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. We disagree. Complainant was successful in preserving the
damage award recommended by the ALJ before the ARB. Attorneys' fees for work on that brief
defending the ALJ's recommended award therefore were reasonably incurred as part of the successful
litigation of Marrita Leveille's case.
[Page 3]
We agree with Respondents, however, that the amount of attorneys' fees
should be reduced because Complainant filed a 52 page "Reply" brief that exceeded the
30 page limitation in the Board's briefing schedule and order. In addition, Complainant filed a reply
to Respondents' rebuttal brief that was not permitted by the briefing schedule. We note particularly
that Complainant did not seek leave of the ARB to file a "Reply" brief substantially
exceeding the page limitation, nor did Complainant seek leave to file the additional brief not
contemplated by the ARB's briefing schedule. In our view, then, significant time was invested by
counsel developing materials that were not authorized by the ARB's briefing order.
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) (emphasis added). For example, where a complainant's attorney prepared and
filed a brief on review by the Secretary several months late, and did not seek leave or provide 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. Sprague v. American Nuclear
Resources, Inc. , Case No. 92-ERA-37, ARB Dec. Jul. 15, 1996, slip op. at 2, rev'd on other
grounds sub nom American Nuclear Resources, Inc. v. United States Dep't of Labor, 134 F.3d
1292 (6th Cir. 1998). Thus an attorney who files tardy or superfluous briefs runs the risk that the
fees associated with the pleading may not be assessed fully against the opposing party.
A second problem with an award of attorneys' fees in this case relates to the
fact that Complainant's fee petition is insufficiently clear and precise. The ALJ in Varnadore
v. Oak Ridge National Laboratory, Case Nos. 92-CAA-2 and 5 and 93-CAA-1 (ALJ Dec. Sept.
23, 1994), succinctly summarized the principles applicable in reviewing a request for attorneys' fees
in cases under the environmental 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).
Varnadore v. Oak Ridge National Laboratory , slip op. at 2.
[Page 4]
The time records submitted by Complainant's attorneys with their Second
Supplemental Application are not detailed enough to determine how much time was spent on
permissible and impermissible pleadings filed with the ARB. Because these detailed data are
lacking, and because Complainant's attorneys filed excessive pleadings without obtaining leave from
the Board, we conclude it is reasonable that Complainant's application for attorneys' fees and costs
should be reduced by the proportion that the permissible pages of the Reply brief bear to the total
pages filed, i.e. , 30 pages (the permissible length of the Reply brief) divided by 79 (the total
pages filed) or 38 percent.
Accordingly, Respondents are ordered to pay Complainant $19,582.30 in
supplemental attorneys fees (38% of the requested $51,532.35), $254.08 in supplemental costs
incurred by her attorneys and $495.04 in supplemental costs incurred by Complainant herself.
SO ORDERED.4
PAUL GREENBERG
Chair
CYNTHIA L. ATTWOOD
Member
[ENDNOTES]
1 The Toxic Substances Control Act, 15
U.S.C. §2622 (1994); the Safe Drinking Water Act, 42 U.S.C. §300j-9(I) (1994); the
Clean Air Act, 42 U.S.C. §7622 (1994); the Solid Waste Disposal Act, 42 U.S.C. §6971
(1994); the Clean Water Act, 33 U.S.C. §1367 (1994); and the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. §9610 (1994).
2 Although dated January 12, 2000,
Respondents' Reply was not received by the ARB until January 27, 2000. There is no information
in the record to explain this delay, and Respondents did not submit a motion for leave to file their
Reply out-of-time. Similarly, Respondents earlier had offered no explanation for the late filing of
their December 10, 1999, request for an extension of time. To date, we have received no objection
from Complainant to the most recent filing, i.e. , the substantive Reply to the attorney fee
petition.
We have decided to accept and consider Respondents' Reply in this instance,
notwithstanding these deficiencies. However, we note generally that attorneys who submit untimely
pleadings to the ARB do so at great peril, particularly when no motion is presented requesting the
Board's permission to submit the late filing.
3 Complainant styled her brief a
"Reply" brief, even though Respondents had chosen not to file an initial brief because
they agreed with the ALJ's Recommended Decision and Order on Damages.
4 Board member E. Cooper Brown
took no part in the consideration of or the decision in this case.