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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.
9
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.