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Office of Administrative Law Judges
USDOL/OALJ STAA Whistleblower Digest
DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION C -- LITIGATION EXPENSES

[Last updated Oct. 30, 2013]


IX. Damages and remedies

C. Litigation expenses


[STAA Digest IX C]
ATTORNEY’S FEES AND LITIGATION COSTS; ALJ DECIDES REQUEST FOR FEES AND COSTS PETITION FOR WORK BEFORE OALJ – SUBJECT TO ARB REVIEW; ARB DECIDES REQUEST FOR FEES AND COSTS PETITION FOR WORK BEFORE THE ARB; ALJ PROPERLY CONSIDERS ONLY THOSE SERVICES RENDERED BEFORE HIM; ARB HAS, IN CERTAIN CIRCUMSTANCES, AUTHORITY TO AWARD LEGAL FEES AND COSTS OF LITIGATION IN PROCEEDINGS BEFORE A FEDERAL COURT OF APPEALS OR A BANKRUPTCY COURT

In Smith v. Lake City Enterprises, Inc. ., ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the ARB explained which adjudicatory entity decides attorney fee petitions in STAA cases:

A request for the award of attorney’s fees and litigation costs incurred before an ALJ is within the jurisdiction of the ALJ to decide initially, subject to ARB review. [29 C.F.R. § 1978.109(d)(1).] A request for the award of attorney’s fees and litigation costs incurred before the ARB is within the jurisdiction of the ARB to decide. [29 C.F.R. § 1978.110(d).]

USDOL/OALJ Reporter at 4 (footnotes omitted). On appeal, the Complainant’s attorney argued that the ALJ erred in discounting the hours of service he rendered before the U.S. Court of Appeals for the Sixth Circuit and before the ARB. The ARB held that the ALJ "appropriately concluded that he could not award fees for services performed before another tribunal…." USDOL/OALJ Reporter at 6. The ARB stated:

In considering whether the fees requested were reasonably incurred in the successful prosecution of a complaint, the ARB has held that services peripheral to the litigation are not compensable. For example, an attorney’s time spent on accounting and tax issues related to a complainant’s damages is not compensable because the services were not integral to litigation of the case. Further, an ALJ has no authority to award attorney’s fees for services before a federal court of appeals or a bankruptcy court. The ALJ properly considered only those services rendered before him.

USDOL/OALJ Reporter at 6 (footnotes omitted). The ARB noted, however, that it "retains in certain circumstances authority to award legal fees and costs of litigation in proceedings before a federal court of appeals or a bankruptcy court, provided the representation involved is integral to the underlying whistleblower complaint." USDOL/OALJ Reporter at n.30, citing Pierce v. U.S. Enrichment Corp., ARB Nos. 06-055, -058, 119; slip op. at 3 (ARB Feb. 27, 2009).

[STAA Digest IX C]
ATTORNEY FEE AWARD BY ALJ; ARB EMPLOYS ABUSE OF DISCRETION STANDARD OF REVIEW

In Smith v. Lake City Enterprises, Inc. ., ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the ARB stated that it "reviews an ALJ’s award of attorney’s fees under an abuse-of-discretion standard, which includes determining whether the ALJ’s factual findings are by the substantial evidence of record, and considering de novo whether the ALJ’s legal conclusions are in accordance with applicable law." USDOL/OALJ Reporter at 2-3 (footnotes omitted). The ARB elaborated:

Effectively, the ARB has embraced the abuse-of-discretion standard applied by federal appellate courts in the review of a district court’s attorney fee award. "[R]eview of the district court’s award is sharply circumscribed; we have recognized that because a district court has close and intimate knowledge of the efforts expended and the value of the services rendered, the fee award must not be overturned unless it is clearly wrong." Consideration is given to "whether the decision-maker failed to consider a relevant factor, whether he [or she] relied on an improper factor, and whether the reasons given reasonably support the conclusion." Additionally, abuse of discretion will be held to occur if the tribunal "did not apply the correct legal standard . . . or if it misapprehended the underlying substantive law."

USDOL/OALJ Reporter at 3 (footnotes omitted).

[STAA Digest IX C]
ATTORNEYS FEES ARE BASED ON HOURLY RATE FOR PLACE WHERE THE CASE WAS FILED

In Smith v. Lake City Enterprises, Inc. ., ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the Complainant’s attorney argued that he was entitled to an hourly rate for attorneys in the Washington, DC metropolitan area, where he had relocated and currently resided, as opposed to the hourly rate for the place where the case was filed – Cincinnati, Ohio. The ARB rejected this argument holding that "The ALJ properly concluded that the relevant market community for determining a reasonable hourly billing rate for the legal work performed before the ALJ is the place where the case was filed, which in this case was Cincinnati, Ohio. The ALJ reasonably determined that [the Complainant’s attorney’s] relocation to an area where hourly rates for legal services are larger (D.C.) does not require an increase in the hourly rate larger than that in the community where the complaint was filed (Ohio)." USDOL/OALJ Reporter at 4 (footnote omitted).

[STAA Digest IX C]
ATTORNEY’S FEES; INCREASE AWARDED BASED ON DELAY BETWEEN ALJ’S DECISION ON FEES AND THE ARB’S FINAL DECISION

In Smith v. Lake City Enterprises, Inc., ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the ARB agreed with the Complainant’s attorney’s argument that because of the nearly year-long delay between the ALJ’s decision awarding attorney’s fees and the ARB’s decision on appeal, the hourly rate awarded pursuant to the Complainant’s fee petition should be increased. The ARB ruled that "in fairness and equity, and consistent with legal authority, we add a five percent increase to the ALJ’s hourly rate of $325.00, raising that rate to $340.00 an hour." USDOL/OALJ Reporter at 7 (footnote omitted).

[STAA Digest IX C]
ATTORNEY FEES; UNOPPOSED FEE PETITION MUST NONETHELESS BE REVIEWED BY THE ARB TO ENSURE COMPLIANCE WITH APPLICABLE STANDARDS

In Youngermann v. United Parcel Service, Inc., ARB No. 11-056, ALJ No. 2010-STA-47 (ARB June 5, 2013), the Complainant's counsel filed a fee petition to which the Respondent did not file an oppostion. The ARB stated that "Even though the fee petition was unopposed, we have an obligation to ensure that it follows applicable standards. Moder v. Village of Jackson, ARB Nos. 01-095, 02-039; ALJ No. 2000-WPC-005, slip op. at 1 (ARB Oct. 28, 2003)." USDOL/OALJ Reporter at 2, n.1. The ARB stated: " An attorney seeking a fee award must submit evidence documenting the hours worked and the rates claimed, as well as records identifying the date, time, and duration necessary to accomplish each specific activity and all claimed costs. In addition, the attorney must demonstrate the reasonableness of his hourly fee by producing evidence that the requested rate is in line with fees prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Cefalu v. Roadway Express, Inc., ARB Nos. 04-103, -161; ALJ No. 2003-STA-055, slip op. at 3 (ARB Apr. 3, 2008). " USDOL/OALJ Reporter at 2.

[STAA Digest IX C]
ATTORNEY'S FEES; EVEN THOUGH PETITION IS UNOPPOSED, ARB WILL REVIEW PETITION FOR COMPLIANCE WITH APPLICABLE STANDARDS

In Cefalu v. Roadway Express, Inc., ARB No. 09-070, ALJ No. 2003-STA-55 (ARB Mar. 17, 2011), the ARB held that, even though the Complainants' attorneys' fees petitions were unopposed, it nonetheless had the obligation to ensure that they followed applicable standards, such as documentation of the hours worked and rates claims, and documentation of the reasonableness of the hourly fee. In the instant case, the ARB found that the fee petitions met those standards, and the ALJ's attorney fee awards would be affirmed.

