2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-11-2000

United States v Eleven Vehicles

Precedential or Non-Precedential:

Docket 99-1241

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Recommended Citation

"United States v Eleven Vehicles" (2000). 2000 Decisions. Paper 5.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/5
Filed January 7, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1241 

UNITED STATES OF AMERICA 

v. 

ELEVEN VEHICLES, THEIR EQUIPMENT AND 

ACCESSORIES; ALL MONIES AND/OR INTERESTS IN 

CERTAIN ACCOUNTS IN BANKS OR CERTAIN OTHER 

FINANCIAL INSTITUTIONS; ONE BUSINESS; ANY & ALL 

PROCEEDS, FROM THE SALES THEREOF 

ROBERT CLYDE IVY; WAYNE K. RADCLIFFE; TERRANCE 

P. FAULDS; IRENE IVY; KLEINBARD, BELL & BRECKER; 

MELLON BANK, N.A.; LEBANON VALLEY NATIONAL 

BANK; MARY E. IVY; GERALD SCHULER; CLYDE IVY; 

IRENE IVY; ELAINE K. RADCLIFFE; 

MICHELLE E. RADCLIFFE, 

 Claimants in District Court 

Robert Clyde Ivy and Irene Ivy, 

 Appellants 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civ. No. 91-cv-06779) 

District Judge: Honorable Eduardo C. Robreno 

Argued: October 1, 1999 

Before: NYGAARD, ALITO and ROSENN, Circuit Judges. 

(Filed January 7, 2000) 
 Charles H. Ivy, Esquire (Argued) 

 Law Office of Charles H. Ivy 

 20 South Prado Street, N.E. 

 Atlanta, GA 30309-3309 

 Counsel for Robert Clyde Ivy and 

 Irene Ivy 

 Catherine L. Votaw, Esquire (Argued) 

 J. Alvin Stout, III, Esquire 

 Michael R. Stiles, Esquire 

 Office of the United States Attorney 

 615 Chestnut Street 

 Suite 1250 Philadelphia, PA 19106 

 Counsel for United States of 

 America 

OPINION ANNOUNCING THE 

JUDGMENT OF THE COURT 

ROSENN, Circuit Judge. 

This appeal presents a recurring problem concerning the 

amount of fees due counsel under a fee-shifting statute. 

The case also presents the grim reality feared by the 

Supreme Court of the United States when it warned that a 

"request for attorney's fees should not result in a second 

major litigation." Hensley v. Eckhart, 461 U.S. 424, 437 

(1983). More specifically, we are presented with a challenge 

to the adequacy of a supplemental award of attorney fees 

and expenses for work performed in post-judgment fee 

litigation in a civil forfeiture proceeding initiated by the 

United States in 1991 in the District Court for the Eastern 

District of Pennsylvania. After securing the court-ordered 

release of property seized by the United States Government 

because it was thought to be involved in illegal money 

laundering activities, appellants sought attorney fees and 

expenses incurred in seeking the property's release

pursuant to the Equal Access to Justice Act ("EAJA"), 28 

U.S.C. S 2412(d)(1)(A). In its fourth published opinion in 

this case, the district court awarded the appellant

$142,643.26 in attorney fees and $7963.51 in expenses 

 2 
covering services through September 26, 1996. See United 

States v. Eleven Vehicles, 966 F. Supp. 361 (E.D. Pa. 1997) 

[hereinafter Eleven Vehicles IV]. 1 Subsequently, the 

appellants filed a supplemental request for $23,333.81 in 

attorney fees and $560 in expenses incurred after 

September 26, 1996 in litigating their entitlement to fees 

and expenses for the underlying forfeiture litigation. The 

court awarded the appellants $5000 in attorney fees plus 

$560 in expenses. Disappointed, the appellants, Robert 

Clyde Ivy and Irene Ivy, timely appealed. We remand. 

I. 

In October 1991, the Government filed a complaint for 

forfeiture of the assets of numerous parties, including 

Appellants Robert Clyde Ivy and Irene Ivy ("the Ivys"). Over 

the next four-and-a-half-years, the trial court ordered the 

piece-by-piece release of all the Ivys' seized properties 

pursuant to partial grants of summary judgment in October 

1993 and September 1995, and a final dismissal of the 

Government's forfeiture complaint, with prejudice, in March 

1996.2 In dismissing the case, the district court expressly 

retained jurisdiction for the purpose of considering the Ivys' 

request for attorney fees and expenses pursuant to the 

EAJA, and the Government's motion for a "certificate of 

reasonable cause" under 28 U.S.C. S 2465. The certificate of 

reasonable cause, if granted, would have protected the 

individuals who actually seized the property at issue from 

liability to the property owners, and would prevent the 

claimants from recovering costs from the Government, 

though not fees or expenses. 

On August 30, 1996, the district court granted the 

requested certificate of reasonable cause. It held, however, 

that the Ivys were entitled to attorney fees at a rate of 

$112.28 per hour and to expenses. Eleven Vehicles III, 937 

_________________________________________________________________ 

1. The district court had previously found that the appellants were 

entitled to attorney fees and expenses under the EAJA. See Eleven 

Vehicles III, 937 F. Supp. 1143 (E.D. Pa. 1996). 

2. The district court had jurisdiction over this forfeiture action 

pursuant 

to 28 U.S.C. SS 1345 and 1355, and 18 U.S.C.SS 981(a)(1)(A), 

981(a)(1)(C), and 981(f). 

 3 
F. Supp. at 1149-56. In ruling on the Ivys' entitlement to 

fees and expenses, the court found that the Ivys were a 

"prevailing party" in the litigation, the Government's 

litigating position had not been "substantially justified," 

and no "special circumstances" existed that would render 

an attorney fee award unjust.3 Id. at 1150-55. The district 

court ordered the Ivys to submit an itemized statement of 

counsel's hours and rates by September 30, 1996. Id. at 

1156. The Ivys submitted the required materials on that 

date. These materials covered work performed on the case 

through September 26, 1996. The Government filed 

objections to some of these requested fees. 

The Government filed a motion for reconsideration of the 

award of attorney fees and expenses. The Ivys filed a 

motion for reconsideration of the grant of a certificate of 

reasonable cause and the failure to grant attorney fees at 

market rate. The Ivys also filed a motion requesting the 

court to adjust the hourly billing rate of $112.28,

established by the court for calculating the amount of 

attorney fees owed to the Ivys, upward to reflect cost of 

living. The parties filed responses to each other's motions. 

