254 F.3d 1087 (D.C. Cir. 2001)
State of Michigan, Michigan Department of Environmental Quality and State of West Virginia, Division of Environmental Protection, Petitionersv.U.S. Environmental Protection Agency, RespondentNew England Council, Inc., et al., Intervenors
No. 98-1497
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 3, 2001

[Copyrighted Material Omitted]
On Petitioner's Motion for Attorneys' Fees
Before Williams, Sentelle, and Rogers, Circuit Judges.
Opinion for the Court filed Per Curiam.

Per Curiam:

1
The Interstate Natural Gas Association of  America (hereinafter "INGAA" or "petitioner") moves for an award of attorneys' fees in the amount of $107,551.95 incurred  in connection with its challenge to an Environmental Protection Agency ("EPA") regulation.  See Michigan v. EPA, 213  F.3d 663 (D.C. Cir. 2000).  Briefs with accompanying billing  records have been submitted by the petitioner, and the EPA  has filed its opposition.  After examination of the billing  records and consideration of the EPA's objections, we find  that INGAA is entitled to an award of attorneys' fees but not  for the full amount sought.  We conclude, for the reasons  stated below, that INGAA is entitled to an award in the  amount of $65,947.24.

I. BACKGROUND

2
In the underlying litigation, INGAA, a trade association  representing major interstate natural gas transmission companies in the United States, and other petitioners challenged  promulgation of the EPA's "NOx SIP Call" final rule which  mandated that 22 states and the District of Columbia revise  their state implementation plans ("SIPs") to reduce emission  of nitrogen oxides ("NOx").  The revisions were to be based  upon state-specific NOx emissions "budgets" established by  the EPA.  For its part, INGAA contended that the EPA, in  its determination of the state NOx budgets, did not provide  adequate notice and opportunity for comment on the control  level assumed for large stationary internal combustion ("IC")  engines (hereinafter referred to as the "control level" issue). Additionally, INGAA challenged the EPA's definition of large  IC engines (hereinafter referred to as the "cut-off" issue). We agreed with INGAA on the "control level" issue and  remanded it to the EPA for further consideration, but we  upheld the EPA on the "cut-off" issue.  Id. at 693-94.

II. ANALYSIS

3
INGAA now seeks an award of attorneys' fees pursuant to  Section 307(f) of the Clean Air Act, which provides:


4
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.


5
42 U.S.C. § 7607(f).  In our discussion below, we consider  INGAA's fee petition and make certain deductions from it in  light of the "reasonable" and "appropriate" standards set  forth in the statute.


6
Fees under Section 307(f).  The EPA argues that INGAA  is not entitled to attorneys' fees in this matter because it did  not achieve a sufficient degree of success in Michigan.  See  Ruckelshaus v. Sierra Club, 463 U.S. 680, 693-94 (1983);  see  also Sierra Club v. EPA, 769 F.2d 796, 800 (D.C. Cir. 1985). Of the two challenges made by INGAA to the EPA's NOx  SIP Call, the EPA argues that one, the IC engine "cut-off"  issue, was completely rejected by the Court, while the other,  the IC engine "control level" issue, was remanded, without  being vacated, for further consideration by the EPA and was  therefore a purely procedural victory insufficient to justify an  award of fees.  The EPA further argues that even if it were  to be assumed that INGAA is eligible to receive a fee award  on the "control level" issue, since it lost on the "cut-off" issue  then any fee award should be reduced by 50% to reflect that  loss.


7
In reply, INGAA claims that fees should be awarded not  only for successful substantive challenges to rules, but also  for valid procedural claims, because if this were not the case  then "fees would become dependent on the essentially fortuitous presence or absence of a valid procedural claim" and "[i]t  would be counterproductive ... to deny attorneys' fees for  successful litigation to enforce" procedural regularity.  Brief  of Petitioner at 5 (emphasis in original). INGAA further  claims that Kennecott Corp. v EPA, 804 F.2d 763 (D.C. Cir.  1986), governs the outcome here because the facts in that  case "completely parallel" the one before us.  In Kennecott,  according to INGAA, fees and costs were awarded to Kennecott in litigation establishing that the EPA did not provide adequate notice and comment because certain data were not  provided during the notice and comment period.


