The starting point for calculating a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.
Hensley [v. Eckerhart], 461 U.S. [424] at 433 [1983]. The party seeking
a fee award must submit evidence documenting the hours worked and the rates
claimed. If the documentation of hours is inadequate, the award may be reduced
accordingly. Id. at 433. Hours not reasonably expended are to be
excluded. Counsel seeking a fee award should exclude hours which are excessive,
redundant or otherwise unnecessary. The same principles govern here as in the
case of an attorney billing his client. Id. at 434. Where fee petitions
insufficiently document the hours reported, a court need not engage in a detailed
item by item reduction of the hours, an impossible burden where the
documentation is inadequate. In these instances the trier of fact has the discretion
to reduce the hours on a percentage basis. See Ecos v. Brinegan, 671 F.
Supp. 381, 398 (M.D. N.C. 1987); Goldstein v. Ebasco Constructors,
Inc., 6 DOL Decisions No. 2 217, 222-223 (1992).
Leveille, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4, slip op. at 4
(ARB Feb. 15, 2000 ), quoting Varnadore v. Oak Ridge National Laboratory, 1992-CAA-2 and 5 and 1993-CAA-1, slip op. at 2
(ALJ Dec. Sept. 23, 1994). The ARB found that the time records submitted in the case sub judice were not sufficiently
detailed, and that because the attorneys filed excessive pleadings without leave from the Board, it
was appropriate to reduce the fee and costs application by the proportion of that the pleadings
exceeded the Board order on page limitations.
[Nuclear and Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; REQUIREMENT OF EVIDENCE OF REASONABLENESS OF
HOURLY RATE
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 (ARB
Feb. 9, 1999), the ARB noted that it has held that a "complainant's attorney fee petition
must include adequate evidence concerning a reasonable hourly fee for the type of work the
attorney performed and consistent [with] practice in the local geographic area,' as well as records
identifying the date, time, and duration necessary to accomplish each specific activity, and all
claimed costs," citing Van Der Meer v. Western Kentucky Univ., 1995-ERA-38,
slip op. at 10 (ARB Apr. 20, 1998).
Because Complainant's counsel's fee petitions did not contain "evidence, such as an
affidavit of counsel, indicating that the hourly rate charged by counsel was reasonable for this
type of case or that the hourly rate was consistent with practice in the Boston area, where counsel
is located, " the ARB remanded the case to the ALJ for a supplemental recommended
decision on the reasonableness of the hourly attorney rates requested.
[Editor's note: The ARB seems to be requiring evidence of reasonableness of the
hourly rate even if the fee petition is not opposed. See Fabricius v. Town of Braintree/Park
Dept., 97-CAA-14 @ 21 (ALJ Sept. 8, 1997), where the ALJ observed that
"Respondent has failed to submit any objection to the fees and expenses requested."
Compare Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Feb. 2, 1999)
(attorney fee petition, accompanied by affidavit, approved where Respondent did not object) ].
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; INADEQUATE SPECIFICITY
In Charvat v. Eastern Ohio Regional
Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ disallowed
hours claimed in an attorney's fee petition where the petition did not contain a description
specific enough to determine whether the work was justified or connected with the instant
proceeding.
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; DETERMINATION OF HOURLY RATE
In Charvat v. Eastern Ohio Regional
Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ used the
parties' exhibits, Altman & Weil's 1994 Survey of Economics, and factors such as the
location of the attorney's firm, years of experience, expertise, the complexity of the issues
presented in the case and the success on those issues, and fee awards made in other cases before
the agency, to determine reasonable hourly rates.
[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; LODESTAR METHOD REASONABLE HOURLY RATE
In Smith v. Esicorp,
Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ARB
did not disturb the ALJ's reduction of the hourly rate requested by Complainant's attorney of
$250 an hour to $150 an hour, based on affidavits submitted by Respondent from two
experienced Houston area attorneys attesting that the customary hourly rate in that area for an
attorney with 25 years' experience is $185, and that a reasonable rate for an attorney with only
ten years experience would range from $125 to $150 per hour. Complainant also submitted an
affidavit by a local attorney supporting his claim for $250 an hour, but the ALJ found the
affidavits submitted by Respondent to be more credible.
[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; USE OF CURRENT HOURLY RATES; REJECTION OF
INTEREST
In Macktal v. Brown & Root,
Inc., 86-ERA-23 (ALJ Mar. 30, 1998), the ALJ recommended that attorneys fees
be set at the rate in effect at the time the rate is established, rather than those in effect at the time
the services were performed, citing Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983).
Because the Complainant's counsel receives a benefit for delay based on use of the current hourly
rate, the ALJ recommended that interest should not be awarded on the fee award.
[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; SUBMISSION OF REQUEST FOR REIMBURSEMENT
In LaTorre v. Coriell Institute for Medical Research, 97-ERA-46
(ALJ Dec.
3, 1997), Complainant sought reimbursement for attorneys fees, but did not
provide any
documentation. The ALJ, finding that he could not determine the
reasonableness of the request,
recommended denial of the attorney fee request, but without prejudice, in
order to afford counsel
"an opportunity to submit an application for fees, together with
supporting data, including
among other things, her professional qualifications, an itemization of the
hours expended on
complainant's behalf in this case, and her hourly billing rate." Slip
op. at 44.
[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; SUFFICIENT SPECIFICITY
The ARB will usually require a petition for attorney's fees to include the
date on which the
attorney's time was expended, the amount of hours expended, and a specific
description of the
tasks undertaken by the attorney during that time. Pillow v. Bechtel
Construction,
Inc., 87-ERA-35 (ARB Sept. 11, 1997).
ATTORNEY'S FEES; LODESTAR METHOD; FEE ITEMIZATION
[N/E Digest XVI E 3 a]
The lodestar method is employed in calculating attorney's
fees under the environmental whistleblower statutes. This method
requires multiplying the number of hours reasonably expended in
pursuing the litigation by a reasonable hourly rate. Hensley
v. Eckerhart, 461 U.S. 424 (1983).
A petition for attorney's fees must be based on records,
indicating date, time and duration necessary to accomplish the
specific activity. Each activity item should be detailed and
clearly identifiable as pertaining to the case. All claimed
costs should be specifically identified, and if possible, a
receipt appended.
In Sutherland v. Spray
Systems Environmental, 95-CAA-1 (ARB July 9, 1996),
counsel's fee itemization provided the date and time spent for
each element of activity associated with the appeal before the
Secretary. The Board stated that it is not required that counsel
share his work product with Respondent, and such elements were
self-explanatory. The Board also stated that the actual time of
day that the activity took place was inconsequential, and that
counsel had provided all necessary information.
ATTORNEY'S FEES; COSTS
[N/E Digest XVI E 3 a]
In calculating attorney's fees in whistleblower cases, the
lodestar method is used, which requires multiplying the number of
hours reasonably expended in pursuing the litigation by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S.
424 (1983). An attorney's fee petition must be based on records
indicating date, time and duration necessary to accomplish the
specific activity. Each activity should be detailed and clearly
identifiable as pertaining to the case. Similarly, all claimed
costs should be specifically identified, and if possible, a
receipt appended. Sutherland v. Spray Systems
Environmental, 95-CAA-1 (Sec'y Apr. 25, 1996).
ATTORNEY'S FEES; LODESTAR METHOD
[N/E Digest XVI E 3 a]
In calculating attorney fees under the ERA, the Secretary
uses the lodestar method, which requires multiplying the
number of hours reasonably expended in pursuing the
litigation by a reasonable hourly rate. Gaballa v.
The Atlantic Group, 94-ERA-9 (Sec'y Dec. 7, 1995)
(interim order).
ATTORNEY'S FEES; BLACKLISTING CASE; FEES CANNOT INCLUDE HOURS
RELATING TO PRIOR UNDERLYING DISCRIMINATION CASE
[N/E Digest XVI E 3 d ii]
In Gaballa v. The Atlantic Group, 94-ERA-9
(Sec'y
Dec. 7, 1995), the attorney failed to distinguish between
time spent pursuing an underlying discrimination case and
the current blacklisting case. The Secretary held that the
Complainant was only entitled in the instant proceeding to
fees incurred in furtherance of his blacklisting litigation,
and rejected claims for costs and expenses that could not be
clearly attributed to the blacklisting case.
