U.S. Department of Labor Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
CASE No. 86-ERA-23
In the Matter of
JOSEPH J. MACKTAL, JR.,
Complainant
v.
BROWN & ROOT, INC.,
Respondent
INITIAL DECISION AND ORDER GRANTING ATTORNEY'S
FEES
This proceeding arises under the Energy Reorganization Act of
1974(hereinafter "ERA"), 42 U.S.C. § 5851 (1988 and Supp. IV 1992) and
the regulations promulgated thereunder at 29 C.F.R. Part 24 which are employee protective
provisions of the ERA or of the Atomic Energy Act of 1954 as amended, 42 U.S.C. §
2011, et seq. On January 6, 1998, the Administrative Review Board (hereinafter
"ARB") issued a Final Decision and Order which upheld the Recommended Order of
Dismissal of the undersigned which found that Complainant had not shown that before he was
discharged that he had engaged in activity protected under the ERA as interpreted by the Fifth
Circuit. Nevertheless, the ARB indicated that earlier in the stage of litigation, Complainant had
entered into a settlement agreement in which he accepted $35,000 which included $15,000 to
him and $20,000 to his attorneys from Respondent. After receiving the settlement, Complainant
argued that certain terms of the settlement agreement were illegal. The Secretary agreed with
[Page 2]
Complainant and issued an Order Disapproving Settlement. The ARB found that Complainant
would be entitled to attorney's fees and costs limited to the attorney time reasonably spent only
on litigation of the legality of the restrictive settlement terms. See, eg.,
Hensley v. Eckerhart, 461 U.S. 424 (1983); Gaballa v. The Atlantic Group,
94-ERA-9 (Sec'y. Dec. 7, 1995). Therefore, this matter is now before this Court for a
consideration of the attorney's fees and costs.
On February 2, 1998, Complainant filed an Application for Attorney Fees
and Costs. Complainant is requesting attorney fees and costs for three attorneys. The fees for
Stephen M. Kohn represent 204.96 hours at an hourly rate of $300 totaling $61,488. The fees for
Michael Kohn represent 64.16 hours at an hourly rate of $300 totaling $19,248. The fees for
David Colapinto represent 42.80 hours at an hourly rate of $250 totaling $10,700. On March 13,
1998, Respondent filed a Response in Opposition to Complainant's Application for Attorney's
Fees and Costs.
SO ORDERED this, 30th day of March, 1998, at Metairie,
Louisiana.
JAMES W. KERR, JR. Administrative Law Judge
JWK/lp
NOTICE: This Recommended Decision and Order will automatically become the
final order of the Secretary unless, pursuant to 29 C.F.R. § 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 Avenue, NW, Washington, DC 202 1 0. 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. §§ 24.8 and 24.9, as amended by
63 Fed. Reg. 6614 (1998).
[ENDNOTES]
1Although this Court finds that
Respondent's initial argument does have merit, this Court is bound to follow the mandate of the ARB
who found that Complainant would be entitled to attorney's fees and costs limited to the reasonable
amount of time spent on the litigation of the legality of the restrictive settlement terms. This Court
has reviewed the two cases the ARB mentioned in the final decision and order. In Hensley v.
Eckerhart, the Supreme Court defined the conditions under which a person who is partially
successful on some of his claims may recover attorney's fees under the Civil Rights Attorneys Fees
Award Act. 461 U.S. 424. The Court noted that the degree of success attained is the most crucial
factor to consider and that if a plaintiff achieves only partial or limited success, the product of hours
reasonably expended on litigation as a whole times a reasonable hourly rate may result in an
excessive amount. 461 U.S. at 436, 440. The Hensley court established a two part test.
First, did the claimant's unsuccessful claims relate to the claims on which he was successful? 461
U.S. at 434. Second, did the claimant succeed at a level that makes the hours reasonably expended
a satisfactory basis for a fee award? Id. This Court questions whether the factors above are
even applicable to the facts of this case. Furthermore, the ARB mentioned the Gaballa
case which was brought under the provisions of the ERA. 94-ERA-9. However, the
Gaballa case is distinguishable from this case in that in the Gaballa case discrimination was
found whereas in this case no discrimination was found to have occurred.
Therefore, this Court will not address Respondent's arguments which are based
on the argument that there must be discrimination first in order to award attorney's fees. Respondent
additionally argued that the ERA does not authorize the Secretary to award attorney's fees for
proceedings before the Court of Appeals. This Court notes that in cases arising in the Sixth Circuit,
the Secretary and the Board are not authorized to award attorney's fees for appellate work before the
court of appeals. DeFord v. Tennessee Valley Authority, 715 F.2d 231, 232-33 (6th Cir.
1983). In Fourth Circuit cases, the Secretary and Board are permitted to order the respondent to pay
attorney fees for appellate work in the court of appeals. Blackburn v. Reich, 79 F.3d 1375
(4th Cir. 1996). The ARB has also adopted the Blackburn decision in cases outside the
Sixth Circuit. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997).
Thus, here, in the Fifth Circuit, this Court will follow the predicate of the ARB and allow attorney's
fees for appellate work.
2Respondent shall receive a credit of
$20,000 for the previous 1987 settlement.