Slip Op. 04-118 UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: GREGORY W. CARMAN

____________________________________ : FORMER

EMPLOYEE S OF : TYCO ELECTRONICS, FIBER : OPTICS DIVISION, : : Plaintiffs, :

: v. : Court No. 02-00152 : UNITED STATES DEPARTMENT : OF LABOR, :

Defendant. :

: ____________________________________: [Plaintiffs’ Application for Fees and Other Expenses Pursuant to the Equal Access to Justice Act is gr ante d with

cert ain a djust ments .] Willia ms Mullen

, P.C. , ( Jimmie V. Reyna , Francisco J. Orellana ) Washington, D.C. for Plaintiff s. Peter D. Keisler , Assistant Attorney Gene ral, David M. Cohen , Director, Commercial Litigation Branc

h, Civil Division, United States Department of Justice, Jeanne E. Davidson , Deputy Direc

tor, Commercial Litigation Bra nch, Civil Division, United States Department of Justice, Stephen Carl Tosini , Attorney, Commercial L itigation Branch, Civil Division, United States Department of Justice, Jayant Reddy , Office of the Solicitor, United States Department of Labor, of Coun sel, for

Defend ant. Dated: September 16, 2004

O PINI ON This matter comes before the Court on Plaintiffs’, Former Employ ees of Tyc o Electronics, Fiber Optics Division, Glen Rock, Pennsy lvania, (“Former Employ ees”), application for attor ney s fees a

nd other e xpenses und

er the Eq ual Acc ess to Justic e Act (“ EAJA”), 28 U.S.C. § 2412 (2000). The EAJA states that “[e]xcept as otherwise specifically provided by statute, aCt. No. 02-00152 Page 2

court shall award to a prevailing party other than the United States fees and other expenses . . . , incurre d by

that par ty in any civil act ion . . . bro

ught by or aga inst the Un

ited State s . . . , unle ss the court finds that the position of the United States was substantially justified or tha t special circumst ances ma ke an aw ard unjus t.” 28 U.S. C. § 2412(d )(1)(A ). Forme r Employ ees’ application is made in connection with this Court’s final decision in Former Employees of Tyco Elecs. v. United States , No. 02-00152, 2004 Ct. Int’l Trade L EXIS 33 (Ct. I

nt’l Trade April 14, 2004) (“ Tyco III

”), which sustained the United States Department of L abor’s certification of Plaintiffs as eligible to apply f or North American Free Tra de Agreement-Transitional Adjustment Assistanc e (“NAF TA-TAA” ). Bec ause the Court find s that L abor’s p osition dur ing this litigation was not substantially justified, Plaintiffs’ application for f ees and expenses under the EAJA is granted with certain modifications discussed below.
B ACKGROUND Although the detailed background fa cts and procedural history of this action have been articulated by the

Court in its earlier opinions, see Tyco III , 2004 Ct. Int’l Trade L

EXIS 33, at *2- *7; Former Employees of Tyco Elecs. v. United States Dep’t of Labor , 264 F. Supp. 2d 1322, 1323-26 (Ct. Int’l Trade 2003) (“ Tyco II ”) (deny ing Plaintiffs’ second motion for judgment on the age ncy record and rema nding the case to D efenda

nt); Former Employees of Tyco Elecs. v. United States Dep’t of Labor , 259 F. Supp. 2d 1246, 1248 (Ct. Int’l Trade 2003) (“ Tyco I ”) (gran ting De fendant ’s secon

d motion to f

ile rema nd result s of out time , deny ing Plain tiffs’ motion for

certifi cation, a

nd gra nting Pla intiff’s request for fee s pursuan

t to USCI T R.16(f) ), it is
necessary for the Court to review the development of this action aga in so that it may determine whether or not the Government’s position was substantially justified under the EAJA. SeeCt. No. 02-00152 Page 3

1 Section 23 31(a)( 1) provid es: A group of workers . . . shall be certified as eligible to apply f or adjustment assistance under this subchapter . . . if

[Labor] determines that a significant number or proportion of the worke rs in such workers’ firm or an appropriate subdivision of the firm have become totally or partia lly s eparat

ed, or ar e threa tened tobecome

totally or partia lly separated, and either– (A) that

– (i) t he sales or production, or both, of such firm or subdivision have dec rease d absolutely, (ii) imports from Mexico or Canada of articles like or direc tly compe titive with articles produced by

such firm or subdivision have increased, and (iii) the incr

ease in i mports und

er clau se (ii) con tributed importantly to such worker s’ separation or threat of separation and to the dec line in the sale s or production of such firm or subdivision; or (B) that there has been a shift in production by such workers’ firm or

subdivision to Mexico or Canada of articl es like or directly c ompetitive with articles which are produced by the

firm or subdivision. 19 U.S.C. § 2331(a)(1) (2000). The Court notes that Congress repealed 19 U.S.C. § 2331, on August 6, 2002, folding the NAFTA-TAA program into a ne w trade adjustment assistance scheme under the new ly-revised version of the Trade Act of 1974 renamed the Trade Act of 2002. See Pub. L. No. 107-210, § 123(a), 116 Stat. 933, 944 (2002). However, Plaintiffs’ petition antecedes the November 4, 2002, effective date of the revised statute; thus, they cannot benefit from the terms of the revised statute. See id. at § 151, 116 Stat. 953-54. Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States , 837 F.2d 465, 467 (Fed. Cir. 1988) (“Substantial justification is to be decided case-by -case on the basis of the record. . . and is reached by examination of the government’s position and conduct through the EAJA ‘prism.’” (internal quotation marks and citations omitted)). A. Plaint

iffs’ Pet ition for NA

FTA-TA A Benefits. In July 2001, F ormer Employee s sought certification for NAFTA-TA A benefits pursuant to 19 U.S.C. § 2331 1 , based o n their be lief that their job l oss was a

result of an incre ase inCt. No. 02-00152 Page 4

imports from Mexico and a result of a shift in production of fiber optic components to Mexico. Pub. Admin. R. at 2, 53. The Pennsylvania Depar tment of Labor and I

ndustry initiated a preliminary investig ation and denied the Former Employ ees’ petition based on insufficient import information regarding like products and Ty co Electronics’ initial survey response. Conf. Admin. R. at 12-14. B. Administrative Proceedings at the Depart ment of Labor. 1. Labor’s

Initial Inve stigation . Labor initiated an investigation of the Former Employe e’s NAFTA-TAA certifica tion eligibility petition in September 2001. Investig ations Reg

arding Cer

tification s of Eligibil

ity to Apply for NAFTA Transitional Adjustment Assistance , 66 Fed. Reg. 48,708 (Sept. 21, 2001). Labor’s initial investigation consisted of one f orm letter requesting information about Former Employees’ job sepa

ration from company

officials at Tyc o Electronics. Conf. Admin. R. at 33- 34. La bor denie d the For

mer Employe es’ NAF TA-TAA p etition on t he gro unds that i

mports from Mexico did not contribute importantly to the Former E mployees’ sepa

ration and there was no shift in production to Mexico. Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance , 66 Fed . Reg. 53,250, 53,252 (Oct. 19, 2001). Based on Ty co Electronics’ response to the form letter, Labor determined that th e predom inant ca use of F ormer Em

ployees’ job

separa tion was a

shift in producti on to an af

filiated Tyc o Electr

onics fa cility in Harri sburg, Pennsy

lvania. Pu

b. Admin. R. at 19. 2. Form er Empl oyees’ M otion for Ad ministr ative Re considera tion. Former Employe es filed a motion for administrative reconsideration of L abor’s negativeCt. No. 02-00152 Page 5

NAFTA- TAA dete

rmination , assert

ing ag ain that their job se paration was ca

used by a shift in production to Mexcio. Id. at 54. Based u pon ad diti onal i nform ation provi ded du ring a confer ence ca ll with Ty co Elect ronics c ompany

officia ls, La bor denie d Former

Employ ees’ request for administrative reconsideration. Tyco Elecs. Fiber Optics Div., Glen Rock, Pa.; Notice of Negative Determination Regarding Application for Reconsideration , 67 Fed . Reg. 5,299 (Feb. 5, 2002). Labor stated that only “a ne gligible portion of the plant production was shifted to Mexico during the relevant period.” Pub. Admin. R. at 69. C. Litigation Before This Court. Appear ing pro se , Former Employe es filed a complaint in this Court challenging L abor’s negative determination. Pls.’ Compl. at 1 (Jan. 30, 2002). Plaintiffs’ counsel was appointed by the Court t

o repre sent the F ormer Em ployees pro bono

. Former Employees of Tyco Elecs. v. United States , No. 02-0 0152 (Ct. I nt’l Tra de April 1 6, 2002) ( order g ranting Plaintiff s’ motion to proceed in forma pa uperis ). 1. The Fir st Volunta ry Rem and. Immediately

after the Former Employ ees filed their first Rule 56.1 Motion for Judgment on the Agency

Record, Defendants sought Plaintiffs’ consent to a voluntary remand. See Def.’s Mot. for Voluntary Remand a t 2. In seeking a voluntar y remand, De fendant stated that “[a]fter review of the administrative record in light of the a rguments [Plaintiffs] made in their Rule 56.1 motion, defendant seeks a remand to L abor to conduct a further investigation and make a redetermination.” Id. This Court granted Defendant’s reque st for a voluntary r emand and ordered that Defendant conduct a remand investiga tion and submit remand results by October 7, 2002.Ct. No. 02-00152 Page 6

Former Employees of Tyco Elecs. v. United States , No. 02-00152 (Ct. Int’l Trade Aug . 6, 2002) (order granting voluntary

remand) (“Voluntary

Remand Order”). The Voluntary Remand Order, which was drafted and submitted by Defendant with its motion, mandated that Labor “ conduct further investigation, [and] collect further evidence, including evidence from the plaintiffs.” Id. at 1. L abor fa

iled to time ly c omply

with the V oluntary

Remand Or

der and d id not submit

a remand determination to this Court on or before October 7, 2002. On October 17, 2002, Plaintiffs submitted certain information to Defendant’s counsel for use in the remand determination. Tyco I , 259 F. Supp. 2d at 1248 (citing the parties’ Timeline Stipulation , Jan. 29, 2003). On November 12, 2002, Plaintiffs contacted Defendant to inquire about the status of the remand investigation. Id. At that time, Defendant’s counsel informed Plaintiffs’ counsel that the remand investigation had not started. Id. 2. Labor’s First Remand Deter mination Filed Out of Time. After Pla intiffs’ counsel c ontacte d Defen dant, De fendant

filed a mo tion for le ave to fi le the remand results out of time. Id. In Janu ary 2003, Def

endant f iled a se cond motion for lea ve to file the remand results out of time. Id. Labor’s remand de termination was filed with the Court on January 17, 2003, more than five months after the matter had been remanded to Labor. See Tyco Elecs., Fiber Optics Div.; Glen Rock, PA; Notice of Negative Determination on Reconsideration on Remand, 68 Fed. Reg. 5,655 (Februar y 4, 2003) (“

