United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided July 20, 2012
Reissued December 19, 2012
No. 05-1097
STATE OF NEW JERSEY, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
UTILITY AIR REGULATORY GROUP, ET AL.,
INTERVENORS
Consolidated with 05-1104, 05-1116, 05-1118, 05-1158,
05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167,
05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263,
05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211,
06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294
On Tribal Movants’ Motion for Costs of Litigation Including
Attorney Fees
Riyaz A. Kanji and David A. Giampetroni filed the
motion for costs of litigation including attorney fees for
intervenors for petitioners Tribal Movants.
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Matthew R. Oakes, Trial Attorney, U.S. Department of
Justice, filed the opposition for respondent Environmental
Protection Agency.
Before: ROGERS, TATEL, and BROWN, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Circuit Judge BROWN.
PER CURIAM: In our earlier decision in this case, New
Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 2011), we held that
Movants, a group of Native American tribes and tribal
associations who intervened on behalf of petitioners in the
underlying Clean Air Act litigation, were entitled to fees and
costs under section 307(f) of the Act. When the parties were
unable to agree on the amount of fees, Movants filed an
updated motion seeking $369,027.25, including compensation
for 1,181 hours of work and for costs. For the reasons set
forth below, we agree with EPA that the fee request is
excessive and thus award substantially less than Movants
seek.
Movants “bear the burden of demonstrating the
reasonableness of each element of their fee request.” Am.
Petroleum Inst. v. EPA, 72 F.3d 907, 912 (D.C. Cir. 1996)
(API). To calculate a reasonable fee, we use the lodestar
method, multiplying a reasonable rate by the reasonable
number of hours. See id.; see also Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). EPA does not object to Movants’
proposed hourly rates, and in order to simplify things
recommends that we use a flat rate of $305.125 (an average it
calculates by dividing the total award Movants seek by the
number of hours they claim). Because Movants do not object,
we shall base our award on $305.125 per hour. Moving on to
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the second issue, the reasonable number of hours, we must
closely scrutinize billing entries “in light of the ‘reasonable’
and ‘appropriate’ standards set forth in the statute,” Michigan
v. EPA, 254 F.3d 1087, 1090 (D.C. Cir. 2001) (per curiam)
(quoting 42 U.S.C. § 7606(f)), recognizing that “items of
expense or fees that may not be unreasonable between a first
class law firm and a solvent client[] are not always supported
by indicia of reasonableness sufficient to allow us justly to tax
the same against the United States.” API, 72 F.3d at 912
(alteration and internal quotation marks omitted).
“[S]upporting documentation must be of sufficient detail and
probative value to enable the court to determine with a high
degree of certainty that such hours were actually and
reasonably expended[.]” Role Models Am., Inc. v. Brownlee,
353 F.3d 962, 970 (D.C. Cir. 2004) (internal quotation marks
omitted). Where “petitioners have not carried their burden,”
this court “make[s] adjustments,” reducing the award as
appropriate. API, 72 F.3d at 912; see also Envtl. Def. Fund,
Inc. v. EPA, 672 F.2d 42, 54 (D.C. Cir. 1982) (“[A]ppellate
judges are themselves experts in assessing the reasonableness
of an attorney’s fee award, and . . . the appellate court may
independently review the record, or itself set the fee.”
(omission and internal quotation marks omitted)).
With these principles in mind, we consider the
reasonableness of the hours Movants seek for each category
of tasks.
Initial case preparation: Movants request compensation
for 79.75 hours of initial case preparation. EPA argues that
Movants’ billing records are vague and urges us to award fees
for only 20 hours. We agree with EPA. Movants’ “generic”
time records—e.g., “[r]eview[ing] case materials,” and
“[r]eview of key strategy issues and mercury materials,” each
for eight hours—“are inadequate to meet a fee applicant’s
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heavy obligation to present well-documented claims.” Role
Models Am., Inc., 353 F.3d at 971 (internal quotation marks
omitted). Seeking to remedy this lack of specificity, Movants
have submitted declarations explaining that the attorneys were
working to “comprehend the scientific, factual and legal
issues that were central to the case,” and listing some specific
materials read. Kanji Reply Decl. ¶ 40. Although such
declarations can offer some degree of support, see In re Segal,
145 F.3d 1348, 1353 (D.C. Cir. 1998) (per curiam), they carry
significantly less weight than specific contemporaneous
records and fail to establish with the requisite “high degree of
certainty,” Role Models Am., Inc., 353 F.3d at 970 (internal
quotation marks omitted), that all the requested hours were
reasonable. We shall thus reduce the compensable hours to
the 20 EPA suggests.
