United States v. Eleven Vehicles

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

1-11-2000

United States v Eleven Vehicles

Precedential or Non-Precedential:

Docket 99-1241

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Filed January 7, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1241

UNITED STATES OF AMERICA

v.

ELEVEN VEHICLES, THEIR EQUIPMENT AND

ACCESSORIES; ALL MONIES AND/OR INTERESTS IN

CERTAIN ACCOUNTS IN BANKS OR CERTAIN OTHER

FINANCIAL INSTITUTIONS; ONE BUSINESS; ANY & ALL

PROCEEDS, FROM THE SALES THEREOF

ROBERT CLYDE IVY; WAYNE K. RADCLIFFE; TERRANCE

P. FAULDS; IRENE IVY; KLEINBARD, BELL & BRECKER;

MELLON BANK, N.A.; LEBANON VALLEY NATIONAL

BANK; MARY E. IVY; GERALD SCHULER; CLYDE IVY;

IRENE IVY; ELAINE K. RADCLIFFE;

MICHELLE E. RADCLIFFE,

Claimants in District Court

Robert Clyde Ivy and Irene Ivy,

Appellants

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civ. No. 91-cv-06779)

District Judge: Honorable Eduardo C. Robreno

Argued: October 1, 1999

Before: NYGAARD, ALITO and ROSENN, Circuit Judges.

(Filed January 7, 2000)

Charles H. Ivy, Esquire (Argued)

Law Office of Charles H. Ivy

20 South Prado Street, N.E.

Atlanta, GA 30309-3309

Counsel for Robert Clyde Ivy and

Irene Ivy

Catherine L. Votaw, Esquire (Argued)

J. Alvin Stout, III, Esquire

Michael R. Stiles, Esquire

Office of the United States Attorney

615 Chestnut Street

Suite 1250 Philadelphia, PA 19106

Counsel for United States of

America

OPINION ANNOUNCING THE

JUDGMENT OF THE COURT

ROSENN, Circuit Judge.

This appeal presents a recurring problem concerning the

amount of fees due counsel under a fee-shifting statute.

The case also presents the grim reality feared by the

Supreme Court of the United States when it warned that a

"request for attorney's fees should not result in a second

major litigation." Hensley v. Eckhart, 461 U.S. 424, 437

(1983). More specifically, we are presented with a challenge

to the adequacy of a supplemental award of attorney fees

and expenses for work performed in post-judgment fee

litigation in a civil forfeiture proceeding initiated by the

United States in 1991 in the District Court for the Eastern

District of Pennsylvania. After securing the court-ordered

release of property seized by the United States Government

because it was thought to be involved in illegal money

laundering activities, appellants sought attorney fees and

expenses incurred in seeking the property's release

pursuant to the Equal Access to Justice Act ("EAJA"), 28

U.S.C. S 2412(d)(1)(A). In its fourth published opinion in

this case, the district court awarded the appellant

$142,643.26 in attorney fees and $7963.51 in expenses

2

covering services through September 26, 1996. See United

States v. Eleven Vehicles, 966 F. Supp. 361 (E.D. Pa. 1997)

[hereinafter Eleven Vehicles IV]. 1 Subsequently, the

appellants filed a supplemental request for $23,333.81 in

attorney fees and $560 in expenses incurred after

September 26, 1996 in litigating their entitlement to fees

and expenses for the underlying forfeiture litigation. The

court awarded the appellants $5000 in attorney fees plus

$560 in expenses. Disappointed, the appellants, Robert

Clyde Ivy and Irene Ivy, timely appealed. We remand.

I.

In October 1991, the Government filed a complaint for

forfeiture of the assets of numerous parties, including

Appellants Robert Clyde Ivy and Irene Ivy ("the Ivys"). Over

the next four-and-a-half-years, the trial court ordered the

piece-by-piece release of all the Ivys' seized properties

pursuant to partial grants of summary judgment in October

1993 and September 1995, and a final dismissal of the

Government's forfeiture complaint, with prejudice, in March

1996.2 In dismissing the case, the district court expressly

retained jurisdiction for the purpose of considering the Ivys'

request for attorney fees and expenses pursuant to the

EAJA, and the Government's motion for a "certificate of

reasonable cause" under 28 U.S.C. S 2465. The certificate of

reasonable cause, if granted, would have protected the

individuals who actually seized the property at issue from

liability to the property owners, and would prevent the

claimants from recovering costs from the Government,

though not fees or expenses.

On August 30, 1996, the district court granted the

requested certificate of reasonable cause. It held, however,

that the Ivys were entitled to attorney fees at a rate of

$112.28 per hour and to expenses. Eleven Vehicles III, 937

_________________________________________________________________

1. The district court had previously found that the appellants were

entitled to attorney fees and expenses under the EAJA. See Eleven

Vehicles III, 937 F. Supp. 1143 (E.D. Pa. 1996).

2. The district court had jurisdiction over this forfeiture action

pursuant

to 28 U.S.C. SS 1345 and 1355, and 18 U.S.C.SS 981(a)(1)(A),

981(a)(1)(C), and 981(f).

3

F. Supp. at 1149-56. In ruling on the Ivys' entitlement to

fees and expenses, the court found that the Ivys were a

"prevailing party" in the litigation, the Government's

litigating position had not been "substantially justified,"

and no "special circumstances" existed that would render

an attorney fee award unjust.3 Id. at 1150-55. The district

court ordered the Ivys to submit an itemized statement of

counsel's hours and rates by September 30, 1996. Id. at

1156. The Ivys submitted the required materials on that

date. These materials covered work performed on the case

through September 26, 1996. The Government filed

objections to some of these requested fees.

The Government filed a motion for reconsideration of the

award of attorney fees and expenses. The Ivys filed a

motion for reconsideration of the grant of a certificate of

reasonable cause and the failure to grant attorney fees at

market rate. The Ivys also filed a motion requesting the

court to adjust the hourly billing rate of $112.28,

established by the court for calculating the amount of

attorney fees owed to the Ivys, upward to reflect cost of

living. The parties filed responses to each other's motions.

