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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 20, 2004
No. 02-1379
AMERICAN WRECKING CORPORATION,
PETITIONER
v.
SECRETARY OF LABOR,
RESPONDENT
On Petitioner’s Application for Attorneys’ Fees
–————
Before: GINSBURG, Chief Judge, and EDWARDS, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed Per Curiam.
Per Curiam: In August 1996, the Occupational Safety and
Health Administration (‘‘OSHA’’) cited petitioner American
Wrecking Corporation (‘‘AWC’’) for three willful violations of
demolition safety regulations, after a fatal accident at a
demolition site at which AWC was the subcontractor. Two of
the citations were vacated during administrative proceedings
before the Occupational Safety and Health Review Commis-
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
sion (‘‘Commission’’), while the third made its way to this
court. On AWC’s petition for review, we upheld the Commis-
sion’s finding of liability as to that citation, but reversed the
finding that AWC’s violation was willful. See Am. Wrecking
Corp. v. Sec’y of Labor, 351 F.3d 1254 (D.C. Cir. 2003).
AWC now seeks an award of nearly $300,000 in fees and
expenses, pursuant to the Equal Access to Justice Act
(‘‘EAJA’’), 28 U.S.C. § 2412 (2000), which entitles a party to
recover from the United States reasonable fees and expenses
incurred by that party in any civil action or judicial review of
agency action in which the party prevailed. 28 U.S.C.
§ 2412(d)(1)(A). Prevailing parties are not entitled to such
an award, however, if the Government’s position in litigation
or at the agency level was ‘‘substantially justified.’’ Id. In
addition, only such fees and expenses as are reasonable are
available to a prevailing party. 28 U.S.C. § 2412(d)(2)(A).
In this case, we find that the Secretary of Labor’s (‘‘Secre-
tary’’) position was substantially justified in all but two phases
of the proceedings against AWC. Moreover, we find that
many of the expenses and fees AWC has requested exceed
the bounds of what is ‘‘reasonable’’ under the EAJA. We
therefore award fees and expenses to AWC in the amount of
$43,910.16, which represents the reasonable amount to which
AWC is entitled for the two phases of the proceedings in
which the Secretary’s position was not substantially justified.
I. BACKGROUND
The relevant facts surrounding OSHA’s investigation of
AWC’s demolition practices are set forth in detail in our
previous opinion. See Am. Wrecking Corp., 351 F.3d at 1257-
58. Therefore, we will only briefly summarize these facts
here.
AWC was selected as the subcontractor on a demolition
project at the Steel Point Generating Station in Bridgeport,
Connecticut (‘‘Steel Point’’). Under the supervision of Mr.
Frank Bartolotti, AWC began demolition work in June 1995.
By February 1996, work had begun on the demolition of the
turbine generator building, a large steel-frame structure that
3
formerly housed the generator area of the power plant. On
February 27, 1996, two AWC employees were making prepa-
ratory cuts to the steel columns of the turbine building when
the columns collapsed and several tons of bricks fell, killing
one of the workers.
An OSHA compliance officer arrived at the scene soon
after the accident and commenced a six-month investigation
into AWC’s safety practices. In August 1996, OSHA issued
three citations to AWC. The first citation charged that AWC
had not performed the requisite engineering survey of the
structure prior to demolition, in violation of 29 C.F.R.
§ 1926.850(a) (‘‘Engineering Survey Citation’’). The second
citation charged that AWC failed to remove all ‘‘loose materi-
al’’ from the steel skeleton of the building by leaving several
tons of bricks suspended without support at the top of the
south wall of the structure, in violation of 29 C.F.R. § 854(f)
(‘‘Bricks Citation’’). The third citation charged that AWC
permitted employees to work where deterioration and debris
on the roof of the building created a hazard of falling materi-
al, in violation of 29 C.F.R. § 1926.859(g) (‘‘Roof Citation’’).
All three citations were charged as ‘‘willful’’ violations, for
which the Secretary proposed a penalty of $42,000 each.