XVI E 3 a Reasonably incurred standard; detailed fee
petition and itemization of costs
required
If the complainant is victorious on the merits of a CAA
whistleblower complaint, and requests fees and
costs, the standard is fees and costs "reasonably
incurred." 42 U.S.C. §
7622(b)(2)(B). The fee arrangement between the complainant and
counsel is not controlling; the
complainant has the burden of establishing the reasonableness of
the fees. The attorney should submit
to the ALJ a fee petition detailing the work performed, the time
spent on such work, and the hourly rate
of those performing the work. Complainant must also submit an
itemization of costs.
West v.
Systems Applications International, 94-CAA-15 (Sec'y
Apr.
19, 1995) (reversing ALJ's
recommendation of dismissal, and remanding to the ALJ for a
determination of appropriate fees and
costs).
XVI E 3 a "Lodestar"; definition of
The "lodestar" for an attorney fee award is "the
product of reasonable hours times a reasonable rate."
Lederhaus v. Paschen & Midwest Inspection Service,
Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), quoting
Pennsylvania v. Delaware Valley Citizens' Council for Clean
Air, 478 U.S. 546, 565 (1986).
XVI E 3 b Agreement between complainant
and his attorney does not affect amount respondent is required to
pay
In Lederhaus v. Paschen & Midwest Inspection Service,
Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), the complainant's
attorney's normal billing rate was $150 per hour. He and the
complainant, however, had a modified contingent fee arrangement
permitting the attorney to be paid $300 per hour up to one third
of the amount awarded to the complainant. The attorney provided
an affidavit to support his contention that attorneys in his
geographic area "would have to be confident of receiving two
to five time their normal hourly billing rates before they would
consider taking statutory fee-generating cases on a contingency
basis." Slip op. at 2, quoting Sept. 7, 1991 Fee
Application at 4. The respondent did not object, and the ALJ
adopted this rate, noting that the amount was reasonable in light
of "nature of the issues involved, the high degree of skill
with which the Complainant was represented, the amount of time
and work involved, and other relevant factors . . . ." Slip
op. at 2-3, quoting Lederhaus v. Pachen & Midwest
Inspection Service, Ltd., 91-ERA-13 (ALJ Aug. 9, 1991), slip
op. at 2 (Recommended Decision & Order Granting Attorney
Fees).
The Secretary noted that at the time the complainant's attorney
filed his original submission regarding attorneys fees, the
leading decision on the subject of attorneys fees awards under
fee shifting statutes such as the ERA was Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711
(1987) (Delaware Valley II), which left open the question
whether under the fee shifting provision of the Clean Air Act, 42
U.S.C. § 7604(d) (1988), prevailing plaintiffs' attorneys
were entitled to receive an enhancement above the
"lodestar" amount on the theory that without such
enhancement plaintiffs would face substantial difficulties in
obtaining suitable counsel.
The Supreme Court has now resolved the issue left undecided in
Delaware Valley II. In City of Burlington v. Dague, __ U.S.__, 112 S. Ct.
2638 (1992), the Court held that under the fee shifting statutory
provision of the Solid Waste Disposal Act, 42 U.S.C. §
6972(e) (1988), and the Federal Water Pollution Control Act
(Clean Water Act (CWA)), as amended, 33 U.S.C. § 1365(d)
(1988), an attorneys fee award may not be enhanced above the
"lodestar" amount in order to reflect the fact that the
prevailing party's attorney was hired on a contingent-fee basis
and therefore assumed the risk of receiving no payment at all for
his or her services.
The Secretary concluded that the statutory fee shifting provision
interpreted in Delaware Valley II are similar in all
relevant respects to that contained in the employee protection
provision of the ERA. The SWDA and the CWA authorize a court to
"award costs of litigation (including reasonable attorney
. . . fees)" to a "prevailing or substantially
prevailing party." 42 U.S.C. § 6972(e) (emphasis
added). The ERA provides that where the complainant prevails,
"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 attorney's and expert witness fees) reasonably
incurred . . . ." 42 U.S.C. § 5851(b)(2)(B)
(emphasis added). The Supreme Court specifically noted in
City of Burlington that "our case law construing what
is a 'reasonable' fee applies uniformly to all [federal fee
shifting statutes]." Id. at 2641. See Flight
Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989).
The Secretary concluded, therefore, that the holding of the
City of Burlington should be applied to the attorneys fees
authorization of the employee protection provision of the ERA.
Hence, the complainant's attorney in the instant case was not
entitled to a fee enhancement above the "lodestar"
figure.
The fact that the complainant and his counsel entered into an
agreement requiring the complainant to pay more is not a reason
for awarding that hourly rate. A respondent is liable only for
reasonable attorneys fees no matter what amount a complainant may
have contracted to pay his or her attorney. Blanchard v.
Bergeron, 489 U.S. 87, 93 (1989); Clark v. American Marine
Corp., 320 F. Supp. 709, 711 (E.D. La. 1970), aff'd,
437 F.2d 959 (5th Cir. 1971).
[Nuclear & Environmental Digest XVI E 3 b]
ATTORNEY'S FEES; CONTINGENCY FEE ARRANGEMENT NOT RELEVANT
In the ALJ's recommended decision in Charvat v. Eastern Ohio Regional Wastwater
Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), Respondent argued that a
contingency fee arrangement between Complainant and his counsel should be used as a cap on
any award of fees to Complainant's counsel. Complainant's counsel argued, in contrast, that
such an arrangement should be used to enhance an award. The ALJ found that both arguments
were wrong. The only basis for an attorney's fee award is the lodestar method. The ALJ
distinguished McCafferty v. Centerior Energy, 1996-ERA-6 (ARB Sept. 24, 1997),
because in that case what was at issue was a fee cap arrangement rather than a contingency fee
arrangement.
[N/E Digest XVI E 3 b]
ATTORNEY'S FEES; EFFECT OF CONTINGENCY FEE ARRANGEMENT
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ARB noted that
"[c]ontingent fees are usually paid out of a complainant's award; however, the
environmental whistleblower statutes, as a matter of public policy, provide for fee shifting as a
means to encourage employees to report their employers' potentially endangering
practices." The Board contined:
The longstanding practice of the Department of
Labor is to employ the "lodestar method" to determine the proper amount of
attorney's fees awarded under the environmental whistleblower statutes. Lederhaus v.
Paschen & Midwest Inspection Service, Ltd., Case No. 91-ERA-13, Jan. 13, 1993,
Sec. Final Dec. and Order, slip op. at 3-4, citing City of Burlington v. Dague,
505
U.S. 557 (1992) (attorney's fees amounts may not be enhanced above the lodestar method
under federal fee shifting statutory provisions). The lodestar method requires multiplying
the number of hours reasonably expended by a reasonable hourly rate. Backen v.
Entergy Operations, Inc., ARB No. 97-021, ALJ Case No. 96-ERA-18, ARB Dec.,
Dec. 12, 1996, slip op. at 1 n.2, citing Hensley v. Eckerhart, 461 U.S. 424
(1983). As the Secretary held in Lederhaus: "Respondents are liable only
for reasonable attorney's fees no matter what Complainant may have contracted to pay his
attorney." Id. at 5.
Id. @ 9.
[N/E Digest XVI E 3 b]
ATTORNEY'S FEES; EFFECT OF COMPLAINANTS' AGREEMENT TO PAY FLAT
AMOUNT
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), each of six Complainants
had agreed to
pay counsel $5,000 for attorney's fees for handling the case from filing the
administrative
complaint through appeal to the U.S. Supreme Court: a total of $30,000. The
ALJ had
recommended payment of attorney's fees of $36,063 and expenses of ,867.43,
rejecting
Respondent's argument that Complainants agreement with counsel operated as a
cap of $30,000.
The ARB reversed the ALJ, finding that the statutory language at 42 U.S.C.
§
5851(b)(2)(b) "reasonably incurred ... by the complainant" required
that
Respondent's liability be limited to Complainants' liability for fees and
expenses, even though it
also found that the reasonable attorney's fees in this case were over $30,000.
The ARB noted
that it was not clear why Congress choose to limit attorney's fees awards in
this way, but that the
statutory language was clear.
XVI E 3 b Fees and costs; fee arrangement is not
controlling; requirement of
itemized petition
In Delcore v. W.J. Barney Corp., 89-ERA-38 (Sec'y
June 9, 1995), the Respondents
objected to Complainant's attorney fee request on the ground that
the supporting affidavit did not
indicate that a bill was ever submitted to the Complainant by his
counsel or that the Complainant every
paid any of the time charges, or that the counsel ever expected
to be paid.
The Secretary held that the fee arrangement between a complainant
and his or her attorney is not
controlling. Rather, the complainant has the burden of
establishing the reasonableness of the fee.