[STAA Digest IX C]
ATTORNEY'S FEES; TRAVEL TIME IS COMPENSABLE, BUT AT A LOWER RATE

In Smith v. Lake City Enterprises, Inc., ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ARB found that the ALJ erred in granting attorney's fees at the Complainant's attorney's full approved rate. Rather, the ARB stated that although travel time is generally compensable, it is often approved at a reduced hourly rate. Based on prior precedent, the ARB only approved half the hourly rate.

[STAA Digest IX C]
FEE PETITION; REDUCTION OF HOURLY RATE AND HOURS REQUESTED BASED ON LACK OF COMPLEXITY OF CASE AND OTHER FACTORS

In Pollock v. Continental Express, ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB found that the ALJ's determination to reduce the Complainant's counsel's requested hourly rate of $275per hour to $250 per hour was a reasonable exercise of his discretion where the ALJ found that the case presented no novel issues or complicated facts, the hearing lasted only three days, and the Board had approved the previous rate of $250. The ARB also approved the ALJ's determination that counsel's time entries on the fee petition were excessive given the lack of complexity of the case. The ALJ, taking into consideration the attorney's expertise and experience, the quality of the brief, and the lack of complex issues, excluded any time on brief writing over three working days as excessive. The ALJ also reduced the number of hours allotted for writing a reply brief, and for reviewing the hearing transcript. The ALJ also reduced the number of hours requested for Complainant's counsel's non-attorney associate's presence at the hearing. The ARB found that the ALJ had fully analyzed the Respondent's objections to the fee petition, had properly applied the lodestar method to his analysis, and that substantial evidence supported the ALJ's findings.

[STAA Digest IX C]
ATTORNEY FEE PETITION FOR WORK BEFORE APPELLATE COURT; REDUCTIONS UNDER LODESTAR METHOD WHERE THE SOLICITOR OF LABOR DEFENDED ARB DECISION, WHERE SOME BILLING ENTRIES WERE UNEXPLAINED OR APPEARED TO BE DUPLICATIVE, AND WHERE BILLINGS WERE EXCESSIVE UNDER STANDARDS OF PRIVATE PRACTICE

In Cefalu v. Roadway Express, Inc., ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 6, 2010), the ARB considered the Complainant's attorney's fee petition for work before the Seventh Circuit Court of Appeals. The ARB reduced the requested award of fees by one-third pursuant to the lodestar method of calculating attorney fees. The ARB found that the issues before the Seventh Circuit were not novel, and that they were the same as those briefed and argued before the ALJ and the ARB. Moreover, the Solicitor of Labor defended the ARB decision on appeal, and the Complainant's attorney's appearance and work was possibly helpful, but not required, before the court of appeals. Moreover, the appeal was only partially successful. The ARB found that it was not clear what value the Complainant's attorney added to the case. Moreover, the ARB found some entries on the fee request were unexplained, and batched with time for more properly billed services. Finally, the ARB noted that both the Complainant's attorney, and the Complainant's daughter (who was also an attorney), represented that they worked on the intervenor's brief before the court of appeals. The ARB found that it could not determine the extent to which their work was duplicative or distinct, but that it could determine that "a total of over 150 hours for the two lawyers' work while the case was pending in the Circuit for briefing, oral argument, and travel is excessive by the standards of private practice." The ARB also reduced the Complainant's attorney's requested expenses.

The ARB reduced the Complainant's daughter's fee petition by two-thirds because of batched entries, the appearance that her attendance at conferences may have served merely to keep her informed rather than to have advanced the case, and her work on several matters appeared to duplicate time for which the Complainant's attorney had already been compensated. The ARB also found that although it was commendable that the Complainant's daughter attended oral argument, it could not conclude that her attendance was necessary.

[STAA Digest IX C]
ATTORNEY FEE PETITION; BILLING RATE FOR ATTORNEY EXPERIENCED IN DOL WHISTLEBLOWER PROCEEDINGS WITH NATIONAL LAW PRACTICE

In Shields v. James E. Owen Trucking, Inc., ARB No. 08-072, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the Complainant's attorney was from Minnesota. The Respondent argued that the ALJ erred in finding that the Complainant's attorney's billing rate of $325.00 for his work beginning on June 1, 2007, and $275.00 per hour for his work before that time, was reasonable when compared to rates charged by other attorneys in Southwestern Virginia because the relevant community was specifically Roanoke, Virginia, and because the Complainant's attorney did not show that the case was complex or specialized or concerned any politically sensitive issues. The ARB found that ALJ's approval of the hourly rates was reasonable where the Complainant's attorney had practiced law for 23 years and has a nationwide law practice, handling approximately 135 cases arising under the STAA including 51 administrative trials before the OALJ; the attorney had prior work experience in the field of transportation (some of which was at an executive level); the attorney's billing rate was less than many similarly situated lawyers in his region of the country; and the attorney had provided affidavits from experienced attorneys who alleged that his rate was reasonable. In addition, the ARB noted that the ALJ's personal observation from the proceedings before him was that the attorney was highly experienced and was specialized in a narrow area of the law that is arcane to many other lawyers.

[STAA Digest IX C]
ATTORNEY FEE PETITION; REASONABLENESS OF HOURS EXPENDED; RESPONDENT'S PRO SE STATUS AS FACTOR

In Shields v. James E. Owen Trucking, Inc., ARB No. 08-072, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the Respondent argued that the Complainant's attorney spent an excessive amount of time on the case in light of the standards of the private bar, in view of the fact that there was only one issue at the one-day trial, and in view of the absence any legally or factually difficult peculiarities. The Respondent also noted that the requested attorney fee well exceeded the amount awarded to the Complainant. The ARB, however, affirmed the ALJ's finding that the hours had been reasonably expended where the Respondent's pro se status had made discovery difficult, and where the Complainant's brief and stipulations had been very complete and helpful to the ALJ in drafting the decision. The ARB also noted that the ALJ had taken into consideration that the Complainant's attorney had used a tenth of an hour billing method and did not charge for clerical items.

[STAA Digest IX C]
ATTORNEY FEE PETITION; REASONABLENESS OF COMPENSATION FOR TRAVEL TIME OF ATTORNEY AND EXPERT WITNESS

In Shields v. James E. Owen Trucking, Inc., ARB No. 08-072, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the Respondent argued that the ALJ erred in finding that the Complainant's attorney was entitled to reimbursement for his travel expenses because the attorney failed to show that it was necessary for the Complainant to hire counsel outside of the relevant community of Roanoke, Virginia. The ARB, however, agreed with the ALJ's finding that the requested compensation was reasonable. The ALJ noted that the attorney had reduced his travel time by fifty percent even though travel time is generally compensable. The ALJ also found that the Respondent had not directed the ALJ to a prohibition on travel on the basis that local counsel is preferred. The ARB similarly affirmed the ALJ's decision not to reduce the travel expenses for a non-local expert witness.

