United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided July 20, 2012

No. 05-1097

STATE OF NEW JERSEY, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

UTILITY AIR REGULATORY GROUP, ET AL.,

INTERVENORS

Consolidated with 05-1104, 05-1116, 05-1118, 05-1158, 

05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 

05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 

05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 

06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294

On Tribal Movants’ Motion for Costs of Litigation Including 

Attorney Fees

Riyaz A. Kanji and David A. Giampetroni filed the 

motion for costs of litigation including attorney fees for 

intervenors for petitioners Tribal Movants.
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Matthew R. Oakes, Trial Attorney, U.S. Department of 

Justice, filed the opposition for respondent Environmental 

Protection Agency.

Before: ROGERS, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge BROWN.

PER CURIAM: In our earlier decision in this case, New 

Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 2011), we held that 

Movants, a group of Native American tribes and tribal 

associations who intervened on behalf of petitioners in the 

underlying Clean Air Act litigation, were entitled to fees and 

costs under section 307(f) of the Act. When the parties were 

unable to agree on the amount of fees, Movants filed an 

updated motion seeking $369,027.25, including compensation

for 1,181 hours of work and for costs. For the reasons set 

forth below, we agree with EPA that the fee request is 

excessive and thus award substantially less than Movants 

seek. 

Movants “bear the burden of demonstrating the 

reasonableness of each element of their fee request.” Am. 

Petroleum Inst. v. EPA, 72 F.3d 907, 912 (D.C. Cir. 1996) 

(API). To calculate a reasonable fee, we use the lodestar 

method, multiplying a reasonable rate by the reasonable 

number of hours. See id.; see also Hensley v. Eckerhart, 461 

U.S. 424, 433 (1983). EPA does not object to Movants’ 

proposed hourly rates, and in order to simplify things 

recommends that we use a flat rate of $305.125 (an average it 

calculates by dividing the total award Movants seek by the 

number of hours they claim). Because Movants do not object, 

we shall base our award on $305.125 per hour. Moving on to 
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the second issue, the reasonable number of hours, we must 

closely scrutinize billing entries “in light of the ‘reasonable’ 

and ‘appropriate’ standards set forth in the statute,” Michigan 

v. EPA, 254 F.3d 1087, 1090 (D.C. Cir. 2001) (per curiam)

(quoting 42 U.S.C. § 7606(f)), recognizing that “items of 

expense or fees that may not be unreasonable between a first 

class law firm and a solvent client[] are not always supported 

by indicia of reasonableness sufficient to allow us justly to tax 

the same against the United States.” API, 72 F.3d at 912

(alteration and internal quotation marks omitted). 

“[S]upporting documentation must be of sufficient detail and 

probative value to enable the court to determine with a high 

degree of certainty that such hours were actually and 

reasonably expended[.]” Role Models Am., Inc. v. Brownlee, 

353 F.3d 962, 970 (D.C. Cir. 2004) (internal quotation marks 

omitted). Where “petitioners have not carried their burden,” 

this court “make[s] adjustments,” reducing the award as 

appropriate. API, 72 F.3d at 912; see also Envtl. Def. Fund, 

Inc. v. EPA, 672 F.2d 42, 54 (D.C. Cir. 1982) (“[A]ppellate

judges are themselves experts in assessing the reasonableness 

of an attorney’s fee award, and . . . the appellate court may 

independently review the record, or itself set the fee.” 

(omission and internal quotation marks omitted)).

With these principles in mind, we consider the 

reasonableness of the hours Movants seek for each category 

of tasks. 

Initial case preparation: Movants request compensation 

for 79.75 hours of initial case preparation. EPA argues that 

Movants’ billing records are vague and urges us to award fees 

for only 20 hours. We agree with EPA. Movants’ “generic” 

time records—e.g., “[r]eview[ing] case materials,” and 

“[r]eview of key strategy issues and mercury materials,” each 

for eight hours—“are inadequate to meet a fee applicant’s 
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heavy obligation to present well-documented claims.” Role 

Models Am., Inc., 353 F.3d at 971 (internal quotation marks 

omitted). Seeking to remedy this lack of specificity, Movants 

have submitted declarations explaining that the attorneys were 

working to “comprehend the scientific, factual and legal 

issues that were central to the case,” and listing some specific 

materials read. Kanji Reply Decl. ¶ 40. Although such 

declarations can offer some degree of support, see In re Segal, 

145 F.3d 1348, 1353 (D.C. Cir. 1998) (per curiam), they carry

significantly less weight than specific contemporaneous 

records and fail to establish with the requisite “high degree of 

certainty,” Role Models Am., Inc., 353 F.3d at 970 (internal 

quotation marks omitted), that all the requested hours were 

reasonable. We shall thus reduce the compensable hours to

the 20 EPA suggests.

