Atlantic Fish Spotters Assoc. v. Daley, 99-1767

• Decision Date: 04 January 2000
• Docket Number: No. 99-1767,99-1767
• Parties: (1st Cir. 2000) ATLANTIC FISH SPOTTERS ASSOCIATION, JONATHAN E. MAYHEW, RAYNOLD F. BROOKS, II, ROBERT H. SAMPSON, Plaintiffs, Appellees, v. WILLIAM M. DALEY, as he is the United States Secretary of Commerce, Appellant, Heard
• Court: U.S. Court of Appeals — First Circuit

Page 488

205 F.3d 488 (1st Cir. 2000)

ATLANTIC FISH SPOTTERS ASSOCIATION, JONATHAN E. MAYHEW, RAYNOLD F. BROOKS, II, ROBERT H. SAMPSON, Plaintiffs, Appellees, v. WILLIAM M. DALEY, as he is the United States Secretary of Commerce, Appellant,

No. 99-1767

United States Court of Appeals for the First Circuit

Heard January 4, 2000

Decided March 6, 2000

David C. Shilton, Department of Justice, with whom Lois J. Schiffer, Assistant Attorney General, Environment & Natural Resources Division, John A. Capin, Assistant United States Attorney, Mark A. Brown, Greer S. Goldman, Department of Justice, and Mariam McCall, National Oceanic and Atmospheric Administration, Office of General Counsel, were on brief for appellant.

Andrew D. Herman with whom David E. Frulla, Brand & Frulla, P.C., H. Reed Witherby and Smith & Duggan were on brief for appellees.

Before Torruella, Chief Judge, Boudin and Lynch, Circuit Judges,

BOUDIN, Circuit Judge.

In the district court, the plaintiffs prevailed in overturning an administrative regulation and then sought attorney's fees from the United States under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA"). The district court awarded such fees to the plaintiffs' counsel, finding (in the statutory language) that the government's position was not "substantially justified." On this appeal by the United States, the only issue is whether the district court was entitled in computing the fees to exceed the presumptive statutory cap for attorneys fees of $125 per hour, id. § 2412(d)(2)(A).

The story begins with the adoption in July 1997 of a new regulation by the Secretary of Commerce. Under the aegis of the Atlantic Tunas Convention Act of 1975, 16 U.S.C. § 971d(a), the Secretary (acting through the National Marine Fisheries Service) prohibited the use of spotter planes by or for persons holding "general" Atlantic bluefin tuna catch permits. 62 Fed. Reg. 38,485 (1997) (codified before repeal at 50 C.F.R. § 285.31(a)(40)). Such planes have been used for some time by some fishing vessels to spot tuna and guide boats to them. Curiously, the regulation did not preclude the use of the planes by permit holders in the "harpoon" or "purse seine net" category. Id.

Suit was brought in the district court to challenge the regulation. The plaintiffs included a group of owners and pilots of spotter planes, their trade association, and the owners of vessels who have employed spotter planes. The district court reviewed the regulation based on the administrative record and found that the Secretary's various rationales for the regulation were unsupported and that the regulation drew distinctions inconsistent with the Secretary's rationales. Atlantic Fish Spotters Ass'n v. Daley, 8 F. Supp. 2d 113 (D. Mass. 1998).

The flavor of the arguments and the district court's treatment of them is easily conveyed. In addition to permits, the tuna catch is regulated through various quotas, and the Secretary claimed that the use of spotter planes impeded monitoring of tuna stocks by speeding up catches. By contrast, the court found that there was no apparent correlation between the use of spotter planes and the rate at which the quotas were achieved. In any event, the court could not understand why, even if spotter planes did speed up catches, their use was forbidden only for general category permit holders.

The Secretary also argued that pilots cannot successfully gauge the size of fish from the air so their efforts increased the improper harvesting of undersized tuna; the district court found that the evidence did not support this position but probably pointed in the other direction. The court also found unpersuasive the Secretary's claim that the spotter planes posed safety dangers, pointing out that this view would justify banning such planes for all categories of permit holders and not just one category. The court also noted that much of the record consisted of complaints by fishermen that plane spotting was "unfair."

