OPINION
In this action, former employees of Houston, Texas-based BMC Software, Inc. (“the Workers”) successfully challenged the determination of the U.S. Department of Labor denying their petition for certification of eligibility for trade adjustment assistance (“TAA”) benefits.
See generally Former Employees of BMC Software, Inc.,
Now pending before the Court is Plaintiffs’ Application For Fees and Other Expenses Pursuant to the Equal Access to Justice Act, which the Government opposes. See generally Application For Fees and Other Expenses Pursuant to the Equal Access to Justice Act; Memorandum in Support of Application for Attorneys’ Fees; and Accompanying Exhibits (“Pis.’ Application”); Defendant’s Response to Plaintiffs’ Application for Attorney Fees and Expenses (“Def.’s Response”); Memorandum in Reply to Defendant’s Response to Plaintiffs’ Application for Attorney Fees and Expenses (“Pis.’ Reply”).
For the reasons discussed more fully below, Plaintiffs’ Application For Fees and Other Expenses is granted in part.
I. Background
The Workers’ former employer, BMC, is a “Fortune 1000” company, and one of the largest software vendors in the world. Among other things, BMC designs, develops, produces and sells business systems management software, which is distributed both in “object code” form and on a “shrink-wrap” basis. BMC’s competitors include industry giants and household names such as IBM, Computer Associates, Microsoft, Sun Microsystems, and Hewlett Packard.
See BMC,
The four former employees who filed the TAA petition at issue here were involved in the production and distribution of BMC software products. Those products were mass-replicated at the Houston facility where they worked (as well as at several other BMC facilities), and were often shipped on physical media including CD-ROMs, packaged with user manuals.
See BMC,
The Workers’ employment at BMC was terminated in early August 2003, as part of a round of lay-offs reported in an article published in the Houston Chronicle. The news article explained:
The company will spend $60 million this year to restructure. Jobs in sales, research and development, information technology, and administration will be shed.
The company will offset some of the cuts by adding research and development jobs and positions in information technology to offshore facilities in India and Israel, making the net reduction more like 8 percent when all is done.
BMC,
A copy of the
Houston Chronicle
article was enclosed with the petition for TAA benefits that the Workers filed with the Labor Department in late December 2003. The petition alleged,
inter alia,
that the company was shifting jobs “offshore to
*1293
India and Israel.” Appended to the Workers’ petition were some 25 pages of announcements of job vacancies — primarily at BMC facilities in India and Israel— printed out from the company’s website.
See BMC,
In mid-January 2004, the Labor Department contacted BMC management concerning the Workers’ TAA petition. Asked to “[bjriefly describe the business activities of BMC Software, Inc.,” the company’s Senior Manager for Human Resources responded by parroting — verba tim — a marketing pitch on BMC’s website:
BMC Software, Inc. (NYSE: BMC), is a leading provider of enterprise management software solutions that empower companies to manage their IT infrastructure from a business perspective. Delivering Business Service Management, BMC Software solutions span enterprise systems, applications, databases and service management.
See BMC,
The Labor Department also asked BMC to advise whether the company’s Houston employees “produce an article of any kind or ... were engaged in employment related to the production of an article.” There too the Senior Manager for Human Resources failed to respond directly to the Labor Department’s inquiry, and instead proffered a “soundbite” plucked from the company’s promotional materials (available on the company website):
BMC Software develops software solutions to proactively manage and monitor the most complex IT environments, enabling around-the-clock availability of business-critical applications. BMC also provides services to support its software products, including support and implementation services.
See BMC,
With no further inquiry, the Labor Department denied the Workers’ TAA petition on January 20, 2004. The Labor Department ruled that the Workers “develop[ed] software solutions,” and thus “[did] not produce an article” within the meaning of the TAA statute.
See BMC,
According to an undated internal agency memorandum documenting the “Findings of the Investigation,” the Labor Department concluded — solely on the strength of the information supplied by BMC’s Senior Manager for Human Resources — that the Workers were “engaged in the development of’ software, and thus “provide[d] development services.” To support the agency’s conclusion that “[BMC] [w]orkers do not produce an article,” the agency memorandum attributed a statement to that effect to BMC’s Senior Manager for
*1294
Human Resources. In fact, however, the BMC official
had not
stated that the company does not produce a product. Indeed, the BMC official’s statement expressly referred both to the company’s “products” and to its provision of “services,” implicitly distinguishing between the two. The memorandum also stated that BMC’s “Standard Industrial Classification” (“SIC”) code is 7371 (the code for “Computer Programming Services”). As
BMC
noted, however, the source of that information was not specified, and the relevance and accuracy of the information are dubious at best.
See BMC,
The Labor Department sent the Workers copies of its Negative Determination under cover of a standard form letter, which advised the Workers of their right to seek administrative reconsideration of the denial. Incredibly, that letter said nothing about the Workers’ right to challenge the Negative Determination in this court.
See BMC,
The Workers timely sought reconsideration of the Labor Department’s denial of their TAA petition. In their request for reconsideration, the Workers disputed the agency’s determination that BMC did not produce an article. The Workers referred the agency to three specific URL locations on BMC’s website, including “an online store for purchasing BMC products and product lines.” The Workers also quoted the BMC website:
Now you’re ready to shop online with BMC Software. Browse through the store by category or by the A-Z list below. If you know the name of your product, use the Product Name Search field to locate your product quickly.
(Emphases added.) The Workers explained that “[t]he use of the term ‘solutions’ is misleading. Usage of the term ‘solutions’ within the BMC Software, Inc. web page and other places is synonymous with ‘product lines.’ ” And the Workers again stated that BMC was shifting work “to overseas companies as well as newly created BMC locations overseas.” The Workers added that software was also being “imported to make up the products and product lines that BMC Software, Inc. produces.”
See BMC,
In response to the Workers’ request for reconsideration, a Labor Department staffer called BMC’s Senior Manager for Human Resources (the same company official who had responded to the agency’s initial request for information). The BMC official reportedly stated unequivocally that “no products are manufactured” by the company, and that the company’s software is not “recorded on media disks,” nor is it “mass-produced” or “sold off-the-shelf.” She reportedly further stated that
“most
[of BMC’s] software is customized for individual users,” and denied that jobs had been transferred abroad.
See BMC,
The Labor Department staffer failed to ask any follow-up questions concerning, for example, the nature and volume of BMC software that is
not
“customized for individual
users”-
— i.e., software that is mass-produced. Similarly, the staffer failed to explore with the BMC official the allegations of increased imports raised in the Workers’ request for reconsideration. In
*1295
deed, the agency staffer did nothing to confront the BMC official with
any
of the information provided by the Workers. Nor did the staffer contact any of the Workers (to verify the information provided by BMC), or take any other measures to try to reconcile the apparent discrepancies and inconsistencies in the information before the agency.
See BMC,
Based solely on its phone conversation with BMC’s Senior Manager for Human Resources, the Labor Department denied the Workers’ request for reconsideration. The Labor Department ruled once again that the Workers were “not considered to have been engaged in production.”
3
See BMC,
The Labor Department’s notice denying the Workers’ request for reconsideration summarized the agency’s rationale, emphasizing the concept of “tangibility”:
Software design and developing are not considered production of an article within the meaning of [the TAA statute]. Petitioning workers do not produce an “article” within the meaning of [that statute]. Formatted electronic software and codes are not tangible commodities, that is, marketable products, and they are not listed on the Harmonized Tariff Schedule of the United States (HTS), ... which describes articles imported to the United States.
To be listed in the HTS, an article would be subject to a duty on the tariff schedule and have a value that makes it marketable, fungible and interchangeable for commercial purposes. Although a wide variety of tangible products are described as articles and characterized as dutiable in the HTS, informational products that could historically be sent in letter form and that can currently be electronically transmitted ... are not listed in the HTS. Such products are not the type of products that customs officials inspect and that the TAA program was generally designed to address.
BMC,
This action ensued, commenced by the Workers’ letter to the court dated June 1, *1296 2004 (deemed the Complaint in this matter, filed as of June 3, 2004). The attachments to the Workers’ letter included copies of photos of BMC software on physical media (such as CD-ROMs). See Complaint. 5
In lieu of filing an Answer, the Government requested a 60-day voluntary remand to allow the Labor Department to conduct a further investigation and to make a redetermination as to the Workers’ eligibility for TAA benefits. As grounds for the voluntary remand, the Government cited the Labor Department’s “need[] to resolve an apparent conflict between information provided by company officials and information provided by the petitioners”— specifically, whether BMC produces “articles.” And, as counsel for the Government candidly conceded, the “conflict” between information provided by the Workers and that provided by BMC was “apparent” during the course of the Labor Department’s investigation — long before the Workers filed their Complaint with the Court.
See
BMC,
Counsel were appointed to represent the Workers, and played an integral role in structuring the Court’s Remand Order. The Workers noted that the Labor Department had limited the scope of both its initial investigation and its investigation following the Workers’ request for reconsideration to only a single TAA criterion— whether the Workers had been engaged in the production of an “article” within the meaning of the TAA statute. The Workers emphasized that they were concerned about the impact of delayed certification by the Labor Department on the availability of full TAA benefits, and that they wanted to guard against the need for multiple remands. The Workers therefore conditioned their consent to the Government’s motion for a voluntary remand on the agency’s conduct of a comprehensive remand investigation — an investigation in which the agency would reach determinations on all criteria for TAA certification. The Workers conferred with the Government, and drafted a detailed order to that effect for the consideration of the Court.
See generally BMC,
Three days before the Labor Department’s remand results were due to be filed, the Government requested a 60-day extension of the deadline. When the Government contacted the Workers’ counsel to request their consent to the extension of time, the Workers reiterated their previously-expressed concerns about the effect of delayed certification on the availability of TAA benefits, and conditioned their consent upon an assurance from the Government that — should the former employees of BMC be certified — the date of their certification would have no effect on the benefits available to them. Accordingly, the Government specifically warranted that, “in the event [the petitioning workers] are certified in this case, [they] would
*1297
be entitled to receive full [Trade Readjustment Allowance, or ‘TRA’] benefits regardless of the date they are certified.”
See
Defendant’s Consent Motion for an Extension of Time to File Remand Results, at 3-4. In reliance on the Government’s assurances, the Workers consented to the requested extension of time, and the Court granted it.
See BMC,
On remand, the Labor Department reiterated — and elaborated on — its test for “production” of an “article” in the context of the software industry, further emphasizing the characteristic of “tangibility”:
The Department has consistently maintained that the design and development of software is a service. In order to be treated as an article, for TAA purposes, a software product must be tangible, fungible, and widely marketed. The Department considers software that is mass-replicated on physical media (such as CDs, tapes, or diskettes) and widely marketed and commercially available {e.g., packaged “off-the-shelf’ programs) and dutiable under the Harmonized Tariff Schedule of the United States to be an article. The workers designing and developing such products would be considered to be engaged in services supporting the production of an article.
69 Fed.Reg. at 76,783 (emphasis added). Applying that analysis in the course of its remand investigation here, the Labor Department “raised additional questions and obtained detailed supplemental responses from [BMC].” Id.
The information that BMC provided to the Labor Department in the course of the remand investigation conflicted with the information that the company had supplied earlier, and bore out the Workers’ claims, casting an entirely new light on the merits of the Workers’ TAA petition. Reiterating its position that “to be treated as an article ... for TAA purposes, a software product must be tangible,” 6 the Labor Department explained:
[T]he new information showed that, in addition to software design and development, the firm does, in fact, mass-replicate software at the subject facility. Further, software produced by the firm at the subject facility includes not only custom applications, but [also] packaged “off-the-shelf’ applications which are mass-replicated on various media (CDs and tapes) at the subject facility.
69 Fed.Reg. at 76,783 (emphases added). Noting that BMC employees “are not separately identifiable by product line,” the Labor Department concluded that the Workers here were, indeed, “engage[d] in activity related to the production of an article.” Id.
On remand, the Labor Department also re-evaluated the Workers’ allegations that BMC had shifted production overseas, to India and Israel. 69 Fed.Reg. at 76,783. The agency concluded that “there was no shift in production, for TAA purposes.” Id. However, the agency did find that “employment and production of packaged, *1298 mass-replicated software at the subject facility had declined significantly from 2002 to 2003,” that “company imports of mass-replicated software increased during the same period,” and that “the increase in company imports represented a significant percentage of the decline in production at the subject facility during the relevant period.” Id. The Labor Department therefore determined on remand “that increases of imports of articles like or directly competitive with those produced at BMC Software, Inc., Houston, Texas, contributed importantly to the total or partial separation of a significant number of workers and to the decline in sales or production at that firm.” Id. at 76,783-84.
Accordingly, nearly one full year after the TAA petition was filed (and more than 16 months after the Workers here lost their jobs), the Labor Department certified as eligible to apply for benefits all Houston-based BMC employees “who became totally or partially separated from employment on or after December 23, 2002, through two years from the issuance of [the] revised determination.”
In their comments on the Labor Department’s remand determination, the Workers advised that they were “generally satisfied” with the outcome of the remand investigation. However, the Workers expressed concern that the remand determination did not reflect the unconditional assurances that the Government had previously given them. The Workers therefore requested that the Court “expressly order! ], in accordance with Defendant’s representation, that Plaintiffs, having been certified, are entitled to receive full TRA benefits, regardless of the date of their certification.”
See BMC,
The Government responded flatly that the Court lacked jurisdiction to enforce the representations that the Government’s counsel had made to the Court and to the Workers.
See BMC,
The Government’s insistence that the Court lacked any authority to hold counsel to the Government (and the Government itself) to the representations that the Government had previously made precipitated several rounds of post-certification submissions by the parties — all of which were filed in direct response to orders of, or letters from, the Court. 7
In light of the Workers’ objections to the language of the Labor Department’s remand determination and the Government’s intransigence, this action was maintained on the Court’s docket following certifica *1299 tion, to ensure that — in accordance with the assurances that the Government had previously given the Court and the Workers, and on which they had relied — the Workers’ receipt of the various types of TAA benefits to which they were entitled was indeed unaffected by the Labor Department’s protracted delays in certification.
Following some initial setbacks, and armed with clarification elicited in the course of the post-certification briefing, the Workers advised that they no longer foresaw any insurmountable obstacles to their receipt of the full measure of TAA benefits. The Workers further advised that if — contrary to their expectations— they did in fact continue to experience problems with their receipt of benefits, they would promptly notify the Court.
See generally
Letter to Court from Plaintiffs (May 19, 2005). “The Workers’ silence in the intervening months [between their counsel’s May 2005 letter and the issuance of
BMC
] suggests that any need for further proceedings to ‘hold the Government to its words’ ha[d] been obviated.”
BMC,
The Labor Department has since revised its TAA certification criteria to recognize that — at least for purposes of cases such as this — “there are tangible and
intangible
articles,” and that “the production of intangible articles can be distinguished from the provision of services.” Accordingly, “[sjoftware and similar
intangible
goods that would have been considered articles for the purposes of the Trade Act if embodied in a physical medium will now be considered to be articles regardless of their method of transfer.”
See BMC,
II. Analysis
Under the Equal Access to Justice Act (“EAJA”):
a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (2000).
8
Thus, although the court retains a measure of discretion as to the size of the award, under the EAJA “a trial court
must
award attorney’s fees where: (i) the claimant is a ‘prevailing party’; (ii) the government’s position was not substantially justified; (iii) no ‘special circumstances make an award unjust’; and (iv) the fee application is timely submitted and supported by an itemized statement.”
Libas, Ltd. v. United States,
*1300 Notably, the Government here does not dispute that the Workers were “prevailing parties.” 9 Nor does the Government contend either that there are “special circumstances” that would render an award unjust, 10 or that the Workers’ application for fees and expenses was untimely. Instead, the Government contends that an award is not warranted because the United States’ position was “substantially justified,” both at the agency level and in litigation. See generally Def.’s Response at 1-2, 8-9, 10-23. The Government further argues that — even if the Workers’ application for fees and expenses is granted — the sum claimed is excessive. See generally Def.’s Response at 1-2, 9, 23-40.
As discussed in greater detail below, the Government’s position at the administrative level, at a minimum, was not “substantially justified.” Moreover, contrary to the Government’s assertions, the fees claimed are generally well within the bounds of reason, "with a few relatively minor exceptions.
A. Whether the Government’s Position Was “Substantially Justified”
The Government bears the burden of proving that its position was “substantially justified.”
See, e.g., Libas,
In determining whether substantial justification exists, a court is to weigh not only “the position taken by the United States in the civil action, [but also] the action or failure to act by the agency upon which the civil action is based,” taking into consideration the “totality of the circumstances.” 28 U.S.C. § 2412(d)(2)(D);
Kelly v. Nicholson,
Reaching a determination on substantial justification requires that a court reexamine the legal and factual circumstances of a case through the EAJA “prism” — “a dif
*1301
ferent perspective than that used at any other stage of the proceeding.”
Luciano Pisoni,
Moreover, in evaluating the existence of substantial justification, a trial court is entitled to take into consideration “insights not conveyed by the record, into such matters as whether particular evidence was worthy of being relied upon, or whether critical facts could easily have been verified by the Government.”
Pierce v. Underwood,
1. The Role of the Labor Department in TAA Cases
The “substantial justification” analysis in this action cannot be conducted in a vacuum. The justification for the Government’s position instead must be analyzed in the context of the trade adjustment assistance (“TAA”) statute, and the special duties and obligations that the Labor Department owes to workers in its administration of that statute.
See generally BMC,
The TAA laws are remedial legislation,
12
designed to assist workers who have lost
*1302
their jobs as a result of increased import competition from — or shifts in production to — other countries, by helping those workers “learn the new skills necessary to find productive employment in a changing American economy.”
Former Employees of Chevron Prods. Co. v. U.S. Sec’y of Labor,
Today’s TAA program entitles eligible workers to receive benefits which may include employment services (such as career counseling, resume-writing and interview skills workshops, and job referral programs), vocational training, job search and relocation allowances, income support payments (known as “Trade Readjustment Allowance” or “TRA” payments), and a Health Insurance Coverage Tax Credit. See generally 19 U.S.C. § 2272 et seq. (2000 & Supp. II 2002).
TAA historically has been viewed as the
quid pro quo
for U.S. national policies of free trade.
