by notification before adverse action was taken on grounds of lack of integrity. Plaintiffs may indeed have lacked integrity, but under the law of this Circuit they have a constitutional right to be told about it in advance. Consequently, the government has failed to prove special circumstances that would make the award of attorney's fees unjust.
Plaintiffs seek to recover $42,112 in attorney's fees and expenses of $ 3,811.23 for litigation of their underlying claims. In addition, they seek $ 8,759.50 in fees and $1,313.83 in expenses incurred in applying for this award of fees under the Equal Access to Justice Act. See Cinciarelli v. Reagan, 234 U.S. App. D.C. 315, 729 F.2d 801, 809-10 (D.C. Cir. 1984). These requests will be granted, to the extent that they are reasonable and authorized by statute.
The Equal Access to Justice Act allows the prevailing party compensation for attorney's fees at the prevailing market rate, not to exceed $75 per hour, unless the Court determines that an increase in the cost of living, or other special factors, justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). Cost of living increases are routinely granted in this Circuit, see Action on Smoking and Health v. Civil Aeronautics Board, 233 U.S. App. D.C. 79, 724 F.2d 211, 218 (D.C. Cir. 1984), and plaintiffs correctly increase the basic fee by 17.01 per cent to $87.76 per hour.
With five attorneys having billed 379.8 hours, the "lodestar" figure for litigating the underlying claims is thus $33,042.57. See Action on Smoking and Health, 724 F.2d at 218 n.33. Plaintiffs seek to recover this time at the prevailing market rate, however, or $42,112, because of "special factors." These factors are the limited availability of qualified counsel and the exceptional result obtained in this lawsuit.
Before discussing these "special factors" and the proper rate, the total number of hours needs to be determined. The Army correctly points out that the 379.8 figure seems quite high for litigation that took only one month. The Army also correctly notes that plaintiffs have in some cases failed to document, even in general terms, the work done by some of its attorneys. Not only are 7.7 hours of Mr. Matthews' time entirely unexplained, but the explanations for the remainder of his work time are -- to borrow defendants' label -- "sparse . . . to the point of being cryptic." Were the Court to allow recovery for Mr. Matthews' unjustified work, it would encourage prevailing parties merely to scrawl any imaginable number of hours and then laugh their way to the bank. Instead, Mr. Matthews' 48.4 hours of "work" will be disallowed, as they are unsupported by evidence within the meaning of 28 U.S.C. § 2412(d)(1)(B). Moreover, Mr. Dinan's allowable time will be reduced from 37.2 hours to 20 hours. The Court realizes that some law firms occasionally thrive on inefficiency, and promote slow work by associates, but Mr. Dinan could hardly have needed 20 hours to research exhaustion of remedies and to "draft a portion" of a memorandum on that topic.
Thus, the Court hereby disallows 65.6 hours of billed time, reducing the total to 314.2 hours.
The next question is whether the $87.76 hourly figure will apply, or whether special factors call for increasing this figure to the prevailing market rate of $90 to $125 per hour, depending on the attorney.
The Court agrees that the rate billed for Mr. von Maur should be adjusted to $125 per hour because of the limited availability of qualified counsel -- in this case, a West German attorney, fluent in English, who specializes in U.S. contract litigation. Similarly, the "extraordinary result" in this case justifies increased rates for the remaining attorneys whose real billing rate exceeds the $87.76 figure set here. This Circuit has said that such an upward adjustment is proper in the exceptional case in which a Party assumes "a real risk of pursuing litigation that has an unlikely outcome." Hirschey v. FERC, 250 U.S. App. D.C. 1, 777 F.2d 1, 5, n.18 (D.C. Cir. 1985). This Court has only recently recognized that disgruntled procurement contractors face an extremely difficult task in proving their case. See Computer Data Systems, Inc. v. Lehman, No. 86-2414 (D.D.C. oct. 7, 1986); see also Delta Data Systems Corp. v. Webster, 744 F.2d 197 (D.C. Cir. 1984). A case in which a government contractor disputes the award of four contracts to its competitors is thus the risky, exceptional case that deserves extra compensation under the Act. Thus, the fees for all attorneys except Mr. Dinan will be computed at their market rate.
Consequently, the following figures will be used to compute the proper fee award for disputing the underlying claims in this litigation:
Reed L. von Maur 97.3 hours at $125
James K. Stewart 91.5 hours at $125
Keith R. Anderson 105.4 hours at $90
Kevin M. Dinan 20 hours at $80
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