*2 present BADER dispute. objected Before RUTH GINSBURG Raton to a fee SILBERMAN, Judges, Circuit charged uniformly by the Commission ROBINSON, Judge. Senior Circuit filings by regulated PGA utilities.7 Raton six-page filing had submitted with a PGA Opinion for the by Court filed Senior $2,300, check for a fee amount established Judge Circuit ROBINSON. by the Commission in its Order No. 361.8 Dissenting Opinion filed Circuit submission, Shortly before Raton’s how Judge SILBERMAN. ever, filing the Commission had raised the ROBINSON, III, SPOTTSWOOD W. $4,000.9 paid fee to Raton dif Judge: Senior Circuit protest ference under and then re Company ap- Raton Gas Transmission exhausting lief therefrom. After its ad 1 plies for taxation of court costs and allow- achieving ministrative remedies without attorneys’ following ance of fees2 our reso- success, petitioned for review this controversy lution of its with the Federal court. Energy Regulatory Commission over fees Originally, Raton grounds asserted two charged upon its Purchased Adjust- Gas First, here. it contended that it should not (PGA) filings.3 ment The Commission con- pay any have to all filing fee at since its tends that assessment of court costs is precluded by any statute.4 It merely resists recov- would price enable it to lower the fees, ery grounds not on gas, any special and would not result prevail underlying Raton did not Alternatively, benefit. Raton insisted that litigation,5 but the fee was not commensurate with the adequately justified.6 stance therein was cost to the processing Commission of We share Commission’s conviction six-page ton’s filing.10 rejected We Raton’s statutorily taxation of court costs is argument, only first as an attack on conclude, however, barred. We that Raton long expiration Order No. 361 made after prevailed sufficiently qualify for recov- of statutory 60-day period judicial ery amount, fees in some review,11 but also because “[t]he that the substantially Commission was not processing sion’s con- justified advancing the defenses we enough special ferred of a sup- benefit to lacking. found accordingly We award such port requirement under the governing appropriate. fees as deem we statute.”
I
objection
With
to Raton’s
to the
fee, however,
disagreed
size of the
openWe
summary
our discussion with a
forerunning
salient events
tardy.
the Commission that Raton 39(a)-(c).
Fed.R.App.P.
1. See
provided
cies to collect fees for services
to iden
thereby
agencies
tifiable beneficiaries and
make
2. See
Equal
204(a),
Access
(b),
to Justice Act
'self-sustaining
§
possible.’" Phillips
to the extent
(d)(1)(A),
2412(b), (d)(1)(A) (1982
28 U.S.C. §
(10th
&
Petroleum Co. v.
F.2d
1987).
Supp. V
Cir.1986),
cert.
(1986).
L.Ed.2d 44
3. Gas Transmission Co. v.
(1988).
but focuse[d] beginning, Raton asserted that it prior announced a month [which was] court,20 party in prevailing was the re- Raton’s motion [administrative] to court costs in the as such was entitled *3 lief,” spawned genera- and which a new aggre- attorneys’ of and fees amount $924 these, tion of concerns.14 With $18,124.22 $17,200,21 gating for a total of said, petition review Raton’s for was Citing steady in the cost of increase timely,15 explanation and the Commission’s living,23 declaring “[pjractice be- and Reminding inadequate.16 the Commission Energy Regulatory fore the Federal Com- “cost-justified must be fees both specialized legal experi- requires mission fair,”'17 and re- ence,” and we vacated its order us to exercise Raton beseeched the case to the Commission for authority Equal manded our to relax the Access to charge ceiling its decision to fee al- reconsideration of Justice Act’s lowances,25 $4,000.18 compensation Following our re- and to award at Raton the full Commission, per the rate of hour for the services mand, “partially in re- $100 its decision, counsel.26 regu- sponse” to our modified $1,800 to reduce to the fee for PGA lation applica- opposed Raton’s Commission gas compa- filings by “nonmajor” natural grounds to dismiss it on tion and moved nies such as Raton.19 against the that taxation of costs Act,27 prohibited by the Natural Gas
sion and that Raton could not recover II position in fees because the Commission’s provoked a wel- application substantially justi- has litigation the main was counterarguments, arguments Alternatively, and the Commission ter of fied.28 by Raton. if Raton allowed at- concessions maintained that and to some extent fees, sought should useful, necessary, torneys’ the amount if indeed not It omitted). (footnote accompanying notes 32-36 and text. We 13. Id. infra insignificant. See note 75 deem this difference Id. 14. infra. 15. Fees, Application Attorneys’ 22. 19, at 3. at 16. Id. at 618. (citing F.2d at 619 31 U.S.C.
