254 F.3d 233 (D.C. Cir. 2001)
In re:  Sealed Case 00-5116 Consolidated with 00-5302
No. 00-5116 and 00-5302
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 3, 2001

On Appellants' Motion for Attorneys' Fees
Before Edwards, Chief Judge, Sentelle and Henderson,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
In In re Sealed Case, we held  that the Federal Election Commission (FEC) unquestionably  violated its authorizing statute and its own regulations by  placing information about an ongoing investigation in the  public record as part of a subpoena enforcement action.  237  F.3d 657, 667 (D.C. Cir. 2001).  Now, Appellants in that case  apply for fees and expenses under the Equal Access to  Justice Act (EAJA), 28 U.S.C. 2412.  Appellants argue that  they are entitled to attorney fees exceeding the $125 per hour  typically provided under the Act.  Appellants suggest that the higher fees are justified by special factors that limited the  pool of available counsel.  See id. 2412(d)(2)(A).  Specifically, they contend the pool was limited because the case required attorneys who specialize in federal election law, are  experienced in federal litigation, and were familiar with the  sealed administrative record.  Appellants further suggest  that the FEC's strident insistence on placing the information  on the public record with less than 24 hours notice precluded  them from looking for other counsel.  Because these limitations are not the type of "special factors" contemplated by the  Act, see F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C.  Cir. 1996), we award Appellants the expenses for which they  have applied and fees calculated at the standard EAJA rate.

I. BACKGROUND

2
The FEC is investigating allegations that Appellants violated the Federal Election Campaign Act (FECA), 2 U.S.C.  413 et seq.  As part of the investigation, the FEC issued a  subpoena to a third-party witness.  When the third party did  not comply with the subpoena, the FEC petitioned the district court to enforce it.  The petition was filed on the public  record and contained information about the ongoing investigation.


3
Appellants immediately filed an emergency motion to seal  the case.  In the motion, Appellants argued that the FEC's  petition violates the broad confidentiality afforded to the  subjects of FEC investigations under FECA.  The district  court denied Appellants' motion to seal, treating it "sort of as  a TRO request."  Transcript of Emergency Hearing at 12, In  re Sealed Case, No. MISC. 00-162 (D.D.C. Mar. 17, 2000).


4
On appeal, we recognized that 2 U.S.C. 437g(a)(12)(A)  and 11 C.F.R. 111.21(a) plainly state that "the Commission  shall not place information about an ongoing investigation in  the public record when it seeks to enforce a subpoena." Sealed Case, 237 F.3d at 667.  We held that by publicly filing  its petition and the accompanying exhibits, "the Commission  unquestionably violate[d] Congress's mandate and its own  regulations."  Id. Accordingly, we reversed the district court's ruling.  Appellants now apply for fees and expenses  related to their effort to seal the FEC's subpoena enforcement action.

II. ANALYSIS

5
Under the EAJA, we "award to a prevailing party" of  qualifying size fees and expenses incurred by the party as  part of an action against the United States unless "the  position of the United States was substantially justified or ...  special circumstances make an award unjust."  28 U.S.C.  2412(d)(1)(A).


6
The Commission concedes that Appellants are "prevailing  parties."  See id. 2412(d)(1)(A), (2)(B).  The Commission  also wisely concedes that its position in the underlying case  was not substantially justified.  It could not have asserted  otherwise with a straight face.  Our earlier opinion highlighted the "weakness" of the Commission's position, a weakness  that "invite[d] the suspicion that its actions [were] externally  motivated."  Sealed Case, 237 F.3d at 668.


7
The EAJA provides that "attorney fees shall not be awarded in excess of $125 per hour unless the court determines that  ... 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).  Appellants apply for fees  for the three attorneys who represented them in their effort  to seal the subpoena enforcement action.  Each of the attorneys charges a different hourly rate, all of which exceed the  $125 rate provided for in the statute.  Appellants ask us to  award the higher fees charged by counsel in light of several  special factors that combined to narrow the pool of available  counsel in this case.  Specifically, they contend that the case  required attorneys who specialize in federal election law, who  have experience in federal litigation (particularly with respect  to emergency remedies), and who were familiar with the  administrative record in the ongoing FEC investigation.  Additionally, Appellants claim that the higher fees are justified  by the FEC's ham-handed insistence on making a public filing  with little notice and its obstinate refusal to temporarily preserve Appellants' confidentiality.  According to Appellants, the FEC's handling of this matter precluded any realistic chance to retain other counsel.


