Marie Lucie Jean v. Alan C. Nelson

CLARK, Before KRAYITCH and *, Judges, Circuit and ESCHBACH Judge. Senior Circuit CLARK, Judge: Circuit chapter In another of what has been a long, complex, bitterly and contested law- suit, challenged the United States has pursu- award of fees and costs Equal ant to the Access to Justice Act (EAJA), Supplied 28 U.S.C. 2412. § decision, Court’s first EAJA — Underwood, -, Pierce v. U.S. (1988), S.Ct. 101 L.Ed.2d 490 we have concluded that district court did not finding abuse its discretion plaintiffs are entitled to an award of attor- fees, ney’s expenses and costs. But be- cause the district court’s calculation of the award is inconsistent with certain stan- dards set forth in and other case Pierce law, vacating we are its award and remand- ing the case for a recalculation award.

* Eschbach, designation. Honorable U.S. Cir- Jesse E. Senior Circuit, Judge sitting by cuit for the Seventh trial, After a six-week the district court

I. BACKGROUND by had violated the APA ruled INS Litigation on Merits A. failing engage rulemaking in formal be concerning this case are well The facts policy paroling revising appli fore Nelson, F.Supp. known. See Louis I, asylum. F.Supp. at cants Jean (Jean I); (S.D.Fla.1982) Nel Jean v. later, 993-97, days 1003-04. Ten the court (11th Cir.1983) (Jean son, 711 by separate declared order that deten banc, II), reh’g by vacated void, policy ordered re tion was Cir.1984) (Jean III), aff'd, 472 U.S. plaintiff pursuant to a lease class (1985) 846, 105 86 L.Ed.2d 664 S.Ct. plan in the order. Louis Nel detailed IV). (Jean purposes of the assess For (S.D.Fla. son, right plaintiffs’ attorney’s fees ing the 1982). The court also ruled that there was EAJA, we will detail and costs under support the plain insufficient evidence of their only the nature substance equal I, protection tiffs’ claim. Jean claims, judicial and the results —both 997-1002, F.Supp. at de 1004. extrajudicial they obtained. —that claim, clined to rule on the access “ostensi began challenge to the as a lawsuit bly because the issue mooted Immigration practice, instituted II, 711 F.2d release order.” Jean (INS), holding of Service Naturalization hearings plaintiff for the mass exclusion panel A of affirmed the this court district refugees. of It composed class Haitian concluding ruling, APA the court’s quickly into chal- evolved a broad-based detaining policy of undocumented Haitian detaining policy of the class lenge to INS’s refugees “rule” that had constituted new members, ap- during pendency the of their following without APA been formulated asylum, any possibili- plications for without rulemaking at procedures. Id. 1474-83. filed ty parole. complaint of The on June the panel reversed district court’s hold- counts, of 1981 contained seven four plaintiffs had failed to make ing by were dismissed the district intentional discrimination. out a case of Three re- February 1982.1 issues also panel at 1483-1502. reached Id. (1) the for trial: defend- mained whether claim, by merits the dismissed the the departure policy from the established ants’ court, the had class members aliens, paroling undocumented without right to receive notification been denied a rulemaking, the Adminis- formal viоlated they apply asylum. were entitled to (APA), Procedure Act 5 U.S.C. trative Finally, panel acknowl- at 1507-08. Id. (2) 553; unique manner whether § plaintiffs’ access claim was edged that the refugees treated violat- which-Haitian were possibility of the not moot because equal right protection to under ed their parole; class members’ INS would revoke Amendment, it amounted to a Fifth since to whether it ordered remand determine and national on race classification based were government’s access restrictions (3) origin; whether the class members and at 1508-09. unlawful. Id. unlawfully First Amend- denied their were banc,2 Sitting in held that the counsel, rights rela- ment of access to tives, originally presented to community. in Miami APA claim as and friends Clause; (3) pur- Due Process dismissed Fifth Amendment’s 1. In counts (1) regulations, plaintiffs claimed that defendants to the class members suant INS (INS individualized, attorney general) public had officials to exclusion were entitled appear prelimi- compelled plaintiffs (4) denying at hearing; the defendants plaintiffs nary were not in which the right interviews apply political permitted right nor Clause, advised to counsel of their asylum, Due in violation Process counsel, accompanied all in violation to be regulations. INS § INA Act, U.S.C. Administrative Procedure rules, granting rehear- Pursuant to our 555(b); (2) defendants § failure opinion. ing panel 11th banc vacated notify rights at- procedural class members of court, however, Cir.R. 35-11. The banc hearings violated tendant to their exclusions panel adopted the and district court statements Immigration and Na- regulations, INS’s own III, 727 F.2d at 962. (INA), the facts. See Jean tionality § Act 8 U.S.C. district court granting parole had become moot because the statute authority to the longer subject class members were no general, 1182(d)(5)(A), attorney 8 U.S.C. § detention, pursu- unless such detention was 212.5, and 8 C.F.R. did not include race § regulations ant to promulgated by new INS origin or natural as factors relevant to a subsequent to the district court’s decision parole determination, prohibited INS regulations, in Jean I. These see 8 C.F.R. considering light these factors.4 In 212.5, require parole INS to make deter- § quality the neutral of the criteria con- regard minations without to an alien’s race tained in regulation, the new the Court thus, origin; or natural we dismissed the affirmed judgment our banc court’s “in- appeal III, as to the APA claim. Jean sofar as it remanded to the District Court F.2d at equal protection 962.3 As for the for a determination whether the INS offi- claim, the court held that excludable aliens observing cials are upon this limit their equal no protection rights regard have statutory deny parole broad discretion to processing asylum to the of their or admis- IV, class members detention.” Jean applications sion or INS determinations S.Ct. at 2998. The to be resolved paroled. should not be The claim on remand properly was whether INS was was nonetheless remanded to determine following statutory and regulatory whether low-level INS officials were dis- making parole framework in determina- criminating against plaintiffs in violation of tions. Id. superiors. instructions from their Id. at 967-79. The court also held that the Refu- B. Attorney’s Litigation Fee gee Act of 1980 does not create a constitu- tionally protectable in receiving interest no- Court has admonished the right petition tice of the asylum. Id. request courts to ensure that a for attor- Finally, 979-80. the court held that the ney’s fees does “not result in a second access claim was not moot and remanded it major litigation.” Hensley Eckerhart, v. to the district court for full consideration. 424, 437, 1933, 1941, 461 U.S. 103 S.Ct. IV, (1983).