17. Id. at
23.
(1982)).
9701(b)(1), (2)(A)
§§
Id. at 2.
F.2d at
18. 271
"[Ajttorney
in ex-
shall not be awarded
Fed.Reg.
&
Order No.
per
determines
hour unless the court
$75
cess of
1, 3,
amended
Order No.
nn.
506-A,
as
living
special
or a
that an increase in the cost
factor,
Fed.Reg.
availability
quali-
(1989)).
as the limited
(codified
such
§
at 18 C.F.R. 381.204
involved, just-
attorneys
proceedings
fied
Application
Allowance of
of Petitioner for
2412(d)(2)(A)(ii)
higher
fee." 28 U.S.C.
ifies
Costs,
Attorney’s
Gas Trans-
Fees and
1987).
(Supp. V
(D.C.Cir.)
Co. v.
No. 87-1021
mission
25, 1988),
(filed
Applica-
Aug.
at 2 [hereinafter
Fees,
Attorneys’
Application
Attorneys’
and
See note 55
Fees].
tion for
infra
19, at 3.
accompanying text.
accompanying
note 50
Id. at 2. See
infra
amount were
for 12
Included in this
text.
attorney
preparing the
spent
fees,
$6,200 as
application
for costs
Opposition
Response
to Peti
Respondent’s
per
compensation at the rate of
hour
$40
Attorney’s
Application
An Award of
tioner’s
logged 155 hours.
an "associate” who
services of
Costs,
Co. v.
Gas Transmission
Fees,
Fees and
Attorneys’
supra note
Application for
4, 1988)
(D.C.Cir.) (filed
Oct.
No. 87-1021
per-
app.
refers to this
B. The Commission
Opposition].
Respondent’s
(law clerk).”
at 4-6 [hereinafter
See
associate
son as "a summer
litigation
able,
that the Commission’s
hourly rate
attorney’s
because
reduced
statutory ceiling29
substantially justified.
position
the normal
surpassed
The Com-
unreasonable.30
District Court
and thus was
that in 1982 the
Raton noted
if
that even
suggested,
mission
sum-
hourly rate of
for a
approved
$35
more than the statu-
Raton were entitled
associate,41
maintained that with
mer
confer, the ad-
rate would
tory maximum
legal
significant escalation
the cost
“a
limited to a cost-of-liv-
justment should be
1982,” a
increase to
$40
services since
hourly rate of
ing
producing an
increase
“con-
reasonable but also
would not
$95.83.31
that “an al-
Raton declared
servative.”
