Clem v. Computer Sciences Corp. (agency decision, June 11, 2021)

Plain-English summary

Kirtley Clem and Matthew Spencer prevailed on Energy Reorganization Act whistleblower complaints against Computer Sciences Corporation after a remand and a second appeal. Their attorneys requested $112,120 for 304.8 hours of work before the Board, using hourly rates from $275 to $500. The Board applied the lodestar method and found that the petition adequately described the services, the hours were reasonably expended, and the rates matched prevailing community rates for comparable lawyers. Because the company did not contest the fees requested for the Board proceedings, the Board treated that petition as unopposed. It awarded the full $112,120 requested.

Decision snapshot

• Cited authorities: 42 U.S.C. § 5851 and § 5851(b)(2)(B); 29 C.F.R. § 24.110(d)
• Outcome: Complainants awarded $112,120 in attorneys' fees for work before the Board.
• Key point: A fee applicant must document reasonable hours and prevailing rates, and an opponent must address the fees claimed for the proceeding at issue.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

 In the Matter of:



 KIRTLEY CLEM and                               ARB CASE NO.    2020-0025
 MATTHEW SPENCER,
                                                ALJ CASE NO.    2015-ERA-00003
             COMPLAINANTS,                                      2015-ERA-00004

       v.                                       DATE: June 11, 2021

 COMPUTER SCIENCES
 CORPORATION,

             RESPONDENT.


 Appearances:

 For the Complainants:
       Stephani L. Ayers, Esq.; Law Offices of S.L. Ayers; Medford, Oregon;
       Nikolas F. Peterson, Esq.; Hanford Challenge; Seattle, Washington

 For the Respondent:
       Rachel Linzy, Esq. and Joseph R. Ward, III, Esq.; The Kullman Firm;
       Birmingham, Alabama

 Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas
 H. Burrell and Randel K. Johnson, Administrative Appeals Judges

                     ORDER AWARDING ATTORNEYS’ FEES

        PER CURIAM. This case arises under the Energy Reorganization Act of 1974
 (ERA), as amended, 42 U.S.C. § 5851 (2005), as implemented by regulations codified
 at 29 C.F.R. Part 24 (2020). Kirtley Clem and Matthew Spencer (Complainants)
 filed complaints alleging that their former employer, Computer Sciences
 Corporation (CSC), violated the whistleblower protection provisions of the ERA.
                                         2

Consolidating the appeals, the Administrative Law Judge (ALJ) found for Clem and Spencer and awarded damages. 1 CSC appealed the ALJ’s decision, and the Administrative Review Board (Board) vacated and remanded with instructions for the ALJ.2 On remand, the ALJ again found for Complainants and awarded damages.3 CSC appealed the ALJ’s decision. On March 10, 2021, the Board affirmed the ALJ’s decision.4

   On April 9, 2021, counsel for Complainants submitted to the Board a Petition

for Attorneys’ Fees. The petition seeks $112,120 in attorneys’ fees for work before the Board.

                                     DISCUSSION

   If the Secretary of Labor determines that a respondent has violated the ERA,

“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.”5 The Board has jurisdiction to assess reasonably incurred attorneys’ fees against the respondent upon petition of the complainant.6

1 Clem v. Comput. Scis. Corp., ALJ Nos. 2015-ERA-00003, -00004 (OALJ Sept. 12, 2016). 2 Clem v. Comput. Scis. Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019). 3 Clem v. Comput. Scis. Corp., ALJ Nos. 2015-ERA-00003, -00004 (OALJ Jan. 9, 2020). 4 Clem v. Comput. Scis. Corp., ARB No. 2020-0025, ALJ Nos. 2015-ERA-00003, -00004 (ARB Mar. 10, 2021). 5 42 U.S.C. § 5851(b)(2)(B) (2005). 6 29 C.F.R. § 24.110(d) (2021) (“At the request of the complainant, the ARB will assess against the respondent all costs and expenses (including attorney’s fees) reasonably incurred.”).
3

   The Board uses the “lodestar method” to calculate attorneys’ fees.7 This

requires multiplying the number of hours reasonably expended by a reasonable hourly rate.8 The attorney requesting fees bears the burden of proof that the claimed hours of compensation are adequately demonstrated and reasonably expended.9 The burden is also on the attorney to demonstrate the reasonableness of his hourly fee by showing 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.10 The “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.”11

   Complainants’ attorneys request a total of $112,120 in attorneys’ fees for

work performed from September 23, 2016 through March 10, 2021. The fee request represents 304.8 hours of work performed by three attorneys at rates varying between $275 and $500 an hour.12 CSC does not object to the attorneys’ hourly rates or the hours billed for work before the Board.13

7 Tipton v. Indiana Michigan Power Co., ARB No. 2004-0147, ALJ No. 2002-ERA- 00030, slip op. at 2 (ARB Dec. 18, 2008). 8 Scott v. Roadway Express, ARB No. 2001-0065, ALJ No. 1998-STA-00008, slip op. at 5 (ARB May 29, 2003). 9 Cefalu v. Roadway Express, Inc., ARB Nos. 2004-0103, -0161; ALJ No. 2003-STA- 00055, slip op. at 2 (ARB April 3, 2008). 10 Gutierrez v. Regents of the Univ. of Cal., ARB No. 1999-0116, ALJ No. 1998-ERA- 00019, slip op. at 11 (ARB Nov. 13, 2002). 11 Gutierrez v. Regents of the Univ. of Cal., ARB No. 1999-0116, ALJ No. 1998-ERA- 00019, slip op. at 2 (ARB Feb. 6, 2004). 12 Stephani Ayers claims 198.95 hours at $400 an hour. Nikolas F. Peterson claims 90.6 hours at $275 an hour. Thad Guyer claims 15.25 hours at $500 an hour. 13 CSC did file an “Opposition to Complainants’ Petition for Attorneys’ Fees and Bill of Costs” with the Board. However, the response does not discuss or contest any of the fees claimed by counsel for Complainants for their work before the Board. Rather, CSC opposes several attorneys’ fees and costs incurred in the litigation before the ALJ. Because CSC fails to address any of the fees requested by counsel in the petition, we deem the petition to be unopposed.
4

   We find the level of detail in the descriptions of the services provided in the

fee petition to be adequate and the claimed hours of compensation to be reasonably expended. We further find that the requested rates are in line with fees prevailing in the community for similar services by comparable lawyers.

   Accordingly, we grant the Petition for Attorneys’ Fees and order CSC to pay

total attorneys’ fees of $112,120.

  SO ORDERED.