Hirschey v. F.E.R.C.
| Decision Date | 15 November 1985 |
| Docket Number | No. 82-2170,82-2170 |
| Citation | 250 U.S.App.D.C. 1,777 F.2d 1 |
| Parties | Mary Jane Ruderman HIRSCHEY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Long Lake Energy Corporation, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Federal Energy Regulatory commission.
William J. Kenney and Frank Koszorus, Jr., Washington, D.C., were on motion for attorneys' fees and expenses.
Jerome M. Feit, Ellen K. Schall and Andrea Wolfman, Washington, D.C. were on response to motion for attorneys' fees and expenses.
Before EDWARDS and SCALIA, Circuit Judges, and VAN DUSEN, * Senior Circuit Judge, United States Court of Appeals for the Third Circuit.
ON MOTION FOR ATTORNEYS' FEES AND EXPENSES
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
The petitioner, Mary Jane Ruderman Hirschey, seeks an award of attorneys' fees under the Equal Access to Justice Act ("EAJA") 1 as the prevailing party in a case against the Federal Energy Regulatory Commission ("FERC") 2 under the Federal Power Act ("FPA"). 3 In response to her initial petition for fees and costs, we held that Ms. Hirschey is eligible for an award of fees, but not costs, for "proceedings at the judicial level." 4 We now determine the amount of fees due.
The case underlying this fee petition concerned Hirschey's claim for an exemption from the licensing requirements of the FPA in order to develop a small hydroelectric project. Petitioner filed an application for an exemption in December, 1981, which became effective on June 7, 1982. On July 20, 1982, the Commission, sua sponte, issued an order vacating the petitioner's exemption. Hirschey subsequently filed a petition for review with this court, which was dismissed for failure to exhaust administrative procedures. 5 After a futile attempt to file a petition for rehearing with the Commission, Hirschey filed a second petition for review with this court. On this second attempt, we upheld her claim to an exemption in Hirschey I. 6 Petitioner then applied in a timely fashion for an award of attorneys' fees and costs pursuant to EAJA.
Due to a paperwork error in the Court Clerk's office, consideration of the petitioner's EAJA claim was greatly delayed. In Hirschey II, 7 we held that attorneys' fees may be granted under EAJA in a case arising under the FPA, although section 317 of the FPA 8 bars an award of costs. 9 We also determined that the petitioner is eligible for a fee award under EAJA 10 for proceedings at the judicial level and established a timetable for additional filings and for discovery by the Government. We remanded the petitioner's request for fees for proceedings at the agency level for consideration and initial determination by the Commission. 11
The petitioner requests this court to assess fees against the Government for four separate stages of the proceedings in this case. First, she claims that certain aspects of her representation before the agency were necessarily related to the issues successfully raised on appeal and that she is entitled to recover for this portion of the proceedings before FERC. We clearly rejected this claim in Hirschey II when we remanded the matter for initial determination by the Commission.
Second, the petitioner submits the hours spent on her first unsuccessful appeal to this court. Because this appeal was dismissed as premature, petitioner was not a "prevailing party" 12 in the action. Petitioner thus fails to meet the EAJA requirements 13 for an award of fees for her initial appeal. The Commission concedes that some of the legal research done for the unsuccessful appeal was useful in Hirschey I and should be compensated. We agree, and find that, of the hours in question, 35.55 hours of research (21.5 partner and 14.05 associate) are related to Hirschey I and eligible for a fee award.
Third, Hirschey has documented the hours spent on the appeal in Hirschey I between September 20, 1982, and March 1, 1983. In discovery, the Commission identified certain hours that were related to proceedings before the agency and to Hirschey's unsuccessful effort to oppose intervention by Long Lake Energy Corporation. We have eliminated those hours and determine that 319.5 partner hours and 8.6 associate hours are reasonably compensable for this stage of the proceedings.
