Opposition Brief — RICHLIN SEC. SERVICE CO. v. Chertoff

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RICHLIN SECURITY SERVICE COMPANY,

PETITIONER

MICHAEL CHERTOFF, SECRETARY OF

HOMELAND SECURITY

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

JEANNE E. DAVIDSON

REGINALD T. BLADES

WILLIAM KANTER

MICHAEL E. ROBINSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

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QUESTION PRESENTED

Whether, under the Equal Access to Justice Act,

5 U.S.C. 504 and 28 U.S.C. 2412, paralegal services are

“attorney fees” compensable at market rates, or “other

expenses” compensable at the rate of cost to the att-

orney.

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TABLE OF CONTENTS

Page

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ad ea oe Se mennenes 1

i ees haaeahiane 2

CE esd hsb cnkes ches Vdovoewesusvandvessunweanse 5

TE en a re ee iad eds eectaue 14

TABLE OF AUTHORITIES

Cases:

Allen v. United States Steel Corp., 665 F.2d 689 (5th

et abeenseuva 13

Ardestani v. INS, 502 U.S. 129 (1991) ...............4. 6

Arlington Cent. Sch. Dist. v. Murphy, 126 S. Ct. 2455

AER, Sag POR eater oa Ea ee 4,7

Fanning, Phillips & Molnar v. West, 160 F.3d 717

I Gi cate edbeee We bec pe’ cece 6

Hyatt v. Barnhart, 315 F.3d 239 (4th Cir. 2002) ........ 11

Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988), aff’d on

other grounds sub nom. Commissioner, INS v.

FOS ee ED bp kccorciveeicdecccsess 5, 13

Lane v. United States Dep't of Agric., 294 F.3d 1001

I es eran erens 6

Miller v. Alamo, 983 F.2d 856 (8th Cir. 1993) ......... 11

Missouri v. Jenkins, 491 U.S. 274 (1989) .......... 5, 9, 10

Oklahoma Aerotronics, Inc. v. United States, 943

EE TNS TED won Sd'sGs beeoscescecens 12

Olson, In re, 884 F.2d 1415 (D.C. Cir. 1989) ............ 12

(IIT)

’ :

’

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Cases—Continued: Page

Role Models Am., Inc. v. Brownlee, 353 F.3d 962

a ati ie i ow wins 12

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983)......... 6

Sullivan v. Hudson, 490 U.S. 877 (1989) ............44. 7

United States v. Enmons, 410 U.S. 396 (1973) .......... 4

Statutes:

Civil Rights Attorney’s Fees Awards Act of 1976, 42

Ga bcs nec delabibbeeddectcevess 5, 9, 10

Equal Access to Justice Act, 5 U.S.C. 504 ............ 2,6

es sei ecwemannn 2,10

ee es os an cabana eee 6

ss wakes panekseneunl 3

IEEE sv voc cc bdcvesicusscue’s 3, 6, 10

Service Contract Act of 1965, 41 U.S.C. 351 et seg. ...... 2

ear eS eeeedeabecs thes 11

i ek os cca vn daceaslens 12

kg cin s'y dbus Aen 2

es che eena conneanan 2

Miscellaneous:

H.R. Rep. No. 1418, 96th Cong., 2d Sess. (1980) ....... 6, 7

S. Rep. No. 586, 98th Cong., 2d Sess. (1984) ............ 8

U.S. Court of Appeals for the Federal Circuit:

Adjudications by Merits Panels, by Category, FY

2006 <http://www.fedcir.gov/pdf/

ChartAdjudicationsO6.pdf> ............+.+-- 14

Miscellaneous—Continued: Page

Appeals Filed, Terminated, and Pending During

the Twelve Month Period Ended September 30,

2006, Table B-8 <http:/Avww.cafc.uscourts.

gov/pdf/ac0906.pdf> ........... cece eee e ee eeee 14

U.S. Court of Appeals—Appeals Terminated on the

Merits, by Circuit, During the 12-Month Period

Ending March 31, 2006, Table B-5 <http://www.

uscourts.gov/caseload2006/tables/ BO5Mar06.pdf> .. 14

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In the Supreme Court of the United States

No. 06-1717

RICHLIN SECURITY SERVICE COMPANY,

PETITIONER

MICHAEL CHERTOFF, SECRETARY OF

HOMELAND SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-24a)

is reported at 472 F.3d 1370. The supplemental opinion

’ of the court of appeals denying rehearing (Pet. App. 54a-

56a) is reported at 482 F.3d 1358. The decision of the

| Department of Transportation Board of Contract Ap-

peals (Pet. App. 25a-53a) is reported at 05-2 B.C.A.

