DATE: July 16, 1996

CASE NO: 89-ERA-22

In the Matter of

SHANNON T. DOYLE,
    Complainant

    v.

HYDRO NUCLEAR SERVICES
    Respondent

Appearances:

STEPHEN M. KOHN, ESQ.
    For the Complainant

HOPE A. COMISKY, ESQ.
    For the Respondent

BEFORE: RICHARD D. MILLS
    Administrative Law Judge

    This proceeding involved a claim on Remand from the Secretary of Labor which directed a hearing on the issue of damages, which in this case encompassed back pay,

front pay, compensatory damages, costs and attorney fees. On May 26, 1994, Respondent petitioned the Third Circuit for review of an Order issued by the Secretary of Labor on March 30, 1994. On July 27, 1994 Respondent and the Secretary of Labor moved jointly to remand the case to the Department of Labor for consideration of evidence related to damages. The Third Circuit granted this motion on August 24, 1994. In accordance with the ruling of the Third Circuit, on September 7, 1994, the Secretary of Labor issued an order remanding the case to the undersigned for further proceedings as aforementioned. A one day hearing was held on December 14, 1994 limited to the issue of appropriate remedy and relief which should be awarded to Complainant.

    On November 7, 1995 a Recommended Decision and Order on Damages was issued by the undersigned in which Complainant was awarded back pay, front pay, an expungment of adverse employment records, compensatory damages and medical expenses. Additionally, Respondent was ordered to pay reasonably incurred attorney fees and costs. Complainant thereby qualified as the prevailing party, subject to possible review by the Secretary of Labor. Title 42 U.S.C.§5851(b)(2)(B) provides in pertinent part as follows: "If any 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) reasonable 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."

    On December 11, 1995, Complainant's counsel, Stephen M. Kohn, Esq., submitted a Petition for Attorneys' Fees and Costs for work done by several attorneys and a law clerk for the firm of Kohn, Kohn, and Colapinto, P.C. in the amount of $130,924.50 and costs in the amount of $17,417.03. Counsel for Respondent, Dona S. Kahn, Esq., Hope A. Comisky, Esq., and Robert E. Frankel, Esq., has filed a Memorandum of Law in Opposition to Complainant's Petition for Attorneys' Fees and Costs in which it is suggested that the total amount of reasonable attorney fees should be no greater than $74,054.75, and costs in the amount of $15,450.03.

    A fee request should not result in a second major litigation. Daly v. Hill, 790 F.2d 1071, 1079 (CA4 1986); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Nor is it necessary that a fee award achieve technical perfection in order for the results to fall within the area of discretion assigned to the trier of the facts, Daly, supra, 790 F.2d at 1080, 1082, which is to say that the trier of fact need not get enmeshed in a meticulous analysis of every detailed fact, Copeland v. Marshall, 641 F.2d 880, 903 (CA D.C. 1980); Lindy Brothers Builders, Inc. v. American Radiator, Etc., 540 F.2d 102, 116 (CA3 1976). In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 720 (CA5 1974), the Fifth Circuit listed 12 criteria to be utilized in weighing the merits of an attorney fee request:

(1) The time and labor involved,

(2) The novelty and difficulty of the questions,

(3) The skill requisite to perform the legal service properly,

(4) The preclusion of other employment by the attorney due to acceptance of the case,

(5) The customary fee,

(6) Whether the fee is fixed or contingent,

(7) Time limitations imposed by the client or the circumstances,

(8) The amount involved and the results obtained,

(9) The experience, reputation and ability of the attorney,

(10) The "undesirability" of the case,

(11) The nature and length of the professional relationship with the client, and

(12) Awards in similar cases.

