OPINION ISSUED FEBRUARY 3, 1989
SANFORD CLEGG, III
DEPARTMENT OF CORRECTIONS
Vincent J. King, Attorney at Law, for claimant.
Robert F. Pollitt, Senior Assistant Attorney General, for
Claimant brought this action to recover attorney fees incurred
brought a civil action
against respondent in United States District Court for the Southern
District of West Virginia to
recover back wages to which he was entitled under provisions of the
Rights Act. His attorney fees and expenses were in the amount of
$6,289.50. This amount
represents the difference in the agreed settlement of $22,500 and
back wages of
$16,210.50 which claimant has received from respondent.
The parties submitted a stipulation of facts which set forth the
Claimant was employed by respondent on February 1, 1980, until
September 29, 1980, when
he resigned to enlist in the United States Navy.
He was honorably discharged on December 16, 1983, whereupon he
re-employment with respondent.
He was denied re-employment on the basis that he was a
employee and not
covered by the Veterans Re-employment Right Statute.
An opinion of the Attorney General rendered to the Civil Service
claimant was covered by the statute. Claimant was reinstated on
A dispute arose as to the issue of back wages due claimant for the
period during which he was
not employed by respondent.
A compromise settlement in the amount of $15,000 was reached by
claimant and respondent.
However, the settlement could not be paid as the State Auditor
to make payment without
a court order.
Respondent suggested that claimant file suit in the United States
District Court in order to
obtain a court order to satisfy the State Auditor.
Claimant consulted with the United States Attorney's Office as he
representation by that office under the provisions of the Veterans
Statute. He was advised that there was a backlog and it would be
time before his claim
could be filed. He was further advised of his right to independent
counsel. He then employed
counsel to bring the action in United States District Court for
On November 10, 1986, a petition was filed in the United States
District Court for the
Southern District of West Virginia seeking $29,000.
Respondent filed an Answer asserting defenses and demands.
negotiated a settlement as heretofore indicated and provided that
claimant seek attorney fees
before the Court of Claims.
The parties submitted the claim to this Court upon the
The issue before the Court is the award of attorney fees.
contends that claimant is
not entitled to attorney fees as he could have had the United States
Attorney represent him
without cost. Respondent also contends claimant filed the action in
United States District
Court for more than $15,000, the original agreed upon amount, and,
breached the agreement.
Claimant asserts respondent filed an Answer defending the action
United States District
Court denying any amount was due claimant. Claimant also contends
entitlement to attorney
fees as respondent filed a defense to claimant's action in United
District Court which
should have been and, eventually, was settled in September 1987.
It appears to the Court that neither party has "clean hands."
filed the action in the
United States District Court in excess of the amount agreed to by
However, the respondent then denied the action in its entirety in
answer. Both parties
"muddied the waters" in the United States District Court action.
However, the Court is of the
opinion that claimant is entitled to reasonable attorney fees.
knew that he was entitled
to back wages as did the respondent. He should not have had to wait
until such time as his
statutory attorney was able to bring the action necessary to obtain
back wages. He was
advised of his right to independent counsel and he chose to proceed
The Court is of the opinion that this claim is one which certainly,
equity and good conscience,
should be paid. Therefore, the Court has determined that claimant
recover his reasonable
attorney fees and expenses incurred in bringing the action to
back wages to which he
was entitled. The Court calculates the reasonable attorney fees as
$3,712.50. The expenses
incurred by claimant in bringing the case in federal court were
$1,248.70. Therefore, the Court
is of the opinion to, and does, does award claimant the amount of
$4,961.20 for reasonable
attorney fees and expenses.
Award of $4,691.20.