Full opinion text
OPINION RIDGWAY, Judge. In this action, former employees of Houston, Texas-based BMC Software, Inc. (“the Workers”) successfully challenged the determination of the U.S. Department of Labor denying their petition for certification of eligibility for trade adjustment assistance (“TAA”) benefits. See generally Former Employees of BMC Software, Inc., 454 F.Supp.2d 1306 (CIT 2006) (BMC); Notice of Revised Determination on Remand, 69 Fed.Reg. 76,783, 76,784 (Dec. 22, 2004). Now pending before the Court is Plaintiffs’ Application For Fees and Other Expenses Pursuant to the Equal Access to Justice Act, which the Government opposes. See generally Application For Fees and Other Expenses Pursuant to the Equal Access to Justice Act; Memorandum in Support of Application for Attorneys’ Fees; and Accompanying Exhibits (“Pis.’ Application”); Defendant’s Response to Plaintiffs’ Application for Attorney Fees and Expenses (“Def.’s Response”); Memorandum in Reply to Defendant’s Response to Plaintiffs’ Application for Attorney Fees and Expenses (“Pis.’ Reply”). For the reasons discussed more fully below, Plaintiffs’ Application For Fees and Other Expenses is granted in part. I. Background The Workers’ former employer, BMC, is a “Fortune 1000” company, and one of the largest software vendors in the world. Among other things, BMC designs, develops, produces and sells business systems management software, which is distributed both in “object code” form and on a “shrink-wrap” basis. BMC’s competitors include industry giants and household names such as IBM, Computer Associates, Microsoft, Sun Microsystems, and Hewlett Packard. See BMC, 454 F.Supp.2d at 1313. The four former employees who filed the TAA petition at issue here were involved in the production and distribution of BMC software products. Those products were mass-replicated at the Houston facility where they worked (as well as at several other BMC facilities), and were often shipped on physical media including CD-ROMs, packaged with user manuals. See BMC, 454 F.Supp.2d at 1313. The Workers’ employment at BMC was terminated in early August 2003, as part of a round of lay-offs reported in an article published in the Houston Chronicle. The news article explained: The company will spend $60 million this year to restructure. Jobs in sales, research and development, information technology, and administration will be shed. The company will offset some of the cuts by adding research and development jobs and positions in information technology to offshore facilities in India and Israel, making the net reduction more like 8 percent when all is done. BMC, 454 F.Supp.2d at 1313-14 (quotation omitted) (emphases added). A copy of the Houston Chronicle article was enclosed with the petition for TAA benefits that the Workers filed with the Labor Department in late December 2003. The petition alleged, inter alia, that the company was shifting jobs “offshore to India and Israel.” Appended to the Workers’ petition were some 25 pages of announcements of job vacancies — primarily at BMC facilities in India and Israel— printed out from the company’s website. See BMC, 454 F.Supp.2d at 1314. In mid-January 2004, the Labor Department contacted BMC management concerning the Workers’ TAA petition. Asked to “[bjriefly describe the business activities of BMC Software, Inc.,” the company’s Senior Manager for Human Resources responded by parroting — verbatim — a marketing pitch on BMC’s website: BMC Software, Inc. (NYSE: BMC), is a leading provider of enterprise management software solutions that empower companies to manage their IT infrastructure from a business perspective. Delivering Business Service Management, BMC Software solutions span enterprise systems, applications, databases and service management. See BMC, 454 F.Supp.2d at 1314-15 (citation and footnotes omitted). The Labor Department also asked BMC to advise whether the company’s Houston employees “produce an article of any kind or ... were engaged in employment related to the production of an article.” There too the Senior Manager for Human Resources failed to respond directly to the Labor Department’s inquiry, and instead proffered a “soundbite” plucked from the company’s promotional materials (available on the company website): BMC Software develops software solutions to proactively manage and monitor the most complex IT environments, enabling around-the-clock availability of business-critical applications. BMC also provides services to support its software products, including support and implementation services. See BMC, 454 F.Supp.2d at 1315 (citation omitted). With no further inquiry, the Labor Department denied the Workers’ TAA petition on January 20, 2004. The Labor Department ruled that the Workers “develop[ed] software solutions,” and thus “[did] not produce an article” within the meaning of the TAA statute. See BMC, 454 F.Supp.2d at 1315-16 (citations and footnotes omitted); see also 69 Fed.Reg. 11,887, 11,888 (March 12, 2004) (notice of denial of TAA petition) (ruling that “[t]he workers firm does not produce an article as required for certification [under the TAA statute]”). According to an undated internal agency memorandum documenting the “Findings of the Investigation,” the Labor Department concluded — solely on the strength of the information supplied by BMC’s Senior Manager for Human Resources — that the Workers were “engaged in the development of’ software, and thus “provide[d] development services.” To support the agency’s conclusion that “[BMC] [w]orkers do not produce an article,” the agency memorandum attributed a statement to that effect to BMC’s Senior Manager for Human Resources. In fact, however, the BMC official had not stated that the company does not produce a product. Indeed, the BMC official’s statement expressly referred both to the company’s “products” and to its provision of “services,” implicitly distinguishing between the two. The memorandum also stated that BMC’s “Standard Industrial Classification” (“SIC”) code is 7371 (the code for “Computer Programming Services”). As BMC noted, however, the source of that information was not specified, and the relevance and accuracy of the information are dubious at best. See BMC, 454 F.Supp.2d at 1316 (citations omitted). The Labor Department sent the Workers copies of its Negative Determination under cover of a standard form letter, which advised the Workers of their right to seek administrative reconsideration of the denial. Incredibly, that letter said nothing about the Workers’ right to challenge the Negative Determination in this court. See BMC, 454 F.Supp.2d at 1316-17 (citations omitted). The Workers timely sought reconsideration of the Labor Department’s denial of their TAA petition. In their request for reconsideration, the Workers disputed the agency’s determination that BMC did not produce an article. The Workers referred the agency to three specific URL locations on BMC’s website, including “an online store for purchasing BMC products and product lines.” The Workers also quoted the BMC website: Now you’re ready to shop online with BMC Software. Browse through the store by category or by the A-Z list below. If you know the name of your product, use the Product Name Search field to locate your product quickly. (Emphases added.) The Workers explained that “[t]he use of the term ‘solutions’ is misleading. Usage of the term ‘solutions’ within the BMC Software, Inc. web page and other places is synonymous with ‘product lines.’ ” And the Workers again stated that BMC was shifting work “to overseas companies as well as newly created BMC locations overseas.” The Workers added that software was also being “imported to make up the products and product lines that BMC Software, Inc. produces.” See BMC, 454 F.Supp.2d at 1317 (citations omitted). In response to the Workers’ request for reconsideration, a Labor Department staffer called BMC’s Senior Manager for Human Resources (the same company official who had responded to the agency’s initial request for information). The BMC official reportedly stated unequivocally that “no products are manufactured” by the company, and that the company’s software is not “recorded on media disks,” nor is it “mass-produced” or “sold off-the-shelf.” She reportedly further stated that “most [of BMC’s] software is customized for individual users,” and denied that jobs had been transferred abroad. See BMC, 454 F.Supp.2d at 1317 (emphasis added) (citation omitted). The Labor Department staffer failed to ask any follow-up questions concerning, for example, the nature and volume of BMC software that is not “customized for individual users”- — i.e., software that is mass-produced. Similarly, the staffer failed to explore with the BMC official the allegations of increased imports raised in the Workers’ request for reconsideration. Indeed, the agency staffer did nothing to confront the BMC official with any of the information provided by the Workers. Nor did the staffer contact any of the Workers (to verify the information provided by BMC), or take any other measures to try to reconcile the apparent discrepancies and inconsistencies in the information before the agency. See BMC, 454 F.Supp.2d at 1317. Based solely on its phone conversation with BMC’s Senior Manager for Human Resources, the Labor Department denied the Workers’ request for reconsideration. The Labor Department ruled once again that the Workers were “not considered to have been engaged in production.” See BMC, 454 F.Supp.2d at 1317-18 (citing 69 Fed.Reg. 20,642) (April 16, 2004) (notice of denial of request for reconsideration). The Labor Department’s notice denying the Workers’ request for reconsideration summarized the agency’s rationale, emphasizing the concept of “tangibility”: Software design and developing are not considered production of an article within the meaning of [the TAA statute]. Petitioning workers do not produce an “article” within the meaning of [that statute]. Formatted electronic software and codes are not tangible commodities, that is, marketable products, and they are not listed on the Harmonized Tariff Schedule of the United States (HTS), ... which describes articles imported to the United States. To be listed in the HTS, an article would be subject to a duty on the tariff schedule and have a value that makes it marketable, fungible and interchangeable for commercial purposes. Although a wide variety of tangible products are described as articles and characterized as dutiable in the HTS, informational products that could historically be sent in letter form and that can currently be electronically transmitted ... are not listed in the HTS. Such products are not the type of products that customs officials inspect and that the TAA program was generally designed to address. BMC, 454 F.Supp.2d at 1318-21 (emphases added) (citations omitted). This action ensued, commenced by the Workers’ letter to the court dated June 1, 2004 (deemed the Complaint in this matter, filed as of June 3, 2004). The attachments to the Workers’ letter included copies of photos of BMC software on physical media (such as CD-ROMs). See Complaint. In lieu of filing an Answer, the Government requested a 60-day voluntary remand to allow the Labor Department to conduct a further investigation and to make a redetermination as to the Workers’ eligibility for TAA benefits. As grounds for the voluntary remand, the Government cited the Labor Department’s “need[] to resolve an apparent conflict between information provided by company officials and information provided by the petitioners”— specifically, whether BMC produces “articles.” And, as counsel for the Government candidly conceded, the “conflict” between information provided by the Workers and that provided by BMC was “apparent” during the course of the Labor Department’s investigation — long before the Workers filed their Complaint with the Court. See BMC, 454 F.Supp.2d at 1321 & n. 24; Defendant’s Second Amended Motion for Voluntary Remand, at 3 (citing, as grounds for remand, not only the photos of software attached to the Workers’ Complaint, but also information that had been included in the Workers’ request for reconsideration). Counsel were appointed to represent the Workers, and played an integral role in structuring the Court’s Remand Order. The Workers noted that the Labor Department had limited the scope of both its initial investigation and its investigation following the Workers’ request for reconsideration to only a single TAA criterion— whether the Workers had been engaged in the production of an “article” within the meaning of the TAA statute. The Workers emphasized that they were concerned about the impact of delayed certification by the Labor Department on the availability of full TAA benefits, and that they wanted to guard against the need for multiple remands. The Workers therefore conditioned their consent to the Government’s motion for a voluntary remand on the agency’s conduct of a comprehensive remand investigation — an investigation in which the agency would reach determinations on all criteria for TAA certification. The Workers conferred with the Government, and drafted a detailed order to that effect for the consideration of the Court. See generally BMC, 454 F.Supp.2d at 1344-45; Plaintiffs’ Response to Government’s Second Amended Motion to Remand Case. The Remand Order that the Court entered reflected only minor changes to the draft submitted by the Workers’ counsel. See Remand Order. Three days before the Labor Department’s remand results were due to be filed, the Government requested a 60-day extension of the deadline. When the Government contacted the Workers’ counsel to request their consent to the extension of time, the Workers reiterated their previously-expressed concerns about the effect of delayed certification on the availability of TAA benefits, and conditioned their consent upon an assurance from the Government that — should the former employees of BMC be certified — the date of their certification would have no effect on the benefits available to them. Accordingly, the Government specifically warranted that, “in the event [the petitioning workers] are certified in this case, [they] would be entitled to receive full [Trade Readjustment Allowance, or ‘TRA’] benefits regardless of the date they are certified.” See Defendant’s Consent Motion for an Extension of Time to File Remand Results, at 3-4. In reliance on the Government’s assurances, the Workers consented to the requested extension of time, and the Court granted it. See BMC, 454 F.Supp.2d at 1345-46 (quoting Defendant’s Consent Motion for an Extension of Time to File Remand Results, at 3-4). On remand, the Labor Department reiterated — and elaborated on — its test for “production” of an “article” in the context of the software industry, further emphasizing the characteristic of “tangibility”: The Department has consistently maintained that the design and development of software is a service. In order to be treated as an article, for TAA purposes, a software product must be tangible, fungible, and widely marketed. The Department considers software that is mass-replicated on physical media (such as CDs, tapes, or diskettes) and widely marketed and commercially available {e.g., packaged “off-the-shelf’ programs) and dutiable under the Harmonized Tariff Schedule of the United States to be an article. The workers designing and developing such products would be considered to be engaged in services supporting the production of an article. 