    In the fee petition at hand, the following hours and amounts have been requested:

Attorney        Hours           Rate Per Hour        Lodestar

S. Kohn           283.40            $ 265.00          $75,101.00 

A. Kronstadt      242.20              180.00           43,596.00

V.  Villanueva     78.50              140.00           10,990.00

Law Clerk          24.75               50.00            1,237.50

It is noted that the hours requested by Ms. Kronstadt reflect a 20% reduction to her hours worked as listed in her affidavit. Complainant explains that given the "nature of the issues involved and the amount of money at stake" the use of three attorneys and the amount of time these attorneys spent on the litigation was completely reasonable. Complainant states that Stephen M. Kohn is an experienced litigator with substantial expertise in the representation of whistleblowers, including nuclear whistleblowers. Complainant goes on to state that in order to properly represent Mr. Doyle, Mr. Kohn obtained the assistance of an associate attorney, Veronica Villanueva, and another attorney, Annette R. Kronstadt who works with Mr. Kohn's firm on an "of counsel" basis. Additionally, a law clerk was utilized to assist in the review of documents produced in discovery. Affidavits of each of the three attorneys involved are attached to the petition attesting to the work performed by each. Also included are affidavits of two attorneys, Robert Fitzpatrick and Joseph Kaplan, both of whom are employment law experts, which fully support the fees requested by Mr. Doyle's counsel as being well within the range of market rates for attorneys who are engaged in employment litigation in Washington, DC. The affidavits of Kohn and Kronstadt also attest to the reasonableness and necessity of the law clerk time sought.

    Respondent suggests in his objections that the reasonable hourly rate for one attorney can vary with the different tasks he is performing. It is not my policy to award different rates for different tasks performed. However, in weighing the necessity and excessiveness of the work performed, the possibility that the work in question could have been performed by someone with less expertise, and therefore receiving a lesser hourly rate, is definitely a factor taken into my reduction of time expended.

    Respondent objects to the hourly rate requested for work performed by Veronica Villanueva. Respondent asserts that at the time of the assessment of damages hearing in December 1994, Ms. Villanueva had only been practicing law for one month and had not yet been admitted to practice law in any state. I agree with Respondent that $140.00 per hour does appear to be an excessive hourly rate for a first year associate. Therefore, the hourly rate to be awarded to Ms. Villanueva is hereby reduced to $100 per hour which I feel is a more appropriate rate given her limited experience.

    Respondent objects to the hourly rate requested by Stephen Kohn. I agree with Respondent that the $265.00 per hour requested does appear to be somewhat excessive, and therefore, the hourly rate to be awarded for the work performed by Stephen Kohn is hereby reduced to $245.00 which I feel is the proper rate for his work performed not only in 1994, but for the entire time spent by Mr. Kohn on this case.

    Respondent objects to the following itemized hours claimed by Veronica Villanueva:

    Respondent first objects to a total of 7.1 hours worked on various dates as being devoted to clerical work. I agree with Respondent that clerical services are not recoverable. Therefore, the following entries will be deducted from said petition: 1.70 hours on 11/22/94 for service preparation for motion to compel; .50 hour on 12/6/94 for phone calls to court reporters; .85 hour on 12/7/94 for phone calls to court reporters; .50 hour on 12/7/94 for review and organization of litigation file; .75 hour on 12/8/94 faxing of documents to various people; .25 hour on 12/9/94 for phone conversation with Neal Gross (ct. rep.); .10 hour on 12/9/94 for phone conversation with Alan Lesky (ct. rep.); 1.00 hour on 12/10/94 for photocopy documents for trial; .70 hour on 12/12/94 for faxes to S. Kohn; and .75 on 12/13/94 for faxes to S. Kohn.

    Respondent next objects to the 1 hour claimed on 11/29/94 for phone calls, photocopying; and the 2.25 hours claimed on 11/30/94 for phone calls to opposing counsel, travel agent, client, witnesses; as these entries fail to document what amount of time was spent on the clerical duties involved in each entry. The 1 hour on 11/29/94 is hereby deducted in its entirety as not only does it involve clerical duties but the entry lacks specificity and Claimant's counsel has made no further attempt to clarify the work performed. The 2.25 hours spent on 11/30/94 is reduced to 1.75 hours which would account for a .50 hour deduction for the clerical portion of that entry.

    Respondent's final objection to this portion of the petition is with regard to 2.10 hours spent on 11/7/94 and 11/8/94 to review file. Respondent states that this is clearly duplicative and should be completely disallowed. I disagree with Respondent that these entries are duplicative. However, I feel that given the history of the case at the point of time in which Ms. Villanueva was performing this file review, the 1.10 hour spent on 11/7/94 was an adequate amount of time to familiarize herself with the case. Therefore, the 1.00 hour requested on 11/8/94 is hereby deducted.

