2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-19-2005

Interfaith Comm Orgn v. Honeywell Intl

Precedential or Non-Precedential: Precedential

Docket No. 04-3702

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Interfaith Comm Orgn v. Honeywell Intl" (2005). 2005 Decisions. Paper 292.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/292
1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-3702

 

INTERFAITH COMMUNITY ORGANIZATION;

LAWRENCE BAKER; MARTHA WEBB HERRING;

MARGARET WEBB; REV. WINSTON CLARKE;

MARGARITA NAVAS

v.

HONEYWELL INTERNATIONAL, INC.

formerly known as ALLIEDSIGNAL, INC.;

RONED REALTY OF JERSEY CITY, INC.;

RONED REALTY OF UNION CITY, INC.;

W.R. GRACE & COMPANY; ECARG, INC.;

W.R. GRACE, LTD.

W.R. GRACE & COMPANY; ECARG, INC.;

W.R. GRACE, LTD.,

 Defendants/Third-Party Plaintiffs

v.

HELLER-JERSEY CITY, L.L.C.;

HOME DEPOT, U.S.A.;

SEAMAN FURNITURE COMPANY, INC.,

 Third-Party Defendants

HACKENSACK RIVERKEEPER, INC.;

WILLIAM SHEEHAN

v.
2

HONEYWELL INTERNATIONAL, INC.

f/k/a ALLIEDSIGNAL, INC.;

RONED REALTY OF JERSEY CITY, INC.;

RONED REALTY OF UNION CITY, INC.;

W.R. GRACE, LTD.

Honeywell International, Inc.,

 Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Nos. 95-cv-02097 & 00-cv-01451)

District Judge: Honorable Dennis M. Cavanaugh

 

Argued June 30, 2005

Before: RENDELL, BARRY, and BECKER, Circuit Judges.

(Filed: October 19, 2005)

THOMAS H. MILCH

DANIEL A. CANTOR (ARGUED)

Arnold & Porter LLP

555 12th St., N.W.

Washington, DC 20004

RICHARD G. TARANTO

Farr & Taranto

1220 Nineteenth St., N.W.

Suite 800

Washington, DC 20036

DAVID W. FIELD

Lowenstein Sandler PC

65 Livingston Ave.

Roseland, NJ 07068
3

Attorneys for Appellants

BRUCE J. TERRIS

CAROLYN SMITH PRAVLIK 

KATHLEEN L. MILLIAN (ARGUED)

SARAH A. ADAMS

LEMUEL B. THOMAS

Terris, Pravlik & Millian, LLP

1121 12th St., N.W.

Washington, DC 20005

Attorneys for Appellees,

Interfaith Community Organization, et al.

JOHN M. AGNELLO

Carella, Byrne, Bain, Gilfillan, Cecchi

Stewart & Olstein

5 Becker Farm Road

Roseland, NJ 07068

CHRISTOPHER H. MARRARO

Wallace, King, Marraro & Branson

1050 Thomas Jefferson Street, N.W.

Suite 500

Washington, DC 20007

Attorneys for Appellees,

W.R. Grace & Co., et al.

 

OPINION

 

BECKER, Circuit Judge.

This case stems from a lawsuit filed by Interfaith

Community Organization (“ICO”) against Honeywell

International seeking the cleanup of a heavily polluted area
4

along the banks of the Hackensack River in Northern New

Jersey. ICO prevailed at trial, and, as a result, moved for

attorney fees pursuant to 42 U.S.C. § 6972(e). The District

Court, after holding a hearing on the motion, awarded ICO over

$4.5 million in fees. Honeywell now appeals this award, raising

a number of issues.

First, Honeywell argues that the District Court erred in

awarding fees based on prevailing market rates in Washington,

DC, where ICO’s attorneys practiced, rather than in northern

New Jersey, where the suit was litigated. We agree with

Honeywell that, under normal circumstances, a prevailing

party’s attorneys should be compensated based on market rates

in the vicinage of the litigation. However, if a prevailing party

can show that it required the particular expertise of counsel from

another vicinage, or that local counsel were unwilling to take on

the litigation, then it will be entitled to compensation based on

prevailing rates in the community in which its attorneys practice.

The District Court concluded that ICO had satisfied both

of these exceptions. While we do not agree that ICO satisfied

the first exception, we are satisfied that the District Court’s

finding that ICO had satisfied the second exception was not

clearly erroneous. We will therefore affirm the District Court’s

decision to award compensation based on prevailing market

rates in Washington, DC. Concomitantly, we find that ICO is

entitled to compensation for the travel time of its attorneys as

well as the reasonable fees of its local counsel.

Honeywell also submits that the District Court erred in its

determination of prevailing market rates in Washington, DC. 

Specifically, Honeywell contends that the District Court

erroneously awarded compensation based on a matrix of hourly

rates produced by ICO’s attorneys. While we question the

accuracy of the matrix supplied by ICO’s attorneys, we

nonetheless conclude that the District Court’s finding in this

regard was not clearly erroneous. For this reason, we will affirm

the District Court’s determination of the appropriate hourly

rates.

In addition, Honeywell challenges several aspects of the

fee award as excessive or unjustified. Honeywell contends that

ICO’s attorneys and its expert witnesses devoted too many hours

to a variety of tasks, and that the District Court failed to conduct
A thorough recitation of the facts giving rise to the 1

underlying action can be found in our recent decision in Interfaith

Community Organization v. Honeywell International, Inc., 399

F.3d 248 (3d Cir. 2005) (ICO I), cert. denied, 125 S. Ct. 2951

(2005).

5

a sufficiently thorough review of the hours claimed by ICO’s

attorneys and expert witnesses. We agree that the District

Court’s review was inadequate, and hence we will vacate those

aspects of the award challenged by Honeywell, and remand for

further proceedings. We also agree that the fee request was

excessive, but do not quantify our conclusion on this point,

leaving its resolution to the District Court on remand.

Honeywell challenges the District Court’s decision to

award fees for the costs of overtime and temporary workers. 

We conclude that the District Court’s decision to do so was not

an abuse of discretion, and we will therefore affirm that aspect

of the award. Honeywell also submits that the District Court

erroneously awarded ICO compensation for time spent by

experts who did not testify at trial. Because we conclude that

the relevant statute permits such awards, we reject this

contention. 

Honeywell argues that the District Court erroneously

awarded ICO fees for certain time spent by its attorneys

litigating against the other defendants in this suit. We agree

with Honeywell that the District Court failed to determine

whether the time in question was actually related to ICO’s suit

against Honeywell, and will therefore vacate this aspect of the

award and remand for further consideration. Finally, Honeywell 

challenges the District Court’s decision to award ICO nearly

$150,000 in photocopying costs based on a rate of twenty cents

per page. Because we conclude that this rate is excessive, and

because we find that the District Court did not conduct a

thorough review of the number of copies claimed by ICO’s

attorneys, we will vacate this portion of the award and, again,

remand for further proceedings.

I. Background Facts and Procedural History1
6

Mutual Chemical Company of America, at one point the

largest chrome manufacturer in the world, operated a plant in

Jersey City, New Jersey from 1895 to 1954. During much of

this time, Mutual dumped industrial waste residue containing

high concentrations of hexavalent chromium, a known

carcinogen, in wetlands along the banks of the Hackensack

River. Over time, Mutual dumped around 1.5 million tons of

waste, which ultimately developed into a separate land mass “15

to 20 feet deep, on some 34 acres.” ICO I, 399 F.3d at 252. 

The dumping ended in 1954 when Mutual sold the plant to the

Allied Corporation. Allied was later succeeded by AlliedSignal,

Inc., and then by Honeywell. No significant effort was made to

clean the site for almost three decades.

In 1982, the New Jersey Department of Environmental

Protection (NJDEP) initiated efforts to clean up the site. After a

largely unsuccessful attempt to fashion a temporary solution,

NJDEP filed suit against AlliedSignal seeking to force the

company to take action. In 1993, the parties agreed to a consent

order under which AlliedSignal agreed to pay $60 million to

clean up the site.

