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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided January 13, 2004
No. 02-5037
ROLE MODELS AMERICA, INC.,
APPELLANT
v.
LES BROWNLEE, ACTING SECRETARY OF THE ARMY, ET AL.,
APPELLEES
On Appellant’s Application for Attorneys’ Fees
P. David Richardson filed the application for attorneys’
fees on behalf of appellant. With him on the application was
Joseph C. Port Jr.
R. Craig Lawrence, Assistant U.S. Attorney, filed the
opposition on behalf of appellees. With him on the opposition
were Roscoe C. Howard Jr., U.S. Attorney, and Claes H.
Lewenhaupt, Special Assistant.
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: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In an earlier decision in this case, we
ordered the Secretary of the Army to correct procedural
errors he committed in disposing of excess military property,
errors that deprived appellant, a non-profit organization, of
an opportunity to compete for the property. For its work in
securing that decision, appellant now seeks an award of
attorneys’ fees pursuant to the Equal Access to Justice Act.
Because appellant has satisfied the statutory requirements
for an award, we grant its application for fees. But because
it has failed to justify the amount it seeks, we award signifi-
cantly less than requested.
I.
Our previous opinion fully describes the background of this
case, see Role Models Am., Inc. v. White, 317 F.3d 327, 328–
31 (D.C. Cir. 2003), so we only summarize it here. Appellant
Role Models America, Inc., a non-profit educational organiza-
tion, seeks to establish a military-style magnet high school for
troubled youth. In the mid–1990s, as part of its plan to
locate the high school on a former military installation, Role
Models attempted to acquire Fort Ritchie, a closed U.S.
Army base in Maryland. When its efforts proved unsuccess-
ful, Role Models filed suit in the United States District Court
for the District of Columbia, claiming that the Secretary of
the Army, one of the officials responsible for disposing of
Fort Ritchie, had violated federal regulations by failing to
provide adequate notice of the fort’s availability. In its
complaint, Role Models asked the district court to declare
that the Secretary’s failure to provide adequate notice was
unlawful; to direct the Secretary to comply with regulatory
requirements, thus giving Role Models an opportunity to
compete for the property; and to enjoin any conveyance of
Fort Ritchie until the Secretary did so—or, alternatively, to
require the Secretary to transfer the base to Role Models.
3
The district court denied Role Models’s motion for a pre-
liminary injunction, Role Models Am., Inc. v. White, 193 F.
Supp. 2d 76, 87 (D.D.C. 2002), but we reversed, see 317 F.3d
327 (D.C. Cir. 2003). Concluding that the Secretary had
violated the clear text of the relevant regulations by failing to
provide adequate notice that surplus military property was
available, we remanded the case to the district court ‘‘with
instructions to enter a permanent injunction against convey-
ance of the Fort Ritchie property until the Government
remedies the procedural errors’’ it had committed. Role
Models, 317 F.3d at 333–34.
Having secured the relief it sought, Role Models now
requests, pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 (2000) (EAJA), reimbursement for the attor-
neys’ fees that it incurred in bringing the appeal. The EAJA
provides that:
[A] court shall award to a prevailing party other
than the United States fees and other expenses TTT
incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for
judicial review of agency action, brought by or
against the United States TTT, unless the court finds
that the position of the United States was substan-
tially justified or that special circumstances make an
award unjust.
Id. § 2412(d)(1)(A). The government opposes any award of
fees, contending that notwithstanding our merits opinion,
Role Models is not a ‘‘prevailing party.’’ In any event, the
government argues, its position was ‘‘substantially justified.’’
Even if a fee award is warranted, the government insists, the
amount that Role Models requests is excessive. We address
each argument in turn.
II.
The government contends that Role Models is not entitled
to a fee award at this point because it has yet to obtain Fort
Ritchie. In support, the government relies primarily on
Waterman Steamship Corp. v. Maritime Subsidy Board, 901
4
F.2d 1119 (D.C. Cir. 1990), in which we denied EAJA fees to
plaintiffs who, although they won a remand directing an
agency to correct procedural errors it had made in awarding
a contract, failed to obtain an order enjoining the provision of
services under the contract. ‘‘From a party’s viewpoint,’’ we
explained, ‘‘correct procedures TTT are largely (if not entirely)
instruments to a desired end—a change in someone’s primary
conduct in the real world: relief from a restriction, grant of a
benefit, imposition of a restriction on others, etc.’’ Id. at
1122. We therefore concluded that an ‘‘award of EAJA fees
for corrective efforts that yield no real-world benefit would
reduce the normal deterrent to litigative nit-picking.’’ Id.
Waterman is very different from this case. Role Models
obtained not only a remand to correct procedural errors, but
also an injunction barring the Secretary from transferring
Fort Ritchie until he complied with applicable regulations.