In Supreme Jean L.Ed.2d 40 Court affirmed Contests over EAJA the judgment court, expenses fees typically our banc and do not but threaten explained upset to we should not have reached this ideal.5 Yet a case of this magnitude merits of the question. complexity, constitutional ap- arguing Court, the case proximately lawyers before the periodically have Solicitor General conceded that participated,6 because the expected place can be sub- government longer 3. Because the any is no detain- constitute kind of discrimination ing any except pursuant class members against to the people, your agents these and ... regulations, new originally the APA issue as by your regula- the field are inhibited own presented has been rendered moot. The va- doing you say tions from what the Constitu- lidity regulations of these new is not before permit you tion would to do." “Solicitor express opinion and we no in this General: That's correct.” regard. accordingly We appeal dismiss the as IV, (quoting Jean transcript 105 S.Ct. at 2997 APA [the and remand with claim] instruc- argument Court). oral before the part judg- tions that this of the district court’s ment be vacated. overwhelming majority 5. The of EAJA awards III, Jean 111 F.2d at 962. year against Depart- in fiscal 1986-87 were (351 ment of Health and Human Services of 387 4. Respondents [the defendants] awards). $2,379. average The award was parole concede that the INS’ discretion under — Underwood, -, Pierce v. U.S. regulations, the statute and these while ex- 2541, 2549, (1988) (citing 101 L.Ed.2d 490 Annu- broad, ceedingly does not extend to considera- Report al of the Director of the Administrative origin. Respondent’s tions of race or national Courts, Office of Expenses the U.S. Fees colloquy can best be seen in this Equal Awarded Under the Access to Justice Act argument: from oral 99-100, (1987)). pp. Table 29 "Question: arguing You are that constitu- tionally you would not be inhibited from had, another, discriminating against people 6. “The at one time these or ground thirty appropriate. working different whatever seems But on the case. your regulations, you Naturally, respond I understand are the Plaintiffs had to in kind regulations forces, maintaining also although, do not with their own the Court notes no a must be circumstances that make an pressure on norm. After stantial government unjust. against the and review award hearing consuming days, five Only first two of pages court of “hundreds of by the district $950,- issues us because the United concern affidavits,” the court awarded does maintain that there are States attorney’s individual fees to seven 944.87 special circumstances that make the EAJA $152,169.33 firm, attorneys and one law unjust. award attor- expenses costs and two individual Refugee Haitian neys, one firm and the law Prevailing A. Are Par- the Plaintiffs fees, expenses It also awarded Center. ties? costs for the employs ‍​​‌​​​​‌​‌‌​​​​‌‌‌​‌​‌​​​​​‌​‌‌‌‌‌​​​​​​‌‌‌​​‌​​‍Our circuit the same test itself. applicant determine whether EAJA rulings and award The court’s “prevailing party” as we fees is use and detailed contained in two deliberate party” “prevailing eligibility for at- resolve plaintiff’s orders, assessing the first fees 1988: torney’s under U.S.C. § fees, explaining the second entitlement prevailing party test is “whether Because calculations.7 the court’s substantially she received he or virtually government has contested requested or has successful relief been legal rulings district court’s aspect of the issue,” on the central Mobile Watkins calculations, merit and because there is Board, Housing contentions, to some of or, 1980), B way, stated another Cir. Unit components of closely analyze the will we was a cata “plaintiffs’ whether lawsuit these orders. provide motivating defendants to lyst sought primary relief in a manner de QUALIFYING EAJA FEES II. FOR by litigation.” v. Kim sirеd Robinson (5th Cir.1981). brough, 652 provides that Heckler, 773 prevailing par- award to a Martin a court shall banc) added).8 (11th Cir.1985)(in (emphasis expenses, in- ty ... and other ... fees action, any party civil curred contends that The United States brought by against the United ... prevail under stan- plaintiffs did having jurisdiction of any court States in government’s position appears dard. action, unless the court finds in this that the “real” issue case was to be was the of the United States claim, protection on which the equal the cir- substantially justified special or that to secure relief. plaintiffs failed unjust. make cumstances an award claim, APA on government considers the plaintiffs unquestionably pre- 2412(d)(1)(A). As U.S.C. § court, to be insuf- noted, predicate find- there three vailed before an award support ex- ficient ings to award of EAJA fees and moot, held it and or- (1) litigant we later penses: opposing the United since (2) resulting relief be “prevailing injunctive that the party”; dered States must be responses are two government’s position must not have vacated. There (3) position.9 substantially justified; there been legislative approximately an indication the EAJA’s had one half 8. For that Plaintiffs Nelson, history Congress give counsel.” Louis v. number of F.Supp. the term intended 1300, (S.D.Fla.1986). 1308-09 meaning party it prevailing the same has in statutes, 1418, fee-shifting H.R.Rep. see other "Corrected Memo- 7.The court’s order entitled 11, Cong., reprinted in 1980 U.S. 2d Sess. 96th Fees, Attorney’s Opinion randum on Order 4984, Cong. 4990. & Admin.News Code Costs, F.Supp. Expenses” appears at 646 (S.D.Fla.1986). opinion details This argument, the United At oral counsel for 9. An manner which the was calculated. award plaintiffs prevail- were States conceded that plaintiffs' discussing earlier entitle- order regard ing parties APA We claim. appendix appears ment to as an fees costs meaning “prevail- term on the elaborate opinion. to this 1323- memorandum See id. at ing party” explain why prevailing on First, it is well established that a We regard do not the mooting of party need not obtain relief on claim plaintiffs’ APA claim extinguishing legal theory propounds in order to be legal their victory purposes of attor “prevailing” considered under a fee-shift ney’s noted, fees. As the district court ing statute. In the context of the Civil plaintiffs’ objectives (1) were stop “to Rights Attorney’s Act, Fees 42 U.S.C. hearings being mass exclusion which were 1988) (section 1988), § (2) held without counsel” and “to obtain has plaintiff “prevail made clear that a release from detention of class members ing” proves if he “his entitlement to some pending the political determination of their claims, relief on the merits of his either in asylum applications.” F.Supp. at 1305. the trial court or appeal.” Hanrahan v. As to the first of objectives, Hampton, 754, 757, 446 U.S. explained district court 1987, 1989, (1980) (per L.Ed.2d 670 cu shortly riam) after (emphasis added). case was filed the He or she need prevail on all conceded that the issues. Id. Our exclusion aрplied court has these standards in orders entered at hearings such EAJA context. Refugee See Haitian Cen invalid and therefore said orders were Meese, (11th ter v. 791 F.2d vacated. Cir.) (interim plaintiffs EAJA award where at 1324 n. 2. Under these prevailed issue), on a central vacated in circumstances, the district court could part grounds, on other 804 F.2d 1573 properly conclude that the “were (11th Cir.1986); Ray Cabinet, v. Florida prevailing party aspect on this (11th Cir.1988). case.” Id. Second, our in bane court has held that As to the objectives, second of these it is mooting of a lawsuit a defendant’s undisputed plaintiffs’ lawsuit se- favorable remedial action does not neces- release; cured their some were returned to sarily deprive plaintiff “prevailing par- detention but after promulgated INS ty” Martin, (cit- status. 773 F.2d at 1149 regulations. new apparent This is ing City Fields v. Tarpon Springs, 721 our in banc court’s discussion of the moot- (11th Cir.1983) (per curiam)); ness issue: Busbee,

Doe v. After the district court rendered its Cir.1982)). Doe, As we party said “a decision, promulgated may be considered to ‘prevailing’ if the regulations new in accordance with the litigation successfully terminated ... [a] (1982). APA. See 8 C.F.R. 212.5 At § mooting of the plaintiff case where the argument oral before this court counsel right.” vindicated his 684 F.2d at petitioners stated that one hundred quoted Martin, 773 F.2d at 1149. We or more class currently members are be- often describe this class of cases as “cata- ing detention, held in but these dеtainees lysts.” In cases, “parties prevail- either had parole ..., their ing if revoked ‘their significant lawsuit was a cata- arrived in country lytic govern- factor in after the achieving the primary relief sought promulgation ment’s through litigation of its despite regula- new failure to judicial obtain formal tions. relief[,]’ or ‘if Because the their is no lawsuit is a signifi- longer detaining any substantial factor or a class members ex- catalyst cant in motivating cept pursuant the defendants to the regulations, new ” to end their Doe, behavior.’ the APA issue presented as originally [unlawful] (citations omitted). 684 F.2d at 1380 has been rendered moot. issue plaintiffs was pre- opinion sufficient to make the we instruct the district court to vacate

vailing parties regard to the entire lawsuit. remaining injunctive all relief in favor of the points plaintiffs also to the most recent previous accordance with our action, Nelson, decision in this Jean v. 854 F.2d banc decision. This nothing new decision adds (11th Cir.1988), argument 405 support posture to the of this case. plaintiffs that the "prevail." In this did not