The cleanup was slow in getting started. As a result, ICO

and five residents of the surrounding community brought suit

against AlliedSignal and several other defendants under the

citizen suit provisions of the Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B). That section

permits individuals to bring suit against any person “who has

contributed or who is contributing to the past or present

handling, storage, treatment, transportation, or disposal of any

solid or hazardous waste which may present an imminent and

substantial endangerment to health or the environment.” 

Following a two-week bench trial, the District Court ruled in

favor of ICO and issued an injunction requiring Honeywell

(which had succeeded AlliedSignal by that time) to clean up the

site. A panel of this Court affirmed the District Court’s

decision, see ICO I, 399 F.3d at 252, and the Supreme Court

denied certiorari, see Honeywell Int’l, Inc. v. Interfaith Cmty.

Org., 125 S. Ct. 2951 (2005).

In its opinion granting injunctive relief, the District Court

also granted ICO attorney fees pursuant to 42 U.S.C. § 6972(e),

which provides that, in actions brought under RCRA, the court
One of the initial defendants was ECARG, a subsidiary of 2

W.R. Grace & Co., which owns part of the site. ECARG filed a

successful cross claim against Honeywell, and the District Court

found that ECARG was therefore entitled to attorney fees as well.

In the same opinion granting ICO $4.5 million, the District Court

granted ECARG over $7.3 million. That award is not before us.

7

“may award costs of litigation (including reasonable attorney

and expert witness fees) to the prevailing or substantially

prevailing party, whenever the court determines such an award

is appropriate.” ICO then filed a Fee Application seeking 2

reimbursement of $4,706,506.09 in fees; in a subsequent filing,

it reduced its request to $4,587,990.22. Following extensive

briefing and a hearing, the District Court found that ICO was

entitled to $4,530,327.00 in fees. See Interfaith Cmty. Org. v.

Honeywell Int’l, Inc., 336 F. Supp. 2d 370, 404 (D.N.J. 2004) 

Honeywell then filed a timely notice of appeal.

II. Appellate Jurisdiction

The District Court properly exercised jurisdiction

pursuant to the RCRA, 42 U.S.C. § 6972. The parties submit

that the August 26, 2004, order of the District Court was a “final

decision” and that we therefore may exercise jurisdiction under

28 U.S.C. § 1291, which grants us jurisdiction to review “all

final decisions of the district courts.” A fee award is not

appealable until it is reduced to a definite amount. See Polonski

v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir. 1998). 

There is no dispute that the August 26, 2004, order reduced

ICO’s fee award to a definite amount for the period leading up

to the verdict in this case. However, in two subsequent orders

dated August 30, 2004, and June 15, 2005, the District Court

granted ICO additional fees to cover the expenses of litigating

the first fee application. 

In the June 15, 2005, order, the District Court granted

ICO an additional $362,505.44 in fees. Moreover, the District

Court indicated in its August 26, 2004, opinion that it would

consider a later application for fees relating to the costs of

monitoring the cleanup. The question thus arises as to whether
By letter dated August 30, 2004, ICO notified the District 3

Court that it made a minor error in calculating the final fee award.

(The Court held that ICO was not entitled to compensation for

$541.08 relating to “local travel expenses,” but it neglected to

deduct this amount from its final award.) Honeywellsuggests that

the District Court may have treated thisletter as a motion to amend

the judgment pursuant to Rule 59(e) or a motion to correct a

clerical mistake pursuant to Rule 60(a), either of which might call

into question the validity of the notice of appeal. See Fed. R. App.

P. 4(a)(4)(B)(i). However, there is no evidence in the record that

the District Court construed ICO’s letter as a motion under either

Rule 59 or Rule 60, so we conclude that it is not a bar to our

jurisdiction. Because the District Court does not appear to have

acted on this letter, we will vacate the portion of the award relating

to the error noted by ICO.

8

these later orders and declarations deprive us of jurisdiction,

which we always have the independent duty to consider. See

Richman Bros. Records, Inc. v. U.S. Sprint Communications

Co., 953 F.2d 1431, 1446 (3d Cir. 1991).3

The Court of Appeals for the Ninth Circuit addressed a

similar set of facts in Gates v. Rowland, 39 F.3d 1439 (9th Cir.

1994). In concluding that it had jurisdiction over a partial fee

award, that Court observed:

The facts weigh in favor of review now. Legal

issues determined at this stage will smooth the

process for future awards. The fees orders are

final, and the defendants must pay the plaintiffs’

counsel. The compliance period has not been

limited to a definite time frame, thus review could

be postponed for many years, if not granted now.

The defendants suggest that the periodic motions

before the district court could be grouped annually

for possible appeals. We encourage the district

court to group the motions in some such manner.

However, we hold that the claim presently before

us is reviewable.
We recently distinguished Gates in In re Diet Drugs Prods. 4

Liab. Lit., 401 F.3d 143, 157 (3d Cir. 2005). In Diet Drugs, we

noted that “future adjustments (if any) to the [fee award being

appealed] will include services that have been performed as well

as those to be performed in the future.” Id. at 157 n.24. Such is

not the case here, as the August 26, 2004, order definitively

resolved ICO’s fee request for the period in question.

To fix the size of a prevailing party’s fee award, a court 5

must determine the appropriate billing rate forthe party’s attorneys

as well as the number of hours those attorneys reasonably

expended on the action. See Blum v. Stenson, 465 U.S. 886, 888

9

Id. at 1450. We are persuaded by this logic. In a complex 4

environmental action such as this, monitoring will likely

continue well into the future. Were we to conclude that § 1291

bars jurisdiction over awards such as this, we would delay

meaningful appellate review for years if not decades. Such a

holding would contravene the Supreme Court’s admonition that

“the requirement of finality is to be given a ‘practical rather than

a technical construction.’” Gillespie v. United States Steel Corp.,

379 U.S. 148, 152 (1964) (citation omitted).

We therefore conclude that, in a complex and ongoing

action such as this, § 1291 should not act as a bar to our exercise

of jurisdiction over a fee award which resolves all fee claims for

the period leading up to a verdict. In so holding, we do not

decide whether we will have jurisdiction over any possible

appeals from future fee awards, but note our agreement with the

sentiment expressed in Gates that a district court is well-advised

to group such awards so as to allow for meaningful appellate

review.

III. The Appropriate Hourly Rate: The Forum Rule and its

Exceptions

A. Introduction

The general jurisprudence governing the calculation of

an award of attorney fees and the standard of appellate review is

familiar, and we summarize it in the margin. What is less clear

5
(1984) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). The

product of an attorney’s hourly rate and the number of hours spent

is referred to as the “lodestar.” See, e.g., Student Pub. Interest

Research Group v. AT & T Bell Labs., 842 F.2d 1436, 1441 (3d

Cir. 1988) (“SPIRG”); see also Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 478 U.S. 546 (1986).

A party seeking attorney fees bears the ultimate burden of

showing that its requested hourly rates and the hours it claims are

reasonable. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d

Cir. 1990). To initially satisfy this burden, “the fee petitioner must

‘submit evidence supporting the hours worked and rates claimed.’”

Id. (quoting Hensley, 461 U.S. at 433). If it wishes to challenge

the fee award, the opposing party must then object “with sufficient

specificity” to the request. Id. Once the opposing party has

objected, the party requesting fees must demonstrate to the

satisfaction of the court that its fee request is reasonable. In

reviewing a fee application, a district court must conduct “a

thorough and searching analysis.” Evans v. Port Auth. of N.Y. &

N.J., 273 F.3d 346, 362 (3d Cir. 2001). Such an analysis is

essential, for without it we cannot engage in meaningful appellate

review.

On appeal, we review a district court’s grant of a fee award

for abuse of discretion. See Rode, 892 F.2d at 1182. In doing so,

we will not upset a district court’s factual determinations,

including its determination of an attorney’s reasonable hourly rate

and the number of hours he or she reasonably worked on the case,

unless we find them to be clearly erroneous. Evans, 273 F.3d at

358. However, we subject the legal standard employed by the

district court in calculating these values to plenary review. Id.

