Full opinion text
RULING ON MOTIONS FOR ATTORNEYS’ FEES BLUMENFELD, Senior District Judge. Introduction In recent years, over 100 congressional enactments have provided for the awarding of attorneys’ fees to prevailing litigants. Applicants have responded to this potential source of funds by pursuing fee requests with such tenacity and thoroughness that the Supreme Court has recently been led to warn, “A request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, — U.S. -, 103 S.Ct. 1933, 1941, 70 L.Ed.2d 40 (1983) (applying 42 U.S.C. § 1988). One beneficial result of the enormous volume of attorney’s fee cases has been a substantial, well-developed body of law. With the guidance of cases such as Hensley v. Eckerhart, id., and New York State Association for Retarded Children v. Carey, 711 F.2d 1136 (2d Cir.1983) (applying 42 U.S.C. § 1988), district courts are, for the most part, presented with the task of applying to the case at hand already established principles. While such is true for many of the issues the parties have brought before this court, this case does raise some novel and unsettled questions. First, is an attorney who began work on a case as a legal services lawyer and continued to act as counsel, both after his transfer to a second legal service firm and after his later entry into private practice, personally entitled to any fees for his work? Second, are prevailing plaintiffs entitled to a multiplier in their fee claim arising under the Equal Access to Justice Act? Although some issues in this case may be novel, they nevertheless call into play ever-competing policy interests. This court must navigate between the Scylla of Judge Newman’s warning in Carey — “attorney’s fees are to be awarded ‘with an “eye to moderation,” seeking to avoid either the reality or the appearance of awarding “windfall fees,” ’ ” 711 F.2d at 1139 (citations omitted) — and the Charybdis of Justice Brennan’s Hensley dissent — “lower courts must not forget the need to ensure that civil rights plaintiffs with bona fide claims are able to find lawyers to represent them,” 103 S.Ct. at 1945. Plaintiffs’ counsel have moved for attorneys’ fees against defendant United States Department of Housing and Urban Development (HUD) pursuant to 28 U.S.C. § 2412 (Supp. IV 1980), part of the Equal Access to Justice Act (EAJA). Motions have been filed by five public interest law firms, and by one individual attorney. The five firms are: Connecticut Legal Services (CLS), San Fernando Valley Neighborhood Legal Services (San Fernando), Legal Aid Society of Hartford County (LASH), Neighborhood Legal Services (of Hartford) (NLS), and New Haven Legal Assistance Association (NHLA). The attorney is James C. Sturdevant. In addition, San Fernando and attorney Sturdevant have filed supplemental fee motions concerning work done by Mr. Sturdevant after April 4, 1979, see infra pp. 945-946. CLS has joined in both of San Fernando’s motions. Complicating this case has been a dispute over the right to fees for work performed by Sturdevant. From October 1975 through April 30, 1978, Mr. Sturdevant worked for CLS. Mr. Sturdevant concedes that CLS has the right to any fees for his work during that time. From May 1, 1978 through October 8, 1978, and also from May 1, 1980 to the present, Mr. Sturdevant asserts that he was self-employed. None of plaintiffs’ counsel have challenged Mr. Sturdevant’s claim to any fees awarded for his work during those periods. There is, however, one dispute among plaintiffs’ counsel. San Fernando and attorney Sturdevant both claim the right to any fees awarded for Sturdevant’s work from October 9, 1978 through April 30, 1980, during which time Sturdevant was a full time employee of San Fernando. I. THE HISTORY OF THIS ACTION This proceeding is the final act of a protracted litigation concerning federal housing subsidies under section 236 of the National Housing Act. Most of the action occurred early on: congressional passage of the subsidy program, the dispute over its implementation, and the ensuing litigation. The settlement of what was by then a national class action provided the case's climax, with the settlement administration as the denouement. The struggle over attorneys’ fees is what remains. In 1968, Congress enacted, as section 236 of the National Housing Act, a rental housing program which provided mortgage insurance and made interest reduction payments on behalf of owners of qualifying low-income housing projects. Housing and Urban Development Act of 1968, Pub.L. No. 90-448, § 201, 82 Stat. 476. Paragraph (f) of section 236 established that the rental for each unit would be either a “basic rental,” equal to the operating cost, or a higher value not to exceed either 25 per cent of the tenant’s income or the unit’s market value. Codified at 12 U.S.C. § 1715z — 1(f) (1970). In the Housing and Community Development Act (HCDA) of 1974, Pub.L. No. 93-383, 88 Stat. 633, Congress amended section 236 to provide an additional form of subsidy, called an “operating subsidy.” This subsidy was designed to shield tenants from rent increases due to increases in property taxes and utility costs. The subsidy program paid project owners in full for these increases, except that the subsidies could not be used to drive the basic rent below 30 per cent of the tenant’s income. These subsidies of the owners’ operating costs resulted in decreased basic rents. In addition, the Act established a “reserve fund” from which the operating subsidies could be paid. To build up this fund, project owners were required to contribute all rents received in excess of the “basic rental.” HUD failed to implement the section 236 operating subsidy program while allowing owners to increase rental charges to cover increased operating costs. That squeeze on the tenants prompted this action and similar suits across the country. In 1979, this and several other actions were settled jointly. The settlement called for reimbursements of those increases in rental charges to present and former tenants nationwide. The administration of these payments has been supervised by the court in Underwood v. Pierce, No. 79-1318-HP (C.D.Cal.). A. Events Preceding Settlement This matter started before this court as three separate class actions, each brought by tenants in a different section 236 housing project. The tenants were aggrieved by HUD’s approval of increases in the “basic rents” for these projects. They challenged the rent increases as excessive in view of the operating costs and sought to compel HUD to pay operating subsidies to the project owners to cover that part of each increase which was due to increased utility costs and property taxes. On December 15, 1975, after a consolidated hearing, this court certified plaintiff classes in each of these actions and issued preliminary injunctions requiring HUD to make operating subsidy payments to project owners, thus relieving plaintiffs of portions of the rent increases which were due to increased utility costs and property taxes. Dubose v. Hills, 405 F.Supp. 1277, 1278-79 & nn. 8, 10, 1280, 1292-93 (D.Conn.1975), modified, 420 F.Supp. 399 (D.C.1976). HUD did not appeal the