Intervention motion: Movants request fees for 35 hours of 

partner time spent on their ultimately unopposed motion to 

intervene. Urging us to award compensation for only 15 

hours, EPA insists that Movants’ request is excessive for an 

unopposed motion and that the work should have been done 

by attorneys billing at lower rates. Again, we agree. Although

the fact that the motion was ultimately unopposed would not 

be dispositive if the lack of opposition was unforeseeable, see 

API, 72 F.3d at 912 (“It is not necessary that a fee-petitioning 

client and its attorney have acted with the 20/20 acuity of 

hindsight in developing their arguments in order to collect 

attorneys’ fees.”), Movants could have saved a great deal of 

time by first asking EPA whether it would oppose the motion.

Responding to EPA’s second point, Movants explain that 

their law firm, Kanji & Katzen, used a partner for the motion 

because the associates were “extremely busy.” Kanji Reply 

Decl. ¶ 33. This justification is entirely unacceptable. Indeed, 

we suspect that had the firm been charging a private client for 

these hours, it would have billed the partner time at the hourly 
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rate of the “extremely busy” associates. The taxpayers are 

surely entitled to the same courtesy. Accordingly, we shall 

award compensation for the 15 hours that EPA believes 

reflects the value of the work performed.

Administrative proceedings: Movants request 

compensation for 36.5 hours spent preparing comments in 

pre-litigation administrative proceedings. EPA argues that 

time spent in administrative proceedings is never 

compensable. But we need not resolve this dispute because 

Movants’ administrative work—challenging an ancillary 

regulation—had nothing to do with their efforts as

intervenors, the only activity that entitles them to fees. See

New Jersey, 663 F.3d at 1284 (explaining that Tribal Movants 

are entitled to fees for their “role as intervenors,” and 

distinguishing that from “their role as petitioners”); see also

API, 72 F.3d at 913 (denying “fees [that] are not sufficiently 

connected to the litigation at issue to require the taxpayers to 

reimburse them”). Accordingly, we shall deny this portion of 

Movants’ request. 

Scheduling and coordinating with other parties: Movants 

seek fees for 29 hours spent on the briefing schedule, 

docketing statement and statement of issues, and coordinating 

with other parties as to these matters. EPA believes that only 

15 hours are justified. As is the case with many of Movants’ 

billing records, the records regarding these activities lack the 

specificity needed not only to justify the full amount sought 

for these simple tasks, but also to assure us that no duplication 

occurred between Movants’ efforts and those of the 

petitioners. See Role Models Am., Inc., 353 F.3d at 972 

(“Duplication of effort is another basis on which the hours 

seem excessive.” (alteration and internal quotation marks 

omitted)). Unable to ascertain that more than the 15 hours 
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EPA suggests were reasonably expended, we shall award 

compensation accordingly. 

Merits briefing: Movants request compensation for 

578.75 hours—approximately fourteen weeks of attorney 

time—for preparing their opening and reply briefs. EPA 

insists that the request is excessive and that compensation for 

“at most” 300 hours is appropriate. Updated Opp. 12. We 

agree that the request is patently excessive. To begin with, 

Movants played a “narrow” role in the litigation, New Jersey, 

663 F.3d at 1283 (internal quotation marks omitted), focusing 

only on whether EPA’s regulations abridged tribal fishing 

rights. Such a focused contribution, though important, should 

have taken substantially less time. See API, 72 F.3d at 916 

(deducting hours to reflect “focused challenge” fee-seeking 

party mounted). Yet Movants seek reimbursement for far 

more hours than we have awarded to petitioners responsible 

for briefing an array of arguments. See, e.g., Wilkett v. ICC, 

844 F.2d 867, 877 (D.C. Cir. 1988) (allowing 300 hours for 

merits briefing given detailed itemization of billed hours); 

API, 72 F.3d at 917 (awarding, after reduction, 139 hours for 

lead petitioners’ opening and reply briefs). Moreover, 

Movants’ billing records brim with entries like “[c]ontinue 

draft of brief; research re same” (27.5 hours over three days), 

“[c]ontinue revisions of draft mercury brief” (4 hours), 

“[c]ontinue drafting/revising of Opening Brief” (8.5 hours), 

“[c]ontinue drafting/ revising of mercury brief” (7.25 hours), 

“[c]ontinue draft of mercury brief” (9.25 hours), “[r]eview of 

and revisions to Opening Brief” (14 hours), “[r]esearch and 

brainstorm reply brief issues” (7.25 hours), “[r]esearch 

mercury reply brief issues” (14.25 hours over two days), 

“[r]esearch reply brief issues” (5.25 hours), “[r]esearch and 

draft reply brief” (9 hours), and “[d]raft reply brief” (22.25 

hours over two days). When used to describe hundreds of 

hours of work, such entries are “inadequate to meet a fee 
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applicant’s heavy obligation to present well-documented 

claims,” let alone to establish why the narrow issue the Tribes 

addressed required such an extraordinary number of hours. 