In other words, Role Models obtained exactly what Water-
man found missing: ‘‘a change in someone’s primary conduct
in the real world TTT [such as by the] imposition of a
restriction on others.’’ Id.
This case is much more like Environmental Defense Fund,
Inc. v. Reilly, 1 F.3d 1254 (D.C. Cir. 1993), a post-Waterman
case in which we held that the EDF was a prevailing party
because it had obtained an order vacating a rule that the
EPA promulgated after inadequate notice and comment. We
rejected the EPA’s argument that because the agency reis-
sued the same rule after proper notice and comment, the
EDF did not qualify as a prevailing party. ‘‘In the real world
of the APA,’’ we said, ‘‘an opportunity for comment—which
the EDF did get—is not to be denigrated.’’ Id. at 1257.
That statement applies here as well. Whether or not Role
Models eventually acquires Fort Ritchie, the opportunity to
compete for it, which Role Models successfully achieved
through the injunction—an injunction that was the functional
equivalent of vacating the rule in Reilly—‘‘is not to be
denigrated.’’
Similarly, in Grano v. Barry, 783 F.2d 1104 (D.C. Cir.
1986), we held that a plaintiff had ‘‘prevailed’’ by convincing
5
the district court to enjoin the demolition of an historic
building until a referendum on the demolition had occurred.
Although the building was ultimately demolished, that had no
effect on our view of the prevailing-party issue because the
injunction ‘‘had the distinct external effect of postponing the
razing of the tavern until the election could be held,’’ and
hence ‘‘the victory represented a substantial part of what
plaintiffs asked the court for in the first place.’’ Id. at 1110.
The injunction here had a comparable ‘‘external effect’’—
postponing conveyance of Fort Ritchie until the Secretary
complies with the relevant regulations—that likewise repre-
sents ‘‘a substantial part of what plaintiff[ ] asked the court
for in the first place.’’
Nothing in Thomas v. National Science Foundation, 330
F.3d 486 (D.C. Cir. 2003), requires a different result. There
we held that plaintiffs who had obtained a preliminary injunc-
tion were not prevailing parties because they had ‘‘filed a
lawsuit in order to obtain a refund from NSF, [and] the
preliminary injunction did nothing to vindicate that claim.’’
Id. at 493. In adopting this reasoning, we distinguished
Grano, in which the injunction ‘‘gave the plaintiffs the precise
relief that they had sought.’’ Id. The injunction here simi-
larly gave Role Models the precise relief it sought.
III.
Role Models’s status as a prevailing party means that we
must determine whether the government’s position was ‘‘sub-
stantially justified.’’ In Pierce v. Underwood, 487 U.S. 552
(1988), the Supreme Court held that a position is substantially
justified ‘‘if a reasonable person could think it correct, that is,
if it has a reasonable basis in law and fact.’’ Id. at 566 n.2.
Pierce added that just because the government loses on the
merits does not mean that its position lacked substantial
justification. Id. at 569.
Arguing that its position was substantially justified, the
government focuses largely on its litigation position, relying
heavily on the fact that it prevailed in the district court. The
government, however, must demonstrate the reasonableness
6
not only of its litigation position, but also of the agency’s
actions, e.g., Halverson v. Slater, 206 F.3d 1205, 1208 (D.C.
Cir. 2000); see also 28 U.S.C. § 2412(d)(2)(D) (providing that
‘‘ ‘position of the United States’ means, in addition to the
position taken by the United States in the civil action, the
action or failure to act by the agency upon which the civil
action is based’’), and here we are convinced that the Secre-
tary’s actions were not substantially justified. As explained
at greater length in our prior opinion, the applicable regula-
tions provide that the relevant agency—here, the Secretary of
the Army—‘‘shall [p]ublish TTT the time period during which
[it] will receive notices of interest from TTT representatives of
the homeless[ ] and other interested parties.’’ 24 C.F.R.
§ 586.20(c)(1) (2003) (emphasis added); 32 C.F.R.
§ 176.20(c)(1) (2003) (emphasis added). The mandatory
phrasing of these identically worded regulations leaves the
Secretary no discretion, while the use of the conjunction
‘‘and’’ indicates in no uncertain terms that the Secretary must
make clear that he will receive notices not only from repre-
sentatives of the homeless, but also from other interested
parties. Despite the clarity of these regulations, the Secre-
tary chose to publish a notice entitled ‘‘Homeless Assistance
Outreach Initiative,’’ and to say in the notice’s opening state-
ment that he would ‘‘receive Notices of Interest from repre-
sentatives of agencies that seek to serve the needs of our
community’s homeless population.’’ The remainder of the
notice only bolstered the impression that it was directed
exclusively at advocates for the homeless, leaving nothing to
indicate to Role Models—an organization with an entirely
different mission—that the Secretary was soliciting notices
from ‘‘other interested parties’’ as well. Thus, as in F.J.
