amount of money paid by these two dismissed corporations. Quite simply, he argues, because this Court dismissed Valley Farms, Inc., and Guers Diary, Inc., prior to the conclusion of the case. They were, therefore, no longer parties to the action let alone "prevailing part[ies]" within the meaning of the EAJA.
It is unfortunate that this Court could not find any cases to firmly support either argument offered by the parties. However, this Court is swayed by the logic of the Secretary's position, and this Court has an indication that the Third Circuit would agree with it.
A party to an action is deemed prevailing if it has received all the relief that it requested. Natural Resources Defense Council v. U.S.E.P.A., 703 F.2d 700, 704 n.5 (3d Cir. 1983). See also Tressler v. Heckler, 748 F.2d 146, 149 (3d Cir. 1984). In this case, Valley Farms, Inc., and Guers Diary, Inc., were not parties to the action when this Court permanently enjoined the government from implementing the changes to the milk marketing areas. They were not and are not in a position to request any relief from this Court. The fact that the remaining plaintiffs received the relief requested does nothing to change the fact that Valley Farms, Inc., and Guers Diary, Inc., have no rights under the EAJA. Plaintiffs are entitled to recover the attorney's fees and expenses paid only by "prevailing part[ies]". Thus, plaintiffs may recover only thirty percent (30%) of the amount ultimately determined to be compensable.
II. Substantial Justification
The EAJA provides for the award of attorney's fees and costs "unless the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A). "Substantially justified" has been defined to mean "justified to a degree that would satisfy a reasonable person." Pierce v. Underwood, et al., 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490, 504 (1988). This definition is no different from the "reasonable basis both in law and fact" formulation adopted by the Third Circuit. Id. at 505, Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 593 (3d Cir. 1984). The test, therefore, is "essentially one of reasonableness. Dougherty v. Lehman, 711 F.2d 555, 561 (3d Cir. 1983).
The Secretary argues that the award of attorney's fees and costs should be reduced because plaintiffs advanced two legal theories on which they did not prevail. The first was the government's alleged reliance on non-record evidence in reaching its decision to alter the size of the milk marketing areas. The second was whether the Court could review certain certifications made by the government pursuant to the Regulatory Flexibility Act, 5 U.S.C. §§ 601-612. This Court did not reach the first issue and held that it could not review the second. As a result of the court's decision, the Secretary argues that his position as to these two issues was substantially justified.
The Secretary states that his arguments are supported by the Third Circuit's holding in Goldhaber v. Foley, 698 F.2d 193 (3d Cir. 1983). In that case, the Plaintiff offered two legal theories in support of its requested relief. The court held for the plaintiff on only one of those theories and proportionately reduced plaintiff's requested award for fees and costs. The Secretary requests that this Court do the same. The Secretary, however, fails to note a subsequent Third Circuit case which stated that "the [district] court was correct to reject any suggestion that the court should focus on discrete arguments rather than essential claims." Brinegar, 741 F.2d at 595.
The Goldhaber decision does not require an apportioning of fees and costs "according to individual points of argument won and lost. Such an approach would turn litigation such as this, already cumbersome by its very nature, into a competition where relating point scores for each argument would be totaled." Id. The focus, therefore, should be the major claims asserted by the plaintiff. Id.
In this case, the plaintiffs were seeking to permanently enjoin the Secretary from changing the size of two (2) federally regulated milk marketing areas. This Court granted the injunction because the Secretary's "Findings and Conclusions" were not supported by substantial evidence. See Lehigh Valley Farmers, et al. v. Block, 640 F. Supp. 1497 (E.D. Pa. 1986), aff'd, 829 F.2d 409 (3d Cir. 1987). The failure to comply with proper administrative procedures, therefore, was the crux of plaintiffs' claim. The two issues on which the Secretary claims his position was substantially justified were closely entwined with the search for substantial evidence to support the Secretary's "Findings and Conclusions." This Court found no such support, and even though it "did not reject every argument raised by the Secretary; in view of the deficiencies in the procedures followed by the government, the Secretary's position cannot be reasonably termed substantially justified." Brinegar, 741 F.2d at 595 (emphasis added). The amount recoverable, therefore, remains unchanged.
III. Hourly Rate
The Secretary objects to the $ 90 hourly rate charged by plaintiffs' attorney. The EAJA provides for a $ 75 per hour cap "unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A)(ii).
The Supreme Court, in Pierce, held that the exception for "limited availability of qualified attorneys for the proceedings involved" refers to attorneys "qualified for the proceedings" in some specialized sense, rather than in general legal competence. Pierce, 101 L. Ed. 2d at 509. The Court stated that this subsection includes attorneys having some distinctive knowledge or specialized skill needful for the litigation in question. Id. "Examples of the former would be an identifiable practice speciality such as patent law, or knowledge of foreign law or language." Id. Such qualifications warrant the award of a rate in excess of the $ 75 cap. Id.
This Court believes that plaintiffs' attorney's qualifications fall squarely within the test stated by the Supreme Court. Mr. Beshore worked for The Department of Agriculture in 1974 and 1975 during which time he dealt with the enforcement and administration of federal milk marketing orders. (See Mr. Beshore's resume). Many of Mr. Beshore's present professional memberships are agriculture related. (Id.) In addition, Mr. Beshore has written, for publication, a chapter in a book which surveyed the law concerning federal marketing orders. (Id.) In fact, the Secretary admits that plaintiffs' attorney has a good deal of familiarity with federal milk marketing orders, but states that incomparable expertise and a high degree of specialization are not sufficient grounds to justify exceeding the $ 75 cap. (See Defendant's Reply, p.18). The Supreme Court, however, has stated that incomparable expertise and a high degree of specialization are sufficient grounds to justify exceeding the $ 75 cap. The award, therefore, will not be further reduced.
The Secretary argues that the costs and expenses claimed by the plaintiffs are not all recoverable under the EAJA. Resolution of this issue requires consideration of three (3) EAJA provisions. Title 28 U.S.C. § 2412(a) provides in part:
[A] judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.