_________________________________________________________________

3. The EAJA provides in pertinent part:

(A) Except as otherwise specifically provided by statute, a court

shall award to a prevailing party other than the United States fees

and other expenses, in addition to any costs awarded pursuant to

subsection (a), incurred by that party in any civil action (other

than

cases sounding in tort), ... brought by or against the United

States

in any court having jurisdiction of that action, unless the court

finds that the position of the United States was substantially

justified or that special circumstances make an award unjust.

(B) A party seeking an award of fees and other expenses shall,

within thirty days of final judgment in the action, submit to the

court an application for fees and other expenses which shows that

the party is a prevailing party and is eligible to receive an award

under this subsection, and the amount sought, including an

itemized statement from any attorney or expert witness representing

or appearing in behalf of the party stating the actual time

expended

and the rate at which fees and other expenses were computed. The

party shall also allege that the position of the United States was

not

substantially justified.

28 U.S.C. S 2412(d)(1).

4

In November 1996, the Ivys apparently gave the

Government and the court notice that they intended at

some future date to seek attorney fees and expenses for

work performed after September 26, 1996.

On May 30, 1997, the district court denied the

Government's motion for reconsideration as merely a

"rehash" of earlier arguments in the litigation. As for the

Ivys' motion for reconsideration of the grant of the

certificate of reasonable cause and the court's denial of

their entitlement to attorney fees at market rates, the court

also, after careful consideration, denied it as essentially a

restatement of their earlier arguments. Eleven Vehicles IV,

966 F. Supp. at 363-66. However, the court granted the

Ivys' request for a cost of living adjustment, revising the

compensable hourly billing rate upward to $120.68. Id. at

366-67. Finally, the court accepted one of the Government's

narrow objections to the fees requested by the Ivys, rejected

the remainder of the Government's objections, and granted

attorney fees for 1182 hours of work in the amount of

$142,643.76, and expenses in the amount of $7,963.81. Id.

at 367-69.

On August 27, 1997, the Ivys submitted to the district

court a supplemental request for attorney fees and

expenses covering work performed after September 26,

1996. In this application, the Ivys requested $23,333.81 in

fees as compensation for 190.9 additional hours work, and

$560.00 in expenses. The Government opposed this

supplemental request, arguing that the requested

supplemental payment was not authorized by any law, and

was in essence a motion under Federal Rule of Civil

Procedure 59(a) to alter or amend the May 30, 1997 award.

Because such a request must be filed within 10 days after

judgment, the Government asserted that the request was

untimely, and the court's March 30, 1997 award was

sufficiently generous and adequate to cover additional fees

and expenses accumulated between September 26, 1996

and May 30, 1997. Further, the Government argued that

the Ivys were not entitled to receive fees and expenses for

post-judgment work, particularly work related to the

decision not to take an appeal. The Ivys responded to the

Government's arguments, and in addition asserted that the

5

Government's memorandum in opposition was untimely

and therefore should not be considered by the district

court.

After a telephone conference with counsel for the parties,

the court issued its decision. Eleven Vehicles V, 36 F. Supp.

2d 237 (E.D. Pa. 1999). The court first held that the Ivys'

supplemental fee application was not a Rule 59(a) motion,

but instead arose under the EAJA. Id. at 238 n.1. It then

addressed the merits of the application, considering the

supplemental application as a whole along with thefirst

application and fee award. Id. at 239. The court stated that

it took into account all of the factors it had considered in

determining the first fee award. In addition, the district

court considered that "the supplemental request involves

work performed on motions for reconsideration of doubtful

validity filed by both parties," and that "the 190 hours

spent by counsel appears `excessive, redundant and

otherwise unnecessary.' " Id. (citation omitted). Based on

these factors, the court awarded the Ivys an additional

$5,000 in fees and $560.00 in expenses. The district court's

opinion did not address the Ivys' argument that the

Government's opposition to their request was untimely and

should not be considered.

II.

On appeal, the Ivys make several substantive arguments

in support of their assertion that the district court erred in

awarding them less attorney fees than they requested. In

addition, they contend that the court abused its discretion

by entertaining the Government's late-filed memorandum

opposing their supplemental request for attorney fees and

expenses. The Government argues that the supplemental

fee application is, in essence, a motion to alter or amend

the district court's May 30, 1997 original fee award under

Federal Rule of Civil Procedure 59(e).4 Accordingly, the

_________________________________________________________________

4. In the district court, the Government argued in its opposition to the

Ivys' supplemental fee application that the application was effectively a

motion to amend the court's findings of fact under Fed. R. Civ. P. 59(a),

not 59(e). However, in the instant case, there is little practical effect

to

6

Government contends that the Ivys were obliged to comply

with that Rule's requirement that such motions befiled "no

later than 10 days after the entry of the judgment." Fed. R.

Civ. P. 59(e). Because the Ivys' supplemental fee request

was filed approximately three months after entry of the May

30, 1997 award of attorney fees, the Government asserts

that the request was untimely, and thus the court lacked

subject matter jurisdiction. The district court rejected this

argument, Eleven Vehicles V, 36 F. Supp. 2d at 238 n.1,

and the Government did not appeal this issue.

It appears well settled that a motion for supplemental

attorney fees is not a Rule 59(e) motion. In White v. New

Hampshire Dep't of Employment Security, 455 U.S. 445,

447-48 (1982) the Court addressed a situation in which the

petitioner requested attorney fees under the Civil Rights

Attorney's Fees Awards Act, 28 U.S.C. S 1988, four-and-a-

half months after winning judgment on the merits. The

respondent argued that the motion was governed by the 10-

day time limit of Fed. R. Civ. P. 59(e), and was therefore

untimely. The Supreme Court held that Rule 59(e) was

reserved "only to support reconsideration of matters

properly encompassed in a decision on the merits." Id. at

451. The Court concluded that "a request for attorneys fees

. . . raises legal issues collateral to the main cause of action

-- issues to which Rule 59(e) was never intended to apply."

Id. It held that attorney fees are not "compensation" for the

injury suffered and are not an "element of `relief ' ":

[A] motion for attorney fees is unlike a motion to alter

or amend a judgment. It does not imply a change in

the judgment, but merely seeks what is due because of

the judgment. It is, therefore, not governed by the

provisions of Rule 59(e).