8
The EPA argues in turn that the petitioner's reliance on  Kennecott is misplaced because in that case, unlike here, the  Court not only remanded the matter but also vacated the  challenged portion of the regulation.  Instead, the EPA would  have us rely on Sierra Club v. EPA and Environmental  Defense Fund v. Reilly, 1 F.3d 1254 (D.C. Cir. 1993).  In  Sierra Club, fees were denied for a remanded issue where no  substantive relief was granted and the agency could possibly  justify its position with no reformulation of the challenged  rule.  769 F.2d at 806.  And the EPA relies on the Court's  statement in Environmental Defense Fund that "a plaintiff that has obtained a remand for further proceedings is not at  that point a 'prevailing party' for the purpose of collecting its  attorney's fee."  1 F.3d at 1257.


9
We note that the Court in Environmental Defense Fund,  after making the statement relied on by the EPA quoted  above, went on to explain that attorneys' fees may be awarded only if the plaintiff ultimately succeeds on the merits and  that the rationale behind this rule was to avoid awarding fees  for "corrective efforts that yield no real world benefit."  Id. at  1257 (internal citation and quotation omitted).  Unlike Sierra  Club, the underlying litigation in Environmental Defense  Fund, as here, concerned a lack of public notice and comment.  Specifically, the merits panel there vacated an EPA  rule for want of notice and comment before promulgation. Although the EPA opposed an award of attorneys' fees in  that case because it claimed, as it does here, that the petitioner's victory was "purely procedural," the Court stated that  even though the petitioner was not assured of being able to  change the EPA's proposed regulation, having the chance to  comment on the proposal was "in itself something of value in  the real world."  Id.  So too here.  By obtaining the right to  notice and comment on the IC engine "control level" issue,  INGAA has achieved a sufficient degree of success on the  merits to entitle it to an award of attorneys' fees.


10
We further note that this Court has previously determined  that a party is not entitled to attorneys' fees under Section  307(f) for time spent on an issue on which it was wholly  unsuccessful.  See, e.g., Sierra Club, 769 F.2d at 802.  INGAA is therefore not entitled to an award of attorneys' fees  on the IC engine "cut-off" issue.  INGAA does not dispute  this and calls our attention to the deduction it has already  made of 23% of the time spent on its merits and reply briefs  ($6,199.42), which it argues constitutes the amount of time  spent on the briefs on the "cut-off" issue.  We find this  amount to be a reasonable deduction and will make no further  deductions concerning this issue.


11
Fees for administrative proceedings.  The government  claims that many of the attorneys' fees sought by INGAA  were incurred in connection with its administrative petition  filed with the EPA, and therefore fall outside the award  parameters of Section 307(f).  We agree.  In Ruckelshaus v.  Sierra Club, which also concerned a request for attorneys'  fees filed pursuant to Section 307(f), the Court reminded us  that "[e]xcept to the extent it has waived its immunity, the  Government is immune from claims for attorney's fees. Waivers of immunity must be construed strictly in favor of  the sovereign ... and not enlarge[d] ... beyond what the  language requires."  463 U.S. at 685 (internal quotations and  citations omitted).  As the language of Section 307(f) requires  awards only for "costs of litigation," then fees incurred in the  preparation of an administrative petition are excluded.  See  Sierra Club v. Gorsuch, 672 F.2d 33, 42 (D.C. Cir. 1982), rev'd  on other grounds, Ruckelshaus v. Sierra Club, supra (petitioners seeking fees under Section 307(f) "not entitled to an  award of attorneys' fees for their participation in the administrative proceedings preceding their appeal").  We will therefore make deductions for those entries referencing "petition." As many of these entries are grouped with other entries for  the same date, for purposes of making the deductions we will  assume that each entry for that date took up an equal amount  of time. We will thus divide the number of entries for each  date into the amount billed, and deduct that amount from the  total amount petitioned.  See In re Pierce (Abrams Fee Application), 190 F.3d 586, 594 (D.C. Cir., Spec. Div., 1999). The specific deductions are listed below.