_________________________________________________________________ 

3. The EAJA provides in pertinent part: 

 (A) Except as otherwise specifically provided by statute, a court 

 shall award to a prevailing party other than the United States fees 

 and other expenses, in addition to any costs awarded pursuant to 

 subsection (a), incurred by that party in any civil action (other 

than 

 cases sounding in tort), ... brought by or against the United 

States 

 in any court having jurisdiction of that action, unless the court 

 finds that the position of the United States was substantially 

 justified or that special circumstances make an award unjust. 

 (B) A party seeking an award of fees and other expenses shall, 

 within thirty days of final judgment in the action, submit to the 

 court an application for fees and other expenses which shows that 

 the party is a prevailing party and is eligible to receive an award 

 under this subsection, and the amount sought, including an 

 itemized statement from any attorney or expert witness representing 

 or appearing in behalf of the party stating the actual time 

expended 

 and the rate at which fees and other expenses were computed. The 

 party shall also allege that the position of the United States was 

not 

 substantially justified. 

28 U.S.C. S 2412(d)(1). 
 4 
In November 1996, the Ivys apparently gave the 

Government and the court notice that they intended at 

some future date to seek attorney fees and expenses for 

work performed after September 26, 1996. 

On May 30, 1997, the district court denied the 

Government's motion for reconsideration as merely a

"rehash" of earlier arguments in the litigation. As for the 

Ivys' motion for reconsideration of the grant of the 

certificate of reasonable cause and the court's denial of 

their entitlement to attorney fees at market rates, the court 

also, after careful consideration, denied it as essentially a 

restatement of their earlier arguments. Eleven Vehicles IV, 

966 F. Supp. at 363-66. However, the court granted the 

Ivys' request for a cost of living adjustment, revising the 

compensable hourly billing rate upward to $120.68. Id. at 

366-67. Finally, the court accepted one of the Government's 

narrow objections to the fees requested by the Ivys, rejected 

the remainder of the Government's objections, and granted 

attorney fees for 1182 hours of work in the amount of 

$142,643.76, and expenses in the amount of $7,963.81. Id. 

at 367-69. 

On August 27, 1997, the Ivys submitted to the district 

court a supplemental request for attorney fees and 

expenses covering work performed after September 26, 

1996. In this application, the Ivys requested $23,333.81 in 

fees as compensation for 190.9 additional hours work, and 

$560.00 in expenses. The Government opposed this 

supplemental request, arguing that the requested 

supplemental payment was not authorized by any law, and 

was in essence a motion under Federal Rule of Civil

Procedure 59(a) to alter or amend the May 30, 1997 award. 

Because such a request must be filed within 10 days after 

judgment, the Government asserted that the request was 

untimely, and the court's March 30, 1997 award was 

sufficiently generous and adequate to cover additional fees 

and expenses accumulated between September 26, 1996

and May 30, 1997. Further, the Government argued that 

the Ivys were not entitled to receive fees and expenses for 

post-judgment work, particularly work related to the 

decision not to take an appeal. The Ivys responded to the 

Government's arguments, and in addition asserted that the 

 5 
Government's memorandum in opposition was untimely 

and therefore should not be considered by the district 

court. 

After a telephone conference with counsel for the parties, 

the court issued its decision. Eleven Vehicles V, 36 F. Supp. 

2d 237 (E.D. Pa. 1999). The court first held that the Ivys' 

supplemental fee application was not a Rule 59(a) motion, 

but instead arose under the EAJA. Id. at 238 n.1. It then 

addressed the merits of the application, considering the 

supplemental application as a whole along with thefirst 

application and fee award. Id. at 239. The court stated that 

it took into account all of the factors it had considered in 

determining the first fee award. In addition, the district 

court considered that "the supplemental request involves 

work performed on motions for reconsideration of doubtful 

validity filed by both parties," and that "the 190 hours 

spent by counsel appears `excessive, redundant and 

otherwise unnecessary.' " Id. (citation omitted). Based on 

these factors, the court awarded the Ivys an additional 

$5,000 in fees and $560.00 in expenses. The district court's 

opinion did not address the Ivys' argument that the

Government's opposition to their request was untimely and 

should not be considered. 

II. 

On appeal, the Ivys make several substantive arguments 

in support of their assertion that the district court erred in 

awarding them less attorney fees than they requested. In 

addition, they contend that the court abused its discretion 

by entertaining the Government's late-filed memorandum 

opposing their supplemental request for attorney fees and 

expenses. The Government argues that the supplemental 

fee application is, in essence, a motion to alter or amend 

the district court's May 30, 1997 original fee award under 

Federal Rule of Civil Procedure 59(e).4 Accordingly, the 

_________________________________________________________________ 

4. In the district court, the Government argued in its opposition to the 

Ivys' supplemental fee application that the application was effectively a 

motion to amend the court's findings of fact under Fed. R. Civ. P. 59(a), 

not 59(e). However, in the instant case, there is little practical effect 

to 

 6 
Government contends that the Ivys were obliged to comply 

with that Rule's requirement that such motions befiled "no 

later than 10 days after the entry of the judgment." Fed. R. 

Civ. P. 59(e). Because the Ivys' supplemental fee request 

was filed approximately three months after entry of the May 

30, 1997 award of attorney fees, the Government asserts 

that the request was untimely, and thus the court lacked 

subject matter jurisdiction. The district court rejected this 

argument, Eleven Vehicles V, 36 F. Supp. 2d at 238 n.1, 

and the Government did not appeal this issue. 

It appears well settled that a motion for supplemental 

attorney fees is not a Rule 59(e) motion. In White v. New 

Hampshire Dep't of Employment Security, 455 U.S. 445, 

447-48 (1982) the Court addressed a situation in which the 

petitioner requested attorney fees under the Civil Rights 

Attorney's Fees Awards Act, 28 U.S.C. S 1988, four-and-ahalf months after winning judgment on the merits. The 

respondent argued that the motion was governed by the 10- 

day time limit of Fed. R. Civ. P. 59(e), and was therefore 

untimely. The Supreme Court held that Rule 59(e) was 

reserved "only to support reconsideration of matters 

properly encompassed in a decision on the merits." Id. at 

451. The Court concluded that "a request for attorneys fees 

. . . raises legal issues collateral to the main cause of action 

-- issues to which Rule 59(e) was never intended to apply." 

Id. It held that attorney fees are not "compensation" for the 

injury suffered and are not an "element of `relief ' ": 

 [A] motion for attorney fees is unlike a motion to alter 

 or amend a judgment. It does not imply a change in 

 the judgment, but merely seeks what is due because of 

 the judgment. It is, therefore, not governed by the 

 provisions of Rule 59(e). 

