United States Court of Appeals
For the First Circuit
No. 99-1767
ATLANTIC FISH SPOTTERS ASSOCIATION, JONATHAN E. MAYHEW,
RAYNOLD F. BROOKS, II, ROBERT H. SAMPSON,
Plaintiffs, Appellees,
v.
WILLIAM M. DALEY, as he is the United States
Secretary of Commerce,
Appellant,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges,
David C. Shilton, Department of Justice, with whom Lois J.
Schiffer, Assistant Attorney General, Environment & Natural
Resources Division, John A. Capin, Assistant United States
Attorney, Mark A. Brown, Greer S. Goldman, Department of
Justice, and Mariam McCall, National Oceanic and Atmospheric
Administration, Office of General Counsel, were on brief for
appellant.
Andrew D. Herman with whom David E. Frulla, Brand & Frulla,
P.C., H. Reed Witherby and Smith & Duggan were on brief for
appellees.
March 6, 2000
BOUDIN, Circuit Judge. In the district court, the
plaintiffs prevailed in overturning an administrative regulation
and then sought attorney's fees from the United States under the
Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA"). The
district court awarded such fees to the plaintiffs' counsel,
finding (in the statutory language) that the government's
position was not "substantially justified." On this appeal by
the United States, the only issue is whether the district court
was entitled in computing the fees to exceed the presumptive
statutory cap for attorneys fees of $125 per hour, id. §
2412(d)(2)(A).
The story begins with the adoption in July 1997 of a
new regulation by the Secretary of Commerce. Under the aegis of
the Atlantic Tunas Convention Act of 1975, 16 U.S.C. § 971d(a),
the Secretary (acting through the National Marine Fisheries
Service) prohibited the use of spotter planes by or for persons
holding "general" Atlantic bluefin tuna catch permits. 62 Fed.
Reg. 38,485 (1997) (codified before repeal at 50 C.F.R. §
285.31(a)(40)). Such planes have been used for some time by
some fishing vessels to spot tuna and guide boats to them.
-2-
Curiously, the regulation did not preclude the use of the planes
by permit holders in the "harpoon" or "purse seine net"
category. Id.
Suit was brought in the district court to challenge the
regulation. The plaintiffs included a group of owners and
pilots of spotter planes, their trade association, and the
owners of vessels who have employed spotter planes. The
district court reviewed the regulation based on the
administrative record and found that the Secretary's various
rationales for the regulation were unsupported and that the
regulation drew distinctions inconsistent with the Secretary's
rationales. Atlantic Fish Spotters Ass'n v. Daley, 8 F. Supp.
2d 113 (D. Mass. 1998).
The flavor of the arguments and the district court's
treatment of them is easily conveyed. In addition to permits,
the tuna catch is regulated through various quotas, and the
Secretary claimed that the use of spotter planes impeded
monitoring of tuna stocks by speeding up catches. By contrast,
the court found that there was no apparent correlation between
the use of spotter planes and the rate at which the quotas were
achieved. In any event, the court could not understand why,
even if spotter planes did speed up catches, their use was
forbidden only for general category permit holders.
-3-
The Secretary also argued that pilots cannot
successfully gauge the size of fish from the air so their
efforts increased the improper harvesting of undersized tuna;
the district court found that the evidence did not support this
position but probably pointed in the other direction. The court
also found unpersuasive the Secretary's claim that the spotter
planes posed safety dangers, pointing out that this view would
justify banning such planes for all categories of permit holders
and not just one category. The court also noted that much of
the record consisted of complaints by fishermen that plane
spotting was "unfair."
At least some of these objections may have answers but
the government chose not to appeal the district court's
judgment. Instead, choosing to fight another day, it rescinded
the old regulation, see Atlantic Tuna Fisheries; Atlantic
Bluefin Tuna, 63 Fed. Reg. 36,611 (1998), and it has proposed a
new and broader prohibition on spotter planes, see Atlantic
Highly Migratory Species Fisheries; Atlantic Bluefin Tuna
Fishery; Regulatory Adjustment, 64 Fed. Reg. 29,984 (1999),
which is not now before us. The remainder of the district court
case, therefore, was devoted to plaintiffs' claim that the
government's position was not "substantially justified" and that
the statute therefore entitled them to attorney's fees. The
-4-
application was supported by the declaration of lead counsel,
David Frulla of Washington, D.C., who claimed $175 per hour for
his time and that of local counsel and $150 for the time of his
less experienced associate.
After further proceedings, the district court entered
an order in May 1999 granting to plaintiffs attorney's fees of
$55,255 plus a modest amount of other costs. The statute
provides that "attorney fees shall not be awarded in excess of
$125 per hour unless the court determines that . . . a special
factor, such as the limited availability of qualified attorneys
for the proceedings involved, justifies a higher fee."1
Pertinently, the district court found that because of Frulla's
expertise, his time was properly billed at $175 per hour,
although it reduced the hourly rate for the other two attorneys
to $125.
