United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 3, 2001
No. 00-5116
In re: Sealed Case 00-5116
Consolidated with
00-5302
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On Appellants' Motion for Attorneys' Fees
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Before Edwards, Chief Judge, Sentelle and Henderson,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: In In re Sealed Case, we held
that the Federal Election Commission (FEC) unquestionably
violated its authorizing statute and its own regulations by
placing information about an ongoing investigation in the
public record as part of a subpoena enforcement action. 237
F.3d 657, 667 (D.C. Cir. 2001). Now, Appellants in that case
apply for fees and expenses under the Equal Access to
Justice Act (EAJA), 28 U.S.C. s 2412. Appellants argue that
they are entitled to attorney fees exceeding the $125 per hour
typically provided under the Act. Appellants suggest that
the higher fees are justified by special factors that limited the
pool of available counsel. See id. s 2412(d)(2)(A). Specifical-
ly, they contend the pool was limited because the case re-
quired attorneys who specialize in federal election law, are
experienced in federal litigation, and were familiar with the
sealed administrative record. Appellants further suggest
that the FEC's strident insistence on placing the information
on the public record with less than 24 hours notice precluded
them from looking for other counsel. Because these limita-
tions are not the type of "special factors" contemplated by the
Act, see F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C.
Cir. 1996), we award Appellants the expenses for which they
have applied and fees calculated at the standard EAJA rate.
I. BACKGROUND
The FEC is investigating allegations that Appellants violat-
ed the Federal Election Campaign Act (FECA), 2 U.S.C.
s 413 et seq. As part of the investigation, the FEC issued a
subpoena to a third-party witness. When the third party did
not comply with the subpoena, the FEC petitioned the dis-
trict court to enforce it. The petition was filed on the public
record and contained information about the ongoing investiga-
tion.
Appellants immediately filed an emergency motion to seal
the case. In the motion, Appellants argued that the FEC's
petition violates the broad confidentiality afforded to the
subjects of FEC investigations under FECA. The district
court denied Appellants' motion to seal, treating it "sort of as
a TRO request." Transcript of Emergency Hearing at 12, In
re Sealed Case, No. MISC. 00-162 (D.D.C. Mar. 17, 2000).
On appeal, we recognized that 2 U.S.C. s 437g(a)(12)(A)
and 11 C.F.R. s 111.21(a) plainly state that "the Commission
shall not place information about an ongoing investigation in
the public record when it seeks to enforce a subpoena."
Sealed Case, 237 F.3d at 667. We held that by publicly filing
its petition and the accompanying exhibits, "the Commission
unquestionably violate[d] Congress's mandate and its own
regulations." Id. Accordingly, we reversed the district
court's ruling. Appellants now apply for fees and expenses
related to their effort to seal the FEC's subpoena enforce-
ment action.
II. ANALYSIS
Under the EAJA, we "award to a prevailing party" of
qualifying size fees and expenses incurred by the party as
part of an action against the United States unless "the
position of the United States was substantially justified or ...
special circumstances make an award unjust." 28 U.S.C.
s 2412(d)(1)(A).
The Commission concedes that Appellants are "prevailing
parties." See id. s 2412(d)(1)(A), (2)(B). The Commission
also wisely concedes that its position in the underlying case
was not substantially justified. It could not have asserted
otherwise with a straight face. Our earlier opinion highlight-
ed the "weakness" of the Commission's position, a weakness
that "invite[d] the suspicion that its actions [were] externally
motivated." Sealed Case, 237 F.3d at 668.
The EAJA provides that "attorney fees shall not be award-
ed in excess of $125 per hour unless the court determines that
... a special factor, such as the limited availability of quali-
fied attorneys for the proceedings involved, justifies a higher
fee." 28 U.S.C. s 2412(d)(2)(A). Appellants apply for fees
for the three attorneys who represented them in their effort
to seal the subpoena enforcement action. Each of the attor-
neys charges a different hourly rate, all of which exceed the
$125 rate provided for in the statute. Appellants ask us to
award the higher fees charged by counsel in light of several
special factors that combined to narrow the pool of available
counsel in this case. Specifically, they contend that the case
required attorneys who specialize in federal election law, who
have experience in federal litigation (particularly with respect
to emergency remedies), and who were familiar with the
administrative record in the ongoing FEC investigation. Ad-
ditionally, Appellants claim that the higher fees are justified
by the FEC's ham-handed insistence on making a public filing
with little notice and its obstinate refusal to temporarily
preserve Appellants' confidentiality. According to Appel-
lants, the FEC's handling of this matter precluded any realis-
tic chance to retain other counsel.