Id. at 452-53 (quoting Knighton v. Watkins, 616 F.2d 795, 

_________________________________________________________________ 

this discrepancy. Moreover, the court explicitly relied on Brown v. Local 

58, Int'l Bhd. of Elec. Workers, AFL-CIO, 76 F.3d 762 (6th Cir. 1996), 

which considered the same argument under Rule 59(e). The court here 

stated that it saw no difference between relying on subdivision (a) or 

subdivision (e) of Rule 59. Thus, for purposes of our review, this 

discrepancy is immaterial. 

 7 
797 (5th Cir. 1980)). Numerous other decisions of the 

Supreme Court, this court, and other circuit courts have 

made the same observation. See Federal Communications 

Comm'n v. League of Women Voters of Cal., 468 U.S. 364, 

373 n.10 (1984) ("a postjudgment request for attorney fees 

is not considered a motion to amend or alter the judgment 

under Rule 59(e)").5 

The Government asserts that Rule 59(e) nevertheless

applies in this case because the "judgment" the Ivys sought 

to "alter or amend" with their supplemental fee application 

was the initial May 30, 1997 award of attorney fees. 

However, under White, this May 30 award was not a 

"judgment" at all. See also Cartledge v. Heckler, 615 F. 

Supp. 545, 546 (N.D. Ill. 1985) ("[U]nder 28 U.S.C.

S 2412(d)(1)(A), as under other fee-shifting statutes, the fee 

award is really in addition to and not part of the 

judgment."); Watkins v. Harris, 566 F. Supp. 493, 495 (E.D. 

Pa. 1983) ("[t]he EAJA is a fee shifting statute and if 

attorneys' fees are awarded, they are in addition to the 

amount of the judgment"); cf. Schultz v. Crowley, 802 F.2d 

498, 500-05 (D.C. Cir.) (suit is final and not"pending" 

under the EAJA when merits have been decided even 

though post-judgment motion for attorney fees remains 

unresolved), reh'g denied, 806 F.2d 281 (D.C. Cir. 1986), 

cert. denied, 484 U.S. 869 (1987). The underlying 

"judgment" in this case was the district court's dismissal of 

the forfeiture proceedings. Because Rule 59(e) only applies 

to motions to alter or amend a judgment, it is inapplicable 

here. 

Moreover, even if an initial award of attorney fees is a 

"judgment," a supplemental request for fees and expenses 

incurred during a period of time different from and

subsequent to the time period covered by an initial fee 

award cannot be a motion under Rule 59(e) because the 

supplemental request does not seek to alter or amend the 

_________________________________________________________________ 

5. Other cases in accord are: Utah Women's Clinic, Inc. v. Leavitt, 75 

F.3d 

564, 567 (10th Cir. 1995), cert. denied, 518 U.S. 1019 (1996); Samuels 

v. American Motor Sales Corp., 969 F.2d 573, 577-78 (7th Cir. 1992); 

Schake, 960 F.2d at 1192; Cruz v. Hauck, 762 F.2d 1230, 1236-37 (5th 

Cir. 1985). 

 8 
initial award. Rather, such a request seeks to address only 

fees and expenses not considered in the prior award

determination. See Brown v. Local 58, Int'l Bhd. of Elec. 

Workers, AFL-CIO, 76 F.3d at 769-70. 

Thus, the question remains under what authority could 

the district court consider the Ivys' supplemental request 

for attorney fees and expenses.6 The Ivys appear to contend 

that their supplemental request was a valid motion under 

the EAJA. However, the Ivys misconstrue the timing 

requirements of the EAJA. The EAJA requires that a party 

seeking an award of fees and other expenses shall submit 

its application to the court within thirty days of final 

judgment in the action. 28 U.S.C. S 2412(d)(1)(B). The 

underlying "action" here is the Government's forfeiture 

proceeding against the Ivys' property. The "final judgment" 

contemplated by the statute, it seems clear, is the judgment 

dismissing that forfeiture proceeding. It is not, as the Ivys 

argue, the May 30, 1997 adverse ruling on the parties' 

motions to reconsider ancillary matters. That ruling 

involved only post-judgment residual proceedings dealing 

with fees, costs, and expenses.7 

There currently is no dispute that the Ivys satisfied the 

EAJA's requirements for their initial claim to attorney fees 

and expenses incurred in the underlying litigation. They 

filed their claim within thirty days after thefinal dismissal 

of the forfeiture case became unappealable. The district 

_________________________________________________________________ 

6. The only other case to address the precise question at issue here was 

Brown v. Local 58, Int'l Bhd. of Elec. Workers, AFL-CIO. See 76 F.3d at 

769. Although the Court of Appeals for the Sixth Circuit in Brown 

rejected the appellants objections to the jurisdiction of the district 

court, 

it did not explain on what basis the district court could consider an 

application for supplemental attorney fees. 

7. The underlying forfeiture action was dismissed with prejudice and 

"final judgment" entered on March 26, 1996. (See Dist. Ct. Dkt. Entry 

# 146). The concurrence states that the district court's August 30, 1996 

decision in Eleven Vehicles III was thefinal judgment in the underlying 

forfeiture action. However, the court's Eleven Vehicles III decision dealt 

only with post-judgment issues ancillary to the March 1996 dismissal of 

the forfeiture case. As discussed above, these issues had no effect on the 

finality of the March 26, 1996 judgment dismissing the underlying 

forfeiture action. 

 9 
court, in a thoughtful and carefully written opinion, held in 

Eleven Vehicles III that the Ivys were a"prevailing party" in 

the forfeiture litigation, that the Government did not 

substantially justify its litigating position, and that there 

were no "special circumstances" that would make an award 

unjust. The Supreme Court has held that under the EAJA, 

once these findings are made a claimant need not relitigate 

these issues in later claims for attorney fees. See

Commissioner, Immigration & Naturalization Serv. v. Jean, 

496 U.S. 154, 158-62 (1990). Moreover, this court has held 

that once an EAJA fee request has been timely filed, 

"deficiencies in the contents of the claim may be corrected 

if the government cannot show any prejudice arising from 

the later correction of these deficiencies." See Dunn v. 

United States, 775 F.2d 99, 103-04 (3d Cir. 1985); see also 

Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed. Cir. 1998) 

(adopting this circuit's reasoning in Dunn). The Dunn Court 

reasoned that Congress envisioned only one strict 

requirement in EAJA fee cases, namely that the court and 

the Government be put on notice that the claimant seeks 

fees under the EAJA. 775 F.2d at 104. 