First Rem and Resul

ts ”). This Court accepted the First Rem and Resul ts out of time and awarded Plaintiffs’ attorney ’s fees for expenses incurred as a result of Defe ndant’s delay unde

r USCIT Rule 16(f). Tyco I , 259 F. Supp. 2d at 1250-53.Ct. No. 02-00152 Page 7

3. Labor’s

First R emand Investigat

ion and Dete rminat

ion. In the conducting the f

irst remand investigation, Labor contacted Ty

co Electronics officials and asked for sales figur es for the relevant time period. Pub. Supplemental Admin. R. at 2. Tyco Electronics reported declining sales in the latter par t of the relevant time period. Conf. Supplemental Admin. R. at 5. Based on the reported declining sale s, Labor survey ed two major Tyc o Electr

onics cus tomers re gardin

g their imports of

like prod ucts duri ng the r elevant time period. Pub. Supplemental Admin. R. at 17. According to La bor, the surveys r

evealed that one

customer did not increase i

ts imports o f like pro ducts or products c ompetitive with the ite

ms produced at the Glen Rock plant. Id. at 18. The other customer reported no direct import purchases during the relevant per iod and a “relatively

low” amount of indirect imports during the latter part of the relevant period. Id. Based on these findings, L abor “affirm[ed] the original notice of negative determination of eligibility.” Id. 4. The Cour

t Ordere d Second Re mand. Plaintiffs filed a second 56.1 Motion challenging L abor’s determination in the First Remand R esults . In May 2003, this Court ordered a second remand, finding that the c ustomer surveys that Labor relied upon were incomplete and “insuff icient to support Labor’s conclusion.” Tyco II , 264 F. Supp. 2d at 1331. The Court also found that Labor f ailed to conduct any

further investigation or analy sis to support its conclusion that a shift in production to Mexico did not

occur. Id. at 1331-3 2. In fact, De fendant

conced ed that a second r emand wa s necess ary

because the First Rem and Resul

ts “[were] deficient in so far as they did not address information obtained from the Plaintiffs” as directed in this Court’s order granting Defendant’s request for voluntary remand. (Def.’s Mem. in Partial Opp’n to Pls.’ Cmts. on Def.’s Nega tive Determination onCt. No. 02-00152 Page 8

Remand at 8. This Court remanded the case to La bor “for further consideration and investig ation of 1) the [] infor

mation sub mitted by

Plaintiff s; 2) the propriety

of condu cting a n import an

aly sis to support the information contained in the customer surveys, 3) the seemingly contradictory informat ion provid

ed by Tyc o Electr

onics re gardin

g sales ; and 4) th e argu

ments made

in Plaintiff s’ [second] 56.1 Motion rega rding a shift in pr

oduction i

n light of the data containe d in the [] information [submitted by Plaintiffs].” Tyco II , 264 F. Supp. 2d at 1333. 5. Labor’s

Second Re mand Inve stigation and Deter minatio n. After the second remand, L abor certified Plaintiffs as eligible to rece ive NAFTA-TAA benefits. Tyco Elecs., Fiber Optics Div., Glen Rock, PA; Notice of Revised Determination on Remand , 68 Fed. Reg. 41,185 (July 10, 2003) (“ Second R emand Re

sults ”). L abor sta

ted that it had “requested and obtained new and a dditional information and clarification from the company regarding plant production shifts to Mexico.” Id . After reviewing this information, L abor “conclud[ed] that there was a shift of production to Mexico that contributed importantly to the worker separations and sales or production dec lines at the subject facility.” Id. 6. The Court’s Final Judgment. After the Second R emand Re sults were filed with the Court, Plaintiffs informed the Court that the Former Employees had been told that they would be unable to receive certain TAA benefits because the statutory 104-week eligibility

period for those allowances had expired during the pendency

of this litigation. See Letter from L enita Jacobs-Simmons, Reg’l Adm’r for the U.S. D ep’t of L

abor, to t he Hon. Ste

phen Schmerin, Sec ’y

of La bor and I ndus. for the State of Pa., of 02/27/04, a

t 1-2 (“Jac obs-Simmon s Let ter”); see also 19 U.S.C. § 2293(a)(2) (“[T]radeCt. No. 02-00152 Page 9

readjustment allowance shall not be paid for any week after the close of the 104-we ek period . . . that begins with the first week following the wee k in which the adversely

affected worker was most recently totally

separated”). Plaintiffs were informed that “ [s]ince [Plaintiffs’] certification was issued after the expiration of the 104-week elig ibility period for basic TRA for most covered Tyco worke

rs[,] . . . it was not possible for most of the workers to qualify for a ny basic TRA.” Jacobs-Simm

ons Le tter at 1- 2. At Plaint

iffs’ re quest, the

Court held

a telephone conf

erence with the parties at which time Defendant’s counsel and Plaintiffs’ c ounsel informed the Court that they would “work tog ether to resolve this issue.” Letter from Def.’s Counsel to the Court of 09/03/03, at 1. During the next several months, the parties worked togethe r to solve this problem and kept the Court apprised of the situation through weekly status reports. The issue was resolved in March 2004. See Jacobs-Simmons Letter at 2 (“Where there ha s been undue and extreme delay in issuing a certification due to circumstances of litigation, and plaintiffs’ actions did not substantially contribute to the delay , the 104-week basic TRA eligibility period shall not begin until the certification is issued. . . . Equity and good conscience dictate that the Ty co workers be ‘made whole’ by being restored to the position they would have occupied had there been no delay

in issuing the certification.” (emphasis added).) After this issue had been resolved, the parties submitted proposed judg ment orders. On April 14, 2004, the Court issued its final judgment affirming L abor’s certification of Plaintiffs eligibility to rece ive NAFTA-TAA benefits. Tyco III , 2004 Ct. Int’l Trade L

EXIS 33, at *12- *13. The Court noted that Labor failed to follow this Court’s specif ic instructions on remand. Id. (comp aring Tyco II

, 264 F. Su

pp. 2d at 1 333 (orde

ring De fendant

to (1) consider sp ecific information obtained from Plaintiffs; (2) consider conducting an import ana lysis to support theCt. No. 02-00152 Page 10

customer survey

responses; (3) resolve the seemingly contradictory

information provided by Tyc o Electr

onics re gardin

g sales , and (4)discuss th e specif ic arg uments ra ised by Plaintiff s in their 56.1 Motion), with Second R emand Re sults , 68 Fed. Reg. 41,185 (failing to mention any information obtained from Plaintiffs and granting ce rtification based on “new and additional information and clarification from the company ”)). The Court affirmed L abor’s determination as implemented by the Jacob-Simmons L etter. Id. at *13.
D ISCU SSI ON Under the EAJA, fees and expenses must be awarded if (1) the claimant is a prevailing party; (2) the government’s position during the administrative process or during litig ation was not substantially justified; (3) no special circ umstances make an award unjust; and (4) the fee application is timely and supported by an itemized fee statement. 28 U.S.C. § 2412(d)(1)(A)-(B) ; see also Libas, Ltd. v. United States , 314 F .3d 13 62, 13 65 (Fed . Cir . 2003 ) (cit ing INS v. Jean , 496 U.S. 15 4, 158 (19 90)). “T he EAJA is a

waiver o f sovere ign immun ity t hat must be

strictly construed.” Am. Bayridge Corp. v. United States , 86 F. Supp. 2d 1284, 1285 (2000). Here, Plaintiffs submitted an application for fees and expenses totaling $119,993.70. Pls.’ Mem. in Support of Pls.’ Application for Fees and Other Expenses Pursuant to the Equal Access to Justice A ct (“Pls. ’ Br.” ) at Atta ch. F. Pla

intiffs a ttached two itemize d stateme

nts, entitled “Proforma 1” and “Proforma 2”, to their applica tion accounting for 707.8 hours of work performed. See Pls.’ Attach. A. The Government contends that the Plaintiffs’ application for fees and expenses should be denied for two reasons: (1) Plaintiffs have failed to establish that they meet the re quirements for an eligible party under the EAJA; (2) the Government’s position in this matter was substantially justified. Def.’s Resp. to Pls.’ Application for A tt’ys Fee s andCt. No. 02-00152 Page 11

Expenses (“Def.’s Resp.”) at 11-18. Alternatively , the Government contends that if the Court finds that Plaintiffs’ application should be granted, Plaintiffs’ application does not support an award f or the fu ll amount of

attorne y f ees req uested a nd should b e reduc ed beca use it is unreasonable and excessive. Id. at 19-28. As discussed below, this Court finds that Plaintiffs’ application is sufficient to meet the requirements under the EAJA and the Government’s position during this litigation was not substantia lly j ustified; thus, Plain

tiffs’ a pplication for fe es and expe nses is g ranted w ith certa in modifica tions.
P ARTIES ’ C ONTENTI ONS I. Plaintiffs’

Contention

s. A. The Fo rmer

Employe es are Eli gible Pa rties. As evide nce of Pla

intiffs’ fulfillme

nt of the E

AJA’s “pa

rty ” eligi bility require ments, Plaintiffs submitted the Motion for Leave to Proceed I n Forma Pauperis of Ms. Karen Hawks, the lead plaintiff, her supporting affidavit, and the Court’s orde r granting the motion. Pls.’ Attach. F. Ex. B. M s. Hawks’ affida vit states that her individua

l net wort h is below t

he two milli on limit set by the EAJA. Id

. B. Labor’s P osition was N ot Substant ially Justifie d. Plaintiffs contend that throughout the administrative process and this litigation, the Government’s pos ition has b een to de ny Pl aintiffs ’ certif

ication b ecause

there wa s no incre ase in imports and no shift in production to Mexico. Pls.’ Br. at 15. Plaintiffs contend that this position was not substantially justified for many reasons. Id. at 15-16. First, as argued in their first 56.1 Motion, Plaintiffs claim that Labor’s initial investigation “was incomplete, sca nt, inept and notCt. No. 02-00152 Page 12

supported by substantial evidenc e.” Id. at 16. Plaintiffs contend that even after the Government requested the first remand “in light of the ar guments [plaintiffs] made in their Rule 56.1 [brief],” Labor failed, in the First Rem and Resul ts , to consid

er the in formation provide d by Plaintiff s in accordance with the Voluntary Remand Order. Id. (citi ng Tyco II , 264 F. Supp. 2d at 1330; Def.’s Mot. for Voluntary Remand a t 2.) Plaintiffs contend that in the First Rem and Resul ts , “the Government reinstated the position it had articulated in the underly ing investigation in the [ First Remand R esults ] although it had already conceded that the underly ing investigation was inadequate.” Id. Plaintiffs argue that by

ordering a second remand in Tyco II , this Court recognized that the Government’s position in the First Rem and Resul ts was without a basis in law or fact. Id. at 17. Plaintiffs contend that even “the Government concede d that the underlying investigation was inadequate” because the Gover nment indicated that an additional remand was necessary

. Id. Plaintiffs assert that after two and a half y ears of litigation, Labor

abandoned its earlier position and certified Plaintiffs in the Second R emand Re sults

. Id. However, Plaintiffs note that Labor “faile d to includ

e finding s of fac t and conc lusions of law in its [ Second R emand Re sults ].” Id. Plaintiffs contend that it cannot be determined from the Second R emand Re sults “why the Government abandoned its position.” Id. Plaintiffs contend that the Government’s “abrupt reversal” in position is a “concession that its position had been . . . without a basis in law and fact.” Id. Plaintiffs contend that the Government’s position during this litigation even fails the “substantial evidence” standard, which is more lenient than the substantially justified standard applicable for EAJA determinations. Id. at 18. Plaintiffs contend that “[g]iven that the substantialCt. No. 02-00152 Page 13

evidenc e standa

rd is more

lenient than the sub stantiall y ju stified st

andard, this cour

t should determine that the government’s position was not substantially justified.” Id. at 18-19. Additionally, Plaintiffs assert that there a re no special circumstances in this case that would make an award of fees unjust. Id. at 19 (citing 28 U.S.C. § 2412(d)(1)(A)). Plaintiffs claim that other considerations warrant the awar d of attorney f

ees in this case, including the remedial nature of the trade adjustment assistance statute, D efendant’s dilatory tactics during litigation, and Defendant’s disregar d for the Court’s orders and rules. Id. at 24-26. C. The Court

