The complainant was awarded reasonable attorney fees under the
Equal Access to Justice Act, 28 U.S.C. § 2412 where the
Secretary was found to have unreasonably decided to litigate the
dismissal of a whistleblower complaint following a motion for
reconsideration that established that the dismissal with
prejudice had imposed a material condition on the parties'
settlement agreement. Thompson v. United States Dept. of
Labor, 885 F2d 551 (9th Cir. 1989) (the court did not
reach whether ERA, 42 U.S.C. § 5851 authorizes an award of
attorney's fees to an employee appealing an order of the
Secretary, but noted that the Sixth Circuit had found that it
does not. See De Ford 715 F2d 231.)
[Nuclear & Environmental Whistleblower Digest XVI E]
ATTORNEY'S FEES; ARB WILL NOT ALLOW REQUESTS FOR FEES TO BE DRAWN OUT AD INFINITIUM
In Leveille v. New York Air National Guard, ARB No. 98 079, ALJ Nos. 1994 TSC 3 and 4 (ARB Dec. 16, 2003), the ARB denied Complainant's request to keep the record open for the filing of additional fee requests relating to the "ongoing need [for representation] as a result of the ARB's order on damages Y for the payment of future medical expenses in the amount of $10,000." The Board had earlier admonished the litigants not to draw out attorney's fees requests "ad infinitium" and stated clearly that no further requests for attorney's fees would be allowed.
[Nuclear & Environmental Whistleblower Digest XVI E] ATTORNEY'S FEE; ATTORNEY'S STANDING TO ASSERT RIGHTS SEPARATE FROM THOSE OF THE COMPLAINANT
In Schlagel v. Dow Corning Corp., ARB No. 02 092, ALJ No. 2001 CER 1 (ARB Jan. 9, 2003), Complainant's attorney had filed a initial and reply brief before the ARB, but Complainant subsequently determined to represent himself, and the attorney filed an application to intervene for the limited purpose of protecting her right to attorney's fees for hours expended in work before the Board. The ARB issued an Order to Show Cause directing the attorney to brief the ARB's authority in this respect, indicating its concern that there was not any legal authority to support "the proposition that an attorney has a right separately enforceable from that of a complainant to obtain attorney fees under the whistleblower provisions of the [CAA, CERCLA and TSCA].
[Nuclear & Environmental Whistleblower Digest XVI E 1]
ATTORNEY FEES; STANDING OF COUNSEL TO FILE PETITION
In McQuade v. Oak Ridge Operations Office,
USDOE, 1999 CAA 7, 8, 9 and 10 (ALJ June 18, 2002), the ALJ held in a
recommended decision on attorney fees that an attorney who had been discharged by
Complainants as counsel did not have standing to request an award of attorney fees where
Complainants had not requested an award of attorney fees and affirmatively opposed an award
of fees to the former counsel. The ALJ cited the following statutory language from the CAA,
the SDWA and the TSCA in regard to standing to request fees:
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 was issued.
The ALJ noted that similar language existed under the CERCLA, the SWDA and the WPCA, and
concluded that the statutes only permitted the "complainant" or
"applicant" to be awarded reasonable attorney fees and costs.
The ALJ also reviewed authority under 42 U.S.C. § 1988 and other similar law, and
concluding that the attorney fee mechanism established by the employee protection provisions
of the environmental statutes are indistinguishable from the provisions of section 1988, held
that "attorney's fees and costs under the environmental statutes may only be awarded
at the request and in the name of complainants as the real parties in interest." Citing
Brown v. General Motors Corp., 722 F.2d 1009 (2d Cir. 1983), and other authority.
[Nuclear & Environmental Digest XVI E 1]
ATTORNEY'S FEES; COMPLAINANT NOT ENTITLED TO FEES AND COSTS ON SUCCESSFUL CHALLENGE TO SETTLEMENT AGREEMENT WHERE ORIGINAL COMPLAINT WAS NOT GROUNDED IN ALLEGATION OF DISCRIMINATION BASED ON OFFER OF SETTLEMENT WITH PROVISIONS THAT VIOLATED ERA
In Macktal v. Brown & Root, Inc., ARB No. 98-112, ALJ No. 1986-ERA-23 (ARB Jan. 9, 2001), the ARB found that Complainant was not entitled to attorneys fees and costs for proceedings before DOL and the Court of Appeals related to his successful challenge to a settlement agreement to which he had previously agreed. The proceedings in Macktal were complex. Complainant had entered into a settlement agreement, and was paid some monies by Respondent. Complainant, with new legal representation, subsequently disavowed the agreement upon review by the Secretary of Labor. The Secretary found that Complainant was bound to the agreement, but also found that one paragraph of the agreement was contrary to public policy and therefore severed it from the agreement. Complainant appealed to the Fifth Circuit, which held that the Secretary could not simply strike terms from a settlement agreement the Secretary's only options were to enter the agreement by approving it or refuse to enter into by rejecting it. On remand, the Secretary disapproved the settlement and returned the case to the ALJ. On remand, the ALJ dismissed the case based on Fifth Circuit case law that internal complaints were not protected activity [the ERA has since been amended to explicitly include internal complaints]. On review, the ARB agreed with the ALJ's decision on the merits, but held that Complainant was entitled to attorney's fees for successful litigation on the settlement agreement issue. The ARB therefore remanded the case to the ALJ to consider a petition for attorney's fees and costs.
Upon review of the ALJ's recommended decision on the fee petition, the ARB concluded that the case was controlled by the intervening decision in Harris v. Tennessee Valley Authority, ARB No. 99-004, ALJ Nos. 1997-ERA-26 and 50 (ARB Nov. 29, 2000). Because Complainant's complaint was about alleged discriminatory discharge and not about the restrictive terms of a settlement agreement, his successful challenge to the settlement agreement did not meet the statutory elements required for an award of attorney's fees and costs. See slip op. at 6, detailing requirements of 42 U.S.C.A. §5851(b)(2)(A), as it appeared at the relevant time. The ARB distinguished the case of Connecticut Light & Power Co. v. Secretary of Labor, 85 F.3d 89 (2d Cir. 1996), in which the complaint was grounded in the allegation that Respondent had violated the ERA by offering him a settlement agreement with illegal "gag provisions." Since Macktal's complaint was not about the offer of settlement terms that violate the ERA, the Secretary never ruled that Respondent had discriminated against him for that reason. Thus, there was no hearing on this issue and no order issued providing relief for such discrimination both prerequisites to an award of attorneys fees and costs.
[N/E Digest XVI E 1]
ATTORNEY FEE REQUEST; LENGTHY DELAY
In Macktal v. Brown & Root,
Inc.,
86-ERA-23 (ARB Jan. 6, 1998),
Complainant filed a request for attorney's fees for his successful litigation
of an issue relating to
an illegal term in a settlement agreement. The request was delayed by eight
years.
The ARB noted reservations about entertaining the request after such a lengthy
delay, but
cited some district court decisions indicating that such motions are not
barred by the mere
passage of time, and found that its reservations were overcome "by the
expansive language
of the ERA regarding the recovery of attorney's fees and the resulting
incentive to pursue
environmental whistleblower claims." Slip op. at 6 n.8.
ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT; ATTORNEY
MISCONDUCT PROCEEDING [N/E Digest XVI E 1]
In Rex v. Ebasco Services, Inc., 87-ERA-6 and
40 (ALJ
Nov. 29, 1995), the ALJ recommended denial of a petition for
an award of fees under the Equal Access to Justice Act
(EAJA), 5 U.S.C. § 504 and its implementing DOL
regulation at 29 C.F.R. § 16.101-16-308. The petition
arose in connection with a disciplinary proceeding arising
out the underlying whistleblower case. The ALJ found that
the disciplinary proceeding was not a covered adversary
adjudication within the meaning of the EAJA because an on-
the-record 5 U.S.C. § 554 hearing is not statutorily
or constitutionally required for such a disciplinary
hearing.
XVI E 1 Attorney's fees under EAJA
Employee filed a complaint with the NRC, after which Employer
allegedly demoted, transferred and discriminated against him in
his employment. Parties entered into a settlement agreement,
purposely remaining silent as to any dismissal of the claims,
either with or without prejudice. The court held that Employee's
obtaining a remand constituted "some relief on the merits of
his claims" so he was a prevailing party, National
Wildlife Federation, 870 F.2d at 545 (quoting Hanrahan v.
Hampton, 446 U.S. 754, 757 (1980)), and that the Secretary's
position on appeal was not "substantially justified" so
the Secretary cannot deny attorney fees because there was no
reasonable basis in law and fact for the Secretary's position.
Pierce v. Underwood, __ U.S. __, 108 S.Ct. 2541 (1980).
Furthermore, since the court found that employee is entitled to
attorney's fees under the EAJA, they did not address whether
section 5851 authorizes an award of attorney's fees to an
employee appealing an order of the Secretary. Cf. DeFord v.
Secretary of Labor, 715 F.2d 231 (6th Cir. 1983) (section
5851 does not authorize the court of appeals to award attorney's
fees to an employee appealing an order of the Secretary).
Thompson v. United States, 885 F.2d 551, 558 (9th
Cir. 1989).
Employee filed claim with Department of Labor, alleging that his
job transfer was the result of deliberate discrimination by
employer (TVA) against him due to his participation in the NRC
inspection process. The Secretary awarded relief to employee,
but denied certain attorneys' fees and expenses under section
5851. Section 5851 provides that once discrimination is shown the
Secretary "shall assess ... all costs and expenses ...
reasonably incurred ... for, or in connection with, the bringing
of the complaint." The court stated that the Secretary must
determine whether expenses were "reasonably incurred,"
but otherwise no discretion rests in him. Therefore, even if a
complainant does not ultimately receive compensatory damages or
other particular relief which is sought, it would not be proper
for the Secretary to deny fees and expenses unless he determines
first that they were not "reasonably incurred."
DeFord v. Secretary of Labor, 700 F.2d 281, 288
(6th Cir. 1983).
[Nuclear & Environmental Whistleblower Digest XVI E 2]
ATTORNEY'S FEES; TIME SPENT ON ADVICE ON TAX CONSEQUENCES OF DAMAGE AWARD, DISCUSSIONS WITH RESPONDENT ON WHETHER IT WOULD APPEAL, AND COORDINATION OF PAYMENT OF DAMAGES IS NOT IN "LITIGATION" OF THE CASE AND NOT COMPENSABLE
Time spent by a complainant's counsel on the question of the tax consequences of a damages award under the whistleblower provision of the TSCA is not compensable because it is not related to litigation of the case and therefore is not "reasonably incurred." See 42 U.S.C. § 7622(b)(2)(B)(2000). Once the complainant receives the monetary damages ordered by the ARB, the litigation of the case is at an end and the impact on the complainant's financial situation cannot be related to litigation of the case.
Time spend in correspondence and in conversation with Respondent's counsel to discern whether it would appeal the ARB's decision likewise has no reasonable relationship to litigating the case and is not compensable. The same is true of time spend coordinating the payment of damages.
[Nuclear & Environmental Digest XVI E 2]
ATTORNEY FEES; UNSUCCESSFUL CHALLENGE TO AMOUNT OF DAMAGES
AWARDED BY ALJ
In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ
Nos. 1994-TSC-3 and 4 (ARB Feb. 15, 2000 ), the Respondents argued that attorneys' fees and
costs should not be awarded for work performed on Complainant's Reply brief before the ARB
on review of the ALJ's Recommended Decision and Order on Damages because, in Respondents'
view, Complainant was not successful in challenging the amount of damages awarded by the
ALJ.
The ARB, however, found that Complainant was successful in preserving the damage
award recommended by the ALJ before the ARB, and that therefore attorneys' fees for work on
that brief defending the ALJ's recommended award were reasonably incurred.
ATTORNEY'S FEES; REASONABLY INCURRED STANDARD; LATE BRIEF;
ABSENCE OF OBJECTION
[N/E Digest XVI E 2]
The ERA requires a respondent to pay only those costs,
including attorney's fees, reasonably incurred in bringing a
complaint. 42 U.S.C. § 5851(b)(2)(B). Where Complainant's
attorney prepared and filed a brief on review by the Secretary
several months late, without seeking leave or providing any
reason for the delay, a fee request for preparation of the brief
was not reasonable, and was properly deducted by the ALJ from his
recommendation on attorney's fees. The Board did not find
persuasive Complainant's argument that Respondent waived any
objection to hours claimed for preparing the brief when it did
not oppose the earlier fee request.
ATTORNEY'S FEE REQUEST; ALJ NOT BOUND BY OBJECTIONS OF
OPPOSING PARTY [N/E Digest XVI E 2]
In Sprague v. American Nuclear Resources,
Inc., 92-ERA-37 (ALJ Dec. 5, 1995), the Complainant
maintained that
the Respondent waived its right to object to an attorney fee
request item because the objection was untimely. In his
recommended order, the ALJ rejected this argument, finding
that it is within the discretion of the ALJ to determine
what is a reasonable fee, and that he was not bound by the
objections of the opposing party in a review of the fee
petition.
In calculating attorney fees under the whistleblower provisions
of the TSCA, SDWA, CAA, SWDA,
WPCA, and CERCLA, the Secretary employs the lodestar method,
which requires multiplying the
number of hours reasonably expended in bringing the litigation by
a reasonable hourly rate.
Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (Sec'y Dec. 7,
1994) (citing Hensley v. Eckerhart, 461 U.S. 424
(1983)).
