Office of Administrative Law Judges John W. McCormack Post Office
& Courthouse - Room 507 Post Office Square Boston, MA 02109
(617) 223-9355
(617) 223-4254 (FAX)
Date: August 10, 1999
Case No.: 1997-TSC-6
File No.: 0-130-97-007
In the Matter of:
Jeanne Sayre, Complainant
v.
Alyeska Pipeline Service Co.
and
VECO Engineering,
Respondents
RECOMMENDED DECISION AND ORDER
APPROVING ATTORNEY FEES
On May 18, 1999, the undersigned issued a Recommended Decision and Order
in the above-captioned matter, providing relief under the employee protection provisions of the Toxic
Substances Control Act, 15 U.S.C. § 2622, the Water Pollution Control Act, 33 U.S.C.
§ 1367, the Clean Air Act, 42 U.S.C. § 7622, and the Solid Waste Disposal Act, 42
U.S.C. § 6971. The Recommended Decision and Order awarded Complainant back pay in the
amount of $28,023.81, COBRA payments totaling $818.88, $10,000.00 in compensatory damages,
and $2,500.00 in punitive damages. Thus, Complainant was awarded a total of $41,342.69, not
including interest, and her attorneys are seeking approximately $312,201.94 in attorney fees and costs.
[Page 2]
EVIDENCE
Since the May 18, 1999 Recommended Decision and Order, the following
evidence has been submitted related to the issue of appropriate attorney fees:
This record was closed on July 21, 1999, as no further documents were filed.
DISCUSSION
A prevailing party in a so-called whistleblower case is entitled to recover costs
for attorney fees and expenses. In this context, a party may be considered to have prevailed if he or
she succeeded on any significant issue in litigation which achieves some of the benefits the party sought
in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Pursuant to the May
18, 1999 Recommended Decision and Order, Complainant is a prevailing party, thus, Complainant's
counsels are entitled to a reasonable fee. A reasonable fee is typically calculated by the lodestar
method, meaning the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate. Id. The party seeking a fee award must submit evidence documenting the hours
worked and the rates claimed: all of Complainant's counsel have submitted such documentation. It is
this Administrative Law Judge's responsibility to analyze all documentary evidence, as well as the
arguments of all parties, in determining the appropriate and reasonable fee under the circumstances.
Altman Weil Survey
At the outset, I must address the issue of the 1998 Altman Weil Survey of Law
Firm Economics. This Administrative Law Judge, in the May 18, 1999 Recommended Decision and
Order, permitted the parties to brief the issue of whether or not this Court should take judicial notice of
the rates listed in the 1998 Altman Weil Survey. This survey compiles and reports attorney fee
information in the different regions of the United States for partners, associates and paralegals. The
Western region includes: Alaska, Arizona, Colorado; Hawaii; Idaho; Montana; Nevada; New Mexico;
Oregon; Utah; Washington and Wyoming.
When a court takes judicial notice, it recognizes the existence and truth of certain
facts having a bearing on the controversy at bar which, from their nature, are not properly the subject of
testimony, or which are universally regard as established by common notoriety. See Fed.
Evid. Rule 201. I, upon careful reflection of the arguments of the parties, decline to take judicial notice
of the Altman Weil Survey. While I find the survey informative and useful, I do not believe it is of such
common notoriety, or of such a complete scope, to warrant a finding of established fact through judicial
notice. I wish to stress, however, that I consider the study relevant and persuasive evidence of
prevailing rates, as shall be discussed below in my discussion of what constitutes a reasonable attorney
fee rate in this matter. Therefore, while the study is relevant, I decline to recognize it as a proven fact or
as conclusive per se.
Levitt/Anderson Fee Petition
In the present case, Attorneys Levitt and Anderson have submitted a joint fee
petition, representing their service with the Government Accountability Project and the Project on Law
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and the Workplace. Attorney Levitt requests a fee based upon a rate of $195.00 per hour, for 158
hours of time. Attorney Anderson requests a fee based upon a rate of $235.00 per hour, for 464.5
hours of time. They also request expenses in the amount of $12,245.94. The Respondents have
challenged Complainant's proposed hourly rates, and VECO has raised specific challenges to both the
hours expended and the costs incurred.
Applicable Hourly Rate
Attorney Anderson requests a rate of $235.00 per hour, and Attorney Levitt
requests a rate of $195.00 per hour. Complainant's petition, supported by affidavits, asserts that the
fee is in conformity with the reasonable fees both in the Washington D.C. area, and with the rates
typical of their national and specialized public interest practice. Further, Complainant's note that their
fees are in conformity with the Laffey Matrix, which is sometimes utilized in cases within the
Washington, D.C. area.
Respondents, on the other hand, argue that both hourly rates are excessive.
Respondent argue that the appropriate rate should be based on the prevailing rate in the community
where the case is tried, and not the national rate or the Washington D.C. rate typically charged by
Complainant's counsels. In support, Respondents submitted the 1998 Altman Weil Survey to
demonstrate a fee of $179.00 or $175.00 per hour as appropriate for attorneys in the Western United
States, including Alaska.
Initially, I note that a reasonable attorney's fee is based on rates prevailing in the
community for similar services. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984);
Blackburn v. Metric Constructors, Inc., 1986-ERA-4 (Sec'y Oct. 30, 1991). This case
was tried in Alaska, and the parties and evidence were located in Alaska. Thus, I conclude that a
reasonable fee must be in conformity with the prevailing rates in Alaska and, specifically, the greater
Anchorage area.
In reaching this conclusion, I reject Complainant's argument that I should apply
an exception to the local-community general rule, and adopt a non-local wage rate where either: (a) the
complexity, specialized nature or undesirability of a case requires outside counsel; or (b) where the
plaintiff was unable to retain local counsel. See National Wildlife Federation v. Hanson,
859 F.2d 313, 317 (4th Cir. 1988). Initially, I note that this was a difficult and detailed case, however,
I do not believe the case was of such complexity, or required such specialized skills, that the
Complainant had to seek non-local counsel. While I acknowledge Complainant's counsels' expertise in
this field and their thorough and most professional presentation of this case, I do not feel the general
nature of the case was such that an Alaska-based employment law attorney or firm could not prosecute
this claim. Further, while I find that Complainant made a good faith effort to obtain local counsel, I
disagree that this is ground for approving an attorney fee that is in great disparity to the local community
standard. Therefore, I reject Complainant's proposed fees, and I decline to utilize the Laffey Matrix in
determining the proper hourly rate for this case.
1 The signature page for this Opposition
was faxed on July 1, 1999.
2 Alyeska has pointed out that
there is no currently published research index isolating and reporting rates in the Anchorage area.
Further, Alyeska states that the Alaska Bar Association guide is too old to serve our purposes.
3 VECO's specific challenge
concerns 24 hours of Attorney Levitt's time, 34.7 hours of Attorney Anderson's time, $170.31 in long
distance costs, and $2,98.34 in other travel expenses.