After AWC contested the citations, the Secretary filed a
complaint, and a six-day hearing was held before an Adminis-
trative Law Judge (‘‘ALJ’’) in April 1997. The ALJ issued
his first decision on May 27, 1998. See Am. Wrecking Corp.,
1998 O.S.H. Dec. (CCH) ¶ 31,603 (O.S.H.R.C. 1998). The
ALJ vacated the Engineering Survey Citation, finding that, in
fact, AWC had prepared several analyses and reports prior to
demolition and that the Secretary conceded that those docu-
ments satisfied the safety standard. Id. at *5-6. The ALJ
affirmed the other two citations as willful violations and
imposed penalties of $70,000 for each violation, the maximum
penalty available under the Occupational Safety and Health
Act, see 29 U.S.C. § 666(a) (1994).
Upon AWC’s petition for discretionary review, the Commis-
sion vacated the Roof Citation, finding that the Secretary had
not met her burden of proving that any AWC employees had
access or exposure to the cited condition. See Am. Wrecking
4
Corp., 19 O.S.H. Cas. (BNA) 1703, at *15 (O.S.H.R.C. 2001).
As to the Bricks Citation, the Commission affirmed the ALJ’s
finding of liability, based on photographic evidence and expert
testimony documenting the instability of the bricks suspended
at the top of the south wall of the turbine building. Id. at *6-
8. The Commission set aside the ALJ’s determination as to
willfulness, however, finding that the ALJ had failed to
provide sufficient findings of fact and credibility determina-
tions to support that holding. Id. at *12-14. The Commis-
sion remanded the case to the ALJ with specific instructions
to reevaluate the evidence and reconsider the willfulness of
the violation. Id. at *14. On August 23, 2002, the ALJ
reaffirmed the finding of willfulness and reinstated the
$70,000 penalty. See Am. Wrecking Corp., 19 O.S.H. Cas.
(BNA) 2093 (O.S.H.R.C. 2002). The Commission’s denial of
AWC’s petition for discretionary review made that decision a
final order of the Commission.
AWC filed a petition for review in this court. We upheld
the finding of liability as to the Bricks Citation, holding that
‘‘expert testimony and TTT photographic evidence consti-
tute[d] substantial evidence in support of the Commission’s
finding that AWC violated the loose material standard.’’ Am.
Wrecking Corp., 351 F.3d at 1262. We reversed the finding
of willfulness, however, holding that the ALJ had ‘‘made no
coherent credibility determinations to support such a finding’’
and had ‘‘ignored evidence that refute[d] his finding.’’ Id. at
1265. We further held that the ALJ’s willfulness holding was
‘‘flatly at odds with the controlling case law.’’ Id. Thus, out
of the three original citations for willful violations, for which
the Secretary sought a total penalty of $126,000, and for
which the ALJ initially imposed a total penalty of $140,000,
AWC was ultimately found liable for only one non-willful
violation, for which the maximum possible penalty is $7,000.
See 29 U.S.C. § 666(b), (c). AWC now petitions this court for
an award of fees and expenses pursuant to the EAJA.
II. ANALYSIS
Under the EAJA, a ‘‘prevailing party’’ in any civil action
brought by or against the United States, ‘‘including proceed-
5
ings for judicial review of agency action,’’ is entitled to
recover reasonable fees and expenses incurred in the pro-
ceeding. 28 U.S.C. § 2412(d)(1)(A). The prevailing party is
not entitled to such fees and expenses, however, if the court
finds that the position of the United States was ‘‘substantially
justified.’’ Id. Here, the Secretary does not dispute that
AWC qualifies as a ‘‘prevailing party,’’ insofar as AWC suc-
ceeded in having two of the three citations vacated completely
and removing the ‘‘willful’’ designation from the third.
AWC’s entitlement to recovery thus depends on whether the
Secretary’s position during these proceedings was ‘‘substan-
tially justified.’’ AWC also must demonstrate that its re-
quested fees and expenses are ‘‘reasonable.’’ 28 U.S.C.
§ 2412(d)(2)(A).
A. Substantial Justification
The Secretary’s position is substantially justified if it is
‘‘justified to a degree that could satisfy a reasonable person,’’
i.e., that it has a ‘‘reasonable basis both in law and fact.’’
Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Secre-
tary need not have won a case on the merits in order for her
position to be ‘‘substantially justified.’’ See id. at 569; Role
Models Am., Inc. v. Brownlee, 353 F.3d 962, 967 (D.C. Cir.