Vollmer Co. v. Magaw, 102 F.3d 591 (D.C. Cir. 1996), the
agency’s position lacked substantial justification because it
was ‘‘wholly unsupported by the text’’ of the applicable regu-
lations. Id. at 593.
The government cites our decision in Trahan v. Brady, 907
F.2d 1215 (D.C. Cir. 1990), to support its argument that an
agency’s actions may be substantially justified even though a
court later concludes that the agency violated its regulations.
We conclude here, however, not that the Secretary’s violation
7
of the regulations in and of itself demonstrates the absence of
substantial justification, but rather that the regulations were
so clear and the Secretary’s failure to comply with them so
obvious that his actions could not ‘‘appear correct to a reason-
able person.’’ Id. at 1220. Bearing in mind that the hall-
mark of the substantial justification test is reasonableness, we
note, as we did in Vollmer, that ‘‘[a]lthough the merits panel
did not use the word ‘unreasonable,’ TTT it highlighted the
fundamental unreasonableness of the [agency’s] position.’’
102 F.3d at 596. In our merits opinion in this case, we stated
that ‘‘[w]e cannot imagine how Role Models, an organization
devoted to establishing schools for at-risk minors, could possi-
bly have interpreted [this] notice TTT as an invitation to apply
for the Fort Ritchie property.’’ 317 F.3d at 332. Nor could
we—or can we now—imagine how the Secretary could have
viewed this notice as satisfying his obligations under the
regulations. That he could not reasonably have done so only
underscores the fact that his position lacked substantial justi-
fication. Our conclusion, then, ‘‘rests primarily on our view,
informed by an analysis of the merits panel’s opinion, that the
case was easy and the [Secretary’s] arguments worthy of
little credence, as well as on the [Secretary’s] failure to offer
any convincing reasons for believing that [his] interpretation
of [the regulations] was substantially justified.’’ Halverson,
206 F.3d at 1212.
IV.
This brings us to the amount of fees to be awarded. The
EAJA authorizes courts to award ‘‘reasonable attorney fees.’’
28 U.S.C. § 2412(d)(2)(A). Role Models seeks compensation
for the work of two partners, one counsel, one associate, six
legal assistants, one law clerk, two research librarians, and a
legislative specialist. Their hourly rates range from $495 for
the lead partner to $285 for the associate to $165 for the law
clerk. According to Role Models, these fourteen individuals
logged a total of 1058 hours in connection with the appeal and
with the preparation of its fee petition. Multiplying the
appropriate rates and the number of hours, Role Models
requests $342,741.25 in legal fees. It also seeks $12,773.44
8
for expenses, as well as leave to ‘‘supplement its Application
to reflect the additional fees and expenses incurred while
litigating its EAJA application.’’ Appellant’s Reply to Appel-
lees’ Opp’n to Appellant’s Application for Att’ys’ Fees and
Costs at 1 n.2. Insisting that Role Models’s request is
‘‘clearly unreasonable,’’ the government urges us to reduce it
‘‘drastically.’’ Appellees’ Opp’n to Appellant’s Application for
Att’ys’ Fees and Costs at 12.
To resolve this dispute, we consider first the hourly rate
and then the number of hours requested. See Murray v.
Weinberger, 741 F.2d 1423, 1427 (D.C. Cir. 1984) (‘‘The
starting point in fee-setting under the statute TTT is the
number of hours reasonably expended multiplied by a reason-
able hourly rate.’’). Throughout our analysis we will rely on
EAJA precedent as well as on case law arising under other
fee-shifting statutes. See, e.g., Indep. Fed’n of Flight Attend-
ants v. Zipes, 491 U.S. 754, 759 n.2 (1989) (noting that ‘‘fee-
shifting statutes’ similar language is a strong indication that
they are to be interpreted alike’’ (internal quotation marks
omitted)).
Hourly Rates
The EAJA provides that ‘‘attorney fees shall not be award-
ed in excess of $125 per hour unless the court determines that
an increase in the cost of living or 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).
Role Models seeks compensation at rates above the $125 cap,
claiming that higher rates are warranted because of both the
presence of special factors and increases in the cost of living.
Role Models contends that a special-factor enhancement is
justified by ‘‘the quality of representation’’ that its attorneys
provided. See Appellant’s Application for Att’ys’ Fees Under
the Equal Access to Justice Act at 11. Specifically, it points
to ‘‘the effort, expertise, actual time expended by Sidley in
this case and the exceptional result obtained.’’ Id. Role
Models also says the case involved a ‘‘complex statutory and
regulatory scheme,’’ id. at 10, and that its attorneys had to
9
prepare the appeal in a relatively short period of time be-
cause they did not take on the case until after the district
court denied a preliminary injunction. Finally, Role Models
points out that its attorneys’ regular billing rates, which Role
Models contends are consistent with those of other large
Washington law firms, far exceed the statutory cap. The
government argues that none of these factors justifies a
special-factor enhancement.
