U.S. Department of Labor
Office of Administrative Law Judges
211 Main Street - Suite 600
San Francisco, California 94105
(415) 974-0514
FTS 8-454-0514
DATE: May 17, 1988
CASE NO: 86-ERA-36
IN THE MATTER OF
RONALD J. GOLDSTEIN
COMPLAINANT
v.
EBASCO CONSTRUCTORS, INCORPORATED
RESPONDENT
Before: ROBERT J. BRISSENDEN
Administrative Law Judge
RECOMMENDED SUPPLEMENTAL DECISION AND ORDER
Pursuant to Number 6 of my March 3, 1988 Recommended Decision
and Order, at page 13 and to the Errata Order of March 4, 1988,
Complainant's attorneys have filed a petition for attorney fees and
costs. Respondent's counsel has timely filed a response.
Initially, I must deal with Respondent's contention that the
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Government Accountability Project group (hereinafter GAP) failed to,
file within the time clearly set forth in the Recommended Decision
and Order and in the Errata Order. Respondent is correct that the
plain meaning of the Order is that the time limit is to be ten days
from issuance of the Recommended Decision and Order. However, my
attorney-adviser's memoranda of various telephone calls indicate
that the trial attorney for GAP may not have received a copy of the
Recommended Decision and Order (hereinafter D. & O.) at her
particular home-office address, even though the mail delivery to
GAP's Washington, D.C. office was within a day or so after delivery
to attorney Hooper (for Respondent) in Houston, Texas. Further,
such memoranda indicate that Ma. Billie Garde (for Complainant)
reported the delay to this office, advised my attorney-adviser that
she would be in communication with Mr. Hooper, and requested
additional time to prepare her Fee and Costo petition. Assuming
that there had been such communication between counsel, as was
strongly encouraged from the time this judge was assigned the case,
the extra time was granted. The postmark date shows that the
petition was filed within the extended time limit. I therefore
rule that the submission was timely. However, I take note of the
failure to adequately communicate with adverse counsel so as to
avoid any appearance of an ex parte communication. Recently, an
attorney for GAP telephoned my attorney-adviser to request the
opportunity to file a response to Respondent's response. Such a
subject should have been handled by a conference call, after a
discussion with Mr. Hooper. Since the request was denied, further
inquiries into communications between adverse counsel were not
made.
The Energy Reorganization Act (ERA) provides for attorney fees
and costs, as follows:
If an order is issued under this paragraph, the
Secretary, at the request of the complainant shall
assess against the person against whom the order is
issued a sum equal to the aggregate amount of all costs
and expenses (including attorneys' and expert witness
fees) reasonably incurred, as determined by the
Secretary, by the complainant for, or in connection
with, the bringing of the complaint upon which the order
is issued.
42 U.S.C. Section 5851(b)(2)(b).
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GAP has filed for attorney fees based on the work done by its
attorneys Billie P. Garde and Richard E. Condit.
In addition to observing guidelines along the "lodestar"
approach of the Lindy Brothers Builders, Inc. v. American Radiator
& Standard Sanitary Corp. case, 487 F.2d 161 (3rd Cir. 1973), I
have considered the cases of Hensley v. Eckerhart, 461 U.S. 424,
103 S. Ct. 1933 (1983) and Pennsylvania v. Delaware Valley
Citizens' Council cases; 106 S. Ct. 3088 (1986) and 107 S. Ct. 3078
(1987).
In the 1986 Pennsylvania v. Delaware Valley Citizens' Council
case, the Supreme Court stated that the product of multiplying the
reasonable number of hours times a reasonable hourly rate was
presumed to be the reasonable fee, though upward adjustment vas
permissible only in certain "rare" or "exceptional" cases. The
latter type of case must be supported by specific evidence and
detailed findings. Pennsylvania, (1986) at 3098. Although I have
considered some of the 12 factors of the Johnson v. Georgia Highway
Express, Inc. case, 488 F.2d 714 (1974), part of these "factors"
are either discarded by Lindy Bros., supra or by the Pennsylvania
v. Delaware, supra cases.
In determining the reasonable hours for this case, I have kept
in mind that GAP has been handling whistle blower cases for a few
years and its published works (see pp. 8, 9 and 10 of the Petition)
should be readily available to Ms. Garde and Mr. Condit.
Accordingly, research for this relatively simple case represented
by Ms. Garde's hours are cut down. "Research" should not have been
required for the regulations and the Act on this case at all and a
minimum of time was needed for the cases on "protected activity"
and the "dual motive" concepts. GAP attorneys were well versed on
these cases. The controversy between the decisions in the Fifth
Circuit and the Ninth Circuit along with the Secretary's position
on this issue would not require lengthy time to research. Legal
research by Mr. Condit was not excessive, but I consider his work
in that regard duplicative.
It is only in the field of research that I feel that the two
attorneys had sufficient experience to prepare a case such as this
for trial. Since the trial itself affords the only opportunity for
a judge, in this type of case, to observe the quality of work, I am
basing my calculation, of reasonable hours times a reasonable
hourly rate, on the handling of the trial. In my opinion the trial
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of a case seriously affecting Complainant's entire professional
career should never have been put in the hands of a novice attorney
with such limited trial experience. Ms. Garde undoubtedly has
great potential but her presentation of evidentiary material bad
serious flaws, especially in the handling of witnesses. From the
outset of the assignment of the case, it was observed that
Ms. Garde could not meet deadlines, failed to communicate with
adverse counsel and did not fully inform the court of such
failure. I can well understand attorney Hooper's frustration with
communications by Ms. Garde with my clerk, Ms. Nutt, to gain extra
time for the brief and the submission of the Fee and Costs
petition. In each instance assurances were given that there had
been communication with Mr. Hooper's office. It now appears that
that may not have been the case. However, whatever was gained by
the extra time was not reflected by the final product, since I
found Mr. Hooper's brief and response to the Attorney Fee petition
superior in quality to the documents of the GAP attorneys. The
failure to communicate with adverse counsel on a matter of meeting
deadlines, though serious, I attribute to inexperience. The
calling of my clerk direct, without arranging for a conference
call, for requests of various types, no matter how meritorious,
should have been preceded by a discussion with adverse counsel, at
the least. A recent request to "respond" to Mr. Hooper's Response
to Attorney Fee Petition certainly does not appear to be proper and
fair to adverse counsel. Such request as mentioned above vas
turned down, and the other matters mentioned above have not
resulted in adverse consequences to Respondent, but all such ex
parte requests are considered as evidence of inexperience.
1 (1) the party
charged with discrimination is an employer subject
to the Act.
(2) the complaining employee was discharged or otherwise
discriminated against with respect to his compensation, terms,
conditions or privileges of employment; and
(3) the alleged discrimination occurred because the employee
engaged in "protected" activity. De Ford v. Secretary of Labor,
700 F.2d 281, 286 (6th Cir. 1983).