United States v. Eleven Vehicles

Here, Although we do the same. Annul- a spent great engaged

li has deal of time UNITED STATES of America out, discovery, as the Defendants point Annulli use pursue can this evidence to his VEHICLES, EQUIP- ELEVEN THEIR currently claims pending state law state ACCESSORIES; MENT AND All Therefore, judicial economy court. Monies Interests in Certain and/or suggest and convenience factors do not Accounts Banks or Certain other that the Court’s decision was an abuse of Institutions; Business; Financial One factor, discretion. As for the fairness Any Proceeds, & All from the Sales Pitchell, supra note instructive. An- thereof lawyers nulli his knowingly and risked dis- pendent missal of his claims they when Clyde Ivy; Wayne Radcliffe; Robert K. filed suit federal in- district court and Faulds; P. Ivy; Terrance Irene Klein discretionary supple- voked Court’s bard, Brecker; Bank, Bell & Mellon jurisdiction power. Lastly, mental comity N.A.; Valley Bank; Lebanon National allowing favors the state court hear Mary Ivy; Clyde Schuler; E. Gerald Annulli’s state law claims. On review of Ivy; Ivy; Radcliffe; Irene Elaine K. factors, these we find no abuse of discre- Radcliffe, Michelle E. Claimants tion accordingly and affirm the Court’s District Court decision not to supplemental juris- exercise Clyde Ivy Robert and 1367(c).14 Irene § diction under Ivy, Appellants. The judgment of the District Court will No. 99-1241. be affirmed.

United States of Appeals, Third Circuit.

Argued Oct. 1999. Decided Jan. 2000. 1367(c) eral he must have that judi- realized U.S.C. to determine whether jurisdiction pendent pos- convenience, he invoked was economy, cial and fairness to (citation omitted). sibly tentative.” Id. parties dictated that district court plaintiff's surviving pendent decide claims. result, attempt In an to avoid this Annulli " 14. suggested passing, See id. In we ’ifthe Horizons, cites decision our in Growth Inc. v. dismissal of the main action, claim occurs late County, Delaware 983 F.2d 1277 Cir. knocking[the dependant ... claims] 1993). Annulli's reliance on that case is mis- down rejection with belated Horizons, placed. In Growth the district jurisdiction may at not be fair.'" Id. already court had held trial on the merits (citation omitted). say on We did necessary all heard of the evidence however, presented, facts the district court plaintiff’s reach a decision on state law claim. pendent given must hear the claims these judgment rendering See id. at Before case, a fairness concerns. In Annulli’s trial claim, mistakenly on this the district court had, has not been and the District Court can- along dismissed federal judgment not render Annulli’s law on state subject jurisdiction. claim for want of matter Moreover, litigation. decision, claims without further See id. at 1284. We reversed this already plaintiff's Court has exercised its held that federal law claims were merit, that a on the without and instructed decided trial state claims is the district exercise under its discretion not warranted. fee-shifting

counsel under a statute. The presents grim reality case also feared Supreme “request States when it warned that a attorney’s fees should not result a sec major litigation.” Hensley ond v. Ecker hart, 424, 437, 461 U.S. (1983). specifically, More we presented challenge

are with a to the ade quacy of a supplemental attorney award of expenses performed fees and for work in in a post-judgment litigation civil for feiture proceeding initiated the United States in 1991 in the District Pennsylvania. Eastern District of After securing the prop court-ordered release of erty seized the United States Govern ment because it thought involved be activities, illegal money laundering ap pellants sought attorney expenses fees and in seeking property’s incurred release pursuant Equal to the Access to Justice (“EAJA”), 2412(d)(1)(A). Act 28 U.S.C. case, published In its fourth opinion the district court appellant awarded the $142,643.26 in attorney fees and $7963.51 in expenses covering through services Sep tember 1996. See United States v. (E.D.Pa. Vehicles, Eleven F.Supp. 1997) Eleven [hereinafter IV].1 Vehicles Subsequently, the appellants sup filed a Ivy, (Argued), H. Charles Law Office of $23,333.81 plemental request for in attor Ivy, H. Clyde Charles Counsel for Robert ney expenses fees and incurred $560 Ivy Ivy. and Irene September litigating after 1996 in Votaw, (Argued), Catherine L. J. Alvin expenses entitlement to fees and for the Stout, III, Stiles, Michael R. Office of the litigation. forfeiture The court Attorney, States Counsel for Unit- the appellants attorney awarded $5000 ed States of America. plus expenses. fees Disappointed, $560 NYGAARD, appellants, Clyde Ivy Robert Before: ALITO and ROSENN, Judges. Circuit Ivy, timely appealed. Irene We remand.