12
                                                        Number of    Amount       
                                                        Entries      Billed      Amount
Date            Entry re "Petition"                     for Date    for Date     Deducted
1/21/99   "work on petition for reconsideration"            2       $  609.50   $   304.75
1/22/99   "finalize draft petition for reconsideration;
          telephone conference with INGAA regarding
          format and petition issues"                       4       $  627.00   $   313.50
1/26/99   "telephone conferences with S. Schnee
          regarding petition issues, L. Beal regarding
          petition and format issues"                       4       $1,006.50   $   503.25
2/11/99   "Write petition for Reconsideration"              1       $1,404.50   $ 1,404.50
2/11/99   "Research and draft revised petition"             2       $1,287.00   $   643.50
2/12/99   "Write Petition for Reconsideration"              2       $1,643.00   $   812.50
2/15/99   "Draft petition" 3 $1,138.50 $ 379.50
2/16/99   "Draft petition ...  ;  research same"            4       $  610.50   $   305.25
2/17/99   "Edit petition"                                   2       $  330.00   $   165.00
2/18/99   "Draft petition"                                  2       $  742.00   $   371.00
2/18/99   "Draft ...  petition ...  ;  research regarding
          same"                                             4       $1,468.50   $   734.25
2/19/99   "Edit and send out ...  petition"                 3       $1,457.50   $   485.83
2/19/99   "Edit and  revise ...  petition"                  2       $1,006.50   $   503.25
2/24/99   "Work on ...  petition"                           2       $1,563.50   $   781.75
2/25/99   "Finish brief petition;  review and edit"         3       $1,643.00   $ 1,095.33
2/25/99   "Revise petition"                                 4       $1,122.00   $   280.50
2/26/99   "Revise petition"                                 3       $  990.00   $   330.00
2/28/99   "Revise petition"                                 5       $1,683.00   $   336.60
3/1/99    "Review comments on petition"                     2       $  148.50   $    74.25
3/2/99    "Revise ...  petition"                            3       $  841.50   $   280.50
3/3/99    "Final revised ... petition"                      3       $  214.50   $    71.50
3/5/99    "revise petition"                                 3       $1,192.50   $   397.50
3/5/99    "Research APA petitions"                          1       $   49.50   $    49.50
3/6/99    "Research APA petitions"                          1       $  396.00   $   396.00


13
3/8/99    "Revise petition for reconsideration to
          comply with APA"                                  2       $  412.50   $   206.25
3/15/99   "Finalize petition for reconsideration;
          review edits from INGAA members"                  2       $  462.00   $   462.00
3/16/99   "Handle petition for generation and filing"       1       $  462.00   $   462.00
Total Deduction:                                                                $12,149.76


14
Fees for client service matters.  The EPA objects to approximately 20 hours of attorney time for certain entries that  do not directly relate to litigation, i.e., entries having to do  with retainer agreements, conflicts checks, strategy memos,  and client updates.  INGAA replies that time spent on litigation strategy is indistinguishable from litigation itself and that  time spent on keeping a client informed of the status of a  matter, and similar tasks, are necessary and directly related  to the litigation.  We find INGAA's argument to be reasonable and will make no deductions for these entries.


15
Fees for briefs.  The government challenges approximately  110 hours that INGAA spent on researching and writing its  briefs.  These hours are excessive, argues the government,  particularly considering the approximately 125 hours spent on  the preparation of INGAA's administrative petition which  presented essentially identical arguments.  We agree that  over two and one-half weeks of attorney time spent on briefs  in this matter appears to be unduly high, and we will therefore make a downward adjustment for these fees.