The government now appeals. It has abandoned its
earlier argument that its district court position in defense of
the Secretary's regulation was substantially justified. Nor
does it contest the hours claimed by any of the attorneys or the
$125 per hour awarded to local counsel or Frulla's associate.
1
28 U.S.C. § 2412(d)(2)(A). Until 1996 the presumptive cap
was $75 per hour, but it was raised in that year to its present
level. See Contract with America Advancement Act of 1996, Pub.
L. No. 104-121, § 232(b), 110 Stat. 847, 863.
-5-
Rather, it argues only--but on multiple grounds--that the
district court erred in exceeding the $125 per hour cap as to
Frulla's fee. Although the amount of the differential (about
$12,000) is not huge, the government has a continuing interest
in how the cap conditions are interpreted and applied.
On appellate review, the distinction between
"interpreting" and "applying" is of some importance. A legal
ruling, whether explicit or otherwise, as to the meaning of the
statute is almost always an issue of law reviewed de novo;
judgment calls as to how a general standard applies to a set of
facts are here, as is usually but not always the case, reviewed
with some deference; and findings of fact are also reviewed with
deference, the usual rubric (if they are judge-made findings)
being "clear error." See Massachusetts Food Ass'n v.
Massachusetts Alcoholic Beverages Control Comm'n, 197 F.3d 560,
567 (1st Cir. 1999); Public Serv. Co. v. Patch, 167 F.3d 15, 22
(1st Cir. 1998).2
2Many courts, including the Supreme Court, sum up the
standard in such attorney's fee cases by referring to abuse of
discretion. Pierce v. Underwood, 487 U.S. 552, 571 (1988). But
since they then treat errors of law as an example of such an
abuse, see id. at 571-74; Chynoweth v. Sullivan, 920 F.2d 648,
650 (10th Cir. 1990), it seems more informative to recognize
that the effective standard of review depends upon the precise
claim of error being asserted and not the nature of the case.
-6-
The government's first objection is that, in the nature
of things, "Frulla's 'fisheries law' experience is not the sort
of practice specialty that can qualify for an enhanced fee"
under the statute. This objection might at first seem only
crudely related to the statutory criterion--"a special factor,
such as the limited availability of qualified attorneys for the
proceedings involved"--but the connection is provided by Pierce
v. Underwood, 487 U.S. 552 (1988). In that case, the Supreme
Court provided a gloss for the just-quoted statutory language,
saying:
the exception for 'limited availability of
qualified attorneys for the proceedings
involved' must refer to attorneys 'qualified
for the proceedings' in some specialized
sense, rather than just in their general
legal competence. We think it refers to
attorneys having some distinctive knowledge
or specialized skill needful for the
litigation in question--as opposed to an
extraordinary level of the general lawyerly
knowledge and ability useful in all
litigation. Examples of the former would be
an identifiable practice specialty such as
patent law, or knowledge of foreign law or
language. Where such qualifications are
necessary and can be obtained only at rates
in excess of the $75 cap, reimbursement
above that limit is allowed.
Pierce, 487 U.S. at 572.
Building on the three examples given by the Supreme
Court (patent law or foreign law or language), the government
argues in effect that the limited availability test can only be
-7-
met if the lawyer has an expertise that requires some special
discipline over and above the expertise that any experienced
counsel might develop in his own specialty. Of course, patent
law is itself a specialty, but it has its own required
credentials for practice at the Patent and Trademark Office and
in many (but not all) cases may involve some scientific
knowledge as well. See Perales v. Casillas, 950 F.2d 1066, 1078
n.15 (5th Cir. 1992). Anyway, the government seems to think
that most highly complicated bodies of technical law could never
qualify.
The government cites some circuit authority that could
be read in its favor,3 while readily conceding that the Ninth
Circuit has taken a more liberal view of the statute.4 However,
we do not read the Supreme Court or most of the circuit cases as
adopting a mechanical rule that automatically excludes a
specialist from extra compensation merely because no separate
credential exists for his field and because no foreign law or
3
See F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C. Cir.
1996); Perales v. Casillas, 950 F.2d 1066, 1078 & n.15 (5th Cir.
1992); see also Estate of Cervin v. Commissioner, 200 F.3d 351
(5th Cir. 2000) (holding under § 7430 of the Internal Revenue
Code, which has language identical to the EAJA, that to qualify
for the "special factor" exception an attorney must have
"nonlegal or technical abilities").
4
See, e.g., Rueda-Menicucci v. INS, 132 F.3d 493, 496 (9th
Cir. 1997) (dicta); Pirus v. Bowen, 869 F.2d 536, 541-42 (9th
Cir. 1989).
-8-
language is required. Such a reading is neither compelled by
the statutory language or the examples in Pierce, nor consistent
with what appears to be the underlying purpose of the exception.
