Mary Jane Ruderman Hirschey v. Federal Energy Regulatory Commission, Long Lake Energy Corporation, Intervenor

HARRY T. EDWARDS, Circuit Judge:

The petitioner, Mary Jane Ruderman Hirschey, seeks an award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”)¹ as the prevailing party in a case against the Federal Energy Regulatory Commission (“FERC”)² under the Federal Power Act (“FPA”).³ In response to her initial petition for fees and costs, we held that Ms. Hirschey is eligible for an award of fees, but not costs, for “proceedings at the judicial level.” ⁴ We now determine the amount of fees due.

I. Background

The case underlying this fee petition concerned Hirschey’s claim for an exemption from the licensing requirements of the FPA in order to develop a small hydroelectric project. Petitioner filed an application for an exemption in December, 1981, which became effective on June 7, 1982. On July 20, 1982, the Commission, sua sponte, issued an order vacating the petitioner’s exemption. Hirschey subsequently filed a petition for review with this court, which was dismissed for failure to exhaust administrative procedures.⁵ After a futile attempt to file a petition for rehearing with the Commission, Hirschey filed a second petition for review with this court. On this second attempt, we upheld her claim to an exemption in Hirschey 7.⁶ Petitioner then applied in a timely fashion for an award of attorneys’ fees and costs pursuant to EAJA.

Due to a paperwork error in the Court Clerk’s office, consideration of the petitioner’s EAJA claim was greatly delayed. In Hirschey 77,⁷ we held that attorneys’ fees may be granted under EAJA in a case arising under the FPA, although section 317 of the FPA⁸ bars an award of costs.⁹ We also determined that the petitioner is eligible for a fee award under EAJA¹⁰ for proceedings at the judicial level and established a timetable for additional filings and for discovery by the Government. We remanded the petitioner’s request for fees for proceedings at the agency level for consideration and initial determination by the Commission.¹¹

II. Discussion

A. Eligible Hours

The petitioner requests this court to assess fees against the Government for four separate stages of the proceedings in this case. First, she claims that certain aspects of her representation before the agency were necessarily related to the issues successfully raised on appeal and that she is entitled to recover for this portion of the proceedings before FERC. We clearly rejected this claim in Hirschey II when we remanded the matter for initial determination by the Commission.

Second, the petitioner submits the hours spent on her first unsuccessful appeal to this court. Because this appeal was dismissed as premature, petitioner was not a “prevailing party” ¹² in the action. Petitioner thus fails to meet the EAJA requirements ¹³ for an award of fees for her initial appeal. The Commission concedes that some of the legal research done for the unsuccessful appeal was useful in Hirschey I and should be compensated. We agree, and find that, of the hours in question, 35.55 hours of research (21.5 partner and 14.05 associate) are related to Hirschey I and eligible for a fee award.

Third, Hirschey has documented the hours spent on the appeal in Hirschey I between September 20, 1982, and March 1, 1983. In discovery, the Commission identified certain hours that were related to proceedings before the agency and to Hirschey’s unsuccessful effort to oppose intervention by Long Lake Energy Corporation. We have eliminated those hours and determine that 319.5 partner hours and 8.6 associate hours are reasonably compensable for this stage of the proceedings.

Fourth, the petitioner requests fees for work connected with the EAJA fee application. Cases in this Circuit have routinely awarded reasonable fees incurred in requesting fees under fee-shifting statutes,¹⁴ and we find that Hirschey should receive fees for expenses incurred in her successful EAJA action.¹⁵ Although the Commission does not challenge the accuracy of the time claimed, it argues that the fee award for this work should be limited to the litigation of Hirschey II. On this point, the Commission suggests that petitioner’s supplemental fee application was made necessary only because her initial fee application was inadequate. However, no such implication should be drawn from our opinion in Hirschey II. The Commission overlooks the fact that the litigation on fees was extended because it requested discovery. In addition, the focus in Hirschey II was not on whether the petitioner’s claims for fees were reasonable, but on whether Hirschey was entitled to an award at all. If the fee application has been bifurcated, it is because of the Commission’s opposition to Hirschey’s EAJA claim. Accordingly, since the hours claimed are not otherwise in dispute, we find that the petitioner is entitled to include 319.25 partner hours and 82.7 associate hours for work on the fee application.

B. The Appropriate Rate

The appropriate rate for “fees or other expenses” under EAJA, 28 U.S.C. § 2412(d)(1)(A), is defined in subsection 2412(d)(2), as follows:

(2) for the purposes of this subsection—

(A) “fees and other expenses” includes ... reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... (ii) attorney fees shall not be awarded in excess of $75 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.);

The petitioner claims that the $75 per hour statutory cap should be adjusted upward for cost-of-living increases and for special factors in the litigation. We agree that the statutory maximum on fees should be increased to reflect changes in the cost-of-living. We also note that this court has held in EAJA claims that we may look beyond the single factor stipulated in the statute to special factors, such as “the contingent nature of success, delay in payment or quality of representation,” in determining whether to adjust the statutory cap.¹⁶ We find that delay in payment is the only special factor that warrants an increase in the statutory rate in this case.

