United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed February 26, 1999
No. 95-1611
Davis County Solid Waste Management and
Energy Recovery Special Service District,
a Utah political subdivision,
Petitioner
v.
United States Environmental Protection Agency,
Respondent
On Petitioner's Motion for Attorneys' Fees
Before: Wald, Ginsburg, and Randolph, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: In 1995 the Environmental Protection Agency
("EPA") promulgated standards pursuant to the Clean Air
Act governing the combustion of municipal solid waste
("MSW"). See Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Mu-
nicipal Waste Combustors, 60 Fed. Reg. 65,387 (1995). The
standards addressed the emissions of various substances and
mixtures such as mercury and hydrogen chloride. Davis
County Solid Waste Management and Energy Recovery Spe-
cial Service District ("Davis County" or "petitioner") and
others challenged the standards, arguing, inter alia, that
EPA exceeded its statutory authority "because [the stan-
dards] are based on the aggregate MSW combustion capacity
("MSW capacity") of the plant at which a [municipal waste
combustor] unit is located, rather than on the MSW capacity
of the [municipal waste combustor] unit." See Davis County
Solid Waste Management v. United States EPA, 101 F.3d
1395, 1397 (D.C. Cir. 1996), amended by 108 F.3d 1454 (D.C.
Cir. 1997) (per curiam). We agreed, vacated the standards in
part, and remanded to EPA. See id. at 1411-12, amended by
108 F.3d at 1460.
The Clean Air Act provides for the recovery of litigation
costs: "In any judicial proceeding under this section, the
court may award costs of litigation (including reasonable
attorney and expert witness fees) whenever it determines
that such award is appropriate." 42 U.S.C. s 7607(f)
(s 307(f) of the Clean Air Act). After negotiations between
Davis County and EPA over the proper level of recovery
failed, Davis County petitioned the court for an award of
$323,782.21 (subsequently revised to $314,074.71).1 EPA con-
cedes that an award of litigation costs is appropriate but
disputes the amount. Specifically, EPA argues that (1) the
fees paid to Dr. H. Gregor Rigo, who petitioner characterizes
as an "expert witness," should not be recovered, (2) attorney
fees calculations should not be based on District of Columbia
rates because Davis County was represented by a Salt Lake
City firm, and (3) the number of hours for which Davis
County seeks compensation is excessive.2 We agree with
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1 We note that Davis County erred in adding its own section-by-
section subtotals in computing the attorney fees portion of this
figure and that its own numbers actually add up to $310,074.71.
2 EPA does not object to the $9,724.48 in costs claimed by Davis
County, covering such expenses as Westlaw, copying, and delivery
charges. In light of our decision that Davis County is not entitled
EPA in large part and remand to the agency for renewed
negotiations based on the principles and guidance set forth
herein.
I. Discussion
A.Expert Witness
The Clean Air Act litigation costs provision explicitly in-
cludes expert witness fees. On this basis, Davis County
seeks reimbursement of $79,130.48 charged by Dr. Rigo.3
Petitioner claims that Rigo is properly considered an "expert
witness" because he analyzed the regulations and the docket
and provided two technical affidavits about the impact the
regulations would have on Davis County. The affidavits,
which are largely identical, were submitted as support to this
court with the motions to expedite review and to stay the
effective date of the new standards. EPA objects to this
amount in its entirety, arguing that Rigo was a technical
consultant hired by Davis County to help its attorneys "deal[ ]
with the technical nature of the subject matter," not to appear
as an expert witness. EPA relies on Sierra Club v. EPA, 769
F.2d 796, 812 (D.C. Cir. 1985), where this court held that the
Clean Air Act's litigation costs provision did not cover a
$1,616 claim for "a 'technical consultant' who aided the peti-
tioners in preparing their case": "We do not read section
307(f)'s waiver of sovereign immunity so broadly as to allow
for fees in connection with the services of outside, nontestify-
ing experts." The court implied that had expert testimony
been provided to the court instead of review being based
entirely on the administrative record, recovery might have
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to fees based on District of Columbia rates, see infra section I(B),
we expect that in further negotiations on remand Davis County will
seek additional costs for travel that it omitted from the motion
under review. Davis County has stated its intent to do so should
we reject an award based on Washington rates, and we believe such
costs an appropriate subject for negotiation.
