DATE: December 27, 1994
CASE NO. 86-ERA-4
IN THE MATTER OF
PAUL A. BLACKBURN,
COMPLAINANT,
v.
METRIC CONSTRUCTORS, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant's counsel has filed a Third Fee Petition and
supporting affidavit, requesting additional attorneys' fees and
costs pursuant to the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C. § 5851 (1988). Relying on
DeFord v. Tennessee Valley Authority, 715 F.2d 231 (6th
Cir. 1983), Respondent contends that the fees and costs now
sought by Complainant are not recoverable under the ERA because
they were incurred in appellate proceedings before the United
States Court of Appeals for the Fourth Circuit and in subsequent
proceedings before the Secretary on remand. In reply,
Complainant urges the Secretary not to follow DeFord and
to grant his petition (Exhibit A) in full. He, nevertheless,
submitted a modified fee petition (Exhibit AA) "for illustrative
purposes only," excluding some of his services. Reply brief at
6. Upon review, I find that neither party is entirely correct.
Complainant filed a Petition for Review on December 20,
1991, challenging the Secretary's award of damages for his
unlawful termination. By decision dated October 15, 1992, the
court of appeals affirmed the Secretary in part, but remanded the
case for reconsideration of the issue of compensatory damages.
Blackburn v. Martin, 982 F.2d 125, 127 (4th Cir. 1992).
On
[PAGE 2]
August 16, 1993, the Secretary issued a decision on remand
awarding Complainant compensatory damages. Complainant's
counsel is requesting compensation for services rendered from
November 15, 1991, until September 21, 1993.
Based on DeFord, I disallow the entries that relate
to preparing for and conducting the appeal. Contrary to
Complainant's arguments, the court in DeFord squarely held
that neither the court nor the Secretary is authorized under the
ERA to award costs, including attorneys' fees, for proceedings on
appeal to the court of appeals. 715 F.2d at 232-33. The
Secretary has applied this holding in other cases arising under
analogous statutes. SeeSpinner v. Yellow Freight
Sys., Inc., Case No. 90-STA-17, Sec. Dec., Sept. 23, 1992,
slip op. at 4, aff'd on other grounds, No. 92-4074 (2d
Cir. Jan. 25, 1993). [1]
On the other hand, contrary to Respondent's position,
DeFord does not foreclose an award of fees incurred by a
complainant in proceedings before the Secretary on remand.
Section 5851(b)(2)(B) provides for the award of costs and
expenses, including attorneys' fees, "reasonably incurred . . .
by the complainant for, or in connection with the bringing of the
complaint upon which the [Secretary's] order was based."
Counsel's work performed before the Secretary on remand was
performed in connection with the complaint against Respondent
seeking compensatory damages, upon which the Secretary's order on
remand was based. Therefore, an award of fees is appropriate.
I note that the petition also contains entries pertaining to
work on a previous fee petition, which was pending at the
administrative level while Complainant was pursuing his appeal.
On October 30, 1991, the Secretary had remanded the case to the
Administrative Law Judge (ALJ) for reconsideration of the award
of attorneys' fees to Complainant's counsel. The ALJ issued his
recommended decision on January 14, 1992; and on March 13, 1992,
the Secretary approved an award for services rendered up until
November 15, 1991. Complainant is entitled to reasonable
compensation for work performed before the ALJ and the Secretary
culminating in the Secretary's March 13 order, even though
Complainant's appeal was filed in the interim.
Thus, after carefully reviewing the petition (Exhibit A) in
conjunction with the record and the sequence of events, I
disallow the entries dated November 20, December 18, December 30,
1991, and, with the exception of an entry on March 16, 1992, all
entries dated from February 3, 1992, through October 15, 1992,
because they represent hours spent preparing for and conducting
the appeal. [2] The remaining fee entries, including the
entries dated September 1, 1993, through September 21, 1993,
listed in Exhibit AA at 5-6, pertain to the administrative action
before the ALJ and the Secretary and are allowed as reasonable.
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In sum, William Reynolds Williams requested 87.3 hours. I
disallow 62 hours but add 8.4 hours, [3] for a total of 33.7
hours. Mark W. Buyck, III, requested 2.2 hours. I disallow .2
hour and add .9 hour, for a total of 2.9 hours. C. Craig Young
requested 34.7 hours. I disallow 33.1 hours and add 1.2 hours,
for a total of 2.8 hours. Doug Cunningham requested 9 hours, but
I allow only 3 hours. I approve and employ the hourly rates
listed on page one of Counsel's Affidavit, dated August 27, 1993.
With regard to counsel's itemization of costs, Exhibit A at
9-11, I note that counsel previously sought and received
reimbursement for "total costs" incurred through November 15,
1991. Consequently, I deny his current request for costs
incurred prior to and on that date. Of the remaining entries for
costs, I disallow those dated December 18, 1991, through June 8,
1992, as pertaining to the appeal. I add entries from August 27,
1993, through September 7, 1993. See Exhibit AA at 7.
ORDER
Respondent is ordered to compensate Complainant's counsel,
Willcox, McLeod, Buyck, Baker & Williams, P.A., for costs and
expenses in the amount of $5,159.77. This compensation
represents attorneys' fees in the amount of $4,841.27 and costs
in the amount of $318.50.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] I reject Complainant's argument that the court's reasoning
in DeFord is flawed because it confused the terms "costs"
and "expenses." Complainant's argument implies that while the
Secretary does not have authority to award "costs" in appellate
proceedings, he has authority to award fees for appellate
proceedings. The statute, however, does not envision any such
bifurcation. It provides that the Secretary may assess "a sum
equal to the aggregate amount of all costs and expenses
(including attorneys' . . . fees) reasonably incurred . . . . 42
U.S.C. § 5851(b)(2)(B).
[2] Although Complainant's counsel states that he received the
Secretary's October 30, 1991, order on November 15, the receipt
for certified mail shows that he received that order on
November 4. He was compensated earlier for review of the order
and some follow-up work. I allow the March 16, 1992, entry of .7
hour for receipt and review of the Secretary's March 13 Final
Order on Attorneys' Fees.
[3] The hours added to Williams' request are entries listed in
the modified fee petition, Exhibit AA at 5-6, which, as mentioned
above, represent work performed before the Secretary from
September 1, 1993, through September 21, 1993. The requests of
the other firm members are also credited with the entries listed
in Exhibit AA at 5-6.