Id. at 452-53 (quoting Knighton v. Watkins, 616 F.2d 795,

_________________________________________________________________

this discrepancy. Moreover, the court explicitly relied on Brown v. Local

58, Int'l Bhd. of Elec. Workers, AFL-CIO, 76 F.3d 762 (6th Cir. 1996),

which considered the same argument under Rule 59(e). The court here

stated that it saw no difference between relying on subdivision (a) or

subdivision (e) of Rule 59. Thus, for purposes of our review, this

discrepancy is immaterial.

7

797 (5th Cir. 1980)). Numerous other decisions of the

Supreme Court, this court, and other circuit courts have

made the same observation. See Federal Communications

Comm'n v. League of Women Voters of Cal., 468 U.S. 364,

373 n.10 (1984) ("a postjudgment request for attorney fees

is not considered a motion to amend or alter the judgment

under Rule 59(e)").5

The Government asserts that Rule 59(e) nevertheless

applies in this case because the "judgment" the Ivys sought

to "alter or amend" with their supplemental fee application

was the initial May 30, 1997 award of attorney fees.

However, under White, this May 30 award was not a

"judgment" at all. See also Cartledge v. Heckler, 615 F.

Supp. 545, 546 (N.D. Ill. 1985) ("[U]nder 28 U.S.C.

S 2412(d)(1)(A), as under other fee-shifting statutes, the fee

award is really in addition to and not part of the

judgment."); Watkins v. Harris, 566 F. Supp. 493, 495 (E.D.

Pa. 1983) ("[t]he EAJA is a fee shifting statute and if

attorneys' fees are awarded, they are in addition to the

amount of the judgment"); cf. Schultz v. Crowley, 802 F.2d

498, 500-05 (D.C. Cir.) (suit is final and not"pending"

under the EAJA when merits have been decided even

though post-judgment motion for attorney fees remains

unresolved), reh'g denied, 806 F.2d 281 (D.C. Cir. 1986),

cert. denied, 484 U.S. 869 (1987). The underlying

"judgment" in this case was the district court's dismissal of

the forfeiture proceedings. Because Rule 59(e) only applies

to motions to alter or amend a judgment, it is inapplicable

here.

Moreover, even if an initial award of attorney fees is a

"judgment," a supplemental request for fees and expenses

incurred during a period of time different from and

subsequent to the time period covered by an initial fee

award cannot be a motion under Rule 59(e) because the

supplemental request does not seek to alter or amend the

_________________________________________________________________

5. Other cases in accord are: Utah Women's Clinic, Inc. v. Leavitt, 75

F.3d

564, 567 (10th Cir. 1995), cert. denied, 518 U.S. 1019 (1996); Samuels

v. American Motor Sales Corp., 969 F.2d 573, 577-78 (7th Cir. 1992);

Schake, 960 F.2d at 1192; Cruz v. Hauck, 762 F.2d 1230, 1236-37 (5th

Cir. 1985).

8

initial award. Rather, such a request seeks to address only

fees and expenses not considered in the prior award

determination. See Brown v. Local 58, Int'l Bhd. of Elec.

Workers, AFL-CIO, 76 F.3d at 769-70.

Thus, the question remains under what authority could

the district court consider the Ivys' supplemental request

for attorney fees and expenses.6 The Ivys appear to contend

that their supplemental request was a valid motion under

the EAJA. However, the Ivys misconstrue the timing

requirements of the EAJA. The EAJA requires that a party

seeking an award of fees and other expenses shall submit

its application to the court within thirty days of final

judgment in the action. 28 U.S.C. S 2412(d)(1)(B). The

underlying "action" here is the Government's forfeiture

proceeding against the Ivys' property. The "final judgment"

contemplated by the statute, it seems clear, is the judgment

dismissing that forfeiture proceeding. It is not, as the Ivys

argue, the May 30, 1997 adverse ruling on the parties'

motions to reconsider ancillary matters. That ruling

involved only post-judgment residual proceedings dealing

with fees, costs, and expenses.7

There currently is no dispute that the Ivys satisfied the

EAJA's requirements for their initial claim to attorney fees

and expenses incurred in the underlying litigation. They

filed their claim within thirty days after thefinal dismissal

of the forfeiture case became unappealable. The district

_________________________________________________________________

6. The only other case to address the precise question at issue here was

Brown v. Local 58, Int'l Bhd. of Elec. Workers, AFL-CIO. See 76 F.3d at

769. Although the Court of Appeals for the Sixth Circuit in Brown

rejected the appellants objections to the jurisdiction of the district

court,

it did not explain on what basis the district court could consider an

application for supplemental attorney fees.

7. The underlying forfeiture action was dismissed with prejudice and

"final judgment" entered on March 26, 1996. (See Dist. Ct. Dkt. Entry

# 146). The concurrence states that the district court's August 30, 1996

decision in Eleven Vehicles III was thefinal judgment in the underlying

forfeiture action. However, the court's Eleven Vehicles III decision dealt

only with post-judgment issues ancillary to the March 1996 dismissal of

the forfeiture case. As discussed above, these issues had no effect on the

finality of the March 26, 1996 judgment dismissing the underlying

forfeiture action.

9

court, in a thoughtful and carefully written opinion, held in

Eleven Vehicles III that the Ivys were a"prevailing party" in

the forfeiture litigation, that the Government did not

substantially justify its litigating position, and that there

were no "special circumstances" that would make an award

unjust. The Supreme Court has held that under the EAJA,

once these findings are made a claimant need not relitigate

these issues in later claims for attorney fees. See

Commissioner, Immigration & Naturalization Serv. v. Jean,

496 U.S. 154, 158-62 (1990). Moreover, this court has held

that once an EAJA fee request has been timely filed,

"deficiencies in the contents of the claim may be corrected

if the government cannot show any prejudice arising from

the later correction of these deficiencies." See Dunn v.

United States, 775 F.2d 99, 103-04 (3d Cir. 1985); see also

Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed. Cir. 1998)

(adopting this circuit's reasoning in Dunn). The Dunn Court

reasoned that Congress envisioned only one strict

requirement in EAJA fee cases, namely that the court and

the Government be put on notice that the claimant seeks

fees under the EAJA. 775 F.2d at 104.

