ARB CASE NO. 98-079
ALJ CASE NOS. 94-TSC-3
94-TSC-4
DATE: May 16, 2000
In the Matter of:
MARRITA M. LEVEILLE
and
DANIEL J. LEVEILLE,
COMPLAINANTS,
v.
NEW YORK AIR NATIONAL GUARD,
and SECRETARY OF THE AIR FORCE,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For the Complainant:
David K. Colapinto, Esq.; Stephen
M. Kohn, Esq.; Jason S. Garber, Esq.,
Kohn, Kohn & Colapinto, P.C., Washington, D.C.
For the Respondent:
Major Paul J. Sausville, Legal
Counsel, New York Army National
Guard,
Latham, New York
ORDER GRANTING RECONSIDERATION
On February 15, 2000, this Administrative Review Board issued an Order
Granting in Part Complainant's Second Supplemental Application for Attorneys' Fees and Costs
(Supplemental Attorney Fee Order, or Order). The Supplemental Attorney Fee Order awarded
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Complainant Marrita Leveille significantly less than the total fees and costs that had been requested
in her petition. Complainant had requested compensation for attorney time expended on a reply brief
that exceeded the page limitation in the Board's briefing schedule, and also for work on a response
to Respondent's Reply brief that was not authorized by the briefing schedule. The Order noted in
particular that "Complainant did not seek leave of the ARB to file a 'Reply' brief substantially
exceeding the page limitation, nor did Complainant seek leave to file the additional brief not
contemplated by the ARB's briefing schedule." Because the Board concluded that
"significant time was invested by counsel developing materials that were not authorized by the
ARB's briefing schedule," Order at 3, the Board awarded 38% of the total attorneys' fees and
costs requested in the petition.
Complainant promptly moved for reconsideration of the Order on the ground
that Complainant had, in fact, moved for leave to exceed the page limitation in the reply brief and
for leave to file a reply to Respondent's reply brief. Complainant attached as exhibits to her motion
for reconsideration copies of these two earlier motions. See Exhibits 2 and 4 to
Complainant's Motion for Reconsideration, dated February 25, 2000.
Complainant is correct. The Board has reviewed the case record carefully, and
now recognizes it erred in declaring that the two motions had not been filed. The question presented
now is whether, taking those two motions into account, the Board should reconsider the
Supplemental Attorney Fee Order.
1. Reconsideration Authority
The Board previously has analyzed in depth the circumstances under which
it has authority to reconsider its decisions. SeeMacktal v. Brown and Root, Inc.,
ARB Case Nos. 98-112, 98-112A, ALJ Case No. 86-ERA-23, Order Granting Reconsideration (Nov.
20, 1998). The question of reconsideration authority can be answered only with specific reference
to the statute(s) underlying the challenged decision. Thus in Macktal, a case under the
Energy Reorganization Act, the Board observed that:
Agency authority to reconsider may be inherent or statutory. Absent
congressional intent to the contrary, agencies have inherent authority
to reconsider their final adjudicative orders for error within a
reasonable time.
Where Congress has enacted legislation delegating to an agency
explicit statutory authority to reconsider its decisions, the agency
must act within the parameters of that explicit authority. In these
instances, an agency may not rely on an assertion of "inherent
authority" to reconsider as a means to circumvent any strictures
imposed by the express limitations of its statute.
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Whether an agency's reconsideration authority is inherent or derived
from an explicit statutory delegation, the authority to reconsider never
includes authority for an agency to reconsider the wisdom of its final
order merely because of a change in agency policy.
The employee protection provision of the ERA is the basis of our
jurisdiction over this case. The ERA is directed generally to the
development and safe utilization of energy resources and places.
Nothing in the statutory text of the employee protection provision or
elsewhere in the ERA addresses the issue of reconsideration of final
orders in the whistleblower protection cases within the Secretary of
Labor's jurisdiction. Therefore, unless reconsideration by the Board
would interfere with, delay or otherwise adversely affect
accomplishment of the Act's safety purposes and goals, the Board has
inherent authority to reconsider a final ERA order.
