U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
DATE ISSUED: January 16, 1987
CASE NO.: 86-ERA-26
MARVIN LLOYD VAN BECK
Complainant
v.
DANIEL CONSTRUCTION COMPANY
Respondent
Michael Okun, Esq.
For the Complainant
Melvin Hutson, Esq.
For the Respondent
BEFORE: JOHN C. BRADLEY
Administrative Law Judge
DECISION RECOMMENDING AWARD OF ATTORNEY FEES
I
BACKGROUND
[Page 2]
This proceeding involved a claim seeking redress in accordance with
the provisions of Title 42 U.S.C. § 5851 which prohibit a Nuclear Regulatory
Commission [NRC] licensee from discharging or otherwise discriminating against
an employee by reason of his participation in an activity protected under the
statute.
On 4/22/85, Complainant was hired as an Electrical Raceways Inspector
by
Daniel Construction Company [Daniel] then engaged, under a contract with
Carolina Power & Light Company [CP&L] in the construction of the Shearon
Harris Nuclear Power Plant southwest of Raleigh at or near New Hill, NC.
At the time CP&L was an applicant for an operating license to be issued
by the NRC.
On 1/21/86, citing fears for his own safety, Complainant refused to
accept a work assignment in the Reactor Containment Building which,
at the time, was being subjected to so-called "hot function testing".
He was terminated later the same day, and this proceeding followed.
Formal hearings were held in Raleigh, NC, on 5/28-29/86, at which
time
documentary evidence was offered, and oral testimony was elicited from a
total of 13 witnesses. Post-hearing briefs were filed by the parties, and,
under date of 8/26/86, a request was issued for supplemental briefs
identifying "the specific NRC safety regulation or statutory provision
relevant to Complainant's refusal to perform inspections while hot function
testing was in progress." Each party thereafter filed a document which
purported to respond to the request.
On 9/17/86 a Recommended Decision and Order was issued providing for
certain relief, including reinstatement in Complainant's former position,
compensation for lost pay and compensation for litigation expenses, including
payment by Daniel of reasonable attorney fees. Complainant thereby qualified
as the prevailing party, subject to possible review by the Secretary of Labor.
Title 42 U.S.C. § 5851(b)(2)(B) provides in pertinent part, as
follows:
"If an order is issued under this paragraph, the Secretary, at the
request of the complainant shall assess against the person against
whom the order is issued a sum equal to the aggregate amount of all
costs and expenses (including attorneys' and expert witness fees)
reasonably incurred, as determined by the Secretary, by the
complainant for, or in connection with, the bringing of the complaint
upon which the order was issued."
[Page 3]
Under date of 10/9/86, Complainant's counsel, Michael G. Okun
[Okun], Esq., submitted several documents which, in the aggregate, constitute an
application for the award of attorney fees and expenses. Included are a
listing of what appear to be apposite time book entries on various dates
between 4/23/86 and 10/7/86, and an affidavit by J. Anthony Penry, Esq.,
attesting to prevailing hourly rates in the Raleigh area. Okun seeks
repayment of certain expenses in the amount of $840.29, and payment for
209.5 hours1 of work on the case at the
rate of $100.00 per hour.
Daniel responded under date of 11/4/86, arguing that Okun graduated
from
law school in 1980, had thereafter worked as a judge's clerk, had worked for
the National Labor Relations Board and for the North Carolina Labor Law
Center, and had failed to disclose when he actually entered into private law
practice.
[Page 7]
The presentation of Complainant's case at the oral hearing was handled
in an efficient manner and with competence. Complainant's initial brief
demonstrated a grasp of the issues and was of value in the processes which
culminated in the issuance of the recommended decision of 9/17/86. These
things considered, as well as the representations of the parties and the
level of fees found appropriate in the Jones and Hyatt cases, supra, Okun's
request for a rate of $100.00 is accepted as being within reasonable limits
for attorney's fees in the Raleigh area for work comparable to the kind
performed by Okun.
IV
THE ISSUED RELATING TO THE HOURS BILLED
A. Categories of Hours Spent
Okun has submitted excerpts from his time records purporting to
support a claim for a total of 209.5 hours. Analysis of Okun's time record summary
suggests that the hours can be grouped as follows:
Category No. of Hours
A. Prehearing activities to 5/28/86 118.00
B. Hearing process, 5/28-29/86 18.75
C. Compilation of brief, 6/5-7/31/86 50.50
D. Compilation of supplemental brief, 9/1-5/86 14.25
E. Fee application 7.00
----------------
208.50 hours
B. Inadeguacy of Explanations
Unfortunately, many of the entries are not sufficiently definitive to
allow an understanding of just what work was performed. For example, in
category A numerous entries refer merely to "research" or to "trial
preparation". Of course, it could be said that everything listed in category
A was for trial preparation.