(CCH) 4 33,021.

;

JURISDICTION

The judgment of the court of appeals was entered on

December 26, 2006. A petition for rehearing was denied

on April 3, 2007 (Pet. App. 54a-56a). The petition for a

(1)

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writ of certiorari was filed on June 25, 2007. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner contracted with the Immigration and

Naturalization Service to provide guard services for de-

tainees at the Los Angeles International Airport. Years

later the Department of Labor (DOL) determined that

the contracts had misclassified petitioner’s employees

for purposes of the wage classification scheme of the

Service Contract Act of 1965, 41 U.S.C. 351 et seq., re-

sulting in underpayment of petitioner’s employees. The

DOL further found that employees were entitled to back

wages from petitioner. Pet. App. 2a-3a. Petitioner then

filed a claim against the government for the increased

costs associated with the parties’ misclassification of peti-

tioner’s employees. After a series of appeals to the De-

partment of Transportation Board of Contract Appeals

and to the Federal Circuit, the Board awarded peti-

tioner the amount of additional wages, payroll taxes, and

workers compensation premiums that petitioner was

required to pay. The court of appeals affirmed. /bid.

2. Petitioner thereafter applied to the Board for at-

torney’s fees, expenses, and costs under the Equal Ac-

cess to Justice Act (EAJA), 5 U.S.C. 504. Pet. App. 3a.

EAJA authorizes an agency to award “fees and other

expenses” to a “prevailing party” in adversary adminis-

trative proceedings in cases in which the position of the

United States is not “substantially justified.” 5 U.S.C.

504(a)(1).'| The statute defines “fees and other ex-

' A separate provision of EAJA provides for recovery of “fees and

other expenses” from the United States by a prevailing party in a court

proceeding. 28 U.S.C. 2412(d)(1)(A); see also 28 U.S.C. 2412(d)(2)(A)

(defining “fees and other expenses”).

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penses” to include: “the reasonable cost of any study,

analysis, engineering report, test, or project which is

found by the agency to be necessary for the preparation

of the party’s case, and reasonable attorney or agent

fees.” 5 U.S.C. 504(b)(1). The statute further instructs

that: '

[t]he amount of fees awarded under this section shall

be based upon prevailing market rates for the kind

and quality of the services furnished, except that

(i) no expert witness shall be compensated at a rate

in excess of the highest rate of compensation for ex-

pert witnesses paid by the agency involved, and

(ii) attorney or agent fees shall not be awarded in

excess of $125 per hour unless the agency deter-

mines by regulation that an increase in the cost of

living or a special factor, such as the limited avail-

ability of qualified attorneys or agents for the pro-

ceedings involved, justifies a higher fee.[]

5 U.S.C. 504(b)(1)(A).

In its EAJA application, petitioner sought reim-

bursement for $51,793.75 in attorney’s fees for work

on the underlying cases and $14,225 in attorney’s fees

for time spent preparing the EAJA application. Pet.

App. 5a. It also sought reimbursement for paralegal

services used by petitioner’s attorney. Over the course

of his representation, the attorney had billed petitioner

for paralegal time at rates ranging from $50 to $135 per

hour. /d. at 3a-4a. Petitioner’s EAJA application

sought reimbursement, generally at these rates,” for

523.8 hours of paralegal work on the underlying cases

* As the court of appeals noted, petitioner appeared to limit the fee

request to $95 per hour for paralegal services after June 1, 2004, when

the paralegal billing rate had increased to $135 per hour. Pet. App. 5a.

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and 68.2 hours of paralegal work preparing the EAJA

application, totaling $51,901.10 in paralegal services. Jd.

at 5a.

3. The Board awarded petitioner $43,312.50 in attor-

ney’s fees for the underlying cases and $7125.50 in fees

for the preparation of the EAJA petition. Pet. App. 47a,

52a. With regard to reimbursement for paralegal fees,

the Board ruled that, under EAJA, paralegal services

are recoverable at the cost to the firm, not at the rate

billed to the client. Finding no evidence in the record

concerning the cost of paralegal services to the firm, and

unwilling to deny paralegal expenses entirely, the Board

took judicial notice of paralegal salaries in the Washing-

ton, D.C. area and found that $35 per hour was a reason-

able cost to the firm. /d. at 42a-48a. The Board accord-

ingly awarded petitioner $10,587.50 for paralegal ser-

vices. Id. at 52a.

