United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 29, 2008

No. 06-1244

FABI CONSTRUCTION COMPANY, INC. AND

PRO MANAGEMENT GROUP,

PETITIONERS

v.

SECRETARY OF LABOR,

RESPONDENT

On Petition for Review of an Order of the

Occupational Safety and Health Administration

On Application for Attorneys’ Fees

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.
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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withdrawn by the Secretary.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
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1

Fabi asserts that this amount excludes any fees expended for

press coverage, transportation, mileage, Federal Express and

messenger services, and hotels.

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
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‘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
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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 (SiteBlauvelt 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
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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 (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 a violation for not

placing bottom steel, a type of reinforcing steel, in accordance

with industry standards and with the structural and/or shop

drawings. In the proceedings below the Administrative Law
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Judge concluded that the Secretary had failed to establish by a

preponderance of the evidence that a violation had occurred.

The ALJ vacated Instance (c) on the ground that “evidence

regarding industry recognition of the failure to include bottom

steel was equivocal . . . [T]here was a dispute among the experts

regarding whether the bottom bars depicted in the structural

drawings would have added to the stability of the structure.”

The Secretary did not appeal the ALJ’s decision on this issue.

Because the Secretary’s position, while unsuccessful, was

supported by expert testimony, we conclude that it was

substantially justified, and therefore Fabi is not eligible for

attorneys’ fees on this issue.

Citation 1, Item 2. In Citation 1, Item 2, the Secretary

charged Fabi with a violation for not having shoring plans

available at the worksite for multiple levels (P3 to P8) of the

structure. In the proceedings below, the ALJ vacated Citation

1, Item 2, holding that Fabi had shoring plans for level P2

onsite, and level P2 was sufficiently similar to levels P3 through

P8 so that Fabi was not required to have shoring plans for the

other levels onsite. The Secretary did not appeal the ALJ’s

decision on this issue. Because it appears that the record, as

recounted by the ALJ, was ambiguous and the issue was not

clear cut, we conclude that the Secretary’s position was

substantially justified, and therefore Fabi is not eligible for

attorneys’ fees on this issue.

Citation 2, Item 1. In Citation 2, Item 1, the Secretary

charged Fabi with a violation for making “formwork”

(specifically the slabs below level P8) incapable of supporting

the loads imposed by level P8. Fabi argued to the ALJ that the

term “formwork” in the regulation at issue includes only

temporary forms supporting newly poured concrete during

construction. The ALJ concluded that the regulation governs

permanent types of formwork. On appeal we vacated this item,
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agreeing with Fabi “that the plain language of ‘formwork’ in the

context of the regulation cannot include permanent parts of

structures like slabs.” Fabi I, 508 F.3d at 1086. We therefore

held that the permanent structures that were constructed

improperly were not “formwork” under the regulation. We

concluded that “the Secretary’s . . . interpretation of formwork

. . . is beyond the bounds of reasonableness,” id., and that “the

regulations at issue d[id] not give [Fabi] fair notice of the

Secretary’s interpretation.” Id. at 1088. Furthermore, we

vacated this citation under a highly deferential standard of

review and concluded that OSHA had violated Fabi’s right to

due process. Id. We therefore conclude that the Secretary’s

position was not substantially justified, and Fabi is therefore

eligible for a fee award on this item.

In sum, the Secretary took eight positions: three in Citation

1, Item 1, and one each in Citation 1, Items 2 through 5, and

Citation 2, Item 1. The Secretary was affirmed on three of those

eight positions (Citation 1, Item 1, Instance (a); Citation 1, Item

1, Instance (b); and Citation 1, Item 5), and as noted above we

find her position substantially justified on another two (Citation

1, Item 1, Instance (c), and Citation 1, Item 2). Fabi is therefore

not eligible for an attorneys’ fees award on these five issues. Of

the remaining three positions, the Secretary has conceded that

her position was not substantially justified on two (Citation 1,

Item 3, and Citation 1, Item 4), and as noted above we have

determined that her position on the third (Citation 2, Item 1) was

not substantially justified. We will therefore award attorneys’

fees to Fabi for defending against those citations.

