                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2001

Loughner v. University of Pittsburgh
Precedential or Non-Precedential:

Docket 00-1561




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Filed July 18, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-1561 and 00-1613

CATHERINE M. LOUGHNER,
       Appellant No. 00-1613

v.

THE UNIVERSITY OF PITTSBURGH;
PRESBYTERIAN UNIVERSITY HOSPITAL,
a Pennsylvania corporation tdba UNIVERSITY OF
PITTSBURGH MEDICAL CENTER tdba UNIVERSITY OF
PITTSBURGH MEDICAL CENTER SYSTEMS,

       Presbyterian University Hospital tdba University of
       Pittsburgh Medical Center and/or University of
       Pittsburgh Medical Center Systems,
       Appellant No. 00-1561

Appeal from the United States District Court
For the Western District of Pennsylvania
D.C. No.: 97-cv-00734
District Judge: Honorable William L. Standish

Submitted Under Third Circuit LAR 34.1(a)
May 2, 2001

Before: MANSMANN, NYGAARD, and ROSENN,
Circuit Judges.

(Filed: July 18, 2001)

       Michael E. Hoover
       Diefenderfer, Hoover, Boyle & W ood
       1420 Grant Building
       Pittsburgh, PA 15219-2201
        Counsel for Catherine M. Loughner
       William A. Pietragallo, II
       Pamela G. Cochenour
       Lawrence J. Baldasare
       Bryan K. Shreckengost
       Pietragallo, Bosick & Gordon
       301 Grant Street
       One Oxford Centre, 38th Floor
       Pittsburgh, PA 15219
        Counsel for Presbyterian University
       Hospital, etc.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal raises a troublesome and recurring problem
pertaining to the award of attorneys' fees and costs to a
prevailing party under a federal statute and the duty of a
district court in dealing with the prevailing party's petition
for fees. Catherine M. Loughner ("Loughner") brought an
action under, inter alia, the Fair Labor Standards Act
("FLSA"), against The University of Pittsbur gh ("University")
and the Presbyterian University Hospital ("Hospital"),1 for
payment of unpaid wages and overtime compensation due
her on the termination of her employment. Specifically, she
claimed $3,169.28 in "base pay" unpaid wages and
$25,218.06 in overtime pay pursuant to federal and
Pennsylvania law. On the eve of trial the parties, stipulating
that Loughner was the prevailing party, settled all claims,
including overtime wages, liquidated damages, and interest,
for $27,000.

The District Court granted Loughner's counsel almost all
of the hours and costs requested in his petitions, but at a
lower hourly rate. In all, the Court reduced the amount of
$118,725.00 claimed for attorneys' fees and awarded
Loughner's counsel $88,655 in fees and $2,875.56 in costs.
The Defendants timely appealed. We vacate the award and
remand.
_________________________________________________________________

1. Together, the University and the Hospital will be referred to as
"Defendants."

                               2
I.

Loughner brought an action against the Defendants
under the Fair Labor Standards Act, the Pennsylvania Wage
Payment and Collection Law, and the Pennsylvania
Minimum Wage Act of 1968, for failure to pay her overtime
wages. In a complaint replete with aver ments of, inter alia,
racial discrimination, Loughner claimed only that she was
entitled to certain base pay and overtime pay under an
employment contract and under state and federal wage and
hour laws. On the day before trial, December 6, 1999, the
parties settled.

Loughner's counsel, Michael E. Hoover ("Hoover"), filed a
petition for attorneys' fees and costs, along with an affidavit
concerning the reasonableness of the hours and hourly rate
claimed. Hoover sought 474.9 hours at $250 per hour for
his time, 2.2 hours at $60 per hour for a paralegal, and
$2,782.74 in costs. Hoover performed all of the attorney's
work on this case himself. He provided no separate cost
assignment for his administrative, paralegal, and non-legal
roles, instead charging a maximum rate for all of his tasks.

The Hospital opposed Hoover's petition. The Hospital
contended that Hoover presented no objective, admissible
evidence of the prevailing market rate in the Pittsburgh,
Pennsylvania area for work of a similar type. The Hospital
also argued that Hoover failed to assign dif ferent hourly
rates to various tasks he performed personally, from
administrative to legal. The Hospital also complained about
the excessive number of hours claimed in this r elatively
simple "wage and hour" case. Concerning costs, the
Hospital complained that Hoover neither supplied an
explanation as to why they were incurred, nor supplied
supporting documentation.

