Role Models Amer Inc v. White, Thomas

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided January 13, 2004

No. 02-5037

ROLE MODELS AMERICA, INC.,

APPELLANT

v.

LES BROWNLEE, ACTING SECRETARY OF THE ARMY, ET AL.,

APPELLEES

On Appellant’s Application for Attorneys’ Fees

P. David Richardson filed the application for attorneys’

fees on behalf of appellant. With him on the application was

Joseph C. Port Jr.

R. Craig Lawrence, Assistant U.S. Attorney, filed the

opposition on behalf of appellees. With him on the opposition

were Roscoe C. Howard Jr., U.S. Attorney, and Claes H.

Lewenhaupt, Special Assistant.

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: GINSBURG, Chief Judge, and ROGERS and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In an earlier decision in this case, we

ordered the Secretary of the Army to correct procedural

errors he committed in disposing of excess military property,

errors that deprived appellant, a non-profit organization, of

an opportunity to compete for the property. For its work in

securing that decision, appellant now seeks an award of

attorneys’ fees pursuant to the Equal Access to Justice Act.

Because appellant has satisfied the statutory requirements

for an award, we grant its application for fees. But because

it has failed to justify the amount it seeks, we award signifi-

cantly less than requested.

I.

Our previous opinion fully describes the background of this

case, see Role Models Am., Inc. v. White, 317 F.3d 327, 328–

31 (D.C. Cir. 2003), so we only summarize it here. Appellant

Role Models America, Inc., a non-profit educational organiza-

tion, seeks to establish a military-style magnet high school for

troubled youth. In the mid–1990s, as part of its plan to

locate the high school on a former military installation, Role

Models attempted to acquire Fort Ritchie, a closed U.S.

Army base in Maryland. When its efforts proved unsuccess-

ful, Role Models filed suit in the United States District Court

for the District of Columbia, claiming that the Secretary of

the Army, one of the officials responsible for disposing of

Fort Ritchie, had violated federal regulations by failing to

provide adequate notice of the fort’s availability. In its

complaint, Role Models asked the district court to declare

that the Secretary’s failure to provide adequate notice was

unlawful; to direct the Secretary to comply with regulatory

requirements, thus giving Role Models an opportunity to

compete for the property; and to enjoin any conveyance of

Fort Ritchie until the Secretary did so—or, alternatively, to

require the Secretary to transfer the base to Role Models.

3

The district court denied Role Models’s motion for a pre-

liminary injunction, Role Models Am., Inc. v. White, 193 F.

Supp. 2d 76, 87 (D.D.C. 2002), but we reversed, see 317 F.3d

327 (D.C. Cir. 2003). Concluding that the Secretary had

violated the clear text of the relevant regulations by failing to

provide adequate notice that surplus military property was

available, we remanded the case to the district court ‘‘with

instructions to enter a permanent injunction against convey-

ance of the Fort Ritchie property until the Government

remedies the procedural errors’’ it had committed. Role

Models, 317 F.3d at 333–34.

Having secured the relief it sought, Role Models now

requests, pursuant to the Equal Access to Justice Act, 28

U.S.C. § 2412 (2000) (EAJA), reimbursement for the attor-

neys’ fees that it incurred in bringing the appeal. The EAJA

provides that:

[A] court shall award to a prevailing party other

than the United States fees and other expenses TTT

incurred by that party in any civil action (other than

cases sounding in tort), including proceedings for

judicial review of agency action, brought by or

against the United States TTT, unless the court finds

that the position of the United States was substan-

tially justified or that special circumstances make an

award unjust.

Id. § 2412(d)(1)(A). The government opposes any award of

fees, contending that notwithstanding our merits opinion,

Role Models is not a ‘‘prevailing party.’’ In any event, the

government argues, its position was ‘‘substantially justified.’’

Even if a fee award is warranted, the government insists, the

amount that Role Models requests is excessive. We address

each argument in turn.

II.

The government contends that Role Models is not entitled

to a fee award at this point because it has yet to obtain Fort

Ritchie. In support, the government relies primarily on

Waterman Steamship Corp. v. Maritime Subsidy Board, 901

4

F.2d 1119 (D.C. Cir. 1990), in which we denied EAJA fees to

plaintiffs who, although they won a remand directing an

agency to correct procedural errors it had made in awarding

a contract, failed to obtain an order enjoining the provision of

services under the contract. ‘‘From a party’s viewpoint,’’ we

explained, ‘‘correct procedures TTT are largely (if not entirely)

instruments to a desired end—a change in someone’s primary

conduct in the real world: relief from a restriction, grant of a

benefit, imposition of a restriction on others, etc.’’ Id. at

1122. We therefore concluded that an ‘‘award of EAJA fees

for corrective efforts that yield no real-world benefit would

reduce the normal deterrent to litigative nit-picking.’’ Id.

