United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 29, 2008
No. 06-1244
FABI CONSTRUCTION COMPANY, INC. AND
PRO MANAGEMENT GROUP,
PETITIONERS
v.
SECRETARY OF LABOR,
RESPONDENT
On Petition for Review of an Order of the
Occupational Safety and Health Administration
On Application for Attorneys’ Fees
Before SENTELLE, Chief Judge, and GINSBURG and BROWN,
Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: Fabi Construction, Inc. and Pro
Management Group (hereinafter “Fabi”) petition this court for
an award of attorneys’ fees and costs in the amount of
$569,031.38 incurred in connection with the defense of citations
issued by the Secretary of Labor (hereinafter “Secretary”). See
Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077 (D.C. Cir.
2
2007). Fabi has submitted its attorneys’ billing records along
with its petition, and the Secretary has filed her opposition.
After examination of the billing records and consideration of the
Secretary’s objections, we find that Fabi is entitled to an award
of attorneys’ fees and costs, but not for the full amount sought.
We conclude, for the reasons stated below, that Fabi is entitled
to an award in the amount of $165,304.87.
I. BACKGROUND
We set forth in detail the background of this case in Fabi,
508 F.3d at 1079-80. For our purposes here we note that Fabi
was involved in the construction of a parking garage, providing
labor, materials, and equipment for cement work. While Fabi
was pouring concrete on the eighth level, levels four through
eight collapsed, killing four workers and injuring numerous
others. The Occupational Safety & Health Administration, an
agency of the U.S. Department of Labor, investigated the
accident and cited Fabi for six violations of the Occupational
Safety & Health Act. Two of the violations were later
withdrawn by the Secretary. The remaining violations were
litigated before an Administrative Law Judge (“ALJ”), and his
decision was appealed to this court. In short, several of the
litigated violations were affirmed while those remaining were
vacated.
II. DISCUSSION
Fabi now seeks an award of attorneys’ fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
Under sections 2412(a)(1), (b), and (d)(1)(A), a court may award
“costs” and “reasonable fees and expenses” of attorneys to the
“prevailing party” in any civil action brought by the United
States or any United States agency, including “proceedings for
judicial review of agency action.” Fees and expenses are to be
3
awarded to a prevailing party “unless the court finds that the
position of the [Government] was substantially justified.” 28
U.S.C. § 2412(d)(1)(A). And pursuant to section
2412(d)(2)(B)(ii), a party is eligible for an award if its net worth
“did not exceed $7,000,000 at the time the civil action was filed
. . . .”
As an initial matter we find that Fabi has submitted
sufficient documentation showing that its net worth does not
exceed $7 million. See Broaddus v. U.S. Army Corps of Eng’rs,
380 F.3d 162, 166-69 (4th Cir. 2004). Using EAJA rates, Fabi
states that its total attorneys’ fees expended in litigating the
merits of the case amounted to $645,881.15, and its total costs
and expenses amounted to $88,740.77. After making certain
adjustments Fabi requests an award in the amount of
$530,543.95,1 plus $37,590.60 in attorneys’ fees and $896.83 in
costs and expenses incurred in pursuing its application for
attorneys’ fees, for a total award of $569,031.38. In our
discussion below, we consider Fabi’s fee petition and make an
award in light of the “reasonable” and “substantially justified”
standards set forth in the EAJA.
Attorneys’ fees
Reasonableness
Lumping tasks together. In In re Olson, 884 F.2d 1415,
1428-29 (D.C. Cir. 1989), we noted that “when 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
1
Fabi asserts that this amount excludes any fees expended for
press coverage, transportation, mileage, Federal Express and
messenger services, and hotels.
4
‘determine with a high degree of certainty,’ as it must, that the
billings are reasonable.” For example, on May 4, 2004, an
attorney entry for 3.8 hours indicated that the following five
tasks were performed: “Review articles in preparation for
conference call regarding public relations issues; participate in
teleconference with R. Cossack, S. Yohay, K. Dunne, B. Ficken,
S. Perillo and A. Zappone, regarding same; meet with S. Yohay
regarding demolition issues; teleconference with RJR
representatives regarding same; draft letter to D. Sherman
regarding same.” Also, on November 1, 2004, a lead attorney
submitted an entry for 2.7 hours for the following nine tasks:
“Telephone conference with D. Sherman, S. Yohay regarding
upcoming settlement proposal; telephone conference with S.
