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
____________________

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TORRUELLA, Circuit Judge.

_____________
Walter and Clara Lawrence
court's

Defendants Judith Moreau and

("the landowners") appeal the district

thirty percent reduction of an

based upon

a failure

of the

award of attorneys' fees

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
in

prosecuting the initial fee

fees and expenses incurred

application.

We

affirm in part

and reverse in part.

I.
I.
BACKGROUND
BACKGROUND
__________
The
detail in

facts

the district

fee application in
Land,
____

of this

828 F.

certificate
Regulatory

of

104 Acres of
_____________

public

1993).

("FERC")

In 1986,

to

from

the

allow

Tennessee

Energy
Gas

construction on

the property.

1990, Tennessee Gas

to

gas on the

May 1989, FERC issued Tennessee

certificate for
and February

sought a

Federal

the transmission of natural

In

plaintiff-

Co. ("Tennessee Gas")

convenience

domain proceedings in the

order

(D. R.I.

Gas Pipeline

landowners' property.

seeking

with greater

Tennessee Gas Pipeline Co. v.

___________________________

construct facilities for

December 1989

forth

the principal

Commission

conditional

are set

court's opinion regarding

Supp. 123

appellee Tennessee

case

Gas a

In

brought eminent

district court against the landowners,

to obtain rights-of-way and

to construct and maintain
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a portion of

the natural gas

their land in
pipeline.

The

landowners retained
and

requested

rerouting

counsel to intervene in

FERC

to

modify

its

May

the FERC proceeding

1989

certificate

by

the final leg of the proposed line to utilize existing

rights-of-way.
proceeding

After proceedings

before FERC, Tennessee

in the

district court and

Gas changed the

route of its

pipeline and dismissed the eminent domain proceedings against the

landowners.
The
pursuant to

landowners moved

for costs

and attorneys'

the Uniform Relocation Assistance

and Real Property

Acquisition Policies Act ("Relocation Act"), 42 U.S.C.

seq.
____

On

August

25,

landowners attorneys'

1993,

the

district

fees,

court

fees but disallowed thirty

4601

awarded

et
__

the

percent of the

fees requested by the law firm of Simons & Simons ("Simons"), one
of the

two

found that

firms that

represented the

the firm failed

Tennessee

Gas paid

September

22,

the

1993, the

landowners, because

to adequately document

fee award
landowners

on September
filed

application seeking reimbursement for fees and

in prosecuting

the principal

from April 29, 1992, to

landowners filed

a notice of

its charges.
7,

1993.

On

a supplemental

fee

expenses incurred

fee application during

March 1993.

the period

On September 24,

appeal from

it

the district

1993, the

court's

order with respect to the principal fee application.

1994,

the

district

supplemental fee

court

entered

petition because the court

petition

was

untimely.

order.

In

April, this

The
court

ordered

denying

the

determined that the

landowners appealed

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consolidated.

judgment

On March 2,

that

the

March 2

both appeals

be

-5-

II.
II.
DISCUSSION
DISCUSSION
__________
A.
A.

Reduction in Attorneys' Fees

Reduction in Attorneys' Fees

The landowners sought an

fees

under

42

U.S.C.

4654,

award of costs and attorneys'

which

provides

that

in

condemnation action abandoned by

the condemnor, the court "shall

award" the

property owner "such sums

the

reimburse

court

such

owner

as will in
for

disbursements, and expenses, including

his

the opinion of

reasonable

costs,

reasonable attorney . . .

fees, actually incurred because of the condemnation proceedings."

The

landowners

mandatory
under

contend

that

language "shall

this

computation

section
of

is

hours

because

Section

award," an

award of

not discretionary,
should

insufficient documentation

be

uses

the

attorneys' fees

and

accepted

absent a

4654

even

landowner's
if

there

specific showing

is

of abuse.

We disagree.
Section

4654

"reasonable" costs
reasonably

provides

and fees.

open

the

for

the

reimbursement

This Court's opinions

question

of

precisely

how

of

"have left
the

judge

ascertains the number of hours reasonably expended" by counsel on

a case

in which

attorneys' fees are

Metropolitan Dist. Com.,

_________________________

847

F.2d

sought.

United States v.
______________

12,

(1st

(internal quotations and citation omitted).

trial

court

explanation
retain

to do

is make

of its reasons

concrete

16

"What

-6-

1988)

we expect the

findings, supply

for the fee award,

a sense of overall proportion."

Cir.

a clear

and most of all,

Id. (internal quotations

___

and

citations omitted).

court's fee award for

Accordingly, we

abuse of discretion.

review the

district

Foley v. Lowell, 948

_____
______

F.2d 10 (1st Cir. 1991).

The district
lodestar analysis
applications.

court indicated that it

in determining

would employ the

the reasonableness of

the fee

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
calculate

4654 does not

dictate an alternative

fees, the district court's use

method to

of the lodestar method

was proper.

Where a district court applies the lodestar method, the

fee-seeker must
claim. Id. at
___

usually provide a particularized

527.