Waterman is very different from this case. Role Models

obtained not only a remand to correct procedural errors, but

also an injunction barring the Secretary from transferring

Fort Ritchie until he complied with applicable regulations.

In other words, Role Models obtained exactly what Water-

man found missing: ‘‘a change in someone’s primary conduct

in the real world TTT [such as by the] imposition of a

restriction on others.’’ Id.

This case is much more like Environmental Defense Fund,

Inc. v. Reilly, 1 F.3d 1254 (D.C. Cir. 1993), a post-Waterman

case in which we held that the EDF was a prevailing party

because it had obtained an order vacating a rule that the

EPA promulgated after inadequate notice and comment. We

rejected the EPA’s argument that because the agency reis-

sued the same rule after proper notice and comment, the

EDF did not qualify as a prevailing party. ‘‘In the real world

of the APA,’’ we said, ‘‘an opportunity for comment—which

the EDF did get—is not to be denigrated.’’ Id. at 1257.

That statement applies here as well. Whether or not Role

Models eventually acquires Fort Ritchie, the opportunity to

compete for it, which Role Models successfully achieved

through the injunction—an injunction that was the functional

equivalent of vacating the rule in Reilly—‘‘is not to be

denigrated.’’

Similarly, in Grano v. Barry, 783 F.2d 1104 (D.C. Cir.

1986), we held that a plaintiff had ‘‘prevailed’’ by convincing

5

the district court to enjoin the demolition of an historic

building until a referendum on the demolition had occurred.

Although the building was ultimately demolished, that had no

effect on our view of the prevailing-party issue because the

injunction ‘‘had the distinct external effect of postponing the

razing of the tavern until the election could be held,’’ and

hence ‘‘the victory represented a substantial part of what

plaintiffs asked the court for in the first place.’’ Id. at 1110.

The injunction here had a comparable ‘‘external effect’’—

postponing conveyance of Fort Ritchie until the Secretary

complies with the relevant regulations—that likewise repre-

sents ‘‘a substantial part of what plaintiff[ ] asked the court

for in the first place.’’

Nothing in Thomas v. National Science Foundation, 330

F.3d 486 (D.C. Cir. 2003), requires a different result. There

we held that plaintiffs who had obtained a preliminary injunc-

tion were not prevailing parties because they had ‘‘filed a

lawsuit in order to obtain a refund from NSF, [and] the

preliminary injunction did nothing to vindicate that claim.’’

Id. at 493. In adopting this reasoning, we distinguished

Grano, in which the injunction ‘‘gave the plaintiffs the precise

relief that they had sought.’’ Id. The injunction here simi-

larly gave Role Models the precise relief it sought.

III.

Role Models’s status as a prevailing party means that we

must determine whether the government’s position was ‘‘sub-

stantially justified.’’ In Pierce v. Underwood, 487 U.S. 552

(1988), the Supreme Court held that a position is substantially

justified ‘‘if a reasonable person could think it correct, that is,

if it has a reasonable basis in law and fact.’’ Id. at 566 n.2.

Pierce added that just because the government loses on the

merits does not mean that its position lacked substantial

justification. Id. at 569.

Arguing that its position was substantially justified, the

government focuses largely on its litigation position, relying

heavily on the fact that it prevailed in the district court. The

government, however, must demonstrate the reasonableness

6

not only of its litigation position, but also of the agency’s

actions, e.g., Halverson v. Slater, 206 F.3d 1205, 1208 (D.C.

Cir. 2000); see also 28 U.S.C. § 2412(d)(2)(D) (providing that

‘‘ ‘position of the United States’ means, in addition to the

position taken by the United States in the civil action, the

action or failure to act by the agency upon which the civil

action is based’’), and here we are convinced that the Secre-

tary’s actions were not substantially justified. As explained

at greater length in our prior opinion, the applicable regula-

tions provide that the relevant agency—here, the Secretary of

the Army—‘‘shall [p]ublish TTT the time period during which

[it] will receive notices of interest from TTT representatives of

the homeless[ ] and other interested parties.’’ 24 C.F.R.

§ 586.20(c)(1) (2003) (emphasis added); 32 C.F.R.

§ 176.20(c)(1) (2003) (emphasis added). The mandatory

phrasing of these identically worded regulations leaves the

Secretary no discretion, while the use of the conjunction

‘‘and’’ indicates in no uncertain terms that the Secretary must

make clear that he will receive notices not only from repre-

sentatives of the homeless, but also from other interested

parties. Despite the clarity of these regulations, the Secre-

tary chose to publish a notice entitled ‘‘Homeless Assistance

Outreach Initiative,’’ and to say in the notice’s opening state-

ment that he would ‘‘receive Notices of Interest from repre-

sentatives of agencies that seek to serve the needs of our

community’s homeless population.’’ The remainder of the

notice only bolstered the impression that it was directed

exclusively at advocates for the homeless, leaving nothing to

indicate to Role Models—an organization with an entirely

different mission—that the Secretary was soliciting notices

from ‘‘other interested parties’’ as well. Thus, as in F.J.

