skip to page content
Office of Administrative Law Judges
USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION E -- LITIGATION EXPENSES

[Last updated July 9, 2009]


XVI. Damages and remedies

* * *

E. Litigation expenses
1. Statutory and regulatory authority
2. The "reasonably incurred" standard
3. Determining the reasonableness of a petition
a. Burden of proof; elements of petition; lodestar
b. Relevancy of fee agreement between complainant and counsel
c. Relevant community for comparing hourly rate
d. Miscellaneous factors
i. Productive versus nonproductive hours
ii. Peripheral matters
iii. Counsel's inexperience
iv. Time spent talking to the press
v. Other reductions
vi. Adjustment for increase in experience or inflation
e. Fee enhancement
i. Contingency-fee arrangement; risk of no payment
(1) Supreme Court authority on fee shifting statutes
(2) Secretary's view
ii. Delay in payment
f. Recovery for time spent in preparing a fee claim
g. Costs and expenses
4. Fee petitions for work before ALJ, Secretary and Court of Appeals
a. Proceedings before ALJ
b. Proceedings before the Secretary
c. Proceedings before the Court of Appeals
5. Respondent's request for attorneys' fees
6. Costs incurred by the complainant
7. Preliminary order on attorney fees


XVI E 1 Attorney fees under Equal Access to Justice Act

The complainant was awarded reasonable attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 where the Secretary was found to have unreasonably decided to litigate the dismissal of a whistleblower complaint following a motion for reconsideration that established that the dismissal with prejudice had imposed a material condition on the parties' settlement agreement. Thompson v. United States Dept. of Labor, 885 F2d 551 (9th Cir. 1989) (the court did not reach whether ERA, 42 U.S.C. § 5851 authorizes an award of attorney's fees to an employee appealing an order of the Secretary, but noted that the Sixth Circuit had found that it does not. See De Ford 715 F2d 231.)

[Nuclear & Environmental Whistleblower Digest XVI E]
ATTORNEY'S FEES; ARB WILL NOT ALLOW REQUESTS FOR FEES TO BE DRAWN OUT AD INFINITIUM

In Leveille v. New York Air National Guard, ARB No. 98 079, ALJ Nos. 1994 TSC 3 and 4 (ARB Dec. 16, 2003), the ARB denied Complainant's request to keep the record open for the filing of additional fee requests relating to the "ongoing need [for representation] as a result of the ARB's order on damages Y for the payment of future medical expenses in the amount of $10,000." The Board had earlier admonished the litigants not to draw out attorney's fees requests "ad infinitium" and stated clearly that no further requests for attorney's fees would be allowed.

[Nuclear & Environmental Whistleblower Digest XVI E]
ATTORNEY'S FEE; ATTORNEY'S STANDING TO ASSERT RIGHTS SEPARATE FROM THOSE OF THE COMPLAINANT

In Schlagel v. Dow Corning Corp., ARB No. 02 092, ALJ No. 2001 CER 1 (ARB Jan. 9, 2003), Complainant's attorney had filed a initial and reply brief before the ARB, but Complainant subsequently determined to represent himself, and the attorney filed an application to intervene for the limited purpose of protecting her right to attorney's fees for hours expended in work before the Board. The ARB issued an Order to Show Cause directing the attorney to brief the ARB's authority in this respect, indicating its concern that there was not any legal authority to support "the proposition that an attorney has a right separately enforceable from that of a complainant to obtain attorney fees under the whistleblower provisions of the [CAA, CERCLA and TSCA].

[Nuclear & Environmental Whistleblower Digest XVI E 1]
ATTORNEY FEES; STANDING OF COUNSEL TO FILE PETITION

In McQuade v. Oak Ridge Operations Office, USDOE, 1999 CAA 7, 8, 9 and 10 (ALJ June 18, 2002), the ALJ held in a recommended decision on attorney fees that an attorney who had been discharged by Complainants as counsel did not have standing to request an award of attorney fees where Complainants had not requested an award of attorney fees and affirmatively opposed an award of fees to the former counsel. The ALJ cited the following statutory language from the CAA, the SDWA and the TSCA in regard to standing to request fees:

   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.

42 U.S.C. §7622(b)(2)(B); 42 U.S.C. §300j 9(i)(2)(B)(ii); 15 U.S.C. §2622(b)(2)(B) (italics supplied).

The ALJ noted that similar language existed under the CERCLA, the SWDA and the WPCA, and concluded that the statutes only permitted the "complainant" or "applicant" to be awarded reasonable attorney fees and costs.

The ALJ also reviewed authority under 42 U.S.C. § 1988 and other similar law, and concluding that the attorney fee mechanism established by the employee protection provisions of the environmental statutes are indistinguishable from the provisions of section 1988, held that "attorney's fees and costs under the environmental statutes may only be awarded at the request and in the name of complainants as the real parties in interest." Citing Brown v. General Motors Corp., 722 F.2d 1009 (2d Cir. 1983), and other authority.

[Nuclear & Environmental Digest XVI E 1]
ATTORNEY'S FEES; COMPLAINANT NOT ENTITLED TO FEES AND COSTS ON SUCCESSFUL CHALLENGE TO SETTLEMENT AGREEMENT WHERE ORIGINAL COMPLAINT WAS NOT GROUNDED IN ALLEGATION OF DISCRIMINATION BASED ON OFFER OF SETTLEMENT WITH PROVISIONS THAT VIOLATED ERA

In Macktal v. Brown & Root, Inc., ARB No. 98-112, ALJ No. 1986-ERA-23 (ARB Jan. 9, 2001), the ARB found that Complainant was not entitled to attorneys fees and costs for proceedings before DOL and the Court of Appeals related to his successful challenge to a settlement agreement to which he had previously agreed. The proceedings in Macktal were complex. Complainant had entered into a settlement agreement, and was paid some monies by Respondent. Complainant, with new legal representation, subsequently disavowed the agreement upon review by the Secretary of Labor. The Secretary found that Complainant was bound to the agreement, but also found that one paragraph of the agreement was contrary to public policy and therefore severed it from the agreement. Complainant appealed to the Fifth Circuit, which held that the Secretary could not simply strike terms from a settlement agreement the Secretary's only options were to enter the agreement by approving it or refuse to enter into by rejecting it. On remand, the Secretary disapproved the settlement and returned the case to the ALJ. On remand, the ALJ dismissed the case based on Fifth Circuit case law that internal complaints were not protected activity [the ERA has since been amended to explicitly include internal complaints]. On review, the ARB agreed with the ALJ's decision on the merits, but held that Complainant was entitled to attorney's fees for successful litigation on the settlement agreement issue. The ARB therefore remanded the case to the ALJ to consider a petition for attorney's fees and costs.