Demitrio, S. Yohay regarding deposition schedule and discovery
orders issued by Judge Rooney; followup telephone conference
with S. Yohay regarding depositions; review correspondence
from Keating counsel F. Jacoby regarding same; telephone
conference with S. Yohay regarding same; contact N. Devine
regarding preparation of settlement proposal for submission to
D. Sherman; review and revise settlement proposal; review press
coverage of one-year anniversary of garage collapse.” Fabi has
indicated that it has made deductions for work done on public
relations and press coverage, but because those tasks have been
lumped together with other tasks we are unable to ascertain with
certainty whether the correct deductions have been made.
Inadequate detail. In In re Meese, 907 F.2d 1192, 1204
(D.C. Cir. 1990) (per curiam), the court made deductions to the
requested attorneys’ fees 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 conference or the work
performed during hours billed.” The billing entries here are
replete with such entries. There are, for example, numerous
entries concerning telephone calls, telephone conferences, email
5
exchanges, and meetings that give no further information of
what these communications concerned. See, e.g., entries on:
Apr. 6, 2004 (“Telephone conference with L. Daley regarding
various matters”); May 5, 2004 (“telephone conference with S.
Perillo; telephone conferences with B. Ficken”); July 20, 2004
(“reviewing email from O. Guedelhoefer re numerous issues”);
Aug. 11, 2004 (“telephone conference with D. Morikawa (Site-
Blauvelt counsel”); Sept. 13, 2004 (“Meeting in Philadelphia
with Pepper Hamilton team, and with A. Zappone and S.
Perillo”); Mar. 7, 2005 (“Meet at Pepper Hamilton”); Mar. 17,
2005 (“phone conferences with C. Guedelhoefer”); Mar. 29,
2005 (“phone conferences with S. Demetrio, D. Tigue, J.F.
Lagroterria, C. Reynolds”); Apr. 6, 2005 (“meet with RR&J at
Pepper”); Oct. 17, 2005 (“confer with Corvo and Kreig”); Nov.
15, 2005 (“phone conference with Horty & Horty”); Oct. 9,
2007 (“draft e-mails to S. Gordon”).
Relevancy. We note that there are various entries that do
not appear to be relevant to defending the Secretary’s allegations
and therefore may not be included in an award. See, e.g., entries
on July 12, 2004 (“review motion concerning extrajudicial
statements filed in state litigation”); Sept. 24, 2004 (“call from
K. Levin re recent status conference in state court matter”); Oct.
27, 2004 (“calls from S. Perillo and A. Zappone re reporter’s
interest in OSHA Report”); Nov. 1, 2004 (“call from S. Perillo
re press coverage”); May 16, 2005 (“telephone conference with
R. Deluca re: state-court litigation”); July 5, 2005 (“phone
conference with R. Deluca regarding civil lawsuit, status,
strategy”).
Taking all of the above-mentioned billing defects into
consideration – i.e., tasks lumped together, inadequate detail,
and irrelevancy – we will reduce by 25 percent the amount of
$645,881.15, which, as noted above, Fabi states is the total for
attorneys’ fees expended in litigating the merits of this case. See
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Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C.
Cir. 2004) (award reduced by fifty percent for, among other
deficiencies, multiple tasks lumped together, inadequate detail,
and irrelevancy). This reduction yields an amount of
$484,410.86.
Position substantially justified
Under the EAJA, attorneys’ fees may be awarded to the
“prevailing party” in an action brought by a United States
agency. 28 U.S.C. § 2412(a)(1). Fees and expenses are to be
awarded to a prevailing party “unless . . . the position of the
[Government] was substantially justified.” 28 U.S.C. §
2412(d)(1)(A). It is not sufficient to satisfy the statute that the
government’s position has not prevailed. The statutory structure
assumes that “the Government . . . could take a position that is
substantially justified, yet lose.” Pierce v. Underwood, 487 U.S.