Intervention motion: Movants request fees for 35 hours of
partner time spent on their ultimately unopposed motion to
intervene. Urging us to award compensation for only 15
hours, EPA insists that Movants’ request is excessive for an
unopposed motion and that the work should have been done
by attorneys billing at lower rates. We agree partly with EPA
and partly with Movants. Contrary to EPA, the fact that the
motion was ultimately unopposed is not dispositive because
the lack of opposition was unforeseeable at the time the
motion to intervene was filed. See API, 72 F.3d at 912 (“It is
not necessary that a fee-petitioning client and its attorney
have acted with the 20/20 acuity of hindsight in developing
their arguments in order to collect attorneys’ fees.”). In his
declaration, Tribal Intervenors’ counsel states that he asked
EPA counsel whether the agency would oppose the Tribes’
motion to intervene, and counsel “indicated that the United
States would not be in a position to make a decision regarding
the motion until after it was filed.” Kanji Reply Decl. ¶ 32.
EPA does not challenge this representation. With regard to
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EPA’s second point, Movants explain that their law firm,
Kanji & Katzen, used a partner for the motion because the
associates were “extremely busy.” Kanji Reply Decl. ¶ 33.
This justification is entirely unacceptable. Indeed, we suspect
that had the firm been charging a private client for these
hours, it would have billed the partner time at the hourly rate
of the “extremely busy” associates. The taxpayers are surely
entitled to the same courtesy. Accordingly, we shall award
compensation of 25 hours, the midpoint between what the
parties each believe was the value of the work performed.
Administrative proceedings: Movants request
compensation for 36.5 hours spent preparing comments in
pre-litigation administrative proceedings. EPA argues that
time spent in administrative proceedings is never
compensable. But we need not resolve this dispute because
Movants’ administrative work—challenging an ancillary
regulation—had nothing to do with their efforts as
intervenors, the only activity that entitles them to fees. See
New Jersey, 663 F.3d at 1284 (explaining that Tribal Movants
are entitled to fees for their “role as intervenors,” and
distinguishing that from “their role as petitioners”); see also
API, 72 F.3d at 913 (denying “fees [that] are not sufficiently
connected to the litigation at issue to require the taxpayers to
reimburse them”). Accordingly, we shall deny this portion of
Movants’ request.
Scheduling and coordinating with other parties: Movants
seek fees for 29 hours spent on the briefing schedule,
docketing statement and statement of issues, and coordinating
with other parties as to these matters. EPA believes that only
15 hours are justified. As is the case with many of Movants’
billing records, the records regarding these activities lack the
specificity needed not only to justify the full amount sought
for these simple tasks, but also to assure us that no duplication
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occurred between Movants’ efforts and those of the
petitioners. See Role Models Am., Inc., 353 F.3d at 972
(“Duplication of effort is another basis on which the hours
seem excessive.” (alteration and internal quotation marks
omitted)). Unable to ascertain that more than the 15 hours
EPA suggests were reasonably expended, we shall award
compensation accordingly.
Merits briefing: Movants request compensation for
578.75 hours—approximately fourteen weeks of attorney
time—for preparing their opening and reply briefs. EPA
insists that the request is excessive and that compensation for
“at most” 300 hours is appropriate. Updated Opp. 12. We
agree that the request is patently excessive. To begin with,
Movants played a “narrow” role in the litigation, New Jersey,
663 F.3d at 1283 (internal quotation marks omitted), focusing
only on whether EPA’s regulations abridged tribal fishing
rights. Such a focused contribution, though important, should
have taken substantially less time. See API, 72 F.3d at 916
(deducting hours to reflect “focused challenge” fee-seeking
party mounted). Yet Movants seek reimbursement for far
more hours than we have awarded to petitioners responsible
for briefing an array of arguments. See, e.g., Wilkett v. ICC,
844 F.2d 867, 877 (D.C. Cir. 1988) (allowing 300 hours for
merits briefing given detailed itemization of billed hours);
API, 72 F.3d at 917 (awarding, after reduction, 139 hours for
lead petitioners’ opening and reply briefs). Moreover,
Movants’ billing records brim with entries like “[c]ontinue
draft of brief; research re same” (27.5 hours over three days),
“[c]ontinue revisions of draft mercury brief” (4 hours),
“[c]ontinue drafting/revising of Opening Brief” (8.5 hours),
“[c]ontinue drafting/ revising of mercury brief” (7.25 hours),
“[c]ontinue draft of mercury brief” (9.25 hours), “[r]eview of
and revisions to Opening Brief” (14 hours), “[r]esearch and
brainstorm reply brief issues” (7.25 hours), “[r]esearch
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mercury reply brief issues” (14.25 hours over two days),
“[r]esearch reply brief issues” (5.25 hours), “[r]esearch and
draft reply brief” (9 hours), and “[d]raft reply brief” (22.25
hours over two days). When used to describe hundreds of
hours of work, such entries are “inadequate to meet a fee
applicant’s heavy obligation to present well-documented
claims,” let alone to establish why the narrow issue the Tribes
addressed required such an extraordinary number of hours.