In Pierce v. Underwood, the Supreme Court explained that
the EAJA's "limited availability" provision "must refer to
attorneys 'qualified for the proceedings' in some specialized
sense, rather than just in their general legal competence."
487 U.S. 552, 572 (1988). The Court held that the provision
requires attorneys to possess "some distinctive knowledge or
specialized skill needful for the litigation in question." Id.
According to the Court, examples of this criterion are "an
identifiable practice specialty such as patent law, or knowl-
edge of foreign law or language." Id. Fee awards exceeding
the statutory cap are permitted only "[w]here such qualifica-
tions are necessary and can be obtained only at rates in
excess of the [$125] cap." Id. The Underwood Court empha-
sized that "the other 'special factors' envisioned by the excep-
tion must be such as are not of broad and general applica-
tion." Id. at 573.
Following Underwood, we noted that a higher fee would be
appropriate for specialties "requiring technical or other edu-
cation outside the field of American law." Waterman S.S.
Corp. v. Mar. Subsidy Bd., 901 F.2d 1119, 1124 (D.C. Cir.
1990). In F.J. Vollmer Co. v. Magaw, we held that specializa-
tion in firearms law was not a special factor justifying higher
fees under the EAJA. 102 F.3d 591, 598 (D.C. Cir. 1996). In
that case, we stated that "lawyers practicing administrative
law typically develop expertise in a particular regulated in-
dustry," but this expertise comes from experience, not from
specialized training. Id. "If expertise acquired through
practice justified higher reimbursement rates, then all law-
yers practicing administrative law in technical fields would be
entitled to fee enhancements." Id. As we explained in
Vollmer, nothing in the EAJA suggests this entitlement. See
id. A number of our sister circuits have adopted a similar
approach, refusing to award higher fees based on counsel's
expertise in a particular subject. See, e.g., Estate of Cervin v.
Commissioner, 200 F.3d 351, 354 (5th Cir. 2000); Raines v.
Shalala, 44 F.3d 1355, 1361 (7th Cir. 1995); Stockton v.
Shalala, 36 F.3d 49, 50 (8th Cir. 1994); Chynoweth v. Sulli-
van, 920 F.2d 648, 650 (10th Cir. 1990). But see Love v.
Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991).
In light of Vollmer, we cannot award Appellants fees
exceeding $125 simply because they wanted to hire attorneys
who specialize in federal election law, have experience in
federal litigation, and were familiar with the administrative
record. Although federal election law "involves a complex
statutory and regulatory 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." Chynoweth, 920 F.2d at 650. Likewise, in all
federal cases, clients presumably want to be represented by
an attorney with experience in federal litigation and who is
familiar with the record at issue. These are not special
factors unique to this case. Rather, even in combination they
broadly and generally apply to countless cases litigated in the
federal courts. See Underwood, 487 U.S. at 573.
Appellants suggest that this case is set apart from the
typical one by the "artificial emergency" created by the FEC.
Appellants contend that the FEC's actions placed unneces-
sary time constraints on them that effectively limited the
availability of qualified attorneys who could handle this mat-
ter. As we recounted in our earlier opinion, on March 16,
2000, the FEC gave Appellants less than 24 hours notice that
it planned to file a petition seeking to enforce a subpoena
against a third-party witness and that the petition would
include exhibits detailing information about the FEC's ongo-
ing investigation of Appellants. See Sealed Case, 237 F.3d at
662. We neglected to note in that opinion, however, that the
FEC provided this notice "just before close of business."
While the FEC considered this a "courtesy" (presumably
because no regulation required such notice), its etiquette only
extended as far as informing Appellants that their statutorily
protected confidentiality would be violated the next afternoon.
Because of the Commission's manners, Appellants were
forced to act immediately.
