prevailing plaintiff or complainant (more realistically, his counsel) has the burden of proving entitlement to payment of legal fees and expenses by the non-prevailing opponent, Webb v. Board of Education of Dyer County, 105 S.Ct. 1923, 1928-1929 (1985); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 720 (CA5 1974); Daly v. Hill, 790 F.2d 1071, 1079 (CA4 1986).

    A fee request should not result in a second major litigation, Daly, supra, 790 F.2d at 1078; Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Nor is it necessary that a fee award achieve technical perfection in order for the results to fall within the area of discretion assigned to the trier of the facts, Daly, supra, 790 F.2d at 1080, 1082 -- which is to say that the trier of fact need not get enmeshed in a meticulous analysis of every detailed fact, Copeland v. Marshall, 641 F.2d 880, 903 (CA D.C. 1980); Lindy Brothers Builders, Inc. v. American Radiator, Etc., 540 F.2d 102, 116 (CA3 1976) [Lindy II]. The objective in providing for assessment of legal fees and other costs related to the litigation is not "to make prevailing counsel rich", but rather, as a matter of public policy, to enable litigants to obtain competent counsel, Johnson, supra, 488 F.2d at 719.

    Referring to the Johnson criteria, the Fourth Circuit in Anderson v. Morris, 658 F.2d 246, 249 (CA4 1981), acknowledged that, "experience has shown, however, that these criteria are difficult to quantify." Similarly, the District of Columbia Circuit has observed that District Judges "have had difficulty applying the Johnson factors", Copeland, supra, 641 F.2d at 890. This, in part, may be so because such considerations as the novelty and complexity of the questions presented are but manifestations of the number of hours which reasonably must be expended, Blum, supra, 465 U.S. at 898. Similarly, such consideration as the skill required to prevail, and the experience, reputation and ability of an attorney, or the undesireability of a case are merely reflections of those factors bearing upon what constitutes a reasonable hourly rate, Blum, supra, 465 U.S. at 898, Copeland, supra, 641 F.2d at 892.

    The Johnson criteria aside, it is now generally recognized that, "'The most useful starting point for determining the most of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate" (emphasis added), Hensley, supra, 461 U.S. at 433; Blum, 465 U.S. at 888; Anderson, 658 F.2d at 249. In an appropriate case, adjustments may be made upward or downward on the basis of other factors, Lindy II, supra, 540 F.2d at 118; Anderson, 658 F.2d at 249; Hensley, supra, 461 U.S. at 435, Blum, supra, 465 U.S. at 888; Hyatt v. Heckler, 586 F. Supp. 1154, 1159 (WD NC 1984).

    Okun has urged acceptance of an hourly rate of $100.00, while Daniel has insisted on $90.00. Reasonable fees are calculated taking into consideration prevailing market rates in the relevant community, Blum, supra, 465 U.S. at 895.

    Accompanying Okun's initial fee request was the affidavit of J. Anthony Perry, an attorney who practices law in Raleigh, NC. Perry represented that hourly rates in the Raleigh area for non-contingent work by lawyers of Okun's

experience and qualification ranged from $90.00 to $125.00. A fee of $100.00 per hour in the area of Charlotte, NC, was held to be within the area of discretion of the trial judge in Jones v. Board of Governors, 790 F.2d 1120, 1121 (CA4 1986). There was evidence in a 1984 case that the reasonable fee range for a lawyer also in the Charlotte area with 3 or more years experience in federal litigation was $85.00 to $125.00 per hour, Hyatt v. Heckler, 586 F. Supp. 1154, 1157 (W.D. N.C. 1984). While Charlotte is not Raleigh, both cities are in the same State, and the undersigned, having often litigated matters in both cities, believes that the practice of law in the two communities is sufficiently comparable that the two cited cases have some value in resolving the hourly rate issue.

    In urging acceptance of the $100.00 rate, under date of 10/9/86 Okun presented argument in two separate documents, (a) a memorandum in support of a motion for attorney's fees [M], (b) an accompanying affidavit [A], and later filed (c) a reply to employer's response to Okun's initial filing [R] Among other things, the following factors were urged in favor of acceptance of the requested $100.00 per hour rate:

    The presentation of Complainant's case at the oral hearing was handled in an efficient manner and with competence. Complainant's initial brief demonstrated a grasp of the issues and was of value in the processes which culminated in the issuance of the recommended decision of 9/17/86. These things considered, as well as the representations of the parties and the level of fees found appropriate in the Jones and Hyatt cases, supra, Okun's request for a rate of $100.00 is accepted as being within reasonable limits for attorney's fees in the Raleigh area for work comparable to the kind performed by Okun.