[STAA Digest IX C]
ATTORNEY FEE PETITION; ADEQUATE EXPLANATION; INCREASE IN RATE DURING LITIGATION

In Cefalu v. Roadway Express, Inc., ARB Nos. 04-103 and 161, ALJ No. 2003-STA-55 (ARB Apr. 3, 2008), the ARB approved the Complainant's attorney's petition for fees for matters over which he had adequately explained and shown were reasonably expended. The ARB also approved the attorney's request for seven hours to be compensated at an increased rate of $275 per hour (a $25 increase) where the increase was not opposed and was supported by comparable market area data. The ARB disallowed several fee entries for telephone conferences with co-counsel where there was no explanation why they were necessary.

[STAA Whistleblower Digest IX C]
ATTORNEY FEE PETITIONS; LEGAL STANDARDS

In Jackson v. Butler & Co., ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-26 (ARB Aug. 31, 2004), the ARB reviewed the legal standards applied to consideration of attorney fee applications:

    In reviewing attorney's fee awards, the ARB follows the fee-shifting precedents of the Supreme Court and other federal courts.

    Once it is established that the plaintiff has prevailed, Hensley v. Eckerhart, 461 U.S. 424 (1983) provides the framework for deciding the merits of fee petitions. The Hensley Court said, "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. This lodestar "calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Id. The district court may reduce the award for inadequately documented hours, or for hours that were not "reasonably expended" due to overstaffing or inexperience. As in private practice, "[h]ours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority." 461 U.S. at 434 (emphasis in original).

    The petitioner bears the burden of proof that claimed hours of compensation are adequately demonstrated and reasonably expended. Under DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir. 1985), the "reasonableness of the time expended must . . . be judged by standards of the private bar" so that "hours claimed are to be examined in detail with a view to the . . . value of the work product to the client in light of the standards of the private bar." Faced with an unreasonable number of hours, the court can reduce the lodestar fee by a reasonable amount or percentage, without performing an item-by-item accounting.

    Courts will permit a partner/associate, or first/second chair staffing, especially at trial. However, they will exclude time that is duplicative, e.g., where two or more attorneys unnecessarily attend hearings and depositions, and perform the same tasks. Also excluded is time attributed to office conferences, supervision and training, and review and revision, since such time is not normally billable to private clients.

    The other element of the lodestar calculation (besides time reasonably expended) is the reasonableness of plaintiff's attorney's hourly rates. In Blum v. Stenson, 465 U.S. 886 (1984), the Court held that fees under 42 U.S.C.A. § 1988 (West 2003) were to be "calculated according to the prevailing market rates in the relevant community." 465 U.S. at 895. It is the petitioners' burden "to produce satisfactory evidence – in addition to the attorney's own affidavits – that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Id. at 895 n.11. In deciding the "prevailing market rates in the relevant community," the court may consider, among other things, rates plaintiff's attorney charges paying clients, and rates other lawyers in the community charge for similar work.

    Finally, the party seeking a fee award must submit evidence documenting the hours worked and the rates claimed. As we have said, "[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." Gutierrez, slip op. at 13 (internal quotations and citations omitted).

Slip op. at 10-11 (citations omitted).

In Jackson, the ARB found that declarations from Complainant's lead attorney and two other lawyers stating that the attorney should receive $325 per hour based on his relevant experience fell short of establishing the market rate for comparable work in North Florida. Rather, the ARB, although acknowledging that the attorney's work on the case was excellent and that he was highly experienced, awarded fees at the rate of $300 per hour rate awarded in a recent federal district court decision.

In regard to an Associate attorney's work on the case, the ARB accepted that $175 an hour was a reasonable rate given the aforementioned district court's award and the ALJ's perception that the associate could have handled the matter (albeit the ARB stated that rate was at the high end of the market for an associate with two years of experience). Because it had accepted the senior associate's hourly rate, however, the ARB made downward adjustments, based on review and revision of the associate's work, supervision and training, duplication of effort, and legal research on topics of presumed expertise. Because many of the entries for her work were batched with properly chargeable work, the ARB imposed a 15% downward adjustment rather than just deleting the offending items.

[STAA Whistleblower Digest IX C]
COSTS; OVERHEAD BUILT INTO HOURLY RATE

In-house reproduction, postage and express package costs are generally considered part of attorney overhead and are built into the hour rates. Jackson v. Butler & Co., ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-26 (ARB Aug. 31, 2004) (awarding, however, expert witness fess, court reporter fees, and outside copying charges).

[STAA Whistleblower Digest IX C]
ATTORNEY'S FEES; PARTIAL SUCCESS BEFORE ALJ; REDUCTION FOR WORK BEFORE ALJ IS NOT NECESSARILY APPLICABLE TO WORK BEFORE THE ARB

In Eash v. Roadway Express, Inc., ARB Nos. 02 008, 02 064, ALJ No. 2000 STA 47 (ARB Mar. 9, 2004), the ARB declined to follow the ALJ's formula for reducing attorney's fees awarded for work before the ALJ based on the fact that the Complainant's had only obtained partial success on the complaint. The Board found that it was not bound by the ALJ's determination when considering a petition for work done before the Board, and that the attorney had successfully defended on appeal the portion of the ALJ's recommended decision that was in favor of the Complainant. The Board therefore awarded the entire amount sought.

[Editor's note: the ARB had previously affirmed the ALJ's reduction of fees and costs based on limited success of the Complainant's attorney before the ALJ in Eash v. Roadway Express, Inc., ARB Nos. 02 008, 02 064, ALJ No. 2000 STA 47 (ARB June 27, 2003)].

[STAA Whistleblower Digest IX C]
ATTORNEY'S FEES AND COSTS TO RESPONDENT; DOL DOES NOT HAVE THE AUTHORITY TO AWARD UNDER THE STAA

In Somerson v. Mail Contractors of America, ARB No. 03 042, ALJ No. 2003 STA 11 (ARB Oct. 14, 2003), the ARB denied Respondents' request that the Board enter an award of costs and attorneys' fees against Complainant, noting that the Secretary of Labor had held that there is no authority to award attorney's fees and costs against a complainant under the STAA. Abrams v. Roadway Express, Inc., 1984 STA 2, slip op. at 1 2 (May 23, 1985). In the decision, the ARB had affirmed the ALJ's summary denial of a "specious" complaint.

To the same effect: Somerson v. Mail Contractors of America, ARB No. 02 057, ALJ Nos. 2002 STA 18 and 19, slip op. at n.50 (ARB Nov. 25, 2003).

[STAA Whistleblower Digest IX C]
ATTORNEYS FEES AND COSTS; REDUCTION IN PROPORTION TO LIMITED SUCCESS OF COMPLAINT

In Eash v. Roadway Express, Inc., ARB Nos. 02 008 and 02 064, ALJ No. 2000 STA 47 (ARB June 27, 2003), the ARB affirmed the ALJ's reduction of attorney's fees and costs based on the limited degree of success of Complainant's attorney in presenting the case. Specifically, the ALJ had granted partial summary decision to Respondent on three issues in June of 2001; the ALJ reduced attorney's fees by one half for work prior to that time as one half of the case was dismissed on summary decision. Three issues remained after the summary decision, with Complainant ultimately prevailing on only one issue. The ALJ therefore ordered that Complainant's attorney only receive one third of all fees charged after June of 2001. The ARB also affirmed the ALJ's reduction in the same proportions of Complainant's costs. Complainant's only relief in the matter had been expungement of a single warning letter. Respondent was ordered to pay a total of $17,774.25 in attorney's fees and costs.

