forth by Complainant's counsel addressed an important issue raised by the Respondents, and rejected below in this Recommended Decision and Order. Additionally, I noted that a successful attorney is entitled to compensation for time reasonably spent in preparing and defending a fee claim. Larry v. The Detroit Edison Co., 86-ERA-32 (Sec'y May 19, 1992). Based upon the issues presented, and the Complainant's filing, I find and conclude that 7.5 hours of time spent on the supplemental filing is appropriate and reasonable, and is hereby granted.

   In conclusion, I hereby approve Attorney Levitt's and Anderson's Fee Petition of $117,485.00, representing a fee of $29,230.00, payable to Attorney Levitt and the Government Accountability Project, based on 158 hours at a rate of $185.00 per hour; and a fee of $88,255.00, payable to Attorney Anderson and the Project on Liberty and The Workplace, based on 464.5 hours at a rate of $190.00 per hour. Additionally, I hereby award Attorney Levitt and Anderson expenses totaling 12,245.94.

   Attorney Billie Pirner Garde, Complainant's original counsel, has submitted a fee for her services from March of 1997 through April of 1998. Attorney Garde is seeking a fee of $37,160.00 plus ,244.7 in expenses. Respondents challenge this fee on general grounds that the hourly rate is excessive, and also raises specific objections to certain hours spent and costs incurred.

   Attorney Garde requests a fee based on a rate of $250.00 per hour for herself and Attorney Lyons; $160.00 per hour for Attorney Butcher, and $70.00 per hour for her paralegals. (CX 99) Attorney Garde bases this fee on her current rates, arguing that the current rate is more

acceptable than the historical rate charges, due to the delay in payment between when the work was performed and when the fee is paid. In a footnote, Attorney Garde also urges this Court to utilize the Laffey Matrix for establishing the relevant fee. Attorney Garde states: "The Laffey Matrix is a representative statement of prevailing market rates prepared and updated by the United States Attorney's Office, and regularly relied upon in the District of Columbia for recovery of fees under fee shifting statutes." Attorney Garde indicates that under the Laffey Matrix the attorney fees would actually set hourly rates at $335.00 for Attorney Lyons, $290.00 for Attorney Garde, and $195.00 for Attorney Butcher. (CX 99 at 3 n.2) Attorney Garde also submitted an affidavit which indicates that a 1997 retainer agreement between Attorney Garde and Complainant set forth billing rates at $175.00 per hour for partners, $125.00 per hour for associates, and $50.00 per hour for paralegals. (CX 99)

   Respondents VECO and Alyeska both challenge Attorney Garde's proposed rates as unreasonable and excessive. Initially, Respondents reject Attorney Garde's use of current rates, as opposed to the reasonable rate at the time the services were rendered. Further, Respondents argue that the hourly rates should be based on the reasonable and average rate in the Alaska, or Western United States, as opposed to Washington D.C. rates. Rather, Respondents request that a reasonable fee for Attorney Garde would be either the rates established in her retainer agreement with Complainant, or the rates provided in the Altman Weil survey, which are $179.00 and $126.00 per hour for attorney time, and $70.00 per hour for paralegal time.

   Initially, I note that there is no real dispute as to the hourly rate charged for the paralegal time. The $70.00 rate proposed by Attorney Garde is in conformity with the findings of the Altman Weil survey, and not challenged by Respondents. I am aware that the paralegal rate agreed to in the retainer agreement was $50.00 per hour, however, I find and conclude that $70.00 per hour is a reasonable and appropriate paralegal fee for this case.

   As for the attorney rates, I find and conclude that Attorney Garde's fee petition is excessive and the hourly rate must be reduced. I decline to adopt Attorney Garde's current fee rate, as the circumstances of this case do not justify that fee, which would amount to a windfall for Attorney Garde's firm. I also reject the argument that the fee provided in the retainer agreement should apply. A respondent is liable only for reasonable attorney fees, no matter what amount a complainant may have contracted to pay his or her attorney. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 93 (1989); Lederhaus v. Paschen & Midwest Inspection Serv., 1991-ERA-13 (Sec'y Jan. 13, 1993); Blackburn v. Metrick Constructors, Inc., 1986-ERA-4 (Sec'y Oct. 30, 1991). Rather, I conclude, as previously discussed, that the prevailing wage rate for the Western United States provides the most reasonable and persuasive evidence in this matter, and that a fee for Washington, D.C. would be unfair to Respondents. Nevertheless, I have also stated that I am cognizant of the difficulties and risk inherent in these so-called whistleblower for Complainant's counsel. The shear size and length of many of these cases, such as the present case, could serve to deter counsel from undertaking such representation if they were to receive a low level of compensation when and if their client receives some benefit. Therefore, based on the evidence provided by Respondents on the appropriate fee in the region, and the facts and complexity of this case, I conclude that the rates of

$190.00 per hour for Attorneys Garde and Lyons, and $130.00 for attorney Butcher, are reasonable and appropriate in this circumstance.