Thus, once the jurisdictional elements of an initial claim

for attorney fees under the EAJA have been shown, the

strictures of the EAJA do not dictate when a request for

supplemental fees must be filed. In the absence of a

timeliness requirement imposed by statutory command, a

Federal Rule of Civil Procedure, or an applicable local court

rule, "the only time limitation arises out of those equitable

considerations that a district judge may weigh in his

discretion." Hicks v. Southern Maryland Health Systems

Agency, 805 F.2d 1165, 1166-67 (4th Cir. 1986); Cruz, 762

F.2d at 1236-38; see also Smith v. Bowen, 815 F.2d 1152,

1156 (7th Cir. 1987) (motion for attorney fees is governed

by Fed. R. Civ. P. 54, which " `imposes no time limit apart

from an implicit requirement of reasonableness' " (quoting

Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226,

1248 (7th Cir. 1981), aff'd on other grounds, 465 U.S. 752

(1984) (citation omitted))). The Ivys waited approximately

three months after the May 30, 1997 decision to request

supplemental attorney fees. In addition, all of the

supplemental fees and expenses applied for were incurred,

and therefore known to the Ivys, prior to the district court's

10

May 30, 1997 decision. Accordingly, the Ivys could and

should have supplemented their fee request prior to the

court's decision in Eleven Vehicles IV. Based on such

equitable considerations, had the district court refused to

entertain the Ivys' supplemental request because of their

three-month delay, it would have been within its discretion

so to do. This is especially true given the Supreme Court's

admonition in Hensley that a request for attorney fees

should not result in a second major litigation. Hensley, 461

U.S. at 437.

Nevertheless, the district court in the exercise of its

discretion chose to entertain this supplemental request.

The Ivys' initial fee request clearly covered only fees and

expenses incurred through September 26, 1996. All parties

were aware at the time that request was filed that the

Government's motion for reconsideration of the Ivys' right

to a fee award, the Ivys' motion for reconsideration of the

Government's right to a certificate of reasonable cause, and

the Ivys' motion for a cost of living adjustment to the

compensable attorney billing rate remained pending before

the district court. The Government acknowledges that in

the course of litigating its objections to the Ivys'first

request for fees and expenses, the Ivys put the court and

the Government on notice that they reserved the right to

submit a statement of fees and expenses incurred after

September 26, 1996. The Ivys appear to have delayed three

months in requesting additional fees and expenses because

they incorrectly believed that they were required to wait to

apply until 30 days after the May 30, 1997 judgment

became unappealable. Thus, we cannot say that the district

court abused its discretion in considering the Ivys'

supplemental request.8

Thus, we turn to the Ivys' challenges to the district

court's legal analysis, and their argument that the court

_________________________________________________________________

8. The Government's suggestion that it was prejudiced by the Ivys' delay

in filing its supplemental request because it could not appeal the final

fee award rings hollow. The Government was free to appeal the May 30,

1997 award if it chose so to do. The Government was also free to appeal

the January 20, 1999 supplemental award if it chose to do so. It does

not appear that the Government was in any way prejudiced by the Ivys'

delay.

11

abused its discretion in failing to address their contention

that the Government's memorandum in opposition to their

supplemental fee request was untimely and should not

have been considered.

III.

The Ivys assert that the district court erred in several

ways in its analysis of their supplemental fee request. Their

arguments essentially boil down to the following: (1) the

court failed to justify or explain its findings that the claim

submitted was "excessive, redundant, or otherwise

unnecessary"; (2) the court sua sponte improperly granted

attorney fees in an amount below that requested in the

absence of a Government challenge to the requested

amount; (3) the court disallowed hours worked and granted

less than the amount submitted without making the

findings required by EAJA S 2412(d)(1)(C); and (4) the court

failed to inquire into the particulars of the supplemental fee

request, instead relying on its "generalized sense" of what

fee was reasonable for the entire case. Our review of such

challenges to the legal standards applied by the district

court is plenary. See Bell v. United Princeton Properties, Inc.,

884 F.2d 713, 718 (3d Cir. 1989).

The district court awarded the Ivys less in attorney

fees than requested for the supplemental proceedings at

least in part because it found that "the 190 hours spent by

counsel appears `excessive, redundant and otherwise

unnecessary.' " Eleven Vehicles V, 36 F. Supp. 2d at 239

(quoting Becker v. ARCO Chem. Co., 15 F. Supp. 2d 621,

633 (E.D. Pa. 1998)). When this court reviews such a

finding, it is presented with two issues: "first, whether the

district court abused its discretion in concluding that the

hours expended on a certain task were excessive; and

second, whether the district court abused its discretion in

concluding that a certain number of hours would be a

reasonable number of hours to expend on that task." Rode

v. Dellarciprete, 892 F.2d 1177, 1187 (3d Cir. 1990).

The court, in the instant case, may have been correct in

its conclusions but regrettably did not explain how it

reached them. The Supreme Court has instructed that it is

12

important "for the district court to provide a concise but

clear explanation of its reasons for the fee award." Hensley,

461 U.S. at 437. We have held, in reviewing similar

situations, that to resolve these issues "the district court

must explain on the record the reasons for its decisions."

Rode, 892 F.2d at 1187. Indeed, the lack of explanation

makes it difficult for us to address with any competence the

Ivys' remaining challenges to the district court's decision.

We therefore are constrained to remand this case to the

district court for an explanation of its reasons for the fee

award. At the same time, we believe it is appropriate to

provide the district court with some guidance bearing on

the Ivys' other challenges.

A.

First, the Court stated in Commissioner, Immigration and

Naturalization Service v. Jean that "fees for fee litigation

should be excluded to the extent that the applicant

ultimately fails to prevail in such litigation." 496 U.S. at

163 n.10. In the instant case, the Ivys request fees for one

unsuccessful claim -- their motion and ensuing activity for

the district court to reconsider its grant of a certificate of

reasonable cause to the Government. In essence, this

motion litigated the issue of the Ivys' entitlement to costs

for the underlying forfeiture claim. Nevertheless, there is no

reason why the Court's admonition about unsuccessful

"fees for fee litigation" does not apply equally to "fees for

cost litigation." See Hathaway v. United States, No. 93-

36158, 1995 WL 66783, at *1 (9th Cir. Feb. 16, 1995);

Davis v. United States, 887 F. Supp. 1387, 1389 (D. Colo.

1995). Thus, the Ivys are not entitled to fees for litigating

this motion.

