alleged in 1988 that Respondent, Hydro Nuclear Services (Hydro), violated the employee protection provision when it first declined to hire him and then blacklisted him from employment in the nuclear power industry. In 1994, the Secretary of Labor found that Doyle prevailed on the merits of his complaint. March 30, 1994 Secretary Final Decision and Order (1994 Sec'y D&O). The Secretary ordered Hydro to offer Doyle a position similar to the one for which he had been considered and to pay back pay.

Records" pertaining to prior employment, among other things. Id. Hydro routinely used the release form for all applicants. 1994 Sec'y D&O at n.5. Doyle signed the release, but crossed out the following sentence:

Further, I hereby release and discharge Hydro Nuclear Services, their representatives, and their clients for whom the investigation is being performed and any organization listed above furnishing or receiving any information pertaining to me from any and all liability or claim as results of [sic] furnishing or receiving such information pursuant to this authorization.

Id. at 1. Doyle, who had been a whistleblower in a prior job at a different nuclear plant, told a Hydro manager about his earlier whistleblowing and objected to the language because it constituted a waiver of his rights under the ERA. Id. at 2. Doyle refused to sign the form if it contained the language to which he objected.

   Hydro did not hire Doyle because he refused to sign the release as it was written. 1994 Sec'y D&O at 5. In addition, Hydro notified Equifax Corporation that it had denied Doyle access to the D.C. Cook Nuclear Power Plant. 1995 RD&O at ¶46. Doyle timely filed a complaint with the Department of Labor alleging that Hydro's actions violated the ERA's employee protection provision.

   B. The First ALJ Decision and the Secretary's Reversal

   In a July 1989 Recommended Decision and Order (1989 RD&O), the ALJ granted Hydro's motion for summary judgment. The ALJ found that Doyle had misconstrued the release as jeopardizing whistleblower remedies that Doyle might be pursuing against entities other than Hydro. 1989 RD&O at 5. The ALJ further found that Hydro had a right to insist that all employees sign the release, and that it was legitimate to refuse to hire Doyle when he refused to sign it. Id.

   A hearing was held in December 1994. Subsequently, the ALJ issued the November 1995 RD&O, in which he found that Hydro's report to Equifax that the company had denied Doyle access to the D.C. Cook nuclear plant subsequently had foreclosed Doyle from finding other employment in the nuclear field. Consequently the ALJ recommended that Hydro pay back pay to Doyle, less interim earnings, through the date of the ALJ's decision. The ALJ also awarded interest on the back pay at the rate specified in 26 U.S.C. §6621. Further, the ALJ recommended certain affirmative action to abate Hydro's violation of the whistleblower provision.

   In the November 1995 decision, the ALJ found that reinstatement was not possible because Westinghouse had sold its decontamination services divisions in 1991 and claimed that it no longer employed decontamination technicians and did not have any positions for which Doyle was qualified. 1995 RD&O at 19. In lieu of reinstatement, the ALJ recommended that Hydro pay five years' front pay to Doyle. Id.

   Finding that Doyle suffered from emotional distress, anxiety and depression as a result of not being hired and not obtaining other work in the nuclear industry, the ALJ ordered Hydro to pay $40,000 in compensatory damages. 1995 RD&O at 22. Further, the ALJ awarded payment of the medical expenses Doyle had incurred as a result of not being hired. Id.

   In a subsequent Recommended Attorney Fee Order (1996 Fee Order), the ALJ recommended that Hydro pay Doyle an attorney fee of $150,181.75 and expenses of $15,450.03, which were the fees and costs reasonably incurred pursuing the complaint through December 11, 1995.

   D. The Administrative Review Board's September 1996 Decision

   On review of the ALJ's recommended decisions on damages and attorney fees, the Administrative Review Board (ARB or Board) issued a Final Decision and Order in September 1996 (Sept. 1996 D&O). The Board noted that a psychologist, Dr. Carter, testified that the effect of losing his career in the nuclear industry was so devastating to Doyle that he was not likely to find any employment in the next five years. Dr. Carter gave the opinion that Doyle needed four to five years of therapy, as well as education or training, to be employable again. Consequently, we concurred with the ALJ's recommendation that Doyle was entitled to five years' front pay. Id. Explaining that it is necessary to discount the front pay award to a present value in order to make a lump-sum award, the Board encouraged the parties to agree on the appropriate discount rate and the resulting front pay award. Id.