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY FEES; LACK OF SPECIFICITY OF ENTRIES; PERCENTAGE REDUCTION IN AWARD
In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), the ALJ found that entries in a fee petition such as "review documents," "depositions", "trial preparation," and "strategizing" did not provide a meaningful opportunity for review of the reasonableness or necessity of the fees charged. The ALJ also found that where the billing descriptions do not afford a meaningful opportunity to determine the reasonableness of the time expenditures, an ALJ need not engage in an item by item reduction of the hours. Rather, in such circumstances it is permissible to make reductions based upon a percentage basis. Although appeals were taken from the ALJ's recommended decision, the parties settled on appeal, and the ARB did not review this ruling. See Graf v. Wackenhut Services, L.L.C.
[Nuclear & Environmental Digest XVI E 3 a]
ADMINISTRATIVE (JUDICIAL) NOTICE; SURVEY OF LAW FIRM ECONOMICS;
MARTINDATE-HUBBELL LAW DIRECTORY
In Ferguson v. Weststar, Inc., 1998-CAA-9 (ALJ June 21, 2000), the
ALJ, while reviewing an attorney fee application, concluded that it was proper to take judicial
notice of the Survey of Law Firm Economics, published by Altman & Weil
Publications, Inc., which reports hourly billing rates by individual non-litigation specialities and
years of legal experience. The ALJ also took judicial notice of the Martindale-Hubbell Law
Directory in considering Complainant's counsel scope of experience and specializations.
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY FEES; HOURLY RATE MUST BE DOCUMENTED
The ALJ in Hoch v. Clark County Health District, 1998-CAA-12 (ALJ
Mar. 15, 2000), recommended an attorney fee award of $235 an hour for an experienced Las
Vegas attorney who had demonstrated a high level of expertise and impressive talents in the
proceedings. This amount, however, was a reduction from the $250 an hour requested because
the attorney had not documented by survey data or other evidence that higher hourly rate.
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY FEES: REQUIREMENT OF ADEQUATE DOCUMENTATION;
APPROPRIATENESS OF PERCENTAGE REDUCTION
In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ
Nos. 1994-TSC-3 and 4 (ARB Feb. 15, 2000 ), the ARB quoted with approval the following
summary by an ALJ of the principles applicable in reviewing an attorneys' fees application under
the environmental whistleblower statutes:
The starting point for calculating a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.
Hensley [v. Eckerhart], 461 U.S. [424] at 433 [1983]. The party seeking
a fee award must submit evidence documenting the hours worked and the rates
claimed. If the documentation of hours is inadequate, the award may be reduced
accordingly. Id. at 433. Hours not reasonably expended are to be
excluded. Counsel seeking a fee award should exclude hours which are excessive,
redundant or otherwise unnecessary. The same principles govern here as in the
case of an attorney billing his client. Id. at 434. Where fee petitions
insufficiently document the hours reported, a court need not engage in a detailed
item by item reduction of the hours, an impossible burden where the
documentation is inadequate. In these instances the trier of fact has the discretion
to reduce the hours on a percentage basis. See Ecos v. Brinegan, 671 F.
Supp. 381, 398 (M.D. N.C. 1987); Goldstein v. Ebasco Constructors,
Inc., 6 DOL Decisions No. 2 217, 222-223 (1992).
Leveille, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4, slip op. at 4
(ARB Feb. 15, 2000 ), quoting Varnadore v. Oak Ridge National Laboratory, 1992-CAA-2 and 5 and 1993-CAA-1, slip op. at 2
(ALJ Dec. Sept. 23, 1994). The ARB found that the time records submitted in the case sub judice were not sufficiently
detailed, and that because the attorneys filed excessive pleadings without leave from the Board, it
was appropriate to reduce the fee and costs application by the proportion of that the pleadings
exceeded the Board order on page limitations.
[Nuclear and Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; REQUIREMENT OF EVIDENCE OF REASONABLENESS OF
HOURLY RATE
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 (ARB
Feb. 9, 1999), the ARB noted that it has held that a "complainant's attorney fee petition
must include adequate evidence concerning a reasonable hourly fee for the type of work the
attorney performed and consistent [with] practice in the local geographic area,' as well as records
identifying the date, time, and duration necessary to accomplish each specific activity, and all
claimed costs," citing Van Der Meer v. Western Kentucky Univ., 1995-ERA-38,
slip op. at 10 (ARB Apr. 20, 1998).
Because Complainant's counsel's fee petitions did not contain "evidence, such as an
affidavit of counsel, indicating that the hourly rate charged by counsel was reasonable for this
type of case or that the hourly rate was consistent with practice in the Boston area, where counsel
is located, " the ARB remanded the case to the ALJ for a supplemental recommended
decision on the reasonableness of the hourly attorney rates requested.
[Editor's note: The ARB seems to be requiring evidence of reasonableness of the
hourly rate even if the fee petition is not opposed. See Fabricius v. Town of Braintree/Park
Dept., 97-CAA-14 @ 21 (ALJ Sept. 8, 1997), where the ALJ observed that
"Respondent has failed to submit any objection to the fees and expenses requested."
Compare Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Feb. 2, 1999)
(attorney fee petition, accompanied by affidavit, approved where Respondent did not object) ].
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; INADEQUATE SPECIFICITY
In Charvat v. Eastern Ohio Regional
Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ disallowed
hours claimed in an attorney's fee petition where the petition did not contain a description
specific enough to determine whether the work was justified or connected with the instant
proceeding.
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; DETERMINATION OF HOURLY RATE
In Charvat v. Eastern Ohio Regional
Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ used the
parties' exhibits, Altman & Weil's 1994 Survey of Economics, and factors such as the
location of the attorney's firm, years of experience, expertise, the complexity of the issues
presented in the case and the success on those issues, and fee awards made in other cases before
the agency, to determine reasonable hourly rates.
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; LODESTAR METHOD REASONABLE HOURLY RATE
In Smith v. Esicorp,
Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ARB
did not disturb the ALJ's reduction of the hourly rate requested by Complainant's attorney of
$250 an hour to $150 an hour, based on affidavits submitted by Respondent from two
experienced Houston area attorneys attesting that the customary hourly rate in that area for an
attorney with 25 years' experience is $185, and that a reasonable rate for an attorney with only
ten years experience would range from $125 to $150 per hour. Complainant also submitted an
affidavit by a local attorney supporting his claim for $250 an hour, but the ALJ found the
affidavits submitted by Respondent to be more credible.
[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; USE OF CURRENT HOURLY RATES; REJECTION OF
INTEREST
In Macktal v. Brown & Root,
Inc., 86-ERA-23 (ALJ Mar. 30, 1998), the ALJ recommended that attorneys fees
be set at the rate in effect at the time the rate is established, rather than those in effect at the time
the services were performed, citing Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983).
Because the Complainant's counsel receives a benefit for delay based on use of the current hourly
rate, the ALJ recommended that interest should not be awarded on the fee award.
[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; SUBMISSION OF REQUEST FOR REIMBURSEMENT
In LaTorre v. Coriell Institute for Medical Research, 97-ERA-46
(ALJ Dec.
3, 1997), Complainant sought reimbursement for attorneys fees, but did not
provide any
documentation. The ALJ, finding that he could not determine the
reasonableness of the request,
recommended denial of the attorney fee request, but without prejudice, in
order to afford counsel
"an opportunity to submit an application for fees, together with
supporting data, including
among other things, her professional qualifications, an itemization of the
hours expended on
complainant's behalf in this case, and her hourly billing rate." Slip
op. at 44.
[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; SUFFICIENT SPECIFICITY
The ARB will usually require a petition for attorney's fees to include the
date on which the
attorney's time was expended, the amount of hours expended, and a specific
description of the
tasks undertaken by the attorney during that time. Pillow v. Bechtel
Construction,
Inc., 87-ERA-35 (ARB Sept. 11, 1997).
ATTORNEY'S FEES; LODESTAR METHOD; FEE ITEMIZATION
[N/E Digest XVI E 3 a]
The lodestar method is employed in calculating attorney's
fees under the environmental whistleblower statutes. This method
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).
A petition for attorney's fees must be based on records,
indicating date, time and duration necessary to accomplish the
specific activity. Each activity item should be detailed and
clearly identifiable as pertaining to the case. All claimed
costs should be specifically identified, and if possible, a
receipt appended.
In Sutherland v. Spray
Systems Environmental, 95-CAA-1 (ARB July 9, 1996),
counsel's fee itemization provided the date and time spent for
each element of activity associated with the appeal before the
Secretary. The Board stated that it is not required that counsel
share his work product with Respondent, and such elements were
self-explanatory. The Board also stated that the actual time of
day that the activity took place was inconsequential, and that
counsel had provided all necessary information.
ATTORNEY'S FEES; COSTS
[N/E Digest XVI E 3 a]
In calculating attorney's fees in whistleblower cases, the
lodestar method is used, 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). An attorney's fee petition must be based on records
indicating date, time and duration necessary to accomplish the
specific activity. Each activity should be detailed and clearly
identifiable as pertaining to the case. Similarly, all claimed
costs should be specifically identified, and if possible, a
receipt appended. Sutherland v. Spray Systems
Environmental, 95-CAA-1 (Sec'y Apr. 25, 1996).
ATTORNEY'S FEES; LODESTAR METHOD [N/E Digest XVI E 3 a]
In calculating attorney fees under the ERA, the Secretary
uses the lodestar method, which requires multiplying the
number of hours reasonably expended in pursuing the
litigation by a reasonable hourly rate. Gaballa v.
The Atlantic Group, 94-ERA-9 (Sec'y Dec. 7, 1995)
(interim order).
ATTORNEY'S FEES; BLACKLISTING CASE; FEES CANNOT INCLUDE HOURS
RELATING TO PRIOR UNDERLYING DISCRIMINATION CASE [N/E Digest XVI E 3 d ii]
In Gaballa v. The Atlantic Group, 94-ERA-9
(Sec'y
Dec. 7, 1995), the attorney failed to distinguish between
time spent pursuing an underlying discrimination case and
the current blacklisting case. The Secretary held that the
Complainant was only entitled in the instant proceeding to
fees incurred in furtherance of his blacklisting litigation,
and rejected claims for costs and expenses that could not be
clearly attributed to the blacklisting case.
XVI E 3 a Reasonably incurred standard; detailed fee
petition and itemization of costs
required
If the complainant is victorious on the merits of a CAA
whistleblower complaint, and requests fees and
costs, the standard is fees and costs "reasonably
incurred." 42 U.S.C. §
7622(b)(2)(B). The fee arrangement between the complainant and
counsel is not controlling; the
complainant has the burden of establishing the reasonableness of
the fees. The attorney should submit
to the ALJ a fee petition detailing the work performed, the time
spent on such work, and the hourly rate
of those performing the work. Complainant must also submit an
itemization of costs. West v.
Systems Applications International, 94-CAA-15 (Sec'y
Apr.
19, 1995) (reversing ALJ's
recommendation of dismissal, and remanding to the ALJ for a
determination of appropriate fees and
costs).
XVI E 3 a "Lodestar"; definition of
The "lodestar" for an attorney fee award is "the
product of reasonable hours times a reasonable rate."
Lederhaus v. Paschen & Midwest Inspection Service,
Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), quoting
Pennsylvania v. Delaware Valley Citizens' Council for Clean
Air, 478 U.S. 546, 565 (1986).
In Lederhaus v. Paschen & Midwest Inspection Service,
Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), the complainant's
attorney's normal billing rate was $150 per hour. He and the
complainant, however, had a modified contingent fee arrangement
permitting the attorney to be paid $300 per hour up to one third
of the amount awarded to the complainant. The attorney provided
an affidavit to support his contention that attorneys in his
geographic area "would have to be confident of receiving two
to five time their normal hourly billing rates before they would
consider taking statutory fee-generating cases on a contingency
basis." Slip op. at 2, quoting Sept. 7, 1991 Fee
Application at 4. The respondent did not object, and the ALJ
adopted this rate, noting that the amount was reasonable in light
of "nature of the issues involved, the high degree of skill
with which the Complainant was represented, the amount of time
and work involved, and other relevant factors . . . ." Slip
op. at 2-3, quoting Lederhaus v. Pachen & Midwest
Inspection Service, Ltd., 91-ERA-13 (ALJ Aug. 9, 1991), slip
op. at 2 (Recommended Decision & Order Granting Attorney
Fees).
The Secretary noted that at the time the complainant's attorney
filed his original submission regarding attorneys fees, the
leading decision on the subject of attorneys fees awards under
fee shifting statutes such as the ERA was Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711
(1987) (Delaware Valley II), which left open the question
whether under the fee shifting provision of the Clean Air Act, 42
U.S.C. § 7604(d) (1988), prevailing plaintiffs' attorneys
were entitled to receive an enhancement above the
"lodestar" amount on the theory that without such
enhancement plaintiffs would face substantial difficulties in
obtaining suitable counsel.
The Supreme Court has now resolved the issue left undecided in
Delaware Valley II. In City of Burlington v. Dague, __ U.S.__, 112 S. Ct.
2638 (1992), the Court held that under the fee shifting statutory
provision of the Solid Waste Disposal Act, 42 U.S.C. §
6972(e) (1988), and the Federal Water Pollution Control Act
(Clean Water Act (CWA)), as amended, 33 U.S.C. § 1365(d)
(1988), an attorneys fee award may not be enhanced above the
"lodestar" amount in order to reflect the fact that the
prevailing party's attorney was hired on a contingent-fee basis
and therefore assumed the risk of receiving no payment at all for
his or her services.
