U.S. Department of Labor

          Administrative Review Board                             
          200 Constitution Avenue, N.W.
          Washington, D.C. 20210


In the Matter of:

GREGORY A. SPRAGUE,                       CASE NO. 92-ERA-37

          COMPLAINANT,                    DATE: JULY 15, 1996

     v.

AMERICAN NUCLEAR RESOURCES, INC.,
          RESPONDENT.


BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[1]


                 FINAL DECISION AND ORDER

     In this case arising under the employee protection provision
of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. §
5851 (1988),[2] the Secretary of Labor found that Respondent,
American Nuclear Resources, Inc. (ANR), violated the ERA when it
discharged Complainant, Gregory A. Sprague.  See Dec. 1,
1994 Dec. and Ord.  The Secretary ordered certain affirmative
action to remedy the violation, set forth the basis for
calculating back pay, and remanded to the Administrative Law
Judge (ALJ) to establish the amount of back pay, attorney's fees,
and costs that ANR shall pay.

     On remand, the parties agreed on the amount of back pay but
not on the attorney's fees and costs.  In a Supplemental
Recommended Decision and Order (S. R. D. O.), the ALJ recommended
that Respondent pay the agreed amount of back pay and $12,562 in
attorney's fees and costs.  We accept the ALJ's R. D. 0. in part
and modify it as explained below. 


                       DISCUSSION


[PAGE 2]
     The ALJ deducted from the requested attorney's fee $506 for
the hours claimed for preparing Complainant's brief on review by
the Secretary.[3] Complainant's former counsel submitted the fee
request concerning that brief in December 1994.  The ALJ made the
deduction because the brief was late filed and not considered by
the Secretary.  S. R. D. 0. at 2.

     Sprague contends that the deduction should not be made
because ANR waived any objection to the hours claimed for
preparing the brief when it did not oppose the earlier fee
request.  But the ERA requires a respondent to pay only those
costs (including attorney's fees) reasonably incurred in bringing
the complaint. 42 U.S.C. § 5251(b)(2)(B).  We agree with the
ALJ that preparing and filing a brief several months late,
without seeking leave or providing any reason for the delay, was
not reasonable.  Therefore it was proper to deduct the hours
devoted to preparing the brief.

     ANR challenges the award of fees incurred for work relating
to an appeal ANR filed in the United States Court of Appeals for
the Sixth Circuit.  ANR Brief at 3-4.  The Sixth Circuit has
ruled that the ERA does not authorize the Secretary (or now, the
Board) to award attorney's fees for appellate work.  DeFord v.
Tennessee Valley Authority, 715 F.2d 231, 232-233 (6th Cir.
1983).  We are compelled to follow DeFord because this
case arises in the Sixth Circuit[4] Accordingly, the fees
relating to work in the court of appeals should be deducted from
the recommended award.  The deduction is $2040 (13.6 hours X
$150).


                    CONCLUSION

     Respondent shall pay to Complainant $4,448.00 in back pay. 
Respondent shall pay to Complainant's counsel $10,520.00,
representing $10,085 in attorney's fees and $435 in costs.

     SO ORDERED.


                                        DAVID A. O'BRIEN
                                        Chair


                                        KARL J. SANDSTROM
                                        Member

                                        JOYCE D. MILLER
                                        Alternate Member

[PAGE 3]


[ENDNOTES]
                


[1]  On April 17, 1996, the Secretary delegated jurisdiction to
issue final agency decisions under, inter alia, the
Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (1989),
and the implementing regulations, 29 C.F.R. Part 24, to the newly
created Administrative Review Board (the Board).  Secretary's
Order 2-96 (Apr. 17, 1996), 61 Fed.  Reg. 19978, May 3, 1996
(copy attached).

     Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order, and regulations under which the Board
now issues final agency decisions.  A copy of the final
procedural revisions to the regulations, 61 Fed. Reg. 19982,
implementing this reorganization is also attached.  The
Secretary's earlier decision and the entire record in this case
have been reviewed by the Board.


[2]  The 1992 amendments to the ERA do not apply to this case
because the complaint was filed prior to the effective date of
those amendments.

[3]  Although the ALJ initially referred to the deduction as $506
(4.6 hours X  10 per hour), S. R. D. O. at 1, he reduced the
fee petition by $504.  S. R. D. O. at 2. We find that the correct
deduction is $506.

[4]  Compare Blackburn v. Reich, 79 F.3d 1375 (4th Cir.
1996) (ERA permits Secretary to order the respondent to pay
attorney fees for appellate work in the court of
appeals).