   As for back pay, the Board determined that Doyle was entitled to six months' back pay per year, at the average hourly wage for itinerant decontamination technicians in the nuclear industry, less interim earnings, plus interest at the rate specified in 26 U.S.C. §6621. Sept. 1996 D&O at 6. Again, the Board encouraged the parties to agree on the average hourly wage to be used for the years since 1988, and asked the parties to give notice if they could not agree. Id. at n.6.

   The Board accepted the ALJ's recommended award of $40,000 in compensatory damages and an unspecified amount of medical expenses, to the extent that Doyle bore the medical expenses himself. Sept. 1996 D&O at 9-10. The Board also agreed with the ALJ's affirmative remedies, including requiring Hydro to post the decision at the nuclear operations of Westinghouse. Id. at 11. Finally, the Board affirmed the recommended award of attorney fees and costs. Id.

   Doyle sought judicial review of the ARB's September 1996 Decision in the United States Court of Appeals for the Third Circuit, and Hydro sought review of it in the Sixth Circuit. After the two cases were consolidated in the Third Circuit, that court remanded the case to the Secretary on the ground that the decision was not administratively final.

   E. The ARB's 1997 Remand Order

   Subsequent to the court's remand order, the parties were unable to agree on either the discount rate needed to calculate front pay or on the average hourly wages needed to calculate the back pay. Consequently, Doyle asked us to remand the case to the ALJ for further proceedings. Hydro asked us to clarify certain aspects of our September 1996 D&O, including whether the front pay period had begun upon the issuance of that decision. Hydro otherwise agreed with the suggested remand of the case.

   The Board issued a Remand Order in November 1997 (1997 Rem. Ord.), addressing some of the concerns raised by Doyle and Hydro. We disagreed with Hydro's suggestion that the front pay period began in September 1996. Rather, we noted that the front pay period would not begin until Doyle was able to obtain the therapy, education, and training that he needed to become employable again. Consequently we ordered the ALJ to take evidence and make findings on the issue as a means to determine the start of the front pay period. 1997 Rem. Ord. at 4.

   In the 1997 Remand Order we also directed the ALJ to take evidence and make findings on the unresolved issues: the average hourly wages and the discount rate. Id. at 5. We also noted that Doyle had incurred additional attorney fees and costs since the cut- off date for the fees we earlier had awarded (December 11, 1995), and therefore ordered the ALJ to make a recommendation on the additional fees and costs to which Doyle was entitled.

   F. Proceedings After the 1997 Remand Order

appropriateness of any payment of damages, and they reserved the right to seek judicial review of the final administrative decision. 1998 Stip. at 2 and ¶8. Hydro and Doyle agreed that the back pay period ended on June 30, 1997, and that the front pay period began on July 1, 1997, and ends on June 30, 2002. 1998 Stip. at ¶¶3, 4. They also agreed on the average hourly wages to be used in calculating back and front pay and on the discount rate to be used in calculating the front pay. Id. at ¶¶1, 2. Although the stipulation listed the hourly wages, it did not include the calculation of the back pay or the front pay.

   After reaching these partial agreements, Doyle moved for summary judgment before the ALJ, supporting the motion with the affidavit of an experts' who calculated the back and front pay and interest. Doyle also included a personal affidavit supporting an additional payment to make up for the increase in federal income tax that he would incur because he would receive the monetary damages award as a lump sum payment (a tax enhancement).

   Hydro moved to strike portions of the summary judgment motion on the ground that some of the claimed monetary damages were outside the scope of the 1997 Remand Order. Hydro also sought discovery concerning the experts' calculation of damages.

   In light of the remaining issues identified by the ALJ, the parties entered into a second stipulation (1999 Stip.). Pursuant to the ALJ's order to submit a recalculation of the prejudgment interest, Doyle and Hydro agreed on the amount of prejudgment interest that would be paid if a final order issued in the first quarter of the year 1999 (1999 Stip. ¶3) and provided a formula for calculating the prejudgment interest for a final judgment issued in any subsequent quarter (id. at ¶4). The parties also agreed on the amount of Doyle's lost employment benefits, including out of pocket medical expenses. Id. at ¶5. Again, the parties reserved their rights to judicial review of the forthcoming final administrative decision.