Thus, once the jurisdictional elements of an initial claim 

for attorney fees under the EAJA have been shown, the 

strictures of the EAJA do not dictate when a request for 

supplemental fees must be filed. In the absence of a 

timeliness requirement imposed by statutory command, a 

Federal Rule of Civil Procedure, or an applicable local court 

rule, "the only time limitation arises out of those equitable 

considerations that a district judge may weigh in his 

discretion." Hicks v. Southern Maryland Health Systems 

Agency, 805 F.2d 1165, 1166-67 (4th Cir. 1986); Cruz, 762 

F.2d at 1236-38; see also Smith v. Bowen, 815 F.2d 1152, 

1156 (7th Cir. 1987) (motion for attorney fees is governed 

by Fed. R. Civ. P. 54, which " `imposes no time limit apart 

from an implicit requirement of reasonableness' " (quoting 

Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 

1248 (7th Cir. 1981), aff'd on other grounds, 465 U.S. 752 

(1984) (citation omitted))). The Ivys waited approximately 

three months after the May 30, 1997 decision to request 

supplemental attorney fees. In addition, all of the

supplemental fees and expenses applied for were incurred, 

and therefore known to the Ivys, prior to the district court's 

 10 
May 30, 1997 decision. Accordingly, the Ivys could and 

should have supplemented their fee request prior to the 

court's decision in Eleven Vehicles IV. Based on such 

equitable considerations, had the district court refused to 

entertain the Ivys' supplemental request because of their 

three-month delay, it would have been within its discretion 

so to do. This is especially true given the Supreme Court's 

admonition in Hensley that a request for attorney fees 

should not result in a second major litigation. Hensley, 461 

U.S. at 437. 

Nevertheless, the district court in the exercise of its 

discretion chose to entertain this supplemental request. 

The Ivys' initial fee request clearly covered only fees and 

expenses incurred through September 26, 1996. All parties 

were aware at the time that request was filed that the 

Government's motion for reconsideration of the Ivys' right 

to a fee award, the Ivys' motion for reconsideration of the 

Government's right to a certificate of reasonable cause, and 

the Ivys' motion for a cost of living adjustment to the 

compensable attorney billing rate remained pending before 

the district court. The Government acknowledges that in 

the course of litigating its objections to the Ivys'first 

request for fees and expenses, the Ivys put the court and 

the Government on notice that they reserved the right to 

submit a statement of fees and expenses incurred after 

September 26, 1996. The Ivys appear to have delayed three 

months in requesting additional fees and expenses because 

they incorrectly believed that they were required to wait to 

apply until 30 days after the May 30, 1997 judgment

became unappealable. Thus, we cannot say that the district 

court abused its discretion in considering the Ivys' 

supplemental request.8 

Thus, we turn to the Ivys' challenges to the district 

court's legal analysis, and their argument that the court 

_________________________________________________________________ 

8. The Government's suggestion that it was prejudiced by the Ivys' delay 

in filing its supplemental request because it could not appeal the final 

fee award rings hollow. The Government was free to appeal the May 30, 

1997 award if it chose so to do. The Government was also free to appeal 

the January 20, 1999 supplemental award if it chose to do so. It does 

not appear that the Government was in any way prejudiced by the Ivys' 

delay. 

 11 
abused its discretion in failing to address their contention 

that the Government's memorandum in opposition to their 

supplemental fee request was untimely and should not 

have been considered. 

III. 

The Ivys assert that the district court erred in several 

ways in its analysis of their supplemental fee request. Their 

arguments essentially boil down to the following: (1) the 

court failed to justify or explain its findings that the claim 

submitted was "excessive, redundant, or otherwise 

unnecessary"; (2) the court sua sponte improperly granted 

attorney fees in an amount below that requested in the 

absence of a Government challenge to the requested 

amount; (3) the court disallowed hours worked and granted 

less than the amount submitted without making the 

findings required by EAJA S 2412(d)(1)(C); and (4) the court 

failed to inquire into the particulars of the supplemental fee 

request, instead relying on its "generalized sense" of what 

fee was reasonable for the entire case. Our review of such 

challenges to the legal standards applied by the district 

court is plenary. See Bell v. United Princeton Properties, Inc., 

884 F.2d 713, 718 (3d Cir. 1989). 

The district court awarded the Ivys less in attorney 

fees than requested for the supplemental proceedings at 

least in part because it found that "the 190 hours spent by 

counsel appears `excessive, redundant and otherwise

unnecessary.' " Eleven Vehicles V, 36 F. Supp. 2d at 239 

(quoting Becker v. ARCO Chem. Co., 15 F. Supp. 2d 621, 

633 (E.D. Pa. 1998)). When this court reviews such a 

finding, it is presented with two issues: "first, whether the 

district court abused its discretion in concluding that the 

hours expended on a certain task were excessive; and 

second, whether the district court abused its discretion in 

concluding that a certain number of hours would be a 

reasonable number of hours to expend on that task." Rode 

v. Dellarciprete, 892 F.2d 1177, 1187 (3d Cir. 1990). 

The court, in the instant case, may have been correct in 

its conclusions but regrettably did not explain how it 

reached them. The Supreme Court has instructed that it is 

 12 
important "for the district court to provide a concise but 

clear explanation of its reasons for the fee award." Hensley, 

461 U.S. at 437. We have held, in reviewing similar

situations, that to resolve these issues "the district court 

must explain on the record the reasons for its decisions." 

Rode, 892 F.2d at 1187. Indeed, the lack of explanation 

makes it difficult for us to address with any competence the 

Ivys' remaining challenges to the district court's decision. 

We therefore are constrained to remand this case to the 

district court for an explanation of its reasons for the fee 

award. At the same time, we believe it is appropriate to 

provide the district court with some guidance bearing on 

the Ivys' other challenges. 

A. 

First, the Court stated in Commissioner, Immigration and 

Naturalization Service v. Jean that "fees for fee litigation 

should be excluded to the extent that the applicant

ultimately fails to prevail in such litigation." 496 U.S. at 

163 n.10. In the instant case, the Ivys request fees for one 

unsuccessful claim -- their motion and ensuing activity for 

the district court to reconsider its grant of a certificate of 

reasonable cause to the Government. In essence, this 

motion litigated the issue of the Ivys' entitlement to costs 

for the underlying forfeiture claim. Nevertheless, there is no 

reason why the Court's admonition about unsuccessful 

"fees for fee litigation" does not apply equally to "fees for 

cost litigation." See Hathaway v. United States, No. 93- 

36158, 1995 WL 66783, at *1 (9th Cir. Feb. 16, 1995); 

Davis v. United States, 887 F. Supp. 1387, 1389 (D. Colo. 