8
In Pierce v. Underwood, the Supreme Court explained that  the EAJA's "limited availability" provision "must refer to  attorneys 'qualified for the proceedings' in some specialized  sense, rather than just in their general legal competence." 487 U.S. 552, 572 (1988).  The Court held that the provision  requires attorneys to possess "some distinctive knowledge or  specialized skill needful for the litigation in question."  Id.  According to the Court, examples of this criterion are "an  identifiable practice specialty such as patent law, or knowledge of foreign law or language."  Id.  Fee awards exceeding  the statutory cap are permitted only "[w]here such qualifications are necessary and can be obtained only at rates in  excess of the [$125] cap."  Id.  The Underwood Court emphasized that "the other 'special factors' envisioned by the exception must be such as are not of broad and general application."  Id. at 573.


9
Following Underwood, we noted that a higher fee would be  appropriate for specialties "requiring technical or other education outside the field of American law."  Waterman S.S.  Corp. v. Mar. Subsidy Bd., 901 F.2d 1119, 1124 (D.C. Cir.  1990).  In F.J. Vollmer Co. v. Magaw, we held that specialization in firearms law was not a special factor justifying higher  fees under the EAJA.  102 F.3d 591, 598 (D.C. Cir. 1996).  In  that case, we stated that "lawyers practicing administrative  law typically develop expertise in a particular regulated industry," but this expertise comes from experience, not from  specialized training. Id.  "If expertise acquired through  practice justified higher reimbursement rates, then all lawyers practicing administrative law in technical fields would be  entitled to fee enhancements."  Id.  As we explained in  Vollmer, nothing in the EAJA suggests this entitlement.  See  id.  A number of our sister circuits have adopted a similar  approach, refusing to award higher fees based on counsel's  expertise in a particular subject.  See, e.g., Estate of Cervin v.  Commissioner, 200 F.3d 351, 354 (5th Cir. 2000);  Raines v.  Shalala, 44 F.3d 1355, 1361 (7th Cir. 1995);  Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994);  Chynoweth v. Sullivan, 920 F.2d 648, 650 (10th Cir. 1990).  But see Love v.  Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991).


10
In light of Vollmer, we cannot award Appellants fees  exceeding $125 simply because they wanted to hire attorneys  who specialize in federal election law, have experience in  federal litigation, and were familiar with the administrative  record.  Although federal election law "involves a complex  statutory and regulatory framework, the field is not beyond  the grasp of a competent practicing attorney with access to a  law library and the other accoutrements of modern legal  practice."  Chynoweth, 920 F.2d at 650.  Likewise, in all  federal cases, clients presumably want to be represented by  an attorney with experience in federal litigation and who is  familiar with the record at issue.  These are not special  factors unique to this case.  Rather, even in combination they  broadly and generally apply to countless cases litigated in the  federal courts.  See Underwood, 487 U.S. at 573.


11
Appellants suggest that this case is set apart from the  typical one by the "artificial emergency" created by the FEC. Appellants contend that the FEC's actions placed unnecessary time constraints on them that effectively limited the  availability of qualified attorneys who could handle this matter.  As we recounted in our earlier opinion, on March 16,  2000, the FEC gave Appellants less than 24 hours notice that  it planned to file a petition seeking to enforce a subpoena  against a third-party witness and that the petition would  include exhibits detailing information about the FEC's ongoing investigation of Appellants.  See Sealed Case, 237 F.3d at  662.  We neglected to note in that opinion, however, that the  FEC provided this notice "just before close of business." While the FEC considered this a "courtesy" (presumably  because no regulation required such notice), its etiquette only  extended as far as informing Appellants that their statutorily  protected confidentiality would be violated the next afternoon. Because of the Commission's manners, Appellants were  forced to act immediately.