Fourth, the petitioner requests fees for work connected with the EAJA fee application. Cases in this Circuit have routinely awarded reasonable fees incurred in requesting fees under fee-shifting statutes, 14 and we find that Hirschey should receive fees for expenses incurred in her successful EAJA action. 15 Although the Commission does not challenge the accuracy of the time claimed, it argues that the fee award for this work should be limited to the litigation of Hirschey II. On this point, the Commission suggests that petitioner's supplemental fee application was made necessary only because her initial fee application was inadequate. However, no such implication should be drawn from our opinion in Hirschey II. The Commission overlooks the fact that the litigation on fees was extended because it requested discovery. In addition, the focus in Hirschey II was not on whether the petitioner's claims for fees were reasonable, but on whether Hirschey was entitled to an award at all. If the fee application has been bifurcated, it is because of the Commission's opposition to Hirschey's EAJA claim. Accordingly, since the hours claimed are not otherwise in dispute, we find that the petitioner is entitled to include 319.25 partner hours and 82.7 associate hours for work on the fee application.
The appropriate rate for "fees or other expenses" under EAJA, 28 U.S.C. Sec. 2412(d)(1)(A), is defined in subsection 2412(d)(2), as follows:
(2) for the purposes of this subsection--
(A) "fees and other expenses" includes ... reasonable attorney fees (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 ... (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, justifies a higher fee.);
The petitioner claims that the $75 per hour statutory cap should be adjusted upward for cost-of-living increases and for special factors in the litigation. We agree that the statutory maximum on fees should be increased to reflect changes in the cost-of-living. We also note that this court has held in EAJA claims that we may look beyond the single factor stipulated in the statute to special factors, such as "the contingent nature of success, delay in payment or quality of representation," in determining whether to adjust the statutory cap. 16 We find that delay in payment is the only special factor that warrants an increase in the statutory rate in this case.
The petitioner urges that an additional increase in the fee award is appropriate because the delay caused by the Commission's illegal conduct has added to her costs for developing her hydropower project. This argument misconstrues the purposes of EAJA. The fee limitation reflects an attempt to provide reasonable compensation for successful litigants, while simultaneously containing costs. 17 EAJA does not provide general indemnification against the consequences of litigation or of agency action.
We likewise find inapposite the petitioner's claim that ex parte contacts between a FERC Commissioner and parties with interests opposed to petitioner's on the issue of FPA exemptions constitutes bad faith by the Commission which justifies a rate increase. Bad faith sometimes may be a consideration under subsection 2412(b), but the question of impermissible ex parte contacts was not an issue in either Hirschey I or Hirschey II, and the belated attempt to raise the question now is unavailing. The award to petitioner is therefore limited to a recovery of fees under 2412(d)(1)(A).
We also reject the petitioner's invocation of a special factor for contingency. 18 An upward adjustment of an award to compensate for the risk of losing a lawsuit "is permissible only in an exceptional case." 19 Here the petitioner has conceded that the risk in her case was far from exceptional by stating that "the probability of ultimately prevailing on the issue was not seriously in doubt to Counsel." 20 We agree that the result in Hirschey I was hardly surprising.
As noted above, petitioner's request for a cost-of-living increase in the $75 rate is an appropriate adjustment as authorized by subsection 2412(d)(2) of EAJA. We reject the Commission's argument that recent amendments to EAJA, 21 which did not alter the $75 fee limit, compel us to regard that amount as fully compensatory and deny a cost-of-living increase. 22 First, the original enactment of EAJA applies to this case. 23 Second, even if the amendments applied, they do not alter any aspect of 28 U.S.C. section 2412(d)(2)(A). The provision for a cost-of-living increase remains unchanged and therefore applies as it did originally. Consequently, we approve a cost-of-living increase in the statutory cap to $89.73. 24
We should emphasize here that the statutory cost-of-living adjustment authorized by subsection 2412(d)(2) increases the maximum rate designated in the same subsection, not the attorneys' prevailing market rate. The $89.73 reflects this adjustment. In the instant case there is no dispute that both the actual billed rate and the prevailing market rate for partners' hours exceeded $89.73 throughout the entire period of this litigation. Hence the petitioner is entitled to compensation for partners' hours at a rate of $89.73....
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