[STAA Whistleblower Digest IX C]
ATTORNEY'S FEES AND COSTS FOR APPELLATE WORK; SIXTH CIRCUIT

In Scott v. Roadway Express, Inc., ARB No. 01 065, ALJ No. 1998 STA 8 (ARB May 29, 2003) (order granting attorney's fees), the ARB considered whether it had authority to award attorney fees and costs incurred by Complainant in defending the ARB decision and prior fee award in the Court of Appeals. The Board found that 49 U.S.C. § 31105(b)(3)(B) provided authority for making such an award. Because the case was appealed to the Sixth Circuit, the Board considered whether that court's decision in DeFord v. Sec'y of Labor, 715 F.2d 231 (6th Cir. 1983) B which arose under the ERA rather than the STAA B constituted an absolute bar to the ARB awarding fees for work before the court of appeals. The Board held that, as it read DeFord, "the Secretary is not foreclosed from awarding attorney's fees to a complainant who prevails in his or her own case before the Sixth Circuit." Slip op. at 3. The Board distinguished language in earlier DOL decisions which suggested that DeFord may prevent such awards in cases appealed to the Sixth Circuit on the ground that the complainant was not a party to the appeal or that the earlier language was only dicta. The Board also noted that it has exercised authority to award fees for appellate work in circuits other than the Sixth Circuit. Thus, because the Complainant in the instant case was a party and necessarily and successfully defended the Respondent's appeal to the Sixth Circuit, the Board concluded that he was entitled to an award of fees by the ARB.

IX C Attorney's fees not allowed for Respondent where no violation

In Abrams v. Roadway Express, Inc., 84-STA-2 (Sec'y May 23, 1985), the Secretary adopted the ALJ's recommendation that Respondent did not violate the employee protection provision of the STAA. The Secretary indicated that because he "has no authority under section 405(c)(2)(B)[,] 49 U.S.C. 2305(c)(2), to award attorneys' fees and costs in cases in which he determines that there has been no violation of the Act[,] Respondent's request for attorneys' fees and costs . . . is denied."

[STAA Digest IX C]
ATTORNEY'S FEES; RATE FOR PRIVATE ATTORNEY WHO NORMALLY CHARGES LOWER RATE FOR PUBLIC INTEREST CASES

In Murray v. Air Ride, Inc., ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000), the ARB wrote:

    To the extent that we have not already done so in other attorney's fees decisions, we explicitly adopt the view articulated by the Court of Appeals for the District of Columbia Circuit in Save our Cumberland Mountains, Inc. v. Hodel (SOCM), 857 F.2d 1516, 1524 (D.C. Cir. 1988)(en banc) that "the prevailing market rate method . . . used in awarding fees to traditional for-profit firms and public interest services organizations" should "apply as well to those attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals." See also Covington v. District of Columbia, 57 F.3d 1101 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 916 (1996).

Slip op. at 10. Thus, the ARB held that "the fact that an attorney often charges below-market rates for public interest clients does not preclude such an attorney from charging higher, market rates in other public interest litigation." Id.

In Murray, counsel was awarded hourly rates of $335.00 for 1999, and $340.00 for 2000, where the Laffey Matrix supported the rate for location where the hearing took place (Washington, D.C.), counsel submitted supporting affidavits, and counsel had demonstrated to both the ALJ and the ARB that his experience, reputation and expertise would enable him to command top dollar should he choose to do so (Counsel's normal rate for public interest clients was $235 per hour in 1999 and $250 in 2000). Both the ALJ and the ARB had been impressed the ALJ characterizing counsel's work as "outstanding" and the ARB expressing the "wish that attorneys with his skill and dedication would appear before this Board with greater regularity." Slip op. at 11.

[STAA Digest IX C]
ATTORNEY'S FEES; TIME PRIOR TO ACTUAL FILING OF COMPLAINT

In Murray v. Air Ride, Inc., ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000), the ARB noted that "attorney's fees are recoverable for time spent on a case prior to the actual filing of the complaint. See, e.g. Webb v. County Board of Education of Dyer County, 471 U.S. 234, 243 (1984)." Slip op. at 11 n.11. The ARB, however, did deduct several hours from the fee petition that were billed for a period when Counsel was not representing Complainant.

[STAA Digest IX C]
ATTORNEY'S FEES; TIME PREPARING THE FEE PETITION

In Murray v. Air Ride, Inc., ARB No. 00-045, ALJ No. 1999-STA-34 (ARB Dec. 29, 2000), the ARB rejected the ruling in Hilton v. Glas-Tec Corp., 1884 STA-6 (Sec'y July 15, 1986), indicating that an attorney is not entitled to fees for time spent in preparing his fee petition. The ARB found that more recent decisions by the Secretary of Labor have taken the opposite, and correct position. See Spinner v. Yellow Freight System Inc.,1990-STA-17 (Sec'y ); Clay v. Castle Coal and Oil Co. Inc, 1990-STA-37 (Sec'y), rev. on other grounds, 55 F.3d 41 (2d Cir. 1995).

[STAA Digest IX C]
ATTORNEY'S FEES; REASONABLENESS OF LAFFEY MATRIX

Although agreeing that an attorney's fee application should be calculated using the "lodestar method," the parties in Murray v. Air Ride, Inc., 1999- STA-34 (ALJ May 31, 2000), differed in how to determine a reasonable hourly rate. Complainant's counsel requested payment based on the "Laffey Matrix," which purportedly sets out the hourly rates prevailing in the community for similar work based on the number of years an attorney has been practicing law. Respondent contended that the Laffey Matrix is not applicable to DOL proceedings, citing Blum v. Stenson, 465 U.S. 886, 895 and n.11 (1984), and asserting that the most reasonable rate to apply is the rate Complainant's counsel charges to his clients who can afford something in the neighborhood of commercial rates. The ALJ determined, however, that under Blum, it is the market rate in the community rather than the rate usually charged by complainant's counsel that determines the rate at which his services will be compensated. The ALJ observed that the Secretary had followed Blum in other whistleblower cases, and concluded that the principles of that case were applicable to the attorney fee application before him.

Noting that it is Complainant's counsel's burden to establish the prevailing market rate for attorneys of similar skill and experience, that Complainant's counsel had submitted affidavits from three attorneys in practices similar to his who stated that the Laffey Matrix is an accurate reflection of the usual rates charged in the community in similar cases, and that Respondent had provided no contrary evidence, the ALJ based the hourly rate for Complainant's counsel on the Laffey Matrix.

[STAA Digest IX C]
ATTORNEY'S FEES; HOURS BILLED PRIOR TO FILING OF WHISTLEBLOWER COMPLAINT

In Murray v. Air Ride, Inc., 1999-STA-34 (ALJ May 31, 2000), the ALJ held that Complainant's counsel could be reimbursed for hours billed prior to the filing of the whistleblower complaint with OSHA.

[STAA Digest IX C]
ATTORNEY'S FEES; PREPARATION OF FEE PETITION

Acknowledging that the listing of hours spent by date and subject matter in preparing an attorney fee application is usually held to be a clerical job not subject to an attorney's fee, the ALJ in Murray v. Air Ride, Inc., 1999-STA-34 (ALJ May 31, 2000), awarded such fees where the fee petition in the case sub judice was extensive, including a brief on the fees, a declaration by counsel, three declarations from other attorneys, a copy of the Laffey Matrix, and three exhibits in support of expenses.