767 added). Thus, determine there (emphasis at whether existed 727 F.2d 962 plain- moot because the claim became support usual minimum for the merits tiffs had been released detention by the determination made fact-finder be- again pursu- unless not be detained could low, urging to determine whether but duly regulations re- promulgated ant the opposite merits determination was parole. circumstanc- garding Under these substantially justified. es, authorized to the district court was Id. pre- conclude established vailing parties. second standard meaning of the the Court Pierce is the Position the United B. Was the “substantially justified.” term The Court Substantially States Justified? agreed that the standard of “reasonable Pierce, held majori adopted overwhelming ness” question of the whether appellate review ty courts the proper circuit was one. position “substantially is the United States’ substantially justified, Thus, to be the Unit subject to an of discre justified,” abuse ed States’ must have “reasonable 2546-49; standard. 108 S.Ct. at see tion basis both in law and fact.” 108 at S.Ct. Center, 791 F.2d at Refugee Haitian also Ashburn, 850) (oth (citing 2550 740 F.2d at 1496; Treasury Employees’ National Un omitted). er citations also See United IRS, 1277, (11th v. 735 F.2d Cir. ion Property, v. Real Estate States Certain States, 1984); White v. United (11th Cir.1988); 838 F.2d (11th Cir.1984); Strat Ashburn Unit Bowen, States, (11th Cir.1984). ton v. ed Cir.1987); Center, Refugee Haitian question is explained, As the Court “ F.2d at 1497.10 district courts are ‘better one ” positioned’ to decide. 108 S.Ct. any precise court not fix Pierce did omitted). (citation guidelines assessing court’s district with, begin elements To some discretionary review of the reasonableness upon po- bear whether Government’s government’s position. of the Factors con- substantially justified” may sition “was sidered, individually disposi- held not but known to the court. Not be district Pierce, (1) tive the facts included: turn infrequently, upon will resolved; state at which law, merely what what was the but (2) expressed by other courts on views regarding the was the evidence facts. merits; (3) merits of By reason of settlement conferences and position. government’s 108 S.Ct. at 2551- activities, pretrial other Circuit, Following D.C. our conveyed by may insights have suggested following addi- has also record, par- into such matters as whether tional factors assist the reasonableness being worthy of re- ticular evidence was (1) inquiry: clarity governing upon, lied or whether critical facts could ‍​​‌​​​​‌​‌‌​​​​‌‌‌​‌​‌​​​​​‌​‌‌‌‌‌​​​​​​‌‌‌​​‌​​‍law; (2) length com- the foreseeable easily by the have been verified Govern- (3) litigation; plexity the consist- Moreover, even ment. where position. ency Haiti- knowledge judge’s full of the factual set- Center, (citing 791 F.2d at Refugee ting acquired by appellate can NLRB, Spencer acquisition will often come at (D.C.Cir.1983)). course, guide- Of requiring the expense, unusual court to posts not intended to be an exhaustive task of undertake the unaccustomed re- court, record, acting viewing just list of all the factors a district the entire formulation, 10. In an the Court that the test for reasonableness under the alternative said " justified “reasonably justified” that also means Id. at "is more than mere reasonableness.” is, justified Center, substance in or in the main’—that Refugee 2550-51. See Haitian degree person.” satisfy 3; a that could a 1497; Stratton, reasonable at n. 1449 & rejected sug- 108 S.Ct. at 2550. The Court Estate, F.2d at Certain Real 1561 n. gestion, made without elaboration discretion, may in its undertake to prepared review. General Counsel for INS for the early Id. service 1981. The memorandum legal requirements applica- summarized the In disputing the district court’s to the policy ble defendants’ detention conclusion on the of substantial hearings. explained mass exclusion It justification, government argues that “ ‘[a]ny change regulation which takes the district court simply respect erred with rights or privileges away from aliens will to the APA in ques Jean I. Because the likely require 60-day most notice and “unsettled,” tions of law were at least period, comment 30-day delayed and a ef- government contends that it was substan date_’” F.Supp. fective at 1326. justified.11 tially government is ask The district court viewed defendants’ essence, ing, in reweigh that we the merits failure to knowing follow this advice as of its defense on APA claim. Two quoted willful. The court its own review things against counsel such a course. point evidence on this opinion on First, put this would us in the the merits: assessing legal questions that are not be admitted to the Court “[The defendants] fore us on the merits. The they made a conscious effort not to explained that under circumstances promulgate pursuant a rule to the this, such as an abstract discussion of the [APA], The evidence shows that law is unwise. Where circuit law is unset seriously never undertook the difficult tled, drafting task of guidelines set of con- ruling A that the Government was not cerning which placed aliens would be substantially justified in believing it to be Instead, detention. general INS issued (unless thus-and-so would there is some instructions to its field officers to start reason to think ” changed since) it has detaining excludable aliens.... effectively establish the circuit law in a F.Supp. (citation omitted). at 1326 peculiar, most second-handed fashion. light of the fact two district Pierce, 108 S.Ct. at 2548. Certain cases judges in the Southern District of Florida require appellate will court to review procedures had held that APA applied to the content government’s legal argu- changes in policy INS toward Haitian refu- ments to determine whether it was sub- gees, States, Sannon v. United stantially justified. Pierce was such a case (S.D.Fla.1978), re- because it purely questions focused moot, manded to be vacated as circumstances, law. Under these it would (5th Cir.1980); National Council of examine, be useful example, Egan, Churches v. No. 79-2959-Civ-HOE- weight authority ques- on the contested (S.D. 3, 1979), Aug. VELER Fla. the dis- tions; Pierce, the Court conducted such trict government’s court concluded that the demonstrate, review. As we will such a position was unreasonable. review is necessary in this case. agree We with the The second and more important reason cases, alone, standing these two would not for not reopening the merits this case is dispositive of the reasonableness of its that there are legal sufficient and factual position. authority Sometimes upon indicia which the district court relied against given legal on a support the district court’s conclusion positiоn point will build to such a that it position was not will be difficult to maintain that substantially justified. government’s continued adherence to that First, placed particular the district position is reasonable. It will seldom be emphasis case, on a memorandum that acting however, that two district court government’s posture succinctly APA, meaning 11. The stated ... it fell within government presented in its brief: "The [to exceptions three to the APA ‘notice and com- view, compelling, and in our cor- court] procedure requirements.” ment’ Brief for the change arguments parole practice rect that its United States at 25. amount to a either did not ‘rule’ within the or, tionary authority parole to they if in the same individuals appear decisions—even alternatively, that being case is directors district which the relevant enforcing merely were the statute.” litigated raise such an obstacle. The —will According F.Supp. at 1326. to district permitted to make government must be have strategic choices. It must some good challenges faith

opportunity litigation to make only It was well into the reasonably legal authority with which it to the defendants admitted what had been disagrees. poli- there a obvious—that was detention cy policy and that had instituted this government this problem complying rulemaking pro- without with acting is INS’s General Counsel case cedures. Since the had consist- decisions in cited one of these district court ently maintained that thеre was deten- forming procedures APA opinion that his policy, tion the defendants’ unreasonable could to be followed before INS sub unnecessarily prolonged factual stantially parole policies. alter its detention litigation of this matter. Sannon, at 466. Cf . government Although challenges Id. is of this decision not While the existence finding, sup- we conclude is dispositive, acting Counsel’s General parties’ ported joint in the record. The highly significant. on it is reliance pretrial stipulation as a issue lists important fact for district was factual question for trial the whether “defendants willfully ignored the the defendants changed policy regularly releasing their government’s advice counsel. policy Haitians to a of detention without point response real to this is that mem parole.” unique court’s Given district by INS’s counsel refers orandum authored consistency familiarity the historical and, “regulations,” impliedly, position, factual we Reply Brief for the United States at rules. it did its discretion conclude that not abuse course, the 9 n. 8. Of held government finding that unreason- change in policy that INS was “substan ” ably protracted failing subject rulemaking to APA re tive rule change acknowledge parole policy. in its If quirements. F.Supp. at 997. Center, Refugee 791 F.2d at Haitian See suggesting it did not government is ignore the advice counsel because “regulations” memorandum refers III. AMOUNT OF THE AWARD “rules,” argument patently friv Although have concluded that we Davis, Sеe, e.g., olous. K.C. Administra acted within its discretion district court (3d 1972) Law 5.01 at 123 ed. tive Text § making award, there remains the an EAJA (“regulation interchange a term used [is] of the award amount whether rule”). ably with proper. regard With We conclude that district court could fees, challenges both the properly consider defendants’ failure to number of hours and the reimbursable follow advice counsel unreasonable. hourly used district court in rates Health Secretary Hudson v. Cf. making its award. The also Services, Human costs ex- challenges the award of (11th Cir.1988) (reversing district court “fees penses, and the award of for fees.” finding justification of substantial where reviewing the district court’s calcula- secretary agency agency failed to follow tions, again apply bound we regulation). Pierce, 108 abuse-of-discretion standard. explained Eckerhart, also (citing The district court Hensley v. S.Ct. at 2553 unreasonably 424, 437, in re- government behaved 461 U.S. 103 S.Ct. (1983); denying early Pennsylvania in the lawsuit— peatedly L.Ed.2d 40 — Cf. developed any policy Valley it had new to- Citizens’ Council Delaware 560-61, Air, It claimed 478 U.S. Haitians. instead that Clean ward (1986)). 3088, L.Ed.2d 439 complete directors still had