10

from this jurisprudence is the question central to this appeal,

which is whether courts should award fees to out-of-town

counsel based on prevailing hourly rates in the forum of the

litigation or those in the vicinage in which the fee applicant’s

attorneys practice law.

The District Court concluded that ICO’s attorneys, who

did not charge the organization for their services, were entitled

to compensation based on prevailing rates in Washington, DC,
Ironically, the attorney fee applicant in SPIRG was also the 6

Terris firm.

11

where they practiced, rather than in northern New Jersey, the

litigation forum. Honeywell contends that this conclusion was

erroneous.

B. The Relevant Market; The Forum Rate Rule

ICO was represented at trial by Terris, Pravlik & Millian

(“the Terris firm” or “Terris”), a Washington, DC public-interest

firm that specializes in complex environmental cases. We have

held that public-interest law firms that typically charge clients

below-market fees, or no fees at all, are nonetheless entitled to

compensation based on prevailing market rates in the relevant

community. Student Pub. Interest Research Group v. AT & T

Bell Labs., 842 F.2d 1436, 1448 (3d Cir. 1988) (“SPIRG”). In 6

SPIRG, we concluded that this rule (the “Community Market

Rate” rule) represented “the best compromise among the

conflicting policies behind the fee shifting statutes” and that it

was “the simplest, most workable rule [available].” Id.

What SPIRG did not resolve, however, was how we

choose the “relevant community” for purposes of determining

the appropriate billing rate for a public interest law firm. In this

case, there are two obvious choices: Washington, DC, where the

Terris firm is located, or northern New Jersey, where the

underlying suit was litigated.

Two decades ago, we commissioned a Task Force on

court-awarded attorney fees that addressed this and numerous

other questions. The Task Force recommended that we adopt

the “forum rate” rule, whereby an “out-of-town lawyer would

receive not the hourly rate prescribed by his district but rather

the hourly rate prevailing in the forum in which the litigation is

lodged.” Report of the Third Circuit Task Force on Court

Awarded Attorney Fees, 108 F.R.D. 237, 261 (1985). The Task

Force recommended that deviation from this rule be permitted

“only when the need for ‘the special expertise of counsel from a

distant district’ is shown or when local counsel are unwilling to

handle the case.” Id. (footnote omitted).
12

In recommending that we adopt the forum rate rule, the

Task Force observed that it was “contrary to current Third

Circuit practices,” id., citing our decisions in Cunningham v.

City of McKeesport, 753 F.2d 262, 267 (3d Cir. 1985) and In re

Fine Paper Antitrust Litigation, 751 F.2d 562, 590-91 (3d Cir.

1984). In Fine Paper, we reviewed a decision by the District

Court for the Eastern District of Pennsylvania to award attorney

fees based on a three-tiered hourly rate structure which did not

take into account the market in which the attorney actually

practiced. See 98 F.R.D. at 83. We reversed, finding that “the

approach taken by the trial court in this case, of applying

hypothetical national rates to all attorneys, regardless of the

market rate they would command in the community in which

they practice, was legal error.” 751 F.2d at 591. We further

observed:

Our premise has been that the reasonable value of

an attorney’s time is the price that time normally

commands in the marketplace for legal services in

which those services are offered.

Id. at 590. 

The locution “the marketplace for legal services in which

those services are offered” is somewhat opaque, and, in the

wake of Fine Paper, panels of this Court have, consistent with

the Task Force’s recommendations, applied the forum rate rule. 

In Public Interest Research Group v. Windall (“PIRG”), we

concluded that Fine Paper and other relevant cases did not

“establish[] a per se rule in favor of the market rate for the

community in which the law firm is located. Indeed, we think

these cases eschew any rigid rule.” 51 F.3d 1179, 1186 n.9 (3d

Cir. 1995); see SPIRG, 842 F.2d at 1442 n.4 (“This opinion

should not be construed, however, as endorsing a fee based

upon an outside market rate at variance with the market rate of

the site of the litigation, for we do not reach that issue.”). In no

case since the Task Force Report was issued have we set aside a

decision employing the forum rate rule on the ground that earlier

decisions require courts to award fees on the basis of prevailing

rates in the community in which the attorney practices.

ICO nonetheless argues that Fine Paper held that the
13

relevant community for determining an attorney’s billing rate is

where the attorney practices, not the locus of the litigation.

Thus, to the extent that these later cases conflict with our

holding in Fine Paper, ICO claims that they impermissibly

attempted to overrule that earlier decision. It is well settled in

this Circuit that a three-judge panel may not overrule a decision

by an earlier panel. See Third Circuit Internal Operating

Procedure 9.1; O. Hommel Co. v. Ferro Corp., 659 F.2d 340,

354 (3d Cir. 1981). Thus, if ICO is correct that Fine Paper held

that we look to an attorney’s place of business to determine his

or her hourly rate, then we must follow that decision. We do not

think that it so holds.

As noted above, Fine Paper held that it was error for a

district court to apply “hypothetical national rates” in

determining the size of a fee award. Thus, Fine Paper does not

answer the question we address today, which is whether a court

should look to prevailing rates in the attorney’s home

community or the locus of the litigation in determining the

appropriate compensation for an out-of-town attorney. We

agree with the Task Force that, in most cases, the relevant rate is

the prevailing rate in the forum of the litigation. We therefore

hold that district courts in the Third Circuit should award

attorney fees based on the “forum rate” rule as set forth in the

Task Force Report.

As noted above, the forum rate rule recommended by the

Task Force contains two exceptions: first, “when the need for

‘the special expertise of counsel from a distant district’ is

shown”; and, second, “when local counsel are unwilling to

handle the case.” 108 F.R.D. at 261 (footnote omitted). Both of

these exceptions are sensible. Thus, when a party can show that

it qualifies for either exception, the Court may award attorney

fees based on prevailing rates in the community in which the

parties’ attorneys practice. The District Court held that ICO

satisfied both exceptions, and it therefore awarded fees based on

prevailing rates in Washington, DC. We now turn to this issue.

C. Exceptions to the Forum Rate Rule

The District Court found that ICO had shown that it

required the expertise of the Terris firm and that, moreover, no
14

firm in northern New Jersey would have been willing to

represent ICO in its action against Honeywell. A decision by a

district court that a party qualifies for one or both of the

exceptions to the forum rate rule is a factual finding that we may

not upset unless we find it to be clearly erroneous; however, we

will not affirm if the District Court failed to make the necessary

factual findings.

1. Whether ICO demonstrated a need for “the special expertise

of counsel from a distant district”

The District Court’s discussion of the first exception is

extremely brief. It noted that Terris had extensive experience

litigating similar environmental suits, and that all other parties

involved retained Washington, DC counsel. Yet in so doing, the

District Court failed to address the precise issue, namely the

extent to which other counsel practicing in northern New Jersey

did or did not possess “special expertise” in order to represent

ICO. The fact that Terris was suited to such representation does

not imply that firms from northern New Jersey were not. 

Similarly, the fact that all parties retained counsel from

Washington, DC is not directly relevant to the question whether

New Jersey counsel had the necessary expertise to represent

ICO; indeed, as Honeywell notes, its trial counsel was from

New Jersey. 

The record is devoid of any evidence that ICO conducted

a significant search for counsel with the ability to handle this

case. According to an affidavit filed by Joseph Morris, ICO’s

Lead Organizer, ICO contacted a very small number of attorneys

as part of its efforts to retain counsel in a cognate case, ICO v.

Shinn. Morris’s affidavit recounted that he approached and was

turned down by Christopher Placitella of Wilentz, Goldman &

Spitzer; Father Eugene Squeo of Schiller Squeo and Hartnett;

Edward Lloyd of the Rutgers Environmental Law Clinic, who

served as ICO’s local counsel in this case; Charles Warren of

Berle Kass and Case in New York City; and Barbara Olshansky

of the Environmental Defense Fund in New York City.

Given that there are hundreds of firms in northern New

Jersey that identify themselves as practicing environmental law,

we do not think that such a search is adequate to justify
Honeywell argues that the District Court applied an 7

incorrect legal standard in “holding that a fee applicant can meet its

burden of proving the unavailability of forum counsel where the

fee applicant has made no attempt to retain forum counsel in the

case at issue” and that we therefore may exercise de novo review.