   G. The Final Recommended Decisions Now Before the Board for Review

   Soon after the parties reached the second stipulation, the ALJ issued the Final Recommended Decision and Order on Damages (FRD&O). In that decision, the ALJ ordered Hydro to pay the amounts of damages he earlier had determined in the 1998 Partial Order and the parties' stipulated recalculation of the prejudgment interest. The ALJ also accepted the parties' stipulation to the amount of employee benefits to which Doyle is entitled. In a separate Order Denying Motion for Stay issued the same day, the ALJ found that he did not have authority to consider Hydro's motion for a stay pending judicial review of the future administratively final order.

   In a subsequent Recommended Decision and Order Awarding Attorney Fees (1999 Fee Order), the ALJ recommended that Hydro pay the following amounts to Doyle and his counsel for work performed in this case since December 11, 1995: $145,657.00 in attorney fees and $14,273.42 in expenses.

   Both parties petitioned for administrative review of the FRD&O before the ARB, and Doyle also sought review of the 1999 Fee Order.

II. PENDING MOTIONS

    Both parties have filed motions that are pending before us. We will now rule on these motions.

   A. Hydro's Motion for Stay Pending Appeal

   At the same time it filed a petition for review of the FRD&O, Hydro asked us to issue a stay pending judicial review of the future administratively final decision. Doyle opposed the motion on the grounds that it was premature. Doyle also argued that the stay should be denied on its merits. Because this decision is the administratively final order, we will rule on the merits of the stay request.

   The factors for determining whether the Board's final decision should be stayed pending judicial review are:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting a stay.

Dutkiewicz v. Clean Harbors Environmental Svcs, Inc., ARB Case No. 97-090, ALJ Case No. 95-STA-34, Order Denying Stay, Sept. 23, 1997; Goldstein v. Ebasco Constructors, Inc., Case No. 86-ERA-35, Sec. Order Denying Stay, Aug. 31, 1992. We will examine each of the criteria in turn.

   (1) Hydro argues that it is likely to prevail on the merits. Hydro characterizes its decision not to hire Doyle as legitimate because he would not sign a standard release form. Motion for Stay at 8. Citing the ALJ's 1989 RD&O, Hydro claims that Doyle's refusal to sign the release was not an activity protected under the whistleblower provision. Id. at 7. Hydro contends that the Secretary "compounded the error" by finding that it violated the whistleblower provision without the benefit of an evidentiary hearing.

   Contrary to Hydro's contention, there was no need for an evidentiary hearing prior to the Secretary finding Hydro liable under the ERA. There was no dispute about the wording of the waiver, which was in the record, or the fact that Hydro refused to hire Doyle solely because he would not sign the waiver as written. The Secretary found that the waiver, if signed, would have immunized Hydro from liability if, in the future, the company violated the whistleblower provision, for example by refusing to hire Doyle because he had been a whistleblower in the past. As the Secretary reasoned:

[I]f Respondent refused to hire an applicant because he filed a complaint with the NRC against another employer, such a clear violation of the ERA and the regulations would be immunized if this release were allowed to stand. . . . I find that Respondent violated the ERA when it refused to hire Complainant because he refused to sign the authorization form unless the release of liability paragraph was deleted.

1994 Sec'y D&O at 5.

   We find support for the Secretary's ruling in this case in an earlier decision under the ERA in which the Secretary determined that an employer's mere proffer of a settlement that would have restricted the employee's access to administrative and judicial agencies, itself, was an ERA violation. Delcore v. W. J. Barney Corp., No. 89-ERA-38, Sec'y D&O, Apr. 19, 1995, aff'd, Connecticut Light & Power Co. v. Sec'y of Labor, 85 F.3d 89 (2d Cir. 1996). Both the wording of the waiver and the Secretary's earlier ruling demonstrate that Hydro is not likely to succeed on the merits of a petition for judicial review.

   (2) Hydro has not established the second factor: that it will suffer irreparable harm unless the stay is granted. Hydro contends that it will be compelled to pay Doyle approximately six hundred thousand dollars, which it may not be able to recover if Hydro prevails in its future petition for judicial review. Motion for Stay at 8. As we stated before, Hydro is not likely to prevail on the merits of such an appeal.