See generally BMC,
Absent TAA programs that are adequately funded and conscientiously administered, 13 “the costs of a federal policy [of free trade] that confer[s] benefits on the nation as a whole would be imposed on a minority of American workers” who lose their jobs due to increased imports and shifts of production abroad. Id. Indeed, in introducing TAA in 1962, President Kennedy justified the program in moral terms:
Those injured by [trade] competition should not be required to bear the full brunt of the impact. Rather, the burden of economic adjustment should be borne in part by the federal government ... [T]here is an obligation to render assistance to those who suffer as a result of national trade policy.
BMC,
The TAA laws also have been compared to veterans’ benefits statutes:
The purpose of the [TAA statute] is to distribute benefits to American workers whose jobs have been shipped overseas, while the purpose of the [veterans’ benefit laws] ... is to distribute benefits to veterans who have been injured during service. Both are remedial acts designed to provide much needed aid.
*1303
Former Employees of Sonoco Prods. Co. v. Chao,
As
BMC
observed, “much as Congress has charged the U.S. Department of Veterans Affairs ... (VA’) with caring for those who have risked life and limb for our freedom, so too Congress has entrusted to the Labor Department the responsibility for providing training and other re-employment assistance to those who have paid for our place in the global economy with their jobs.”
BMC,
And just as veterans’ benefits programs are designed to be extraordinarily “veter
*1304
an-friendly” and “pro-claimant,”
17
so too Congress designed TAA as a
remedial
program, recognizing that petitioning workers would be (by definition) traumatized by the loss of their livelihood; that some might not be highly-educated; that virtually all would be
pro se;
that none would have any mastery of the complex statutory and regulatory scheme; and that the agency’s process would be largely
ex parte.
Congress certainly did not intend the TAA petition process to be adversarial. Nor did Congress intend to cast the Labor Department as a “defender of the fund,”
18
sitting passively in judgment, ruling “thumbs up” or “thumbs down” on whatever evidence the
pro se
petitioning workers might manage to present.
Cf. Former Employees of IBM Corp., Global Services Division v. U.S. Sec’y of Labor,
Quite to the contrary, the Labor Department is charged with an
affirmative
obligation to
proactively
and thoroughly investigate all TAA claims filed with the agency — and, in the words of the agency’s own regulations, to “marshal all relevant facts” before making its determinations.
See
29 C.F.R. § 90.12. Moreover, both “[b]ecause of the
ex parte
nature of the certification process, and the remedial purpose of the [TAA] program,” the agency is obligated to “conduct [its] investigation with
the utmost regard
for the interest of the petitioning workers.”
Internat’l Molders and Allied Workers’ Union v. Marshall,
Thus, while the Labor Department is vested with considerable discretion in the conduct of its investigation of trade adjustment assistance claims, “there exists a threshold requirement of reasonable inquiry.”
Hawkins Oil & Gas v. U.S. Sec’y of Labor,
To be sure, the statute does not entitle every petitioning worker to be certified as eligible to apply for TAA benefits.
20
But every worker
is
entitled to a
thorough
agency investigation of his or her claim— an investigation in which the agency “marshals] all relevant facts,” and an investigation which the agency conducts with “the utmost regard” for the petitioning workers’ interests.
See, e.g., Former Employees of Ameriphone, Inc. v. United States,
2. The Government’s Position at the Administrative Level
The Government argues that the Labor Department’s position at the administrative level was substantially justified because the agency “gathered information from petitioners as well as statements by company officials.” Def.’s Response at 15. According to the Government, the agency “examined the evidence before it and chose between two conflicting interpretations.” Def.’s Response at 15. The Government therefore concludes that the Labor Department properly “examined the evidence before it, applied what it considered to be the appropriate legal standard, and provided an analysis based on the facts and the law as it understood them.” Def.’s Response at 15; see also id. at 8 (same). But see Pis.’ Application at 19-21 (highlighting flaws in agency’s investigation, and noting that legal action would have been avoided “if [the Workers’] claims were adequately investigated at the outset”); Pis.’ Reply at 1-7 (responding to Government’s arguments, and rebutting Government’s attempt to distinguish “substantial justification” cases cited in Workers’ Application).
The Government’s portrayal of the Labor Department’s actions in this case *1306 bears little semblance to reality. The Government’s assertion that the Labor Department “gathered information from petitioners” shades the truth, to say the least. See Def.’s Response at 15 (emphasis added). Although the agency received information from the Workers (both with the initial submission of their TAA petition, and with their request for reconsideration), the agency failed to contact the Workers for any purpose — -except to notify them, by letter, of the denial of their TAA petition and their request for reconsideration — until after this matter had been remanded to the agency by the Court.
Similarly baseless is the Government’s claim that “[i]n its initial investigation, Labor received information from BMC unequivocally indicating that the workers ... provided a service ... and did not produce an article.” See Def.’s Response at 15 (emphasis added); see also id. at 8 (noting that agency’s denial of Worker’s TAA application was “based ... upon the representations of ... BMC officials”). To the contrary, there was nothing whatsoever about BMC’s response to the agency’s initial inquiry that could be characterized as “unequivocal.”
As BMC explained, the information that BMC supplied in the course of the Labor Department’s initial investigation could most charitably be described as vague or noncommital:
The Labor Department ... asked BMC to advise whether the company’s Houston employees “produce an article of any kind or ... were engaged in employment related to the production of an article.” ... [BMC’s] Senior Manager for Human Resources failed to respond directly to the Labor Department’s inquiry, and instead proffered a “soundbite” plucked from the company’s promotional materials:
BMC Software develops software solutions to proactively manage and monitor the most complex IT environments, enabling round-the-clock availability of business-critical applications. BMC provides services to support its software products, including support and implementation services.
BMC,
*1307
As
BMC
emphasized, the company’s response to the Labor Department’s question “cannot fairly be read as a statement that BMC does not produce a product.”
BMC,
In sum, as
BMC
noted, “[t]he entirety of the Labor Department’s initial investigation here consisted of a mere five questions (all of which were either very basic, or conclusory, or both), posed to BMC’s Senior Manager for Human Resources.... The record reveals that the agency made no effort whatsoever to follow up with company officials (via telephone or otherwise) — even though the company’s responses to the Labor Department’s few substantive questions were
non-responsive, ambiguous, and/or inconsistent with other information on the record,
and thus begged for clarification.”
BMC,
As detailed above, then, there is simply no truth to the Government’s assertion that the Labor Department’s initial determination that the Workers were not engaged in the “production” of an “article” was based on an “unequivocal” statement by their former employer. That argument thus cannot support a finding that the agency’s position at the administrative level was substantially justified. Also unavailing is the Government’s assertion that the agency properly “examined the evidence before it and chose between two conflicting interpretations” in denying the Workers’ TAA petition. See Def.’s Response at 15.
The Government emphasizes that, in their request for reconsideration, the Workers “provided additional information which called into question the representations by BMC officials,” and that the Labor Department responded by requesting additional information from the company. See Def.’s Response at 15. The Government argues that, “[e]ven assuming the [Labor Department] could have resolved the discrepancy [between the information supplied by the Workers and that supplied by BMC] by investigating further within the statutory timeframe, Labor decided to make a credibility determination on the record evidence available. This was well within Labor’s discretion.” Def.’s Response at 19; see also id. at 8, 19 (arguing that “Labor has the discretion to determine the scope of its investigation”). 23 *1308 The Government asserts flatly that “[t]here is no support for the proposition *1309 that a decision not to issue follow-up questionnaires to resolve a discrepancy may constitute a ‘failure to investigate’ that renders an agency’s position substantially unjustified.” See Def.’s Response at 16.
Contrary to the Government’s claim, however, the Labor Department was not entitled to “make a credibility determination” under the circumstances of the case at bar, and further inquiry was indeed required. To be sure, the agency may base a TAA determination on statements of company
officials
— “if the Secretary
reasonably
concludes that those statements are creditworthy” and if the company’s statements
“are not contradicted by other evidence.” Former Employees of Marathon Ashland Pipe Line, LLC v. Chao,
As evidence of substantial justification, the Government also points to the voluntary remand that it sought to permit the Labor Department to reconsider its denial of the Workers’ TAA petition. See Def.’s Response at 1, 8-9, 16, 19-20. The Government underscores that it requested the voluntary remand “within 24 days” after the filing of the Complaint (.See Def.’s Response at 8-9, 20), and argues that the Labor Department “cannot be held to lack substantial justification for failing to evaluate information that was unavailable to the agency during the administrative proceedings.” See Def.’s Response at 16.
But the Government’s defense rests on a false premise. There is no truth to the Government’s apparent claim that the Workers’ photos of packaged software — as well as other evidence that BMC mass-replicated its software on physical media including CDs and tapes — were “unavailable to the agency” prior to the commencement of this action.
*1310
The fact is that — throughout both the initial investigation and the reconsideration — the Labor Department investigators never once contacted the Workers to request or confirm information, much less to disclose to them the criteria that the agency was then applying to determine whether, as workers in the software industry, they had been engaged in the “production” of an “article.”
See generally BMC,
The Workers can hardly be faulted for failing to come forward with evidence to prove that they satisfied criteria of which they had no knowledge.
25
“There can be no doubt that — if the Labor Department [investigators] had bothered to ask the Workers whether BMC’s software is mass-replicated on physical media and is .widely marketed and commercially available
{e.g.,
packaged for ‘off-the-shelf sale) — the Workers would have provided to the agency the same photos of shrink-wrap software that they appended to their Complaint filed with the court.”
See BMC,
Moreover, from the moment that the agency began its initial investigation, the Labor Department had readily available to it other proof that BMC mass-replicated its software on physical media, including CDs and tapes. As BMC observed:
[T]he Labor Department’s standard form Petition for Trade Adjustment Assistance asks that petitioning workers supply the web address for their former employer. The Workers here complied with that request....
Agency investigators apparently never consulted the company’s website, however. Had they done so, they would have discovered that the website states that BMC’s “SIC” code — “Standard Industrial Classification” code — is 7372, which is the classification code for “Prepackaged Software.” ... The agency investigators also would have been able to access BMC’s Form 10-K for the Fiscal Year Ended March 31, 2003 ... — the most recent report as of the date of the Workers’ termination. That report describes the work of BMC’s Houston facility as “manufacturing,” and explains that the company sells its software both “in object code form” and “on a shrink wrap basis.”
BMC,
In short, there is no merit whatsoever to the Government’s claim that the Labor Department lacked access to evidence that BMC mass-replicated software on physical media until the Workers commenced this action. Had the Labor Department conducted a proper investigation, it would have had conclusive proof of that fact in its possession early in its proceeding. And, as the Workers correctly note, an agency position that is predicated on a fundamentally inadequate investigation is not supported by substantial justification.
See
Pls.’ Application at 20
(citing Hess Mech. Corp. v. NLRB,
What is perhaps most telling, however, is the failure of the Government’s Response even to acknowledge the Labor Department’s obligation in TAA cases to “marshal all relevant facts” and to conduct its investigation with “the utmost regard” for the interests of the petitioning workers. See generally section II.A.1, supra.
As outlined above, the entirety of the Labor Department’s initial investigation consisted of five generic questions posed to BMC. Even worse, the questions — in effect — impermissibly delegated to the company the agency’s determination as to whether the Workers were engaged in the production of an “article.” Moreover, the agency made no effort to follow up on the company’s non-responsive, “corporate dou *1312 ble-talk” answers. And the agency’s determination denying the Workers’ TAA petition impermissibly distorted what little information the company did provide.
Similarly, the entirety of the Labor Department’s investigation following the Workers’ request for reconsideration consisted of a single, brief phone conversation with the same BMC official who had responded to the agency’s original five-item questionnaire. The agency then denied the Workers’ request for reconsideration based solely on that phone conversation. The agency did not require the BMC official to make a formal statement by reducing her assertions to written form, much less require their submission under oath. And at no time during either the initial investigation or the investigation following the Workers’ request for reconsideration did the Labor Department contact the Workers to confirm the accuracy of the information provided by BMC (to verify, for example, whether the company produces software on physical media), or to solicit additional evidence to support their petition.
See generally Pierce v. Underwood,
The Labor Department further failed to consult BMC’s website, either in the course of its initial investigation or its investigation following the Workers’ request for reconsideration — even though the agency’s petition form specifically requests the address of the website of the petitioning workers’ former employer, and even though the Workers’ request for reconsideration expressly directed the agency to three URL locations on BMC’s website. Had the agency consulted BMC’s website, it would have learned that the company does indeed sell software on physical media, and it would have noted that BMC’s SIC code was listed as 7372 — '“Prepackaged Software.” In other words, as
BMC
observed, “a few quick clicks of a computer mouse by a Labor Department investigator would have sufficed to expose the falsity of the information provided to the agency” by the BMC official on which the agency relied.
See generally BMC,
The Labor Department also took no steps to conduct any independent investigation to confirm the accuracy of the information provided by BMC. For example, the agency did not review the company’s most recent Form 10-K, which would have disclosed that BMC in fact does sell software on physical media, and that its SIC code was listed as 7372 (i.e., “Prepackaged Software”).
See generally Pierce v. Underwood,
While “[t]he EAJA does not tell an agency how to handle a case,” the agency “cannot decline to conduct further inquiry and then plead [its] own failure to investigate as reason to conclude that [its] position was substantially justified.”
Hess Mech. Corp.,
*1313 The Labor Department’s first two investigations in this case — the initial investigation, and the investigation conducted in response to the request for reconsideration — -would not provide “substantial justification” for the Government’s position, even if the agency owed no special obligation to petitioning workers. The unique nature of the Labor Department’s responsibilities in its administration of the TAA program simply strengthens the Workers’ hand.
A recitation of the facts of this case alone suffices to refute any suggestion that the agency here properly discharged its duties to “marshal all relevant facts” and to conduct its investigation with “the utmost regard” for the interests of the Workers, and — further—definitively establishes that there was no “substantial justification” for the Government’s position at the administrative level.
See Gavette v. Office of Personnel Management,
3. The Government’s Position in Litigation
The Government also argues that its position in litigation was substantially justified.
See generally
Defi’s Response at 19-23. According to the Government, in evaluating “substantial justification,” “the relevant question is whether the Government notified the Court [of the need for a voluntary remand] within a reasonable amount of time after reviewing the record and determining that the agencies needed
*1314
to address the discrepancies in the record.”
See
Def.’s Response at 20. However, the Government cannot cure a lack of substantial justification at the administrative level by prompt action in litigation.
Cf. BMC,
On the facts of this case, even assuming that the Government’s position in litigation was substantially justified, the overall position of the United States was not.
See generally Chiu v. United States,
“As exemplified in the EAJA and Fed. R.Civ.P. 11, ... the processes of litigation presuppose some reasonable investigation ...”
Hess Mech. Corp.,
Accordingly, there is no need to parse the Government’s conduct of this litigation before concluding that, for purposes of an EAJA award, the Government’s position was not substantially justified.
See, e.g., Kelly v. Nicholson,
*1315 Because the Government’s position in this matter was not substantially justified, the Workers are entitled to an award of attorneys’ fees and expenses under the EAJA. What remains to be determined is the amount of that award.
B. Calculation of the EAJA Award
To determine the size of a reasonable award of attorneys’ fees under EAJA, the court calculates a “lodestar” figure, arrived at by multiplying “the number of hours reasonably expended” by “a reasonable hourly rate.”
Hensley v. Eckerhart,
The EAJA requires that an applicant submit “an itemized statement ... stating the actual time expended and the rate at which fees and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B);
see generally Naporano Iron and Metal Co. v. United States,
While the fee applicant “bears the burden of documenting the appropriate hours expended, ‘the party opposing the fee application has a burden of rebuttal that requires submission of evidence ... challenging the accuracy and reasonableness of the hours charged.’ ”
Sneede v. Coye,
“In a statutory fee case, the party opposing the fee award ... has the burden to challenge, by affidavit or brief
with sufficient specificity to give fee applicants notice,
the reasonableness of the requested fee.”
Rode v. Dellarciprete,
Thus, for example, “the adverse party’s submissions cannot merely allege in gener
*1316
al terms that the time spent was excessive. In order to be sufficient, the briefs or answers challenging the fee request must be clear in two respects. First, they must generally identify the type of work being challenged, and second, they must specifically state the adverse party’s grounds for contending that the hours claimed in that area are unreasonable. The briefs must be specific and clear enough that the fee applicants have a fair chance to respond and defend their request.”
Bell v. United Pnnceton Properties,
“Where an opposing party lodges a sufficiently specific objection to an aspect of a fee award, the burden is on the party requesting the fees to justify the size of its award.”
Interfaith Community Organization,
1. The Number of Hours Reasonably Expended by Counsel
“[T]he number of hours reasonably expended on the litigation” is one of two key components in calculating a reasonable fee under the EAJA.
Hensley v. Eckerhart,
Moreover, a fee applicant “should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.”
Hensley v. Eckerhart,
“In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.”
*1317
Hensley v. Eckerhart,
Of course, the mere fact that a fee applicant seeks compensation for all time spent on a case does not mean,
ipso facto,
that the party failed to exercise the “billing judgment” required by
Hensley. See City of Riverside v. Rivera, 477
U.S. 561, 569 n. 4,
Thus, “[t]he touchstone in determining whether hours have been properly claimed is reasonableness.”
Davis v. City and County of San Francisco,
As outlined in section II.B above, while the fee applicant bears the burden of establishing the reasonableness of the fees claimed, the Government must raise any objections with appropriate specificity, both for the benefit of the fee applicant, and for the benefit of the court.
See, e.g., United States v. Eleven Vehicles,
As a general rule, objecting parties must “point to all the [billing] entries that they believe to be unreasonable.”
Bell v. United Princeton Properties,
Once the Government raises a sufficiently specific objection to a proposed fee award, the burden is on the fee applicant to defend the size of the proposed award.
See, e.g., Interfaith Community Organization,
Accordingly, hours may be reduced or disallowed where, for example, “the documentation ... is inadequate,” or where the hours expended were “excessive, redundant, or otherwise unnecessary,” such as where a case was “overstaffed.”
See Hensley v. Eckerhart,
As the Supreme Court has emphasized, the trial court generally is “in the best position to determine whether the time expended by [fee applicant’s] counsel was reasonable.”