OPINION THE ANNOUNCING I. THE JUDGMENT OF COURT In October the Government filed a ROSENN, Judge. Circuit complaint for forfeiture of the assets of parties, including Appellants numerous appeal presents recurring prob This (“the concerning Clyde Ivy Ivy lem the amount of fees due Robert and Irene previously expenses 1. The district court had found that under the EAJA. See Eleven III, (E.D.Pa. 1996). appellants attorney were entitled to fees Vehicles The district court ordered the four-and-a-half- 1150-55. Over the next Ivys”). submit an itemized statement of piece-by- court ordered years, the trial by September counsel’s hours and rates proper- seized of all the piece release 30,1996. Id. at 1156. The submitted summary grants pursuant partial ties materials on that date. required September 1993 and October performed covered work These materials of the Govern- and a final dismissal through September on the case prejudice, complaint, ment’s forfeiture case, objections The Government filed to some dismissing in March 1996.2 requested fees. juris- retained these expressly purpose considering diction for the The Government filed a motion for re- attorney and ex- Ivys’ request fees consideration of the award of EAJA, and the penses pursuant filed a motion for expenses. motion for a “certificate of Government’s grant of a certificate reconsideration § reasonable cause” under U.S.C. cause the failure to of reasonable and cause, if The certificate of reasonable grant attorney fees at market rate. The the individ- granted, protected would have Ivys requesting also filed a motion the actually property uals who seized the at adjust hourly the billing court to rate owners, liability property to the issue from $112.28, by established the court for calcu- from re- prevent and would the claimants lating attorney the amount of fees owed to Government, the covering costs from Ivys, living. the to reflect upward cost though expenses. not fees or parties responses The filed to each other’s Ivys ap- motions. In November the 30, 1996, the court August On district the parently gave Government and the granted requested the certificate of rea- they court notice that intended at some held, however, It sonable cause. attorney future date seek fees and ex- attorney were entitled to fees at a penses performed Septem- for work after per expenses. rate of hour and to $112.28 26,1996. ber United, Vehicles, States v. Eleven (E.D.Pa. 1996) 30, 1997, May 1149-56 On court de- (.Eleven III). ruling Vehicles In on the nied the Government’s motion for recon- Ivys’ expenses, merely entitlement fees and sideration as a “rehash” of earlier “prevail- arguments litigation. court that the were a in the found As ing party” litigation, the Govern- motion for reconsideration of the litigating position grant ment’s had not been of the certificate of reasonable cause “substantially justified,” “special and no and the court’s denial of their entitlement rates, attorney existed that would render fees at market the court circumstances” also, consideration, attorney unjust.3 an fee Id. at after careful award denied jurisdiction substantially justified special 2. The district court had over this was or that cir- unjust. pursuant action cumstances make an award forfeiture to 28 U.S.C. (B) party seeking A an award of fees and §§ and 18 U.S.C. shall, thirty days 981(a)(1)(A), 981(a)(1)(C), 981(f). expenses other within §§ action, final in the submit to the application court an for fees and other ex- provides pertinent part: 3. The EAJA penses party pre- which shows that is a (A) Except specifically provid- as otherwise vailing party eligible and is to receive an statute, subsection, by prevail- ed a court shall award to a award under this and the amount ing party sought, including other than the United States fees an itemized statement from any expenses, any attorney expert representing and other in addition to costs or witness or (a), pursuant appearing party stating awarded to subsection incurred in behalf of the (other any party expended civil than actual time and the rate at which action tort), sounding brought by expenses computed. cases ... fees and other were The any having allege against party position court also that the United States shall action, substantially justified. jurisdiction United States was not of that unless 2412(d)(1). position the United States 28 U.S.C. finds that essentially telephone a restatement of earlier After a conference with coun- IV, arguments. parties, Eleven Vehicles 966 sel for the the court issued its However, F.Supp. at 363-66. the court decision. United States Eleven Vehicles (E.D.Pa.1999). V, granted Ivys’ request F.Supp.2d for a cost of living adjustment, revising compensa- Ivys’ supplemental court first held that the 59(a) hourly billing upward application ble rate not a Rule mo- $120.68. tion, Finally, accepted Id. at 366-67. the court but instead arose under the EAJA. objections one of Government’s narrow Id. at 238 n. 1. It then addressed the requested by Ivys, rejected application, merits of the considering the the remainder of the objec- supplemental application Government’s along as a whole tions, granted attorney fees for application 1182 with the first and fee award. $142,- hours of work in the amount of Id. at 239. The court stated that it took 643.76, and expenses the amount of into account all of the factors it had consid- $7,963.81. Id. at 367-69. determining ered in the first fee award. addition, the district court considered 27, 1997, August On submitted that “the involves to the district court a supplemental re- performed work on motions for reconsider- quest expenses fees and cov- ation of validity doubtful filed both ering performed September work after parties,” and that “the spent by 190 hours application, Ivys 1996. In this re- ‘excessive, appears counsel redundant and $23,333.81 quested compensation in fees as ” (citation otherwise unnecessary.’ Id. work, for 190.9 additional hours omitted). factors, Based on these expenses. in The Government op- $560.00 court awarded the an additional posed supplemental this request, arguing $5,000 in fees expenses. $560.00 requested supplemental payment that the The opinion district court’s did not address law, by any was not authorized and was in Ivys’ argument that the Government’s essence a motion under Federal Rule of opposition request untimely to their was 59(a) Procedure to alter or amend the Civil and should not be considered. 30, May 1997 award. Because such a re- quest days must be filed within 10 after II. judgment, the Government asserted that request untimely, was and the appeal, court’s On make several sub- 30,1997 sufficiently gen- March award was stantive arguments support of their as- adequate erous and to cover additional sertion that district court erred expenses awarding fees and accumulated between attorney them less fees than 26, 30, September addition, May they requested. they 1996 and 1997. In contend Further, the Government argued that the the court abused its discretion Ivys were not entitled to receive entertaining fees and the Government’s late-filed work, expenses post-judgment particu- opposing supplemental memorandum larly request attorney expenses. work related to the decision not to fees and appeal. Ivys responded argues take an The to The Government that the supple- is, essence, arguments, application the Government’s and in addi- mental fee a tion that the Government’s mem- motion to alter asserted or amend district 30, in opposition untimely May original orandum was and court’s fee award therefore should not be considered under Federal Rule of Civil Procedure 59(e).4 Accordingly, district court. the Government con- court, 59(e). However, case, In the the Government ar- in the there is district instant gued opposition Ivys’ supplemen- practical discrepancy. effect little to this Moreover, explicitly application application tal fee the court relied on Brown was Workers, 58, effectively a Int'l Bhd. Elec. AFL- motion to amend the court's find- Local of 59(d), CIO, (6th 1996), ings of fact under Fed.R.Civ.P. not 76 F.3d 762 Cir. which con- ment, due be- merely seeks what is to com- but obliged were that the tends therefore, is, judgment. that such It requirement Rule’s cause of ply with that days Rule governed by provisions “no later than of be filed motions 59(e). Fed. entry judgment.” after 59(e). Ivys’ supple- Because the R.Civ.P. 452-53, (quoting Id. at 102 S.Ct. 1162 approximate- was filed request mental fee Watkins, 795, 797 Knighton v. May entry after three months ly Cir.1980)). (5th Numerous other decisions fees, the 30, attorney Gov- 1997 award Court, this and oth- Supreme was un- that the ernment asserts ob- courts have made the same er circuit subject lacked timely, and thus the court servation. See Federal Communications court re- jurisdiction. matter Voters League Women Comm’n V, Eleven Vehicles