A further factor inhibiting a reasonably clear understanding and
assessment of Okun's activity prior to the oral hearing is the practice of
[Page 8]
agglomerating two or more separate items within a single time period,
sometimes including, among other things, both "research" and "trial
preparation," without further explanation. This practice, too, has made it
difficult, if not impossible, to assess accurately the merits of Okun's
claim. While it is not necessary to know the exact number of minutes spent,
nor the precise activity for every hour spent, nevertheless the trier-of-
fact must be given "a great deal of information", Lindy Brothers Builders,
lnc. of Philadelphia v. American R. & S. San. Corp., 487 F.2d 161, 167, 169
(CA3 1973).
C. Time Spent Prior to Oral Hearing
In an effort to gain insight, the summary attached a Appendix A
was
prepared. It shows a total of 17.25 hours devoted to contact with Complainant
and identifies 7 other occasions when entries indicated, together with other
activities, further contact with Complainant. Research and general
preparation accounted for approximately 51.75 hours, contact with witnesses
other than Van Beck approximately 21.75 hours, four attempted or actual
contacts with a Department of Labor [DOL] investigator some 6.25 hours, and
mixed entries and miscellaneous some 21 hours.
Okun explained that most witnesses could be reached only later at night
(M-4), which suggests that the time so spent did not interfere with his
ability to devote more time during normal office hours to other matters.
While emphasizing his experience and expertise in the labor law field, Okun
also offered as a reason for spending hours on the case the fact that he had
not previously litigated a matter under Title 42 § 5851 (R-4), and had to
spend time researching law and regulations (R-4). Furthermore, Okun contended
(R-3) that he, "was provided nothing from the [DOL] except its recommendation
without any supporting data". Yet, he has logged a total of 6.25 hours on 4
separate occasions devoted to contact with one or more DOL investigators.
It is well established that where documentation is inadequate, it may be
proper to reduce a requested award accordingly, Hensley, supra, 461 U.S. at
433. It is, however, necessary to reach a judgment with respect to how many
hours were reasonably expended, Anderson, supra, 658 F.2d at 249. The figure
so reached is not necessarily synonomous with the actual number of hours
expended, Ryan v. Federal Deposit Insurance Corp., 24 EPD ¶ 31, 449
(USDC D.C. 1980). Hours not reasonably expended may be excluded, Hensley,
supra, 461 U.S. at 434; Daly, supra, 790 F.2d at 1078; Copeland, supra, 641
F.2d at 902.
The deficiencies in Okun's time records are such that it is difficult, if
1 Okun's listing of hours spent totals
only 208.5 hours.
2 The English case is one
in which, in support of a requested award of
approximately $543,000.00, complainant's counsel (2114 hours) and co-counsel
(923.50 hours) combined to allege over 3,000 hours in an ERA "whistleblower"
case, reduced by the ALJ to 717.75 hours. The undersigned is tolerably
familiar with that case and various of its facets. The English case is sui
generis, as the bare facts cited would suggest, and it has no precendential
value in any other proceeding involving the award of attorney's fees.
3 The criteria formulated therein
have been accepted by the Supreme Court,
Hensley, supra, 461 U.S. at 430, Blum v. Stenson, 465 U.S. 886, 894 (1984); by
the Fourth Circuit, Barber v. Kimbrell's Inc., 577 F.2d 216, 226 (CA4 1978),
Daly, supra, 790 F.2d at 1077; and by Congress, Blum, supra, 465 U.S. at 897.
4 This contention is somewhat at
odds with Okun's statement that he was
compensated at the rate of $250.00 per hour in another case which was
"handled at the same time as the instant case." With respect to the rate
claimed, Daniels has represented that there was a stipulated dismissal in the
matter Okun referred to, and, absent more information, the matter has no
precendential value here. Somewhat incongruously, Okun represented that in
May, "Counsel spent 15 week days, and most weekends, working past normal
hours
* *" (M-4). This statement will not withstand analysis. During the 4 weekends
in May preceding the hearing, Okun logged a total of 8.75 hours in this case,
4 hours each having been shown for Saturday, 5/17 and Sunday, 5/18/86. If he
meant that he worked weekends on other matters, then he was not precluded by
this case from handling them.
5 These elements would better be
weighed when considering the reasonableness
of the number of hours claimed, Blum, supra, 465 U.S. at 898.
6 Included in this experience has
been the interviewing of many hundreds of
witnesses at a variety of points in an estimated 33 different States.
7 It is not concluded that Okun's
time records bear "facial indicia of
exaggeration", as found in Ballard v. Schweiker, 724 F.2d 1094, 1097 (CA4 19
84), but merely that portions of his time were not productively expended.
11 It is understood that the
recommended decision has been contested before
the Secretary of Labor, which, depending how long the Litigation at that
level takes, could cause the amount of back pay involved to escalate sharply,
assuming Complainant continues to prevail.