412 644-5754

DATE: October 22, 1996
CASE NO: 96-ERA-6

In the Matter of

OWEN McCAFFERTY,
DENNIS MALONEY,
SEAN KILBANE,
TERRY McLAUGHLIN,
SEAN McCAFFERTY, AND
ROBERT PROHASKA,
   Complainants

    v.

CENTERIOR ENERGY,
   Respondent

   A Recommended Decision And Order was issued in this matter on June 11, 1996 providing for redress under the provisions of 42 U.S.C. § 5851 which prohibits a Nuclear Regulatory Commission licensee from discharging or otherwise discriminating against an employee by reason of his participation in an activity protected under the statute. On June 26, 1996, complainants' counsel, Steven D. Bell, Esq. submitted an Application for Award of Attorney Fees and Expenses. In response, an ORDER REGARDING ATTORNEY FEE APPLICATION was issued on August 20, 1996 requiring complainants to submit a supplement to their attorney fee petition documenting the requested hourly rate, detailing how the time was expended, and itemizing the necessary expenses in accord with the Secretary of Labor's Decision in Lederhaus v. Paschen & Midwest Inspection Service, Ltd., Case No. 91-ERA-13 (Sec'y of Labor, January 13, 1993.

   Complainant's submitted a SUPPLEMENTAL MATERIALS IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY FEES AND EXPENSES on September 5, 1996. Respondent, Centerior Energy, filed objections to the Supplemental Materials on September 19, 1996.

   Initially, respondent objects that the affidavit of Mary Davis, Esq. is insufficient to establish the prevailing market rates in the Cleveland, Ohio area because she has no special knowledge or experience.

    In the ORDER REGARDING ATTORNEY FEE APPLICATION it was held that the affidavit of complainants' attorney, Steven Bell, was insufficient by itself to establish the prevailing market rate for attorneys of his experience and skill in the Cleveland area. In the supplemental submission complainants submit the affidavit of Mary Davis as evidence of the prevailing market rate. Davis affirmed that she has practiced law in the Cleveland, Ohio area for almost six years as an associate attorney for three firms and by maintaining her own practice of law, and that in the course of representing clients in environmental litigation she has had the opportunity to review invoices of various law firms in Cleveland as well as the invoices of firms for whom she has worked. Davis offered the opinion that the hourly rates of each attorney and paralegal as set forth in the invoice for services rendered by Ulmer & Berne are consistent with the hourly rates charged by other law firms for attorneys and paralegals of similar levels of experience.

   The affidavit of Attorney Davis is accepted as evidencing the prevailing market rate. Respondent objects to the following specific items:

   1) Respondent objects that entries for 11/3/95, 11/9/95, 11/10/95, and 1/3/96 because they relate to the preparation of a union grievance and therefore to a different proceeding. Respondent's objections are sustained as to 11/3/95, 11/10/95, and 1/3/96 because, by their own description, they pertain to a union grievance. The entry on 11/9/95, involved both a union grievance and "conference with NRC regarding meeting on November 16." One-half of the entry on 11/9/95 (.35 hr.) is disallowed as pertaining to union business. .5 hours of time by MKS, .95 hours by SDB and .5 hours by LRR are disallowed as pertaining to union business and not to the present case.

   2) Respondent objects to entry for 11/9/95 and two entries for 11/16/95 because they relate to a meeting with the NRC and therefore, to a different proceeding. Respondent's objection is overruled; it is not evident that a meeting with the NRC would relate to a different case. Respondent also notes that there is an hour disparity in time reported by two attorneys for the 11/16 meeting, and argues that the time reported by one of the attorneys must be incorrect. Respondent's objection is overruled. The additional hour requested by Bell could reasonably be explained by his attendance at the meeting for a longer time or pre-meeting preparation. The reporting of different times for the meeting does not indicate that one is in error.

   3) Respondent objects to a claim of 3.2 hours by Bell on 1/16/96 for "Drafted Notice of Cross Appeal." Respondent argues that the Notice is a three-sentence letter and could not have taken 3.2 hours to prepare. Respondent's objection is overruled. The actual drafting of the Notice may not be indicative of the time devoted to its consideration, research, preparation and filing.

   4) Respondent objects to time claimed by Bell on 1/31/96 for attention to service of subpoenas as no subpoenas were issued or served in this proceeding. Respondent's objection is sustained. 1.8 hours by SDB are disallowed.

   5) Respondent objects to 6.4 hours claimed for 2/1/96 for conference with counsel for respondent, conference with clients regarding damages, and setting meeting with union representatives. Respondent informs that the meeting with respondent's counsel only took a few minutes, and contends that the other meetings could not have taken six hours. Respondent's objection is sustained in part, particularly in light of the minimal evidence developed at trial on damages. 3 hours by SDB are disallowed.

   6) Respondent objects to 23.8 hours over six entries for reviewing hearing transcripts. Although the time appears on its face excessive, it may not be if the time was devoted to preparation of the post hearing brief. Respondent's objection is overruled.

   7) Respondent's objection to time claimed on 7/26/96 to prepare response to respondent's motion to amend order because neither a motion to amend nor a response to such a motion was filed is sustained. 3.2 hours by LRR are disallowed.

   8) Respondent's objection to items relating to civil action in United States District Court to enforce Administrative Review Board's order is sustained as they do not relate to this matter. The time requested for items on 7/29/96, 7/30/96, 8/1/96 and 8/12/96, is disallowed. The disallowed time includes .5 hours by MKS, 10.4 hours by SDB and 11.7 hours by LRR.

   9) Respondent's objections to the 5.7 hours for review of billing record and preparation of itemized bill as well as the $280.00 expense for Mary Davis because it results from failure to keep adequate records and failure to maintain a separate billing are overruled.

   Respondent's objection to any award of attorney fees in excess of fee arrangement is overruled for the reasons set forth in the August 20, 1996 ORDER REGARDING ATTORNEY FEE APPLICATION.

   After consideration of the nature of issues involved, the degree of skill with which the complainants were represented, the amount of time and work involved, and other relevant factors, it is concluded that the amount of $36,063 ($42,028.50 requested minus $80.00 for MKS [1 hr. x $80] minus $4,037.50 disallowed for SDB [16.15 hrs. x $250] minus ,848.00 disallowed for LRR [15.4 hrs. x $120]) constitutes a reasonable fee and ,867.43 constitutes reasonable expenses and are approved. The fee of $37,930.43 is assessed against Centerior Energy.

   IT IS HEREBY RECOMMENDED that Respondent, Centerior Energy shall pay to complainants' counsel the sum of $37,930.43 in attorney fees and expenses.

      THOMAS M. BURKE
      Administrative Law Judge

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