   Even if it were likely to prevail, however, the courts have recognized that "economic loss does not, in and of itself, constitute irreparable harm. . . . Recoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the (movant)'s business." Packard Elevator, Farmers Cooperative Soc., Inc. v. ICC, 758 F.2d 669, 674 (D.C. Cir. 1985). See also Arcierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (on review of district court issuance of preliminary injunction, noting that "[e]conomic loss does not constitute irreparable harm"). Respondent Hydro has not argued, let alone demonstrated, that payment of the damages in this case would threaten the company's existence.

   (3) On the other hand, Doyle will be harmed if a stay is granted, because he will have to wait even longer to be paid the damages owed to him. Although in some cases the posting of a supersedeas bond possibly could serve fully to protect the complainant's rights, in this case the guarantee of future payment of the damages is not sufficient to prevent harm to Doyle. Doyle has stated under oath that because of lack of funds he is unable to purchase needed medications and obtain medical treatment. See Affidavit of Shannon Doyle dated July 31, 1998 at ¶¶ 2, 3, 6, attached as Exhibit 4 to Complainant's Answer to Respondent's Motion to Strike and Stay. Even when there are not such pressing reasons for immediate payment of damages, we have denied a stay despite the movant's offer of a bond to protect future payment. E.g., Dutkiewicz, slip op. at 1. With the compelling reasons Doyle has presented in this case, we find readily that he will be harmed if a stay is granted.

   (4) The public interest weighs against the granting of a stay. The courts recognize that because employees often are in the best position to ensure nuclear safety, the protection of their rights under the ERA's whistleblower provision is paramount. Kahn v. United States Sec'y of Labor, 64 F.3d 271, 277 (7th Cir. 1995), citing Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1163 (9th Cir. 1984) and Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir. 1985). It has been more than eleven years since Doyle filed this complaint concerning Hydro's violation of the employee protection provision. It is time that Doyle be "made whole" for that violation.

   B. Doyle's Motion to Supplement 1996 Attorney Fee Award

   In this motion, Doyle asks for the same relief he seeks in briefs filed with this Board: an enhancement to the 1996 award of attorney fees and costs award because of the passage of time. In the discussion below, we explain that we grant an adjustment to the 1996 attorney fee award. Accordingly, we grant Doyle's Motion to Supplement 1996 Attorney Fee Award.

   C. Doyle's Motion to Expedite Final Order on Merits

   Doyle's Motion is denied as moot because we now issue the administratively final decision in this case.

III. REQUESTED ENLARGEMENTS TO DAMAGES

   A. Tax Enhancement to Back Pay

   In an earlier decision in this case, we observed that "the goal of back pay is to make the victim[s] of discrimination whole and restore [them] to the position that [they] would have occupied in the absence of the unlawful discrimination." Sept. 1996 D&O at 2, quoting Blackburn v. Martin, 982 F.2d 125, 129 (4th Cir. 1992). Therefore, we agree in principle with Doyle's contention that a complainant is entitled to an enlargement of the back pay award to reflect the adverse tax consequences of receiving a lump sum payment that represents many years of back pay. Complainant's Initial Brief (Comp. Init. Br.) at 10-11. As Doyle states, had he received the pay over the many years involved, he would have been in a lower tax bracket and could have taken advantage of various exemptions available to him. When Doyle receives the lump sum payment, however, it will place him in the highest tax bracket and he will lose his ability to claim many exemptions.

   Hydro objects to the requested enhancement, asserting that Doyle should have raised the issue earlier in the proceedings before the ALJ in 1994-95. Respondent's Brief in Opposition to the Complainant's Petition for Review to the ARB (Resp. Br. in Opp.) at 8. The company also argues that the issue was outside the scope of our 1997 Remand Order. Id. at 8-9. These arguments were made to the ALJ, who agreed with both objections and struck the portions of Doyle's motion for summary judgment that addressed enlargement of the award because of adverse tax effects. Sept. 1998 Order at 4.

   To the extent the ALJ viewed our 1997 Remand Order as precluding consideration of the adverse tax consequences of receiving a lump sum, this interpretation was incorrect. The ALJ had authority to consider and decide this issue. Neither our September 1996 D&O nor the 1997 Remand Order decided the issue of a tax enhancement, either expressly or impliedly, as Hydro acknowledges. See Resp. Br. in Opp. At 8 ("there was no discussion by this Board about possible compensation for the tax effects of a lump sum payment"). In concluding that the ALJ had authority to rule on the requested tax enhancement, we look by analogy to the powers of a district court upon remand of a case by an

appellate court. The Supreme Court has reasoned that "[t]he doctrine of law of the case comes into play only with respect to issues previously determined,"and on remand, a lower court "'may consider any matters left open by the mandate'" of the superior court. Quern v. Jordan, 440 U.S. 332, 337 n.18 (1979), quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 256 (1895). See also Liberty Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982) and 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §4478, at 793 (1981).