Should Award Spe cialized Attorne y Fees . Plaintiffs acknowledge that the EAJA specifically provides that “fees shall not be awarded in excess of $125 per hour unless the court determines that an increa se in the cost of living or a special factor, such as the limited availability of qualified attorney s for the proceedings involved, justifies a higher fee.” Id. at 20 (quo ting 28 U .S.C. § 2412 (d)(2) (A)(ii) ). Howev er, Plain tiffs ask this Court to award a higher fee bec ause it is justified under the “special factor” standar d of the EAJA as articulated by the Supre me Court in Pierce v. Underwood , 487 U.S. 552, 572 (1988). Plaintiff s assert t hat Pierce v. Underwood

es ta bl is he d t ha t “ sp ec ia l f ac to r r ef er s t o a tt or ne ys having some distinctive knowledge or specialized skill needed f or the litigation in question.” Id. at 20 ( quot ing Pierce , 487 U.S. at 572). Plaintiffs contend that lead counsel, Mr. Jimmie Reyna, has specialized skills in the field of international trade law which “have be en essential in securing trade adjustment assistance” for Plaintiffs. Id. at 21. Plaintiffs contend that because of Mr. Reyna’s spec ialized skills, they are entitled to attorney fees based on hourly

rates of $310 to $365 per hour for lead counsel and $140 to $195 per hour for associate c ounsel, which are the prevailing market rates in the releva nt community. Id. at 20-21 (citing Human Soc’y of theCt. No. 02-00152 Page 14

United States v. Bush, 159 F. Supp. 2d 707, 712 (Ct. Int’l Trade 2001) ; Earth Island I nst. v. Christopher, 942 F. Supp. 597, 612 (Ct. Int’l Trade 1996))

. D. The Court Should Award Fees that Reflect a Cost of Living Adjustment. Alternatively, if the Court finds that spec ial factors are not present in this case, Plaintiffs ask the Court to award fees at the $125 per hour ra te approved under the EAJA with a cost of living adjustment (“COLA”). Id. at 22 (citing Leve rnier Const., Inc. v. United States, 947 F.2d 497, 503 (Fed. Cir. 1991); Oliveira v. United States, 827 F.2d 735, 742 (Fed. Cir. 1987))

. Plaintiffs assert that the COLA is calculated using the Consumer Price Index for all Urban Consumers (“CPI-U”), which is compiled by the United States Department of La bor, Bureau of Labor Statistics. Id. at 23. Plaintiffs contend that any incr ease is determined from the baseline CPI-U as of March 1996, the da te on which the $125 hourly r ate cap became effe ctive. Id. at 23 (citing Gonzalez v. United States, 44 Fed. Cl. 764, 770-71 (1999)). Plaintiffs contend that the CPI-U for March 1996 wa s 155.7. Id. at 23 (citing Cal. Marine Cleaning, I nc. v. United States, 43 Fed. Cl. 724, 734 (1999)). Based on the CPI -U for 2002 (188.2), 2003 (193.5), and 2004 (197.68), Plaintiffs contend that the fees with the COLA are $151.25, $156.25, $158.75 per hour for 2002, 2003, and 2004 respectively

. Id. at 23 (citing Pls.’ Attachs. E, F). E. The Court

Should Award F ees for P aralegal s and Summ er Associates Base d on the Preva iling Marke

t Rates. Plaintiffs contend that the hourly ra tes for paralegal and summer a ssociates should be based on the prevailing market rates of $95, $100, and $115 per hour. Id. at 23. Plaintiffs contend that, in Earth Isla nd Inst. , 942 F. Su pp. at 615 , the cour

t determi ned that t he appro priate compensation for paralegals and summer a ssociates should be determined by the marketplace. Id.Ct. No. 02-00152 Page 15

Plaintiffs contend that the Court, in Tyco I , accepted the $95 per hour rate f or paralegals, and that Mr. Jimmie Renya attests that $115 per hour is consistent with the prevailing market rate for summer associates. Id. at 24 (citing Ty co I, 259 F. Supp. 2d at 1253). II

. Defendant’s Contentions

. A. Labor’s Position was Substantially Justified Th roughout the Administrative Proceedings and this Litig ation. Defendant contends that La bor’s position was substantially justified. Def.’s Resp. a t 12. Defendant stresses that “[t]he mere fact that the Governme nt loses a case does not establish that its defense was not substantially justified.” Id. (citing Luciano Pisoni, 837 F.2d at 467). F urther, Defend ant arg ues that “ the fac t that, upon the mer its, the Cou

rt deter mined tha t Lab or faile d to examine plaintiffs’ relevant submissions and offer satisfactory explanation for its action does not establish that the Government’s position was not substantially justified.” Id. (citing F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 595 (D.C. Cir. 1996)). First, De fendant

asserts t hat L abor’s p osition at t

he admini strative

level wa s substant

ially justified. Id. at 13. Defendant claims that La bor “requested information concerning the production of like or directly competitive products from Tyc o [Electronics] during the original investigation.” Id. Defendant notes that during the administrative investiga tion, Tyco Electronics officia ls respon ded that t he lay offs at the Glen Roc

k facilit y w ere due

to the tra nsfer of work to another Tyc o Electronics facility in Pennsylvania, not due to a shift in production to Mexico. Id. at 14 (citing Pub. Admin. R. at 15-16). Defendant contends that the follow-up que stioning of a company off

icial did not reveal any

information that contradicted Ty co Electronics’ claim that production did not shift to Mexico. Id. (citing Pub. Admin. R. at 66-67 ). Defendant contendsCt. No. 02-00152 Page 16

that “Labor’s position [at the administrative level] . . . also had a rational basis in law a nd fact despite its failure to obtain further, more detailed information from Ty co [Electronics] that, on court-ordered remand much later in litiga tion, ultimately resulted in certifica tion.” Id

. Second, D efenda

nt conten ds that L abor’s p osition dur ing litig ation was

also subst

antially justified. Id. at 15. Regarding the First Rem and Resul ts , Defendant contends that “L abor’s conclusions . . . had a rational basis in law and fact based upon the state ments of company employees.” Id. De fe nd an t n ot es th at Lab or ’s vo lu nt ar y re ma nd in ve st ig at io n s ou gh t “ co mp an ywide sales information . . . in addition to customer survey responses.” Id. Defendant argues that Labor reasona

bly relied on this information in the First Rem and Resul ts to determine that there was no shift in production to Mexico “despite the Court’s subsequent finding that the customer survey data

was incomplete.” Id. Defendant asserts that L abor’s position was rational based on the combination of “complementary ” information obtained during L abor’s administrative investigation and on voluntary remand. Id. at 15-16. Defendant argues that the fa ct that Labor did not provide any analysis of any

information submitted by or obtained from Plaintiffs in the Second R emand Re sults “should have no bearing upon a sub stantial j ustifica tion findin

g . . . be cause Labor ce

rtified [F ormer Em

ployees] as e ligible to receive TAA benefits and, thus, further fa ctual analysis wa s rendered unnecessary .” Id. at 16. B. Plaintiffs’ Applicatio n Fails to Establish tha

t Plaint iffs’ are Eli gible Pa rties. Defendant contends that Plaintiffs’ EAJA application fails to establish that Plaintiffs are eligible parties because Plaintiffs’ application does not provide e vidence of all the Plaintiffs’ net worth and does not establish that the fees requested were actually incurr

ed by Plaintiffs. Id . at 16, 19-20. First, Defendant asserts that Plaintiffs do not meet the net worth requir ement. Id. at 16.Ct. No. 02-00152 Page 17

Defendant quotes the definition of “party ” set forth in the EAJA: a “‘party ’ means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed.” Id. at 17 (quoting 28 U.S.C. § 2412(d)(2)(B)). I n this case, Defendant asserts that the application “for all 88 plaintiffs includes only an af fidavit of one plaintiff concerning her individual asse ts.” Id. Defendant urges this Court to require Plaintiffs to “‘set for th a more explicit statement about [each plaintiff’s] net worth’ . . . or reduce any award of attorney

fees to only allow re covery of fees based on the proportion of [Plaintiffs] who establish eligibility.” Id. at 19 (quo ting Ba zlo v. West, 150 F.3d 1380, 1383-84 (Fed. Cir. 1998) and citing Sierra Club v. United States Army Corps of Eng’rs, 776 F.2d 383, 393-94 (2d Cir. 1985)). Additiona

lly, Defend

ant conte nds that Pla

intiffs’ applica

tion should

be denie d becau se Plaintiffs failed to provide any e vidence that fees for the work listed in the Proforma 1 and Proforma 2 statements were “incurred” by Plaintiffs. Id . Defen

dant note s that “Pla

intiffs’ applica tion conta ins no cont

emporaneous invoi ces, re ceipts, c ancelle d check s, or ag reemen t with counsel that would be probative on the issue of incurrence.” Id . at 19-20. Although Defendant acknowl edges

that Plaint

iffs’ co unsel wa s appointe d by

this Court to

repres ent Plainti ffs pro bono , Defendant contends that Plaintiffs must submit proof of billing or an agre ement to satisfy the “incurred” requirement under the E AJA. Id . at 21. C. Plaintiffs’ Applicatio n Does Not Support an Awar d for the F ull Amount of Fees a nd Expenses R

equested . Defendant contends that, if this Court finds that fees are appr opriate in this case, the Court should dec

rease t he amount

of attorney

fees awarded be cause ( 1) the Pro forma sta tements submitted in support of Plaintiffs’ application are deficient and contain inaccura cies; (2) theCt. No. 02-00152 Page 18

amount requested is excessive; (3) Plaintiffs should not be allowed to double-recover fe es already awarded by

the Court in Tyco I

; (4) certain post-judgment activities are not compensa ble under the EAJA. Id. at 19. First, De fendant

asserts t hat Proforma 1 and

Proforma

2, attached in supp ort of Pla intiffs’ application for fees, are inadequate

. Id. at 20 (referencing Pls.’ Attach. A ). Defendant contends that Proforma 1 and Proforma 2 contain the following inconsistencies a nd deficiencies: the client name listed is different on each; the two case desig nations used are overly

-broad and generic; and there is no evidence that Plaintiffs’ attorney s would have actually

billed Plaintiffs at the rates listed. Id. at 20-21. Second, Defendant contends that Plaintiffs’ requested fe es are excessive for several

reasons. Id. at 21-25. Defendant asserts that Plaintiffs’ requested hourly rates far exceed the EAJA statutorily allowed rates and should be r educed accordingly

. Id. at 21 (ci ting 28 U .S.C. 2412(d)(2)(A)). Defendant a sserts that Plaintiffs seek fees ranging f rom $135 to $365 per hour. Id. (citing Pls.’ Attach. A). Contrary to Plaintiffs’ claim, Defendant asserts that no special factors exist for awarding fees in excess of the $125 statutorily -allowed hourly r

ate. Id. at 22 (citing Pls.’ Br. at 21; Pls.’ Attachs. C, D). Specifically , Defendant contends that trade adjustment assistance cases “do not require any specialized skills or knowledge.” Id. at 23. De fendant notes tha t this Court asks

“ any attorney admitted to pra

ctice before the court” to volunteer to re present TAA plaintiffs. Id. (citing Court’s announcement seeking a ttorneys to acc ept TAA cases, available at http://www.cit.uscourts.gov/infomational/cac.htm (last visited June 7, 2004)). Defendant contends that Plaintiffs’ application “is replete with evidence that plaintiffs’ attorne ys were learning about [TAA] law as this litigation unfolded,” which undermines Plaintiffs’ claim ofCt. No. 02-00152 Page 19

specialized skill in this area of the law. Id. at 23-24 (citing F.J. Vollmer, 102 F.3d at 598). Defendant also argues that Plaintiffs’ re quest for a cost of living adjustment should be rejected because “the statute does not ‘absolutely require’ it.” Id. at 23 (quoting Baker v. Bowe n, 839 F.2d 1075, 1084