4. The court of appeals affirmed. Pet. App. la-19a.

Relying on the text, structure, purpose, and history of

EAJA, the court of appeals ruled that paralegal costs

are not recoveraLle as “fees,” but rather constitute “ex-

penses” recoverable at the cost to the attorney. /d. at

7a-19a.

In particular, the court explained that EAJA allows

for the recovery of “expenses” as well as “fees.” Given

the additional category, the court determined that Con-

gress intended paralegal costs to be recoverable as “ex-

penses” reimbursed at cost to the attorney, and not

“fees.” Pet. App. 15a. That construction, the court ex-

plained, was bolstered by the fact that Congress had

gone out of its way to place a cap on attorney’s fees, but

had not done so for paralegal costs. /d. at 16a-17a (cit-

ing Arlington Cent. Sch. Dist. v. Murphy, 126 S. Ct.

2455, 2461 (2006)). “The allowan > of paralegal fees

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without a meaningful cap would,” the court explained,

“create a perverse incentive” for attorneys to refer work

to paralegals so that they could “recover at or near the

full market rate for paralegals.” Jd. at 18a.

The court of appeals acknowledged that one court

had reached a different conclusion, Jean v. Nelson, 863

F.2d 759, 778 (11th Cir. 1988), aff’d on other grounds

sub nom. Commissioner, INS v. Jean, 496 U.S. 154

(1990). Pet. App. 12a. But the court declined to follow

Jean, noting that “there was no indication that the para-

legal services issue was argued” in that case. /bid. The

court further noted that the “short paragraph” devoted

to the issue in Jean simply followed a previous Eleventh

Circuit discussion that held paralegal services to be re-

imbursable under a different statute, and addressed

neither the statutory text nor purpose of EAJA. /d. at

12a-13a.

Senior Judge Plager dissented. Pet. App. 20a-24a.

He reasoned that the interpretation of EAJA should be

guided by this Court’s interpretation of the Civil Rights

Attorney’s Fees Awards Act of 1976, 42 U.S.C. 1988, and

thus concluded that paralegal services should be recov-

erable as “attorney’s fees.” Pet. App. 20a-21a (citing

Missouri v. Jenkins, 491 U.S. 274 (1989)).

5. The court of appeals denied a petition for rehear-

ing en banc. Pet. App. 57a.

ARGUMENT

The court of appeals correctly concluded that, under

EAJA, an award for paralegal services is limited to the

cost of services to petitioner’s attorney, as opposed to

market rates. That conclusion is consistent with the

text, structure, purpose, and history of EAJA, as well as

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with this Court’s precedents. Further review is not war-

ranted.

1. The court of appeals applied settled principles of

statutory interpretation in concluding that, under

EAJA, paralegal time is not reimbursable at market

rates as a “fee,” but is rather a litigation expense to be

reimbursed at cost. As the court. of appeals recognized

(Pet. App. 6a-7a), EAJA “renders the United States lia-

ble for attorney’s fees for which it would not otherwise

be liable, and thus amounts to a partial waiver of sover-

eign immunity.” Ardestani v. INS, 502 U.S. 129, 137

(1991). “Any such waiver must be strictly construed in

favor of the United States,” ibid., and must not be en-

larged “beyond what the language requires,” Ruckel-

shaus v. Sierra Club, 463 U.S. 680, 685-686 (1983) (cita-

tion omitted).

The language of EAJA does not require the govern-

ment to reimburse paralegal costs in the same manner

as attorney’s fees. EAJA provides for the recovery of

“fees and other expenses,” but it draws a distinction

between these two categories of litigation costs: Only

“fees,” not expenses, must be reimbursed at “prevailing

market rates.” 5 U.S.C. 504(b)(1)(A). As the court of

appeals observed, a number of provisions of EAJA make

clear that only the fees of attorneys, agents, and expert

witnesses are reimbursable “fees” under the statute.

Pet. App. 7a-8a (citing 5 U.S.C. 504(a)(2) and

504(b)(1)(A)). A paralegal is neither an attorney, nor an

agent,” nor an expert witness. The plain language of the

* An “agent,” for purposes of 5 U.S.C. 504, is a specialized non-

attorney practitioner authorized to represent clients before an

administrative agency with the special permission of the tribunal. See

e.g., Lane v. United States Dep't of Agric., 294 F.3d 1001, 1008 (8th Cir.

