previously filed "Reply" or "Response" briefs without objection; that Respondent raised certain unspecified issues for the first time in the Opposition; that in the previous Recommended Decision and Order on Attorney Fees and Costs, I drew inferences against Complainant for failing to respond to issues raised by Respondent; that "the interests of judicial economy" would be best served by allowing the Reply, as Complainant voluntarily reduced some amounts claimed; and that striking the Reply would result in an incomplete record, increasing the likelihood of appeal of these issues to the ARB. (See Complainant's Response, May 4, 1999, pp. 2-3).

   After reviewing the arguments, I GRANT Respondent's Motion to Strike. First, the language of the regulation is clear: no replies or responses to replies shall be filed, "unless the administrative law judge provides otherwise." 29 C.F.R. § 18.6(b). While it is true that I previously accepted replies and responses without comment, in order to move the proceedings at this level to a close and to keep an already voluminous record under some control, I choose not to allow further pleadings now. Second, it is unclear exactly what "new issues" Respondent raised in its Opposition, and Complainant does not provide any additional explanation. Third, since I have specifically refused a Reply to the Opposition, I will not allow the lack of response to influence my reasoning in this matter. Fourth, while Complainant has voluntarily reduced the hours claimed, this small deduction out of the entire total is not sufficient reason to allow further pleadings on the issue of fees and costs. Finally, I am unpersuaded that the threat of appeal to the ARB is reason to allow further pleadings; as to Complainant's assertion that the record would be incomplete without the Reply, I note that counsel has an obligation to properly document all amounts claimed in the first instance.

   The Energy Reorganization Act ("ERA") provides that if Complainant prevails, at the request of the Complainant, Respondent shall be assessed "a sum equal to the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred . . . for, or in connection with, the bringing of the complaint . . . ." 42 U.S.C. § 5851(b)(2)(B). In its February 12, 1999 Final Recommended Decision and Order on Damages, the court found Complainant had prevailed within the meaning of the statute, and ordered the submission of a fee petition.

   Both parties agree that the proper way to determine a fee is the "lodestar" method. This requires multiplying the number of hours reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Backen v. Entergy Operations, Inc., No. 97-021, 96-ERA-18, (ARB Dec. 12, 1996), slip op. at 1 n.2. Complainant must submit evidence supporting the hours worked and rate claimed; where documentation is inadequate, the award may be reduced. Hensley, at 433. Hours not "reasonably expended" may also be excluded. Hensley, at 434.

ATTORNEY FEES
   Complainant has requested a total of $226,031.47 in attorney fees, broken down as:

      Name             Hours         Rate              Total (Lodestar)
   Stephen Kohn       628.95      $325.00               $204,365.23
   Annette Kronstadt   24.75      $250.00                 $5,941.24
   Law Clerks           185        $85.00                $15,725.00
   TOTAL                                                $226,031.47

   A reasonable attorney's fee is based on the rates prevailing in the community for similar services from attorneys of similar skill, experience, and reputation. See Blum v. Stenson, 465 U.S. 886, 889, n. 11 (1984). I also will consider the "Johnson factors" when setting a reasonable fee:

1. The time and labor involved;
2. The novelty and difficulty of the questions involved;
3. The skill required to properly perform the legal service;
4. Preclusion of other employment by the attorney as a result of accepting 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 amounts 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;
12. Awards in similar cases.

See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir., 1974), overruled on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989).

   Respondent objects to any increase in Ms. Kronstadt's market rate, arguing Complainant failed to produce satisfactory evidence that the new rate is based on rates prevailing in the community for services from attorneys of similar skill, experience, and reputation. (See Respondent's Opposition, p. 15). Respondent suggests that Ms. Kronstadt's market rate be set at $180 per hour, the same as in the first fee award of 1996. (See Respondent's Opposition, p. 15).

   I agree that Complainant failed to present sufficient evidence to justify a substantial increase in Ms. Kronstadt's market rate. However, I will adjust her previously awarded rate upward based on the inflation rates cited by Respondent. (See Respondent's Opposition, p. 14 (3% inflation increase in 1996, a 2.3% increase in 1997, and a 1.6% increase in 1998)). This results in an approximate reasonable market rate of $195 per hour.