Our final task in calculating an award of attorneys’ fees is

to determine the amount of the award. Ideally, we would review

the billing entries for work done on each citation and calculate

the award accordingly. But the billing entries submitted are of

very little help in that they rarely mention how much time has
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been spent on each issue. We will instead assume that an equal

amount of time was spent in connection with each issue. See

American Wrecking Corp. v. Secretary of Labor, 364 F.3d 321,

329 (D.C. Cir. 2004). As noted above, Fabi is eligible for fees

on three of the eight positions taken by the Secretary, and we

will therefore multiply the last amount noted above,

$484,410.86, by 3/8, resulting in an amount of $181,654.07. As

the Secretary points out, however, allocating fees in this manner,

i.e., dividing total fees expended by number of eligible items,

gives Fabi the same compensation for the withdrawn items as it

does for the item that was tried before the ALJ, raised before the

full Commission, and then appealed to this court. In order to

account for this discrepancy, we will reduce the award for the

withdrawn items by 50 percent. To calculate this amount, we

will first divide $181,654.07 by three, resulting in an amount of

$60,551.36 for each of the three eligible items. We will then

reduce that amount by 50 percent, resulting in an award of

$30,275.68 for each of the two withdrawn items. The total

award for attorneys’ fees is therefore $30,275.68 (for Citation 1,

Item 3) + $30,275.68 (for Citation 1, Item 4) + $60,551.36 (for

Citation 2, Item 1), which sums to $121,102.72.

Costs and expenses

Fabi states that it has expended a total of $88,740.77 for

costs and expenses in litigating the merits of the case. We find,

however, the list of costs and expenses inadequately detailed,

filled with generic references such as “transcripts,”

“publication,” and “document production.” To reflect these

defects in the costs and expenses billings, we will reduce, as we

did above for attorneys’ fees, the requested amount by 25

percent. See In re Meese, 907 F.2d at 1204 (reducing

petitioner’s award for costs because of inadequate

documentation); In re Donovan, 877 F.2d 982, 994-95 (D.C. Cir.

1989) (fee applicant must provide adequate documentation of
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reasonableness of fees and costs incurred). This reduction (.75

x $88,740.77) yields an amount of $66,555.58. We also must

make a further deduction to reflect Fabi’s award eligibility on

only three of the eight positions taken by the Secretary. As we

did calculating the attorneys’ fees above, we will multiply the

last amount stated by 3/8, resulting in a total award for costs and

expenses of $24,958.34.

Fee application fees

Fabi further seeks $37,590.60 in attorneys’ fees and

$896.83 in costs and expenses it claims were expended on

preparing and defending its fee application. This amount for

attorneys’ fees was calculated using 236.8 hours of attorneys’

fees billed by Fabi for the fee application, which turns out to be

nearly six 40-hour weeks of attorney time. In her response the

Secretary contends that this length of time appears excessive for

work done on the application, and we agree. See, e.g., American

Wrecking Corporation v. Sec’y of Labor, 364 F.3d 321, 331

(D.C. Cir. 2004) (three 40-hour weeks spent compiling

attorneys’ fees application found to be “an excessive amount”).

We will therefore reduce the requested amount for attorneys’

fees by half, see id., resulting in an amount of $18,795.30. For

the same reason we will reduce by half the request for costs and

expenses, resulting in an amount of $448.42.

III. CONCLUSION

For the reasons set forth above, it is ordered that Fabi be

awarded $121,102.72 for attorneys’ fees and $24,958.34 for

costs and expenses in litigating the merits of this case, plus

$18,795.39 in attorneys’ fees and $448.42 in costs and expenses

incurred pursuing its application for attorneys’ fees, for a total

of $165,304.87.