Setting aside that there seems to be nothing particularly
‘‘complex’’ about this appeal—indeed, it appears just the type
of garden-variety administrative law matter that large Wash-
ington law firms handle routinely—the Supreme Court in
Pierce explicitly rejected virtually all of the arguments for a
special-factor enhancement that Role Models raises in this
case. Pierce explained that in order to ‘‘preserve the intend-
ed effectiveness of the [statutory] cap, TTT the other ‘special
factors’ envisioned by the exception must be such as are not
of broad and general application.’’ 487 U.S. at 573. After
giving examples of acceptable special factors, including knowl-
edge of a foreign language or expertise in ‘‘an identifiable
practice specialty such as patent law,’’ id. at 572, the Court
listed several factors that it deemed insufficient to merit an
increase in the statutory cap. The Court stated that ‘‘[t]he
‘novelty and difficulty of issues,’ ‘the undesirability of the
case,’ the ‘work and ability of counsel,’ and ‘the results
obtained,’ are factors applicable to a broad spectrum of
litigation; they are little more than routine reasons why
market rates are what they are.’’ Id. at 573 (citations
omitted); see also id. at 572 (‘‘We do not think Congress
meant that if the rates for all lawyers in the relevant city TTT
come to exceed $75 per hour (adjusted for inflation) then that
market-minimum rate will govern instead of the statutory
cap.’’).
Only one of Role Models’s justifications for a special-factor
enhancement is not among those that Pierce expressly reject-
ed: that its attorneys had to prepare the appeal in a relative-
ly short period of time. But we think that Pierce’s logic
renders this consideration insufficient to support a statutory
cap increase. Pierce made clear that an increase in the cap is
10
justified only by work requiring specialized skills or knowl-
edge beyond what lawyers use on a regular basis. Producing
high-quality work on a short deadline hardly satisfies this
standard. While we recognize that Role Models’s attorneys
did a fine job in securing a favorable result, our experience
with the work of many large firms convinces us that Role
Models’s lawyers were far from the only ones who could have
achieved that result under the same time pressure.
We agree, however, that a cost-of-living increase is war-
ranted. As Role Models points out, the cost of living in the
Washington, D.C. area, as measured by the Consumer Price
Index, has risen approximately 14.6% since Congress imposed
the $125-per-hour cap. Role Models argues that the cap
should be increased by the same percentage, to $143.25 per
hour. The government does not challenge this assertion.
We have granted such adjustments in other cases, see, e.g.,
Cooper v. United States R.R. Ret. Bd., 24 F.3d 1414, 1417
(D.C. Cir. 1994) (per curiam); Jones v. Lujan, 887 F.2d 1096,
1101 (D.C. Cir. 1989) (per curiam), and have found no case
where we denied one. This is not surprising, as ‘‘courts
routinely approve cost-of-living adjustments.’’ Gregory C.
Sisk, The Essentials of the Equal Access to Justice Act (Part
Two), 56 LA. L. REV. 1, 128 (1995). Accordingly, we will
increase the cap to $143.25 per hour.
Most of the hourly rates for the non-lawyers, including the
legal assistants and the law clerk, fall below this adjusted
statutory cap. Role Models has the burden of justifying the
rates at which these individuals billed for their time, see, e.g.,
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (‘‘[C]ourts
properly have required prevailing attorneys to justify the
reasonableness of the requested rate or rates.’’), but it has
submitted no information about the prevailing market rate for
law clerks and legal assistants in the Washington area, nor
has it referred to either of the two matrices that we have
previously said litigants may rely upon when seeking fees, see
Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.
Cir. 1995) (‘‘[P]laintiffs may point to such evidence as an
updated version of the Laffey matrix [Laffey v. N.W. Air-
lines, Inc., 572 F. Supp. 354 (D.D.C. 1983)] or the U.S.
11
Attorney’s Office matrix, or their own survey of prevailing
market rates in the community.’’). Role Models has not even
taken the basic step of submitting an affidavit detailing the
non-attorneys’ experience and education. See In re North
(Bush Fee Application), 59 F.3d 184, 189 (D.C. Cir. 1995) (per
curiam) (finding an affidavit insufficient to meet the petition-
er’s burden of establishing the reasonableness of its attor-
neys’ hourly rates because the affiant failed to ‘‘swear to any
knowledge of the qualifications of the particular professionals
involved’’); Covington, 57 F.3d at 1110 (finding the petition-
ers’ burden to justify its rates met where the petitioners
‘‘submitted data demonstrating their attorneys’ experience in
the legal profession and in litigating complex federal court
cases, as well as information probative of their attorneys’ skill
and reputation’’). Because Role Models has justified neither
the law clerk’s nor the legal assistants’ requested rates—and
thus has failed to carry its burden—we will reduce those
rates by twenty-five percent. See United States ex rel.
