
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2126                           TENNESSEE GAS PIPELINE COMPANY,                                Plaintiff - Appellee,                                          v.                           104 ACRES OF LAND, MORE OR LESS,                                IN PROVIDENCE COUNTY,                                STATE OF RHODE ISLAND,                                Defendant - Appellee,                           WALTER R. AND CLARA J. LAWRENCE,                              JUDITH B. MOREAU, ET AL.,                               Defendants - Appellants.                                 ____________________          No. 94-1283                           TENNESSEE GAS PIPELINE COMPANY,                                Plaintiff - Appellee,                                          v.                        WALTER R. LAWRENCE; CLARA J. LAWRENCE;                                  JUDITH B. MOREAU,                               Defendants - Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                _____________________               Morton L.  Simons,  with whom  Barbara M.  Simons, Simons  &               _________________              __________________  _________          Simons, Robert S. Bruzzi and Law Office of Robert S. Bruzzi, were          ______  ________________     ______________________________          on brief for appellants.               Paul M. Sanford,  with whom Kathryn S.  Holley, Christine M.               _______________             __________________  ____________          Gravelle, Peter  V. Lacouture  and Tillinghast Collins  & Graham,          ________  ___________________      _____________________________          were on brief for appellee.                                 ____________________                                   August 24, 1994                                 ____________________                                         -2-                    TORRUELLA, Circuit Judge.  Defendants Judith Moreau and                               _____________          Walter and Clara Lawrence  ("the landowners") appeal the district          court's  thirty percent reduction of an  award of attorneys' fees          based upon  a failure  of the  landowners' counsel to  adequately          document  the charges.   The landowners also  appeal the district          court's failure to include certain costs and prejudgment interest          in the award, and the district court's denial of a subsequent fee          application seeking reimbursement for  fees and expenses incurred          in  prosecuting the initial fee  application.  We  affirm in part          and reverse in part.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                    The  facts  of this  case  are set  forth  with greater          detail in  the district  court's opinion regarding  the principal          fee application in  Tennessee Gas  Pipeline Co. v.  104 Acres  of                              ___________________________     _____________          Land,  828 F.  Supp. 123  (D. R.I.  1993).   In 1986,  plaintiff-          ____          appellee Tennessee  Gas Pipeline  Co. ("Tennessee Gas")  sought a          certificate  of  public  convenience  from  the   Federal  Energy          Regulatory  Commission   ("FERC")  to  allow   Tennessee  Gas  to          construct facilities for  the transmission of natural  gas on the          landowners' property.  In  May 1989, FERC issued Tennessee  Gas a          conditional  certificate for  construction on  the property.   In          December 1989  and February  1990, Tennessee Gas  brought eminent          domain proceedings in the  district court against the landowners,          seeking  to obtain rights-of-way and  a portion of  their land in          order  to construct and maintain  the natural gas  pipeline.  The                                         -3-          landowners retained  counsel to intervene in  the FERC proceeding          and  requested  FERC  to  modify  its  May  1989  certificate  by          rerouting  the final leg of the proposed line to utilize existing          rights-of-way.   After proceedings  in the  district court and  a          proceeding  before FERC, Tennessee  Gas changed the  route of its          pipeline and dismissed the eminent domain proceedings against the          landowners.                      The  landowners moved  for costs  and attorneys'  fees,          pursuant to  the Uniform Relocation Assistance  and Real Property          Acquisition Policies Act ("Relocation Act"), 42 U.S.C.   4601  et                                                                         __          seq.   On  August  25,  1993,  the  district  court  awarded  the          ____          landowners attorneys'  fees but disallowed thirty  percent of the          fees requested by the law firm of Simons & Simons ("Simons"), one          of the  two  firms that  represented the  landowners, because  it          found that  the firm failed  to adequately document  its charges.          Tennessee  Gas paid  the  fee award  on September  7,  1993.   On          September  22,  1993, the  landowners  filed  a supplemental  fee          application seeking reimbursement for fees and  expenses incurred          in prosecuting  the principal  fee application during  the period          from April 29, 1992, to  March 1993.  On September 24,  1993, the          landowners filed  a notice of  appeal from  the district  court's          order with respect to the principal fee application.  On March 2,          1994,   the  district   court   entered   judgment  denying   the          supplemental fee  petition because the court  determined that the          petition  was  untimely.   The  landowners appealed  the  March 2          order.    In  April, this  court  ordered  that  both appeals  be                                         -4-          consolidated.                                         -5-                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                    A.  Reduction in Attorneys' Fees                    A.  