Hoover, requesting an additional $3,300 in fees and
$46.82 in costs, supplemented the petition without leave of
court. Later, again without leave of court, Hoover filed
affidavits from three attorneys 2 who attested to the
reasonableness of the $250 hourly rate and the number of
hours expended in Loughner's action. Hoover also sought to
_________________________________________________________________

2. These attorneys were all employment discrimination practitioners.

                               3
discover the number of hours expended and hourly rates
charged by defense counsel.

The Hospital moved to strike the supplemental affidavits,
but the District Court denied the motion. On February 11,
2000, the District Court held a hearing at which it allowed
Hoover to serve interrogatories on the Hospital concerning
the hours expended in defending the action. The Hospital
stated at the hearing that it did not keep separate records
for the defense of this action because it accounted for and
billed together the defense of all three of Loughner's actions.3
The District Court acknowledged that this was defense
counsel's position, and that Hoover could expect no answer
to the interrogatories. See Appx. 219-220 ("Then say that.
If you don't have separate billings just -- . . . tell him
that.").

After serving defense counsel with interrogatories, Hoover
moved for sanctions for defense counsel's failur e to
respond. Defense counsel reiterated that it did not possess
separate records, and was unable to answer Loughner's
interrogatories. The District Court later denied the motion
for sanctions.

Hoover filed a second supplement to the fee petition,
requesting an additional $4,625 in fees and $46 in costs for
time spent preparing the supplemental fee petitions, in
obtaining affidavits from local attor neys concerning rates
charged for similar actions, and in attending hearings. The
Hospital opposed the second supplement for the same
reasons asserted earlier, including that the hours and
hourly rates were excessive.

On April 14, 2000, the District Court granted Hoover's
petitions, including an aggregate of 506.6 hours of
attorney's time claimed, but the Court disallowed the
paralegal time and reduced the hourly rate to $175 per
hour. The Court ordered the Defendants to pay $88,655 in
fees and $2,875.56 in costs. The extent of the District
_________________________________________________________________

3. Loughner filed separate civil rights and r etaliation actions against
Defendants. These actions are still pending; they were not part of the
settlement of this action. Defendants' counsel r epresents Defendants in
all of Loughner's actions against them.

                               4
Court's evaluation on the record was the brief statement
that:

       I'll accept the number of hours you claim since[the
       Defendants are] not able to come up with their own
       number of hours to say, for instance, they spent only
       half as many hours.

       I've never had anybody ask for the number of hours a
       Defendant has spent; but if you can't come up even
       with a ballpark figure and say we only spent half as
       many hours as he spent, I have to suggest that --
       rather, infer that the Defendant spent a lot of hours
       also; and I'm inclined to accept the number of hours
       claimed by the Plaintiff, that's all, and I'll decide the
       matter.

There is no evidence that the District Court evaluated
further the number of hours awarded. In lowering the
hourly rate from $250 per hour to $175 per hour , the Court
reasoned that "the practice of employment discrimination
law . . . is much more complex than a wage and overtime
case." The Court also noted that Hoover "has not attempted
to adjust his hourly rate depending on the type of work he
was performing." The Court was "satisfied that plaintiff . . .
adequately set forth the costs incurred in pr osecuting this
action."

Loughner appealed concerning the hourly rate r eduction;
Defendants appealed concerning the number of hours and
costs awarded.

II.

The District Court had federal question jurisdiction. See
28 U.S.C. S 1331. The District Court's entry of an order
directing payment of attorneys' fees and costs is a final
order. We have appellate jurisdiction of the timely notices of
appeal. See 28 U.S.C. S 1291.

We review de novo the standards and procedures applied
by the District Court in determining attor neys' fees, as it is
a purely legal question. See Smith v. Philadelphia Parking
Auth., 107 F.3d 223, 225 (3d Cir. 1997). However, the
reasonableness of an award of attor neys' fees is reviewed

                               5
for abuse of discretion. See Washington v. Philadelphia
County Ct. of Common Pleas, 89 F.3d 1031, 1034-35 (3d
Cir. 1996). The District Court's findings of fact are subject
to "clearly erroneous" review. See id. at 1039. A fee award
"is within the district court's discretion so long as it
employs correct standards and procedures and makes
findings of fact not clearly erroneous." Pennsylvania
Environ. Def. v. Canon-McMillan, 152 F .3d 228, 232 (3d Cir.
1998) (internal quotation omitted).