Averback v. Pastor Medical Assocs., 224 F. Supp. 2d 342, 356
(D. Mass. 2002) (reducing two attorneys’ requested hourly
rates because of ‘‘the complete and utter lack of evidentiary
support underlying their claimed hourly rate’’). Although
Role Models has likewise submitted nothing to justify its
attorneys’ rates, since the adjusted statutory cap reduces
those rates by well over twenty-five percent we will make no
further reductions.
Number of Hours
Role Models, as mentioned, seeks reimbursement for 1058
hours of work. The government insists that 1058 hours is
unreasonable, arguing that several of Role Models’s attorneys
appear to have repeated each other’s work and adding that
‘‘[t]his case involved no discovery, did not require any travel,
did not require interview of witnesses, or involve multiple
pleadings.’’ Appellees’ Opp’n at 12. Defending its request,
Role Models argues (essentially reiterating its justifications
for a special-factor increase in the statutory cap) that the
substantial number of hours is reasonable ‘‘[g]iven the time
parameters and the complexity of the pertinent statutes and
12
regulations.’’ Appellant’s Reply at 7–8. It also states that
‘‘the research and writing performed for the appeal was
divided by factual and/or legal areas among the attorneys,’’
and that ‘‘at no time were there parallel, full-time work
efforts.’’ Id. at 8 (internal quotation marks omitted).
Role Models has the burden of establishing the reasonable-
ness of its fee request, see, e.g., North, 59 F.3d at 189, and
‘‘[s]upporting documentation ‘must be of sufficient detail and
probative value to enable the court to determine with a high
degree of certainty that such hours were actually and reason-
ably expended,’ ’’ In re Olson, 884 F.2d 1415, 1428 (D.C. Cir.
1989) (per curiam) (emphases omitted) (quoting United Slate,
Tile & Composition Roofers v. G & M Roofing & Sheet Metal
Co., 732 F.2d 495, 502 n.2 (6th Cir. 1984)). We agree with the
government that the time records Role Models has offered
permit no such certainty.
To begin with, many time records lump together multiple
tasks, making it impossible to evaluate their reasonableness.
See id. at 1428–29 (‘‘[W]hen 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 determine with a
high degree of certainty, as it must, that the billings are
reasonable.’’ (footnote and internal quotation marks omitted)).
For example, one entry indicates that on September 17 Role
Models’s lead lawyer spent 10.25 hours performing the follow-
ing six tasks: ‘‘Telecon[ference] with R. Alexander; confer-
ence with J. Port, K. Dodd, C. Bonat regarding research;
review research; draft brief; review bankruptcy materials;
revise brief.’’ Another entry indicates that on October 3 the
associate spent 1.25 hours on the following four tasks: ‘‘Re-
vise Lis Pendens filing; call bankruptcy attorney (G. John-
son) and leave message; call circuit court regarding proce-
dure for Lis Pendens filing; finalize draft of Lis Pendens
filing.’’ Not only do similarly lumped entries appear through-
out the time records, but the two we have mentioned include
time spent on bankruptcy matters, which have nothing to do
with this appeal. Although Role Models says it has deducted
13
all time spent on bankruptcy matters, the lumping prevents
us from verifying that it deducted the proper amount of time.
Many time records also lack adequate detail. See In re
Sealed Case, 890 F.2d 451, 455 (D.C. Cir. 1989) (per curiam)
(‘‘[W]e note numerous instances of documentation and specifi-
cation that do not adequately describe the legal work for
which the client is being billed. This makes it impossible for
the court to verify the reasonableness of the billings, either as
to the necessity of the particular service or the amount of
time expended on a given legal task.’’). The law clerk’s time
records, for instance, give an identical one-line entry, ‘‘[r]e-
search and writing for appellate brief,’’ on eight consecutive
weekdays: the clerk billed 8.25, 6.25, 7.25, 8.25, 7.25, 4, 8, and
4.25 hours on those days. Such generic entries are inade-
quate to meet a fee applicant’s ‘‘heavy obligation to present
well-documented claims.’’ Kennecott Corp. v. EPA, 804 F.2d
763, 767 (D.C. Cir. 1986) (per curiam). Similarly inadequate
are the numerous entries in which attorneys billed simply for
‘‘research’’ and ‘‘writing,’’ or for time spent in teleconferences
or meetings—over one hundred in total—the purposes of
which are not provided. See In re Meese, 907 F.2d 1192, 1204
(D.C. Cir. 1990) (per curiam) (reducing an 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 confer-
ence or the work performed during hours billed’’); Olson, 884
F.2d at 1428 (‘‘[T]here are multitudinous billing entries, in-
cluded among other entries for a particular day, that wholly
fail to state, or to make any reference to the subject discussed
at a conference, meeting or telephone conference.’’).