The Secretary concluded that the statutory fee shifting provision
interpreted in Delaware Valley II are similar in all
relevant respects to that contained in the employee protection
provision of the ERA. The SWDA and the CWA authorize a court to
"award costs of litigation (including reasonable attorney
. . . fees)" to a "prevailing or substantially
prevailing party." 42 U.S.C. § 6972(e) (emphasis
added). The ERA provides that where the complainant prevails,
"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 attorney's and expert witness fees) reasonably
incurred . . . ." 42 U.S.C. § 5851(b)(2)(B)
(emphasis added). The Supreme Court specifically noted in
City of Burlington that "our case law construing what
is a 'reasonable' fee applies uniformly to all [federal fee
shifting statutes]." Id. at 2641. See Flight
Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989).
The Secretary concluded, therefore, that the holding of the
City of Burlington should be applied to the attorneys fees
authorization of the employee protection provision of the ERA.
Hence, the complainant's attorney in the instant case was not
entitled to a fee enhancement above the "lodestar"
figure.
The fact that the complainant and his counsel entered into an
agreement requiring the complainant to pay more is not a reason
for awarding that hourly rate. A respondent is liable only for
reasonable attorneys fees no matter what amount a complainant may
have contracted to pay his or her attorney. Blanchard v.
Bergeron, 489 U.S. 87, 93 (1989); Clark v. American Marine
Corp., 320 F. Supp. 709, 711 (E.D. La. 1970), aff'd,
437 F.2d 959 (5th Cir. 1971).
[Nuclear & Environmental Digest XVI E 3 b]
ATTORNEY'S FEES; CONTINGENCY FEE ARRANGEMENT NOT RELEVANT
In the ALJ's recommended decision in Charvat v. Eastern Ohio Regional Wastwater
Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), Respondent argued that a
contingency fee arrangement between Complainant and his counsel should be used as a cap on
any award of fees to Complainant's counsel. Complainant's counsel argued, in contrast, that
such an arrangement should be used to enhance an award. The ALJ found that both arguments
were wrong. The only basis for an attorney's fee award is the lodestar method. The ALJ
distinguished McCafferty v. Centerior Energy, 1996-ERA-6 (ARB Sept. 24, 1997),
because in that case what was at issue was a fee cap arrangement rather than a contingency fee
arrangement.
[N/E Digest XVI E 3 b]
ATTORNEY'S FEES; EFFECT OF CONTINGENCY FEE ARRANGEMENT
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ARB noted that
"[c]ontingent fees are usually paid out of a complainant's award; however, the
environmental whistleblower statutes, as a matter of public policy, provide for fee shifting as a
means to encourage employees to report their employers' potentially endangering
practices." The Board contined:
The longstanding practice of the Department of
Labor is to employ the "lodestar method" to determine the proper amount of
attorney's fees awarded under the environmental whistleblower statutes. Lederhaus v.
Paschen & Midwest Inspection Service, Ltd., Case No. 91-ERA-13, Jan. 13, 1993,
Sec. Final Dec. and Order, slip op. at 3-4, citing City of Burlington v. Dague,
505
U.S. 557 (1992) (attorney's fees amounts may not be enhanced above the lodestar method
under federal fee shifting statutory provisions). The lodestar method requires multiplying
the number of hours reasonably expended by a reasonable hourly rate. Backen v.
Entergy Operations, Inc., ARB No. 97-021, ALJ Case No. 96-ERA-18, ARB Dec.,
Dec. 12, 1996, slip op. at 1 n.2, citing Hensley v. Eckerhart, 461 U.S. 424
(1983). As the Secretary held in Lederhaus: "Respondents are liable only
for reasonable attorney's fees no matter what Complainant may have contracted to pay his
attorney." Id. at 5.
Id. @ 9.
[N/E Digest XVI E 3 b]
ATTORNEY'S FEES; EFFECT OF COMPLAINANTS' AGREEMENT TO PAY FLAT
AMOUNT
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), each of six Complainants
had agreed to
pay counsel $5,000 for attorney's fees for handling the case from filing the
administrative
complaint through appeal to the U.S. Supreme Court: a total of $30,000. The
ALJ had
recommended payment of attorney's fees of $36,063 and expenses of ,867.43,
rejecting
Respondent's argument that Complainants agreement with counsel operated as a
cap of $30,000.
The ARB reversed the ALJ, finding that the statutory language at 42 U.S.C.
§
5851(b)(2)(b) "reasonably incurred ... by the complainant" required
that
Respondent's liability be limited to Complainants' liability for fees and
expenses, even though it
also found that the reasonable attorney's fees in this case were over $30,000.
The ARB noted
that it was not clear why Congress choose to limit attorney's fees awards in
this way, but that the
statutory language was clear.
XVI E 3 b Fees and costs; fee arrangement is not
controlling; requirement of
itemized petition
In Delcore v. W.J. Barney Corp., 89-ERA-38 (Sec'y
June 9, 1995), the Respondents
objected to Complainant's attorney fee request on the ground that
the supporting affidavit did not
indicate that a bill was ever submitted to the Complainant by his
counsel or that the Complainant every
paid any of the time charges, or that the counsel ever expected
to be paid.
The Secretary held that the fee arrangement between a complainant
and his or her attorney is not
controlling. Rather, the complainant has the burden of
establishing the reasonableness of the fee.
Counsel must submit a fee petition detailing the work performed,
the time spent on such work, and the
hourly rate of those performing the work. The complainant must
also submit itemized costs.
Considering the fee petition and the objections, the Secretary
found that the fee petition was
reasonable.
XVI E 3 b "Reasonably incurred" expenses; fee
arrangement not controlling
If an ALJ issues a recommended decision on the merits finding
that the respondent violated an employee protection provision,
the ALJ must, if requested by the complainant, assess against the
respondent such fees as were "reasonably incurred." 42
U.S.C. § 7622(b)(2)(B). In such a case, a fee arrangement
between the complainant and his or her counsel is not
controlling. Rather, the complainant has the burden to establish
the reasonableness of the fee, and, to accomplish this, must
submit to the ALJ a fee petition detailing the work performed,
the time spent on such work, and the hourly rate of those
performing the work. On review of the fee petition and
objections, if any, raised by the respondent, the ALJ would
determine a reasonable fee to be paid by the respondent to the
complainant's attorney. See Lindy Bros. v. American Radiator
and Standard Sanitary Corp., 540 F.2d 102 (3rd Cir. 1976);
Lindy Bros. v. American Radiator and Standard Sanitary
Corp., 487 F.2d 161 (3rd Cir. 1973); and National Ass'n of
Concerned Veterans v. Secretary of Defense, 675 F.2d 1319
(D.C. Cir. 1982), for applicable standards for award of attorney
fees.
Tinsley v. 179 South Street Venture, 89-CAA-3
(Sec'y Aug. 3, 1989) (order of remand).
XVI E 3 b Attorney's fees
The fact that Complainant and his counsel entered into an
agreement requiring Complainant to pay a maximum of $125/hour is
not a reason for awarding that hourly rate. Blackburn v.
Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30,
1991).
In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB affirmed the ALJ's finding that it was appropriate to determine hourly rates for an attorney fee award based on the Louisville market (the location of the Complainant's counsels' office) where the Complainant presented affidavits indicating that competent, willing counsel were not available to the Complainant in the Paducah, Kentucky hearing location. The ARB rejected the Respondent's argument on appeal that the case was not complex and that any local attorney with some employment law experience could have handled the matter, observing that the Respondent had not used its local counsel, but had retained instead a national law firm located in Washington, DC. The ARB's review of the record convinced it that it was reasonable for the Complainant to retain counsel with expertise in federal whistleblower litigation.
XVI E 3 c Hourly rate approved
In Van Beck v. Daniel Construction Co., 86-ERA-26
(Sec'y Dec. 3, 1993) (decision and order on attorney's fees), the
Secretary approved a fee application employing an hourly rate of
$100 for work before the Secretary. There were no objections by
Respondent.
[Nuclear & Environmental Digest XVI E 3 c]
HOURLY RATE; WHETHER TO SET BASED ON HEARING LOCATION OR LOCATION OF ATTORNEY'S OFFICE
In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), Complainant billed at the hourly rate for the location of his attorneys' office in Seattle, Washington rather than for Colorado where the hearing took place. The ALJ noted that hourly rates are normally based on the locality of the hearing, but found that the specialized nature of the case and the unavailability of local counsel were grounds for exception to that rule, citing National Wildlife Federation v. Hanson, 859 F.2d 313 (4th Cir. 1988). Although appeals were taken from the ALJ's recommended decision, the parties settled on appeal, and the ARB did not review this ruling. See Graf v. Wackenhut Services, L.L.C., ARB No. 01-041, ALJ No. 1998-ERA-37 (ARB Mar. 30, 2001).
[Nuclear & Environmental Digest XVI E 3 c]
ATTORNEY FEES; RELEVANT GEOGRAPHIC MARKET
In Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Mar. 15,
2000), the ALJ found that the relevant geographic market for setting the appropriate hourly rate
for attorney's fees was Las Vegas where most of the participants including the Complainant,
Respondent, counsel for Respondent, lead counsel for Complainant, and the witnesses were
located in Las Vegas; the workplace violations occurred in Las Vegas or nearby; the hearing was
conducted in Las Vegas. The ALJ found that the participation of one counsel for Complainant
from the Bay Area of California was not, standing alone, a reason to examine a fee structure
beyond Las Vegas. Accordingly, the ALJ declined to accept Complainant's proof of the hourly
rate for an attorney with similar experience practicing in the Bay Area, or the affidavit of lead
counsel of the hourly rate for similarly experienced attorneys practicing in Las Vegas where it did
not indicate actual knowledge of specific Las Vegas law firms' employment of such associates.
Rather, the ALJ set the rate based on an affidavit from the Administrator of the largest law firm
in Nevada, submitted by Respondent.
The ALJ disallowed two hours spent in consultation with an attorney's fee expert in
preparation for submission of her petition since it focused on the wrong relevant geographic area.
[Nuclear & Environmental Digest XVI E 3 c]
ATTORNEY'S FEES; JUDICIAL NOTICE OF ALTMAN WEIL SURVEY
In Sayre v. Alyeska Pipeline Service
Co., 1997-TSC-6 (ALJ May 18, 1999), the ALJ recommended a finding on the merits
in favor of the Complainant. Respondent raised objections to an attorney fee application, one of which
involved the 1998 Altman Weil Survey, requesting in essence that the ALJ take judicial notice of
the survey as to the hourly rates for attorneys in the applicable jurisdiction. The ALJ stated that he may
take judicial notice of the survey, and permitted briefs by Complainants' counsel, and rebuttal by
Respondents, prior to the issuance of a supplemental recommended decision and order addressing the
attorney fee awards.
[N/E Digest XVI E 3 c]
ATTORNEY'S FEES; REDUCTION OF HOURLY FEE WHERE COUNSEL DID NOT
PROVIDE AFFIDAVIT OF QUALIFICATIONS OR REASONABLE COMMUNITY
BILLING RATES
In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept.
11,
1997), the ARB rejected Complainant counsel's request for approval of an
hourly billing rate of
$250, and found instead a reasonable hourly rate of $125 where counsel did not
provide an
affidavit attesting to his qualifications or that $250 was a reasonable hourly
billing rate in his
community. The ARB noted that counsel had stated that $250 per hour is less
than the rate
charged by opposing counsel, but found the statement inadequate to demonstrate
entitlement to
that hourly rate.
ATTORNEY'S FEES; RATES [N/E Digest XVI E 3 c]
In a case arising in Columbia, Missouri, an attorney fee
hourly rate of $150.00 per hour was approved for the lead
counsel, while $85.00 per hour was approved for counsel for a
second Complainant. Zinn v. University of
Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996).
XVI E 3 c Attorney's fees; hourly rate; customary rate;
compensation for delay in receipt
The Secretary in Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y Sept. 8, 1992), reduced
the complainant's requested hourly rate of $100 for attorney's
fees where the respondent submitted the affidavit of an area
practitioner documenting a reduced rate. The Secretary, however,
employed the upper limit of $75 per hour to compensate for a
delay in the receipt of payment. Missouri v. Jenkins, 491
U.S. 274, 282-284 (1989); Ramos v. Lamm, 714 F.2d 546, 555
(10th Cir. 1983) (hourly rate should reflect rates in effect at
time fee is established, rather than those in effect at time
services were performed); Copeland v. Marshall, 641 F.2d
880, 893 (D.C. Cir. 1980).
XVI E 3 c $150 is not excessive hourly rate
In Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y June 30, 1993), an hourly rate of
$150 in Complainant's fee application was found not to be
excessive.
XVI E 3 c Attorney's fees
In the Fourth Circuit the "community in which the court sits
is the appropriate starting point for selecting the proper rate
[for an award of attorney's fees]." National Wildlife
Federation v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988).
Where the ALJ had based the hourly rate in part on the fact that
the hearing was held in a more metropolitan area than the
community where counsel was located, but the record was devoid of
any evidence as to the prevailing hourly rate in either location,
the Secretary remanded the issues of counsel's fee to the ALJ for
a determination of the prevailing rate in the relevant market.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
XVI E 3 c Attorney fees; reasonable hourly rates
A reasonable attorney's fee is based on rates prevailing
in the community for similar services.
Blum v. Stenson, 465 U.S. 886, 896 and n.11 (1984). In
Jenkins v. United States
Environmental Protection Agency, 92-CAA-6 (Sec'y Dec.
7,
1994), the Secretary found hourly
rates ranging from $225 to 190 for attorneys, and $45 for a law
clerk, to be reasonable for trial work
before the ALJ, based on the materials submitted by counsel in
support of their fee petition.
Hourly rates of $100 for attorneys and $45 for law clerks was
found to be reasonable for work relating
to work before the Secretary.
