U.S. Department of Labor Office of Administrative Law Judges
Seven Parkway Center
Pittsburgh, Pennsylvania 15220
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
RECOMMENDED DECISION AND ORDER GRANTING ATTORNEY
FEES
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.
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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.
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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.
RECOMMENDED ORDER
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IT IS HEREBY RECOMMENDED that Respondent, Centerior Energy
shall pay to complainants' counsel the sum of $37,930.43 in attorney fees and expenses.