2002); Fanning, Phillips & Molnar v. West, 160 F.3d 717, 721-722

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EAJA thus does not provide for market-rate recovery

for paralegal services. Any argument to the contrary

would enlarge the waiver of sovereign immunity beyond

what the language of the statute requires.

That conclusion is bolstered by the fact that Con-

gress specifically placed a cap on attorney’s fees in

EAJA,.but did not place any limits on paralegal fees.

See 5 U.S.C. 504(b)(1)(A); Pet. App. 16a-17a. Moreover,

the cap that Congress set was plainly tied to market

rates for the services of attorneys, not paralegals. See

id. at 8a, 16a. As the court of appeals explained, “given

that attorney’s fees generally far exceed paralegal fees,

it seems unlikely that Congress would have capped para-

legal services at the same level as attorney’s fees.” /d.

at 16a. This Court recently relied on a similar statutory

anomaly in rejecting the argument that expert fees were

recoverable under the attorney’s fees provision of the

Individuals with Disabilities Education Act. See

Arlington Cent. Sch. Dist. v. Murphy, 126 S. Ct. 2455,

2461 (2006); Pet. App. 17a-18a.

As the court of appeals observed (Pet. App. 15a-16a),

compensating paralegals at cost is also consistent with

the central purposes of the statute. Congress enacted

EAJA to encourage plaintiffs with legitimate claims to

contest agency action. See Sullivan v. Hudson, 490 U.S.

877, 883 (1989). But Congress was concerned about pro-

tecting the public fisc as well as reducing economic de-

terrents to seeking review of government action. Thus,

as the court of appeals explained, “[tJhe purpose of

(Fed. Cir. 1998); see also H.R. Rep. No. 1418, 96th Cong., 2d Sess. 14

(1980) (“An ‘agent fee’ may be awarded for the services of a non-

attorney where an agency permits such agents to represent parties

who come before it.”). Petitioner did not argue that paralegal services

should be reimbursed as “agent fees.” Pet. App. 9a.

EAJA is not to reimburse all of the costs of the prevail-

ing party but to reimburse costs only when the govern-

ment’s position was not substantially justified and even

then to provide only for partial reimbursement.” Pet.

App. 16a. Accordingly, EAJA imposed caps on fee re-

covery, limiting reimbursable attorney’s fees to $125 per

hour. 5 U.S.C. 504(b)(1)(A). In this respect, EAJA dif-

fers from other fee-shifting provisions, including the

Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.

1988. See Pet. App. 15a.

Finally, the legislative history also indicates that

paralegal services are not reimbursable at market rates.

In an effort to clarify that unenumerated, “reasonable

out-of-pocket expenses” are recoverable under the stat-

ute, the Senate Report on EAJA’s reenactment stated

that “[e]xamples of the type of expenses that should or-

dinarily be compensable include paralegal time (billed

at cost) and the cost of duplicating copies of pleadings

necessary for filing and service.” S. Rep. No. 586, 98th

Cong., 2d Sess. 15 (1984) (Senate Report) (emphasis

added). The legislative history thus indicates that Con-

gress did not intend to include paralegal services in the

definition of “attorney fees,” but rather intended that

paralegal fees be reimbursed as expenses limited to the

attorney’s cost.‘

* Petitioner contends (Pet. 20) that any reliance on the Senate

Report is misplaced because the report was prepared for a version of

the EAJA that was passed by Congress but ultimately vetoed by

President Reagan. As the court of appeals explained (Pet. App. 56a

n.2), President Reagan vetoed the bill primarily because he objected to

its definition of “position of the United States.” The bill was modified

to respond to the President’s objection, and was otherwise largely

unchanged when it passed in 1985. When the “operative language” of

an unenacted bill is “substantially carried forward” into a later statute,

this Court has indicated that the legislative history of the unenacted bill

2. Petitioner argues (Pet. 13-22) that the court of

appeals’ decision is “at odds with” this Court’s decision

in Missouri v. Jenkins, 491 U.S. 274 (1989). This is in-

correct. In Jenkins, the Court interpreted the Civil

Rights Attorney’s Fees Awards Act, 42 U.S.C. 1988,

which authorizes courts to award prevailing parties in

certain civil rights actions “a reasonable attorney’s fee

as part of the costs,” to permit recovery for paralegal

services. The Court reasoned that the phrase “reason-

able attorney’s fee” must “refer to a reasonable fee for

the work product of an attorney” and thus must include

“the work not only of attorneys, but also of secretaries,

messengers, librarians, janitors, and others whose labor

contributes to the work product for which an attorney

bills her client; and it must also take account of other

expenses and profit.” Jenkins, 491 U.S. at 285. The

Court accordingly concluded that the statute “should

compensate the work of paralegals, as well as that of

attorneys.” Jbid.