Attorneys also billed for time spent dealing with individuals
whose roles in the case are never explained. For example, on
March 27 one attorney charged over $2000 for time spent
performing the following tasks: ‘‘Emails with K. Esters of
CNS; telecons with R. Alexander; draft letter to Bresee;
review public benefit conveyance regs.’’ Who are Bresee and
K. Esters? What is their connection to this case? What is
CNS? Without answers to these questions, such time en-
tries—of which there are many examples throughout the time
14
records—are manifestly inadequate. See In re Donovan, 877
F.2d 982, 995 (D.C. Cir. 1989) (per curiam) (‘‘[W]e are also
compelled to deduct TTT charges incurred when attorneys
held conferences and teleconferences with persons referenced
as ‘Geiser’ and ‘Wells.’ The application fails to document who
these individuals are or the nature of their relationship to the
investigation; consequently, we cannot evaluate whether such
fees were reasonably incurred.’’).
The shortcomings in the time records are particularly
serious because we have no idea what it was about this case
that required an investment of over 1000 hours—nearly six
months’ worth of forty-hour weeks. Involving no discovery
and presenting neither complex nor contested facts, the case
presented a straightforward challenge to an agency’s failure
to comply with its own regulations. Although Role Models
rightly observes that its attorneys had to spend time familiar-
izing themselves with the case, we fail to see how this justifies
such a significant number of hours. We appreciate that the
attorneys made ‘‘substantial efforts TTT to produce the most
polished brief possible, and to be meticulously prepared to
respond to the Court’s questions at oral argument.’’ Appel-
lant’s Application at 10–11. But as we have said, ‘‘there is a
point at which thorough and diligent litigation efforts become
overkill.’’ Okla. Aerotronics, Inc. v. United States, 943 F.2d
1344, 1347 (D.C. Cir. 1991).
‘‘Duplication of effort is another basis on which [the] hours
seem excessive.’’ Davis County Solid Waste Mgmt. & Ener-
gy Recovery Special Serv. Dist. v. United States EPA, 169
F.3d 755, 761 (D.C. Cir. 1999) (per curiam). For example, on
three separate occasions two individuals, one an associate
charging over $200 an hour, billed time for filing the same
brief. Similar unexplained duplication of work appears
throughout the time records. More generally, Role Models
has failed to explain why this relatively straightforward case
required the efforts of three senior attorneys, each billing at
least $400 per hour. Perhaps something about this case
required so many lawyers expending so many hours. But
because the time records contain so little information, we
have no basis for concluding that hours that appear to be
15
excessive and redundant are in fact anything other than
excessive and redundant. See In re Espy (Townsend Fee
Application), 346 F.3d 199, 204 (D.C. Cir. 2003) (‘‘[I]nade-
quate documentation makes it impossible for the court to
verify the reasonableness of the billings, either as to the
necessity of the particular service or the amount of time
expended on a given legal task.’’ (internal quotation marks
omitted)); see also Murray, 741 F.2d at 1427 (‘‘[H]ours that
are ‘excessive, redundant, or otherwise unnecessary’ must be
excludedTTTT’’ (quoting Hensley v. Eckerhart, 461 U.S. 424,
434 (1983))).
The time records suffer from two additional defects. First,
on a number of occasions one attorney’s records indicate that
he or she spent time meeting with another attorney, while the
second attorney’s records report no such meeting. For ex-
ample, the associate reported that on February 13 she spent
4.5 hours on the following tasks: ‘‘Call Clerk’s Office for D.C.
Circuit regarding Bill of Costs’ filing procedure; discuss with
P.D. Richardson; read EAJA research.’’ Yet Mr. Richardson
billed no time discussing the case with the associate on that
day. In fact, Mr. Richardson charged no time at all on
February 13. Similarly, on July 16 Mr. Richardson billed for
time spent on a ‘‘[t]eleconference with J.C. Port,’’ but Mr.
Port’s time records, though including an entry for discussions
with the law clerk, contain no reference to a teleconference
with Mr. Richardson. Such unexplained inconsistencies ap-
pear throughout the time records.
Second, several time records include tasks that do not
warrant reimbursement. For example, Role Models’s lead
attorney billed for time spent on a ‘‘telecon with Herald Mail
reporter.’’ In this circuit, the government cannot be charged
for time spent in discussions with the press. See Am. Petro-
leum Inst. v. United States EPA, 72 F.3d 907, 913 (D.C. Cir.