The award of attorneys' fees in this case is authorized
under the Fair Labor Standards Act, which pr ovides "a
reasonable attorney's fee to be paid by the Defendant, and
costs of the action" to a prevailing plaintiff. See 29 U.S.C.
S 216(b). In cases like this, we use the "lodestar" formula,
which requires multiplying the number of hours reasonably
expended by a reasonable hourly rate. See Hensley v.
Eckerhart, 461 U.S. 424 (1983); Pennsylvania v. Delaware
Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986);
Pennsylvania Environ. Def., 152 F .3d at 232. "When the
applicant for a fee has carried his burden of showing that
the claimed rates and number of hours are r easonable, the
resulting product is presumed to be the reasonable fee to
which counsel is entitled." Delaware V alley Citizens'
Council, 478 U.S. at 564 (internal quotation omitted).

The District Court must articulate the basis for a fee
award. See Pennsylvania Environ. Def., 152 F.3d at 232
("the district court must `provide a concise but clear
explanation of its reasons for [a] fee award.' "). Even though
"a district court's findings, when adopted verbatim from a
party's proposed findings, do not demand mor e stringent
scrutiny on appeal," Lansford-Coaldale Joint Water Auth. v.
Tonolli Corp., 4 F.3d 1209 (3d Cir . 1993), the record must
reflect, at least, that the trial court "fully comprehended the
factual and legal issues and adequately perfor med the
decision reaching process." Pennsylvania Environ. Def., 152
F.3d at 233. We have difficulty ef fectively reviewing a grant
of attorneys' fees for abuse of discretion without findings of
fact and a clear explanation of the reasons a District Court
granted the fee, especially when, as here, the award is more
than triple the amount of both the overtime claimed in the
complaint, and the amount for which the plaintif f settled.

                               6
A. Time Charged

This court has held that in calculating the hours
reasonably expended, the District Court "should review the
time charged, decide whether the hours set out were
reasonably expended for each of the particular purposes
described and then exclude those that are `excessive,
redundant, or otherwise unnecessary.' " Public Int. Research
Group of N.J., Inc. v. Windall, 51 F .3d 1179, 1188 (3d Cir.
1995) (internal citation omitted); see also Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) ("The
district court should exclude hours that are not reasonably
expended."). Thus, the District Court has a positive and
affirmative function in the fee fixing pr ocess, not merely a
passive role. It should reduce the hours claimed by the
number of hours spent litigating claims on which the party
did not succeed, that were distinct from the claims on
which the party did succeed, and for which the fee petition
inadequately documents the hours claimed. See id. The
party opposing the fee award has the bur den to challenge
"by affidavit or brief with sufficient specificity to give fee
applicants notice, the reasonableness of the r equested fee."
Dellarciprete, 892 F.2d at 1183. However, "[t]he district
court cannot `decrease a fee award based on factors not
raised at all by the adverse party.' " Id.

Defendants argue that the District Court's failure to
conduct any analysis of the claimed number of hours
constitutes reversible error to the extent it shifted the
burden of proof of the reasonableness of the request from
Loughner onto them. Defendants maintain that it was
unreasonable for the District Court to accept"wholesale" all
of the hours Hoover claimed. See App. Br . at 25.
Defendants also argue that the District Court granted
Hoover's request for the inappropriate r eason that they
were unable to provide a precise allocation of the hours
spent defending the action, and that such a rationale would
convert the fee award into a sanction. Defendants further
argue that Hoover's request was unr easonable per se when
measured against the standards of amount of success and
billing judgment. Hoover claims to have expended 506
attorney hours on a case presenting "narrow" issues which
never went to trial. See App. Br. at 30.

                               7
Regrettably, the District Court articulated nofindings in
the record supporting its award. The memorandum
accompanying the award order simply states"the court
conclude[s] that, based on Defendants' failur e to even
attempt to estimate the number of hours and costs
expended in defending this action, the court would accept
the number of hours claimed by plaintiff 's counsel as
reasonable." The Court does not explain how defense
counsel's inability or failure to provide the hours they
charged on this case, alone, supports the conclusion that
506 attorney hours is reasonable to settle, without trial, a
simple wage and hour case.4 The District Court had earlier
commented that it did not "know . . . the r elevance of [the
amount of time spent by the defense in this case]." Yet the
Court based the award solely on the Defendants' failure to
respond to the interrogatories inquiring about the amount
of time spent by defense counsel in this case. The District
Court performed scant analysis, if any, of the hours in
Hoover's petition. It provides us no findings-- not even a
comment -- on the reasonableness of a claim of over 120
hours for communications between the plaintif f and her
lawyer. We have no basis for deter mining the
reasonableness or accuracy of many char ges that combine
hours for several tasks. The District Court's draconic
explanation offers no basis for review.