3 This is the figure listed in petitioner's initial brief and Dr. Rigo's
affidavit. The figure in the reply brief is eight cents lower.
been appropriate. This suggests that expert testimony need
not be given in a trial to fall within 42 U.S.C. s 7607(f).
To the extent that Rigo's charges reflect time necessary for
the preparation of his affidavits, they are properly recovera-
ble. In its motions to expedite and for a stay Davis County
sought to demonstrate to the court the practical effect of the
new regulations, a technical matter more suited for an expert
engineer than a lawyer. It is unclear from the itemized
billing included with Rigo's affidavit on the fee issue precisely
how much time is directly attributable to the two earlier
affidavits, but our perusal suggests it may not amount to
more than 16 hours of his own time and 18.5 hours of staff
time, totaling $3,481.01.4 The rest of his time seems to be
related to analyzing the material in the rulemaking docket
and helping Davis County's attorneys brief the case, prepare
for oral argument, and prepare for a settlement meeting with
EPA. Indeed, the affidavit submitted by Rigo on the fees
issue states that "I and my professional staff have performed
various analyses and other background work for the briefing
as requested by [Davis County's] lawyers." This advisory
function appears to fall within the prohibition of Sierra Club.
Davis County argues in the alternative that it should at
least be compensated for Rigo's fees through the filing of the
motion for a stay ($45,370.77). There is no indication, howev-
er, that all of his work up to that point is properly allocated to
preparation of the affidavits, as opposed to general consulting
on the case. Some of his work at this stage was probably
necessary for Rigo to arrive at the conclusions explained in
his affidavits, but on this record, there is no reason to believe
all of this time was so utilized.
B.Appropriate Hourly Rates
Davis County also seeks $221,219.75 in attorney fees. At-
torney fees are explicitly permitted by section 7607(f), but the
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4 These numbers reflect charges where the "description of ser-
vices rendered" plainly indicates work on the affidavits. Because
some entries (such as the one for staff member K.A. Sherwood on
December 7, 1995) give several descriptions but only one figure for
hours, even these numbers could be too high.
statute does not specify the location in which the hourly rate
will be computed, i.e., the situs of the law firm or the situs of
the legal proceedings. Davis County's lodestar calculation is
based on District of Columbia rates (discounted by $5-$60/
hour "to account for ... inefficiencies") although the case was
handled by a Salt Lake City firm. EPA states that Davis
County's settlement offers on the fees issue were based on its
normal billing rates; Davis County states that its offers
reflected "significant discounts" from D.C. rates. EPA ac-
knowledges that Davis County is entitled to attorney fees, but
argues that D.C.'s rates--which appear to be approximately
70% higher--are not the correct ones.
In defending its use of D.C. rates, Davis County cites
several cases for the proposition that the location of the court
deciding the case is normally the relevant market. The sole
D.C. Circuit case cited, Donnell v. United States, 682 F.2d
240, 251-52 (D.C. Cir. 1982), awarded D.C. rates to Mississip-
pi lawyers who handled a voting rights case, including trial, in
this circuit, even though much of the preparation work was
performed in Mississippi. Assuming the normal rule is that
the rate is based on the forum of the litigation, not the
business location of the lawyers, we recognized that the rule
has an exception--when an out-of-town attorney is used
because of special expertise or the unwillingness of local
counsel to take the case, out-of-town rates apply; as long as
local attorneys are available and competent to handle the
case, however, local rates should prevail. See id.; National
Wildlife Fed'n v. Hanson, 859 F.2d 313, 317-18 (4th Cir.
1988); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226,
232 (2d Cir. 1987). Based on this exception, the Donnell
court made the fee calculation for one attorney on (lower)
Mississippi rates because he was retained due to his expertise
on a particular county in Mississippi.