Macktal, slip op. at 3-5 (citations and footnotes omitted); see also United Gas
Improvement Co. v. Callery Properties, 382 U.S. 223, 229 (1965) ("[a]n agency, like a
court, can undo what is wrongfully done by virtue of its order"); Gorbach v. Reno, 179
F.3d 1111, 1123-24 (9th Cir. 1999). Applying these principles in Macktal, the Board held
that it had authority to reconsider decisions in cases under the Energy Reorganization Act.
This case involves a complaint under the employee protection provisions of
six environmental laws: the Toxic Substances Control Act, 15 U.S.C. §2622 (1994); the Safe
Drinking Water Act, 42 U.S.C. §300j-9(I) (1994); the Clean Air Act, 42 U.S.C. §7622
(1994); the Solid Waste Disposal Act, 42 U.S.C. §6971 (1994); the Clean Water Act, 33
U.S.C. §1367 (1994); and the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. §9610 (1994). In an order granting reconsideration in Jones v.
EG&G Defense Materials, Inc., ARB Case No. 97-129, ALJ Case No. 95-CAA-3, Order
Granting Reconsideration (Nov. 24, 1998), the Board determined that it had inherent authority to
reconsider its decisions in appropriate circumstances under three of these statutes: the Clean Air
Act, the Toxic Substances Control Act, and the Solid Waste Disposal Act:
As in Macktal, we find that the Board's reconsideration of its
decisions under the environmental laws [i.e., the CAA,
TSCA and SWDA] would not interfere with or adversely affect the
general enforcement provisions of the environmental acts or the goals
of the employee protection provisions themselves. . . . [W]e find in
this case that the general enforcement authority of the three
environmental statutes at issue here is assigned to the Administrator
of the Environmental Protection Agency; that the Administrator's
enforcement role operates separate and apart from the Secretary of
Labor's employee protection function; and that reconsideration of the
Board's order in this case would not impact adversely the
Administrator's administration of the environmental statutes. Further,
we note that EG&G's motion to reconsider was filed soon after the
Board issued its order.
Jones, slip op. at 2-3.
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With regard to the three additional statutes at issue in this case
(i.e., the Safe Drinking Water Act, the Clean Water Act and the Comprehensive
Environmental Response, Compensation and Liability Act), we find that the analysis applied in
Jones holds true. None of the statutes has an explicit grant of reconsideration authority;
therefore, "unless reconsideration by the Board would interfere with, delay or otherwise
adversely affect accomplishment of the Act's safety purposes and goals, the Board has inherent
authority to reconsider a final . . . order." Macktal, supra. As in Jones, we
find that the general enforcement authority of the three additional environmental statutes at issue
here (SDWA, CWA, CERCLA) is assigned to the Administrator of the Environmental Protection
Agency; that the Administrator's enforcement role operates separate and apart from the Secretary of
Labor's employee protection function; and that reconsideration of the Board's order in this case
would not have an adverse impact upon the Administrator's administration of the environmental
statutes. We therefore hold that we have authority to reconsider orders issued by the Board under
these statutes, in appropriate circumstances.
We find reconsideration to be appropriate in this instance, where our
Supplemental Attorney Fee Order was based in part on erroneous information, and where
Complainant acted promptly in submitting her motion for reconsideration. Accordingly, the motion
for reconsideration is GRANTED.
2. Attorneys' fees
The statutes under which this case was filed provide that, when an order is
issued requiring relief for the complaining party, the Board "shall assess against the person
against whom the order is issued a sum equal to the aggregate amount of all costs and expenses
(including attorney's fees) reasonably incurred, as determined by the [Board], by the
complainant for, or in connection with, the bringing of the complaint . . . ." Toxic Substances
Control Act, 15 U.S.C. § 2622(b)(1)(B) (1994) (emphasis added). Our task is to determine
what expenditures for attorneys' fees were "reasonably incurred" in connection with the
litigation of the compensatory damages issue.
With respect to the motion to exceed the page limitation, Complainant argued
that its first brief on compensatory damages required an extensive review of prior awards for
emotional suffering and damage to professional reputation. We cannot agree that the damages issues
in this case were so out of the ordinary that a 67 percent expansion of the page limitation was
warranted.