   Attorney Garde's fee is based on 135.2 hours of attorney time of Attorneys Garde and Lyons; 3.5 hours for Attorney Butcher, and 26 hours of paralegal time. (CX 99) Respondents allege several objections to Attorney Garde's Fee Petition. Initially, Respondents argue that all hours and expenses related to travel should be eliminated since Complainant failed to meet her burden of explaining why local counsel was not obtainable. I reject this argument for the reasons discussed above. I shall not delete any of the time spent traveling, or the travel expenses incurred by Attorney Garde and her staff, as they are reasonable under the circumstances.

   Next, Respondents challenge a June 6, 1997 entry for 1.5 hours of Attorney Garde's time as duplicative. The itemized petition does include two 1.5 hour entries dated June 6, 1997, both described as: "Meet with Client and Alyeska ECP (re: Concerns about processes)." There is nothing in the record to explain whether or not these represent two separate meetings, or a duplicate entry. I conclude, that in light of the confusion, the entries, on their face, are duplicative, and therefore I shall reduce Attorney Garde's time by 1.5 hours.

   Respondents next challenge a July 10, 1997 entry for 4.5 hours of Attorney Garde's time as excessive because it was spent reviewing "documentation from Client in support of Blacklisting Claims." The Respondents note that the Hensley Court has held that a Court may exclude hours incurred working on claims for which Complainant did not gain relief. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). I agree with Respondents. The July 10, 1997 entry was clearly described by Attorney Garde and was limited to time spent on the Blacklisting claim which was denied in the May 18, 1999 Recommended Decision and Order, accordingly I shall hereby deleted 4.5 hours of Attorney Garde's time for this entry.

   Next, Respondent Alyeska challenges 3.5 hours of Attorney Garde's time spent between August 5-7, 1997 in preparing Complainant's affidavit. Respondents claim that the time spent was excessive, as the affidavit was only two pages, including the caption and signature block. Upon review, I agree with Respondent, and shall reduce Attorney Garde's hours for this task from 3.5 hours to 1.5 hours.

   Respondents also challenge several hours Complainant's counsel spent on discovery matters as excessive. Specifically, Alyeska's opposition delineates 30.5 hours on general discovery, drafting and reviewing interrogatories and documents requests, and drafting a settlement agreement. Respondent Alyeska requests that the 30.5 hours be reduced to 16.5 hours. I find and conclude that this matter was a very complex, factually involved case. Further, I find that all parties performed detailed discovery which ensured a smooth hearing and proceeding before this Judge. Therefore, I find and conclude that the 30.5 hours expended on the discovery matters are reasonable and adequate, and I reject Respondents' challenges.

   Respondent Alyeska next challenges an April 28, 1998 entry for 2 hours of Attorney Lyon's time spent reviewing the files for transmittal to client. Respondent argues that it is inappropriate to claim fees related to withdrawal of counsel. I disagree. In the present case, Attorney Lyon's review of the file for transmittal assured that Complainant would not be jeopardized as a result of the withdrawal of counsel, and, in fact, provided for a continuity of representation. This time was reasonably expended to secure Complainant's rights, and therefore, will be approved.

   Finally, Respondent Alyeska objects to the expense of .50 per facsimile page, arguing that there is no authority for this rate. I reject his argument. I find that the faxing of documents to the parties and this Court is a normal and appropriate practice, especially given the geographic logistics present herein, and that the rate of .50 per page is reasonable and acceptable.

   In total, I have reduced Attorney Garde's time by 8 hours. Therefore, in conclusion, I hereby approve Attorney Garde's Fee Petition as follows: I approve a fee of $26,443.00, based on 127.2 hours of Attorney time at a rate of $190.00 per hour; 3.5 hours of Attorney time at a rate of $130.00 per hour; and 26 hours of paralegal time at a rate of $70.00 per hour. Further, I hereby award Attorney Garde expenses totaling 1,244.71.