69 Fed.Reg. at 76,783 (emphasis added). Applying that analysis in the course of its remand investigation here, the Labor Department “raised additional questions and obtained detailed supplemental responses from [BMC].” Id. The information that BMC provided to the Labor Department in the course of the remand investigation conflicted with the information that the company had supplied earlier, and bore out the Workers’ claims, casting an entirely new light on the merits of the Workers’ TAA petition. Reiterating its position that “to be treated as an article ... for TAA purposes, a software product must be tangible,” the Labor Department explained: [T]he new information showed that, in addition to software design and development, the firm does, in fact, mass-replicate software at the subject facility. Further, software produced by the firm at the subject facility includes not only custom applications, but [also] packaged “off-the-shelf’ applications which are mass-replicated on various media (CDs and tapes) at the subject facility. 69 Fed.Reg. at 76,783 (emphases added). Noting that BMC employees “are not separately identifiable by product line,” the Labor Department concluded that the Workers here were, indeed, “engage[d] in activity related to the production of an article.” Id. On remand, the Labor Department also re-evaluated the Workers’ allegations that BMC had shifted production overseas, to India and Israel. 69 Fed.Reg. at 76,783. The agency concluded that “there was no shift in production, for TAA purposes.” Id. However, the agency did find that “employment and production of packaged, mass-replicated software at the subject facility had declined significantly from 2002 to 2003,” that “company imports of mass-replicated software increased during the same period,” and that “the increase in company imports represented a significant percentage of the decline in production at the subject facility during the relevant period.” Id. The Labor Department therefore determined on remand “that increases of imports of articles like or directly competitive with those produced at BMC Software, Inc., Houston, Texas, contributed importantly to the total or partial separation of a significant number of workers and to the decline in sales or production at that firm.” Id. at 76,783-84. Accordingly, nearly one full year after the TAA petition was filed (and more than 16 months after the Workers here lost their jobs), the Labor Department certified as eligible to apply for benefits all Houston-based BMC employees “who became totally or partially separated from employment on or after December 23, 2002, through two years from the issuance of [the] revised determination.” 69 Fed. Reg. at 76,783-84. In their comments on the Labor Department’s remand determination, the Workers advised that they were “generally satisfied” with the outcome of the remand investigation. However, the Workers expressed concern that the remand determination did not reflect the unconditional assurances that the Government had previously given them. The Workers therefore requested that the Court “expressly order! ], in accordance with Defendant’s representation, that Plaintiffs, having been certified, are entitled to receive full TRA benefits, regardless of the date of their certification.” See BMC, 454 F.Supp.2d at 1346 (quoting Plaintiffs’ Comments on Defendant’s Determination on Remand, at 1-2). The Government responded flatly that the Court lacked jurisdiction to enforce the representations that the Government’s counsel had made to the Court and to the Workers. See BMC, 454 F.Supp.2d at 1346; Defendant’s Response to Plaintiffs’ Comments In Response to Labor’s Remand Determination, at 3 (arguing that “although Labor confirms that the delay from litigation will not affect the calculation of benefits ..., the Court lacks the authority to dictate whether the petitioners will, in fact, receive ‘full’ TRA benefits,” and characterizing as “inappropriate” the Court’s inquiry into the effects, if any, of litigation delays on relief ultimately available in a TAA case). The Government’s insistence that the Court lacked any authority to hold counsel to the Government (and the Government itself) to the representations that the Government had previously made precipitated several rounds of post-certification submissions by the parties — all of which were filed in direct response to orders of, or letters from, the Court. In light of the Workers’ objections to the language of the Labor Department’s remand determination and the Government’s intransigence, this action was maintained on the Court’s docket following certification, to ensure that — in accordance with the assurances that the Government had previously given the Court and the Workers, and on which they had relied — the Workers’ receipt of the various types of TAA benefits to which they were entitled was indeed unaffected by the Labor Department’s protracted delays in certification. Following some initial setbacks, and armed with clarification elicited in the course of the post-certification briefing, the Workers advised that they no longer foresaw any insurmountable obstacles to their receipt of the full measure of TAA benefits. The Workers further advised that if — contrary to their expectations— they did in fact continue to experience problems with their receipt of benefits, they would promptly notify the Court. See generally Letter to Court from Plaintiffs (May 19, 2005). “The Workers’ silence in the intervening months [between their counsel’s May 2005 letter and the issuance of BMC ] suggests that any need for further proceedings to ‘hold the Government to its words’ ha[d] been obviated.” BMC, 454 F.Supp.2d at 1350. The Labor Department has since revised its TAA certification criteria to recognize that — at least for purposes of cases such as this — “there are tangible and intangible articles,” and that “the production of intangible articles can be distinguished from the provision of services.” Accordingly, “[sjoftware and similar intangible goods that would have been considered articles for the purposes of the Trade Act if embodied in a physical medium will now be considered to be articles regardless of their method of transfer.” See BMC, 454 F.Supp.2d at 1322-23 (quoting Computer Sciences Corporation: Notice of Revised Determination on Remand, 71 Fed.Reg. 18,355 (April 11, 2006) (emphasis added)). In short, as the Labor Department apparently now concedes, the Workers here would have been entitled to TAA certification even if BMC’s software had not been “replicated