552, 569 (1988). Here, on Citation 1, Item 1, Instance (a);
Citation 1, Item 1, Instance (b); and Citation 1, Item 5, the
Secretary’s position was affirmed, and consequently Fabi was
not the prevailing party on those issues, and is not eligible for
attorneys’ fees in defense of them. Citation 1, Item 3, and
Citation 1, Item 4, were withdrawn by the Secretary before trial.
The Secretary concedes that she was not substantially justified
in her position on those items, and therefore Fabi is eligible for
attorneys’ fees in defense of them. Remaining for resolution as
to whether the Secretary was justified in her position are
Citation 1, Item 1, Instance (c); Citation 1, Item 2; and Citation
2, Item 1.
Citation 1, Item 1, Instance (c). In Citation 1, Item 1,
Instance (c), the Secretary charged Fabi with a violation for not
placing bottom steel, a type of reinforcing steel, in accordance
with industry standards and with the structural and/or shop
drawings. In the proceedings below the Administrative Law
7
Judge concluded that the Secretary had failed to establish by a
preponderance of the evidence that a violation had occurred.
The ALJ vacated Instance (c) on the ground that “evidence
regarding industry recognition of the failure to include bottom
steel was equivocal . . . [T]here was a dispute among the experts
regarding whether the bottom bars depicted in the structural
drawings would have added to the stability of the structure.”
The Secretary did not appeal the ALJ’s decision on this issue.
Because the Secretary’s position, while unsuccessful, was
supported by expert testimony, we conclude that it was
substantially justified, and therefore Fabi is not eligible for
attorneys’ fees on this issue.
Citation 1, Item 2. In Citation 1, Item 2, the Secretary
charged Fabi with a violation for not having shoring plans
available at the worksite for multiple levels (P3 to P8) of the
structure. In the proceedings below, the ALJ vacated Citation
1, Item 2, holding that Fabi had shoring plans for level P2
onsite, and level P2 was sufficiently similar to levels P3 through
P8 so that Fabi was not required to have shoring plans for the
other levels onsite. The Secretary did not appeal the ALJ’s
decision on this issue. Because it appears that the record, as
recounted by the ALJ, was ambiguous and the issue was not
clear cut, we conclude that the Secretary’s position was
substantially justified, and therefore Fabi is not eligible for
attorneys’ fees on this issue.
Citation 2, Item 1. In Citation 2, Item 1, the Secretary
charged Fabi with a violation for making “formwork”
(specifically the slabs below level P8) incapable of supporting
the loads imposed by level P8. Fabi argued to the ALJ that the
term “formwork” in the regulation at issue includes only
temporary forms supporting newly poured concrete during
construction. The ALJ concluded that the regulation governs
permanent types of formwork. On appeal we vacated this item,
8
agreeing with Fabi “that the plain language of ‘formwork’ in the
context of the regulation cannot include permanent parts of
structures like slabs.” Fabi I, 508 F.3d at 1086. We therefore
held that the permanent structures that were constructed
improperly were not “formwork” under the regulation. We
concluded that “the Secretary’s . . . interpretation of formwork
. . . is beyond the bounds of reasonableness,” id., and that “the
regulations at issue d[id] not give [Fabi] fair notice of the
Secretary’s interpretation.” Id. at 1088. Furthermore, we
vacated this citation under a highly deferential standard of
review and concluded that OSHA had violated Fabi’s right to
due process. Id. We therefore conclude that the Secretary’s
position was not substantially justified, and Fabi is therefore
eligible for a fee award on this item.
In sum, the Secretary took eight positions: three in Citation
1, Item 1, and one each in Citation 1, Items 2 through 5, and
Citation 2, Item 1. The Secretary was affirmed on three of those
eight positions (Citation 1, Item 1, Instance (a); Citation 1, Item
1, Instance (b); and Citation 1, Item 5), and as noted above we
find her position substantially justified on another two (Citation
1, Item 1, Instance (c), and Citation 1, Item 2). Fabi is therefore
not eligible for an attorneys’ fees award on these five issues. Of
the remaining three positions, the Secretary has conceded that
her position was not substantially justified on two (Citation 1,
Item 3, and Citation 1, Item 4), and as noted above we have
determined that her position on the third (Citation 2, Item 1) was
not substantially justified. We will therefore award attorneys’
fees to Fabi for defending against those citations.