1995). Thus, the Ivys are not entitled to fees for litigating 

this motion. 

B. 

Second, the Ivys note that in this circuit, a court may not 

reduce counsel fees sua sponte as "excessive, redundant, or 

otherwise unnecessary" in the absence of a sufficiently 

specific objection to the amount of fees requested. In 

statutory fee cases, it is well settled in this circuit that in 

calculating the "lodestar," or initial fee calculation requiring 

 13 
the court to multiply a reasonable hourly fee by the 

reasonable amount of hours worked, the district court may 

not award less in fees than requested unless the opposing 

party makes specific objections to the fee request. As this 

court stated in Cunningham v. City of McKeesport, 

 when an opposing party has been afforded the

 opportunity to raise a material fact issue as to the 

 accuracy of representations as to hours spent, or the 

 necessity for their expenditure, and declines to do so, 

 no reason occurs to us for permitting the trial court to 

 disregard uncontested affidavits filed by a fee 

 applicant. 

753 F.2d 262, 266 (3d Cir. 1985), vacated on other grounds, 

478 U.S. 1015 (1986), and reinstated, 807 F.2d 49 (3d Cir. 

1986); see also McDonald v. McCarthy, 966 F.2d 112, 118 

(3d Cir. 1992); Bell, 884 F.2d at 719. A district court may 

not " `decrease a fee award based on factors not raised at all 

by an adverse party.' " Rode, 892 F.2d at 1183 (quoting 

Bell, 884 F.2d at 720).9 However, once the opposing party 

has made a sufficiently specific objection to the substance 

of a fee request, "the court has a great deal of discretion to 

adjust the fee award in light of these objections." Bell, 884 

F.2d at 721. The rationale for this prohibition on sua 

sponte fee award reductions is twofold. First, sua sponte 

reduction deprives the applicant of the right "to offer 

evidence in support of the reasonableness of the request." 

Bell, 884 F.2d at 719. (internal quotation marks omitted). 

Second, "because statutory fee litigation is adversarial 

litigation, there is no need to allow the district court to 

reduce a fee award on its own initiative." Id. 

Although cases establishing and applying this rule 

appear to do so in calculating the "lodestar," we believe that 

_________________________________________________________________ 

9. One exception to this rule is that the district court may make sua 

sponte reductions where it has personal knowledge of the costs involved 

in certain aspects of the litigation, for example where the court presided 

over a hearing or conference and knows exactly how much time and 

effort that proceeding involved. See Cunningham, 753 F.2d at 267. For 

example, this exception would appear applicable in the present case to 

fees for the November 9, 1998 telephone conference over which the 

district court presided. 

 14 
the rule's rationale applies with equal force to postjudgment supplemental applications for "fees for fee 

litigation" as it does in calculating fees due for litigating the 

merits of the underlying claim. Only with proper notice can 

the claimant know which request to defend as reasonable. 

Moreover, as evidenced by this case, post-judgment fee 

litigation remains adversarial. This circuit's precedent 

therefore binds the district court not to reduce the fee 

amount requested sua sponte, in the absence of a 

Government objection. Nevertheless, this prohibition on sua 

sponte reduction of fees applies only to challenges to the 

excessiveness of a fee request. Here, the Government's 

objections to the Ivys' supplemental fee request are more 

appropriately described as legal challenges to certain types 

of attorney work that are simply never compensable under 

the EAJA.10 Thus, if the district court agrees that categories 

of work for which the Ivys request fees are not compensable 

under the EAJA, it should prune the fees requested for this 

work from its fee award. Although the court could have 

taken this approach, it does not appear to have made any 

_________________________________________________________________ 

10. The Government's statement challenging categories of work for which 

the Ivys requested fees, found in its memorandum in opposition to the 

Ivys' supplemental request for attorney fees and expenses, was as 

follows: 

 The Ivys seek to be compensated for limited negotiations in which 

 they rejected the Government's offer and then rejected the 

 Government's offer to negotiate a settlement and for research and 

 other post-judgment work. The Ivys even seek to be paid for giving 

 the Government claimants' and counsel's social security numbers, 

 required by the Treasury Department to write a check and even the 

 time it took to answer Treasury Department's confirming phone call 

 to counsel. (Exhibit 1, 7/22/97; 7/24/97, 7/30/97). 

 Post judgment time spent bringing unsuccessful appeals is not 

 compensable; it makes even less sense to award fees for the 

decision 

 not to take such an appeal. [Griffin v. Strong, 827 F. Supp. 683, 

687 

 (D. Utah 1993)]. Further, time devoted to clerical activities and 

 background research is normally included in overhead and not 

 billable to clients. The Government should not be held to pay such 

 expenses. Id. 

The Government placed the above-quoted passage under the heading: 

"No Award for Post-Judgment Work Absent Appeal." 

 15 
of the legal conclusions invited by the Government's 

challenges. On the contrary, it stated that the fees 

requested were "excessive, redundant and otherwise 

unnecessary." Therefore, on remand, the court must clarify 

its reasons for the supplemental reward it made in 

response to the fees requested by the Ivys. 

C. 

Third, the Ivys argue that the court erred in disallowing 

the hours worked and granting less than the requested fee 

without making the findings required by 28 U.S.C. 

S 2412(d)(1)(C), a provision of the EAJA. It provides: 

 The court, in its discretion, may reduce the amount to 

 be awarded pursuant to this subsection, or deny an 

 award, to the extent that the prevailing party during 

 the course of the proceedings engaged in conduct 

 which unduly and unreasonably protracted the final 

 resolution of the matter in controversy. 

28 U.S.C. S 2412(d)(1)(C). The Ivys claim that the rule 

required the court, in the exercise of its discretion, to make 

a finding of "dilatory conduct." Arguably, however, the court 

made just such a finding when it stated "the supplemental 

request involves work performed on motions for 

reconsideration of doubtful validity filed by both parties." 

Eleven Vehicles V, 36 F. Supp. 2d at 239. 

Nevertheless, it is not clear from the district court's 

opinion that it invoked its discretion under this provision. 

The opinion makes no reference to S 2412(d)(1)(C), and the 

court did not attempt any further explanation of its 

conclusion that the motions for reconsideration were"of 

doubtful validity." The district court, therefore, should 

provide on remand an adequate explanation. 

D. 