order regarding these three projects, see Dubose v. Harris, 434 F.Supp. 227, 229 (D.C.1977); instead, it continued to resist making operating subsidy payments on behalf of tenants in other projects, see Dubose v. Hills, 22 Fed.R. Serv.2d 476, 477 (D.C.1976). Six similar suits were subsequently filed in this district, one of which was withdrawn. On May 27, 1976, this court consolidated the remaining eight pending actions into one statewide class action, and issued a preliminary injunction compelling HUD to pay operating subsidies throughout Connecticut. Id. at 477-79. HUD appealed this statewide preliminary injunction. On June 28, 1976, this court denied defendants’ request for a stay pending appeal. The Second Circuit did the same on July 20, 1976. See Dubose v. Harris, 434 F.Supp. at 239. Meanwhile, similar actions had been filed across the country. See Dubose v. Harris, 82 F.R.D. 582, 585 (D.C.1979). Understandably, one of these was a nationwide class action filed in the District of Columbia. See Underwood v. Hills, 414 F.Supp. 526, 528 (D.D.C.1976). In Underwood, Judge Pratt, on June 8, 1976, issued a permanent injunction compelling HUD to make operating subsidy payments. Id. at 532. On October 18, 1976, the Supreme Court stayed this order pending appeal. 429 U.S. 892, 97 S.Ct. 250, 50 L.Ed.2d 175 (1976) (action by whole Court). Relying on the Supreme Court’s stay in Underwood, HUD renewed its application to the Second Circuit for a stay pending appeal. The Second Circuit granted this stay on December 27, 1976. See Dubose, 434 F.Supp. at 230. On February 22, 1977, the Supreme Court refused to vacate this stay. 429 U.S. 1085, 97 S.Ct. 1092, 51 L.Ed.2d 531 (1977) (action by whole Court). HUD then ceased all operating subsidy payments statewide, including those covered by this court’s first order of December 1975, which HUD had not appealed. See Dubose, 434 F.Supp. at 230. This court held that HUD had thus violated the December 1975 order, and ordered HUD to continue compliance with that order. Id. at 231, 232. While noting that “it would be within this court’s discretion to hold defendants in contempt,” id. at 232, this court declined to do so because it was “not convinced that defendants acted in bad faith or out of a willful purpose to disobey the orders of this court,” but thought rather that defendants had been confused by “ambiguities in the situation confronting them.” Id. B. The Settlement On May 23, 1977, the Supreme Court granted certiorari in two cases similar to Dubose, Harris v. Ross and Harris v. Abrams. 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977). Up to this time the lower courts had unanimously ruled in favor of the plaintiffs in the various actions. See Dubose, 82 F.R.D. at 585 & n. 12. Before the Supreme Court could decide Ross and Abrams, the parties in those actions, this (consolidated) action, and Underwood agreed on a settlement. See Stipulation for Settlement (hereinafter “Stipulation”) reproduced as an appendix to this court’s opinion approving the settlement. Dubose v. Harris, 82 F.R.D. 582, 592-99 (D.C.1979). The settlement in each of these four actions was contingent on court approval of the settlement in each of the others. Stipulation H 7; Settlement Agreement 117. Under the proposed settlement, HUD would pay into the Underwood court a settlement fund of about $60 million, consisting of the balance of its “reserve fund” as of September 30,. 1977. Stipulation 112. The settlement fund was to be used to reimburse to tenants, as nearly as practicable, the amounts which should have been paid by HUD as operating subsidies. “Every tenant who resided in a Section 236 project ... between February 1, 1975 and September 30, 1977, and who paid in excess of 30 percent of his or her adjusted monthly income ... for rent ... as of the last month of residence in the project, the last month before receiving a federal rental subsidy, or September, 1977, whichever is earlier, will be eligible to receive retroactive tax and utility cost subsidy payments.” Stipulation 11 3(a). Each eligible recipient would receive a payment equal to “the number of months between February 1, 1975 and September 30, 1977, during which he or she resided in a Section 236 project without receiving an additional federal rental subsidy, multiplied by the tenant’s monthly share of the actual increases in tax and utility costs as of September 30, 1977 at that Section 236 project.” Id, 113(b). If the tenants’ claims made under this settlement exceeded the settlement fund, claimants were to receive pro rata shares. If the claims totaled less than the settlement fund, the excess was to be returned to HUD’s reserve fund. Stipulation 113(e). The parties were aware that it would require a major undertaking to locate eligible claimants, inform them of the settlement, and evaluate and pay their claims. This process has been referred to by the parties as “settlement administration.” Under the Stipulation, settlement administration would be performed in the main by Price Waterhouse and Co. (PW), a national accounting firm, under the direction of plaintiffs’ counsel. Stipulation 114(b) (plaintiffs’ counsel to direct pilot test of claim forms); see also Stipulation H 4(a), together with “Proposal to Conduct a Settlement Distribution in Connection with Underwood v. Hills and Dubose v. Hills, August 9, 1978” (filed Nov. 8, 1978) at 4 (“we would be prepared to administer all phases of the distribution project under the direction of Plaintiff’s counsel”). The Stipulation assigned certain tasks directly to plaintiffs’ counsel. They would prepare a form of preliminary notice to be mailed to current tenants, 11 6(a)(2); cause copies of these notices to be published in “the newsletters of the Legal Services Corporation, the National Housing Law Project, and other publications directed to legal services attorneys and their clients,” id.; similarly publish final notices, 11 6(b)(3); and, along with PW, “make reasonable efforts to minimize the costs of administration of the settlement and distribution of the settlement fund,” 114(d). HUD was to aid the settlement effort in various ways. First, HUD was to provide PW with detailed information concerning all section 236 projects. 11 5. Second, HUD was to ensure that project owners provided PW with names and last-known addresses of former tenants who had resided in their projects from February 1, 1975 through September 30, 1977. ¶ 6(b)(2), (c). Third, HUD was to require project owners to post and distribute notices of the settlement in their projects, and, if necessary, HUD was to do so itself. If 6(b)(1), (c). Fourth, HUD was to publicize the settlement in various publications. 116(a)(2), (b)(3). The Stipulation provided for payment of various expenses. The settlement fund would be used to pay PW, an escrow agent, and “all costs of administration or out-of-pocket costs, including travel, incurred by plaintiffs’ counsel” in “obtaining approval of this settlement, administration of the settlement, and distribution of the settlement fund.” 114(c). Additionally, the settlement fund would also be used to pay HUD’s expenses in providing notice of the settlement and in distributing claim forms. H 6(a)(2), (b)(3). HUD would bear three particular costs: postage, a WATS line, and the cost to PW of assembling and copying documents requested by HUD for auditing purposes. 