DATE: March 12, 1997

CASE NO. 96-CAA-4

In the Matter of

PATRICK STUDER
   Complainant

    v.

RUSSELL STOVER CANDIES, INC.
   Respondent

Before: RUDOLF L. JANSEN
    Administrative Law Judge

    On February 11, 1997, the Administrative Review Board issued its Final Order Approving Settlement and Dismissing the Complaint in this case. In response to that action, Jerry Lee Burgess, Esq., counsel for the complainant, filed his application for attorney fees. The respondent was given until February 26, 1997 in which to file a response to the fee petition. No response was made.

    The fee application of Mr. Burgess was submitted pursuant to authority conferred by 42 U.S.C. § 7622(b)(2)(B) and 29 C.F.R. § 24.6(b)(3). The regulation provides as follows:

(3) Costs. If such a final order is issued, the Secretary, at the request of the complainant, shall assess against the respondent a sum equal to the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred by the complainant, as determined by the Secretary, for, or in connection with, the bringing of the complaint upon which the final order was issued.

Following the Administrative Review Board's entry of its Final Order Approving Settlement, complainant's counsel is now entitled pursuant to the statute and regulation to an award of attorney fees and costs. The application of Mr. Burgess is very detailed and reports the time expended in fifteen minute increments. These legal services were rendered to Patrick Studer between May 27, 1996 and November 27, 1996. He requests compensation for a total of 107.5 hours at a billing rate of $120.00 per hour. Therefore, Mr.

Burgess requests total compensation of $12,900.00. In addition, he seeks reimbursement for court reporter deposition costs in the amount of ,792.00.

    Attorney fees will be determined using 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). Reasonable attorney fees are based upon rates prevailing in the community for similar services. Blum v. Stenson, 465 U.S. 886, 896 and n. 11 (1984).

    Upon review of the fee application, I am persuaded that the application adequately represents the complainant's costs and expenses, that the number of hours expended by Mr. Burgess for legal services is not excessive, and that the hourly rate is reasonable. Therefore, IT IS HEREBY RECOMMENDED that the Secretary approve an attorney fee award in the amount of $12,900.00 together with deposition costs in the amount of ,792.00. Thus, Russell Stover Candies, Inc. should pay to Jerry Lee Burgess the total amount of $14,692.00 for his time and expenses.

       Rudolf L. Jansen
       Administrative Law Judge

NOTICE: This Recommended Decision will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., NW, Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).