    With regard to the footnote in Exhibit B of Respondent's Opposition to Petition for Attorneys' Fees and Costs, I agree with Respondent that the total of Ms. Villanueva's billable hours is 77.25 hours, not 78.50 as stated in her Affidavit.

    Except as herein stated, I find the application of Veronica Villanueva to be reasonable and award a fee for 67.65 hours at $100.00 per hour.

    Respondent objects to the following itemized hours claimed by Annette Kronstadt:

    Respondent first objects to a total of 13 hours charged by Ms. Kronstadt to consult with other senior counsel as being excessive. I agree with Respondent that 13 hours seem excessive for a senior attorney to confer with other senior counsel. On 11/29/94 counsel charges a total of 3.5 hours in consultation with the client and other attorneys representing Complainant prior to and after a 2 hour deposition (Holtz). I feel that this is excessive and, therefore, I will allow a total of 2 hours on that day for consultation which will account for a 1.5 hour deduction. On 12/7/94 counsel charges 4.5 hours for conference with S. Kohn and V. Villanueva regarding Hydro's document indexes, discussion of expert witnesses and phone conference with client. I agree that this appears to be an excessive amount of time for this task and will allow a total of 2 hours on that day for said conference and phone conference. (I would like to note that on that day .50 hour is being allowed for two additional phone conferences with client.) On 2/1/95 there is a charge for 2.25 hours for meeting with S. Kohn regarding post-trial brief. Again I find the amount of time charged to be excessive and will allow 1 hour for said meeting. Finally, there is a charge on 3/1/95 for meeting with S. Kohn regarding enlarging time to submit post-trial brief. I find 2.50 hours to be extremely excessive for this task and will allow .50 hour which I feel to be a more adequate amount of time to perform the work described.

    Respondent also objects to the amount of time Ms. Kronstadt has billed for the post-hearing brief as being inordinately excessive. I agree with Respondent. As exhibit C of Respondent's Opposition to Petition for Attorneys' Fees and Costs shows, a total of 246.75 hours is claimed by this senior attorney in connection with drafting the post-hearing brief. Respondent suggests that a total of at least 79.9 hours should be disallowed for work performed by Ms. Kronstadt with regard to the post-hearing brief, and I agree that the remaining 166.85 hours is a more than adequate amount of time to be allowed in this regard.

    Except as herein stated, I find the application of Annette Kronstadt to be reasonable and award a fee for 215.60 hours at $180.00 per hour.

    Respondent objects to the following itemized hours claimed by Stephen Kohn:

    Respondent first objects to several entries as being clerical work. I agree with Respondent that work done performing clerical duties is not recoverable. In this regard, the following deductions are made: .10 hour on 9/21/94 for fax to Doyle; .10 hour on 9/27/94 for fax to Respondent's counsel; 3 hours on 12/10/94 to prepare case file to transport and organize files for hearing; 1.50

hours on 12/19/94 for organization of case file; 4.75 hours to organize client files and prepare files for post-trial briefing; and .75 hour on 4/12/94 to organize case file.

    Respondent next objects to the total of 29.80 hours requested to consult with other counsel, as shown in exhibit D of Respondent's Opposition to Petition for Attorneys' Fees and Costs, as being excessive. I agree that the hours requested do seem to be somewhat excessive with particular notice given to the larger amounts requested on certain dates. Therefore, I am making a 10 hour reduction to the total hours requested which would allow a total of 19.80 hours for said consultation which I feel is an adequate amount of time in this case.