on various media (CDs and tapes)” — that is, even if it had not been in “tangible” form. Id. (footnote omitted). II. Analysis Under the Equal Access to Justice Act (“EAJA”): a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (2000). Thus, although the court retains a measure of discretion as to the size of the award, under the EAJA “a trial court must award attorney’s fees where: (i) the claimant is a ‘prevailing party’; (ii) the government’s position was not substantially justified; (iii) no ‘special circumstances make an award unjust’; and (iv) the fee application is timely submitted and supported by an itemized statement.” Libas, Ltd. v. United States, 314 F.3d 1362, 1365 (Fed.Cir.2003) (citations omitted) (emphasis added) (also noting “the imperative language” of EAJA statute); accord Hubbard v. United States, 480 F.3d 1327, 1331 (Fed.Cir.2007) (acknowledging “mandatory” nature of EAJA award); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed.Cir.2002) (same). Notably, the Government here does not dispute that the Workers were “prevailing parties.” Nor does the Government contend either that there are “special circumstances” that would render an award unjust, or that the Workers’ application for fees and expenses was untimely. Instead, the Government contends that an award is not warranted because the United States’ position was “substantially justified,” both at the agency level and in litigation. See generally Def.’s Response at 1-2, 8-9, 10-23. The Government further argues that — even if the Workers’ application for fees and expenses is granted — the sum claimed is excessive. See generally Def.’s Response at 1-2, 9, 23-40. As discussed in greater detail below, the Government’s position at the administrative level, at a minimum, was not “substantially justified.” Moreover, contrary to the Government’s assertions, the fees claimed are generally well within the bounds of reason, "with a few relatively minor exceptions. A. Whether the Government’s Position Was “Substantially Justified” The Government bears the burden of proving that its position was “substantially justified.” See, e.g., Libas, 314 F.3d at 1365 (citations omitted); Doty v. United States, 71 F.3d 384, 385 (Fed.Cir.1995) (citations omitted). The Government’s position is substantially justified if it is “justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). That a party other than the Government prevailed in an action does not establish that the Government’s position was not substantially justified. Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States, 837 F.2d 465, 467 (Fed.Cir.1988). In determining whether substantial justification exists, a court is to weigh not only “the position taken by the United States in the civil action, [but also] the action or failure to act by the agency upon which the civil action is based,” taking into consideration the “totality of the circumstances.” 28 U.S.C. § 2412(d)(2)(D); Kelly v. Nicholson, 463 F.3d 1349, 1355 (Fed.Cir.2006); Doty, 71 F.3d at 385-86 (citations omitted); Chiu v. United States, 948 F.2d 711, 715 (Fed.Cir.1991) (“trial courts are instructed to look at the entirety of the government’s conduct and make a judgment call” as to “the government’s overall position”); Essex Electro Eng’rs, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) (articulating “totality of the circumstances” standard). Reaching a determination on substantial justification requires that a court reexamine the legal and factual circumstances of a case through the EAJA “prism” — “a different perspective than that used at any other stage of the proceeding.” Luciano Pisoni, 837 F.2d at 467; Libas, 314 F.3d at 1366 (quoting United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir.2000)). Nevertheless, “the court’s merits reasoning may be quite relevant to the resolution of the substantial justification question.” F.J. Vollmer Co., Inc. v. Magaw, 102 F.3d 591, 595 (D.C.Cir.1996). And strong language criticizing the Government’s position in an opinion discussing the merits of a key issue is evidence in support of an award of fees. See Marcus v. Shalala, 17 F.3d 1033, 1038 (7th Cir.1994) (cited in Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004)). “[A] string of losses can be indicative” as well. Pierce v. Underwood, 487 U.S. at 569, 108 S.Ct. 2541. Moreover, in evaluating the existence of substantial justification, a trial court is entitled to take into consideration “insights not conveyed by the record, into such matters as whether particular evidence was worthy of being relied upon, or whether critical facts could easily have been verified by the Government.” Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541; see also Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (noting propriety of deference to trial court’s “superior understanding of the litigation”) (quoted in Comm’r, Immigration & Naturalization Service v. Jean, 496 U.S. 154, 161, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990)); Libas, 314 F.3d at 1366 n. 1 (in determining substantial justification, trial court may consider “not only the actual record,” but also “for example, any insights which [it] may have gleaned from settlement conferences or other pretrial activities that are not conveyed by the actual record”) (citing Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541). 1. The Role of the Labor Department in TAA Cases The “substantial justification” analysis in this action cannot be conducted in a vacuum. The justification for the Government’s position instead must be analyzed in the context of the trade adjustment assistance (“TAA”) statute, and the special duties and obligations that the Labor Department owes to workers in its administration of that statute. See generally BMC, 454 F.Supp.2d at 1307-13 (summarizing policy underpinnings, legislative history, and practical implications of TAA). The TAA laws are remedial legislation, designed to assist workers who have lost their jobs as a result of increased import competition from — or shifts in production to — other countries, by helping those workers “learn the new skills necessary to find productive employment in a changing American economy.” Former Employees of Chevron Prods. Co. v. U.S. Sec’y of Labor, 26 CIT 1272, 1273, 245 F.Supp.2d 1812, 1317 (2002) (“Chevron I”) (quoting S.Rep. No. 100-71, at 11 (1987)). Today’s TAA program entitles eligible workers to receive benefits which may include employment services (such as career counseling, resume-writing and interview skills workshops, and job referral programs), vocational training, job search and relocation allowances, income support payments (known as “Trade Readjustment Allowance” or “TRA” payments), and a Health Insurance Coverage Tax Credit. See generally 19 U.S.C. § 2272 et seq. (2000 & Supp. II 2002). TAA historically has been viewed as the quid pro quo for U.S. national policies of free trade. See generally BMC, 454 F.Supp.2d at 1307-08 (and authorities cited there). As UAW v. Marshall explains, “much as the doctrine of eminent domain requires compensation when private property is taken for public use,” the trade adjustment assistance laws similarly reflect the country’s recognition “that fairness demand[s] some mechanism whereby the national public, which realizes an overall gain through trade readjustments, can compensate the particular ... workers who suffer a[job] loss.” UAW v. Marshall, 584 F.2d 390, 395 (D.C.Cir.1978). Absent TAA programs that are adequately funded and conscientiously administered, “the costs of a federal policy [of free trade] that confer[s] benefits on the nation as a whole would be imposed on a minority of American workers” who lose their jobs due to increased imports and shifts of production abroad. Id. Indeed, in introducing TAA in 1962, President Kennedy justified the program in moral terms: Those injured by [trade] competition should not be required to bear the full brunt of the impact. Rather, the burden of economic adjustment should be borne in part by the federal government ... [T]here is an obligation to render assistance to those who suffer as a result of national trade policy. BMC, 454 F.Supp.2d at 1309 (citation omitted). The TAA laws also have been compared to veterans’ benefits statutes: The purpose of the [TAA statute] is to distribute benefits to American workers whose jobs have been shipped overseas, while the purpose of the [veterans’ benefit laws] ... is to distribute benefits to veterans who have been injured during service. Both are remedial acts designed to provide much needed aid. Former Employees of Sonoco Prods. Co. v. Chao, 372 F.3d 1291, 1301 (Fed.Cir.2004) (Mayer, C.J., dissenting). The analogy is spot-on. As BMC observed, “much as Congress has charged the U.S. Department of Veterans Affairs ... (VA’) with caring for those who have risked life and limb for our freedom, so too Congress has entrusted to the Labor Department the responsibility for providing training and other re-employment assistance to those who have paid for our place in the global economy with their jobs.” BMC, 454 F.Supp.2d at 1355 (footnote omitted); compare, e.g., 38 U.S.C. § 5103A (captioned “Duty to assist claimants,” obligating VA to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim” for veterans’ benefits) with 29 C.F.R. § 90.12 (2003) (Labor Department is obligated to “marshal all relevant facts” in making its TAA determinations). And just as veterans’ benefits programs are designed to be extraordinarily “veteran-friendly” and “pro-claimant,” so too Congress designed TAA as a remedial program, recognizing that petitioning workers would be (by definition) traumatized by the loss of their livelihood; that some might not be highly-educated; that virtually all would be pro se; that none would have any mastery of the complex statutory and regulatory scheme; and that the agency’s process would be largely ex parte. Congress certainly did not intend the TAA petition process to be adversarial. Nor did Congress intend to cast the Labor Department as a “defender of the fund,” sitting passively in judgment, ruling “thumbs up” or “thumbs down” on whatever evidence the pro se petitioning workers might manage to present. Cf. Former Employees of IBM Corp., Global Services Division v. U.S. Sec’y of Labor, 387 F.Supp.2d 1346, 1351 (2005) (emphasizing that petitioning workers cannot reasonably be expected to have knowledge of the “sometimes esoteric criteria” for TAA certification). Quite to the contrary, the Labor Department is charged with an affirmative obligation to proactively and thoroughly investigate all TAA claims filed with the agency — and, in the words of the agency’s own regulations, to “marshal all relevant facts” before making its determinations. See 29 C.F.R. § 90.12. Moreover, both “[b]ecause of the ex parte nature of the certification process, and the remedial purpose of the [TAA] program,” the agency is obligated to “conduct [its] investigation with the utmost regard for the interest of the petitioning workers.” Internat’l Molders and Allied Workers’ Union v. Marshall, 643 F.2d 26, 31 (1st Cir.1981) (emphasis added); see also Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F.Supp. 432, 435 (1987) (citing Abbott v. Donovan, 7 CIT 323, 327-28, 588 F.Supp. 1438, 1442 (1984) (quotations omitted)); Former Employees of Internat’l Business Machines Corp. v. U.S. Sec’y of Labor, 403 F.Supp.2d 1311, 1314 (2005) (quoting Stidham); Former Employees of Computer Sciences Corp. v. U.S. Sec’y of Labor, 366 F.Supp.2d 1365, 1371 (2005). Thus, while the Labor Department is vested with considerable discretion in the conduct of its investigation of trade adjustment assistance claims, “there exists a threshold requirement of reasonable inquiry.” Hawkins Oil & Gas v. U.S. Sec’y of Labor, 17 CIT 126, 130, 814 F.Supp. 1111, 1115 (1993); Former Employees of Electronic Data Sys. Corp. v. U.S. Sec’y of Labor, 408 F.Supp.2d 1338, 1342-43 (2005); Former Employees of Merrill Corp. v. United States, 483 F.Supp.2d 1256, 1264 (2007). To be sure, the statute does not entitle every petitioning worker to be certified as eligible to apply for TAA benefits. But every worker is entitled to a thorough agency investigation of his or her claim— an investigation in which the agency “marshals] all relevant facts,” and an investigation which the agency conducts with “the utmost regard” for the petitioning workers’ interests. See, e.g., Former Employees of Ameriphone, Inc. v. United States, 27 CIT 1611, 1618, 288 F.Supp.2d 1353, 1359-60 (2003); 29 C.F.R. § 90.12. The courts therefore have not hesitated to set aside agency determinations that were the product of perfunctory investigations. See generally BMC, 454 F.Supp.2d at 1312-13 & n. 10 (cataloguing sampling of opinions criticizing Labor Department’s handling of TAA cases); see also id., 454 F.Supp.2d at 1352-54 (summarizing statistics concerning TAA actions filed with Court of International Trade in recent years, and noting that — at least during the four year period analyzed — Labor Department never successfully defended a denial of a TAA petition without at least one remand). 2. The Government’s Position at the Administrative Level The Government argues that the Labor Department’s position at the administrative level was substantially justified because the agency “gathered information from petitioners as well as statements by company officials.” Def.’s Response at 15. According to the Government, the agency “examined the evidence before it and chose between two conflicting interpretations.” Def.’s Response at 15. The Government therefore concludes that the Labor Department properly “examined the evidence before it, applied what it considered to be the appropriate legal standard, and provided an analysis based on the facts and the law as it understood them.” Def.’s Response at 15; see also id. at 8 (same). But see Pis.’ Application at 19-21 (highlighting flaws in agency’s investigation, and noting that legal action would have been avoided “if [the Workers’] claims were adequately investigated at the outset”); Pis.’ Reply at 1-7 (responding to Government’s arguments, and rebutting Government’s attempt to distinguish “substantial justification” cases cited in Workers’ Application). The Government’s portrayal of the Labor Department’s actions in this case bears little semblance to reality. The Government’s assertion that the Labor Department “gathered information from petitioners” shades the truth, to say the least. See Def.’s Response at 15 (emphasis added). Although the agency received information from the Workers (both with the initial submission of their TAA petition, and with their request for reconsideration), the agency failed to contact the Workers for any purpose — -except to notify them, by letter, of the denial of their TAA petition and their request for reconsideration — until after this matter had been remanded to the agency by the Court. Similarly baseless is the Government’s claim that “[i]n its initial investigation, Labor received information from BMC unequivocally indicating that the workers ... provided a service ... and did not produce an article.” See Def.’s Response at 15 (emphasis added); see also id. at 8 (noting that agency’s denial of Worker’s TAA application was “based ... upon the representations of ... BMC officials”). To the contrary, there was nothing whatsoever about BMC’s response to the agency’s initial inquiry that could be characterized as “unequivocal.” As BMC explained, the information that BMC supplied in the course of the Labor Department’s initial investigation could most charitably be described as vague or noncommital: The Labor Department ... asked BMC to advise whether the company’s Houston employees “produce an article of any kind or ... were engaged in employment related to the production of an article.” ... [BMC’s] Senior Manager for Human Resources failed to respond directly to the Labor Department’s inquiry, and instead proffered a “soundbite” plucked from the company’s promotional materials: BMC Software develops software solutions to proactively manage and monitor the most complex IT environments, enabling round-the-clock availability of business-critical applications. BMC provides services to support its software products, including support and implementation services. BMC, 454 F.Supp.2d at 1315 (emphasis added). As BMC emphasized, the company’s response to the Labor Department’s question “cannot fairly be read as a statement that BMC does not produce a product.” BMC, 454 F.Supp.2d at 1316 & n. 17; see also id., 454 F.Supp.2d at 1325-26 (same). BMC pointedly observed: “It would be, frankly, impossible for anyone — including the Labor Department — to discern from BMC’s non-responsive answers [to the agency’s questions] whether or not the company’s software constitutes a ‘product’ within the Labor Department’s interpretation of the TAA laws at that time.” BMC, 454 F.Supp.2d at 1325 (emphasis added). In sum, as BMC noted, “[t]he entirety of the Labor Department’s initial investigation here consisted of a mere five questions (all of which were either very basic, or conclusory, or both), posed to BMC’s Senior Manager for Human Resources.... The record reveals that the agency made no effort whatsoever to follow up with company officials (via telephone or otherwise) — even though the company’s responses to the Labor Department’s few substantive questions were non-responsive, ambiguous, and/or inconsistent with other information on the record, and thus begged for clarification.” BMC, 454 F.Supp.2d at 1324-25 (emphasis added). The Labor Department compounded its error by misrepresenting and distorting the BMC official’s statements in the agency’s determination denying the Workers’ TAA petition. See BMC, 454 F.Supp.2d at 1325-26 & n. 31. As detailed above, then, there is simply no truth to the Government’s assertion that the Labor Department’s initial determination that the Workers were not engaged in the “production” of an “article” was based on an “unequivocal” statement by their former employer. That argument thus cannot support a finding that the agency’s position at the administrative level was substantially justified. Also unavailing is the Government’s assertion that the agency properly “examined the evidence before it and chose between two conflicting interpretations” in denying the Workers’ TAA petition. See Def.’s Response at 15. The Government emphasizes that, in their request for reconsideration, the Workers “provided additional information which called into question the representations by BMC officials,” and that the Labor Department responded by requesting additional information from the company. See Def.’s Response at 15. The Government argues that, “[e]ven assuming the [Labor Department] could have resolved the discrepancy [between the information supplied by the Workers and that supplied by BMC] by investigating further within the statutory timeframe, Labor decided to make a credibility determination on the record evidence available. This was well within Labor’s discretion.” Def.’s Response at 19; see also id. at 8, 19 (arguing that “Labor has the discretion to determine the scope of its investigation”). The Government asserts flatly that “[t]here is no support for the proposition that a decision not to issue follow-up questionnaires to resolve a discrepancy may constitute a ‘failure to investigate’ that renders an agency’s position substantially unjustified.” See Def.’s Response at 16. Contrary to the Government’s claim, however, the Labor Department was not entitled to “make a credibility determination” under the circumstances of the case at bar, and further inquiry was indeed required. To be sure, the agency may base a TAA determination on statements of company officials — “if the Secretary reasonably concludes that those statements are creditworthy” and if the company’s statements “are not contradicted by other evidence.” Former Employees of Marathon Ashland Pipe Line, LLC v. Chao, 370 F.3d 1375, 1385 (Fed.Cir.2004) (emphases added). But where — as in this case — there is a conflict in the evidence, the Labor Department is “precluded ... from relying on the representations by the employer” and is obligated to “take further investigative steps before making [its] certification decision.” Id.; see generally BMC, 454 F.Supp.2d at 1329-30 (and cases cited there). As evidence of substantial justification, the Government also points to the voluntary remand that it sought to permit the Labor Department to reconsider its denial of the Workers’ TAA petition. See Def.’s Response at 1, 8-9, 16, 19-20. The Government underscores that it requested the voluntary remand “within 24 days” after the filing of the Complaint (.See Def.’s Response at 8-9, 20), and argues that the Labor Department “cannot be held to lack substantial justification for failing to evaluate information that was unavailable to the agency during the administrative proceedings.” See Def.’s Response at 16. But the Government’s defense rests on a false premise. There is no truth to the Government’s apparent claim that the Workers’ photos of packaged software — as well as other evidence that BMC mass-replicated its software on physical media including CDs and tapes — were “unavailable to the agency” prior to the commencement of this action. The fact is that — throughout both the initial investigation and the reconsideration — the Labor Department investigators never once contacted the Workers to request or confirm information, much less to disclose to them the criteria that the agency was then applying to determine whether, as workers in the software industry, they had been engaged in the “production” of an “article.” See generally BMC, 454 F.Supp.2d at 1330 (noting that “the agency never once contacted the Workers to attempt to reconcile the discrepancies [between the information provided by BMC and that provided by the Workers], or to solicit information from them ... — not as part of the agency’s initial investigation, and not even in response to the request for reconsideration”); n.22, supra (noting lack of transparency as to criteria applied by agency); n.60, infra (same). The Workers can hardly be faulted for failing to come forward with evidence to prove that they satisfied criteria of which they had no knowledge. “There can be no doubt that — if the Labor Department [investigators] had bothered to ask the Workers whether BMC’s software is mass-replicated on physical media and is .widely marketed and commercially available {e.g., packaged for ‘off-the-shelf sale) — the Workers would have provided to the agency the same photos of shrink-wrap software that they appended to their Complaint filed with the court.” See BMC, 454 F.Supp.2d at 1330 & n. 40. See generally Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541 (emphasizing that, in evaluating existence of “substantial justification,” trial courts have special insight into whether “critical facts could easily have been verified by the Government”). Moreover, from the moment that the agency began its initial investigation, the Labor Department had readily available to it other proof that BMC mass-replicated its software on physical media, including CDs and tapes. As BMC observed: [T]he Labor Department’s standard form Petition for Trade Adjustment Assistance asks that petitioning workers supply the web address for their former employer. The Workers here complied with that request.... Agency investigators apparently never consulted the company’s website, however. Had they done so, they would have discovered that the website states that BMC’s “SIC” code — “Standard Industrial Classification” code — is 7372, which is the classification code for “Prepackaged Software.” ... The agency investigators also would have been able to access BMC’s Form 10-K for the Fiscal Year Ended March 31, 2003 ... — the most recent report as of the date of the Workers’ termination. That report describes the work of BMC’s Houston facility as “manufacturing,” and explains that the company sells its software both “in object code form” and “on a shrink wrap basis.” BMC, 454 F.Supp.2d at 1338-39 & nn. 54-55 (emphasis added). Indeed, in requesting a voluntary remand in this matter, the Government conceded that the Labor Department had erred in failing to follow up on the URL cites to BMC’s website that the Workers provided in their request for reconsideration. See Defendant’s Second Amended Motion for Voluntary Remand, at 3 (citing, as grounds for remand, not only the photos of software attached to the Workers’ Complaint, but also the reference in the Workers’ request for reconsideration to three URL locations on BMC website). In short, there is no merit whatsoever to the Government’s claim that the Labor Department lacked access to evidence that BMC mass-replicated software on physical media until the Workers commenced this action. Had the Labor Department conducted a proper investigation, it would have had conclusive proof of that fact in its possession early in its proceeding. And, as the Workers correctly note, an agency position that is predicated on a fundamentally inadequate investigation is not supported by substantial justification. See Pls.’ Application at 20 (citing Hess Mech. Corp. v. NLRB, 112 F.3d 146, 150 (4th Cir.1997); Inter-Neighborhood Hous. Corp. v. NLRB, 124 F.3d 115, 122 (2d Cir.1997)). What is perhaps most telling, however, is the failure of the Government’s Response even to acknowledge the Labor Department’s obligation in TAA cases to “marshal all relevant facts” and to conduct its investigation with “the utmost regard” for the interests of the petitioning workers. See generally section II.A.1, supra. As outlined above, the entirety of the Labor Department’s initial investigation consisted of five generic questions posed to BMC. Even worse, the questions — in effect — impermissibly delegated to the company the agency’s determination as to whether the Workers were engaged in the production of an “article.” Moreover, the agency made no effort to follow up on the company’s non-responsive, “corporate double-talk” answers. And the agency’s determination denying the Workers’ TAA petition impermissibly distorted what little information the company did provide. Similarly, the entirety of the Labor Department’s investigation following the Workers’ request for reconsideration consisted of a single, brief phone conversation with the same BMC official who had responded to the agency’s original five-item questionnaire. The agency then denied the Workers’ request for reconsideration based solely on that phone conversation. The agency did not require the BMC official to make a formal statement by reducing her assertions to written form, much less require their submission under oath. And at no time during either the initial investigation or the investigation following the Workers’ request for reconsideration did the Labor Department contact the Workers to confirm the accuracy of the information provided by BMC (to verify, for example, whether the company produces software on physical media), or to solicit additional evidence to support their petition. See generally Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541 (recognizing that trial courts have special insight into whether “critical facts could easily have been verified by the Government”). The Labor Department further failed to consult BMC’s website, either in the course of its initial investigation or its investigation following the Workers’ request for reconsideration — even though the agency’s petition form specifically requests the address of the website of the petitioning workers’ former employer, and even though the Workers’ request for reconsideration expressly directed the agency to three URL locations on BMC’s website. Had the agency consulted BMC’s website, it would have learned that the company does indeed sell software on physical media, and it would have noted that BMC’s SIC code was listed as 7372 — '“Prepackaged Software.” In other words, as BMC observed, “a few quick clicks of a computer mouse by a Labor Department investigator would have sufficed to expose the falsity of the information provided to the agency” by the BMC official on which the agency relied. See generally BMC, 454 F.Supp.2d at 1337-39 & nn. 54-55, 57; Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541 (noting trial court’s special insight into whether “critical facts could easily have been verified by the Government”). The Labor Department also took no steps to conduct any independent investigation to confirm the accuracy of the information provided by BMC. For example, the agency did not review the company’s most recent Form 10-K, which would have disclosed that BMC in fact does sell software on physical media, and that its SIC code was listed as 7372 (i.e., “Prepackaged Software”). See generally Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541 (acknowledging trial court’s special insight into whether “critical facts could easily have been verified by the Government”). Nor did the agency otherwise seek to corroborate the information supplied by BMC in any way. While “[t]he EAJA does not tell an agency how to handle a case,” the agency “cannot decline to conduct further inquiry and then plead [its] own failure to investigate as reason to conclude that [its] position was substantially justified.” Hess Mech. Corp., 112 F.3d at 150. That is — in effect — precisely what the Government and the Labor Department have sought to do here. The Labor Department’s first two investigations in this case — the initial investigation, and the investigation conducted in response to the request for reconsideration — -would not provide “substantial justification” for the Government’s position, even if the agency owed no special obligation to petitioning workers. The unique nature of the Labor Department’s responsibilities in its administration of the TAA program simply strengthens the Workers’ hand. A recitation of the facts of this case alone suffices to refute any suggestion that the agency here properly discharged its duties to “marshal all relevant facts” and to conduct its investigation with “the utmost regard” for the interests of the Workers, and — further—definitively establishes that there was no “substantial justification” for the Government’s position at the administrative level. See Gavette v. Office of Personnel Management, 808 F.2d 1456, 1467 (Fed.Cir.1986) (holding that “ ‘substantial justification’ requires that the Government show that it was clearly reasonable in asserting its position, including its position at the agency level, in view of the law and the facts”) (footnote omitted). 3. The Government’s Position in Litigation The Government also argues that its position in litigation was substantially justified. See generally Defi’s Response at 19-23. According to the Government, in evaluating “substantial justification,” “the relevant question is whether the Government notified the Court [of the need for a voluntary remand] within a reasonable amount of time after reviewing the record and determining that the agencies needed to address the discrepancies in the record.” See Def.’s Response at 20. However, the Government cannot cure a lack of substantial justification at the administrative level by prompt action in litigation. Cf. BMC, 454 F.Supp.2d at 1339-40 & nn. 59-60 (noting that “the Labor Department’s modus operandi increasingly is to seek a voluntary remand in TAA cases that are appealed to the court” and that “[rjequests for voluntary remands have become all but routine”). On the facts of this case, even assuming that the Government’s position in litigation was substantially justified, the overall position of the United States was not. See generally Chiu v. United States, 948 F.2d at 715 (noting, with approval, that — in making EAJA award — trial court “assumed the government’s position in litigation ... to be reasonable, but found that the lack of substantial justification [for the agency’s action at the administrative level] outweighed any reasonable positions taken thereafter”). “As exemplified in the EAJA and Fed. R.Civ.P. 11, ... the processes of litigation presuppose some reasonable investigation ...” Hess Mech. Corp., 112 F.3d at 150; cf. id. at 147 (criticizing “flimsiness” of administrative record of investigation). In the case at bar, much like Chiu, the Labor Department’s perfunctory, pro forma treatment of the Workers’ TAA petition at the administrative level had the substantial effect of depriving the Workers of the critical trade adjustment benefits to which they were entitled for months, while the litigation phase was relatively abbreviated and involved little consideration of the merits of the case. As such, here — as in Chiu — “any justification for the litigation phase cannot outweigh the lack of substantial justification for the original agency action.” Chiu v. United States, 948 F.2d at 715 (quoting Chiu v. United States, 17 Cl.Ct. 334, 340 (1989)). Accordingly, there is no need to parse the Government’s conduct of this litigation before concluding that, for purposes of an EAJA award, the Government’s position was not substantially justified. See, e.g., Kelly v. Nicholson, 463 F.3d at 1355 (concluding that government’s position was not substantially justified based solely on lack of justification for agency’s actions at administrative level); Scarborough v. Nicholson, 19 Vet.App. 253, 260 (2005) (noting that, where agency conceded that its position at the administrative level was not substantially justified, fee applicant had “cleared the substantial-justification hurdle” for EAJA award eligibility, obviating need to consider agency’s position in litigation); Role Models America, Inc. v. Brownlee, 353 F.3d 962, 967-68 (D.C.Cir.2004) (noting that, even assuming that government’s litigation position was “substantially justified,” plaintiff was eligible for EAJA award based on lack of substantial justification for agency’s actions); cf. Former Employees of Tyco Electronics v. U.S. Dep’t of Labor, 28 CIT 1571, 1586 n. 2, 350 F.Supp.2d 1075, 1089 n. 2 (2004) (finding a lack of substantial justification in TAA case without considering Labor Department’s position at the administrative level, where “the Government’s position during ... litigation was not substantially justified”). Because the Government’s position in this matter was not substantially justified, the Workers are entitled to an award of attorneys’ fees and expenses under the EAJA. What remains to be determined is the amount of that award. B. Calculation of the EAJA Award To determine the size of a reasonable award of attorneys’ fees under EAJA, the court calculates a “lodestar” figure, arrived at by multiplying “the number of hours reasonably expended” by “a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. 1933. “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Id. at 437, 103 S.Ct. 1933. The EAJA requires that an applicant submit “an itemized statement ... stating the actual time expended and the rate at which fees and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B); see generally Naporano Iron and Metal Co. v. United States, 825 F.2d 403, 404 (Fed.Cir.1987). Thus, “[t]he party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.” Hensley v. Eckerhart, 461 U.S. at 433 103 S.Ct. 1933. “The court needs contemporaneous records of exact time spent on the case, by whom, their status and usual billing rates.” Naporano Iron and Metal Co., 825 F.2d at 404 (citation omitted); accord Owen v. United States, 861 F.2d 1273, 1275 (Fed.Cir.1988) (explaining that “[contemporaneous records of the exact time spent by attorneys on a case [as well as] their status and usual billing rates” are “essential to support [an EAJA] claim”). While the fee applicant “bears the burden of documenting the appropriate hours expended, ‘the party opposing the fee application has a burden of rebuttal that requires submission of evidence ... challenging the accuracy and reasonableness of the hours charged.’ ” Sneede v. Coye, 856 F.Supp. 526, 535 (N.D.Cal.1994) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir.1993)). Further, the Government must assert its challenges to the fee application with a relatively high degree of specificity — both for the benefit of the fee applicant, and for the benefit of the court. “In a statutory fee case, the party opposing the fee award ... has the burden to challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee.” Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990) (emphasis added) (citing Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir.1989)). “Only with proper notice can the [fee] claimant know which [billing entries] ... to defend as reasonable.” United States v. Eleven Vehicles, 200 F.