Truckers United for Safety v. Mead

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2003 Decided June 3, 2003

No. 02-5173

TRUCKERS UNITED FOR SAFETY, ET AL.,

APPELLEES

v.

KENNETH M. MEAD, THE INSPECTOR GENERAL,

DEPARTMENT OF TRANSPORTATION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 98cv02793)

R. Craig Lawrence, Assistant United States Attorney, ar-

gued the cause for the appellant. Roscoe C. Howard, Jr.,

United States Attorney, and Michael C. Johnson, Assistant

United States Attorney, were on brief.

Anthony J. McMahon argued the cause for the appellees.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: HENDERSON, RANDOLPH and GARLAND, Circuit

Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: The Inspector

General (IG) of the United States Department of Transporta-

tion (DOT) seeks reversal of the district court’s March 26,

2002 order awarding Truckers United for Safety and other

individually named trucking companies (collectively, TUFS)

enhanced attorney’s fees under the Equal Access to Justice

Act (EAJA), 28 U.S.C. § 2412(d). Concluding that ‘‘special-

ized expertise in the safety aspects of the trucking industry’’

constituted a ‘‘special factor’’ that warranted an award of

attorney’s fees in excess of EAJA’s statutory cap, the district

court awarded attorney’s fees to TUFS’s lead counsel at the

enhanced rate of $260 per hour. Truckers United for Safety

v. Mead, 201 F. Supp. 2d 52, 59 (D.D.C. 2002). On appeal,

the IG argues that the district court erred in awarding a fee

enhancement because TUFS failed to establish that its lawyer

possessed ‘‘some distinctive knowledge or specialized skill

needful for the litigation in question.’’ Pierce v. Underwood,

487 U.S. 552, 572 (1988). We agree and therefore reverse.

I.

On November 17, 1998, TUFS filed suit in the district court

alleging that the IG lacked the legal authority to conduct

investigations of motor carrier compliance in conjunction with

the Office of Motor Carriers (OMC).1 TUFS asserted that

the IG was not authorized to engage in DOT operations—

specifically, criminal investigations of standard compliance

1 ‘‘In keeping with its mission to enforce motor carrier safety

regulations, the [OMC] initiated compliance review investigations

into [the] record keeping practices [of the appellees].’’ Truckers

United for Safety v. Mead, 251 F.3d 183, 185 (D.C. Cir. 2001). As

part of that effort, the OMC used the IG’s ‘‘purported search and

seizure authority’’ to raid the premises of some of TUFS’s mem-

bers. Id. The raids, which took place in October 1998, resulted in

the seizure of the appellees’ business records. Id. at 188.

3

with federal motor carrier safety regulations—and sought

declaratory relief and a preliminary injunction directing the

IG to cease his compliance review investigations and to return

any property seized in the course of such investigations. The

IG moved for summary judgment, asserting that his office

had acted within its authority.

The district court granted the IG’s motion. Truckers

United for Safety v. Mead, 86 F. Supp. 2d 1 (D.D.C. 2000).2

Although it found that the Inspector General Act did not

authorize the IG to conduct investigations into motor carrier

compliance, id. at 9–18, it concluded that the Motor Carrier

Safety Improvement Act of 1999 (MCSIA), Pub. L. No.

106–159, 113 Stat. 1748, 1773 (1999), enacted pendente lite,

gave him the authority to do so, Truckers United, 86 F. Supp.

2d at 18–19.

Vacating the district court’s decision on appeal, we held

that the MCSIA did not retroactively authorize investigations

that were ultra vires when conducted. Truckers United for

Safety v. Mead, 251 F.3d 183, 190–92 (D.C. Cir. 2001).3

Shortly thereafter, on July 5, 2001, TUFS filed a petition for

attorney’s fees and costs under EAJA with the district court.4

2 The district court also granted the IG’s motion to dismiss,

holding that TUFS lacked organizational standing to pursue claims

on behalf of its members. Truckers United, 86 F. Supp. 2d at 4–5,

19 n.8. We reversed the district court, however, holding that, while

TUFS asserted no basis for organizational standing, it did possess

representational standing. Truckers United, 251 F.3d at 188–89.