1996) (citing Meese, 907 F.2d at 1203); Donovan, 877 F.2d at
993–94. Role Models’s lead attorney also spent time after
oral argument ‘‘review[ing] summary of argument,’’ ‘‘re-
view[ing] cases,’’ and ‘‘[r]evis[ing] summary of argument,’’ but
Role Models has not explained how these tasks helped it
prevail in its appeal. Furthermore, two lumped entries re-
16
port unspecified amounts of time spent drafting and revising
the firm’s engagement letter with Role Models. The govern-
ment should not have to pay for administrative matters
relating to the formal relationship between Role Models and
its attorneys. Also, a legal assistant logged two hours to
‘‘[v]isit Court of Appeals for the D.C. Circuit to obtain copy of
Government’s brief.’’ Given that the government served its
brief directly on Role Models’s attorneys, it should not have
to pay for this time. Nor should it have to reimburse Role
Models for two hours that a partner spent ‘‘[c]ompleting
application for admission to D.C. Circuit Bar’’ and fifteen
minutes that the associate spent ‘‘[r]esearch[ing] admission to
D.C. Circuit Bar [and] prepar[ing] application materials’’ for
the partner. Not only do we assume that a Washington law
firm offering itself as a specialist in federal court litigation
would treat the cost of joining the bar of this court as an
expense of doing business not chargeable to clients—much
less to the federal government—but this partner did not even
participate in the oral argument. Cf. Miller v. Alamo, 983
F.2d 856, 862 (8th Cir. 1993) (‘‘The government challenges the
Millers’ request for reimbursement of the $30 fee for having
the Millers’ attorney admitted to the Eighth Circuit Bar. We
agree that [the relevant fee-shifting statute] should not be
used to require the government to fund the enhancement of
an attorney’s versatility or capability.’’). Finally, as already
mentioned, two individuals—an associate and a legal assis-
tant—spent time filing each of Role Models’s briefs. We do
not understand why attorney or even legal assistant skills
were required for this job. ‘‘[P]urely clerical or secretarial
tasks should not be billed at a paralegal rate regardless of
who performs them.’’ Missouri v. Jenkins, 491 U.S. 274, 288
n.10 (1989); see also Meese, 907 F.2d at 1203 (‘‘The court TTT
deducts those charges by both paralegals and law clerks for
such tasks as ‘delivering’ or ‘picking up’ various docu-
mentsTTTT In our view, such tasks are ‘purely clerical or
secretarial’ and thus cannot be billed at paralegal or law clerk
rates.’’).
In view of all this—inadequate documentation, failure to
justify the number of hours sought, inconsistencies, and im-
17
proper billing entries—we will allow reimbursement for only
fifty percent of the attorney hours that Role Models requests.
See Hensley, 461 U.S. at 433 (‘‘Where the documentation of
hours is inadequate, the district court may reduce the award
accordingly.’’). A fixed reduction is appropriate given the
large number of entries that suffer from one or more of the
deficiencies we have described. See, e.g., Copeland v. Mar-
shall, 641 F.2d 880, 903 (D.C. Cir. 1980) (en banc) (‘‘[T]he
District Court Judge in this case—recognizing, as he did, that
some duplication or waste of effort had occurred—did not err
in simply reducing the proposed TTT fee by a reasonable
amount without performing an item-by-item accounting.’’);
see also Okla. Aerotronics, 943 F.2d at 1347 (affirming the
district court’s flat forty percent reduction in allowable
hours). For the four attorneys we will therefore award fees
for 410.25 hours, half the 820.5 requested. At the adjusted
statutory rate of $143.25 per hour, this comes to $58,768.31.
Because the law clerk’s time records suffer from the same
inadequacies that characterize the attorneys’ time records, we
will award fees for only half of his hours as well. Reducing
the law clerk’s hourly rates by twenty-five percent because of
Role Models’s failure to justify those rates, see supra page 11,
we will award $8,881.41 for the clerk’s time.
The government opposes any recovery for the legal assis-
tants, arguing that a party may not recover fees for work
done by non-attorneys. But we have previously affirmed a
fee award that ‘‘includ[ed] paralegal time.’’ Okla. Aerotron-
ics, 943 F.2d at 1352; see also Olson, 884 F.2d at 1426 (‘‘This
Circuit ‘holds that paralegals and law clerks are to be com-
pensated at their market rates.’ ’’ (quoting Donovan, 877 F.2d
at 993 n.20)). It is true, as the government points out, that in
a subsequent decision we denied recovery for paralegal work
and in doing so cited a Fifth Circuit decision deeming such
time to be an ‘‘unrecoverable overhead expense.’’ See Demo-
cratic Cent. Comm. v. Wash. Metro. Area Transit Comm’n,
12 F.3d 269, 272 (D.C. Cir. 1994) (per curiam) (citing Allen v.
United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982)).