Hoover argues that the Defendants failed to raise and
support their objections, as was their burden. He argues
that the 25-page petition for attorneys' fees itemized the
work performed, dates, and amounts of time; that plaintiff
met her burden of production, and that the burden shifted
to Defendants to disprove the reasonableness of her
petition. No such rigid burden shifting is established in our
cases. The Defendants raised substantive objections to the
reasonableness of Hoover's fee petition. The Court,
_________________________________________________________________

4. We can infer the District Court meant that if Defendant's counsel
spent many hours on this action defending unr easonable claims, this
could constitute evidence that plaintiff 's counsel expended a reasonable
time on plaintiff 's claims. This is a non sequitur. We are uncertain
whether this was the District Court's rationale, and we are equally
uncertain how this premise leads to the conclusion that plaintiff 's
petition must be reasonable.

                               8
therefore, had an obligation to evaluate the petition in light
of the objections, and to explain why it accepted carte
blanche the plaintiff 's claim for time expended and rejected
the Defendants' objections.

Hoover makes an emotional appeal that we appr ove the
high number of hours claimed in his petition, alleging that
the Defendants were engaged in "trench warfare." However,
the District Court did not make a finding that this
otherwise straightforward wage and hour case was
complicated by Defendants' conduct and we see nothing in
this record to support one.5

Accordingly, we are constrained to conclude that the
District Court erred by failing to perfor m a sufficient
analysis of Hoover's petition in light of Defendants'
objections and the decisions of this Court. Ther efore, we
will remand for an analysis and findings concerning the
reasonableness of the hours claimed in the fee petitions
with the supplements thereto.

B. Hourly Rate of Attorney Compensation

Hoover argues on cross-appeal that the District Court
inappropriately reduced the hourly rate claimed. Generally,
a reasonable hourly rate is calculated accor ding to the
prevailing market rates in the relevant community. See
Blum v. Stenson, 465 U.S. 886, 895 (1984); Dellarciprete,
892 F.2d at 1183. The court "should assess the experience
and skill of the prevailing party's attor neys and compare
their rates to the rates prevailing in the community for
similar services by lawyers of reasonably comparable skill,
experience, and reputation." Dellar ciprete, 892 F.2d at
1183. The prevailing party "bears the bur den of
establishing by way of satisfactory evidence, `in addition to
[the] attorney's own affidavits,' . . . that the requested
hourly rates meet this standard." W ashington v.
Philadelphia Cty. Ct. of Common Pleas, 89 F .3d 1031, 1035
(3d Cir. 1996) (citing Blum v. Stenson , 465 U.S. 886, 895
n.11 (1984)). The starting point in ascertaining a
reasonable hourly rate "is the attor ney's usual billing rate,
_________________________________________________________________

5. The District Court implied, and we believe, that in general, a wage and
overtime case is an uncomplicated cause of action.

                                9
but this is not dispositive." Public Inter est Group, 51 F.3d at
1185.

The District Court held that $250 was excessive based on
the type of claims asserted in this action. The Court was
not persuaded by the three affidavits submitted by
employment discrimination practitioners because it felt that
an employment discrimination case is "much mor e complex
than a wage and overtime case." The District Court also
noted that Hoover did not adjust his hourly rate depending
on the type of work he performed.6 Therefore, the District
Court awarded a flat $175 hourly rate to all of Hoover's
awarded hours.

Having rejected the prevailing party's evidence of rates,
the District Court was free to affix an adjusted rate.
However, the Court did not explain sufficiently how it
reached $175 per hour for all hours worked. The Court
acknowledged that Hoover performed nearly all of the work
on this case by himself, and that Hoover claimed his
highest billable rate for all work perfor med. A claim by a
lawyer for maximum rates for telephone calls with a client,
legal research, a letter concerning a discovery request, the
drafting of a brief, and trial time in court is neither fair nor
reasonable. Many of these tasks are ef fectively performed
by administrative assistants, paralegals, or secr etaries. As
such, to claim the same high reimbursement rate for the
wide range of tasks performed is unr easonable. Having
prevailed in the litigation is not cause to overwhelm the
losing party with unreasonable fees and costs."Hours that
would not generally be billed to one's own client ar e not
properly billed to an adversary." Public Interest Group, 51
F.3d at 1188.

