McQuade v. Oak Ridge Operations Office, USDOE, 1999-CAA7, 8, 9 and 10 (ALJ June 18, 2002)

May 9, 2009

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McQuade v. Oak Ridge Operations Office, USDOE, 1999-CAA7, 8, 9 and 10 (ALJ June 18, 2002)

U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office & Courthouse - Room 507
Post Office Square
Boston, MA 02109
(617) 223-9355
(617) 223-4254 (FAX)
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Issue date: 18Jun2002

OALJ CASE NOS.: 1999-CAA-00007, 1999-CAA-00008,
1999-CAA-00009 & 1999-CAA-00010

ARB CASE NOS. 01-093 & 01-094

In the Matter of

DENNIS MCQUADE, COMMIE R. BYRUM,
VIRGINIA JOHNSON, AND KENNETH WARDEN
Complainants

OAK RIDGE OPERATIONS OFFICE,
U.S. DEPARTMENT OF ENERGY
Respondents

SUPPLEMENTAL DECISION AND ORDER DISMISSING
APPLICATION FOR ATTORNEY'S FEES

I. Background

This matter is before me on a petition for attorney's fees and costs filed by Attorney Edwin A. Slavin, Jr. (the Petitioner) who formerly represented the Complainants in this matter which arises under 29 C.F.R. Part 24 which, in turn, implements the employee protection provisions of several Federal environmental protection statutes.¹ The Complainants, current or former employees of the Oak Ridge Operations Office of the U.S. Department of Energy (the Respondent), had filed complaints alleging that the Respondent had discriminated against them in retaliation for their engaging in activities protected by the environmental statues. The Petitioner represented the Complainants as their lead counsel from March 1996 until January 2000 when the Complainants terminated their relationship with him, citing dissatisfaction with his representation and stating that "your lack of preparation for the upcoming hearing almost certainly dooms us to failure." In discharging the Petitioner as their attorney, the Complainants declared "null and void" all legal agreements and related contingency fee arrangements. Administrative Law Judge Exhibits 66-70.² On February 28, 2000, Attorney Loring E. Justice entered an appearance for the Complainants and represented them at a hearing which was conducted on July 18-21, 2000 in Knoxville, Tennessee.

On July 31, 2001, I issued a Recommended Decision and Order (RDO) dismissing complaints alleging discrimination against Complainant Dennis McQuade but finding that the Respondent had engaged in unlawful discrimination against Complainants Byrum, Johnson and Warden. McQuade v. Oak Ridge Operations Office, USDOL/OALJ Reporter (HTML), ALJ No. 1999-CAA-7, 1999-CAA-8, 1999-CAA-9 & 1999-CAA-10 (ALJ July 31, 2001). To remedy these violations, I recommended that the Respondent be ordered to rescind certain employment actions taken against the Complainant, cease and desist from discriminatory conduct, and pay compensatory damages and attorney's fees and costs.³ RDO at 57-61.

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The Complainants and the Respondent both appealed aspects of the RDO to the Administrative Review Board (ARB). While the appeals were pending before the ARB, Attorney Justice and the Petitioner filed separate petitions for attorney's fees and costs incurred in representing the Complainants in the litigation of their claims. Attorney Justice sought fees and costs in the amount of $103,349.25 based on 41.00 hours of in-court time at $200 per hour, 515.18 hours of out-of-court time at $175.00 per hour, and expenses of $4,992.75, and the Petitioner requested a total fee of $49,890.00 for 166.30 hours of attorney time at $300.00 per hour during the period beginning March 23, 1996 and ending August 18, 2001. Thereafter, on September 25, 2001, the Complainants and the Respondent entered into a Settlement Agreement and filed a Joint Motion to Dismiss and for Approval of Settlement Agreement with the ARB. On November 28, 2001, the ARB issued an Order approving the parties' settlement as fair, adequate and reasonable and dismissing the appeals. McQuade v. Oak Ridge Operations Office, USDOL/OALJ Reporter (HTML), ARB Nos. 01-93 & 01-94, ALJ Nos. 1999-CAA-7, 1999-CAA-8, 1999-CAA-9 & 1999-CAA-10 (ARB Nov. 28, 2001). The approved Settlement Agreement provided for the payment of attorney's fees to Attorney Justice and included a general release and waiver of all claims or causes of action by Complainants against the Respondent arising out of facts or any set of facts occurring before the date of the Settlement Agreement. It is undisputed that the Settlement Agreement made no provision for payment of fees and costs to the Petitioner.

