Date: APR 17 1998
Case Nos. 94-TSC-3
   94-TSC-4

IN THE MATTER OF

MARRITA M. LEVEILLE

    and

DANIEL J. LEVEILLE
   Complainants

   v.

NEW YORK AIR NATIONAL GUARD
   Respondent

Before: Robert D. Kaplan
    Administrative Law Judge

   On February 9, 1998, I issued a Recommended Decision and Order in which I granted Complainant Marrita M. Leveille's (hereinafter referred to as Complainant) July 19, 1996 fee application and awarded Complainant $57,475.75 for attorney's fees and $12,736.00 for costs through June 17, 1996. In addition, I granted Complainant's counsel leave to file: (1) an application

which sets forth the calculation of the amount of interest to which he is entitled on the fee (excluding the seven-month delay in submitting a fee application), and (2) a supplemental application for fees and costs for the period subsequent to June 17, 1996. Respondent was granted fifteen days in which to file an opposition to complainant's supplemental fee and costs submissions.

   On March 11, 1998, Complainant's counsel submitted a supplemental application for attorneys fees and costs (Application) which includes: (1) an adjustment of the lodestar award in accordance with my February 9, 1998 Recommended Decision and Order, and (2) an application for supplemental fees and costs incurred in this matter subsequent to June 17, 1996.

   Complainant's counsel notes that he is entitled to receive a fee based on current market rates (or, in the alternative, interests rates calculated in accordance with the method utilized by the Secretary) in order to compensate for delay in receiving payment. Consequently, counsel calculated interest on the fees in accordance with the interest rate utilized by the Secretary of Labor in awarding interest¹ and compared the result with an adjustment of the lodestar based on counsel's current hourly rates. Thus, as of March I 1, 1998, adding interest to the fee of $57,475.75 initially awarded, (excluding the seven-month delay in submitting a fee application) results in a total of $72,558.67. This is greater than the adjusted lodestar fee based on current rates which counsel calculated at $72,452.50. (Application, p. 4) Consequently, I find that $72,452.50 is the appropriate fee for services rendered through June 17, 1996.

   Additionally, Complainant's counsel requests $42,295.00 in supplemental fees (using current market rates and calculated by the lodestar method) and $194.06 in costs for the period from June 18, 1996 through March 11, 1998. (Application, p. 19) Complainant's counsel also requests that Complainant, herself, be awarded supplemental costs in the amount of $830.8l.² However I find an error in counsel's calculation of 147.40 hours for his own legal services during that time period. (Application, exhibit 3) The correct amount of time is 140.75 hours. Thus, the lodestar is reduced by ,662.50 ($250 x 6.65 hours). Therefore, the total fee for the period from June 18, 1996 through March 11, 1998 is $40,632.50.

   With the correction set forth above, I find that the amounts requested in Complainant's supplemental application for attorney's fees and costs are reasonable. Furthermore, Respondent has failed to file any opposition or objection to Complainant's supplemental fee and costs submissions within the time allowed.

¹See 26 U.S.C. §6621; Mosbaugh v. Georgia Power Company, Case Nos. 91-ERA-1 and 91-ERA-11 (Sec'y decision and Order, November 20, 1995).

²Complainant's counsel submitted detailed statements attached to his affidavit setting forth the supplemental costs incurred by Complainant and the law firm, respectively. (Application, exhibit 3, 3A, and 3B)