The Secretary in Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y Sept. 8, 1992),
disallowed attorney's fees for nonproductive hours (i.e.,
"hours that should not have been spent." Copeland
v. Marshall, 641 F.2d 880, 902-903 (D.C. Cir. 1980)).
Productive hours -- i.e., those spent in research bearing on an
issue central to the case (whether complainant's complaints were
covered substantively under the SWDA whistleblower provision)
were allowed.
[Nuclear & Environmental Digest XVI E 3 d i]
ATTORNEY FEES; REDUCTION BASED ON LIMITED SUCCESS
In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), the ALJ recommended reducing the lodestar by 30% based on Complainant's partial success in the litigation where the original ALJ who presiding over the case found that only one of three alleged instances of retaliation stated a meritorious ERA whistleblower complaint. Although appeals were taken from the ALJ's recommended decision, the parties settled on appeal, and the ARB did not review this ruling. See Graf v. Wackenhut Services, L.L.C., ARB No. 01-041, ALJ No. 1998-ERA-37 (ARB Mar. 30, 2001).
[Nuclear & Environmental Digest XVI E 3 d i and XVI E 3 d iii]
ATTORNEY FEES; RESEARCH TIME; RELEVANCY V. EXCESSIVENESS
In Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Mar. 15,
2000), Respondent objected to claimed hours for legal research on the ground that the attorney
failed to state the substance of her research and therefore its relevance. The ALJ found that
relevancy is not the test since legal research may entail lines of inquiry that lead no where such
isolation of the issues "weeds out the unproductive background noise of a lawsuit."
Rather, the ALJ found that the test is whether the time devoted to research was excessive.
Considering the complexity and scope of the issues litigated and the attorney's expertise as
reflected in her hourly rate (equivalent to a second-year associate), the ALJ found that the time
claimed was not unreasonable.
In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB denied attorney fees for hours meeting with the NRC where the descriptions of the work were vague and it was not self-evident that the meetings were connected to the whistleblower litigation.
XVI E 3 d ii Relationship of evidence to
case
In McMahan v. California Water Quality Control Board, San
Diego Region, 90-WPC-1 (Sec'y July 16, 1993), the ALJ
disallowed the recovery of a portion of Complainant's attorney's
fees largely because he believed that Complainant presented
"peripheral matters . . . not germane" to a finding of
unlawful discrimination. Thus, it appeared that the ALJ
determined that fees charged for developing this evidence were
not reasonably incurred. See 33 U.S.C. § 1367(c).
The Secretary disagreed with the ALJ's determination. Reviewing
the material, the Secretary concluded that the evidence
referenced by the ALJ was "not so unrelated to the case as
to warrant a reduction in Complainant's fee award."
[Nuclear & Environmental Digest XVI E 3 d ii]
ATTORNEY'S FEES; REDUCTION FOR WORK ON POLICY ARGUMENTS AND
PERIPHERAL AND IRRELEVANT ISSUES
In Smith v. Esicorp,
Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ALJ
reduced the number of hours claimed by Complainant's attorney fee application by 15% because
they represented work on "policy arguments and peripheral and irrelevant issues,"
such as discussing Complainant's entitlement to back pay after the Secretary found that Smith's
termination was not a violation of the ERA. The ALJ also found that Complainant's briefs were
repetitive, and that Complainant Smith spent unnecessary and wasteful time on an attempt to add
a party. The ARB found that the adjustment was reasonable.
[N/E Digest XVI E 3 d ii]
ATTORNEYS FEES; DISALLOWANCE FOR RESEARCH ON IRRELEVANT ISSUE
OR INSUFFICIENT DESCRIPTION
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997), a case
involving a roofing company, the Board disallowed attorneys fees sought for
investigating,
discussing, or copying the rules concerning asbestos and roofing because the
existence of
asbestos
on the roof was not an issue in the case. The Board also disallowed items in
the fee request that
were not sufficiently described to permit the Board to determine whether they
pertained to
representing Complainant in the DOL proceeding.
XVI E 3 d ii Reduction where counsel pursued unnecessary and
irrelevant matters
In Varnadore v. Martin Marietta Energy Systems,
Inc., 94-CAA-2 and 3 (ALJ June 23, 1995), the ALJ
recommended reduction of Complainant's counsel's fee petition by
25% where the Complainant only prevailed on one of five claims
(resulting in expungement of a performance appraisal), and where
counsel spent many hours pursuing unnecessary and irrelevant
matters, and included much irrelevant material in pleadings.
[Nuclear & Environmental Digest XVI E 3 d ii]
ATTORNEY FEE; DISCUSSION OF COMPLAINANT'S SAFETY REPORT WITH
STATE ATTORNEY GENERAL
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB disallowed time claimed in an attorney fee
petition for counsel's discussions with a State Attorney General's office apparently concerning
Complainant's safety report to the State department of environmental protection. The ARB
found that the DOL proceedings did not depend on the outcome of any actions the State might
take in response to Complainant's environmental report.
The Secretary declined to reduce an award of attorney's fees on
the basis of complainant's counsel's alleged
"inexperience" where examination of the daily totals
shows work generally to fall below the average "six to seven
billable hours per day for a five day week" identified by
the court in Ramos v. Lamm, 713 F.2d 546, 553-554 (10th
Cir. 1983), and where all hours exceeding the average where
allocated to discrete research, briefing and discovery projects
which reasonably may have required extended effort.
Williams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y Sept. 8, 1992).
[Nuclear & Environmental Digest XVI E 3 d i and XVI E 3 d iii]
ATTORNEY FEES; RESEARCH TIME; RELEVANCY V. EXCESSIVENESS
In Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Mar. 15,
2000), Respondent objected to claimed hours for legal research on the ground that the attorney
failed to state the substance of her research and therefore its relevance. The ALJ found that
relevancy is not the test since legal research may entail lines of inquiry that lead no where such
isolation of the issues "weeds out the unproductive background noise of a lawsuit."
Rather, the ALJ found that the test is whether the time devoted to research was excessive.
Considering the complexity and scope of the issues litigated and the attorney's expertise as
reflected in her hourly rate (equivalent to a second-year associate), the ALJ found that the time
claimed was not unreasonable.
In Fischer v. Town of Steilacoom, 83-WPC-2 (ALJ May
2, 1983) (settled before the Secretary, see Order
Approving Settlement (Sec'y Dec. 1, 1983), the ALJ excluded from
the recommended attorney fee award time spent by Complainant's
counsel discussing the matter with the press.
[Nuclear & Environmental Digest XVI E 3 d iv]
ATTORNEY FEE; TIME SPENT TALKING TO THE MEDIA
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB recognized that "[a]ttorney discussions
with the media may be recovered in certain instances." The Board wrote:
For example, in a case discussing entitlement to attorney fees under Title VII,
the district court had determined that counsel's public relations work "represented a
valid effort to lobby the San Francisco Board of Supervisors, and that 'obtaining the
support of the board of Supervisors . . . was as vital to the consent decree [that resolved
the litigation] as were the negotiations with the City's administrative officials.'"
Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992),
rehearing denied and vacated in other part, 984 F.2d 345 (9th Cir. 1993)
(quoting the district court, 748 F.Supp. at 1423). The Ninth Circuit determined
that attorney time spent in press conferences and public relations work "directly and
intimately related to the successful representation of a client" was compensable, but
"any hours . . . for public relations work which did not contribute, directly, and
substantially, to the attainment of appellees' litigation goals" should not be
disallowed. 976 F.2d at 1545.
The Board, however, found that in the case sub judice there had been no
connection between the attorney time spent talking with the press and the outcome of the
litigation, and therefore disallowed the request for fees for media contacts.
[N/E Digest XVI E 3 d iv]
ATTORNEY'S FEES; MEETING WITH REPORTER
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB July 6, 1998), Respondent objected to the billing by
Complainant's attorney for a meeting with a reporter. The ARB found that without further
explanation, such a meeting appeared to be ancillary to the legal proceedings necessary to pursue
the litigation in this case, and therefore the charge should be rejected.
[N/E Digest XVI E 3 d v]
ATTORNEYS FEES; IMPROPER TO REDUCE FEES ON GROUND THAT THEY ARE
DISPROPORTIONATE TO AMOUNT OF BACK PAY SOUGHT
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997), the ALJ erred
in reducing attorneys fees on the ground that they were disproportionate to
the back pay sought.
The Board found that the ALJ had proposed "a standard that would chill
attorneys from
taking moderately complicated cases where the complainant earned modest wages
and hence the
back pay sought would be small in relation to the attorney time expended.
Moreover, in
discrimination cases, the Supreme Court has rejected any requirement of
proportionality between
the damages and the attorney's fees awarded. Hensley v. Eckerhart, 461
U.S. 424
(1983). See also Abrams v. Lightolier, Inc., 50 F.3d 1204, 1221 (3d
Cir. 1995)."
Slip op. at 6.
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; SET-OFF FOR MONIES RECEIVED IN EARLIER
SETTLEMENT
In Macktal v. Brown & Root,
Inc., 86-ERA-23 (ALJ Mar. 30, 1998), the matter was on remand from the ARB
for a calculation of attorney's fees. The ARB had dismissed Complainant's case on the merits,
but found that Complainant was entitled to attorneys fees because he was successful in litigation
of an issue involving the legality of a settlement from earlier in the proceeding. In making his
recommendation on attorney's fees, the ALJ concluded that Respondent was entitled to a set-off
for the amounts it had paid for attorney's fees in the earlier settlement, citing Oubre v.
Entergy Operations, Inc., 118 S.Ct. 838 (1998) and Wolf v. Frank, 477 F.2d 467,
480 (1973).
In Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (Sec'y Dec. 7,
1994), the Secretary found some claims for attorney fees to be
inadequately documented, and reduced
or disallowed them as excessive or redundant, including:
A reduction by 50 percent the hours billed for travel time.
In re Agent Orange Products
Liability Litigation, 611 F. Supp. 1296, 1320, 1349
(E.D.N.Y. 1985).
A disallowance of one attorney's fees where two attorneys
were present at a deposition.
A disallowance of claims for Freedom of Information
Act-related activities because they were
not shown to have furthered the instant litigation.
A reduction by five percent of the hours expended in
briefing that appeared excessive and
concerning which the descriptions were unduly
abbreviated.
The Secretary allowed a less exact record of work done on
appellate work, noting however, that such
documentation would not suffice to substantiate a fee petition
for services at the trial or hearing level of
a proceeding.
[Nuclear & Environmental Whistleblower Digest XVI E 3 d v]
ATTORNEY'S FEES; NO DOWNWARD ADJUSTMENT FOR ULTIMATELY UNSUCCESSFUL ARGUMENT WHERE RAISED BELOW AND WHERE COMPLAINANT NEVERTHELESS ACHIEVED SIGNIFICANT REMEDIES
In Moder v. Village of Jackson, Wisconsin, ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB Oct. 28, 2003), the ARB had affirmed the ALJ's recommended decision finding a violation of the whistleblower provision of the FWPCA, albeit it adjusted the backpay award upwards but rejected the ALJ's recommendation to award compensatory damages and front pay. Complainant's counsel filed an unopposed petition for attorney's fees. The ARB found the petition sufficiently detailed to award the full amount requested. The ARB declined to make a downward adjustment for work performed on the now unsuccessful argument concerning compensatory damages and front pay, noting that Complainant had achieved significant remedies and remained the prevailing party. The ARB also noted that the fee petition had not sought fees incurred for an unsuccessful argument raised for the first time on review and rejected by the ARB.
[Nuclear & Environmental Whistleblower Digest XVI E 3 d v]
ATTORNEY'S FEES; FEES FOR PARTIALLY SUCCESSFUL RECONSIDERATION OF EARLIER FEE AWARD IN PROPORTION TO SUCCESS
Where Complainant's attorney was partially successful in obtaining an increase in the amount of attorney's fees awarded in motions related to obtaining ARB reconsideration of its prior order on such fees, the Board permitted additional fees for such work in proportion to the increase in fees obtained. Leveille v. New York Air National Guard, ARB No. 98 079, ALJ Nos. 1994 TSC 3 and 4 (ARB Dec. 16, 2003) (earlier in the order, the Board discussed its admonishment in regard to the filings relating to the reconsideration B which has engendered a series of filings and orders that it would not permit additional briefing and further requests for fees; it appears that the proportionate reduction may have been influenced by this procedural history).
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEES; REDUCTION BASED ON BILLING JUDGMENT
In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), the ALJ recommended reducing the lodestar by 5% based "billing judgment" -- the notion that some items billed would not have been charged a private client. Although appeals were taken from the ALJ's recommended decision, the parties settled on appeal, and the ARB did not review this ruling. See Graf v. Wackenhut Services, L.L.C., ARB No. 01-041, ALJ No. 1998-ERA-37 (ARB Mar. 30, 2001).
[Nuclear and Environmental Whistleblower Digest XVI E 3 d 5 ]
ATTORNEY'S FEES; REDUCTION FOR FILING BRIEFS EXCEEDING ARB PAGE
LIMITATIONS
In Leveille v. New York Air National
Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the
ARB reconsidered an earlier decision reducing requested attorney's fees for time expended on a
reply brief that exceeded the page limitation in the Board's briefing schedule, and also for work
on a response to Respondent's Reply brief that was not authorized by the briefing schedule. The
ARB had erroneously based the earlier ruling in part on the ground that Complainant's attorney
had failed to file for leave to exceed the page limits and to file a reply brief.
Complainant argued that the brief on compensatory damages needed to exceed the page
limits because an extensive review of prior awards for emotional suffering and damage to
professional reputation was required. The ARB disagreed, finding that the instant case was in
fact less complicated than other cases in which the complainants had not found it necessary to
file briefs in excess of the ARB's page limit. The ARB, however, found that the reply brief was
warranted, albeit limited to 15 pages.