114(d). After identifying these items, the Stipulation concluded: “It is the intent of the parties that distribution of the settlement fund shall involve no other substantial costs or expenditures by HUD.” Id. The Stipulation explicitly provided that “[njone of the sums distributed may be used to pay attorney’s fees.” 11 3(f). On November 13, 1978, this court preliminarily approved the settlement. See Dubose, 82 F.R.D. at 585-86. On January 19, 1978, Judge Pratt preliminarily approved the settlement in Underwood. Underwood Docket Sheet (Exhibit A to Sturdevant Declaration filed June 29, 1983). The proposed settlement in Underwood included “Rules of Counsel.” See Dubose, 82 F.R.D. at 592 n. 38. (A copy of these Rules of Counsel is given as Exhibit B in the Sturdevant Declaration filed June 29, 1983). These Rules established a Committee of Counsel (COC) consisting of Patricia M. Tenoso, plaintiffs’ lead counsel in Underwood; Mary S. Bur-dick, plaintiffs’ co-counsel in Underwood; and James C. Sturdevant, plaintiffs’ lead counsel in Dubose. The COC was to perform the functions of plaintiffs’ counsel as outlined in the Stipulation for Settlement. Judge Pratt’s rationale for approving this composition of the COC does not appear in the record in this case. On February 23, 1979, this court formally approved the settlement, noting that the members of the COC seemed well qualified for their task. Dubose, 82 F.R.D. at 592 & nn. 37-38. On April 5, 1979, Judge Pratt formally approved the settlement in Underwood. Underwood v. Harris, No. 76-469 (D.D.C. April 9, 1979), slip op. at 1. On that date Judge Pratt transferred the action to the Central District of California, with the parties’ consent, because “the agent administering the distribution of the fund (Price Waterhouse), the bank in which the fund has been deposited and invested (Crocker) and all members of the Committee of Counsel are all located in Los Angeles, California.” Id. at 1. He further approved the appointment of a fourth member to the COC, whose identity would be decided by the District Court in California. Id. at 2. C. Events Since Settlement Under the supervision of the Underwood court, Judge Pregerson presiding, settlement administration has been almost completely accomplished. Approximately $45 million was paid out to claimants. Interest earned by the fund has more than covered expenses. The unexpended principal (approximately $15 million), as well as the unused interest (less a reserve of $500,000, and further less a reserve for uncashed checks), has been returned to HUD’s reserve fund. Sturdevant Declaration of June 29, 1983, Exhibits HH, II (orders in Underwood dated April 15, 1982, and Jan. 26, 1983, ordering return of principal and interest, respectively). As of May 1983, apparently no tasks remained except those associated with locating recipients of uncashed checks. See Declaration of Peter B. Frank, filed May 31, 1983, ¶ 4. The Underwood plaintiffs have pressed fee motions in that court. Judge Pregerson in Underwood held that the plaintiffs are entitled to fees under the EAJA. Underwood v. Pierce [Underwood I], 547 F.Supp. 256, 263-64 (C.D.Cal.1982), appeal pending, App. No. 83-5773 (9th Cir.). The court awarded fees to the Western Center on Law and Poverty (Western Center) for work done by attorneys Tenoso and Bur-dick during 1976-1981 and 1976-1982 respectively. The court allowed hourly rates ranging from $85/hour in 1976 to $120/hour in 1981 for Tenoso, and ranging from $80/hour in 1976 to $120/hour in 1982 for Burdick. The court further allowed an upward adjustment factor, or “multiplier,” of 3.5. The total award was $1,129,450.00. Underwood v. Pierce [Underwood II], No. 79-1318-HP (C.D.Cal. Feb. 3, 1983), slip op. at 8, appeal pending, App. No. 83-5773 (9th Cir.). Initially, Sturdevant and San Fernando moved in this court for fees for Sturdevant’s work only until April 5, 1979, the date on which Underwood was transferred to the Central District of California; Sturdevant and San Fernando filed motions in Underwood concerning Sturdevant’s work on and after April 5, 1979. However, in an unpublished order on November 29, 1982, filed February 1, 1983, the Underwood court dismissed these latter fee motions. That court reasoned that, though Sturdevant had appeared before it as a member of the COC, Sturdevant did so as counsel in Dubose, over which case that court lacked jurisdiction. Accordingly, Sturdevant and San Fernando have since filed supplemental motions in this court seeking fees for Sturdevant’s work on and after April 5, 1979, thus consolidating all of their fee requests in this court. II. PLAINTIFFS’ ENTITLEMENT TO FEES Plaintiffs are seeking attorney fees under the Equal Access to Justice Act (EAJA), Pub.L. No. 96-481, Title II, § 204, 94 Stat. 2325, 2327-29 (1980), codified at 28 U.S.C. § 2412 (Supp. IV 1980). The EAJA provides two grounds for a fee award in actions against the United States. First, “[ujnless expressly prohibited by statute,” the government “shall be liable for ... fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” 28 U.S.C. § 2412(b). Plaintiffs claim that the government’s bad faith conduct justifies a fee award under the first alternative of this provision. At common law, fees may be awarded against a party who acts “ ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). HUD’s conduct has been far from exemplary, yet, none of its conduct justifies a fee award on this ground. First, though HUD’s litigation position that it had absolute discretion to decide not to fund the operating subsidy program was unreasonable, see infra p. 949, there is nothing to suggest that HUD’s position was taken in bad faith. Next, though HUD did disobey this court’s injunction of December 15, 1975, I concluded that HUD’s disobedience arose out of confusion rather than out of “bad faith or ... a willful purpose to disobey the orders of this court,” Dubose, 434 F.Supp. at 232. Finally, regarding HUD’s conduct during settlement administration, Judge Pregerson stated: [Tjhough admittedly, there have been deficiencies in HUD’s performance, my conclusion is that there is really no substantial basis to hold HUD in contempt. Its performance has not been outstanding, it has bordered on the satisfactory; but it is certainly not contemptuous. Underwood, Reporter’s Transcript of Proceedings on January 26, 1983 at 24. The EAJA provides a second, alternative ground for fee awards against the United States. Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, 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). Plaintiffs in this case were prevailing parties. When this court approved the settlement, it observed that the settlement “will result in payments to eligible claimants and in greater amounts than would be available through ultimately successful litigation.” Dubose, 82 F.R.D. at 592. A favorable settlement, no less than a favorable judgment, confers the status of “prevailing party.” Indeed, in the legislative history accompanying the EAJA, the Congress specifically noted that under the EAJA, “a party may be deemed prevailing if the party attains a favorable settlement of his case, Foster v. Boorstin, 561 F.2d 340 (D.C.Cir.1977).” H.R.Conf.Rep. No. 1434, 96th Cong., 2d Sess. [hereinafter, Conference Report] 22, reprinted in 1980 U.S.Code Cong. & Ad.News 5003, 5010, cited with approval in Underwood I, 547 F.Supp. at 259 & n. 4; H.R.Rep. No. 1418, 96th Cong., 2d Sess. [hereinafter House Report] 11, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4990. See also Citizens Coalition for Block Grant Com pliance v. City of Euclid, 537 F.Supp. 422, 424-25 (N.D.Ohio 1982). A. Does the EAJA Apply to Cases with Non-Fee-Paying Clients? Though the EAJA literally provides for an award of fees “incurred” by a party, 28 U.S.C. § 2412(d)(1)(A), the statute also applies to cases, such as this case, in which clients are under no obligation to pay their lawyers. Other courts have so held. San Filippo v. Secretary of Health and Human Services, 564 F.Supp. 173, 175-77 (E.D.N.Y.1983); Hornal v. Schweiker, 551 F.Supp. 612, 615-17 (M.D.Tenn.1982); Kauffman v. Schweiker, 559 F.Supp. 372 (M.D.Pa.1983); Kinne v. Schweiker, No. 80-81 Civ., slip op. at 1-8 (D.Vt. June 30, 1982), vacated, (D.Vt. Dec. 29, 1982). I find these opinions persuasive. The sole contrary authority, Cornella v. Schweiker, 553 F.Supp. 240, 245-48 (D.S.D.1982) relies on the earlier, vacated Kinne opinion. B. Was This Case “Pending” on the EAJA’s Effective Date? The EAJA, by its terms, applies to “any civil action ... which is pending on, or commenced on or after,” October 1, 1981. Pub.L. No. 96-481, § 208, 94 Stat. 2321, 2330 (enacted October 21, 1980), reprinted 5 U.S.C. § 504 (Supp. V 1981). On the EAJA’s effective date, the parties to this case were carrying out the settlement agreement under the supervision of the Underwood court. At issue is whether a case, in that posture, was “pending” for purposes of the EAJA. The meaning of “pending” in the EAJA has been broadly construed. The mere pendency of a motion for attorney fees, before the trial court or on appeal, is sufficient to render the entire action “pending.” Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 679 F.2d 64, 67-68 (5th Cir. 1982); United States ex rel. Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir.1982); WATCH v. Harris, 535 F.Supp. 9, 14 (D.Conn.1981) (Clarie, C.J.) (alternative holding). See also Bradley v. School Board, 416 U.S. 696, 711, 715, 94 S.Ct. 2006, 2016, 2018, 40 L.Ed.2d 476 (1974) (similarly construing fee statute in section 718 of title VII of the Emergency School Aid Act, 20 U.S.C. § 1617 (Supp. II 1979); if statute is silent on its application “to pending cases,” statute should generally be applied to them, because a court should “apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary”); Rainey v. Jackson State College, 551 F.2d 672, 675 & n. 4, 676 & n. 5 (5th Cir.1977) (similarly construing Civil Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C. § 1988 (Supp. IV 1980), noting that, in Act’s legislative history, Bradley was cited several times “as a prototypical case for awarding attorneys’ fees in pending cases”). In the present case, no final judgment had issued on the EAJA’s effective date. This court had retained jurisdiction over the case pending settlement administration, which was being performed by the Underwood court. Dubose, 82 F.R.D. at 587, 592. The settlement administration had been proceeding continuously since settlement, and as of October 1, 1981, much unfinished business remained. See, e.g., Underwood Docket Sheet (Exhibit A to Sturdevant Declaration filed June 29,1983). Under these circumstances, this action was “pending” on the Act’s effective date. See also Underwood I, 547 F.Supp. at 259-60 (holding that the Underwood action was “pending” on the EAJA’s effective date). C. The Compensability for Work Performed Before the Act’s Effective Date The EAJA, when applicable to a given case, authorizes fee awards for work done before as well as after the Act’s effective date. This holding is explicit in four cases construing the EAJA. Berman v. Schweiker, 713 F.2d 1290, 1291 (7th Cir. 1983); Tyler Business Services, Inc. v. NLRB, 695 F.2d 73, 77 (4th Cir.1982); Nunes-Correia v. Haig, 543 F.Supp. 812, 814-16 (D.D.C.1982); Underwood I, 547 F.Supp. at 260-61 & n. 7. This holding is implicit in the cases cited in part B supra which construe the EAJA, Knights of the Ku Klux Klan, United States ex rel. Heydt, and WATCH, as well as in the cases cited there which construe other fee statutes, Bradley, Rainey, and Carey. D. The Timeliness of the Instant Fee Motions The EAJA provides that “a party seeking an award of fees ... shall, within thirty days of final judgment in the action, submit to the court an application.” 28 U.S.C.A. § 2412(d)(1)(B). There has been no final judgment disposing of this case. Therefore, the instant fee motions are not stale. The statute's language just quoted might be thought to imply that a fee motion must await final judgment, and that the instant motions are therefore premature. “This language, however, should not be construed to require a final judgment on the merits before a court may award fees.” House Report 18, reprinted in 1980 U.S. Code Cong. & Ad.News at 4997. The court then has some discretion to make interim fee awards. In this case, almost all of the attorneys’ work in this case has been completed, yet final judgment must await the “winding up” of settlement administration, see supra p. 945. This case has been pending since 1975, and further delay in any fee awards would work a hardship on the fee recipients. Cf. Bradley, 416 U.S. at 723, 94 S.Ct. at 2022. Accordingly, an interim fee award is proper. See Underwood II (making similar interim award); cf. In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 680, 703-04 (D.Minn.1975) (making interim antitrust fee award during settlement administration). E. HUD’s Affirmative Defenses Although plaintiffs meet the prima facie requirements for an award under section 2412(d), the statute permits HUD to assert two affirmative defenses. Section 2412(d)(1)(A) provides that the court “shall award ... fees ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 1. Was HUD’s Position “Substantially Justified”? Section 2412(d) precludes a fee award if “the court finds that the position of the United States was substantially justified.” “The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made.” House Report 10, reprinted in 1980 U.S.Code Cong. & Ad.News at 4989. Accord, Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983); Knights of the Ku Klux Klan, 679 F.2d at 68. The standard may in fact be slightly more stringent. Spencer, 712 F.2d at 558. The burden of proving reasonableness rests with the government. House Report at 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News at 4989. Accord, Tyler Business Services, Inc. v. NLRB, 695 F.2d 73, 75 (4th Cir.1982). This standard of substantial justification represents a middle ground between an award of fees to every