“district discre- question plaintiffs is no A. Reimbursable the did not Hours prevail Supreme in the Court. plaintiffs’ prepared The doc- 11,- however, indicating court, spent uments had The district found that working plaintiffs 261.95 reimbursable hours on this were entitled fees for their guid- lawsuit. In accordance earlier appeal Supreme because the Court given by court, the attor- government changed legal position ance district had its neys a subtracted certain number hours According that court. (467.4) the total done on the for work acknowledged government for equal protection by sixty claim and reduced time, Court, Supreme in the first percent number of hours attributable regulations prohibited using it from INS on Supreme their work the case before making a nationality parole factor in (resulting Court in a reduction of further decisions. The district found “if court 1,604.31hours). 9,190.- This left a total of argued had at District attorneys sought for which the hours posi- Court and Eleventh Circuit levels the compensation. The district eourt concluded Court, Supreme tion it took in the con- equal pro- for that the reduction of hours stitutional claims would not have needed to tection was too reduced the work low and This, litigated.” F.Supp. be 1314. at figure by total hour an additional fifteen concluded, provided the district court a ba- percent. It also that the attor- concluded performed sis for EAJA fees for the work neys compensated only could twen- Supreme Assuming before the Court. ty-five percent spent “at hours accuracy finding of the district court’s re- Supreme level.” 646 Court change garding government’s posi- a in the 5,756.84 1315. left a total hours the This tion, nonetheless we conclude district found court to be reimbursable. plaintiffs attorney’s not entitled fees figure The attacked litigatiоn. Supreme for the Court The grounds. on several plaintiffs seeking a were declaration Supreme pro- that the Court Constitution Supreme Litigation Court considering hibits INS from race and na- The district awarded com origin making parole tional decisions. pensation twenty-five percent The Court did not reach the be- spent litigating hours case before the cause of the concession that Supreme Court. issue before that facially regu- 8 C.F.R. 212.5 is neutral § plaintiffs’ Court was merits of the lation. equal protection rejected claim though Even the Court that our in found sitting Supreme this court banc. banc court should not have reached the Court our in judg banc court’s affirmed but issue, it did vacate constitutional our ment, held that we should not have instead, opinion; it affirmed our remand to reached the merits of the constitutional the district court. Normally, prevailing party issue. is enti plaintiffs argue even though tled to fees for work done on our in affirmed banc See, appeal. e.g., Finney, Hutto v. judgment, they court’s in fact victori 678, 693-700, 2565, 2574-78, U.S. ous judicial because the result was a (section decla (1978) 1988); 57 L.Ed.2d 522 ration that INS could not discriminate in Georgia Osteopathic Hospi O’Donnell making parole reject decisions. tal, Inc., (11th We Cir. argument 1984) simple for the (attorney’s reason that the fees Fair under Labor prevail any Act). did not on issue party Standards But that must also any or obtain additional prevail subsequent relief appeal qualify appellate to our in See, banc court’s decision. We attorney’s fees. Bonner there e.g., fore Coughlin, conclude abused Cir. 1981) (section 1988). face, in compensating discretion them for On its Su preme portion expense judgment litigating Court’s no basis provides case for an there at that award of because level. EAJA fees Institutionalized Juve Cf. Welfare, circumstances the fee should not Secretary Public award niles simply (3d Cir.1985) (ordering plaintiff be reduced because the disal prevail failed on contention to spent litigating case of all hours lowance good Litigants raised in the lawsuit. in on received “after the date which may legal grounds faith raise alternative defendants”); their last benefit outcome, for a court’s desired and the City Angeles, Los Clark rejection of or failure reach certain Cir.1986) (no attorney’s fees for grounds is not a sufficient reason for “nothing associated appellate work when reducing fee. The mat- a result is what appeal contributed favor [the] ters. by litigation”). result achieved On able If, hand, award, remand, plaintiff on the other a recalculating in the EAJA success, only partial or any achieved limited exclude hours the district shall product reasonably expend- of hours litigation. Supreme on spent litigation ed on as a a whole times Claims Unsuccessful hourly may rate an exces- reasonable be sive This will amount. be true even Eckеrhart, In Hensley v. Su plaintiff’s where the claims were interre- held an of attor preme Court award lated, nonfrivolous, good in raised ney’s fees should be commensurate with Congress faith. has not an authorized prevailing party’s of a success. degree award of fees whenever it was reason- Hensley gen principles adduced plaintiff bring able a a lawsuit or erally applicable here: whenever conscientious counsel tried may present plaintiff In some cases a Again, case with devotion skill. distinctly in one lawsuit different claims degree most factor is the of suc- critical on for relief that are based different cess obtained. suit, legal In such facts and theories. a one claim counsel’s work on will be ... precise to his on another There rule

unrelated work claim. is no or formula Accordingly, making an dis- work on unsuccessful these determinations. The attempt specif- have may identify claim cannot be deemed to been trict court eliminated, pursuit “expended of the ultimate re- ic that should be hours may simply achieved.” reduce award to account sult ... success. The court neces- limited eq- sarily making this has discretion plaintiff's In cases the claims for other discretion, This how- judgment. uitable core of facts relief will involve a common ever, light exercised in of the must be or will be based on related theories. have considerations we identified. will be Much of counsel’s time devoted 434-37, 103 at 1940-41 461 U.S. S.Ct. whole, a generally omitted). (footnotes and citations making it to divide the hours difficult Having ap- the district court’s expended claim-by-claim on reviewed basis. evaluating degree proach lawsuit Such a cannot be viewed as success, plaintiffs’ we conclude that it act- claims. Instead the series discrete gener- ed within discretion followed signifi- court should focus on its guidance ally Court’s in Hens- relief obtained cance overall It counsel to excise from ley. to the hours first directed plaintiff relation reason- litigating request spent those hours ably expended litigation. on finding equal issue. After protection plaintiff a Where has obtained excel- spent exclu- counsel’s of the time estimates results, attorney lent his should recover low,” sively on “too this issue fully compensatory Normally fee. explained follows: its calculation as encompass reasonably will all hours ex- estimate, By forty percent pended litigation, and indeed in Court’s on (40%) on spent time exceptional success an en- of counsel’s some cases of clearly protection matters. justified. non-equal may hanced award (60%) sixty percent pal complaint regard Perhaps ... was several matters; spent insig- applications part on interrelated of the fee portion spent time was on product nificant of “reconstructed” time records. exclusively equal protection issues. Recently, a number of courts have an commingled spent Of the on materi- 60% prospective requiring nounced rules the fil al, approximate- the estimates that Court ing contemporaneous support to of records ly spent equal of that time on was 25% application attorney’s fees. See Thus, reduction, protection issues. Den, Larkin, 749 F.2d Grendel’s Inc. v. the total of hours is in number 15% 945, (1st Cir.1984); Lamm, 952 Ramos order. 546, (10th Cir.1983); 553 New Here, F.Supp. at the “trial York 646 1315. court State Association Retarded Chil for 1136, 1147 recognized dren, (2d the fee correctly Carey, award Inc. v. F.2d however, spent Cir.1983). court, should exclude the time on un- has Our held [the] except the successful to extent that contemporaneous time records are not claim[] overlapped such related time success- indispensable where other there is reliable City Tampa, ful claims.” Trezevant v. support attorney’s evidence a claim for (11th Cir.1984). College, fees. v. University Johnson (11th Cir.), denied, F.2d cert. government argues The that further re- 464 U.S. S.Ct. 78 L.Ed.2d 684 in order ductions were because factual (1983); Warren, equal protec- see also overlap between the APA and Dennis v. (5th Cir.1985); tion were than F.2d claims less substantial Bonnette v. government district court found. The has Agency, Health & California Welfare basis, however, provided 1465, 1473 us with no to dis- Cir.1983). govern The degree cern which believes the pointed particular ment has to no fee district court abused its discretion. In con- by record considered the district court trast, plaintiffs supplied have us with require which was so unreliable as to citations to record from numerous reject a basis district court it as attorney’s proceedings fees which indicate part nothing of the award. We find adequate that the district court had infor- indicate that the district abused its support finding mation to that the relying part discretion in on reconstruct overlap and factual issues did substantial- ed time records. ly. government The also would have us govern reject We likewise figure order a reduction of the total hour ment's contention that counsels’ hours ground ‍​​‌​​​​‌​‌‌​​​​‌‌‌​‌​‌​​​​​‌​‌‌‌‌‌​​​​​​‌‌‌​​‌​​‍plaintiffs obtained subject reduction a result of explained above, “limited” success. As we unnecessary duplication of their efforts. we do not think this is one in case which lead victory merely asserts that counsel secured was technical or obtained Miami formalistic. the re- failed oversee and coordinate sought lawsuit, they although lief in their performed by the work York co-coun New form not of a declaration that the sel unnecessary and that resulted in government had violated the Constitution. duplication attorney effort. district spent litigating If the hours constitu- carefully considered the properly tional issues were deducted duplication undue and found credible coun there is no reason to further representations sels’ had reduce award. “purged” unnecessary their time sheets of duplication. 646 1314. F.Supp. at Our