3 We upheld the district court’s construction of the Inspector

General Act, however, concluding that the IG acted outside the

scope of his authority by ‘‘involv[ing] himself in a routine agency

investigation that was designed to determine whether individual

trucking companies were complying with federal motor carrier

safety regulations.’’ Truckers United, 251 F.3d at 189.

4 EAJA provides that a court is to award ‘‘fees and other

expenses’’ to a party that has prevailed in a civil action 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).

4

Although EAJA generally limits the recovery of attorney’s

fees to a rate of $125 per hour, 28 U.S.C. § 2412(d)(2)(A)(ii),

TUFS asked the district court to award its lead counsel an

enhanced hourly fee of $260 due to ‘‘the limited availability of

qualified attorneys for the proceedings involved,’’ Petition of

Plaintiffs for Fees and Expenses Under the Equal Access to

Justice Act at 10. The IG opposed the petition on the

grounds that his actions were ‘‘substantially justified’’ and

that TUFS’s lawyer did not qualify for a fee enhancement

under EAJA.

In an order filed March 26, 2002, the district court awarded

TUFS $115,682.24 in costs, fees and expenses. Truckers

United, 201 F. Supp. 2d at 59. After concluding that the IG

was not ‘‘substantially justified’’ in conducting the compliance

investigations, id. at 55–57, the district court discussed

TUFS’s request for a fee enhancement, id. at 57–59. Al-

though it observed that TUFS’s counsel ‘‘did gain much of his

knowledge through his experience as Chief Counsel for the

[Federal Highway Administration (FHWA)]’’ and that ‘‘this

experience and the knowledge acquired could have been

acquired by any member of the bar through competent

research,’’ the district court concluded that ‘‘he also gained

specialized expertise in the safety aspects of the trucking

industry and how this interplayed with the regulatory

scheme.’’ Id. at 59. Finding that expertise ‘‘to be a special

factor which warrants an award of [attorney’s] fees in ex-

cess[ ] of the statutory cap,’’ the district court awarded attor-

ney’s fees at the requested rate of $260 per hour. Id. This

appeal followed.5

5 In our September 11, 2002 order denying TUFS’s motion for

summary affirmance, we directed the parties to address in their

briefs whether an award of any attorney’s fees would be appropri-

ate under EAJA and, if so, at what rate those attorney’s fees should

be calculated. Nevertheless, the IG declined to challenge the

district court’s conclusion that his position in the underlying litiga-

tion was not ‘‘substantially justified.’’ 28 U.S.C. § 2412(d)(1)(A).

As a result, the only question before us is whether the district court

erred in awarding an enhanced fee.

5

II.

We review an EAJA fee award for abuse of discretion and

‘‘will reverse the district court if its decision rests on clearly

erroneous factual findings or if it leaves us with a definite and

firm conviction that the court below committed a clear error

of judgment in the conclusion it reached upon a weighing of

the relevant factors.’’ F.J. Vollmer Co. v. Magaw, 102 F.3d

591, 596 (D.C. Cir. 1996) (internal quotations omitted). How-

ever, if the propriety of a fee award turns ‘‘on conclusions of

law, such as an interpretation of the statutory terms that

define eligibility for an award,’’ our review is de novo. Nat’l

Ass’n of Mfrs. v. Dep’t of Labor, 159 F.3d 597, 599 (D.C. Cir.

1998). Because TUFS has failed to establish that its counsel

possessed ‘‘some distinctive knowledge or specialized skill

needful for the litigation in question,’’ Pierce, 487 U.S. at 572,

we conclude that the district court abused its discretion in

awarding the enhanced fee.

EAJA provides that ‘‘attorney fees shall not be awarded in

excess of $125 per hour unless the court determines that TTT

a special factor, such as the limited availability of qualified

attorneys for the proceedings involved, justifies a higher fee.’’

28 U.S.C. § 2412(d)(2)(A)(ii). Here, the IG contends that the

district court erred in concluding that ‘‘specialized expertise

in the safety aspects of the trucking industry’’ constituted a

‘‘special factor’’ that warranted a fee enhancement under

EAJA. Truckers United, 201 F. Supp. 2d at 59. The IG’s

argument is, in our view, well-founded.