[STAA Digest IX C]
ATTORNEY'S FEES; MUST RELATE TO BRINGING OF COMPLAINT

Where the Office of the Solicitor, USDOL, not Complainant's counsel, litigated the case before the court of appeals, the ARB denied fees and costs for advisory services for Complainant's counsel not closely related to the bringing of the complaint. Thus, the ARB allowed fees for counsel's review and response to DOL's draft brief -- the ARB presuming that this function was consultation with the Solicitor's office -- but disallowed costs incurred by counsel for advisory services in exploring the question of whether a motion for change of venue would be successful where this function did not further litigation of the case. Pittman v. Goggin Truck Line, Inc., ARB No. 99-062, ALJ No. 1996-STA-25 (ARB July 30, 1999).

[STAA Digest IX C]
ATTORNEY'S FEES; PARTIAL SUCCESS

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the presiding ALJ had applied the rationale in Hilton v. Glas-Tec Corp., 1884-STA-6 (Sec'y July 15, 1986), to conclude that the claim on which Complaint won and the claim on which he lost were so "intertwined" that there should not be any reduction for attorneys fees for the time spent on the claim on which Complainant did not prevail. On review, Respondent argued that the ALJ's decision was contrary to Supreme Court and Sixth Circuit decisions, and the ARB upon examining that authority concluded that Respondent's argument had merit. The ARB applied Supreme Court authority from Hensley v. Eckerhart, 461 U.S. 424 (1983), to the effect that limited success should result in a fee award that is reasonable to the results obtained. In the instant case, the ARB recognized that Complainant's claims (one meritorious claim for disciplinary letters and one non-meritorious claim for discharge) were interrelated, but observed that interrelationship does not necessarily mean that it was reasonable to expend all the hours involved in pursuing the unmeritorious claim. Finding that there was only a small overlap in the evidence, the ARB held that a reduction was warranted.

Since the fee petition was not sufficiently detailed to permit a simple disallowance of certain hours, the ARB calculated a 1/3 reduction based on its estimate that 1/3 of the time expended on the claims was on the non-meritorious claim.

[STAA Digest IX C]
ATTORNEYS FEES

In his recommended order granting attorney fees, the ALJ in Johnson v. Roadway Express, Inc., 1999-STA-5 (ALJ Sept. 3, 1999), recommended approval of an hourly rate of $225.00 per hour for services rendered, where Complainant's attorney provided a personal affidavit attesting to his professional experience, including an extensive background in the transportation industry with over 15 years experience in the field, a law practice that is national in scope and limited almost exclusively to transportation related matters, and a former partner with comparable experience engaging in similar type practice who is compensated at $250.00 per hour. The ALJ also took into account the fact that this attorney's billing rate had been allowed by other ALJs of the USDOL.

[STAA Digest IX C]
ATTORNEYS FEES; CLERICAL FEES NOT RECOVERABLE

"Time spend performing clerical duties by an attorney is not recoverable in a petition for fees and costs. ... Traditional clerical expenses, such as local telephone calls, photocopying, and postage should not be billed separately. These expenses should be considered part of the office overhead expenses when an attorney set the hourly rate and cannot be included in an award of a representative's fee. . . . " Johnson v. Roadway Express, Inc., 1999-STA-5, slip op. at 3 (ALJ Sept. 3, 1999) (recommended decision) (citations omitted).

[STAA Digest IX C]
ATTORNEY'S FEE; REASONABLE HOURLY RATE

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB adopted the ALJ's reduction of the hourly rate stated in Complainant's attorney's fee petition to $150 where the proffered rate of $225 was not stated to be the attorney's usual hourly rate, counsel and Complainant had an agreement that if the counsel withdrew from the case prior to its conclusion, he would charge Complainant $150 per hour, and counsel had not objected to the ALJ's reduction of the rate to $150.

[STAA Digest IX C]
ATTORNEY'S FEES AND EXPENSES; TRAVEL TIME TO AND FROM HEARING

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB approved a $120 hourly rate for attorney travel time to and from the hearing.

[STAA Digest IX C]
ATTORNEY'S FEES; PREPARATION OF DISCOVERY AND PROCEDURAL ORDERS ON WHICH COMPLAINANT WAS NOT SUCCESSFUL

In Jackson v. Protein Express, 95-STA-38 (ALJ Mar. 9, 1998), Respondent objected to an award of attorney's fees for time spent on a motion for default judgment and a motion to compel because the ALJ denied award of these costs in an earlier recommended decision, and the ARB had not reversed this ruling. The ARB in Jackson v. Protein Express, 95-STA-38 (ARB May 29, 1998), disagreed, holding that "[t]ime spent in preparation of discovery and procedural motions is a cost reasonably incurred in bringing the complaint and is recoverable under the statute." Id. @ 5.

[Editor's note: The ALJ's ruling had been based on his finding that DOL does not have the authority to impose costs as a sanction. Complainant had requested attorney fee costs for the time spent attempting to obtain compliance with discovery requests, and an ALJ order, as a penalty, pursuant to Rule 37 of the Federal Rules of Civil Procedure, for Respondent's alleged willful noncompliance.]

Beliveau v. Naval Undersea Warfare Center, 97-SDW-6 (ARB June 26, 1998).

[STAA Digest IX C]
ATTORNEY'S FEES AND EXPENSES; PHOTOCOPIES AND POSTAGE AS OVERHEAD

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB rejected Respondent's contention that charges for photocopies and postage are included in counsel's overhead reflected in his hourly rate. Rather, the ARB held that under the STAA, such expense are separately awarded where documented.

[STAA Digest IX C]
ATTORNEY FEES; PRO SE COMPLAINANT

A pro se complainant is not entitled to an attorney fee award. Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB Aug. 8, 1997).

[STAA Digest IX C]
ATTORNEY'S FEES; HIGHER RATE FOR APPELLATE WORK

In Polgar v. Florida Stage Lines, 94-STA-46 (ARB Mar. 31, 1996), the ARB found that a $15 per hour increase in the Complainant's attorney's basic billing rate for work before the Court of Appeals was reasonable.

s
9 c
IX C Attorney fees for work before OAA

In Ass't Sec'y & Dean v. Triad Transportation, 94-STA-37 (Sec'y June 5, 1995), the Secretary permitted the Counsel for Complainant to submit a petition for costs, expenses and fees incurred in bringing the complaint to the Office of Administrative Appeals.

[STAA Digest IX C]
ATTORNEY'S FEES FOR APPELLATE WORK; DENIAL BY COURT OF APPEALS DOES NOT FORECLOSE LATER AWARD BY THE ARB

In Dalton v. Copart, Inc., ARB Nos. 04-027, 04-138, ALJ No. 1999-STA-46 (ARB Feb. 8, 2006), the Complainant filed a petition for attorney's fees. Earlier in the proceedings, the Complainant had won an appeal to the Tenth Circuit in which an earlier ARB decision that had concluded that the Respondent had not violated the STAA was reversed. The Tenth Circuit, however, denied the Complainant's request for fees without explanation. The Complainant now sought an ARB award for fees for the Tenth Circuit appeal, and the Respondent objected based on the Tenth Circuit decision in Huffman v. Saul Holdings, 262 F.3d 1123 (2001), in which the court found that a district court did not have the discretion on remand to award fees for appellate work where the appellate court had previously denied such fees. The ARB distinguished Huffman on two grounds: (1) the STAA explicitly makes the Secretary of Labor (or designees such as the ALJ or the ARB) responsible for awarding fees, and (2) Huffman was based on "law of the case" doctrine, which was not applicable (the Tenth Circuit having merely denied fees without explanation).