2004). Rather, a position ‘‘can be substantially (i.e., for the
most part) justified if a reasonable person could think it
correctTTTT’’ Pierce, 487 U.S. at 566 n.2.
Because AWC’s fee petition arises out of a proceeding for
judicial review of agency action, the government ‘‘must dem-
onstrate the reasonableness not only of its litigation position,
but also of the agency’s actions.’’ Role Models Am., 353 F.3d
at 967 (citing Halverson v. Slater, 206 F.3d 1205, 1208 (D.C.
Cir. 2000); 28 U.S.C. § 2412(d)(2)(D)). Our analysis proceeds
in a piecemeal fashion, examining the reasonableness of the
Secretary’s position at each successive phase of the proceed-
ing on each separate issue, both at the agency level and
before this court. See Air Transp. Ass’n of Can. v. Fed.
Aviation Admin., 156 F.3d 1329, 1332 (D.C. Cir. 1998); Al-
phin v. Nat’l Transp. Safety Bd., 839 F.2d 817, 822-23 (D.C.
Cir. 1988).
6
The Secretary concedes, and we agree, that the Engineer-
ing Survey Citation was not substantially justified. As the
Secretary acknowledged before the ALJ, AWC had prepared
documents that satisfied the requirements of the relevant
safety standard. See Am. Wrecking Corp., 1998 O.S.H. Dec.
(CCH) ¶ 31,603, at *5. AWC is therefore entitled to fees and
expenses incurred in defending against this citation.
Turning to the Bricks Citation, we find that the Secretary
was substantially justified in charging AWC with willfully
violating the safety standard and pursuing that issue before
the Commission. However, the ALJ’s finding of willfulness
in his second decision and the Secretary’s subsequent defense
of that finding were not substantially justified. AWC is
therefore entitled to fees and expenses incurred in seeking
review of that issue before the Commission and before this
court.
As we held in our previous opinion, there was substantial
evidence on the record supporting the claim that AWC violat-
ed the ‘‘loose material’’ regulation by leaving bricks suspend-
ed in an unstable manner at the top of the south wall of the
turbine building. See Am. Wrecking Corp., 351 F.3d at 1261-
62. In this case, the same substantial evidence that sustained
the Secretary’s position before this court also renders that
position substantially justified within the meaning of the
EAJA. In addition, there was a sufficient basis in the record,
when viewed as a whole, to support the Secretary’s initial
claim that the violation was willful. AWC’s demolition super-
visor, Frank Bartolotti, had personally removed all the exteri-
or masonry from the building except the suspended bricks on
the south wall. Furthermore, the Secretary’s expert wit-
nesses testified that a person with Bartolotti’s experience
would have known that bricks left in such a position would be
unstable and hazardous to employees working beneath them.
Standing against this evidence was Bartolotti’s own testimony
that he believed the bricks to be safe and secure. Were the
ALJ to discredit Bartolotti’s testimony, the charge of willful-
ness might prevail. Given this prospect, it was not unreason-
able for the Secretary to pursue this charge.
7
From the time of the ALJ’s second decision affirming the
willfulness charge, however, the Secretary’s position on the
issue of willfulness became untenable. As we discussed in
our previous opinion, the ALJ failed to make the necessary
determination as to Bartolotti’s credibility, despite the Com-
mission’s explicit holding that no finding of willfulness could
be supported in the absence of such a determination. See
Am. Wrecking Corp., 351 F.3d at 1263. Instead, the ALJ
asserted, for the first time, that Bartolotti and others at the
Steel Point site intentionally placed expediency above safety
in an effort to avoid financial penalties for missed deadlines.
As we found, ‘‘[t]his finding [was] unsupported by the record
and totally ignore[d] clear evidence to the contrary.’’ Id.
The ALJ’s reasoning was also ‘‘patently flawed,’’ we held,
because it equated the proposition that a person with Barto-
lotti’s experience should have known about the hazard posed
by the suspended bricks with a finding that he in fact did
have the requisite ‘‘heightened awareness’’ or ‘‘plain indiffer-
ence’’ to support a finding of willfulness. Id. at 1264-65. In
short, the ALJ ‘‘made no coherent credibility determinations,’’
‘‘ignored evidence that refute[d] his finding,’’ and issued a
holding that was ‘‘flatly at odds with the controlling case law.’’