Reduction in Attorneys' Fees                    The landowners sought an  award of costs and attorneys'          fees  under  42  U.S.C.      4654,  which  provides  that   in  a          condemnation action abandoned by  the condemnor, the court "shall          award" the  property owner "such sums  as will in  the opinion of          the  court  reimburse  such   owner  for  his  reasonable  costs,          disbursements, and expenses, including  reasonable attorney . . .          fees, actually incurred because of the condemnation proceedings."          The  landowners  contend  that  because  Section  4654  uses  the          mandatory  language "shall  award," an  award of  attorneys' fees          under  this  section  is  not discretionary,  and  a  landowner's          computation  of  hours  should  be  accepted  even  if  there  is          insufficient documentation  absent a  specific showing  of abuse.          We disagree.                    Section   4654  provides   for  the   reimbursement  of          "reasonable" costs  and fees.   This Court's opinions  "have left          reasonably  open   the  question  of  precisely   how  the  judge          ascertains the number of hours reasonably expended" by counsel on          a case  in which  attorneys' fees are  sought.  United  States v.                                                          ______________          Metropolitan  Dist.  Com.,  847  F.2d  12,  16  (1st  Cir.  1988)          _________________________          (internal quotations and citation omitted).  "What  we expect the          trial  court  to do  is make  concrete  findings, supply  a clear          explanation  of its reasons  for the fee award,  and most of all,          retain  a sense of overall proportion."  Id. (internal quotations                                                   ___                                         -6-          and  citations omitted).    Accordingly, we  review the  district          court's fee award for  abuse of discretion.  Foley v. Lowell, 948                                                       _____    ______          F.2d 10 (1st Cir. 1991).                    The district  court indicated that it  would employ the          lodestar analysis  in determining  the reasonableness of  the fee          applications.  Tennessee Gas  Pipeline Co., 829 F. Supp.  at 128.                         ___________________________          "If an alternative method is not expressly dictated by applicable          law, we have customarily found it best to calculate fees by means          of the  [lodestar] time and  rate method. .  . ."   Weinberger v.                                                              __________          Great  Northern Nekoosa Corp., 925 F.2d 518, 526 (1st Cir. 1991).          _____________________________          Because Section  4654 does not  dictate an alternative  method to          calculate  fees, the district court's use  of the lodestar method          was proper.                    Where a district court applies the lodestar method, the          fee-seeker must  usually provide a particularized  account of his          claim. Id. at  527.  "[T]he  absence of detailed  contemporaneous                 ___          time records, except  in extraordinary  circumstances, will  call          for  a substantial reduction in any award or, in egregious cases,          disallowance."   Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952                           ___________________    ______          (1st Cir.  1984).  In order for  litigants to receive fee awards,          this court has  required that  they submit "a  full and  specific          accounting of the  tasks performed, the dates of performance, and          the number of hours spent on each task."  Weinberger, 925 F.2d at                                                    __________          527 (internal quotations and citations omitted).                    The district  court found that the  Simons' time sheets          were not sufficiently  detailed to enable the court  to determine                                         -7-          whether  the fees  were excessive or  duplicative.   The district          court stated  that "[t]he  time summaries  are replete  with time          charges  for such  matters as  'Confer with  co-counsel,' 'Confer          with  client,' 'Review materials,'  Review documents,' and 'Legal          Research' without any indication of the subject matter involved."          The  district  court  explained that  in  addition  to  making it          impossible for the court  to gage whether the task  performed was          warranted, the failure to include some description of the subject          matter of the  task made it  impossible to determine if  the time          factor  allocated was  appropriate  or excessive.   The  district          court also found that discrepancies in Simons' submissions raised          questions as to their accuracy and whether such records were kept          contemporaneously.    The district  court  clearly explained  its          findings and the court  was justified in reducing the  fee award.          The court did not  abuse its discretion by reducing  the award of          fees  claimed by Simons by  thirty percent.   We therefore affirm          the district court's reduction of Simons' attorneys' fees.                    B.  Prejudgment Interest and other Costs                    B.  Prejudgment Interest and other Costs                    In  the  proceedings  before  the  district  court, the          landowners requested  interest on fees  and costs from  April 29,          1992, the date  they had filed their  motion for fees  and costs.          The  request for  prejudgment interest  was opposed  by Tennessee          Gas.    The  district  court's   opinion  makes  no  mention   of          prejudgment interest  and the  district court's judgment  did not          include any  prejudgment interest.   The landowners  also contend          that  the   district  court,  without   comment  and   apparently                                         -8-          inadvertently, failed to include in the award an item of $889 for          two  "round-trip"   airfares   between  Washington,   D.C.,   and          Providence, R.I., to permit counsel for the landowners  to attend          a settlement  conference  and  a meeting  on  the  Tennessee  Gas          project.   