Law Clerks    As Respondent made no objection to the hourly rate requested for the work of the law clerks, and Mr. Kohn's affidavit indicates that $85 is the present Laffey Matrix rate for law clerk work in the Washington D.C. area (see Complainant's Application, Exhibit 3, p.13), I will accept this figure. Therefore, the market rate for law clerk work is set at $85 per hour.

Hours Billed
   Respondent objects to many of the hours claimed by Mr. Kohn, Ms. Kronstadt, and the various law clerks.

has since been changed, and the Secretary (and thus the Administrative Law Judge in his role of issuing a "recommended" Decision to the Secretary) may now generally include the costs of appellate work. (See Delcore v. W.J. Barney Corp., 1989-ERA-38 (ARB Oct. 31, 1996), citing Blackburn v. Reich, 79 F.2d 1375 (4th Cir, 1996)).

1.5 hours of the 3 hours billed January 15, 1998 for research;
1 hour of the 2 hours billed February 4, 1998 for review of cases;
1.5 hours of the 5 hours billed February 9, 1998 for review of wage data and various proposals;
0.50 hours of the 1.33 hours billed February 12, 1998 for review of wage data;
0.33 hours of the 0.83 hours billed February 17, 1998 for review and organization of the file;
1.5 hours of the 3 hours billed March 16, 1998 for research on IME's;
1 hour of the 3.42 hours billed March 17, 1998 for review and editing of a draft stipulation;
1.5 hours of the 2.42 hours billed March 31, 1998 for review /organization of the file;
0.50 hours of the 0.83 hours billed June 1, 1998 for review of the file;
1 hour of the 2 hours billed April 2, 1998 for research;
4.5 hours of the 9 hours billed June 8 and 9, 1998 for organization and preparation of presentation and exhibits;
0.50 hours of the 1.25 hours billed June 11, 1998 for review of medical records prior to shipment to Respondent;
0.75 hours of the 1.5 hours billed June 11, 1998 for review of prior record materials for prior earnings dates;
0.75 hours of the 1 hour billed July 31, 1998 for exhibit preparation;
0.33 hours of the 0.67 hours billed August 11, 1998 for compilation and review of Complainant's tax records;
3 hours of the 6 hours billed August 17, 1998 for research of case law;
1 hour of the 2 hours billed September 7, 1998 for research and review of cases;
2 hours of the 3.75 hours billed September 9, 1998 for review of the file;
0.50 hours of the 1.25 hours billed September 15, 1998 for review of prior discovery requests and responses;
1.5 hours of the 3 hours billed September 25, 1998 for review of faxes regarding deposition costs;
1 hour of the 2 hours billed October 1, 1998 for review of an affidavit filed by Complainant and his testimony;
4 hours of the total 9 hours billed October 2 and 3, 1998 for preparation for the depositions of Complainant and his wife;
0.50 hours of the 1 hour billed October 3, 1998 for organization of case/deposition data; 2 hours of the 4 hours billed October 16, 1998 for research;
2.5 hours of the 5 hours billed November 9, 1998 for research;
3 hours of the 6 hours billed November 10, 1998 for research;
2.5 hours of the 5 hours billed November 11, 1998 for research;
1 hour of the 2 hours billed December 8, 1998 for research;

0.25 hours of the 0.50 hours billed December 14, 1998 for research;
1.75 hours of the 3.75 hours billed January 4, 1999 for review of Complainant's financial records;
0.33 hours of the 0.75 hours billed January 25, 1999 for research;
2 hours of the 4 hours billed January 26, 1999 for drafting and revising proposed final recommended decision and order;
1 hour of the 2 hours billed February 5, 1999 for research;
1 hour of the 1.5 hours billed February 5, 1999 for review of a deposition;
0.75 hours of the 1.33 hours billed February 10, 1999 for preparation of a motion for deposition costs;
0.67 hours of the 1.67 hours billed February 18, 1999 for review of wage rate materials;
0.50 hours of the 1 hour billed March 2, 1999 for research;
2 hours of the 3 hours billed March 2, 1999 for review and organization of the file;
2 hours of the 3 hours billed March 3, 1999 for compilation of information for fee petition;
12 hours of the 27 hours billed March 4, March 8, and March 9, 1999 for preparation of the fee petition; and
4.5 hours of the 8.83 hours billed March 5, 1999 for research regarding the fee petition.
Thus, 92.01 hours will be deducted from Mr. Kohn's total.