Id. at 1265. Given these flaws, and given that the ALJ’s
second decision ignored the Commission’s specific remand
instructions, there was no substantial justification for the
Commission’s refusal to review that decision or for the Secre-
tary’s defense of it before this court. We therefore find that
AWC is entitled to reasonable fees and expenses incurred in
defending against the willfulness element of the Bricks Cita-
tion – though not the underlying violation itself – after the
time of the ALJ’s second decision.
As to the Roof Citation, we find that the Secretary’s
position was substantially justified throughout the administra-
tive proceedings. Although the Commission ultimately held
that the Secretary failed to prove that AWC employees had
actually been exposed to the danger of debris falling through
holes in the deteriorating roof, there was evidence on the
record establishing the existence of the debris and AWC’s
decision not to remove it. See Hearing Tr. at 177, 181-91
8
(4/8/97). Moreover, there were precedents available suggest-
ing that the Secretary could meet her burden of proof by
demonstrating that it was reasonably predictable that em-
ployees might be in the zone of danger. See Donovan v.
Adams Steel Erection, Inc., 766 F.2d 804, 812 (3d Cir. 1985);
Fabricated Metal Prods., Inc., 18 O.S.H. Cas. (BNA) 1072, at
*2-3 (O.S.H.R.C. 1997) (citing cases). The Commission did
not disturb the ALJ’s finding that AWC had violated the
standard by failing to remove debris from the roof. Rather,
its decision turned on the absence of proof that AWC employ-
ees were working directly beneath any of the holes in the roof
or that debris actually fell into the area where employees
were working. See Am. Wrecking Corp., 19 O.S.H. Cas.
(BNA) 1703, at *15. On this record, a reasonable person
could have been satisfied that it was reasonably predictable
that AWC employees would be exposed to the hazard and
that the Secretary’s position therefore could be correct.
AWC argues that under 28 U.S.C. § 2412(d)(1)(D), it is
entitled to full recovery of all its fees and expenses without
regard to whether the Secretary’s position was substantially
justified. That section provides that if the United States’
original demand in a civil action or judicial review of an
agency action is ‘‘substantially in excess’’ of any judgment the
United States finally obtains and is ‘‘unreasonable when
compared with such judgment, under the facts and circum-
stances of the case,’’ the court shall award to the petitioner
the reasonable fees and expenses incurred in defending
against the excessive demand. 28 U.S.C. § 2412(d)(1)(D).
Pointing out that the Secretary’s initial proposed penalty of
$126,000 is substantially in excess of the $7,000 maximum
penalty that is now available against it, AWC argues that it is
entitled to all of its fees and expenses.
There is scant case law interpreting § 2412(d)(1)(D). Nev-
ertheless, we do not read that provision as permitting AWC
to recover the full amount of its fees and expenses, even
acknowledging the large disparity between the Secretary’s
initial demand and the final judgment obtained by the Gov-
ernment. First, the statute requires not only that such a
disparity exist, but also that it be ‘‘unreasonable’’ under the
9
facts and circumstances of the case. See United States v.
One 1997 Toyota Land Cruiser, 248 F.3d 899, 906 (9th Cir.
2001). In this case, the Secretary’s initial demand only
appears ‘‘unreasonable’’ to the extent that her position in
litigation and before the agency was not ‘‘substantially justi-
fied.’’ In other words, this section surely does not permit
AWC to recover a greater amount than it could otherwise
recover under § 2412(d)(1)(A). To hold otherwise would per-
mit prevailing parties to circumvent the ‘‘substantial justifica-
tion’’ requirement of § 2412(d)(1)(A), a result we do not
imagine Congress to have intended.
The function of § 2412(d)(1)(D) is merely to permit non-
prevailing parties to recover fees and expenses where the
United States obtained a judgment that was substantially –
and unreasonably – exceeded by its initial demand. See One
1997 Toyota Land Cruiser, 248 F.3d at 904; Wolkow Braker
Roofing Corp., 19 O.S.H. Cas. (BNA) 1267 (O.S.H.R.C. 2000).