In Pierce v. Underwood, the United States Supreme Court

explained that EAJA’s ‘‘limited availability’’ exception ‘‘must

refer to attorneys ‘qualified for the proceedings’ in some

specialized sense, rather than just in their general legal

competence.’’ Pierce, 487 U.S. at 572. Construing the provi-

sion narrowly, the Court held that a lawyer must possess

‘‘some distinctive knowledge or specialized skill needful for

the litigation’’ in order to recover attorney’s fees in excess of

the statutory cap; ‘‘an extraordinary level of the general

lawyerly knowledge and ability useful in all litigation’’ does

not suffice. Id. ‘‘[D]istinctive knowledge or specialized skill’’

6

can include, the Court observed, ‘‘an identifiable practice

specialty such as patent law, or knowledge of foreign law or

language.’’ Id. Fee awards exceeding the statutory cap are

therefore permitted, the Court ruled, only ‘‘[w]here such

qualifications are necessary and can be obtained only at rates

in excess of the [$125] cap.’’ Id. It emphasized that ‘‘the

other ‘special factors’ envisioned by the exception must be

such as are not of broad and general application.’’ Id. at 573.

We have similarly declined to construe EAJA’s fee en-

hancement provision in a liberal fashion. See F.J. Vollmer,

102 F.3d at 598–99; see also In re Sealed Case 00–5116, 254

F.3d 233 (D.C. Cir. 2001). In F.J. Vollmer, for example, we

held that a lawyer’s ‘‘specialization in firearms law’’ did not

constitute a ‘‘special factor’’ warranting a fee enhancement.

F.J. Vollmer, 102 F.3d at 598–99; see also Waterman Steam-

ship Corp. v. Maritime Subsidy Bd., 901 F.2d 1119, 1124

(D.C. Cir. 1990) (fee enhancement under EAJA available only

for lawyers whose specialty ‘‘requir[es] technical or other

education outside the field of American law’’) (emphasis in

original). Although we acknowledged that ‘‘lawyers practic-

ing administrative law typically develop expertise in a particu-

lar regulated industry, whether energy, communications, rail-

roads, or firearms,’’ we also observed that ‘‘they usually gain

this expertise from experience, not from the specialized train-

ing justifying fee enhancement.’’ F.J. Vollmer, 102 F.3d at

598; see also In re Sealed Case, 254 F.3d at 236 (‘‘Although

federal election law involves a complex statutory and regula-

tory framework, the field is not beyond the grasp of a

competent practicing attorney with access to a law library

and the other accoutrements of modern legal practice.’’)

(internal quotations omitted). Therefore, stressing that noth-

ing in EAJA or its legislative history indicates that the

Congress intended to entitle ‘‘all lawyers practicing adminis-

trative law in technical fields’’ to a fee enhancement, we

refused to recognize ‘‘expertise acquired through practice’’ as

a special factor warranting an enhanced fee.6 F.J. Vollmer,

102 F.3d at 598–99.

6 We have previously recognized that ‘‘[a] number of our sister

circuits have adopted a similar approach, refusing to award higher

7

The IG argues that both Pierce and F.J. Vollmer require a

reversal of TUFS’s fee award because the district court

awarded a fee enhancement based upon the specialized skill

and knowledge TUFS’s lawyer acquired through his experi-

ence as FHWA Chief Counsel. If the district court’s decision

had turned solely on the lawyer’s expertise in federal highway

law, the IG would undoubtedly be correct. See, e.g., F.J.

Vollmer, 102 F.3d at 598–99. Indeed, even TUFS acknowl-

edges that its lawyer’s legal expertise—in and of itself—

would not justify a fee enhancement. See Br. for Appellees

at 3 (‘‘Appellee McMahon agrees with the IG that such

expertise would not be a special factor as the term is used in

the EAJA.’’). Expertise in federal highway law, however,

was not the precise basis of the district court’s ruling. Al-

though it recognized that TUFS’s lawyer gained much of his

expertise through his experience as FHWA Chief Counsel,

the district court found that ‘‘he also gained specialized

expertise in the safety aspects of the trucking industry and

how this interplayed with the regulatory scheme.’’ Truckers

United, 201 F. Supp. 2d at 59. It is this ‘‘specialized exper-

tise’’ that the district court held to be a special factor war-

ranting an award of attorney’s fees in excess of EAJA’s

statutory cap. Id.