jected argument, this Cal., 373 n. 468 U.S. the Govern- F.Supp.2d at 238 n. (1984) (“a post- 82 L.Ed.2d 278 appeal this issue. ment did not attorney fees is not judgment request for It well settled that a mo appears to amend or alter the considered motion attorney is not a tion for 59(e)”).5 Rule under 59(e) v. New Rule motion. White Rule The Government asserts that Employment Securi Hampshire Dep’t of 59(e) be applies nevertheless this case 447-48, ty, 455 U.S. S.Ct. Ivys sought “judgment” cause the (1982) the Court addressed their supplemental “alter or amend” with requested petitioner in which the situation 30,1997 May the initial application attorney Rights fees under the Civil Attor However, award of fees. under Act, ney’s Fees Awards 28 U.S.C. White, May “judg 30 award was not a winning judg months after four-and-a-half v. Heck Cariledge ment” at all. See also respondent ment the merits. The ar on (N.D.Ill.1985) ler, 545, 546 governed by the motion was gued that (“[U]nder 2412(d)(1)(A), § un 28 59(e), U.S.C. limit of 10-day time Fed.R.Civ.P. statutes, fee-shifting der other the fee untimely. The and was therefore Su 59(e) really part award is addition to and not held that Rule preme Court Harris, v. 566 judgment.”); Watkins “only support reserved reconsideration (E.D.Pa.1983) (“[t]he 493, 495 properly encompassed of matters in a deci 451, and if attor shifting on the merits.” Id. at 102 S.Ct. EAJA is a fee statute sion awarded, they “a re are are in addi neys’ 1162. The Court concluded that fees ... quest attorneys legal judgment”); for raises tion to the amount of the cf. 498, collateral to the main cause of ac Crowley, issues Shultz v. 802 F.2d 500-05 59(e) (D.C.Cir.) (suit tion—issues to which Rule was never “pending” is final and not apply.” Id. It held that attor intended have been under the EAJA when merits ney “compensation” fees are not for the though post-judgment even motion decided injury suffered and are not an “element of unresolved), attorney for fees remains (D.C.Cir.1986), ‘relief denied, 806 F.2d 281 reh’g denied, 869,108 197, cert. 484 U.S. S.Ct. 98 attorney motion for fees is unlike a [A] (1987). The judgment. alter or a L.Ed.2d 148 motion to amend imply change judg- “judgment” It not a in the in this case was the district does 2551, (1996); 59(e). argument Samu- Rule S.Ct. 135 L.Ed.2d 1070 sidered the same under that it difference Corp., The court here stated saw no F.2d els v. American Motors Sales 969 (a) relying 573, Cir.1992); subdivi- (7th between on subdivision v. Colt 577-78 Schake Thus, (e) purposes Rule for of our sion 59. Corp. Plan Operating Severance Sal- Indus. review, discrepancy is immaterial. 1187, Employees, F.2d aried Hauck, Cir.1992); F.2d Cruz in accord are: Utah Women’s Other cases (5th Cir.1985). 1236-37 Clinic, Leavitt, (10th F.3d Inc. denied, Cir.1995), cert. 518 U.S. of the forfeiture proceed- ruling court’s dismissal That only post-judgment involved 59(e) fees, residual ings. only applies proceedings dealing Because Rule costs, and expenses.7 judgment, motions to alter or amend a it is inapplicable here. There currently dispute is no that the Ivys requirements satisfied EAJA’s