   Excessive Conferencing
   Respondent also objects to the hours billed by Mr. Kohn for conferences with his firm partners or Ms. Kronstadt (see Respondent's Opposition, pp. 22-23, (citing Blum v. Witco Chem. Corp., 829 F.2d 367 (3rd Cir. 1987) (urging close scrutiny of hours claimed for consultation between senior counsel))). However, since the hours billed for consultation with Mr. Kohn's partners involved major decisions (such as case or mediation strategy), no other partner submitted a fee request for those hours, and the total number of hours claimed is small (3.58 hours) when compared with the total number of hours claimed (628.95 hours, prior to reductions), I find these hours to be reasonable.

   I am more concerned with the hours billed for conferences with Ms. Kronstadt. While Mr. Kohn was clearly supervising her work closely, I feel that the hours billed by Mr. Kohn for such consultations are excessive, especially when Ms. Kronstadt also billed for these same hours. Therefore, I will reduce these hours by half, deducting 3.4 hours.

   Wasteful or Unnecessary Work
   Respondent also objects to some of Mr. Kohn's hours as "wasteful, excessive, unproductive, duplicative, or otherwise unnecessary." (Respondent's Opposition, p. 23). First, Respondent objects to 12 hours spent drafting and revising three strategy letters to Complainant, which I agree seems excessive in light of the large number of hours billed for phone conversations with Complainant. (See Respondent's Opposition, pp. 23-24). While Mr. Kohn certainly had an obligation to keep

Complainant informed, I feel that the average of four hours per letter is excessive, especially to reduce to writing what presumably was already discussed during phone conversations. Therefore, I allow only 2 hours per letter, or a total reduction of 6 hours.

   Respondent also objects to 2.92 hours billed for the drafting and revision of two motions to supplement the record, especially since these motions were later rejected by the ARB on procedural grounds. (See Respondent's Opposition, p. 24). However, it is a longstanding principle that hours spent need not be denied simply because Complainant was unsuccessful on particular issues. Despite Respondent's assertion that the ARB found the motion to be "frivolous" (see Respondent's Opposition, p. 24), I find no indication of this in the ARB's decision. (See Doyle v. Hydro Nuclear Servs., 1989-ERA-22 (ARB Sept. 6, 1996)). No reduction will be made for hours spent on this motion.

   Excessive Conferencing
   According to Respondent's calculations, 5.95 hours (or 30.7%) of Ms. Kronstadt's total billable hours were spent in consultation with Mr. Kohn. (See Respondent's Opposition, pp. 35-36). As Mr. Kohn apparently felt the need to supervise her closely, I feel it would be inappropriate to compensate Ms. Kronstadt for this time at her full rate. Therefore, the court will reduce this amount by approximately one-third, or 2 hours.

   Work to be Billed at Lower Rates
   Respondent argues that another 10 hours of Ms. Kronstadt's activities could have been accomplished by a junior and less expensive attorney. (See Respondent's Opposition, pp. 37-38). My review reveals several hours worth of time billed for research, "reading cases," review, or phone conversations, all of which could have been accomplished by an attorney with a lesser hourly rate. Therefore, the court will reduce these hours by one-quarter, or 2.5 hours.

   Respondent also argues that the rest of Ms. Kronstadt's time was spent in factual investigation or scheduling of simple matters, which could have been handled by paralegals at a reduced rate. (See Respondent's Opposition, pp. 38-40). I agree that much of the factual investigation could have been performed by paralegals or clerks, and will therefore reduce these hours billed by approximately one- third, or 2.8 hours.