Vollmer Co. v. Magaw, 102 F.3d 591 (D.C. Cir. 1996), the

agency’s position lacked substantial justification because it

was ‘‘wholly unsupported by the text’’ of the applicable regu-

lations. Id. at 593.

The government cites our decision in Trahan v. Brady, 907

F.2d 1215 (D.C. Cir. 1990), to support its argument that an

agency’s actions may be substantially justified even though a

court later concludes that the agency violated its regulations.

We conclude here, however, not that the Secretary’s violation

7

of the regulations in and of itself demonstrates the absence of

substantial justification, but rather that the regulations were

so clear and the Secretary’s failure to comply with them so

obvious that his actions could not ‘‘appear correct to a reason-

able person.’’ Id. at 1220. Bearing in mind that the hall-

mark of the substantial justification test is reasonableness, we

note, as we did in Vollmer, that ‘‘[a]lthough the merits panel

did not use the word ‘unreasonable,’ TTT it highlighted the

fundamental unreasonableness of the [agency’s] position.’’

102 F.3d at 596. In our merits opinion in this case, we stated

that ‘‘[w]e cannot imagine how Role Models, an organization

devoted to establishing schools for at-risk minors, could possi-

bly have interpreted [this] notice TTT as an invitation to apply

for the Fort Ritchie property.’’ 317 F.3d at 332. Nor could

we—or can we now—imagine how the Secretary could have

viewed this notice as satisfying his obligations under the

regulations. That he could not reasonably have done so only

underscores the fact that his position lacked substantial justi-

fication. Our conclusion, then, ‘‘rests primarily on our view,

informed by an analysis of the merits panel’s opinion, that the

case was easy and the [Secretary’s] arguments worthy of

little credence, as well as on the [Secretary’s] failure to offer

any convincing reasons for believing that [his] interpretation

of [the regulations] was substantially justified.’’ Halverson,

206 F.3d at 1212.

IV.

This brings us to the amount of fees to be awarded. The

EAJA authorizes courts to award ‘‘reasonable attorney fees.’’

28 U.S.C. § 2412(d)(2)(A). Role Models seeks compensation

for the work of two partners, one counsel, one associate, six

legal assistants, one law clerk, two research librarians, and a

legislative specialist. Their hourly rates range from $495 for

the lead partner to $285 for the associate to $165 for the law

clerk. According to Role Models, these fourteen individuals

logged a total of 1058 hours in connection with the appeal and

with the preparation of its fee petition. Multiplying the

appropriate rates and the number of hours, Role Models

requests $342,741.25 in legal fees. It also seeks $12,773.44

8

for expenses, as well as leave to ‘‘supplement its Application

to reflect the additional fees and expenses incurred while

litigating its EAJA application.’’ Appellant’s Reply to Appel-

lees’ Opp’n to Appellant’s Application for Att’ys’ Fees and

Costs at 1 n.2. Insisting that Role Models’s request is

‘‘clearly unreasonable,’’ the government urges us to reduce it

‘‘drastically.’’ Appellees’ Opp’n to Appellant’s Application for

Att’ys’ Fees and Costs at 12.

To resolve this dispute, we consider first the hourly rate

and then the number of hours requested. See Murray v.

Weinberger, 741 F.2d 1423, 1427 (D.C. Cir. 1984) (‘‘The

starting point in fee-setting under the statute TTT is the

number of hours reasonably expended multiplied by a reason-

able hourly rate.’’). Throughout our analysis we will rely on

EAJA precedent as well as on case law arising under other

fee-shifting statutes. See, e.g., Indep. Fed’n of Flight Attend-

ants v. Zipes, 491 U.S. 754, 759 n.2 (1989) (noting that ‘‘fee-

shifting statutes’ similar language is a strong indication that

they are to be interpreted alike’’ (internal quotation marks

omitted)).

Hourly Rates

The EAJA provides that ‘‘attorney fees shall not be award-

ed in excess of $125 per hour unless the court determines that

an increase in the cost of living or 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).

Role Models seeks compensation at rates above the $125 cap,

claiming that higher rates are warranted because of both the

presence of special factors and increases in the cost of living.

Role Models contends that a special-factor enhancement is

justified by ‘‘the quality of representation’’ that its attorneys

provided. See Appellant’s Application for Att’ys’ Fees Under

the Equal Access to Justice Act at 11. Specifically, it points

to ‘‘the effort, expertise, actual time expended by Sidley in

this case and the exceptional result obtained.’’ Id. Role

Models also says the case involved a ‘‘complex statutory and

regulatory scheme,’’ id. at 10, and that its attorneys had to

9

prepare the appeal in a relatively short period of time be-

cause they did not take on the case until after the district

court denied a preliminary injunction. Finally, Role Models

points out that its attorneys’ regular billing rates, which Role

Models contends are consistent with those of other large

Washington law firms, far exceed the statutory cap. The

government argues that none of these factors justifies a

special-factor enhancement.