[STAA Digest IX C]
ATTORNEY'S FEES; WORK CONSULTING WITH DOL ATTORNEYS REGARDING ENFORCEMENT ACTION IS COMPENSABLE

In Dalton v. Copart, Inc., ARB Nos. 04-027, 04-138, ALJ No. 1999-STA-46 (ARB Feb. 8, 2006), the Complainant filed a petition for attorney's fees seeking, inter alia, compensation for work in a district court enforcement action. The Respondent argued that DOL adequately represented the Complainant's interests in that action, and that the Complainant's personal attorney's work in that proceeding was unnecessary. The ARB noted that the record showed that DOL attorneys met with, called, and otherwise consulted with the Complainant's attorney regarding its enforcement action against the Respondent, and held that the Complainant's attorney should be compensated for that work.

[STAA Digest IX C]
ATTORNEY'S FEES; TIME SPENT PREPARING FOR A DEPOSITION THAT ULTIMATELY IS NOT TAKEN

Time spent preparing for a deposition is recoverable even if the deposition is ultimately not taken. Dalton v. Copart, Inc., ARB Nos. 04-027, 04-138, ALJ No. 1999-STA-46 (ARB Feb. 8, 2006).

[STAA Digest IX C]
ATTORNEY'S FEES; HOURLY RATE; NO REDUCTION BASED ON FACT THAT THE HEARING OCCURRED BEFORE AN ADMINISTRATIVE AGENCY RATHER THAN A FEDERAL COURT

In Dalton v. Copart, Inc., ARB Nos. 04-027 and 04-138, ALJ No. 1999-STA-46 (ARB June 30, 2005), the Respondent had opposed the hourly rate requested by the Complainant's attorney based on the argument that the attorney was inexperienced and that a lower rate should be charged in an administrative proceeding as compared to federal court. The ARB affirmed the ALJ's findings that the attorney was sufficiently experienced to command the requested rate and that there was no valid legal precedent for reducing the rate because the hearing was before an ALJ.

[STAA Digest IX C]
FEE ENHANCEMENT FOR TWO YEAR DELAY IN PAYMENT OF ATTORNEY'S FEES DENIED

In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the ARB affirmed the ALJ's award of attorney's fees of $275 an hour, totaling $129,766.41 in fees and costs, under the lodestar method (reasonable hours multiplied by reasonable hourly rate). The ARB, however, denied the Complainant's attorney's request for a fee enlargement to compensate for the fact that he had not yet received the attorney's fee that the ALJ awarded over two years earlier, citing Dalton v. Copart, Inc., ARB Nos. 04-027, 04-138, ALJ No. 1999-STA-46 (ARB June 30, 2005). The ARB found that Dalton involved a five-year delay due to protracted litigation, which was not the situation in the present case.

[STAA Digest IX C]
ATTORNEY'S FEES; ENHANCEMENT FOR DELAY

In Dalton v. Copart, Inc., ARB Nos. 04-027 and 04-138, ALJ No. 1999-STA-46 (ARB June 30, 2005), the ARB granted the Complainant's motion to enlarge the fee award to compensate for a five year delay in receiving the fees (the delay being partly attributable to the ARB's reversal of the ALJ's liability finding, which in turn had been reversed by a federal court of appeals). In regard to calculation of the enlargement, the Board wrote:

The ARB's method for determining the amount of the enlargement is set out in Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 89-ERA-22, slip op. at 15-16 (ARB May 17, 2000), overturned on other grounds, Doyle v. United States Sec'y of Labor, 285 F.3d 243 (3d Cir. 2002). An addition to an attorney fee award should be the lesser of the additions calculated as follows:

(1) the number of hours multiplied by the current rates of the attorneys, or
(2) the award multiplied by the percentage change in Consumer Price Index – All Urban Consumers, U.S. city average (CPI-U).

Id. at 15-16.

The Board then calculated under both methods and concluded that the CPI method produced the lesser amount in this case.

IX C Applicability of EAJA

In Champlin v. Florilli Corp., 91-STA-7 (Sec'y Oct. 22, 1992) (Final Order Denying Fee Application), the Secretary declined to rule on whether the Equal Access to Justice Act is applicable to proceeding brought under the whistleblower provision of the STAA, but ruled instead that even if the EAJA applies, the respondent's request for a fee award must be denied under the facts of the case. In Champlin, the ALJ had recommended that the case be decided on the merits in favor of the respondent; however the Secretary rejected that recommendation and instead accepted a settlement that had been proffered by the parties but refused by the ALJ earlier in the proceeding. Since in the settlement the respondent voluntarily afforded the complainant some of the relief originally sought -- monetary relief and a forum for expressing his concerns about compliance with driver safety rules -- the respondent did not prevail. Cf. Hewitt v. Helms, 482 U.S. 755, 760-61 (1987); Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir. 1991); Chicano Police Officer's Association v. Stover, 624 F.2d 127, 131 (10th Cir. 1980); Rohrer v. Slatile Roofing and Sheet Metal Co., Inc., 655 F. Supp. 736, 729 [sic] (N.D. In. 1987).

Neither was EAJA award on the ground that the respondent was victorious on various motions where the determination of "prevailing party" was not bifurcated by issues of facets of litigation. See Texas State Teacher's Assoc. v. Garland Independent School District, 489 U.S. 782, 790 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Clymore v. Far-Mar-Co., Inc., 576 F. Supp. 1161, 1164 (W.D. Mo. 1983).

In addition, the complaint was not frivolous or groundless, the Assistant Secretary having been substantially justified in finding reasonable cause to believe a violation had been committed. The fact that the Assistant Secretary was later willing to settle the case was not decisive. See Pierce v. Underwood, 487 U.S. 552, 568 (1988). The Secretary found that the Findings and Preliminary Order clearly revealed facts and allegations tending to establish that the complainant's discharge was retaliatory. The ALJ's contrary decision turned on a credibility determination which did not deprive the Assistant Secretary's legal position on the merits of substantiality. Temp Tech Industries, Inc. v. NLRB, 756 F.2d 586, 590 (7th Cir. 1985).

Finally, the Secretary found that an EAJA was not warranted since the Assistant Secretary was not responsible for protracting the litigation. Cf. Love v. Reilly, 924 F.2d 1492, 1495-96 (9th Cir. 1991); San Diego Regional Employment and Training Consortium v. Chicano Federation, 80-CET-212 (Sec'y May 1, 1991), slip op. at 6, 10. The ALJ was responsible for forcing the matter to hearing. The ALJ is a purely adjudicative officer excluded from the reach of the EAJA. In re Perry, 882 F.2d 534, 539-40 (1st Cir. 1989), and cases cited therein; see 29 C.F.R. §§ 18.1, 18.2(b) (1992).

IX C Recommended order on attorney's fees

In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y Apr. 1, 1994), the Secretary adopted the ALJ's recommended order awarding attorney's fee.

IX C Reduction of award where complainant did not prevail on all claims; compensation small in relation to size of fees

In Hilton v. Glas-Tec Corp., 84-STA-6 (Sec'y July 15, 1986), the Secretary was presented with the question whether under the STAA, attorney's fees, calculated on the basis of the number of hours reasonably expended times a reasonable hourly rate, must be reduced where the complainant has not prevailed on all claims.

In Hilton, Complainant alleged that he was both suspended a discharged by Respondent in violation of the STAA. Complainant prevailed on the suspension issue, but lost on the discharge issue. Complainant's total monetary award was only $961.54 for two weeks lost wages. Complainant requested $5,910 for attorney's fees and $419.47 for costs. Respondent objected on the ground that Complainant had only limited success on his claims.

