                                                                                                                           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Precedential or Non-Precedential: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