party who prevails against the government, and a requirement that the prevailing party prove that the government’s position was “arbitrary,. frivolous, unreasonable, or groundless.” House Report 14, reprinted in 1980 U.S.Code Cong. & Ad.News at 4993. Accord, Knights of the Ku Klux Klan, 679 F.2d at 68. Beyond this general guideline of “reasonableness,” the “substantial justification” standard remains largely undefined. See Note, The Award of Attorney’s Fees Under the Equal Access to Justice Act, 11 Hofstra L.Rev. 307, 320-27 (1982). The legislative history does, however, note two further factors. First, to show substantial justification, the government need not establish “that its decision to litigate was based on a substantial probability of prevailing.” House Report 11, reprinted in 1980 U.S. Code Cong. & Ad.News at 4990. Second, certain types of case dispositions, including dismissals of prior suits, and substantial differences between the government’s claims at pleading and the settlement agreed to, provide some indication that the government’s position was not substantially justified. Id., reprinted in 1980 U.S. Code Cong. & Ad.News at 5011 (discussing “substantially justified” as applied to agency actions). HUD claims that its position in refusing to pay operating subsidies was substantially justified. This litigation started because HUD did not put into operation a housing subsidy program. Dubose, 405 F.Supp. at 1279. This court held first that the housing subsidy program was mandatory, and second that, even if HUD had some discretion to suspend the program, it had abused that discretion. Id. at 1288, 1291-92. This court explicitly held that HUD’s abuse of discretion was “unreasonable.” Id. at 1292. Although HUD’s action in resisting initiation of the operating subsidy program was held to be “unreasonable,” and the standard for substantial justification is one of “reasonableness,” it does not automatically follow that HUD’s “position” was not “substantially justified.” The standard in this case for determining whether HUD had abused its discretion was itself one of reasonableness. Id. at 1289. Thus, the mere fact that HUD lost on the merits (i.e., that this court found an abuse of discretion) necessarily implied that HUD’s action in refusing to pay operating subsidies was not “reasonable.” But Congress, in passing the EAJA, rejected the notion that the government should be liable for fees whenever it lost. See supra p. 948. Accordingly, something more is needed to show that the government’s “position” was not “substantially justified.” This paradox is resolved if the government’s “position” in court, rather than its underlying conduct toward the plaintiffs by whom it is being sued, is the focus of attention. The proper question then is, even though HUD’s action was held not to be reasonable, was HUD nevertheless substantially justified in making its claim in court. This court’s prior opinion shows that HUD’s position was not merely unreasonable but had no justifiable basis. HUD suspended the program because it believed that “such a limited and discriminatory program” was “ ‘inequitable,’ ” 405 F.Supp. at 1290, even though Congress had “specifically indicated its disagreement with precisely this sort of ‘all or nothing’ analysis,” id. “Surely Congress has the power to solve a specific problem with which it is familiar without running the risk of administrative nonenforcement because it has not gone far enough, or not gone in the direction considered desirable by the executive branch.” Id. at 1290-91. “The Secretary’s claimed rationale for refusing to fund the program with her contract authority — its inequitable coverage — misses the point of Congress’ actions entirely and does not constitute a valid exercise of discretion.” Id. at 1291-92. While HUD purported to rely on a case which held that it had a narrow discretion to suspend housing subsidy programs, see id. at 1282 & n. 22, HUD claimed “ ‘full discretion to determine whether the program should be implemented,’ ” id. at 1281 (quoting HUD), a discretion which it clearly did not, and could not, have. HUD argues, however, that this court’s opinion in 1975 is not the last word on whether HUD’s position was substantially justified. As detailed above, following the Supreme Court’s 1976 stay of the Underwood permanent injunction, the Second Circuit granted a stay of this court’s statewide preliminary injunction. The Supreme Court in 1977 refused to vacate that stay. Also in 1977, the Supreme Court granted certiorari in two similar cases. See Dubose, 82 F.R.D. at 584; supra pp. 942-943. These developments, however, are too opaque to convince this court that HUD’s position was substantially justified. First, the grants of certiorari may have been extended not with reversal in mind, but with the purpose “to resolve the issues against HUD once and for all, thereby rejecting HUD’s position which forced low-income tenants to bring class actions in district courts throughout the country,” Underwood I, 547 F.Supp. at 262. See Supreme Court Rule 17.1(c) (indicating that review might be granted if “a federal court of appeals has decided an important question of federal law which has not been, but should be, settled by this Court”). Additionally, a grant of certiorari need only have commanded the votes of four Justices, not the five needed for a majority of the Court. Further, the significance of the stays is not clear. HUD has offered no authority to show that the Supreme Court stay pending appeal in Underwood implies any view as to the merits. Though the Second Circuit usually requires likelihood of success on the merits as a prerequisite for a stay pending appeal, Eastern Air Lines, Inc. v. CAB, 261 F.2d 830, 830-31 (2d Cir.1958) (adopting criteria in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.Cir. 1958)), after the Supreme Court’s stay in Underwood, the Second Circuit, which had previously denied a stay in this case, supra p. 942, had little choice but to grant one. Even if the grants of certiorari, and the stays, did indicate a view by the Supreme Court that HUD had some substantial chance of prevailing on the merits, that view would not be controlling here. The grants of certiorari and the stays are based on preliminary analyses. A legal claim which initially appears to deserve serious consideration may on closer study appear not merely incorrect but groundless. Indeed, HUD’s position had some initial appeal to this court because of an apparently similar case, Pennsylvania v. Lynn, 501 F.2d 848 (D.C.Cir.1974), decided in HUD’s favor. See Dubose v. Hills, 405 F.Supp. at 1282. After detailed discussion, however, this court clearly distinguished the facts of this case from Lynn. See id. at 1288-92. Thus, it is perfectly understandable that HUD’s position, which initially appeared to have substantial merit, was in fact not substantially justified. The view that HUD’s position was not substantially justified is strengthened by the unanimous rulings of lower courts against HUD in suits across the country. See Dubose v. Harris, 82 F.R.D. at 585 & n. 12 (citing district and circuit opinions). Although I did state that the grants of certiorari and the stays cast doubt upon the unanimous rejection to date of HUD’s position, id. at 585, on reflection I conclude, for the reasons above, that this doubt was minimal. Furthermore, the government’s agreement to a settlement which provided for relief to plaintiffs as great, if not greater, than what had been awarded by this court and several others, provides a strong indication that HUD itself did not consider that the government’s position was substantially justified. In sum, HUD has not established its first affirmative defense, that its position was “substantially justified.” 