DATE:  December 7, 1994
CASE NO. 92-CAA-6


IN THE MATTER OF

CATE JENKINS,

          COMPLAINANT,

     v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Complainant Cate Jenkins brings the captioned complaint of
unlawful discrimination against her employer, the U.S.
Environmental Protection Agency (EPA), under the employee
protection provisions of the Toxic Substances Control Act (TSCA),
15 U.S.C. § 2622 (1988); Safe Drinking Water Act (SDWA), 42
U.S.C. § 300j-9(i) (1988); Clean Air Act (CAA), 42 U.S.C.
§ 7622 (1988); Solid Waste Disposal Act (SWDA), 42 U.S.C.
§ 6971 (1988); Water Pollution Control Act or Clean Water Act (CWA), 33
U.S.C. § 1367 (1988); Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610
(1988); and the applicable regulations which appear at 29 C.F.R.
Part 24 (1993).  On May 18, 1994, I issued a decision finding
that Respondent had violated the employee protection provisions
of five of the above environmental statutes in its treatment of 
Dr. Jenkins, and I ordered her reinstated to her former position. 
Remaining for decision is the question of costs and expenses,
including attorney fees, appropriately awarded.  In calculating 
[PAGE 2]
attorney fees under these statutes, I employ the lodestar method
which requires multiplying the number of hours reasonably
expended in bringing the litigation by a reasonable hourly rate. 
Hensley v. Eckerhart, 461 U.S. 424 (1983).

                  Complainant's Trial Counsel
     The attorneys who represented Dr. Jenkins before the
Administrative Law Judge (ALJ) petition for compensation at the
following hourly rates:

     S. Kohn                                  $225.00

     M. Kohn                                 $225.00

     D. Colapinto                           $190.00

     S. Bavuma (law clerk)              $45.00

A reasonable attorney's fee is based on rates prevailing in the
community for similar services.  Blum v. Stenson, 465 U.S.
886, 896 and n.11 (1984).  Upon consideration of the materials
submitted by counsel in support of their fee petition, I find the
requested rates to be reasonable.
     Respondent raises a number of objections to the hours
claimed in the fee petition.  As a preliminary matter, Respondent
correctly points out an error in calculating hours of work for 
M. Kohn.  Resp. Response to Trial Counsel Petition at 2 (third
paragraph (par.)).  Accordingly, I note that M. Kohn should have
claimed 116.75 hours.
     Respondent more generally objects, with some justification,
that counsel have failed to document the hours claimed adequately
and that some of these hours are excessive and redundant.  Upon
examination, it appears appropriate to reduce by 50 percent the
hours billed for travel time.  In re Agent Orange Products
Liability Litigation, 611 F. Supp. 1296, 1320, 1349 (E.D.N.Y.
1985).  I find redundant billing for the services of two
attorneys at the Buzzard deposition, and I eliminate 
D. Colapinto's claim of three hours for this service.  I likewise
eliminate claims for Freedom of Information Act-related
activities because they have not been shown to have furthered the
instant litigation.  I agree with Respondent that hours expended
in briefing appear somewhat excessive.  While the hours expended
generally are documented adequately, a number of descriptions are
unduly abbreviated, precluding a determination that they are
justified.  For these reasons, I reduce the total hours claimed
by five percent.
     Finally, the decision in Library of Congress v. Shaw,
478 
[PAGE 3]
U.S. 310 (1986), appears to preclude an award of interest on the
attorney fees in this case. [1] 

                 Complainant's Appellate Counsel
     The attorneys who represented Dr. Jenkins on review of the
ALJ's Recommended Decision and Order (R.D. and O.) before the 
Secretary petition for compensation at the following rates:
     R. Condit                            $100.00

     M. Harrison                        $100.00

     Law clerks                            $45.00

Upon consideration of the materials submitted by these counsel
taken in conjunction with those submitted by Complainant's trial
counsel, I find the requested rates to be reasonable.
     The attorneys listed above each request to be compensated
for ten hours of work.  While the participating law clerks
expended 27.1 hours on the case, the fee petition requests
compensation for only 15 hours of that time since not all hours
were expended "efficient[ly] or productive[ly]."  Condit
affidavit at 2-3, par. 7.
     Respondent objects to the number of hours claimed as
"unreasonable and excessive."  Resp. Response to Petition at 2. 
While, as Respondent points out, Complainant's brief in support
of the ALJ's R.D. and O. measured a mere four pages in length,
Complainant's response to Respondent's opposition to the R.D. and
O. was lengthy, dealt comprehensively with the issues, and
demonstrated a thorough understanding of the record.  Respondent
also criticizes Complainant's counsel for apparently failing to
maintain contemporaneous records specifying the date, hours
expended, and nature of the work done.  New York State Ass'n
for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d
Cir. 1983).  See Lewis v. Coughlin, 801 F.2d 570,
577 (2d Cir. 1986) (records must be made contemporaneously with
associated work).  Counsel have attested only that they
"conservative[ly]" estimate expending at least ten hours each
reviewing the record and preparing the briefs during the period
from March until June 1993.  While this documentation likely
would not suffice to substantiate a fee petition for services at
the trial or hearing level of a proceeding, I am inclined to
accept it on this single occasion for the narrow purpose of
substantiating the limited, appellate work involved here.
     As stated above, I agree with Respondent that an award of
interest on the attorney fees is not available in this case.
     Finally, Respondent objects to certain costs and expenses
claimed by Dr. Jenkins.  I agree with Respondent that Complainant
is not entitled to compensation for her purchase of the 
[PAGE 4]
Whistleblower Handbook, and I disallow that expense.  While I
harbor some reservation about retainer and other costs incurred
and paid by Dr. Jenkins in preparation for the administrative
hearing, I accept her representation that, "to the best of [her]
knowledge," they are not reflected in her trial counsels' fee
petition, and I allow them.

                               ORDER
Respondent Environmental Protection Agency is ordered to
reimburse Complainant Cate Jenkins for costs and expenses in the 
amount of $8,996.58.  In addition, the following attorney fees
are awarded:
                    Kohn, Kohn & Colapinto, P.C.

     S. Kohn        116.95 hrs. x $225/hr. = $26,313.75

     M. Kohn        108.54 hrs. x $225/hr. = $24,421.50

     D. Colapinto    51.06 hrs. x $190/hr. = $ 9,701.40

     S. Bavuma       83.00 hrs. x  $45/hr. = $ 3,735.00

                 Government Accountability Project

     R. Condit      10.00 hrs. x $100/hr. = ,000.00

     M. Harrison    10.00 hrs. x $100/hr. = ,000.00

     Law clerks     15.00 hrs. x $ 45/hr. = $  675.00


     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.






[ENDNOTES]
           
[1]   "In the absence of express congressional consent to the
award of interest separate from a general waiver of immunity to
suit, the United States is immune from an interest award."  478
U.S. at 314.  As was the case with Title VII of the Civil Rights
Act of 1964 in Shaw, id. at 318-323, none of the
five environmental statutes involved here -- the SDWA, CAA, SWDA,
CWA, or CERCLA -- contains an express waiver of sovereign
immunity with respect to interest on attorney fees.