See City of Riverside v. Rivera,
In support of their Application, the Workers here have submitted a computer-generated Itemized Billing Statement of the time expended in this action, accompanied by an affidavit of counsel. See Pis.’ Exhs. 5-6, 8. The affiant attests, inter alia, that the rates reflected in the Itemized Billing Statement are the standard hourly rates that counsel’s law firm charges for each of the individual “timekeepers” listed. See Pls.’ Application at Exh. 8 ¶ 2. The Itemized Billing Statement lists entries in chronological order, and — for each entry— provides the date the work was done, the name of the timekeeper who did the work, the number of hours billed (in quarter hours), the total fee for the time billed in the entry, and a summary description of the tasks as provided by the timekeeper. See Pls.’ Application at Exhs. 5-6. 33 The Application also specifies the total fees calculated both at counsel’s standard hourly *1319 rates, and at the EAJA rate of $125 per hour. See Pls.’ Application at 26-27; Id. at Exhs. 5-6, 8.
The Government mounts a scattershot attack, taking issue with virtually every aspect of the Workers’ Application. But much of the Government’s Response is basic “boilerplate,” devoid of case-specific analysis. 34 Further, the Government fails to clearly distinguish between its various theories for disallowance of the Workers’ fee claims. For example, caselaw on the disallowance of claims for insufficient documentation is intertwined with caselaw on the disallowance of claims for tasks that are — by their nature — non-compensable, as well as caselaw on the disallowance of duplicative or otherwise excessive claims. See generally Def.’s Response at 24-32.
In addition, much of the Government’s Response consists of one-line summaries of, or quotes from, decisions in fee litigation where claims were disallowed. But that survey of caselaw is of limited utility at best, because the Government gives little indication as to the relevance or application of that caselaw to the fee claims at issue here, or the Government’s objections thereto. Compare Def.’s Response at 23-27, 29-32 (generally surveying caselaw) and Def.’s Response at 27-29, 32-33 (addressing fee claims in this case). Most critically — to the extent that it does address the case at bar — the Government largely contents itself with broadbrush statements. 35
According to the Government, the award sought must be reduced to eliminate hours billed early in the case, as well as hours billed after the Workers filed their comments on the Labor Department’s certification determination (other than time spent preparing the fee application itself). See Def.’s Response at 29. The Government also claims that the billing documentation supplied by the Workers’ counsel is insufficient, and that any award therefore must be further pruned. See Def.’s Response at 32. In addition, the Government contends that the case was overstaffed, that the research conducted by the Workers’ counsel was excessive, that some tasks billed “bear no direct relation to the litigation of [the Workers’] claims,” and that other tasks were largely administrative or clerical in nature and are therefore non-compensable. See Def.’s Response at 32-33.
However, the Government specifically targets only a handful of billing entries, labeling them as “examples” — apparently leaving it to the Court to scour the billing statement line-by-line to identify other similar entries to flesh out the Government’s challenge.
See generally
Def.’s Response at 32-33 (quoting various billing entries as “examples” of objectionable charges);
but see Interfaith Community Organization,
In any event, as discussed in greater detail below, the Government’s various objections to the Workers’ Application are generally wide of the mark.
a. Fees for Services Rendered Prior to Filing of Complaint/Notice of Appearance
The Government asserts, among other things, that fees for services rendered “before the complaint was filed and before [counsel’s] notice of appearance was filed” should be disallowed. See Def.’s Response at 33; see also id. at 29 (arguing that award should be limited to fees incurred “from the date counsel for petitioners filed a notice of appearance”). But the Government’s argument finds no support in either the facts or the law.
Contrary to the Government’s claims, none of the services at issue here were rendered before the Complaint in this action was filed. As discussed above, the Workers’ June 1, 2004 letter to the Court seeking review of the Labor Department’s denial of their TAA petition was deemed the Complaint, filed as of June 3, 2004. In contrast, the first billing entry is for services rendered on June 4, 2004 — the day after the filing of the Complaint. See Pis.’ Application. The Government’s argument thus cannot be reconciled with the facts of this case.
Moreover, the Government points to no legal authority to support its position. Curiously, the Government cites
Levemier
for the proposition that “pre-complaint fees while administrative proceedings are still pending are not allowable.” Def.’s Response at 26
(citing Levernier Constr., Inc. v. United States,
What the Government fails to acknowledge is that
Levemier
squarely rejected the claim that “the only pre-complaint efforts for which EAJA would permit compensation are those related to drafting the complaint.”
Levernier,
The law elsewhere in the country is to the same effect. As a general principle, “reasonable work at all stages of the litigation is compensable, including prefiling work.” A. Hirsch & D. Sheehey,
Awarding Attorneys’ Fees and Managing Fee Litigation
28 (Federal Judicial Center 2d ed.2005) (citation omitted);
see also, e.g., Dowdell v. City of Apopka, Fla.,
b. Fees for Services Rendered After Filing of Workers’ Comments on TAA Certification
Just as the Government contests the Workers’ claim for fees for services rendered early in this litigation, the Government similarly disputes the compensability of services rendered late in the case. The Government asserts that — other than compensation for the preparation of the fee application itself — fees should be denied for services rendered after “the date [the Workers] filed comments indicating that they accepted Labor’s certification determination” 37 — that is, after January 18, 2005. See Def.’s Response at 29. This argument, too, is without merit.
In particular, the Government challenges the time that the Workers’ counsel spent on “briefing regarding the calculation of benefits [which] occurred after the agency certified petitioners.” See Def.’s Response at 28. The Government accuses the Workers’ counsel of “engaging] the Court and the Government in a needless colloquy regarding the hypothetical circumstance of a miscalculation of benefits,” which (according to the Government) “[the] Court lacks jurisdiction to determine in any event.” Id. at 28-29. The Government asserts that the efforts of the Workers’ counsel “only protracted the litigation after certification.” Id. at 28-29. 38 However, the Government has no one but itself to blame for the post-certification briefing to which it objects. See generally Pis.’ Application at 9-12,14, 21-22, 2T-28. 39
*1322
As discussed in section I above, the Government sought an additional 60 days to file the results of the voluntary remand, above and beyond the 60-day period initially granted for the remand investigation. Counsel for the Government induced the Workers’ consent to the requested extension of time — and the Court’s entry of an order granting that extension — -with express, unequivocal assurances that “in the event petitioners are certified in this case, the petitioners would be entitled to receive full TRA benefits regardless of the date they are certified.”
See BMC,
When the Labor Department’s remand results eventually issued, however, there was no language reflecting the unconditional assurances that the Government had previously given. Concerned, the Workers urged the Court to “expressly order[ ], in accordance with Defendant’s representation, that Plaintiffs, having been certified, are entitled to receive full TRA benefits, regardless of the date of their certification.”
See BMC,
The Government’s position precipitated the several rounds of post-certification submissions by the parties — all of which were filed in direct response to orders of, or letters from, the Court. Those directives were generally intended to ensure that the Workers’ receipt of the various types of TAA benefits would be unaffected by the Labor Department’s protracted delays in certifying the Workers as eligible to apply for TAA benefits, in accordance with the assurances that the Government had previously given the Court and the Workers. 42
The Workers’ concerns were by no means trumped up.
43
The Workers had
*1323
more than ample reason to be concerned about the real-life effects of delayed certification on their benefits. As
BMC
explained, “[w]orkers who are belatedly awarded TAA benefits receive no interest or other compensation for the delay that they suffer. At best, such workers receive — months (or even years) after the fact — the same funds and training that they were entitled by statute to receive much earlier.
Worse yet, all too often, delay effectively operates to reduce (and conceivably even eliminate) benefits to which workers are otherwise entitled by law.” BMC,
For example, in at least three cases
(i.e., Tyco, Oxford Automotive,
and Ericsson), displaced workers suffered through repeated remands of their NAFTA-TAA claims and were eventually certified by the Labor Department, only to learn that the extended delays resulting from the agency’s incompetence and intransigence had effectively rendered them ineligible for basic benefits. In all three cases, the workers ultimately succeeded in receiving at least some of those benefits — but only after extensive post-certification efforts by their attorneys, who basically “browbeat” the agency into submission.
See generally BMC,
The Workers here note that the Government made the exact same argument in
Tyco
that it makes in this action — that is, the Government asserted that time expended by the workers’ counsel after TAA certification was not compensable under the EAJA.
See
Pis.’ Application at 27 (citation omitted).
45
But the
Tyco
court rejected that argument, awarding fees for post-certification work by counsel, relying on
*1324
Jenkins v. Missouri,
In
Jenkins v. Missouri,
the court surveyed the range of post-judgment activities that may be covered by fee-shifting statutes, emphasizing that “monitoring the defendant’s compliance with court orders and enforcing the remedy are generally compensable as part of the underlying case.”
Jenkins v. Missouri,
The law seeks to compensate attorneys for work reasonably done actually to secure for clients the benefits to which they are entitled.... [T]he order of the court does not always secure the actual benefit and additional legal work may be required. To paraphrase the acute observation of baseball great Yogi Berra, a case ain’t over till it’s over. This means that ... counsel are entitled to compensation until all benefits obtained by the litigation are in hand.
Norman,
The same result obtains here. Indeed, the case for compensability of the challenged hours in this action is even stronger than in many cases involving post-judgment work, because the time at issue here was largely expended in direct response to the orders and instructions of the Court.
See, e.g., Powers v. Comm’r of Internal Revenue Service,
*1325 Moreover, the Government’s contention that disputes concerning the benefits awarded to individual workers are reserved for the state courts gives no cause for pause — at least under the specific circumstances of this case. See Def.’s Response at 28-29, 38-39. As BMC observed:
Even assuming arguendo that the court — in a run-of-the-mill TAA case—lacks the authority to “expressly order[ ], ... that Plaintiffs, having been certified, are entitled to receive full TRA benefits, regardless of the date of their certification,” it is clear beyond cavil that “a court always retains jurisdiction to supervise and administer its own docket.”
BMC,
As
BMC
observed, whatever the Court’s authority in a run-of-the-mill TAA case may be,
49
this was no run-of-the-mill case. To obtain the lengthy extension of time that it sought for the filing of the Labor Department’s remand results, the Government here expressly warranted to the Workers and to the Court that, “in the event petitioners are certified in this case,
the petitioners would be entitled to receive full TRA benefits
regardless of the date they are certified.” (Emphasis added.) Thus, as the Workers correctly noted, the issue presented in this case was “whether [the] Court should exercise its inherent authority to give effect to a representation made by the Government in a pleading before this Court.”
See BMC,
The Workers emphasized:
Plaintiffs ... have a reasonable expectation as litigants to have a measure of reliability in their dealings with the government in this case [ — as does the *1326 Court — ].... The Government should not have assured Plaintiffs of their entitlement to full benefits if the Government knew it would ultimately take the position that its representation (designed to induce an extension [of time]) could not be enforced. In such a scenario, the Court must have the authority to hold the Government to its words.
BMC,
Under circumstances such as those presented here, the Government cannot possibly contend that the Court is powerless to hold the Government to its word, or that petitioning workers are relegated to the state courts to enforce express representations made by the Government to petitioning workers and to the Court of International Trade, and on which the workers and the Court have relied in granting the Government relief that it has requested. 50 Given the facts of this case, counsel to the Workers were entirely justified in undertaking efforts to ensure that the Government kept its word and that the Workers were not deprived of benefits due to the Labor Department’s delayed certification. The relatively modest amount of time that counsel devoted to those ends is thus com-pensable.
c. The Sufficiency of Billing Documentation
The Government criticizes certain billing entries in the Workers’ Application as “vague,” and asserts generally that the hours reflected in those entries should be disallowed. See Def.’s Response at 32-33. As “example[s],” 51 the Government points to entries for time spent on “telephone calls, e-mails and meetings regarding TAA issues,” “discussions ... regarding case management,” and “discussions ... regarding getting visibility for TAA software cases.” See id. at 32. 52
*1327 The Government cites a number of cases in which courts reduced fee awards because billing records were not sufficiently detailed. See generally Def.’s Response at 29-31. 53 But specificity in time-keeping is not an end in itself. Significantly, the Government fails to allege that it was harmed in any particular way by the alleged lack of detail in the billing records in this case.
It is true that fee applicants are obligated to “maintain billing time records in a manner that will enable a reviewing court to identify distinct claims,” so that the court may discount a potential award to adjust for work on claims as to which the fee applicant did not prevail.
Hensley v. Eckerhart,
But the Government does not allege that, in reviewing the Workers’ Application, it was unable to distinguish between the time that the Workers’ counsel spent on tasks related to successful claims and that spent on tasks related to unsuccessful claims. Nor could the Government do so — because the Workers prevailed on the entirety of their case. Accordingly, there is no need here for detailed billing records to identify and disallow time spent on unsuccessful claims.
See City of Riverside v. Rivera, 477
U.S. at 569 n. 4,
Just as some detail in billing records is necessary in cases where — unlike this one — the court must distinguish between time spent on successful claims and time spent on unsuccessful claims, so too a certain level of specificity may be needed to allow opposing counsel and the court to evaluate whether the amount of time that counsel devoted to specific tasks was appropriate.
See, e.g., Naporano Iron and Metal Co.,
But, again, nowhere has the Government claimed that the alleged lack of detail in the billing records at issue precluded it from assessing the reasonableness of the time that the Workers’ counsel expended on various tasks. 54 Indeed, quite to the contrary, the Government specifically argues that the Workers’ counsel devoted too much time to at least one task. See generally Def.’s Response at 32 (arguing that “[t]he research engaged in by counsel is ... excessive”); section II.B.l.e, infra (addressing Government’s argument that hours spent on legal research should be disallowed). In short, absent any claim that it suffered some resulting harm, it is unclear that the Government is in a position to complain about the level of detail in the billing records in this case.
Counsel are “not required to record in great detail how each minute of [their] time was expended. But at least counsel should identify the general subject matter of [their] time expenditures.”
Hensley v. Eckerhart,
To be sure, many of the billing entries in the records submitted by the Workers’ counsel are “hardly paragons of, revelation.”
See Earth Island Institute v. Christopher,
Counsel are cautioned, however, that the Court of Appeals has “rejected] unequivocally any suggestion that [a trial court] ha[s]
an obligation
to reconstruct ... bills” for a fee petitioner based on “the documentation in [the] fee application together with the ... [court’s] docket sheet,” as the Court has done here.
See Naporano Iron and Metal Co.,
d. Fees for Representation by Multiple Attorneys
The Government also challenges the Workers’ claim for fees for “multiple ‘status meetings’ and conversations among three or more attorneys,” charging broadly that “this case was not of the level of complexity to warrant representation by several attorneys.” See Def.’s Response at 32.
The Government’s reference to “status meetings,” in quotation marks, does little to add specificity to its argument. The Government fails to identify the dates of any of the billing entries to which it is referring. Nor does the Government cite to the Worker’s Application — either as to the “status meetings” or as to the “conversations among three or more attorneys” to which it objects.
As discussed above, where a defendant raises only “a generalized objection” to a category of fees, the prevailing party typically need not present an entry-by-entry defense of the challenged claims. Nor in such cases is the court generally obligated to scrutinize the fee claimant’s billing statement to identify entries potentially at issue, other than those which can be “eliminated through a cursory examination of the bill.”
57
See, e.g., Wooldridge v. Mar
*1330
lene Indus. Corp.,
In any event, the gravamen of the Government’s argument seems to be that the Workers’ case was overstaffed. The Government cites no specific facts or authority to support its claim, however. Nor does the Government elaborate on its assertion that “this case was not of the level of complexity to warrant representation by several attorneys.” See Def.’s Response at 32. 58
*1331
Contrary to the Government’s claim, the case has been a complex one, in a number of different respects. As a threshold matter, it appears that the application of the TAA laws to the software industry has presented perhaps the greatest challenge that the Labor Department has confronted in its more than 30-year history of administering the TAA program. As
BMC
suggested, the Labor Department has struggled over a period of years, grappling with issues such as the characterization of software as a “good” or a “service,” the tariff treatment of software, the relevance of software’s mode of transmission (electronically or on physical media), and the significance (or lack thereof) of the difference between custom-designed software and that which is mass-produced.
See generally BMC,
Moreover, as courts have recognized in the past, TAA cases are, by definition, fact-intensive.
See, e.g., Marathon Ashland,
The press of time was also a factor. 63 By the time the Labor Department’s remand investigation began, the Workers already had been unjustly deprived of TAA benefits for more than six months. And they had been out of work for more than a year.
Quoting a decision in a prior TAA case,
BMC
emphasized that “as a general principle, the effectiveness of trade adjustment assistance depends upon its
timeliness.” BMC,
There is a very human face on [TAA] cases. Workers who are entitled to trade adjustment assistance benefits but fail to receive them may lose months, or even years, of their lives. And the devastating personal toll of unemployment is well-documented. Anxiety and depression may set in, with the loss of self-esteem, and the stress and strain of financial pressures. Some may seek refuge in drugs or alcohol; and domestic violence is, unfortunately, all too common. The health of family members is compromised with the cancellation of health insurance; prescriptions go unfilled, and medical and dental tests and treatments must be deferred (sometimes with life-altering consequences). And college funds are drained, then homes are lost, as mortgages go unpaid. Often, marriages founder.
BMC,
Accordingly, delay was a major concern of the Workers and their counsel, from the very inception of this action.
See general
*1333
ly BMC,
The magnitude of this action is a factor as well. This is not a matter involving a single plaintiff, or even the four representative named plaintiffs. Instead, TAA cases are, in significant respects, much like class actions. They directly affect not only the rights of the individual representative plaintiffs, but also those of an entire class of former employees. Counsel here thus not only had to communicate with, coordinate with, and represent the interests of the multiple named representative plaintiffs, but also had to ascertain and consider the facts as to other similarly-situated former employees of BMC. The challenges that counsel confronted were compounded by the distance that separates them from their clients. 64
Finally, contrary to the Government’s implication, there is nothing at all out of the ordinary about staffing significant, high-impact litigation with multiple attorneys. The courts have recognized that “the retention of multiple counsel in complex cases is ‘understandable and not a ground for reducing the hours claimed’ because ‘the use in involved litigation of a team of attorneys who divide up the work is common for both plaintiff and defense work.’ ”
Jean v. Nelson,
In the interests of efficiency, “senior attorneys often delegate[] less complex tasks to junior staff attorneys; this arrangement is the normal partner/associate or senior associate/junior associate working relationship in most legal firms.”
Ross v. Saltmarsh,
To be sure, a fee reduction is appropriate where, for example, a case is overstaffed such that hours spent by one lawyer are unnecessarily duplicative of those expended by another, or where excessive staffing leads to a “practice of engaging in long daily conferences.”