16
According to the government, no more than 40 hours for  the opening brief and 20 hours for the reply brief should be  allowed.  As we have already stated, many if not most of the  billing descriptions submitted in this matter are scanty, and  therefore it is difficult for us to make precise estimates of  time spent on individual tasks.  It would appear, however,  that of the approximately 110 hours spent on the briefs, 90  were spent on the opening brief and 20 on the reply brief. As 20 hours of reply brief time appears to be reasonable, we  will make no adjustment to it.  We will, however, reduce by  one-half the 90 hours spent on the opening brief.  See American Petroleum Inst. v. EPA, 72 F.3d 907, 917 (D.C. Cir. 1996)  (excessive time spent on brief reduced by one-half).  In  calculating the amount to be deducted, we will take the  average of the billing rates of the two attorneys who worked  on this matter and multiply this number by 45, producing a  total deduction of $9,675.00.


17
Inadequate documentation. The government argues that  we should disallow much of INGAA's fee claim because the  work descriptions in its billing entries are vague and contain  no useful breakdown of professional time by task.  A review  of the billings finds that there are indeed numerous deficient  entries, such as those listed only as "conference calls" with no  indication of who these calls were with or what they concerned.  We have stated previously that "[s]uch description  fails to provide the court with any basis to determine with a  high degree of certainty that the hours billed were reasonable," and thus cannot be charged to the taxpayers.  In re  Donovan, 877 F.2d 982, 995 (D.C. Cir. 1989) (quotation marks  omitted);  see also American Petroleum Institute, 72 F.3d at  915.  Additionally, there are several entries for conference  calls with individuals referenced as "L. Beal," "P. Torangeau,"  "D. Malzahn," or "Perciasepe," who are not further identified  in the petition.  As such, the reasonableness of these calls  also cannot be determined.  In re Donovan, 877 F.2d at 995. We therefore must deduct the full amount of all these entries  from the fee request.  We will make specific deductions using  the process utilized for making deductions for "petition"  references, supra.


18
                                                        Number of    Amount     
                                                        Entries      Billed      Amount
Date            Wholly Deficient Entry                  for Date    for Date     Deducted
1/20/99   "Conference call"                                 4       $ 1,616.50  $   404.12
1/21/99   "Telephone conferences"                           2       $   609.50  $   304.75
1/25/99   "Prepare for and take part in conference call"    1       $   450.50  $   450.50
2/4/99    "Prepare for and take part in conference call"    1       $   371.00  $   371.00
2/5/99    "Prepare for and take part in conference call"    1       $   344.50  $   344.50
2/26/99   "review emails"                                   2       $    79.50  $    39.75
3/2/99    "write emails"                                    2       $   265.00  $   132.50
3/5/99    "Two conference calls"                            3       $ 1,192.50  $   397.50
3/8/99    "review and comment on fax; send email"           3       $   238.50  $   159.00
3/16/99   "Conference call"                                 4       $   927.50  $   231.87
3/23/99   "conference call"                                 3       $ 1,484.00  $   494.66
4/13/99   "Telephone conference with L. Beal"               1       $    79.50  $    79.50
4/15/99   "Finish and send out draft letter to
          Perciasepe"                                       1       $   291.50  $   291.50
4/16/99   "email L. Beal"                                   3       $   185.50  $    61.83
4/20/99   "conference call; review Perciasepe letter"       4       $   556.50  $   278.25
4/21/99   "Telephone conference with P. Torangeau"          3       $   556.50  $   185.50
4/22/99   "telephone conference with P. Torangeau"          2       $   556.50  $   278.25
7/15/99   "Telephone conference with L. Beal"               1       $    79.50  $    79.50
10/22/99  "Prepare for, take part in conference call"       1       $   185.50  $   185.50
10/28/99  "write email"                                     3       $ 1,139.50  $   379.83
11/8/99   "prepare for and take part in conference
          call"                                             2       $ 1,192.50  $   596.25
11/10/99  "Telephone conference with ... D. Malzahn"        2       $   132.50  $    66.25


19
11/14/99  "Prepare for conference call"                     1       $    79.50  $    79.50
11/15/99  "Conference call"                                 2       $   265.00  $   132.50
2/7/00    "Review and respond to emails"                    1       $   110.00  $   110.00
2/15/00   "Prepare for and take part in conference                              
          call"                                             2       $   907.50  $   453.75
2/28/00   "telephone conference with L. Beal"               3       $   330.00  $   110.00
2/29/00   "Take part in 2 conference calls"                 1       $   495.00  $   495.00
3/17/99   "Conference call"                                 4       $ 1,696.00  $   424.00
3/19/99   "two conference calls with C. L. Beal"            2       $   901.00  $   450.50
Total Deduction:                                                                $ 8,067.56