Counsel must submit a fee petition detailing the work performed,
the time spent on such work, and the
hourly rate of those performing the work. The complainant must
also submit itemized costs.
Considering the fee petition and the objections, the Secretary
found that the fee petition was
reasonable.
XVI E 3 b "Reasonably incurred" expenses; fee
arrangement not controlling
If an ALJ issues a recommended decision on the merits finding
that the respondent violated an employee protection provision,
the ALJ must, if requested by the complainant, assess against the
respondent such fees as were "reasonably incurred." 42
U.S.C. § 7622(b)(2)(B). In such a case, a fee arrangement
between the complainant and his or her counsel is not
controlling. Rather, the complainant has the burden to establish
the reasonableness of the fee, and, to accomplish this, must
submit to the ALJ a fee petition detailing the work performed,
the time spent on such work, and the hourly rate of those
performing the work. On review of the fee petition and
objections, if any, raised by the respondent, the ALJ would
determine a reasonable fee to be paid by the respondent to the
complainant's attorney. See Lindy Bros. v. American Radiator
and Standard Sanitary Corp., 540 F.2d 102 (3rd Cir. 1976);
Lindy Bros. v. American Radiator and Standard Sanitary
Corp., 487 F.2d 161 (3rd Cir. 1973); and National Ass'n of
Concerned Veterans v. Secretary of Defense, 675 F.2d 1319
(D.C. Cir. 1982), for applicable standards for award of attorney
fees.
Tinsley v. 179 South Street Venture, 89-CAA-3
(Sec'y Aug. 3, 1989) (order of remand).
XVI E 3 b Attorney's fees
The fact that Complainant and his counsel entered into an
agreement requiring Complainant to pay a maximum of $125/hour is
not a reason for awarding that hourly rate. Blackburn v.
Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30,
1991).
[Nuclear and Environmental Whistleblower Digest XVI E 3 c]
ATTORNEY FEE MARKET; AVAILABILITY OF LOCAL COUNSEL
In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB affirmed the ALJ's finding that it was appropriate to determine hourly rates for an attorney fee award based on the Louisville market (the location of the Complainant's counsels' office) where the Complainant presented affidavits indicating that competent, willing counsel were not available to the Complainant in the Paducah, Kentucky hearing location. The ARB rejected the Respondent's argument on appeal that the case was not complex and that any local attorney with some employment law experience could have handled the matter, observing that the Respondent had not used its local counsel, but had retained instead a national law firm located in Washington, DC. The ARB's review of the record convinced it that it was reasonable for the Complainant to retain counsel with expertise in federal whistleblower litigation.
XVI E 3 c Hourly rate approved
In Van Beck v. Daniel Construction Co., 86-ERA-26
(Sec'y Dec. 3, 1993) (decision and order on attorney's fees), the
Secretary approved a fee application employing an hourly rate of
$100 for work before the Secretary. There were no objections by
Respondent.
[Nuclear & Environmental Digest XVI E 3 c]
HOURLY RATE; WHETHER TO SET BASED ON HEARING LOCATION OR LOCATION OF ATTORNEY'S OFFICE
In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), Complainant billed at the hourly rate for the location of his attorneys' office in Seattle, Washington rather than for Colorado where the hearing took place. The ALJ noted that hourly rates are normally based on the locality of the hearing, but found that the specialized nature of the case and the unavailability of local counsel were grounds for exception to that rule, citing National Wildlife Federation v. Hanson, 859 F.2d 313 (4th Cir. 1988). Although appeals were taken from the ALJ's recommended decision, the parties settled on appeal, and the ARB did not review this ruling. See Graf v. Wackenhut Services, L.L.C., ARB No. 01-041, ALJ No. 1998-ERA-37 (ARB Mar. 30, 2001).
[Nuclear & Environmental Digest XVI E 3 c]
ATTORNEY FEES; RELEVANT GEOGRAPHIC MARKET
In Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Mar. 15,
2000), the ALJ found that the relevant geographic market for setting the appropriate hourly rate
for attorney's fees was Las Vegas where most of the participants including the Complainant,
Respondent, counsel for Respondent, lead counsel for Complainant, and the witnesses were
located in Las Vegas; the workplace violations occurred in Las Vegas or nearby; the hearing was
conducted in Las Vegas. The ALJ found that the participation of one counsel for Complainant
from the Bay Area of California was not, standing alone, a reason to examine a fee structure
beyond Las Vegas. Accordingly, the ALJ declined to accept Complainant's proof of the hourly
rate for an attorney with similar experience practicing in the Bay Area, or the affidavit of lead
counsel of the hourly rate for similarly experienced attorneys practicing in Las Vegas where it did
not indicate actual knowledge of specific Las Vegas law firms' employment of such associates.
Rather, the ALJ set the rate based on an affidavit from the Administrator of the largest law firm
in Nevada, submitted by Respondent.
The ALJ disallowed two hours spent in consultation with an attorney's fee expert in
preparation for submission of her petition since it focused on the wrong relevant geographic area.
[Nuclear & Environmental Digest XVI E 3 c]
ATTORNEY'S FEES; JUDICIAL NOTICE OF ALTMAN WEIL SURVEY
In Sayre v. Alyeska Pipeline Service
Co., 1997-TSC-6 (ALJ May 18, 1999), the ALJ recommended a finding on the merits
in favor of the Complainant. Respondent raised objections to an attorney fee application, one of which
involved the 1998 Altman Weil Survey, requesting in essence that the ALJ take judicial notice of
the survey as to the hourly rates for attorneys in the applicable jurisdiction. The ALJ stated that he may
take judicial notice of the survey, and permitted briefs by Complainants' counsel, and rebuttal by
Respondents, prior to the issuance of a supplemental recommended decision and order addressing the
attorney fee awards.
[N/E Digest XVI E 3 c]
ATTORNEY'S FEES; REDUCTION OF HOURLY FEE WHERE COUNSEL DID NOT
PROVIDE AFFIDAVIT OF QUALIFICATIONS OR REASONABLE COMMUNITY
BILLING RATES
In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept.
11,
1997), the ARB rejected Complainant counsel's request for approval of an
hourly billing rate of
$250, and found instead a reasonable hourly rate of $125 where counsel did not
provide an
affidavit attesting to his qualifications or that $250 was a reasonable hourly
billing rate in his
community. The ARB noted that counsel had stated that $250 per hour is less
than the rate
charged by opposing counsel, but found the statement inadequate to demonstrate
entitlement to
that hourly rate.
ATTORNEY'S FEES; RATES
[N/E Digest XVI E 3 c]
In a case arising in Columbia, Missouri, an attorney fee
hourly rate of $150.00 per hour was approved for the lead
counsel, while $85.00 per hour was approved for counsel for a
second Complainant. Zinn v. University of
Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996).
XVI E 3 c Attorney's fees; hourly rate; customary rate;
compensation for delay in receipt
The Secretary in Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y Sept. 8, 1992), reduced
the complainant's requested hourly rate of $100 for attorney's
fees where the respondent submitted the affidavit of an area
practitioner documenting a reduced rate. The Secretary, however,
employed the upper limit of $75 per hour to compensate for a
delay in the receipt of payment. Missouri v. Jenkins, 491
U.S. 274, 282-284 (1989); Ramos v. Lamm, 714 F.2d 546, 555
(10th Cir. 1983) (hourly rate should reflect rates in effect at
time fee is established, rather than those in effect at time
services were performed); Copeland v. Marshall, 641 F.2d
880, 893 (D.C. Cir. 1980).
XVI E 3 c $150 is not excessive hourly rate
In Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y June 30, 1993), an hourly rate of
$150 in Complainant's fee application was found not to be
excessive.
XVI E 3 c Attorney's fees
In the Fourth Circuit the "community in which the court sits
is the appropriate starting point for selecting the proper rate
[for an award of attorney's fees]." National Wildlife
Federation v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988).
Where the ALJ had based the hourly rate in part on the fact that
the hearing was held in a more metropolitan area than the
community where counsel was located, but the record was devoid of
any evidence as to the prevailing hourly rate in either location,
the Secretary remanded the issues of counsel's fee to the ALJ for
a determination of the prevailing rate in the relevant market.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
XVI E 3 c Attorney fees; reasonable hourly rates
A reasonable attorney's fee is based on rates prevailing
in the community for similar services.
Blum v. Stenson, 465 U.S. 886, 896 and n.11 (1984). In
Jenkins v. United States
Environmental Protection Agency, 92-CAA-6 (Sec'y Dec.