In light of the Settlement Agreement, Attorney Justice has withdrawn his petition for fees and costs. On October 15, 2001, the Respondent submitted a brief in opposition to Petitioner's application for attorney's fees. In addition, by letter dated October 15, 2001, the Complainants submitted a "pro se" opposition to Petitioner's application for fees asking that Petitioner be precluded from receiving any attorney's fees because of his previous "negligent and deficient" representation. Complainant's Pro Se Opposition at 1. The Petitioner moved to disregard the Complainants' "pro se" opposition, stating that the Complainants were represented by counsel of record and thus, the Court should not receive or consider such a filing. Petitioner's Motion Regarding Purported "Opposition" to Fee Petition at 1. In a subsequent pleading, the Petitioner moved to strike the Complainant's "pro se" opposition, contending that the Complainants had neither drafted nor authorized the filing of the opposition to Petitioner's fee petition. Petitioner's Motion to Strike at 1. The Complainant's responded that although they were represented by Attorney Justice, they had styled their opposition to the Petitioner's fee application as "pro se" in an attempt to strike a balance between the Complainants' desire to express their feelings about Petitioner's fee petition and the reluctance of their counsel to comment in a pleading on the representation provided by his contemporary in the bar. Complainant's Response to Motion to Strike at 2. In their response, the Complainants reiterated that there was nothing nefarious about the "pro se" opposition and that it was undoubtedly the authorized product of the Complainants to oppose the fee petition of their former counsel. Id. at 1-2.

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II. Findings of Fact and Conclusions of Law

The Respondent initially contends that the Petitioner, as a former attorney proceeding without authorization of the Complainants, lacks proper standing to seek attorney's fees under the Environmental statutes. Respondent's Opposition at 2. On the issue of standing, the Clean Air Act, the Safe Drinking Water Act and the Toxic Substances Control Act in relevant part provide,

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.

42 U.S.C. §7622(b)(2)(B); 42 U.S.C. §300j-9(i)(2)(B)(ii); 15 U.S.C. §2622(b)(2)(B) (italics supplied). The employee protection provisions of the Comprehensive Environmental Response, Compensation and Liability Act, the Solid Waste Disposal Act and the Water Pollution Control Act which use the terms "application" and "applicant" instead of "complaint" and "complainant" contain similar provisions authorizing an award of attorney's fees "at the request of the applicant . . . ." 42 U.S.C. §9610(c); 42 U.S.C. §6971(c); 33 U.S.C. §1367(c). Thus, the environmental statues authorize the Secretary, to award reasonable attorney's fees and costs to employees who have been found to be victims of unlawful discrimination. See DeFord v. Secretary of Labor, 700 F.2d 281, 291 (6th Cir. 1983). Here, however, the employee complainants or applicants have not requested that fees be awarded to their former attorney. Instead, they have actively sought to deny the Petitioner any fee award, stating that they "oppose any fees being paid to Mr. Slavin" and "would respectfully request that Mr. Slavin not be awarded fees" as a result of his previous "negligent and deficient" representation. Complainant's Pro Se Opposition at 2. Although neither the ARB nor the Secretary has had occasion to address the precise standing issue presented in this case, court decisions interpreting similar fee-shifting provisions contained in the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. §1988,⁴ compel the conclusion that the Petitioner's application must be dismissed for lack of proper standing.