See Role Models Am., Inc., 353 F.3d at 971 (finding
inadequate entries like “[r]esearch and writing for appellate
brief”). Revealing just how excessive this request is, Movants
seek compensation for 73.75 hours evaluating EPA’s brief,
only twenty-four pages of which addressed their arguments,
and another 73 hours spent on standing, preparing detailed
declarations from “each Treaty Tribe,” Albright Decl. ¶ 2,
even though Movants only needed to show that one tribe had
standing, see, e.g., Rumsfeld v. Forum for Academic & Inst.
Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of
one party with standing is sufficient to satisfy Article III’s
case-or-controversy requirement.”). For all these reasons, we
shall award reimbursement for 25% of the hours requested,
i.e., 144.7 hours.
Joint appendix and Rule 28(j) letter: Movants request
33.5 hours for time spent assuring that their materials were
properly represented in the joint appendix, as well as 3 hours
for preparing a Rule 28(j) letter they filed before oral
argument, see Fed. R. App. P. 28(j). EPA objects to the hours
spent on the joint appendix, arguing that they are excessive
and that the supporting descriptions are overly vague.
Because the descriptions are indeed generic, e.g.,
“[p]reparation of joint appendix materials,” “[c]ompilation of
joint appendix materials,” and, twice, “[c]ompilation of joint
appendix,” we cannot be sure that Movants avoided
duplication of effort between the various petitioners working
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on the document, much less that all of the requested hours
were reasonably expended for these ministerial tasks.
Accordingly, as EPA requests, we shall deduct 16.5 hours
from Movants’ request and award compensation for 20.
Oral argument: Movants seek compensation for 121
hours preparing for oral argument. Although Movants did not
participate in oral argument—ten days before the scheduled
date this court issued an order limiting argument to certain
other issues—they reasonably expected to, so some
preparation was appropriate. EPA agrees, but argues that the
number of hours requested is exorbitant. EPA is correct. Over
three weeks of attorney time is grossly excessive given not
only that Movants knew ten days before argument that they
would have no role, but also that during the time Movants
were appropriately preparing for oral argument, they, unlike
petitioners, had to focus solely on the interaction between the
challenged rules and tribal fishing rights. See Wilkett, 844
F.2d at 878 (72.9 hours of oral argument preparation “plainly
excessive”); API, 72 F.3d at 917 (126.25 hours of oral
argument preparation excessive). Accordingly, we shall award
reimbursement for 25% of the hours requested, i.e., 30.25
hours.
Post-decision activities: Movants request compensation
for 37 hours of post-decision work, including participation in
the motion for expedited issuance of the mandate and
commenting on motions opposing rehearing en banc and
certiorari. EPA argues that the request is vague and excessive
and should be reduced to 20 hours. Because the descriptions
generically discuss “review[ing]” various things, e.g.,
“[r]eview and address issues related to Motion to Expedite”
and “[r]eview petitions for rehearing and rehearing en banc,”
Movants have failed to meet their burden to show that all
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hours requested were reasonably expended and avoided
duplication. We shall therefore make the requested reduction.
Attorney fees: Movants seek compensation for 227.5
hours spent on their motion for fees, including 42.5 hours for
the initial motion and 185 hours for their efforts responding to
EPA’s opposition. EPA argues that these hours are “grossly
excessive,” Updated Opp. 17, pointing out that we have
previously treated 69 hours for fee work as “perhaps
excessive for a fee petition of relatively ordinary difficulty,”
Sierra Club v. EPA, 769 F.2d 796, 812 (D.C. Cir. 1985).
Although, as our earlier opinion in this case readily
demonstrates, Movants’ request was hardly one of “ordinary
difficulty,” Movants have nonetheless failed to demonstrate
that the undertaking was so herculean that it required nearly
six weeks of attorney time. Given this, we shall award
compensation for the 91 hours suggested by EPA.
In sum, Movants reasonably expended 365.95 hours on
the litigation. Multiplying this by $305.125 per hour, we
award Movants $111,660.49 in compensation for attorney
time. We also award Movants the $3,186.50 in costs they seek
and that EPA does not contest.
So ordered.
BROWN, Circuit Judge, concurring: An old song laments
that “nothing from nothing leaves nothing.” BILLY PRESTON,
Nothing from Nothing, on THE KIDS AND ME (A&M Records
1974). Logically, it should follow that nothing plus nothing
leads to the same result. But, in the rarefied atmosphere of
attorneys’ fees litigation and in light of this Court’s divided
decision in New Jersey v. EPA, 663 F.3d 1279 (D.C. Cir.
2011), nothing times nothing is apparently worth a great deal.
Since I believe that no matter how carefully we parse the
separate parts of the intervenors’ request, anything above zero
is excessive, I hope the en banc court will revisit this question
in the near future. Meanwhile, under compulsion of our
earlier case, I reluctantly concur.