"[T]he

time records, except

for

absence of detailed

in extraordinary

account of his

contemporaneous

circumstances, will

call

a substantial reduction in any award or, in egregious cases,

disallowance."
(1st Cir.

1984).

Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952

___________________
______
In order for

litigants to receive fee awards,

this court has

required that

accounting of the

they submit "a

full and

specific

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
were not sufficiently

court found that the

Simons' time sheets

detailed to enable the court

to determine

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whether

the fees

court stated
charges
with

were excessive or

that "[t]he

for such

duplicative.

time summaries

matters as

are replete

'Confer with

client,' 'Review materials,'

The district

with time

co-counsel,' 'Confer

Review documents,' and 'Legal

Research' without any indication of the subject matter involved."

The

district

court

explained that

impossible for the court

in

addition

to gage whether the task

to

making it

performed was

warranted, the failure to include some description of the subject

matter of the
factor

task made it

allocated was

impossible to determine if

appropriate

or excessive.

The

the time

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

The court did not
fees

was justified in reducing the

abuse its discretion by reducing

claimed by Simons by

thirty percent.

fee award.

the award of

We therefore affirm

the district court's reduction of Simons' attorneys' fees.

B.
B.

Prejudgment Interest and other Costs

Prejudgment Interest and other Costs

In

the

proceedings

landowners requested
1992, the date
The

The

prejudgment interest

that

court's
and the

district

court,

court, the

motion for fees

opinion

was opposed
makes

April 29,

and costs.

by Tennessee

no

mention

district court's judgment

prejudgment interest.

the

district

and costs from

prejudgment interest

district

include any

the

interest on fees

they had filed their

request for

Gas.

before

The landowners

without

comment

of

did not

also contend

and

apparently

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inadvertently, failed to include in the award an item of $889 for

two

"round-trip"

airfares

between

Washington,

D.C.,

Providence, R.I., to permit counsel for the landowners

a settlement
project.

conference

According to

and

a meeting

the landowners,

on

the

to attend

Tennessee

the vouchers

and

Gas

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
for

its

denial

of

the

did not advance any reasons

landowners'

request

for

prejudgment

interest, or the cost of the airline tickets, we will remand this

case to the
landowners

district court so that it

are

entitled

to

may determine whether the

prejudgment

interest

and

to

reimbursement for the cost of the airline tickets.

C.
C.

Supplemental Fee Application

Supplemental Fee Application

In

its memorandum

supplemental fee application,

and order

denying the

landowners'

the district court indicated

that

ordinarily a litigant should have one opportunity to obtain fees,

but that "[t]here is no reason
be supplemented to the

why a pending application may not

time the court acts on

The

court acknowledged that there is

for

filing fee

the application."

no stated time requirement

applications included

in 42

U.S.C.

4601, et
__

seq., but stated that there must be some time limit within
____
applications
Supreme

must

be filed.

Court has

indicated

The

court

that fee

pointed out

which

that the

applications should

not

result in secondary litigation, Commissioner, I.N.S. v. Jean, 496

____________________
____
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U.S. 154, 163

(1990), and

this principle, Par s v.

_____
F.2d
"if

236, 241 (1st

[the

expected that a third

The

12,

application

was approved,

application will be made for

that "[h]ere the

1993, 29

embraced

district court stated that

it

days

must

The court

second application was

after

the

be

the services

connection with this second application."

then pointed out

September

Circuit has

U.S. Dept. of Housing & Urban Dev., 988

__________________________________

Cir. 1993).

landowners']

rendered in

that the First

court's formal

filed

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
the

reimbursement for legal services rendered before

court determines a fee application should be made before the

court acts on the

foregone."

application, otherwise reimbursement should be

The court then concluded that the second application

for fees came too late.

The landowners
Property

Acquisition

contend that neither

Policies

Act

nor

any

statute imposed a time requirement for filing a

and

therefore, by

district

denying

their application

the Uniform
other

Real

applicable

fee application,
as untimely,

the

court in effect enunciated a new rule which it unfairly

applied

retroactively to

position,

the

supplemental

the landowners.

landowners

argue

In support

that

the

of their

amount

of

the

fee claim was unknown at the time the principal fee

-10-

application
known

was submitted,

precisely

what the

principal application
determine the

was resolved.

this

awarded fees.

could not

have

claim was

until the

Therefore, they

could not

submit a supplemental

record shows, that

1993 -- 4 1/2

the landowners

amount of

amount, or

until they had been

and the

and

The landowners

they advised the

fee application

also contend,

court on

months before its preliminary fee

March 3,

application and

almost six months before the court entered its judgment regarding
the

preliminary fee

application

-- that

they

would submit

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
fee

application.

In

before the court acts on

the

present case,

the principal

however,

where

the

district

court

had

requirement,

where

writing

their

of

application, and
award

not
the

previously
landowners

intention

to

articulated
had advised
file

where Congress has directed

landowners their

incurred because

reasonable

of aborted

costs

and

this
the

novel

court

supplemental

in

fee

district courts to
attorneys'

condemnation proceedings,

fees

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

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the landowners' supplemental fee

application, and remand for the

district court

reasonable fees to

to determine the

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.
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