Ferguson v. Weststar, Inc., 1998-CAA-9 (ALJ June 21, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Date Issued: June 21, 2000

Case Number: 1998-CAA-00009

IN THE MATTER OF:

    BRIAN FERGUSON,
          Complainant,

       v.

    WESTSTAR, INC.,
          Respondent

   This matter arises under the Clean Air Act, 42 U.S.C. 7401 et seq. (1977), Employee Protection § 7622, and implementing regulations at 29 C.F.R. Part 24 (1986).

   On January 27, 2000, a Recommended Decision and order was issued in favor of the above-named Complainant. Attorney Randy W. Loun of Loun & Tyner (Petitioner) represented Complainant before this Office. On February 14, 2000, Petitioner filed a request that a Contingent Fee Agreement be approved. The undersigned issued an Order dated March 28, 2000, directing Petitioner to submit a detailed fee petition outlining the services rendered within 20 days.

   Petitioner filed an itemized fee application on April 18, 2000. Therein, Petitioner seeks $5,361.12 for representation services. This amount represents 26.25 hours at $200 per hour and $111.12 for incurred printing costs. The fee covers the period beginning July 8, 1998, and ending January 31, 2000. No objection to the fee request has been received.

   Section 24.8(b)(2) provides that:

"[t]he court, in issuing any final order under this section may award costs of litigation (including reasonable attorney and expert witness fees) to any party whenever the court determines such award is appropriate."

   In addition, a fee award is subject to the "lodestar" test applied in City of Burlington v. Dague, 112 S.Ct. 2638, 2641 (1992); see also Cooper v. Pentecost, 77 F.3d 829, 833 (5th Cir. 1996); Shipes v. Trinity Ind., 987 F.2d 311, 319 (5th Cir. 1993); and Pennsylvania v. Delaware Valley Citizens Counsel for Clear Air, 478 U.S. 546, 565 (1986). The lodestar test requires the adjudicating officer to determine that the compensable hours are reasonable and that the hourly rate is appropriate.

   Petitioner seeks $200 per hour for representation services. In deciding a reasonable hourly rate, an administrative law judge may take judicial notice of the Survey of Law Firm Economics, published by Altman & Weil, Inc., which reports hourly billing rates by individual non-litigation specialties and years of legal experience. Schneider v. Director, OWCP, 2 BLR 1-176 (1983). Randy W. Loun¹ was admitted to the bar in 1984. The median rates for attorneys with 11 to 15 years of legal experience based upon the relevant specialties (Administrative, Employee Benefits, and Environmental) are between $185 and $205 per hour. Survey of Law Firm Economics, Altman Weil Pensa (1998). Considering the, issues involved and time expended therein, a rate of $200.00 per hour is reasonable. The rendered services and incurred costs are also determined to be reasonable..

   In light of the foregoing, Respondent Weststar, Inc., is hereby ORDERED to pay Randy W. Loun, Esquire, the sum of $5,361.12 for representation services and incurred costs before this Office. The award covers the period beginning July 8, 1998 and ending January 31, 2000.

   SO ORDERED,

       Thomas M. Burke
       Associate Chief Judge

Washington, DC
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¹Judicial notice is taken of Martindale-Hubbell Law Directory, Volume 18, page WA11P (1999).