Moreover, even if an initial award of their initial attorney claim to fees and attorney “judgment,” supple- fees is a a expenses incurred in the underlying litiga- request expenses mental for fees and in- They tion. filed their claim thirty within during period curred of time different days after the final dismissal of the forfei- subsequent to the time period from ture case became unappealable. The dis- covered an initial fee award cannot be a trict thoughtful carefully 59(e) motion under Rule sup- because the opinion, written held Eleven Vehicles plemental request does seek to alter or III that were a “prevailing party” Rather, amend the initial award. such a in the litigation, forfeiture that the Govern- request only seeks to address fees and ment did not substantially justify liti- expenses prior not considered in the award gating position, and that there were no determination. See Brown v. Local “special circumstances” that would make Workers, AFL-CIO, Int’l Bhd. Elec. an unjust. award The Supreme Court has F.3d at 769-70. EAJA, held that under the once these Thus, question remains under findings are made a claimant need not authority what could the district court con relitigate these issues in later claims for sider the supplemental request for attorney Commissioner, fees. See Immi- expenses.6 fees and ap gration Jean, & Naturalization Serv. v. pear to contend 154, 158-62, 496 U.S. awas valid motion under (1990). Moreover, this court However, EAJA. misconstrue the has held that once an EAJA fee request timing requirements EAJA. The filed, timely has been “deficiencies in the requires party seeking EAJA that a an contents of the claim may be corrected if award of other expenses fees and shall government any prejudice cannot show application submit its to the court within arising from the later correction of these thirty days of in the ac States, deficiencies.” See Dunn v. United final 2412(d)(1)(B). tion. 28 U.S.C. The un (3d Cir.1985); 103-04 see also derlying “action” here is the Government’s West, Bazalo v. 1383-84 proceeding against Ivys’ forfeiture the (Fed.Cir.1998) (adopting this circuit’s rea- property. judgment” Dunn). The “final contem soning in The Dunn Court rea- statute, clear, plated by the it seems is the Congress soned that only envisioned one judgment dismissing pro that forfeiture cases, requirement strict in EAJA fee not, ceeding. Ivys argue, It is as the the namely that the court and the Government 30,1997 May ruling adverse on the parties’ put be on notice that the claimant seeks ancillary motions to reconsider matters. fees under the EAJA. 775 F.2d at 104. 146). only precise Entry 6. The other case to address the Dkt. # The concurrence states 58, question 30, at issue here was Brown v. Local August that the district court's 1996 deci- Workers, Int'l Bhd. Elec. AFL-CIO. See 76 judg- sion in Eleven Vehicles III was the final Although Appeals F.3d at 769. the Court of underlying ment in the forfeiture action. rejected for the Sixth Circuit in Brown the However, the court’s Eleven Vehicles III deci- appellants objections jurisdiction to the only post-judgment sion dealt issues an- explain district it did not on what basis cillary to the March 1996 dismissal of the applica the district court could consider an above, forfeiture case. As these discussed is- supplemental attorney tion for fees. finality no sues had effect on the of the March 26, judgment dismissing underlying the 7. The forfeiture action was dis- forfeiture action. prejudice judgment” missed with and "final 26, (See entered on March 1996. Dist. Ct. request. Ivys’ The ini- supplemental elements of Thus, jurisdictional the once clearly only fees request the fee covered attorney fees under tial claim for an initial shown, September through incurred expenses the strictures have been EAJA 26, request All aware at parties dictate when were do not the EAJA filed. In that the Gov- request fees must be was filed time supplemental for requirement timeliness for reconsideration of of a ernment’s motion the absence command, award, a Federal by statutory Ivys’ fee imposed Ivys’ right to a Procedure, applicable or an of the Govern- Rule of Civil motion for reconsideration rule, only time limitation “the local court a certificate of reasonable right ment’s equitable considerations cause, out of those Ivys’ arises motion for a cost of weigh in his judge may that a district compensable at- living adjustment Maryland v. Southern Hicks discretion.” pending rate remained be- torney billing 1165, Systems Agency, Health court. The Government fore the district Cruz, (4th Cir.1986); 762 F.2d at 1166-67 litigat- that in the course of acknowledges Bowen, 1286-38; also Smith see objections request to the first ing its Cir.1987) (7th (motion 1152, F.2d expenses, Ivys put for fees and governed Fed.R.Civ.P. on notice that court and the Government 54, apart limit “‘imposes no time which they right to submit a state- reserved of reason implicit requirement from an expenses ment of fees and incurred after ” (quoting Spray-Rite Serv. ableness’ Ivys appear 1996. The September Co., Corp. v. Monsanto requesting three months in delayed have (7th Cir.1982), on other expenses they aff'd. fees and because additional grounds, 465 U.S. S.Ct. they re- incorrectly believed that were (1984) (citation omitted))). L.Ed.2d days after quired apply to wait to until 30 approximately three The waited unap- May became May 1997 decision to months after Thus, say we cannot pealable. attorney fees. request supplemental court abused its discretion in con- district addition, fees and supplemental all of the sidering Ivys’ supplemental request.8 incurred, for were expenses applied Thus, Ivys’ challenges to the we turn Ivys, prior to the therefore known legal analysis, and their the district court’s May Ac court’s 1997 decision. that the court abused its discre- argument have could and should cordingly, failing tion in to address their contention request prior to supplemented their fee in op- that the Government’s memorandum in Eleven Vehicles IV. the court’s decision position request to their considerations, equitable Based on such have untimely and should not been had the district court refused to entertain considered. request Ivys’ supplemental because delay, three-month it would have III. to do. This is been within its discretion so especially given Supreme true Court’s assert that the district court Hensley that a admonition analysis ways in several its erred attorney not result in a second fees should request. fee Their ar- major Hensley, 461 at litigation. U.S. fol- guments essentially boil down to the 103 S.Ct. 1933. (1) justify the court failed to or lowing:

Nevertheless, that the claim submit- explain findings in the its the district court “excessive, redundant, or other- of its discretion chose to entertain ted was exercise it to do. The Government suggestion that it was award if chose so 8. The Government’s appeal January 1999 by Ivys' delay filing sup- free to prejudiced was also it to do so. It appeal supplemental award if chose plemental because it could not appear that the Government was rings The Gov- does not the final fee award hollow. Ivys’ delay. any way prejudiced by the appeal May 1997 ernment free to (2) unnecessary”; any wise court sua competence Ivys’ remaining chal- improperly granted attorney sponte fees in lenges to the district court’s decision. We requested an amount below that in the therefore are constrained to remand this absence of a Government challenge to the case to the district court explanation for an (3) amount; requested the court disallowed of its reasons for the fee award. At the granted hours worked and less than the time, same we believe it appropriate amount submitted without making the provide the district court with some guid- findings required by EAJA bearing Ivys’ ance on the other challenges. (4) 2412(d)(1)(C); the court failed to inquire particulars into the of the supple- A. request, mental fee relying instead on its “generalized sense” of what fee was rea- First, the Court stated in Commis sonable for the entire case. Our review of sioner, Immigration and Naturalization challenges legal such ap- standards Service v. Jean that “fees for litigation fee plied by the district plenary. court is See should be excluded to the extent that the Inc., Properties, Bell v. United Princeton applicant ultimately prevail fails to in such Cir.1989). litigation.” 10,110 496 U.S. at 163 n. S.Ct. The district court awarded the less case, In the instant Ivys request fees than requested for the fees for one unsuccessful claim—their mo supplemental proceedings at least in part ensuing tion and activity for the district spent because found that “the 190 hours court to grant reconsider its of a certificate ‘excessive, appears counsel redundant of reasonable cause to the Government. ” unnecessary.’ and otherwise Eleven Ve essence, litigated this motion the issue hicles, F.Supp.2d at (quoting Becker entitlement to costs for the Co., F.Supp.2d ARCO Chem. 633 underlying Nevertheless, forfeiture claim. (E.D.Pa.1998)). When this court reviews why there is no reason the Court’s admoni finding, presented such a it is with two tion about unsuccessful “fees for fee litiga “first, issues: whether the district court tion” apply equally does not to “fees for abused its discretion in concluding that the litigation.” cost Hathaway See v. United expended hours on a certain task were States, (9th 1995); F.3d Cir. Davis v. excessive; second, whether the district States, court abused its discretion in concluding (D.Colo.1995). Thus, are not enti that a certain number of hours would be a tled to fees for litigating this motion. reasonable number of hours to expend on task.” Rode v. Dellarciprete, 892 B. (3d Cir.1990). 1177, 1187 F.2d case, in the may Second, instant note that in this have circuit, been correct in its conclusions but may not reduce counsel regrettably explain did not how it reached sponte “excessive, redundant, fees sua Supreme them. The Court has instructed unnecessary” otherwise in the absence important that it is “for the district court of a sufficiently specific objection to the provide explanation concise but clear requested. amount of fees In statutory of its reasons for the cases, fee award.” Hens fee it is well settled in this circuit ley, 461 U.S. at “lodestar,” 103 S.Ct. 1933. We that in calculating the or initial held, situations, have in reviewing similar fee requiring calculation the court to multi to resolve these issues “the district ply a reasonable hourly the reason explain court must worked, on the record the rea able amount of hours the district ' Rode, sons for its decisions.” 892 F.2d at may court not award less fees than Indeed, 1187. explanation lack of requested opposing party unless it makes difficult for us to objections address with specific makes to the fee re- 212 Second, litigation fee is statutory “because Cunning- stated this court As