Upon review of the ALJ's recommended decision on the fee petition, the ARB concluded that the case was controlled by the intervening decision in Harris v. Tennessee Valley Authority, ARB No. 99-004, ALJ Nos. 1997-ERA-26 and 50 (ARB Nov. 29, 2000). Because Complainant's complaint was about alleged discriminatory discharge and not about the restrictive terms of a settlement agreement, his successful challenge to the settlement agreement did not meet the statutory elements required for an award of attorney's fees and costs. See slip op. at 6, detailing requirements of 42 U.S.C.A. §5851(b)(2)(A), as it appeared at the relevant time. The ARB distinguished the case of Connecticut Light & Power Co. v. Secretary of Labor, 85 F.3d 89 (2d Cir. 1996), in which the complaint was grounded in the allegation that Respondent had violated the ERA by offering him a settlement agreement with illegal "gag provisions." Since Macktal's complaint was not about the offer of settlement terms that violate the ERA, the Secretary never ruled that Respondent had discriminated against him for that reason. Thus, there was no hearing on this issue and no order issued providing relief for such discrimination both prerequisites to an award of attorneys fees and costs.

[N/E Digest XVI E 1]
ATTORNEY FEE REQUEST; LENGTHY DELAY

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant filed a request for attorney's fees for his successful litigation of an issue relating to an illegal term in a settlement agreement. The request was delayed by eight years.

The ARB noted reservations about entertaining the request after such a lengthy delay, but cited some district court decisions indicating that such motions are not barred by the mere passage of time, and found that its reservations were overcome "by the expansive language of the ERA regarding the recovery of attorney's fees and the resulting incentive to pursue environmental whistleblower claims." Slip op. at 6 n.8.

ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT; ATTORNEY MISCONDUCT PROCEEDING
[N/E Digest XVI E 1]

In Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ALJ Nov. 29, 1995), the ALJ recommended denial of a petition for an award of fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 and its implementing DOL regulation at 29 C.F.R. § 16.101-16-308. The petition arose in connection with a disciplinary proceeding arising out the underlying whistleblower case. The ALJ found that the disciplinary proceeding was not a covered adversary adjudication within the meaning of the EAJA because an on- the-record 5 U.S.C. § 554 hearing is not statutorily or constitutionally required for such a disciplinary hearing.

XVI E 1 Attorney's fees under EAJA

Employee filed a complaint with the NRC, after which Employer allegedly demoted, transferred and discriminated against him in his employment. Parties entered into a settlement agreement, purposely remaining silent as to any dismissal of the claims, either with or without prejudice. The court held that Employee's obtaining a remand constituted "some relief on the merits of his claims" so he was a prevailing party, National Wildlife Federation, 870 F.2d at 545 (quoting Hanrahan v. Hampton, 446 U.S. 754, 757 (1980)), and that the Secretary's position on appeal was not "substantially justified" so the Secretary cannot deny attorney fees because there was no reasonable basis in law and fact for the Secretary's position. Pierce v. Underwood, __ U.S. __, 108 S.Ct. 2541 (1980). Furthermore, since the court found that employee is entitled to attorney's fees under the EAJA, they did not address whether section 5851 authorizes an award of attorney's fees to an employee appealing an order of the Secretary. Cf. DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir. 1983) (section 5851 does not authorize the court of appeals to award attorney's fees to an employee appealing an order of the Secretary). Thompson v. United States, 885 F.2d 551, 558 (9th Cir. 1989).

[Nuclear and Environmental Digest XVI E 2]
ATTORNEY FEE AWARD NEED NOT BE PROPORTIONAL TO THE RECOVERY FOR THE COMPLAINANT

In Collins v. The Village of Lynchburg, Ohio, ARB No. 09-040, ALJ No. 2006-SDW-3 (ARB June 30, 2009), the Respondent argued that an attorney fee award of nearly $70,000 was clearly excessive in comparison to the actual loss to the Complainant, who had been reinstated during the pendancy of the complaint. The ARB held that "[l]ike the ALJ, we find that the fee in this whistleblower case need not be proportional to the recovery for the Complainant." USDOL/OALJ Reporter at 3 (footnote omitted).

[Nuclear and Environmental Digest XVI E 2]
ATTORNEY'S FEES; COMPLAINANT'S UNSUCCESSFUL CROSS APPEAL

In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, 06-058, 06-119, ALJ No. 2004-ERA-1 (ARB Feb. 27, 2009), the ARB disallowed attorneys' fees incurred in support of a cross appeal on which the Complainant failed to prevail before the ARB.

[Nuclear and Environmental Digest XVI E 2]
ATTORNEY'S FEES; TAX ISSUES

In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, 06-058, 06-119, ALJ No. 2004-ERA-1 (ARB Feb. 27, 2009), the ARB disallowed attorney's fees for time spent by the Complainant's attorney on tax issues associated with the damages award.

[Nuclear & Environmental Whistleblower Digest XVI E 2]
ATTORNEY'S FEES; WORK RELATING TO ACCOUNTING AND TAX CONSEQUENCES OF DAMAGES AWARD IS NOT COMPENSABLE

Time spent by a prevailing complainant's counsel on accounting and tax issues related to a complainant's damages award is not compensable under the ERA whistleblower provision providing for assessment of costs and expenses (including attorneys' and expert witness fees) reasonably incurred. 42 U.S.C.A. § 5851(b)(2)(B). Such work is not related to litigation of the case and therefore not "reasonably incurred" in connection with the complaint. Time spent on coordination of payment of damages and tax consequences of damages is not compensable under the whistleblower laws. Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008).

[Nuclear and Environmental Whistleblower Digest XVI E 2]
ATTORNEY FEES; TRAVEL TIME AWARD WITHIN DISCRETION OF ALJ

The decision to award travel time as part of an attorney fee award is within the discretion of the ALJ. Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008).

XVI E 2 Attorney fees; reasonably incurred

Employee filed claim with Department of Labor, alleging that his job transfer was the result of deliberate discrimination by employer (TVA) against him due to his participation in the NRC inspection process. The Secretary awarded relief to employee, but denied certain attorneys' fees and expenses under section 5851. Section 5851 provides that once discrimination is shown the Secretary "shall assess ... all costs and expenses ... reasonably incurred ... for, or in connection with, the bringing of the complaint." The court stated that the Secretary must determine whether expenses were "reasonably incurred," but otherwise no discretion rests in him. Therefore, even if a complainant does not ultimately receive compensatory damages or other particular relief which is sought, it would not be proper for the Secretary to deny fees and expenses unless he determines first that they were not "reasonably incurred."

DeFord v. Secretary of Labor, 700 F.2d 281, 288 (6th Cir. 1983).

[Nuclear & Environmental Whistleblower Digest XVI E 2]
ATTORNEY'S FEES; TIME SPENT ON ADVICE ON TAX CONSEQUENCES OF DAMAGE AWARD, DISCUSSIONS WITH RESPONDENT ON WHETHER IT WOULD APPEAL, AND COORDINATION OF PAYMENT OF DAMAGES IS NOT IN "LITIGATION" OF THE CASE AND NOT COMPENSABLE

Time spent by a complainant's counsel on the question of the tax consequences of a damages award under the whistleblower provision of the TSCA is not compensable because it is not related to litigation of the case and therefore is not "reasonably incurred." See 42 U.S.C. § 7622(b)(2)(B)(2000). Once the complainant receives the monetary damages ordered by the ARB, the litigation of the case is at an end and the impact on the complainant's financial situation cannot be related to litigation of the case.