The petitioner urges that an additional increase in the fee award is appropriate because the delay caused by the Commission’s illegal conduct has added to her costs for developing her hydropower project. This argument misconstrues the purposes of EAJA. The fee limitation reflects an attempt to provide reasonable compensation for successful litigants, while simultaneously containing costs.¹⁷ EAJA does not provide general indemnification against the consequences of litigation or of agency action.

We likewise find inapposite the petitioner’s claim that ex parte contacts between a FERC Commissioner and parties with interests opposed to petitioner’s on the issue of FPA exemptions constitutes bad faith by the Commission which justifies a rate increase. Bad faith sometimes may be a consideration under subsection 2412(b), but the question of impermissible ex parte contacts was not an issue in either Hirschey I or Hirschey II, and the belated attempt to raise the question now is unavailing. The award to petitioner is therefore limited to a recovery of fees under 2412(d)(1)(A).

We also reject the petitioner’s invocation of a special factor for contingency.¹⁸ An upward adjustment of an award to compensate for the risk of losing a lawsuit “is permissible only in an exceptional case.”¹⁹ Here the petitioner has conceded that the risk in her case was far from exceptional by stating that “the probability of ultimately prevailing on the issue was not seriously in doubt to Counsel.”²⁰ We agree that the result in Hirschey I was hardly surprising.

As noted above, petitioner’s request for a cost-of-living increase in the $75 rate is an appropriate adjustment as authorized by subsection 2412(d)(2) of EAJA. We reject the Commission’s argument that recent amendments to EAJA,²¹ which did not alter the $75 fee limit, compel us to regard that amount as fully compensatory and deny a cost-of-living increase.²² First, the original enactment of EAJA applies to this case.²³ Second, even if the amendments applied, they do not alter any aspect of 28 U.S.C. section 2412(d)(2)(A). The provision for a cost-of-living increase remains unchanged and therefore applies as it did originally. Consequently, we approve a cost-of-living increase in the statutory cap to $89.73.²⁴

We should emphasize here that the statutory cost-of-living adjustment authorized by subsection 2412(d)(2) increases the maximum rate designated in the same subsection, not the attorneys’ prevailing market rate. The $89.73 reflects this adjustment. In the instant case there is no dispute that both the actual billed rate and the prevailing market rate for partners’ hours exceeded $89.73 throughout the entire period of this litigation. Hence the petitioner is entitled to compensation for partners’ hours at a rate of $89.73. Associates’ hours were billed at $85 throughout the litigation. The government concedes this fact, and the petitioner has submitted documentation that the $85 rate was within the range of prevailing market rates for associates of comparable experience.²⁵ “In almost every case, the firms’ established billing rates will provide fair compensation,”²⁶ and there has been no showing that this case is an exception. Therefore we find that $85 is an adequate rate for associates’ time. Because this rate is lower than the $89.73 maximum allowed by subsection 2412(d)(2) following cost-of-living adjustment, the statutory cap does not come into play in determining compensation for associates’ hours.

We recognize that there is arguably a question whether we should limit the fees for the hours billed each year by the adjusted statutory maximum applicable for that year, or rather limit them only by the current statutory maximum. We will adopt the latter approach, in order to compensate petitioner for delay, as we are authorized to do under the “special factors” criterion in EAJA.²⁷

Pursuant to the foregoing findings and conclusions, the petitioner is due a total of $68,198.98 in attorneys’ fees.

C. Expenses

Under the category of expenses, the petitioner seeks payment for work performed by paralegals, consultant fees, a portion of secretarial expenses and office overhead and “out-of-pocket” expenses such as photocopying, postage, taxi fares and secretarial overtime. EAJA provides that awardable expenses “included the reasonable expenses of expert witnesses, [and] the reasonable cost of any study, analysis, engineering report, test or project which is found by the court to be necessary for the preparation of the party’s case.”²⁸ We have previously found that expenses such as postage and taxi fares are not compensable under EAJA,²⁹ and in Hirschey II we held that the FPA precludes an award of costs, which include photocopying and filing fees.³⁰ These claims do not merit further discussion.

We also reject the petitioner’s claim for overhead and secretarial expenses, which are traditionally covered by attorneys’ fees and not charged separately. The engineering consultant fees for which Hirschey seeks reimbursement were not relevant to the resolution of either Hirschey I or Hirschey II; therefore, no expenses may be awarded for the consultant’s work.

The Commission does not object to compensation for work by paralegals as an expense item or to the rate the petitioner suggests, which we find reasonable. When the hours performed by paralegals on the first appeal are reduced to those related to the successful appeal, the petitioner is entitled to an award for 285.6 hours at $30 per hour. In addition, a charge of $142.61 for computer research is appropriate.

In sum, we award the petitioner a total of $8710.61 in expenses.

III. Conclusion

For the reasons discussed above, we award the petitioner a total of $76,909.59 in attorneys’ fees and expenses.

