Davis County Solid Waste Management & Energy Recovery Special Service District v. United States Environmental Protection Agency

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

__________

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

__________

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

__________

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

__________

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

__________

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.