7,
1994), the Secretary found hourly
rates ranging from $225 to 190 for attorneys, and $45 for a law
clerk, to be reasonable for trial work
before the ALJ, based on the materials submitted by counsel in
support of their fee petition.
Hourly rates of $100 for attorneys and $45 for law clerks was
found to be reasonable for work relating
to work before the Secretary.
XVI E 3 d i Attorney's fees;
nonproductive hours
The Secretary in Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y Sept. 8, 1992),
disallowed attorney's fees for nonproductive hours (i.e.,
"hours that should not have been spent." Copeland
v. Marshall, 641 F.2d 880, 902-903 (D.C. Cir. 1980)).
Productive hours -- i.e., those spent in research bearing on an
issue central to the case (whether complainant's complaints were
covered substantively under the SWDA whistleblower provision)
were allowed.
[Nuclear & Environmental Digest XVI E 3 d i]
ATTORNEY FEES; REDUCTION BASED ON LIMITED SUCCESS
In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), the ALJ recommended reducing the lodestar by 30% based on Complainant's partial success in the litigation where the original ALJ who presiding over the case found that only one of three alleged instances of retaliation stated a meritorious ERA whistleblower complaint. Although appeals were taken from the ALJ's recommended decision, the parties settled on appeal, and the ARB did not review this ruling. See Graf v. Wackenhut Services, L.L.C., ARB No. 01-041, ALJ No. 1998-ERA-37 (ARB Mar. 30, 2001).
[Nuclear & Environmental Digest XVI E 3 d i and XVI E 3 d iii]
ATTORNEY FEES; RESEARCH TIME; RELEVANCY V. EXCESSIVENESS
In Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Mar. 15,
2000), Respondent objected to claimed hours for legal research on the ground that the attorney
failed to state the substance of her research and therefore its relevance. The ALJ found that
relevancy is not the test since legal research may entail lines of inquiry that lead no where such
isolation of the issues "weeds out the unproductive background noise of a lawsuit."
Rather, the ALJ found that the test is whether the time devoted to research was excessive.
Considering the complexity and scope of the issues litigated and the attorney's expertise as
reflected in her hourly rate (equivalent to a second-year associate), the ALJ found that the time
claimed was not unreasonable.
[Nuclear and Environmental Whistleblower Digest XVI E 3 d ii]
ATTORNEY FEES; MEETING WITH NRC MUST BE SHOWN TO BE CONNECTED TO WHISTLEBLOWER LITIGATION TO BE COMPENSABLE
In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB denied attorney fees for hours meeting with the NRC where the descriptions of the work were vague and it was not self-evident that the meetings were connected to the whistleblower litigation.
XVI E 3 d ii Relationship of evidence to
case
In McMahan v. California Water Quality Control Board, San
Diego Region, 90-WPC-1 (Sec'y July 16, 1993), the ALJ
disallowed the recovery of a portion of Complainant's attorney's
fees largely because he believed that Complainant presented
"peripheral matters . . . not germane" to a finding of
unlawful discrimination. Thus, it appeared that the ALJ
determined that fees charged for developing this evidence were
not reasonably incurred. See 33 U.S.C. § 1367(c).
The Secretary disagreed with the ALJ's determination. Reviewing
the material, the Secretary concluded that the evidence
referenced by the ALJ was "not so unrelated to the case as
to warrant a reduction in Complainant's fee award."
[Nuclear & Environmental Digest XVI E 3 d ii]
ATTORNEY'S FEES; REDUCTION FOR WORK ON POLICY ARGUMENTS AND
PERIPHERAL AND IRRELEVANT ISSUES
In Smith v. Esicorp,
Inc.,1993-ERA-16 (ARB Aug. 27, 1998), the ALJ
reduced the number of hours claimed by Complainant's attorney fee application by 15% because
they represented work on "policy arguments and peripheral and irrelevant issues,"
such as discussing Complainant's entitlement to back pay after the Secretary found that Smith's
termination was not a violation of the ERA. The ALJ also found that Complainant's briefs were
repetitive, and that Complainant Smith spent unnecessary and wasteful time on an attempt to add
a party. The ARB found that the adjustment was reasonable.
[N/E Digest XVI E 3 d ii]
ATTORNEYS FEES; DISALLOWANCE FOR RESEARCH ON IRRELEVANT ISSUE
OR INSUFFICIENT DESCRIPTION
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997), a case
involving a roofing company, the Board disallowed attorneys fees sought for
investigating,
discussing, or copying the rules concerning asbestos and roofing because the
existence of
asbestos
on the roof was not an issue in the case. The Board also disallowed items in
the fee request that
were not sufficiently described to permit the Board to determine whether they
pertained to
representing Complainant in the DOL proceeding.
XVI E 3 d ii Reduction where counsel pursued unnecessary and
irrelevant matters
In Varnadore v. Martin Marietta Energy Systems,
Inc., 94-CAA-2 and 3 (ALJ June 23, 1995), the ALJ
recommended reduction of Complainant's counsel's fee petition by
25% where the Complainant only prevailed on one of five claims
(resulting in expungement of a performance appraisal), and where
counsel spent many hours pursuing unnecessary and irrelevant
matters, and included much irrelevant material in pleadings.
[Nuclear & Environmental Digest XVI E 3 d ii]
ATTORNEY FEE; DISCUSSION OF COMPLAINANT'S SAFETY REPORT WITH
STATE ATTORNEY GENERAL
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB disallowed time claimed in an attorney fee
petition for counsel's discussions with a State Attorney General's office apparently concerning
Complainant's safety report to the State department of environmental protection. The ARB
found that the DOL proceedings did not depend on the outcome of any actions the State might
take in response to Complainant's environmental report.
16 e 3 d 3
XVI E 3 d iii Attorney's fees; average
billable hours
The Secretary declined to reduce an award of attorney's fees on
the basis of complainant's counsel's alleged
"inexperience" where examination of the daily totals
shows work generally to fall below the average "six to seven
billable hours per day for a five day week" identified by
the court in Ramos v. Lamm, 713 F.2d 546, 553-554 (10th
Cir. 1983), and where all hours exceeding the average where
allocated to discrete research, briefing and discovery projects
which reasonably may have required extended effort.
Williams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y Sept. 8, 1992).
[Nuclear & Environmental Digest XVI E 3 d i and XVI E 3 d iii]
ATTORNEY FEES; RESEARCH TIME; RELEVANCY V. EXCESSIVENESS
In Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Mar. 15,
2000), Respondent objected to claimed hours for legal research on the ground that the attorney
failed to state the substance of her research and therefore its relevance. The ALJ found that
relevancy is not the test since legal research may entail lines of inquiry that lead no where such
isolation of the issues "weeds out the unproductive background noise of a lawsuit."
Rather, the ALJ found that the test is whether the time devoted to research was excessive.
Considering the complexity and scope of the issues litigated and the attorney's expertise as
reflected in her hourly rate (equivalent to a second-year associate), the ALJ found that the time
claimed was not unreasonable.
XVI E 3 d iv Time spent discussing case
with the press
In Fischer v. Town of Steilacoom, 83-WPC-2 (ALJ May
2, 1983) (settled before the Secretary, see Order
Approving Settlement (Sec'y Dec. 1, 1983), the ALJ excluded from
the recommended attorney fee award time spent by Complainant's
counsel discussing the matter with the press.
[Nuclear & Environmental Digest XVI E 3 d iv]
ATTORNEY FEE; TIME SPENT TALKING TO THE MEDIA
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB recognized that "[a]ttorney discussions
with the media may be recovered in certain instances." The Board wrote:
For example, in a case discussing entitlement to attorney fees under Title VII,
the district court had determined that counsel's public relations work "represented a
valid effort to lobby the San Francisco Board of Supervisors, and that 'obtaining the
support of the board of Supervisors . . . was as vital to the consent decree [that resolved
the litigation] as were the negotiations with the City's administrative officials.'"
Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992),
rehearing denied and vacated in other part, 984 F.2d 345 (9th Cir. 1993)
(quoting the district court, 748 F.Supp. at 1423). The Ninth Circuit determined
that attorney time spent in press conferences and public relations work "directly and
intimately related to the successful representation of a client" was compensable, but
"any hours . . . for public relations work which did not contribute, directly, and
substantially, to the attainment of appellees' litigation goals" should not be
disallowed. 976 F.2d at 1545.
The Board, however, found that in the case sub judice there had been no
connection between the attorney time spent talking with the press and the outcome of the
litigation, and therefore disallowed the request for fees for media contacts.