2. Do “Special Circumstances Make an Award Unjust”? The EAJA provides that no fees shall be awarded if “the court finds ... that special circumstances make an award unjust.” This provision “gives the court discretion to deny awards where equitable considerations dictate an award should not be made.” House Report 11, reprinted in 1980 U.S.Code Cong. & Ad.News at 4990. HUD asserts that the terms of the settlement, and the intent of the parties, make a fee award unjust. The terms of the settlement do not include a blanket prohibition of fees from any source. The Stipulation for Settlement, 113(f), provides: “None of the sums distributed may be used to pay attorney’s fees.” Dubose, 82 F.R.D. at 594. This provision bars a fee award from the settlement fund. At the time of settlement, this fund represented the only known possible source of attorney fees. See City of Detroit v. Grinnell Corporation, 495 F.2d 448, 469 (2d Cir.1974); Sprague v. Ticonic National Bank, 307 U.S. 161, 164, 59 S.Ct. 777, 778, 83 L.Ed. 1184 (1938); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-92, 90 S.Ct. 616, 625-626, 24 L.Ed.2d 593 (1970). The parties not contemplating any other possible source of funds, did not address the attorney fee issue further. HUD contends that, if it had thought that a fee award were possible, it would not have agreed to the settlement. This ignores Congress’ intention that the EAJA apply retroactively to cases already substantially resolved, see supra part B. In this regard, Congress made no distinction between cases resolved by litigation to judgment and those resolved by settlement. Application of the EAJA to this settlement is therefore not patently “unjust.” Although the court in Aho v. Clark, 608 F.2d 365, 367 (9th Cir.1979), in denying a fee award under 42 U.S.C. § 1988 employed the rationale urged by HUD, that case is distinguishable. The settlement in Aho was concluded after the relevant fee statute took effect, id. at 367, and the agreement thus, by making no provision for fees, id., inferentially waived fees under that statute. Here, however, the settlement was concluded well before the EAJA took effect, and thus did not waive fees under that Act. Jennings v. Metropolitan Government of Nashville and Davison County, 715 F.2d 1111 (6th Cir.1983), is similarly distinguishable. There, the Sixth Circuit construed a settlement agreement, which was silent as to attorney fees, as barring such fees, because “the parties intended the settlement to be a final disposition of all claims.” Id. at 1114. The court thus disallowed fees sought under 42 U.S.C. § 1988. In Jennings, the relevant fee statute was in force when the settlement was reached. In the case at bar, however, the fee statute had not yet been enacted at the time of settlement, and it cannot be inferred that the parties intended the settlement to dispose of a fee claim which did not yet exist. Although not argued by the defendants, certain aspects of attorney Sturdevant’s fee request raise the possibility of “special circumstances” which would make an award unjust. Discussion of this point is deferred until part VII. III. PLAINTIFFS’ CLAIMS CONCERNING HOURS SPENT AND HOURLY RATES The EAJA instructs specifically how to compute a fee award: “[Fjees and other expenses” includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party’s case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $75 per hour 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). Plaintiffs contend that a multiplier should be employed to adjust upward the attorneys’ fees in this case. I disagree. The statute does not specifically provide for a multiplier. I need not determine, however, if Congress intended to allow such an upward adjustment, because in my opinion one would not be justified in this case. The performance of counsel in this case, while quite sound, was not so extraordinary as to justify a multiplier or any higher fee. Since HUD’s position was not substantially justified, there was no great risk of failure. See also Dubose, 82 F.R.D. at 585 n. 12 (showing uniform success of plaintiffs against HUD across the country). Further, the extremely generous settlement which counsel obtained from HUD— amounting not to a true compromise, but rather an agreement by HUD to give plaintiffs all that they asked for — must have arisen not by reason of plaintiffs’ especially skillful bargaining, but by HUD’s realization that the adverse judicial decisions left it with no bargaining chips. Finally, the settlement administration, even if performed quite well, was not primarily work of a legal nature. The court in Underwood II granted a multiplier of 3.5. Slip op. at 8. That court apparently inferred that it had authority to grant a multiplier from the provision that a “special factor” could authorize an award in excess of $75 per hour. Id. at 2. In Underwood, the court was presented with a limited availability of qualified attorneys — a situation in which the statute specifically allows awards in excess of $75 per hour. Judge Pregerson explained, “This litigation was complex and' protracted. Few attorneys possess the special skills and qualifications needed to handle successfully the litigation and settlement activities required by this case.” In the present case, however, this court was not faced with a similar shortage of qualified counsel. As discussed supra, this case presented a relatively simple question of whether HUD abused its discretion in refusing to put a housing subsidy program into operation. HUD’s unreasonable position made this an easy case for plaintiffs, as evidenced by the unanimous rulings of lower courts against HUD in suits across the country. See Dubose v. Harris, 82 F.R.D. at 585 & n. 12 (citing district and circuit court opinions). Because an unusually high degree of legal talent was not required in this case, there was no dearth of lawyers who could have achieved similar results. Therefore, the “special factor” justifying the multiplier in Underwood is not present in the case at bar. In the absence of such a special factor and any extraordinary performance of counsel, I find no basis for granting a multiplier. Such an award would provide plaintiffs with an undeserved windfall. New York State Association for Retarded Children v. Carey, 711 F.2d 1136 (2d Cir. 1983). Each organization or attorney claiming fees has supported its claim with affidavits by all counsel for whose work compensation is claimed. These affidavits setting forth the time, amount, and nature of the work claimed