We disagree. The District Court applied the proper legal standard

in that it focused its analysis on whether ICO had shown that “local

counsel are unwilling to handle the case.” In challenging the

District Court’s reliance on the Morris Affidavit, Honeywell is, in

essence, challenging the District Court’s weighing of the evidence

in making a factual determination.

15

concluding that ICO needed to turn to Terris because no

attorney in the region had the necessary expertise to represent

ICO in this action. Indeed, we would have great difficulty in

accepting that no attorney in northern New Jersey possessed the

ability—as opposed to the willingness—to handle a case such as

this. We therefore agree with Honeywell that ICO failed to

make the necessary showing, and that the District Court failed to

make the necessary finding, that no local counsel had the

expertise necessary to represent ICO. We thus cannot affirm the

District Court’s conclusion that ICO qualified for the first

exception.

2. Whether ICO demonstrated that local counsel 

were “unwilling to handle the case”

In contrast, the District Court did make the proper

finding with regard to the second exception, and we will

therefore review this determination for clear error. In 7

concluding that ICO had shown that local counsel were

“unwilling to handle the case,” the District Court relied

primarily on the Morris affidavit, which recounted the

organization’s efforts to find counsel in Shinn, a lawsuit filed

against various state officials in an effort to compel government

action to clean up chromium pollution in Hudson County, New

Jersey. As discussed supra, Morris stated that ICO contacted at

least five attorneys in northern New Jersey and New York, all of

whom declined to take on the case.
ICO argues that its efforts to recruit counsel in Shinn were 8

part of a larger effort to obtain counsel to represent it in suits

seeking to clean up chromium pollution in Hudson County, and

that these efforts were not limited to Shinn. While it concedes that

Terris partner Bruce Terris admitted at oral argument that ICO’s

efforts were limited to Shinn, it claims that he “mis-spoke.” The

District Court found that ICO’s earlier efforts were limited to the

Shinn case and not part of a broader effort. Because we conclude

that the District Court’s conclusion that ICO satisfied the second

exception was not clearly erroneous, we need not address this

question.

16

Morris’s affidavit stated that he did not recall the specific

justifications given by the attorneys for declining to represent

the organization, but it did list his “general impressions” of their

reasons: “the cases involved too much political risk (Governor

Florio would be a named defendant), or too much intensive

factual work, or too unfamiliar legal terrain. Since ICO could

not afford to pay attorney’s fees or costs, the firms also

expressed concern over absorbing the costs associated with

litigating a case which they feared might become very large and

expensive.”

As a result of its inability to find representation, ICO

filed Shinn pro se. After it became clear that it could not

proceed on that basis, the organization contacted the Terris firm,

which agreed to take on the case. Soon after it agreed to

represent ICO in Shinn, Terris agreed to represent ICO in this

action.8

The District Court relied primarily on Morris’s affidavit

in concluding that ICO had shown that local counsel were

unwilling to represent it in this action. In addition, Terris points

to an affidavit from Edward Lloyd, who previously served as the

director of the Environmental Law Clinic at Rutgers School of

Law and acted as local counsel for Terris. Lloyd stated:

11. At the time this suit was initiated, I was not

aware of any attorneys or law firms who would

have been willing to assume the risks of litigating

cases of this type, particularly without
ICO argues that this case involved political risk as well, 9

inasmuch as it is “an indictment of the state’s mishandling” of the

efforts to clean up the site. This seems dubious. At all events, the

17

contemporaneous payment for their services and

expenses. Nor was I aware of any New Jersey

firms with any experience litigating environmental

issues on behalf of plaintiffs. I was aware of a few

sole practitioners who litigated environmental

issues on behalf of plaintiffs. However, none of

them was in a position to handle litigation of this

magnitude, particularly without compensation for

even their out-of-pocket expenses.

12. In fact, my experience through 29 years of the

practice of environmental law in New Jersey is

that the Terris law firm and the Rutgers

Environmental Law Clinic are the only two firms

that have brought citizen suit cases in federal court

on behalf of citizens without contemporaneous

payment of fees and expenses. The only exception

of which I am aware is a single citizen suit during

this period of time brought by a small Newark

firm on behalf of a labor union. The firm has

since broken up. I do not know if the labor union

paid the attorneys for this suit. The suit did not

involve anywhere near the size, complexity and

cost of this litigation.

While the Lloyd Affidavit provides significant support for

ICO’s contention that local counsel were unwilling to represent

it in this action, the District Court did not mention it in

concluding that ICO satisfied the second exception.

Honeywell argues that the District Court erred in finding

that ICO had satisfied the second exception absent a showing

that ICO sought counsel in this particular case. In particular,

Honeywell claims that it was unreasonable to rely on the

unwillingness of local counsel to represent ICO in Shinn, as that

case involved a factor—political risk—not present here. We

agree. However, ICO submits that political risk was just one of 9
political risk involved in Shinn was certainly greater than the risk

involved in this case.

18

the reasons given by the various attorneys contacted by Morris

for declining to participate in that action.

We do not believe that the District Court’s conclusion

that ICO satisfied the second exception to the forum rate rule is

clearly erroneous. What persuades us is the Lloyd affidavit,

insofar as it states that no attorney in northern New Jersey would

have been willing to handle this case without an immediate

advance of out of pocket costs which, in this case, foreseeably

amounted to over one million dollars. In this respect, the Terris

firm is a “rare bird.”

Because we conclude that the District Court’s

determination that ICO satisfied the second exception to the

forum rate rule was not clearly erroneous, we will affirm its

decision to award fees based on prevailing rates in Washington,

DC.

D. Determination of the Appropriate Hourly Rate for the District

of Columbia; the Laffey Matrix

We have settled that to determine “the prevailing market

rates in the relevant community,” a court must “assess the

experience and skill of the prevailing party’s attorneys and

compare their rates to the rates prevailing in the community for

similar services by lawyers of reasonably comparable skill,

experience, and reputation.” See Loughner v. Univ. of

Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001) (citations and

internal quotations omitted). The party seeking fees “bears the

burden of establishing by way of satisfactory evidence, in

addition to [the] attorney’s own affidavits . . . that the requested

hourly rates meet this standard.” Id. (citations and internal

quotations omitted) (alterations in original). In its fee

application, ICO requested compensation based on an updated

version of the so-called “Laffey Matrix,” and the briefing and

arguments on the hourly rate issue have been totally within the

Laffey Matrix framework. Accordingly, for better or worse, our

discussion of that issue will be within the framework as well.
The original Laffey Matrix reimbursed attorneys at the 10

following rates:

- $ 175 an hour for very experienced federal court

litigators, i.e., lawyers in their 20th year or more

after graduation from law school; 

- $ 150 an hour for experienced federal court

litigators in their 11th through 19th years after law

school graduation;

- $ 125 an hour for experienced federal court

litigators in their 8th through 10th years after

graduation from law school; 

- $ 100 an hour for senior associates, i.e., 4 to 7 years

after graduation from law school; and 

- $ 75 an hour for junior associates, i.e., 1 to 3 years

after law school graduation.

572 F. Supp. at 371.

19

The Laffey Matrix, which takes its name from the case in

which it was first employed, Laffey v. Northwest Airlines, 572 F.

Supp. 354 (D.D.C. 1983), aff’d, 746 F.2d 4 (D.C. Cir. 1984),

overruled in part on other grounds by Save Our Cumberland

Mountains v. Hodel, 857 F.2d 1516, 1525 (D.C. Cir. 1988) (en

banc) (“SOCM”), provides billing rates for attorneys in the

Washington, DC market with various degrees of experience. 

The initial Laffey Matrix, set forth in the margin, was based on 10

prevailing market rates from 1981-1982. The parties do not

dispute that the Laffey Matrix was a valid index of prevailing

rates in Washington, DC at that time.

