Fabi Const. Co., Inc. v. Secretary of Labor

• Decision Date: 29 August 2008
• Docket Number: No. 06-1244.,06-1244.
• Citation: 541 F.3d 407
• Parties: FABI CONSTRUCTION COMPANY, INC. and Pro Management Group, Petitioners v. SECRETARY OF LABOR, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

541 F.3d 407

FABI CONSTRUCTION COMPANY, INC. and Pro Management Group, Petitioners v. SECRETARY OF LABOR, Respondent.

No. 06-1244.

United States Court of Appeals, District of Columbia Circuit.

August 29, 2008.

On Petition for Review of an Order of the Occupational Safety and Health Administration.

On Application for Attorneys' Fees.

Joseph P. Paranac, Jr., Leclairryan, Newark, NJ, for Petitioners.

John Shortall, Michael Patrick Doyle, Nathaniel I. Spiller, Joseph M. Woodward, Associate Solicitor, U.S. Department of Labor (LABR), Office of the Solicitor, Washington, DC, for Respondent.

Before SENTELLE, Chief Judge, and GINSBURG and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

Fabi Construction, Inc. and Pro Management Group (hereinafter "Fabi") petition this court for an award of attorneys' fees and costs in the amount of $569,031.38 incurred in connection with the defense of citations issued by the Secretary of Labor (hereinafter "Secretary"). See Fabi Constr. Co. v. Sec'y of Labor, 508 F.3d 1077 (D.C.Cir.2007). Fabi has submitted its attorneys' billing records along with its petition, and the Secretary has filed her opposition. After examination of the billing records and consideration of the Secretary's objections, we find that Fabi is entitled to an award of attorneys' fees and costs, but not for the full amount sought. We conclude, for the reasons stated below, that Fabi is entitled to an award in the amount of $165,304.87.

I. BACKGROUND

We set forth in detail the background of this case in Fabi, 508 F.3d at 1079-80. For our purposes here we note that Fabi was involved in the construction of a parking garage, providing labor, materials, and equipment for cement work. While Fabi was pouring concrete on the eighth level, levels four through eight collapsed, killing four workers and injuring numerous others. The Occupational Safety & Health Administration, an agency of the U.S. Department of Labor, investigated the accident and cited Fabi for six violations of the Occupational Safety & Health Act. Two of the violations were later withdrawn by the Secretary. The remaining violations were litigated before an Administrative Law Judge ("ALJ"), and his decision was appealed to this court. In short, several of the litigated violations were affirmed while those remaining were vacated.

II. DISCUSSION

Fabi now seeks an award of attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Under sections 2412(a)(1), (b), and (d)(1)(A), a court may award "costs" and "reasonable fees and expenses" of attorneys to the "prevailing party" in any civil action brought by the United States or any United States agency, including "proceedings for judicial review of agency action." Fees and expenses are to be awarded to a prevailing party "unless the court finds that the position of the [Government] was substantially justified." 28 U.S.C. § 2412(d)(1)(A). And pursuant to section 2412(d)(2)(B)(ii), a party is eligible for an award if its net worth "did not exceed $7,000,000 at the time the civil action was filed. . . ."

As an initial matter we find that Fabi has submitted sufficient documentation showing that its net worth does not exceed $7 million. See Broaddus v. U.S. Army Corps of Eng'rs, 380 F.3d 162, 166-69 (4th Cir.2004). Using EAJA rates, Fabi states that its total attorneys' fees expended in litigating the merits of the case amounted to $645,881.15, and its total costs and expenses amounted to $88,740.77. After making certain adjustments Fabi requests an award in the amount of $530,543.95,¹ plus $37,590.60 in attorneys' fees and $896.83 in costs and expenses incurred in pursuing its application for attorneys' fees, for a total award of $569,031.38. In our discussion below, we consider Fabi's fee petition and make an award in light of the "reasonable" and "substantially justified" standards set forth in the EAJA.

Attorneys' fees

Reasonableness

Lumping tasks together. In In re Olson, 884 F.2d 1415, 1428-29 (D.C.Cir. 1989), we noted that "when an attorney bill[s] for more than one task in a day, the court is left to approximate the amount of time which should be allocated to each task. With such inadequate descriptions the court cannot `determine with a high degree of certainty,' as it must, that the billings are reasonable." For example, on May 4, 2004, an attorney entry for 3.8 hours indicated that the following five tasks were performed: "Review articles in preparation for conference call regarding public relations issues; participate in teleconference with R. Cossack, S. Yohay, K. Dunne, B. Ficken, S. Perillo and A. Zappone, regarding same; meet with S. Yohay regarding demolition issues; teleconference with RJR representatives regarding same; draft letter to D. Sherman regarding same." Also, on November 1, 2004, a lead attorney submitted an entry for 2.7 hours for the following nine tasks: "Telephone conference with D. Sherman, S. Yohay regarding upcoming settlement proposal; telephone conference with S. Demitrio, S. Yohay regarding deposition schedule and discovery orders issued by Judge Rooney; followup telephone conference with S. Yohay regarding depositions; review correspondence from Keating counsel F. Jacoby regarding same; telephone conference with S. Yohay regarding same; contact N. Devine regarding preparation of settlement proposal for submission to D. Sherman; review and revise settlement proposal; review press coverage of one-year anniversary of garage collapse." Fabi has indicated that it has made deductions for work done on public relations and press coverage, but because those tasks have been lumped together with other tasks we are unable to ascertain with certainty whether the correct deductions have been made.