B.

Second, the Ivys note that in this circuit, a court may not

reduce counsel fees sua sponte as "excessive, redundant, or

otherwise unnecessary" in the absence of a sufficiently

specific objection to the amount of fees requested. In

statutory fee cases, it is well settled in this circuit that in

calculating the "lodestar," or initial fee calculation requiring

13

the court to multiply a reasonable hourly fee by the

reasonable amount of hours worked, the district court may

not award less in fees than requested unless the opposing

party makes specific objections to the fee request. As this

court stated in Cunningham v. City of McKeesport,

when an opposing party has been afforded the

opportunity to raise a material fact issue as to the

accuracy of representations as to hours spent, or the

necessity for their expenditure, and declines to do so,

no reason occurs to us for permitting the trial court to

disregard uncontested affidavits filed by a fee

applicant.

753 F.2d 262, 266 (3d Cir. 1985), vacated on other grounds,

478 U.S. 1015 (1986), and reinstated, 807 F.2d 49 (3d Cir.

1986); see also McDonald v. McCarthy, 966 F.2d 112, 118

(3d Cir. 1992); Bell, 884 F.2d at 719. A district court may

not " `decrease a fee award based on factors not raised at all

by an adverse party.' " Rode, 892 F.2d at 1183 (quoting

Bell, 884 F.2d at 720).9 However, once the opposing party

has made a sufficiently specific objection to the substance

of a fee request, "the court has a great deal of discretion to

adjust the fee award in light of these objections." Bell, 884

F.2d at 721. The rationale for this prohibition on sua

sponte fee award reductions is twofold. First, sua sponte

reduction deprives the applicant of the right "to offer

evidence in support of the reasonableness of the request."

Bell, 884 F.2d at 719. (internal quotation marks omitted).

Second, "because statutory fee litigation is adversarial

litigation, there is no need to allow the district court to

reduce a fee award on its own initiative." Id.

Although cases establishing and applying this rule

appear to do so in calculating the "lodestar," we believe that

_________________________________________________________________

9. One exception to this rule is that the district court may make sua

sponte reductions where it has personal knowledge of the costs involved

in certain aspects of the litigation, for example where the court presided

over a hearing or conference and knows exactly how much time and

effort that proceeding involved. See Cunningham, 753 F.2d at 267. For

example, this exception would appear applicable in the present case to

fees for the November 9, 1998 telephone conference over which the

district court presided.

14

the rule's rationale applies with equal force to post-

judgment supplemental applications for "fees for fee

litigation" as it does in calculating fees due for litigating the

merits of the underlying claim. Only with proper notice can

the claimant know which request to defend as reasonable.

Moreover, as evidenced by this case, post-judgment fee

litigation remains adversarial. This circuit's precedent

therefore binds the district court not to reduce the fee

amount requested sua sponte, in the absence of a

Government objection. Nevertheless, this prohibition on sua

sponte reduction of fees applies only to challenges to the

excessiveness of a fee request. Here, the Government's

objections to the Ivys' supplemental fee request are more

appropriately described as legal challenges to certain types

of attorney work that are simply never compensable under

the EAJA.10 Thus, if the district court agrees that categories

of work for which the Ivys request fees are not compensable

under the EAJA, it should prune the fees requested for this

work from its fee award. Although the court could have

taken this approach, it does not appear to have made any

_________________________________________________________________

10. The Government's statement challenging categories of work for which

the Ivys requested fees, found in its memorandum in opposition to the

Ivys' supplemental request for attorney fees and expenses, was as

follows:

The Ivys seek to be compensated for limited negotiations in which

they rejected the Government's offer and then rejected the

Government's offer to negotiate a settlement and for research and

other post-judgment work. The Ivys even seek to be paid for giving

the Government claimants' and counsel's social security numbers,

required by the Treasury Department to write a check and even the

time it took to answer Treasury Department's confirming phone call

to counsel. (Exhibit 1, 7/22/97; 7/24/97, 7/30/97).

Post judgment time spent bringing unsuccessful appeals is not

compensable; it makes even less sense to award fees for the

decision

not to take such an appeal. [Griffin v. Strong, 827 F. Supp. 683,

687

(D. Utah 1993)]. Further, time devoted to clerical activities and

background research is normally included in overhead and not

billable to clients. The Government should not be held to pay such

expenses. Id.

The Government placed the above-quoted passage under the heading:

"No Award for Post-Judgment Work Absent Appeal."

15

of the legal conclusions invited by the Government's

challenges. On the contrary, it stated that the fees

requested were "excessive, redundant and otherwise

unnecessary." Therefore, on remand, the court must clarify

its reasons for the supplemental reward it made in

response to the fees requested by the Ivys.

C.

Third, the Ivys argue that the court erred in disallowing

the hours worked and granting less than the requested fee

without making the findings required by 28 U.S.C.

S 2412(d)(1)(C), a provision of the EAJA. It provides:

The court, in its discretion, may reduce the amount to

be awarded pursuant to this subsection, or deny an

award, to the extent that the prevailing party during

the course of the proceedings engaged in conduct

which unduly and unreasonably protracted the final

resolution of the matter in controversy.

28 U.S.C. S 2412(d)(1)(C). The Ivys claim that the rule

required the court, in the exercise of its discretion, to make

a finding of "dilatory conduct." Arguably, however, the court

made just such a finding when it stated "the supplemental

request involves work performed on motions for

reconsideration of doubtful validity filed by both parties."

Eleven Vehicles V, 36 F. Supp. 2d at 239.

Nevertheless, it is not clear from the district court's

opinion that it invoked its discretion under this provision.

The opinion makes no reference to S 2412(d)(1)(C), and the

court did not attempt any further explanation of its

conclusion that the motions for reconsideration were"of

doubtful validity." The district court, therefore, should

provide on remand an adequate explanation.

D.

Finally, the Ivys claim that the court erred in failing to

look at the particulars of the supplemental request, in

isolation from the prior fee award. The court noted that in

analyzing the Ivys' supplemental fee request, "rather than

inquiring into the particulars of the second itemized

16

statement, as a separate and distinct event, unlinked to the

factors that informed the Court's rulings in thefirst

itemized statement, the Court will consider what overall

award of fees and expenses for all work counsel has

performed in this case, will yield a reasonable fee." Eleven

Vehicles V, 356 F. Supp. 2d at 239. The court considered

this approach to be consistent with the Supreme Court's

direction that the EAJA "favors treating the case as an

inclusive whole rather than as atomized line-items." Id.