Time spend in correspondence and in conversation with Respondent's counsel to discern whether it would appeal the ARB's decision likewise has no reasonable relationship to litigating the case and is not compensable. The same is true of time spend coordinating the payment of damages.

Leveille v. New York Air National Guard, ARB No. 98 079, ALJ Nos. 1994 TSC 3 and 4 (ARB Dec. 16, 2003).

[Nuclear & Environmental Digest XVI E 2]
ATTORNEY FEES; UNSUCCESSFUL CHALLENGE TO AMOUNT OF DAMAGES AWARDED BY ALJ

In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Feb. 15, 2000 ), the Respondents argued that attorneys' fees and costs should not be awarded for work performed on Complainant's Reply brief before the ARB on review of the ALJ's Recommended Decision and Order on Damages because, in Respondents' view, Complainant was not successful in challenging the amount of damages awarded by the ALJ.

The ARB, however, found that Complainant was successful in preserving the damage award recommended by the ALJ before the ARB, and that therefore attorneys' fees for work on that brief defending the ALJ's recommended award were reasonably incurred.

ATTORNEY'S FEES; REASONABLY INCURRED STANDARD; LATE BRIEF; ABSENCE OF OBJECTION
[N/E Digest XVI E 2]

The ERA requires a respondent to pay only those costs, including attorney's fees, reasonably incurred in bringing a complaint. 42 U.S.C. § 5851(b)(2)(B). Where Complainant's attorney prepared and filed a brief on review by the Secretary several months late, without seeking leave or providing any reason for the delay, a fee request for preparation of the brief was not reasonable, and was properly deducted by the ALJ from his recommendation on attorney's fees. The Board did not find persuasive Complainant's argument that Respondent waived any objection to hours claimed for preparing the brief when it did not oppose the earlier fee request.

Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (ARB July 15, 1996).

ATTORNEY'S FEE REQUEST; ALJ NOT BOUND BY OBJECTIONS OF OPPOSING PARTY
[N/E Digest XVI E 2]

In Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (ALJ Dec. 5, 1995), the Complainant maintained that the Respondent waived its right to object to an attorney fee request item because the objection was untimely. In his recommended order, the ALJ rejected this argument, finding that it is within the discretion of the ALJ to determine what is a reasonable fee, and that he was not bound by the objections of the opposing party in a review of the fee petition.

XVI.E.3 Determining reasonableness of petition


In Varnadore v. Oak Ridge National Laboratory, 92- CAA-2 and 5 and 93-CAA-1 (ALJ Sept. 22, 1994) (recommendation on attorney fee petitions), the ALJ considered fee petitions totalling over $700,000. The ALJ relied primarily on Hensley v. Eckerhart, 461 U.S. 424 (1983), for the applicable principles. The following is an excerpt of the ALJ's discussion:

    To recover costs such as attorney fees, a plaintiff must be a prevailing party. In this context a party may be considered to have prevailed if they succeeded on any significant issue in litigation which achieves some of the benefit the party sought in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). By that standard Mr. Varnadore is a prevailing party.

    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, 461 U.S. supra at 433. 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).

    Once the initial calculation of a reasonable expenditure of hours times a reasonable rate has been made, other factors may result in an upward or downward adjustment of the fee. Such factors include the results obtained in terms of success or failure in the case of multiple claims for relief. The number of hours expended are also to be considered in the context of the level of success achieved. Hensley, 461 U.S. supra at 434.
    Finally, the setting of attorney fees is not an exact science. "[A]n hour viewed in isolation may appear to be reasonable, but be unreasonable in the context of the litigation as a whole." Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986).

In establishing the appropriate hourly rate, the ALJ found the affidavits presented by Complainant's counsel too vague and conclusory to persuasively support a finding of the prevailing hourly rate in the Knoxville area for lawyers in the relevant experience categories. Thus, he found the most credible evidence to be the hourly rates allowed by local courts in similar fee shifting cases and in other employee protection cases before the Department of Labor. The ALJ found the most persuasive precedent was De Ford v. Tennessee Valley Authority, 90 ERA-60 (1993) (ALJ's Recommended Supplemental Decision and Order on Attorney Fees), which set the following rates for four of the lawyers also involved in this proceeding as follows:

  • Edward Slavin $100.00/hour
  • Donald Aplin $100.00/hour
  • David Stuart $125.00/hour
  • Christopher Van Riper $100.00/hour

The De Ford decision further awarded an hourly rate of $150.00 for Slavin and Van Riper for their time during the week of trial and $175.00/hour for David Stuart's trial time. The ALJ applied these rates with an adjustment for inflation. He set the rate for an attorney acting in a junior capacity at $10.00 below that of Mr. Slavin.

In setting the hours reasonably expended, the ALJ found that the records inadequately described the work performed and were so vague that an informed determination on precisely what was done or whether it was necessary is precluded.

Entries such as "legal research" or "trial prep" and similar descriptions are too vague to permit meaningful review. H. J., Inc. v. Flygt Corporation, 925 F.2d 257, 260 (8th Cir. 1991). In short, such entries prevent a finding on the central issue, namely, a determination that the hours were reasonably expended. Ecos, Inc. v. Brinegan, 671 F.Supp. 381, 396 (M.D. N.C.).

As a result, the ALJ recommended deletion of 25% of the hours for GAP's lead counsel with the exception of the time that counsel devoted to trial and to the drafting of the brief.

In addition, the ALJ found that Complainant unsuccessfully pursued issues which consumed time better devoted to other matters. The ALJ found these issues are severable from the rest of the proceeding and recommended deletion of 5% of the hours on that basis. Finally, the ALJ found that the brief filed "was long on policy arguments but short on the factual analysis required which is all important at the trial level," and recommendation deletion of ten percent of the hours listed for preparation of the brief.

The ALJ disallowed hours editing and coaching of Mr. Slavin's work by GAP's Legal Director and editing by its managing attorney because no showing had been made that such review was necessary or furthered the litigation.

The ALJ found that GAP was entitled to reasonable compensation for preparing the fee petition. See Davis v. City and County of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992). Because the Hours Document contained numerous charges that were unduly vague, the ALJ recommended that 30% of the time devoted to preparation of the fee petition be disallowed.

The ALJ disallowed requested reimbursement for a full time faculty member at Memphis State University because his time sheet failed to show with any degree of precision what this Professor contributed to the outcome of this case or that it was necessary for GAP to associate him.

The ALJ disallowed requested reimbursement for time spent on media contacts and Congressional relations. Although such work may be reimbursed where counsel shows that it is "directly and intimately related to the successful representation of a client," See Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), the ALJ found that Counsel failed to demonstrate that such contacts had a direct or significant effect on the outcome of this litigation.

The ALJ's final order was for a total of $373,938.53 in attorney fees.