argued
also
The Commission
for the time
hour
lowance
hourly rate was too
“law clerk’s” $40
writing
the Peti-
by the associate
Commission,
Raton, said the
had
high.32
Brief, reviewing Respon-
Initial
tioner’s
*4
this rate was “within the
not shown that
Brief,
preparation assisting in the
dent’s
range
prevailing market rates for law
Brief,
assisting preparation
Reply
and
comparable experience”33 nor had
clerks of
argument
justified.”43
for oral
regarding the
provided information
Raton
amplified its claim that the Com
Raton
salary.34 In the Commission’s
law clerk’s
principal
case was
mission’s defense
view,
for the law clerk’s work
the rate
“[respon
by characterizing
justified
not
salary
the clerk’s
rate.35
should not exceed
litigation position
part of a
dent's
[as]
maintained that
Finally, the Commission
deliberately engaged in
course of conduct
prevail
on all of the
since Raton did
(sic)
of its fee
court,
to obstruct sustantive
review
in this
issues raised
structure.”44 Raton observed that as soon
it was unsuccessful should
those on which
Phillips
eliminated.36
Petroleum
was
be
as
Co. FERC45
decided,
nearly doubled the
the Commission
reply,37 Raton conceded
In a tendered
fee,
again.46
and later increased it
Raton
against the Commis-
that taxation of costs
by “radically changing
magni
said that
Act,38
by the Natural
sion is forbidden
Gas
rule,
impact
then
tude of the
of that
request therefor.39 Raton
its
withdrew
changed impact
claiming that the
cannot be
proposed by the
accepted
also
the $95.83
impacted party
challenged
had
because
attorney’s
ceiling on the
Commissionas the
rule,”
insisted, however,
opportunity
its
lost
Raton
hourly rate.40
“
engaged
had
‘vexa-
hourly rate was reason-
the Commission
that the associate’s
accompanying
accompanying
text.
text.
See note 50
29. See note 25
38.
infra
Opposition, supra
Respondent’s
at 7.
30.
Respondent's
Reply of Petitioner to
Motion
Fees,
Attorney’s
Application
Ra
to Dismiss
for
31. Id. at 7-8.
ton Gas Transmission Co.
13, 1988),
(D.C.Cir.) (received Oct.
at 2 [herein
supra.
See note 21
32. Id.
Reply].
Petitioner's
after
Respondent’s Opposition, supra note
at 8.
40. Id.
F.Supp.
NAACP v.
35. Id. at 8-9.
(D.D.C.1981).
36. Id. at 9.
Reply, supra note
at 4.
42. Petitioner’s
leave to file out of time
37. Raton has moved for
opposition
reply
and mo
a
to the Commission’s
for Permission to File
tion to dismiss. Motion
44. Id.
Response
Respondent’s
Delayed
Motion to
Dismiss,
Co. v.
Raton Gas Transmission
(upholding
Supra
the uniform
note 7
4, 1988).
(D.C.Cir.) (filed
Ra
No. 87-1021
Oct.
filing).
a PGA
fee for
preparation and
of this
ton states that
reply
By
delayed by printer
malfunction.
was
Reply, supra note
at 5. See
grant
Petitioner’s
opinion,
order of even date with this
supra.
also note 9
Raton’s motion.
“unjusti-
reply to the Commission’s
action,”
of its
and thus
oppressive’
tious
all,
Raton
to dismiss.52
fied” motion
justification.
beyond the bounds
went
$15,188.53
fees
the amount
seeks
plea
the Commission’s
countered
Raton
spent on issues
of time
disallowance
Ill
was not successful
which Raton
Equal
to Justice Act autho-
The
Access
distinctly sec-
they
argument
that
fees to Raton
an award of
rizes
pre-
it
upon which
ondary to the issues
party” in the un-
“prevailing
it was
if
suggested,
Raton
vailed.48
litigation,
position
as-
derlying
unless
order,
a 15
partial disallowance
if a
“was
therein
the Commission
serted
appropriate.49
reduction would
percent
justified”
“special
or
circum-
substantially
discussion,
and con-
status
From this
unjust.”54
make an award
Our
stances
emerge more
parties’ dispute
tours
require-
these
is to determine whether
task
quest
its
has
clearly. abandoned
are met.
ments
costs
and lowered
of court
taxation
first need detain us
for mo-
fees. Ra-
requested as
amount
informs us that
Court
ment.
at the
allowed fees
now
ton
asks
“
“prevailing
‘plaintiffs
be considered
attorney’s ser-
hourly rate of
purposes
if
parties”
attorney’s
for the associate —a
per hour
and $40
vices
any significant
issue
they succeed on
$16,741.51
suggests
total
*5
litigation
some of the bene-
which achieves
by
percent
for
reduced
figure be
this
”55
bringing suit.’
parties
fit the
in
arguments,
unsuccessful
expended on
won
Indubitably,
issues
which Raton
the
include an additional
the award
that
but
cause,
to its
this court were crucial
preparation
in
in
hours consumed
for 10
[,]
39,
neys,
...
to
in addition to
costs
Reply, supra
[taxable]
at 5.