[N/E Digest XVI E 3 d iv]
ATTORNEY'S FEES; MEETING WITH REPORTER
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB July 6, 1998), Respondent objected to the billing by
Complainant's attorney for a meeting with a reporter. The ARB found that without further
explanation, such a meeting appeared to be ancillary to the legal proceedings necessary to pursue
the litigation in this case, and therefore the charge should be rejected.
[N/E Digest XVI E 3 d v]
ATTORNEYS FEES; IMPROPER TO REDUCE FEES ON GROUND THAT THEY ARE
DISPROPORTIONATE TO AMOUNT OF BACK PAY SOUGHT
In Hoffman v. Bossert,
94-CAA-4 (ARB Jan. 22, 1997), the ALJ erred
in reducing attorneys fees on the ground that they were disproportionate to
the back pay sought.
The Board found that the ALJ had proposed "a standard that would chill
attorneys from
taking moderately complicated cases where the complainant earned modest wages
and hence the
back pay sought would be small in relation to the attorney time expended.
Moreover, in
discrimination cases, the Supreme Court has rejected any requirement of
proportionality between
the damages and the attorney's fees awarded. Hensley v. Eckerhart, 461
U.S. 424
(1983). See also Abrams v. Lightolier, Inc., 50 F.3d 1204, 1221 (3d
Cir. 1995)."
Slip op. at 6.
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; SET-OFF FOR MONIES RECEIVED IN EARLIER
SETTLEMENT
In Macktal v. Brown & Root,
Inc., 86-ERA-23 (ALJ Mar. 30, 1998), the matter was on remand from the ARB
for a calculation of attorney's fees. The ARB had dismissed Complainant's case on the merits,
but found that Complainant was entitled to attorneys fees because he was successful in litigation
of an issue involving the legality of a settlement from earlier in the proceeding. In making his
recommendation on attorney's fees, the ALJ concluded that Respondent was entitled to a set-off
for the amounts it had paid for attorney's fees in the earlier settlement, citing Oubre v.
Entergy Operations, Inc., 118 S.Ct. 838 (1998) and Wolf v. Frank, 477 F.2d 467,
480 (1973).
XVI E 3 d 5 Attorney fees;
reductions
In
Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (Sec'y Dec. 7,
1994), the Secretary found some claims for attorney fees to be
inadequately documented, and reduced
or disallowed them as excessive or redundant, including:
- A reduction by 50 percent the hours billed for travel time.
In re Agent Orange Products
Liability Litigation, 611 F. Supp. 1296, 1320, 1349
(E.D.N.Y. 1985).
- A disallowance of one attorney's fees where two attorneys
were present at a deposition.
- A disallowance of claims for Freedom of Information
Act-related activities because they were
not shown to have furthered the instant litigation.
- A reduction by five percent of the hours expended in
briefing that appeared excessive and
concerning which the descriptions were unduly
abbreviated.
The Secretary allowed a less exact record of work done on
appellate work, noting however, that such
documentation would not suffice to substantiate a fee petition
for services at the trial or hearing level of
a proceeding.
[Nuclear & Environmental Whistleblower Digest XVI E 3 d v]
ATTORNEY'S FEES; NO DOWNWARD ADJUSTMENT FOR ULTIMATELY UNSUCCESSFUL ARGUMENT WHERE RAISED BELOW AND WHERE COMPLAINANT NEVERTHELESS ACHIEVED SIGNIFICANT REMEDIES
In Moder v. Village of Jackson, Wisconsin, ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB Oct. 28, 2003), the ARB had affirmed the ALJ's recommended decision finding a violation of the whistleblower provision of the FWPCA, albeit it adjusted the backpay award upwards but rejected the ALJ's recommendation to award compensatory damages and front pay. Complainant's counsel filed an unopposed petition for attorney's fees. The ARB found the petition sufficiently detailed to award the full amount requested. The ARB declined to make a downward adjustment for work performed on the now unsuccessful argument concerning compensatory damages and front pay, noting that Complainant had achieved significant remedies and remained the prevailing party. The ARB also noted that the fee petition had not sought fees incurred for an unsuccessful argument raised for the first time on review and rejected by the ARB.
[Nuclear & Environmental Whistleblower Digest XVI E 3 d v]
ATTORNEY'S FEES; FEES FOR PARTIALLY SUCCESSFUL RECONSIDERATION OF EARLIER FEE AWARD IN PROPORTION TO SUCCESS
Where Complainant's attorney was partially successful in obtaining an increase in the amount of attorney's fees awarded in motions related to obtaining ARB reconsideration of its prior order on such fees, the Board permitted additional fees for such work in proportion to the increase in fees obtained. Leveille v. New York Air National Guard, ARB No. 98 079, ALJ Nos. 1994 TSC 3 and 4 (ARB Dec. 16, 2003) (earlier in the order, the Board discussed its admonishment in regard to the filings relating to the reconsideration B which has engendered a series of filings and orders that it would not permit additional briefing and further requests for fees; it appears that the proportionate reduction may have been influenced by this procedural history).
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEES; REDUCTION BASED ON BILLING JUDGMENT
In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), the ALJ recommended reducing the lodestar by 5% based "billing judgment" -- the notion that some items billed would not have been charged a private client. Although appeals were taken from the ALJ's recommended decision, the parties settled on appeal, and the ARB did not review this ruling. See Graf v. Wackenhut Services, L.L.C., ARB No. 01-041, ALJ No. 1998-ERA-37 (ARB Mar. 30, 2001).
[Nuclear and Environmental Whistleblower Digest XVI E 3 d 5 ]
ATTORNEY'S FEES; REDUCTION FOR FILING BRIEFS EXCEEDING ARB PAGE
LIMITATIONS
In Leveille v. New York Air National
Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the
ARB reconsidered an earlier decision reducing requested attorney's fees for 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
ARB had erroneously based the earlier ruling in part on the ground that Complainant's attorney
had failed to file for leave to exceed the page limits and to file a reply brief.
Complainant argued that the brief on compensatory damages needed to exceed the page
limits because an extensive review of prior awards for emotional suffering and damage to
professional reputation was required. The ARB disagreed, finding that the instant case was in
fact less complicated than other cases in which the complainants had not found it necessary to
file briefs in excess of the ARB's page limit. The ARB, however, found that the reply brief was
warranted, albeit limited to 15 pages.
The ARB calculated a reduction in the requested attorney fee by using the ratio that the
total number of pages filed exceeded the total number of pages allowed.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; RESPONSE TO NOTICE OF PROPOSED REMOVAL
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), Respondent objected a fee request for efforts made by
Complainant's counsel in response to a Notice of Proposed Removal, Respondent arguing that
these efforts were not made in connection with the whistleblower complaint. The ARB,
however, found that the notice itself was the final incident of hostility toward Complainant and
therefore counsel's response thereto was reasonably made "for, or in connection
with" the whisteblower complaint.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; DISCUSSION OF COMPLAINT WITH DOL INVESTIGATOR
Time spent by Complainant's counsel in Berkman v. U.S. Coast Guard
Academy, ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000),
discussing the complaint with the DOL investigator were allowed by the ARB. Respondent had
argued that this time was "in anticipation of litigation" rather than "in
furtherance of litigation." The ARB, however, held that the proceeding begins when it first
reaches the Secretary, triggering her obligation to conduct an investigation.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; PURSUIT OF DISABILITY RETIREMENT WHERE
COMPLAINANT WAS CONSTRUCTIVE DISCHARGED
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB denied Respondent's request to disallow
Complainant's attorney fee request for time spend in pursuit of Complainant's disability
retirement where the ARB found that Complainant was constructively discharged because of
intolerable harassment and Respondent had caused the deterioration in Complainant's health.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; TIME SPENT AT DINNER TO DISCUSS POSSIBLE
SETTLEMENT
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB allowed a fee request for time spent at a
dinner with opposing counsel during which counsel discussed possible settlement, although it
reduced the time allowed based on Respondent's counsel's argument that the actual time spent
discussing settlement was less than claimed. The ARB noted that the cost of the dinner was not
included in the fee petition.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; CONSULTATION WITH "CO-COUNSEL"
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), Respondent requested a reduction of the attorney fee
petition because of the vagueness of items listing consultation with co-counsel. Although only
one attorney had entered an appearance in the matter, the ARB did not reduce this request,
finding that it could not dispute the reasonableness of consultation with another attorney in a
preparation for a rather extensive hearing in a difficult administrative case.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEE; TIME SPENT SEEKING FUNDING FOR COMPLAINANT'S
PROSECUTION OF COMPLAINT
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB found that Complainant could be reimbursed
for attorney time spent seeking funding from a public interest group for Complainant's
prosecution of the complaint.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY FEES; REDUCTION FOR BRIEF THAT EXCEEDED PAGE
LIMITATION
In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ
Nos. 1994-TSC-3 and 4 (ARB Feb. 15, 2000 ), the ARB reduced an attorney fee application for a
reply brief that was filed without authorization by the ARB's briefing order, and which exceeded
the 30 page limitation by 22 pages.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY'S FEES; MORE THAN ONE ATTORNEY ATTENDING DEPOSITION;
MORE THAN ONE ATTORNEY ATTENDING HEARING
In Charvat v. Eastern Ohio Regional
Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ found that
more than one attorney attending a deposition is excessive, and reduced attorney fees awards
accordingly. The ALJ, however, declined Respondent's request to reduce the award because
each of Complainant's attorneys attended the hearing, but did not all examine witnesses. The
ALJ found that the attorneys had worked as a team at the hearing.
