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
____________________
-2-
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.
I.
BACKGROUND
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
-3-
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
-4-
consolidated.
-5-
II.
II.
DISCUSSION
DISCUSSION
__________
A. Reduction in Attorneys' Fees
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
___
-6-
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
-7-
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
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
-8-
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
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
____________________ ____
-9-
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
-10-
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
-11-
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.
______________________________________________
-12-