SETTLEMENT; ATTORNEY'S FEES; IF PARTIES AGREE, SECRETARY DOES NOT NEED TO REVIEW THE AMOUNT UNDER LODESTAR METHOD
[N/E Digest XVI E 3 and XVII G 1]

If the parties are in agreement as to the amount of attorney s fees to be paid, the Secretary does not need to review the amount with the specificity usually required by the lodestar method. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (OAA Apr. 24, 1996), citing Hensley v. Eckerhart, 461 U.S. 424 (1983).

XVI E 3 a Attorney fees; lodestar method

In calculating attorney fees under the whistleblower provisions of the TSCA, SDWA, CAA, SWDA, WPCA, and CERCLA, the Secretary employs the lodestar method, which requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate. Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (Sec'y Dec. 7, 1994) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)).

[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY FEES; LACK OF SPECIFICITY OF ENTRIES; PERCENTAGE REDUCTION IN AWARD

In Graf v. Wackenhut Services L.L.C., 1998-ERA-37 (ALJ Feb. 6, 2001), the ALJ found that entries in a fee petition such as "review documents," "depositions", "trial preparation," and "strategizing" did not provide a meaningful opportunity for review of the reasonableness or necessity of the fees charged. The ALJ also found that where the billing descriptions do not afford a meaningful opportunity to determine the reasonableness of the time expenditures, an ALJ need not engage in an item by item reduction of the hours. Rather, in such circumstances it is permissible to make reductions based upon a percentage basis. 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 a]
ADMINISTRATIVE (JUDICIAL) NOTICE; SURVEY OF LAW FIRM ECONOMICS; MARTINDATE-HUBBELL LAW DIRECTORY

In Ferguson v. Weststar, Inc., 1998-CAA-9 (ALJ June 21, 2000), the ALJ, while reviewing an attorney fee application, concluded that it was proper to take judicial notice of the Survey of Law Firm Economics, published by Altman & Weil Publications, Inc., which reports hourly billing rates by individual non-litigation specialities and years of legal experience. The ALJ also took judicial notice of the Martindale-Hubbell Law Directory in considering Complainant's counsel scope of experience and specializations.

[Nuclear & Environmental Digest XVI E 3 a]

ATTORNEY FEES; HOURLY RATE MUST BE DOCUMENTED

The ALJ in Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Mar. 15, 2000), recommended an attorney fee award of $235 an hour for an experienced Las Vegas attorney who had demonstrated a high level of expertise and impressive talents in the proceedings. This amount, however, was a reduction from the $250 an hour requested because the attorney had not documented by survey data or other evidence that higher hourly rate.

[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY FEES: REQUIREMENT OF ADEQUATE DOCUMENTATION; APPROPRIATENESS OF PERCENTAGE REDUCTION

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 quoted with approval the following summary by an ALJ of the principles applicable in reviewing an attorneys' fees application under the environmental whistleblower statutes:

    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.]

[Nuclear and Environmental Whistleblower Digest XVI E 3 e ii]
ATTORNEY'S FEE; FEE INCREASE TO COMPENSATE FOR DELAY

In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Complainant requested a fee increase for his counsel equal to the Consumer Price Index to compensate counsel for the delay in his receipt of his attorney's fee award. The ARB noted that it had used a formula for determining the amount of any fee enlargement to compensate attorneys for delay in receiving their fee awards. Such a fee increase should be the lesser of the additions calculated by (1) the number of hours multiplied by the current rates of the attorneys, or (2) the amount of the award plus the amount of the award multiplied by the percentage change in Consumer Price Index All Urban Consumers, U.S. city average (CPI-U). In the instant case, the counsel's current rate was the rate he charged for work before the ARB and Court of Appeals, and the calculation based on the number of hours multiplied by counsel's current rate yielded the lesser amount. The ARB therefore declined to add any increase to the fee award.

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).

[Nuclear and Environmental Whistleblower Digest XVI E 3 f]
ATTORNEY'S FEES; TIME SPENT PREPARING FEE PETITION AND REVIEWING ALJ'S ATTORNEY FEE ORDER

A prevailing complainant's counsel is entitled to fees for time spent in preparing a fee petition, and for time spent reviewing the ALJ's Attorney Fee Order. Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008).

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.

[Nuclear and Environmental Whistleblower Digest XVI E 3 g]
COSTS THAT ARE NORMALLY A PART OF LAW FIRM OVERHEAD ARE NOT COMPENSABLE ABSENT A SHOWING OF EXTRAORDINARY NEED

Secretarial costs, in-house reproduction, postage, and express mail charges for services are part of the overhead of an attorney's office and are not separately recoverable by a prevailing complainant under the whistleblower provision of the ERA, absent an extraordinary need. Thus, in Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the ARB disallowed a request for photocopying and other secretarial costs where the Complainant's fee petition did not allege an extraordinary need for supplemental secretarial services over and above traditional office overhead allowances.

[Nuclear and Environmental Whistleblower Digest XVI E 3 g]
ATTORNEY'S FEES; TRAVEL EXPENSES FOR ORAL ARGUMENT BEFORE COURT OF APPEALS

In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the ARB found that the Complainant's counsel's travel expenses related to oral argument before the Court of Appeals was compensable under the ERA whistleblower provision. 42 U.S.C.A. § 5851(b)(2)(B). The Respondent had argued that such expense should be disallowed as part of a law firm's overhead.

[Nuclear and Environmental Whistleblower Digest XVI E 3 g]
FEE PETITION; USE OF LOWER COST PARALEGAL SERVICES IS TO BE ENCOURAGED

In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Respondent argued that the Complainant's request for reimbursement of certain claimed paralegal expenses should be disallowed because the description of the work revealed it to be secretarial in nature and therefore part of overhead. The ARB, however, found that the descriptions of the paralegal work were, in fact, traditional paralegal work. The Board noted that the use of lower-cost paralegals rather than attorneys should be encouraged.

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).

[Nuclear and Environmental Digest XVI E 4 b]
ATTORNEY'S FEES; POST DECISION HOURS MAY BE AWARDED BY THE ARB EVEN THOUGH THEY COULD HAVE BEEN INCLUDED IN FEE PETITON BEFORE THE ALJ

In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, 06-058, 06-119, ALJ No. 2004-ERA-1 (ARB Feb. 27, 2009), the Respondent objected to an award of attorney's fees by the ARB for hours expended after the ALJ issued the recommended decision and before the date set by the ALJ for submission of an attorney fee petition. The Employer argued that such fees should have been included with the petition filed with the ALJ. The ARB, however, found no reason to deny such fees as long as they were reasonably incurred.

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 recommended order.

The Office of Administrative Appeals later evidently handled the attorney fee petition without input from the ALJ. See Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y Sept. 8, 1992).

[Nuclear & Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY'S FEES; RESEARCH CONDUCTED AFTER ARB DECISION BUT BEFORE RESPONDENT ACTUALLY APPEALED TO THE COURT OF APPEALS

In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Respondent contended that time requested as attorney's fees by the prevailing complainant's counsel for researching the issue of deliberate violations was not compensable because it was premature because the Respondent had not yet appealed the issue to the Court of Appeals. The ARB found, however, that since the Respondent did eventually appeal the issue, the time was compensable under the ERA whistleblower provision. 42 U.S.C.A. § 5851(b)(2)(B).