The ARB calculated a reduction in the requested attorney fee by using the ratio that the
total number of pages filed exceeded the total number of pages allowed.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; RESPONSE TO NOTICE OF PROPOSED REMOVAL
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), Respondent objected a fee request for efforts made by
Complainant's counsel in response to a Notice of Proposed Removal, Respondent arguing that
these efforts were not made in connection with the whistleblower complaint. The ARB,
however, found that the notice itself was the final incident of hostility toward Complainant and
therefore counsel's response thereto was reasonably made "for, or in connection
with" the whisteblower complaint.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; DISCUSSION OF COMPLAINT WITH DOL INVESTIGATOR
Time spent by Complainant's counsel in Berkman v. U.S. Coast Guard
Academy, ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000),
discussing the complaint with the DOL investigator were allowed by the ARB. Respondent had
argued that this time was "in anticipation of litigation" rather than "in
furtherance of litigation." The ARB, however, held that the proceeding begins when it first
reaches the Secretary, triggering her obligation to conduct an investigation.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; PURSUIT OF DISABILITY RETIREMENT WHERE
COMPLAINANT WAS CONSTRUCTIVE DISCHARGED
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB denied Respondent's request to disallow
Complainant's attorney fee request for time spend in pursuit of Complainant's disability
retirement where the ARB found that Complainant was constructively discharged because of
intolerable harassment and Respondent had caused the deterioration in Complainant's health.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; TIME SPENT AT DINNER TO DISCUSS POSSIBLE
SETTLEMENT
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB allowed a fee request for time spent at a
dinner with opposing counsel during which counsel discussed possible settlement, although it
reduced the time allowed based on Respondent's counsel's argument that the actual time spent
discussing settlement was less than claimed. The ARB noted that the cost of the dinner was not
included in the fee petition.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; CONSULTATION WITH "CO-COUNSEL"
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), Respondent requested a reduction of the attorney fee
petition because of the vagueness of items listing consultation with co-counsel. Although only
one attorney had entered an appearance in the matter, the ARB did not reduce this request,
finding that it could not dispute the reasonableness of consultation with another attorney in a
preparation for a rather extensive hearing in a difficult administrative case.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; TIME SPENT SEEKING FUNDING FOR COMPLAINANT'S
PROSECUTION OF COMPLAINT
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB found that Complainant could be reimbursed
for attorney time spent seeking funding from a public interest group for Complainant's
prosecution of the complaint.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEES; REDUCTION FOR BRIEF THAT EXCEEDED PAGE
LIMITATION
In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ
Nos. 1994-TSC-3 and 4 (ARB Feb. 15, 2000 ), the ARB reduced an attorney fee application for a
reply brief that was filed without authorization by the ARB's briefing order, and which exceeded
the 30 page limitation by 22 pages.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY'S FEES; MORE THAN ONE ATTORNEY ATTENDING DEPOSITION;
MORE THAN ONE ATTORNEY ATTENDING HEARING
In Charvat v. Eastern Ohio Regional
Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ found that
more than one attorney attending a deposition is excessive, and reduced attorney fees awards
accordingly. The ALJ, however, declined Respondent's request to reduce the award because
each of Complainant's attorneys attended the hearing, but did not all examine witnesses. The
ALJ found that the attorneys had worked as a team at the hearing.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY'S FEES; REDUCTION FOR MONIES EARLIER PAID FOR ATTORNEY'S
FEES IN A SETTLEMENT AGREEMENT THAT WAS LATER REJECTED
In Macktal v. Brown & Root,
Inc.,1986-ERA-23 (ARB Oct. 16, 1998),
a settlement agreement had been rejected by the Secretary. The Secretary declined to order
Complainant to return the monies that had been paid under that settlement agreement, holding
that he had no authority under the ERA to order restitution of the money.
After significant additional litigation, the case was remanded to the ALJ for calculation of
attorney fees. The ALJ recommended crediting Respondent with $20,000 in attorneys fees
already paid to Complainant under the earlier, rejected settlement agreement. Before the ARB,
Complainant argued that the same logic used by the Secretary in declining to require restitution
by Complainant should apply to any offset of the attorney fee award. The ARB found the two
situations distinguishable: "It is true that there is no authority in the ERA to order
repayment of money paid under a settlement agreement later found illegal. ... However, we think
it would be an abuse of our authority under the ERA to award attorney's fees if we were to
award, in effect, a windfall double payment of attorney's fees to [Complainant] by failing to
credit [Respondent] with the amount already paid." Id. @ 2 (citation omitted).
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; REDUCTION FOR EXCESSIVE TIME REVIEWING
TRANSCRIPT
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), attorney's fees were
claimed for 23.4
hours for reviewing the hearing transcript. The ARB rejected the hours
claimed, and reduced
them to 13 hours, where the hearing only lasted about 6.5 hours, and time
spent preparing the
post-hearing brief was separately claimed.
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; MEETING WITH NRC
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), attorney's fees were
claimed for a 3.6
hour meeting with the NRC. The ARB disallowed the claim because Complainants'
attorneys
had not established that the meeting was connected to the instant litigation.
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; TIME SPENT DRAFTING SHORT LETTER
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), Respondent objected to 3.2
hours being
claimed for drafting a three sentence letter. The ARB allowed the claim where
research
regarding the filing of the letter might have accounted for the time allotted.
[N/E Digest XVI E 3 d v]
ATTORNEY FEES; DISALLOWANCES
In Hoffman v. W. Max Bossert, 94-CAA-4 (ARB Aug. 8, 1997), the
ARB disallowed or reduced charges for items on an attorney fees petition for
attorney time to hand deliver briefs where either courier service or
overnight mail
was available
receipt of the ALJ's recommended decision and a decision of the
Secretary, since
receiving a document is a ministerial task. (the ARB, however, allowed
charges for
reviewing the ALJ's and the Secretary's decisions)
excessive time for the tasks listed (e.g., reviewing DOL
procedural rules for
filing briefs, revising a service list, attorney time to walk to a law library
to look up proper
citations)
In Gaballa v. The Atlantic Group, 94-ERA-9
(Sec'y
Dec. 7, 1995), the Secretary noted that he had determined an
hourly rate of $190 to be reasonable in a 1994 case in which
Gaballa's attorney had appeared. The Secretary found that a
5% increase in that attorney's hourly rate -- to $200 -- was
appropriate. The attorney had requested a rate set at $225
per hour.
ATTORNEY'S FEES; LARGER AWARD TO LEAD COUNSEL [N/E Digest XVI E 3 d 6]
A larger award to the lead counsel is appropriate.
Zinn v. University of Missouri, 93-ERA-34 and 36
(Sec'y Jan. 18, 1996).
In Lederhaus v. Paschen & Midwest Inspection Service,
Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), the complainant's
attorney's normal billing rate was $150 per hour. He and the
complainant, however, had a modified contingent fee arrangement
permitting the attorney to be paid $300 per hour up to one third
of the amount awarded to the complainant. The attorney provided
an affidavit to support his contention that attorneys in his
geographic area "would have to be confident of receiving two
to five time their normal hourly billing rates before they would
consider taking statutory fee-generating cases on a contingency
basis." Slip op. at 2, quoting Sept. 7, 1991 Fee
Application at 4. The respondent did not object, and the ALJ
adopted this rate, noting that the amount was reasonable in light
of "nature of the issues involved, the high degree of skill
with which the Complainant was represented, the amount of time
and work involved, and other relevant factors . . . ." Slip
op. at 2-3, quoting Lederhaus v. Pachen & Midwest
Inspection Service, Ltd., 91-ERA-13 (ALJ Aug. 9, 1991), slip
op. at 2 (Recommended Decision & Order Granting Attorney
Fees).
The Secretary noted that at the time the complainant's attorney
filed his original submission regarding attorneys fees, the
leading decision on the subject of attorneys fees awards under
fee shifting statutes such as the ERA was Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711
(1987) (Delaware Valley II), which left open the question
whether under the fee shifting provision of the Clean Air Act, 42
U.S.C. § 7604(d) (1988), prevailing plaintiffs' attorneys
were entitled to receive an enhancement above the
"lodestar" amount on the theory that without such
enhancement plaintiffs would face substantial difficulties in
obtaining suitable counsel.
The Supreme Court has now resolved the issue left undecided in
Delaware Valley II. In City of Burlington v. Dague, __ U.S.__, 112 S. Ct.
2638 (1992), the Court held that under the fee shifting statutory
provision of the Solid Waste Disposal Act, 42 U.S.C. §
6972(e) (1988), and the Federal Water Pollution Control Act
(Clean Water Act (CWA)), as amended, 33 U.S.C. § 1365(d)
(1988), an attorneys fee award may not be enhanced above the
"lodestar" amount in order to reflect the fact that the
prevailing party's attorney was hired on a contingent-fee basis
and therefore assumed the risk of receiving no payment at all for
his or her services.
The Secretary concluded that the statutory fee shifting provision
interpreted in Delaware Valley II are similar in all
relevant respects to that contained in the employee protection
provision of the ERA. The SWDA and the CWA authorize a court to
"award costs of litigation (including reasonable attorney
. . . fees)" to a "prevailing or substantially
prevailing party." 42 U.S.C. § 6972(e) (emphasis
added). The ERA provides that where the complainant prevails,
"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 attorney's and expert witness fees) reasonably
incurred . . . ." 42 U.S.C. § 5851(b)(2)(B)
(emphasis added). The Supreme Court specifically noted in
City of Burlington that "our case law construing what
is a 'reasonable' fee applies uniformly to all [federal fee
shifting statutes]." Id. at 2641. See Flight
Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989).
The Secretary concluded, therefore, that the holding of the
City of Burlington should be applied to the attorneys fees
authorization of the employee protection provision of the ERA.
Hence, the complainant's attorney in the instant case was not
entitled to a fee enhancement above the "lodestar"
figure.
The fact that the complainant and his counsel entered into an
agreement requiring the complainant to pay more is not a reason
for awarding that hourly rate. A respondent is liable only for
reasonable attorneys fees no matter what amount a complainant may
have contracted to pay his or her attorney. Blanchard v.
Bergeron, 489 U.S. 87, 93 (1989); Clark v. American Marine
Corp., 320 F. Supp. 709, 711 (E.D. La. 1970), aff'd,
437 F.2d 959 (5th Cir. 1971).
16 E 3 e i Enhancement above lodestar based on contingent
fee arrangement
In City of Burlington v. Dague, __ U.S. __, 112 S. Ct. 2638 (1992), the United States Supreme
Court considered whether a court, in determining an award of
reasonable attorney's fees under section 7002(e) of the Solid
Waste Disposal Act, 42 U.S.C. § 6972(e), or section 505(d)
of the Federal Water Pollution Control Act (Clean Water Act), 33
U.S.C. § 1365(d), may enhance the fee award above the
"lodestar" amount in order to reflect the fact that the
party's attorneys were retained on a contingent-fee basis and
thus assumed the risk of receiving no payment at all for their
services.
The Court held that enhancement for contingency is not permitted
under the fee-shifting statutes at issue. The Court reasoned
that
[A]n enhancement for contingency would likely
duplicate in substantial part factors already subsumed
in the lodestar. The risk of loss in a particular case
(and, therefore, the attorney's contingent risk) is the
product of two factors: (1) the legal and factual
merits of the claim, and (2) the difficulty of
establishing those merits. The second factor, however,
is ordinarily reflected in the lodestar--either in the
higher number of hours expended to overcome the
difficulty, or in the higher hourly rate of the
attorney skilled and experienced enough to do so. . . .
Taking account of it again through lodestar enhancement
amounts to double-counting. . . .
Id. at 2641 (citations omitted).
Among other additional reasons for rejecting the contingency
enhancement, the Court indicated that an important factor was
that contingency enchancement would be contrary to the goals of
avoiding burdensome satellite litigation and ready
administrability. Id. at 2643.
[Editor's note: Dague was not a whistleblower case;
however the attorney's fee principles discussed are directly
relevant. See Lederhaus v. Pashen & Midwest Inspection
Service, Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), for the
Secretary's discussion of Dague.]
Citing Title VII precedent to the effect that prevailing
complainants may recover interest on attorneys' fees, the
Secretary indicated that an additur to the lodestar fee may be
awarded in compensation for delay in payment. She found,
however, that the complainant's counsel's additur in the instant
matter was excessive. Larry v. The Detroit Edison
Co., 86-ERA-32 (Sec'y May 19, 1992).
[Editor's note: This decision may no longer be relevant given
the Supreme Court's decision in City of Burlington v.
Dague, __ U.S. __, 112 S. Ct. 2638 (1992). See
Lederhaus v. Pashen & Midwest Inspection Service, Ltd.,
91-ERA-13 (Sec'y Jan. 13, 1993), for the Secretary's discussion
of Dague.]
[Nuclear and Environmental Whistleblower Digest XVI E 3 e ii]
ATTORNEY FEES AND COSTS; ADDITUR TO REFLECT DELAY IN PAYMENT
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB awarded an enlargement to Complainant's attorney fee award to
compensate for delay of nearly four years in payment. The ARB based the award on a
comparison of (1) the number of hours multiplied by the current rates of the attorneys and law
clerks, and (2) the earlier award multiplied by the percentage increase in Consumer Price Index -
All Urban Consumers, U.S. city average (CPI-U), between the original award the most recent
CPI-U figure available. The addition is then based on the lower of these two calculations.
For the first calculation, the ARB took the number of hours approved by the ALJ in the
earlier fee order, and multiplied by the difference in the hourly rates approved in that order the
hourly rates approved by the ALJ in the a fee order issued at the conclusion of remand
proceedings.