Our final task in calculating an award of attorneys’ fees is
to determine the amount of the award. Ideally, we would review
the billing entries for work done on each citation and calculate
the award accordingly. But the billing entries submitted are of
very little help in that they rarely mention how much time has
9
been spent on each issue. We will instead assume that an equal
amount of time was spent in connection with each issue. See
American Wrecking Corp. v. Secretary of Labor, 364 F.3d 321,
329 (D.C. Cir. 2004). As noted above, Fabi is eligible for fees
on three of the eight positions taken by the Secretary, and we
will therefore multiply the last amount noted above,
$484,410.86, by 3/8, resulting in an amount of $181,654.07. As
the Secretary points out, however, allocating fees in this manner,
i.e., dividing total fees expended by number of eligible items,
gives Fabi the same compensation for the withdrawn items as it
does for the item that was tried before the ALJ, raised before the
full Commission, and then appealed to this court. In order to
account for this discrepancy, we will reduce the award for the
withdrawn items by 50 percent. To calculate this amount, we
will first divide $181,654.07 by three, resulting in an amount of
$60,551.36 for each of the three eligible items. We will then
reduce that amount by 50 percent, resulting in an award of
$30,275.68 for each of the two withdrawn items. The total
award for attorneys’ fees is therefore $30,275.68 (for Citation 1,
Item 3) + $30,275.68 (for Citation 1, Item 4) + $60,551.36 (for
Citation 2, Item 1), which sums to $121,102.72.
Costs and expenses
Fabi states that it has expended a total of $88,740.77 for
costs and expenses in litigating the merits of the case. We find,
however, the list of costs and expenses inadequately detailed,
filled with generic references such as “transcripts,”
“publication,” and “document production.” To reflect these
defects in the costs and expenses billings, we will reduce, as we
did above for attorneys’ fees, the requested amount by 25
percent. See In re Meese, 907 F.2d at 1204 (reducing
petitioner’s award for costs because of inadequate
documentation); In re Donovan, 877 F.2d 982, 994-95 (D.C. Cir.
1989) (fee applicant must provide adequate documentation of
10
reasonableness of fees and costs incurred). This reduction (.75
x $88,740.77) yields an amount of $66,555.58. We also must
make a further deduction to reflect Fabi’s award eligibility on
only three of the eight positions taken by the Secretary. As we
did calculating the attorneys’ fees above, we will multiply the
last amount stated by 3/8, resulting in a total award for costs and
expenses of $24,958.34.
Fee application fees
Fabi further seeks $37,590.60 in attorneys’ fees and
$896.83 in costs and expenses it claims were expended on
preparing and defending its fee application. This amount for
attorneys’ fees was calculated using 236.8 hours of attorneys’
fees billed by Fabi for the fee application, which turns out to be
nearly six 40-hour weeks of attorney time. In her response the
Secretary contends that this length of time appears excessive for
work done on the application, and we agree. See, e.g., American
Wrecking Corporation v. Sec’y of Labor, 364 F.3d 321, 331
(D.C. Cir. 2004) (three 40-hour weeks spent compiling
attorneys’ fees application found to be “an excessive amount”).
We will therefore reduce the requested amount for attorneys’
fees by half, see id., resulting in an amount of $18,795.30. For
the same reason we will reduce by half the request for costs and
expenses, resulting in an amount of $448.42.
III. CONCLUSION
For the reasons set forth above, it is ordered that Fabi be
awarded $121,102.72 for attorneys’ fees and $24,958.34 for
costs and expenses in litigating the merits of this case, plus
$18,795.39 in attorneys’ fees and $448.42 in costs and expenses
incurred pursuing its application for attorneys’ fees, for a total
of $165,304.87.