[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY'S FEES; REDUCTION FOR MONIES EARLIER PAID FOR ATTORNEY'S
FEES IN A SETTLEMENT AGREEMENT THAT WAS LATER REJECTED
In Macktal v. Brown & Root,
Inc.,1986-ERA-23 (ARB Oct. 16, 1998),
a settlement agreement had been rejected by the Secretary. The Secretary declined to order
Complainant to return the monies that had been paid under that settlement agreement, holding
that he had no authority under the ERA to order restitution of the money.
After significant additional litigation, the case was remanded to the ALJ for calculation of
attorney fees. The ALJ recommended crediting Respondent with $20,000 in attorneys fees
already paid to Complainant under the earlier, rejected settlement agreement. Before the ARB,
Complainant argued that the same logic used by the Secretary in declining to require restitution
by Complainant should apply to any offset of the attorney fee award. The ARB found the two
situations distinguishable: "It is true that there is no authority in the ERA to order
repayment of money paid under a settlement agreement later found illegal. ... However, we think
it would be an abuse of our authority under the ERA to award attorney's fees if we were to
award, in effect, a windfall double payment of attorney's fees to [Complainant] by failing to
credit [Respondent] with the amount already paid." Id. @ 2 (citation omitted).
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; REDUCTION FOR EXCESSIVE TIME REVIEWING
TRANSCRIPT
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), attorney's fees were
claimed for 23.4
hours for reviewing the hearing transcript. The ARB rejected the hours
claimed, and reduced
them to 13 hours, where the hearing only lasted about 6.5 hours, and time
spent preparing the
post-hearing brief was separately claimed.
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; MEETING WITH NRC
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), attorney's fees were
claimed for a 3.6
hour meeting with the NRC. The ARB disallowed the claim because Complainants'
attorneys
had not established that the meeting was connected to the instant litigation.
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; TIME SPENT DRAFTING SHORT LETTER
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), Respondent objected to 3.2
hours being
claimed for drafting a three sentence letter. The ARB allowed the claim where
research
regarding the filing of the letter might have accounted for the time allotted.
[N/E Digest XVI E 3 d v]
ATTORNEY FEES; DISALLOWANCES
In Hoffman v. W. Max Bossert, 94-CAA-4 (ARB Aug. 8, 1997), the
ARB disallowed or reduced charges for items on an attorney fees petition for
- attorney time to hand deliver briefs where either courier service or
overnight mail
was available
- receipt of the ALJ's recommended decision and a decision of the
Secretary, since
receiving a document is a ministerial task. (the ARB, however, allowed
charges for
reviewing the ALJ's and the Secretary's decisions)
- excessive time for the tasks listed (e.g., reviewing DOL
procedural rules for
filing briefs, revising a service list, attorney time to walk to a law library
to look up proper
citations)
XVI E 3 d vi ATTORNEY'S FEES; INCREASE IN
RATE; REFERENCE TO PRIOR REQUESTS
[N/E Digest XVI E 3 d vi]
In Gaballa v. The Atlantic Group, 94-ERA-9
(Sec'y
Dec. 7, 1995), the Secretary noted that he had determined an
hourly rate of $190 to be reasonable in a 1994 case in which
Gaballa's attorney had appeared. The Secretary found that a
5% increase in that attorney's hourly rate -- to $200 -- was
appropriate. The attorney had requested a rate set at $225
per hour.
ATTORNEY'S FEES; LARGER AWARD TO LEAD COUNSEL
[N/E Digest XVI E 3 d 6]
A larger award to the lead counsel is appropriate.
Zinn v. University of Missouri, 93-ERA-34 and 36
(Sec'y Jan. 18, 1996).
XVI E 3 e i No fee enhancement based on
difficulty obtaining attorney
In Lederhaus v. Paschen & Midwest Inspection Service,
Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), the complainant's
attorney's normal billing rate was $150 per hour. He and the
complainant, however, had a modified contingent fee arrangement
permitting the attorney to be paid $300 per hour up to one third
of the amount awarded to the complainant. The attorney provided
an affidavit to support his contention that attorneys in his
geographic area "would have to be confident of receiving two
to five time their normal hourly billing rates before they would
consider taking statutory fee-generating cases on a contingency
basis." Slip op. at 2, quoting Sept. 7, 1991 Fee
Application at 4. The respondent did not object, and the ALJ
adopted this rate, noting that the amount was reasonable in light
of "nature of the issues involved, the high degree of skill
with which the Complainant was represented, the amount of time
and work involved, and other relevant factors . . . ." Slip
op. at 2-3, quoting Lederhaus v. Pachen & Midwest
Inspection Service, Ltd., 91-ERA-13 (ALJ Aug. 9, 1991), slip
op. at 2 (Recommended Decision & Order Granting Attorney
Fees).
The Secretary noted that at the time the complainant's attorney
filed his original submission regarding attorneys fees, the
leading decision on the subject of attorneys fees awards under
fee shifting statutes such as the ERA was Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711
(1987) (Delaware Valley II), which left open the question
whether under the fee shifting provision of the Clean Air Act, 42
U.S.C. § 7604(d) (1988), prevailing plaintiffs' attorneys
were entitled to receive an enhancement above the
"lodestar" amount on the theory that without such
enhancement plaintiffs would face substantial difficulties in
obtaining suitable counsel.
The Supreme Court has now resolved the issue left undecided in
Delaware Valley II. In City of Burlington v. Dague, __ U.S.__, 112 S. Ct.
2638 (1992), the Court held that under the fee shifting statutory
provision of the Solid Waste Disposal Act, 42 U.S.C. §
6972(e) (1988), and the Federal Water Pollution Control Act
(Clean Water Act (CWA)), as amended, 33 U.S.C. § 1365(d)
(1988), an attorneys fee award may not be enhanced above the
"lodestar" amount in order to reflect the fact that the
prevailing party's attorney was hired on a contingent-fee basis
and therefore assumed the risk of receiving no payment at all for
his or her services.
The Secretary concluded that the statutory fee shifting provision
interpreted in Delaware Valley II are similar in all
relevant respects to that contained in the employee protection
provision of the ERA. The SWDA and the CWA authorize a court to
"award costs of litigation (including reasonable attorney
. . . fees)" to a "prevailing or substantially
prevailing party." 42 U.S.C. § 6972(e) (emphasis
added). The ERA provides that where the complainant prevails,
"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 attorney's and expert witness fees) reasonably
incurred . . . ." 42 U.S.C. § 5851(b)(2)(B)
(emphasis added). The Supreme Court specifically noted in
City of Burlington that "our case law construing what
is a 'reasonable' fee applies uniformly to all [federal fee
shifting statutes]." Id. at 2641. See Flight
Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989).
The Secretary concluded, therefore, that the holding of the
City of Burlington should be applied to the attorneys fees
authorization of the employee protection provision of the ERA.
Hence, the complainant's attorney in the instant case was not
entitled to a fee enhancement above the "lodestar"
figure.
The fact that the complainant and his counsel entered into an
agreement requiring the complainant to pay more is not a reason
for awarding that hourly rate. A respondent is liable only for
reasonable attorneys fees no matter what amount a complainant may
have contracted to pay his or her attorney. Blanchard v.
Bergeron, 489 U.S. 87, 93 (1989); Clark v. American Marine
Corp., 320 F. Supp. 709, 711 (E.D. La. 1970), aff'd,
437 F.2d 959 (5th Cir. 1971).
16 E 3 e i Enhancement above lodestar based on contingent
fee arrangement
In City of Burlington v. Dague, __ U.S. __, 112 S. Ct. 2638 (1992), the United States Supreme
Court considered whether a court, in determining an award of
reasonable attorney's fees under section 7002(e) of the Solid
Waste Disposal Act, 42 U.S.C. § 6972(e), or section 505(d)
of the Federal Water Pollution Control Act (Clean Water Act), 33
U.S.C. § 1365(d), may enhance the fee award above the
"lodestar" amount in order to reflect the fact that the
party's attorneys were retained on a contingent-fee basis and
thus assumed the risk of receiving no payment at all for their
services.