Petitioner’s
any
prevailing party in
civil action
the
agency
Id. at 6.
against
any
brought
... of the
...
...
having jurisdic-
any
States
in
court
United
...
Id.
United States shall
tion of such action. The
the same extent
liable for such fees ...
to
be
Act, U.S.C.
the Natural Gas
Section 22 of
any
party
under the
other
would
liable
that
(1982), provides
costs shall be
"[n]o
717u
that
§
any stat-
or under the terms of
common law
any judicial
against
in
the
assessed
Commission
specifically provides
such an
ute which
against
by
Commission under
proceeding
or
the
award.
Washington
Tulalip
v.
Tribes
this Act.” In
1987)
2412(d)(1)(A)
spec-
(Supp. V
U.S.C.§
Cir.1984),
1367,
(9th
cert.
749 F.2d
pertinent part:
ifies in
270,
900,
L.Ed.2d
106 S.Ct.
by
specifically provided
Except as otherwise
(1985),
as
the court held
statute,
prevailing
a
a
shall
to
court
award
recovery by
from
court costs are barred
well as
party
States fees
other than the United
Act, 16 U.S.C.
Federal Power
§ 317
any
expenses,
[taxable]
in addition
other
(1980),
provides
825p
almost identical
which
§
ly
...,
party
any
by
civil
in
costs
incurred
against
assessed
the
costs shall be
that “[n]o
tort),
sounding
(other
in
than cases
action
proceeding
any judicial
under
in
Commission
judicial
including proceedings
review of
circuit,
flatly
chapter."
has
This
action,
against
brought
the United
agency
...
Hirschey
interpretation.
rejected
having jurisdiction
any
of that
court
States in
action,
235, 237-239,
position
that the
the court finds
unless
307-309
substantially justified
States
of the United
was
special
make an award
circumstances
or that
Reply, supra
at 7. The
Petitioner’s
unjust.
($95.83
is
the
X
breakdown
=
=
$10,541)
($40.00
155 hours
X
+
Hensley
$6,200).
(quot-
76 L.Ed.2d
S.Ct.
Helgemoe,
278-279
ing
Nadeau
Id.
Cir.1978)).
(1st
in
im-
issues
While the
an-
the Court
plicated
42 U.S.C. 1988
in this
set forth
“[t]he
nounced that
standards
1987)
2412(b)
provides
(Supp.
cases in
generally applicable
V
in all
opinion
U.S.C. §
54. 28
are
part:
of fees
pertinent
Congress
an award
has authorized
in
which
”
statute,
party.’
at 433 n.
‘prevailing
by
a
prohibited
a
expressly
Unless
n. 7.
L.Ed.2d
n.
attor-
at 1939
fees ... of
award
court
reasonable
ultimately
by
that Raton’s
victories secured
the
lated
the Commission was
its twin
pursued
it had
drastic re-
very benefit
by
No.
was “foreclosed
[Order
—a
imposed upon
fee
Ra-
duction of the PGA
361],
by
as
shattered
well
[was]
Thus,
pipelines.56
ton and other small
Phillips
in
Tenth Circuit’s decision
Petrole-
prevailing par-
conclusion that Raton was
elucidated:
um Co.”62
Commission
Indeed,
ty
inescapable.57
plainly
forth
rule
set
[S]ince
otherwise; rather,
say
sion does not
it in-
methodology
calculating
position
underlying
sists that its
case
filings,
and also made clear that
sufficiently justified.
was
entities,
fee was to be uniform for all
justification
Substantial
is a reason
small,
large
except
special
in
circum-
recently
by
ableness standard
defined
waivers,
stances covered
individual
“justified
as
in
Court
substance
protest
consideration of Raton’s
would
main”,
“justified
high
rather than
or
necessarily involve a forbidden substan-
explained
degree.”58 The Court
that the
tive review of Order No. 361.63
“is no
from
standard
different
the ‘reason
arguments
59 At no time have these
been
able basis in law and fact' formulation[.]”