See Role Models Am., Inc., 353 F.3d at 971 (finding 

inadequate entries like “[r]esearch and writing for appellate 

brief”). Revealing just how excessive this request is, Movants

seek compensation for 73.75 hours evaluating EPA’s brief, 

only twenty-four pages of which addressed their arguments, 

and another 73 hours spent on standing, preparing detailed 

declarations from “each Treaty Tribe,” Albright Decl. ¶ 2, 

even though Movants only needed to show that one tribe had 

standing, see, e.g., Rumsfeld v. Forum for Academic & Inst. 

Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of 

one party with standing is sufficient to satisfy Article III’s 

case-or-controversy requirement.”). For all these reasons, we 

shall award reimbursement for 25% of the hours requested, 

i.e., 144.7 hours. 

Joint appendix and Rule 28(j) letter: Movants request 

33.5 hours for time spent assuring that their materials were 

properly represented in the joint appendix, as well as 3 hours 

for preparing a Rule 28(j) letter they filed before oral 

argument, see Fed. R. App. P. 28(j). EPA objects to the hours 

spent on the joint appendix, arguing that they are excessive 

and that the supporting descriptions are overly vague. 

Because the descriptions are indeed generic, e.g.,

“[p]reparation of joint appendix materials,” “[c]ompilation of 

joint appendix materials,” and, twice, “[c]ompilation of joint 

appendix,” we cannot be sure that Movants avoided 

duplication of effort between the various petitioners working 

on the document, much less that all of the requested hours 

were reasonably expended for these ministerial tasks. 

Accordingly, as EPA requests, we shall deduct 16.5 hours

from Movants’ request and award compensation for 20. 
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Oral argument: Movants seek compensation for 121 

hours preparing for oral argument. Although Movants did not 

participate in oral argument—ten days before the scheduled 

date this court issued an order limiting argument to certain 

other issues—they reasonably expected to, so some 

preparation was appropriate. EPA agrees, but argues that the 

number of hours requested is exorbitant. EPA is correct. Over 

three weeks of attorney time is grossly excessive given not 

only that Movants knew ten days before argument that they 

would have no role, but also that during the time Movants 

were appropriately preparing for oral argument, they, unlike 

petitioners, had to focus solely on the interaction between the 

challenged rules and tribal fishing rights. See Wilkett, 844 

F.2d at 878 (72.9 hours of oral argument preparation “plainly 

excessive”); API, 72 F.3d at 917 (126.25 hours of oral 

argument preparation excessive). Accordingly, we shall award 

reimbursement for 25% of the hours requested, i.e., 30.25 

hours. 

Post-decision activities: Movants request compensation 

for 37 hours of post-decision work, including participation in 

the motion for expedited issuance of the mandate and 

commenting on motions opposing rehearing en banc and 

certiorari. EPA argues that the request is vague and excessive

and should be reduced to 20 hours. Because the descriptions 

generically discuss “review[ing]” various things, e.g.,

“[r]eview and address issues related to Motion to Expedite” 

and “[r]eview petitions for rehearing and rehearing en banc,”

Movants have failed to meet their burden to show that all

hours requested were reasonably expended and avoided 

duplication. We shall therefore make the requested reduction.

Attorney fees: Movants seek compensation for 227.5 

hours spent on their motion for fees, including 42.5 hours for 

the initial motion and 185 hours for their efforts responding to 
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EPA’s opposition. EPA argues that these hours are “grossly 

excessive,” Updated Opp. 17, pointing out that we have 

previously treated 69 hours for fee work as “perhaps 

excessive for a fee petition of relatively ordinary difficulty,” 

Sierra Club v. EPA, 769 F.2d 796, 812 (D.C. Cir. 1985). 

Although, as our earlier opinion in this case readily 

demonstrates, Movants’ request was hardly one of “ordinary 

difficulty,” Movants have nonetheless failed to demonstrate 

that the undertaking was so herculean that it required nearly 

six weeks of attorney time. Given this, we shall award 

compensation for the 91 hours suggested by EPA. 

In sum, Movants reasonably expended 355.95 hours on 

the litigation. Multiplying this by $305.125 per hour, we 

award Movants $108,609.24 in compensation for attorney 

time. We also award Movants the $3,186.50 in costs they seek 

and that EPA does not contest. 

So ordered.
BROWN, Circuit Judge, concurring: An old song laments 

that “nothing from nothing leaves nothing.” BILLY PRESTON, 

Nothing from Nothing, on THE KIDS AND ME (A&M Records 

1974). Logically, it should follow that nothing plus nothing 

leads to the same result. But, in the rarefied atmosphere of 

attorneys’ fees litigation and in light of this Court’s divided 

decision in New Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 

2011), nothing times nothing is apparently worth a great deal. 

Since I believe that no matter how carefully we parse the 

separate parts of the intervenors’ request, anything above zero 

is excessive, I hope the en banc court will revisit this question 

in the near future. Meanwhile, under compulsion of our 

earlier case, I reluctantly concur.