Setting aside that there seems to be nothing particularly

‘‘complex’’ about this appeal—indeed, it appears just the type

of garden-variety administrative law matter that large Wash-

ington law firms handle routinely—the Supreme Court in

Pierce explicitly rejected virtually all of the arguments for a

special-factor enhancement that Role Models raises in this

case. Pierce explained that in order to ‘‘preserve the intend-

ed effectiveness of the [statutory] cap, TTT the other ‘special

factors’ envisioned by the exception must be such as are not

of broad and general application.’’ 487 U.S. at 573. After

giving examples of acceptable special factors, including knowl-

edge of a foreign language or expertise in ‘‘an identifiable

practice specialty such as patent law,’’ id. at 572, the Court

listed several factors that it deemed insufficient to merit an

increase in the statutory cap. The Court stated that ‘‘[t]he

‘novelty and difficulty of issues,’ ‘the undesirability of the

case,’ the ‘work and ability of counsel,’ and ‘the results

obtained,’ are factors applicable to a broad spectrum of

litigation; they are little more than routine reasons why

market rates are what they are.’’ Id. at 573 (citations

omitted); see also id. at 572 (‘‘We do not think Congress

meant that if the rates for all lawyers in the relevant city TTT

come to exceed $75 per hour (adjusted for inflation) then that

market-minimum rate will govern instead of the statutory

cap.’’).

Only one of Role Models’s justifications for a special-factor

enhancement is not among those that Pierce expressly reject-

ed: that its attorneys had to prepare the appeal in a relative-

ly short period of time. But we think that Pierce’s logic

renders this consideration insufficient to support a statutory

cap increase. Pierce made clear that an increase in the cap is

10

justified only by work requiring specialized skills or knowl-

edge beyond what lawyers use on a regular basis. Producing

high-quality work on a short deadline hardly satisfies this

standard. While we recognize that Role Models’s attorneys

did a fine job in securing a favorable result, our experience

with the work of many large firms convinces us that Role

Models’s lawyers were far from the only ones who could have

achieved that result under the same time pressure.

We agree, however, that a cost-of-living increase is war-

ranted. As Role Models points out, the cost of living in the

Washington, D.C. area, as measured by the Consumer Price

Index, has risen approximately 14.6% since Congress imposed

the $125-per-hour cap. Role Models argues that the cap

should be increased by the same percentage, to $143.25 per

hour. The government does not challenge this assertion.

We have granted such adjustments in other cases, see, e.g.,

Cooper v. United States R.R. Ret. Bd., 24 F.3d 1414, 1417

(D.C. Cir. 1994) (per curiam); Jones v. Lujan, 887 F.2d 1096,

1101 (D.C. Cir. 1989) (per curiam), and have found no case

where we denied one. This is not surprising, as ‘‘courts

routinely approve cost-of-living adjustments.’’ Gregory C.

Sisk, The Essentials of the Equal Access to Justice Act (Part

Two), 56 LA. L. REV. 1, 128 (1995). Accordingly, we will

increase the cap to $143.25 per hour.

Most of the hourly rates for the non-lawyers, including the

legal assistants and the law clerk, fall below this adjusted

statutory cap. Role Models has the burden of justifying the

rates at which these individuals billed for their time, see, e.g.,

Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (‘‘[C]ourts

properly have required prevailing attorneys to justify the

reasonableness of the requested rate or rates.’’), but it has

submitted no information about the prevailing market rate for

law clerks and legal assistants in the Washington area, nor

has it referred to either of the two matrices that we have

previously said litigants may rely upon when seeking fees, see

Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.

Cir. 1995) (‘‘[P]laintiffs may point to such evidence as an

updated version of the Laffey matrix [Laffey v. N.W. Air-

lines, Inc., 572 F. Supp. 354 (D.D.C. 1983)] or the U.S.

11

Attorney’s Office matrix, or their own survey of prevailing

market rates in the community.’’). Role Models has not even

taken the basic step of submitting an affidavit detailing the

non-attorneys’ experience and education. See In re North

(Bush Fee Application), 59 F.3d 184, 189 (D.C. Cir. 1995) (per

curiam) (finding an affidavit insufficient to meet the petition-

er’s burden of establishing the reasonableness of its attor-

neys’ hourly rates because the affiant failed to ‘‘swear to any

knowledge of the qualifications of the particular professionals

involved’’); Covington, 57 F.3d at 1110 (finding the petition-

ers’ burden to justify its rates met where the petitioners

‘‘submitted data demonstrating their attorneys’ experience in

the legal profession and in litigating complex federal court

cases, as well as information probative of their attorneys’ skill

and reputation’’). Because Role Models has justified neither

the law clerk’s nor the legal assistants’ requested rates—and

thus has failed to carry its burden—we will reduce those

rates by twenty-five percent. See United States ex rel.