(5th Cir. 1988)). Additionally, Defenda

nt contends that the fees requested are e xcessive because they contain summer associate hours which should not be compensable under the E AJA. Id. at 24. Defend ant cites Libas , 283 F. Supp. 2d at 1333-34, wherein the court examined a request for suc h fees for summer associates and reduc ed the requested fees by two-thirds. Id. Defend

ant also asserts that the “hundreds of hours” that counsel devoted to Plaintiffs’ first motion for judg ment on the agency

record is unreasonable. Id. at 24. Defendant contends that these fees include “teams of attorney s (and summer associates) working 14-16-hour days during

the period preceding the filing of the brie f.” Id. at 24-25 (citing Proforma 1 at 5). Defenda nt notes that on the same day, one

summer associates spent 11.4 hours on revising Plaintiffs’ brief, while anothe r summer associate worked 15.1 hours on a draft of the sa me brief. Id. at 25 (citing Proforma 1 at 5). Def endant a lso conte nds that th e Court sho

uld not gr ant the f ees req uested that refle ct “time spent con ducting backg round re search

to familia

rize the a ttorney s (and sum

mer asso ciates)with NAFTA-TAA issues, genera lly.” Id. at 27. Defendant asserts that fees for ba ckground research are presumptively

unreasonable. Id. (citing Case v. Un

ified Sch . Dist. No. 223, Johnson County Kan

. , 157 F.3d 1243, 1253 (10th Cir. 1998); Hensley v. Ecke rhart, 461 U.S. 424, 434 (1983)). Defendant contends that these fees ar e excessive and should be reduced by the Court. Id

. Third, De fendant

claims tha

t Plaintiff s are se eking to

“double-recove

r” the f ees that this Court awarded to Plaintiffs as sanctions for Defendant’s de lay in filing the Second RemandCt. No. 02-00152 Page 20

Results

. Id. at 25, 28 (citing Ty co I, 259 F. Supp. 2d at 1253). Def endant contends that those fees
were pa id in acc ordance

with this Cou

rt’s orde r and shou

ld not be in

cluded in this awar d should the Court find that fees are appropriate under the EAJA. Id. at 28. Finally, Def

endant argues that Plaintiffs should not be allowed to recover the fees that were incurred after Plaintiffs wer e certified by

the Department of Labor because those fees “do not reflect compensable post-judgment activity .” Id. at 25 (citing Pennsy lvania v. Del. Valley Citizens’ Counsel for Clean Air, 478 U.S. 546, 558-59 (1986); Keith v. Volpe, 833 F.2d 850, 855 (9th Cir. 1987)). Defendant asserts that contrary to other cases in which fees for post-judgment activity have be en allowed, “[t]his case does not involve a consent decree or similar judg ment over which the Court may assert continuing jurisdiction.” Id. Defendant claims that any problems with the administration of Plaintiffs’ TAA benefits after certifica tion by the Department of Labor should have bee n dealt with through state government channe ls. Id. at 26. Thu s, Defendant argues, “a

ny attorney

fees connected to aiding these wor kers with their benefits is not part of this litigation and not properly before the Court.” Id. at 26 (citing 28 U.S.C. § 2395(d) which grants this Court jurisdiction over challenges to a “f inal determination of the Secretary of Labor under [19 U.S.C. §] 2273”). A NAL YSIS The Court

holds that

Plaintiff s’ applic ation for

fees an d expenses

under the EAJA meets the necessary

requirements and should be granted bec ause Defendant’s position in this litigation was not substantially justified and no other re asons make an award unjust. See 28 U.S.C. § 2412(d). Based upon Plaintiffs’ application and Defenda nt’s response, this Court awards attorney fees based upon the statutory cap of $125 per hour with a cost of living adjustment, and dec linesCt. No. 02-00152 Page 21

to award any

fees for certain unreasonable entries included in Proforma 1 and Proforma 2. A. The Former Employees are Eligible Parties under the EAJA. Although it is uncontested that Plaintiffs prevailed in this action under the EAJA, Defendant contends that Plaintiffs have failed to establish that they are eligible

parties under the EAJA. Def.’s Resp. at 16-21. First, Defendant contends that Plaintiffs have failed to establish that they meet the net worth requirements under the EAJA. Id . at 16-18. This Court has found that party eligibility for EAJA purposes is satisfied by a primary plaintiff’s net worth not exceeding the two million dollars at commencement of the action. See For mer Emp lo yee s of Oxf ordAut omo ti ve U

.A. W. Local 2088 v. United States Dep’t of Labor , No. 04-52, slip op. at 1 n.2, 2004 WL 1146102, at *1 n.2 (Ct. of Int’l Trade May 18, 2004). This Court finds that Plaintiffs have provided sufficient evidenc e to prove

that their individua

l net wort h was less

than two mi llion dolla

rs at the t ime this

ac ti on wa s f

il ed as re qu ir ed by § 24 12 (d )( 2) (B ) o f t he EA JA . In su pp or t o f P la in ti ff s’ el ig ib il it y, Plaintiff s attach ed to thei

r EAJA appl ication the Motion to Proceed in Forma Pauperis of Ms. Karen Hawks as their lead plaintiff, which this Court treate d as primary plaintiff. T his Court granted Plaintiffs’ Motion to Proceed in Forma Pauperis. Pls.’ USCIT Form 15 at Ex. B (Pls.’ Attach. F). Ms. Hawks’ affidavit in support of her Motion to Procee d in Forma Pauperis states that her net worth is below the two million maximum set by the EAJA. See id

. Althoug h there a re eig hty -eight people c overed by Labor’s c ertific ation for eligibil ity t

o receive NAFTA-TAA be nefits as former employ

ees of the Ty

co Electronics, Glen Rock, Pennsylvania fac ility, it is clear from the complaint filed in this action, the Court’s orde r granting Ms. Hawks’ request to proceed in forma pa uperis , which appointed pro bono counsel, Plaintiff s’Ct. No. 02-00152 Page 22

EAJA application, which list the applicant as “Former Employ ees of Tyc o Electronics, Fiber Optics Division, Karen Hawks, Le ad Plaintiff Worker ,” and the statemen ts attached to Plain

tiffs’ application that the work performed by counsel was for Ms. Karen Hawks. See Pls.’ Compl. at 1 (with cor respondi ng lette r from Cle

rk’s Off ice to Ms. Karen H awks of 0 2/08/02); Former Employees of Tyco Elecs. v. United States , No. 02-00152, (Ct. Int’l Trade Mar . 20, 2002) (order granting motion to proceed in forma pa uperis ); Pls.’ USCIT Form 15 at Ex. B (Pls.’ Attach. F); Proforma 1 at 1 (“MATTER NAME: Hawks, Karen . . . AD DRESS: Karen Hawks”; Proforma 2 at 1 (“CLI

ENT NAME: Hawks, Karen . . . ADDRESS: Karen Hawks” ). Thus, the Court finds that Ms. Hawks

affida vit is suff icient to m

eet the E AJA’s eligible par

ty net worth r

equirements. Second, Defendant contends that Plaintiffs’ application is deficient bec ause Plaintiffs failed to provide any

evidence that fees for the work listed in the Proforma 1 a nd Proforma 2 statements were “incurred” by Plaintiffs. See Def.’s Resp. at 19-20. This Court is not persuaded by Defe ndant’s arguments. Under the EAJA, “a court shall award to a prevailing party . . . fees and other expenses, in addition to any costs . . . incurred by that party .” 28 U.S.C. § 2412(d)(1)(A). “[C]ourts have awarded attorney fees under EAJA and similar fee-shifting statutes requiring that fees be ‘incurre d’ when the prevailing party is represented by

a legal services organi zati on or c ounse l appe aring pro bono .” Ed A. Wilson, Inc. v. Gen. Serv s. Admin. , 126 F.3d 1406, 1409(Fed. Ci

r. 1997) ( citing Wa

tford v. H eckler , 765 F.2d 1562, 1567n.6 (11th

Cir. 1985) (“I t is well-s ettled tha

t, in ligh t of the [EA

JA’s] legis lative his tory

and for r easons of public policy, plaintiffs who are represented without charge a re not generally

precluded from an award of

attorne ys’ fees und

er the EA JA.”); Cornella v. Schweiker , 728 F.2d 978 (8th Cir. 1984)). Here, as Defendant acknowledges, Plaintiffs’ c ounsel was appointed by the Court to represent PlaintiffsCt. No. 02-00152 Page 23

pro bono

. See Def.’s R

esp. at 21 ; Former Employees of Tyco Elecs. v. United States , No. 02- 00152, (Ct. Int’l Trade Mar. 20, 2002) ( order granting motion to proceed in forma pa uperis ). Contrary to Def

endant’s contentions, no proof of any billing or agreement is necessar y to satisfy the “incurred” requirement under the EAJA because Plaintiffs’ are represented on a pro bono basis. B. This Court Finds that the Govern ment’ s Positi on in this Liti gation was No t Substantia lly Justified. When eval

uating t he merits of the Go vernmen

t’s litig ating po sition, the court “m ust reexamine the legal and factual circ umstances of the case from a differe nt perspective than that used at any other

stage of the proceeding .” Libas , 314 F .3d at 1366 ( quot ing United States v. Hallmark Constr. , 200 F.3d

1076, 1079(7th

Cir. 2000) ; see also 28 U.S.C. § 2412(d)(1) (B) (“Whether or not the position of the United States was substantially justified shall be determined on the basis of the record . . . which is made in the civil action for which f ees and other expenses are sought.”). An examination of the development of this case show s that the Government’s position in this litigation was not substantially justified. The fact that Former Employ ees prevailed in this litigation is not sufficient to show that the Government’s position was not substantially justified. See Luciano , 837 F.2d at 467. The Feder al Circui t explained

that [t]he decision

on an awa

rd of attorney

fees is a judgmen t indepen dent of th e result onthe merits, and is reached by examination of the gove rnm ent’s position and conduct thr oug h th e EA JA ‘prism,’ . . . not by redundantly applying w

hatever substantive rules governed the underly ing case. Id. (internal quotation marks and citations omitted). Substantia l justifica tion mean s “‘justif

ied in substance or in the main’ – that is, justified to a degree that could satisfy a reasonable person.Ct. No. 02-00152 Page 24

2 The Court need not address La bor’s position at the administrative level because the Court finds that the Government’s position during this litigation was not substantially justified. That is no different from [a] ‘reasonable basis both in law and fact.’ ” Pierce , 487 U.S. at 565 (citations omitted). It is the Government’s burden to show that its position in litigation, as well as at the administrative level, “had a reasonable ba sis in both law and fact.” Chiu v. United States , 948 F.2d 711, 714-15 (Fed. Cir. 1991). “[T]he imperative language of § 2412(d)(1)(A), ‘a court shall award,’ requires that the gove rnment bear[] the burden of proving its position was substantially justified.” Libas , 314 F .3d at 1365 ( citi ng Neal & Co. v. United States , 121 F.3d 683, 686 (Fed. Cir . 1997)); Hallmark Constr. , 200 F.3d at 1079 (noting that the EAJA does not create a presumption that a prevailing pa rty will recove

r attorneys’ fees and expenses, but that the government must prove that its position was substantially justified). Of ten, “the question [of whether the Government’s position was substantially justified] will turn upon not merely what was the la w, but wha

t was the evide

nce regarding

the facts .” Pierce , 487 U.S. a t 560 (emphasis added). The Government’s position in this litigation to deny Plaintiffs’ eligibility for certifica tion was base d on infor

mation obta

ined fro m Lab or’s inve stigation during the admin

istrative process and Labor’s investiga

tions and determinations on remand. This Court is not persuaded by the Government’s argument that this information provided a rea sonable basis for Labor to deny Plaintiffs’ eligibility for ce rtification during this litigation. 2 During this litigation, Labor repeat edly disreg arded e

vidence of critic al facts

necessa ry to deter mine if Pla

intiffs we re elig ible to receive TAA benefits. Specifically , Labor refused to a

ccept information submitted by Plaintiffs, which allegedly contradicted statements made by Tyco Electronics officials.Ct. No. 02-00152 Page 25