Finally, the Ivys claim that the court erred in failing to 

look at the particulars of the supplemental request, in 

isolation from the prior fee award. The court noted that in 

analyzing the Ivys' supplemental fee request, "rather than 

inquiring into the particulars of the second itemized 

 16 
statement, as a separate and distinct event, unlinked to the 

factors that informed the Court's rulings in thefirst 

itemized statement, the Court will consider what overall 

award of fees and expenses for all work counsel has

performed in this case, will yield a reasonable fee." Eleven 

Vehicles V, 356 F. Supp. 2d at 239. The court considered 

this approach to be consistent with the Supreme Court's 

direction that the EAJA "favors treating the case as an 

inclusive whole rather than as atomized line-items." Id. 

(quoting Jean, 496 U.S. at 161-62). The district court 

followed the Supreme Court's direction. 

What the district court appears to have had in mind was 

the need to impose some degree of proportionality between 

the fees for the underlying merits litigation and fees for fee 

litigation. At least one other court of appeals has found this 

to be an important consideration. See Coulter v. Tennessee, 

805 F.2d 146, 151 (6th Cir. 1986) (holding that district 

court did not err in limiting number of compensable

attorney hours spent litigating fees to 3-5% of hours spent 

litigating merits), cert. denied, 482 U.S. 914 (1987). At least 

one district court in this circuit concurs. See Jackson v. 

Philadelphia Housing Auth., 858 F. Supp. 464, 477 (E.D. 

Pa. 1994). A trial court should be free to view a case in this 

pragmatic manner, subject to the guidelines we have

articulated here. We see no error in the district court's 

global perspective of the Ivys' claims for attorney fees. 

IV. 

The Ivys also assert that the court abused its discretion 

when it neglected to consider their argument that the 

Government's memorandum in opposition to their 

supplemental request for fees and expenses was untimely 

and should not have received any consideration. The Ivys 

served their supplemental request on the Government by 

sending it via overnight courier on Tuesday, August 26, 

1997 for delivery on Wednesday, August 27, 1997. Local 

Rule 7.1 required that the Government's opposition to this 

motion be served on the Ivys within 14 days after service of 

the Ivys' supplemental request. E.D. Pa. R. 7.1(c). This local 

rule also provides that "[i]n the absence of a timely 

 17 
response, the motion may be granted as uncontested . . . ." 

Id. (emphasis added). 

Under Rule 6(a) of the Federal Rules of Civil Procedure, 

the 14-day deadline for serving an opposition to the motion 

expired either on Wednesday, September 10, 1997, as the 

Ivys contend, or on Friday, September 12, 1997 if overnight 

courier delivery is considered service by mail under the 

Federal Rules, as the Government contends. As the Ivys 

observe, however, it does not matter which of these two 

dates was the true deadline. The memorandum in 

opposition was served on Monday, September 15, 1997, as 

the Government now concedes. Regardless of whether 

overnight courier service qualifies as service by mail, the 

Government's opposition was not timely filed. 11 

Nevertheless, the district court appears to have considered 

the arguments made therein. 

Local court rules play a significant role in the district 

courts' efforts to manage themselves and their dockets. 

Smith v. Oelenschlager, 845 F.2d 1182, 1184 (3d Cir. 1988). 

Accordingly, we have held that it is not an abuse of 

discretion for a district court to impose a harsh result, such 

as dismissing a motion or an appeal, when a litigant fails 

to strictly comply with the terms of a local rule. Id. at 1184- 

85. However, this court has not written on a district court's 

discretion to depart from its own local rule, whether that 

rule is phrased in discretionary or mandatory terms. 

In Smith v. Oelenschlager, for example, the district court 

dismissed the plaintiff 's motion for a new trial because the 

plaintiff failed to strictly comply with a local rule requiring 

him to order a trial transcript from the court reporter. Id. 

at 1182-83. Instead, the plaintiff had sent a letter to the 

district judge and the magistrate to whom the case had 

been assigned requesting that one of them forward his 

request to the court reporter. Id. We affirmed the district 

court's dismissal of the motion, and found it unnecessary 

to reach the issue of whether a district court had discretion 

_________________________________________________________________ 

11. We need not decide whether service by overnight courier satisfies the 

requirements for obtaining three additional "mail" days under Rule 6(e). 

See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1430 (9th Cir. 1996) 

(describing debate among federal courts and collecting cases). 

 18 
to entertain a new trial motion even though the plaintiff 

had failed to comply with the terms of the local rule. See id. 

at 1184. However, Judge Mansmann, in dissent, 

strenuously argued that district courts have inherent 

discretion to depart from their own local rules where justice 

so requires, and they have the responsibility to exercise 

that discretion. See id. at 1185-86 (Mansmann, J., 

dissenting). 

Although the language of Local Rule 7.1(c) is phrased in 

mandatory terms requiring a party opposing a motion to file 

a response and opposing brief within fourteen days after 

service of the motion, the subsequent language of the rule 

does not mandate the grant of the motion in the absence of 

a timely motion and brief. The court, under the rule, "may," 

but is not mandated, to grant the motion as uncontested. 

Other courts of appeal that have addressed the authority of 

a district court to depart from its local rule have uniformly 

determined that district courts possess inherent discretion 

to depart. See Somlyo v. J. Lu-Rob Enter., Inc., 932 F.2d 

1043, 1048 (2d Cir. 1991); United States v. Diaz-Villafane, 

874 F.2d 43, 45-46 (1st Cir.) (noting and applying "widelyaccepted idea that a district court should be accorded 

considerable latitude in applying local procedural rules of 

its own making, and in departing from them."), cert. denied, 

493 U.S. 862 (1989); Braxton v. Bi-State Dev. Agency, 728 

F.2d 1105, 1107 (8th Cr. 1984) ("It is for the district court 

to determine what departures from its rules may be 

overlooked.").12 Some of these courts have permitted district 

courts to depart from local rules even when the local rule 

is phrased in mandatory language. In Somlyo, Chief Judge 

Oakes of the Second Circuit, in the face of a mandatory 

local rule, held: "The district court's inherent discretion to 

_________________________________________________________________ 

12. Other cases supporting the power of a court to depart from its own 

rule are: Allen v. United States Fidelity & Guar. Co., 342 F.2d 951, 954 

(9th Cir. 1965) ("It is for the court in which a case is pending to 

determine, except as it is bound by precedents set by higher authority in 

its own judicial hierarchy, what departures from statutory prescription 

or rules of court are so slight and unimportant that the sensible 

treatment is to overlook them."); Slanina v. William Penn Parking Corp., 

Inc., 106 F.R.D. 419, 422 (W.D. Pa. 1984) ("noncompliance with the local 

rules may be excused by the court in its discretion"). 

 19 
depart from the letter of the Local Rules extends to every 

Local Rule regardless of whether a particular Local Rule 

specifically grants the judge the power to deviate from the 

Rule." 932 F.2d at 1048. See also Braxton, 728 F.2d at 

1107. 