EPA would distinguish Donnell and other cases cited by
Davis County as involving situations where "a substantial
part of the attorneys' work took place, as was the case in
Donnell where a trial was conducted, in the venue where the
prevailing market rate was applied." This distinction, howev-
er, is certainly not made explicit in Donnell. In Donnell, the
court did not distinguish between work performed in-town
and out-of-town while discussing the question of the appropri-
ate rate. It observed that, "[a]lthough there may be cases,
such as this one, where much of the work must be performed
away from the district court's community, we do not believe
that this alone provides a sufficient reason for deviating from
the general rule." Donnell, 682 F.2d at 252. Thus, the court
awarded D.C. rates for one attorney whose only involvement
was preparing the fee application, a task she performed in
her Mississippi office. Nor do the other cases cited by Davis
County appear to turn on where any particular portion of the
work was performed or whether a trial or appellate court was
involved.
Were we to adhere strictly to Donnell, D.C. rates would be
the appropriate ones to use in calculating Davis County's
attorney fees award as this case was before a D.C. court and
could have been handled by D.C. attorneys. For reasons we
now explain, however, we decline to follow Donnell to the
extent it dictates this result, and hold instead that Davis
County's fee award should be based on Salt Lake City rates.
Although the forum rate rule has been widely adopted, we
have found few cases applying the rule in situations like the
one we face, where out-of-jurisdiction lawyers would receive
substantially higher rates than they ordinarily command for
work done almost exclusively in their home territory. But
see Garmong v. Montgomery County, 668 F. Supp. 1000, 1007
(S.D. Tex. 1987); Mary Frances Derfner & Arthur D. Wolf,
Court Awarded Attorney Fees p 16.03[8], at 16-103 (1997)
("[T]he rule is equally applicable where counsel's customary
rates are lower. In that event, out-of-town counsel can
recover the higher forum rate."). The combination of these
two factors along with intervening decisions by the Supreme
Court impels us to create a second exception to Donnell for
cases where the bulk of the work is done outside the jurisdic-
tion of the court and where there is a very significant
difference in compensation favoring D.C. This exception
would not alter the fee award in most instances as most cities'
rates are on a par with our own, see National Survey Ctr.,
Partner, Associate & Legal Assistant Billing Rate Survey for
Law Firms, National Edition 3-4 (1998), but it would pre-
vent the occasional erratic result where the successful peti-
tioner is vastly overcompensated given the amount he con-
tracted to pay for legal services. In all other cases the D.C.
forum rates would apply.
Donnell offered two rationales for the forum rate rule.
First, administrative ease: "It requires the district court
normally to determine only the prevailing market rate within
its jurisdiction, an inquiry about which it should develop
expertise." Donnell, 682 F.2d at 251. Second:
[I]t is a neutral rule which will not work to any clear
advantage for either those seeking attorneys' fees or
those paying them. High-priced attorneys coming into a
jurisdiction in which market rates are lower will have to
accept those lower rates for litigation performed there.
Similarly, some attorneys may receive fees based on
rates higher than they normally command if those higher
rates are the norm for the jurisdiction in which the suit
was litigated.
Id. at 251-52. A Third Circuit task force offered similar
reasons for preferring the forum rate rule:
The Task Force acknowledges that standardized rates
applicable to all types of cases, even when broken into
categories, will undercompensate certain attorneys and
overcompensate others. Nonetheless, it concludes that
the objectivity and efficiency that would be achieved by
using uniform rates is preferable to the current system.
Court Awarded Attorney Fees, Report of the Third Circuit
Task Force, 108 F.R.D. 237, 261 (1985) (footnote omitted).
We consider these reasons sufficient to justify awarding fees
based on rates charged in the District of Columbia to all
lawyers except those few who practice in far less expensive
legal markets and perform the bulk of their work on the case
at home in those markets. Cf. Blanchard v. Bergeron, 489
U.S. 87, 96 (1989) (reasonable attorney fee award may be
higher than fee called for by contract between prevailing
client and attorney).
Because we have simplified the process for calculating
reasonable attorney fee awards since Donnell was decided,
the administrative ease rationale it relied on carries less
weight today. In 1982, the twelve-factor inquiry put forth by
the Fifth Circuit in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and adopted by us
in Evans v. Sheraton Park Hotel, 503 F.2d 177, 187-88 (D.C.
