Atlantic Fish Spotters Ass'n v. Daley

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-