3. Documentation and recognized court has that the retention of Duplication of Effort multiple in complex counsel cases is “un ground not a for reducing record in derstandable and Given detailed the fee proceedings, govern hours claimed” because use in reject we also “[t]he ment’s involved of a contention that the fees team requests up who supported were not sufficient divide work is common for both princi plaintiff dupli- documentation. The and defense work.” While many ground cap cases. But this fact alone proper is a of effort cation a court award, does authorize make an reduction is war- reducing “a adjustment in upward hourly rates. As the attorneys are unreason- only if the ranted Pierce, explained spe Johnson, the EAJA’s ably doing the same work.” “suggests Congress cial factor formulation Again, at 1208. thought generally quite was $75 specific instances pointed to no enough public lawyers’ reimbursement unreasonably duplica- counsels’ work fees, local whatever the or national market district court did tive. We find might be.” regard. in this abuse discretion remand, On the district court must first Hourly B. Rates prevailing determine the market rates for quality provided. of the kind and services figures, its arriving In at inquiry typically This focus on affida began considering the will the district court testimony similarly prac or of situated vits by this court in John factors enumerated titioners, Inc., uniquely qualified who are to ex Express, Highway Georgia v. son press opinions as to 714, (5th Cir.1974). “what market will The John 717-19 requests The fee in this ease bear.” factors, developed in the Title VII first son ranged per paralegal hour for context, widely accepted $40 constitute one per experienced hour for coun $175 time calculating attorney’s fees. mechanism for accurately requests If reflect are sel. many of the factors Because Johnson rates, prevailing market the district court the initial calculation of subsumed into living must still find that a cost of increase (reimbursable hour attorney’s fees lodestar justifies hourly “special or a factor” rates hourly rate), Supreme multiplied by more than it can award fees of before $75 has criticism of expressed some See, in figure. e.g., a rate excess of this at Hensley dicta. v. approach See Johnson Heckler, (4th Hyatt Eckerhart, U.S. 435 n. at Cir.1986) (although expert testimony Nonetheless, this has n. proved prevailing market rate was factors enumerated in held John $125, properly district court reduced rate calculating considered son to be — U.S. -, denied, $75), S.Ct. Villas, cert. EAJA Florida Suncoast fees. See (1987). States, 98 L.Ed.2d Inc. v. United Cir.1985)(Johnson (11th play factors a role Living of 1. Cost fee). arriving at reasonable EAJA award, In EAJA its opin Court’s Pierce The statutory living of in court cited the cost reappraise approach, ion has us to led ground as а permitted crease the EAJA language and focus instead failed, upward adjustment. The court for provides The that “fees award Act. EAJA however, to amounts the specify dollar upon prevailing based mar ed ... shall be reaching impact of this factor overall quality of the ket rates for the kind and A case of this duration and com award. furnished,” “shall not be services but to make cost plexity will make difficult per of in excess hour unless awarded $75 living adjustments preci of absolute that an in the the court determines increase Nonetheless, a sion. court should describe factor, living special of or a such cost all cost mathematically the basis of of liv availability qualified of attor the limited remand, ing adjustments under the Act. On involved, justifies neys proceedings for the quantify explain the district court shall 2412(d)(2)(A). higher fee.” U.S.C. § living adjustments of all cost favor indicates, starting As the statute a court’s plaintiffs’ attorneys. each factors point should not the Johnson question rates” ser We consider one more re market “prevailing but living adjustments. kind. garding Market cost of quality vices like being contains the 1985 enactment of rates for services what legal hourly figure origi in the are, same found $75 $75 exceed EAJA’s these rates will nal, Recently, practice specialty 1980 version of the Act. an identifiable such as Congress has law, arisen as to whether patent knowledge foreign or law intended to “restart the clock” on cost of language. qualifications or such Where living adjustments by retaining the $75 are necessary and can be obtained cap. circuit One court has so held. See cap, at rates in excess of the reim- $75 Chipman Secretary Health & Hu bursement above that limit is allowed. Services, man Cir. added). (emphasis 108 S.Ct. at 2554 1986) (given figure, retention of $75 supply Court’s view is clear: a mere short failing does not discretion in abuse make qualified lawyers willing to take a case services). adjustment pre-1985 per hour or less does $75 not mean that urged adopt us to there availability qualified is a “limited living and hold that no cost of counsel.” adjustment can be made for services addition, highly where performed prior to the effective date of the lawyers lawyers skilled Instead, with the join 1985 version of the Act. best we reputations participate, growing this is not a factor number of circuit courts which to be considered once it have held that the EAJA’s 1985 reen is established that market living adjust actment does not cost rates for their services bar of exceed $75. prior special ments for services rendered Under such circumstances 1985. Secretary upward See Trichilo v. skill authorizes an adjustment Health & Hu of of Services, 702, (2d hourly man 823 F.2d 706-07 rates. From the district court’s or Cir.1987); Bowen, 963, der, v. perceive only Allen 821 F.2d we grounds two (3d Cir.1987); 967 Secretary Sierra Club v. adjustment might which a rate proper be (1st Army, 513, special First, on the basis of factors. some of Cir.1987); 1, Hirschey FERC, 5 pаrticipating attorneys spe have a (D.C.Cir.1985). expertise cial in immigration law. This is legal specialty might narrow entitle Special 2. Factors adjustment them to an if market rates for their Hoopa services exceed $75. adjusted district court Val Cf. Watt, ley 943, Tribe hourly F.Supp. 569 plaintiffs' rates of counsel on the (N.D.Cal.1983) (increased hourly only “special basis of the rates for factor” named in EAJA, expert law). Second, in “the native American availability quali limited of Pierce, plaintiffs’ fied counsel.” In least one of the Supreme attorneys gave phrase fluent French and Haitian rather limited Creole. Ac light cording construction in of cap. language the EAJA’s to the district court “her $75 explained The Court abilities were crucial to her work in com municating preparing with and the testimo availability “limited qualified attor ny of Haitian neys for the witnesses.” proceedings must involved” F.Supp. If prevailing at 1312. attorneys “qualified refer to market pro for the rates for her ceedings” specialized sense, services exceed $75 some rath —some thing just general readily apparent er than which is not legal compe their since request tence. her initial fee attorneys We think it refers to was based on a $75 having per might some hour rate —she knowledge distinctive or be entitled to an specialized litiga hourly remand, skill needful for increased rate. On question tion in opposed to an ex shall consider whether еither of these —as traordinary general level of the lawyerly “special” factors are purpose EAJA knowledge ability litiga useful all and entitle the attorneys relevant in Examples tion. of the former would hourly creased rates.12 attorneys practic- added). The dissent (emphasis contends that majority 12. agrees ing immigration any every law do not have immigration "distinc- attorney or knowledge specialized tive immigration or skill upward lawsuit warrants an ad- needful for " meaning justment hourly within the suggest rates and we would Pierce, phrase used in as it is 108 S.Ct. at patent such is also the case in some award. Plaintiffs’ tled to an increased “Enhancement” their counsel are to be lauded for efforts court enhanced the The district indigent and those on behalf of attorney for the of each fee award overall wrongfully oppressed. believed But fees. The was awarded plaintiffs who distinguish does not between the EAJA the limited circum court assumed lawyer the selfish one. selfless We Court has in which stances personal neither the hold that motivations applied to adjustments authorized lodestar acting pro publico, bono nor See, Pennsylvania v. e.g., EAJA cases. ease, pro presents nature of a bono Council, Valley Citizens’ Delaware Pierce, “special factor.” Cf. 92 L.Ed.2d 439 106 S.Ct. U.S. (both contingent arrange- at 2554 fee S.Ct. (modification in rare and (1986) proper only undesirability ment and of a case are toо cases) Stenson, exceptional (citing Blum v. general broad and for either to be con- 1541, 1549, 465 U.S. factor”). “special sidered (1984)). light of In the Court’s L.Ed.2d 891 Valley Citizens’ Council second Delaware Rights b. Vindication Public 711, 107 S.Ct. decision, U.S. district court enhanced (1987), decided after dis L.Ed.2d 585 “pri- awards because counsel had acted award, legal status made its trict court generals attorney seeking vate to vindicate multipliers all enhancements public rights.” at 1317-18. fee-shifting concerning statutes is cases agree such While we actions to be however, is certain. thing, unclear. One commended, discussed, just for the reasons partial constitutes a that the EAJA Given support this consideration cannot an award immunity, the waiver of the United States’ statutory cap. exceeding many If strictly construed. the Act must be awarded, may cases EAJA fees be where by a court is based on award made opposing the party seeks figure by provided of the rates excess compliance law. In a to force with federal Act, permits it must be the Act because sense, always cases in- narrow will Shaw, 478 Library Congress it. U.S. of “public” rather volve a of than vindication 310, 318, 92 L.Ed.2d purely “private” rights. (1986)(waiver must strict be construed enlarged ly sovereign of and not Permitting adjustment hourly favor of on rates beyond language requires). Un ground what contravene the this would therefore statute, adjust only special “special factor der view that Court’s adjustments living general mеnts and cost of are and must not be “of broad factors” authorized. Blanket enhancements application.” 108 S.Ct. at See Nonetheless, authorized. we will consider Hardship to c. The Emotional upon relied in enhanc whether the factors Counsel qualify ing the overall fee awards can Plaintiffs’ meaning of the special factors within acknowledged, and we The district EAJA. imposed dispute, this case do not unique plain- counsel for pressures on a.Pro Bono Publico many tiffs. Trial evidence established psycho- severe court held that of the sustained because logical pro- of their by problems as a result plaintiffs’ were motivated con- Family refugees longed members were plight cern for the of Haitian and detention. self-interest, of the class com- pecuniary they were isolated. Some members enti- ("dis- gation experience foreign judges question”) Lawyers and on the law cases. and could arguing spend expertise about knowledge”) acquired balance of time and tinctive phrase meaning scope above-quoted skill") particular of the ("specialized billing at- phrase Interpretation this Pierce. of torney. We are that the district court confident better district court left to the discretion above-quot- properly interpret apply can necessarily application phrase as depend will phrase ed to the facts of this casе. (“the liti- complexity of the case on the issues, mitted suicide. The pleaded motion, court understands the op- on urgency by sense of experienced counsel posed, law, fact as well as each and seek to persons who secure the release of every important by issue asserted Plain- from detention believed unlawful. We also tiffs. acknowledge lawyers best un- quarrel at 1318. We have no derstand, with, sympathize upon and act observations, with the district court’s hardships experienced the real by their being uniquely situated to observe accounts, By highly clients. all moti- conduct gives of the lawsuit. Pierce plaintiffs upheld vated counsel for the guidance little as to what can constitute a highest legal profession standards of the in special except factor for its discussion of Yet, regard. again conclude, this we must adjustments certain specifically discussed light Pierce, meeting unique being “special as not factors.” As emotional burdens this case constituted establishment of a standard to test many one of the features of this case which question of justification, substantial might lawyers increase our esteem for the appears recognized judi- to have involved does special but not constitute a cial “special construction of the factor” Pierce,