12
Within seconds of the FEC filing its petition, Appellants  filed an emergency motion to seal the district court proceedings.  A few hours later, Appellants' counsel advocated that  motion before the district court at a hastily arranged hearing--a hearing that was held on a Friday at 5 pm.  By the  time the district court denied Appellants' motion, the work  week was over.  Fearing that confidential information would  be revealed when the district court clerk's office reopened the  following week, Appellants scrambled to appeal the district  court's decision by Monday afternoon.


13
Undoubtedly, the FEC's actions forced Appellants into an  atrocious position.  To shield themselves from the very agency Congress requires to protect their confidentiality, Appellants essentially had no choice other than to turn to the  attorneys on whom they had relied during the FEC's investigation. There simply appears to have been no time to research or retain other counsel.  Still, this difficulty is not the  type of "special factor" or "limited availability" contemplated  by the EAJA.


14
Because the Act is a waiver of sovereign immunity, we  must construe it "strictly in favor of the sovereign."  Masonry Masters, Inc. v. Nelson, 105 F.3d 708, 712 (D.C. Cir. 1997). Under the EAJA, we award attorney fees if "the position of  the United States" was not "substantially justified."  28  U.S.C. 2412(d)(1)(A).  The Act mandates that those fees  "shall not be awarded in excess of $125 per hour unless ... a  special factor ... justifies a higher fee."  Id. 2412(d)(2)(A). The special factor inquiry is separate from the inquiry into  whether the United States' position was justified.  Appellants' proposed reading conflates the two by asking for higher  fees in light of the FEC's actions and how those actions  impacted them.  For a party to receive any fee award under  the Act, the government's position must not be substantially  justified--it does not matter how unjustified that position is. Congress has not devised a system to penalize the United  States for the degree of its unjustified position or how that  unjustified position has impacted a prevailing party.  Rather,  its waiver of sovereign immunity assumes that the United  States has taken an unreasonable position.


15
We agree with the FEC's concession that its position in  this case was not substantially justified.  Its contentious  refusal to file its petition under seal was based on a surreal  reading of FECA, references to opaque shards of legislative  history, and an absurdist approach to its own regulations. See Sealed Case, 237 F.3d at 668-70.  Indeed, the Commission seemed to have completely overlooked the bedrock principle that "[a]gencies are not empowered to carve out exceptions to statutory limits on their authority," an authority that  flows directly from explicit congressional delegations.  Id. at  669-70.  To say that the Commission's position was not  substantially justified is an understatement.  It was not justified at all.  See id. at 668.  Nevertheless, this simply reflects  the threshold inquiry required for Appellants to receive any  fee award, not a reason to increase that award beyond the  otherwise applicable $125 rate.  It does not matter that the  Commission's wholly unjustified actions may have forced Appellants to retain counsel who charge more than the statutorily provided fee.  Instead, because the Commission's position  was wholly unjustified, the EAJA's waiver of sovereign immunity authorizes us to award Appellants attorney fees based on  a rate of $125 per hour.  Accordingly, this rate forms the  basis of Appellants' award.


16
Appellants ask us to award fees based on the time their  counsel spent preparing supplemental and reply briefs for  their fee application.  These briefs were primarily devoted to  arguing that Appellants should receive higher fees based on  their interpretation of the EAJA's "special factor" provision. We do not award fees for Appellants' preparation of these  briefs.  As we discussed above, Appellants' argument for  higher fees flies in the face of the clear precedent of this  Court.  The United States is not required to pay "for work  that could have been avoided."  Action on Smoking & Health  v. Civil Aeronautics Bd., 724 F.2d 211, 224 (D.C. Cir. 1984). Additionally, Appellants did not prevail on this question.  See  Cooper v. United States R.R. Retirement Bd., 24 F.3d 1414,  1417 (D.C. Cir. 1994).


17
The Commission raises several arguments concerning specific entries and costs in Appellants' application.  We have  considered these arguments and find them meritless.

III. CONCLUSION

18
According to Appellants' application, their attorneys spent  231.5 hours working on this case (excluding time spent on the  supplemental and reply briefs in this proceeding), and they  incurred $3,920.80 in expenses (the $4,095.33 listed in the  initial petition, less the amounts conceded in the reply brief). Based on the EAJA's $125 per hour rate, Appellants are  entitled to $32,858.30 in fees and expenses.


19
So ordered.