[Nuclear & Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY'S FEE; AUTHORITY OF ARB TO RULE ON PETITION FOR FEES INCURRED BEFORE THE SIXTH CIRCUIT COURT OF APPEALS IN LIGHT OF DEFORD

In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Dec. 18, 2008), the Respondent argued that the Sixth Circuit's decision in DeFord v. Sec'y of Labor, 715 F.2d 231 (6th Cir. 1983), barred the ARB from awarding fees for work before the Sixth Circuit. The ARB, however, ruled that it had found in Scott v. Roadway Express, Inc., ARB No. 01-065, ALJ No.1998-STA-008, slip op. at 3 (ARB May 29, 2003), that the Secretary of Labor is not foreclosed from awarding attorney's fees to a complainant who prevails in his or her own whistleblower case before the Sixth Circuit.

XVI E 4 c Costs associated with appeal to Court of Appeals

In Mackowiak v. University Nuclear Systems, Inc., 82-ERA-8 (ALJ July 25, 1986), settled while under review (Sec'y Apr. 18, 1989), Respondent objected to that portion of an attorney's fee petition relating to a petition for review by the Ninth Circuit based on language from DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir. 1983). In DeFord, the Sixth Circuit held that Complainant's counsel's costs and fees were not allowable before it because the appeal to that court involved dissatisfaction with the Secretary's order while the allowable section 5851 costs and fees is specifically limited to those "for, or in connection with, the bringing of the complaint upon which the [Secretary's] order was issued."

[Editor's note: in other words, costs are allowable for the suit against the respondent, but not for a suit against the Secretary]

In dicta, the court stated that an award of attorneys' fees incurred before the court by the Secretary would "appear" to be outside the scope of the Secretary's authority. DeFord, 715 F.2d at 232.

The ALJ in Mackowiak distinguished the DeFord dicta, stating that ". . . Mackowiak's appeal before the Ninth Circuit arose in connection with his complaint under §5851, not under a separate, but related action."

[Nuclear & Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY'S FEES AND COSTS FOR APPELLATE WORK; SIXTH CIRCUIT

See Scott v. Roadway Express, Inc., ARB No. 01-065, ALJ No. 1998-STA-8 (ARB May 29, 2003) (order granting attorney's fees), casenoted at STAA Digest IX C, infra (explaining why DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir 1983), does not bar Secretary from awarding fees and costs for appellate work where the complainant was a party in the appellate case and necessarily defended the ARB decision).

[Nuclear and Environmental Whistleblower Digest XVI E 4 c]
ATTORNEY FEES; LEGAL WORK IN COURT OF APPEALS; SIXTH CIRCUIT LAW

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 declined to reverse its position acquiescing in the Sixth Circuit in the decision in DeFord v. Secretary of Labor, 715 F.2d 231, 232 (6th Cir. 1983), in which the court rejected the Secretary's authority to award attorney fees for work in the court of appeals in ERA whistleblower cases. See Pillow v. Bechtel, ARB No. 97-040, ALJ No. 87-ERA-35 , slip op. at 3 (ARB Sept. 11, 1997). The ARB would have awarded attorneys fees for work in the Third Circuit, however, if such had been incurred (Complainant had appeared pro se before the Third Circuit).

[N/E Digest XVI E 4 c]
ATTORNEY'S FEES INCURRED DURING JUDICIAL REVIEW; AUTHORITY OF ARB TO AWARD; SPILT IN CIRCUITS

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997), a case arising in the Eleventh Circuit, the ARB granted appellate level costs and attorney's fees where Complainant prevailed before the Secretary, and Complainant participated in the judicial review proceeding. The Board noted a spilt in the circuits on the issue of the Secretary of Labor's authority to make such an award. The Fourth Circuit has held that the Secretary has such authority, Blackburn v. Reich, 79 F.3d 1375, 1379 (4th Cir. 1995), but the Sixth Circuit has held that the Secretary does not. DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir. 1983).

[N/E Digest XVI E 4 c]
ATTORNEY'S FEE; PREPARATION OF BRIEF ON APPEAL WHERE BRIEF WAS NOT REQUIRED

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Sept. 11, 1997), Respondent had sought judicial review of the Secretary's determination in favor of Complainant. The Eleventh Circuit affirmed the Secretary. See Pillow v. Bechtel Construction, Inc., 87-ERA-35 (ARB Feb. 5, 1997). Respondent objected to items in an attorney's fee petition submitted to the ARB for time spent in preparing Complainant's brief in the appellate court because, according to Respondent, such a brief was voluntary and Complainant's appearance gratuitous. The ARB acknowledged that Complainant was not required to file in the Eleventh Circuit proceeding, but found that "he clearly had an interest in the outcome [and therefore] preparing and submitting the brief was reasonable under the circumstances." Slip op. at 5. Thus, it allowed costs for work performed in producing the brief.

ATTORNEY FEES; COSTS AND EXPENSES INCURRING DURING APPEAL TO FEDERAL COURT OF APPEALS
[N/E Digest XVI E 4 c]

In Delcore v. W.J. Barney Corp., 89-ERA-38 (ARB Oct. 31, 1996), the Board adopted the reasoning of Blackburn v. Reich, 79 F.3d 1375, 1379 (4th Cir. 1996), in which the court held that "fees related to prosecuting an appeal before the court of appeals are 'costs . . . incurred . . . in connection with the bringing of [a] complaint' under § 5851(b) . . . ." Contra Deford v. Secretary of Labor, 715 F.2d 231, 232-33 (6th Cir. 1983).

ATTORNEY'S FEES; WORK BEFORE COURT OF APPEALS; SPILT IN CIRCUITS
[N/E Digest XVI E 4 c]

In cases arising in the Sixth Circuit, the Secretary and the Board are not authorized to award attorney's fees for appellate work before the court of appeals. DeFord v. Tennessee Valley Authority, 715 F.2d 231, 232-33 (6th Cir. 1983). In Fourth Circuit cases, however, the Secretary and Board are permitted to order the respondent to pay attorney fees for appellate work in the court of appeals. Blackburn v. Reich, 79 F.3d 1375 (4th Cir. 1996).

See Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (ARB July 15, 1996).

ATTORNEY'S FEES AND COSTS; SECRETARY HAS AUTHORITY TO AWARD APPEAL-RELATED COSTS
[N/E Digest XVI E 4 c]

In Blackburn v. Reich, No. 95-1166 (4th Cir. Mar. 26, 1996), reversing Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Dec. 27, 1994), the court held that "attorney's fees related to prosecuting an appeal before the courts of appeals are 'costs . . . incurred . . . in connection with []the bringing of [a] complaint' under §5851(b), and, therefore, the Secretary has the authority to award such fees."