We see no error of the District Court in reducing Hoover's
hourly rate. However, it failed to reach a reasonable rate for
the separate tasks performed. Deter mination of the hourly
rate for legal services in the applicable marketplace is a
finding of fact; it can be reversed if clearly erroneous. See
Public Interest Group of N.J. v. W indall, 51 F.3d 1179, 1188
n.12 (3d Cir. 1995). We conclude that on its face, $175 per
_________________________________________________________________

6. This would have been a valid basis for adjusting the hours claimed as
well.

                               10
hour is an unreasonable award for the wide range of tasks
performed by Hoover. The District Court should reach a
reasoned conclusion as to the prevailing market rate for the
type of tasks delineated in Hoover's petition.

C. Costs

Hoover submitted a detailed breakdown of costs incurred,
as well as an Affidavit as to the necessity and
reasonableness of the costs. The Hospital objected to all of
the claimed costs for lack of evidence supporting the
reasonableness and necessity of the expenses. The extent of
the District Court's analysis on the costs issue was a
statement that "[a]fter consideration, the court is satisfied
that plaintiff has adequately set forth the costs incurred in
prosecuting this action, and, therefor e, plaintiff will be
awarded costs in the amount of $2,875.56."

Attorneys' fees and costs are frequently analyzed
together, so the same standards apply to our review of costs
as to our review of attorneys' fees. A fee petition must "be
specific enough to allow the district court to determine if
the hours claimed are unreasonable for the work
performed." Washington v. Philadelphia Cty. Ct. of Common
Pleas, 89 F.3d 1031, 1037 (3d Cir . 1996) (internal citations
omitted). In this case, the record contains a one-page
statement of costs, and an Affidavit swearing to their
accuracy. The one-page statement contains dates and
descriptions, but does not include supporting data
explaining the relevant purpose of the expenditures.
Counsel failed to provide the District Court with any
reasonable basis justifying the expenditur es in this case.
There is no evidence in the record under which we can
evaluate whether the District Court abused its discr etion in
allowing the claim for costs.

III.

The award of the District Court will be vacated, and the
case remanded to the District Court for further proceedings
consistent with this opinion. Costs taxed against Catherine
M. Loughner as appellant/cross-appellee.

                               11
NYGAARD, Circuit Judge, Concurring and Dissenting.

Although I agree with the Majority's analysis and
conclusions concerning the hourly rate, I would also affirm
the District Court with respect to the number of hours
worked and the costs expended. Loughner's attor ney
submitted twenty-five pages of itemized recor ds specifying
the date when the work was performed, the attorney or
paralegal involved, the details of the assignment, the
amount of time spent, and the hourly rate char ged. This
documentation provides a sufficient basis upon which to
make an award. The Hospital opposed Loughner's fee
petition by simply asserting that the amounts sought were
"unreasonable and excessive given the uncomplicated
nature of [Loughner's] wage and overtime claims." In
response to the Hospital's position, Loughner's counsel filed
a motion to compel production of documents indicating the
number of hours expended by defense counsel on this case.
The District Court directed Loughner to serve
interrogatories on the Hospital to enable her to obtain the
information. As directed, Loughner's counsel served the
Hospital with four interrogatories regar ding the number of
hours it expended, its hourly rates, and the costs incurred
in defending this action. The Hospital failed to comply and
instead objected to each interrogatory.

After receiving the Hospital's objections, Loughner's
counsel filed a motion for sanctions. As the Majority notes,
the Defendants contended that they could not r espond
because they had consolidated the accounting and billing
for all three of Loughner's actions. The District Court Judge
found this response unacceptable: "I'm going to tell you
that really surprises me. I was in a law fir m for 23 years,
and I worked for the same client on a number of dif ferent
matters, and I could--you always knew how many hours
you spent on each matter . . . . This was a claim for fair
labor -- this is a claim for -- under the -- completely
different from some of the others, just a back pay matter."
J.A. at 264-65. Based on the non-responsiveness of defense
counsel, the Judge concluded "[b]ut if you can't come up
even with a ballpark figure and say we only spend half as
many hours as he spent, I have to suggest that -- rather,
infer that the Defendant spent a lot of hours also; and I'm

                               12
inclined to accept the number of hours claimed by the
Plaintiff . . . ." Id. at 268. This is not unlike the summary
judgment context, in which a party cannot simply r ely on
bare allegations or denials. Thus, in the absence of any
evidence to the contrary of what she submitted, the Judge
concluded that Loughner's hours were reasonable. I think
this action falls well within the District Court's considerable
discretion.