20
Notwithstanding the deduction of these wholly deficient  entries, the billing documents are replete with instances of  inadequately detailed descriptions.1  There are, in particular,  numerous entries concerning meetings and conferences that,  although they include information concerning the identities of  the individuals involved, are nevertheless devoid of any descriptive rationale for their occurrence.  Therefore, as we  have done in similar circumstances in the past, after all other  deductions have been taken we will make a further deduction  of 10% of the remaining billings.  See Abrams Fee Application, 190 F.3d at 594;  In re Meese, 907 F.2d 1192, 1204 (D.C.  Cir., Spec. Div., 1990) (per curiam).


21
Fees for clerical tasks. The EPA claims that certain of  INGAA's billing entries are for purely clerical tasks such as  copying and pick up or delivery of documents, and are  therefore not reimbursable because they ought to be considered part of normal administrative overhead.  We agree that  four of INGAA's entries fall into this category.  On January  28, 1999, Legal Assistant Lisa Edouard billed one and onehalf hours to "[f]ile documents at US Court of Appeals for J.  Knight."  This is a task routinely performed by other less  expensive personnel, such as messengers, and cannot be  charged to the public fisc.  On March 24, 1999, Edouard  billed one-half hour to "[r]eproduce and fed ex documents to  EPA personnel for J. Knight."  She billed two hours on  October 28, 1999, to "[o]btain" documents from the EPA. Likewise, on November 4, 1999, she entered a half-hour to  "obtain" a Federal Register notice.  Again, such tasks could  be undertaken by clerical, not legal, personnel, and we will  deduct the full amount ($427.50) of these entries.  See American Petroleum Inst., 72 F.3d at 913;  In re Meese, 907 F.2d at  1202-03.


22
Fees for staff overtime. The government objects that fees in  the amount of $679.20 for "staff overtime" should be disallowed because such fees should more properly be considered  as part of normal overhead.  We agree, and will deduct this  amount from the fee request.  See In re North (Bush Fee Application), 59 F.3d 184, 195 (D.C. Cir., Spec.Div., 1995)  (per curiam).


23
Fees for document production. The government objects to  INGAA's claim for $4,261.75 in "document production" costs  because no further explanation for this category is given in  the billing entries.  In the past we have made deductions for  comparable fees because of a lack of supporting documentation, and we will do so here, reducing the amount by $2,000. See In re North (Gregg Fee Application), 57 F.3d 1115, 1117  (D.C. Cir., Spec. Div., 1995);  In re Meese, 907 F.2d at 1204. Likewise, INGAA claims a total of $2,114.49 for computer  research, which also lacks any supporting documentation, and  we therefore will reduce this amount by $1,000.  Id.


24
Fees for travel and long-distance expenses. The government challenges INGAA's inclusion of $996.03 in travel and  $396.86 in long-distance expenses, arguing that it is unclear  how such fees could arise when INGAA and the EPA, as well  as their attorneys, are all located in Washington, D.C.  In  reply, INGAA informs us that most of these fees were  incurred during the settlement negotiations, which included a  trip to North Carolina where the EPA's technical staff is  located.  We find this explanation reasonable and will make  no deductions for these items.


25
Fees for local transportation. INGAA claims $278.22 for  "local transportation," with no explanation as to why this  transportation was needed.  As we have stated in the past,  we cannot assess the reasonableness of this item when it is  otherwise not explained.  In re North (Shultz Fee Application), 8 F.3d 847, 852-53 (D.C. Cir., Spec. Div., 1993) (per  curiam).  We will therefore make a reduction for the full  amount.