At least some of these objections may have answers but the government chose not to appeal the district court's judgment. Instead, choosing to fight another day, it rescinded the old regulation, see Atlantic Tuna Fisheries; Atlantic Bluefin Tuna, 63 Fed. Reg. 36,611 (1998), and it has proposed a new and broader prohibition on spotter planes, see Atlantic Highly Migratory Species Fisheries; Atlantic Bluefin Tuna Fishery; Regulatory Adjustment, 64 Fed. Reg. 29,984 (1999), which is not now before us. The remainder of the district court case, therefore, was devoted to plaintiffs' claim that the government's position was not "substantially justified" and that the statute therefore entitled them to attorney's fees. The application was supported by the declaration of lead counsel, David Frulla of Washington, D.C., who claimed $175 per hour for his time and that of local counsel and $150 for the time of his less experienced associate.

After further proceedings, the district court entered an order in May 1999 granting to plaintiffs attorney's fees of $55,255 plus a modest amount of other costs. The statute provides that "attorney fees shall not be awarded in excess of $125 per hour unless the court determines that . . . a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee."¹ Pertinently, the district court found that because of Frulla's expertise, his time was properly billed at $175 per hour, although it reduced the hourly rate for the other two attorneys to $125.

The government now appeals. It has abandoned its earlier argument that its district court position in defense of the Secretary's regulation was substantially justified. Nor does it contest the hours claimed by any of the attorneys or the $125 per hour awarded to local counsel or Frulla's associate. Rather, it argues only--but on multiple grounds--that the district court erred in exceeding the $125 per hour cap as to Frulla's fee. Although the amount of the differential (about $12,000) is not huge, the government has a continuing interest in how the cap conditions are interpreted and applied.

On appellate review, the distinction between "interpreting" and "applying" is of some importance. A legal ruling, whether explicit or otherwise, as to the meaning of the statute is almost always an issue of law reviewed de novo; judgment calls as to how a general standard applies to a set of facts are here, as is usually but not always the case, reviewed with some deference; and findings of fact are also reviewed with deference, the usual rubric (if they are judge-made findings) being "clear error." See Massachusetts Food Ass'n v. Massachusetts Alcoholic Beverages Control Comm'n, 197 F.3d 560, 567 (1st Cir. 1999); Public Serv. Co. v. Patch, 167 F.3d 15, 22 (1st Cir. 1998).²

The government's first objection is that, in the nature of things, "Frulla's 'fisheries law' experience is not the sort of practice specialty that can qualify for an enhanced fee" under the statute. This objection might at first seem only crudely related to the statutory criterion--"a special factor, such as the limited availability of qualified attorneys for the proceedings involved"--but the connection is provided by Pierce v. Underwood, 487 U.S. 552 (1988). In that case, the Supreme Court provided a gloss for the just-quoted statutory language, saying:

the exception for 'limited availability of qualified attorneys for the proceedings involved' must refer to attorneys 'qualified for the proceedings' in some specialized sense, rather than just in their general legal competence. We think it refers to attorneys having some distinctive knowledge or specialized skill needful for the litigation in question--as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation. Examples of the former would be an identifiable practice specialty such as patent law, or knowledge of foreign law or language. Where such qualifications are necessary and can be obtained only at rates in excess of the $75 cap, reimbursement above that limit is allowed.

Pierce, 487 U.S. at 572.

Building on the three examples given by the Supreme Court (patent law or foreign law or language), the government argues in effect that the limited availability test can only be met if the lawyer has an expertise that requires some special discipline over and above the expertise that any experienced counsel might develop in his own specialty. Of course, patent law is itself a specialty, but it has its own required credentials for practice at the Patent and Trademark Office and in many (but not all) cases may involve some scientific knowledge as well. See Perales v. Casillas, 950 F.2d 1066, 1078 n.15 (5th Cir. 1992). Anyway, the government seems to think that most highly complicated bodies of technical law could never qualify.

The government cites some circuit authority that could be read in its favor,³ while readily conceding that the Ninth Circuit has taken a more liberal view of the statute.⁴ However, we do not read the Supreme Court or most of the circuit cases as adopting a mechanical rule that...