Cir. 1974), was still central to the lodestar approach. See
Jordan v. United States Dep't of Justice, 691 F.2d 514, 518 &
n.28 (D.C. Cir. 1982). The lodestar approach has become
significantly simpler since then, see Pennsylvania v. Dela-
ware Valley Citizens' Council for Clear Air, 478 U.S. 546,
564-65 (1986), reducing the likelihood that lack of knowledge
of a litigator's home community will hinder a court shaping a
fee award.5 Nonetheless there is reason to continue using
the D.C. rates when they are not significantly higher than
out-of-town rates or when most of the work is in fact per-
formed here.
We think the neutrality rationale in Donnell is still suffi-
cient to justify forum rates in all but the extreme situation we
face here. We will presume that Washington rates will apply
so long as the judicial forum is here, unless the work done
here is minimal and the difference in rates substantial. Like
basing awards on the situs of the work performed, the use of
Washington rates is neutral in that it does not afford an
automatic advantage to either prevailing or losing parties.
While both approaches can thus be termed neutral, we find
the use of home market rates is preferable when the home
market is substantially less costly and the site of the bulk of
the legal work because it produces a result that better
reflects the purpose of fee shifting statutes. "[T]he aim of
such statutes [i]s to enable private parties to obtain legal help
in seeking redress for injuries resulting from the actual or
__________
5 Difficulty in applying the twelve factors to out-of-town lawyers
is not explicitly mentioned in Donnell. Because the factors were so
much a part of the fee award landscape at the time, though, we
believe the court must have had this difficulty in mind when it
extolled the simplicity of using the forum rate.
threatened violation of specific federal laws." Delaware Val-
ley, 478 U.S. at 565. Parties should be just as able to obtain
such help when fees are based on the jurisdiction in which the
clients and the lawyers reside and practice as if those fees are
based solely on the judicial forum. While limiting lawyers to
less than their usual rates would present problems for private
parties seeking help, limiting lawyers to what they normally
receive in their home market should not. Conversely, while
awarding higher Washington rates would not make it harder
for parties to find counsel, it would produce windfalls incon-
sistent with congressional intent. See id. ("[t]hese statutes
were not designed as a form of economic relief to improve the
financial lot of attorneys"); City of Riverside v. Rivera, 477
U.S. 561, 580 (1986) (plurality) (Congress did not intend
statutory fee awards to produce windfalls).
Our decision today is confined to the situation before us
and effects a limited exception to Donnell. In this case, as
far as we can tell from the record, virtually all of the work
was performed in Utah, the less expensive legal market. The
only time spent in Washington by Davis County's lawyers, as
far as the record reflects, was for the purpose of examining
the administrative docket and participating in a short oral
argument. In a case where out-of-town lawyers must spend
much more time in Washington--for example, when a lengthy
trial is held--a different analysis favoring an award of D.C.
rates is appropriate.
Nor do we suggest that the Donnell rule should no longer
be applied when lawyers from a more expensive market
litigate here. In fact, consideration of the purpose of fee
shifting statutes suggests preserving the Donnell rule and
not adopting a home market rate presumption on such facts.
As long as there are lawyers here who are competent to
handle a case, the party seeking legal assistance will be able
to find it even if the potential fee award is limited to D.C.
rates instead of higher home market rates. On the other
hand, when a party deliberately chooses pricier out-of-town
lawyers who will be undercompensated relative to their nor-
mal rates, the principal purpose of the fee shifting laws, i.e.,
to assure adequate counsel, will not be impugned. The
exception to the Donnell rule allowing home market rates for
attorneys from a more expensive jurisdiction when lawyers in
Washington are not available or competent to handle the case
remains in place. This exception reflects a proper concern
with protecting the ability of a private party to attract a
lawyer.
C.Number of Hours Devoted to the Case
EPA also contends that Davis County is seeking recovery
for a substantially excessive number of hours. EPA notes
that the other petitioners received only $58,000 (Waste Ener-
gy Partners ("WEP"))6 and $61,749 (Cement Kiln Recycling
Coalition)7 in fees and costs, and argues that Davis County's
attorneys could not reasonably have been required to work so
many more hours on the same appeal as to justify this much
greater award.