ATTORNEY'S FEES; WORK BEFORE CIRCUIT COURT WHERE JURISDICTION WAS DECLINED; DOL'S AUTHORITY OVER FEE REQUEST
[N/E Digest XVI E 4 c]

In Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (ALJ Dec. 5, 1995), the ALJ recommended a finding that work done with respect to responding to the Respondent's appeal to the Sixth Circuit was work incurred in connection with bringing the complaint where the Sixth Circuit never accepted jurisdiction over the complaint because the Secretary had not yet issued a final appealable order.

XVI.E.4.c. Work before Secretary and Court of Appeals


In Pogue v. United States Department of the Navy Mare Island Naval Shipyard, 87-ERA-21 (Sec'y Oct. 24, 1994) (order), the Acting Director of the Office of Administrative Appeals noted that the Secretary had remanded the matter to the ALJ to permit Complainant's former attorneys an opportunity to supplement their request for attorney's fees for work performed after the dates covered by the ALJ's earlier decision and order awarding attorney's fees. Subsequently, the Office of Administrative Appeals received by fax a copy of an order issued by the ALJ, in which she gave notice that she would only submit a recommendation to the Secretary on the additional work before the ALJ but not for work performed before the Secretary and the court of appeals. The Acting Director then directed the ALJ to consider the attorney fee request in its entirety.

[Editor's note: This order seems to be, in effect, the granting of an interlocutory appeal, which is contrary to every other request for Secretarial intervention prior to the ALJ's issuance of a recommended order. The order is also peculiar in that it directs the ALJ to consider fees for work before the Court of Appeals]

XVI E 4 c Work done on post-judgment motion

In DeFord v. Tennessee Valley Authority, 81-ERA-1 (Sec'y Aug. 16, 1984) (ruling on motion for reconsideration), the Secretary considered whether he could entertain a motion for reconsideration of a final order of the Secretary to supplement the relief granted by increasing the amount awarded for medical expenses, damages for mental pain and suffering, and attorneys' fees, or in the alternative, to remand the case to the ALJ to take evidence. Complainant submitted an affidavit itemizing his additional medical expenses and attorney's fees incurred from about the time was transferred to the ALJ (December 1980) to the month after the Secretary had issued an order following remand from the 6th Circuit (May 1984).

The Secretary assumed that Congressional silence on the issue in the ERA did not indicate an intent to prohibit a motions of this kind, and therefore turned to the Federal Rules of Civil Procedure (incorporated into the rules of practice for administrative proceedings, see e.g., 29 C.F.R. § 18.1; 41 C.F.R. 60-30.1 (1982)) for guidance. The Secretary looked to the only two possibly applicable rules: Rule 59, New Trials; Amendment of Judgments, and Rule 60, Relief for Judgment or Order.

The Secretary ruled that Complainant had an opportunity in the original hearing before the ALJ to prove his future medical expenses and damages for mental pain and suffering, and denied the motion for additional attorneys' fees for work on the post- judgment motion since such work could not be considered as "in connection with the bringing of the complaint" as provided in section 5851 of the ERA.

XVI E 4 c Fees and Costs during pendency of appeal to federal court

In Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Dec. 27, 1994), the Secretary ruled that he had no authority to approve fees and costs relating to a proceeding on appeal to the Court of Appeals for the Fourth Circuit. See DeFord v. Tennessee Valley Authority, 715 F.2d 231, 232-233 (6th Cir. 1983). The Secretary, however, allowed fees and costs for work before the Secretary following remand by the Fourth Circuit. See Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992). In addition, the Secretary allowed fees and costs for work before the ALJ and the Secretary relating to the Secretary's remand to the ALJ for reconsideration of an issue, which occurred during the pendency of the federal court appeal.

XVI E 5 Respondent's request for attorney's fees

The respondent in Saporito v. Florida Power & Light Co., 90-ERA-27, 47 (Sec'y Aug. 8, 1994) sought attorney's fees, claiming that the complainant had filed the claims in bad faith. The ALJ found that the complainant's claims were made in good faith and recommended denial of the request. The Secretary agreed with the result, but based his denial of respondent's request on the language of the ERA. The ERA does not grant the Secretary the authority to award costs or attorney's fees to a respondent. The ALJ apparently believed Rule 11 of the Federal Rules of Civil Procedure governed the respondent's request. Rule 11 does not apply to hearings before the administrative law judges as such proceedings are covered by the Department of Labor regulations. See 29 C.F.R. §§ 18.1 (a), (b) (1993).

[Nuclear and Environmental Whistleblower Digest XVI E 5]
REIMBURSEMENT FOR LEGAL FEES FOR APPEAL; DOE CONTRACTORS AND SUBCONTRACTORS UNDER ENERGY POLICY ACT OF 2005

On August 8, 2005, President Bush signed the Energy Policy Act of 2005. The Act amends the Energy Reorganization Act to prohibit the Department of Energy from reimbursing a contractor or subcontractor for legal fees incurred subsequent to an ALJ finding against the contractor or subcontractor on the merits, unless the ALJ's determination is reversed on appeal. This amendment applies to contracts entered into after the date of enactment.

[N/E Digest XVI E 5]
COSTS FOR RESPONDENT

In Olsovsky v. Shell Western E&P, Inc., 96-CAA-1 (ARB Apr. 10, 1997), Respondent requested an award of its costs, other than attorney's fees. The Board, following Secretarial precedent, held that DOL does not have statutory authority to award costs when a complaint is denied.

XVI E 5 Respondent's request for attorney fees

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993), Respondent requested a reasonable attorney's fee as a sanction against Complainant and his counsel for their purported bad faith conduct in this case, and to compensate Respondent for the time and effort spent in responding to such conduct.

The Secretary declined to impose such a sanction. He stated that the environmental actions under which the complaint was brought authorize the payment of an attorney's fee only to a successful complainant. See 15 U.S.C. 2622(b)(2)(B) (TSCA), 42 U.S.C. 7622(b)(2)(B) (CAA); 42 U.S.C. 9610(c) (CERCLA). Since there is no provision for recovery of costs and attorney's fees by a respondent, he denied the request. See Rogers v. Multi-Amp Corp., 85-ERA-16 (Sec'y Dec. 18, 1992) (under analogous provision of ERA).

The Secretary noted that Fed. R. Civ. P. 11 does not apply in the case as a basis to impose a sanction. See Rogers, slip op. at 2-3; Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 5-6 (Rule 11 does not provide a basis for sanction against a party accused of acting in bad faith in case under analogous employee protection provision of ERA).

XVI E 5 Respondent's request for attorney's fees and costs

In Rogers v. Multi-Amp Corp., 85-ERA-16 (Sec'y Dec. 18, 1992), the ALJ had denied the respondent's motion for attorney's fees and costs made under Rule 11 of the Federal Rules of Civil Procedure because the complainant filed the complaint in good faith and simply could not carry her burden of proof. The Secretary agreed that attorney fees and costs should be denied; however, she pointed out that she had recently ruled that Rule 11 does not apply to whistleblower cases because 29 C.F.R. § 18.36 provides a remedy for conduct which is dilatory, unethical, unreasonable and in bad faith. See Cable v. Arizona Public Service Co., 90-ERA-15 (Sec'y Nov. 13, 1992), slip op. at 5- 6. She also pointed out that the ERA provides for recovery of attorney's fees by complainants but not by respondents. See 42 U.S.C. § 5851(b)(2)(B).