Additiona

lly, Labor failed

to comply

with the or

ders of t his Court a sking L abor to su bstantiat e its determinations with additional legal and factual analy sis on remand; and did not abide by its own assertions that it would gather information from Plaintiffs either in support of or in contradiction to their petition for certification. During this litigation, L abor continued to rely on incomplete and allegedly contradictory

information to support its position. Finally, this Court finds that Labor failed to provide a ny a naly sis reg arding

the chan ge in its position to c ertify

Plaintiff s as elig ible to receive benefits in the Second R emand Re sults that might have aided the Court in determining the reasonableness of its position during this litigation. 1. First Remand Results. This Court finds that the Government’s position in the First Rem and Resul ts to deny Plaintiffs’ eligibility for ce rtification was not substantially justified. First, Labor conceded that the First Rem and Resul

ts were in direct violation of this Court’s Voluntary Remand Order because they did not con

tain any informat ion gathered or

obtained from Plain

tiffs. De f.’s Mem. in Partial O pp’n to Pls. ’ Cmts. on D ef.’s Ne g. Dete rmination on Remand

at 8. I n orderi ng the f irst remand, this Court signed the draft order that was submitted with Defe ndant’s motion, which stated that Labor would “conduc t further investigation . . . [and] collect further evidence, including evidence from the plaintiffs.” Voluntary Remand Order at 1. In Tyco II , this Court found that Labor’s failure to gather any

information from Plaintiffs, and Labor’s re jection of the information voluntarily submitted by the Plaintiffs, was a result of Labor’ s arbitrary and capricious treatment of this remand investigation. Tyco II , 264 F. Supp. 2d at 1330. As th e G ov er nm en t a ck no wl ed ge d b y co nc ed in g t ha t a n a dd it io na l r em an d w as ne ce ss ar y, Labor’s deni al of elig

ibility was not ba sed upon a

n adequa te examina

tion of the

availab leCt. No. 02-00152 Page 26

evidence. The Court remains unpersuaded by the Government’s post hoc rationalizations that Labor conside

red the i nformati on that wa s submitted by Pl aintiffs

and mere ly f

ailed to a ddress such information in the First Rem and Resul ts because

the infor mation wa s notmade a part of the administrative record and was not mentioned or refe renced in Labor’ s determination. The Court finds that Labor’s position in the First Rem and Resul ts was not su

bstantial ly ju stified be cause it failed to consider any

information gathered from Plaintiffs contrary to Defendant’s voluntary remand request and this Court’s order. Second, this Court finds that the Government’s position in the First Rem and Resul ts was not substantially justified because it was ba sed upon incomplete and allegedly contradictory information. In the First Rem and Resul ts , Labor took the position that the Former Employ ees failed to qualify for

NAFTA-TAA because “imports . . . did not contribute importantly to [the] workers’ separations.” Pub. Supplemental Admin. R. at 16, 18. La bor based its conclusion on two customer survey s conducted after L abor had requested company sales figures for the releva nt time periods. (

Id. at 17-18.) In Tyco II

, this Court found that the customer surveys c ontained incomplete information. Tyco II , 264 F. Su

pp. 2d at 1 331. The C ourt foun d that the incomplete
surveys wer

e insufficient to support Labor’s dete rmination on remand. Id . Defendant’s contention that Labor’s position after the voluntar y remand ha

d “a rational basis” despite the fact that the Co

urt found that the c ustomer su

rveys were in

complete because the infor mation ca me from a “ presumpt ively reliable source a nd was unc ontradicted,” De f.’s Resp . at 15, conflicts with the clear finding of the Court in Tyco II

. Tyco II , 264 F. Supp. 2d at 1331. The Court finds Labor’s reliance

on the incomplete customer survey s does not have a rational basis in law or fact. Additionally, this Court holds that the Government’s position in the First Rem and Resul tsCt. No. 02-00152 Page 27

to deny Plaintiffs’ elig ibility because the only shift in production was a domestic shift to an affiliated Tyc o Electronics plant in Harrisburg, Pennsy lvania, was not substantially justified. The Court finds that this position was not substantially justified because the recor d supporting the First Rem and Resul

ts did not indicate that Labor conducted any further investigation on remand regarding the alleg ed domestic transfer. Tyco II , 264 F. Supp. 2d at 1331-32. As the Court found in Tyco II , Lab or mere ly r

elied on i ts initial in

vestiga tion, whic h it conce ded to be i

nsuffic ient, to support this position. Id . at 1332. The only support for the G overnment’s position in denying certification after the First Remand R esultswere unverified statements from untitled Ty co Electronics company

officials and the two customer survey s discussed above. See Notes to Conference Call concerning Ty co Electronics, Fiber Optics Division, Glen Rock, Pennsy lvania with Steve Reynosa a nd Sue Mullins and others on January 14, 2002 (Conf. Admin. R. at 66-67); Letter from Tom Christner Responding For Shane NorthCraft [sic], Ty co Electronics, Middleton [sic], Pennsylvania to Elliot Kushner of 11/13/0 2 (Conf. Su

pplement al Admin. R . at 4-5) . Althoug h Lab or may

appropr iately rely on the unver

ified statements of company officials, see, e.g. , Int’l Union, UAW Local 1283 v. Reich , 20 F. Sup

p. 2d 1288, 1297 n.15 ( Ct. In t’l Trad e 1998); United Steel Workers of Am., Local 1082 v. M cLaughlin , 15 Ct. Int’l Trade 121, 122-23 (1991), such unve rified statements “will not

amount to s

ubstantia l evidenc e if [they

are] con tradicte d by

logic or other pe rtinent information in the record.” Former Employees of Pittsburgh Logistics Systems, Inc., v. United States Sec’y of Labor , No. 02-387, slip op. at 15, 2003 Ct. Int’l Trade L EXIS 18, at *24 (Ct. I

nt’l Trade Feb. 28, 2003). As the Court found in Tyco II , the statements of the Tyc o Electronics official were allegedly contradicted by

the information that Plaintiffs submitted, which Labor failed to evenCt. No. 02-00152 Page 28

consider. Tyco II

, 264 F. Su

pp. 2d at 1 331. Addit

ionally, the Cour

t noted oth er contr

adiction s in the sales information provided by Tyco Electronics. See Tyco II , 264 F. Supp. 2d at 1331 (comparing Conf. Admin. R. at 34 with Conf. Supplemental Admin. R. at 5). This Court holds that it was not reasonable for the Government to defend the position that Plaintiffs were not eligible based upon such tenuous factual support. 2. Second R

emand Re sults. As mentioned above, in its response to Plaintiffs’ second 56.2 Motion, the Government conceded that a second remand wa s appropriate because L abor failed to address the information from Plaintiffs. Def.’s Mem. in Partial Opp’n to Pls.’ Cmts. on Def.’s Neg. Determination on Remand at 8. On remand, this Court ordered that “L abor should detail its analysis and eva luation of the [] information [submitted by Plaintiffs, and] conduct any further investigation that might be
necessary to resolve any inc onsistencies that are revealed in its analy sis of th[at] information versus the statements of Ty co Electronics company

officials.” Tyco II

, 264 F. Supp. 2d at 1330. In the Second R emand Re sults , Lab or cert

ified Plai ntiffs an d stated that On the current, court-ordered re mand, the Department

requested and obtained new an d additiona

l informa tion and c larific ation from the comp any regar ding pla n t productionshifts to Me

xico. Upon c areful

revie w of the new data, it has been determinated

[that] mo re than a

negligible porti on of prod uction wa s shifted t

o Mexico during the relevant period. Conclusion After caref ul revie w of th e addit ional facts obtained on the current remand, I conclude that there was a shift of production to Mexico tha

t contribu ted import

antly to th e w or ke r s ep ar at io ns an d s al es or pr od uc ti on de cl in es at th e s ub je ct fa ci li ty. Second R emand Re

sults at 3. As the Court observed in Tyco III , Labor failed to follow this Court’s specific instructionsCt. No. 02-00152 Page 29

on remand. Tyco III

, 2004 Ct. Int ’l Trad e LEXIS 33, at *12 -*13 ( compa ring Tyco II , 264 F. Supp. 2d at 1333 (directing Defendant to consider :1) the [] information submitted by Plaintiffs; 2) the propriety of c onducting an import analy sis to support the information contained in the customer
survey s; 3) the se emingly

contrad ictory informat ion provid

ed by Tyc o Electr

onics re gardin

g sales ; and 4) the arguments made in Plaintiffs’ 56.1 Motion rega rding a shift in production in light of the data contained in the information [submitted by Plaintiffs]”), with Second R emand Re sults , 68 Fed. Reg. 41,185 (failing to mention any information obtained from Plaintiffs and granting certification based on “new and additional information and c larification from the company ”)). Although Plaintiffs are not challenging L abor’s position in the Second R emand Re sults , the Court notes that the Second R emand Re sults fail to provide any a dditional facts or legal analy sis that wo

uld aid the

Court in de

termining the rea sonableness of L abor’s prior posit ion to deny Plaintiffs’ eligibility for certifica tion. Defendant did not file with the Court a supplemental administrative record, and so the Court is left to assume that L abor reached its conclusion in the Second R emand Re

sults to certify the Plaintiffs base d upon the evidence discussed above. C. Plaint

iffs’ Applicat

ion for Fe es is Gr anted with Ce rtain Adj ustment s and Deduct ions. The Court grants Plaintiffs’ application for fees and e xpenses with certain adjustments and deductions. First , the Cour t finds tha t Plaintiff s have fa iled to set forth suf ficient “ special

factor s” that would

entitle Pla

intiffs to an awar d of fee s based on

an hourly

rate ab ove the $1 25 cap se t in the EAJA. Se cond, this

Court find s that a c ost of livin g adjust ment to the

$125 statu

tory hourly rate is appropriate. Third, the Court awards fee s for work performed by paralegals and summer associa tes at the prevail ing mar

ket rate . Fourth , the Cour t deducts the 58.1 hours wor

ked in relation to Defendant’s delay in filing the First Rem and Resul ts because Plaintiffs were alreadyCt. No. 02-00152 Page 30

compensated for that work in Tyco II . Fifth, the Court finds that the other fees requested are

reasona ble with th e excepti on of a fe w entrie s detaile d below. F inally , the Cour t finds tha t most of the fees requested for work c ompleted after the Plaintiffs were certified by Labor are compensable under the EAJA. 1. Plaintiffs’ Fees are Capped at the Statutorily Hourly Rate. Under the EAJA, “‘fees and other expenses’ includes . . . re asonable attorney fees (The amount of fees awarded under this subsection shall be base d upon prevailing market rates for the kind and q

uality of the se rvices f urnished , except that . . . (ii) attorne y f ees shal l not be awarded in excess of $125 per hour unless the court determines that an increa se in the cost of living or a special factor, such as the limited availability of qualified attorney s for the proceedings involved, justifies a higher fee.)” 28 U.S.C. § 2412(d)(2)( A)(ii). In Pierce v. Underwood , the Supre

me Court established that “special factor refers to attorneys having some distinctive knowledge or special ized skill needed for the litigation in question .” Pierce , 487 U.S. at 572 (emphasis added). Plaintiffs contend that lead counsel, Mr. Jimmie Reyna, has spe cialized skills in the field of international trade law which “have bee n essential in securing trade adjustment assistance” f or Plaintiffs. Pls.’ Br. at 21. Mr. Reyna ’s expertise in the field of international law is not questioned in this cas e; howev er, this Co urt finds t hat such s pecialize d skills we

re not ne eded for

this litigati on. As De fendant

notes, the

Court enc ourag es all att

orney s admitted

at the Cour

t to volunteer their time as court appointed counsel in trade adjustment assistance c ases. Def.’s Resp. at 23. The basic litigation skills needed for these ty pes of cases apply