Inadequate detail. In In re Meese, 907 F.2d 1192, 1204 (D.C.Cir.1990) (per curiam), the court made deductions to the requested attorneys' fees award because "[t]he time records maintained by the attorneys, paralegals and law clerks are replete with instances where no mention is made of the subject matter of a meeting, telephone conference or the work performed during hours billed." The billing entries here are replete with such entries. There are, for example, numerous entries concerning telephone calls, telephone conferences, email exchanges, and meetings that give no further information of what these communications concerned. See, e.g., entries on: Apr. 6, 2004 ("Telephone conference with L. Daley regarding various matters"); May 5, 2004 ("telephone conference with S. Perillo; telephone conferences with B. Ficken"); July 20, 2004 ("reviewing email from O. Guedelhoefer re numerous issues"); Aug. 11, 2004 ("telephone conference with D. Morikawa Site-Blauvelt counsel"); Sept. 13, 2004 ("Meeting in Philadelphia with Pepper Hamilton team, and with A. Zappone and S. Perillo"); Mar. 7, 2005 ("Meet at Pepper Hamilton"); Mar. 17, 2005 ("phone conferences with C. Guedelhoefer"); Mar. 29, 2005 ("phone conferences with S. Demetrio, D. Tigue, J.F. Lagroterria, C. Reynolds"); Apr. 6, 2005 ("meet with RR & J at Pepper"); Oct. 17, 2005 ("confer with Corvo and Kreig"); Nov. 15, 2005 ("phone conference with Horty & Horty"); Oct. 9, 2007 ("draft e-mails to S. Gordon").

Relevancy. We note that there are various entries that do not appear to be relevant to defending the Secretary's allegations and therefore may not be included in an award. See, e.g., entries on July 12, 2004 ("review motion concerning extrajudicial statements filed in state litigation"); Sept. 24, 2004 ("call from K. Levin re recent status conference in state court matter"); Oct. 27, 2004 ("calls from S. Perillo and A. Zappone re reporter's interest in OSHA Report"); Nov. 1, 2004 ("call from S. Perillo re press coverage"); May 16, 2005 ("telephone conference with R Deluca re: state-court litigation"); July 5, 2005 ("phone conference with R. Deluca regarding civil lawsuit, status, strategy").

Taking all of the above-mentioned billing defects into consideration—i.e., tasks lumped together, inadequate detail, and irrelevancy—we will reduce by 25 percent the amount of $645,881.15, which, as noted above, Fabi states is the total for attorneys' fees expended in litigating the merits of this case. See Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C.Cir.2004) (award reduced by fifty percent for, among other deficiencies, multiple tasks lumped together, inadequate detail, and irrelevancy). This reduction yields an amount of $484,410.86.

Position substantially justified

Under the EAJA, attorneys' fees may be awarded to the "prevailing party" in an action brought by a United States agency. 28 U.S.C. § 2412(a)(1). Fees and expenses are to be awarded to a prevailing party "unless . . . the position of the [Government] was substantially justified." 28 U.S.C. § 2412(d)(1)(A). It is not sufficient to satisfy the statute that the government's position has not prevailed. The statutory structure assumes that "the Government . . . could take a position that is substantially justified, yet lose." Pierce v. Underwood, 487 U.S. 552, 569, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Here, on Citation 1, Item 1, Instance (a); Citation 1, Item 1, Instance (b); and Citation 1, Item 5, the Secretary's position was affirmed, and consequently Fabi was not the prevailing party on those issues, and is not eligible for attorneys' fees in defense of them. Citation 1, Item 3, and Citation 1, Item 4, were withdrawn by the Secretary before trial. The Secretary concedes that she was not substantially justified in her position on those items, and therefore Fabi is eligible for attorneys' fees in defense of them. Remaining for resolution as to whether the Secretary was justified in her position are Citation 1, Item 1, Instance (c); Citation 1, Item 2; and Citation 2, Item 1.

Citation 1, Item 1, Instance (c). In Citation 1, Item 1, Instance (c), the Secretary charged Fabi with...