scientific validity of it was not subject to judicial scrutiny. Thus, the only issue left to be decided was whether the Journal Article accurately reflected the conduct and the results of the test.
By Memorandum and Order dated September 2, 1982, we concluded that the Journal Article did contain several false and misleading statements, and that defendant's release of the article in that form to laymen was arbitrary, capricious and an abuse of discretion. Accordingly, we issued a permanent injunction prohibiting further release of the Journal Article absent editorial amendment to correct the deficiencies.
Plaintiff thereafter filed the instant application for fees and expenses.
A. Entitlement to Award Under the EAJA
The EAJA authorizes an award of attorney's fees and reasonable expenses to an eligible private litigant
who prevails in a case brought by or against the United States, its officers or agencies, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). In addition, the Act provides that a Court has discretion to award reasonable fees and expenses against the United States "to the same extent that any other party would be liable under the common law." 28 U.S.C. § 2412(b).
There is no doubt that plaintiff is a "prevailing party" within the meaning of the EAJA. In our September 2, 1982, ruling we granted plaintiff most of the relief requested in the complaint. Defendant has, however, raised several other objections to plaintiff's application for fees and expenses. We will treat those arguments seriatum.
1. "Position of the United States""Substantially justified"
Fees and expenses are not awardable under the EAJA if the "position of the United States" (here the Secretary of Agriculture) was "substantially justified." 28 U.S.C. § 2412(d)(1)(A). Under the law of this Circuit, the position referred to is the posture assumed by the government in litigation.
Spencer v. NLRB, 229 U.S. App. D.C. 225, 712 F.2d 539, 556 (D.C.Cir.1983). A litigation position is substantially justified if it has slightly more than a reasonable basis both in law and fact. Id. at 557; see H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11 (1980), U.S.Code Cong. & Admin.News 1980, p. 4953; S.Rep. No. 253, 96th Cong., 1st Sess. 6-7 (1979). The governmental defendant bears the burden of proof on this issue. Spencer, supra at 557.
Defendant's primary contention is that his position in this lawsuit was substantially justified. That position has two elements. First, defendant asserted in his motion to dismiss that the Beltsville test and the Journal Article was unreviewable discretionary activities. According to the Secretary, since he had a reasonable basis in law and fact to maintain this argument, which would have been a complete defense to plaintiff's claims if it had been accepted by the Court, his position was substantially justified.
The second prong of defendant's litigation position was advanced at the hearing and in post-hearing briefs. He contended that there were no defects in the Journal Article, and, alternatively, to the extent any defects could be found, they were not the result of negligent or arbitrary conduct, but were, instead, mere errors in editorial judgment. Defendant asserts that this defense was reasonably supported by the facts of the case and, therefore, this position was also substantially justified.
On two occasions prior to our final judgment in this action, we considered and rejected defendant's claim that publication and dissemination of the Journal Article was not subject to judicial review.
See Impro Products, Inc. v. Block, C.A. No. 81-1284 (D.D.C. July 9, 1982), further disposition (D.D.C. July 28, 1982). Defendant argued that release of the test results was "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). We found, however, that (1) the APA creates a strong presumption that agency action is subject to judicial review, Impro Products, slip op. at 3 (D.D.C. July 28, 1982); Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1043 (D.D.Cir.1979), and (2) this was not one of those rare instances where the governing statute is drawn in such broad terms that there is no law to apply. Impro Products, supra at 4-6; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 820-821, 28 L. Ed. 2d 136 (1971). We now conclude, therefore, that defendant was not substantially justified in arguing to this Court that he had unbridled discretion in the release of test results that were, at the least, inaccurate and incomplete.
Defendant's position as to the reliability of the Journal Article was similarly lacking in substantial justification. The evidence adduced at the July, 1982 hearing clearly showed that the report of the test results contained several misstatements of fact and was, therefore, misleading and deceptive. We concluded that defendant's release of the Journal Article to laymen, i.e. non-veterinarians, was arbitrary and capricious conduct amounting to an abuse of discretion. By the weight of the evidence, defendant had no reasonable basis in fact to assert that the Journal Article was totally reliable and accurate, or that mere editorial errors were the only defects.
In light of the above, we conclude that the litigation position of the governmental defendant as to the publication of the Journal Article was not substantially justified. We turn now to consider whether some special circumstances exist that would otherwise make an award of fees unjust.
2. Special Circumstances
Defendant asserts that, pursuant to the terms of the EAJA, fees are not awardable in this case because special circumstances exist that would make an award unjust. These special circumstances allegedly include (1) the novelty of the legal issues attending this litigation, and (2) plaintiff's "unclean hands." We do not agree.
First, it is clear from the discussion above that this case did not involve truly unique issues of law and/or fact. Rather, plaintiff presented a fairly standard claim for judicial review of federal agency conduct. We found the controlling case law to be well-settled, and the significant open issues were resolved through traditional means of statutory construction. Moreover, defendant belies his own position by arguing, on another point, that plaintiff's counsel do not merit premium compensation because this case was not difficult or extraordinary, and it did not require special legal skill.