Spell v. McDaniel,
This is not such a case, however. Scrutiny of the Workers’ Application (together with the Administrative Record and the court’s docket sheet) yields not even a hint of any inappropriate duplication of effort,
66
much less any attempt to “pad” the bill or “run up the meter” in this matter.
67
The Government’s unsubstantiated allegations of excess must therefore be rejected.
See Rueda-Menicucci v. Immigration & Naturalization Service,
e. Fees for Legal Research
The Government contests the Workers’ claim for fees for time devoted to legal *1335 research, characterizing the research generally as “excessive and presumptively unreasonable.” See Def.’s Response at 32. The Government argues that it “requested a voluntary remand within 24 days of the filing of the complaint,” and asserts that the Workers “never had to brief ... the merits [of the case] at any stage because Labor certified them for trade adjustment assistance (‘TAA’) ... upon remand.” See Def.’s Brief at 1; see also id. at 8-9, 28. According to the Government, “the only briefs filed before the certification determination involved a six-page statement of consent to the voluntary remand, [and] a motion for an extension of time to do so, ... [as well as] a two-page statement of agreement with the certification determination.” Def.’s Response at 32; see also id. at 1, 9, 28. But the Government doesn’t tell the whole story.
As the Supreme Court has observed, “[t]he government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.”
City of Riverside v. Rivera,
As discussed above, under the circumstances, the Workers’ counsel here had to research and analyze the statute, regulations, caselaw, and past agency practice concerning the impact of delayed certification on the availability of TAA benefits. See sections I & ILB.l.b, supra. In addition, the Workers’ counsel had to familiarize themselves with the criteria for TAA certification, and research how the Labor Department was applying those criteria to the software industry. See section II. B.l.d, supra. 70
*1336 Moreover, even as it emphasizes the relatively modest amount of briefing required in this litigation prior to the Labor Department’s certification of the Workers, the Government ignores the critical role that the Workers’ counsel played in the remand proceeding. The Workers’ counsel took the lead in structuring the remand investigation, researching and drafting a comprehensive order to define the scope of the agency’s work — a detailed order that was entered by the Court with only minor alterations. See section I, supra.
The Workers’ counsel also assisted with the development of the administrative record on remand, filing submissions with the Labor Department which — although primarily factual — had legal underpinnings, and which were integral to the agency’s work. Indeed, the agency incorporated excerpts from one of the Workers’ submissions wholesale into its first questionnaire (“Confidential Data Request”) for BMC in the course of the remand investigation. See, e.g., Letter to Labor Department from Counsel for Plaintiffs (Aug. 31, 2004); Letter to BMC from Labor Department (enclosing Confidential Data Request) (Sept. 2, 2004), at Att. B; Letter to Labor Department from Counsel for Plaintiffs (transmitting Declaration of Arthur L. Blummer, one of the named representative plaintiff Workers) (Sept. 28, 2004).
For its part, the Government cites but a single billing entry as evidence of the Workers’ “excessive and presumptively unreasonable” research — an entry for two hours on July 25, 2004, devoted to “research regarding past CIT practices in remands of TAA benefit certification cases.” See Def.’s Response at 32. 71 However, as noted above, research on that topic was obviously relevant to the Workers’ case, and there can be no claim that those two hours were “excessive” or “unreasonable.” 72
*1337
Further, where — as here — a defendant fails to “raise more than a generalized objection” to a category of fees, it is typically unnecessary for the prevailing party to mount an entry-by-entry defense of the challenged claims. Nor in such cases is the court generally required to review entries other than those which can be “eliminated through a cursory examination of the bill.”
See, e.g., Wooldridge,
In any event, the record compiled before the Court, together with the administra-five record compiled on remand, provide more than ample justification for the 15 entries comprising a total of fewer than 40 hours of research for which the Workers seek compensation,
73
and demonstrate that — contrary to the Government’s assertions — that time was neither “excessive” nor “unreasonable.”
See generally Pirus v. Bowen,
*1338 f. Fees for Miscellaneous Legal Services
In addition to its numerous other objections, the Government also charges that the Workers’ Application seeks an award of fees for “items ... [that] bear no direct relation to the litigation of [their] claims.” See Def.’s Response at 33. As “example[s],” 75 the Government points to billing entries for “communications with an unnamed ‘attorney representing claimants in other TAA software case,’ ” “research regarding federal government policy on alternative dispute resolution,” “publicizing the plight of software workers who have TAA claims,” and “review and respond to e-mails on prospect for seeking congressional assistance with client’s TAA claim.” Id. 76 But the Government cites no author *1339 ity to support its assertion that those types of work are not compensable. Id.
Contrary to the Government’s claim, fees may properly be awarded for consultations with counsel in other comparable cases.
See, e.g., Davis v. City and County of San Francisco,
Also unfounded is the Government’s challenge to time spent on “research regarding federal government policy on alternative dispute resolution.” The fact that the parties ultimately did not pursue alternative dispute resolution is of little moment. “The relevant issue ... is not whether hindsight vindicates an attorney’s time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.”
Grant v. Martinez,
*1340
Media relations work and government relations work are similarly compensable in appropriate cases. As Justice Kennedy observed in
Gentile v. State Bar of Nevada,
a case reviewing a state bar’s disciplinary action based on a criminal defense attorney’s statements at a news conference: “An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client.”
Gentile v. State Bar of Nevada,
However, the time reflected in one public relations-related billing entry and in one government relations-related entry must be disallowed, because the work cannot be said to have been “related to the successful representation of [the] client.” Specifically, an entry dated March 2, 2005 *1341 documents time devoted to drafting text concerning counsel’s handling of the Workers’ case for inclusion in a law firm brochure or similar publication — “Draft description of BMC representation for pro bono publication.” Although the Government did not object to that billing entry, the time obviously was not expended for the benefit of the Workers and therefore must be disallowed.
The time reflected in a March 7, 2005 billing entry — “Prepare proposed draft of revised TAA statute ...; research regarding same” — must be disallowed as well. Although the Government also did not object to that billing entry, and although the task that the entry reflects might well have been compensable under other circumstances, the legislative drafting work at issue
postdated
the Workers’ certification of eligibility for TAA benefits in this case. Accordingly, that time too was not expended for the benefit of the Workers.
See generally Davis v. City and County of San Francisco,
Review of the Workers’ Application discloses yet another category of work that merits attention. Although the Government raised no objection, time devoted to internal law firm administrative matters related to client billing (such as establishing a client account and drafting a retainer agreement) must be disallowed — at least where, as here, there is no showing that it is standard practice to charge paying clients for such work.
See, e.g., Role Models America,
The specific billing entries at issue are: (1) a July 21, 2004 entry (“TAA research; meeting to discuss case status and strategy; telephone discussions with client regarding same; telephone discussion with government attorney regarding extension and basis for remand; complete new matter form; draft motion for extension; draft proposed order in support; draft protective order agreement; circulate drafts of proceeding”) (emphasis added); (2) an August 1, 2004 entry (“Draft retainer letter; review CIT rules regarding response submissions; draft submission regarding response to Government’s motion for remand; review remand order; e-mail Government regarding same”) (emphasis added); (3) an August 4, 2004 entry (“Discussion ... regarding issue of recovery of legal fees language for retainer letter; revise letter to reflect same”); (4) an October 27, 2004 entry (“Investigate whether retainer letters have been received from all clients; e-mail ... regarding missing letter”); and (5) an October 28, 2004 entry (“E-mail client regarding mailing of followup retainer letter”).
Because the July 21, 2004 entry and the August 1, 2004 entry include time devoted to compensable tasks in addition to non-eompensable client billing-related work, *1342 those entries will be docked 15 minutes and 45 minutes, respectively. The three remaining billing entries must be disallowed in their entirety.
Finally, an entry dated July 20, 2005 memorializes time spent to “[ljoeate case-related materials.... ” Whatever may have precipitated the need for those materials, the task of locating them postdated the completion of all post-certification briefing. Under the circumstances, it cannot be said that the time was expended for the benefit of the Workers. That time too therefore must be disallowed.
g. Fees for Litigation Support Work
As the Government correctly notes, the Workers’ Application seeks an award' of fees for a range of litigation support activities. The Government spotlights billing entries for services to “organize materials and coordinate creation of case file in Records Department,” and for “routing and distribution of service copies of letter and proposed order to government and clients.” See Def.’s Response at 33. 82 According to the Government, such activities are “[n]on-compensable” under the EAJA. Id.
Nothing in the record indicates that the tasks identified in the billing entries that the Government cites required the skills of a lawyer. However, contrary to the Government’s assertion, it does not necessarily follow that the work is, by definition, “[n]on-compensable.”
See, e.g., Lipsett v. Blanco,
As the Supreme Court has observed, “paralegals are capable of carrying out many tasks ... that might otherwise be performed by a lawyer and billed at a higher rate.”
Missouri v. Jenkins,
As discussed above, where the party opposing the award of fees contents itself with merely identifying “examples” of the entries to which it objects, a court generally is under no obligation to conduct a line-by-line review of the fee application to identify other similar entries. See section II.B.l, supra. However, such a review in this case identifies a number of other entries which — like the two examples cited by the Government — are best characterized as paralegal work. 85 Like the work listed in the two entries cited by the Government, the work listed in the other entries identified by the Court is also com-pensable, at the paralegal rate.
Unfortunately, although their respective individual billing rates are specified, the Workers’ Application does not indicate the employment status of the various individuals who performed the work for which fees are sought.
See Naporano Iron and Metal Co.,
Calculating the amount of the award for the paralegal-type work in this case is particularly difficult in light of the Court of Appeals’ recent decision in
Richlin Sec. Serv. Co. v. Chertoff,
Although neither party brought
Richlin
to the attention of the Court,
87
the Workers will be accorded the opportunity to supplement their Application with information on the precise employment status of each individual whose time is reflected in the Application. See
Naporano Iron and Metal Co.,
h. Fees for Preparation of Fee Application
The g'overnment acknowledges that “attorney fees incurred in the preparation of an application for fees are compensable under the EAJA.”
Schuenemeyer v. United States,
In
Comm’r, Immigration & Naturalization Service v. Jean,
the Supreme Court held that a fee applicant may recover fees incurred litigating the fee award without a separate showing that the Government’s opposition to the fee award was not substantially justified.
See id.
at 159, 161-62,
[Thus] fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation. For example, if the Government’s challenge to a requested rate for paralegal time resulted in the court’s recalculating and reducing the award for paralegal time from the requested amount, then the applicant should not receive fees for the time spent defending the higher rate.
Comm’r, Immigration & Naturalization Service v. Jean,
Because
Richlin
was decided after the parties here completed briefing on the fee issue, the potential future reduction of the Workers’ fee request to reflect an award for the time expended by paralegals only at their cost to the law firm (rather than at market rates) gives no cause to adjust the time expended on the fee application.
See
section II.B.1.g,
supra
(discussing
Richlin,
The Itemized Billing Statement submitted by the Workers does not specify which hours counsel devoted to the “special factors” issue, as distinguished from their work on all other aspects of the fee appli *1346 cation. However, a review of the Workers’ Application indicates that the issue consumed but a fraction of the time spent researching and drafting that document. And, although the “special factors” issue was one of only two issues addressed in Plaintiffs’ Reply, the Workers seek no fees at all for the time that counsel spent on that document.
Accordingly, the award in this matter will include fees for the attorney and/or paralegal time devoted to preparation of the Workers’ Application, at the appropriate rate(s), with a deduction of two hours of the time spent on “[l]egal research and drafting [of the] EAJA application” (to account for time spent on the “special factors” issue on which the Workers do not succeed).
2. A Reasonable Hourly Rate of Compensation
The second component of the “lodestar” figure — after “the number of hours reasonably expended on the litigation”' — is “a reasonable hourly rate” of compensation.
Hensley v. Eckerhart,
The Workers argue that “special factors” are present in this case, justifying an enhancement of the award of attorneys’ fees. See generally Pls.’ Application at 23-26; Pls.’ Reply at 7-8. In the alternative, the Workers contend that the $125 per hour statutory cap should be subject to a cost of living adjustment (“COLA”). See generally Pls.’ Application at 26-27.
For the reasons detailed below, the Workers’ request for a “special factors” enhancement is denied, and their request for a cost of living adjustment is granted.
a. The Workers’ Request for a “Special Factors” Adjustment
The EAJA permits enhancement of a fee award for “a special factor, such as the limited availability of qualified attorneys for the proceedings involved.” See 28 U.S.C. § 2412(d)(2)(A)(ii); see generally Gregory C. Sisk, The Essentials of the Equal Access to Justice Act: Court Awards of Attorney’s Fees for Unreasonable Government Conduct (Part Two), 56 La. L.Rev. 1, 145-76 (1995) (analyzing “Enhancement of the EAJA Fee Award for ‘Special Factors’ ”).
In
Pierce v. Underwood,
the Supreme Court underscored that the EAJA’s “special factors” provision must be interpreted narrowly, “to preserve the intended effectiveness of the [now $125] cap.”
See Pierce v. Underwood,
The Government maintains that “there is no ‘special factor’ justification for departing from the statutory limits [on fees]” in the case at bar. See Def.’s Response at 24.
(1) “The Limited Availability of Qualified Attorneys ”
The “special factor” most commonly invoked in an attempt to justify enhanced attorneys’ fees is that specified in the EAJA itself — “the limited availability of qualified attorneys for the proceedings involved.” See 28 U.S.C. § 2412(d)(2)(A)(ii). According to the Government, however, there was no “limited availability of qualified attorneys” to handle the case at bar. See generally Def.’s Response at 34-36.
In
Pierce v. Underwood,
the Supreme Court explained that the special factor of “the limited availability of qualified attorneys” “must refer to attorneys ‘qualified for the proceedings’ in some specialized sense, rather than just in their general legal competence.”
Pierce v. Underwood,
Pierce v. Underwood
suggested that the requisite “distinctive knowledge or specialized skill” might include “an identifiable practice specialty such as patent law, or knowledge of foreign law or language.”
Pierce v. Underwood,
The Government contends that “ ‘special skills’ involving international trade are not required to litigate TAA cases” such as this. The Government maintains that TAA cases require only knowledge of “general administrative law.” See Def.’s Response at 2, 9.
Analysis of the caselaw reveals that Courts of Appeals across the country have taken divergent approaches to the “limited availability of qualified attorneys” as a special factor.
See generally Connecticut State Dep’t of Social Services v. Thompson,
At one end of the spectrum is the Ninth Circuit, which has taken perhaps the most liberal view of the provision.
See, e.g., Love v. Reilly,
In contrast, the D.C. Circuit is among the most rigorous, if not
the
most rigorous, of the geographic courts of appeals.
See generally Truckers United for Safety v.
*1349
Mead,
The court has noted that, although “lawyers practicing administrative law typically develop expertise in a particular regulated industry, whether energy, communications, railroads, or firearms,” those practitioners “usually gain [their] expertise from experience, not from the specialized training justifying fee enhancement.”
Truckers United for Safety,
The Fifth Circuit, too, has interpreted the “special factors” provision strictly, virtually excluding legal expertise as a potential special factor.
See Estate of Cervin v. Comm’r of Internal Revenue,
Thus, for example, in
Perales v. Casillas,
the Court of Appeals for the Fifth Circuit rejected expertise in immigration law as a “special factor” under the EAJA.
See Perales v. Casillas,
The First Circuit appears to have staked out middle ground. Like other courts, the Court of Appeals for the First Circuit has acknowledged that “[m]odern administrative law involves, in practically every area, a tangle of discrete regulations, various precedents, a bureaucratic vocabulary and some background knowledge about the kinds of events commonly involved (which may, for example, be scientific, business related, or medical).”
Atlantic Fish Spotters Ass’n v. Daley,
The First Circuit has nevertheless rebuffed attempts by the Government to limit special factors enhancements to only those areas of expertise that “require!] some special discipline over and above the expertise that any experienced counsel might develop in his own specialty.”
Atlantic Fish Spotters,
The Court of Appeals for the First Circuit has thus emphasized that it “do[es] not read the Supreme Court or most of the circuit cases as adopting a mechanical rule that automatically excludes a specialist from extra compensation merely because no separate credential exists for his field and because no foreign law or language is required.”
Atlantic Fish Spotters,
[T]he statute does not assign extra compensation by “fields” but by asking the practical question whether in the case at hand lawyers qualified to handle the case can be found for $125 or less.... [I]f a plaintiff can show that a particular “fisheries law” case (or any other kind of case) requires for competent counsel someone from among a small class of specialists who are available for only $175 per hour, that seems to us enough to meet the language of the statute, its purpose, and the Supreme Court’s gloss.
*1351
Atlantic Fish Spotters,
Any attempt to synthesize the jurisprudence on point compels the conclusion that the courts are truly “all over the map,” and that
some
precedent can be mustered to support almost
any
position — particularly if one draws on the early caselaw. Some courts across the country have expressly held, for example, that expertise in relatively common administrative law specialties such as social security disability law and immigration law may justify “special factors” enhancements.
See, e.g., Lyden v. Howerton,
The issue of the “limited availability of qualified attorneys” as a “special factor” under the EAJA has not been squarely presented to the Court of Appeals for the Federal Circuit in more than a decade— and, even then, the focus was not on interpretation of the reference in
Pierce v. Underwood
to “distinctive knowledge or specialized skill.”
See generally Phillips v. General Services Administration,
The Court of Appeals made short work of the plaintiffs argument, observing that
Pierce v. Underwood
specifically held that “the contingent nature of the fee is ... too generally applicable to be regarded as a ‘special’ reason for exceeding the statutory cap.”
Phillips,
Even if we accept Phillips’ claim that attorneys are often unwilling to work at an hourly rate on cases before the MSPB (caused at least in part by the frequency of nonpayment by clients), it falls short of being a “special factor” covered by the EAJA.
Phillips,
In an earlier case, however, the Court of Appeals directly addressed the issue of legal expertise as a “special factor.” In
Gavette,
the court granted a “special factors” enhancement — albeit with relatively little discussion — based specifically on counsel’s “capability and willingness” to handle appeals of adverse decisions by the Merit Systems Protection Board.
See Gavette v. Office of Personnel Management,
And the decisions of courts subject to review by the Court of Appeals for the Federal Circuit have been somewhat mixed.
See, e.g., Scarborough v. Nicholson,
To support its assertion that a “special factors” enhancement is not appropriate here, the Government relies on
Tyco,
the sole decision addressing a claim for a “special factors” enhancement in a TAA case.