   Conclusion
   Except as stated above, I find that portion of the application dealing with Ms. Kronstadt to be reasonable, and award 17.05 hours (24.75 hours claimed - 7.7 hours deducted), at a market rate of $195 per hour, or a total attorney fee award of $3,324.75.

Clerks    Complainant also submits records of the hours worked by three different law clerks: Carousel Bayrd, Russell Burchill, and Terrell Stevens. (See Complainant's Application, Exhibit 3, Attachments C, D, and E). I first note that Mr. Kohn's affidavit and the Application for Attorney's Fees and Costs request a total of 185 hours for law clerk work. (See Complainant's Application, p. 41; Kohn Affidavit, p. 13). However, my review of the hours shown on the various law clerk timesheets reveals a total of only 145 hours, prior to any deductions I might make. Therefore, all deductions are be made from that total.

   File Familiarization and Duplicative Efforts
   Respondent objects to time spent on "file familiarization" activities by Bayrd. (See Respondent's Opposition, p. 40). On June 8, 1998 Bayrd billed a total of 5.25 hours for reading and organizing the file. I agree with Respondent that hours spent on organization may be billable, but hours spent on file familiarization are duplicative and not reimbursable. (See, e.g., Blum v. Witco Chem. Corp., 829 F.2d 367 (3rd Cir. 1987). However, as Bayrd did not segregate the time spent on each activity, all 5.25 hours are excluded. (See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

   Respondent also objects to 10 hours billed by Burchill as duplicative: 6 hours spent attending the Doyles' depositions on October 3, 1998, and 4 hours spent "research[ing] depositions" on November 2, 1998. (See Respondent's Opposition, p. 42). Respondent objects to the hours billed for attendance at the deposition on the grounds that Complainant failed to demonstrate the need for the attendance of a second attorney or paralegal at the deposition. (See Respondent's Opposition, p. 42). I disagree that the hours spent attending the deposition should be excluded as duplicative, especially since the time billed was that of a clerk or paralegal, not that of an attorney at a higher rate. However, I do agree that the time spent researching depositions was probably simple file familiarization and should not be allowed; thus 4 hours of Burchill's time is disallowed.

   Respondent also objects that 9.25 hours of Stevens' time is for file familiarization and should be excluded. (See Respondent's Opposition, pp. 42-43). However, after reviewing the timesheets, I am persuaded that only 2 hours on January 27, 1998 spent "review[ing] decisions and orders" should be excluded on this basis. Respondent also objects that another 2.5 hours billed by Stevens on January 27, February 2, and February 11, 1998 is duplicative work and should be excluded. (See Respondent's Opposition, p. 43). However, after reviewing the timesheets, I am not persuaded that these hours were duplicative; therefore the billings will be allowed.

   Improperly Documented Work
   Respondent also objects that 8 hours of Stevens' time is improperly documented, as it contains no date and no description of work performed. (See Respondent's Opposition, p. 44). After a review of the records, I agree with Respondent and disallow all 8 hours.

   Work to be Billed at Lower Rate
   Respondent objects to 5.5 hours billed by Bayrd on June 9, 1998 for work described as "calculate, check medical records, organize medical records, met with Steve, met with Shannon, photocopied documents, create figure chart;" and 6.5 hours on June 10, 1998 for "Arbitration (take notes, help calculate figures, feed meter). (See Respondent's Opposition, p. 40). While some of these activities are clearly compensable (organizing records, etc.), others are clearly not (photocopying, "feeding" the meter). As the records fail to properly segregate the time spent, the court will disallow all 12 hours.

   Respondent objects to another 21 hours of Burchill's time as primarily clerical in nature and unsegregated, and argues the total hours should therefore be excluded. (See Respondent's Opposition, p. 41-42). I first note that the 7 hours billed on September 14, 1998 for "Scheduling Experts and clients" is clearly excessive, and although I will allow the task, the number of hours will be reduced by half, or 3.5 hours. Burchill also billed 6 hours between October 28-30, 1998 for "Doyle Out of Pocket Expense Report Research and Data Entry;" while the preparation of this report would be compensable, simple data entry would more properly be considered clerical work. However, as the types of work have not been segregated, I will again exclude the entire 6 hours. Finally, as the 8 hours billed on November 16, 1998 encompass a large number of tasks without specifying the amount of time spent on each, I will exclude those 8 hours as improperly documented.