   Therefore, because the Board had not decided the issue of a tax enhancement, we conclude that the ALJ was free to decide it. However, the ALJ's failure to address this question does not foreclose the Board from considering it at this stage of the proceeding, because the Board acts with "all the powers [the Secretary or the ALJ] would have in making the initial decision. . . ." 5 U.S.C. §557(b), quoted in Goldstein v. Ebasco Constructors, Inc., No. 86-ERA-36, Sec'y D&O (Apr. 7, 1992), rev'd on other grounds sub nom. Ebasco Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 18, 1993).

   Hydro objected to Doyle's claim for a tax enhancement because Doyle allegedly did not provide an "admissible calculation of the enhancement" to the ALJ. Resp. Br. in Opp. At 10 (emphasis in original). Doyle's calculation of the tax enhancement was presented in the form of a signed affidavit containing the statement, under penalty of perjury, that it was "true and correct" to the best of Doyle's knowledge and belief. See Attachment 6 to Comp. Motion for Summary Judgment. Doyle stated that for all of the relevant years, he had personally computed his taxes and submitted a joint Federal income tax return on behalf of himself and his wife. Id. at p. 1. Doyle went on to explain how he calculated the difference between the tax he would have paid had he received the back pay award as a salary paid out in each of the years at issue, and the tax he will pay upon receiving the award as a lump sum.

   Contrary to Hydro, we find that Doyle's affidavit was admissible. See Attachment 5 to Comp. Motion for Summary Judgment (affidavit of Doyle's expert witness, Stephen Jackson, signed in the same fashion). Of course, admissibility is only a first, preliminary issue; the more significant question is whether the evidence is persuasive.

   Recognizing the complexity of income tax calculations, the courts have placed on the plaintiff the burden of providing credible evidence of the calculation of the difference in tax payments between receiving back pay as a lump sum and receiving the pay in the various years at issue. For example, in Hukkanen v. Int'l Union of Operating Eng'rs, 3 F.3d 281, 287 (8th Cir. 1993), the Court of Appeals affirmed the District Court's denial of tax enhancement where the plaintiff "failed to present evidence of the enhancement's amount or a convenient way for the court to calculate the amount." Likewise, in Barbour v. Medlantic Mgt. Corp., 952 F.Supp. 857, 865 (D. D.C.), aff'd, 132 F.3d 1480 (D.C. Cir. 1987), the District Court rejected the plaintiff's claim for an income tax adjustment, even though the plaintiff's expert had offered testimony as to total tax liability arising from a lump

sum award, because the plaintiff did not offer evidence on the difference between that tax burden and "what the plaintiff would bear if he were paid the front pay over time." Thus, a failure to provide evidence on the tax enhancement calculation generally is held against the plaintiff who seeks the enhancement.

   We must consider, therefore, whether Doyle's affidavit presented sufficiently credible evidence of the claimed tax enhancement. Hydro points out that Doyle did not include copies of his original tax returns for the periods in question. Resp. Br. in Opp. at 11. Further, Hydro objects that Doyle based his calculations upon information he received from unnamed sources. Id.

$26,225 to cover the taxation change, and an additional $33,775 to cover the factors of delay and additional harm. We consider both prongs of Doyle's argument.

1. Requested Increase for Change in Tax Treatment of Award of Compensatory Damages for Non-Physical Injuries

   As for the back pay principal, we accept the parties' stipulation that it totaled $218,378. 1999 Stip. at ¶1. See also FRD&O, sum of ¶¶2, 3.

   D. Additions to 1996 Award of Attorney Fees and Costs

1. Additur for Delay in Payment of Attorney Fees

   For the first calculation, we take the number of hours approved by the ALJ in the 1996 Fee Order for each attorney and law clerk and multiply by the difference in the hourly rates approved in that order and the hourly rates approved by the ALJ in the 1999 Fee Order. The resulting additional fees are set out below.