quest. no need to litigation, there is McKeesport, adversarial City ham v. a fee to reduce the district court allow been afford- party has opposing an when initiative.” Id. on its own raise a material award to opportunity ed represen- accuracy of fact issue as establishing ap Although cases necessi- or the spent, to hours tations as in calculat appear rule to do so this plying to and declines expenditure, ty for “lodestar,” that we believe ing so, permit- to us for reason occurs no do force to equal applies rule’s rationale uncon- disregard to the trial court ting applications post-judgment applicant. a fee by filed affidavits tested as it does litigation” for fee for “fees (3d Cir.1985), vacated on 758 F.2d the mer litigating for calculating fees due 1015, grounds, 478 U.S. other Only with underlying claim. its of the (1986), and reinstat- claimant know which notice can the proper (3d Cir.1986); ed, see also F.2d 49 More as reasonable. request defend 112, 118 McCarthy, 966 F.2d McDonald case, over, post-judg by this as evidenced Bell, Cir.1992); at 719. A “ remains adversarial. litigation ment fee may a fee court not ‘decrease district therefore binds precedent circuit’s This not raised at all based on factors award ” to reduce the fee court not Rode, 892 F.2d at party.’ an adverse in the ab requested sponte, sua amount 720).9 Bell, at (quoting Never objection. a Government sence of However, has opposing party once the theless, re prohibition sponte on sua this sufficiently specific objection to made a only challenges applies duction of fees court has a request, of a fee “the substance request. of a fee to the excessiveness adjust fee of discretion to great deal Here, objections to the the Government’s Bell, objections.” light of these award are more Ivys’ supplemental request 721. The rationale for this 884 F.2d at legal challenges appropriately described sponte on sua fee award reduc- prohibition attorney work that are types to certain First, sponte twofold. sua reduc- tions is compensable under simply never applicant right “to deprives tion Thus, agrees if the district court EAJA.10 the reason- support evidence offer work for which the Bell, categories F.2d at request.” ableness of the omitted). (internal compensable under request fees are not quotation marks paid Ivys even seek to be ment work. The exception to this rule is that the district 9. One may sponte reductions where giving make sua claimants' and the Government knowledge numbers, in- personal of the costs security required it has social counsel's aspects litigation, for in certain volved Treasury Department to write example presided over a where the court time it took to answer check and even the exactly hearing how or conference and knows confirming phone Treasury Department's proceeding in- time and effort much 7/22/97; (Exhibit call to counsel. Cunningham, F.2d at 267. volved. See 7/24/97, 7/30/97). example, exception appear would For bringing spent unsuc- Post time present to fees applicable in the case compensable; appeals cessful telephone conference over November award fees for the makes even less sense to presided. which the district court appeal. an decision not to take such [Grif- (D.Utah Strong, challenging 10. The Government's statement fin 1993)]. Further, to clerical time devoted Ivys request- categories which the of work for background research is nor- fees, activities and opposi- ed in its memorandum found mally and not billable included in overhead Ivys' supplemental for at- tion to the torney expenses, not be was as follows: clients. The Government should pay expenses. Id. held to such compensated for lim- seek to be above-quoted they rejected placed negotiations in which The Government ited rejected heading: and then “No Award for passage Government’s offer under the negotiate a settle- Appeal." Government's offer Post-Judgment Work Absent posl-judg- and other ment and for research EAJA, the fees re- D. prune it should the from its fee award. quested for this work Ivys claim that the Finally, the court court could have taken this Although the failing particulars erred in to look at the appear it to have made approach, does in from supplemental request, the isolation by conclusions invited any legal prior fee award. The court noted that challenges. On the con- Government’s Ivys’ in analyzing fee requested it that the fees trary, stated request, inquiring “rather than into the “excessive, redundant and otherwise were particulars of the second state itemized Therefore, remand, unnecessary.” on the ment, event, a separate and distinct sup- for the clarify court must its reasons unlinked to the factors that informed the in plemental response reward it made to in rulings Court’s the first itemized state Ivys. requested by the fees ment, will consider what overall expenses