For the second calculation, the ARB determined the percentage change in the CPI-U, and
then multiplied the earlier award by this percentage.
XVI E 3 e ii Attorney's fees; hourly rate; customary
rate; compensation for delay in receipt
The Secretary in Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y Sept. 8, 1992), reduced
the complainant's requested hourly rate of $100 for attorney's
fees where the respondent submitted the affidavit of an area
practitioner documenting a reduced rate. The Secretary, however,
employed the upper limit of $75 per hour to compensate for a
delay in the receipt of payment. Missouri v. Jenkins, 491
U.S. 274, 282-284 (1989); Ramos v. Lamm, 714 F.2d 546, 555
(10th Cir. 1983) (hourly rate should reflect rates in effect at
time fee is established, rather than those in effect at time
services were performed); Copeland v. Marshall, 641 F.2d
880, 893 (D.C. Cir. 1980).
XVI E 3 e ii Attorney fees; interest
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." 478 U.S.
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.
Counsel is entitled to compensation for time reasonably spent in
preparing a fee claim. Larry v. The Detroit Edison
Co., 86-ERA-32 (Sec'y May 19, 1992).
[Nuclear and Environmental Whistleblower Digest XVI E 3 f]
ATTORNEY'S FEES; LITIGATION OF ATTORNEY'S FEES ISSUE; RESPONDENT'S
FAILURE TO COMPLY WITH ARB'S PROCEDURES
In Leveille v. New York Air National
Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the
ARB authorized an award for attorneys' fees and costs for time reasonably expended litigating
the attorneys' fees issue. The ARB noted in this regard that Respondent had often failed to
comply with the procedural expectations of the Board. The Board wrote: "Respondent's
careless regard for its litigation responsibilities has imposed additional burdens on the
Complainant, thus contributing to Complainant's entitlement to additional fees."
Id. @ n.1.
In Mackowiak v. University Nuclear Systems, Inc.,
82-ERA-8 (ALJ July 25, 1986), settled while under review
(Sec'y Apr. 18, 1989), the ALJ allowed as a cost Complainant's
airline ticket from Alaska to Spokane, Washington for a remand
hearing, as a cost of litigation reasonably incurred.
Complainant had moved to Alaska to seek work at the time of the
remand hearing.
[N/E Digest XVI E 3 g]
FEDERAL EXPRESS CHARGES ARE RECOVERABLE AS COSTS
Specific delivery charges incurred in a whistleblower case are recoverable by the
complainant as costs. Ishmael v. Calibur
Systems, Inc., 96-SWD-2 (ARB Oct. 17, 1997) (Federal Express charges
improperly deducted by ALJ as overhead expenses).
COSTS; FED. R. CIV. P. 56(d) DOES NOT GOVERN
[N/E Digest XVI E 3 g and XVI E 6]
In Johnson v. Bechtel Construction Co.,
95-ERA-11 (Sec'y Feb. 26, 1996), the Secretary permitted a
pro se Complainant to submit a petition for costs.
The Respondent objected to several items on the ground that
they were not recoverable under FRCP 56(d). The Secretary
rejected the Respondent's contention that the ERA's cost
provision should be interpreted like Rule 56(d), stating
that the ERA cost provision is interpreted broadly. the
Secretary found that the types of items objected to in the
instant
case were compensable under the ERA, including travel
expense and postage related to the hearing.
COSTS; INTEREST NOT AUTHORIZED
[N/E Digest XVI E 3 g]
Interest on costs is not authorized under the ERA.
Johnson v. Bechtel Construction Co., 95-ERA-11
(Sec'y Feb. 26, 1996).
COSTS; NEED FOR RECEIPTS OR BILLS
[N/E Digest XVI E 3 g]
In Johnson v. Bechtel Construction Co.,
95-ERA-11 (Sec'y Feb. 26, 1996), the Secretary found that,
although it is best to attach receipts or bills reflected a
claimed cost item, it was not essential in the instant case
involving a pro se Complainant because of items in
the record or the details provided to support the claim
(e.g., the existence of the telegram requesting the
hearing). The Secretary disallowed items for which the
Complainant only gave a rough estimation.
XVI E 3 g Secretarial costs, travel expense, copying,
telephone costs
Certain supplemental secretarial costs, necessary travel
expenses, and copying and telephone costs are reimbursable as
part of an attorney fee because they are "integrally related
to the work of an attorney" and may significantly contribute
to the success of the litigation. Wheeler v. Durham City Bd.
of Ed., 585 F.2d 618, 623-624 (4th Cir. 1978). According to
the Secretary, since such costs are recoverable as attorneys'
fees, they are recoverable where, as under the ERA, the statute
makes clear that costs and expenses other than attorneys' fees
are compensable. 42 U.S.C. § 5851(b)(2)(B). Specifically,
the Secretary approved reimbursement for Federal Express and
airfare charges. Larry v. The Detroit Edison Co.,
86-ERA-32 (Sec'y May 19, 1992).
XVI E 3 g Using paralegal to proof and edit a brief
It is reasonable to bill for use of a paralegal to proof and edit
a brief prepared for whistleblower litigation. Larry v.
The Detroit Edison Co., 86-ERA-32 (Sec'y May 19,
1992).
XVI E 3 g Costs
The fact that Complainant and his counsel entered into an
agreement requiring Complainant to reimburse counsel for
telephone tolls, Federal Express charges and copying costs is not
a basis for determining which costs are compensable.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
XVI E 3 g Costs and expenses other than attorney's
fees
In a case arising out of the Fourth Circuit, the complainant may
be reimbursed for telephone tolls and copying costs and for
Federal Express charges because these expenses, while normally
part of counsel's overhead, have been held in the Fourth Circuit
to be reimbursable as part of attorney's fees. Consequently, they
are recoverable under ERA where the statute makes clear that
costs and expenses other than attorney fees are compensable. 42
U.S.C. § 5851(b)(2)(B).
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991), citing Wheeler v. Durham City Bd. of
Educ., 585 F.2d 618, 623-4 (4th Cir. 1978).
[Editor's note: the Secretary made no indication whether such
costs should be allowed in other Circuits.]
In Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 (Sec'y Dec. 1, 1994), the
Secretary ordered the Complainant's counsel to submit his
itemized fee petition to the ALJ, and ordered
the ALJ to issue a supplemental recommended decision and order
establishing the amount of the
attorney fee and costs.
[Nuclear & Environmental Whistleblower Digest XVI E 4 a]
ATTORNEY FEE APPLICATION; ALJ'S ISSUANCE OF RECOMMENDED DECISION PROPERLY WITHIN SCOPE OF HEARING RESPONSIBILTIES
In Moder v. Village of Jackson, Wisconsin, ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB June 30, 2003), Respondent objected to the ALJ's recommended decision on attorney fees on the ground that such fees may be awarded only at the time the final decision and order is issued. The ARB observed that the ALJ's decision was only a recommendation, and that adjudication of the attorney fees petition was entirely within the scope of the ALJ's hearing responsibilities.
[Nuclear & Environmental Digest XVI E 4 a]
COSTS; FEE PETITION TO ALJ
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent was required to pay Complainant's attorney fees and costs associated with the litigation, including costs in attending the hearing (e.g., transportation, lodging, meals). The ARB directed the fee petition to be presented to the presiding ALJ.
[N/E Digest XVI E 4 a]
ATTORNEY'S FEE AWARD MAY INCLUDE PERIOD PRIOR TO HEARING
PHASE
In Ishmael v. Calibur Systems,
Inc., 96-SWD-2 (ARB Oct. 17, 1997), the ALJ concluded that the fees
and rates
indicated in Complainant's fee petition were reasonable but that any work performed before the
date the case was docketed before the Office of Administrative Law Judges was not
compensable. The ARB disagreed, holding that costs and expenses incurred in connection
with
the bringing of a complaint include work performed prior to the hearing phase of a
whistleblower
action.
XVI E 4 a When to consider attorney fee petition
In Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (ALJ Mar. 3, 1993) (post-hearing order),
the ALJ found that Complainant's request for attorneys' fees and
costs was premature -- that 29 C.F.R. § 24.6(b)(3) provides
that such a request be made upon issuance of a final order by the
Secretary -- and the Secretary had not yet issued a final order.
XVI E 4 a ALJ's issuance of recommended decision on
attorney's fees following decision on the
merits
In Lederhaus v. Donald Paschen & Midwest Inspection
Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op.
at 14-15, the ALJ recommended after a hearing that the
complainant's claims be upheld and that he be awarded back pay
with interest, compensatory damages, and attorneys' fees and
costs. The ALJ allowed Complainant's counsel to submit his
request for attorney's fees, and subsequently issued and
recommended decision and order granting attorney's fees. The
Secretary noted this procedure, and voiced no dissatisfaction
with it; however she indicated that she would allow the parties
to brief the attorney fee before her in addition to permitting
the complainant to request additional fees and costs relating to
the Secretary's review. Apparently the original briefing
schedule for the appeal on the merits was issued before the ALJ
issued the recommended decision on attorney's fees and costs.
In McCuistion v. Tennessee Valley Authority, 89-
ERA-6 (Sec'y June 3, 1994), the Secretary issued a decision
finding in favor of Complainant, and permitting counsel for
Complainant to submit any petition for costs and expenses
incurred in bringing the proceeding before the Secretary on
review of the recommended decision of the Administrative Law
Judge (ALJ). A fee petition was submitted, which was contested
by the Respondent. An extension, however, was requested pending
a settlement negotiation. Several years passed without further
communication, so the Secretary considered the petition.
Respondent challenged a portion of the billing as not being
incurred in review of the ALJ's recommended decision before the
Secretary. The Secretary found that while some of the hours
billed predate issuance of the Secretary's briefing schedule,
they reasonably could have been spent in anticipation of review.
The Secretary also permitted hours expended following submission
of principal briefing as reasonably spent attending to
Respondent's ongoing filings.
Finally, the Secretary found Complainant's counsel's hourly fee
of $125 to manifestly comport with prevailing market rates.
Subsequently, in McCuistion v. Tennessee Valley
Authority, 89-ERA-6 (Sec'y Sept. 22, 1994), the Secretary
considered the parties' motion for reconsideration in light of a
settlement reached and approved in a related case (90-ERA-44).
Based on this motion, the Secretary vacated the June 3, 1994
Final Decision and Order, and dismissed the case.
ATTORNEY FEES; REASONABLENESS OF MOTION TO REOPEN [N/E Digest XVI E 4 b]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary held that, in view of the
ALJ's recommended decision dismissing the complaint, which the
Secretary rejected, the Complainant's attorney's fees and costs
associated with requests to reopen and supplement the record were
reasonably incurred in bringing the complaint, even though some
of the requests were denied as unnecessary in light of the
disposition of the case.
ATTORNEY FEES; WORK FOLLOWING ALJ HEARING; DIRECTION OF
PETITION [N/E Digest XVI E 4 b]
In Gaballa v. The Atlantic Group, Inc., 94-ERA-
9 (Sec'y Jan. 18, 1996), the Secretary permitted the
Complainant's attorney to submit a supplemental itemized petition
for attorney's fees and costs not covered by an earlier interim
order.
Editor's note: Implicitly, this petition would be
directed to the Secretary.
To the same effect: Zinn v. University of
Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996).
In Nathaniel v. Westinghouse Hanford Co., 91-SWD-2
(Sec'y Feb. 1, 1995), the
Secretary rejected the ALJ's recommendation that the complaint be
dismissed, and instead found in
favor of the Complainant, awarding costs and expenses, including
attorney fees, reasonably incurred in
bringing the complaint. The Secretary provided counsel for
Complainant a period of time to submit any
petition for costs and expenses.
XVI E 4 b When to consider fee petition
In Beck v. Daniel Construction Co., 86-ERA-26
(Sec'y Aug. 3, 1993), the Secretary appears to approve an ALJ's
issuance of a recommended decision on attorney fees. Complainant
is entitled to request additional fees and costs relating to the
Secretary's review of the matter, the request to be directed to
the Secretary.
[Editor's note: Some case law indicates that the ALJ loses all
jurisdiction after issuance of the Recommended D & O. It
does not appear, however, that the Secretary objects to the
rendering of a R D & O on the merits and a later R D & O
on fees and costs.]
XVI E 4 b When to consider attorney fee petition
In Williams v. TIW Fabrication & Machining,
Inc., 88-SWD-3 (ALJ Aug. 3, 1989), the ALJ issued an
order deferring consideration of the Complainant's motion for
attorney fees based on the language of 29 C.F.R. §
24.6(b)(3), which the ALJ determined indicates that a motion for
attorney fees can be considered only after the Secretary enters a
final order on the recommended order.
The Office of Administrative Appeals later evidently handled the
attorney fee petition without input from the ALJ. SeeWilliams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y Sept. 8, 1992).
In Mackowiak v. University Nuclear Systems, Inc.,
82-ERA-8 (ALJ July 25, 1986), settled while under review
(Sec'y Apr. 18, 1989), Respondent objected to that portion of an
attorney's fee petition relating to a petition for review by the
Ninth Circuit based on language from DeFord v. Secretary of
Labor, 715 F.2d 231 (6th Cir. 1983). In DeFord, the
Sixth Circuit held that Complainant's counsel's costs and fees
were not allowable before it because the appeal to that court
involved dissatisfaction with the Secretary's order while the
allowable section 5851 costs and fees is specifically limited to
those "for, or in connection with, the bringing of the
complaint upon which the [Secretary's] order was issued."