   Attorney        Hourly     Hourly     Hourly     Difference    Resulting
                   Awarded    Rate       Rate       in Hourly     Additional
                   in 1996    Approved   Approved   Rate          Fee
                   Fee        in 1996    in 1999
                   Order      Fee Order  Fee Order

   Stephen 
   Kohn            235.25     $245       $300       $55           $13,103.75

   Annette
   Kronstadt       215.60     $180       $195       $15           $ 3,234.00

   Victoria
   Villanueva       67.65     $100       $155       $55           $ 3,720.75

   Law Clerk        24.75     $ 50       $ 85       $35           $   866.25

The total of the resulting additional fees is $20,924.75.

   For the second calculation, we find that the percentage change in the CPI- U between September, 1996 (157.8) and March 2000 (171.1) is 8.4% (171.1/157.8 = 1.084). Then we multiply the 1996 attorney fee award ($105,181.75) times 8.4%, for a result of $8,835.27.

   We find that the lower of the two additions is that reached by the second calculation, or $8,835.27. We will add this amount to the 1996 attorney fee award, with the result that we award a total of $114,017.02 in attorney fees for the work performed in this case through December 11, 1995 (1996 Fee Award of $105,181.75 plus $8,835.27).

2. Award of the Costs Associated with Henderson Testimony

Henderson's testimony because the testimony "was used to establish evidence which was ultimately rejected by the administrative law judge." 1996 Fee Order at 8. The ALJ noted that Doyle had not responded to Hydro's assertion in that regard, and consequently excluded the claimed $630 from the costs awarded. Id.

   There was a good reason for the lack of any response from Doyle. The ALJ did not afford Doyle the opportunity to reply to Hydro's objections to the petition for attorney fees and costs. See 1995 RD&O at 22 (ordering Doyle to file a petition for fees and costs and allowing Hydro a response, but not allowing Doyle any further pleading if Hydro submitted a response). Had Doyle filed a reply without prior permission, we have no doubt that the ALJ would not have considered it. See, e.g., 1999 Fee Order at 2 (ALJ struck Doyle's unauthorized reply to Hydro's response to a subsequent petition for attorney fees and costs).

   We guaranteed Doyle's silence on this issue by failing to order briefing on the 1996 Fee Order. Consequently it is proper for Doyle to raise the issue now.

   Turning to the merits of including this item of cost, Hydro contends that $630 is excessive payment for less than one hour of testimony by Henderson, especially in light of the fact that the ALJ did not credit some of her testimony. Doyle counters that both the ALJ and this Board credited the part of Henderson's testimony concerning the amount of time per year that an itinerant decontamination technician such as Doyle would be expected to have work. See 1995 RD&O at 11; 1996 Fee Order at 5-6. In light of our reliance upon Henderson's testimony in ordering back pay, we find that Doyle reasonably incurred the costs associated with obtaining the testimony. Accordingly, we allow the $630 cost item.

   Consequently, the total of costs awarded through December 11, 1995, is $16,080.03 ($15,450.03 awarded in 1996 Fee Order plus $630).

IV. INTEREST CALCULATIONS

   A. Compound Prejudgment Interest on Back Pay

   Doyle argues that the prejudgment interest on back pay should be compounded to make him whole for the effects of the discrimination. Comp. Init. Br. at 8. Compound interest is "interest on interest." Amax Land Co. v. Quarterman, 181 F.3d 1356, 1367 (D.C. Cir. 1999).

   We acknowledge that we have not ruled whether the interest on back pay ordered pursuant to the ERA's whistleblower provision (or those of analogous environmental statutes) should be compounded. Rather, we have been silent on the issue.

   Without any guidance from this Board, the ALJ applied his discretion, denied the use of compound interest, and ordered that simple interest accrues on the back pay award. 1998 Part. Ord. at 17-18. In denying compound interest, the ALJ relied primarily on a regulation concerning the collection of federal claims, 29 C.F.R. §20.58(c), which forbids the award of "interest on interest." Of course, there is no debt owed to the government in this case. For that reason, we need not follow the cited regulation.