Intertwined issues

The Secretary, adopting the ALJ's recommendations, found that the requested number of hours and hourly rate were reasonable for the quantity and quality of work performed. In addition, the Secretary agreed with the ALJ that "the issue of whether complainant was unlawfully terminated and whether his suspension was illegal are so intertwined that trying the case merely on the suspension issue would have required essentially the same amount of effort and expense." [quoting ALJ]

The Secretary noted that courts have recognized in other contexts that where claims are intertwined and not "truly fractionable," there should be no reduction of the fee for time spent on issues on which the plaintiff has not prevailed. [citations omitted]

In view of his finding, the Secretary declined to decide whether the appropriate standard for determining the amount of attorney's fees is that the work is necessary at the time it was performed, or whether, where the issues are not so intertwined, attorney's fees must be denied or reduced when a party achieves only limited success.

Size of fees large in proportion to damages

The Secretary rejected Respondent's suggestion that the amount of the attorney's fees be limited in view of the small monetary award received by Complainant. The Secretary stated that in awarding attorney's fees, it is essential to keep in mind that, unless attorneys are adequately compensated for their services, litigants will be unable to secure the services of competent and experienced counsel. [citations omitted] Noting the public benefit of encouraging employers to comply with the rules, the Secretary indicated that where the fee is reasonable, it is not appropriate to reduce the fee simply because the amount of the award is limited.

IX C ALJ should make a finding on a fee petition

In Palmer v. Western Truck Manpower, Inc., 85-STA- 16 (Sec'y June 26, 1990), vacated on other grounds sub nom., Western Truck Manpower, Inc. v. United States Dept. of Labor, 943 F.2d 56 (1991) (table case; unpublished decision available at 1991 U.S. App. LEXIS 21675), readopted, (Sec'y Mar. 13, 1992), the ALJ's order specifically provided for the filing of a petition for approval of attorney fees and costs and for objections by Respondent. The Secretary indicated that the ALJ "failed" to act on Complainant's petition, and noted that Respondent had not filed objections. Thus, under the circumstances and in the interest of judicial economy, the Secretary considered the fee request rather than remand this issue to the ALJ.

[Editor's note: the tone of this opinion indicates that the Secretary believes the ALJ should make a finding on a fee petition rather than leaving it up the to Secretary.]

IX C Recommended order on attorney's fees

In Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y Apr. 1, 1994), the Secretary adopted the ALJ's recommended order awarding attorney's fee.

IX C Time spent preparing a fee application is not compensable; time spent defending a fee petition, however, is compensable.

In Hilton v. Glas-Tec Corp., 84-STA-6 (Sec'y July 15, 1986), the Secretary awarded Complainant attorney's fees for additional time expended by his attorney in defending here fee petition, reduced by the time spent preparing affidavits found to be integral to the preparation of the fee application. Time spent in preparation of a fee application is not compensable.

IX C Liability for hearing expenses

The Secretary does not possess the authority under the STAA to assess litigation expenses against a complainant for abusing the process. Additionally, monetary sanctions under the Federal Rules of Civil Procedure, Rule 11 are not available. Inasmuch as 29 C.F.R. Part 18 addresses conduct that is dilatory, unethical, unreasonable, and in bad faith, the situation addressed by Rule 11 is provided for or controlled. Stack v. Preston Trucking Co., 89-STA-15 (Sec'y Apr. 18, 1990).

IX C Reasonable hourly rates; distinction between impermissible contingency multiplier and adjustment for delay in payment

In Spinner v. Yellow Freight System, Inc., 90-STA- 17 (Sec'y Sept. 23, 1992), the complainant's fee petition employed a $175 hourly rate for partners' time, a $150 rate for associates' time, and a $60 rate for time attributed to law clerks and paralegals. The respondent challenged these rates as impermissibly containing a contingency multiplier. City of Burlington v. Dague, __ U.S. __, 112 S.Ct. 2638, 2641-2644 (1992) (fee shifting statutes did not permit enhancement of fee award beyond lodestar "in order to reflect the face that the party's attorneys were retained on a contingent fee basis...."). The Secretary found, however, that the proffered rates were designed to compensate for delay in payment, which is an appropriate consideration in assessing fee awards. Missouri v. Jenkins, 491 U.S. 274, 282-284 (1989) ("[a]lthough delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue").

In adjusting for delay, courts may (1) employ "real" hourly rates, i.e., the normal hourly charge for contemporaneously-paid services, and later adjust the product upward or (2) enhance the hourly rate and forego post-lodestar adjustment. See Copeland v. Marshall, 641 F.2d 880, 893 and n.23 (D.C. Cir. 1980) (difference in formula makes no difference in result as long as court avoids "double- counting" by blending approaches). In the instant case, the complainant's counsel's approach essentially incorporated the latter approach.

IX C Preparation of fee application and response to opposition

In Spinner v. Yellow Freight System, Inc., 90-STA- 17 (Sec'y Sept. 23, 1992), the Secretary awarded to the complainant's counsel reimbursement for the cost of preparing the fee application and responding to the respondent's opposition. See Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1205 (10th Cir. 1986).

IX C Respondent's request for attorney's fees

In Monteer v. Milky Way Transport Co., Inc., 90- STA-9 (ALJ Apr. 13, 1990), the ALJ denied Respondent's motion for attorney fees and expenses. The ALJ stated that despite his earlier ruling against Complainant, he found that Complainant had a good faith belief in the applicability of the Act to his case, and that an award to Respondent could have the undesirable effect of deterring valid and potentially successful safety-related claims.

IX C Respondent not entitled to attorney fees

A respondent is not entitled to attorney fees under the STAA. 49 U.S.C. app. § 2305(c)(2). Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y May 18, 1994).

IX C $200 is excessive hourly rate

In Hornbuckle v. Yellow Freight System, Inc., 92- STA-9 (Sec'y June 30, 1993), an hourly rate of $200 in Complainant's fee application was rejected. The Secretary found that based on the documentation supplied by the parties an hourly rate of $150 was reasonable.

IX C When to consider fee petition

In Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y June 30, 1993), the Secretary approved Complainant's unopposed attorney fee petition. In an earlier decision, the Secretary issued a decision that ordered reinstatement and back pay "and recognized that a decision by the ALJ on Complainant's application for attorney fee would be forthcoming."

[Editor's note: This case indicates that it is appropriate for an ALJ to make a recommendation on an attorney fee application after the Secretary issues a final order. It is still not entirely clear (at least to me) where it is proper for a Complainant to file that petition -- with OAA or the ALJ.]

IX C Costs and expenses in the administrative proceeding

In Spinner v. Yellow Freight System, Inc., 90-STA- 17 (Sec'y Sept. 23, 1992), the Secretary excluded from a fee petition for costs and expenses incurred in the administrative proceeding before the ALJ and the Secretary those items clearly pertaining to enforcement actions, since any recovery pertaining to a civil enforcement action properly arises under section 405(e) of the STAA, 49 U.S.C. app. § 2305(e). The Secretary indicated that she only did so where it was clear that the items were for enforcement since an adjudicator is not required to become enmeshed in meticulous analysis of every detailed facet of representation or to conduct minute evaluation of each phase or category of work. See Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980).

IX C Reasonable hourly rates

In Spinner v. Yellow Freight System, Inc., 90-STA- 17 (Sec'y Sept. 23, 1992), the Secretary found that proffered rates of $175 and hour for partners, $150 for associates, and $60 for law clerks and paralegals, was a reasonable hourly rate for an attorney operating in Albany, New York.