are summarized below. The affidavits are all based on reconstructed time records, except for the affidavits by attorney Shay (for NLS), and that part of attorney Sturdevant’s affidavits covering the period from April 1982 onward, which are based on contemporaneous time records. A. NLS, NHLA and LASH [11] Three of the parties — NLS, NHLA, and LASH — have reached a partial settlement, filed with this court August 17, 1983. The parties have stipulated that, if it is ultimately determined that any award for work before this court is proper, the amount of the award shall be $2,425.50 to LASH for work by attorney Norko, $1,620.00 to LASH for work by attorney Pilver, $3,577.50 to NLS for work by attorney Shay, and $4,083.75 to NHLA for work by attorney Morrison, for a total of $11,706.75. The parties arrived at these figures by accepting the hours and rates in the attorneys’ affidavits, with some adjustments, as follows. Hours spent on the fee motion itself were omitted; the remaining hours were reduced by ten per cent; and any claimed rates above $75/hour were reduced to $75/hour. The agreement permits plaintiffs’ counsel to seek additional fees, at a rate of not more than $75/hour, for work done on any future appeals initiated by HUD, but not on appeals initiated by plaintiffs. The amounts specified in the stipulation are hereby approved as reasonable. In a case so weighed down with paper, reflecting many points of dispute, the court applauds this partial settlement. B. CLS CLS claims fees for the work of attorneys Sturdevant, O’Brien, Janes, Zeldis, McCoy, Wirzbicki, Korn, Dale, and Rosenstein. CLS asserts that hourly rates according to the following table are reasonable: years of experience hourly rate 0 ; 40 1 50 2 60 ' 3 70 4 80 5 95 6 110 7 110 Attorney James C. Sturdevant spent 1,312.75 hours on various tasks for this case from October 1975 through April 1978. Mr. Sturdevant graduated in 1972 from Boston College Law School and has been a member of the Connecticut bar since 1973. When assigned to handle this case, therefore, Sturdevant had less than three years’ experience at the bar. He worked for CLS and its predecessor organization, Tolland-Windham Legal Assistance Program, from 1972 until 1978. Attorney Dennis J. O’Brien spent 387 hours on various tasks for this case from August 1975 through March 1980. One hundred of these hours were spent in efforts directed at locating and informing potential claimants. Five of the hours were directed at persuading the State of Connecticut that settlement payments should not affect recipients’ AFDC eligibility. O’Brien Affidavit filed Nov. 17, 1982 1110(o)(ii), (iii). Attorney Norman K. Janes spent 79 hours on various tasks for this case from July 8, 1975, through November 21, 1975, and an additional five hours preparing his affidavit for this motion. Attorney Martin Zeldis spent 34 hours on various tasks for this case from December 30, 1975, through December 1979, and an additional four hours preparing his affidavit for this motion. His work included up to five hours spent toward implementing the settlement. Zeldis Affidavit filed Nov. 15, 1982 H 4(j) (“[cjlient contact, class contact, form consideration and distribution and claim collection re settlement of case, September, 1979 through December, 1979”). Attorney William E. McCoy spent 36.5 hours on various tasks for this case from January 1976 through April 1978, and an additional two hours preparing his affidavit for this motion. Attorney John Wirzbicki states that he spent 32 hours on various tasks for this case from January 21, 1976, through December 1979, and an additional two hours preparing his affidavit for this motion. This time included up to five hours toward implementing the settlement. Wirzbicki Affidavit filed Nov. 17, 1982 114(i) (“[cjlient contact, form distribution and claim collection re settlement of case, September, 1979 through December, 1979”). Attorney Martin N. Korn spent 66 hours on various tasks for this case from March through June 1976, preparing filings and preparing for and attending a hearing, and an additional five hours preparing his affidavit for this motion. Attorney D. Michael Dale states that he spent 85 hours on various tasks for this case from January 1976 through spring 1979, and an additional two hours preparing his affidavit for this motion. Up to two of the hours claimed concerned settlement implementation. Dale Affidavit filed Nov. 30, 1982 117. Attorney Ronald S. Rosenstein spent 62 hours on various tasks for this case from March 10, 1976, through 1979, and an additional five hours preparing his affidavit for this motion. C. Sturdevant (individually) Attorney James C. Sturdevant claims a personal right to fees for work he performed from May 1, 1978 through December 1982. Mr. Sturdevant spent 2,294.25 hours on various tasks for this case during that time. He claims hourly rates according to the same table as that used by CLS, supra p. 954. D. San Fernando San Fernando claims that fees for part of the work set forth in Sturdevant’s fee motions should be paid to it and not to Sturdevant. The work in question is that done from October 9, 1978, through April 30, 1980, during which time Sturdevant was a full time employee of San Fernando. Of the 2,294.25 hours claimed by Sturdevant individually in his motion, 1,329.5 fall during this time period. As to the amount of any fee award involved, San Fernando relies on Sturdevant’s statements of his hours and his claims regarding appropriate hourly rates. This dispute between San Fernando and Sturdevant will be discussed in section VI infra. IV. THE COMPENSABILITY OF THE HOURS CLAIMED A. Categories of Noncompensable Work Various categories of work are noncompensable. These include settlement administration, lobbying, work on reasonably separable issues on which plaintiffs did not prevail, defense of the settlement against project owners, and work on fee motions. Further, a penalty is appropriate for the use of reconstructed time records. 1. Settlement Administration No fees may be awarded for “settlement administration” (defined supra p. 944) because the Stipulation for Settlement bars such fees. Although paragraph 4(d) of the Stipulation, reported at 82 F.R.D. at 595, states that HUD would provide certain items to aid in settlement administration — a franking privilege, a WATS line, and payment for the cost of assembling and copying documents requested of PW by HUD for auditing purposes — the paragraph then concludes: “It is the intent of the parties that distribution of the settlement fund shall involve no other substantial costs or expenditures by HUD.” This provision rules out payment by HUD of attorney fees for work in settlement administration, even though such fees might otherwise be proper, In re Folding Carton Antitrust Litigation, 557 F.Supp. 1091, 1111 (N.D.Ill.1983); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 410 F.Supp. 680, 695 (D.Minn.1975). Almost all of Sturdevant’s activities as a member of the COC are thus not compensable. The sole exception has to do with motions which concerned the legal interpretation of the agreement rather than the mechanics of distribution. Plaintiffs have called attention to four such motions. First, for the 25 per cent of the projects in which HUD had no data on the “gap” values (values for increases in the property taxes and utility costs), plaintiffs moved to use a statistical regression formula to estimate these values. Second, plaintiffs moved to have that formula applied to projects for which HUD had supplied data indicating zero or negative “gap” values. Third, plaintiffs moved that the minimum recovery for any eligible claimant should be $20. Fourth, when HUD moved that the principal remaining in the reserve fund after payments were made (about $15 million) be returned to HUD, plaintiffs requested that HUD be required to obligate that money promptly for operating subsidies mandated by 1977 legislation. In all four cases, plaintiffs prevailed. Work on these motions is therefore compensable. 