Agricultural Retailers Association and The Fertilizer Institute, Petitioners v. United States Department of Labor and Occupational Safety & Health Administration, Respondents (2017)

AMENDED ORDER

Petitioners filed a corrected motion for award of attorneys' fees and costs. Thereafter, respondents filed an opposition thereto, to which petitioners filed a reply. We grant petitioners' request, in part. Petitioners were the “prevailing part[ies]” in this litigation, and respondents have failed to carry their burden to show that their position was “substantially justified,” entitling petitioners to reasonable attorney's fees and expenses under the Equal Access to Justice Act. 28 U.S.C. § 2412(d)(1)(A).

Petitioners' request for $363,808.22, however, is unreasonable. In Precision Concrete v. NLRB, 362 F.3d 847, 853 (D.C. Cir. 2004), we cut in half a party's request for “twelve and a half weeks at forty hours per week of professional time,” noting that “[t]he case was not one of great complexity or based on an unusually voluminous record.” This case—which was resolved without oral argument, did not include a voluminous record, and presented one legal question—merits similar treatment. We therefore award petitioners attorney's fees for eight forty-hour work weeks, or 320 hours.

We also conclude that petitioners have failed to show a “special factor” justifying compensating their attorneys in excess of the Equal Access to Justice Act's $125-per-hour cap. 28 U.S.C. § 2412(d)(2)(A). But given that respondents concede that petitioners' attorneys are eligible for a cost of living adjustment for operating in the Washington/Baltimore area, we will lift the Act's cap to $193.75 per hour for work completed in 2015 and $196.25 per hour for work completed in 2016. Because much of the legal work for which petitioners are requesting reimbursement was split between those two years, we award fees for 160 hours at the 2015 rate and 160 hours at the 2016 rate. Combined with the $1,483.22 of costs requested, this results in a total award of $63,883.22. For the foregoing reasons, it is

ORDERED that the motion be granted in part and petitioners be awarded attorneys' fees and costs in the amount of $63,883.22. This sum is payable directly between the parties. Payment should not be submitted to the Clerk.

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail Deputy Clerk

Per Curiam