factor under the EAJA. Cf. likely Thus, term is to evolve with time. (undesirable not, S.Ct. at 2554 cases do remand, the district court should be free to themselves, give special factors). rise to approach anew, and consider potential special factors that would be con- d. The Litigious Government’s Position here, sistent with Pierce and our discussion clearly The district court was disturbed including whether the un- general the United posture States’ in usually litigious position might in this case litigation: special constitute a factor.13 The court unusually took an un- remember, however, should nothing wavering litigious position through- “routine” or “generally applicable” to a litigation. out the Many govern- spectrum “broad litigation” can count. ment’s contentions and litigating pos- See 108 S.Ct. at 2553.

tures were unwarranted and unnecessar- Components C. Other the Award ily prolonged litigation. govern- 1. Costs ment used all of its considerable re- sources in The opposing recovery EAJA authorizes the Plaintiffs’ conten- types tions at of pretrial litigation expenditures. turn. three of From dis- covery, First, through 2412(a), trial and under ap- prevail successive 28 U.S.C. a § peals, government ing party stays opposing moved for the United in States Orders, of Court repeated applica- “any forced “may civil action” be awarded” costs emergency relief, tions for put Plaintiffs as delineated in 28 U.S.C. 1920. The § posture in a requiring a brief on all types second and third expenditures of in- example, 13. For under proper purposes defending Rule 11 courts are re- in the lawsuit. For quired distinguish instance, between contentions that government if the were aware that the have often and no "reasonable basis in law or fact” doing plain cost of business of certain of the injected any purpose those also without but attorneys tiffs’ cap exceeded the $75.00 EAJA of generally to harrass. See Fed.R.Civ.P. 11 adviso- hour, per government might adopt ag ry committee’s note. Sanctions under Rule 11 gressive, litigious strategy in order to deter the frivolity are meant ment, to eliminate and harrass- plaintiffs’ attorneys by actually forcing these attorney zealousness. Id. See also operate sug at a loss. We do not Eagle Distributing Corp. Golden Burroughs v. gest occurred, that this situation but it is illus 1531, (9th Corp., Cir.1986). 801 F.2d 1540 As improper purpose trative of how an can be a out, points already the dissent the EAJA re- position. factor that is additional to a “frivolous" quires government’s position have no Thus, government if the in this case advanced "reasonable basis in law and fact” aas condition litigation any improper purpose such as har precedent recovery to the of fees. The EAJA rassment, unnecessary delay not, however, or increase in the protect litigant against does a plaintiffs’ expense, Pierce, potential government then easy consistent with It is harrassment. imagine position imposition its action warrants the special situation where a that is not of a "substantially justified" by im- is exacerbated factor. ordinarily and other “costs that are billed to a in the “fees eluded statute must a district court client.” expenses,” which International Woodworkers of prevails against Donovan, party to a who America v. 769 F.2d award (other “any (9th civil Cir.1985) amended, in action [opinion United States tort)” sounding Cir.1985)]; when the than cases Aston v. demonstrate that fails to Secretary Health and Human Servic- of substantially justified. es, was (2d Cir.1986). The 2412(d)(1)(A). U.S.C. agrees with the conclusion of these § expenses provided cases that the list of The contests 2412(d)(2)(A) meant to be § expendi- of certain court’s award all-inclusive. court found to consti- tures expenses.” Act City States, tute “fees and other Brunswick v. United provides partial of these terms: F.Supp. (S.D.Ga.1987) (em- definition 1444-45 phasis original), grounds, rev’d on other expenses” include the “fees and other (11th Cir.1988). 849 F.2d 501 witnesses, expert expenses reasonable any study, analy- the reasonable cost Although some circuits have this read test, project sis, engineering report, provision restrictively, they more have to be neces- by which is largely analysis done so without or for found preparation party’s sary disagree. reasons with which we See ...; case, attorney’s fees and reasonable Wyandotte Savings NLRB, v. Bank (6th Cir.1982); added). F.2d 119 Action 2412(d)(2)(A)(emphasis on Smok 28 U.S.C. § C.A.B., ing ‍​​‌​​​​‌​‌‌​​​​‌‌‌​‌​‌​​​​​‌​‌‌‌‌‌​​​​​​‌‌‌​​‌​​‍and Health government argues that these terms (D.C.Cir.1984); Bowen, Weakley given a limited construction since must be (10th Cir.1986). Wyan represents the Unit- the EAJA a waiver of litigation expendi suggests dotte that no prob- sovereign immunity. ed States’ (other fees) ture than is recover interpretation lem is that “fees” with EAJA it is able under the unless one of by Act “expenses” are defined costs enumerated 28 U.S.C. 1920. See § example, rather than limitation. key approach 682 F.2d at 120. This reads agree following obser- regard, we language out the Act. Section Judge Chief Alaimo of the vations 2412(d)(1)(A) “fees” provides that and other Georgia: District of Southern “expenses” are awarded “in addition Turning to the structure of the ... any pursuant costs awarded subsection EAJA, it ap- definitions contained (a),” treating section 1920 subsection used the pears that where drafters analy Smoking, without costs. Action provide “includes” intended to word sis, does holds that not authorize examples list clar- non-exhaustive expenses an similar to those award ify meaning of the term. For exam- “ F.2d awarded in this case. 724 at 223-24. 2412(d)(2)(G)provides ple, ‘court’ § Donovan, It instead on relies NAACP includes the United States Claims 715, (D.C.Cir.1982). The F.Supp. 554 719 Court,” (yet may not be in- that section however, opinion, reads the Act NAACP terpreted to mean this Court would “expenses” listed authorize those definition); statutory not meet the like- “ 2412(d)(2)(A) like or those of a subsection wise, 2412(d)(2)(C), ‘United States’ § apply will not the rule of stat nature. We any agency any and official of includes utory ejusdem as gen- known construction or acting the United States in his her by given case for eris the reasons capacity.” Congress in- official Where Judge in City Alaimo Brunswick. definition, tended a more exclusive unhelpful it relies to Weakley is because “means,” as used the word tally Circuit’s Wyandotte on D.C. 2412(d)(2)(B), an “party” means Where § rulings on the matter. net appropriate individual with An nature ex- construed examination of the worth. circuits have Several encompass in the read- penses Act reinforces our expenses” “fees and listed other ing engineering paralegal performs traditionally of it. re- work Items such ports extraordinary expend- by attorney.” and studies are done an Allen v. United commonly necessary prep- to the 689, (5th itures not Corp., 665 F.2d States Steel By including these aration of a lawsuit. 1982). analysis ap B Cir. Unit same in the list of reimbursable unusual items plies here. To hold otherwise would be enlarged, than expenses, Congress rather counterproductive excluding reim because contracted, category expenditures might encourage bursement for such work the EAJA. that are reimbursable under attorneys to handle entire cases them Thus, reject government’s argu- we selves, thereby achieving the same results travel, telephone, ment reasonable higher at a overall cost. Berman v. See postage, computerized research ex- Schweiker, 1149, penses compensable are not under the (N.D.Ill.1982), aff'd, 713 F.2d 1290 Cir. EAJA. See International Woodworkers of 1983). We affirm the award of law clerk Donovan, 762, America v. paralegal fees. (9th Cir.1985) (expenses routinely billed to telephone, courier, attorney air client— 3. Fees for Fees EAJA); travel—are recoverable under the Secretary Aston v. Health and Human The last we consider is Services, (2d Cir.1986) (af- 808 F.2d whether the district court erred in award firming telephone, postage, award of travel ing attorney’s litigation fees for the fee photocopying expenses). determining govern without first proceedings ment’s in the fees The limitation on amount and nature justification. without substantial dis expenses of such is must be trict court relied on a statement in “necessary preparation [pre- Haitian Meese, vailing] party’s Refugee case.” 28 U.S.C. Center v. 2412(d)(2)(A). contrast, (11th Cir.1986), expenses support “In which lends § attorney an approach. not incurred or ex- As the notes in