The Laffey Matrix was subsequently updated through

1989 pursuant to a settlement by the parties in SOCM. See

Trout v. Ball, 705 F. Supp. 705, 709 n.10 (D.D.C. 1989). The

use of the SOCM-updated Laffey Matrix has subsequently been

approved by judges on the District Court for the District of

Columbia. See, e.g., id. (“Although the updated matrix was

never expressly approved by the court because the parties settled

the issue of fees, it does provide an accurate and updated

schedule of attorney fees in this District.”); Sexcius v. District of
 Years of Attorney Experience Hourly Rate 11

20+ $549

11-19 $456

8-10 $404

4-7 $280

1-3 $228

paralegals $124

The U.S. Attorney’s Matrix yields the following rates for 12

2003-2004:

Years of Attorney Experience Hourly Rate

20+ $380

11-19 $335

8-10 $270

4-7 $220

1-3 $180

20

Columbia, 839 F. Supp. 919, 924 (D.D.C. 1993). In its fee

application, ICO requested payment based on the rates in the

SOCM-updated Laffey Matrix, further updated to 2003-2004. 

In updating the matrix to account for inflation from 1989-2003,

ICO relied on the legal services component of the nationwide

Consumer Price Index (“the Legal Services Index”), a measure

of inflation in the cost of legal services maintained by the

Bureau of Labor Statistics. We rescribe in the margin the rates

produced by ICO’s methodology.11

Honeywell argued in the District Court and before us that

the proper measure of hourly rates in Washington, DC can be

found in a separate matrix maintained by the Office of the

United States Attorney for the District of Columbia. That

matrix is based on the original Laffey Matrix from 1981-1982,

also adjusted for inflation. However, in updating this matrix,

the U.S. Attorney’s Office uses the Consumer Price Index

(“CPI”) for the District of Columbia. But there is no available

data on the legal services component of the District of Columbia

CPI. Since the District of Columbia CPI is typically lower than

the Legal Services Index, the rates in the U.S. Attorney’s

Matrix, also rescribed in the margin, are lower than those in

ICO’s proposed matrix. The use of the U.S. Attorney’s Laffey 12
paralegal $105

Obviously we are not bound by the decisions of these 13

judges, but we certainly accord them substantial weight on this

peculiarly local question.

21

Matrix as a measure of billing rates in Washington, DC has been

approved on numerous occasions by courts in the District of

Columbia Circuit. E.g., Covington v. District of Columbia, 57

F.3d 1101, 1109 (D.C. Cir. 1995); Piper v. United States Dep’t

of Justice, 339 F. Supp. 2d 13, 24 (D.D.C. 2004).

The District Court reviewed both indices and decided

that ICO’s represented a better measure of prevailing rates in

Washington, DC. In so doing, it relied on a decision by the

District Court for the District of Columbia, Salazar v. District of

Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000), which compared

the U.S. Attorney’s Laffey Matrix with a matrix similar to that

put forward by ICO in this case and concluded that the latter

method was superior. Salazar is one of the few decisions

approving the use of this approach, and it is, according to ICO,

the only decision (prior to the District Court decision in this

case) comparing the two approaches.

The determination of the appropriate billing rate is a

factual finding which we review for clear error. See SPIRG,

842 F.2d at 1455-56; Black Grievance Committee v.

Philadelphia Electric Co., 802 F.2d 648, 652 (3d Cir. 1986),

vacated on other grounds by 483 U.S. 1015 (1987). Both

parties agree that the original Laffey Matrix is an appropriate

starting point from which to determine prevailing billing rates in

Washington, DC. As stated above, the updated Laffey Matrix

relied on in SOCM has been met with approval by judges in the

District of Columbia Circuit. But the question remains whether 13

ICO’s method of updating the Laffey Matrix is acceptable.

Honeywell contends that “the overwhelming use of the

U.S. Attorney Laffey matrix . . . by federal courts in the District

of Columbia” requires that we employ the U.S. Attorney Matrix

as well. The District Court rejected this argument, observing:

“Moreover, that the number of cases approving the U.S.

Attorney’s matrix is large is of no moment, because those fee

applicants did not challenge the appropriateness of the U.S.
22

Attorney’s matrix.” 336 F. Supp. 2d at 388 n.4. We do not

believe that the number of cases approving the U.S. Attorney’s

matrix is “of no moment,” but we do agree with ICO that the

simple fact that numerous courts in the District of Columbia

have upheld the U.S. Attorney’s Matrix as a reasonable measure

of billing rates is not a sufficient ground for us to conclude that

reliance by the District Court on ICO’s updated Laffey Matrix

was clearly erroneous.

In this regard, it is relevant that in none of those decisions

cited by Honeywell did the court engage in a comparison

between the competing methodologies advanced in this case. 

Indeed, the District Court for the District of Columbia recently

observed that the U.S. Attorney’s Laffey Matrix “is a concession

by that office of what it will deem reasonable when a

fee-shifting statute applies and its opponent prevails and seeks

attorney fees. That concession relieves that office from having

to litigate the market rate in the hundreds of fee-shifting cases

that it defends.” See Adolph Coors Co. v. Truck Ins. Exch., Civ.

No. 04-2150, 2005 U.S. Dist. LEXIS 17538, at *11-*12

(D.D.C. Aug. 23, 2005). 

Still, we recognize that the burden is on ICO to show that

the rates it proposes are comparable to the “‘rates prevailing in

the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.’” Loughner, 260

F.3d at 180 (3d Cir. 2001) (quoting Rode v. Dellarciprete, 892

F.2d 1177, 1183 (3d Cir. 1990)). As with the question whether

ICO satisfied the exceptions to the forum rate rule, we are

underwhelmed by the evidence relied on by the District Court in

concluding that the rates ICO proposed satisfied this standard. 

That said, and while we recognize that the statistics ICO relies

on are in no way specific to attorneys who practice

environmental law, we are satisfied that the methodology relied

on by ICO in updating the Laffey Matrix was reasonable. 

In addition, we note that ICO submitted the results of a

2002 survey from the National Law Journal showing high and

low billing rates for numerous firms (including several in

Washington, DC) that are largely consistent with the rates it

proposes in its matrix. While the article, standing alone,

provides little support for ICO’s proposed matrix, it does further

bolster our conclusion, which is that the District Court’s
Despite so declaring, we add the observation that any 14

index that is updated based on a statistical measure of

inflation—rather than regular recalibration in light of prevailing

rates—will tend to diminish in accuracy over time. For this reason,

district courts in this Circuit should be assiduous in evaluating fee

requests in light of all the evidence.

23

findings were not clearly erroneous. Accordingly, on remand, 14

the District Court may use ICO’s proffered Laffey Matrix to

calculate the Terris firm’s hourly rates. 

IV. Travel Time and Costs of Local Counsel

Honeywell challenges the District Court’s decision to

award ICO fees for its costs of travel and travel time, as well as

fees for its local counsel, Edward Lloyd. We agree that, under

normal circumstances, a party that hires counsel from outside the

forum of the litigation may not be compensated for travel time,

travel costs, or the costs of local counsel. However, where

forum counsel are unwilling to represent the plaintiff, such costs

are compensable. Therefore, because we have affirmed the

District Court’s conclusion that forum counsel were unwilling to

represent ICO in this action, we affirm the District Court’s

decision to award compensation for travel time, travel costs, and

the costs of local counsel. Of course, local counsel should be

compensated based on prevailing rates in the forum of the

litigation.

Honeywell also disputes the District Court’s

determination that ICO’s attorneys were entitled to

compensation for their travel time at their full billing rate. 

According to Honeywell, the District Court should have

compensated the travel time of ICO’s attorneys at 50% of their

regular rate. In support, Honeywell notes that some courts in

other jurisdictions have held that travel time should not be

compensated at the same rate as time spent engaged in

meaningful work. E.g., Clark v. Phillips, 965 F. Supp. 331, 336

(N.D.N.Y. 1997). In response, ICO argues that the opportunity

cost of travel time is the same as that of time spent working on

the case, and that hours spent traveling should be compensated at
To the extent that ICO’s attorneys did actual work on this 15

case while traveling, that time should be incorporated into other

portions of the fee award.