[Editor's note: in other words, costs are allowable for the suit
against the respondent, but not for a suit against the Secretary]
In dicta, the court stated that an award of attorneys' fees
incurred before the court by the Secretary would
"appear" to be outside the scope of the Secretary's
authority. DeFord, 715 F.2d at 232.
The ALJ in Mackowiak distinguished the DeFord
dicta, stating that ". . . Mackowiak's appeal before the
Ninth Circuit arose in connection with his complaint under
§5851, not under a separate, but related action."
[Nuclear & Environmental Whistleblower Digest XVI E 4 c] ATTORNEY'S FEES AND COSTS FOR APPELLATE WORK; SIXTH CIRCUIT
SeeScott v. Roadway Express, Inc., ARB No. 01-065, ALJ No. 1998-STA-8 (ARB May 29, 2003) (order granting attorney's fees), casenoted at STAA Digest IX C, infra (explaining why DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir 1983), does not bar Secretary from awarding fees and costs for appellate work where the complainant was a party in the appellate case and necessarily defended the ARB decision).
[Nuclear and Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY FEES; LEGAL WORK IN COURT OF APPEALS; SIXTH CIRCUIT LAW
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB declined to reverse its position acquiescing in the Sixth Circuit in the
decision in DeFord v. Secretary of Labor, 715 F.2d 231, 232 (6th Cir. 1983), in which
the court rejected the Secretary's authority to award attorney fees for work in the court of appeals
in ERA whistleblower cases. See Pillow v. Bechtel, ARB No. 97-040, ALJ No.
87-ERA-35 , slip op. at 3 (ARB Sept. 11, 1997). The ARB would have awarded
attorneys fees for work in the Third Circuit, however, if such had been incurred (Complainant
had appeared pro se before the Third Circuit).
[N/E Digest XVI E 4 c]
ATTORNEY'S FEES INCURRED DURING JUDICIAL REVIEW; AUTHORITY OF ARB TO
AWARD; SPILT IN CIRCUITS
In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept.
11,
1997), a case arising in the Eleventh Circuit, the ARB granted appellate level
costs and attorney's
fees where Complainant prevailed before the Secretary, and Complainant
participated in the
judicial review proceeding. The Board noted a spilt in the circuits on the
issue of the Secretary
of Labor's authority to make such an award. The Fourth Circuit has held that
the Secretary has
such authority, Blackburn v. Reich, 79 F.3d 1375, 1379 (4th Cir. 1995),
but the Sixth
Circuit has held that the Secretary does not. DeFord v. Secretary of
Labor, 715 F.2d 231
(6th Cir. 1983).
[N/E Digest XVI E 4 c]
ATTORNEY'S FEE; PREPARATION OF BRIEF ON APPEAL WHERE BRIEF WAS NOT
REQUIRED
In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept.
11,
1997), Respondent had sought judicial review of the Secretary's determination
in favor of
Complainant. The Eleventh Circuit affirmed the Secretary. See Pillow v.
Bechtel
Construction, Inc., 87-ERA-35 (ARB Feb. 5, 1997). Respondent objected to
items in an
attorney's fee petition submitted to the ARB for time spent in preparing
Complainant's brief in
the appellate court because, according to Respondent, such a brief was
voluntary and
Complainant's appearance gratuitous. The ARB acknowledged that Complainant
was not
required to file in the Eleventh Circuit proceeding, but found that "he
clearly had an
interest in the outcome [and therefore] preparing and submitting the brief was
reasonable under
the circumstances." Slip op. at 5. Thus, it allowed costs for work
performed in producing
the brief.
ATTORNEY FEES; COSTS AND EXPENSES INCURRING DURING APPEAL TO
FEDERAL COURT OF APPEALS
[N/E Digest XVI E 4 c]
In Delcore v. W.J. Barney
Corp., 89-ERA-38 (ARB Oct. 31, 1996), the Board adopted the reasoning of Blackburn
v.
Reich, 79 F.3d 1375, 1379 (4th Cir. 1996),
in which the court held that "fees related to prosecuting an appeal
before the court of
appeals are 'costs . . . incurred . . . in connection with the bringing of [a]
complaint' under §
5851(b) . . . ." Contra Deford v. Secretary of Labor, 715 F.2d
231, 232-33 (6th
Cir. 1983).
ATTORNEY'S FEES; WORK BEFORE COURT OF APPEALS; SPILT IN
CIRCUITS
[N/E Digest XVI E 4 c]
In cases arising in the Sixth Circuit, the Secretary and the
Board are not authorized to award attorney's fees for appellate
work before the court of appeals. DeFord v. Tennessee Valley
Authority, 715 F.2d 231, 232-33 (6th Cir. 1983). In Fourth
Circuit cases, however, the Secretary and Board are permitted to
order the respondent to pay attorney fees for appellate work in
the court of appeals. Blackburn v. Reich, 79 F.3d 1375
(4th Cir. 1996).
ATTORNEY'S FEES AND COSTS; SECRETARY HAS AUTHORITY TO AWARD
APPEAL-RELATED COSTS
[N/E Digest XVI E 4 c]
In Blackburn v.
Reich, No. 95-1166 (4th Cir. Mar. 26, 1996),
reversingBlackburn v. Metric
Constructors, Inc., 86-ERA-4 (Sec'y Dec. 27,
1994), the court held that "attorney's fees related to
prosecuting an appeal before the courts of appeals are
'costs . . . incurred . . . in connection with []the
bringing of [a] complaint' under §5851(b), and,
therefore, the Secretary has the authority to award such
fees."
ATTORNEY'S FEES; WORK BEFORE CIRCUIT COURT WHERE JURISDICTION
WAS DECLINED; DOL'S AUTHORITY OVER FEE REQUEST [N/E Digest XVI E 4 c]
In Sprague v. American Nuclear Resources,
Inc., 92-ERA-37 (ALJ Dec. 5, 1995), the ALJ recommended a
finding
that work done with respect to responding to the
Respondent's appeal to the Sixth Circuit was work incurred
in connection with bringing the complaint where the Sixth
Circuit never accepted jurisdiction over the complaint
because the Secretary had not yet issued a final appealable
order.
XVI.E.4.c. Work before Secretary and Court of Appeals
In Pogue v. United States Department of the Navy Mare
Island Naval Shipyard, 87-ERA-21 (Sec'y Oct. 24, 1994)
(order), the Acting Director of the Office of Administrative
Appeals noted that the Secretary had remanded the matter to the
ALJ to permit Complainant's former attorneys an opportunity to
supplement their request for attorney's fees for work performed
after the dates covered by the ALJ's earlier decision and order
awarding attorney's fees. Subsequently, the Office of
Administrative Appeals received by fax a copy of an order issued
by the ALJ, in which she gave notice that she would only submit a
recommendation to the Secretary on the additional work before the
ALJ but not for work performed before the Secretary and the court
of appeals. The Acting Director then directed the ALJ to
consider the attorney fee request in its entirety.
[Editor's note: This order seems to be, in effect, the
granting of an interlocutory appeal, which is contrary to every
other request for Secretarial intervention prior to the ALJ's
issuance of a recommended order. The order is also peculiar in
that it directs the ALJ to consider fees for work before the
Court of Appeals]
XVI E 4 c Work done on post-judgment motion
In DeFord v. Tennessee Valley Authority, 81-ERA-1
(Sec'y Aug. 16, 1984) (ruling on motion for reconsideration), the
Secretary considered whether he could entertain a motion for
reconsideration of a final order of the Secretary to supplement
the relief granted by increasing the amount awarded for medical
expenses, damages for mental pain and suffering, and attorneys'
fees, or in the alternative, to remand the case to the ALJ to
take evidence. Complainant submitted an affidavit itemizing his
additional medical expenses and attorney's fees incurred from
about the time was transferred to the ALJ (December 1980) to the
month after the Secretary had issued an order following remand
from the 6th Circuit (May 1984).
The Secretary assumed that Congressional silence on the issue in
the ERA did not indicate an intent to prohibit a motions of this
kind, and therefore turned to the Federal Rules of Civil
Procedure (incorporated into the rules of practice for
administrative proceedings, see e.g., 29 C.F.R. § 18.1; 41
C.F.R. 60-30.1 (1982)) for guidance. The Secretary looked to the
only two possibly applicable rules: Rule 59, New Trials;
Amendment of Judgments, and Rule 60, Relief for Judgment or
Order.
The Secretary ruled that Complainant had an opportunity in the
original hearing before the ALJ to prove his future medical
expenses and damages for mental pain and suffering, and denied
the motion for additional attorneys' fees for work on the post-
judgment motion since such work could not be considered as
"in connection with the bringing of the complaint" as
provided in section 5851 of the ERA.
XVI E 4 c Fees and Costs during pendency of appeal to
federal court
In Blackburn v. Metric Constructors, Inc.,
86-ERA-4 (Sec'y Dec. 27, 1994), the
Secretary ruled that he had no authority to approve fees and
costs relating to a proceeding on appeal to
the Court of Appeals for the Fourth Circuit. See DeFord v.
Tennessee Valley Authority, 715 F.2d
231, 232-233 (6th Cir. 1983). The Secretary, however, allowed
fees and costs for work before the
Secretary following remand by the Fourth Circuit. See
Blackburn v. Martin, 982 F.2d 125 (4th
Cir. 1992). In addition, the Secretary allowed fees and costs
for work before the ALJ and the Secretary
relating to the Secretary's remand to the ALJ for reconsideration
of an issue, which occurred during the
pendency of the federal court appeal.
The respondent in Saporito v. Florida Power &
Light Co., 90-ERA-27, 47 (Sec'y Aug. 8, 1994) sought
attorney's fees, claiming that the complainant had filed the
claims in bad faith. The ALJ found that the complainant's claims
were made in good faith and recommended denial of the request.
The Secretary agreed with the result, but based his denial of
respondent's request on the language of the ERA. The ERA does not
grant the Secretary the authority to award costs or attorney's
fees to a respondent. The ALJ apparently believed Rule 11 of the
Federal Rules of Civil Procedure governed the respondent's
request. Rule 11 does not apply to hearings before the
administrative law judges as such proceedings are covered by the
Department of Labor regulations. See 29 C.F.R.
§§ 18.1 (a), (b) (1993).
[Nuclear and Environmental Whistleblower Digest XVI E 5]
REIMBURSEMENT FOR LEGAL FEES FOR APPEAL; DOE CONTRACTORS AND SUBCONTRACTORS UNDER ENERGY POLICY ACT OF 2005
On August 8, 2005, President Bush signed the Energy Policy Act of 2005. The Act amends the Energy Reorganization Act to prohibit the Department of Energy from reimbursing a contractor or subcontractor for legal fees incurred subsequent to an ALJ finding against the contractor or subcontractor on the merits, unless the ALJ's determination is reversed on appeal. This amendment applies to contracts entered into after the date of enactment.
[N/E Digest XVI E 5]
COSTS FOR RESPONDENT
In Olsovsky v. Shell Western E&P, Inc., 96-CAA-1 (ARB Apr. 10,
1997), Respondent requested an award of its costs, other than attorney's fees.
The Board,
following Secretarial precedent, held that DOL does not have statutory
authority to award costs
when a complaint is denied.
XVI E 5 Respondent's request for attorney fees
In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y
Aug. 1, 1993), Respondent requested a reasonable attorney's fee
as a sanction against Complainant and his counsel for their
purported bad faith conduct in this case, and to compensate
Respondent for the time and effort spent in responding to such
conduct.
The Secretary declined to impose such a sanction. He stated that
the environmental actions under which the complaint was brought
authorize the payment of an attorney's fee only to a successful
complainant. See 15 U.S.C. 2622(b)(2)(B) (TSCA), 42 U.S.C.
7622(b)(2)(B) (CAA); 42 U.S.C. 9610(c) (CERCLA). Since there is
no provision for recovery of costs and attorney's fees by a
respondent, he denied the request. See Rogers v. Multi-Amp
Corp., 85-ERA-16 (Sec'y Dec. 18, 1992) (under analogous
provision of ERA).
The Secretary noted that Fed. R. Civ. P. 11 does not apply in the
case as a basis to impose a sanction. See Rogers, slip
op. at 2-3; Cable v. Arizona Public Service Co., 90-ERA-15
(Sec'y Nov. 13, 1992), slip op. at 5-6 (Rule 11 does not provide
a basis for sanction against a party accused of acting in bad
faith in case under analogous employee protection provision of
ERA).
XVI E 5 Respondent's request for attorney's fees and
costs
In Rogers v. Multi-Amp Corp., 85-ERA-16 (Sec'y Dec.
18, 1992), the ALJ had denied the respondent's motion for
attorney's fees and costs made under Rule 11 of the Federal Rules
of Civil Procedure because the complainant filed the complaint in
good faith and simply could not carry her burden of proof. The
Secretary agreed that attorney fees and costs should be denied;
however, she pointed out that she had recently ruled that Rule 11
does not apply to whistleblower cases because 29 C.F.R. §
18.36 provides a remedy for conduct which is dilatory, unethical,
unreasonable and in bad faith. See Cable v. Arizona Public
Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 5-
6. She also pointed out that the ERA provides for recovery of
attorney's fees by complainants but not by respondents.
See 42 U.S.C. § 5851(b)(2)(B).
XVI E 5 Costs as a sanction not permitted
In Tennessee Valley Authority v. Reich, No. 92-
3977, 1994 U.S. App. LEXIS 13255 (6th Cir. June 1, 1994)
(unpublished), the court concluded that it could not find that
the Secretary of Labor's interpretation of its own regulation
regarding the assessment of costs as a sanction in an ERA
proceeding was clearly erroneous. The Secretary had held that
Fed. R. Civ. P. 37(b) did not apply because a specific Labor
Department regulation, 29 C.F.R. 18.6(d)(2)(i-v), provided
exclusive remedies and did not provide for the assessing of costs
as a sanction.