The Court held that enhancement for contingency is not permitted
under the fee-shifting statutes at issue. The Court reasoned
that
[A]n enhancement for contingency would likely
duplicate in substantial part factors already subsumed
in the lodestar. The risk of loss in a particular case
(and, therefore, the attorney's contingent risk) is the
product of two factors: (1) the legal and factual
merits of the claim, and (2) the difficulty of
establishing those merits. The second factor, however,
is ordinarily reflected in the lodestar--either in the
higher number of hours expended to overcome the
difficulty, or in the higher hourly rate of the
attorney skilled and experienced enough to do so. . . .
Taking account of it again through lodestar enhancement
amounts to double-counting. . . .
Id. at 2641 (citations omitted).
Among other additional reasons for rejecting the contingency
enhancement, the Court indicated that an important factor was
that contingency enchancement would be contrary to the goals of
avoiding burdensome satellite litigation and ready
administrability. Id. at 2643.
[Editor's note: Dague was not a whistleblower case;
however the attorney's fee principles discussed are directly
relevant. See Lederhaus v. Pashen & Midwest Inspection
Service, Ltd., 91-ERA-13 (Sec'y Jan. 13, 1993), for the
Secretary's discussion of Dague.]
XVI E 3 e ii Additur for delay
Citing Title VII precedent to the effect that prevailing
complainants may recover interest on attorneys' fees, the
Secretary indicated that an additur to the lodestar fee may be
awarded in compensation for delay in payment. She found,
however, that the complainant's counsel's additur in the instant
matter was excessive. Larry v. The Detroit Edison
Co., 86-ERA-32 (Sec'y May 19, 1992).
[Editor's note: This decision may no longer be relevant given
the Supreme Court's decision in City of Burlington v.
Dague, __ U.S. __, 112 S. Ct. 2638 (1992). See
Lederhaus v. Pashen & Midwest Inspection Service, Ltd.,
91-ERA-13 (Sec'y Jan. 13, 1993), for the Secretary's discussion
of Dague.]
[Nuclear and Environmental Whistleblower Digest XVI E 3 e ii]
ATTORNEY FEES AND COSTS; ADDITUR TO REFLECT DELAY IN PAYMENT
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), the ARB awarded an enlargement to Complainant's attorney fee award to
compensate for delay of nearly four years in payment. The ARB based the award on a
comparison of (1) the number of hours multiplied by the current rates of the attorneys and law
clerks, and (2) the earlier award multiplied by the percentage increase in Consumer Price Index -
All Urban Consumers, U.S. city average (CPI-U), between the original award the most recent
CPI-U figure available. The addition is then based on the lower of these two calculations.
For the first calculation, the ARB took the number of hours approved by the ALJ in the
earlier fee order, and multiplied by the difference in the hourly rates approved in that order the
hourly rates approved by the ALJ in the a fee order issued at the conclusion of remand
proceedings.
For the second calculation, the ARB determined the percentage change in the CPI-U, and
then multiplied the earlier award by this percentage.
XVI E 3 e ii Attorney's fees; hourly rate; customary
rate; compensation for delay in receipt
The Secretary in Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y Sept. 8, 1992), reduced
the complainant's requested hourly rate of $100 for attorney's
fees where the respondent submitted the affidavit of an area
practitioner documenting a reduced rate. The Secretary, however,
employed the upper limit of $75 per hour to compensate for a
delay in the receipt of payment. Missouri v. Jenkins, 491
U.S. 274, 282-284 (1989); Ramos v. Lamm, 714 F.2d 546, 555
(10th Cir. 1983) (hourly rate should reflect rates in effect at
time fee is established, rather than those in effect at time
services were performed); Copeland v. Marshall, 641 F.2d
880, 893 (D.C. Cir. 1980).
XVI E 3 e ii Attorney fees; interest
The Secretary has determined that the decision in Library of
Congress v. Shaw, 478 U.S. 310
(1986), appears to preclude an award of interest on the attorney
fees on whistleblower complaints filed
pursuant to the SDWA, CAA, SWDA, CWA, or CERCLA. In Shaw,
the Supreme Court held that
"[i]n the absence of express congressional consent to the
award of interest separate from a
general waiver of immunity to suit, the United States is immune
from an interest award." 478 U.S.
at 314. The Secretary noted that neither the SDWA, CAA, SWDA,
CWA, or CERCLA contains an
express waiver of sovereign immunity with respect to interest on
attorney fees.
Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (Sec'y Dec. 7,
1994).
XVI E 3 f Time spent preparing fee
claim
Counsel is entitled to compensation for time reasonably spent in
preparing a fee claim. Larry v. The Detroit Edison
Co., 86-ERA-32 (Sec'y May 19, 1992).
[Nuclear and Environmental Whistleblower Digest XVI E 3 f]
ATTORNEY'S FEES; LITIGATION OF ATTORNEY'S FEES ISSUE; RESPONDENT'S
FAILURE TO COMPLY WITH ARB'S PROCEDURES
In Leveille v. New York Air National
Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB May 16, 2000), the
ARB authorized an award for attorneys' fees and costs for time reasonably expended litigating
the attorneys' fees issue. The ARB noted in this regard that Respondent had often failed to
comply with the procedural expectations of the Board. The Board wrote: "Respondent's
careless regard for its litigation responsibilities has imposed additional burdens on the
Complainant, thus contributing to Complainant's entitlement to additional fees."
Id. @ n.1.
XVI E 3 g Cost of airline ticket to attend
hearing
In Mackowiak v. University Nuclear Systems, Inc.,
82-ERA-8 (ALJ July 25, 1986), settled while under review
(Sec'y Apr. 18, 1989), the ALJ allowed as a cost Complainant's
airline ticket from Alaska to Spokane, Washington for a remand
hearing, as a cost of litigation reasonably incurred.
Complainant had moved to Alaska to seek work at the time of the
remand hearing.
[N/E Digest XVI E 3 g]
FEDERAL EXPRESS CHARGES ARE RECOVERABLE AS COSTS
Specific delivery charges incurred in a whistleblower case are recoverable by the
complainant as costs. Ishmael v. Calibur
Systems, Inc., 96-SWD-2 (ARB Oct. 17, 1997) (Federal Express charges
improperly deducted by ALJ as overhead expenses).
COSTS; FED. R. CIV. P. 56(d) DOES NOT GOVERN
[N/E Digest XVI E 3 g and XVI E 6]
In Johnson v. Bechtel Construction Co.,
95-ERA-11 (Sec'y Feb. 26, 1996), the Secretary permitted a
pro se Complainant to submit a petition for costs.
The Respondent objected to several items on the ground that
they were not recoverable under FRCP 56(d). The Secretary
rejected the Respondent's contention that the ERA's cost
provision should be interpreted like Rule 56(d), stating
that the ERA cost provision is interpreted broadly. the
Secretary found that the types of items objected to in the
instant
case were compensable under the ERA, including travel
expense and postage related to the hearing.
COSTS; INTEREST NOT AUTHORIZED
[N/E Digest XVI E 3 g]
Interest on costs is not authorized under the ERA.
Johnson v. Bechtel Construction Co., 95-ERA-11
(Sec'y Feb. 26, 1996).
COSTS; NEED FOR RECEIPTS OR BILLS
[N/E Digest XVI E 3 g]
In Johnson v. Bechtel Construction Co.,
95-ERA-11 (Sec'y Feb. 26, 1996), the Secretary found that,
although it is best to attach receipts or bills reflected a
claimed cost item, it was not essential in the instant case
involving a pro se Complainant because of items in
the record or the details provided to support the claim
(e.g., the existence of the telegram requesting the
hearing). The Secretary disallowed items for which the
Complainant only gave a rough estimation.