Defendant's second argument is that plaintiff has "unclean hands" because it has violated the VST Act by selling and distributing Whey Blend in interstate commerce without a license. In our April 7 and June 25, 1982 rulings, we refused to allow defendant to gather or present evidence on that issue:
Absent evidence of Congressional intent, we decline to create a new enforcement mechanism . . . The Government has made no attempt to institute criminal proceedings against the plaintiff for the alleged licensing violations. Hence, we are unwilling to permit the Government to use a civil injunction action to enforce a criminal statute.
Impro Products, C.A. No. 81-1284, slip op. at 7-8 (D.D.C. April 7, 1982). Further, we concluded that:
To uphold the Fifth Defense ("unclean hands") we would be required to rule, in this civil action that the marketing of plaintiff's products are subject to the VST Act, and that plaintiff is in violation of that criminal statute. To do so, where plaintiff has never been indicted or convicted in a criminal proceeding under the VST would jeopardize plaintiff's constitutional rights.
Impro Products, supra, slip op. at 2 (D.D.C. June 25, 1982).
Throughout this litigation plaintiff has steadfastly maintained that its products are not subject to the VST Act. To uphold defendant's "unclean hands" argument in the present context, we would necessarily have to rule that plaintiff's products are subject to the VST Act, and that plaintiff has violated that Act. This would also undoubtedly "jeopardize plaintiff's constitutional rights." We once again decline to do so.
Accordingly, we find no special circumstances present in this case which would render an award of attorneys' fees and expenses unjust.
3. Bad Faith
Plaintiff also claims entitlement to an award of fees under 28 U.S.C. § 2412(b), asserting that defendant acted in bad faith throughout the 18-year history of this dispute carried on in the Department of Agriculture, in the Congress and in the Courts. In essence, plaintiff asserts that the ARS scientists consciously tried to ruin plaintiff's business by publishing and disseminating the Journal Article, even though they knew it to be false, misleading and deceptive. Defendant, of course, disclaims any hint of malice and attributes the faulty report to excusable neglect.
On the evidence before us we cannot make a finding that the Federal employees acted with malice and in bad faith. Although both parties exhibited unusual tenacity and at times hostility in the long course of their dealings, we do not equate tenacity with bad faith.
In sum, we find that, although defendant is not guilty of bad faith, plaintiff is a prevailing party that is entitled to an award of attorneys' fees and reasonable expenses under the EAJA because the position of the federal defendant was not substantially justified, and there are no special circumstances that would render an award unjust.
We turn now to an analysis of the actual hours and fees claimed in order to calculate the appropriate amount of award.
B. Calculation of Award8
Computation of awardable fees under a federal fee-shifting statute must begin with the "lodestar" figure, the number of hours reasonably expended by claimant's counsel multiplied by the appropriate hourly rate. Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc); Jordan v. United States Dept. of Justice, 223 U.S. App. D.C. 325, 691 F.2d 514, 518 (D.C.Cir.1982); see Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). Time spent in duplicative, unorganized or otherwise unproductive and/or unnecessary work should be disallowed. Id. A court must insure that adequate "billing judgment" has been exercised by counsel and is reflected in the fee request. Id.
The fee request itself must be well-documented. Fee claimants must supply a detailed accounting of hours logged and tasks performed, yet, "it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted." National Association of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1326 (D.C.Cir.1982), quoting Copeland, 641 F.2d at 891; accord Jordan, 691 F.2d at 520. Moreover, "no more is necessary than ' fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, [and] associates. . . .'" Jordan, 691 F.2d at 520 (footnote omitted), quoting Copeland, 641 F.2d at 891.
At the outset, we find that plaintiff has sufficiently documented its fee request. Counsel for plaintiff submitted a detailed accounting, broken down by month, day, and attorney, of the hours expended, amplified by a brief description of the activities performed for each time entry. Each attorney involved with the case filed an affidavit attesting to the accuracy of the entries for his or her work. Finally, plaintiff submitted a similarly detailed accounting of the time and activities excluded from the fee request, viz., all the work done by paralegals and law clerks. These documents clearly meet the standards set out in Copeland and National Association.
We turn then to an analysis of the reasonableness of the hours claimed, as well as the requested hourly rates.
1. Compensable Hours
Defendant rightly points out that plaintiff claims compensation for "a lot of hours, viz., 3,568.25." n9 Nonetheless, we find that the overwhelming majority of billable hours claimed were reasonably expended in light of (1) the nature of the proceedings, and (2) defendant's conduct in litigation.
n9 The breakdown of hours is as follows:
Harold M. Carter (HMC) 1,269.25
George T. Qualley (GTQ) 868.25
Phil C. Jones (PCJ) 637.00
Linda A. Lipsen (LAL) 67.50
Paul A. Sortland (PAS) 75.00
Thomas R. Olson (TRO) 99.50
Todd W. Gunderson (TWG) 25.75
Harry L. Capadano (HAC) 11.75
Richard E. Keithley (REK) 9.50
Robert J. Wise (RJW) 3.75
James P. Barone (JPB) 1.00
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