DATE:  September 8, 1992
CASE NO. 88-SWD-3


IN THE MATTER OF

CHILTON D. WILLIAMS,

          COMPLAINANT,

         v.

TIW FABRICATION & MACHINING, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     This case arises under the employee protection (whistleblower)
provision of the Solid Waste Disposal Act, as amended (SWDA), 42
U.S.C. § 6971 (1988).
     Complainant has petitioned for costs and expenses, including
attorney's fees, in the amount of $23,479.44.  Respondent's
challenge to the attorney's fees request brings into question hours
reasonably expended by Complainant's counsel and the reasonable
hourly rate.  See Copeland v. Marshall, 641 F.2d 880,
891-894 (D.C. Cir. 1980).  Respondent also apparently requests a
downward adjustment of the lodestar based on quality of
representation.  See id. at 893-894.
     Respondent characterizes as excessive the number of hours
claimed due essentially to counsel's "inexperience."  Response to
Petition for Attorney Fees at 2-6.  Examination of the daily
totals, however, reveals them generally to fall below the average
"six to seven billable hours per day for a five day week"
identified by the court in Ramos v. Lamm, 713 F.2d 546,
553-554 (lOth Cir. 1983), and all hours exceeding the average were
allocated to discrete research, briefing, and discovery projects
which reasonably may have required extended effort.  I therefore
decline to reduce the award on this basis.
     Upon consideration of Respondent's challenge to specific
billings, Response at 5 and Exh. A, I find that some of the hours 
[PAGE 2]
claimed were nonproductive, i.e., "hours that should not
have been spent."  Copeland v. Marshall, 641 F.2d at
902-903.  In particular, I question the necessity for the August
1988 investigation of a former employee's death (1.70 hours) and
the October 1988 investigation of cast iron drums (.90 hours), and
I disallow these claims.  The remaining hours challenged
specifically by Respondent appear productive in that they were
spent in research bearing on an issue central tn whether
Complainant's complaints were covered substantively under the SWDA
whistleblower provision.  See Sec. Dec., June 24, 1992, at
2, 4.  Accordingly, I allow these claims.
     Respondent's challenge to Complainant's requested hourly
rate of $100 is well taken on the particular materials
documenting this fee request.  See Ramos v. Lamm, 713
F.2d at
555 (customary rate of private sector attorney relevant but not
conclusive).  In response to Complainant's petition, Respondent
submitted the affidavit of an area practitioner documenting a
reduced rate.  On this basis, I find that an hourly rate of $75
is reasonable.  I employ the upper limit of Respondent's
proffered range to compensate for delay in receipt of payment.
Missouri v. Jenkins, 491 U.S. 274, 282-284 (1989); Ramos
v. Lamm, 713 F.2d at 555 (hourly rate should reflect rates in
effect at time fee is established, rather than those in effect at time
services were performed); Copeland v. Marshall, 641 F.2d at
893.  I also find that counsel competently represented Complainant,
notwithstanding the Administrative Law Judge's (ALJ) criticism.
Hearing Transcript at 359-361.  In the referenced examination,
Complainant's counsel was attempting to establish that
Respondent's "legitimate" reason for laying off Complainant was
pretextual, which necessitated use of complex documentation. 
See Sec. Dec. at 8-9, adopting ALJ Recommended Dec. at
11-13.
                               ORDER
     Respondent TIW Fabrication & Machining, Inc., is ordered to
compensate Complainant's counsel Frank Surls attorney's fees in the
amount of $15,645 (208.60 hours x $75) and all other costs and
expenses itemized on page four of Complainant's Exhibit A
attachment to the fee petition, with any appropriate taxation
adjustment.
          SO ORDERED.

                                    LYNN MARTIN 
                                   Secretary of Labor
 Washington, D.C.