So ordered.

1 . 28 U.S.C. § 2412 (1982).

2 . See Hirschey v. FERC, 701 F.2d 215 (D.C.Cir.1983) (hereinafter cited as Hirschey I).

3 . 16 U.S.C. §§ 791a et seq. (1982).

4 . Hirschey v. FERC, 760 F.2d 305, 311 (D.C.Cir.1985) (hereinafter cited as Hirschey II).

5 . Hirschey v. FERC, No. 82-1842 (D.C.Cir. Aug. 11, 1982) (unpublished order).

6 . 701 F.2d 215 (D.C.Cir.1983).

7 . 760 F.2d 305 (D.C.Cir.1985).

8 . 16 U.S.C. § 825p (1982).

9 : We note in passing that the legislative history of the 1985 EAJA amendments, Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183 (1985), expressly ratifies the holding of the majority opinion in Hirschey II. See H.R. Rep. No. 120, 99th Cong., 1st Sess. 17 (1985), U.S.Code Cong. & Admin.News 1985, pp. 132, 145 ("The language of section 2412(d)(1)(A) expresses the view that prevailing parties shall be awarded attorney's fees and, when available, costs as well.”).

This legislative history was wholly unnecessary to support the judgment in Hirschey II and it is irrelevant in our present determination on fees; therefore, we can find no reason to address the concerns raised in the concurring opinion regarding the authoritative quality of the congressional committee report.

10 . As a financially qualified, prevailing party, Hirschey meets the requirements for a fee award pursuant to 28 U.S.C. § 2412(d)(1)(A) (1982). The Government did not demonstrate that its position was "substantially justified” and we did not find special circumstances that would preclude an award of fees. See Hirschey II, 760 F.2d at 309-10.

11 . The Commission must determine if the proceedings at the agency level were an "adversary adjudication” for which attorneys’ fees are available under either 5 U.S.C. § 504(a)(1) (1982) or 28 U.S.C. § 2412(d)(3) (1982). See Hirschey II, 760 F.2d at 310-11.

12 . A plaintiff is a prevailing party for the purpose of attorneys' fees if she ”succeed[s] on any significant issue in litigation which achieves some of the benefit sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).

13 . 28 U.S.C. § 2412(d)(1)(A) (1982) ("a court shall award to a prevailing party ...’’).

14 . See Sierra Club v. Environmental Protection Agency, 769 F.2d 796, 811-12 (D.C.Cir.1985) (Section 307(f) of the Clean Air Act, 42 U.S.C. § 7607(f) (1982)); Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 29-30 (D.C.Cir. 1984) (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (1982) and the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) (1982)).

15 . In light of our opinion in Hirschey I, there can be no doubt that the Government’s position in this case was not substantially justified. See Cinciarelli v. Reagan, 729 F.2d 801, 809-10 (D.C.Cir.1984). The Government carries the burden of demonstrating that its position was substantially justified, see Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984), and it did not even raise the issue as a defense to Hirschey’s EAJA claim.

16 . Action on Smoking and Health v. CAB, 724 F.2d 211, 218 (D.C.Cir.1984).

17 . See Award of Attorneys' Fees Against the Federal Government: Hearings Before the Subcommittee on Courts, Civil Liberties, and Administrátion of Justice of the House Committee on the Judiciary, 96th Cong., 2d Sess. 32 (1980) (testimony of Sen. DeConcini); id. (statement of Rep. Kastenmeier).

18 . FERC misconstrues this factor as requiring a contingent fee arrangement. Rather, it is designed to compensate a party for assuming a real risk of pursuing litigation that has an unlikely outcome. See Copeland v. Marshall, 641 F.2d 880, 893 (D.C.Cir.1980) (en banc).

19 . Murray v. Weinberger, 741 F.2d 1423, 1432 (D.C.Cir.1984).

20 . Petitioner’s Supplement I to Motion for Award of Attorneys’ Fees and Expenses at 17.

21 . Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183 (1985).

22 . The Commission characterizes the recent legislation as a reenactment of EAJA, but it is actually a series of amendments, including one that repeals the sunset provision that caused 28 U.S.C. § 2412(d) to expire October 1, 1984. See Act of Aug. 5, 1985, Pub.L. No. 99-80 § 6, 99 Stat. 183, 186 (1985).

23 . Act of Aug. 5, 1985, Pub.L. No. 99-80 § 7, 99 Stat. 183, 186 (1985).

24 . The Commission informs us, and the petitioner agrees, that the cost of living increased in the Washington, D.C. area by 19.6% between 1981 and May, 1985.

25 . Affidavit of William I. Harkaway. Supplement to Motion for Fees, Attachment L.

26 . Laffey v. Northwest Airlines, Inc., 746 F.2d at 24.

27 . See Action on Smoking and Health, 724 F.2d at 219-20.

28 . 28 U.S.C. § 2412(d)(2)(A) (1982).

29 . Action on Smoking and Health, 724 F.2d at 224.

30 . 760 F.2d at 307.