In determining the appropriate rate of compensation

for paralegal services, the Court ruled that a “reason-

able attorney’s fee” under the statute is one that is “fully

compensatory,” and that “is * * * calculated on the basis

of rates and practices prevailing in the relevant mar-

ket.” Jenkins, 491 U.S. at 286 (internal quotation marks

and citation omitted). Therefore, the Court concluded,

if the prevailing practice in the relevant market is to bill

separately for paralegal services, then prevailing parties

are entitled under Section 1988 to recover separately for

paralegal fees, at market rates. /d. at 286-287.

may be pertinent to an understanding of the statute that ultimately

passed. United States v. Enmons, 410 U.S. 396, 404 n.14 (1973).

F ONS

As the court of appeals explained below (Pet. App.

15a-19a), Jenkins does not control this case. Jenkins

concerned a different statute with different language,

structure, purpose, and history. In particular, the Civil

Rights Attorney’s Fees Awards Act contains no provi-

sion for recovery of expenses; the Supreme Court thus

concluded that Congress must have intended for the

phrase “reasonable attorney’s fee” to “take account” of

“expenses.” Jenkins, 491 U.S. at 285. EAJA, in con-

trast, specifically provides for an award of “fees and

other expenses,” and establishes that fees alone are to

be reimbursed at market rates. 5 U.S.C. 504(a)(1) and

(b)(1)(A) (emphasis added); see Senate Report 15 (para-

legal services recoverable under the EAJA as an ex-

pense “billed at cost”). The Supreme Court’s interpreta-

tion of the phrase “reasonable attorney’s fees as part of

the costs” in Jenkins therefore does not control the in-

terpretation of the different statutory language at issue

in this case.

Moreover, Jenkins’ valuation of paralegal time

rested on the premise that the Civil Rights Attorney’s

Fees Awards Act was designed to provide a “fully com-

pensatory” award to prevailing parties. 491 U.S. at 287.

EAJA, by contrast, is not intended to “make the prevail-

ing party whole,” and thus limits fee recovery to what

are often below-market rates. See Pet. App. 16a; see id.

at 18a. As the court of appeals recognized, ibid., to im-

port the Court’s construction of Section 1988 in Jenkins

into the EAJA context could allow attorneys effectively

to evade these below-market statutory caps by shifting

work to their paralegals, whose billing rates are more

likely less than, or closer to, the statutory $125-per-hour

maximum recovery for attorney’s fees.

3. Petitioner also argues (Pet. 8-10) that the court of

appeals’ decision conflicts with the decisions of four

other circuits. That contention does not bear scrutiny.

Contrary to petitioner’s contention (Pet. 8-9), the

court of appeals’ decision does not conflict with Miller v.

Alamo, 983 F.2d 856, 862 (8th Cir. 1993). That case in-

volved an award under 26 U.S.C. 74830—not EAJA—and

the Eighth Circuit simply distinguished certain para-

legal services from other kinds of overhead expenses

that are not ordinarily recoverable under fee-shifting

statutes, concluding that “[wJork done by paralegals is

compensable if it is work that would have been done by

an attorney.” Alamo, 983 F.2d at 862. Moreover, al-

though the court awarded recovery for paralegal ser-

vices at a rate of $40 per hour, it said nothing about

whether paralegal services were compensable as attor-

ney’s fees or as other expenses, or whether any recovery

should be at market rates rather than at cost. /bid.

Hyatt v. Barnhart, 315 F.3d 239 (4th Cir. 2002), did

involve an award under EAJA, but the court did not

squarely address the question presented in this case.

Rather, the Fourth Circuit simply held that, “{a]lthough

fees for paralegal time may be recoverable under the

E AJA, such fees are only recoverable to the extent they

reflect tasks traditionally performed by an attorney and

for which the attorney would customarily charge the

client.” Jd. at 255 (emphasis added). Although, as peti-

tioner notes (Pet. 9-10), the court used the word “fees”

in connection with paralegal services, the court did not

consider, much less decide, whether paralegal services

are compensable as “fees” within the meaning of EAJA,

or whether recovery should be at market rates rather

than at cost.