Arguing that the awards to the other petitioners should not
serve as a reference for its request, Davis County notes that
the motions to expedite and for a stay were prepared by its
attorneys alone, and that these motions required extensive
work. Davis County also states that it briefed and argued
one of the principal issues (whether the EPA's rule was
arbitrary and capricious) alone and that this issue consumed
60% of its billing hours.8 Davis County also asserts that it
has voluntarily reduced its billable hours by at least 10%.
It is difficult for us to determine on the record before us
precisely how much time Davis County is claiming for each
litigation-related task. Although its time is broken down into
__________
6 This was a settlement after a request for $64,362.
7 The court determined this amount after a request for $77,187.
8 The court did not reach the arbitrary and capricious challenge,
deciding the case on Chevron step one. Given Davis County's
success in the case, however, the time its attorneys spent on
alternative grounds should not be used to reduce its award. See
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983); see also Goos v.
National Ass'n of Realtors, 68 F.3d 1380, 1385 (D.C. Cir. 1995),
clarified on denial of reh'g, 74 F.3d 300 (D.C. Cir. 1996).
subsections, the subsections themselves include several differ-
ent tasks. The breakdown is as follows:
Fee9 Hours10 Task
$26,620 133.25 prefiling research, preparation, and
evaluation of case, and preparation of
petition for review
$14,610 69.75 preparation of court docketing mate-
rials, and research and preparation of
motion to expedite and application
for stay
$14,430 66.50 research for briefs and motions; re-
ply on motion to expedite; deal with
appendix, consolidation and briefing
issues; general case management
$44,710 232.50 drafting of opening brief; motion to
stay; general case management
$9,211.50 44.90 deal with stay issues; research and
respond to motion for voluntary re-
mand; errata for opening brief
$21,682.50 109.75 appendix and reply brief
$38,965 159.00 preparation for oral argument and oral
argument; settlement discussion
$50,990.75 272.20 post argument work
Many of the itemized descriptions (such as "telephone confer-
ence with Bill Evans") within the subsections are too vague to
identify with any particular task.
We do conclude, however, that the total number of hours
claimed by Davis County seems unreasonably high. Davis
County lists around 160 or 170 hours consumed in prepara-
tion for oral argument and the argument itself (the itemiza-
tion makes an exact determination difficult). In American
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9 These fee subtotals are based on Washington rates that we have
already concluded are too high.
10 Davis County did not total the number of hours spent on each
subsection. These figures are based on our own review of the
record.
Petroleum Inst. v. United States EPA, 72 F.3d 907, 917 (D.C.
Cir. 1996), the court found unreasonable a fee petition seeking
recovery for 116.25 hours spent by a partner on oral argu-
ment and reduced the figure to 80, allowing 10 hours billed by
another lawyer and a paralegal to stand. WEP listed 23.65
hours on oral argument (Davis County and WEP split the
argument).
Three entries from late September, 1997, are duplicated.
In response to EPA's observation about duplicated entries,
Davis County deleted several from January, 1997, but neither
party noticed the September entries.
EPA objects to time spent by a senior attorney at $265/
hour on basic research. For example, on 2/15/96, the attor-
ney is listed for 4.5 hours for "research regarding court
obligation to defer to agency construction when statutory
language is plain." Billable hours in fee applications are
susceptible to reduction for failure to allocate tasks efficiently
to different attorneys based on experience. See Sierra Club,
769 F.2d at 807-08. Beyond the particular examples cited by
EPA, it seems to us the hours devoted to research throughout
the itemization are allocated to relatively senior attorneys
more frequently than seems justifiable.
Duplication of effort is another basis on which Davis Coun-
ty's hours seem excessive. See Environmental Defense
Fund, Inc. v. Reilly, 1 F.3d 1254, 1258 (D.C. Cir. 1993).