XVI E 5 Costs as a sanction not permitted

In Tennessee Valley Authority v. Reich, No. 92- 3977, 1994 U.S. App. LEXIS 13255 (6th Cir. June 1, 1994) (unpublished), the court concluded that it could not find that the Secretary of Labor's interpretation of its own regulation regarding the assessment of costs as a sanction in an ERA proceeding was clearly erroneous. The Secretary had held that Fed. R. Civ. P. 37(b) did not apply because a specific Labor Department regulation, 29 C.F.R. 18.6(d)(2)(i-v), provided exclusive remedies and did not provide for the assessing of costs as a sanction.

XVI E 5 Respondent's request for attorney's fees

The respondent in Saporito v. Florida Power & Light Co., 90-ERA-27, 47 (Sec'y Aug. 8, 1994) sought attorney's fees, claiming that the complainant had filed the claims in bad faith. The ALJ found that the complainant's claims were made in good faith and recommended denial of the request. The Secretary agreed with the result, but based his denial of respondent's request on the language of the ERA. The ERA does not grant the Secretary the authority to award costs or attorney's fees to a respondent. The ALJ apparently believed Rule 11 of the Federal Rules of Civil Procedure governed the respondent's request. Rule 11 does not apply to hearings before the administrative law judges as such proceedings are covered by the Department of Labor regulations. See 29 C.F.R. §§ 18.1 (a), (b) (1993).

XVI E 5 Attorney's fees

ERA section 210 does not provide for an award of attorney's fees against a Complainant. Hasan v. Nuclear Power Servs., Inc., 86- ERA-24 (Sec'y June 26, 1991).

XVI E 6 Costs incurred by the complainant

In Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (Sec'y Dec. 7, 1994), the Secretary noted that he had some reservation about retainer and other costs incurred and paid by the Complainant in preparation for the administrative hearing, but accepted her representation that, "to the best of [her] knowledge," they are not reflected in her trial counsels' fee petition, and ordered the Respondent to reimburse her for those costs and expenses.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; NOT SUBJECT TO ENHANCEMENT FOR 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 had ruled that an additur may be made to attorney's fees for a delay in payment. The Board indicated, however, that costs are not subject to additur for delay. See id. @ n.16.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; COSTS INCURRED IN ASSOCIATION WITH WITNESS TESTIMONY

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 -- over the objections of Respondent -- awarded the full amount claimed by Complainant for costs incurred in association with the testimony of a witness whose testimony had, in part, not been credited by the ALJ. The ARB, citing Complainant's argument that both the ALJ and the ARB credited part of the testimony, and, based on the fact the ARB had itself relied on the testimony in ordering back pay, found that the costs associated with obtaining the testimony were reasonably incurred. Thus, the ARB allowed the entire costs on this item sought by Complainant.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
ATTORNEY FEES; NOT AVAILABLE FOR PRO SE LITIGANT

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 declined to award attorneys fees for work in the Third Circuit, because Complainant had appeared pro se before the Third Circuit, and a pro se litigant under the ERA is not entitled to an attorney fee award.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; ATTENDANCE OF COMPLAINANT AT DEPOSITION OF WITNESS FOR RESPONDENT

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 ALJ denied Complainant's claim for expenses incurred in attending the deposition of one of Respondent's witnesses because Complainant's attendance was not reasonably required. Before the ARB, Complainant argued that he had the right to attend the deposition and, as the lead investigator in the case, attended to provide advice and guidance in questioning. The ARB found that the ALJ was in the best position to assess whether Complainant reasonably incurred the cost of attending the deposition, and deferred to his assessment that Complainant's attendance was not a cost "reasonably incurred" in bringing the complaint.

[Nuclear and Environmental Whistleblower Digest XVI E 6]
COSTS; LACK OF DOCUMENTATION OR VERIFIABLE ALTERNATIVE

In Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), Complainant applied for costs incurred in attending a mediation ordered by the ALJ. Complainant, however, had lost his receipts when a hurricane damaged his home. The ALJ awarded mileage expense because it was possible to calculate the distance from Complainant's home to the mediation location; however, the ALJ, citing Johnson v. Bechtel Construction Co., 1995-ERA-11 (Sec'y Feb. 26, 1996), denied expenses for meals and lodging because there was neither any documentation nor any alternative way for the ALJ to ascertain the exact expenses incurred. The ARB affirmed the ALJ on this issue.

Similarly, the ARB declined to disturb the ALJ's rulings denying costs for undocumented expenses for local travel, faxes and photocopies. The ARB held that the ALJ was free to accept or reject the reason Complainant gave for his inability to produce all receipts.

EXPERT WITNESS; FEES FOR EXPERT WHOSE TESTIMONY WAS REJECTED
[N/E Digest XVI E 6]

In Artrip v. Ebasco Services, Inc., 89-ERA-23 (ARB Sept. 27, 1996), Complainant enlisted an expert to testify regarding lost earnings. The ALJ did not credit the testimony because the calculations were based merely on assumptions and were inaccurate. The ALJ, however, included the expert's bill as expense reasonably incurred by Complainant. The Board held that "[i]t was not unreasonable in this case for [Complainant] to enlist an expert to make computations and projections based on his theory of back pay liability, even though his theory was ultimately rejected." See 42 U.S.C. § 5851(b)(2)(B).

COSTS AND EXPENSES; JOB SEARCH EXPENSES
[N/E Digest XVI E 6]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Deputy Secretary awarded the Complainant job search expenses for mailing, telephone and travel.

[Editor's note: Although the Deputy Secretary discussed these "expenses" in a part of the opinion otherwise addressing litigation expenses, it may not have been his intention to categorize them as such but rather to address them as compensatory damages.]

COSTS AND EXPENSES; LOSSES FROM SALE AND PURCHASE OF NEW HOUSE
[N/E Digest XVI E 6]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Complainant sought reimbursement for losses incurred upon the sale of his home in Connecticut in 1992 after his discriminatory lay off, and for payments to a bank associated with the purchase of a new house in a Virginia. The Deputy Secretary did not award recovery of these expenses because had the Complainant remained employed with the Respondent, he would have been relocated to Florida upon the sale of the business and would not have been reimbursed for any loss associated with the sale of his house. The Deputy Secretary noted that there was no evidence of a change in the local real estate values in the interim period between the sale of the house in 1993 and the time the Complainant would have been relocated in 1994.

[Editor's note: Although the Deputy Secretary discussed these "expenses" in a part of the opinion otherwise addressing litigation expenses, it may not have been his intention to categorize them as such but rather to address them as compensatory damages.]