In this case, the only issue as to which AWC could be
characterized as a non-prevailing party is the willfulness of
the Bricks Citation. But we have already held that AWC is
entitled to fees and expenses related to that issue under
§ 2412(d)(1)(A), because the Secretary’s position was not
substantially justified. Finally, we note that § 2412(d)(1)(D)
only permits recovery of the fees and expenses incurred in
defending against the excessive demand, not in litigating the
entire proceeding. Accordingly, this section does not permit
AWC to recover any more than the award to which it is
entitled under § 2412(d)(1)(A).
To summarize, we hold that AWC is entitled to recover fees
and expenses associated with defending against the Engineer-
ing Survey Citation. We further hold that AWC is entitled to
recover fees and expenses incurred in connection with the
willfulness element of the Bricks Citation after the time of the
ALJ’s second decision.
B. Reasonable Fees and Expenses
The EAJA limits a party’s recovery to those fees and
expenses that are ‘‘reasonable.’’ Upon review of the docu-
10
ments submitted in support of AWC’s petition, we find that
much of the requested amount exceeds this statutory limit.
1. The Engineering Survey Citation
The Engineering Survey Citation was vacated in the ALJ’s
first decision, where it was only one of three citations at issue.
Accordingly, because AWC’s documents do not indicate which
fees and expenses are associated with which citations, we
award one-third of the reasonable fees and expenses incurred
up through the time of the ALJ’s first decision. See Kenne-
cott Corp. v. EPA, 804 F.2d 763, 766 (D.C. Cir. 1986).
Throughout that period, AWC was represented by two con-
sultants – first by Alfred Busicchia, and then by Joseph W.
Rufolo. The Secretary does not contest that AWC may
receive fees for these consultants, but because they are not
attorneys, we pause to note the basis of our authority to
award fees for their services.
The EAJA created separate provisions for obtaining an
award of fees and expenses from a court for a civil action or
judicial review of an agency proceeding, see 28 U.S.C. § 2412,
and from an agency for an administrative adjudication, see 5
U.S.C. § 504 (2000). The former, under which AWC filed
this petition, permits recovery only of ‘‘attorney fees.’’ See 28
U.S.C. § 2412(d)(2)(A). By contrast, the parallel provision in
Title 5 governing recovery of fees in agency proceedings
permits recovery of ‘‘attorney or agent fees.’’ See 5 U.S.C.
§ 504(b)(1)(A). Where a party seeks an award from a court
pursuant to 28 U.S.C. § 2412 for the fees and expenses of
litigating a petition for review of agency action, the court
should also award the appropriate fees and expenses incurred
in the underlying agency litigation, ‘‘to the same extent
authorized in’’ § 504(a) of Title 5. See 28 U.S.C. § 2412(d)(3).
Accordingly, because AWC would be entitled to recover fees
for non-attorney representatives had it proceeded under that
section, it is equally entitled to recover such fees pursuant to
§ 2412(d). But see Cook v. Brown, 68 F.3d 447 (Fed. Cir.
1995) (holding that parties may not recover fees for represen-
tation by an unsupervised nonlawyer under 28 U.S.C. § 2412,
11
but not addressing the cross-reference in that section to 5
U.S.C. § 504).
AWC requests fees for 166 hours of work for Alfred
Busicchia at a rate of $250 per hour. During this time,
Busicchia’s work consisted primarily of filing AWC’s contest
letter and response to the complaint. Busicchia also partici-
pated in an informal conference with OSHA, filed various
nonsubstantive motions, and attended several meetings re-
garding AWC’s strategy and preparation for the ALJ hear-
ing. Busicchia did not participate in the actual trial. We find
that 166 hours is excessive, for purposes of the EAJA, in light
of the nature of the work Busicchia performed. We note that
Busicchia spent approximately 87 hours in trial preparation
and strategizing, despite the fact that he ended his represen-
tation of AWC weeks before the trial even began. Nor did
Busicchia prepare any substantial pleadings or briefs on
AWC’s behalf. We are further troubled by the fact that
approximately 82 hours billed in the month of March 1997 are
exact duplicates of the hours reported by Joseph Rufolo for
that month. In addition, many of Busicchia’s entries are
vague in their description of his activities. For example,
Busicchia lists several meetings and teleconferences without
any indication of their subject matter. As we have often
noted in the context of fee-shifting statutes, such inadequacies
render it difficult for the court to ascertain the reasonable-
ness of the hours billed. See In re Espy, 346 F.3d 199, 204
(D.C. Cir. 2003).
