Date:  December 5, 1995

Case No.  92-ERA-37

In the Matter Of:

GREGORY SPRAGUE,

          Complainant,

     v.

AMERICAN NUCLEAR RESOURCES, INC.,

          Respondent.


        SUPPLEMENTAL RECOMMENDED DECISION AND ORDER
              REGARDING BACK PAY AND ATTORNEY FEES

     This matter has been remanded by the Secretary and set for
hearing regarding the question of back pay owed by the Respondent
to the Complainant.  The parties have settled the limited
question of the amount of back pay and submitted a stipulation
for approval.  See Appendix A.  The parties have agreed
that the Respondent will pay the Complainant $4,448.00 which
constitutes the total amount of back pay owed to the Complainant,
except for the interest accumulated from the date of this Order
pursuant to the decision and order of the Secretary.

     Additionally, pursuant to the Secretary's Decision and Order
issued on December 1, 1994, Complainant's counsel has timely
petitioned for an award of costs and expenses, including
attorney's fees, in this case arising under the employee
protection provision of the Energy Reorganization Act of 1974, as
amended, 42 U.S.C. § 5851 (1988).  Complainant's counsel
supplemented his fee petition on October 3, 1995.  Including fees
and expenses, Complainant's counsel requests the sum of
$13,220.00.

     The Complainant's fee application employs an hourly rate of
$150.00 for Complainant's counsel and $110.00 for Complainant
counsel's former associate who also worked on the case.  
Addition
[PAGE 2]
ally, the fee applications itemize the hours expended and
expenses incurred in pursuit of his complaint.  

     The Respondent has filed an objection to the Complainant's
fee application regarding two specific matters.  Initially, the
Respondent contends that Complainant's counsel's fee of $506.00
for 4.6 hours of service performed in association with the
"Complainant's Brief on Appeal" is not compensable.  The
Secretary noted in his decision that the Complainant's brief was
untimely and was "not [] considered in reaching this decision."
See Sprague v. Amer. Nuclear Resources, Inc.,
92-ERA-37, at 2 (Sec'y Dec. 1, 1994).  The Complainant argues
that the Respondent's objection concerning this fee was not
timely submitted and therefore the Respondent waived the right to
object the fees originally submitted, which included the fee for
the appeal brief to the Secretary.  Notwithstanding the
Complainant's argument, it is within the discretion of the
administrative law judge to determine what fees were "reasonably
incurred by the complainant . . . for, or in connection with, the
bringing of the complaint upon which the final order was issued"
and I am not bound by the objections of the opposing party in my
review of the fee petition.  Furthermore, the Secretary has
previously disallowed attorney's fees with were determined to be
nonproductive. Williams v. TIW Fabrication & Machining,
Inc., 88-SWD-3 (Sec'y Sept. 8, 1992).  As the Complainant's
brief on remand was deemed untimely by the Secretary and not
considered, I find that the Complainant's fee for this matter
in noncompensable.  Consequently, the Complainant's fee petition
is reduced by $504.00.

     Next, the Respondent argues that all fees incurred by the
Complainant between January 19, 1995 and March 31, 1995 are
noncompensable because such fees represent work performed with
respect to an appeal to the United States Court of Appeals for
the Sixth Circuit.  The Respondent contends that these fees fall
outside the Department of Labor's jurisdiction and are not
properly assessed in this action.  Initially, I note that the
Sixth Circuit has never accepted jurisdiction of this complaint
because the Secretary has yet to issue a final appealable order. 
Thus, the Department of Labor has not relinquished jurisdiction
over this matter.  Next, I note that the work performed by the
Complainant's counsel was in response to an appeal filed by the
Respondent.  Thus, the work done by Complainant's counsel in this
regard, for time being perhaps non-productive, was performed to
protect the Complainant against an action initiated by the
Respondent.  Therefore, I find that the Complainant's work done
with respect to responding to the Respondent's appeal was
incurred in connection with bringing the complaint and is
compensable. 


[PAGE 3]
     Finally, I note that on the Complainant's initial petition
for fees includes 1.4 hours under the heading "submitted fee
petition."  However, the Secretary has determined that time spent
in preparation of a fee application is not compensable, although
time expended in defending a fee petition is compensable.
Hilton v. Glas-Tec Corp., 84-STA-6 (Sec'y July 15, 1986). 
Therefore, the Complainant's fee petition is reduced by $154.00.

     Upon consideration of the petition, I find that the
remainder of the requested fees are reasonably commensurate with
the work performed and represent an adequate account of the
Complainant's costs and expenses.  Furthermore, I find that the
number of hours expended is not excessive and that the hourly
rate is reasonable. 

     Accordingly, IT IS HEREBY ORDERED that the Respondent pay to
the Complainant the sum of $4,448.00, representing backpay owed
to the Complainant by the Respondent as set forth in the parties
stipulation. See Appendix A.

     IT IS FURTHER ORDERED that the Respondent compensate Com-
plainant's counsel in the sum of $12,562.00, representing $435.00
in expenses and $12,127.00 in attorney's fees.  See 42
U.S.C. § 5851(b)(2)(B); 29 C.F.R. § 24.6(b)(3).
    



                                  DANIEL J. ROKETENETZ
                                  Administrative Law Judge