Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220
(412) 644-5754 (412) 644-5005 (FAX)
DATE ISSUED: December 8, 2000
CASE NO. 1999-STA-5
In the Matter of:
DANNY JOHNSON,
Complainant
v.
ROADWAY EXPRESS, INC.,
Respondent
SUPPLEMENTAL DECISION AND ORDER GRANTING ATTORNEY FEES
On July 21, 1999, I issued a Recommended Decision and Order in this case which had been brought under the "whistleblower" employee protection provisions of Section 405 of the Surface Transportation Assistance Act of 1982 ("STAA" or "the Act"), 49 U.S. C. §31105 (formerly 49 U.S.C. app. §2305), and the applicable regulations at 29 C.F.R. Part 1978. On September 3, 1999, I issued an Order Granting Attorney fees. March 29, 2000, the Administrative Review Board, ("ARB" or "the Board"), remanded the matter for further consideration. A Recommended Decision and Order on Remand was issued in this case on October 12, 2000. By letter dated November 9, 2000, counsel for the complainant, Paul O. Taylor, Esquire, submitted a Petition for Costs and Attorney Fees in the amount of $20,454.93. This amount represents 80.5 hours of work by Attorney Taylor at $225.00 per hour and $2,342.43 in expenses. On November 22, 2000, counsel for the respondent, Sally J. Scott, Esquire, submitted objections to the fee petition.
The respondent objects to the reasonableness of Attorney Taylor's hourly rate of $225. In order to determine whether the fees requested are reasonable under the STAA, 49 U.S.C. §31105, "it is usual to use the lodestar method which requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate." Michaud v. BSP Transport, Inc., 95-STA-29 (ALJ June 12, 1997). See also Hensley v. Eckerhart, 461 U.S. 424 (1984). Thus, the lodestar method requires an analysis of whether the
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attorney's requested hourly rate is reasonable. In Clay v. Castle Coal Oil Company, Inc., the Secretary discussed the burden of proof as follows:
In seeking some basis for a standard, courts have properly required prevailing attorneys to justify the reasonableness of the requested rate. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence in addition to the attorney's own affidavits that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience and reputation. A rate determined in this way is normally deemed to be reasonable and is referred to for convenience as the prevailing market rate.
Clay v. Castle Coal Oil Company, Inc., 90-STA-37 (Sec'y June 3, 1994).
Respondent argues claimant's hourly rate should be reduced and cites a recent case, Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), where the ARB adopted the ALJ's reduction of hourly rate from $225.00 per hour to $150.00 per hour. However the facts of the Scott case are different than the case at hand. In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB adopted the ALJ's reduction of the hourly rate stated in complainant's attorney's fee petition to $150 where the proffered rate of $225 was not stated to be the attorney's usual hourly rate, counsel and complainant had an agreement that if the counsel withdrew from the case prior to its conclusion, he would charge complainant $150 per hour, and counsel had not objected to the ALJ's reduction of the rate to $150.
In the case at hand, the complainant's counsel, Paul Taylor, requests an hourly rate of $225.00 per hour for services rendered. He provides support for this rate through a personal affidavit attesting to his professional experience. Attorney Taylor outlines an extensive background in the transportation industry with over 16 years experience in the field, handling 55 cases arising under the Surface Transportation Assistance Act, and has handled cases before the United States Supreme Court. Attorney Taylor's law practice is national in scope and limited almost exclusively to transportation related matters. Attorney Taylor documents a former partner with comparable experience engaging in similar type practice who is compensated at $250.00 per hour. Furthermore, Attorney Taylor's billing rate of $225.00 per hour has been allowed by other Administrative Law Judges of the U.S. Department of Labor. See Bettner v. Daymark Foods, Inc., 97-STA-23 (ALJ June 25, 1998); Harrison v. Roadway Express, Inc., 99-STA-37 (ALJ Mar. 30, 2000). Therefore, I find that Attorney Taylor's fee request for $225.00 per hour is reasonable.
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After consideration of the nature of the issues involved, the amount of time and work involved, and other relevant factors as discussed supra, the fee petition is approved in the amount of $18,112.50 for attorney's fees and $2,342.43 for expenses totaling $20,454.93.
ORDER
The Respondent is ordered to pay the sum of $20,454.93 directly to Attorney Paul O. Taylor for costs incurred and services rendered to the claimant in this case.
