The opinion of the court was delivered by: GESELL
On November 28, 1983, this Court ruled that the Secretary's defense of his failure to take steps required by Congress addressing the hazards of "tight" paint was not "substantially justified" within the meaning of the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and that plaintiffs were therefore entitled to recover attorney's fees and expenses under the EAJA. Plaintiffs have now applied for $170,027.87 in attorney's fees and $5,381.55 for costs and expenses claimed in connection with the pursuit of this case in both the District Court and the Court of Appeals. 716 F.2d 56 (D.C.Cir. 1983). The Court must determine the amount of fees and expenses to be awarded. The issues have been fully briefed and argued.
The Court has no quarrel with the quality of the legal work performed by plaintiffs' counsel. The briefs and arguments presented in the District Court were useful to resolution of the case and generally of high quality. Plaintiffs prevailed on the central issue in the case, although certain lesser issues were lost and other issues more properly the concern of local courts were severed. The result obtained by the lawsuit benefited the public interest. In considering an application for attorney's fees, however, recognition of these favorable factors does not end the Court's inquiry. A fee applicant still has the burden of satisfying the Court that the fees claimed were in fact reasonable. Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983). Where, as here, the maximum hourly rate is controlled by statute, absent special circumstances the reasonableness of the fee claimed primarily hinges on whether or not the attorney time logged and claimed was necessary and was effectively used.
The principal work in the present case was controlled by two partners and two associates working somewhat interchangeably. In all, however, eleven attorneys, fourteen law clerks and nine paralegals were involved in preparing and presenting plaintiffs' case. The time expended by these individuals was recorded by a computerized recordkeeping system, and the computer printouts generated by this system have been submitted to the Court to document the time expended. Descriptions of the work performed are cryptic and not particularly informative. The fee application contains no detailed breakdown of time expended by subject matter, and no detailed attempt has been made to justify the necessity of the work performed.
The application does indicate that a fee of $54,114.56 is claimed for the appeal, covering 660 hours of attorney time and 260 hours of law clerk time, discounted by 15 percent. It also appears that something well over $13,000 is claimed for preparing and presenting the fee request itself.
The remaining amount claimed is for the proceedings in the District Court on the merits of the case. Attorneys logged a total of 3,622 hours and paralegals and law clerks accounted for 1,221 hours on this aspect of the case. These charges have been reduced for purposes of the fee application to 1,766 hours and 653 hours, respectively, as a result of "billing judgments" not fully explained in the supporting affidavits.
Granting that counsel were thorough and careful in preparing their case, it is still impossible to avoid the insistent impression of duplication, expenditure of time on unreasonable and unproductive research, and reliance on inexperienced assistants. This case involved a relatively straightforward question of statutory interpretation which was resolved on cross-motions for summary judgment after only limited discovery. The cross-appeals taken from this Court's judgment addressed the same issues already briefed and argued below. The Court has undertaken an exhaustive review of the material presented in an effort to sort out precisely where and to what extent excesses and waste occurred. However, the limited descriptions of work done generated by the impersonal discipline of the computer, and plaintiffs' failure to elaborate fully on the purposes of the particular charges incurred, have made this review unrewarding. It is clear to the Court, nevertheless, that the total number of hours claimed is still unreasonable and must be drastically scaled down.
Examining the briefs and partial transcript of argument in the Court of Appeals, the only aspect of the litigation for which the hours expended can be clearly segregated and related to the work required, the claim appears to be at least twice what would constitute a reasonable fee. As to work performed in connection with District Court proceedings, a breakdown by issues or portions of the case cannot be clearly determined, but it is again clear that what was an essentially straightforward lawsuit has been allotted a disproportionate amount of time as a result of either excessive zeal or inexperience. Overstaffing and excessive use of attorney time should not be at government expense. In the Court's experience motions of this type should be efficiently and competently presented with far less expenditure of legal time.
It is not clear from the language of the EAJA whether paralegal and law clerk charges can be recovered. Section 2412(d)(1)(A) provides for award of "fees and other expenses," which includes
reasonable expenses of expert witnesses, 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, and reasonable attorneys fees . . . .
28 U.S.C. § 2412(d)(2)(A). While this statutory language clearly evinces an intent to take a narrow approach to allowable expenses, it provides little guidance on this issue. In Jordan v. United States Department of Justice, 223 U.S. App. D.C. 325, 691 F.2d 514 (D.C. Cir. 1982), the Court took an expansive view of the term "attorney's fees," holding that this rubric was broad enough to include compensation for work performed by law students. 691 F.2d at 522-23. Jordan, however, was a case under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the legislative history of the EAJA suggests that in this Act Congress intended to take a more restrictive approach to award of the expenses of litigation. In particular, beyond costs possibly recovered as a component of the hourly fee awarded for attorney time the EAJA is not intended to reimburse attorneys for overhead expenses.
The ceiling on attorney fees relates only to the compensation of lawyers or agents (e.g., accountants themselves). It does not include their overhead expenses or other costs connected with their representation of a particular interest in a proceeding. [Emphasis added.]
H.R. Rep. No. 1418, 96th Cong., 2d Sess. 15 (1980).
To award "fees" for law clerk and paralegal time at hourly charges billed to clients would, in effect, be to compensate those firms both for overhead and profit.
If compensation for the work of law clerks and paralegals was denied entirely, on the other hand, this also might frustrate the purposes of the EAJA by "forc[ing] attorneys to handle the entire case themselves, achieving the same results but at a much higher cost." Berman v. Schweiker, 531 F. Supp. 1149, 1154-55 (N.D. Ill. 1982), aff'd, 713 F.2d 1290 (7th Cir. 1983). Consequently, the Court has concluded that the appropriate means of compensation for law clerk and paralegal time is to treat this class of personnel as an expense covering ...