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In the Secretary's 1995 decision on the merits of the complaint, the Secretary
found that Respondent unlawfully discriminated against Marrita Leveille when Respondent's
officials provided adverse employment references on two occasions (blacklisting), and because the
adverse information given on one of those occasions would remain in Complainant's Office of
Personnel Management file. Leveille v. New York Air Nat'l Guard, Case Nos. 94-TSC-3
and 4, Sec'y Dec. (Dec. 11, 1995), slip op. at 22. On remand, the ALJ recommended that
Complainant be awarded $45,000 for her resulting emotional distress, and $25,000 for injury to her
professional reputation. Leveille v. New York Air Nat'l Guard, ALJ Case Nos. 94-TSC-3
and 4, Rec. Dec. and Ord. upon Rem. (Feb. 9, 1998).
The facts underlying compensatory damage awards in other cases decided by
the Board and by the Secretary often have been far more complicated than in this case. For example,
in McCuistion v. Tennessee Valley Authority, Case No. 89-ERA-6, Sec'y Dec. (Nov. 13,
1991), slip op. at 21-22, the Secretary awarded $10,000 in compensatory damages in a case in which
the Complainant had been harassed, blacklisted, and fired. He forfeited his life, health, and dental
insurance, and he was unable to find other employment. The retaliation against him exacerbated
preexisting hypertension and caused frequent stomach problems. He experienced problems sleeping
at night, exhaustion, depression, and anxiety. In Gaballa v. The Atlantic Group, Case No.
94-ERA-9, Sec'y Dec. (Jan. 18, 1996), slip op. at 7, the complainant proffered testimony of a
psychologist on his loss of sleep and nightmares, changed eating habits, loss of interest in sex, and
humiliation. The Secretary there had to distinguish between damages caused by a confrontation with
the complainant's supervisors, which had been settled, and damages caused by discriminatory
references very similar to this case. See also Smith v. Esicorp, Inc., ARB Case No. 97-065,
ARB Dec. (Aug. 27, 1998), slip op. at 2-5, discussing numerous cases. We note that in none of these
cases was it necessary to engage in a fifty page discussion of compensatory damages to adequately
compare the case at hand with comparable cases. We therefore conclude that the 30-page limitation
found in our original briefing schedule was sufficient for Complainant to argue her case, and will
not order the Air Force to reimburse her for attorneys' fees associated with the over-limit pages.
Although the original briefing schedule did not contemplate a second brief
from the Complainant, we find that it was appropriate to give Complainant an opportunity to reply
to the Air Force's brief. However, we find that 15 pages should have been sufficient for
Complainant's reply to Respondent's rebuttal brief. Complainant's motion for leave to file a reply
to Respondent's only brief on damages is granted, but the pages are limited to 15, nunc pro
tunc.
We adopt the following methodology for recalculating the assessment for
attorneys' fees and costs as reasonable in these circumstances: the attorneys' fees and costs requested
should be reduced by the ratio that the allowed total number of pages, 45, bears to the total number
of pages filed, 79, or 57 per cent. Complainant's request for $51,532.35 in attorneys' fees and
,970.40 in costs is reduced to $29,373.44 in attorneys' fees and ,123.13 in costs.
1 In her submissions to the Board,
Complainant has noted critically that Respondent often failed to comply with the procedural expectations
of the Board. We agree that Respondent has taken a cavalier attitude toward briefing schedules, failing to
comply with the time limits and page limitations for pleadings. For example, the February 25, 1998,
briefing schedule required Respondent's rebuttal brief on the ALJ's Decision and Order on Remand to be filed
on or before May 12, 1998, and it was not to exceed 10 pages, but Respondent filed its rebuttal brief of 16
pages on May 29, 1998; Respondent also failed to comply with the time limit for filing its reply to
Complainant's Second Supplemental application for Attorneys' Fees, which was due on November 25, 1999,
instead filing a motion for extension of time on December 10, 1999. Respondent's careless regard for its
litigation responsibilities has imposed additional burdens on the Complainant, thus contributing to
Complainant's entitlement to additional fees.
2 Board Member E. Cooper Brown
did not participate in the consideration of this case.