“justified
substance or main.”
[either]
criteria,
Measured
it cannot
these
position
said that the
of the Commission
As we stated on our review of the Com-
substantially justified.
mission’s refusal to alleviate the financial
fee-charging imposed upon
burden that
litigation position60
The Commission’s
ton,
ground
arguments
latter’s alternative
for re-
laid bare
“the
relied
[it]
litigation.”
approach
...
articu-
lief was that the amount of the contested
accompanying
Cong.
56. See note 19
text.
in 1980 U.S.Code
& Admin.News
4990;
H.R.Rep.
Cong.,
96th
2nd Sess.
—
Hudson,
Compare
Sullivan v.
(1980) (conference report).
21-22
—, —,
(1989) ("where a
court's remand to
*6
Underwood,
552, -,
58. Pierce v.
108
agency
proceed
the
for further administrative
2541, 2550,
490,
(1988).
101 L.Ed.2d
504
ings
necessarily
receipt
does not
dictate the
benefits,
normally
the claimant will not
attain
at -,
2550,
just as figure, by That Ra- not exceed $95.83.72 fair,” point Phillips Petrole- reasoning, to a fee of ton’s would translate Furthermore, did not address. um Co.68 remain, however, $10,541.73 There dis- fee,” “approval of an old the most putes relative to treatment of the time de- did, au- “does not Phillips Petroleum Co. Raton was not voted to issues which tomatically validity into translate successful, hourly rate for the and to fee,” against Raton leveled its new which addition, In of the law clerk. services thus of- Phillips attack. Petroleum Co. expended compensation for hours ton seeks Commission, to the fered no assistance “unjusti- responding to the Commission’s equally its invocation of Order No. 361 to dismiss.74 rely fied” motion The Commission did not unfounded. methodology
on the
set forth
request
hour
fees; merely
it increased its
order when
work,
hold,
is reasona
for the associate’s
stated,
explanation, “that the fees
without
Court and
both
ble.75
by use of the Com-
had been recalculated
*7
circuit,
recently
comparable rates—and
reporting
time
mission’s new
distribution
legal assistants of
boot,
higher
much
rates —for
fail-
system.”70 To
Commission’s
attorney’s hourly
might
rate
have been
64.
$100
Id.
precedent
approved
circuit
in view of recent
65.
Id.
cost-of-living adjustment
sustaining
upward
an
statutory
cap
for work
$75
$100.35
to
319-321,
at 617-619.
Id. at
attorney
by
See Jones v.
an
in 1988.
done
Lujan,
105,
U.S.App.D.C.
281
8,
110 & n.
887
321,
67. Id. at
F.2d at 619.
852
1096,
(D.C.Cir.
F.2d
1989).
1101 & n. 8
Supra
note
28,
Opposition, supra
at
Respondent’s
note
39,
7-8;
Reply, supra note
at 2.
Petitioner's
FERC, supra
69. Raton Gas Transmission
Co. v.
321,
3,
U.S.App.D.C.
F.2d at 619.
271
at
852
note
supra.
74. See note 45
320,
at
paralegals,
Legal
law clerks
such as
assistants
compensated
graduates are to be
and recent law
respective
rates. Missouri v.
market
at their
-, -,
60,
Jenkins,
ICC,
109
supra
note
269 U.S.
72. See Wilkett v.
2470-2472,
229,
2463,
257,
240-244
105 L.Ed.2d
App.D.C.
(permitting
F.2d at 875
at
844
194,
(1989);
278
cost-of-living
In re
to
hour
increase
982,
20,
D.C.). Indeed,
& n.