award of fees and for all work case, performed counsel has in this will C. yield reasonable fee.” Eleven Vehicles V, Third, F.Supp.2d that court at 239. The court Ivys argue consid approach the hours ered this to be consistent with disallowing erred worked and Supreme direction that than the Court’s granting requested less with- EAJA “favors an in treating the case as making findings required out 2412(d)(1)(C), clusive whole rather than as atomized line- § provision U.S.C. Jean, (quoting items.” Id. 496 U.S. at It provides: EAJA. 2316). 161-62, 110 S.Ct. The district court court, discretion, may The reduce Supreme followed the Court’s direction. pursuant the amount to be awarded appears What the district court subsection, award, deny an to the this impose have had mind was the need to party during extent that the prevailing degree proportionality some between proceedings engaged course litiga the fees for the merits unduly unreasonably conduct which litigation. for fee At tion fees least protracted the final resolution of the appeals found one other court of has this controversy. matter an See important be consideration. 2412(d)(1)(C). § The claim 28 U.S.C. Tennessee, Coulter court, in required the rule (6th Cir.1986) (holding that district court discretion, finding of its to make a exercise limiting compen did not err in number of however, “dilatory Arguably, conduct.” attorney spent litigating sable hours just finding the court made such a when it merits), spent litigating to 3-5% of hours supplemental request “the involves stated denied, cert. 482 U.S. performed work on motions reconsider- (1987). At least one dis validity filed both ation of doubtful trict court in this circuit concurs. See V, parties.” F.Supp.2d Eleven Vehicles Auth., Philadelphia Housing Jackson at 239. (E.D.Pa.1994). 464, 477 A trial court should be free to view a case in Nevertheless, it is not clear from the manner, pragmatic subject opinion that it invoked its district court’s guidelines we have articulated here. We provision. opin- under this The discretion global court’s see no error the district 2412(d)(1)(C), ion makes no reference to claims for perspective of the any attempt and the court did not further fees. explanation of its conclusion that the mo- were “of doubtful

tions for reconsideration IV. therefore, validity.” The district also assert adequate on remand an provide should neglected its discretion when explanation. abused However, that the Govern- this court has not written on a argument consider depart to their court’s discretion to from opposition ment’s memorandum rule, for and ex- its own local whether that rule is request phrased discretionary mandatory untimely and should have penses was terms. Ivys The any received consideration. supplemental request on the served their Oelenschlager, ex Smith for by sending overnight it via Government ample, the district court dismissed the 26, Tuesday, August 1997 for courier on plaintiffs motion for a new trial because 27, delivery Wednesday, August on strictly failed to with a plaintiff comply required that the Govern- Local Rule 7.1 him requiring local rule to order a trial to motion be served opposition

ment’s transcript reporter. from the court at Id. days after service of on within Instead, plaintiff 1182-83. had sent a Ivys’ supplemental request. E.D. Pa. judge magis letter to the district and the 7.1(c). provides This local rule R. also assigned trate to whom the case had been timely response, the absence of a “[i]n requesting that one of them forward his may granted motion be as uncontest- reporter. to the court Id. We ” added). (emphasis ed.... Id. affirmed district court’s dismissal of 6(a) Rule of motion, Under Federal Rules unnecessary and found it Procedure, 14-day deadline for Civil reach the issue whether a district court serving opposition an to the motion ex- had discretion to entertain a new trial Wednesday, on pired September either though plaintiff motion even had failed contend, Friday, as the or on comply with the terms local rule. if September overnight courier However, See id. at 1184. Judge Mans delivery by mann, dissent, is considered service mail un- strenuously argued that Rules, der the Federal as the Government district courts have inherent discretion to observe, however, contends. As the depart from their own local rules where not matter does which these two dates justice requires, they so and have the re was the true deadline. The memorandum sponsibility to exercise that discretion. in opposition Monday, Sep- was served on (Mansmann, J., See id. at 1185-86 dissent 15, 1997, tember as the Government now ing). Regardless concedes. of whether over- Although the language of Local Rule night qualifies courier service as service 7.1(c) phrased mandatory re- terms mail, opposition the Government’s was not quiring party opposing a a file motion to

timely.11 Nevertheless, the district court response opposing brief within four- appears to have arguments considered the days motion, teen after service of the made therein. subsequent language of the rule does not play Local court rules a significant grant role mandate the the motion manage in the district courts’ efforts to timely absence of a motion and brief. rule, themselves and their “may,” dockets. Smith v. under the but is not mandated, Oelenschlager, 845 F.2d grant Cir. the motion as uncon- 1988). Accordingly, we have held that it is tested. Other courts appeal that have not an abuse of authority discretion for a district addressed the of a district court result, impose depart court to a harsh such uniformly from its local rule have dismissing a motion or an appeal, when a determined that district courts in- possess litigant strictly comply fails to with the depart. Somlyo herent discretion to See Enter., Inc., terms of a local rule. Id. at 1184-85. J. Lu-Rob (9th Cir.1996) (de eryear, 11. We need not decide whether service overnight requirements courier satisfies the scribing among debate federal courts and col obtaining days three additional "mail" cases). lecting 6(e). Magnuson under Rule See v. Video Yest (2d Cir.1991); depart States v. Diaz from the of its own strictures local (1st (1) Cir.) procedural 45-46 rules where it has a Villafane, 874 F.2d sound (2) “widely-accepted (noting applying so, idea rationale doing so doing should be that a district court accorded unfairly does not prejudice party who in applying pro latitude local considerable has relied on the local rule to his detri- making, own cedural rules of its and ment. them.”), denied, from cert.

departing case, In the the instant court failed to 177, 107 L.Ed.2d U.S. address the that the argument Gov- (1989); Agency, Dev. Braxton v. Bi-State ernment’s response untimely filed. (8th Cir.1984) (“It is Thus, we are unable to determine whether to for the district court determine what Therefore, the court abused its discretion. departures may from rules be overl its on remand the explain district court should ooked.”).12 per Some of these courts have apparent its waive 14-day decision to depart district to from mitted courts local 7.1(c). service Local requirement of Rule phrased rules even when the local rule is mandatory Somlyo, In language. Chief V. Circuit, Judge Oakes of the Second of Accordingly, the order the district rule, face a local mandatory of held: “The vacated, court will be and the case re- district court’s inherent discretion to de manded for findings explanatory state- part from the letter of the Local Rules opinion. ments consistent with this Each every regardless extends to Local Rule of side to bear its own on appeal. costs this particular specifical whether a Local Rule ly grants power to judge deviate ALITO, concurring: Circuit Judge, from the Rule.” F.2d at 1048. See also Braxton, 728 F.2d at I judgment, concur in the I Court’s but separately my write explain understand- clear,