Several of these courts have made clear, however, that 

this discretion is not unfettered. For example, the Second 

Circuit in Somlyo stated that the district court "should ask 

whether the application of the letter of Local Rules to a 

particular case would cause an unjust result." 932 F.2d at 

1049. The First Circuit in Diaz-Villafane stated that to 

depart from its rules, a court "(1) must have a sound 

reason for doing so, and (2) must ensure that no party's 

substantial rights are unfairly jeopardized." 874 F.2d at 46. 

We believe these courts are generally correct in their 

approach permitting a district court to waive a requirement 

of its local rules in appropriate circumstances. We therefore 

hold that a district court can depart from the strictures of 

its own local procedural rules where (1) it has a sound 

rationale for doing so, and (2) so doing does not unfairly 

prejudice a party who has relied on the local rule to his 

detriment. 

In the instant case, the court failed to address the Ivys' 

argument that the Government's response was untimely 

filed. Thus, we are unable to determine whether the court 

abused its discretion. Therefore, on remand the district 

court should explain its apparent decision to waive the 14- 

day service requirement of Local Rule 7.1(c). 

V. 

Accordingly, the order of the district court will be 

vacated, and the case remanded for findings and 

explanatory statements consistent with this opinion. Each 

side to bear its own costs on this appeal. 

 20 
ALITO, Circuit Judge, concurring: 

I concur in the Court's judgment, but I write separately 

to explain my understanding of certain threshold 

jurisdictional questions and of the District Court's task on 

remand. 

I. 

I cannot agree with the majority's implicit conclusion that 

the issue of whether a Rule 59(e) motion is timelyfiled 

must be noticed sua sponte by this Court. The District 

Court rejected the government's Rule 59 argument and the 

government did not appeal this issue. Therefore, unless the 

question of timely filing implicated the District Court's 

subject matter jurisdiction, it is not properly before this 

Court. I believe that Rule 59 is merely a procedural bar, 

akin to a statute of limitations, that curtails a District 

Court's authority to permit an untimely motion to amend 

but does not deprive it of subject matter jurisdiction. 

Accordingly, I think that we need not reach the merits of 

this question. 

Rule 59(e) provides that "[a]ny motion to alter or amend 

a judgment shall be filed no later than 10 days after entry 

of the judgment." Fed. R. Civ. P. 59(e). Rule 6 further 

provides that a district court "may not extend the time for 

taking any action" under Rule 59(e). Fed. R. Civ. P. 6(d). In 

this sense, the time limit imposed by the rule is"mandatory 

and jurisdictional." De la Fuente v. Central Elec. Coop., Inc., 

703 F.2d 63, 64 n.1 (3d Cir. 1983) (quoting White v. New 

Hampshire Dep't of Employment Sec., 629 F.2d 697, 699- 

700 (1st Cir. 1980)). 

Simply because the District Court has no power to extend 

the Rule 59 filing period, however, does not mean that the 

rule implicates subject matter jurisdiction. 1 By its terms, 

_________________________________________________________________ 

1. Although this Court has occasionally referred to Rule 59 as 

"jurisdictional," none of these cases discussed whether the rule 

implicates subject matter jurisdiction. See, e.g., Schake v. Colt Indus. 

Operating Corp. Severance Plan for Salaried Employees, 960 F.2d 1187, 

1192 (3d Cir. 1992); Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 

1362 (3d Cir. 1990). I believe that these opinions used the language of 

"jurisdiction" only to emphasize the mandatory nature of the 10-day time 

limit, not to imply some connection with Article III subject matter 

jurisdiction. 

 21 
Rule 59 does not govern subject matter, but rather sets a 

mandatory procedural limitation on the District Court's 

discretion to entertain a motion to amend. Cf. Curacao 

Drydock v. M/V Akritas, 710 F.2d 204, 206 (5th Cir. 1983) 

(construing Fed. R. Civ. P. 4(a), governing timely notice of 

appeals, as procedural but not implicating subject matter 

jurisdiction). Viewing Rule 59 as a merely procedural bar 

accords with Rule 82's mandate that "[t]hese rules shall not 

be construed to extend or limit the jurisdiction of the 

United States District Courts." Fed. R. Civ. P. 82. See also 

14 Moore's Federal Practice S 82.02 (1999) ("For the purpose 

of [Rule 82], jurisdiction means subject matter jurisdiction") 

(emphasis in original); Owen Equip. & Erection Co. v. 

Kroger, 437 U.S. 365, 370 (1978) ("It is axiomatic that the 

Federal Rules of Civil Procedure do not create or withdraw 

federal jurisdiction."). Judge Flaum, writing for six judges 

in an evenly-split Seventh Circuit decision, elucidated this 

point: 

 Subject matter jurisdiction is not . . . necessarily the 

 appropriate approach to the 10-day timeline of [Rule 

 59]. Subject matter jurisdiction is controlled by a 

 statute explicitly labeled as such. Neither Rule 59 not 

 Rule 6 are styled jurisdictional. Moreover, subject 

 matter jurisdiction is informed by concerns for 

 federalism. No such concern is present here. . . . Had 

 Congress intended the 10-day time period to be 

 interpreted like subject matter jurisdiction, it would 

 have said so; yet it was silent. 

Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 

1569 (7th Cir. 1990) (en banc) (Flaum, J., concurring). 

Finally, I would note that both the Supreme Court and 

this Court have recognized an equitable exception to Rule 

59. This "unique circumstances" exception, first announced 

in Thompson v. INS, 375 U.S. 384 (1964) (per curiam), 

permits a litigant who relies on an extension improperly 

issued by the District Court to perfect his appellate rights 

by filing a Rule 59 motion within the period extended by 

the court's order. See Kraus, 899 F.2d at 1362. Although 

this narrow exception does not apply to the present case, 

the mere fact that there is an equitable exception shows 

that Rule 59's strictures do not implicate Article III subject 

 22 
matter jurisdiction: "[e]quitable tolling or estoppel simply is 

not available when there are jurisdictional limitations." 

Shendock v. Director, Office of Workers' Compensation 

Programs, 893 F.2d 1458, 1466 (3d Cir. 1990) (en banc). 

If, as I conclude, Rule 59 does not implicate subject 

matter jurisdiction, then this Court is not required to notice 

the issue of untimely filing on its own initiative. While I 

have no substantive disagreement with the Court's 

conclusion that Rule 59(e) does not apply to supplemental 

fee requests, I believe that we need not reach this issue 

because the government failed to preserve it for appeal. 

II. 