In light of these deficiencies, we will reduce the number of
hours for Busicchia by 50%, to 83 hours. Because we assume
that two-thirds of this time was spent in connection with the
two citations for which the Secretary’s position was substan-
tially justified, we award fees to AWC for 27.667 hours of
work by Alfred Busicchia. As for the hourly rate, the EAJA
limits the hourly rate for attorneys or agents to $125, unless
the petitioner demonstrates a ‘‘special factor’’ warranting a
higher rate. See 5 U.S.C. § 504(b)(1)(A); 28 U.S.C.
§ 2412(d)(2)(A). In addition, the court may adjust this rate
to account for increases in the cost of living. See id. AWC
has not suggested the existence of any special factors, though
12
in its reply brief it did request a cost-of-living adjustment to
2004 dollars. Contrary to AWC’s request, the court must
calculate any cost-of-living increase according to the year in
which the service was performed, not the year in which the
fee is recovered. See Masonry Masters, Inc. v. Nelson, 105
F.3d 708, 709-10 (D.C. Cir. 1997). The $125 hourly rate was
established in 1996. Because Busicchia’s services were per-
formed in late 1996 and early 1997, no adjustment is warrant-
ed. Therefore, AWC is entitled to fees for 27.667 hours of
work at $125 per hour, for a total of $3,458.33.
AWC also requests $246.15 in expenses for services per-
formed by Busicchia. Almost all of these expenses are for
mileage and tolls. Such costs are not reimbursable as ex-
penses under the EAJA. See Role Models Am., 353 F.3d at
974 (citing Mass. Fair Share v. Law Enforcement Assistance
Admin., 776 F.2d 1066, 1069-70 (D.C. Cir. 1985)). The re-
maining expense item is labeled simply ‘‘informal conference,’’
giving the court no indication of whether the costs associated
with the conference are reimbursable. We therefore award
no expenses. The total award for services performed by
Alfred Busicchia is therefore $3,458.33.
Turning to Joseph W. Rufolo, AWC requests fees for
539.45 hours of work, at $250 per hour. Of those hours,
363.75 were billed prior to the ALJ’s first decision. As with
Busicchia, we find that many of Rufolo’s reported hours
exceed what is reasonable for purposes of the EAJA. First,
there is the matter of the duplication of approximately 82
hours in March 1997 between Rufolo and Busicchia, whose
invoices are identical for that month. In addition, Rufolo’s
billed hours for the days of the ALJ hearing average over 17
hours per day, excluding a day on which the hearing lasted
only a half day. Rufolo also listed two hours of trial time for
April 14, a day on which there were no trial proceedings. We
further note that AWC requests fees for 102 hours that
Rufolo took to prepare the post-trial brief. This is the
equivalent of two-and-a-half 40-hour work weeks, which we
find to be excessive. The invoice for April 1997 also lists two
identical entries for April 7, for 13 hours each. In light of
these inflated and duplicative entries, we reduce Rufolo’s
13
hours by half to 181.875, of which one-third, or 60.625 hours
are eligible for reimbursement.
Although AWC requests an hourly rate of $250 for Rufolo,
we will reduce this to the statutory limit of $125 per hour,
adjusted for inflation. The bulk of Rufolo’s hours for which
we will reimburse AWC occurred in 1997, one year after the
amendment of the $125 limit. Using the Bureau of Labor
Statistics’ Consumer Price Index inflation calculator, we will
allow an hourly rate for 1997 of $127.87. Using these figures,
the total reasonable fees to which AWC is entitled for work
performed by Rufolo is $7,752.12.
AWC also requests expenses for Rufolo’s service. For the
period prior to the ALJ’s first decision, the total expenses,
excluding non-reimbursable items such as travel and messen-
ger services, are $5,262.98, comprised mainly of copying
expenses and the cost of the court reporter and transcript.
AWC is entitled to one-third of this amount, or $1,754.33.
Accordingly, the total award for AWC in connection with
services performed by Joseph Rufolo comes to $9,506.45
The third representative for which AWC seeks fees and
expenses, attorney Howard A. Wintner, only represented
AWC in the interval between the ALJ’s first and second
decisions, during which time the Secretary’s position was
substantially justified in its entirety. AWC therefore is not
entitled to any fees or expenses in connection with Wintner’s
services. The total award of fees and expenses for the Engi-
neering Survey Citation comes to $12,964.78.