IX C Reasonable attorney fees

Counsel's petition for fees and expenses for 5.9 hours at $85 per hour to assist the complainant in bringing a STAA complaint was found by the Secretary to constitute a reasonable number of hours, and a reasonable and fair rate, for the services performed. The petition was not challenged by the respondent. Nidy v. Benton Enterprises, 90-STA-11 (Sec'y Jan. 24, 1992) (Decision and Order on Attorney Fees).

XI.C. Litigation expenses


In Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ July 1, 1994), modified on recon on other grounds (ALJ Aug. 6, 1994), the ALJ found that while Complainant appeared Pro Se, he, as the prevailing party, is entitled to an award of his expert witness fee. See 29 C.F.R. § 24.6(b)(3).

In addition, the ALJ found that Complainant documented his back pay and lost fringe benefits in a most professional manner and the charge therefor, $175.00, was an item for which the Respondent should reimburse the Complainant.

IX.C. Attorney fees includes preparation time for fee application

In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), the Secretary noted that prevailing parties routinely are awarded fees for attorney time spent in preparation of the fee application itself, and included counsel's hours billed to that end. See B. Schlei & P. Grossman, Employment Discrimination Law (2d ed. 1983) at 1485 and n.48.

IX C Entitlement of pro se complainant to reasonable costs

Where the Complainant appeared pro se, and sought repayment of his costs in bringing this case, such as witness fees and registered mail fees, the Secretary ordered the Respondent to pay reasonable fees that the Complainant documents before the ALJ on remand. See 49 U.S.C.A. § 31105(b)(3)(B) Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).

IX C Dismissal for failure to comply with discovery and prehearing orders

In White v. "Q" Trucking Co., 93-STA-28 (Sec'y Dec. 2, 1994), the Secretary adopted the ALJ's recommendation that the complaint be dismissed based on the Complainant's refusal to comply with certain discovery and prehearing orders. 29 C.F.R. § 18.6(d)(2)(v). The Secretary agreed with the ALJ that costs and expenses should not be assessed against the Complainant.

[Editor's note: The ALJ decision underlying the Secretary's final order was detailed. The ALJ carefully established Complainant had demonstrated a pattern of contumacious conduct. The ALJ's conclusion that costs and expenses should not be awarded to the Respondent for preparation of the Motion for Sanctions was based on the Secretary's ruling in Billings v. Tennessee Valley Authority, 89-ERA-16, 25, 90-ERA-2, 8, 18 (Sec'y July 28,m 1992), that the Department had elected not to assert any inherent authority to impose costs in a whistleblower proceeding. See White v. "Q" Trucking Co., 93-STA-28 (ALJ Aug. 12, 1994).]

IX C Respondent is not entitled to fees or costs

In Ass't Sec'y & Waldrep v. Performance Transport, Inc., 93-STA-23 (Sec'y Mar. 24, 1995), counsel for the Respondent filed two applications for fees and expenses with the ALJ after the Secretary had issued a decision dismissing the Complainant's complaint. The Secretary adopted the ALJ's recommendation that the applications be dismissed, noting that the Secretary had no authority to award attorney's fees and/or costs in cases in which it is determined that no violation of the STAA has occurred.

IX C Entitlement to costs

In Sickau v. Bulkmatic Transport Co., 94-STA-26 (Sec'y Oct. 21, 1994), the Secretary stated that in addition to payment of an attorney fee, a successful complainant is entitled to reimbursement of the costs in bringing and prosecuting a complainant. 49 U.S.C. app. § 2305(c)(2)(B) (Secretary of Labor "may assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorney's fees) reasonably incurred . . . in connection with, the bringing of the complaint upon which the order was issued"). Therefore he ordered the Respondent to pay costs in addition to an attorney fee.

IX.C. Compensation for attorney's travel time


In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), the Secretary adopted the ALJ's recommendation hours billed by Complainant's attorney for travel time should be reduced by 50 percent. See In re Agent Orange Products Liability Litigation, 611 F. Supp. 1296, 1320, 1349 (E.D.N.Y. 1985).

IX.C. Reasonable attorney fees


In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), Complainant's counsel requested reimbursement for a total of 269.33 hours spent litigating the case during a period of three years. The Secretary noted that on its face, this amount of time expended on a case of this sort did not appear excessive, and noted a comparable discrimination case, Danna v. New York Telephone Co., No. 87 CIV 7250 (CBM), slip op. at 7-8 (S.D.N.Y. May 2, 1991).

IX.C. Attorney fees; record of time spent on case

In order to substantiate fee billings, a counsel's contemporaneous records must "specify, for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). See Lewis v. Coughlin, 801 F.2d 570, 577 (2d Cir. 1986) (records must be made contemporaneously with associated work). Clay v. Castle Coal & Oil Co., Inc., 90-STA-37 (Sec'y June 3, 1994).

In Clay, the Secretary relied on counsels' handwritten, contemporaneous records, using a typed transcription to facilitate identification, to find that the time represented reasonably expended in bringing the instant litigation.

Becaused of imprecision in recording amounts of time expended -- large blocks of time are attributed to activities, particularly to briefing, which may have resulted in overstatement -- the Secretary reduced the number of hours billed by ten percent. He rejected, however, the ALJ's recommended reduction of 30 percent as excessive and his further reduction, for punitive purposes, of an additional ten percent as unwarranted.

IX.C. Litigation expenses; attorney fees


In Clay v. Castle Coal & Oil Co., Inc., 90-STA- 37 (Sec'y June 3, 1994), the Secretary stated that in calculating attorney fees under the STAA, 49 U.S.C. app. § 2305(c)(2)(B), he generally employs the lodestar method which requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983).

The Secretary rejected the ALJ's recommendation of an hourly rate of $175. Instead, he found substantial record evidence of hourly rates of $275 for one of Complainant's counsel and $225 for the other counsel, in keeping with prevailing market rates.

A reasonable attorney's fee is based on rates prevailing in the community for similar services.

In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence -- in addition to the attorney's own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to -- for convenience -- as the prevailing market rate. Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984).

In regard to one counsel, the Secretary reviewed a chart of hourly fees, most of which were court-ordered, and noted the type of labor law/employment discrimination work done by the firms involved.

In regard to other counsel, the Secretary noted that while they were equally experienced litigators, they practiced in different substantive areas, which brings into question the comparability of their expertise, i.e., should civil rights attorneys be compensated at rates commanded by shareholder derivative attorneys.

The ALJ had recommended the lower fee in part based on lack of expertise in the employee protection areas and on the attorney's complication of matters. The Secretary did not find evidence of complication, and faulted the ALJ for not engaging in any meaningful discussion of rates prevailing in the community for similar services, which should have been a primary consideration in recommending a rate.

The Secretary also distinguished the decision Cruz v. Local 3, International Brotherhood of Electrical Workers, No. CV 89- 4240 (ADS), 1993 U.S. Dist. LEXIS 9570, at * 10-*20 (E.D.N.Y. July 12, 1993), which the ALJ had partly relied for recommending a lower fee award, as an anomaly because it involved preliminary, out-of-court work, and some compensation had already been received in a settlement with one of the defendants.

9 c
IX.C. Entitlement to expert witness fees

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994), the Secretary adopted the ALJ's finding that the Respondent must reimburse the Complainant expert witness fees for the services of a CPA who calculated back pay and interest and other benefits.