A. Categories of Hours Spent

    Okun has submitted excerpts from his time records purporting to support a claim for a total of 209.5 hours. Analysis of Okun's time record summary suggests that the hours can be grouped as follows:

     Category                                No. of Hours

  A. Prehearing activities to 5/28/86           118.00

  B. Hearing process, 5/28-29/86                 18.75

  C. Compilation of brief, 6/5-7/31/86                50.50

  D. Compilation of supplemental brief, 9/1-5/86    14.25

  E. Fee application                              7.00
                                                                           ----------------  
                                 208.50 hours

B. Inadeguacy of Explanations

    Unfortunately, many of the entries are not sufficiently definitive to allow an understanding of just what work was performed. For example, in category A numerous entries refer merely to "research" or to "trial preparation". Of course, it could be said that everything listed in category A was for trial preparation.

    A further factor inhibiting a reasonably clear understanding and assessment of Okun's activity prior to the oral hearing is the practice of

agglomerating two or more separate items within a single time period, sometimes including, among other things, both "research" and "trial preparation," without further explanation. This practice, too, has made it difficult, if not impossible, to assess accurately the merits of Okun's claim. While it is not necessary to know the exact number of minutes spent, nor the precise activity for every hour spent, nevertheless the trier-of- fact must be given "a great deal of information", Lindy Brothers Builders, lnc. of Philadelphia v. American R. & S. San. Corp., 487 F.2d 161, 167, 169 (CA3 1973).

C. Time Spent Prior to Oral Hearing

    In an effort to gain insight, the summary attached a Appendix A was prepared. It shows a total of 17.25 hours devoted to contact with Complainant and identifies 7 other occasions when entries indicated, together with other activities, further contact with Complainant. Research and general preparation accounted for approximately 51.75 hours, contact with witnesses other than Van Beck approximately 21.75 hours, four attempted or actual contacts with a Department of Labor [DOL] investigator some 6.25 hours, and mixed entries and miscellaneous some 21 hours.

    Okun explained that most witnesses could be reached only later at night (M-4), which suggests that the time so spent did not interfere with his ability to devote more time during normal office hours to other matters. While emphasizing his experience and expertise in the labor law field, Okun also offered as a reason for spending hours on the case the fact that he had not previously litigated a matter under Title 42 § 5851 (R-4), and had to spend time researching law and regulations (R-4). Furthermore, Okun contended (R-3) that he, "was provided nothing from the [DOL] except its recommendation without any supporting data". Yet, he has logged a total of 6.25 hours on 4 separate occasions devoted to contact with one or more DOL investigators.

    It is well established that where documentation is inadequate, it may be proper to reduce a requested award accordingly, Hensley, supra, 461 U.S. at 433. It is, however, necessary to reach a judgment with respect to how many hours were reasonably expended, Anderson, supra, 658 F.2d at 249. The figure so reached is not necessarily synonomous with the actual number of hours expended, Ryan v. Federal Deposit Insurance Corp., 24 EPD ¶ 31, 449 (USDC D.C. 1980). Hours not reasonably expended may be excluded, Hensley, supra, 461 U.S. at 434; Daly, supra, 790 F.2d at 1078; Copeland, supra, 641 F.2d at 902.

    The deficiencies in Okun's time records are such that it is difficult, if

    Okun allocated 50.5 hours to the preparation of Complainant's initial brief, including 15.75 hours attributed to review of a transcript approximately some 452 pages in length. While the undersigned reviewed the same transcript in less time, he is not prepared to conclude that any portion of the tire attributed to Okun's brief preparation was non-productive. Accordingly, the representation of 50.5 hours is accepted.

F. Time Spent On Supplemental Brief

    Because of what was perceived to be a problem, in resolving a jurisdictional issue, by a request for supplemental briefs dated 8/26/86 further guidance was sought from the parties, specifically including reference "to the specific NRC safety regulation or statutory provision relevant to" Complainant's refusal to accept a work assignment. The nature of Okun's response can best be evaluated by reproducing the text of footnote number six in the recommended decision of 9/17/86, to wit:

"When requested to file a supplementary brief identifying specific NRC safety regulations or statutory provisions relevant to Complainant's refusal to perform inspections during HFT Complainant's counsel responded by furnishing without further explanation a copy of 10 CFR SS50 which is comprised of approximately 132 pages. He did not, however, comply with the request for specific reference to an applicable statute or regulation."

    Despite Okun's contention (R-6) that Complainant had in the supplemental brief "urged a position subsequently adopted by the ALJ", the fact is that Complainant's supplemental brief was of no value in resolving the jurisdictional issue, as is made abundantly clear in the text of the aforementioned recommended decision, page 6. Stated somewhat differently, the 14.25 hours attributed to the supplemental brief were non-productive and should not be considered in computing the fee award.

G. Time Expended In Preparation of Fee Application

    Okun allocated 7 hours to the preparation of the application for award of attorney's fees. It appears that time spent in "defending" entitlement to an award of fees has been recognized by the Fourth Circuit as compensable, Daly, supra, 790 F.2d at 1080. Similarly, the Supreme Court has allowed an award to include time spent "litigating" a fee application, Webb, supra, 105 S.Ct. at 1926, fn 9. Neither Court appears to have differentiated between time spent preparing a fee request, and time spent, thereafter, in defending against assault by an opposing party. Accordingly, the 7 hours claimed for preparation

of the fee application should be approved.