See generally
Def.’s Response at 35;
Tyco,
*1354
The
Tyco
court first stated that, although lead counsel’s expertise was “not questioned,” his “specialized skills were not needed
for this litigation.” Id.,
The
Tyco
court did not elaborate on its assertion that “[t]he basic litigation skills needed for these types of cases apply ‘to a broad spectrum of litigation,’ ” however. And, although
Tyco
cited
Humane Society
and
Earth Island Institute,
it did not discuss those cases, or other progeny of
Pierce v. Underwood. See Tyco,
28 CIT at
*1355
1579,
The Workers here do not seek to distinguish
Tyco,
and — indeed—have clarified that, contrary to the Government’s assumptions, they do not base their request for a “special factors” enhancement on any claim that their counsel possessed “some distinctive knowledge or specialized skill needful for the litigation in question.”
See
Pis.’ Reply at 7 (noting that “[p]laintiffs never argued that special factors for attorneys’ special skills are applicable to this case”);
Pierce v. Underwood,
(2) Delay
According to the Workers, “the Government here engaged in a systematic and improper effort to delay unnecessarily the provision of a statutorily adequate comprehensive review of [the Workers’] case and assurances in their level of benefits.” Pls.’ Application at 24. The Workers assert that the Government’s misconduct entitles them to a “special factors” enhancement of their fee award, based on two Eleventh Circuit
cases
— Jean
v. Nelson
and
Pollgreen
— which appear to authorize an enhancement where “the government’s litigation delay was the result of bad faith or the length of the delay was excessive.”
See Pollgreen v. Morris,
Jean v. Nelson
concerned a challenge by Haitian refugees to the Immigration and Naturalization Service’s policies of holding mass exclusion hearings for Haitian refugees and detaining them during the pendency of their asylum applications with no possibility of parole. Following contentious litigation, the refugees prevailed on the merits of their claims and were eventually awarded attorneys’ fees and costs under the EAJA. On appeal, the U.S. Court of Appeals for the Eleventh Circuit ruled that the district court erred in granting a “blanket enhancement” of the fees awarded to each attorney. However, the majority opinion advised that, on remand, the district court should feel “free to approach this question [of ‘special factors’ enhancements] anew, and consider potential special factors that would be consistent with
[Pierce v. Underwood
] and the [appellate court’s opinion] ..., including
whether the government’s unusually litigious position in this case might constitute a special factor.” Jean v. Nelson,
In a footnote, the majority in
Jean v. Nelson
gave a nod to the dissent’s concern that — because a finding on the nature of the government’s conduct is “a condition precedent to every EAJA award” — “allowing a premium based on the government’s ‘contentions and litigating postures’ will lead courts to double-count the substantial justification factor.”
Jean v. Nelson,
For instance, if the government were aware that the cost of doing business of certain of the plaintiffs’ attorneys exceeded the EAJA cap of $75.00 per hour, the government might adopt an aggressive, litigious strategy in order to deter the plaintiffs’ attorneys by actually forcing these attorneys to operate at a loss. We do not suggest that this situation occurred, but it is illustrative of how an improper purpose can be a factor that is additional to a “frivolous” position. Thus, if the government in this case advanced litigation for any improper purpose such as harassment, unnecessary delay or increase in the plaintiffs’ expense, then consistent with Pierce, its action warrants the imposition of a special factor.
Jean v. Nelson,
Pollgreen v. Morris
followed two years later, in protracted litigation arising out of the Mariel boat lift in which Key West fishermen transported to Florida refugees from Cuba who were seeking political asylum in the United States. The Immigration and Naturalization Service seized the fishing boats and issued a Notice of Intention to Fine to each of the fishermen. When the fishermen sought relief in the federal courts, the district court issued a preliminary injunction permitting the boats to be used for fishing operations, finding,
inter alia,
that the fishermen would likely prevail on a defense of duress in their administrative hearings before the agency. The Immigration and Naturalization Service refused to recognize the defense, however, and imposed fines on the fishermen totaling nearly five million dollars.
See generally Pollgreen v. Morris,
The fishermen returned to federal court, challenging the imposition of the fines and seeking to permanently enjoin the seizure of their vessels. The district court granted summary judgment and issued a permanent injunction, concluding that the fishermen had established the defense of duress and that the Immigration and Naturalization Service’s failure to recognize that defense was arbitrary, capricious, and an abuse of discretion. The Court of Appeals for the Eleventh Circuit upheld the district court’s determination that the duress defense was applicable, but directed the district court to remand the cases to the agency for “rehearing, reconsideration, and redetermination” in light of the defense. The Immigration and Naturalization Service later vacated its prior decisions and ruled that no fines would be imposed.
See generally Pollgreen v. Morris,
The district court awarded attorneys’ fees under the EAJA, enhancing the award for “special factors.” Among other things, the district court noted “the exceptional and unusual circumstances of [the] case including] the extreme delay by the government in proceeding with and finally disposing of this suit.”
See generally Pollgreen v. Morris,
The government’s delay in litigating a case is a permissible special factor only when the motivation for the delay was *1357 improper or the length of the delay itself was inappropriate. Cf. Wilkett v. I.C.C.,844 F.2d 867 , 876-77 (D.C.Cir.1988) (unusual delay in awarding fees, not attributable to plaintiff, may constitute special factor warranting rate increase). A delay that occurred because the government litigated a position that lacked substantial justification is not a permissible special factor because any litigation eligible for EAJA fees, by definition, involves the government’s pursuit of an unjustified position. If the government’s litigation delay was the result of bad faith or the length of the delay was excessive, regardless of the merits of the position litigated, then such delay could constitute a special factor.
Pollgreen v. Morris,
Although there are no published opinions on remand by the district courts in Pollgreen and Jean v. Nelson, the Workers here apparently assume that both courts awarded special factors enhancements based on delay. Specifically, the Workers state that “the Circuit [Court] remanded the recalculation to [the] district courts, who did not publish their opinions, so there is no reported guidance as to what level of [enhancement] ... is suitable.” See Pls.’ Application at 25.
Contrary to the Workers’ assertions, however, the remands in
Pollgreen
and
Jean v. Nelson
were not merely for the purpose of “recalculating]” the EAJA awards. Rather, the district courts were to consider whether, under the specific circumstances of each of those cases, “special factors” enhancements for delay were appropriate.
See Jean v. Nelson,
It is, however, clear beyond cavil that the potential “special factor” alluded to in Jean v. Nelson and Pollgreen has been successfully invoked only once in the courts of the Eleventh Circuit in the more than 15 years since those opinions were handed down. 102 And research has dis *1358 closed no cases in other circuits where enhanced fees have been awarded on the strength of Jean v. Nelson or Pollgreen for excessive delay or delay attributable to bad faith on the part of the Government. 103
*1359 In the meantime, however, the rationale of the two eases has been subject to serious criticism, on several different grounds. See generally Def.’s Brief at 36-38; Sisk, supra, at 171-75 (discussing “Exceptional Delay as a ‘Special Factor’ ”).
In
Dixon v. Comm’r of Internal Revenue,
for example, the taxpayers invoked
Pollgreen,
arguing that delay constituted a “special factor” justifying enhanced attorneys’ fees under 26 U.S.C. § 7430) a tax
*1360
statute which closely parallels the EAJA.
See Dixon v. Comm’r of Internal Revenue,
Surveying the split in the Circuits,
Dixon
noted that “[t]he Courts of Appeals for the Fifth and Eleventh Circuits have sided with the D.C. Circuit on the delay issue”— that is, those courts have concluded that treating delay (at least, delay in the award and/or payment of fees) as a “special factor” under the EAJA is not inconsistent with the Supreme Court’s holding in
Library of Congress v. Shaw. See Dixon,
But the court in
Dixon
sided with the Courts of Appeals for the Seventh Circuit and the Federal Circuit instead.
See Dixon,
Indeed, the Court of Appeals for the Eleventh Circuit — which penned
Jean v. Nelson
and
Pollgreen
— recently addressed this same issue. In
United States v. Aisenberg,
the appellate court reversed the district court’s grant of a “special factors” enhancement for delay in payment.
See United States v. Aisenberg,
Much as
Dixon, Marcus v. Shalala,
and
Chiu
(as well as
United States v. Aisenberg)
cast doubt on the consistency of
Jean v. Nelson
and
Pollgreen
with the general bar precluding awards of interest against the Government, so too
Estate of Cervin, Cassuto,
and
Dixon
suggest that
Jean v. Nelson
and
Pollgreen
run afoul of the parallel prohibition against punitive damages.
See generally Estate of Cervin v. Comm’r of Internal Revenue,
In
Estate of Cervin,
for example, the taxpayers invoked
Jean v. Nelson,
asserting that the Internal Revenue Service’s “untenable” litigation positions in that case unreasonably complicated and prolonged the litigation, entitling the taxpayers to a “special factors” enhancement of their fee award under 26 U.S.C. § 7430.
See generally Estate of Cervin,
The Court of Appeals for the Fifth Circuit rejected the taxpayers’ argument, emphasizing the lack of any apparent reason why an agency’s “ ‘indefensible’ litigation positions would increase the
hourly rate,
as opposed to a mere increase in
the number of hours
required to litigate the case.”
Estate of Cervin,
In addition to the concerns about the proscriptions against awards of interest and punitive awards against the Government (outlined above), a third line of authority has echoed the reservation that was voiced by the dissent in Jean v. Nelson — the concern that awarding a “special factors” enhancement based on the Government’s conduct, as Jean v. Nelson and Pollgreen contemplate, would essentially conflate two distinct inquiries. Thus, for example, the U.S. Court of Appeals for the D.C. Circuit has held:
The special factor inquiry [under the EAJA] is separate from the inquiry into whether the United States’ position was justified. [The plaintiffs’] proposed reading conflates the two by asking for higher fees in light of the [agency’s] actions and how those actions impacted them.... [But] Congress has not devised a system to penalize the United States for the degree of its unjustified position or how that unjustified position has impacted a prevailing party. Rather, its waiver of sovereign immunity assumes that the United States has taken an unreasonable position.
In re Sealed Case 00-5116,
In an effort to downplay the criticisms of Jean v. Nelson and Pollgreen, the Workers argue that “[o]nly one Circuit and the Tax Court have declined to apply the rule” established in the two cases. See Pis.’ Reply at 7 (apparently referring to the Fifth Circuit). As discussed above, however, the rationale of Jean v. Nelson and Pollgreen is further undermined by various other lines of authority that do not cite either of the two cases. The Workers ignore those authorities. Moreover, the Workers’ focus on the assertedly low number of courts that have expressly rejected Jean v. Nelson or Pollgreen diverts attention from what is perhaps the most telling point — the fact that, with one limited exception (a 1995 case, in the federal trial courts in Florida), the rationale of the two cases has not been adopted by other courts, or even advanced by litigants elsewhere in the country.
In short, for all the reasons detailed above, the vitality of the rationale of Jean v. Nelson and Pollgreen — as a matter of law — is in grave doubt. But, even assuming that the rationale is legally sound, the facts of this case do not warrant the “special factors” enhancement that the Workers seek.
As discussed above, the Workers maintain that they are entitled to a “special factors” enhancement of their fee award “[i]f the government’s litigation delay was the result of bad faith
or
the delay was excessive.”
See
Pls.’ Reply at 8
(quoting Pollgreen,
The Government is presumed to have acted in good faith.
See, e.g., Clemmons v. West,
In the case at bar, the Workers do not even allege bad faith, much less point to evidence to attempt to prove it. Thus, for example, the Workers do not allege that the Government “had a specific intent to injure” the Workers — either at the agency level or in litigation.
106
Am-Pro Protective
*1363
Agency, Inc. v. United States,
Apparently conceding that they cannot prove bad faith, the Workers emphasize that “[t]he Pollgreen standard does not require an intentional delay of the awarding of benefits, but rather will be satisfied if the delays are excessive or unusual, whether or not [they] are intentional.” Pis.’ Reply at 8. But the case for excessive delay is only marginally stronger than the (non-existent) case for bad faith.
The Workers here simply cannot argue that “the length of delay was excessive” within the meaning of Pollgreen and Jean v. Nelson. As the Government pointedly observes, the Labor Department rendered both its initial determination on the Workers’ TAA petition and its determination denying the Workers’ request for consideration within the applicable statutory and regulatory periods. See Def.’s Response at 38. Thus, to the extent that Pollgreen and Jean v. Nelson would permit consideration of the Labor Department’s pre-litigation conduct, the Workers cannot be heard to complain. See n. 106, supra (distinguishing between Government’s conduct of litigation and agency’s pre-litigation conduct).
Moreover, while it is true that more than six months elapsed between the filing of the Workers’ complaint and their certification by the Labor Department, the time consumed by the processes of litigation is not — in and of itself — considered “unnecessary” or “excessive” delay as those terms are used in
Pollgreen
and
Jean v. Nelson. See Pollgreen,
Further, as the Government has underscored, it sought a remand of this action to the agency “within 24 days of the filing of the complaint.” See Def.’s Response at 38. Thus, the only remaining “delay” that the Workers could conceivably lay at the Government’s door is the 60-day extension of time that the Government sought for the filing of the Labor Department’s remand results. But the Workers consented to that extension of time (albeit only after extracting certain assurances from the Government — assurances which were giv *1364 en, but which later spawned a dispute). See sections I & ILB.l.b, supra (discussing Government’s assurances to Workers concerning effects of delayed certification on availability of TAA benefits).
In sum, the Workers here have failed to establish their right to a “special factors” enhancement of their fee award, both as a matter of law and based on the facts of the case. Accordingly, the Workers’ award must be capped at the statutory rate of $125 per hour, except to the extent that the Workers are entitled to a cost of living adjustment to that rate.
b. The Workers’ Request for a Cost of Living Adjustment
As an alternative to the requested “special factor” enhancement, the Workers seek a cost of living adjustment (“COLA”) to the EAJA’s $125 per hour statutory cap on attorneys’ fees.
See generally
Pis.’ Application at 26-27, Exh. 7; 28 U.S.C. § 2412(d) (2) (A) (ii) (capping awards of attorneys’ fees at $125 per hour “unless the court determines that an increase in the cost of living ... justifies a higher fee”). The Government opposes the Workers’ request, asserting that a cost of living adjustment is “[not] warranted in this case” — although the Government never actually explains why such an adjustment is “[not] warranted.”
See
Def.’s Response at 33-34. The Government relies primarily on the Court of Appeals’ opinion in
Phillips v. General Services Administration,
The linchpin of the Government’s argument is a quotation from
Phillips,
stating that “ ‘the “special factor” formulation [in the EAJA statute] suggests Congress thought that [the statutory rate] was generally quite enough public reimbursement for lawyers’ fees,
‘whatever the local or national market might be.’
”
Phillips,
The Government’s intimations notwithstanding, there is absolutely nothing in
Phillips
that questions the appropriateness of adjusting the EAJA statutory rate to reflect increases in the cost of living. Indeed, in dismissing the plaintiffs claim for a special factors adjustment in that case,
Phillips
emphasized that the Supreme Court’s opinion in
Pierce v. Underwood
rejected a range of potential “special factors” precisely because they were “considered to be covered by the baseline statutory rate of [then] $75 per hour,
plus a cost of living increase.” Phillips,
Various Courts of Appeals have held in the past that a cost of living adjustment “is not automatic.”
Oliveira v. United States,
However, as the courts now widely acknowledge, “[t]he express authorization for raising the [$125] cap based on increases in the cost of living ‘reflected congressional awareness that, with inflation, the fee limiting provision could defeat the purpose of the statute,’ ” which is to ensure that citizens have access to counsel to challenge unreasonable government action.
Payne v. Sullivan,
[In 1996], Congress believed [$125] was a sufficient rate for awards under the Act. By permitting cost-of-living increases, Congress intended to provide attorneys at most with an hourly rate in present-day dollars commensurate with [$125] in [1996].
Baker v. Bowen,
Accordingly, the great weight of authority today recognizes that “[i]t ‘would undermine the purpose of EAJA to remove the financial disincentive to challenge wrongful government action’ if ... courts could simply ‘withhold an inflation adjustment without reason.’ ”
Payne v. Sullivan,
977 F.2d
*1366
at 903
(quoting Animal Lovers Volunteer Ass’n, Inc. v. Carlucci,
Indeed, certain circuits have long “regarded] the cost of living adjustment as ‘essentially perfunctory or even mandatory.’ ”
Payne v. Sullivan,
Further, if a court refuses to grant a cost of living adjustment, it is required to specify the reasons for the denial.
See, e.g., Payne v. Sullivan,
The Government in this case cites nothing to suggest that the practice in the Federal Circuit is any different.
See Nakamura v. Heinrich,
Under the circumstances, the Workers’ counsel are entitled to a cost of living adjustment to the EAJA statutory fee cap of $125 per hour. The Workers assert that the cost of living adjustment should be calculated using Consumer Price Index data compiled by the Labor Department’s Bureau of Labor Statistics.
See
Pis.’ Application at 26
(citing Allegheny Bradford
*1367
Corp. v. United States,
The Workers note that the CPI-U data for the Washington-Baltimore area that is closest in time to March 1996 is the data for November 1996, when the CPI-U was 100. By March 2004, it had risen to 118.1 (an 18.1% increase). By March 2005, it had risen to 122.7 (a 22.7% increase). And by March 2006, it had risen to 126.8 (a 26.8% increase). See Pis.’ Application at 26 & Exh. 7.
Although the Government opposes the award of a cost of living adjustment in principle, it does not quarrel with the data that the Workers use or their calculation of the adjustment. See Def.’s Response at 39-40. Accordingly, adjusted to reflect increases in the cost of living, the applicable EAJA statutory cap is $147.63 per hour for attorney hours expended in 2004, $153.38 per hour for hours expended in 2005, and $158.50 for hours expended in 2006. See generally Pis.’ Application at 26. 112
*1368 3. Expenses
In addition to an award of attorneys’ fees, the Workers also seek a total of $277.65 for expenses.
See
Pls.’ Application at 27; Pls.’ Exhs. 5-6, 8; Application for Fees and Other Expenses Pursuant to the Equal Access to Justice Act. In support of their request, the Workers have supplied the requisite “itemized statement,” including “a breakdown of expenses such as the amounts spent copying documents, telephone bills, mail costs and any other expenditures related to the case.”