“to a broad spectrum of litigation and thus are considered to be covere d by the baseline statutory rate.” Phillips v. Gen. Servs. Admin. , 924 F.2d 1577, 1584 (Fed. Cir. 1991). This Court holds that Plaintiffs are entitledCt. No. 02-00152 Page 31

to recover the statutory

rate with the cost of living adjustment discussed below. 2. Plaintiffs A re Allowe d to Reco ver Fe es at the Statutor y Hourly Ra

te Plus a Cost of Living Adjustment. This Court d

etermine s that “a

n increa se in the c ost of livin g” justi fies a hig

her fee in this

case. See 28 U.S.C. § 2 412(d)( 2)(A)( ii). Judicia l discret ion in gr anting c ost of livin

g adjust ments “effectuates Congress’ intent... to provide a dequate compensation notwithstanding inflation.” Payne v. Sullivan , 977 F.2d 900, 903 (4th Cir. 1992) (quoting Sullivan v. Sullivan, 958 F.2d 574, 578 (4th Cir. 1992)). As Plaintiffs contend, the COLA in this case is ca lculated using the Consumer Price Index for all Urban Consumers (“ CPI-U”). See Kerin v. USPS , 218 F.3d 185, 194 (2d Cir. 2000) (“[t]he district court may choose to a pply a cost of living a

djustment to [the statutory rate], as measur

ed by the Consumer Price Index”) (citing 28 U.S.C. § 2412(d)(2) (A); Harris v . Sullivan, 968 F.2d 2 63, 265 (2 d Cir. 1992 )); s ee also Headlee v. Bowen , 869 F.2d 548, 550-52 (1 0th

Cir. 1989)(“[t]he Con sumer Pric e Index is suffi cient ev idence u pon which

to calculate the cost of living . . . for the purpose of de termining an EAJA fee award” (c itation omitted)). Defendant does not challenge Plaintiffs’ c alculations of the statutory ra te with the COLA based on the CPI -U. However, after review ing Plaintiffs’ calculations and the CPI-U information available for the Northeast Urban Ar ea from the Bureau of Labor Statistics, this Court finds that Plaintiffs’ calculations must be adjusted slightly to a ccount for mathematical corrections. See Consumer Price Index - All Urban Consumers, Northea st Urban Area, available

at http://www.bls.gov/cpi/ (last visited Aug. 23, 2004). As detailed in Plaintiffs’ application, the base CPI-U ( not seasonally adjusted) f or March 1996 was 155.7; the CPI-U for Northea st Urban Areas for 2002 was 188.2; for 2003 it was 193.5;Ct. No. 02-00152 Page 32

and the average for the

first four months of 2004 was 197.68. Pls.’ Br. at 23 (citing Pls.’ Attach. E); s ee also Consumer Price Index - All Urban Consumers, Northea st Urban Area, available at http://www .bls.go v/cpi/ (la st visited A ug. 23, 2 004); Kerin , 218 F.3d at 194 (“the hourly rate . . . should only be increa sed by the cor responding Consumer Price I ndex for each year in which the legal work was p erforme d” (cita tions omitte d)). Ac cordingly, attorne y f ees awa rded for 2002 will be calculated at the hourly rate of $151.09 ($125.00 at 155.7 equates to $151.09 at 188.2); fees for 2003 will be calculated at the hourly rate of $155.35 ($125.00 at 155.7 equates to $155.35 at 193.5); and attorney

fees 2004 will be calculated at the hourly rate of $158.70 ($125.00 at 155.7 equates to $158.70 at 197.68) . 3. Plaintiffs are Allowed Under the EAJA to Recover for Fees for Work Performed by Summer Associates and Paralegals at the Prevailing Market Rate. Defendant does not challenge the pr evailing market rate that Plaintiffs claim for para legal services: $95.00 per hour for 2002; $100.00 per hour for 2003. Pls.’ B r. at 22-24; Proforma 1 at 1. Likewise, Defenda

nt does not challenge the market rate c laimed for summer associates, $95.00 to $115.00 per hour. Pls.’ Br. at 22-24; Proforma 1 at 1. Rather, Defe ndant claims that Plaintiffs should not be allowed to recover fees for wor k performed by

summer associates. Def.’s Resp. at 24. This Court has rejected the argument that summer associa te and law clerk work is not compensable under the EAJA. See Humane Soc’y , 159 F. Su pp. 2d at 7 12-13. The court has held that, in accordance with the Supreme Court’s decision in Missouri v. Jenkins , 491 U.S. 274, 287 (1989), “ the appr opriate compensa

tion for p araleg als, law c lerks, a nd summer

associa tes should be determined by

the marketplace.” Humane Soc’y , 159 F. Su pp. 2d at 7 12; see also Earth Island Inst. , 942 F. Su

pp. at 615 . Howeve

r, as det ailed in se ction 5 be low, the Co urt take s intoCt. No. 02-00152 Page 33

consideration Defendant’s arg ument that certain hours expended by the summer associates are unreasonable and excessive for the work per formed. 4. Plaintiffs are Not Allowed Double-Recovery for Fee s Already Awarded by t his Court in Tyc o I. In Tyco I , this Court awarded Plaintiffs $3,728.75 in attorney s fees for the work associated with responding to Defendant’s dilatory conduct in filing the First Rem and Resul ts and in conducting its investigation after the voluntary remand. See Tyco I

, 259 F. Supp. 2d at 1250-53 (“Plainti ffs’ co

unsel spe nt 48.1 hou

rs workin g on the ir responses to L abor’s t wo out of ti

me requests. . . . At the hourly r ates normally cha

rged by Plaintiffs’ counsel, the total attorney ’s fees amount to $7,457.50. . . . Although Plaintiffs’ submitted fees are reasonable, the Court finds that other fa ctors we igh in fa

vor of re ducing

the amoun

t of the sa nctions a gainst D efenda

nt. . . . Thi s Court awards attorney ’s fees to Plaintiffs in the amount of $3,728.75, one half of the amount requested.” (internal citations omitted)). Defenda nt contends that Plaintiffs were compensated for this work when Labor complied with this Court’s order to pay such fees. Def.’s Resp. at 28. Plaintiffs do not contest this fact and consent to a reduction in fees of $3,728.75 as alre ady awarded. Pls.’ Reply

to Def.’s Resp. To Pls.’ Application for Att’y ’s Fees and Expenses at 21. Theref ore, the Court dire cts that a

reducti on of $3,7 28.75 re present ing fee s alrea

dy a warded shall be refl ected in

the over all total g ranted t o Plaintiff

s. 5. The Hours

Listed in the

Profor ma 1 and P roform a 2 Statem ents are Reasonable with t he Exc eptio n of Ce rtai n Entries D iscus sed Be low. This Court finds that the hours requested in Plaintiffs’ application are reasonable w ith the exception of the entries addressed below. Based on the inadequate work descriptions provided for the following entries, the Court declines to award fe es for the hours claimed:Ct. No. 02-00152 Page 34

3 In their brief, Plaintiffs note that Mr. L indorf worked as a summer associate in 2002 and then joined the firm as an associate in September 2003. (Pls.’ Br. at 21 n.3.) The Court takes this into consideration when making its adjustments to the fees requested. • 1.1 hours claimed for work by Mr. Benjamin R. Lindorf 3 on June 11, 2002 (Proforma 1 at 3 (no de scription

provided for the hours wor

ked));

• 0.2 hours claimed for work by Mr. Francisco Orellana on June 26, 2002 (Proforma 1 at 4 (descr iption rea ds “DEL ETE”)) ;

• 0.6 hours claimed for work by Mr. Francisco Orellana on April 14, 2003 (Profor ma 1 at 9 (description reads “Review of Court’s docket”) );

• 5.9 hours claim for work performed by Mr. Benjamin R. Lindorf on November 20, 21, 24 and 25, 2003 (Proforma 1 at 11 (descriptions read “Prepa re EJA proposal for settlement purposes”; “Prepare EI A Proposal for settlement purposes; send report letter to court”; “Prepare EI

A Proposal for settlement purposes; send report letter to court”; “Prepar e EI A Proposa

l for sett lement pu rposes; s end repo

rt letter to court; c all clien

t to give update”));

• 2.6 hours claimed for work performed by Mr. Jimmie Reyna on January 30, 2004 (Proforma 1 at 13 (description reads “Resear ch”));

• 1.3 hours claimed for work performed by Mr. Francisco Orellana on April 12, 2004 (Proforma 2 at 4 (description reads “Attention to file”))

. “An appl icant must

itemize fe es and expe

nses with suff

icient spe cificity

to allow th e court t

o determine what work is being claimed.” Traveler Trading Co. v. United States , 713 F. Supp. 409, 415 (Ct. I nt’l Tra de 1989)(emphas is added) (citing Napora no Ir on & Meta

l Co. v. Unit

ed States , 825 F.2d 4 03, 404 (F ed. Cir. 1 987)). Co urts have held that vague or ambig uous entr ies “re nder it difficult for the court to ascertain the reasona bleness of the hours billed.” Am. Wrecking Corp. v. Sec’y of Labor , 364 F.3d

321, 329 (D.C. Cir. 2 004). Eve n when comparing

these en tries liste d in Plaintiffs’ Proforma statements against the docket of this case a nd the record before the Court, the Court is unable to determine what work is being claimed. Thus, this Court deducts 10.6 attorney hours (0.2 in 2002; 6.5 in 2003; 3.9 in 2004) and 1.1 summer associate hours (at the $115 perCt. No. 02-00152 Page 35

4 The 150.8 hours listed for summer associates in connection with drafting the 56.1 brief are as follows: 0.5 hours of work performed by Mr. Benjamin R. Lindorf on May 21, 2002 (description reads “Beg an preliminary w ork on standards of proof and eligibility determination for TAA [].”); 1.5 hours of work performed by Mr. Benjamin R. Lindorf on May 28, 2002 (description reads “Research statutory requirements for [TAA] under NAFTA implementation.”); 6.5 hours of work performed by Mr. Benjamin R. Lindorf on May 29, 2002 (description reads “Researched the standards of re view for agency

determination of NAFTA-TAA; bega n outline on findings.”); 3.2 hours of work performed by Mr. Benjamin R. Lindorf on June 7, 2002 (description reads “Beg an work on brief - outlined format for brief (motion for judg ment on agency record) and wrote introduction and standard of review.”); 3.1 hours of work performed by Mr. Benjamin R. Lindorf on June 10, 2002 (description rea ds “Drafted statement of the case, reviewed administrative record (public version); did pre liminary resea rch on 2-step production shifts.”); 6.2 hours of work performed by Mr. Benjamin R. Lindorf on June 17, 2002 (description reads “Research pointed arg uments on brief; met with J. Reyna to go over argument structure; research case law. ”) ; 4.8 hours of work performed by Mr. Benjamin R. Lindorf on June 19, 2002 (description reads “Research other da tabases, began memorandum drafting data table from Ty

co DOL resear

ch.”); 4.8 hours of work performed by Mr. Benjamin R. Lindorf on June 20, 2002 (description reads “Finished Ty co data; preliminary

analysis; contacte d DOL to see about accessing records; statute or ca se review; began arg ument section of brief.”); 8.1 hours of work performed by