    It is concluded that the maximum time reasonably expended in connection with the litigation before the Office of Administrative Law Judges [OALJ] is 151.25 hours.

    Study of the decisions cited herein may limn in one's consciousness the fact that, as stated by the Blum court, 465 U.S. at 895, fn 11, the task of evaluating reasonable attorney's fees is "inherently difficult". Various Courts have struggled with the problem, attempting to lay down clearcut guidelines for resolving questions related to the matter of awarding fees to attorneys, a particularly distressing example of resulting futility being the Copeland decision.

    Item 1 among the Johnson criteria relates to time and labor, and, of course, was considered in concluding that Okun could not have spent 118 productive hours on this case prior to the oral hearing.

    It is next appropriate to consider whether there are any other considerations which might warrant an upward or downward adjustment. Most of the Johnson criteria were weighed in determining the reasonableness of the hourly rate requested by Okun or when reaching a determination concerning the number of hours reasonably expended by him. However, item 8 which relates to the amount involved and the results obtained was not. It is concluded these considerations do not justify adjustment in the figure obtained by multiplying the reasonable rate by the number of hours reasonably expended.

    The hours identified in Okun's time record summary numbered 208.5. Of these, it was found that 57.25 hours were non-productive, leaving a remainder of 151.25 hours. Multiplied by the hourly rate, this sum calls for a fee award of $15,125.00.

    To the extent that it related to money, the recommended decision called for payment of back pay to Complainant, with interest, and outlined a formula to be utilized in computing the amount of money to be paid out. The ultimate amount involved is not known, since it will be determined by facts largely extrinsic to the record. However, Complainant's base pay was $600.00 per week, from which there was to be deducted the amount Complainant earned from another job paying $8.00 per hour, or $320.00 for a 40 hour week. Through the end of September, the month in which the recommended decision was issued, this approach would provide for back pay, subject to the adjustments specified, for 36 weeks, the total base sum being $10,080.00.

    A fee award of $15,125.00 would make Okun a principal beneficiary of the litigation in this case. Neither the amount of money involved nor the results obtained justify an upward adjustment.

    It is contemplated that a Complainant's counsel, in addition to the award of a reasonable attorney's fee, should also be entitled to recover for out-of-pocket- expenses encountered as a result of the litigation, Daly, supra, 790 F.2d at 1083-1084. An out-of-pocket expense is one which would not have arisen, but for acceptance and prosecution of the case.

    Okun's motion for attorney's fees asks for payment of "costs and expenses" in the amount of $840.29. Exhibit A-2 attached to an accompanying affidavit itemized the expenses in 8 separate categories. Each entry has been carefully considered, and each of the sums shown appears to qualify as an out-of-pocket type of expense and to be reasonable under the circumstances.

    The Fourth Circuit has recognized that delay in payment, "necessarily erodes the value of a fee that would have been reasonable if paid at the time the services were rendered", Daly, supra, 790 F.2d at 1081. See also Copeland, supra, 641 F.2d at 892.

    It is common practice for a lawyer to bill a client at the end of each month, with the expectation that payment will be received before the end of the following month. It is also appropriate to bill a client at a significant stage in the course of litigation, one such stage being at the time an initial or recommended decision issued. In the instant situation there is an inherent delay factor in the procedure followed which calls for an oral hearing and, the issuance of a recommended decision which cannot become final unless adopted by the Secretary of Labor. Action by the Secretary may not be completed until a year or more after issuance of the decision recommended by an ALJ.

    In such circumstances, controversy has arisen over the question of whether the hourly rate found to be reasonable should be that prevailing at

the time a lawyer performed the work or that prevailing at the time a decision became final. It has also been argued that, if the former measure is applied, the delay element should be factored into the rate level found to be reasonable. The problem with that approach in the instant circumstance is that there is no reasonably accurate method of determining in advance how many months of delay will be encountered. A more precise, and, therefore, a more fair approach would be to provide for interest to be paid from the date by which a lawyer in more common circumstances would reasonably expect to be paid.

    The recommended decision was served on 9/17/86. But for the delay inherent in a procedure which does not make a decision at the trial level final until the Secretary has acted, Okun could reasonably have billed for his services and out-of-pocket expenses by October 1, 1986, and expected payment by November 1, 1986. The more logical way to make adjustment to take into consideration the delay factor is to provide for the payment of interest to begin to accrue as of the latter date on all fees and expenses approved for payment as a result of litigation before the OALJ.

    The foregoing considered, the following Order is issued.

(1) Daniel Construction Company shall pay directly to Michael Okun, Esq., the sum of $15,125.00 for legal fees in connection with litigation of this matter before the Office of Administrative Law Judges.

(2) Daniel Construction Company will reimburse Michael Okun for out-of-pocket expenses encountered in connection with the litigation in the total amount of $840.29.

(3) Beginning with 11/1/86 Daniel Construction Company will pay interest on any sums due Michael Okun as a result of paragraphs (1) and (2) above at the rate specified in 28 U.S.C. § 1961 in effect on that date.

       JOHN C. BRADLEY
       Administrative Law Judge

JCB/llk