In that case, however, we denied reimbursement for paralegal
fees because the purpose of the paralegal’s work was ‘‘not
18
sufficiently specified.’’ Id. Here, by contrast, the legal assis-
tants’ time records, unlike the attorneys’ and the law clerk’s,
provide adequate detail and show that these employees per-
formed suitable tasks. We will therefore award reimburse-
ment for the full number of hours requested for the legal
assistants’ time, with the exception of the two hours that a
legal assistant spent visiting this court to pick up a brief and
the time that a legal assistant spent on three separate
occasions filing a brief. See supra page 16. As to the latter,
the entries for two of the three occasions are lumped, leaving
us unable to determine exactly how much time the legal
assistant actually spent filing the brief. Because the single
‘‘unlumped’’ entry shows that the legal assistant spent 0.75
hours, we will use that figure for all three. Reducing the
legal assistants’ hourly rates by twenty-five percent because
of Role Models’s failure to justify those rates, see supra page
11, we will award $4,147.51 for the work of the six legal
assistants.
The government argues that the EAJA does not permit the
government to be charged for the work of the research
librarians and the legislative specialist. We need not consid-
er that issue, however, for we think Role Models has failed to
overcome the assumption that ‘‘work done by librarians,
clerical personnel and other support staff TTT [is] generally
considered within the overhead component of a lawyer’s fee.’’
Olson, 884 F.2d at 1426–27. Role Models has not, for exam-
ple, shown that law firms in Washington customarily bill
clients for such services, or even that its own attorneys
customarily bill for them.
Expenses
Role Models seeks $12,773.44 for expenses, having properly
excluded several categories—such as messenger services and
ground transportation—that we have deemed non-
reimbursable. See Mass. Fair Share v. Law Enforcement
Assistance Admin., 776 F.2d 1066, 1069 (D.C. Cir. 1985) (per
curiam). Role Models should also have excluded ‘‘overtime
services,’’ see, e.g., Michigan v. United States EPA, 254 F.3d
19
1087, 1096 (D.C. Cir. 2001), and we will deny recovery for
those services. We will also deny recovery for search service
expenses, document delivery services, and publications be-
cause Role Models has failed to explain what these categories
comprise.
Although the rest of the expense categories are properly
chargeable to the government, Role Models appears to ask
for more than it incurred. For example, although its attor-
neys billed Role Models $9,448.89 for their use of Westlaw,
Role Models requests $10,027.08. Similar discrepancies occur
with Lexis expenses ($311.82 billed to Role Models versus
$323.17 requested), copying charges ($1,678.06 billed to Role
Models and not already reimbursed versus $1,716.34 request-
ed), and search services expenses ($433.47 billed versus
$578.07 requested). With each discrepancy we will award the
lower, billed, amount (except for search services, which we
have said we will deny entirely). The government urges us to
deny any recovery for computer-research charges, but we
decline to do so because such services presumably save
money by making legal research more efficient. See Hir-
schey v. FERC, 777 F.2d 1, 6 (D.C. Cir. 1985) (finding that ‘‘a
charge TTT for computer research is appropriate’’).
We will therefore award a total of $11,438.77 in expenses:
$1,678.06 for copying plus $311.82 for Lexis plus $9,448.89 for
Westlaw.
V.
In highlighting the shortcomings of the time records sub-
mitted in this case and in reducing Role Models’s fee request,
we emphasize that we make no judgment either about the
propriety of Role Models’s decision to pay its attorneys for
the services for which it now seeks reimbursement or about
the attorneys’ billing Role Models for those services. To
begin with, the EAJA and relevant case law limit, or in some
instances entirely prohibit, recovery for certain services that
law firms routinely and properly bill clients. More important
for purposes of our analysis here, law firms may well have
understandings with clients and a level of trust that permit
20
billing on the basis of time records like those at issue here.
In awarding fees under the EAJA, however, we have a special
responsibility to ensure that taxpayers are required to reim-
burse prevailing parties for only those fees and expenses
actually needed to achieve the favorable result. In fulfilling
that responsibility, ‘‘we are not prepared to hold that the
willingness of a private client to pay a bill necessarily demon-
strates that the charge was reasonable under the statutory
definition and can therefore be automatically assessed against
the government.’’ Kennecott Corp., 804 F.2d at 767. That
said, ‘‘we do not intend to tar [petitioner’s law firm] TTT with
any brush of over-billing or over-staffing as related to their
relationship with this or any other client. We simply con-
clude that the petitioner has not sufficiently justified the
degree of staffing TTT to bring it within the zone of reason-
ableness contemplated by CongressTTTT’’ North, 59 F.3d at
193.
In sum, we will award Role Models $83,236: $58,768.31 in
attorneys’ fees plus $8,881.41 for the law clerk plus $4,147.51
for the legal assistants plus $11,438.77 for expenses. Role
Models’s request for leave to supplement its application is
denied.
So ordered.