I agree with the Court that the District Court had 

jurisdiction under the Equal Access to Justice Act (EAJA) to 

consider the Ivys' supplemental request for attorney fees 

and expenses. I would, however, employ a somewhat 

different analysis in reaching this conclusion. 

The EAJA requires that a party seeking a fee award 

submit its application to the court "within thirty days of 

final judgment in the action." 28 U.S.C. S 2412(d)(1)(B). The 

majority holds that "the underlying `action' here is the 

Government's forfeiture proceeding . . . . The `final 

judgment' contemplated by the statute . . . is the[March 

26, 1996] judgment dismissing that forfeiture proceeding." 

Maj. Op. at 9. The majority then dismisses the District 

Court's August 30, 1996 ruling awarding, inter alia, a 

certificate of reasonable cause to the government as 

"ancillary" and "involv[ing] only post-judgment residual 

proceedings." Maj. Op. at 9. 

I disagree. In my view, the order granting a certificate of 

reasonable cause was an " `integral part' of the final 

judgment on the merits even though not entered 

concurrently with that judgment." United States v. One 

1986 Ford Pickup, 56 F.3d 1181, 1185 (9th Cir. 1995) (per 

curiam). The Supreme Court has emphasized that the 

finality requirement should be given "a practical rather 

than a technical construction." Firestone Tire & Rubber Co. 

v. Risjord, 449 U.S. 368, 375 (1981) (citation omitted). 

Under this functional standard, "a `final decision' generally 

 23 
is one which ends the litigation on the merits and leaves 

nothing for the court to do but execute the judgment." 

Catlin v. United States, 324 U.S. 229, 233 (1945). As the 

Ford Pickup court noted, the decision whether to grant a 

certificate of reasonable cause is functionally part of the 

merits judgment: a certificate may be granted only by the 

judge presiding over the forfeiture action; it is binding on 

the parties and bars any future action for damages; and it 

must be issued soon after the entry of judgment, before 

costs are taxed. See 56 F.3d at 1185. Most importantly, the 

decision of whether or not to grant the certificate involves 

questions of fact and law that are intimately tied to the 

merits of the underlying forfeiture action.2 On this basis, I 

believe that the relevant "judgment" in this case -- the one 

"which end[ed] the litigation on the merits," Catlin, 324 U.S. 

at 233 -- was the August 30, 1996 order granting the 

certificate of reasonable cause. 

Under the EAJA, a "final judgment" is "a judgment that 

is final and not appealable." 28 U.S.C. S 2412(d)(2)(G). The 

30-day period for filing an EAJA attorneys fee claim does 

not begin to run "until the time for filing a notice of appeal 

[has] expired." Baker v. Sullivan, 956 F.2d 234, 235 (11th 

Cir. 1992) (per curiam). Because the parties filed Rule 59(e) 

motions for reconsideration of the District Court's August 

30 judgment, the time for appeal did not begin to run until 

"the entry of the order disposing of the last such motion 

outstanding." Fed. R. App. P. 4(a)(4)(C). 

Thus, the appellate door in this case did not close until 

60 days after the May 30, 1997, adverse ruling on the 

motions for reconsideration. See Fed. R. App. P. 4(a)(1) 

(setting 60-day limit for appeal in cases where United 

States is a party). The Ivys' motion for supplemental fees 

was filed within 30 days of the end of the appeals period, 

_________________________________________________________________ 

2. The litigation over the certificate of reasonable cause cannot be 

dismissed as mere "cost litigation." Although the grant of the certificate 

did preclude Ivy from recovering costs for the forfeiture claim, it also 

addressed substantive issues of liability that would be highly relevant if 

Ivy chose to file a S 1983 claim against the seizing officers or 

prosecutors 

in the case. See 28 U.S.C. S 2465 (if certificate is issued, neither the 

person who made the seizure nor the prosecutor shall"be liable to suit 

or judgment on account of such suit or prosecution"). 

 24 
placing it well within the EAJA's statutory window of 

opportunity. Because I believe that the supplemental 

motion was filed within the statute's 30-day time limit, I see 

no need to consider whether the District Court could, in its 

discretion, entertain a later-filed supplemental fee request. 

III. 

Finally, I am in general agreement with part III of the 

opinion of the Court.3 I write separately, however, to 

express my view that the "proportionality review" alluded to 

in part IIID is necessarily limited in scope. Once an adverse 

party has made a sufficiently specific challenge to a 

particular expense area, a District Court should certainly 

look back to previous awards in the same area in 

determining the reasonableness of the requested 

supplemental fee. In this sense, every supplemental fee 

request entails a "global" review of the entire fee award. 

I do not, however, read the opinion of the Court to

authorize a District Court to conduct a plenary review of an 

entire EAJA fee award for "proportionality" based on a 

general allegation of unreasonableness by the objecting 

party. Such a reading would vitiate the well-established 

principle that a District Court cannot sua sponte order a 

reduction of what it perceives to be an excessive fee. See, 

e.g., McDonald v. McCarthy, 966 F.2d 112, 118-19 (3d Cir. 

1992); Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 

1990); Bell v. United Princeton Properties, Inc., 884 F.2d 

713, 720 (3d Cir. 1989). Permitting such free-ranging 

discretion would unwisely abandon "the carefully crafted 

set of rules for the exercise of district court discretion in fee 

_________________________________________________________________ 

3. For the reasons stated above, I do not agree with the majority's 

conclusion in part III(A) that the motion to reconsider the grant of a 

certificate of reasonable cause merely "litigated the issue of the Ivy's 

entitlement to costs for the underlying forfeiture claim." Maj. Op. at 13. 

I agree, however, with the majority's general point that the District 

Court 

may decline to award fees for unsuccessful litigation on particular 

issues, see, e.g., Hensley v. Eckerhart, 461 U.S. 424 (1983), especially 

when, as the District Court found here, the party was merely "rehashing" 

previous arguments "of doubtful validity." United States v. Eleven 

Vehicles, 36 F. Supp. 2d 237, 239 (E.D. Pa. 1999). 

 25 
shifting cases" for "some standardless rule of district court 

gestalt." Cunningham v. City of McKeesport, 753 F.2d 262, 

267 (3d Cir. 1985). 

On remand, the District Court should be free to consider 

(and explain in its opinion) whether properly-challenged fee 

categories were "excessive" in light of both the initial and 

the supplemental fee requests. However, the government's 

bare allegation "in general terms that the time spent was 

excessive" is not, in my view, enough to empower the 

District Court to conduct a generalized proportionality 

review of the entire fee award. See Bell, 884 F.2d at 720. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 26