2. Lobbying Hours spent lobbying Congress, as well as federal and state agencies, are not compensable. The EAJA provides for fees “incurred ... in any civil action.” Lobbying, even if related to the suit, is not such an expense. .Further, the Act’s purpose was to provide compensation for the “vindication of ... rights in civil actions and in administrative proceedings,” as distinguished from enlargement of remedies through the legislative process. EAJA § 202(a), 94 Stat. 2325. Even lobbying HUD itself is not compensable. While negotiating with HUD’s counsel, or with other HUD officials at their direction, is within the ambit of litigation, other contacts with HUD personnel concerning HUD’s position in the litigation are not. 3. Work on Reasonably Separable Issues On Which Plaintiffs Did Not Prevail The plaintiffs may be considered prevailing parties in this action because they achieved many of the benefits sought in bringing suit. Hensley v. Eckerhart, — U.S__, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Nevertheless, no fees should be awarded for work on issues on which plaintiffs did not prevail, if such issues are reasonably separable from or unrelated to the rest of the case. As the Supreme Court recently explained: In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants — often an institution and its officers, as in this case —counsel’s work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been “expended in pursuit of the ultimate result achieved.” Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444, at 5049 (CD Cal.1974). The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim. Hensley v. Eckerhart, 103 S.Ct. at 1940. In this suit, plaintiffs initially claimed not only that HUD should fund the operating subsidy program, but also that certain rent increases authorized by HUD were improper. Plaintiffs did not pursue this second claim. Accordingly, no fees may be awarded for work on this claim. HUD also points to unsuccessful procedural motions by plaintiffs, such as their motion to the Supreme Court to vacate the stay imposed by the Second Circuit. These motions are not sufficiently separable from the case as a whole to warrant any denial of fees for work on them. Additionally, the results obtained in this case — an agreement by HUD to give plaintiffs all they asked for — makes this request reasonable. 4. Defense of the Settlement Against Project Owners Pees should not be awarded for work on issues in which HUD did not oppose plaintiffs. Cf Firebird Society v. Members of Board of Fire Commissioners, 433 F.Supp. 752, 755 (D.Conn.1976), aff'd, 556 F.2d 642 (2d Cir.1977) (per curiam); Vulcan Society of Westchester County v. Fire Department, 533 F.Supp. 1054, 1061 (S.D.N.Y.1982). In this case, some project owners opposed the settlement agreed to between HUD and plaintiffs. Plaintiffs’ work in defending the settlement agreement against this challenge is thus not compensable. 5. Work on Fee Motions In Carey, the Second Circuit held that, because the use of reconstructed time records had complicated both sides’ effort on the fee motion, an award of fees for time spent on the fee motion itself was inappropriate. 711 F.2d at 1148. The same reasoning applies here. Almost all of the time records submitted by plaintiffs in this action are reconstructed, see supra p. 953, and their use not only has cost plaintiffs considerable time in reconstructing these records, but also has substantially increased the argument, and the level of confusion, on these motions. Accordingly, fees for work on fee motions will be denied. 6. Penalty for Use of Reconstructed Time Records All otherwise allowable hours will be reduced by ten per cent if they are based on reconstructed time records. This penalty follows the practice of Ross v. Saltmarsh, 521 F.Supp. 753, 761-62 (S.D.N.Y. 1981), aff'd, 688 F.2d 816 (2d Cir.1982) (fee award under 42 U.S.C. § 1988). Cf Hens ley v. Eckerhart, 103 S.Ct. at 1942 n. 13 (district court’s reduction of attorney’s hours to account in part for his failure to keep contemporaneous time records was held proper). B. HUD’s Other Objections Rejected Except as noted in part A above, the hours claimed were reasonably spent for compensable work and reasonable in light of the level of success achieved. Id. at 1942. HUD complains that attorney Sturdevant spent considerable time in conferences both with attorneys involved in this action and attorneys involved in similar actions outside the state. Given the multiplicity of suits across the country, coordination among counsel was necessary and reasonable. Cf. Copeland v. Marshall (Copeland III), 641 F.2d 880, 904 (D.C.Cir.Í980) (“The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in a response.” (footnote omitted)). Indeed, such coordination may have contributed substantially to plaintiffs’ success nationwide in the operating subsidy cases, and such uniform success may have paved the way for the settlement eventually achieved. HUD complains also of the time spent by Sturdevant in following the progress of the settlement in Abrams (on which settlement the settlement in this action depended, see supra p. 943), and in submitting amicus briefs, on behalf of the plaintiffs in this action, to the courts in Underwood, Ross, and Abrams. HUD points to the provision in the EAJA that fees shall be awarded for expenses “incurred by th[e] party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action,” 28 U.S.C. § 2412(d)(1)(A) (emphasis added). HUD asserts that expenses incurred for amici briefs submitted to the courts in Underwood, Ross, and Abrams were not “incurred ... in any court having jurisdiction of th[is] action.” However, these amici briefs were reasonably necessary to protect the interests of plaintiffs in this action, and as such they were reasonably incurred in pursuing litigation before this court. V. THE APPROPRIATE HOURLY RATES The rates claimed by plaintiffs reasonably reflect the value of their services. In this determination, historic rather than current rates are to be used. Carey, 711 F.2d at 1152-53. Therefore, the historic hourly rates claimed by plaintiffs will be allowed, subject to a ceiling of $75/hour. The EAJA’s $75/hour fee limit applies “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 proceeding