(quoting Jean, 496 U.S. at 161-62). The district court

followed the Supreme Court's direction.

What the district court appears to have had in mind was

the need to impose some degree of proportionality between

the fees for the underlying merits litigation and fees for fee

litigation. At least one other court of appeals has found this

to be an important consideration. See Coulter v. Tennessee,

805 F.2d 146, 151 (6th Cir. 1986) (holding that district

court did not err in limiting number of compensable

attorney hours spent litigating fees to 3-5% of hours spent

litigating merits), cert. denied, 482 U.S. 914 (1987). At least

one district court in this circuit concurs. See Jackson v.

Philadelphia Housing Auth., 858 F. Supp. 464, 477 (E.D.

Pa. 1994). A trial court should be free to view a case in this

pragmatic manner, subject to the guidelines we have

articulated here. We see no error in the district court's

global perspective of the Ivys' claims for attorney fees.

IV.

The Ivys also assert that the court abused its discretion

when it neglected to consider their argument that the

Government's memorandum in opposition to their

supplemental request for fees and expenses was untimely

and should not have received any consideration. The Ivys

served their supplemental request on the Government by

sending it via overnight courier on Tuesday, August 26,

1997 for delivery on Wednesday, August 27, 1997. Local

Rule 7.1 required that the Government's opposition to this

motion be served on the Ivys within 14 days after service of

the Ivys' supplemental request. E.D. Pa. R. 7.1(c). This local

rule also provides that "[i]n the absence of a timely

17

response, the motion may be granted as uncontested . . . ."

Id. (emphasis added).

Under Rule 6(a) of the Federal Rules of Civil Procedure,

the 14-day deadline for serving an opposition to the motion

expired either on Wednesday, September 10, 1997, as the

Ivys contend, or on Friday, September 12, 1997 if overnight

courier delivery is considered service by mail under the

Federal Rules, as the Government contends. As the Ivys

observe, however, it does not matter which of these two

dates was the true deadline. The memorandum in

opposition was served on Monday, September 15, 1997, as

the Government now concedes. Regardless of whether

overnight courier service qualifies as service by mail, the

Government's opposition was not timely filed. 11

Nevertheless, the district court appears to have considered

the arguments made therein.

Local court rules play a significant role in the district

courts' efforts to manage themselves and their dockets.

Smith v. Oelenschlager, 845 F.2d 1182, 1184 (3d Cir. 1988).

Accordingly, we have held that it is not an abuse of

discretion for a district court to impose a harsh result, such

as dismissing a motion or an appeal, when a litigant fails

to strictly comply with the terms of a local rule. Id. at 1184-

85. However, this court has not written on a district court's

discretion to depart from its own local rule, whether that

rule is phrased in discretionary or mandatory terms.

In Smith v. Oelenschlager, for example, the district court

dismissed the plaintiff 's motion for a new trial because the

plaintiff failed to strictly comply with a local rule requiring

him to order a trial transcript from the court reporter. Id.

at 1182-83. Instead, the plaintiff had sent a letter to the

district judge and the magistrate to whom the case had

been assigned requesting that one of them forward his

request to the court reporter. Id. We affirmed the district

court's dismissal of the motion, and found it unnecessary

to reach the issue of whether a district court had discretion

_________________________________________________________________

11. We need not decide whether service by overnight courier satisfies the

requirements for obtaining three additional "mail" days under Rule 6(e).

See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1430 (9th Cir. 1996)

(describing debate among federal courts and collecting cases).

18

to entertain a new trial motion even though the plaintiff

had failed to comply with the terms of the local rule. See id.

at 1184. However, Judge Mansmann, in dissent,

strenuously argued that district courts have inherent

discretion to depart from their own local rules where justice

so requires, and they have the responsibility to exercise

that discretion. See id. at 1185-86 (Mansmann, J.,

dissenting).

Although the language of Local Rule 7.1(c) is phrased in

mandatory terms requiring a party opposing a motion to file

a response and opposing brief within fourteen days after

service of the motion, the subsequent language of the rule

does not mandate the grant of the motion in the absence of

a timely motion and brief. The court, under the rule, "may,"

but is not mandated, to grant the motion as uncontested.

Other courts of appeal that have addressed the authority of

a district court to depart from its local rule have uniformly

determined that district courts possess inherent discretion

to depart. See Somlyo v. J. Lu-Rob Enter., Inc., 932 F.2d

1043, 1048 (2d Cir. 1991); United States v. Diaz-Villafane,

874 F.2d 43, 45-46 (1st Cir.) (noting and applying "widely-

accepted idea that a district court should be accorded

considerable latitude in applying local procedural rules of

its own making, and in departing from them."), cert. denied,

493 U.S. 862 (1989); Braxton v. Bi-State Dev. Agency, 728

F.2d 1105, 1107 (8th Cr. 1984) ("It is for the district court

to determine what departures from its rules may be

overlooked.").12 Some of these courts have permitted district

courts to depart from local rules even when the local rule

is phrased in mandatory language. In Somlyo, Chief Judge

Oakes of the Second Circuit, in the face of a mandatory

local rule, held: "The district court's inherent discretion to

_________________________________________________________________

12. Other cases supporting the power of a court to depart from its own

rule are: Allen v. United States Fidelity & Guar. Co., 342 F.2d 951, 954

(9th Cir. 1965) ("It is for the court in which a case is pending to

determine, except as it is bound by precedents set by higher authority in

its own judicial hierarchy, what departures from statutory prescription

or rules of court are so slight and unimportant that the sensible

treatment is to overlook them."); Slanina v. William Penn Parking Corp.,

Inc., 106 F.R.D. 419, 422 (W.D. Pa. 1984) ("noncompliance with the local

rules may be excused by the court in its discretion").

19

depart from the letter of the Local Rules extends to every

Local Rule regardless of whether a particular Local Rule

specifically grants the judge the power to deviate from the

Rule." 932 F.2d at 1048. See also Braxton, 728 F.2d at

1107.

