rates, this reduction means that the hourly rates of Slavit and Associates for August through December 1994 must be reducted to the EAJA cap. Howard Slavit had billed his time at $ 225 per hour; Robert Gill at $ 175 per hour; and Steven J. Wadyka at $ 160 per hour,
This court has previously held that the EAJA rate for work performed in 1993 was $ 119.37, and for work performed in 1994 was $ 122.35. See Chen v. Slattery, 842 F. Supp. 597 (D.D.C. 1994).
The total of 53.60 hours for Slavit and Associates would total $ 6,557.96, at EAJA rates. This represents a reduction of $ 3,298.54, from the amount they billed their client, and further reduces the plaintiffs' award from the $ 289,163.32 to set forth above, to $ 285,864.78.
Plaintiffs seek sanctions against individual counsel as well as the government, but agree with defendants that the court would have to conduct a hearing and further proceedings in order to try to apportion responsibility among the various defendants and their counsel. Although this might save the taxpayer some of the burden the court today imposes, such proceedings would themselves become the sort of "satellite" litigation the courts should avoid in deciding questions of attorney's fees and costs. Moreover, it is clear that the decisions here were made at the highest levels of government, and the government itself is -- and should be -- accountable when its officials run amok. There were no rogue lawyers here misleading this court. The court agrees with plaintiffs that these were not reckless and inept errors taken by bewildered counsel. The Executive Branch of the government, working in tandem, was dishonest with this court, and the government must now face the consequences of its misconduct.
The Department of Justice has a long tradition of setting the highest standards of conduct for all lawyers, and it is a sad day when this court must conclude, as did the United States Attorney in his investigation, that the Department of Justice succumbed to pressure from White House attorneys and others to provide this court with "strained interpretations" that were "ultimately unconvincing." This court goes further than the United States Attorney, however, because this court cannot agree that the Department of Justice never relied upon the "all-employee" exemption for the working group. Having been presented the "all-employee" facts in the Magaziner declaration, the Court of Appeals specifically found that defendants had made that argument. Neither the briefs on appeal, nor any transcript of the oral argument on appeal, was before this court. Yet the Department of Justice sat back and never told this court that it was not making, and had not made, such an argument, and never corrected any of the factual inaccuracies in the Magaziner declaration. The United States Attorney reported that this was a conscious decision because attorneys in the White House refused to allow any supplemental information to be provided to the court. It seems that some government officials never learn that the cover-up can be worse than the underlying conduct. Most shocking to this court, and deeply disappointing, is that the Department of Justice would participate in such conduct. This was not an issue of good faith word games being played with the court. The United States Attorney found that the most controversial sentence of the Magaziner declaration -- "Only federal government employees serve as members of the interdepartmental working group" -- could not be prosecuted under the perjury statute because the issue of "membership" within the working group was a fuzzy one, and no generally agreed upon "membership" criteria were ever written down. Therefore, the Magaziner declaration was actually false because of the implication of the declaration that "membership" was a meaningful concept and that one could determine who was and was not a "member" of the working group. This whole dishonest explanation was provided to this court in the Magaziner declaration on March 3, 1993, and this court holds that such dishonesty is sanctionable and was not good faith dealing with the court or plaintiffs' counsel. It was not timely corrected or supplemented, and this type of conduct is reprehensible, and the government must be held accountable for it.
The court adheres to its view, expressed at the August 11, 1995, hearing, that "it is remarkable that any United States Attorney would make comments to a court that are so sharply critical, frankly, of the government conduct of this litigation . . . ." The court adds that it is beyond remarkable, it is commendable, and it demonstrates adherence to the traditional role of the Department of Justice that justice be done rather than that a case be won at any cost. The elevation of United States Attorney Holder to be Deputy Attorney General is an encouraging and hopeful signal that this case was a rare aberration-- never to be repeated in this court.
Plaintiffs' motion for attorney's fees and costs is granted. A separate order shall issue this date.
Royce C. Lamberth
United States District Judge
For the reasons set forth in an accompanying Memorandum Opinion, plaintiffs' motion for attorney's fees, costs, and sanctions against defendants is hereby GRANTED.
Defendants shall pay to the American Association of Physicians and Surgeons, Inc., the sum of $ 285,864.78.
Royce C. Lamberth
United States District Judge
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