See Naporano Iron and Metal Co.,
The documentation provided by the Workers supports their request for $7.80 for reproduction costs, $257.43 for long distance telephone charges, and $12.42 for courier costs — sums which seem eminently reasonable under the circumstances. See Pis.’ Application at 27; Pis.’ Exhs. 5-6, 8; Application for Fees and Other Expenses Pursuant to the Equal Access to Justice Act. Moreover, except to the extent that it maintains that no award of fees and expenses is appropriate (because, it contends, the position of the United States was “substantially justified”), the Government does not oppose the Workers’ request.
Accordingly, the Workers’ request for an award of $277.65 for expenses shall be granted.
III. Conclusion
The Court of Appeals has spoken eloquently to the importance of the EAJA in veterans’ benefits cases, beginning with the proposition that “ ‘[t]he essential objective of the EAJA [is] to ensure that persons will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in the vindication of their rights.’ ”
Kelly v. Nicholson,
There are powerful parallels between the statutory scheme governing veterans’ benefits and that governing trade adjustment assistance for workers whose jobs have been sacrificed to international trade, for the greater good of the nation.
See generally
section II.A.1,
supra, BMC,
That judicial review and representation by counsel can make a profound difference in the outcome of TAA cases is clear.
See BMC,
In short, what the Court of Appeals has said of the EAJA in veterans’ benefits cases applies with equal force in the context of trade adjustment assistance: “EAJA is a vital complement to ... [the TAA program] designed to aid ... [displaced workers], because it helps to ensure that they will seek an appeal when the [Labor Department] ... has failed in its duty to aid them or has otherwise erroneously denied them the benefits that they have earned.”
See Kelly v. Nicholson,
The plaintiff Workers and the other former employees of BMC have their pro bono counsel to thank for securing for them the trade adjustment assistance benefits that the Labor Department had previously twice denied them. For all the reasons discussed above, the Workers are also entitled to an award of attorneys’ fees and expenses under the EAJA, in a sum to be calculated in accordance with the principles set forth herein.
A separate order will enter accordingly.
Notes
. The Negative Determination similarly concluded that the Workers were ineligible for certification as service workers. According to that ruling:
Workers ... may be certified [as service workers] only if their separation was caused importantly by a reduced demand for their services from a parent firm, a firm otherwise related to their firm by ownership, or a firm related by control. Additionally, the reduction in demand for services must originate at a production facility whose workers independently meet the statutory criteria for certification, and the reduction must directly relate to the product impacted by imports. These conditions have not been met for workers at this firm.
See BMC,
. The Labor Department and other federal agencies historically have used the Standard Industrial Classification ("SIC”) system to classify businesses by the industry in which they are engaged, for statistical and other purposes.
See generally BMC,
. The Labor Department’s notice denying the Workers’ request for reconsideration further stated: "The petitioner also alleges that imports impacted layoffs, asserting that because workers lost their jobs due to a transfer of job functions overseas, petitioning workers should be considered import impacted."
See 69
Fed.Reg. at 20,642. As
BMC
noted, however, there are at least two problems with that statement.
See BMC,
First, the Labor Department investigator reviewing the request for reconsideration failed to ask BMC about the Workers’ claims of increased imports. There is therefore nothing in the record on the request for reconsideration to support an agency finding on the subject. And, second, the quoted statement improperly conflates two separate bases for TAA certification — increased imports
versus
a shift in production — and is simply illogical.
See BMC,
. As BMC observed, the Labor Department notice denying the request for consideration also reiterated the agency’s prior ruling that the Workers could not be certified as “service workers” — albeit based on a rather different rationale:
Only in very limited instances are service workers certified for TAA, namely the worker separations must be caused by a reduced demand for their services from a parent or controlling firm or subdivision whose workers produce an article and who are currently under certification for TAA. The investigation revealed no such affiliations.
(Emphasis added.) But, as
BMC
explained, the agency materially misstated the test for certification as “service workers.”
See generally BMC,
30 CIT at — n. 21,
. The Workers’ Application mistakenly states that the Workers submitted “photographic evidence of shrink-wrapped BMC software on CDs” with their request for reconsideration. See Pis.’ Application at 4. As discussed above, the copies of photos instead were included with the Complaint filed with the court.
. The Labor Department had advanced similar views — articulated in varying formulations — in a number of cases filed with the court in recent years involving software and similar "intangible” goods. Because BMC in fact sells its software “prepackaged” in "shrink wrap form” as well as electronically ("in object code form”), the Workers in this case qualified for TAA certification even under the criteria that the Labor Department was applying at the time. Accordingly, there was no need to reach the substantive merits of those criteria in this case, except to note that the Workers vigorously disputed them, and that the agency has since repudiated them in significant part.
See BMC,
. See Remand Order (Aug. 11, 2004); Plaintiffs' Comments on Defendant’s Determination on Remand; Defendant's Response to Plaintiffs' Comments in Response to Labor's Remand Determination; Letter to Defendant from the Court (Feb. 4, 2005); Defendant's Memorandum of Law in Response to the February 4, 2005 Order; Letter to Court from Plaintiffs (Feb. 11, 2005); Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Comments on Remand Results; Letter to Parties from Court (May 12, 2005); Defendant’s Memorandum of Law in Response to the May 12, 2005 Order; Letter to Court from Plaintiffs (May 19, 2005).
. Except as otherwise indicated, all statutory citations are to the 2000 edition of the United States Code. However, the text of the referenced provisions remained the same at all times relevant herein.
. See Pls.’ Reply at 1 n. 1 (noting that "the government has implicitly conceded that Plaintiffs qualify as prevailing parties' for purposes of EAJA”).
. The EAJA’s "special circumstances” exception to an award of fees and expenses serves as a " ‘safety valve’ [which] helps to insure that the Government is not deterred from advancing in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts. It also gives the court discretion to deny awards where equitable considerations dictate an award should not be made.”
Devine
v.
U.S. Customs Service,
.
Accord Praseuth v. Rubbermaid, Inc.,
.
See, e.g., Former Employees of Sonoco Prods. Co. v. Chao,
. BMC quoted a Wall Street Journal article which emphasized the importance of conscientious implementation of the TAA program:
Calling attention to workers hurt by trade is uncomfortable for free traders. They prefer to focus on benefits of low-cost imports and high-paying export jobs. But the only way to persuade the public and politicians not to erect barriers to globalization and trade is to equip young workers to compete and protect older workers who are harmed. Creating programs with a few votes in Congress, and then botching the execution, doesn't help.
David Wessel, "Aid to Workers Hurt by Trade Comes in Trickle,”
Wall Street Journal,
Aug. 11, 2005, at A2 (emphasis added)
(quoted in BMC,
.See generally Karnas v. Derwinski,
See also Littke v. Derwinski,
As Littke correctly observes:
By assisting the claimant in developing pertinent facts, from whatever source, ... the VA will more adequately fulfill its statutory and regulatory duty to assist the veteran. A well developed record will ensure that a fair, equitable and procedurally correct decision on the veteran’s claim for benefits can be made.
Littke,
. All citations to regulations are to the 2003 edition of the Code of Federal Regulations. However, the text of the referenced provisions remained the same at all times relevant herein.
.
See also, e.g., Woodrum v. Donovan, 4
CIT 46, 55,
.
See Hodge v. West,
.
Compare
38 C.F.R. § 3.103(a) (“it is the obligation of VA ... to render a decision
which grants every benefit that can be supported in law while protecting the interests of the Government”)
(emphasis added);
Barrett v. Nicholson,
. See also Lady Kelly, Inc. v. U.S. Sec’y of Agriculture,
Compare Akles v. Derwinski,
.
See generally United Glass & Ceramic Workers v. Marshall,
.
Cf. UAW
v.
Marshall,
. Even if BMC had given an unequivocally affirmative response to the agency's inquiry (stating that the Workers did not produce an article), and even if the record had contained no contrary evidence, the Labor Department nevertheless would not have been entitled to base a denial of the Workers' TAA petition on the information supplied by the company, because the agency’s question was itself defective.
As
BMC
noted, “[i]n its initial investigation of the Workers’ petition, the Labor Department asked BMC the 'ultimate question': 'Do the workers in BMC Software, Inc., Houston, TX ... produce an article of any kind or were they engaged in employment related to the production of an article? If workers do produce an article, please explain, and what is the product?' ”
BMC,
In the case at bar, it was unreasonable for the Labor Department to leave it to a BMC official to determine what constitutes “production” of an “article” for TAA purposes in the context of the software industry. Instead, the agency was obligated to frame specific questions in terms of the criteria that the agency was assertedly applying at the time in cases such as
this
— i.e., whether the company's software was mass-replicated on physical media (such as CDs, tapes, or diskettes) and whether it was widely marketed and commercially available
(e.g.,
packaged for “off-the-shelf” sale) — to elicit from the company factu
*1307
al information which the agency could then use to determine whether the Workers were engaged in “production” of an "article.”
See generally BMC,
The Labor Department's criteria for certification in the software industry were not set forth in any statute, regulation, or agency policy statement. Only upon issuance of the agency’s determination denying their request for reconsideration did the Workers learn that the agency’s criteria for TAA certification required that an “article” be “tangible,” and that the agency interpreted the TAA statute to exclude software that is “electronically transmitted.”
See BMC,
. The Government intimates that the Labor Department's investigatory efforts in this case were constrained by "the statutory time-frame,” and seeks to make much of the fact *1308 that "[n] either the statute nor the regulations provide for any extension of the timeframe for issuing a determination” on a TAA petition. See Def.'s Response at 19.
But the administrative record wholly undermines any suggestion that the Labor Department's investigation here was “a race against the clock.” As
BMC
pointed out, ”[t]he entirety of the Labor Department's initial investigation ... consisted of a mere five questions (all of which were either very basic, or conclusory, or both), posed to BMC’s Senior Manager for Human Resources.... The record reveals that the agency made no effort whatsoever to follow up with company officials (via telephone or otherwise) — even though the company's responses to the Labor Department's few substantive questions were non-responsive, ambiguous, and/or inconsistent with other information on the record, and thus begged for clarification.”
BMC,
The Government simply cannot credibly claim that the Labor Department's "shockingly cursory process” in this case consumed any significant part of the 40-day period that the statute provides for the investigation of a TAA petition.
See BMC,
Moreover, although the Labor Department is required by statute to reach an initial determination on a TAA petition within 40 days, there is no statutory time limit for agency determinations on requests for reconsideration. Nevertheless, as
BMC
noted, "the [Labor Department’s] investigation conducted in response to the Workers' request for reconsideration was little more than a rubber stamp of its initial denial. The Labor Department’s reconsideration consisted — in toto — of a single phone conversation with BMC's Senior Manager for Human Resources (the same company official who had responded to the agency’s initial questions). That conversation was in turn documented by the agency investigator in a memorandum that consisted of a total of five sentences, in a mere five lines of text.”
See BMC,
It is true that, as the Government notes, the Labor Department’s own regulations require that the agency make an initial determination on a request for reconsideration within 15 days of receipt of the request. See Def.'s Response at 38 (citing 29 C.F.R. § 90.18(c)). However, if that is too little time to conduct a proper investigation, it is within the agency’s power to amend its regulations. The agency has taken no action to do so. The agency also could have asked the Workers here to agree to an extension of time, if necessary. But the agency did not do so. Further, having wasted virtually all of the initial 40-day statutory period provided for the initial investigation of a TAA petition, the Labor Department should not now be heard to complain that it lacked sufficient time to properly investigate the Workers' request for reconsideration. That is classic "boot-strapping.” Squandering the time allotted for the initial investigation effectively increased the agency’s scope of work at the stage of the request for reconsideration— but the agency has no one but itself to blame for that.
In any event, the bottom line is that it is absurd to suggest (as the Government does) that the Labor Department’s investigation of the Workers’ request for reconsideration— which consisted of a brief phone call from the agency to BMC, as discussed above — consumed any significant portion of the 15 days allowed by regulation for the conduct of that investigation.
In short, contrary to the Government’s claims, the Labor Department cannot hide behind statutory and regulatory time limits to excuse its failure to adequately investigate the Workers' TAA petition in this case.
. As discussed above, the Government is not entitled to make credibility judgments without further inquiry under the circumstances of this case in any event. But it is also worth noting that the administrative record here is devoid of any explanation of the agency’s rationale for crediting information supplied by BMC over that provided by the Workers.
Cf. Inter-Neighborhood. Hous. Corp. v. NLRB,
Moreover, as the Supreme Court has observed, the trial courts have unique insight into whether "particular evidence was worthy of being relied upon.”
See Pierce v. Underwood,
. It is — in a word — unseemly for the Government to essentially "blame the victim” for failing to adduce evidence to meet criteria of which the victim had no knowledge. It is particularly egregious for the Government to attempt to do so here for the sole purpose of trying to shift the blame from the Labor Department for the two patently inadequate investigations that it conducted in this case.
It is all the more troubling that the Government would stoop to criticizing petitioning workers in a situation such as this for not coming forward with evidence, when the Labor Department has routinely failed even to criticize — much less take any legal action against — company officials who affirmatively provide demonstrably false or misleading information to the agency in the course of TAA investigations.
See generally BMC,
. The Government’s argument also wrongly assumes that the photos attached to the Workers’ Complaint were the Labor Department’s first clue that BMC produced a tangible "product.” To the contrary, as discussed elsewhere herein, there was earlier evidence supportive of that fact in the administrative record. But the agency either overlooked or affirmatively chose not to pursue that information.
See, e.g., BMC,
. The Workers drive this point home in their Reply:
*1313 [The Workers’] arguments and the Court’s criticisms of Labor’s actions primarily concern [the Labor Department’s] omissions and inactions, as a matter of practice and in this case in particular, in formulating its meager administrative record, and not the subsequent legal position formed from interpreting or understanding that meager administrative record.... [I]t is precisely Labor's failure to investigate and form a sufficient record that is without substantial justification....
... If Labor could argue that its legal positions were substantially justified whenever it evaluates what is in the record, no matter how limited or inadequate that record, it would create a dangerous incentive for administrative agencies to engage in even more perfunctory investigations than is already the case....
This absurd result is no straw man. [The Government's] Response admits that Labor essentially chose to stay ignorant of facts that were clearly discoverable through a modicum of investigation....
In essence, [the Government] suggests that Labor’s legal positions were substantially justified even though they relied on an administrative record that lacked essential, readily-available information, because the jobless TAA petitioners were responsible for spoon-feeding Labor ... all relevant information. The Court has clearly disagreed with this characterization of Labor’s TAA obligations as so limited.
Pls.’ Reply at 2-4 (footnote omitted).
. The conclusion that the Government’s position at the administrative level was not substantially justified is buttressed by the Labor Department’s "track record” in other TAA cases filed with the Court of International Trade in recent years.
See Pierce v. Underwood,
Strong language criticizing the Government’s position in an opinion on the "merits” of a case has also been held to be evidence in support of an award of fees.
See Marcus v. Shalala,
.
See also BMC,
. The Government notes in its Response that "[i]f the opposing party objects to the number of hours proffered, that party must, through affidavit or brief, provide notice with sufficient specificity to the fee applicant the portion of the fee petition which must be defended.”
See
Def.'s Response at 31
(citing Walton
v.
Massanari,
.
See, e.g., Bell
v.
United Princeton Properties,
. As a practical matter, billing judgment may be exercised either when an attorney's time is recorded (i.e., when the attorney decides whether to record time spent on an activity, or whether to essentially "write it off”), or when a billing statement is prepared (i.e., when the billing attorney reviews all records of time recorded as chargeable to a particular client account, and decides whether to "write off” any of that time).
Review of the Itemized Billing Statement included with the Workers' Application reveals the exercise of billing judgment by counsel in this case. As one example, in a number of instances, an attorney recorded time spent meeting with another attorney; but there is no parallel billing entry for the second attorney, because the second attorney's time was "written off” (either by the second attorney, or — subsequently—by the billing attorney).
But see Role Models America,
. The Itemized Billing Statement submitted as Plaintiffs’ Exhibit 5 reflects time charged at the EAJA rate of $125 per hour, while the Itemized Billing Statement submitted as Plaintiffs’ Exhibit 6 reflects time charged at the standard billing rates that the law firm charges to paying clients.
As is common practice, a billing entry cu-mulates the time for all tasks billed by an individual to the client account on a given day.
But see Role Models America,
. Apart from its discussion of the Workers' claims for enhanced fees for "special factors” and a cost of living adjustment, the Government devotes a mere three-and-one-quarter pages to case-specific analysis and argument concerning the appropriate size of the Workers’ award. See Def.'s Response at 27-29, 32-33.
. The Reply filed by the Workers here left something to be desired as well.
See generally Interfaith Community Organization,
.
See also Portland Audubon Society v. Lujan,
. The Government begins its argument inauspiciously, by fundamentally mischarac-terizing the position taken by the Workers in their Comments on Defendant's Determination on Remand. Contrary to the Government’s assertion, the Workers did not "indi-care] that they accepted Labor’s certification determination.” See Def.'s Response at 29. Instead, the Workers advised that, while they were "generally satisfied” with the remand outcome itself, they were dissatisfied with the language of the Notice of Revised Determination on Remand, because it did not reflect certain assurances that the Government had previously given. The Workers therefore asked that the Court "expressly order, in accordance with Defendant’s [previous] representation, that Plaintiffs, having been certified, are entitled to receive full TRA benefits, regardless of the date of their certification.” See Plaintiffs' Comments on Defendant’s Determination on Remand. As detailed below, the Government’s response to that request for relief by the Workers is what triggered the post-certification briefing to which the Government here objects.
. The Government intimates that the post-certification briefing prevented the Workers from applying to state authorities for, and receiving, their individual TAA benefits. See Def.'s Response at 29 (asserting that "[i]t can hardly be reasonable to conclude that [the Workers] would prefer to wait an additional year for extended briefing over an issue that was irrelevant to certification than to have Labor's certification determination sustained so that they may present the certification to the relevant state agencies for issuance of benefits”). The Government is simply wrong.
As documents filed in this action demonstrate, the Workers were proceeding with the application process at the state level, in parallel with the post-certification briefing. See, e.g., Letter to Court from Plaintiffs (May 19, 2005) (detailing the numerous challenges the Workers were encountering in obtaining their TAA benefits through the Texas Workforce Commission, but noting that some of the Workers had already been permitted to enroll in training programs).
