3) The attorney fee award sought is excessive in that it contains
an unexplained increase in the hourly fee charged by Complainant's attorney. (From
$150.00 per hour charged for the administrative, i.e. Department of
Labor, phase of the case, to a $165.00 per hour fee charged for services rendered in
connection with defending the administrative decision(s) of the Secretary before the
U.S. Court of Appeals.
[Page 3]
The Interest Assessment
Respondent's assertion that there has never been an order granting
interest in this matter is erroneous. The Secretary's April 18, 1995 Final Decision and Order
(F.D. and O.) expressly awarded, "interest on the back pay awarded, calculated [as is
customary in all environmental whistleblower cases] in accordance with 26 U.S.C. §
6621 (1988)." Slip op. at 5, citing Dutile v. Tighe Trucking, Inc., Case No.
93-STA-31, Sec. Dec., Nov. 29, 1993, slip op. at 8, 9. The $500 interest figure claimed by
Complainant does appear to us to have been arrived at speculatively. As a result, the back pay
awarded herein shall be supplemented, as in all other cases of this nature, by interest
calculated in accordance with 26 U.S.C. § 6621 (1988). See also, 29
C.F.R. § 20.58 (1995).
Back Pay
In accordance with numerous previous rulings by both this Board and
the Secretary of Labor, back pay awards to victorious "whistleblowing"
complainants are to be calculated in accordance with the make whole remedial scheme
embodied in § 706 (g) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et. seq. (1988). See, Loeffler v. Frank, 489 U.S.
549 (1988), 46 FEP Cases 1659.
As a victorious complainant, Polgar is entitled to be restored to the
position he would have occupied but for the discrimination. Hoffman v. W. Max Bossert
and Boss Insulation and Roofing, Inc., Case No. 94-CAA-004 (ARB Case No. 96-091),
Dec. of the ARB issued Jan. 22, 1997 slip op. at 2, citing Smith v. Littenberg,
Case No. 92-ERA-52, Sec. Dec. and Ltd. Rem. Ord., Sept. 6, 1995, slip op. at 5 (an order
which also upheld the longstanding principle that, "any uncertainties in calculating back
pay are to be resolved in favor of the complainant). Hoffman at 2 and cases cited
therein.
With regard to this case, the sporadic and seasonal nature of the work
performed by this complainant has been fully and fairly treated in the previous administrative
decisions. As noted in the Errata issued sua sponte in the case on April 21, 1995
(correcting the April 18, 1995 Secretarial decision) Polgar's back pay award was to be
calculated on a per week basis. In addition, the Modified Final Decision and Order issued by
the Secretary on June 5, 1995 (M.F.D. and O.) held that, "in order to arrive at a
reasonable estimate of Polgar's weekly earnings, the seasonal nature of Respondent's business
must be taken into account." Slip op. at 3. That order went on to recognize
"Polgar's ultimate irregular earnings." Id.
[Page 4]
As a result, we hold that the crux of Respondent's disagreement on this
issue is without merit. We hold, further, that the basic formulation for the back pay award
is now res judicata -- established as the law of this case -- and cannot fairly be
disturbed at this point.
Attorney's Fees
Complainant's counsel has previously submitted invoices totaling
$4,335.80. See F. D. and O. at 5, 6. All of these legal fees, as heretofore
approved, were billed at the rate of $150.00 per hour. Counsel's latest fee application(s), seek
fees in the amount of $10,510.50 for 63.7 hours of work4 performed during
Respondent's appeal of the Secretary's Order(s) to the U.S. Court of Appeals.
1 On April 17, 1996, a
Secretary's Order was signed delegating jurisdiction to issue final agency decisions under this statute
to the newly created Administrative Review Board. 61 Fed. Reg. 19978 (May 3, 1996). Secretary's
Order 2-96 contains a comprehensive list of the statutes, executive order, and regulations under which
the Administrative Review Board now issues final agency decisions. Final procedural revisions to the
regulations implementing this reorganization were also promulgated on that date. 61 Fed. Reg.
19982.
2 By "Notice
of Errata" dated February 26, 1997, Complainant's counsel indicated that the number of hours
worked on this case should be reduced by .8 of an hour. The total hours billed should therefore be
63.7.
3 We agree with
Complainant that the back pay formula and/or calculations which have now been affirmed by the court
of appeals should not be disturbed. See, Complainant's Motion to Strike (CM) at 2,
¶ 4.
4 Reduced, as noted
above, by the Notice of Errata submitted in February of 1997.