Mr. Benjamin R. Lindorf on June 21, 2002 (description rea ds “Research case law and agency

determinations.”); 7.2 hours of work performed by Mr. Benjamin R. Lindorf on June 24, 2002 ( descrip tion rea

ds “Worke d with J. Mina rczik on pr

oject; fi nished out

line; mee ting with J. Minarczik and F. Orellana.”); 6.0 hours of work performe d by Ms. Jennifer A. Minarczik on June 24, 2002 (description reads “Research for NAF TA-TAA brief; develop outline for Part I I. Research “sub stantial e vidence” and l egislative h istory; meeting wi th B. Lindorf & F. Orellana.”); 7.5 hours of work performe d by Mr. Be njamin R. Lindorf on June 25, 2002 (description reads “Completed first draft of arg ument section.”); 9.3 hours of work performed by hour rate) from Plaintiffs’ application for these inadequa te entries. The Court finds that the hours requested by Plaintiffs are reasonable for the tasks perfor med with th e excepti on of the hours soug ht (1) in c onnection with drafting Pla intiffs’ first 56.1 motion and (2) in connection with drafting Plaintiffs’ application for fee s under the EAJA. First, the Court finds that the summer associate hours sought in connection with the draf ting of Plaintiffs’ first 56.1 Motion are excessive. For the six weeks prior to filing Plaintiffs’ first 56.1 brief, Pl aintiffs ’ applic ation lists 150.8 hours worked

by s ummer ass ociates

in connec

tion with drafting Plaintiffs’ first 56.1 brief, 4 in addition to the 45.7 hours listed for attorney wor k on theCt. No. 02-00152 Page 36

Ms. Jennifer A. Minarczik on June 25, 2002 (description reads “Research and draf t Part II of NAFTA-TAA brief; consolidate Parts with B. L indorf; create new outline; meet with J. Rey na for approval and direction.”); 13.7 hours of work pe rformed by Mr . Benjamin R. Lindorf on June 26, 200 2 (descrip tion

rea ds “ Mer ge d br ief s and co mple

tel y finish ed 2 nd d

raf t wi th J. Minarczik.”); 13.3 hours of work performed by Ms. Jennifer A. Minarczik on June 26, 2002 (descr iption rea ds “Continu

e resea rch on NA

FTA-TA A memo. Re

vise state ment of fa

cts, cre ate table of contents, cross-check rules, revise /create confidential record.”) ; 15.1 hours of work performed by

Mr. Benjamin R. Lindorf on June 27, 2002 (description rea ds “Third draft of brief.”); 11.4 hours of work performed by Ms. Jennifer A. Minarczik on June 27, 2002 (description reads “Revise brief; work on table of a uthorities; draft conclusion; rule 51 statement.”); 14.2 hours of work performed by Mr. Benjamin R. Lindorf on June 28, 2002 (descr iption rea ds “Hawks - final d

raft and filed c opy .”); 14.4 hours of work perf

ormed by Ms. Jennifer A. Minarczik on June 28, 2002 (description reads “Finish brief for filing in Court of International Trade . Create Table of Contents, revise.”).

5 The 45.7 hours listed for attorney s in connection with drafting the 56.1 brief are a s follows: 1.8 hours of work performed by Mr. Francisco Orellana on June 11, 2002 (description reads “Meeting w/ summer associate L indorf to strategize and draft brief; rese arch for brief.”); 1.0 hours of work performed by Mr. Francisco Orellana on June 12, 2002 (description rea ds “Meeting w/ partner to review stra tegy for brief, review results to date.”); 2.4 hours of work performed by

Mr. Jimmie Renya on June 17, 2002 (description reads “Attention to 56.1 brief.” ); 0.7 hours of work performed by Mr. Francisco Orellana on June 17, 2002 (description rea ds “Analysis of TAA

issues for court case.”); 2.4 hours of work per formed by Mr. Jimmie Rey na on June 18, 2002 (description reads “56.1 Brief”); 3.7 hours of wor k performed by

Mr. Francisco Orellana on June 20 , 2002 (de scription reads “ Review a

nd analy sis of I TC data f

or fiber optics; review and analysis of cases.”); 3.6 hours of work performed by Mr. Francisco Orellana on June 21, 2002 (description reads “Meeting with summer associa te; preparation for brief; analy sis of cases; analy sis of Federal Register Notices.”) ; 2.4 hours of work performed by Mr. Jimmie Reyna on June 24, 2002 (description reads “Attention to Brief.”); 2.3 hours of work pe rformed by Mr

. Francisco Orellana on June 24, 2002 (description rea ds “Review and analy sis of record; draft of outline and meeting with summer associates rega rding draft to brief.”); 3.5 hours of work performed by

Mr. Jimmie Reyna on June 25, 2002 (description reads “Attention to, review results to date; assign tasks; 56.1 Brief.”); 4.6 hours of work pe rformed by Mr . Jimmie Reyna on June 27, 2002 (description reads “Attention to Brief 56.1, review dra fts, male changes.”); 3.5 hours of work performed by Mr. Francisco Orellana on June 27, 2002 (description rea ds “Redlining for document; research of c ases concerning substantial evidence.” ); 5.0 hours of work performed by

Mr. Jimmie Reyna on June 28, 2002 (description reads “56.1 B rief”); 8.8 hours of work performed by

Mr. Francisco Orellana on June 28, 2002 (description rea ds “Research and analysis of ca ses; draft of order; memorandum and motion; organization of brief; dra fting of public version; delivery to post offic e; APO compliance.”). brief. 5 Proforma

1 at 3-5. T

he Court f

inds that the summer a ssociate hours re quested i

nCt. No. 02-00152 Page 37

6 Plaintiffs’ statements reflect that counsel spent 17 hours in 2003 and 50.9 hours in 2004 working on the EAJA application. (Proforma 1 at 9-10, 12; Proforma 2 at 3-4.) T he 17 hours listed in connection with drafting the EAJA application in 2003 are as follows: 2.5 hours of work performed by

Mr. Francisco Orellana on July 30, 2003 (description reads “Review of Fede ral Circuit case and preparation for draf ting application for fees.”); 1.9 hours of work pe rformed by Mr. Fra ncisco O rellana

on July 31, 2003 ( descrip tion rea ds “Meet ing with s ummer ass ociate Brad Nowak to discuss assignment on application for a ttorney’s fe es ; review of information.”); 2.4 hours of work performed by Mr. Francisco Orellana on Aug ust 1, 2003 (description reads “Research and review of ca ses concerning application of EAJA funds.”); 1.6 hours of wor k performed by

Mr. Francisco Orellana on Aug ust 4, 2003 (description reads “Review draft of application for EAJA funds.”); 1.6 hours of work performed by Mr. Francisco Orellana on August 5, 2003 (description reads “Review of dra ft of application for EAJA funds.”); 1.8 hours of work performed by

Mr. Francisco Orellana on Aug ust 6, 2003 (description reads “Review of draft of application for EAJA funds.”); 1.6 hours of work perf ormed by Mr. Francisco Orellana on August 7, 2003 (description reads “Attention to EAJA brief.”); 0.6 hours of wor k performed by Mr. Fra

ncisco Orellana on August 8, 2003 (description rea ds “Attention to EAJA brief.”); 1.6 hours of work performed by Mr. Francisco Orellana on Aug ust 11, 2003 (description reads “Editing of EAJA brief.”); 0.9 hours of work perfor med by Mr. Fr

ancisco Orellana on August 12, 2003 (description reads “Editing of EAJA brief; report to par tner on EAJA application.”); 0.5 hours of work performed by Mr. Francisco Orellana on Dec ember 12, 2003 (description reads “Analysis of issues conc erning EAJA fees and preparation of status of c ase for Court.”). The 50.9 hours listed in connection with drafting the EAJA application for 2004 are a s follows: 1.8 hours of work performed by Mr. Francisco Orellana on Fe bruary 12, 2004 (description reads “Research EAJA.”);1.9 hours of work performed by Mr. Francisco Orellana on February 13, 2004 (description reads “Attention to brief for EAJA.”)); 1.1 hours of wor k per for med by Mr. Ben jamin R. Li

ndo rf o n Fe

bruary 18, 200 4 (descrip tion

rea ds “Update

EAJA brief with new cases and new fac ts.”); 1.6 hours of work performed by Mr. Francisco Orellana on February 18, 2004 (description reads “Review of brief for attorney’s f

ees.”); 0.2 hours of work per for med by Mr. Ben jamin R. Li

ndo rf o n Fe

bruary 19, 200 4 (descrip tion

rea ds “Update

EAJA brief with new cases and new fac ts.”); 1.7 hours of work performed by Mr. Francisco Orellana on connection with the drafting of Plaintiffs’ first 56.1 brief to be unre asonable. The Court reduces the summer associate hours awarded for this work by half; thus, the Court deducts 75.4 hours from those requested for summer associates in Plaintiffs’ application. Second, t he Court f

inds that the total ho

urs requ ested for work on

Plaintiff s’ EAJA bri ef is also excessive. Plaintiffs’ Proforma statements indicate that Plaintiffs’ counsel worked 100.1 hours on drafting the EAJA brief, including 67.9 attorney hours 6 and 38.5 summer associateCt. No. 02-00152 Page 38

February 19, 2004 (description reads “Research on attorne y’s fee s under EAJA and inclusion of new cases into brief.”); 1.9 hours of work per formed by Mr. Francisco Orellana on April 2, 2004 (description reads “Attention to file; telephone confere nce with client; and initial preparation for EAJA brief.”); 2.3 hours of work performed by Mr. Francisco Orellana on April 5, 2004 (description reads “Research, dra ft, edit EAJA brief.”); 1.7 hours of work performed by Mr. Francisco Orellana on April 8, 2004 (desc ription reads “Research, draft, edit EAJA brief.”) ; 2.1 hours of work performed by Mr. Francisco Orellana on April 9, 2004 (desc ription reads “Resea rch, dra ft, edit E AJA brief; telephone confe rence w ith Ms. Ham

ilton; atte ntion to litigation file.”); 6.0 hours of work performed by Mr. Jimmie Reyna on April 11, 2004 (description reads “Draft, edit EAJA brief.”); 5.6 hours of work performed by

Mr. Jimmie Reyna on April 13, 2004 (description reads “Draft, edit EAJA brief.”); 1.8 hours of work performed by Mr. Francisco Orellana on April 13, 2004 (desc ription reads “Research on Equal Justice Act.”); 4.5 hours of work p erforme d by

Mr. Jimmie Re

yna on April 14 , 2004 (de scription reads “ Draft, edit EAJA brief.”); 2.7 hours of work performed by Mr. Francisco Orellana on April 15, 2004 (description reads “Research, dra ft, edit EAJA brief.”); 0.5 hours of work performed by Mr. Francisco Orellana on April 16, 2004 (desc ription reads “Research, draft, edit EAJA brief.”) ; 1.8 hours of work performed by Mr. Francisco Orellana on April 20, 2004 (desc ription reads “Research on CIT c ases involving EAJA fees.”)); 1.1 hours of work perf ormed by Mr. Francisco Ore lla na o n Ap ril

21, 200 4 (descrip tion

rea ds “ Res ear

ch o n Fe der

al c ase s in

volvin g EA

JA fees.”); 1.8 hours of work performed by Mr. Jimmie Reyna on April 22, 2004 (description reads “Review progress on EAJA brief.”); 1.0 hours of wor k performed by

Mr. Francisco Orellana on April 22, 2004 (description reads “Research on ca ses involving attorney ’s fees.”); 0.9 hours of work per formed by Mr . Franc isco Ore llana on A pril 23, 20 04 (desc

ription re ads “Atte

ntion to fil e and EAJA brief.”); 0.8 hours of work performed by Mr. Jimmie Reyna on April 27, 2004 (description reads “Outline EAJA strategies.”); 2.1 hours of work performed by

Mr. Francisco Orellana on April 27, 2004 (description reads “Attention to legislative intent on EAJA.”); 2.5 hours of work performed by Mr. Francisco Orellana on April 28, 2004 (desc ription reads “Attention to and review cases for EAJA brief.”); 1.5 hours of work performed by

Mr. Francisco Orellana on April 29, 2004 (description reads “Attention to case s on EAJA brief.”).

