Initially, it is clear both that plaintiffs are "parties" within the meaning of the EAJA, 28 U.S.C. § 2412(d) (2) (B), and that plaintiffs are the "prevailing parties" in this litigation, as the Act requires. 28 U.S.C. § 2412(d)(1) (A). Thus, the plaintiffs are entitled to attorneys fees unless this Court finds that defendants' position in this litigation was "substantially justified." "The test of whether or not a government action is substantially justified is essentially one of reasonableness." H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. 10 reprinted in 1980 U.S. Code Cong. & Admin. News 4984, 4989. And the burden of proof is on the government to justify its position. Id. The Court finds that defendants did not sustain this burden.
This class action suit was brought on behalf of a group of migrant farm workers to compel the Department of Labor ("DOL") to enforce certain of its regulations relating to temporary labor certification.
Prior to 1980 DOL had consistently interpreted its regulations to require growers to increase the wage rate paid for piece work
whenever the DOL increased the minimum wage rate -- the adverse effect rate ("AER"). Any grower that did not comply with these regulations was denied certification. Then, in 1980, the DOL began to grant certifications to growers who, rather than increasing the piece rates paid workers, increased the productivity they demanded of workers, whenever the AER was raised. Plaintiffs filed this suit to compel the DOL to enforce its regulations and cease granting certification to these growers.
Defendants argue that in this suit they presented to the Court a reasonable and legally justifiable interpretation of their regulations and therefore their position was substantially justified. The Court views this litigation differently. It appears to the Court that by "reinterpreting" their regulations defendants attempted to institute a significant policy change without complying with the rulemaking procedures mandated by the Administrative Procedure Act. The Court does not find defense of this conduct to be substantially justified. In its Opinion, this Court found that DOL's policy change was without support in its regulations and in fact was an attempt to avoid the mandate of those regulations.
See 29 C.F.R. §§ 655.207(c) & 655.202(b) (9). Accordingly, the Court now finds that DOL's position in this litigation was not substantially justified and the plaintiffs' attorneys are entitled to a fee award under the EAJA.
Having determined that plaintiffs are entitled to an award of attorneys' fees the Court must now decide what amount the plaintiffs' attorneys are entitled to receive. Plaintiffs' fee application requests award both for Hughes, Hubbard & Reed -- plaintiffs' counsel in the case before this court -- and West Virginia Legal Services which filed the administrative complaint. The Court turns first to the fees requested by Hughes, Hubbard & Reed.
Hughes, Hubbard & Reed has requested a total of $19,635.23 for their work in this case. Their petition sets forth the following hours and rates: n5
Professional Hours Rate Total
Philip Lacovara (partner) 20 $75 $1500
Gerald Goldman (partner) 20 75 1500
Thomas Goldberg (associate) 220 60 13200
Bruce Judson (summer associate) 22 50 1100
Allen Phaup & Deborah
Tarasevich (paralegals) 64 25 1600
Total Fees (Hours X Rate) $18900
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