The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Presently before this Court is Plaintiff Interfaith Community
Organization's ("ICO"), and ECARG, Inc.'s ("ECARG") (hereinafter
collectively referred to as the "Petitioners") application for an
award of litigation costs, including attorneys' fees and expert
On May 21, 2003, this Court entered an Amended Opinion granting
judgment in favor of ICO and ECARG with regard to ICO and ECARG's
42 U.S.C. § 7002(a)(1)(B) claims against Honeywell. See
Interfaith Community Organization v. Honeywell Int'l Inc.,
263 F.Supp. 2d 796 (D.N.J. 2003). The Amended Opinion Awarded ICO and
ECARG fees and costs that were "incurred in furtherance of its
RCRA claim against Honeywell in this action." Id. at 850.
On July 18, 2003, ICO filed Plaintiff's Application for an
Award of Litigation Costs, Including Attorneys' Fees and Expert
Witness' Fees ("ICO Fee Application"). The ICO Fee Application
sought reimbursement of $4,706,506.09 in attorneys fees and
expenses. On November 13, 2003, ICO filed Plaintiff's Reply Brief
in Support of Their Application for an Award of Litigation Costs,
Including Attorneys' Fees and Expert Witness' Fees ("ICO Reply"),
reducing ICO's request from $4,706,506.09 to $4,587,990.22.
On July 21, 2003, ECARG filed a Petition for an Award of
Attorneys' Fees, Expert Witness Fees and Other Costs Related to
ECARG's RCRA claim ("ECARG Fee Petition"). The ECARG Fee Petition
sought $7,652,080.24 in attorneys' fees and expenses. On November
14, ECARG filed a Reply in Further Support of the ECARG Fee
Petition ("ECARG Reply"), reducing its request from $7,652,080.24
The parties to this action appeared before this Court on May 4,
2004 for a hearing on the record.
Section 7002(e) of the Resources Conservation and Recovery Act
("RCRA") 42 U.S.C. 6972(e) provides that the Court "may award
costs of litigation (including reasonable attorneys' and expert
witness fees) to any prevailing or substantially prevailing
party, whenever the court determines such an award is
appropriate." This Court having determined that ICO and ECARG are
prevailing parties in this litigation, stating in an Order dated
May 16, 2003:
Having prevailed on their RCRA claims, [ICO] and
ECARG are entitled to an award of attorneys' fees,
costs and expenses they have incurred in furtherance
of their RCRA claims in this action.
Lindy Brothers Builders, Inc. of Philadelphia v. American
Radiator & Standard Corp., 487 F.2d 161, 167 (3d Cir. 1971)
establishes the principle that the "lodestar" is calculated by
multiplying the number of hours reasonably expended by a
reasonable hourly rate. The lodestar method is presumed to yield
a reasonable fee. Washington v. Philadelphia Court of Common
Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (internal citations
There are several issues that must be addressed in determining
the award of attorneys' fees and costs in this matter. The first
issue is whether the ECARG and ICO petitions are duplicative
(i.e. whether these two parties seek separate compensation for
the same work as they both litigated RCRA claims against
Honeywell). Second, as applies to counsel for ICO, Terris,
Pravlik & Millian, L.L.P. (the "Terris Firm") and counsel for
ECARG, Wallace King Marraro & Branson, P.L.C. ("Wallace King"),
whether New Jersey or Washington, D.C. rates should apply, and
what those rates are. Third, this Court, in calculating the
"lodestar" must determine whether the claimed number of hours
expended by counsel here are reasonable. Thus, this Court must
determine how much of the parties' work is recoverable, what rate
to apply to the work, and multiply that rate by the reasonable
number of hours expended to arrive at the "lodestar" amount.
A. Is the Total Fee Recovery Duplicative?
The first issue that this Court must assess in deriving the
"lodestar" is whether or not ICO and ECARG's pursuit of their
RCRA claims were unnecessarily duplicative. Honeywell argues that
whatever fee this Court awards, it should be tailored to reflect
the reasonable and necessary costs for trying the RCRA claim one
time. Honeywell asserts that ICO and ECARG's fee applications
seek reimbursement as if each applicant was the sole RCRA
plaintiff and was required to bear the entire cost of prosecuting
the RCRA claim, but that in reality the two applicants prosecuted
nearly identical RCRA citizen suit claims that sought and
achieved a single result.