pended solely exclusively brief, in connection however, portion of Haitian the case with before or which upon Refugee Center which the district expenses the court finds to unreason- relied, was later vacated the Hai unnecessary pending litiga- able or in the panel. Refugee tian Center 804 F.2d tion, cannot be awarded under the EAJA.” (11th Cir.1986). States, Oliveira v. United Those circuits that have discussed the (Fed.Cir.1987). We hold that the chal- question of “fees for fees” in the EAJA expenses lenged may be under reimbursed context are divided. Two circuits have indi- the EAJA. applicant cated that a successful EAJA fee attorney’s should not recovеr fees associat- Paralegal and Law Clerk Time ed litigating the fee issues unless the The district court awarded reim government’s position in spent by paralegals bursement for time substantially justified. is not See and law clerks where the work was that Heckler, Rawlings v. normally attorney. done hourly (9th Cir.1984)(no defending fees for rate awarded was This the rate $40. appeal if appellate award the firm paralegals which law whose and position reasonable); is Russell v. Nation- clerks were involved bills its clients. Board, 1284, 1285, al Mediation awarded, government challenges the rate (5th Cir.1984) (no 1291 n. 8 fees for fee paralegal and contends that time is recom application agency where defense to award pensable only at the actual cost to the meritorious). partially was plaintiffs’ In the counsel. context recognized The D.C. Circuit has a sub- case, paralegal Title held VII we have that stantial difficulty approach: with this “part prevailing time is as of a recoverable party’s attorney’s require every award for fees and ex we victorious EAJA [I]f penses, plaintiff the extent separate the to make a claim for [but] — suit, U.S. -, bringing grounds, first EAJA S.Ct. fees the for (1988) (for government to claim that permit the L.Ed.2d reconsideration of substantially attorney’s Pierce). its EAJA defense light first fees in As to merits, we the dis- justified issues, the face on grants the Third Circuit regression infinite possibility tinct of an government opportunity to defend its A litigation. suсcessful EAJA EAJA substantially as position justified. Id. claiming suit plaintiff bring another will Only the held Second Circuit has suit, bringing fees the EAJA government’s litigation in the position fee ground on government defend will irrelevant is to a determination whether a substantially defense was its EAJA applicant can successful EAJA fee claim suit, wins justified. plaintiff If the this explained Judge “fees for fees.” As Pratt required recov- yet a suit will be third for the recovering suit er for the second fees with, begin very purpose To of the government fees. And if the contests persons aggriev- EAJA is to ensure loses, yet a fourth suit will suit by governmental ed unreasonable actions so In our spawned, have on. been prevented vindicating not from their fee-shifting opinion per se rule is by high claims potentially costs in- Kafka- objectionable least exit doing volved so. Since statute cases a esque judicial nightmare; most primarily prevailing plaintiffs assures “substantially justi- generous loss on the fees, their it reasonable would strongly fied” threshold indicates EAJA claiming very be ironic if those fees— government clinging to an unnecessary which would have been if position. unreasonable not for the action—was the Reagan, Cinciarelli one act for a claimant which could not omitted). (D.C.Cir.1984)(footnote The D.C. compensation. purpose receive Since the hold, however, that squarely Circuit not did of the EAJA is to remove counsel fees as applicants fee are auto successful EAJA chаllenging impediment an unreason- matically In a entitled to “fees fees.” governmental unjustified able and ac- subsequent case, has held tions, governmental where a action has certain de government may raise technical unjustified, been known to have been fenses, untimely filing by as an such little disincentive for there should be as applicant, against appli fee and defend attorney’s fees as to obtain on ground cation “fees for fees” challenge the there is for them to action substantially defense is technical asks us “to itself. The treat Academy justified. American Pedia part as application the EAJA counsel’s Bowen, (D.C.Cir. trics so, To do doing cost of business.” how- 1986). ever, power it in the would leave adopted a dif Third Circuit still already had government, been un- “the sole approach. ferent Where basis for plaintiff, justified actions toward opposition alleged is the EAJA fees] [to plaintiff’s so raise cost of counsel’s justification govern substantial “doing simply strenuous re- business” underlying proceed ment’s in the applications sistance all fee to dis- ings,” applicant “will the fee almost al prevent a courage economically plain- ways, always, if entitled fees for against govern- litigating tiff from petition fee if an EAJA she over regard place. ment in We it as the first underlying litiga is entitled to fees for the congressional more consistent with government’s opposi tion.” Yet where purpose plaintiff’s applica- to treat tion to fees is based other conten part tion as cost of tions, petition application for fee ex “an positions taking that are substantial- penses present issues not resolved can ly justified. original peti proceedings on the fee 148, Secretary v. Health and Hu Heckler, tion.” Trichilo 814 F.2d Russell of (2d (3d Services, Cir.1987), man 823 F.2d Cir. on other vacated 1987). agree per these sound be awarded in excess of hour $75 We with reasons awarding “fees fees.” It would unless the in- court determines that an purpose in Congress’s passing living contravene justifies crease in the cost of ... under all require higher Assuming the EAJA to circumstanc Congress fee.” meant applicants es that fee said, successful EAJA Congress per what it considered $75 obtaining bear the costs of EAJA fees. compensation given hour reasonable indicated that already This has attor living positive cost of in 1985. With a rate ney’s defending fees an (see incurred EAJA Hirschey F.E.R.C., of inflation appealing appeal, award on a denial of (D.C.Cir.1985)), 5 n. 24 awas $75 fees, part recoverable compensation given the reasonable fortiori final fee award. v. Secretary Hudson living years through cost of in the of Services, Health Human 1984. Cir.1988). 1458 n. 7 See also Second Circuit Trichilo v. Secre Secretary Trichilo v. Health and Hu tary Services, Health and Human Services, (2d Cir.1987). man 832 F.2d 743 (2d Cir.1987), rejected F.2d 702 inter agree Circuit that a We with the D.C. fixed pretation contrary legislative “as to the permitting rule infinite intent, unjustified statutory under tenets of justification question substantial would construction, inevitably bound to lead hold, judicial policy. make for unwise We incongruous results.” Id. at 705. The therefore, may that the United States language provid cited the statute oppose request solely “fees for fees” on ing Equal that the Access to Act Justice “ ground in the litiga its ‘shall be on or after effective the date substantially justified.14 tion was the enactment of this Act as had not [it] if ” repealed.’ (emphasis origi been Id. IV. CONCLUSION nal). view, however, my general In summarize, To hold that we disregard particu words do not sanction court acted within discretion in deter- setting lar language cap per at $75 mining government’s position in hour. Flanigan Estate v. Commis Cf. the underlying litigation was not substan- sioner, (11th Cir.1984). tially justified but that case must be Exercising insight congressional into the remanded for recalculation of decisionmaking process, the Trichilo court expenses fees and in accordance with this opined Congress “made no decision opinion. $75, dollars, in 1985 measured was still PART, AFFIRMED IN VACATED AND appropriate an cap_” 823 F.2d at 705. REMANDED. The court also noted that it was not “told why congress, obviously con- KRAVITCH, Judge, Circuit ..., cerned ... inflation about would want concurring part dissenting ignore the inflation that had occurred part: between 1981 1985.” Id. at 706. See II, I, I concur in III Parts A and C of the Bowen, (3d also Allen v. majority’s opinion. majority, however, Cir.1987) (lеgislative history sug- does not permits an award of fees excess of the gest that Congress’s “decision not to raise statutory cap three reasons $75 way flat rate hourly any $75 was in disagree; I I therefore respectfully indicative of its desire to reduce the cost III B and dissent Parts IV. living adjustment”). One answer to the