. At various points, the Government charges the Workers' counsel with “unexplained and continuing efforts to prolong senselessly the litigation,” and asserts that they "senselessly delayed litigation,” when they "could have resolved the litigation expeditiously.” See Def.'s Response at 22, 28, 38-39. However, as detailed herein, the work by the Workers' counsel that the Government targets was entirely justified. There is, therefore, no cause here to "reduce the amount to be awarded ..., or deny an award” because the prevailing party "engaged in conduct which unduly and *1322 unreasonably protracted the final resolution of the matter in controversy.” See 28 U.S.C. § 2412(d)(1)(C); see also 28 U.S.C. § 2412(d)(2)(D) (providing that “fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings”).
. See also Letter to Court from Plaintiffs (Feb. 11, 2005) ("Given the Government’s representation, Plaintiffs consented to an extension of time, expressly predicated on their belief that, should they prevail, they would not be prejudiced as a result of [that extension]”).
. See generally Defendant’s Response to Plaintiffs’ Comments In Response to Labor’s Remand Determination, at 3 (arguing that "although Labor confirms that the delay from litigation will not affect the calculation of benefits ..., the Court lacks the authority to dictate whether the petitioners will, in fact, receive ‘full’ TRA benefits,” and characterizing as “inappropriate” the Court’s inquiry into the effects, if any, of litigation delays on relief ultimately available in a TAA case).
. See Remand Order (Aug. 11, 2004); Plaintiffs' Comments on Defendant’s Determination on Remand; Defendant’s Response to Plaintiffs' Comments in Response to Labor's Remand Determination; Letter to Defendant from the Court (Feb. 4, 2005); Defendant’s Memorandum of Law in Response to the February 4, 2005 Order; Letter to Court from Plaintiffs (Feb. 11, 2005); Plaintiffs’ Reply to Defendant's Response to Plaintiffs’ Comments on Remand Results; Letter to Parties from Court (May 12, 2005); Defendant's Memorandum of Law in Response to the May 12, 2005 Order; Letter to Court from Plaintiffs (May 19, 2005).
. The Government's suggestions to the contrary are at odds with reality and with the record in this action as well as those in other TAA cases filed with the Court of International Trade in recent years. The Government states, for example, that "there was no evi
*1323
dence whatsoever ... that the state agency administering benefits would deviate from [the] position [that delays in certification would have no effect on the Workers’ benefits].”
See
Def.’s Response at 22. But the Government ignores the fact that workers in other cases in fact
had
experienced serious problems as a result of delayed certification.
See generally BMC,
. It is thus disingenuous for the Government to dismiss the Workers’ fears as worries about the potential for “miscalculation of benefits” by state authorities. See Def.’s Response at 28-29 (emphasis added). The Workers were worried — and quite properly so — not that Texas Workforce Commission personnel would "miscalculate]” their benefits, but rather that the delays in the Labor Department’s certification would effectively operate to deprive the Workers of some of the benefits to which they were otherwise entitled.
The Government's assertion that the Workers’ concerns were "irrelevant to certification” is even more absurd. See Def.'s Response at 22, 29; see also id. at 39 (characterizing Workers’ concerns as "irrelevant to the substance of Labor's determination”). The Government cannot argue with a straight face that a diminution in benefits directly caused by delays in certification attributable to the Labor Department and to counsel for the Government is "irrelevant to certification.” The Workers have no interest in certification as an end in itself; certification is simply the means to an end — specifically, the receipt of TAA benefits. If delays in certification operated to effectively deprive the Workers of benefits, certification would be a pyrrhic victory indeed.
.
See generally Tyco,
. Of course, the work at issue here is not post-judgment work, but — rather—post-certifi cation work. That fact only strengthens the Workers’ claim. And, notwithstanding the distinction, cases analyzing post-judgment work are instructive on the merits of the Government's challenge in this action.
.
See also Northcross v. Bd. of Ed. of Memphis City Schools,
.Specifically, Plaintiffs' Comments on Defendant’s Determination on Remand — like Defendant’s Response to Plaintiffs’ Comments in Response to Labor’s Remand Determination — were filed in accordance with the Court's Remand Order, as well as the Order of October 13, 2004 (which granted the Government’s motion for an extension of time for the filing of the Labor Department’s remand results, and amended the deadlines for the parties’ related submissions). The Workers' letter to the Court dated February 11, 2005 *1325 was in response to (and was invited by) the Court’s letter of a week earlier. Plaintiffs' Reply to Defendant’s Response to Plaintiffs' Comments on Remand Results was filed pursuant to the Order dated February 3, 2005. And, finally, the Workers’ letter memorandum dated May 19, 2005 was in response to (and was invited by) the Court's letter to the parties of May 12, 2005.
. Although there is no need to decide the issue here, it is far from clear that the extent of the benefits available to a group of petitioning workers pursuant to a Labor Department TAA certification is a matter for the state courts (rather than the Court of International Trade), as the Government has argued here and in other cases.
The statutory scheme generally contemplates that state courts will resolve disputes concerning a state's administration and implementation of a Labor Department group certification — such as disputes concerning the coverage of a particular individual worker under a Labor Department group certification, as well as disputes concerning a particular individual worker's compliance with preconditions to eligibility for specific types of benefits available under the group certification. See generally 19 U.S.C. § 2311(d). But issues concerning the overall scope and effect of the Labor Department’s certification of a group of petitioning workers are a very different matter. In other words, the issue is not what benefits a particular individual worker will or will not receive (the administration and implementation of a group certification). Rather, the issue is the scope, meaning and effectiveness of the group certification itself— for all of the workers potentially covered by that group certification.
. Fortunately, there was ultimately no need here to test the limits of the Court's jurisdiction
vis-a-vis
that of the state courts.
See generally BMC,
. It is, in general, inappropriate for the Government to merely cite "examples,” and effectively delegate to the Court the work of analyzing all billing entries line-by-line in an effort to identify other entries that the Government might find similarly objectionable. See generally sections II.B & II.B.l, supra. It is particularly inappropriate here, because— quite apart from the trespass on the Court's time — the Court cannot know what the Government considers to be unduly "vague." Federal judges are not required to be telepathic.
.As noted in section II.B.l above, the Government consistently and inexplicably fails to identify the dates of the billing entries that it quotes, or to cite to the pages of the Workers' Application where those entries appear.
In any event, review of the Workers' Application discloses that entries dated July 22, 2004 and July 28, 2004 include time devoted to "telephone calls, e-mails and meetings regarding TAA issues." An entry dated July 28, 2004 reports time spent in "discussions ... regarding case management." And an entry dated December 16, 2004 reports time spent on "discussions ... regarding getting visibility for TAA software cases."
. Contrary to the Government's intimations, however, inadequate documentation only rarely results in wholesale denial of a fee application. See Def.’s Response at 29 (arguing that "[a]n application for EAJA fees may be denied ... where an applicant provides only vague descriptions of activities”).
”[T]he recordkeeping requirement should not be imposed in a draconian manner.”
Action on Smoking & Health,
. The Government’s Response does state generally that vague descriptions in billing records "provide no guidance ... in determining whether attorney time was reasonable and necessary.” See Def.'s Response at 30. However, that statement appears only as part of a "boilerplate” summary of certain general principles of law in cases under fee-shifting statutes, which precedes the section of its brief in which the Government argues this case. See Def.'s Response at 32 (analyzing case at bar, starting with paragraph beginning "In this case ...”).
.
See generally Davis v. City and County of San Francisco,
See also In re Synthroid Marketing Litigation,
.
See also Powers v. Comm’r of Internal Revenue Service,
. Although not required to do so, the Court analyzed the Workers' Application and identified a total of nine meetings convened to discuss "the status of the case” (or some similar phrasing). By any measure, that is not an unreasonable number of "status meetings” in a case that was actively litigated for more than eight months, and in which litigation spanned more than two years.
*1330 Scrutiny of the Workers’ Application reveals another seven or so "conversations among three or more attorneys" (including phone calls, as well as meetings), without regard to the phrasing of the entries or the subject of the communication. Again, by any measure, that does not reflect excessive consultation among the members of the Workers' litigation team.
As an aside, it is worth noting that the Government's objection to "conversations among three or more attorneys” is, in certain respects, unusual. In fee-shifting cases involving three or more attorneys representing a single client, the more common argument is the claim that the fee applicant's attorneys were inefficient because they were
not
parties to a single conversation and instead communicated by "relay" — that is, where (rather than having a single conversation including Lawyers A, B, and C) Lawyer A instead conferred only with Lawyer B, and then Lawyer B conferred with Lawyer C.
See, e.g., Bell v. United Princeton Properties,
As discussed immediately above, the bottom line is that the Government's allegations of overstaffing in this case are without foundation. And review of the Workers' Application demonstrates that the Workers' claims for meetings and conversations among counsel are well within the bounds of reason, and are justified by the size, complexity, and scheduling of the remand investigation (and, to a lesser extent, the litigation), and particularly by the proactive role that the Workers’ counsel played early in the remand proceeding.
. There is no small irony in the Government’s claim here that this was not a complex case. That assertion is at least somewhat in tension with other positions that the Government has taken in this litigation.
Essentially the Government argues that "either this was a straightforward case, in which counsel's time and expertise was misspent" (the argument that it makes here, in an effort to prune counsel’s hours),
or
the Government argues that this was a somewhat challenging, time-consuming case (the argument that the Government at least implicitly made in requesting an extension of time for the filing of the remand results, and — more recently, in its Response to the Workers' Application — in asserting that the Labor Department’s position was "substantially justified,” albeit incorrect). Logically, the Government cannot have it both ways.
Cf. Edwards v. Griepentrog,
.
See also Former Employees of Tesco Tech., LLC v. U.S. Sec’y of Labor,
. The Labor Department has failed to make the standards that it is applying in the software industry generally accessible by publishing them in a regulation or in some sort of policy statement or other guidance document. Thus, anyone attempting to ascertain the applicable standard — or to determine how a particular standard was being applied, or whether it was being consistently applied— has had no choice but to conduct fairly exhaustive research, identifying and then reviewing (and comparing) relevant agency determinations in the Federal Register, briefs submitted by the Government in relevant cases, and judicial opinions issued in those cases (quite a time-consuming endeavor).
.See also Former Employees of Internat’l Business Machines Corp. v. U.S. Sec’y of Labor,
. There is thus no truth to the Government’s assertions that "[t]his case involved a simple matter of whether Labor adequately investigated the information provided by the petitioners and the subject facility to determine whether an article was produced,” and that "no peculiar research or legal development was necessary.” See Def.’s Response at 28. As detailed above, it was indeed a "simple matter” to determine whether the Labor Department had adequately investigated the Workers’ TAA petition; the inadequacy of the investigation was immediately and abundantly apparent from even a cursory review of the Administrative Record. But the scope of counsel's obligation to the Workers was much greater than the Government suggests.
Counsel’s charge was to do everything possible to ensure that the Labor Department certified the Workers for any TAA benefits to which they were entitled, as rapidly as possible. And, as outlined above, neither the legal research nor the development of the facts was a “simple matter” here — with the obvious exception of establishing that BMC did, indeed, produce "prepackaged” software on a "shrink wrap” basis (z.e., software on physical media).
. For the reasons summarized above, speed is critical in the resolution of all TAA cases. But it is particularly important in cases where, as here, the Labor Department has failed not once but twice to conduct the thorough investigation that is mandated by both the TAA statute and the agency's own regulations.
The facts of this case are all the more compelling because — at the time the Labor Department issued its initial denial — the agency failed to notify the Workers of their right to challenge that determination in court, and instead advised them only of the process for seeking administrative reconsideration.
*1333
See BMC,
. In some cases where prevailing litigants opt to be represented by counsel who are not local (even though appropriate representation is available locally), fees that are attributable to the distance between the litigants and their counsel may not be taxable under fee-shifting statutes.
Cf. Ramos
v.
Lamm,
.
See also Norman v. Housing Authority of City of Montgomery,
. "While duplication of effort is a proper ground for reducing a fee award, 'a reduction is warranted only if the attorneys are
unreasonably
doing the
same
work.' ”
Jean
v.
Nelson,
.
See, e.g., Glover v. Johnson,
. See generally Lipsett v. Blanco, 975
F.2d 934, 939 (1st Cir.1992) (noting that the reasonableness of staffing is best left to trial court, which has "intimate, first-hand knowledge of a particular case’s nuances and idiosyncrasies”) (citation omitted);
New York State Ass’n for Retarded Children, Inc. v. Carey,
.
Accord Praseuth v. Rubbermaid,
Just as the Government runs certain risks if it engages in "scorched earth” litigation tactics, it runs similar risks if an agency shirks its duties at the administrative level. For example, where — as here — the Labor Department is guilty of gross dereliction of its duty to investigate a TAA petition, the Government assumes the risk of being required to bear the attorneys' fees incurred when counsel representing the petitioning workers undertake to (essentially) fulfill the obligations on which the agency defaulted.
. Particularly in light of the incompetence and/or indifference that the Labor Department displayed both in its initial investigation and in its reconsideration of the Workers’ TAA petition, and in light of the importance of the timely receipt of TAA benefits, the Workers' counsel were not required to take a "wait and see” approach, deferring all work on the case until after the agency completed its remand investigation. The Workers’ counsel could not afford to gamble the Workers' solvency and health on the assumption that— when it comes to TAA investigations — "the third time is a charm,” and the Labor Department would finally conduct a proper investigation and reach a correct result. The Workers' counsel had to assume the worst. They had to assume that, like the agency’s two previous investigations, the remand investigation would also be flawed, and that the agen *1336 cy would yet again deny the Workers’ petition (presumably on some new ground).
In effect, the Government now seeks to judge, with the benefit of hindsight, the extent of the factual and legal research conducted by the Workers’ counsel. But that is an inappropriate standard. Even if some of the research never saw the light of day, the fact that it never became necessary to memorialize the research in memoranda filed with the agency or briefs filed with the Court does not mean that it was unreasonable for the Workers’ counsel to be prepared.
See, e.g., Wooldridge,
In somewhat analogous circumstances, the Court of Appeals for the D.C. Circuit declined to reduce fees, noting that "[t]he fact that [counsel’s] legal research bore no fruit is no reason to deny them fees for the time spent on this work....
[C]ounsel correctly recognized that there was no guarantee that their motion would be granted merely because it was unopposed.
Therefore, it made good sense for them to research the issue.”
Wilkelt
v.
Interstate Commerce Comm’n,
. As with its other objections to the Workers’ Application, the Government here fails to specify the date of the billing entry that it quotes. Indeed, the Government fails even to provide a citation to the relevant page of the Workers' Application. See section II.B.l, supra.
. In addition to the July 25, 2004 billing entry, the Government points to two other asserted examples of "excessive and presumptively unreasonable” research — "hours allegedly expended conducting 'meetings on TAA issues,’ ” and "multiple hours of 'reviewing' orders and decisions” issued in this case. See Def.’s Response at 32. However, contrary to the Government’s assertion, neither of those types of work constitutes "research” — "excessive and presumptively unreasonable,” or otherwise.
*1337 The Government cites no specific billing entries for either "meetings on TAA issues” or "review[ ]" of "orders and decisions” which it contends are unreasonable. And, as discussed in greater detail above, it is not the duty of the Court to make the Government's case for it. See section II.B.l, supra.
In any event, scrutiny of the Workers' Application identifies eight entries which include time spent “reviewing” orders or decisions issued by the Court: (1-2) two entries dated August 10, 2004; (3) an entry dated August 11, 2004; (4) an entry dated February 3, 2005; (5) an entry dated February 4, 2005; (6) an entry dated February 9, 2005; (7) an entry dated May 12, 2005; and (8) an entry dated September 2, 2006. Those eight entries account for a total of six hours of billed time; and — in most instances — -the entries include time spent on tasks in addition to " 'reviewing' orders and decisions,” which means that the actual total time devoted to such review was substantially less than six hours. Consideration of each of the entries individually, as well as all eight entries as a whole, compels the conclusion that the Workers' counsel did not devote excessive time to the task. Surely the Government does not contend that counsel should not have reviewed the rulings of the Court in this case. And since law firms customarily bill their clients for such work, it is also compensable here.
See generally Davis v. City and County of San Francisco,
Similarly, other than the meetings analyzed in section II.B.l.d above (which discusses the Government's challenge to the Workers' representation by multiple attorneys), review of the Workers’ Application identifies only three entries which reflect time spent in “meetings on TAA issues” (or some similar phrasing): (1) an entry dated July 22, 2004; (2) an entry dated July 28, 2004; and (3) an entry dated April 19, 2005. Because the first two of those three entries include time devoted to activities in addition to meetings, the actual time spent in meetings was significantly less than the total of six hours of work that the three entries reflect. Moreover, whether judged in isolation or in conjunction with the meetings convened to discuss the status of the case (See n. 57, supra), that is not an unreasonable number of meetings in a case of this significance, magnitude, complexity, and duration.
. The Workers' Application includes a total of 15 billing entries which include legal research or review of caselaw, excluding the five entries for research and drafting of the fee application itself. Because virtually all of those 15 entries reflect time devoted to activities in addition to legal research, the total of 37.5 hours significantly overstates the actual time devoted to legal research.
. Although the Government raises no challenge to "background research” conducted in this case (See Def.’s Response at 32-33), it asserts generally that “time spent familiarizing oneself with the general area of law at issue would normally be absorbed into [a] firm's overhead. Attempting to charge an adversary with time spent conducting background research is presumptively unreasonable.” See Def.’s Response at 31
(citing, inter alia, Case v. Unified School Dist.,
*1338
But, as the Government apparently concedes, the general principle to which it refers has no application in circumstances such as these. In the absence of a client base — or at least a
potential
client base — with a need for counsel specializing in TAA law, no law firm can reasonably be said to have a vested self-interest in developing and maintaining expertise in the field. And here, as in
New York State Ass’n for Retarded Children,
"[t]he background research performed ... was not of the sort needed to raise these attorneys to a level of competence shared by many experienced practitioners within an established field of specialization, which may well not be compensable, but was warranted rather to assist in establishing a new branch of specialization, one in which only a handful of attorneys had preceded them.”
See New York State Ass’n for Retarded Children,
In case after case, courts have noted the relationship between counsel’s level of expertise in the area of the law at issue and the number of hours billed. “A fee applicant cannot demand a high hourly rate — which is based on his or her experience, reputation, and a presumed familiarity with the applicable law — and then run up an inordinate amount of time researching that same law.”