Both ICO and ECARG incurred an enormous amount of attorney
hours; more than 10,000 by ICO and 9,000 by ECARG, and paralegal
hours; 2,797 by ICO and 4,738 by ECARG, prosecuting their RCRA
claims. Honeywell asserts even where ICO and ECARG claim to have
coordinated efforts, that they have done so in name only. As an
example, Honeywell notes that ICO and ECARG filed a joint motion
for summary judgment, but each spent large amounts of time on the
unsuccessful effort; 362.5 attorney hours by ICO and 200 attorney
hours by ECARG. While this is a significant amount of time,
Plaintiff does not demonstrate how a large number of hours is
necessarily indicative of duplicative efforts or lack of
Ultimately, it is the duty of the party seeking fees to exclude
such hours from its initial calculation of the total hours
expended. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
Honeywell asserts that while ICO and ECARG are within their
rights to pursue very similar claims independently, that
duplicative and redundant costs cannot be shifted to Honeywell.
See e.g. Halderman v. Pennhurst State Sch. & Hosp.,
49 F.3d 939, 943-44 (3d Cir. 1995). Honeywell insists that it should only
be liable for the fees and costs necessary to the litigation of a
"single and well-managed action." Gerena-Valentin v. Koch,
739 F.2d 755, 759 (2d Cir. 1984).
ECARG is essentially an intervener in this matter,
independently choosing to file a complaint against the Defendant,
Honeywell. Courts in other circuits have awarded interveners
attorneys' fees under fee-shifting statutes. See e.g. EPA v.
Envtl. Waste Control, Inc., 710 F.Supp. 1172, 1248 (N.D.Ind.
1989) aff'd, 917 F.2d 327 (7th Cir. 1990) (intervener
entitled to fees under RCRA).
Furthermore, ICO and ECARG are not fully aligned in interest.
ECARG was a Defendant for the entire litigation against whom
Plaintiffs sought a finding of liability. Only later did ECARG
choose to pursue its RCRA claim against Honeywell.
Furthermore, ECARG and ICO are adverse parties in this
litigation, thus ECARG had no control over ICO's case. Also,
while ICO, as an environmental group, focused its claim on the
imminent and substantial endangerment that the chromium
contamination presents to the environment at or near the Site,
ECARG, as owner of the Site, presented a RCRA claim that was more
focused on the human health risks posed by contamination at the
While it is the case that both ICO and ECARG pursued RCRA
claims, this similarity alone is insufficient to render all of
their work as duplicative. This was an immensely complicated
litigation, and ICO and ECARG were adverse parties throughout.
Accordingly, this Court declines Honeywell's request to treat ICO
and ECARG as a "single prevailing party" for fee recovery
B. Appropriate Billing Rate
The second issue that must be determined with regard to this
fee application is what fee should apply to the Terris Firm and
to Wallace King.*fn1 Both of these firms are based in
Washington, D.C. and wish to have the Washington, D.C. market
rates apply to their fee applications. Honeywell asserts that New
Jersey rates should apply, but that if this Court is to determine
that Washington, D.C. rates should apply, that those rates be
controlled by the Laffey Matrix.*fn2
The starting point in determining a reasonable hourly rate is
the attorneys' usual billing rate, but this is not dispositive.
See Alan Hirsch & Diane Sheehey, Federal Judicial Center,
Awarding Attorneys' Fees & Managing Fee Litigation 20 (1994);
compare Cunningham v. City of McKeesport, 753 F.2d 262, 268
(3d Cir. 1985) (adopting firm's regular billing of $100 per hour
for purposes of lodestar calculation), vacated on other
grounds, 478 U.S. 1015 (1986), original decision reinstated,
807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987)
with Student Pub. Interest Research Group v. AT & T Bell
Lab., 842 F.2d 1436, 1443-45 (3d Cir. 1988) (rejecting approach
of adopting attorneys' actual billing rates for more flexible
community market rate approach).
In Blum v. Stenson, 465 U.S. 886, 890 (1984), the Supreme
Court held that attorneys from the Legal Aid Society of New York,
a non-profit law office, were entitled to a fee based on
prevailing market rates rather than the cost to such lawyers for
providing their services. In AT&T Bell Laboratories, the Third
Circuit has determined the, under Blum, that the normal billing
rate of the Terris Firm was below the market rate and that fee
awards for the Terris Firm should be based on community market
rates rather than the Terris Firm's actual billing rate. AT&T
Bell Lab., 842 F.2d at 1448. That Court also affirmed the
district court's use of rates based on the Washington, D.C.
market, in which the Terris Firm is located. Id.