Several of these courts have made of certain ing jurisdictional ques- threshold however, that is this discretion not unfet- tions and of the District Court’s task on tered. For the Second example, Circuit in remand. Somlyo stated that district court the application

“should ask whether I. letter of to a particular Local Rules case would cause an result.” 932 unjust F.2d at I majority’s cannot im- agree with 1049. The First Circuit Diaz-Villafane plicit conclusion issue of that the whether a rules, depart stated that to from its a court 59(e) timely Rule motion is filed must be “(1) must have for doing a sound reason sponte by noticed sua this Court. The (2) so, and that no party’s must ensure rejected government’s District Court unfairly rights jeopar- substantial are argument government Rule 59 did dized.” 874 F.2d at 46. Therefore, appeal not this issue. unless question generally timely filing implicated

We believe these courts are approach permitting subject jurisdic- correct a dis- District Court’s matter tion, requirement trict court a it is not this properly to waive before Court. I merely procedural local rules in believe that Rule 59 a appropriate circumstances. bar, limitations, a akin to a

We therefore hold that district court can statute that 12. Other cases slight power unimportant rules of are supporting of a court so depart court to its own rule are: Allen v. from that the sensible treatment is to overlook Co., Fidelity & Guar. States them.”); Parking William Penn Slanina v. 1965) (“It (9th Cir. is for court in Inc., (W.D.Pa. Corp., F.R.D. determine, pending except which a case is 1984) ("noncompliance with the local rules by by higher as it is set precedents bound may be court in its discre- excused authority hierarchy, judicial in its what own tion”). departures statutory prescription from do Rules of Procedure Federal Civil authority per- Court’s a District curtails ’ jurisdic- federal create or withdraw but does not to amend untimely motion

