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We must apportion the award of fees sought by petitioners
between the DISC issue, for which respondent was not
substantially justified, and the Algonquin property issue, for
which respondent was substantially justified. Based on the
record, we find that for the period December 1992 until September
1993,29 a total of 312.9 hours was spent by counsel in connection
with the Court proceedings. Of this amount, 158.8 hours were
devoted to the DISC issue, 139.8 hours to the Algonquin property
issue, and 14.3 hours to general case management. Based upon the
$75-per-hour statutory rate, as adjusted by the COLA computed
from 1981, we find that petitioners are entitled to an award for
166.4 hours of fees paid to counsel.30
As for expenses other than fees, petitioners have asked for
total miscellaneous litigation costs in the amount of $6,512.33.
Based upon our evaluation of the total time spent on the DISC
issue, and our need to exclude miscellaneous expenses incurred
with respect to the Algonquin property issue, we find that
29
Pursuant to petitioners' agreement with counsel, December
1992 was the month from which they agreed to pay $40,000 of
unbilled fees incurred on their behalf. According to the
affidavits of counsel, September 1993 was the last month in which
fees were incurred to defend the DISC issue. Thus, this is the
only period for which petitioners may recover fees in this
matter.
30
We reach this figure based upon 158.8 hours devoted to the
DISC issue and 7.6 of general case management apportioned to the
DISC issue ((158.8 / (158.8 + 139.8) x 14.3 = 7.6).
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