We need not decide, however, whether ‘‘specialized exper-

tise in the safety aspects of the trucking industry’’ amounts to

a ‘‘special factor’’ under Pierce and F.J. Vollmer. Id. In our

view, the plain flaw in the district court’s decision is that

expertise in the ‘‘safety aspects of the trucking industry’’ was

not ‘‘needful for the litigation in question.’’ Pierce, 487 U.S.

at 572; see also Hyatt v. Barnhart, 315 F.3d 239, 252–53 (4th

Cir. 2002) (‘‘no satisfactory showing’’ that expertise in class

action litigation and social security disability law was ‘‘neces-

fees based on counsel’s expertise in a particular subject.’’ In re

Sealed Case, 254 F.3d at 236 (collecting cases); see, e.g., Estate of

Cervin v. Commissioner, 200 F.3d 351 (5th Cir. 2000) (expertise in

tax law, combined with expertise in Texas community property and

insurance laws, not special factor); Raines v. Shalala, 44 F.3d 1355

(7th Cir. 1995) (expertise in social security law not special factor).

But see Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991) (expertise in

environmental litigation constitutes special factor).

8

sary’’ to handle dispute regarding interpretation of settlement

agreement).

Although TUFS argues that ‘‘[a]n understanding of why

[the] Congress and the Secretary of Transportation would not

assign authority to administer regulations intended to combat

fatigue to criminal investigators, rather than trained safety

specialists, is greatly facilitated by an appreciation of the

complex factors involved in fatigue,’’ Br. for Appellees at 5,

neither the district court’s order nor our earlier opinion

mentions ‘‘the complex factors involved in fatigue’’ in its

analysis, see Truckers United, 251 F.3d at 189–92; Truckers

United, 86 F. Supp. 2d at 9–19. Given the statutory question

at issue—whether the IG had the legal authority to conduct

certain investigations—it is hardly surprising that ‘‘the com-

plex factors involved in fatigue’’ failed to influence either

court’s decision. See Truckers United, 251 F.3d at 189 (‘‘The

principal issue in this case is whether the IG had authority in

1998 to investigate motor carriers’ compliance with safety

regulations.’’); Truckers United, 86 F. Supp. 2d at 9 (‘‘The

issue in this case is whether [the Inspector General Act]

provide[s] the [IG] with authority to conduct investigations of

motor carrier compliance with the [Motor Carrier Safety Act

and its implementing regulations].’’). TUFS’s failure to men-

tion safety issues generally—or driver fatigue issues specifi-

cally—in its complaint indicates that the omission was not the

result of judicial oversight. See Amended Complaint for

Declaratory Judgment and Preliminary and Permanent In-

junction at 4 (identifying common issues of law and fact as

‘‘the authority of the IG to investigate regulatory compliance

by the [c]lass members, the manner in which these investiga-

tions are conducted, the irreparable harm suffered or poten-

tial, and the lack of adequate remedies at law’’); id. at 13

(praying for, inter alia, order holding underlying investiga-

tions are beyond IG’s authority). We therefore conclude that

‘‘specialized expertise in the safety aspects of the trucking

industry’’ is neither ‘‘needful’’ nor ‘‘critical,’’ Pierce, 487 U.S.

at 572; Truckers United, 201 F. Supp. 2d at 59, but rather—

at best—tangential to the underlying litigation.

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III.

For the foregoing reasons, we conclude that the district

court abused its discretion in awarding TUFS attorney’s fees

in excess of EAJA’s statutory cap. We therefore reverse the

judgment of the district court and remand for a recalculation

of fees and costs in accordance with 28 U.S.C.

§ 2412(d)(2)(A)(ii).

So ordered.