Tennessee Gas Pipeline Co. v. 104 Acres of Land, More or Less

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2126

TENNESSEE GAS PIPELINE COMPANY,

Plaintiff - Appellee,

v.

104 ACRES OF LAND, MORE OR LESS,
IN PROVIDENCE COUNTY,
STATE OF RHODE ISLAND,

Defendant - Appellee,

WALTER R. AND CLARA J. LAWRENCE,
JUDITH B. MOREAU, ET AL.,

Defendants - Appellants.

No. 94-1283

TENNESSEE GAS PIPELINE COMPANY,

Plaintiff - Appellee,

v.

WALTER R. LAWRENCE; CLARA J. LAWRENCE;
JUDITH B. MOREAU,

Defendants - Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, U.S. District Judge]

Before

Torruella, Cyr and Boudin,

Circuit Judges.

Morton L. Simons, with whom Barbara M. Simons, Simons &

Simons, Robert S. Bruzzi and Law Office of Robert S. Bruzzi, were

on brief for appellants.
Paul M. Sanford, with whom Kathryn S. Holley, Christine M.

Gravelle, Peter V. Lacouture and Tillinghast Collins & Graham,

were on brief for appellee.

August 24, 1994

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TORRUELLA, Circuit Judge. Defendants Judith Moreau and

Walter and Clara Lawrence ("the landowners") appeal the district

court's thirty percent reduction of an award of attorneys' fees

based upon a failure of the landowners' counsel to adequately

document the charges. The landowners also appeal the district

court's failure to include certain costs and prejudgment interest

in the award, and the district court's denial of a subsequent fee

application seeking reimbursement for fees and expenses incurred

in prosecuting the initial fee application. We affirm in part

and reverse in part.

I.

BACKGROUND

The facts of this case are set forth with greater

detail in the district court's opinion regarding the principal

fee application in Tennessee Gas Pipeline Co. v. 104 Acres of

Land, 828 F. Supp. 123 (D. R.I. 1993). In 1986, plaintiff-

appellee Tennessee Gas Pipeline Co. ("Tennessee Gas") sought a

certificate of public convenience from the Federal Energy

Regulatory Commission ("FERC") to allow Tennessee Gas to

construct facilities for the transmission of natural gas on the

landowners' property. In May 1989, FERC issued Tennessee Gas a

conditional certificate for construction on the property. In

December 1989 and February 1990, Tennessee Gas brought eminent

domain proceedings in the district court against the landowners,

seeking to obtain rights-of-way and a portion of their land in

order to construct and maintain the natural gas pipeline. The

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landowners retained counsel to intervene in the FERC proceeding

and requested FERC to modify its May 1989 certificate by

rerouting the final leg of the proposed line to utilize existing

rights-of-way. After proceedings in the district court and a

proceeding before FERC, Tennessee Gas changed the route of its

pipeline and dismissed the eminent domain proceedings against the

landowners.

The landowners moved for costs and attorneys' fees,

pursuant to the Uniform Relocation Assistance and Real Property

Acquisition Policies Act ("Relocation Act"), 42 U.S.C. 4601 et

seq. On August 25, 1993, the district court awarded the

landowners attorneys' fees but disallowed thirty percent of the

fees requested by the law firm of Simons & Simons ("Simons"), one

of the two firms that represented the landowners, because it

found that the firm failed to adequately document its charges.

Tennessee Gas paid the fee award on September 7, 1993. On

September 22, 1993, the landowners filed a supplemental fee

application seeking reimbursement for fees and expenses incurred

in prosecuting the principal fee application during the period

from April 29, 1992, to March 1993. On September 24, 1993, the

landowners filed a notice of appeal from the district court's

order with respect to the principal fee application. On March 2,

1994, the district court entered judgment denying the

supplemental fee petition because the court determined that the

petition was untimely. The landowners appealed the March 2

order. In April, this court ordered that both appeals be

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consolidated.

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II.

DISCUSSION

A. Reduction in Attorneys' Fees

The landowners sought an award of costs and attorneys'

fees under 42 U.S.C. 4654, which provides that in a

condemnation action abandoned by the condemnor, the court "shall

award" the property owner "such sums as will in the opinion of

the court reimburse such owner for his reasonable costs,

disbursements, and expenses, including reasonable attorney . . .

fees, actually incurred because of the condemnation proceedings."

The landowners contend that because Section 4654 uses the

mandatory language "shall award," an award of attorneys' fees

under this section is not discretionary, and a landowner's

computation of hours should be accepted even if there is

insufficient documentation absent a specific showing of abuse.

We disagree.

Section 4654 provides for the reimbursement of

"reasonable" costs and fees. This Court's opinions "have left

reasonably open the question of precisely how the judge

ascertains the number of hours reasonably expended" by counsel on

a case in which attorneys' fees are sought. United States v.

Metropolitan Dist. Com., 847 F.2d 12, 16 (1st Cir. 1988)

(internal quotations and citation omitted). "What we expect the

trial court to do is make concrete findings, supply a clear

explanation of its reasons for the fee award, and most of all,

retain a sense of overall proportion." Id. (internal quotations

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and citations omitted). Accordingly, we review the district

court's fee award for abuse of discretion. Foley v. Lowell, 948

F.2d 10 (1st Cir. 1991).

The district court indicated that it would employ the

lodestar analysis in determining the reasonableness of the fee

applications. Tennessee Gas Pipeline Co., 829 F. Supp. at 128.

"If an alternative method is not expressly dictated by applicable

law, we have customarily found it best to calculate fees by means

of the [lodestar] time and rate method. . . ." Weinberger v.

Great Northern Nekoosa Corp., 925 F.2d 518, 526 (1st Cir. 1991).