In fee cases involving out of state counsel, the question
arises as to whether the governing hourly rate should be the
prevailing rate of the forum community or the out of state
counsel's home community. The Third Circuit has not developed a
universal, per se, answer to this issue.
In 1985, the Third Circuit established a Task Force on Court
Awarded Attorney Fees to address the issue of fee awards in this
circuit. The Task Force recommended the adoption of the "forum
rate" rule. Report of the Third Circuit Task Force on Court
Awarded Attorney Fees, 108 F.R.D. 237, 260 (1985). The Task Force
explicitly indicated that this recommendation was "contrary to
current Third Circuit practices." Id. at 261, n. 73. The Task
Force unequivocally stated that where there is a difference
between the forum's rate and that of the petitioning attorney,
"[t]he Third Circuit uses the rate applicable in the locale in
which the attorney practices." Id. at 249, n. 40.
Here, ICO and ECARG seek an award based on market rates in
Washington, D.C., where the Terris Firm and Wallace King are
located. Despite the recommendation of the Task Force, "[n]either
a task force report nor a subsequent panel can overrule a
published opinion of this Court." PIRG v. Windall,
51 F.3d 1179, at 1186 n. 9 (3d Cir. 1995). It is curious that ICO has
cited Windall because, in that case, the Third Circuit adopted
a general rule that the forum community is the relevant community
for the purposes of determining hourly rates unless the fee
applicant can show that the case requires the special expertise
of counsel from the non-forum location or that counsel from the
local forum are unwilling to take the case. Id. at 1187-88.
Ultimately, however, case law is inconsistent with regard to this
Most Courts in this Circuit have held that, absent special
expertise or inability to obtain local counsel, the forum rates
should apply. The Task Force has indicated that the forum rate
rule should be applied except "when the need for `special
expertise of counsel from a distant district is shown' or when
local counsel are unwilling to handle the case."
108 F.R.D. at 261. Accordingly, this Court must determine whether this matter
required the special expertise of the Terris Firm or Wallace
King, or, in the alternative, that local counsel were unwilling
or unable to handle this case.
At the time that this suit was initiated, the Terris Firm had
litigated hundreds of major environmental cases on behalf of
citizens for more than twenty-five years. The Terris Firm's
experience was directly related to such issues in this case as
the notice requirement, standing, and preclusion due to
governmental activities. Furthermore, when this matter was
initiated, the Terris Firm was litigating another RCRA matter
involving the same New Jersey statutes and standards at issue
here. ICO v. Shinn, Civ. No. 93-4774 (JCL), Slip. Op. (D.N.J.
November 24, 1998). Thus, ICO had expertise not only in the
general field of environmental cases brought by citizens, but
more specifically, with regard to the particular issues of this
case. Indeed, this Court is well aware that the Terris Firm has
successfully litigated many citizen suits before this Court,
various Courts of Appeal, and the United States Supreme Court.
This Court further notes that when ECARG decided to pursue its
RCRA claim against Honeywell, that they retained Washington, D.C.
counsel. Moreover, after Honeywell lost the RCRA claim in
district court, it too retained counsel from Washington, D.C.
Since all of the major parties involved in this litigation have
retained counsel from Washington, D.C., ICO's retention of
Washington D.C. counsel strikes this Court as imminently
reasonable. In a case where all counsel were from Washington,
D.C., the Third Circuit used Washington, D.C. rates because "the
case was briefed and argued based on the [Washington] D.C.
market." AT&T Bell Laboratories, 842 F.2d at 1442, n. 4 (1988).
Furthermore, the forum rate rule is allowed "when local counsel
are unwilling to handle the case." 108 F.R.D. at 261. There is
some disagreement between the parties as to what quantum of proof
is necessary in order to demonstrate that local counsel are
unwilling to handle a matter. Honeywell asserts that ICO must
demonstrate that they were unable to obtain competent New Jersey
counsel in this case. This Court does not read the case law to be
so narrow. When a litigant has reason to know that competent
local counsel are unavailable, it strikes this Court as a
needless exercise in futility to go through the process of
searching for something that is not there. See e.g., Charles
Q. by & Through Beilharz v. Houston, 1997 U.S. Dist. LEXIS 17308
(M.D.Pa 1997); Church of the Am. Knights of the Ku Klux Klan v.
City of Erie, 2000 U.S. Dist., LEXIS 20019 (W.D. Pa 1998).