Averback v. Pastor Medical Assocs., 224 F. Supp. 2d 342, 356

(D. Mass. 2002) (reducing two attorneys’ requested hourly

rates because of ‘‘the complete and utter lack of evidentiary

support underlying their claimed hourly rate’’). Although

Role Models has likewise submitted nothing to justify its

attorneys’ rates, since the adjusted statutory cap reduces

those rates by well over twenty-five percent we will make no

further reductions.

Number of Hours

Role Models, as mentioned, seeks reimbursement for 1058

hours of work. The government insists that 1058 hours is

unreasonable, arguing that several of Role Models’s attorneys

appear to have repeated each other’s work and adding that

‘‘[t]his case involved no discovery, did not require any travel,

did not require interview of witnesses, or involve multiple

pleadings.’’ Appellees’ Opp’n at 12. Defending its request,

Role Models argues (essentially reiterating its justifications

for a special-factor increase in the statutory cap) that the

substantial number of hours is reasonable ‘‘[g]iven the time

parameters and the complexity of the pertinent statutes and

12

regulations.’’ Appellant’s Reply at 7–8. It also states that

‘‘the research and writing performed for the appeal was

divided by factual and/or legal areas among the attorneys,’’

and that ‘‘at no time were there parallel, full-time work

efforts.’’ Id. at 8 (internal quotation marks omitted).

Role Models has the burden of establishing the reasonable-

ness of its fee request, see, e.g., North, 59 F.3d at 189, and

‘‘[s]upporting documentation ‘must be of sufficient detail and

probative value to enable the court to determine with a high

degree of certainty that such hours were actually and reason-

ably expended,’ ’’ In re Olson, 884 F.2d 1415, 1428 (D.C. Cir.

1989) (per curiam) (emphases omitted) (quoting United Slate,

Tile & Composition Roofers v. G & M Roofing & Sheet Metal

Co., 732 F.2d 495, 502 n.2 (6th Cir. 1984)). We agree with the

government that the time records Role Models has offered

permit no such certainty.

To begin with, many time records lump together multiple

tasks, making it impossible to evaluate their reasonableness.

See id. at 1428–29 (‘‘[W]hen an attorney bill[s] for more than

one task in a day, the court is left to approximate the amount

of time which should be allocated to each task. With such

inadequate descriptions the court cannot determine with a

high degree of certainty, as it must, that the billings are

reasonable.’’ (footnote and internal quotation marks omitted)).

For example, one entry indicates that on September 17 Role

Models’s lead lawyer spent 10.25 hours performing the follow-

ing six tasks: ‘‘Telecon[ference] with R. Alexander; confer-

ence with J. Port, K. Dodd, C. Bonat regarding research;

review research; draft brief; review bankruptcy materials;

revise brief.’’ Another entry indicates that on October 3 the

associate spent 1.25 hours on the following four tasks: ‘‘Re-

vise Lis Pendens filing; call bankruptcy attorney (G. John-

son) and leave message; call circuit court regarding proce-

dure for Lis Pendens filing; finalize draft of Lis Pendens

filing.’’ Not only do similarly lumped entries appear through-

out the time records, but the two we have mentioned include

time spent on bankruptcy matters, which have nothing to do

with this appeal. Although Role Models says it has deducted

13

all time spent on bankruptcy matters, the lumping prevents

us from verifying that it deducted the proper amount of time.

Many time records also lack adequate detail. See In re

Sealed Case, 890 F.2d 451, 455 (D.C. Cir. 1989) (per curiam)

(‘‘[W]e note numerous instances of documentation and specifi-

cation that do not adequately describe the legal work for

which the client is being billed. This makes it impossible for

the court to verify the reasonableness of the billings, either as

to the necessity of the particular service or the amount of

time expended on a given legal task.’’). The law clerk’s time

records, for instance, give an identical one-line entry, ‘‘[r]e-

search and writing for appellate brief,’’ on eight consecutive

weekdays: the clerk billed 8.25, 6.25, 7.25, 8.25, 7.25, 4, 8, and

4.25 hours on those days. Such generic entries are inade-

quate to meet a fee applicant’s ‘‘heavy obligation to present

well-documented claims.’’ Kennecott Corp. v. EPA, 804 F.2d

763, 767 (D.C. Cir. 1986) (per curiam). Similarly inadequate

are the numerous entries in which attorneys billed simply for

‘‘research’’ and ‘‘writing,’’ or for time spent in teleconferences

or meetings—over one hundred in total—the purposes of

which are not provided. See In re Meese, 907 F.2d 1192, 1204

(D.C. Cir. 1990) (per curiam) (reducing an award because

‘‘[t]he time records maintained by the attorneys, paralegals

and law clerks are replete with instances where no mention is

made of the subject matter of a meeting, telephone confer-

ence or the work performed during hours billed’’); Olson, 884

F.2d at 1428 (‘‘[T]here are multitudinous billing entries, in-

cluded among other entries for a particular day, that wholly

fail to state, or to make any reference to the subject discussed

at a conference, meeting or telephone conference.’’).