   Hydro's back pay award is owed to an individual who, if he had received the pay over the years, could have invested in instruments on which he would have earned compound interest. Therefore, we agree with the view of several of the United States Courts of Appeals that in discrimination cases, "back pay . . . should ordinarily include compound interest. . . . Back pay is awarded to make the claimant whole, and such relief 'can only be achieved if [prejudgment] interest is compounded.'" EEOC v. Kentucky State Police Dept., 80 F.3d 1086, 1098 (6th Cir. 1996), quoting Sands v. Runyon, 28 F.3d 1323, 1328 (2d Cir. 1994) and Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 145 (2d Cir. 1993), cert. denied, 510 U.S. 1164 (1994).

   We recognize that a court of appeals ordinarily defers to the district court's exercise of its discretion in awarding or denying compound interest on back pay. EEOC v. Kentucky, 80 F.3d at 1098. In this case, however, we need not defer to the ALJ's exercise of discretion because we have all the powers the ALJ had in making a recommended decision. 5 U.S.C. §557(b).

   The Federal short-term interest rate to be used is the so-called "applicable federal rate" (AFR) for a quarterly period of compounding. See, e.g., Rev. Rul. 2000-23, Table 1.

   Hydro also owes prejudgment interest on the front pay award. The parties stipulated to the present value of five years of front pay, if the lump sum payment were received during the first quarter of 1999. 1999 Stip. at ¶3. Because the payment was not made during the stipulated time period, prejudgment interest on this amount will accrue beginning April 1, 1999. The prejudgment interest on the stipulated front pay award will be calculated at the same rate and in the same manner as the prejudgment interest on the back pay award, i.e., compounded quarterly, beginning with the second quarter of 1999.

   B. The Postjudgment Interest Rate on Back Pay and Front Pay

   Hydro, which formerly was a division of Westinghouse, objects that the ordered relief is inappropriate because since the time Hydro was sold, "Westinghouse never reentered the decontamination business by purchasing another company or creating a new division." Resp. Br. in Opp. at 5. Thus, Hydro contends that a posting requirement is unnecessary and would be ineffective. Id. at 5-6.

   Doyle counters that Hydro has mischaracterized the facts concerning the sale of Hydro and that Westinghouse "regularly employ[]s, th[r]ough other organizations, decontamination technician contractors." Comp. Response to Resp. Br. at 5. Doyle presses us to require Westinghouse, as Hydro's successor, to comply with all of the ordered relief. Comp. Init. Br. at 24.

   Notwithstanding our reference to Westinghouse as Hydro's successor, 1996 D&O at 10-11, we did not engage in any analysis of whether Westinghouse meets the criteria for liability as a successor corporation. Nor are we inclined to prolong this lengthy litigation to perform such an analysis. We believe that Hydro's offer to post a supersedeas bond indicates that the payment of those damages is secure.

   As for requiring Hydro to accomplish the posting of decisions at Westinghouse's nuclear operations, we no longer think this is a practical remedy in this case. We decided a similar issue in Smith v. Esicorp, Inc., ARB Case No. 97-065, ALJ Case No. 93-ERA-16, Fin. D&O, Aug. 27, 1998 (Esicorp). In that decision, the ARB found Esicorp liable under the ERA's whistleblower provision, ordered Esicorp to post the decision at the work site for 90 days, and remanded the case to the ALJ for further proceedings. Id. at 6. After the proceedings before the ALJ on remand, Esicorp represented that it no longer was in business, had no presence at the nuclear plant where the events of the case arose, and had no way of assuring that the posting would be carried out at the plant. Id. The complainant countered that another corporation, Raytheon, should be added as a party for the purpose of accomplishing the posting. We declined to reopen the record to take evidence on whether Raytheon met the tests for successorship liability. Id. Instead, we found that if Esicorp was unable to secure posting of the decisions at the nuclear plant, "notification may be accomplished by publishing the two documents in a local general circulation newspaper." Id.

   The publication option we ordered in Esicorp would not work well in this case because of the nature of Doyle's work as an itinerant decontamination technician who was expected to move on to work at many other nuclear plants. Even though we may view the "locus" of this case as arising at one plant in Michigan, the real scope of the discriminatory effect was nationwide, because Doyle has not been able to work in any nuclear plant. We are reluctant in this case to adapt the Esicorp option by requiring Hydro to publish these decisions in a national general circulation newspaper. Nor can we guarantee that Hydro will be able to achieve posting in Westinghouse's nuclear operations nationwide. For

these reasons, we now decline to reorder the posting of the decisions at Westinghouse facilities. We will, however, affirm the requirement that Hydro post the decisions in this case at its own facilities. See FRD&O at 2 ¶8. Further, like the ALJ, we order that if Hydro has not done so, it shall comply with the affirmative relief previously awarded in the decisions of the Secretary, the ALJ, and this Board. Id.