Ursic v. Bethlehem Mines,
As discussed in greater detail below, the Workers’ counsel here are not claiming any special expertise in TAA law. See section II.B.2.a(l), infra.
Moreover, a trial court is generally entitled to "ample discretion” in "assessing the extent of ... background research appropriate for a given case.”
New York State Ass’n for Retarded Children,
. As discussed elsewhere above, it is generally insufficient for the Government to identify mere "examples” of the entries that it finds objectionable, and leave to the Court the painstaking work of combing the Itemized Billing Statement submitted with the Workers’ Application, line-by-line, in an effort to ascertain whether there are other entries that the Government might also find objectionable. See sections II.B & II.B.l, supra. Moreover, the Court cannot read the Government’s mind. The Court therefore cannot know with any confidence what the Government would deem to be "items ... [that] bear no direct relation to the litigation of [the Workers'] claims.” See Def.’s Response at 33.
. Here again the Government fails to provide specific cites to the Workers’ Application, much less identify the dates of the billing entries that are quoted. See section II.B.l, supra.
In any event, review of the Workers' Application indicates that the billing entries that the Government quotes are dated October 20, 2004 ("Telephone conference with attorney representing claimants in other TAA software case”), July 23, 2004 (“Research regarding federal government policy on alternative dispute resolution”), December 13, 2004 ("Discussions ... regarding publicizing plight of software workers who have TAA claims”), and July 19, 2004 ("Review and respond to emails on prospect for seeking congressional assistance with client’s TAA claim”).
. The same rationale applies with equal force to the four other billing entries which are similar to the October 20, 2004 entry quoted by the Government: (1) an October 16, 2004 entry ("Draft e-mail to counsel in other TAA software cases”); (2) an October 19, 2004 entry ("E-mail counsel in other TAA software cases regarding status”); (3) a November 9, 2004 entry ("E-mail counsel in other software TAA cases regarding CIT Judicial Conference developments related to TAA matters; e-mail others interested in same”); and (4) a January 24, 2005 entry ("Discussion with outside attorney regarding TAA software cases before the CIT”).
.
Accord Indep. Sch. Dist. v. Digre,
.In addition to the July 23, 2004 entry which the Government quotes, review of the Workers' Application reveals two other entries concerning the potential use of alternative dispute resolution to dispose of this matter — (1) a July 23, 2004 entry ("Meeting ... to discuss potential for arbitration of TAA case”), and (2) a July 23, 2004 entry ("Meeting regarding use of ADR”). For the reasons set forth above, there is similarly no reason to *1340 disallow the time reflected in either of those entries.
.
See also Glover v. Johnson,
But see, e.g., Role Models America,
. In addition to the December 13, 2004 entry which the Government quotes, review of the Workers’ Application reveals one other entry reporting time devoted to media relations work — a November 16, 2004 entry reporting a "[d]iscussion ... regarding getting visibility for TAA software cases.” For the reasons set forth above, the nature of the work provides no basis for disallowing the time recorded in that entry.
Again, it is not determinative whether the government relations work or media relations work actually contributed to the Workers’ ultimate success. Hindsight is 20/20. But "[t]he question is not ... whether in hindsight the time expenditure was strictly necessary to obtain the relief achieved. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed.”
Wooldridge,
. Here, as elsewhere, the Government has made no effort to identify those billing entries to which it objects, but — instead—proffers mere "examples.” See Def.’s Response at 33. As discussed above, however, there is no obligation on the part of the Court to do the work of the Government for it. See generally sections II.B & II.B.1, supra.
The Government has similarly failed to specify the dates of the billing entries that it quotes as examples of objectionable charges. Indeed, it has not even provided citations to the pages of the Workers’ Application where the quoted entries appear. See generally section II.B.1, supra.
The Government appears to be referring to a July 27, 2004 entry ("Routing and distribution of service copies of letter and proposed order to government and clients; researching and printing court rules re; time computation and service procedures”), and to an August 5, 2004 entry (“Organize materials and coordinate creation of case file in Records Department”).
. The Government makes no attempt to argue that the tasks at issue are purely clerical or secretarial (and thus presumed to be absorbed within a law firm's overhead). And a careful review of the two billing entries specified by the Government — as well as all others discussed in this section — discloses that the tasks listed therein may fairly be characterized as paralegal work.
See generally Lipsett v. Blanco,
. Even if the work is actually done by an attorney, it is nevertheless compensable only at a non-attorney rate. "It simply is not reasonable ... to bill, at [a lawyer’s] regular hourly rate, for tasks that a non-attorney ... could perform at a much lower cost.”
Davis v. City and County of San Francisco,
. The additional billing entries identified by the Court are: (1) a July 16, 2004 entry ("Filing for CIT password; researching case docket, court rules and forms”); (2) a July 20, 2004 entry ("Printing out case documents from docket database; preparation of draft PO subscriptions”); (3) a July 22, 2004 entry ("Preparation and filing of Motion, Order, PO Subscriptions, and Stipulation at Court of International Trade; service of government and clients; copying and organizing documents for case file”); (4) a January 18, 2005 entry ("Review CIT website for instructions on filing documents electronically ...; conference ... regarding attention to CIT filing issues”); (5) a February 11, 2005 entry ("Prepare service copies and a Certificate of Service for a BMC filing ...”); and (6) a February 15, 2005 entry ("Prepare service copies and a Certificate of Service for a BMC filing ...”).
One other entry, dated February 11, 2005, records time devoted to a "conference ... regarding CM/ECF procedures.” However, that entry cumulates time spent on numerous other — much more substantive — tasks, most of which are patently attorney-level work. It is clear from a review of the complete entry that the "conference ... regarding CM/ECF procedures” consumed but a tiny fraction of the total time memorialized in the entry. Accordingly, the time reflected in that entry is compensable at lawyers' rates. No deduction is necessary.
.See, e.g., Levernier,
. Neither party has directly raised the issue of the compensability under the EAJA of legal assistant/paralegal-type services, although even
Levernier
distinguished between the treatment of attorneys and non-attorneys.
See Levernier,
In any event, the differences between the EAJA's treatment of attorneys and non-attorneys were heightened with the Court of Appeals' issuance of Richlin mere weeks after the close of briefing on the fees issue in this matter. Nevertheless, neither party brought Richlin to the attention of the Court — not after the opinion issued, and certainly not during the pendency of the appeal. See generally Thomas R. Newman & Steven J. Ahmuty, Jr., Disclosing Adverse Authority, N.Y.L.J., Sept. 4, 2002, at 3 (discussing "the lawyers' responsibility to see to it that all relevant authorities are brought to the attention of the court, those supporting the position urged as well as those against it,” and noting that— "just as one would advise the court of a recently decided, or found, favorable case,” in fulfillment of counsel's duty to zealously represent the interests of his client — so too the ethical obligation of candor toward the court requires that counsel "disclose directly adverse authority not known to and cited by opposing counsel.”). See also ABA Model Rules of Prof'l Conduct R. 3.3 (2002), "Candor Toward the Tribunal.”
Counsel’s duties of disclosure "continue to the conclusion of [a] proceeding” and cover any legal authority "in the controlling jurisdiction” (including not only decisions of relevant appellate courts, but also decisions of the same court, courts of coordinate jurisdiction, and even lower courts).
See, e.g.,
ABA Model Rules of Prof’l Conduct R. 3.3(c) (duration of obligation to disclose); Newman & Ahmuty,
supra,
at 4 (definition of "controlling jurisdiction”); Angela Gilmore,
Self-Inflicted. Wounds: The Duty to Disclose Damaging Legal Authority,
43 Clev. St. L.Rev. 303, 308 (1995) (Rule 3.3 "dictates disclosure of cases decided by the same court or higher courts in the same jurisdiction”).
See generally Chevron I,
Cf. Jewelpak Corp. v. United States,
. Where the employment status of an individual changed during the course of the proceeding (for example, if a summer associate or law clerk who worked on this matter later joined the firm as an associate and continued to work on the matter), that fact (including relevant dates) should be indicated.
. As discussed above, the time of non-attorneys — including paralegals/legal assistants, law clerks, and summer associates — is com-pensable at the actual cost to the firm at the time the work was done. See section II.B.1.g, supra.
. The law on "special factors” in the Fifth Circuit, for example, places great emphasis on one aspect of the purpose of enhancing fees for representation where there is a "limited availability of qualified attorneys” — that is, the expectation “that by increasing the fee, the availability of lawyers [in the particular field at issue] ... will actually be increased.”
See Perales v. Casillas,
Other circuits have adopted similar formulations, although — in practice — the emphasis on different criteria varies significantly from one circuit to another.
.
See also Internat’l Woodworkers of Americas v. Donovan,
Cf. Thangaraja v. Gonzales,
But see Huffman v. Comm’r of Internal Revenue,
. The court nevertheless ultimately concluded in
Truckers United
that there was no need to decide whether "specialized expertise in the safety aspects of the trucking industry” constituted a “special factor,” reasoning that — in any event — such expertise had not been "needful for the litigation in question.”
See Truckers United for Safety,
. There is some early caselaw to the contrary.
See, e.g., Douglas
v.
Baker,
. The Court of Appeals noted as well that the district court found no limited availability of qualified attorneys to handle immigration cases, and that plaintiff had been unable to identify anyone with a colorable claim who remained unrepresented. The Court of Appeals thus sustained the district court’s de-cisión not to grant a “special factors” enhancement, based on the district court’s determinations as to both “limited availability”
and
specialized skill or expertise.
See Perales v. Casillas,
. The Court of Appeals’ holding in
Atlantic Fish Spotters
rested on its conclusion that, whether or not expertise in “fisheries law” might conceivably justify a “special factors” enhancement in
some
case, such expertise was not "essential for competent representation” in the case there under review.
See Atlantic Fish Spotters,
. In addition to the cases cited in note 91 above, other cases recognizing areas of legal expertise as justification for "special factors” enhancements include
McDonald v. Bowen,
.Other cases rejecting particular specialties or areas of legal expertise as justifications for "special factors” enhancements include
Chynoweth v. Sullivan,
Cf. Estate of Cervin v. Comm’r of Internal Revenue,
. Cases refusing "special factors” enhancements on other grounds include
Atlantic Fish Spotters,
See also Baker v. Bowen,
. The Government asserts that it is “well-settled. that ... where knowledge of general administrative law enables an attorney [to] prosecute a case, courts have denied EAJA fees above the statutory cap.” See Def.’s Response at 35 (emphasis added) (citations omitted). The Government’s strategic use of the phrase "well-settled” could be read to be calculated to convey an impression of unanimity (or, at least, near-unanimity) — the impression that the law on legal expertise and "special factors” is a good deal more uniform and consistent than it actually is. See, e.g., n. 91, supra (cataloguing sampling of cases from Ninth Circuit cases in which "special factors” enhancements have been granted). As discussed above, however, counsel have a duty of candor toward the court; and misrepresenting the state of the law is potentially sanctionable conduct. See generally n. 87, supra.
. Notably, the
Tyco
plaintiffs did not contend that their lead counsel had any special expertise or skill in trade adjustment assistance law, or any "distinctive knowledge” of the industry at issue in that action.
See generally Pierce v. Underwood,
. The
Tyco
court noted that, as the Government there emphasized, the Court of International Trade encourages "any attorney admitted to practice before the court” to volunteer to represent TAA plaintiffs.
Tyco,
Not every attorney who volunteers is necessarily appointed to represent TAA plaintiffs. Moreover, as other courts have recognized, even if a particular expertise may justify a "special factors” enhancement in some cases, not every practitioner of that specialty would be entitled to an enhancement, and even those who may be found to be entitled to an enhancement in one case would not necessarily be entitled to an enhancement in every case.
See, e.g., Jean v. Nelson,
. In
In re Moulton,
the bankruptcy judge cited
Jean v. Nelson
for the proposition that "the Government’s unusually litigious position might constitute a special factor,” and noted that, in the case there
sub judice,
"the continuing litigation and defense by the Government of [the] totally indefensible conduct of the IRS may properly be considered as [a] 'special factor,' sufficient to warrant an enhancement” in addition to the cost of living adjustment granted by the court.
See In re Moulton,
In an unpublished order, the district court considered the Government’s objection that the case was distinguishable from
Jean v. Nelson,
because the court there had "found counsel’s legal position to be unusually litigious” (a finding that the bankruptcy judge did not make in the case at bar). The district court rejected the Government’s distinction and affirmed the ruling of the bankruptcy judge, stating that "neither
Jean
nor the EAJA preclude the Court from finding a special factor other than unusual litigiousness.”
United States v. Moulton,
Although the Bankruptcy Court cited Jean to support its position, it based its decision on the actions of the IRS, not government counsel. Given the IRS[’s] repeated, and *1358 unjustified harassment, the Bankruptcy Court properly found that the IRS's failure to abide by the injunction, even if inadvertent, was sufficiently egregious to constitute a “special factor” as contemplated under the EAJA.
In
Lyden v. Howerton
— another case, like
Pollgreen,
arising out of the Mariel boat lift— the court "[found] a number of 'special factors’ which warrant[ed] exceeding the statutory base” (then $75 per hour).
See Lyden v. Howerton,
In a somewhat cryptic footnote, the district court appeared to point the finger at the Government:
The exceptional and unusual circumstances of this case include[] the extreme delay by the government in proceeding with and finally disposing of this suit. This delay affords the court the opportunity to substantially increase the amount of the fee award. This may be accomplished either by increasing the EAJA fee by the cost of living ..., or by adjusting the “lodestar” upwards to take into account the time value of the money and the effects of inflation.... This authority provides an independent basis to support the increase in the EAJA fee provided herein.
Lyden v. Howerton,
In several other cases, courts in the Eleventh Circuit have expressly acknowledged
Jean v. Nelson
and
Pollgreen,
but have declined to apply them under the specific circumstances of the cases there at bar.
See, e.g., United States v. Aisenberg,
. As discussed below, caselaw in the Fifth Circuit and the D.C. Circuit has authorized enhancement of EAJA awards in certain situations involving extreme delay in the award or payment of fees.
See, e.g., Oklahoma Aero-
*1359
tronics, Inc. v. United States,
However, those Fifth Circuit and D.C. Circuit cases do not even cite — much less rely
on
— Jean
v. Nelson
or
Pollgreen,
and they reflect very different policy considerations. In the Fifth Circuit and D.C. Circuit lines of cases — unlike
Jean v. Nelson
and Pollgreen— the enhancement is intended to be essentially compensatory, not punitive.
See, e.g., Wilkett v. Interstate Commerce Comm’n,
Indeed, in three of the D.C. Circuit cases, the delay was attributable to the court itself.
See Oklahoma Aerotronics,
Further, although the Court of Appeals for the Fifth Circuit paid lip service to a "special factors” enhancement for delay in the award or payment of fees in
Baker v. Bowen
and
Perales,
it did not actually sanction such an enhancement in either case.
See Perales v. Casillas,
Moreover, in
Estate of Cervin,
the Court of Appeals for the Fifth Circuit was confronted with a claim for a "special factors” enhancement based on the Internal Revenue Service's " 'untenable' litigation positions,” which assertedly “complicated and prolonged” the underlying litigation.
Estate of Cervin,
. At issue in
Marcus v. Shalala
was the district court's calculation of the fee award including "a cost of living adjustment indexed at current rates, without regard to when the fees were incurred.... Thus, the same hourly rate was applied to all hours expended even though the work was performed over a number of years. The [district] court reasoned that such an adjustment was warranted because the delay involved in the case was ‘truly exceptional’ and was, therefore, a special factor.”
Marcus v. Shalala,
The Government objected, arguing that the district court’s methodology “was tantamount to an award of prejudgment interest which is precluded under
Library of Congress v. Shaw,
. As
Dixon
observed, both
Marcus v. Shala-la
and
Chiu
further opined that awarding enhanced fees for delay contravenes
Pierce v. Underwood’s
holding that "special factors” cannot be of "broad and general application.”
See Dixon,
.
Jean v. Nelson
speaks only in terms of the government’s "unusually unwavering and litigious position
throughout the litigation,”
and the potential for the government’s use of
“litigation
for any improper purpose such as harassment, unnecessary delay or increase in the plaintiffs' expense.”
See Jean v. Nelson,
The Court of Appeals’ recent opinion in
Centex
also casts a pall over the Workers’ claim, to the extent that it is based on the Labor Department’s initial investigations.
See Centex Corp.
v.
United States,
. The record compiled in the course of the Labor Department’s initial investigation and the record of its investigation following the Workers' request for reconsideration are particularly troubling. Those proceedings reflected a flagrant, wholesale violation of the agency’s duty to "marshal all relevant facts,” as well as its duty to "conduct [its] investigation with the utmost regard for the interest of the petitioning workers.”
See
29 C.F.R. § 90.12;
Internat’l Molders and Allied Workers’ Union v. Marshall,
. The Government also appears to suggest that a cost of living adjustment should be denied in this case because the EAJA "does not ‘absolutely require' it.”
See
Def.’s Response at 39-40
(quoting Baker v. Bowen,
The EAJA does not mandate a cost of living adjustment because there may be specific factual circumstances where an adjustment is not warranted — such as, for example, where little time has elapsed since Congress fixed the presumptive hourly rate specified in the statute, or where a fee applicant has failed to proffer evidence to support a cost of living adjustment.
See, e.g., American Wrecking Corp. v. Sec’y of Labor,
In light of the Congressional intent behind the cost of living provision (i.e., a recognition of the importance of preventing the erosion over time of the statutory rate established by Congress), if the Government wishes to oppose a cost of living adjustment in the event that a fee award is granted, the Government must articulate some specific, good faith reason why a cost of living adjustment is not appropriate under the facts of that case. It is not enough for the Government to say simply that such an adjustment is not required.
. See also Sisk, supra, at 128, 145 (noting that "courts routinely approve cost-of-living adjustments,” and that, in contrast to a "special factors” enhancement, "a cost-of-living escalation may properly be regarded as routine”).
. See generally Sisk, supra, at 128-32 (captioned "Adjustment of the .. [Statutory] Rate Cap for Cost-of-Living Increases Should Be Routinely Granted”).
. The statutory cap of $125 per hour became effective in March 1996.
See Atlantic Fish Spotters,
.
Compare, e.g., Tyco, 28
CIT at 1591-92,
See also, e.g., Miller v. Hotel & Restaurant Employees & Bartenders Union,
Cf. Chiu v. United States,