Because Section 4654 does not dictate an alternative method to

calculate fees, the district court's use of the lodestar method

was proper.

Where a district court applies the lodestar method, the

fee-seeker must usually provide a particularized account of his

claim. Id. at 527. "[T]he absence of detailed contemporaneous

time records, except in extraordinary circumstances, will call

for a substantial reduction in any award or, in egregious cases,

disallowance." Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952

(1st Cir. 1984). In order for litigants to receive fee awards,

this court has required that they submit "a full and specific

accounting of the tasks performed, the dates of performance, and

the number of hours spent on each task." Weinberger, 925 F.2d at

527 (internal quotations and citations omitted).

The district court found that the Simons' time sheets

were not sufficiently detailed to enable the court to determine

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whether the fees were excessive or duplicative. The district

court stated that "[t]he time summaries are replete with time

charges for such matters as 'Confer with co-counsel,' 'Confer

with client,' 'Review materials,' Review documents,' and 'Legal

Research' without any indication of the subject matter involved."

The district court explained that in addition to making it

impossible for the court to gage whether the task performed was

warranted, the failure to include some description of the subject

matter of the task made it impossible to determine if the time

factor allocated was appropriate or excessive. The district

court also found that discrepancies in Simons' submissions raised

questions as to their accuracy and whether such records were kept

contemporaneously. The district court clearly explained its

findings and the court was justified in reducing the fee award.

The court did not abuse its discretion by reducing the award of

fees claimed by Simons by thirty percent. We therefore affirm

the district court's reduction of Simons' attorneys' fees.

B. Prejudgment Interest and other Costs

In the proceedings before the district court, the

landowners requested interest on fees and costs from April 29,

1992, the date they had filed their motion for fees and costs.

The request for prejudgment interest was opposed by Tennessee

Gas. The district court's opinion makes no mention of

prejudgment interest and the district court's judgment did not

include any prejudgment interest. The landowners also contend

that the district court, without comment and apparently

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inadvertently, failed to include in the award an item of $889 for

two "round-trip" airfares between Washington, D.C., and

Providence, R.I., to permit counsel for the landowners to attend

a settlement conference and a meeting on the Tennessee Gas

project. According to the landowners, the vouchers for these

trips, accompanied by an affidavit describing the purpose of the

trips, were submitted to the district court and served on counsel

for Tennessee Gas on March 12, 1993.

Because the district court did not advance any reasons

for its denial of the landowners' request for prejudgment

interest, or the cost of the airline tickets, we will remand this

case to the district court so that it may determine whether the

landowners are entitled to prejudgment interest and to

reimbursement for the cost of the airline tickets.

C. Supplemental Fee Application

In its memorandum and order denying the landowners'

supplemental fee application, the district court indicated that

ordinarily a litigant should have one opportunity to obtain fees,

but that "[t]here is no reason why a pending application may not

be supplemented to the time the court acts on the application."

The court acknowledged that there is no stated time requirement

for filing fee applications included in 42 U.S.C. 4601, et

seq., but stated that there must be some time limit within which

applications must be filed. The court pointed out that the

Supreme Court has indicated that fee applications should not

result in secondary litigation, Commissioner, I.N.S. v. Jean, 496

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U.S. 154, 163 (1990), and that the First Circuit has embraced

this principle, Par s v. U.S. Dept. of Housing & Urban Dev., 988

F.2d 236, 241 (1st Cir. 1993). The district court stated that

"if [the landowners'] application was approved, it must be

expected that a third application will be made for the services

rendered in connection with this second application." The court

then pointed out that "[h]ere the second application was filed

September 12, 1993, 29 days after the court's formal order

allowing the first petition, more than two months after the court

filed its opinion, six months after the last of the services were

rendered, and seventeen months after the beginning of the period

for which [the landowners] seek reimbursement." The court stated

that "[e]xcept in unusual circumstances not present in this case,

application for reimbursement for legal services rendered before

the court determines a fee application should be made before the

court acts on the application, otherwise reimbursement should be

foregone." The court then concluded that the second application

for fees came too late.

The landowners contend that neither the Uniform Real

Property Acquisition Policies Act nor any other applicable

statute imposed a time requirement for filing a fee application,

and therefore, by denying their application as untimely, the

district court in effect enunciated a new rule which it unfairly

applied retroactively to the landowners. In support of their

position, the landowners argue that the amount of the

supplemental fee claim was unknown at the time the principal fee

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application was submitted, and the landowners could not have

known precisely what the amount of this claim was until the

principal application was resolved. Therefore, they could not

determine the amount, or submit a supplemental fee application

until they had been awarded fees. The landowners also contend,

and the record shows, that they advised the court on March 3,

1993 -- 4 1/2 months before its preliminary fee application and

almost six months before the court entered its judgment regarding

the preliminary fee application -- that they would submit a

supplemental fee application at the appropriate time.

We agree with the district court that there must be

some time limit within which a party must file an application for

supplemental fees, and we believe that it is reasonable to

require, absent any other statutory mandate, that where possible,

such application be made before the court acts on the principal

fee application. In the present case, however, where the

district court had not previously articulated this novel

requirement, where the landowners had advised the court in

writing of their intention to file a supplemental fee

application, and where Congress has directed district courts to

award landowners their reasonable costs and attorneys' fees

incurred because of aborted condemnation proceedings, we agree

with the landowners that it would be unfair, and would contravene

the Congressional purpose, to apply the district court's

requirement retroactively.

We therefore vacate the district court's order denying

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the landowners' supplemental fee application, and remand for the

district court to determine the reasonable fees to be awarded.

We further order that any application for fees in connection with

this second application be submitted to the district court before

the district court acts on the second application.

Affirmed in part; vacated and remanded in part.

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