24

an attorney’s full rate.

We addressed this issue in Planned Parenthood of

Central New Jersey v. Attorney General of State of New Jersey,

297 F.3d 253, 267-68 (3d Cir. 2002). In that case, we held that,

in order to determine the rate at which attorneys may be

compensated for their travel time, “a court must look to the

practice in the local community.” Id. at 267. In this case, since

we have concluded that the Terris firm is entitled to

compensation based on prevailing rates in Washington, DC, the

District Court should have determined whether attorneys in

Washington are typically compensated for their travel time at

their full billing rate. The District Court did not make any such

finding, so we will vacate and remand this portion of the

award.15

V. ICO’s Claimed Hours

A prevailing party is not automatically entitled to

compensation for all the time its attorneys spent working on the

case; rather, a court awarding fees must “decide whether the

hours set out were reasonably expended for each of the

particular purposes described and then exclude those that are

‘excessive, redundant, or otherwise unnecessary.’” PIRG, 51

F.3d at 1188 (citation omitted). Thus, in reviewing the hours

claimed in a fee application, a district court must conduct a

“thorough and searching analysis” to identify such charges. 

Evans, 273 F.3d at 362. The court may not reduce an award sua

sponte; rather, it can only do so in response to specific

objections made by the opposing party. Bell v. United Princeton

Properties, Inc., 884 F.2d 713, 719 (3d Cir. 1989). But once the

opposing party has made a specific objection, the burden is on

the prevailing party to justify the size of its request.

 Honeywell argues that the District Court erred in

refusing to slash the size of Terris’s fee award to account for

billing that was “excessive, duplicative, or otherwise
The District Court deducted 91.21 hours from the 16

paralegal time for “essentially clerical tasks.” See 336 F. Supp. 2d

at 393.

25

redundant.” In Honeywell’s submission, the following charges

claimed by ICO are grossly excessive:

• 1,058 hours spent preparing proposed

pretrial findings of fact and conclusions of

law

• 471 hours spent preparing post-trial

findings of fact and conclusions of law

• More than 890 hours “dedicated to matters

related to the pretrial order”

• More than 730 hours of attorney time spent

reviewing documents. 

• More than 360 hours preparing a motion

for summary judgment

• More than 2,790 hours of paralegal time16

Honeywell objected to these charges before the District

Court. In support of its objections, Honeywell submitted an

affidavit prepared by Michael Caffrey, an attorney with the New

Jersey law firm of Lowenstein Sandler, Honeywell’s trial

counsel, detailing the results of a review he conducted of ICO’s

submission. Caffrey’s affidavit compared the time claimed by

ICO for the above tasks with what he concluded would have

been a reasonable amount of time for the same work. 

Where Caffrey concluded that ICO’s attorneys had spent

more time than required on a given task, he “reduced” the hours

to what he considered to be an appropriate level. He offered

justifications for his proposed reductions, although in many

cases the explanation he offered consisted of the word

“Excessive.” On appeal, Honeywell argues that the District
Following argument in this case, the parties entered into an 17

agreement pursuant to which Honeywell agreed to make a partial

payment of $1,380,148.79 prior to resolution of the appeal, that

being the amount that Honeywell suggested was the maximum

reasonable and necessary fee award. Under the terms of the

stipulation, which has been approved, the judgment entered

pursuant thereto is without prejudice to defendant-appellant’s

objections and arguments with regard to any fee award (including

the fee award that is the subject of this appeal) or request for fees

and costs by plaintiffs-appellees or any other party or third party.

Moreover, if, when the proper amount of attorney fees and costs is

ultimately resolved, the ultimate award of fees and costs exceeds

$1,380,148.79, the $1,380,148.79 being paid pursuant to the

stipulation is to be subtracted from the award.

26

Court erred in refusing to reduce ICO’s award in accordance

with the recommendations in Caffrey’s affidavit. In addition, it

argues that the findings made by the District Court in granting

ICO’s fee request were inadequate.

17

In support of its excessiveness argument, Honeywell

concentrates on a number of areas, starting with the 1,529 hours

spent on preparing findings of fact and conclusions of law. That

amounts to approximately thirty-eight forty-hour weeks, a sum

that seems to us to be staggering, and well beyond the pale. This

amount represents, under Honeywell’s calculations, over four

hours for drafting each page, as well as 471 hours to update,

post-trial, the proposals which were prepared pretrial in 1058

hours. This also is excessive, especially in light of the fact that

the pre-trial and post-trial findings of fact and conclusions of

law were so similar. As Honeywell points out: 

[M]ore than 130 out of 165 of Plaintiff’s proposed

post-trial conclusions of law were identical to its

pretrial conclusions of law. And, more than 330

out of 494 of Plaintiff’s proposed post-trial

findings of fact were identical or substantively

identical (with the exception of the substitution of

a trial record citation) to Plaintiff’s pretrial

proposed findings of fact. 
For instance, in regard to the time spent on the pretrial 18

proposed findings of fact, the Court observed:

Honeywell asserts that the time spent in preparing

Plaintiff's pretrial findings of fact and conclusions of

law should be excluded because this document was

not ultimately required by the Court. However, until

October 16, 2002, when this Court decided to make

such pretrial findings optional, the deadline for the

27

Furthermore, Honeywell notes that the overall time spent

preparing the findings of fact includes 228 hours of partner time,

which, under the matrix adopted by the District Court, is

compensable at a rate of $456 per hour. That factor seems to us

to warrant close scrutiny.

While the trial was indeed protracted, and the record

huge, there must be some limit. We need not decide these points

because we agree with Honeywell’s second argument: that the

District Court’s review of the hours claimed by ICO’s attorneys

was simply inadequate. However, we do express our reaction

for the benefit of the District Court which will have to address

these issues on remand.

In most respects, the District Court approved the

challenged aspects of the fee award with little more than a

sentence. For example, in approving the 471 hours spent

preparing post-trial findings of fact and conclusions of law, the

District Court observed:

Honeywell asserts that the time expended on the

preparation of post-trial findings was excessive

and should be reduced to 200 hours. However,

Honeywell provides no justification for this figure.

Accordingly, this Court concludes that the hours

expended by Plaintiffs are reasonable.

336 F. Supp. 2d at 391. The District Court appears to have

misapprehended its role, improperly placing a burden of proof

on Honeywell that simply does not exist. While it is true that, 18
submission of each party's pretrial findings was

October 24, 2002. Clearly, it is reasonable for

Plaintiff to have substantially prepared their pretrial

findings by October 16, 2002. Furthermore, since the

preparation of the pretrial document advanced

Plaintiff's preparation of their post trial findings, it is

substantially related to their successful RCRA

substantial endangerment claim and is therefore

recoverable.

336 F. Supp. 2d at 391. The Court later found:

Likewise, Honeywell makes the assertion that the

number of hours spent preparing the Pretrial Order

should be reduced to 300 hours but provides no

justification for this figure. Nor does Honeywell

provide any justification for their assertion that the

document review time should be reduced to 350

hours or that the time spent preparing the second

motion for summary judgment should be reduced to

100 hours. Accordingly, this Court will allow

reimbursement [to] Plaintiffs for the actual time

expended on these activities.

Id at 391-92.

28

as we have noted, the “district court cannot decrease a fee award

based on factors not raised at all by the adverse party,”

Loughner, 260 F.3d at 178 (citations and internal quotations

omitted), nonetheless, the burden remains on the party

requesting the fee to prove its reasonableness, and the court has

“a positive and affirmative function in the fee fixing process, not

merely a passive role,” id. Here, the District Court’s conclusory

reasoning constituted an abdication of that function. 

Where an opposing party lodges a sufficiently specific

objection to an aspect of a fee award, the burden is on the party

requesting the fees to justify the size of its award. In

determining whether the moving party has met its burden, we

have stressed that “it is necessary that the [District] Court ‘go
29

line, by line, by line’ through the billing records supporting the

fee request.” Evans, 273 F.3d at 362. Where the opinion of the

District Court “is so terse, vague, or conclusory that we have no

basis to review it, we must vacate the fee-award order and

remand for further proceedings.” Gunter v. Ridgewood Energy

Corp., 223 F.3d 190, 196 (3d Cir. 2000). Such is the case here. 