    Respondent objects to time requested to draft, re-draft and file notices of deposition and notice of appearance on 9/26/94, 10/3/94 and 11/8/94. Complainant has offered no further explanation for the amount of time requested, such as how many notices were prepared. The requests of 10/3/94 and 11/8/94 appear to be reasonable. However, the 2.75 hours requested on 9/26/94 to draft and file notices of deposition and notice of appearance do appear to be excessive. I will allow 1 hour on that date as the writing of a one page routine document should take no more than .25 hour. Ingalls Shipbuilding, Inc. v. Director, OWCP (Fairley), No. 89-4459 (5th Cir. July 25, 1990) (unpublished) and Ingalls Shipbuilding, Inc. v. Director, OWCP (Biggs), No. 94-40066 (5th Cir. Jan. 12, 1995) (unpublished). Respondent also objects to 5.25 hours requested on 10/6/94 and 10/7/94 to draft discovery and draft and finalize discovery, stating that these hours are excessive given Mr. Kohn's experience. I agree with Respondent and would also note that the entries lack specificity. Therefore, I will allow only 1 hour on each of those dates for discovery which would account for a 3.25 hour deduction for these tasks.

    Respondent's next objection is with regard to the 26 hours billed for drafting the post-hearing brief. Respondent suggests the hours expended should be awarded at a lower hourly rate given the nature of the work performed. I do not agree that the work performed should be awarded at a lower rate. However, I do feel that given the amount of work being awarded to other attorneys working on this task, that the time expended by Mr. Kohn should be minimal. Therefore, I will allow 4 hours on each of the three dates in question, 3/24/95; 3/27/95; and 3/28/95, to perform this function. In this regard, a deduction of 14 hours is hereby made to this petition.

    Respondent's final objection to the itemized petition of Mr. Kohn is with regard to time spent reviewing the case file. Respondent asserts that given the fact that at the beginning of the case 4.75 hours are charged for file review, the total of 4.95 hours requested on 10/22/94, 10/29/94 and 11/29/94 should

be disallowed as duplicative. I agree with Respondent. As the charges for work performed on this case reflected in this petition are continuous, an ongoing perusal of the file should have negated the necessity of any further need for charges in this regard. Therefore, the 4.95 hours are hereby deducted.

    With regard to the footnote in Exhibit D of Respondent's Opposition to Petition for Attorneys' Fees and Costs, I agree with Respondent that the total of Mr. Kohn's billable hours is 282.40 hours, not 283.40 as stated in his Affidavit.

    Except as herein stated, I find the application of Stephen Kohn to be reasonable and award a fee for 238.25 hours at $245.00 per hour.

    Respondent makes no objections to the time claimed by the law clerk and, therefore, I will allow the 24.75 hours requested at $50.00 per hour.

    Respondent objects to several charges included as part of the $17,417.03 requested as reasonable costs and expenses, as follows:

    Respondent first points out that Yvonne Henderson's testimony was used to establish evidence which was ultimately rejected by the administrative law judge. Respondent goes on to assert that the $630 should therefore be denied as attorneys' fees and costs associated with unsuccessful claims should not be included in the award to a prevailing claimant.

    Respondent next states Doyle is not entitled to any payment for a second expert on the emotional distress claim as Dr. Soeken's name was never disclosed to Respondent and he never testified. Respondent goes on to state that Dr. Soeken's work was unnecessary as it was duplicative of Dr. Carter's work and that his fee of $750 should be excluded from this award.

    Respondent's next assertion is that four separate consultations with Dr. Carter amounting to $500 in fees should be disallowed as they took place after the close of evidence and are unrelated to the success of this claim.

    Respondent's last objection to the costs and expenses in this case is with regard to miscellaneous expenses charged, namely the charge for replacement of a cartridge on a xerox machine amounting to $87.00.

    Counsel for Respondent has not responded to the above assertions, and I agree with Respondent that for the reasons stated, all of the above charges should be deducted from

the total of Complainant's costs and expenses. Therefore, the costs and expenses to be awarded in this case are hereby reduced to $15,450.03.

    Except as herein stated, I find the application of Complainant's counsel to be reasonable and award an attorney's fee for 67.65 hours at $100 per hour, 215.60 hours at $180 per hour, 238.25 hours at $245 per hour, 24.75 at $50.00 per hour and the sum of $15,450.03 for expenses.

    It is hereby ordered that Hydro Nuclear Services pay to Complainant's attorney, the sum of $105,181.75 as a fee for representation of the Claimant and the sum of $15,450.03 for expenses.

      RICHARD D. MILLS
      District Chief Judge

Dated: July 16, 1996

Metairie, LA
RDM/pyc