7 The 38. 5 ho urslist

ed f or summe r as soc iat es i

n co nne cti on w ith d

raf ting the EAJA application are as follows: 3.0 hours of work performed by Mr. Brad Nowak on July 30, 2003 (description reads “Reviewed CIT materials, researched Westlaw for ca ses related to the recovery of pro bono claims under EAJA. Researched CI T cases for EAJA recovery .”); 7.0 hours of work perfor med by Mr. Bra d Nowak on July

31, 2003 ( descrip tion rea ds “Revie wed CI T materia

ls, researched Westlaw for cases r elated to the recovery

of fees for specialized counsel; drafted memorandum in support of attorney fees under EAJA. Reviewed CIT c ases and Court of Appeals cases for specialized attorney fee.”); 4.2 hours of work performed by Mr. Brad Nowak on August 1, 2003 (description reads “Researc hed Westlaw for cases related to the recove ry of fees for substantial justification; edited draft memorandum in support of fees.” ); 7.3 hours of work performed by

Mr. Brad Nowak on August 4, 2003 (desc ription reads “Edited draft hours. 7 Although fees are ge nerally allowe d for preparation of the EAJA application, see Keely v.Ct. No. 02-00152 Page 39

memorandum, corrected citations, shepardized curre nt cited cases, reviewed rece nt CIT.”); 5.3 hours of work performed by Mr. Brad Nowak on August 5, 2003 (desc ription reads “Edited draft memorandum, corrected citations, reviewed Court of A ppeals cases which granted fe es.”); 4.5 hours of work performed by Mr. Brad Nowak on August 6, 2003 (desc ription reads “ Edited draft memorandum, edited record citations, reviewed EAJA filing for m.”); 5.5 hours of work perfor med by Mr. Bra d Nowak on August

7, 2003 (d

escripti on reads

“Edited d

raft memorandum, cal led CI T fo r do cket ma

ter ial s, r evi ewe d EA

JA an not ati ons , re sea

rch Rule 16 a nd EAJA recovery .”); 1.7 hours of work performed by Mr. Brad Nowak on August 8, 2003 (desc ription reads “Shepardized cases, cite chec ked, edited corrected memo.”).

8 Plaintiff s reques t $119,966 .50 in fee s. (Pls.’ B r. at 22.) Using Pla

intiffs’ hourly

rates, the fees associated with preparing Plaintiffs’ EAJA application total $18,966.50. ( See Proforma 1 at 9-10, 12; Proforma 2 at 3-4) (accounting f or 18.7 hours at $365 per hour; 30.9 hours at $180 per hour; 17 hours at $160 per hour; 1.3 hours at $155 per hour; and 38.5 hours a t $95 per hour).) Merit Systems Protection Bd. , 793 F.2d 1273, 1275 (Fed. Cir. 1986) (“[Plaintiff] is entitled to an award of attorney

fees and expenses . . . including fees and expenses for preparing the application under the EAJA.” (c itation omi

tted)); Devine v. Sutermeister , 733 F.2d 892, 899 (Fed. Cir. 1984) (“[The G overnme

nt] conce des that the time spe nt drafti ng the E AJA fee a pplication is reco verable if [the plaintiff] is otherwise entitled to recover.” (citations omitted)), the Court finds that the hours re quested a

re unre asonable

for the ta sk performed. The fees sou ght for prepar ing Plain tiffs’ EAJA application are approximately one- sixth of the total fees requested. 8 The Court finds this t

o be excessive for the twenty-five page memorandum plus attachments that was f iled in support of Plaintiffs’ application. Therefore, the Court exercises its discretion to deduct one-third of the 67.9 attorney hours r

equested for preparing Plaintiffs’ EAJA application: 22.63 hours (6.78 in 2003; 15.85 in 2004). 6. Plaintiffs are Entitled to Recover Fees for the Work P erformed After Certification and Before a Final Judgment was Entered in This Case. Sixth, the Court holds that Plaintiffs are entitled to recover fees for the work performedCt. No. 02-00152 Page 40

9 See Proforma 1 at 9 (1.9 hours of work on July 10, 2004 ( description reads “Review of Labor’s Revised Remand Dete rmination; report to Jimmie Reyna on L abor’s papers”)); (2.8 hours of work on July 15, 2004 (description rea ds “Preparation of Response to La bor’s Revised Determination Remand”)); (1.9 hours of work on July 18, 2004 (description reads “Drafting of Response to Defendant’s Revised Determination on Remand”)); (1.3 hour s of work on July 21, 2004 (description reads “Editing of Response to Defe ndant’s Revised Determination on Remand” )); (2.3 hours of work on July 25, 2004 ( descrip tion rea ds “Editin

g of cli ents’ re sponse to Labor’s Revised Determination on Remand. Drafting of letter and certifica tes to CIT. Filing of document”).

10 See Proforma 2 at 4 (1.2 hours of work performed by Mr. Jimmie Reyna on April 14, 2004 (description reads “Review and analy ze Court’s decision”) (1.5 hours of work performed by Mr. Francisco Orellana on April 14, 2004 (desc ription reads “Attention to decision rendered by after certification and before a final judgment was entered in this case. Contrar y to Defenda

nt’s contentions, the fees requested by Plaintiffs for work performed after June 25, 2003, the day on which Labor cer

tified Plaintiffs, does not reflect “post-judgment activity .” See Def.’s Resp. at 25. Rather, the final judgement in this case was entere d on April 14, 2004, pursuant to proposed judgment orders submitted by the parties on March 19, 2004, and March 26, 2004. After the Plaintiffs were certified, Plaintiffs counsel drafted Plaintiffs EAJA application, which, as discussed above, is compensable activity under the EAJA, and worked with Defendant’s counsel to reach an agree

ment regarding the final judg ment to be entered in this case. The Court holds that such work is no t preclu

ded from recove ry under the EAJA. Howe

ver, the Court dec lines to award the full amo

unt of fe es reque sted for

work per formed a fter L abor ce

rtified Pl aintiffs . First, the Court finds that the 10.2 hours worked by Mr. Francisco Orellana on revie wing Labor’s Second R emand Re

sults and drafting Plaintiffs’ one paragraph response to be excessive for the task performed. 9 The Court exercises its discretion and deducts one-half of the hours re quested, 5.1 hours, from the award. The Court also declines to awar d fees for 2.7 hours of worked performed after this Court entered final judg ment in this case. 10 While ack nowledging that

someCt. No. 02-00152 Page 41

court”)).) types of post-judg

ment activity are c ompensable as necessarily tied to the initial case, this Court finds time spent reviewing the underly ing decision was not necessary to prepare the case at hand. Jenkins by Jenkins v. Mo. , 127 F.3d 709, 716-17 (8th Cir. 1997) (“Some ty pes of post-judgment activities are readily

seen to be necessary

adjuncts to the initial litigation, whereas other ty pes of activites are more like a new, separa te lawsuit and require a fee determination indepe ndent of the underlying

case.”) E. Final C alculatio n of Fees and Expenses

Awarded. Plaintiffs’ statements reflect 707.8 hours worked: 479.7 hours for attorney s; 219.7 hours for summer associates; and 8.4 for paraleg als. See Proforma 1; Proforma 2. The 138 attorney hours claimed in 2002 are reduced by the 43 hours already

compensated for in Tyco I for work performed that y

ear, and reduced by

the 0.2 hours for inadequate descriptions in the entries. The 200.3 attorney

hours cla imed in 200 3 are re duced by the 12.5 hours alr

eady compensa

ted for in Tyco I for work performed that y ear, 6.5 hours for inadequate descriptions in the entries, a nd 6.78 hours for excessive

fees for Plaintif

fs’ EAJA a

pplication. The 141 .4 attorney hours cla imed in 2004 are reduced by

3.9 hour for inadequate descriptions in the entries, 15.85 hours for e xcessive fees for Plaintif

fs’ EAJA a

pplication; 5.1 hours for exce ssive hours rega rding Pla intiffs’ response to La bor’s Second R emand Re

sults , and 2.7 hours for noncompensable post-judgment work. The 38.5 summe

r associ ate hours claimed at the $95 per hour

rate sta nd. The 18 1.2 summer

associa te hours claimed at the $115 per hour rate are reduced by

1.1 hours for inadequate descriptions in the entries and reduced by

75.4 hours for excessive fees relating to the first 56.1 brief . The 1 hour of paralegal work claimed at $100 pe r hour stands. The 7.4 hours of paralega l work claimed at $95Ct. No. 02-00152 Page 42

per hour are reduced by

the 1.3 hours already

compensated in Tyco I

. The foll owing chart re flects the fina l fee ca lculation s:

Topic Hours Claimed Hours

Deducted Hours

Allowed Rate Fee Allowed Attorney Hours 2 002 138 <43.2> 94.8 $151.09 $14323.33 Attorney Hours 2 003 200.3 <25.78> 174.52 $155.35 $27111.68 Attorney Hours 2 004 141.4 <27.55> 113.85 $158.70 $18067.99 Summer Associate Fees at $95 per hour 38.5 <0> 38.5 $95.00 $3657.50 Summer Associate Fees at $115 per hour 181.2 <76.5> 104.7 $115.00 $12040.50 Paralegal Fees at $9 5 per hour 7.4 <1.3> 6.1 $95.00 $579.50 Paralegal Fees at $1 00 per hour 1 <0> 1 $100.00 $100.00 TOTAL 707.8 <174.33> 533.47 $75880.50

Although this Court declines to award post-judgment fees for reviewing the underly

ing decision, see section D.6, the attorney ’s fees of $27.20 associated with this case are c ompensable. Schuenemeyer v. United States , 776 F.32 9, 333 (F ed. Cir. 1 985) (hol ding att orney fees inc urred in the preparation of an application for fee s compensable under the EAJA). The reasonableness of Plaintiffs’ claimed expenses is not challenged: the Court awards the full $27.20 claimed. The Court arrives at a final award of $75,907.70. C ONCLUSI ON This Court h

olds that Pla

intiffs’ applica

tion for f ees and e xpenses und

er the EA JA meets the necessary

requirements and is granted beca use Defendant’s position in this litigation was not substantially justified and no other rea sons make an award unjust. See 28 U.S.C. § 2 412(d). T his Court awards attorney

fees based upon the statutory cap of $125 per hour with a cost of livingCt. No. 02-00152 Page 43

adjustment, and declines to award any fees for certain unreasonable and excessive entries included in Plaintiffs’ application as detailed above. Plaintiffs are awarde d $75,907.70 for fees and expenses under the EAJA.

/S/ Gregory W. Carman Gregory W. Carman Judge Dated: September 16, 2004 New York, New York