   Respondent also objects to 21 hours of Stevens' work as clerical. (See Respondent's Opposition, p. 43). I will allow some of the 9 hours billed on February 2, 1998 for review of expenses, preparation of spreadsheet, and preparation of affidavit, as these tasks are similar to the work of paralegals; however, as the total number of hours spent seems excessive, I will reduce this by one-third, or 3 hours. However, I disallow all 10 hours billed on February 3 and 4, 1998 for trips to the Department of Labor to photocopy cases concerning the Davis-Bacon Act, as this task is clearly clerical in nature. Respondent also objects to 2 hours on February 11, 1998 billed for drafting of a letter and faxing of the same; as the report fails to segregate this time into billable (drafting) and non-billable (faxing) time, I will disallow all 2 hours.

   Conclusion
   Except as stated above, I find that portion of the application dealing with the law clerks to be reasonable, and award 81.25 hours (185 hours claimed - 40 hours not documented - 63.75 hours in other deductions) at a market rate of $85 per hour, or a total attorney fee award of $6,906.25.    

COSTS
Expert Witness Fees
   Complainant seeks expert witness fees in the following amounts: $5,800.00 for Dr. Steven Jackson; $9,650.00 for Mr. Marvin Hobby; $700.00 for Mr. Randy Robarge. (See Complainant's Application, pp. 43-45). Respondent does not object to the fee for Mr. Robarge, and therefore that $700.00 is granted. (See Respondent's Opposition, p. 45).

   Respondent argues that the amount requested for Mr. Hobby is excessive because he is not an expert and the court rejected him as such. (See Respondent's Opposition, p. 45). Respondent makes the same arguments regarding Dr. Jackson's fee, and points out that he did little of the work himself, primarily supervising and reviewing Mr. Hobby' work. (See Respondent's Opposition, p. 45). In the alternative, Respondent argues that as both men examined the same calculations and data, the work of one is arguably duplicative. (See Respondent's Opposition, p. 45). Finally, Respondent argues that their own experts cost only $5,518.00, and Complainant's fees should be limited to a similar amount. (See Respondent's Opposition, p. 45).

   First, I disagree that Respondent's costs for expert should be controlling. I agree that the charges for Mr. Hobby are clearly excessive as he is not an expert and was rejected as such by the court. Therefore, I will reduce Mr. Hobby's hourly rate from $200 to $85 per hour, which brings his rate in line with the rates of paralegals and law clerks; however, I allow the full 48.25 hours claimed for Mr. Hobby's work, for a total fee of $4,101.25. I also believe the charges for Dr. Jackson to be excessive, as he primarily supervised and reviewed Mr. Hobby's work, relying heavily on Mr. Hobby's work in the formulation of his own reports. Although I will allow Dr. Jackson's rate of $200 per hour, I will reduce his time by 14 hours; this results in 15 hours at $200 per hour; or a final award of $3,000.00.

Costs Incurred by Law Firm
   As Respondent has not objected to any of the other costs incurred by Mr. Kohn's law firm and billed to Complainant ($3,496.55), I grant these costs.

Costs Incurred by Complainant
   Complainant also seeks reimbursement for a number of costs directly incurred by the Complainant himself, including: $2018.18 in telephone bills; ,088.00 for travel to Washington, D.C. (two round-trips); $215.29 for hotel and meal costs for one trip to Washington, D.C.; $110.00 for meals and lodging on another trip to Washington, D.C.; $179.20 for travel in Alabama; ,152.00 for faxes sent or received from Complainant's home computer; $128.00 in case related photocopy costs; and $39.44 in postage or delivery costs. (See Complainant's Application, p. 48).