VI. THE 1999 FEE ORDER

   In the 1999 Fee Order, the ALJ granted most of the requested fees and costs. The ALJ recommended awarding the following sums for work performed after December 11, 1995: $145,657 in attorney fees and $14,273.42 in costs. Doyle has filed a petition for review of a limited portion of the claimed fees and costs that were denied by the ALJ.

   A. Legal Work in the Court of Appeals

   Accordingly, we accept the ALJ's exclusion of 8.53 hours of attorney time for work performed in the Court of Appeals.

   B. Doyle's Costs of Attending the Maybray Deposition

   The ALJ earlier ordered Hydro to pay "all reasonable costs related to the deposition of Ms. Maybray." Dec. 1998 Part. Ord. at 20. Consequently, upon receiving Doyle's petition for costs, the ALJ granted payment of most of the claimed costs associated with taking the deposition of Hydro witness Sally Maybray. However, the ALJ denied Doyle's claim for his own costs (a total of $759.29 for travel, lodging, and food) associated with attending that deposition because there was "no reasonable need for Complainant's attendance" at that deposition. 1999 Fee Order at 13.

   Doyle insists that, as the complainant, he "had the right to attend this deposition, hear the testimony of the witness and assist counsel during the deposition." Comp. Appeal of Attorney Fee and Costs Ruling at 7. Doyle further argues that he acted as the lead investigator in this case and attended the deposition to "provide advice and guidance concerning proper lines of questioning." Id. at 7-8.

   Hydro concedes that Doyle had the right to attend the Maybray deposition, but argues that his presence was not absolutely necessary or even helpful. Hydro Br. in Opp. to Appeal of Att. Fees at 18. Even if Doyle were acting like a lead investigator in this case, Hydro contends, lead investigators do not attend depositions. Id.

   This decision is administratively final.

   Hydro violated the employee protection provision of the ERA when it declined to hire Doyle and placed a notice with Equifax that it had denied Doyle access to a nuclear plant.

   It is ORDERED that Respondent's motions for (1) stay pending judicial review, and (2) leave to file a reply brief in support of motion for stay, are DENIED.

   It is ORDERED that Complainant's motions (1) to strike Respondent's motion for stay, and (2) to expedite final order on merits, are DENIED.

   It is ORDERED that Complainant's motion to supplement the 1996 attorney fee award is GRANTED.

   It is further ORDERED that:

   (1) Respondent shall pay Complainant a back pay principal of $218,378.

   (2) Respondent shall pay Complainant a front pay principal of $154,695.

   (3) Respondent shall pay Complainant prejudgment interest on both front pay and back pay, compounded and posted quarterly, at the rate for underpayment of Federal income taxes, which consists of the Federal short-term rate determined under 26 U.S.C. §6621(b)(3) plus three percentage points, as explained in this decision.

   (4) Respondent shall pay Complainant postjudgment interest on both front pay and back pay, compounded and posted quarterly, at the rate for underpayment of Federal income taxes, which consists of the Federal short-term rate determined under 26 U.S.C. §6621(b)(3) plus three percentage points, as explained in this decision.

   (5) Respondent shall pay Complainant $45,000 for lost benefits.

   (6) Respondent shall pay Complainant $80,000 in compensatory damages;

   (7) Respondent shall send a notice to Equifax Corporation correcting Respondent's earlier notice that it had denied Complainant unescorted access to a nuclear plant. Respondent shall expunge from Complainant's personnel records all derogatory and negative information related to the failure to hire him. Respondent shall also provide neutral employment references and shall not divulge any information pertaining to not hiring Complainant or to

denying him unescorted access to a nuclear facility, or the reasons for it, when inquiry is made about Complainant by another employer, organization, or individual. Respondent shall post this decision at all its facilities in the United States, in a location accessible to its employees, for a period of 45 days.

   (8) Respondent shall pay to Complainant's attorney $259,674.02 in attorney fees and $30,353.45 in costs. We rely upon Complainant's counsel to remit to Complainant the portion of the awarded costs that Complainant incurred directly.