In Brown v. General Motors Corp., 722 F.2d 1009 (2nd Cir. 1983), the former attorney for an employee complainant in a federal civil rights action filed an application on his own behalf seeking fees pursuant to 42 U.S.C. §1988. As in the instant case, the former attorney had been terminated by the employee because of "dissatisfaction with the amount of interest you show in my affairs." 722 F.2d at 1010. The employee then retained new counsel and settled his claims against General Motors for payment of $5,000.00. The settlement agreement provided for dismissal of the employee's civil rights complaints with prejudice and "without costs", and it contained a general release absolving General Motors from all claims and demands. Id. The District Court denied the former attorney's section 1988 application for fees, and the Second Circuit affirmed, holding that a former attorney could not claim attorney's fees in his own name as the real party in interest. The Court noted that under section 1988 "it is the prevailing party rather than the lawyer who is entitled to attorney's fees" and concluded that "[s]ection 1988's direction that fees may be awarded to ‘the prevailing party' is plain enough and, absent evidence of a contrary congressional intent (which has not been provided), is dispositive." 722 F.2d at 1011.⁵ See also Jonas v. Stack, 758 F.2d 567, 570 n.7 (11th Cir. 1985) ("Strict conformity to the language of §1988 would require that the application be made by the attorney in the name of

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his client, the prevailing party. We consider this to be the procedure of choice, since it ensures that awards made under the Act compensate their intended beneficiaries.").⁶ Moreover, the Supreme Court subsequently observed that in enacting section 1988 the Congress "neither bestowed fee awards on attorneys nor rendered them nonwaivable or nonnegotiable" and it approved, as representing the majority view of the Courts of Appeals, the interpretation that section 1988 requires that attorney's fees be sought in the name of the prevailing party. Evans v. Jeff D., 475 U.S. 717, 730-32 n.19 (1986), rehearing denied, 476 U.S. 1179 (1986).

In my view, the attorney fee mechanism established by the employee protection provisions of the environmental statutes is indistinguishable from the provisions of section 1988. Accordingly, in the absence of any evidence of a contrary Congressional intent, I conclude 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. Since the Complainants in this case have not requested an award of any fees and affirmatively oppose an award of fees to the Petitioner, I find that his fee application must be dismissed.

III. Order

Based upon the foregoing Findings of Fact and Conclusions of Law and upon the entire record before me, the Petitioner's application for an award of attorney's fees is DISMISSED.

SO ORDERED.

DANIEL F. SUTTON
Administrative Law Judge

Boston, Massachusetts
DFS:cmm

[ENDNOTES]

¹ The statutes covered by the regulation are the Safe Water Drinking Act ("SDWA"), 42 U.S.C. 300j-9(i); the Water Pollution Control Act ("WPCA"), 33 U.S.C. 1367; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. 2622; the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. 6971; the Clean Air Act ("CAA"), 42 U.S.C. 7622; the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. 5851; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9610. 29 C.F.R. §24.1(a).

² Withdrawal of the Complainants' former co-counsel, Attorney Jacqueline O. Kittrell, was approved by order issued on June 13, 2000. Administrative Law Judge Exhibit 36. A third attorney, Lori A. Tetrault, Esq., who had previously entered an appearance as co-counsel with Attorneys Slavin and Kittrell, never formally requested to withdraw but has not participated in the proceeding. Subsequent to his termination as the Complainants' counsel, the Petitioner's request to be retained on the service list in this matter was granted by the Court. Administrative Law Judge Exhibit 31.

³ Specifically, I recommended that the Respondent be ordered to pay $25,000.00 in compensatory damages to Complainant Commie Byrum, $50,353.77 to Complainant Kenneth Warden and $2,500.00 to Complainant Virginia Johnson. RDO at 61.

⁴ The Civil Rights Attorney's Fees Awards Act, in pertinent part provides that "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . ." 42 U.S.C. §1988(b)

⁵ Unlike the situation presented herein, the complainant in Brown apparently felt sufficient sympathy for his former attorney to belatedly execute a consent to the fee application which prompted the Court to "reluctantly and with the admonition that applications for fees under Section 1988 must be made in the name of the party" consider the merits of the fee application. 722 F.2d at 1011. On the merits, the Court concluded that the release executed by the complainant barred any subsequent claim for attorney's fees. Id. at 1011-1012.

⁶ The Court in Jonas acknowledged that other courts had awarded fees to individual attorneys rather than to the prevailing parties. 758 F.2d at 570 n. 7, citing Shadis v. Beal, 692 F.2d 924 (3rd Cir.1982) and Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir.1980). However, in neither of these cases was standing raised as an issue, and, more importantly, there was no evidence that the prevailing parties opposed the applications for attorney's fees filed independently by counsel.