Commercial (415) 974-0514
Government 8-454-0514

CASE NO. 86-ERA-24

In the Matter of

S. M. A. HASAN
    Complainant

    v.

NUCLEAR POWER SERVICES, INC.,
STONE & WEBSTER ENGINEERING CORP.,
TEXAS UTILITIES ELECTRIC CO., INC.,
    Respondents

    In my Decision, dated September 25, 1986, on Complainant's Motion to Disqualify respondents' law firm, I allowed complainant to file a petition for attorneys' fees and costs, and required that a copy be served on the Bishop law firm, which was afforded

ten days from service to file objections. On October 27, 1986, complainant's counsel served said petition on the Bishop firm. On November 7, 1986, attorney Peter Chatilovicz, having previously filed an appearance in behalf of respondents pending resolution of the appeal of my decision disqualifying the Bishop firm, filed the instant Motion to Stay. On November 18, 1986, complainant filed a Motion in opposition to the Motion to Stay; and finally, on November 20, 1986, respondents filed a Reply to Complainant's Motion in Opposition.

    Complainant first opposes the stay on the ground that the motion was untimely filed; the argument involves consideration of which firm, Bishop or Mr. Chatilovicz's, was the proper party to receive the fee petition and respond to it. In this connection I note that although the September 25 decision disqualified the Bishop firm, complainant was nevertheless required to serve a copy of his attorneys' fee petition on that firm. Though disqualified in terms of its further participation in the case in chief, it was contemplated that the Bishop firm would remain the appropriate party to respond (or at least participate in the response) to the fee petition for three reasons: respondents' new counsel was not yet named; the Bishop firm was, and is, in the best position to provide responses to the fee petition based on its first-hand knowledge of some, if not most, of the references contained in it; and I deemed it possible that the Bishop firm, not its client, would actually pay any fee and costs ultimately approved. In any case, the service of the fee petition having been made on the Bishop firm on October 27, 1986, to be timely the objections had to be filed, i.e., received, in this office by mail (I consider Federal Express a form of mail by November 12, 1986 (November 11 was a federal holiday). 29 C.F.R. §§18.4(a), (c). Therefore, although the filing of the Motion to Stay did not automatically stay the requirement to file the objections in timely fashion, I do find that the Motion to Stay itself was timely filed on November 7, 1986.

    Regarding the merits of the Motion to Stay, since complainant's entitlement to have respondents pay his attorneys' fees and costs is founded on his having prevailed on the merits of the motion to disqualify the Bishop firm, and since that decision is now pending on appeal, I agree that the response to the fee petition should logically follow the result of that appeal (as should any requests by respondents for discovery related to the fee petition). I disagree with complainant's contention that 29 C.F.R.

§ 18.36(b) precludes such a stay. The cited regulation refers to a delay in the "proceeding" -- the fee petition in this case is clearly an ancillary matter; the progress of the proceeding in chief, on the merits of the "whistleblower" complaint itself, will not in fact be delayed by the proposed stay in filing objections to the fee petition.¹ Accordingly, the Motion to Stay is granted; respondents shall file their response(s) to the fee and cost petition not later than 20 days after the date of a decision affirming, in whole or in part, the disqualification of the Bishop firm.

    SO ORDERED.

       ALFRED LINDEMAN
       Administrative Law Judge

Dated:
San Francisco, California

¹ Such delay as will have occurred in the hearing of the case in chief was occasioned by the fact that, according to complainant's counsel, Garde, during a conference telephone call with attorney Chatilovicz and me on October 24, 1986, it was complainant's counsel who sought and were granted a delay in the hearing before Chief Judge Litt on the appeal of the decision disqualifying the Bishop firm. It is also noted that during the October 24 conference call, it was agreed that the dates for respondents to name new counsel, for the exchange of prehearing statements, and for the hearing were December 20, 1986, January 20, 1987, and February 24-26, 1987, respectively. By letter dated November 20, 1986, attorney Chatilovicz advised that due to subsequent developments he and complainant's counsel agreed that the first date is postponed to five days after the date of Judge Litt's decision The second and third dates remain unchanged.