F.2d
992-993
attorneys Washington,
& n.
but
204-205
reduce,
agreement
for Raton’s
to
reviewing
identify
to
distinct
upheld.76
court
have been
We
similar caliber
however,
compensa-
claims.”78
Raton’s bid for
deny,
response
on its
for the 10 hours
tion
prevail on all of its
Raton did not
Since
dismiss,
to
and
motion
to the Commission’s
contentions,
reduc-
it is evident that some
therefor from the
deduct the
claimed
$958
is called for.79
tion in the amount
mo-
amount of the fee.
problems,
when we
encounter
justified;
virtually
clearly
tion was
how much time was
endeavor to ascertain
invited
motion
its meritless demand
by Raton’s unsuccessful activi-
consumed
costs,
hourly
rate for
for court
and for
identify the hours it
ties. Raton did not
attorney
statutory
exceeded the
its
claims;
instead,
particular
worked on
Moreover,
ceiling
re-
as increased.
tasks,
specific
according to
recorded hours
motion served to
ply to the Commission’s
briefs,
filing its
and
preparing
such as
and
points that the Commis-
confirm on several
preparing
argument.
for oral
difficul-
was correct.
sion
ty
compounded by
expended
hours
attorney
and the associate on the
both
determining
In
whether
how
same tasks.80
Raton’s claimed fee
much the rest of
reduced,
“[tjhere
should
we note
questioning
Raton raised two issues
making
precise
no
rule or formula for
validity
filing fee. Raton
of the PGA
The ... court
determinations.
any
imposition
first
resisted the
fee
[such]
attempt
identify specific hours that
pipeline
lowers its
whatsoever when
eliminated,
may simply
or it
re-
should be
price; Raton’s second
was to the
account for limited suc-
charging
duce the award to
cost-justification and fairness of
necessarily
regard
cess. The court
has discretion
large
uniformly
without
making
equitable judgment.”77
complexity
To
pipeline
size of the
or the
of its
matters,
instances,
applicant
ex-
simplify
filing.
“should
In both
Raton was com
pelled
‘billing judgment’
ercise
to address the Commission’s untime
worked,
billing
objection.
pressed
major
four
and should maintain
liness
records in a manner that will enable a
contentions and it succeeded on two—time-
75,
Jenkins,
identify
general
supra
v.
note
491 U.S. at
But at least counsel should
76. Missouri
-
10,
subject
expenditures.”
S.Ct. at 2472 &
his time
Id. at
& n.
n.
matter of
(hourly
n.
76 L.Ed.2d at
$35
L.Ed.2d 241-243 & n. 10
rates of
437 n.
tified.” TROUT, Individually and on
Yvonne G. Similarly of Others
Behalf
Situated, et al. GARRETT, III, Secretary
H. Lawrence al., Navy, Appellants. et
of the GARRETT, III, Lawrence
In re H.
Secretary Navy, Petitioner. 88-5264,
Nos. 89-5137. Appeals,
United States Court
District Columbia Circuit.
Argued Nov. Dec.
Decided Ryan, Atty., Asst.
Michael J. U.S. Stephens, Atty., D. Jay whom B. John Lewis, Bates, Attys., A. Asst. U.S. Wilma Schiffer, Atty. Acting E. Asst. Gen. Stuart Kanter, Justice, Atty., Dept, William brief, appellants in were on the petitioner in R. 88-5264 and No. 89-5137. Lawrence, Craig Atty. entered Asst. U.S. Secretary Navy, appearance et al.
Bradley G. McDonald and Daniel A. Rez- Karl, neck, with whom John F. Jr. and joint Ronald D. Lee were on the brief for respondent appellees in No. 88-5264 and No. 89-5137. BADER
Before RUTH GINSBURG SENTELLE, Judges, Circuit FRIEDMAN,* Judge. Circuit Senior * 294(d). Appeals to 28 U.S.C. Of the United States Court of Circuit, sitting by designation pursuant Federal