XVI E 3 g Secretarial costs, travel expense, copying,
telephone costs
Certain supplemental secretarial costs, necessary travel
expenses, and copying and telephone costs are reimbursable as
part of an attorney fee because they are "integrally related
to the work of an attorney" and may significantly contribute
to the success of the litigation. Wheeler v. Durham City Bd.
of Ed., 585 F.2d 618, 623-624 (4th Cir. 1978). According to
the Secretary, since such costs are recoverable as attorneys'
fees, they are recoverable where, as under the ERA, the statute
makes clear that costs and expenses other than attorneys' fees
are compensable. 42 U.S.C. § 5851(b)(2)(B). Specifically,
the Secretary approved reimbursement for Federal Express and
airfare charges. Larry v. The Detroit Edison Co.,
86-ERA-32 (Sec'y May 19, 1992).
XVI E 3 g Using paralegal to proof and edit a brief
It is reasonable to bill for use of a paralegal to proof and edit
a brief prepared for whistleblower litigation. Larry v.
The Detroit Edison Co., 86-ERA-32 (Sec'y May 19,
1992).
XVI E 3 g Costs
The fact that Complainant and his counsel entered into an
agreement requiring Complainant to reimburse counsel for
telephone tolls, Federal Express charges and copying costs is not
a basis for determining which costs are compensable.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
XVI E 3 g Costs and expenses other than attorney's
fees
In a case arising out of the Fourth Circuit, the complainant may
be reimbursed for telephone tolls and copying costs and for
Federal Express charges because these expenses, while normally
part of counsel's overhead, have been held in the Fourth Circuit
to be reimbursable as part of attorney's fees. Consequently, they
are recoverable under ERA where the statute makes clear that
costs and expenses other than attorney fees are compensable. 42
U.S.C. § 5851(b)(2)(B).
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991), citing Wheeler v. Durham City Bd. of
Educ., 585 F.2d 618, 623-4 (4th Cir. 1978).
[Editor's note: the Secretary made no indication whether such
costs should be allowed in other Circuits.]
XVI E 4 a Submission of fee petition
to ALJ
In
Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 (Sec'y Dec. 1, 1994), the
Secretary ordered the Complainant's counsel to submit his
itemized fee petition to the ALJ, and ordered
the ALJ to issue a supplemental recommended decision and order
establishing the amount of the
attorney fee and costs.
[Nuclear & Environmental Whistleblower Digest XVI E 4 a]
ATTORNEY FEE APPLICATION; ALJ'S ISSUANCE OF RECOMMENDED DECISION PROPERLY WITHIN SCOPE OF HEARING RESPONSIBILTIES
In Moder v. Village of Jackson, Wisconsin, ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB June 30, 2003), Respondent objected to the ALJ's recommended decision on attorney fees on the ground that such fees may be awarded only at the time the final decision and order is issued. The ARB observed that the ALJ's decision was only a recommendation, and that adjudication of the attorney fees petition was entirely within the scope of the ALJ's hearing responsibilities.
[Nuclear & Environmental Digest XVI E 4 a]
COSTS; FEE PETITION TO ALJ
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Respondent was required to pay Complainant's attorney fees and costs associated with the litigation, including costs in attending the hearing (e.g., transportation, lodging, meals). The ARB directed the fee petition to be presented to the presiding ALJ.
[N/E Digest XVI E 4 a]
ATTORNEY'S FEE AWARD MAY INCLUDE PERIOD PRIOR TO HEARING
PHASE
In Ishmael v. Calibur Systems,
Inc., 96-SWD-2 (ARB Oct. 17, 1997), the ALJ concluded that the fees
and rates
indicated in Complainant's fee petition were reasonable but that any work performed before the
date the case was docketed before the Office of Administrative Law Judges was not
compensable. The ARB disagreed, holding that costs and expenses incurred in connection
with
the bringing of a complaint include work performed prior to the hearing phase of a
whistleblower
action.
XVI E 4 a When to consider attorney fee petition
In Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (ALJ Mar. 3, 1993) (post-hearing order),
the ALJ found that Complainant's request for attorneys' fees and
costs was premature -- that 29 C.F.R. § 24.6(b)(3) provides
that such a request be made upon issuance of a final order by the
Secretary -- and the Secretary had not yet issued a final order.
XVI E 4 a ALJ's issuance of recommended decision on
attorney's fees following decision on the
merits
In Lederhaus v. Donald Paschen & Midwest Inspection
Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op.
at 14-15, the ALJ recommended after a hearing that the
complainant's claims be upheld and that he be awarded back pay
with interest, compensatory damages, and attorneys' fees and
costs. The ALJ allowed Complainant's counsel to submit his
request for attorney's fees, and subsequently issued and
recommended decision and order granting attorney's fees. The
Secretary noted this procedure, and voiced no dissatisfaction
with it; however she indicated that she would allow the parties
to brief the attorney fee before her in addition to permitting
the complainant to request additional fees and costs relating to
the Secretary's review. Apparently the original briefing
schedule for the appeal on the merits was issued before the ALJ
issued the recommended decision on attorney's fees and costs.
XVI.E.4.b. Time prior to issuance of
briefing schedule & after submission of brief
In McCuistion v. Tennessee Valley Authority, 89-
ERA-6 (Sec'y June 3, 1994), the Secretary issued a decision
finding in favor of Complainant, and permitting counsel for
Complainant to submit any petition for costs and expenses
incurred in bringing the proceeding before the Secretary on
review of the recommended decision of the Administrative Law
Judge (ALJ). A fee petition was submitted, which was contested
by the Respondent. An extension, however, was requested pending
a settlement negotiation. Several years passed without further
communication, so the Secretary considered the petition.
Respondent challenged a portion of the billing as not being
incurred in review of the ALJ's recommended decision before the
Secretary. The Secretary found that while some of the hours
billed predate issuance of the Secretary's briefing schedule,
they reasonably could have been spent in anticipation of review.
The Secretary also permitted hours expended following submission
of principal briefing as reasonably spent attending to
Respondent's ongoing filings.
Finally, the Secretary found Complainant's counsel's hourly fee
of $125 to manifestly comport with prevailing market rates.
Subsequently, in McCuistion v. Tennessee Valley
Authority, 89-ERA-6 (Sec'y Sept. 22, 1994), the Secretary
considered the parties' motion for reconsideration in light of a
settlement reached and approved in a related case (90-ERA-44).
Based on this motion, the Secretary vacated the June 3, 1994
Final Decision and Order, and dismissed the case.
ATTORNEY FEES; REASONABLENESS OF MOTION TO REOPEN
[N/E Digest XVI E 4 b]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary held that, in view of the
ALJ's recommended decision dismissing the complaint, which the
Secretary rejected, the Complainant's attorney's fees and costs
associated with requests to reopen and supplement the record were
reasonably incurred in bringing the complaint, even though some
of the requests were denied as unnecessary in light of the
disposition of the case.
ATTORNEY FEES; WORK FOLLOWING ALJ HEARING; DIRECTION OF
PETITION
[N/E Digest XVI E 4 b]
In Gaballa v. The Atlantic Group, Inc., 94-ERA-
9 (Sec'y Jan. 18, 1996), the Secretary permitted the
Complainant's attorney to submit a supplemental itemized petition
for attorney's fees and costs not covered by an earlier interim
order.
Editor's note: Implicitly, this petition would be
directed to the Secretary.
To the same effect: Zinn v. University of
Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996).
XVI E 4 b Submission of fee petition
to Secretary when Secretary rejects ALJ's recommendation of
dismissal
In
Nathaniel v. Westinghouse Hanford Co., 91-SWD-2
(Sec'y Feb. 1, 1995), the
Secretary rejected the ALJ's recommendation that the complaint be
dismissed, and instead found in
favor of the Complainant, awarding costs and expenses, including
attorney fees, reasonably incurred in
bringing the complaint. The Secretary provided counsel for
Complainant a period of time to submit any
petition for costs and expenses.
XVI E 4 b When to consider fee petition
In Beck v. Daniel Construction Co., 86-ERA-26
(Sec'y Aug. 3, 1993), the Secretary appears to approve an ALJ's
issuance of a recommended decision on attorney fees. Complainant
is entitled to request additional fees and costs relating to the
Secretary's review of the matter, the request to be directed to
the Secretary.
[Editor's note: Some case law indicates that the ALJ loses all
jurisdiction after issuance of the Recommended D & O. It
does not appear, however, that the Secretary objects to the
rendering of a R D & O on the merits and a later R D & O
on fees and costs.]
XVI E 4 b When to consider attorney fee petition
In Williams v. TIW Fabrication & Machining,
Inc., 88-SWD-3 (ALJ Aug. 3, 1989), the ALJ issued an
order deferring consideration of the Complainant's motion for
attorney fees based on the language of 29 C.F.R. §
24.6(b)(3), which the ALJ determined indicates that a motion for
attorney fees can be considered only after the Secretary enters a
final order on the re