The statutory cap is, broadly speaking, designed to
hold down the government's costs by providing modest
compensation, with exceptions. As construed in Pierce, the
main exception arises where "some distinctive knowledge or
specialized skill [is] needful for the litigation in question,"
Pierce, 487 U.S. at 572 (emphasis added), and because of the
"limited availability of qualified attorneys," 28 U.S.C. §
2412(d)(2)(A), it is necessary to pay more than $125 to obtain
attorneys with that skill or knowledge.
So read, the statute does not assign extra compensation
by "fields" but by asking the practical question whether in the
case at hand lawyers qualified to handle the case can be found
for $125 or less. Criminal law is hardly a simple field but CJA
lawyers are paid less than $125 per hour. 18 U.S.C. §
3006A(d)(1). Still, if a plaintiff can show that a particular
"fisheries law" case (or any other kind of case) requires for
competent counsel someone from among a small class of
specialists who are available only for $175 per hour, that seems
to us enough to meet the language of the statute, its purpose,
and the Supreme Court's gloss.
-9-
There is more to the government's second objection,
namely, that in this case no highly rarified specialist was
required. Here, a preliminary distinction is important: the
question is not whether counsel's experience in fisheries law is
helpful or productive but whether it is essential for competent
representation. This is consistent with Congress's cost-savings
objective and, equally important, with the adjectives used by
Pierce itself ("needful," "necessary") to determine whether
special expertise should be compensated. See also Raines v.
Shalala, 44 F.3d 1355, 1361 (7th Cir. 1995) ("require,"
"necessary").
The district court did not explicitly find that special
experience in fisheries law was "required" for competent
representation in this case. The court concluded that fisheries
law did represent an expertise or specialized area of practice
and that Frulla (although not his two colleagues) possessed such
expertise. We agree with both of the premises, but this is not
by a long shot the same as a finding that such an expertise was
required in this case. Nor--if such a finding is taken to be
implicit--do we think that it can be supported.
Modern administrative law involves, in practically
every area, a tangle of discrete regulations, various
precedents, a bureaucratic vocabulary and some background
-10-
knowledge about the kinds of events commonly involved (which
may, for example, be scientific, business related, or medical).
It is almost always helpful for counsel to have had prior
experience in the area, usually the more the better. But in
most cases an otherwise competent lawyer can--albeit at the cost
of some extra time--learn enough about the particular
controversy to litigate in the area adequately, although perhaps
not as well as a long-time specialist.
This is certainly true here. The underlying regulation
was derived from notice and comment rulemaking; there was a
proposed rule, written comments from the public, and a written
justification of the rule, all of which comprised the record.
To assess the Secretary's justifications and seek to puncture
them by reasoning and publicly available data is to deploy
exactly the skills taught in law school. The regulatory
scheme, the data, and the analysis that led to the regulation's
downfall are set forth straightforwardly in the district court's
original five-page opinion.
While it not necessary to reach the government's third
objection, we do so in order to be helpful to district judges in
future proceedings. The government says, in substance, that
even if a fisheries expert had been shown to be "necessary" to
litigate this case competently, there is no finding nor any
-11-
evidence to show that lawyers so skilled were unavailable at the
presumptive statutory rate of $125 per hour. We agree.
Frulla's declaration did no more than confirm his extensive
experience with fishery matters, describe his own "customary
hourly rate" as ranging from $175 to $250 per hour, and say in
conclusory terms that "there are few attorneys in the country
with such a special expertise in this area."
To anyone familiar with Washington law practice, rates
of $175 to $250 per hour are scarcely surprising; and regardless
of the level of possible reimbursement it probably made
excellent sense for plaintiffs to select an expert advocate.
But in law practice, as with airline fares, deviations from the
"customary" rate are legion because the lawyer's unused hours
(like empty airline seats) are a perishable asset. What the
declaration needed to say, with at least modest support, is that
as a practical matter the plaintiffs would be unable to find a
fisheries law expert for $125 (assuming arguendo that one was
required).
We say "modest support" because of practical realities.
No one expects the plaintiffs to conduct statistical surveys on
a collateral matter like attorney's fees, and the antitrust laws
do not encourage counsel to spend much time discussing fee
levels with competing lawyers. But simply to say that counsel's
-12-
own customary fee bottoms out at $175 and there are not many
lawyers in the country with the same expertise just does not
show that exceeding the cap was necessary to procure a fisheries
expert.
Whether to allow any reimbursement is a matter for
Congress and so is the level of generosity. Of course, the use
of a cap constructed in this way may be penny wise and pound
foolish, since a lawyer without Frulla's experience might have
to spend far more hours to do the same work, leaving the
government worse off even at the lower per hour rate. But as
the statute is written and as it has been glossed by the Supreme
Court, the government was entitled to oppose this request to
exceed the cap and--on this record--to prevail.
The judgment is vacated and the matter remanded to
recalculate the fee by reducing compensation for Frulla's time
to $125 per hour.
It is so ordered.
-13-