COSTS AND EXPENSES; REDUCED EARNINGS DURING HEARING
[N/E Digest XVI E 6]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Deputy Secretary did not separately award money to replace lost wages incurred by the Complainant when he had to take leave without pay from his new job to attend the hearing. The Deputy Secretary found that the back pay award covers this cost since interim earnings(which would be an offset of the back pay award) were reduced for the time he was on leave without pay.

COSTS AND EXPENSES; TRANSPORTATION, LODGING AND MEALS DURING HEARING
[N/E Digest XVI E 6]

Reimbursable costs include a successful complainant's transportation to, and lodging and meals while attending, the DOL hearing. In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996).

COSTS AND EXPENSES; TRAVEL EXPENSES FOR FAMILY TO VISIT COMPLAINANT AT NEW JOB PRIOR TO MOVING ENTIRE FAMILY
[N/E Digest XVI E 6]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Deputy Secretary awarded the Complainant travel expenses for two trips his family made to visit him in another state prior to the time the entire family moved to join him. The Complainant would have incurred this expense if he had not been discriminatorily laid off.

[Editor's note: Although the Deputy Secretary discussed these "expenses" in a part of the opinion otherwise addressing litigation expenses, it may not have been his intention to categorize them as such but rather to address them as compensatory damages.]

COSTS; BOOKS; PRO SE COMPLAINANT
[N/E Digest 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 recover the costs of books concerning trial preparation.

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.

XVI E 6 ATTORNEY'S FEES; PRO SE COMPLAINANT

A successful pro se complainant in an ERA whistleblower case is not entitled to payment of attorney fees, but is entitled to payment of the reasonable costs incurred in bringing the complaint, such as fees for typing, photocopying, mailing, telegrams, long distance telephone calls, and the like. Johnson v. Bechtel Construction Co., 95-ERA-11 (Sec'y Sept. 11, 1995).

XVI E 6 Costs incurred by the complainant

A complainant is not entitled to compensation for purchase of a Whistleblower Handbook.

Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (Sec'y Dec. 7, 1994).

[Editor's note: Apparently, the Secretary is referring to a Whistleblower Handbook published by several of her attorneys.]

XVI E 7 ATTORNEY FEES; PRELIMINARY ORDER

In Varnadore v. Oak Ridge National Laboratory, 94-CAA-2 and 3 (Sec'y Sept. 11, 1995), the Secretary held that, under the whistleblower provision of the ERA as amended in 1992, 42 U.S.C. § 5851(b)(2)(A) and (B), where the ALJ issues a recommended decision finding that the complainant has prevailed on any of his or her claims and that relief should be granted, the complainant is entitled to a preliminary order of attorney's fees and costs. The Respondent in Varnadore expressed concern that recouping paid fees and costs would be difficult if the Complainant ultimately failed on the merits or the recommended fee award be reduced. The Secretary indicated that recoupment of fees should not be a significant problem because 20 C.F.R. § 18.36 permits exclusion of an attorney from appearing before an ALJ for refusing to comply with directions.

[Nuclear & Environmental Digest XVI E 7]
ATTORNEY FEES; OBLIGATION OF COMPLAINANT'S ATTORNEY TO REPAY FEES AND COSTS AWARDED IN A PRELIMINARY ORDER IF THE ARB REVERSES THE ALJ'S DECISION ON THE MERITS

In Varnadore v. Oak Ridge National Laboratory, 1994-CAA-2 and 3 (ARB Sept. 6, 1996), the ARB rescinded a preliminary order, issued on September 11, 1995, directing Respondent to pay Complainant's counsel's attorneys fees. The order was rescinded because the ARB had later reversed the ALJ's recommended decision in favor the Complainant. The ARB also ordered Complainant's counsel to repay the attorney's fees and costs paid to him pursuant to the preliminary order.

Ultimately, the ARB's decision on the merits in Varnadore was affirmed by the Sixth Circuit. See Varnadore v. Secretary of Labor, 141 F.3d 625 (6th Cir. 1998).

In Lockheed Martin Energy Systems, Inc. v. Slavin, No. 3:98-CV-613 (E.D. Tenn. June 18, 1999), Respondent brought a collection action before a Federal District Court, which ordered Complainant's counsel to repay the attorneys fees and costs as directed by the ARB, and to pay all costs associated with the action, and all prejudgment interest dating back to the Sept. 6, 1996 ARB order. In Lockheed Martin Energy Systems, Inc. v. Slavin, No. 3:98-CV-613 (E.D. Tenn. Aug. 17, 1999), the court denied reconsideration.

ATTORNEY'S FEES PAID ON PRELIMINARY ORDER; BOARD'S AUTHORITY TO ORDER REPAYMENT; SANCTION FOR FAILING TO REPAY
[N/E Digest XVI E 7]

In Varnadore v. Oak Ridge National Laboratory, 94-CAA-2 and 3 (ARB Sept. 6, 1996), Respondent had been ordered by the Secretary to pay Complainant's attorney fees following the ALJ's recommended decision that the complaint had merit. See 42 U.S.C. § 5851(b)(2)(A). After the ALJ's recommendation of relief was rejected by the Board, Respondent filed a motion for an order requiring repayment of the attorney fees. The Board granted Respondent's motion, holding that the whistleblower provision of the ERA requires that a Preliminary Order granting relief be rescinded when the Board dismisses all of a complainant's claim, and that the Board has the authority to issue such an order requiring repayment of attorney's fees. The Board distinguished Macktal v. Brown & Root, Inc., 86-ERA-23 (Sec'y July 11, 1995), in which the Secretary held that neither an ALJ nor the Secretary had the authority to order a complainant to return monies paid on a settlement that the Secretary had later disapproved. The Board focused on the fact that Macktal involved a private agreement between the parties, whereas the instance situation involved the continuing validity of an order issued by the Secretary pursuant to explicit statutory authority.

The Board observed that the Secretary stated in the Preliminary Order in response to Respondent's concern about its ability to recoup the attorneys fees if no violation was found to have occurred, that "given the authority contained in 29 C.F.R. § 18.36 (1994) to exclude an attorney from appearing before an ALJ for refusal to comply with directions, it is unlikely that recoupment of attorney''s fees will present a significant problem."

ATTORNEY'S FEES AND COSTS; INTERIM ORDER
[N/E Digest XVI E 7]

In Gaballa v. The Atlantic Group, 94-ERA-9 (Sec'y Dec. 7, 1995)(interim order), the Secretary followed the precedent set in Varnadore v. Oak Ridge National Laboratory, 94-CAA-2 and 3 (Sec'y Sept. 11, 1995), that " where a complainant has prevailed after a hearing before an ALJ and a recommended decision issued, the Secretary shall, pursuant to § 5851(b)(2)(A) and (B), issue an interim order awarding to the complainant, an amount equal to the aggregate amount of all costs and expenses (including attorneys' and expert witness fees) which the Secretary determines to have been reasonably incurred for, or in connection with, bringing the complaint. If [a respondent] is successful in its appeal of the ALJ's recommended decision, it is anticipated that recoupment of the attorney's fees would not pose a substantial problem." Varnadore at 9-10; 29 C.F.R. § 18.36 (1994).