   Respondent objects to several of these costs, including: the $759.29 ($544.00 in mileage, and $215.29 in lodging and food) related to the Maybray deposition (another motion related to these costs is currently pending before the court); the $544.00 in mileage and $110.00 in undocumented lodging and meals related to a June 1998 mediation; the 560 miles of travel ($179.20) by Complainant while performing investigations related to his complaint in Alabama; the $128.00 in photocopies and ,152.00 in faxes (argued to be undocumented); and the $20.00 of the $39.44 claimed in postage which is not properly documented. (See Respondent's Opposition, pp. 46-47).

   As Respondent has not objected to the $2018.18 in telephone charges, that amount is awarded.

   Respondent is correct that the costs of the Maybray deposition are the subject of separate motions before the court. However, in the interest of judicial economy, I address the subject here. My Partial Order on Summary Judgment Motions of December 17, 1998, ordered Respondent to pay "all reasonable costs related to the deposition of Ms. Maybray;" still at issue are the costs incurred by Complainant for his trip to Washington, D.C. to attend the deposition. Complainant argues that Respondent's failure to properly respond to discovery requests (which led to the court's order that Respondent pay the costs of Ms. Maybray's deposition) makes the decision to have Complainant attend the deposition "reasonable." However, I disagree; I find Mr. Kohn's few arguments weak, and can discern no reasonable need for Complainant's attendance. Therefore, the $759.29 in costs sought for Complainant's attendance at the Maybray deposition are denied.

   Respondent objects that there is no documentation of the miles claimed for travel in Alabama, and again no proof of any out of pocket expense. (See Respondent's Opposition, p. 46). I deny the amount claimed for this mileage, as there is no proof of the actual amount of miles claimed, nor even a list of Complainant's destinations when he allegedly incurred this mileage. This contrasts with the mileage awarded for the June 1998 mediation, where it was possible to calculate the distance from Claimant's home to Washington D.C., and it is known that he did attend the mediation. Therefore the $179.20 requested for travel in Alabama is denied.

   Respondent also objects to $128.00 in photocopies and ,152.00 in faxes from Complainant's home computer. (See Respondent's Opposition, pp. 46-47). Complainant requests $2.00 per page for the 288 fax pages (or $576.00) allegedly shown by his computer records (see Complainant's Application, Exhibit 4, Attachment 7), plus an additional $576.00 as an estimated cost for those faxes he cannot prove due to damage to his home and records from a hurricane. (See Complainant's Application, Exhibit 4, pp. 7-8). While I sympathize with Complainant's loss from a natural disaster, I can not award costs for which there is a lack of documentation or any other proof. Therefore, the $576.00 in estimated fax costs is denied. My own review of the fax logs provided reveals a total of 69 transmissions (although no page totals are provided, I assume one page per transmission, as Complainant apparently has). Complainant seeks reimbursement for 219 pages received, but the documentation reveals many instances of errors (noted as Phase B or D error in the results column on the log), and only 128 pages of apparently successful transmission. As my review reveals only 197 pages successfully received or transmitted, Claimant is awarded only $394.00 for fax costs. As Complainant has provided no documentation or breakdown of his photocopy costs, the $128.00 sought is denied.

   Respondent also objects to the $39.44 claimed by Complainant in postage costs, particularly the $20.00 in undocumented costs. (See Respondent's Opposition, p. 47). I agree that Complainant can not recover for undocumented or estimated costs, especially when there is no other circumstantial evidence the costs were incurred. Therefore $20.00 will be struck, and Complainant is awarded only $19.44 in postage costs.

   Conclusion
   Therefore, Complainant is awarded $700.00 in expert witness fees for Mr. Robarge; $4,101.25 in expert witness fees for Mr. Hobby; $3,000.00 in expert witness fees for Dr. Jackson; $3,496.55 in miscellaneous law firm costs; $2018.18 in telephone charges; $544.00 for mileage to the June 1998 mediation; $394.00 in fax costs; and $19.44 in postage costs. The total amount of costs awarded equals $14,273.42.

      RICHARD D. MILLS
      District Chief Judge

Metairie, LA
RDM/bc

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C. F. R. Section 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N. W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C. F. R. Sections 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).