The Majority argues that the District Court failed to
review whether Loughner's hours were r easonable. I
disagree. As indicated above, Judge Standish attempted to
gather data in order to assess the reasonableness of the
numbers of hours allegedly expended by Loughner's
counsel. However, the Defendants refused to cooperate.
They failed even to attempt to calculate the number of
hours they spent on the instant matter, even when directed
by the Court to do so. Regardless of the Defendants' billing
system, they cannot simply thumb their nose at the Court's
request. When they refused, the District Court merely
accepted and deemed admitted the allegations of the
Plaintiff. The District Court is accor ded wide and
considerable discretion in awarding fees. It is in the best
position to know the complexity of the issues pr esented,
and the nature and quality of the work per formed by the
attorneys. Accordingly, I would defer to the District Court's
finding and affirm.1

Defense counsel's conduct throughout the litigation also
supports the District Court's finding. Loughner's counsel
alleged, and the District Court obviously agr eed, that the
number of hours he expended in this case was a dir ect and
proximate result of the "trench warfare" employed by the
Defendants. It seems that defense counsel played a game of
delay and deter. For example, the Defendants failed to allow
discovery, which necessitated motions to compel and
motions for sanctions. They unsuccessfully appealed every
_________________________________________________________________

1. I disagree emphatically with the majority's characterization of the
District Court Judge's explanations as "Draconic." Maj. Op. at 8. I doubt
that either a dragon or the infamous lawgiver of Athens would be
comfortable in the presence of the esteemed, learned, and gentle Judge
who presided over this matter.

                               13
report and recommendation of the Magistrate Judge. They
opposed every procedural motion filed by Loughner, even
the most routine. Their flurry of motions, including those to
dismiss and for summary judgment, also added to the fee
obligations of Loughner. During the hearing in which
Loughner sought to compel documents evidencing the
number of hours expended by defense counsel, her counsel
explained:

       I think that what we're saying is plaintif f 's counsel just
       stood toe-to-toe with the defense in this case. A lot of
       the hours that were expended here, as Mr . Hoover's
       time records show, were related to struggles over
       discovery and production of documents and so forth.
       Some of that wound up before magistrate Judge
       Sensenich. Judge Sensenich offered sanctions in this
       case. Mr. Hoover said no, that's fine. W e'll proceed if we
       can just get the information.

Id. at 218. The Court merely responded to this conduct.

In response to the "trench warfar e" of the Defendants,
Loughner sought discovery of the number of hours
expended by defense counsel. When the Defendants r efused
to provide answers, the District Court dir ected Loughner's
counsel to submit interrogatories to defense counsel. In
spite of the court order, the Defendants refused to answer
the interrogatories; thus Loughner was for ced to file a
motion for sanctions. The Court thereafter found that
Loughner had met her burden as to the number of hours
expended.

Defense counsel's failure to respond constituted a waiver
of its right to challenge the content of Loughner's affidavits
concerning the number of hours spent. And, I believe that
the District Court's conclusion that Loughner sustained her
burden as to the reasonableness of the number of hours
expended by her counsel is eminently reasonable. The
District Court apparently believed Loughner and
compensated her attorney for the expensive game of legal
"chicken" that he was forced to play by Defendant's
attorneys. In my view, these findings do not constitute an
abuse of discretion.

                               14
With respect to Loughner's counsel's r equest for
reimbursement of costs in the amount of $2,875.56, the
Defendants argued that the request should be denied in its
entirety due to a lack of documentation. However,
Loughner's counsel submitted a detailed breakdown of the
requested costs and an affidavit as to their reasonableness.
Thus, the District Court found that Loughner pr esented an
adequate justification for the costs incurr ed in prosecuting
this action. Given the wide latitude of the District Court in
this area, I would affirm the awar d of costs.

Therefore, I respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