Several of these courts have made clear, however, that

this discretion is not unfettered. For example, the Second

Circuit in Somlyo stated that the district court "should ask

whether the application of the letter of Local Rules to a

particular case would cause an unjust result." 932 F.2d at

1049. The First Circuit in Diaz-Villafane stated that to

depart from its rules, a court "(1) must have a sound

reason for doing so, and (2) must ensure that no party's

substantial rights are unfairly jeopardized." 874 F.2d at 46.

We believe these courts are generally correct in their

approach permitting a district court to waive a requirement

of its local rules in appropriate circumstances. We therefore

hold that a district court can depart from the strictures of

its own local procedural rules where (1) it has a sound

rationale for doing so, and (2) so doing does not unfairly

prejudice a party who has relied on the local rule to his

detriment.

In the instant case, the court failed to address the Ivys'

argument that the Government's response was untimely

filed. Thus, we are unable to determine whether the court

abused its discretion. Therefore, on remand the district

court should explain its apparent decision to waive the 14-

day service requirement of Local Rule 7.1(c).

V.

Accordingly, the order of the district court will be

vacated, and the case remanded for findings and

explanatory statements consistent with this opinion. Each

side to bear its own costs on this appeal.

20

ALITO, Circuit Judge, concurring:

I concur in the Court's judgment, but I write separately

to explain my understanding of certain threshold

jurisdictional questions and of the District Court's task on

remand.

I.

I cannot agree with the majority's implicit conclusion that

the issue of whether a Rule 59(e) motion is timelyfiled

must be noticed sua sponte by this Court. The District

Court rejected the government's Rule 59 argument and the

government did not appeal this issue. Therefore, unless the

question of timely filing implicated the District Court's

subject matter jurisdiction, it is not properly before this

Court. I believe that Rule 59 is merely a procedural bar,

akin to a statute of limitations, that curtails a District

Court's authority to permit an untimely motion to amend

but does not deprive it of subject matter jurisdiction.

Accordingly, I think that we need not reach the merits of

this question.

Rule 59(e) provides that "[a]ny motion to alter or amend

a judgment shall be filed no later than 10 days after entry

of the judgment." Fed. R. Civ. P. 59(e). Rule 6 further

provides that a district court "may not extend the time for

taking any action" under Rule 59(e). Fed. R. Civ. P. 6(d). In

this sense, the time limit imposed by the rule is"mandatory

and jurisdictional." De la Fuente v. Central Elec. Coop., Inc.,

703 F.2d 63, 64 n.1 (3d Cir. 1983) (quoting White v. New

Hampshire Dep't of Employment Sec., 629 F.2d 697, 699-

700 (1st Cir. 1980)).

Simply because the District Court has no power to extend

the Rule 59 filing period, however, does not mean that the

rule implicates subject matter jurisdiction. 1 By its terms,

_________________________________________________________________

1. Although this Court has occasionally referred to Rule 59 as

"jurisdictional," none of these cases discussed whether the rule

implicates subject matter jurisdiction. See, e.g., Schake v. Colt Indus.

Operating Corp. Severance Plan for Salaried Employees, 960 F.2d 1187,

1192 (3d Cir. 1992); Kraus v. Consolidated Rail Corp., 899 F.2d 1360,

1362 (3d Cir. 1990). I believe that these opinions used the language of

"jurisdiction" only to emphasize the mandatory nature of the 10-day time

limit, not to imply some connection with Article III subject matter

jurisdiction.

21

Rule 59 does not govern subject matter, but rather sets a

mandatory procedural limitation on the District Court's

discretion to entertain a motion to amend. Cf. Curacao

Drydock v. M/V Akritas, 710 F.2d 204, 206 (5th Cir. 1983)

(construing Fed. R. Civ. P. 4(a), governing timely notice of

appeals, as procedural but not implicating subject matter

jurisdiction). Viewing Rule 59 as a merely procedural bar

accords with Rule 82's mandate that "[t]hese rules shall not

be construed to extend or limit the jurisdiction of the

United States District Courts." Fed. R. Civ. P. 82. See also

14 Moore's Federal Practice S 82.02 (1999) ("For the purpose

of [Rule 82], jurisdiction means subject matter jurisdiction")

(emphasis in original); Owen Equip. & Erection Co. v.

Kroger, 437 U.S. 365, 370 (1978) ("It is axiomatic that the

Federal Rules of Civil Procedure do not create or withdraw

federal jurisdiction."). Judge Flaum, writing for six judges

in an evenly-split Seventh Circuit decision, elucidated this

point:

Subject matter jurisdiction is not . . . necessarily the

appropriate approach to the 10-day timeline of [Rule

59]. Subject matter jurisdiction is controlled by a

statute explicitly labeled as such. Neither Rule 59 not

Rule 6 are styled jurisdictional. Moreover, subject

matter jurisdiction is informed by concerns for

federalism. No such concern is present here. . . . Had

Congress intended the 10-day time period to be

interpreted like subject matter jurisdiction, it would

have said so; yet it was silent.

Varhol v. National R.R. Passenger Corp., 909 F.2d 1557,

1569 (7th Cir. 1990) (en banc) (Flaum, J., concurring).

Finally, I would note that both the Supreme Court and

this Court have recognized an equitable exception to Rule

59. This "unique circumstances" exception, first announced

in Thompson v. INS, 375 U.S. 384 (1964) (per curiam),

permits a litigant who relies on an extension improperly

issued by the District Court to perfect his appellate rights

by filing a Rule 59 motion within the period extended by

the court's order. See Kraus, 899 F.2d at 1362. Although

this narrow exception does not apply to the present case,

the mere fact that there is an equitable exception shows

that Rule 59's strictures do not implicate Article III subject

22

matter jurisdiction: "[e]quitable tolling or estoppel simply is

not available when there are jurisdictional limitations."

Shendock v. Director, Office of Workers' Compensation

Programs, 893 F.2d 1458, 1466 (3d Cir. 1990) (en banc).

If, as I conclude, Rule 59 does not implicate subject

matter jurisdiction, then this Court is not required to notice

the issue of untimely filing on its own initiative. While I

have no substantive disagreement with the Court's

conclusion that Rule 59(e) does not apply to supplemental

fee requests, I believe that we need not reach this issue

because the government failed to preserve it for appeal.