Attorneys also billed for time spent dealing with individuals

whose roles in the case are never explained. For example, on

March 27 one attorney charged over $2000 for time spent

performing the following tasks: ‘‘Emails with K. Esters of

CNS; telecons with R. Alexander; draft letter to Bresee;

review public benefit conveyance regs.’’ Who are Bresee and

K. Esters? What is their connection to this case? What is

CNS? Without answers to these questions, such time en-

tries—of which there are many examples throughout the time

14

records—are manifestly inadequate. See In re Donovan, 877

F.2d 982, 995 (D.C. Cir. 1989) (per curiam) (‘‘[W]e are also

compelled to deduct TTT charges incurred when attorneys

held conferences and teleconferences with persons referenced

as ‘Geiser’ and ‘Wells.’ The application fails to document who

these individuals are or the nature of their relationship to the

investigation; consequently, we cannot evaluate whether such

fees were reasonably incurred.’’).

The shortcomings in the time records are particularly

serious because we have no idea what it was about this case

that required an investment of over 1000 hours—nearly six

months’ worth of forty-hour weeks. Involving no discovery

and presenting neither complex nor contested facts, the case

presented a straightforward challenge to an agency’s failure

to comply with its own regulations. Although Role Models

rightly observes that its attorneys had to spend time familiar-

izing themselves with the case, we fail to see how this justifies

such a significant number of hours. We appreciate that the

attorneys made ‘‘substantial efforts TTT to produce the most

polished brief possible, and to be meticulously prepared to

respond to the Court’s questions at oral argument.’’ Appel-

lant’s Application at 10–11. But as we have said, ‘‘there is a

point at which thorough and diligent litigation efforts become

overkill.’’ Okla. Aerotronics, Inc. v. United States, 943 F.2d

1344, 1347 (D.C. Cir. 1991).

‘‘Duplication of effort is another basis on which [the] hours

seem excessive.’’ Davis County Solid Waste Mgmt. & Ener-

gy Recovery Special Serv. Dist. v. United States EPA, 169

F.3d 755, 761 (D.C. Cir. 1999) (per curiam). For example, on

three separate occasions two individuals, one an associate

charging over $200 an hour, billed time for filing the same

brief. Similar unexplained duplication of work appears

throughout the time records. More generally, Role Models

has failed to explain why this relatively straightforward case

required the efforts of three senior attorneys, each billing at

least $400 per hour. Perhaps something about this case

required so many lawyers expending so many hours. But

because the time records contain so little information, we

have no basis for concluding that hours that appear to be

15

excessive and redundant are in fact anything other than

excessive and redundant. See In re Espy (Townsend Fee

Application), 346 F.3d 199, 204 (D.C. Cir. 2003) (‘‘[I]nade-

quate documentation makes it impossible for the court to

verify the reasonableness of the billings, either as to the

necessity of the particular service or the amount of time

expended on a given legal task.’’ (internal quotation marks

omitted)); see also Murray, 741 F.2d at 1427 (‘‘[H]ours that

are ‘excessive, redundant, or otherwise unnecessary’ must be

excludedTTTT’’ (quoting Hensley v. Eckerhart, 461 U.S. 424,

434 (1983))).

The time records suffer from two additional defects. First,

on a number of occasions one attorney’s records indicate that

he or she spent time meeting with another attorney, while the

second attorney’s records report no such meeting. For ex-

ample, the associate reported that on February 13 she spent

4.5 hours on the following tasks: ‘‘Call Clerk’s Office for D.C.

Circuit regarding Bill of Costs’ filing procedure; discuss with

P.D. Richardson; read EAJA research.’’ Yet Mr. Richardson

billed no time discussing the case with the associate on that

day. In fact, Mr. Richardson charged no time at all on

February 13. Similarly, on July 16 Mr. Richardson billed for

time spent on a ‘‘[t]eleconference with J.C. Port,’’ but Mr.

Port’s time records, though including an entry for discussions

with the law clerk, contain no reference to a teleconference

with Mr. Richardson. Such unexplained inconsistencies ap-

pear throughout the time records.

Second, several time records include tasks that do not

warrant reimbursement. For example, Role Models’s lead

attorney billed for time spent on a ‘‘telecon with Herald Mail

reporter.’’ In this circuit, the government cannot be charged

for time spent in discussions with the press. See Am. Petro-

leum Inst. v. United States EPA, 72 F.3d 907, 913 (D.C. Cir.