   Respondents next argue that this Judge should reduce the awarded attorney fees because the requested fees are disproportionate to the recovery received by Complainant, especially in light of a settlement proposal prior to hearing. Respondents argue that Complainant's total recovery is approximately $43,841.81 in back pay, and compensatory and punitive damages against Respondents. Yet, the combined fee requested is over $175,000.00, approximately four times the amount of the award. Further, Respondents submitted an affidavit of Attorney Pate stating that a settlement of this matter for $40,000.00 was almost reached on October 14, 1997. Nevertheless, the matter went to trial, and now Respondents argue that the additional expenditure in attorney fees accrued between the settlement conference and the ultimate recommended decision is grossly disproportionate to the additional $3,841.81 received in benefits. Specifically, Respondent state that they "should not have to pay such a severe penalty because Ms. Sayre chose to continue with her litigation despite very little difference in the eventual outcome." Complainant, on the other hand, argues that the settlement discussions are irrelevant to this preceding, and should not be considered.

   I reject Respondents' argument, and decline to reduce the fee based on a disproportionate recovery, or under either the Alaska or Federal Offer of Judgement rules. See Fed. R. Civ. P. 68; Alaska R. Civ. P. 68. A fee in a whistleblower case need not by proportional to the recovery for a complainant. See Hensley v. Eckerhart, 461 U.S. 424 (1983); Hoffman v. Bossert, 1994-CAA-4 (ARB Jan. 22, 1997). Further, I agree with Complainant's argument that Rule 68, dealing with Offers of Judgment, are sufficiently distinct from the factual scenario presented by the settlement negotiations in this matter. Moreover, I find the arguments

relating to the settlement conference irrelevant to this proceedings. It is not this Judge's responsibility to analyze the similarities of recovery under the 'almost-settlement,' and the actual Recommended Decision and Order. This Court is neither concerned with any discussions pending during settlement negotiations, nor any alleged blame for why a settlement was not reached. This Court is only focused on the fact that this matter was fully ligated, and Complainant was awarded benefits. Thus, Complainant is entitled to a reasonable fee for services performed. Therefore, I have already computed the reasonable rate and fee for Complainant's counsel, and I conclude that this fee is not so disproportionate to Complainant's actual monetary recovery to warrant a downward adjustment.

   Complainant's counsel requests an award of interest on both the attorney fee and the costs. I reject these claims. First, the Secretary has determined that the decision in Library of Congress v. Shaw, 478 U.S. 310 (1986), appears to preclude an award of interest on the attorney fees on whistleblower complaints filed pursuant to the SDWA, CAA, SWDA, CWA, or CERCLA. In Shaw, the Supreme Court held that "[i]n the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award." Id. at 314. The Secretary noted that neither the SDWA, CAA, SWDA, CWA, or CERCLA contains an express waiver of sovereign immunity with respect to interest on attorney fees. Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (Sec'y Dec. 7, 1994). Further, the language of both the TSCA and WPCA does not provide for an award of interest on attorney fees. Finally, an award of interest is not available for costs. Id.; Johnson v. Bechtel Construction Co., 95-ERA-11 (Sec'y Feb. 26, 1996). Therefore, I reject this claim.

   Finally, Complainant's counsel request that "an appropriate adjustment to the rates awarded should the final judgement of the Department of Labor occur beyond at a time when the rates applied are no long [sic] in effect." I reject this claim. As previously held, I find and conclude that the fees determined in this Recommended Decision and Order are both reasonable and appropriate.

   Based on the foregoing, this Judge RECOMMENDS Respondents Alyeska Pipeline Service Company and VECO Engineering, be ORDERED to:

(1) Pay the sum of $29,230.00 to Attorney Sarah Levitt, of the Government Accountability Project, for services rendered to Complainant in this matter;

(2) Pay the sum of $88,255.00 to Attorney A. Arlene Anderson, of the Project on Liberty and the Workplace, for services rendered to Complainant in this matter;

(3) Pay the sum of $12,245.94 to Attorneys Anderson and Levitt for expenses reasonably incurred in this case.

(4) Pay the sum of $26,443.00 to Attorney Billie Garde for services rendered to Complainant in this matter; and

(5) Pay the sum of ,244.71 to Attorney Billie Garde for expenses she reasonably incurred in this case.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts

DWD:pte

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).