26
Fees for fees.  In its fee petition, INGAA includes 43.5  hours of attorney time for work done in connection with its  fee petition, as well as 29.7 hours for time spent on its reply  brief.  The government, although not disputing that "fees for  fees" are recoverable under the CAA, see, e.g., American  Petroleum Inst., 72 F.3d at 918, argues that the amount  prayed for is excessive because, of the 43.5 fee petition hours  billed, only nine were spent on preparing the petition per se  while the remaining hours were spent on preceding unsuccessful fee negotiations with the EPA which should not be  reimbursable.  INGAA replies that the time spent preparing  for the fee negotiation was also necessary to prepare the  petition after the negotiations failed, and that much of the  time spent negotiating was at the request of the government. We find INGAA's argument to be persuasive and note that  the time requested is comparable to the amount of fee  petition time we have allowed elsewhere.  Id.  We will therefore not make any deductions from the requested amount.


27
Miscellaneous fees.  The EPA objects to approximately 40  total hours of attorney time spent on various items that  according to the EPA "do not appear to be associated with  INGAA's claims in this litigation."  First, the EPA argues  that fees for a stay motion that was never filed should not be  awarded.  INGAA counters that the motion "was an integral  part of INGAA's litigation settlement strategy because it  increased INGAA's leverage with the agency," and that it was  never filed because the state petitioners' stay motion was  granted beforehand.  The EPA also objects to time spent on  an economic incentives memo whose relationship to the case  was not explained.  INGAA retorts that the memo concerned  an analysis of market-based approaches to control of IC  engines, and that such approaches were discussed during  settlement talks.  Finally, the EPA takes issue with the time  spent on research on ripeness, standing, and delegation issues, none of which were ever raised.  INGAA replies that its  strategy required it to analyze not only the issues that were  eventually litigated but also issues that might be litigated,  such as a possible government claim that INGAA did not  have standing or that the case was not ripe since the SIP call  did not directly require states to regulate IC engines.  For  each of these items we find the petitioner's response to be  reasonable and no deductions will be made.

CONCLUSION

28
For the reasons set forth above, it is ordered that petitioner be awarded $65,947.24 in reasonable attorneys' fees it  incurred in connection with this Court's decision in Michigan and this fee petition.  The computation is set forth in the  appendix.


29
 Appendix
Total Fee Request                           $107,551.95
Deductions in Opinion 
1. Fees for administrative proceedings      12,149.76  
2.Fees for briefs                           9,675.00  
3.Wholly inadequate documentation           8,067.56 
4. Fees for clerical tasks                  427.50 
5. Fees for staff overtime                  679.20 
6. Fees for document production             2,000.00 
7. Fees for computer research               1,000.00 
8. Fees for local transportation            278.22
                                             ________ 
Total of specific deductions                 $ 34,277.24 
Request minus specific deductions            $ 73,274.71 9. 
10% deduction for insufficient descriptions  $ 7327.47 
                                 TOTAL AWARD $ 65,947.24



Notes:


1
  See, for example, time entries for 1/13/99 ("Telephone conference with client;  conference with J. Knight");  1/14/99 ("conference  with J. Knight;  review record");  1/15/99 ("Review materials;  conference with J. Knight;  telephone conference with A. Field"); 1/17/99 ("Review record;  meet with J. Knight");  1/18/99 ("Review  of record documents;  meet with W. Pedersen");  1/19/99 ("fax to J.  Dreskin");  2/8/99 ("telephone conference with J. Dreskin");  2/9/99  ("telephone conference with P. Lacey and J. Dreskin");  2/12/99  ("confer with J. Knight");  2/18/99 ("confer with J. Knight");  2/23/99  ("Review record");  2/23/99 ("Record review");  2/25/99 ("confer with  J. Knight");  2/26/99 ("Confer with J. Knight");  2/28/99 ("Confer  with J. Knight");  3/4/99 ("telephone conference with A. Field of  Hunton & Williams");  3/3/99 ("conference with J. Knight"); 11/17/99 ("Email to J. Knight regarding conference call");  11/18/99  ("Conference with J. Knight");  4/2/01 ("Conference with J.  Knight");  4/8/01 ("conference with J. Knight").