For this reason, we will vacate the award in this case with

respect to the six items Honeywell challenges in its appeal.

This is a voluminous and protracted case, and we are not

unmindful of the difficult job the District Court faces in

reviewing the fee application. In performing this task, the

District Court is entitled to help from the fee objector. Indeed,

we have observed:

[T]he adverse party’s submissions cannot merely

allege in general terms that the time spent was

excessive. In order to be sufficient, the briefs or

answers challenging the fee request must be clear

in two respects. First, they must generally identify

the type of work being challenged, and second,

they must specifically state the adverse party’s

grounds for contending that the hours claimed in

that area are unreasonable. The briefs must be

specific and clear enough that the fee applicants

have a fair chance to respond and defend their

request.

Bell, 884 F.2d at 720 (footnote omitted). Honeywell objected to

numerous aspects of ICO’s fee request on the ground that the

time spent by specific attorneys was excessive. It could (and

should) have been more specific. Still, as Honeywell points out,

Bell and later cases have accepted as sufficient objections of a

more general nature than the ones at issue here. E.g., Bell, 884

F.2d. at 721; Planned Parenthood, 297 F.3d at 269.

Thus, since Honeywell carried its burden in objecting to

certain aspects of the proposed fee award, ICO had an obligation

to justify those portions of the award, and the District Court had

an obligation to conduct a searching review of ICO’s request. It

did not, hence we vacate and remand for further proceedings.

VI. Work Related to Other Defendants
30

The District Court found that ICO could only be

compensated by Honeywell for time spent by ICO’s attorneys

“in furtherance of ICO’s successful RCRA claim against

Honeywell.” 336 F. Supp. 2d at 390. Honeywell contends that

the court failed to exclude six charges ICO’s attorneys claimed

for work related to other defendants in the action. ICO concedes

that Honeywell is correct with respect to five of the charges. 

Our judgment will reflect that concession and hence we need

deal only with the sixth, which involves two in limine motions

filed by W.R. Grace & Co., one of the defendants in the action,

see supra note 2. ICO argues that both of these motions, if

granted, would have weakened ICO’s case against Honeywell,

and that it was therefore justified in seeking reimbursement from

Honeywell.

For instance, Grace moved to limit the evidence that

could be used at trial relating to soil clean up standards; ICO

alleges that such a limitation would have weakened its case

against Honeywell. If true, ICO’s contention would be justified. 

But it does not appear from the record that the District Court

considered whether the time spent contesting either motion was

truly “in furtherance of ICO’s successful RCRA claim against

Honeywell.” For this reason, we will vacate and remand the

award with respect to these motions so that the District Court

may make such a determination.

VII. ICO’s Expert Witnesses

A. Testifying Experts

Honeywell challenges the District Court’s decision to

award more than $780,000 for the time and costs of three expert

witnesses and their respective business entities, i.e. the award of

(1) $389,807.59 for the work of Dr. Bruce Bell and Carpenter

Environmental Associates; (2) $194,491.54 for the work of Dr.

Ben Ross and Disposal Safety Incorporated (DSI); and (3)

$184,492.31 for the work of Dr. Cheryl Montgomery and

Cambridge Environmental.

As with the time claimed by counsel, the prevailing party

bears the burden of justifying the time claimed by its expert

witnesses. Similarly, the district court has the obligation to
31

conduct a thorough and searching review of the time claimed by

a prevailing party’s experts. In this case, the District Court failed

to do so. While the District Court did address one substantive

argument raised by Honeywell (that ICO and ECARG should

have retained the same experts), its analysis of the hours claimed

by ICO’s three experts was limited to the following:

The work performed by the experts retained by

Plaintiff in this matter was vital to their success at

trial. The work of the experts greatly assisted this

Court in evaluating some of the more technical

aspects of the litigation, and was also necessary to

rebut the technical information presented by

Honeywell. Accordingly, this Court finds that the

work done by each of ICO’s experts was

reasonable based on the length and complexity of

this litigation.

336 F. Supp. 2d at 398.

The fact that the work of the experts assisted the Court

does not, by itself, imply that the amount of time claimed by the

three experts was reasonable. Rather, as was the case with the

time ICO’s attorneys claimed, the District Court has an

obligation to “‘go line, by line, by line’ through the billing

records supporting the fee request.” Evans, 273 F.3d at 362. 

Similarly, the Court must give us a sufficiently detailed

explanation of its reasoning so that we can engage in meaningful

appellate review. Since it failed to do so, we will vacate the

award of fees for the three experts (and their respective business

entities).

We also note that duplicative billing may have occurred. 

For example, Dr. Montgomery claimed that it took her 246 hours

to prepare an expert report because she needed to review

documents, but Dr. Montgomery separately billed another 570

hours for document review.

B. Non-testifying Experts

ICO requested reimbursement for costs incurred by three

additional experts who assisted with trial preparation but did not
32

testify. The District Court correctly observed that the law is not

entirely clear as to whether a prevailing party may be

compensated for the time of non-testifying experts, but it

resolved the uncertainty in favor of granting ICO’s request. It

reasoned that, due to the complex and technical nature of the

case, it was necessary for ICO’s attorneys to consult with outside

experts, even if those experts did not ultimately testify.

RCRA provides that the court “may award costs of

litigation (including reasonable attorney and expert witness fees)

to the prevailing or substantially prevailing party, whenever the

court determines such an award is appropriate.” 42 U.S.C.

§ 6972(e). Honeywell submits that, since non-testifying experts

are neither attorneys nor expert witnesses, a prevailing party may

not be reimbursed for the costs of their time.

We have held that the fees of non-testifying experts are

compensable in contempt proceedings, see Halderman by

Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942-

43 (3d Cir. 1995), but we have not yet determined whether a

prevailing party is entitled to compensation for the costs of nontestifying experts under a fee-shifting statute. The circuit

caselaw is, for the most part, not on point, and is a mixed bag.

The Court of Appeals for the District of Columbia Circuit

addressed this question in a case involving a fee award under a

provision of the Clean Air Act, 42 U.S.C. § 7607(d), which is

virtually identical to the statute at issue here. See Sierra Club v.

E.P.A., 769 F.2d 796, 812 (D.C. Cir. 1985). In Sierra Club, the

Court concluded that a party could not be reimbursed for the

cost of hiring a non-testifying expert. It observed:

Mr. Lazaro [the non-testifying expert] is obviously

not an attorney. He is also not an “expert witness,”

since review of the regulations was undertaken in

this case on the administrative record without any

new hearings before this or any other court. Cf.

Asarco, Inc. v. EPA, 616 F.2d 1153, 1157-61 (9th

Cir.1980) (allowing limited use of expert

testimony before District Court in reviewing order

by EPA). This leaves only the general rubric of

“costs” under which to compensate petitioners for

making use of Mr. Lazaro's services. Those
33

services do not fall under the traditional concept of

costs . . . .

Id.; see also Natural Resources Defense Council, Inc. v. E.P.A.,

1998 U.S. App. Lexis 26041 (D.C. Cir. Sept. 3, 1998) (per

curiam) (unpublished opinion). Sierra Club is only partially

relevant to our analysis, however, because the opposing party in

that case was the federal government. Thus, the fee-shifting

statute acted as a waiver of sovereign immunity, and the Court

was obligated to interpret the language of the statute in light of

the principle that “waivers of sovereign immunity are to be

construed narrowly.” See Sierra Club, 769 F.2d at 812 (citing

Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)).

The Court of Appeals for the Eleventh Circuit, in

contrast, has held that the fees of non-testifying experts are

recoverable. See Sierra Club v. Hankinson, 351 F.3d 1358 (11th

Cir. 2003). Hankinson interpreted 33 U.S.C. § 1365(d), a feeshifting statute which is virtually identical to 42 U.S.C. §

6972(e). Yet Hankinson is not directly on point either, as the

fees in that case were incurred during the monitoring of a

consent decree. Thus, since there was no ongoing judicial

proceeding, all experts involved were “non-testifying.” Indeed,

the Hankinson Court relied on this fact to distinguish Sierra

Club v. E.P.A. See Hankinson, 351 F.3d at 1363.