Within seconds of the FEC filing its petition, Appellants
filed an emergency motion to seal the district court proceed-
ings. A few hours later, Appellants' counsel advocated that
motion before the district court at a hastily arranged hear-
ing--a hearing that was held on a Friday at 5 pm. By the
time the district court denied Appellants' motion, the work
week was over. Fearing that confidential information would
be revealed when the district court clerk's office reopened the
following week, Appellants scrambled to appeal the district
court's decision by Monday afternoon.
Undoubtedly, the FEC's actions forced Appellants into an
atrocious position. To shield themselves from the very agen-
cy Congress requires to protect their confidentiality, Appel-
lants essentially had no choice other than to turn to the
attorneys on whom they had relied during the FEC's investi-
gation. There simply appears to have been no time to re-
search or retain other counsel. Still, this difficulty is not the
type of "special factor" or "limited availability" contemplated
by the EAJA.
Because the Act is a waiver of sovereign immunity, we
must construe it "strictly in favor of the sovereign." Mason-
ry Masters, Inc. v. Nelson, 105 F.3d 708, 712 (D.C. Cir. 1997).
Under the EAJA, we award attorney fees if "the position of
the United States" was not "substantially justified." 28
U.S.C. s 2412(d)(1)(A). The Act mandates that those fees
"shall not be awarded in excess of $125 per hour unless ... a
special factor ... justifies a higher fee." Id. s 2412(d)(2)(A).
The special factor inquiry is separate from the inquiry into
whether the United States' position was justified. Appel-
lants' proposed reading conflates the two by asking for higher
fees in light of the FEC's actions and how those actions
impacted them. For a party to receive any fee award under
the Act, the government's position must not be substantially
justified--it does not matter how unjustified that position is.
Congress has not devised a system to penalize the United
States for the degree of its unjustified position or how that
unjustified position has impacted a prevailing party. Rather,
its waiver of sovereign immunity assumes that the United
States has taken an unreasonable position.
We agree with the FEC's concession that its position in
this case was not substantially justified. Its contentious
refusal to file its petition under seal was based on a surreal
reading of FECA, references to opaque shards of legislative
history, and an absurdist approach to its own regulations.
See Sealed Case, 237 F.3d at 668-70. Indeed, the Commis-
sion seemed to have completely overlooked the bedrock prin-
ciple that "[a]gencies are not empowered to carve out excep-
tions to statutory limits on their authority," an authority that
flows directly from explicit congressional delegations. Id. at
669-70. To say that the Commission's position was not
substantially justified is an understatement. It was not justi-
fied at all. See id. at 668. Nevertheless, this simply reflects
the threshold inquiry required for Appellants to receive any
fee award, not a reason to increase that award beyond the
otherwise applicable $125 rate. It does not matter that the
Commission's wholly unjustified actions may have forced Ap-
pellants to retain counsel who charge more than the statutori-
ly provided fee. Instead, because the Commission's position
was wholly unjustified, the EAJA's waiver of sovereign immu-
nity authorizes us to award Appellants attorney fees based on
a rate of $125 per hour. Accordingly, this rate forms the
basis of Appellants' award.
Appellants ask us to award fees based on the time their
counsel spent preparing supplemental and reply briefs for
their fee application. These briefs were primarily devoted to
arguing that Appellants should receive higher fees based on
their interpretation of the EAJA's "special factor" provision.
We do not award fees for Appellants' preparation of these
briefs. As we discussed above, Appellants' argument for
higher fees flies in the face of the clear precedent of this
Court. The United States is not required to pay "for work
that could have been avoided." Action on Smoking & Health
v. Civil Aeronautics Bd., 724 F.2d 211, 224 (D.C. Cir. 1984).
Additionally, Appellants did not prevail on this question. See
Cooper v. United States R.R. Retirement Bd., 24 F.3d 1414,
1417 (D.C. Cir. 1994).
The Commission raises several arguments concerning spe-
cific entries and costs in Appellants' application. We have
considered these arguments and find them meritless.
III. CONCLUSION
According to Appellants' application, their attorneys spent
231.5 hours working on this case (excluding time spent on the
supplemental and reply briefs in this proceeding), and they
incurred $3,920.80 in expenses (the $4,095.33 listed in the
initial petition, less the amounts conceded in the reply brief).
Based on the EAJA's $125 per hour rate, Appellants are
entitled to $32,858.30 in fees and expenses.
So ordered.