II.

I agree with the Court that the District Court had

jurisdiction under the Equal Access to Justice Act (EAJA) to

consider the Ivys' supplemental request for attorney fees

and expenses. I would, however, employ a somewhat

different analysis in reaching this conclusion.

The EAJA requires that a party seeking a fee award

submit its application to the court "within thirty days of

final judgment in the action." 28 U.S.C. S 2412(d)(1)(B). The

majority holds that "the underlying `action' here is the

Government's forfeiture proceeding . . . . The `final

judgment' contemplated by the statute . . . is the[March

26, 1996] judgment dismissing that forfeiture proceeding."

Maj. Op. at 9. The majority then dismisses the District

Court's August 30, 1996 ruling awarding, inter alia, a

certificate of reasonable cause to the government as

"ancillary" and "involv[ing] only post-judgment residual

proceedings." Maj. Op. at 9.

I disagree. In my view, the order granting a certificate of

reasonable cause was an " `integral part' of the final

judgment on the merits even though not entered

concurrently with that judgment." United States v. One

1986 Ford Pickup, 56 F.3d 1181, 1185 (9th Cir. 1995) (per

curiam). The Supreme Court has emphasized that the

finality requirement should be given "a practical rather

than a technical construction." Firestone Tire & Rubber Co.

v. Risjord, 449 U.S. 368, 375 (1981) (citation omitted).

Under this functional standard, "a `final decision' generally

23

is one which ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment."

Catlin v. United States, 324 U.S. 229, 233 (1945). As the

Ford Pickup court noted, the decision whether to grant a

certificate of reasonable cause is functionally part of the

merits judgment: a certificate may be granted only by the

judge presiding over the forfeiture action; it is binding on

the parties and bars any future action for damages; and it

must be issued soon after the entry of judgment, before

costs are taxed. See 56 F.3d at 1185. Most importantly, the

decision of whether or not to grant the certificate involves

questions of fact and law that are intimately tied to the

merits of the underlying forfeiture action.2 On this basis, I

believe that the relevant "judgment" in this case -- the one

"which end[ed] the litigation on the merits," Catlin, 324 U.S.

at 233 -- was the August 30, 1996 order granting the

certificate of reasonable cause.

Under the EAJA, a "final judgment" is "a judgment that

is final and not appealable." 28 U.S.C. S 2412(d)(2)(G). The

30-day period for filing an EAJA attorneys fee claim does

not begin to run "until the time for filing a notice of appeal

[has] expired." Baker v. Sullivan, 956 F.2d 234, 235 (11th

Cir. 1992) (per curiam). Because the parties filed Rule 59(e)

motions for reconsideration of the District Court's August

30 judgment, the time for appeal did not begin to run until

"the entry of the order disposing of the last such motion

outstanding." Fed. R. App. P. 4(a)(4)(C).

Thus, the appellate door in this case did not close until

60 days after the May 30, 1997, adverse ruling on the

motions for reconsideration. See Fed. R. App. P. 4(a)(1)

(setting 60-day limit for appeal in cases where United

States is a party). The Ivys' motion for supplemental fees

was filed within 30 days of the end of the appeals period,

_________________________________________________________________

2. The litigation over the certificate of reasonable cause cannot be

dismissed as mere "cost litigation." Although the grant of the certificate

did preclude Ivy from recovering costs for the forfeiture claim, it also

addressed substantive issues of liability that would be highly relevant if

Ivy chose to file a S 1983 claim against the seizing officers or

prosecutors

in the case. See 28 U.S.C. S 2465 (if certificate is issued, neither the

person who made the seizure nor the prosecutor shall"be liable to suit

or judgment on account of such suit or prosecution").

24

placing it well within the EAJA's statutory window of

opportunity. Because I believe that the supplemental

motion was filed within the statute's 30-day time limit, I see

no need to consider whether the District Court could, in its

discretion, entertain a later-filed supplemental fee request.

III.

Finally, I am in general agreement with part III of the

opinion of the Court.3 I write separately, however, to

express my view that the "proportionality review" alluded to

in part IIID is necessarily limited in scope. Once an adverse

party has made a sufficiently specific challenge to a

particular expense area, a District Court should certainly

look back to previous awards in the same area in

determining the reasonableness of the requested

supplemental fee. In this sense, every supplemental fee

request entails a "global" review of the entire fee award.

I do not, however, read the opinion of the Court to

authorize a District Court to conduct a plenary review of an

entire EAJA fee award for "proportionality" based on a

general allegation of unreasonableness by the objecting

party. Such a reading would vitiate the well-established

principle that a District Court cannot sua sponte order a

reduction of what it perceives to be an excessive fee. See,

e.g., McDonald v. McCarthy, 966 F.2d 112, 118-19 (3d Cir.

1992); Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir.

1990); Bell v. United Princeton Properties, Inc., 884 F.2d

713, 720 (3d Cir. 1989). Permitting such free-ranging

discretion would unwisely abandon "the carefully crafted

set of rules for the exercise of district court discretion in fee

_________________________________________________________________

3. For the reasons stated above, I do not agree with the majority's

conclusion in part III(A) that the motion to reconsider the grant of a

certificate of reasonable cause merely "litigated the issue of the Ivy's

entitlement to costs for the underlying forfeiture claim." Maj. Op. at 13.

I agree, however, with the majority's general point that the District

Court

may decline to award fees for unsuccessful litigation on particular

issues, see, e.g., Hensley v. Eckerhart, 461 U.S. 424 (1983), especially

when, as the District Court found here, the party was merely "rehashing"

previous arguments "of doubtful validity." United States v. Eleven

Vehicles, 36 F. Supp. 2d 237, 239 (E.D. Pa. 1999).

25

shifting cases" for "some standardless rule of district court

gestalt." Cunningham v. City of McKeesport, 753 F.2d 262,

267 (3d Cir. 1985).

On remand, the District Court should be free to consider

(and explain in its opinion) whether properly-challenged fee

categories were "excessive" in light of both the initial and

the supplemental fee requests. However, the government's

bare allegation "in general terms that the time spent was

excessive" is not, in my view, enough to empower the

District Court to conduct a generalized proportionality

review of the entire fee award. See Bell, 884 F.2d at 720.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26