According to  the landowners,  the vouchers  for these          trips, accompanied  by an affidavit describing the purpose of the          trips, were submitted to the district court and served on counsel          for Tennessee Gas on March 12, 1993.                    Because the district court  did not advance any reasons          for  its  denial  of  the  landowners'  request  for  prejudgment          interest, or the cost of the airline tickets, we will remand this          case to the  district court so that it  may determine whether the          landowners  are   entitled  to   prejudgment   interest  and   to          reimbursement for the cost of the airline tickets.                    C.  Supplemental Fee Application                    C.  Supplemental Fee Application                    In  its memorandum  and order  denying the  landowners'          supplemental fee application,  the district court indicated  that          ordinarily a litigant should have one opportunity to obtain fees,          but that "[t]here is no reason  why a pending application may not          be supplemented to the  time the court acts on  the application."          The  court acknowledged that there is  no stated time requirement          for  filing fee  applications included  in 42  U.S.C.    4601, et                                                                         __          seq., but stated that there must be some time limit within  which          ____          applications  must  be filed.   The  court  pointed out  that the          Supreme  Court has  indicated  that fee  applications should  not          result in secondary litigation, Commissioner, I.N.S. v. Jean, 496                                          ____________________    ____                                         -9-          U.S. 154, 163  (1990), and  that the First  Circuit has  embraced          this principle, Par s v.  U.S. Dept. of Housing & Urban Dev., 988                          _____     __________________________________          F.2d  236, 241 (1st  Cir. 1993).  The  district court stated that          "if  [the  landowners']  application  was approved,  it  must  be          expected that a third  application will be made for  the services          rendered in  connection with this second application."  The court          then pointed out  that "[h]ere the  second application was  filed          September  12,  1993, 29  days  after  the  court's formal  order          allowing the first petition, more than two months after the court          filed its opinion, six months after the last of the services were          rendered, and seventeen months after  the beginning of the period          for which [the landowners] seek reimbursement."  The court stated          that "[e]xcept in unusual circumstances not present in this case,          application for  reimbursement for legal services rendered before          the  court determines a fee application should be made before the          court acts on the  application, otherwise reimbursement should be          foregone."   The court then concluded that the second application          for fees came too late.                    The landowners  contend that neither  the Uniform  Real          Property  Acquisition  Policies  Act  nor  any  other  applicable          statute imposed a time requirement for filing a  fee application,          and  therefore, by  denying  their application  as untimely,  the          district  court in effect enunciated a new rule which it unfairly          applied  retroactively to  the landowners.   In support  of their          position,   the  landowners   argue  that   the  amount   of  the          supplemental  fee claim was unknown at the time the principal fee                                         -10-          application  was submitted,  and  the landowners  could not  have          known  precisely  what the  amount of  this  claim was  until the          principal application  was resolved.   Therefore, they  could not          determine the  amount, or  submit a supplemental  fee application          until they had been  awarded fees.  The landowners  also contend,          and the  record shows, that  they advised the  court on  March 3,          1993 -- 4 1/2  months before its preliminary fee  application and          almost six months before the court entered its judgment regarding          the  preliminary fee  application  -- that  they  would submit  a          supplemental fee application at the appropriate time.                    We agree  with the  district court  that there  must be          some time limit within which a party must file an application for          supplemental fees,  and  we  believe that  it  is  reasonable  to          require, absent any other statutory mandate, that where possible,          such application be made  before the court acts on  the principal          fee  application.    In  the  present case,  however,  where  the          district  court  had   not  previously  articulated  this   novel          requirement,  where  the  landowners  had advised  the  court  in          writing   of  their   intention  to   file  a   supplemental  fee          application, and  where Congress has directed  district courts to          award  landowners their  reasonable  costs  and  attorneys'  fees          incurred because  of aborted  condemnation proceedings,  we agree          with the landowners that it would be unfair, and would contravene          the  Congressional  purpose,   to  apply  the  district   court's          requirement retroactively.                    We therefore vacate the district court's order  denying                                         -11-          the landowners' supplemental fee  application, and remand for the          district court  to determine the  reasonable fees to  be awarded.          We further order that any application for fees in connection with          this second application be submitted to the district court before          the district court acts on the second application.                    Affirmed in part; vacated and remanded in part.                    ______________________________________________                                         -12-
