Action on Smoking and Health v. C.A.B.

Decision Date06 January 1984
Docket NumberNos. 79-1044,79-1095,79-1754 and 81-2023,s. 79-1044
PartiesACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Air Transport Association of America, Transamerica Airlines, Inc., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

John F. Banzhaf, III, Paul N. Pfeiffer, and Athena Mueller, Washington, D.C., were on the Application and Supplemental Application for Attorneys' Fees, for petitioner.

Lewis K. Wise and Theodore M. Grossman, Attorneys, Department of Justice, Washington, D.C., were on the Oppositions to Petitioner's Application and Supplemental Application for Attorneys' Fees, for respondent.

Before WRIGHT and MIKVA, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

Under the Equal Access to Justice Act 1 (EAJA), Action on Smoking and Health (ASH) is entitled to attorneys' fees for its successful challenge of Civil Aeronautics Board (Board) regulations concerning smoking aboard commercial aircraft. 2 ASH has filed its main application requesting $59,804.38 in fees and expenses plus an upward adjustment. 3 In addition, ASH has filed a supplemental application for $18,433.75 in fees 4 plus an upward adjustment for work The Board also argues that this court lacks jurisdiction to consider the portion of the supplemental application relating to this court's emergency order. The Board also objects that ASH is not entitled to fees for its work on the fee application. Since we agree that we lack such jurisdiction and that much of ASH's work on the fee application is not compensable, we award only $3,843.75 on the supplemental application; we decline to make an upward adjustment for this work. ASH is therefore entitled to a total of $42,881.07.

                performed in connection with its request for fees and an emergency order issued by this court. 5   The Board concedes that ASH is entitled to fees, but opposes the main application, arguing (1) that ASH has sought fees for work unrelated to the claims on which it prevailed;  (2) that ASH has requested hourly rates in excess of the $75 hourly maximum specified in the statute;  (3) that ASH has failed to document adequately the hours of attorney time requested;  and (4) that ASH has failed to eliminate unproductive or duplicative hours from the application.  We find that, with one minor exception, the requested fees do relate to the claim on which ASH prevailed.  We also find, however, that ASH has requested hourly rates above the statutory ceiling;  that it has submitted inadequate documentation;  and that it has not eliminated duplicative hours.  Accordingly, we are compelled to reduce the requested award in the main application to $35,460.63 for legal services.  In addition, we award a ten percent upward adjustment to account for inflation and the long delay between the rendering of services and payment, and to reflect the successful result obtained. 6
                
I. MAIN APPLICATION
A. Background

In 1979, ASH challenged newly promulgated CAB regulations ER-1091 7 and ER-1124 8 as inadequately protective of the rights of non-smoking airline passengers. This court issued six sixty-day stay orders based on the Board's representations that they were proceeding with consideration of more stringent regulations. Ultimately, over two years later, the Board promulgated ER-1245, 9 a regulation that eliminated three major protections afforded non-smokers by the earlier challenged rules. 10 ASH challenged this new rule, claiming that it failed to provide an adequate statement of basis and purpose for the rescission of the three earlier protections. In addition, ASH claimed that the Board's rejection of three proposed regulations was without adequate basis or purpose. 11 This challenge to ER-1245 was consolidated with the earlier appeal. ASH prevailed on all claims, and ER-1245 was vacated.

B. Separability of Claims

The Board argues that 340.1 of the 772.1 hours of attorney time claimed by ASH should be disallowed because those hours were expended on the 1979 challenge to ER-1091 and ER-1124. Under the EAJA, fees may be awarded only to prevailing parties. 12 The Board claims that ASH was a prevailing party only with respect to the 1981 regulations. Since the 1979 challenge was never resolved, the Board contends, ASH cannot be compensated for hours expended on the earlier appeal. We find the Board's contention without merit.

"In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and In this case, however, the entire litigation centered on a set of common issues. Although the Board put forward a plethora of more-or-less stringent regulations and proposals, ASH maintained a consistent argumentative theme: the rights of non-smoking airline passengers were, to a greater or lesser extent depending upon the Board's particular permutation of the moment, being inadequately protected. As the Board concedes, the adoption of ER-1245 "was the culmination of a rulemaking proceeding that began in 1976...." 15 Both the 1979 and 1981 challenges "involve[d] a common core of facts" 16 and were "based on related legal theories." 17 These two claims, which the court subsequently consolidated into a single appeal, were part of a continuous process of regulation on a single topic. They were "all part and parcel of a single matter." 18 Hence, we decline to disallow categorically the hours expended on the 1979 appeal.

                legal theories." 13   Legal work in such cases can be easily compartmentalized.  In such cases where "the claims asserted 'are truly fractionable,' " counsel should be compensated only for work on those distinct claims that prevailed. 14
                

The Board also argues that ASH is not entitled to compensation for its work supporting the Board's position against the intervenor's claim that the Board had no power to regulate smoking aboard aircraft. ASH contends that its work was in the interest of the air traveling public and that it alone cited a precedent which this court relied upon in its opinion. We agree with the Board that ASH cannot be considered a "prevailing party" on an issue on which both ASH and the government took the same position. 19 At the very least, the Board's position on this issue was "substantially justified" and, consequently, fees cannot be awarded on that issue under the EAJA. 20 ASH's work on this issue, however, appears to have constituted only a very small proportion of their total effort. In all, approximately three pages of the ASH reply brief are devoted to this issue. Hence, while this time is not compensable, its effect on the application is minimal; it will be reflected in our consideration of the affidavit of Mr. Pfeiffer, the lawyer primarily responsible for preparation of the reply brief.

C. The $75 Per Hour Limit

ASH has requested an hourly rate of $110 for the work of its Director, John F. Banzhaf III, and an hourly rate of $100 for its General Counsel, Paul N. Pfeiffer. To support its claim for hourly rates above $75, ASH cites a number of cases in which attorneys of comparable prominence and experience were compensated at rates ranging from $110 to $125 per hour. 21 None of the The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ...

                fee awards in these cases, however, came under the EAJA;  all were awarded under statutes without an explicit statutory fee cap. 22   The EAJA, however, provides that
                

(ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justified a higher fee. 23

In enacting this fee limitation, Congress attempted to provide full market compensation for successful litigants while, at the same time, containing costs. 24 The two special factors specifically enumerated in the statute--cost of living rises and limited availability of counsel--facilitate flexible adjustment to special economic circumstances. The cost of living language reflected congressional awareness that, with inflation, the fee limiting provision could defeat the purpose of the statute. 25 The limited availability of counsel provision is directed at another unusual situation: where specialized legal services cannot be obtained in the market for $75 or less.

ASH first contends that the $75 limit does not apply because the Board acted in bad faith. A finding of bad faith would allow ASH to claim fees under a section of the EAJA that has no fee-limiting provision. 26 In addition, if acting in bad faith, the Board itself rather than the Treasury would have to pay the fees. 27

ASH asserts two bases for its claim of bad faith: 1) that the Board, in gaining six stays from this court, represented falsely that it was considering more stringent regulations "in view of the result embodied in ER-1245" 28 and 2) that the Board failed to proceed on a number of enforcement actions and complaints filed by ASH. 29 Neither contention is sufficient to warrant a finding of bad faith. The Board's representations did not bind it to promulgate more stringent rules. The shift of direction in 1981 came after a two-year period of consideration and a change in membership on the Board. We have no basis to conclude that the Board's stay requests were intentionally deceptive and in bad faith. Nor can the Board's failure to pursue other...

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