The Supreme Court has held that the phrase “reasonable

attorney’s fee” can encompass work performed by individuals

who are not attorneys. See Missouri v. Jenkins ex rel. Agyei, 491

U.S. 274, 285 (1989). In Jenkins, the Court observed, “Clearly,

a ‘reasonable attorney’s fee’ cannot have been meant to

compensate only work performed personally by members of the

bar. Rather, the term must refer to a reasonable fee for the work

product of an attorney.” Id. In light of Jenkins, ICO has a

strong claim that it is entitled to compensation for the work of

the non-testifying experts, as they assisted the attorneys in

preparing their ultimate work product. This view finds support

in a decision of the Court of Appeals for the Seventh Circuit

holding that, while the fees of testifying witnesses were not

recoverable as attorney fees under a statute that did not

separately reference expert witnesses, the fees of non-testifying

witnesses were. That Court observed:
Friedrich, a decision interpreting 42 U.S.C. § 1988, was 19

vacated and remanded for reconsideration, see 499 U.S. 933 (1991), in

light of West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83 (1991),

which held that § 1988 did not permit non-testifying expert fees to be

shifted to the government. Casey has been superceded by statute. See

Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994) (observing that

“§ 113 [of the Civil Rights Act of 1991] responds to [Casey] by

providing that an award of attorney’s fees may include expert fees”).

34

Experts are not only hired to testify; sometimes

they are hired, also or instead, to educate counsel

in a technical matter germane to the suit. The time

so spent by the expert is a substitute for lawyer

time, just as paralegal time is, for if prohibited (or

deterred by the cost) from hiring an expert the

lawyer would attempt to educate himself about the

expert's area of expertise. To forbid the shifting of

the expert’s fee would encourage

underspecialization and inefficient trial

preparation, just as to forbid shifting the cost of

paralegals would encourage lawyers to do

paralegals’ work.

Friedrich v. Chicago, 888 F.2d 511, 514 (7th Cir. 1989).19

We agree with this logic. The purposes of RCRA’s feeshifting provision would not be well-served by prohibiting

reimbursement for the fees of non-testifying experts, at least to

the extent that these experts serve to “educate counsel in a

technical matter germane to the suit.” It is not unreasonable to

expect that attorneys will rely on experts to educate them as to

scientific and technical issues involved in a given case. Indeed,

as the Seventh Circuit observed, prohibiting reimbursement for

the fees of non-testifying experts would simply encourage

attorneys to educate themselves, undoubtedly at a higher cost. 

Thus, we will affirm the District Court on this point.

VIII. Copying Costs

The District Court awarded Terris $148,715 in copying

costs. This award posited a cost of 20 cents per page claimed for
On two occasions, district judges in this Circuit have 20

found that 25 cents per copy was a reasonable amount to charge.

See James v. Norton, 176 F. Supp. 2d 385, 400 (E.D. Pa. 2001);

Churchill v. Star Enters., 1998 U.S. Dist. LEXIS 6068 at 29-30

(E.D. Pa. Apr. 17, 1998) (unpublished opinion).

We affirm the award for external copying, which was 21

billed at cost.

ICO concedes that its copying award should be reduced by 22

$53.40 for copying relating to the other defendants. The District

35

internal copying; external copying was billed at cost. While the

District Court acknowledged that this 20 cents per page rate was

higher than the “10 to 15 cents deemed reasonable by most

federal courts,” 336 F. Supp. 2d at 400 n.7, it concluded that 20

cents was acceptable.

This Court taxes copying costs at 10 cents per page. 

See Third Circuit L.A.R. 39.3(c). As the District Court found,

most courts to consider the issue have found that a rate of 10 to

15 cents per copy is appropriate. We have serious concerns 20

about the District Court’s decision to grant ICO reimbursement

at the rate of 20 cents per page. We judicially notice that Fed

Ex/Kinko’s charges less than 7 cents per page for large volume

copying. The District Court did note that different types of

copies have different costs; obviously color copies are more

expensive than black and white ones. However, it is not clear

from the record whether ICO’s attorneys performed their more

expensive copying in house.

The District Court seems not to have given this aspect of

the case sufficient attention. Since we are remanding so many

aspects of the award, we will also vacate and remand on this

issue for fuller consideration. In the same vein we will also 21

vacate and remand for a more adequate review of the number of

copies made by plaintiffs. ICO’s attorneys submitted

documentation for their internal and external copying, and the

District Court concluded that the total number of copies was not

excessive. But ICO requested reimbursement for 387,619

internal copies, and an unknown number of external copies. 

Thus, more than a conclusory ruling is called for.22
Court also awarded ICO $17 for copying expenses related to the

two in limine motions filed by Grace discussed above. See supra

Part VI. If the District Court determines that the time spent by

ICO’s attorneys contesting these motions may not be charged to

Honeywell, then it should reduce the photocopying award

accordingly. We realize that these sums are tiny in the grand

scheme of things, but we mention them in the interest of

completeness. 

36

IX. Costs of Overtime and Temporary Employees

Finally, Honeywell challenges the District Court’s

decision to compensate ICO for overtime costs, the costs of

temporary employees, and the cost of meals associated with

overtime. The Court correctly noted that overtime and related

costs are only reimbursable “where there is a need for the

additional employee or overtime, such as with an emergency.”

See 336 F. Supp. 2d at 401. Honeywell argues that the District

Court misapplied this principle, as it failed to identify “a single

instance in which the incurrence of temporary employee costs,

staff overtime, or overtime meal costs corresponded to an

unavoidable emergency.”

Honeywell is correct that overtime costs may only be

reimbursed when reasonably necessary. However, the District

Court concluded that the amount of overtime at issue—97.75

hours over approximately nine years—was reasonable in light of

“the complexity of the litigation and the tremendous number of

documents that were produced and deadlines set by this Court.” 

Id. at 402. We agree with the District Court that, in a complex,

multi-year action such as this, a certain amount of overtime is

inevitable. The amount at issue in this case (just over ten hours

per year) does not strike us as at all excessive. Moreover, the

District Court has a far greater understanding of the deadlines it

imposed and the complexity of the underlying action. For this

reason, we find that the District Court’s conclusion that the

amount of overtime and related costs claimed by ICO was

justified by the complexity of the underlying action and the

deadlines set by the Court was not an abuse of discretion. We

will therefore affirm this portion of the fee award.
37

X. Summary

To summarize, we affirm the award in all respects with

the exception of the following charges:

• We will vacate that portion of the award associated with

the six specific charges referenced above (the time spent

preparing pretrial and post-trial findings of fact and

conclusions of law; the time “dedicated to matters related

to the pretrial order”; the time spent reviewing documents;

the time spent preparing a motion for summary judgment;

and the total award of paralegal time), and remand so that

the District Court may conduct a more searching analysis

of the time claimed by ICO’s attorneys.

• We will vacate the $768,791.44 awarded for the work of

Dr. Bruce Bell, Dr. Ben Ross, and Dr. Cheryl

Montgomery and their respective business entities, so that

the District Court may conduct a more thorough analysis

of the time claimed by these experts.

• We will vacate the $148,715 for photocopying costs, and

remand so that the District Court may conduct a more

searching review of the number of copies claimed by ICO

as well as the appropriate billing rate for in-house copies.

• We will vacate the $46,970.48 awarded for travel time

and travel costs, and remand so that the District Court

may make a determination as to the regular practice in the

relevant market for billing such time.

• We will vacate the portion of the award, including the

$70.40 in photocopying costs, relating to the time spent on

motions which Honeywell alleges involve other

defendants. On remand, the District Court shall consider

whether the 41.78 hours ICO claims relating to the two in

limine motions filed by Grace were related to its suit

against Honeywell.

• Finally, we will vacate the award of $541.08 relating to
38

“local travel expenses” which the District Court neglected

to deduct from its final award. ICO does not contest this

reduction. See supra note 3.