1996) (citing Meese, 907 F.2d at 1203); Donovan, 877 F.2d at

993–94. Role Models’s lead attorney also spent time after

oral argument ‘‘review[ing] summary of argument,’’ ‘‘re-

view[ing] cases,’’ and ‘‘[r]evis[ing] summary of argument,’’ but

Role Models has not explained how these tasks helped it

prevail in its appeal. Furthermore, two lumped entries re-

16

port unspecified amounts of time spent drafting and revising

the firm’s engagement letter with Role Models. The govern-

ment should not have to pay for administrative matters

relating to the formal relationship between Role Models and

its attorneys. Also, a legal assistant logged two hours to

‘‘[v]isit Court of Appeals for the D.C. Circuit to obtain copy of

Government’s brief.’’ Given that the government served its

brief directly on Role Models’s attorneys, it should not have

to pay for this time. Nor should it have to reimburse Role

Models for two hours that a partner spent ‘‘[c]ompleting

application for admission to D.C. Circuit Bar’’ and fifteen

minutes that the associate spent ‘‘[r]esearch[ing] admission to

D.C. Circuit Bar [and] prepar[ing] application materials’’ for

the partner. Not only do we assume that a Washington law

firm offering itself as a specialist in federal court litigation

would treat the cost of joining the bar of this court as an

expense of doing business not chargeable to clients—much

less to the federal government—but this partner did not even

participate in the oral argument. Cf. Miller v. Alamo, 983

F.2d 856, 862 (8th Cir. 1993) (‘‘The government challenges the

Millers’ request for reimbursement of the $30 fee for having

the Millers’ attorney admitted to the Eighth Circuit Bar. We

agree that [the relevant fee-shifting statute] should not be

used to require the government to fund the enhancement of

an attorney’s versatility or capability.’’). Finally, as already

mentioned, two individuals—an associate and a legal assis-

tant—spent time filing each of Role Models’s briefs. We do

not understand why attorney or even legal assistant skills

were required for this job. ‘‘[P]urely clerical or secretarial

tasks should not be billed at a paralegal rate regardless of

who performs them.’’ Missouri v. Jenkins, 491 U.S. 274, 288

n.10 (1989); see also Meese, 907 F.2d at 1203 (‘‘The court TTT

deducts those charges by both paralegals and law clerks for

such tasks as ‘delivering’ or ‘picking up’ various docu-

mentsTTTT In our view, such tasks are ‘purely clerical or

secretarial’ and thus cannot be billed at paralegal or law clerk

rates.’’).

In view of all this—inadequate documentation, failure to

justify the number of hours sought, inconsistencies, and im-

17

proper billing entries—we will allow reimbursement for only

fifty percent of the attorney hours that Role Models requests.

See Hensley, 461 U.S. at 433 (‘‘Where the documentation of

hours is inadequate, the district court may reduce the award

accordingly.’’). A fixed reduction is appropriate given the

large number of entries that suffer from one or more of the

deficiencies we have described. See, e.g., Copeland v. Mar-

shall, 641 F.2d 880, 903 (D.C. Cir. 1980) (en banc) (‘‘[T]he

District Court Judge in this case—recognizing, as he did, that

some duplication or waste of effort had occurred—did not err

in simply reducing the proposed TTT fee by a reasonable

amount without performing an item-by-item accounting.’’);

see also Okla. Aerotronics, 943 F.2d at 1347 (affirming the

district court’s flat forty percent reduction in allowable

hours). For the four attorneys we will therefore award fees

for 410.25 hours, half the 820.5 requested. At the adjusted

statutory rate of $143.25 per hour, this comes to $58,768.31.

Because the law clerk’s time records suffer from the same

inadequacies that characterize the attorneys’ time records, we

will award fees for only half of his hours as well. Reducing

the law clerk’s hourly rates by twenty-five percent because of

Role Models’s failure to justify those rates, see supra page 11,

we will award $8,881.41 for the clerk’s time.

The government opposes any recovery for the legal assis-

tants, arguing that a party may not recover fees for work

done by non-attorneys. But we have previously affirmed a

fee award that ‘‘includ[ed] paralegal time.’’ Okla. Aerotron-

ics, 943 F.2d at 1352; see also Olson, 884 F.2d at 1426 (‘‘This

Circuit ‘holds that paralegals and law clerks are to be com-

pensated at their market rates.’ ’’ (quoting Donovan, 877 F.2d

at 993 n.20)). It is true, as the government points out, that in

a subsequent decision we denied recovery for paralegal work

and in doing so cited a Fifth Circuit decision deeming such

time to be an ‘‘unrecoverable overhead expense.’’ See Demo-

cratic Cent. Comm. v. Wash. Metro. Area Transit Comm’n,

12 F.3d 269, 272 (D.C. Cir. 1994) (per curiam) (citing Allen v.

United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982)).