2. The Bricks Citation
The Secretary’s position as to the willfulness of the viola-
tion underlying the Bricks Citation was not substantially
justified after the ALJ’s second decision. Again, AWC’s
records do not indicate which fees and expenses are associat-
ed with the issue of willfulness and which are associated with
the underlying violation. We therefore award half of the
reasonable fees and expenses incurred after the ALJ’s second
decision.
Joseph Rufolo billed AWC for 2.5 hours spent reviewing
the ALJ’s second decision with the client. We allocate 1.25 of
14
these hours to the issue of willfulness, charged at the infla-
tion-adjusted rate for 2002 of $143.32. Rufolo reported no
reimbursable expenses after the ALJ’s second decision.
AWC is therefore entitled to $179.15 for Rufolo’s services in
connection with the Bricks Citation.
AWC also seeks fees and expenses for work performed by
attorney Joseph P. Paranac, Jr. In late 2002, Paranac billed
AWC for 36.8 hours of his own time, at a rate of $275-300 per
hour. Paranac also listed 19.7 hours for an associate’s time,
billed at $110 per hour. A third attorney billed 4 hours at a
rate of $205 per hour. During this period, Paranac and his
associates prepared AWC’s petition for discretionary review
before the Commission and the petition for review before this
court, while also meeting and strategizing with AWC. Be-
cause these hours are documented with adequate detail for
the court to assess their necessity, and because the hours
appear reasonable, we will award AWC fees for one-half of
the full amount of hours. Two of the attorneys’ hourly rates
far exceed the statutory limit, however; we therefore calcu-
late the amount for their work at a rate of $143.32 per hour,
the statutory rate adjusted for inflation. The total award for
attorney fees for Paranac for 2002 comes to $4,007.23.
In 2003, Paranac billed 114.8 hours at $300-310 per hour,
while the associate billed 92.5 hours at $110 per hour. The
third attorney billed 1.7 hours at $250 per hour. During this
period, the attorneys prepared the opening brief, reply brief,
and joint appendix for the petition for review in this court, in
addition to preparing for and participating in oral arguments.
As the Secretary rightly points out, however, 1.5 hours billed
by one associate for time spent gaining admittance to the bar
of this court should not be counted as attorney fees for
purposes of the EAJA. See Role Models Am., 353 F.3d at
973. Reducing the hourly rates for the two attorneys whose
rates exceed the statutory limit to $146.59 per hour and
dividing the total hours by two, the total attorney fees for
2003 come to $13,543.87. In addition, AWC is entitled to
$2,545.29 in expenses for Paranac’s services, which covers half
the costs of photocopies and document production, computer
research, and filing fees. The award for AWC’s defense
15
against the willfulness element of the Bricks Citation after
the ALJ’s second decision therefore totals $20,275.54.
3. The EAJA Petition
In a supplemental motion, AWC seeks fees and expenses
for Paranac’s services in the preparation of this EAJA peti-
tion. ‘‘Cases in this Circuit have routinely awarded reasonable
fees incurred in requesting fees under fee-shifting statutes’’
such as the EAJA. Hirschey v. FERC, 777 F.2d 1, 3 (D.C.
Cir. 1985). Paranac and one other attorney billed a total of
118 hours in 2004 for compiling the application. This
amounts to nearly three 40-hour weeks, an excessive amount,
particularly when compared with the number of hours Para-
nac required for the much more substantial tasks of briefing
and arguing the petition for review before this court. We
therefore reduce this amount by half, to 59 hours, at the
adjusted statutory rate of $148.34 per hour. The reimbursa-
ble expenses for this period, for photocopying and computer-
based research, amount to $1,917.78. The total fees and
expenses for preparation of the EAJA petition therefore come
to $10,669.84.
III. CONCLUSION
AWC is entitled to reasonable fees and expenses it incurred
in defending against the Engineering Survey Citation ($12,-
964.78), the willfulness element of the Bricks Citation after
the ALJ’s second decision ($20,275.54), and in preparing the
EAJA petition ($10,669.84). We order the Secretary to reim-
burse AWC in the amount of $43,910.16.