U.S. Department of Labor Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metaire, LA 70005
(504) 589-8201
Date: March 16, 1993
CASE NO. 89-ERA-3
IN THE MATTER OF
RICHARD ADAMS,
Complainant
v.
COASTAL PRODUCTION OPERATORS, INC.
Respondent
RECOMMENDED SUPPLEMENTAL DECISION AND ORDER ON
REMAND
By order dated August 5, 1992, the Secretary
remanded this case to determine the additional back pay owed to
complainant from November 29, 1988 to the date of reinstatement (or
declination) and to rule on counsel for complainant's 1989 petition
for attorney fees as well as any post-remand fee petition filed by
such counsel.
Due to the unavailability of the administrative
law judge who initially heard this case, this matter was assigned
to the undersigned for resolution of the issues presented on
remand. Thereafter, a hearing was scheduled for September 29, 1992.
The parties, however, waived their right to a hearing electing
instead to file a stipulation an the issue of back pay. The
substance of that stipulation is:
From November 28, 1988, to September 29, 1992,
Employer Coastal Production Operators, Inc., had employment
available for complainant, Richard Adams, which would have
paid complainant wages totalling $2,520.00.
It is recognized that the specific direction of
the Secretary has not been met with this stipulation. It is
understood that complainant has not been offered reinstatement.
Indeed, unless and until the Secretary's order in this proceeding
becomes final, there is not legal requirement that complainant be
offered reinstatement. Thus, the matters contained in the
stipulation are thought to be all that can be secured on this
issue on remand.
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With respect for counsel for complainant's 1989
fee petition, respondent argues that consideration of the fee
petition is premature and that the fee petition does not meet the
requirements set forth in Johnson v. Georgia Highway Express
Inc, 488 F.2d 714, 717-719 (5th Cir. 1974). While liability to
pay an attorney fee award is contingent upon securing a final
order, it is appropriate to consider the attorney fee issue in the
course of the litigation. This procedure permits the appeal of
issues pertaining to attorney fees along with the substantive order
so that resolution of this subordinate issue will not be unduly
protracted. With respect to the objection raised as to the lack of
specificity in the fee petition, the matters presented in the
petition describe the activities for which a time charge is claimed
with sufficient particularity to meet the requirements. Thus,
neither objection is meritorious.
Respondent also objects to the hourly rate of
$150.00 claimed by counsel on the basis that counsel presented no
evidence of fee awards in similar cases or that his also. Do hourly
rate is his usual rate. Taking into consideration counsel's
experience, the complexity of the case and the rates paid counsel
who prevails in other whistleblower cases, it is found that an
hourly rate of $125.00 is fair and reasonable in this instance.
Respondent's first specific objection is that
approximately 8.00 hours are claimed for activities which could
have been accomplished by non-lawyers commanding a lesser rate.
While there may be merit in this general contention, the specific
entries which respondent contends could have been performed by non
legal personnel are not identified. Accordingly, this objection
cannot serve as a basis for disallowing or reducing the time
claimed.
Respondent also objects to the 1.8 hours claimed
for researching state law on the basis that there has been no
showing that such research was necessary. This objection is well
Taken and the 1.8 hours claimed is disallowed. For the same reason,
the 2.2 hours claimed for researching "Department of Labor
Jurisdiction"s after complainant filed his complaint alleging
violation of 33 U.S.C. §1367 is also disallowed.
Respondent next objects to the 27.95 hours
claimed for drafting complainant's post-hearing brief. Respondent
argues that the time claimed is excessive and should be reduced.
This objection is also well taken and the 27.95 hours claimed is
reduced to 21.00 hours.
Respondent's final objection is that the amount
claimed as a fee far exceeds the benefits obtained and should be
reduced commensurably. In support of this contention, respondent
asserts that counsel for complainant could have settled the case
before trial for as much as he secured as damages which would have
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reduced the litigation costs dramatically. The fallacy of this
argument is that it ignores the benefits derived from the
injunctive relief secured by counsel and focuses exclusively on
damages. Additionally, there has been no showing that any specific
offer of settlement was made to respondent below the $10,000.00
figure proposed by complainant. Thus, whether any settlement could
have been reached below that figure is a matter of conjecture and
cannot serve as a basis for reducing the fee award granted herein.
For these reasons, respondent's final objection is rejected.
In view of the foregoing, it is recommended that
the number of hours claimed in counsel for complainant's 1989 fee
petition be reduced from 60.95 hours to 51.81 hours. It is further
recommended that counsel be awarded $125.00 per hour for his
services aggregating an attorney fee award of $6,476.25 plus
expenses in the amount of $23.59.
Counsel for complainant has also submitted a
supplemental petition for attorney fees and expenses wherein he
claimed an additional $3,666.00 for attorney fees plus an
additional $258.00 for costs. This supplemental petition includes
all fees and costs incurred in this matter subsequent to the filing
of counsel's 1989 fee petition. Since opposing counsel was granted
an opportunity to file objections to this supplemental fee petition
and since no opposition to the petition has been filed, the fees
and expenses claimed therein are taken to be uncontested. Having
reviewed these and having concluded that they are both reasonable
and necessary it is recommended that they be allowed as claimed.
RECOMMENDED ORDER
1. Respondent shall pay complainant additional
back pay in the amount of $2,520.00; and
2. Respondent shall pay complainant's counsel
an additional amount of $10,142.25 as an attorney fee plus $281-59 for expenses incident to counsel's representation of
complainant in this proceeding.
QUENTIN P. MCCOLGIN
ADMINISTRATIVE LAW JUDGE
Dated: March 16, 1993
Metairie, Louisiana
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