In that case, however, we denied reimbursement for paralegal

fees because the purpose of the paralegal’s work was ‘‘not

18

sufficiently specified.’’ Id. Here, by contrast, the legal assis-

tants’ time records, unlike the attorneys’ and the law clerk’s,

provide adequate detail and show that these employees per-

formed suitable tasks. We will therefore award reimburse-

ment for the full number of hours requested for the legal

assistants’ time, with the exception of the two hours that a

legal assistant spent visiting this court to pick up a brief and

the time that a legal assistant spent on three separate

occasions filing a brief. See supra page 16. As to the latter,

the entries for two of the three occasions are lumped, leaving

us unable to determine exactly how much time the legal

assistant actually spent filing the brief. Because the single

‘‘unlumped’’ entry shows that the legal assistant spent 0.75

hours, we will use that figure for all three. Reducing the

legal assistants’ hourly rates by twenty-five percent because

of Role Models’s failure to justify those rates, see supra page

11, we will award $4,147.51 for the work of the six legal

assistants.

The government argues that the EAJA does not permit the

government to be charged for the work of the research

librarians and the legislative specialist. We need not consid-

er that issue, however, for we think Role Models has failed to

overcome the assumption that ‘‘work done by librarians,

clerical personnel and other support staff TTT [is] generally

considered within the overhead component of a lawyer’s fee.’’

Olson, 884 F.2d at 1426–27. Role Models has not, for exam-

ple, shown that law firms in Washington customarily bill

clients for such services, or even that its own attorneys

customarily bill for them.

Expenses

Role Models seeks $12,773.44 for expenses, having properly

excluded several categories—such as messenger services and

ground transportation—that we have deemed non-

reimbursable. See Mass. Fair Share v. Law Enforcement

Assistance Admin., 776 F.2d 1066, 1069 (D.C. Cir. 1985) (per

curiam). Role Models should also have excluded ‘‘overtime

services,’’ see, e.g., Michigan v. United States EPA, 254 F.3d

19

1087, 1096 (D.C. Cir. 2001), and we will deny recovery for

those services. We will also deny recovery for search service

expenses, document delivery services, and publications be-

cause Role Models has failed to explain what these categories

comprise.

Although the rest of the expense categories are properly

chargeable to the government, Role Models appears to ask

for more than it incurred. For example, although its attor-

neys billed Role Models $9,448.89 for their use of Westlaw,

Role Models requests $10,027.08. Similar discrepancies occur

with Lexis expenses ($311.82 billed to Role Models versus

$323.17 requested), copying charges ($1,678.06 billed to Role

Models and not already reimbursed versus $1,716.34 request-

ed), and search services expenses ($433.47 billed versus

$578.07 requested). With each discrepancy we will award the

lower, billed, amount (except for search services, which we

have said we will deny entirely). The government urges us to

deny any recovery for computer-research charges, but we

decline to do so because such services presumably save

money by making legal research more efficient. See Hir-

schey v. FERC, 777 F.2d 1, 6 (D.C. Cir. 1985) (finding that ‘‘a

charge TTT for computer research is appropriate’’).

We will therefore award a total of $11,438.77 in expenses:

$1,678.06 for copying plus $311.82 for Lexis plus $9,448.89 for

Westlaw.

V.

In highlighting the shortcomings of the time records sub-

mitted in this case and in reducing Role Models’s fee request,

we emphasize that we make no judgment either about the

propriety of Role Models’s decision to pay its attorneys for

the services for which it now seeks reimbursement or about

the attorneys’ billing Role Models for those services. To

begin with, the EAJA and relevant case law limit, or in some

instances entirely prohibit, recovery for certain services that

law firms routinely and properly bill clients. More important

for purposes of our analysis here, law firms may well have

understandings with clients and a level of trust that permit

20

billing on the basis of time records like those at issue here.

In awarding fees under the EAJA, however, we have a special

responsibility to ensure that taxpayers are required to reim-

burse prevailing parties for only those fees and expenses

actually needed to achieve the favorable result. In fulfilling

that responsibility, ‘‘we are not prepared to hold that the

willingness of a private client to pay a bill necessarily demon-

strates that the charge was reasonable under the statutory

definition and can therefore be automatically assessed against

the government.’’ Kennecott Corp., 804 F.2d at 767. That

said, ‘‘we do not intend to tar [petitioner’s law firm] TTT with

any brush of over-billing or over-staffing as related to their

relationship with this or any other client. We simply con-

clude that the petitioner has not sufficiently justified the

degree of staffing TTT to bring it within the zone of reason-

ableness contemplated by CongressTTTT’’ North, 59 F.3d at

193.

In sum, we will award Role Models $83,236: $58,768.31 in

attorneys’ fees plus $8,881.41 for the law clerk plus $4,147.51

for the legal assistants plus $11,438.77 for expenses. Role

Models’s request for leave to supplement its application is

denied.

So ordered.