mit an tion.”). Flaum, for six writing jurisdic- Judge subject matter deprive it not Seventh Circuit evenly-split we need in an judges I think that Accordingly, tion. decision, question. point: merits of this elucidated reach the not 59(e) “[a]ny motion to provides Rule ... is not Subject jurisdiction matter filed no shall be a alter or amend appropriate approach necessarily the entry judg days after than later Sub- 10-day 59]. timeline of [Rule 59(e). Rule 6 fur Fed.R.Civ.P. ment.” is controlled jurisdiction matter ject “may provides ther labeled as such. explicitly statute taking any action” time for extend the styled not Rule 6 are Neither Rule 59 6(d). 59(e). Fed.R.Civ.P. Rule under Moreover, matter subject jurisdictional. by the sense, imposed limit the time informed concerns jurisdiction is de “mandatory jurisdictional.” rule is present concern is federalism. No such Inc., 703 Coop., Elec. v. la Fuente Central Congress intended here.... Had (3d Cir.1983) (quoting 63, n. 1 64 F.2d interpreted be period time 10-day Em Hampshire Dep’t v. New White jurisdiction, it would subject like matter (1st 697, See., F.2d 629 ployment 699-700 so; yet it was silent. have said Cir.1980)). Corp., Passenger R.R. v. National Varhol has the District Court Simply because Cir.1990) (en (7th 1557, 1569 909 F.2d filing the Rule 59 power no to extend banc) (Flaum, J., concurring). however, that the not mean does period, both the Su- Finally, I would note that subject jurisdict implicates matter rule recog- have and this Court preme Court terms, not Rule 59 does By ion.1 exception to Rule 59. equitable an nized matter, a subject but rather sets govern exception, “unique circumstances” This limitation on the mandatory procedural INS, 375 Thompson announced first to entertain a discretion District Court’s 404 11 L.Ed.2d 84 S.Ct. U.S. Dry dock v. motion to amend. Curacao Cf. (1964) curiam), permits litigant who (per (5th Akritas, 204, 206 Cir. M/V improperly issued on an extension relies 1983) 4(a), gov (construing Fed.R.Civ.P. appel- his perfect the District Court to proce timely appeals, notice of erning a Rule 59 motion by filing rights late subject matter implicating not dural but by the court’s period extended within merely Viewing Rule 59 as a jurisdiction). Kraus, Al- 899 F.2d at 1362. order. See accords with Rule 82’s procedural bar “[tjhese exception ap- does not though this narrow not be that rules shall mandate case, the mere fact that ply present jurisdic limit the to extend or construed equitable exception an shows there is States District Courts.” tion of implicate Arti- strictures do not 14 Fed Rule 59’s 82. See also Moore’s Fed.R.CivP. (“For “[e]q- (1999) jurisdiction: matter pur subject cle III § 82.02 eral Practice simply is not 82], tolling estoppel jurisdiction means sub uitable pose [Rule lim- jurisdictional there are in available when jurisdiction”) (emphasis ject matter Director, Shendock v. itations.” Equip. & Erection Co. original); Owen Office 893 365, 370, Programs, Compensation 57 Workers’ Kroger, 437 U.S. Cir.1990) (en banc). (3d (1978) (“It 1466 axiomatic that F.2d is L.Ed.2d (3d Corp., occasionally re- dated Rail Although this Court has Cir.1990). opinions "jurisdictional,” none of these used ferred Rule 59 as I believe that impli- rule only discussed whether the “jurisdiction” empha- these cases language See, e.g., subject jurisdiction. matter cates 10-day mandatory time nature size Operating Corp. Sever- Schake v. Colt Indus. limit, with Arti- imply connection not to some Employees, F.2d Plan Salaried ance jurisdiction. subject III matter cle 1992); Kraus v. Consoli- Cir. conclude, If, impli- as I Rule 59 does not finality requirement sized that the should given be “a subject jurisdiction, practical cate matter then this rather than a techni- cal construction.” Firestone Tire & Rub- required not to notice the issue of Court is 368, 375, Risjord, ber Co. v. 449 U.S. untimely filing on its own initiative. While (1981) (citation 669, 66 S.Ct. disagreement I have no substantive omitted). standard, Under this functional 59(e) that Rule the Court’s conclusion does “a ‘final generally decision’ is one which apply requests, I litigation ends the on the merits and leaves believe that we need not reach this issue nothing for the court to do but execute the the government preserve because failed to States, judgment.” Catlin v. United appeal. it for 229, 233, U.S. S.Ct. L.Ed. 911 (1945). noted, Pickup As the Ford II. grant the decision whether to a certificate agree I with the Court the District of reasonable cause is functionally part of jurisdiction had Equal under the judgment: merits may certificate be (EAJA) Access to Justice Act to consider granted only by judge presiding over Ivys’ supplemental request action; for attor- the forfeiture it binding on the would, however, ney expenses. parties any fees and I and bars future action for dam- ages; employ analysis a somewhat different and must be issued after soon entry of judgment, are reaching this before costs taxed. conclusion. See 56 F.3d at 1185. Most importantly, requires party The EAJA that a seeking grant decision of whether or not to application a fee award submit its to the questions certificate involves of fact and thirty days judgment court “within of final intimately law that are tied to the merits 2412(d)(1)(B). in action.” 28 U.S.C. S of the On forfeiture action.2 majority The holds that “the underlying basis, I believe that the relevant “judg- ‘action’ here is Government’s forfeiture ment” in this case—the one “which end[ed] proceeding.... judgment’ The ‘final con- Catlin, merits,” the litigation on the 324 ... templated by the statute is the[March 233, at August U.S. 65 S.Ct. 631—was the 26, judgment dismissing that forfei- 1996] 30, granting 1996 order the certificate of proceeding.” Maj. Op. ture at 209. The reasonable cause. majority then dismisses District EAJA, judgment” Under the a “final is August ruling awarding, Court’s 1996 judgment appeal “a that is final and not alia, inter a certificate of reasonable cause 2412(d)(2)(G). § able.” 28 The U.S.C. 30- government “ancillary” and “in- day period filing attorneys an EAJA volv[ing] only post-judgment pro- residual begin fee claim does not to run “until the ceedings.” Maj. Op. at 209. filing appeal time for a notice of [has] view, disagree. my I the order Sullivan, expired.” Baker v. 956 F.2d granting a certificate of reasonable cause (11th Cir.1992) curiam). (per Because “an ‘integral part’ judg- was of the final 59(e) parties filed Rule motions for ment on the even not though merits en- reconsideration of the District Court’s Au concurrently judgment.” tered with that gust judgment, appeal the time for did Pickup, v. 1986 Ford entry United States One begin to run until “the of the (9th Cir.1995) (per disposing F.3d cu- such motion order last riam). 4(a)(4)(C). Supreme empha- outstanding.” RApp. The Court has Fed. P. litigation against seizing prosecutors 2. The over the certificate of reason- officers or (if able cause cannot be dismissed as mere "cost § the case. See 28 U.S.C. certificate litigation." Although grant of the certifi- issued, person who made the is neither the preclude Ivy recovering cate did from costs prosecutor liable seizure nor the shall "be claim, it for the forfeiture also addressed sub- suit or on account of such suit or liability highly stantive issues of that would be prosecution”). Ivy relevant if chose to file a 1983 claim (3d Cir.1992); Rode v. Dellarci- Thus, in this case did 118-19 appellate door (3d Cir.1990); 1177, 1182 May prete, after the days until 60 not close Inc., motions for ruling Properties, on the Princeton adverse Bell United Cir.1989). R.App. P. See Fed. Permit- reconsideration. 4(a)(1) appeal limit for (setting 60-day ting free-ranging such discretion would un- party). is a cases where United States wisely carefully “the crafted set abandon supplemental fees motion for of rules for the exercise of district court of the end of the days filed within 30 was shifting in fee cases” for “some discretion it well within the period, placing appeals gestalt.” standardless rule of district statutory opportunity. window of EAJA’s City Cunningham McKeesport, supplemental I believe (3d Cir.1985). Because F.2d 30- motion was filed within statute’s remand, the District should be On limit, I no need to consider day time see (and explain opinion) free to consider could, in its whether District Court fee properly-challenged categories whether discretion, supple- entertain a later-filed light were “excessive” in of both the initial request. mental fee requests. How- ever, government’s allegation bare “in III. general spent terms that the time Finally, general agreement I am in not, view, in my enough excessive” is opinion I part III Court.3 empower the District Court to conduct however, separately, express my write generalized proportionality review of the “proportionality view that the review” al- Bell, entire fee award. See 884 F.2d at IIID part necessarily luded to limited scope. party Once an adverse has made sufficiently specific challenge partic- to a area, expense ular a District Court should

certainly previous look back to awards determining the reason-

the same area requested supplemental ableness America, UNITED STATES of sense, every fee. Plaintiff-Appellee, “global” entails a review of the entire fee award. MOSLEY, Timothy M. Defendant- not, however, opinion I do read the Appellant. Court to authorize District Court to No. 97-4901. plenary conduct a review of an entire EAJA fee award for “proportionality” Appeals, States general allegation based on a of unreason- Fourth Circuit. objecting ableness Such a party. Argued: Oct. reading would vitiate the well-established Decided: Dec. principle that a District Court cannot sua sponte per- order a reduction of what it See, e.g.,

ceives to be an excessive fee. McCarthy,

McDonald v. above, issues, see, agree particular e.g., Hensley 3. For the reasons stated I do not tion on III(A) majority’s part Eckerhart, conclusion U.S. S.Ct. grant the motion to reconsider of a when, (1983), especially as the merely "litigat- certificate of reasonable cause here, party District Court found Ivy's ed the issue of entitlement costs merely "rehashing” previous arguments “of Maj. for the forfeiture claim.” validity.” doubtful United States v. Eleven however, Op. agree, major- at 211. I with the Vehicles, (E.D.Pa. F.Supp.2d ity's general may point that the District Court 1999). litiga- decline award fees for unsuccessful

Case Details

Case Name: United States v. Eleven Vehicles

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 11, 2000

Citation: 200 F.3d 203

Docket Number: 99-1241

Court Abbreviation: 3rd Cir.