First, I agree do not that the award of query Congress Trichilo court’s is that cost-of-living adjustments for duty services no explain Moreover, ren- itself. Con- prior permissible. 1985, gress dered to 1985is may in 1985 still have felt that $75 Congress provided “attorney fees hour shall was a public reasonable rate for the express opinion We as to no whether a “tech- as the has not briefed the issue. exception nical defense" to this rule should exist phrase] notwithstanding We think refers to lawsuits, any funding [the of having knowledge distinctive some or for inflation. concern specialized skill needful for the referred to cap have relaxing the Courts question opposed extraordi- an —as Congress pre- is principle that the sound nary general lawyerly level of knowl- prior judicial con- to be of sumed aware edge ability litigation. useful in and all Trichilo, 823 of its structions statutes. Examples former of the would be an 706; Secretary F.2d at Sierra Club of practice specialty such as identifiable (1st Cir.1987). 513, 522 Army, 820 F.2d law, knowledge patent foreign or law not, however, Invoking principle does language. or very act possibility that counter foreign 108 S.Ct. at 2554. Patent law and Congress cap, evi- preserving the $75 specialization law are areas of narrow modify applicability intent an denced learning generally require common to not prior judicial decisions. contrast, lawyers By States. the United the time-honored also advance Courts competence immigration requires no law support of a argument result” knowledge; “absurd peculiar attorney base an cost-of-living adjustments pri holding that “general with a amount of law- reasonable Trichilo, permissible. ability” 823 yerly knowledge 1985 are learn im- or to can Club, Allowing a 706-07; migration premium 820 F.2d at for law. F.2d at Sierra knowledge immigration therefore Congress law plausible I find runs coun- counter to the Court’s attorney compen a struck balance between “preserve intended sel to effectiveness ever-increasing and concerns over sation cap.” of the Id. $75 Pierce, 108 budget deficit. See federal thought (“Congress Finally, govern- $75 S.Ct. at whether the I enough generally quite public “litigious position” may properly an hour was ment’s fees, “special constitute factor.” The district lawyers’ whatever a reimbursement for government’s posture be”). court described might local or national market as follows: compromise may have been neces Such a Many sary in the re-enactment of contentions order insure postures so, litigating If were unwarrant- Act. Equal Access to Justice unnecessarily prolonged the liti- ed and political represents cap a reasonable $75 gation. used all of its compromise open judicial “interpretation.” in opposing Plain- considerable resources U.S.A., Chevron, Cf Inc. v. Na . From tiff’s contentions at turn. Council, Inc., Resources tional Defense discovery, through trial and suc- pre-trial 865-66, 104 S.Ct. 467 U.S. government moved appeals, cessive if (1984). But such 81 L.Ed.2d no Orders, re- forced stays of Court struck, Congress in fact balance relief, peated emergency applications erred, problem Congress, is for not the posture requiring a put in a Plaintiffs courts, remedy. issues, pleaded every mo- brief on all Second, I disagree majori- also tion, law, in fact opposed, as well ty’s holding lawyer specializing that a every important asserted each and issue possess special a immigration may law skill by Plaintiffs. entitling depths him to increased fees. majority opinion at 1318. of fourth-amendment law first-amend- judge to fresh instructs take a law, murky no less example, ment look at this behavior constitutes whether immigration law. than recesses factor,” advising nothing “special precedent majority opinion, With applicable” to a “generally “routine” or it difficult to iden- district courts will find litigation” count spectrum of can “broad justify tify specialty that does 2554), sug- (citing Pierce, but an increase. gesting easy imagine a situa- is “[i]t factors,” tion not ‘substan- “special In its where discussion of by improper tially justified’ is exacerbated Pierce Court stated: purposes in defending the lawsuit.” Ante

note 13.

Certainly, government lawyers should be private lawyers.

no less zealous than As

outlined simply making full use of available

process to advance the interests of their

client, the United I States. see no reason

why attorney “special zeal should be a

factor,” Congress surely anticipated lawyers

zeal of its own when set the $75 Moreover,

cap. finding as a

government’s position had no “reasonable

basis both law and fact” is a condition

precedent award, allowing

premium based on the “con- litigating postures” likely

tentions and will

lead courts to double-count the substantial-

justification factor. Rule 11 sanctions are

always compensate litigant available to “a opponent

whose acts in faith in bad insti-

tuting conducting litigation.” Fed.R. advisory

Civ.P. 11 committee’s note.

As I premiums would hold that in excess per hour $75 are not available infla- prior

tion knowledge immi- law,

gration government's or for the pos- litigation,

ture in I respectfully dissent III ‍​​‌​​​​‌​‌‌​​​​‌‌‌​‌​‌​​​​​‌​‌‌‌‌‌​​​​​​‌‌‌​​‌​​‍B Parts and IV of the court’s

opinion.

Case Details

Case Name: Marie Lucie Jean v. Alan C. Nelson

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 27, 1988

Citation: 863 F.2d 759

Docket Number: 86-5887

Court Abbreviation: 11th Cir.