U.S. DEPARTMENT OF LABOR
                            SECRETARY OF LABOR
                             WASHINGTON, D.C.

DATE: January 13, 1993
CASE NO. 91-ERA-13 

IN THE MATTER OF

GORDON LEDERHAUS,

          COMPLAINANT,

     v.

DONALD PASCHEN & MIDWEST 
INSPECTION SERVICE, LTD.,

          RESPONDENTS.


BEFORE: THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     This case arises under Section 210 (the employee protection
provision) of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988).  The Administrative Law
Judge (ALJ) on August 9, 1991, issued a Recommended Decision and
Order (R.D. and O.) upholding Complainant Lederhaus' claims and
recommending that Complainant be awarded back pay with interest,
compensatory damages, and attorneys fees and costs.  He allowed
Complainant's counsel to submit his request for attorneys fees,
to which Respondents did not object, and on October 22, 1991, the
ALJ issued a Recommended Decision and Order Granting Attorney
Fees in the amount of $19,043.69.
     On October 26, 1992, I issued a Decision and Order (D. and
O.) concluding that Complainant had been retaliated against for
protected activities in violation of the ERA.  The D. and O. 
awarded back pay with interest, and compensatory damages, and
allowed the parties the opportunity to submit supplemental
material regarding attorneys fees and costs.  Complainant
submitted an application for attorneys fees in response to that
order.  Respondents have filed nothing regarding the attorneys
fees issue.

[PAGE 2]
     In his original claim before the ALJ, Complainant's attorney
stated that his normal billing rate is $150.00.  September 7,
1991, Application (Appl.) at 4.  He and Complainant had a
modified contingent fee arrangement, however.  Complainant had
agreed that, if he prevailed, his attorney could be paid $300.00
per hour up to one third of the amount awarded to Complainant to
elevate the attorney's compensation to twice his normal hourly
rate.  Appl. at 5.  Complainant's attorney also provided
affidavit support for his contention that attorneys in the
Milwaukee and Madison, Wisconsin, areas "would have to be
confident of receiving two to five times their normal hourly
billing rates before they would consider taking statutory
fee-generating cases on a contingency basis."  Id. 
Complainant's attorney argued that his normal hourly rate should
be doubled to $300.00 in order to calculate the reasonable
attorneys fees to which he is entitled under the ERA.  The ALJ
adopted this rate and the number of hours requested, noting that
the amount requested was reasonable in light of "the nature of
the issues involved, the high degree of skill with which the
Complainant was represented, the amount of time and work
involved, and other relevant factors . . . ."  Recommended
Decision and Order Granting Attorney Fees at 2. 
     At the time Complainant's attorney filed his original
submission regarding attorneys fees, the leading decision on the
subject of attorneys fee awards under fee shifting statutes such
as the ERA was Pennsylvania v. Delaware Valley Citizens'
Council for Clean Air, 483 U.S. 711 (1987) (Delaware
Valley II), which left open the question whether under the
fee shifting provision of the Clean Air Act, 42 U.S.C. §
7604(d) (1988), prevailing plaintiffs' attorneys were entitled to
receive an enhancement above the "lodestar"[1]  amount on the
theory that without such enhancement plaintiffs would face
substantial difficulties in obtaining suitable counsel.
     The Supreme Court has now resolved the issue left undecided
in Delaware Valley II.  In City of Burlington v.
Dague, ___ U.S. ___, 112 S. Ct. 2638 (1992), the Court held
that under the fee shifting statutory provisions of the Solid
Waste Disposal Act, 42 U.S.C. § 6972(e) (1988), and the
Federal Water Pollution Control Act (Clean Water Act (CWA)), as
amended, 33 U.S.C. § 1365(d) (1988), an attorneys fee award
may not be enhanced above the "lodestar" amount in order to
reflect the fact that the prevailing party's attorney was hired
on a contingent-fee basis and therefore assumed the risk of
receiving no payment at all for his or her services.  The
statutory fee shifting provisions there interpreted are similar
in all relevant respects to that contained in the employee
protection provision of the ERA.  The 
[PAGE 3]
SWDA and the CWA authorize a court to "award costs of litigation
(including reasonable attorney . . . fees)" to a
"prevailing or substantially prevailing party."  42 U.S.C. §
6972(e) (emphasis added); 33 U.S.C. § 1365(d) (emphasis
added).  The ERA provides that where the complainant prevails,
"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
attorney's and expert witness fees) reasonably incurred .
. . ."  42 U.S.C. § 5851(b)(2)(B) (emphasis added).  The
Supreme Court specifically noted in City of Burlington
that "our case law construing what is a 'reasonable' fee applies
uniformly to all [federal fee shifting statutes]."  Id. at
2641.  See Flight Attendants v. Zipes, 491 U.S.
754, 758, n.2 (1989).
     I conclude that the holding of City of Burlington
should be applied to the attorneys fees authorization of the
employee protection provision of the ERA.  I therefore determine
that Complainant's attorney is not entitled to a fee enhancement
above the "lodestar" figure.  The fact that Complainant and his
counsel entered into an agreement requiring Complainant to pay a
maximum of $300.00 per hour up to one third of the Complainant's
award (see Affidavit of Thomas Nelson (Nelson Aff.) at 2,
attached to Appl.) is not a reason for awarding that hourly rate.
Respondents are liable only for reasonable attorneys fees no
matter what amount Complainant may have contracted to pay his
attorney.  Blanchard v. Bergeron, 489 U.S. 87, 93 (1989)
("[A]ttorney's private fee arrangement standing alone is not
dispositive"); Clark v. American Marine Corp., 320 F.
Supp. 709, 711 (E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir.
1971) ("The criterion for the court is not what the parties
agreed but what is reasonable").
     Complainant's attorney has presented adequate evidence to
demonstrate that $150.00 is a reasonable hourly fee for the type
of work he performed given his level of experience and the
geographic area in which he practices. Nelson Aff. at 1-2;
Affidavit of Walter F. Kelly at 4; Affidavit of Thomas M.
Jacobson at 2; Affidavit of Robert J. Gingras at 6-7; attach to
Appl. In addition, given the issues presented, I conclude that
the total of 80 hours claimed (62.2 hours at the hearing level
and 10.8 before the Secretary) is well within the range of 
reasonableness.  Therefore the "lodestar" figure in this case is
$12,000.  Total costs requested are $383.69.
                                  ORDER 
     For the foregoing reasons, Midwest Inspection Services,
Ltd., and Donald Paschen are ordered to comply with paragraphs 1
and 2 of my Decision and Order of October 26, 1992, and to pay
Complainant's attorneys fees and costs in the amount of 
[PAGE 4]
$12,383.69.

     SO ORDERED.

                              Secretary of Labor
Washington, D.C.


[ENDNOTES]
           
[1] 
  As the Supreme Court has explained, the "lodestar" is "the
product of reasonable hours times a reasonable rate."
Pennsylvania v. Delaware Valley Citizens' Council for Clean
Air, 478 U.S. 546, 565 (1986) (Delaware Valley I).