XVI E 5 Respondent's request for attorney's fees
The respondent in Saporito v. Florida Power & Light
Co., 90-ERA-27, 47 (Sec'y Aug. 8, 1994) sought attorney's
fees, claiming that the complainant had filed the claims in bad
faith. The ALJ found that the complainant's claims were made in
good faith and recommended denial of the request. The Secretary
agreed with the result, but based his denial of respondent's
request on the language of the ERA. The ERA does not grant the
Secretary the authority to award costs or attorney's fees to a
respondent. The ALJ apparently believed Rule 11 of the Federal
Rules of Civil Procedure governed the respondent's request. Rule
11 does not apply to hearings before the administrative law
judges as such proceedings are covered by the Department of Labor
regulations. See 29 C.F.R. §§ 18.1 (a), (b)
(1993).
XVI E 5 Attorney's fees
ERA section 210 does not provide for an award of attorney's fees
against a Complainant. Hasan v. Nuclear Power Servs.,
Inc., 86- ERA-24 (Sec'y June 26, 1991).
In Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (Sec'y Dec. 7, 1994), the Secretary noted that he had some reservation about
retainer and other costs incurred and
paid by the Complainant in preparation for the administrative
hearing, but accepted her representation
that, "to the best of [her] knowledge," they are not
reflected in her trial counsels' fee petition,
and ordered the Respondent to reimburse her for those costs and
expenses.
[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; NOT SUBJECT TO ENHANCEMENT FOR DELAY IN PAYMENT
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB had ruled that an additur may be made to attorney's fees for a delay in
payment. The Board indicated, however, that costs are not subject to additur for delay. See
id. @ n.16.
[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; COSTS INCURRED IN ASSOCIATION WITH WITNESS TESTIMONY
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB -- over the objections of Respondent -- awarded the full amount
claimed by Complainant for costs incurred in association with the testimony of a witness whose
testimony had, in part, not been credited by the ALJ. The ARB, citing Complainant's argument
that both the ALJ and the ARB credited part of the testimony, and, based on the fact the ARB
had itself relied on the testimony in ordering back pay, found that the costs associated with
obtaining the testimony were reasonably incurred. Thus, the ARB allowed the entire costs on
this item sought by Complainant.
[Nuclear and Environmental Whistleblower Digest XVI E 6]
ATTORNEY FEES; NOT AVAILABLE FOR PRO SE LITIGANT
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB declined to award attorneys fees for work in the Third Circuit, because
Complainant had appeared pro se before the Third Circuit, and a pro se litigant
under the ERA is not entitled to an attorney fee award.
[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; ATTENDANCE OF COMPLAINANT AT DEPOSITION OF WITNESS FOR
RESPONDENT
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ALJ denied Complainant's claim for expenses incurred in attending the
deposition of one of Respondent's witnesses because Complainant's attendance was not
reasonably required. Before the ARB, Complainant argued that he had the right to attend the
deposition and, as the lead investigator in the case, attended to provide advice and guidance in
questioning. The ARB found that the ALJ was in the best position to assess whether
Complainant reasonably incurred the cost of attending the deposition, and deferred to his
assessment that Complainant's attendance was not a cost "reasonably incurred" in
bringing the complaint.
[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; LACK OF DOCUMENTATION OR VERIFIABLE ALTERNATIVE
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), Complainant applied for costs incurred in attending a mediation ordered by the
ALJ. Complainant, however, had lost his receipts when a hurricane damaged his home. The
ALJ awarded mileage expense because it was possible to calculate the distance from
Complainant's home to the mediation location; however, the ALJ, citing Johnson v. Bechtel
Construction Co., 1995-ERA-11 (Sec'y Feb. 26, 1996), denied expenses for meals and
lodging because there was neither any documentation nor any alternative way for the ALJ to
ascertain the exact expenses incurred. The ARB affirmed the ALJ on this issue.
Similarly, the ARB declined to disturb the ALJ's rulings denying costs for undocumented
expenses for local travel, faxes and photocopies. The ARB held that the ALJ was free to accept
or reject the reason Complainant gave for his inability to produce all receipts.
EXPERT WITNESS; FEES FOR EXPERT WHOSE TESTIMONY WAS REJECTED
[N/E Digest XVI E 6]
In Artrip v. Ebasco Services,
Inc., 89-ERA-23 (ARB Sept. 27, 1996),
Complainant enlisted an expert to testify regarding lost earnings. The ALJ
did not credit the
testimony because the calculations were based merely on assumptions and were
inaccurate. The
ALJ, however, included the expert's bill as expense reasonably incurred by
Complainant. The
Board held that "[i]t was not unreasonable in this case for [Complainant]
to enlist an expert
to make computations and projections based on his theory of back pay
liability, even though his
theory was ultimately rejected." See 42 U.S.C. §
5851(b)(2)(B).
COSTS AND EXPENSES; JOB SEARCH EXPENSES
[N/E Digest XVI E 6]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary awarded the Complainant job search expenses
for mailing, telephone and travel.
[Editor's note: Although the Deputy Secretary discussed
these "expenses" in a part of the opinion
otherwise addressing litigation expenses, it may not have
been his intention to categorize them as such but rather to
address them as compensatory damages.]
COSTS AND EXPENSES; LOSSES FROM SALE AND PURCHASE OF NEW
HOUSE
[N/E Digest XVI E 6]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Complainant sought reimbursement for losses incurred upon
the sale of his home in Connecticut in 1992 after his
discriminatory lay off, and for payments to a bank
associated with the purchase of a new house in a Virginia.
The Deputy Secretary did not award recovery of these
expenses because had the Complainant remained employed with
the Respondent, he would have been relocated to Florida upon
the sale of the business and would not have been reimbursed
for any loss associated with the sale of his house. The
Deputy Secretary noted that there was no evidence of a
change in the local real estate values in the interim period
between the sale of the house in 1993 and the time the
Complainant would have been relocated in 1994.
[Editor's note: Although the Deputy Secretary discussed
these "expenses" in a part of the opinion
otherwise addressing litigation expenses, it may not have
been his intention to categorize them as such but rather to
address them as compensatory damages.]
COSTS AND EXPENSES; REDUCED EARNINGS DURING HEARING
[N/E Digest XVI E 6]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary did not separately award money to replace
lost wages incurred by the Complainant when he had to take
leave without pay from his new job to attend the hearing.
The Deputy Secretary found that the back pay award covers
this cost since interim earnings(which would be an offset of
the back pay award) were reduced for the time he was on
leave without pay.
COSTS AND EXPENSES; TRANSPORTATION, LODGING AND MEALS DURING
HEARING
[N/E Digest XVI E 6]
Reimbursable costs include a successful complainant's
transportation to, and lodging and meals while attending,
the DOL hearing. In Creekmore v. ABB Power Systems
Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb.
14, 1996).
COSTS AND EXPENSES; TRAVEL EXPENSES FOR FAMILY TO VISIT
COMPLAINANT AT NEW JOB PRIOR TO MOVING ENTIRE FAMILY
[N/E Digest XVI E 6]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary awarded the Complainant travel expenses for
two trips his family made to visit him in another state
prior to the time the entire family moved to join him. The
Complainant would have incurred this expense if he had not
been discriminatorily laid off.
[Editor's note: Although the Deputy Secretary discussed
these "expenses" in a part of the opinion
otherwise addressing litigation expenses, it may not have
been his intention to categorize them as such but rather to
address them as compensatory damages.]
COSTS; BOOKS; PRO SE COMPLAINANT
[N/E Digest XVI E 6]
In Johnson v. Bechtel Construction Co.,
95-ERA-11 (Sec'y Feb. 26, 1996), the Secretary permitted a
pro se Complainant to recover the costs of books
concerning trial preparation.
COSTS; FED. R. CIV. P. 56(d) DOES NOT GOVERN
[N/E Digest XVI E 3 g and XVI E 6]
In Johnson v. Bechtel Construction Co.,
95-ERA-11 (Sec'y Feb. 26, 1996), the Secretary permitted a
pro se Complainant to submit a petition for costs.
The Respondent objected to several items on the ground that
they were not recoverable under FRCP 56(d). The Secretary
rejected the Respondent's contention that the ERA's cost
provision should be interpreted like Rule 56(d), stating
that the ERA cost provision is interpreted broadly. the
Secretary found that the types of items objected to in the
instant
case were compensable under the ERA, including travel
expense and postage related to the hearing.
XVI E 6 ATTORNEY'S FEES; PRO SE COMPLAINANT
A successful pro se complainant in an ERA whistleblower case
is not entitled to payment of attorney fees, but is entitled to
payment of the reasonable costs incurred in bringing the
complaint, such as fees for typing, photocopying, mailing,
telegrams, long distance telephone calls, and the like.
Johnson v. Bechtel
Construction Co., 95-ERA-11
(Sec'y Sept. 11, 1995).
XVI E 6 Costs incurred by the complainant
A complainant is not entitled to compensation for purchase of a
Whistleblower Handbook.
In Varnadore v. Oak Ridge National Laboratory,
94-CAA-2 and 3 (Sec'y Sept. 11, 1995), the Secretary held that,
under the whistleblower provision of the ERA as amended in 1992,
42 U.S.C. § 5851(b)(2)(A) and (B), where the ALJ issues a
recommended decision finding that the complainant has prevailed
on any of his or her claims and that relief should be granted,
the complainant is entitled to a preliminary order of attorney's
fees and costs. The Respondent in Varnadore
expressed concern that recouping paid fees and costs would be
difficult if the Complainant ultimately failed on the merits or
the recommended fee award be reduced. The Secretary indicated
that recoupment of fees should not be a significant problem
because 20 C.F.R. § 18.36 permits exclusion of an attorney
from appearing before an ALJ for refusing to comply with
directions.
[Nuclear & Environmental Digest XVI E 7]
ATTORNEY FEES; OBLIGATION OF COMPLAINANT'S ATTORNEY TO REPAY
FEES AND COSTS AWARDED IN A PRELIMINARY ORDER IF THE ARB REVERSES
THE ALJ'S DECISION ON THE MERITS
In Varnadore v. Oak Ridge National Laboratory, 1994-CAA-2 and 3 (ARB Sept.
6, 1996), the ARB rescinded a preliminary order, issued on September 11, 1995, directing
Respondent to pay Complainant's counsel's attorneys fees. The order was rescinded because the
ARB had later reversed the ALJ's recommended decision in favor the Complainant. The ARB
also ordered Complainant's counsel to repay the attorney's fees and costs paid to him pursuant to
the preliminary order.
Ultimately, the ARB's decision on the merits in Varnadore was affirmed by the
Sixth Circuit. SeeVarnadore v. Secretary of Labor, 141 F.3d 625 (6th Cir. 1998).
In Lockheed Martin Energy Systems, Inc. v. Slavin, No. 3:98-CV-613
(E.D. Tenn. June 18, 1999), Respondent brought a collection action before a Federal District
Court, which ordered Complainant's counsel to repay the attorneys fees and costs as directed by
the ARB, and to pay all costs associated with the action, and all prejudgment interest dating back
to the Sept. 6, 1996 ARB order. In Lockheed Martin Energy Systems, Inc. v.
Slavin, No. 3:98-CV-613 (E.D. Tenn. Aug. 17, 1999), the court denied reconsideration.
ATTORNEY'S FEES PAID ON PRELIMINARY ORDER; BOARD'S AUTHORITY TO
ORDER REPAYMENT; SANCTION FOR FAILING TO REPAY
[N/E Digest XVI E 7]
In Varnadore v. Oak Ridge National
Laboratory, 94-CAA-2 and 3 (ARB Sept. 6, 1996), Respondent had
been ordered
by the Secretary to pay Complainant's attorney fees following the ALJ's
recommended decision
that the complaint had merit. See 42 U.S.C. § 5851(b)(2)(A).
After the ALJ's
recommendation of relief was rejected by the Board, Respondent filed a motion
for an order
requiring repayment of the attorney fees. The Board granted Respondent's
motion, holding that
the whistleblower provision of the ERA requires that a Preliminary Order
granting relief be
rescinded when the Board dismisses all of a complainant's claim, and that the
Board has the
authority to issue such an order requiring repayment of attorney's fees. The
Board distinguished
Macktal v. Brown & Root, Inc., 86-ERA-23 (Sec'y July 11, 1995), in
which the
Secretary held that neither an ALJ nor the Secretary had the authority to
order a complainant to
return monies paid on a settlement that the Secretary had later disapproved.
The Board focused
on the fact that Macktal involved a private agreement between the
parties, whereas the
instance situation involved the continuing validity of an order issued by the
Secretary pursuant to
explicit statutory authority.
The Board observed that the Secretary stated in the Preliminary Order in
response to
Respondent's concern about its ability to recoup the attorneys fees if no
violation was found to
have occurred, that "given the authority contained in 29 C.F.R. §
18.36 (1994) to
exclude an attorney from appearing before an ALJ for refusal to comply with
directions, it is
unlikely that recoupment of attorney''s fees will present a significant
problem."
ATTORNEY'S FEES AND COSTS; INTERIM ORDER [N/E Digest XVI E 7]
In Gaballa v. The Atlantic Group, 94-ERA-9
(Sec'y
Dec. 7, 1995)(interim order), the Secretary followed the
precedent set in Varnadore v. Oak Ridge National
Laboratory, 94-CAA-2 and 3 (Sec'y Sept. 11, 1995), that
" 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 [a respondent]
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).