Davis County seeks recovery for the time of ten different
attorneys (or nine and one law clerk). Although this alone
may not be a reason to eliminate hours, see Donnell, 682 F.2d
at 250 n.27, it appears to have resulted in multiple attorneys
performing the same tasks. For example, two attorneys are
listed at different points as drafting the attorney fees applica-
tion, while a third had been listed months earlier for "work on
fee application." Similarly, there appears to have been an
unusually high number of attorneys reviewing and editing
briefs.
Hours may also be rejected when work descriptions are so
general that a court cannot ascertain the reasonableness of
the time claimed. See American Petroleum Inst., 72 F.3d at
915, 917. Davis County's fee petition is illustrative of this
problem in many places.
On the other hand, we are not persuaded by EPA's sugges-
tion that the number of billable hours listed by Davis County
on the fees issue is excessive simply by virtue of that number.
As EPA notes, it is hard to tell just how much time Davis
County is listing for recovery of fees, but by our calculation it
appears to be at least 125 hours. Because the itemization is
often vague, the number might be substantially higher.11
EPA cites American Petroleum Inst., 72 F.3d at 918, which
reduced the award for time spent on a fee petition to 30
partner and 60 associate hours. The 90 hours in American
Petroleum Inst. only covered the fee petition, however,
whereas the billable hours listed by Davis County also cover
negotiations over the fee. Still, Waste Energy Partners
requested only 98 hours for all post-argument work and the
section of Davis County's billable hours itemization suffers
from some of the other defects we have already identified.
Based on these considerations and with the goal of provid-
ing guidance to the parties on remand, we list the following
amounts as falling within a reasonable range for the catego-
ries of work listed. The reductions are meant not as the final
word on what Davis County can seek or EPA can agree to,
but rather as what we might have expected in an appeal of
this kind compared to others similar both in complexity and
end product. The Utah rates we use are based on those used
by Davis County in its 1997 fee proposal to the government,
as evidenced by an attachment to EPA's brief. Because the
record is not sufficiently clear for us to conclude that these
are the proper rates, the parties may also need to address
this subject on remand.
Fee Reduced to Reduced to #Hours #Hours
Request @ D.C. rates @ Utah rates Requested reduced to Category
$26,620 $11,060 $6,398.75 133.25 56.75 refiling re-
search,
preparation,
and evalua-
tion of case,
and prepa-
ration
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11 In its reply, Davis County claims it spent only 99 hours on all
aspects of recovering fees. The substantial difference may reflect
the imprecision in Davis County's itemization.
Fee Reduced to Reduced to #Hours #Hours
Request @ D.C. rates @ Utah rates Requested reduced to Category
of petition
for review
$14,610 $7,215.50 $3,875 69.75 33.50 preparation
of court
docketing
materials
and re-
search and
preparation
of motion to
expedite and
application
for stay
$14,430 $7,075 $4,440 66.50 34.50 research for
briefs and
motions; re-
ply on mo-
tion to expe-
dite; deal
with appen-
dix, consoli-
dation and
briefing is-
sues; gener-
al case man-
agement
$44,710 $27,677.50 $16,819 232.50 142.70 drafting of
opening
brief; mo-
tion to stay;
general case
management
$9,211.50 $4,594 $2,827 44.90 21.15 deal with
stay issues;
research
and respond
to motion
for volun-
tary re-
mand; er-
rata for
opening
brief
$21,682.50 $12,970 $7,765 109.75 66.25 appendix
and reply
brief
$38,965 $12,627.50 $7,062.25 159.00 49.00 preparation
for oral ar-
gument and
oral argu-
ment; set-
tlement dis-
cussion
Fee Reduced to Reduced to #Hours #Hours
Request @ D.C. rates @ Utah rates Requested reduced to Category
$50,990.75 $31,645.50 $17,418.25 272.20 160.10 post argu-
ment work
_________ _________ ____________ _________ _________
$221,- $114,865 $66,605.25 1,087.85 563.95
219.7512
II. Conclusion
The petition is remanded to EPA for the parties to renew
negotiations in accordance with the principles and guidance
set out in this opinion.
So ordered.
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12 Davis County incorrectly totaled these numbers to $225,219.75.