Nor does the decision below conflict with Role Mod-

els America, Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir.

2004). Contrary to petitioner’s suggestion, the Role

Models court did not “expressly state[]” that “paralegals

and law clerks are to be compensated at their market

rates” under EAJA. Pet. 10 (quoting Role Models, 353

F.3d at 974) (emphasis omitted). Rather, the court sim-

ply rejected the Government’s argument that there

should be no recovery for work done by non-attorneys,

noting that it had “previously affirmed a fee award that

‘includ{ed] paralegal time.’” Role Models, 353 F.3d at

974 (quoting Oklahoma Aerotronics, Inc. v. United

States, 943 F.2d 1344, 1352 (D.C. Cir. 1991); citing In re

Olson, 884 F.2d 1415, 1426 (D.C. Cir. (Spec. Div.) 1989)).

The “market rate” language petitioner quotes appears

merely in a parenthetical following the court’s citation

to Olson. Olson was not, however, an EAJA case, but a

case involving 28 U.S.C. 593(f)—a statute that, like the

statute at issue in Jenkins and unlike EAJA, provides

only for reimbursement of “reasonable attorneys’ fees,”

not the recovery of expenses. And in Oklahoma

Aerotronics, the other case cited in the District of Co-

lumbia Circuit’s opinion, the court expressly categorized

an EAJA award for paralegal time as an “award of ex-

penses,” not an award of fees. 943 F.2d at 1352 (empha-

sis added).

While it is true that, in its award calculations, the

District of Columbia Circuit appeared to assume that

paralegal time was compensable at market rates, see

Role Models, 353 F.3d at 969-970, it did so without dis-

cussion, and without considering whether the language,

structure, purpose, or history of EAJA supports that

interpretation.

OS ee ee eR eT? Semen) Peye Lee ee eee

Petitioner is accordingly left with Jean v. Nelson,

863 F.2d 759, 778 (11th Cir. 1988). As noted above, the

Federal Circuit did decline to follow the Jean decision,

but in doing so it stressed that “there is no indication

that the paralegal services issue was argued” in Jean,

and the “Jean court’s discussion of paralegal services

was limited to a short paragraph that addressed neither

the statutory language nor the purpose of EAJA.” Pet.

App. 12a-13a. In Jean, the Eleventh Circuit cited only

a Title VII case, Allen v. United States Steel Corp. , 665

F.2d 689, 697 (5th Cir. Unit B 1982), for the proposition

that paralegal time is recoverable as “part of a prevail-

ing party’s award for attorney’s fees and expenses” to

the extent that the paralegal performs work tradition-

ally done by an attorney. The court did not, however,

explain why, even if paralegal time were recoverable

under EAJA, the statute requires that paralegal ser-

vices be compensated at market rates rather than at

cost. There is, accordingly, no considered conflict be-

tween the Federal Circuit and the Eleventh Circuit on

this issue.

In any event, because only one other circuit besides

the court below has addressed the question presented in

this case, and because that court has given the issue only

limited consideration, the issue would benefit from fur-

ther ventilation in the courts of appeals.

4. Finally, petitioner contends (Pet. 11-12) that re-

view should be granted because the Federal Circuit’s

decision will have a disproportionately large impact

given the nature of the Federal Circuit’s docket. That

contention should be rejected. Although a substantial

percentage of the Federal Circuit’s docket does consist

of cases involving the federal government, EAJA cases

are heard in significant numbers in every circuit, and

the total number of administrative and other claims in-

volving the government that are heard by the Federal

Circuit represents a relatively small percentage of simi-

lar claims heard nationwide.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

JEANNE E. DAVIDSON

REGINALD T. BLADES

WILLIAM KANTER

MICHAEL E. ROBINSON

Attorneys

OCTOBER 2007

® Compare U.S. Court of Appeals for the Federal Circuit—Appeals

Filed, Terminated, and Pending During the Twelve Month Period

Ended September 30, 2006, Table B-8 <http://www.cafc.uscourts.

gov/pdf/a00906.pdf>, and U.S. Court of Appeals for the Federal

Circuit, Adjudications by Merits Panels, by Category, FY 2006

<http://www.fedcir.gov/pdf/ChartAdjudications06.pdf>, with U.S.

Court of Appeals—-Appeals Terminated on the Merits, by Circuit,

During the 12-Month Period Ending March 31, 2006, Table B-5

<http://www.uscourts.gov/caseload2006/tables/ BO5Mar06.pdf>.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.