ICO had previously sought to protect residents from chromium
exposure and to clean up properties. Affidavit of Joseph Morris,
¶ 2. ICO sought to bring litigation to clean up the
contamination. Id. at ¶ 4. However, as a community group, ICO
was not in a position to pay an attorney any compensation, not
even for expenses. Id. at ¶ 5. In their search for competent
legal counsel, ICO was repeatedly turned down by local attorneys
for a number of reasons: the case involved political risk, the
case involved intensive factual work, the legal terrain was
extremely specialized, and the costs would be too great. Ibid.
As a result, ICO brought its suit pro se. ICO v. Shinn, Civ.
No. 93-4774 (JCL), Slip Op. (D.N.J. November 24, 1998).
When ICO faced dismissal because it might not be able to
proceed as a pro se litigant, ICO brought their case to the
attention of the Terris Firm. During the litigation of that case,
ICO and the Terris Firm discussed the contamination at issue in
this case. Affidavit of Joseph Morris, ¶ 6. Honeywell seems to
assert that ICO's inability to retain competent counsel in
Shinn is irrelevant because it does not explain why ICO failed
to retain competent local counsel in this particular case.
However, the law does not require ICO to engage in acts of
futility, but rather that local counsel be unavailable or
unwilling to take the case.
Accordingly, this Court will apply Washington, D.C. market
rates to the Terris Firm.
Wallace King is based in Washington, D.C. Furthermore Wallace
King has extensive experience litigating RCRA matters and other
complex environmental claims. Wallace King was retained to
represent the Grace Defendants in this matter in April, 1999.
Part of their representation was the prosecution of cross-claims,
including the RCRA cross-claim against Honeywell.
ECARG asserts that Wallace King was retained due to its
substantial expertise in RCRA and other complex environmental
litigation matters, Mr. Marraro's prior experience handling
chromium-related matters in New Jersey, and other matters before
the NJDEP, and the unwillingness of ECARG's prior law firm,
Pitney, Hardin Kipp & Szuch, to pursue ECARG's RCRA claims
Honeywell has asserted that ECARG has failed to introduce any
evidence that there were no lawyers in New Jersey with the
necessary expertise to represent it in this matter. Indeed,
ECARG's primary trial counsel was a New Jersey attorney, Mr.
Agnello of Carella Byrne.
Accordingly, this Court shall apply New Jersey rates to Wallace
King. However, it should be noted that the rates charged in this
matter by Wallace King are in line with prevailing hourly rates
charged by New Jersey attorneys with comparable skill, experience
Generally, the "reasonable hourly rate" needed to calculate the
lodestar is based on the attorney's normal billing rate so long
as it is reasonable. In Lindy I, the Court of Appeals for the
Third Circuit stated that "[t]he value of an attorney's time is
reflected in his normal billing rate." 487 F.2d at 167. The
attorney's normal billing rate is then compared to the market
value of legal services to assure that an attorney's normal
billing rate is reasonable. Lindy I, supra, 487 F.2d at 167;
Daggett v. Kimmelman, 617 F.Supp. 1269, 1281-1282 (D.N.J.
1985), aff'd, 811 F.2d 793 (3d Cir. 1987).
The reasonableness of an attorney's hourly rate is judged by
comparing it to the prevailing market rate in the community in
which the attorney's office is located or, in the case of the
Terris firm, using market rates for the community since it is
below the market rate.
Based upon the analysis of Third Circuit decisions, supra,
this Court concludes that the fees to be awarded are based on the
market rates where the attorney's office is located. Accordingly,
the Terris firm is to be awarded fees based on the rates for
Here, the Terris firm's request for a fee reward is based on
the current hourly rates for all of the work performed in this
case through May 31, 2003.*fn3
In Missouri v. Jenkins,
491 U.S. 274
, 283-84 (1989), the Supreme Court held:
Clearly, compensation received several years after
the services were rendered as it frequently is in
complex civil rights litigation is not equivalent
to the same dollar amount received reasonably
promptly as the legal services are preformed, as
would normally be the case with private billings. We
agree, therefore, that an appropriate adjustment for
dely in payment whether by the application of
current rather than historic hourly rates or
otherwise is within the contemplation of the
statute. [footnote omitted].
In Lanni v. New Jersey, 259 F.2d 146, 149-150 (2001), the Third
When an attorney's fees are awarded, the current
market rate must be used. The current market rate is
the rate at the time of the fee petition, not the
rate at the time the services were performed. . . . A
current rate is exactly that a reasonable rate
based on the currently prevailing rate in the
community for comparable legal services.
Accordingly, this Court will award Plaintiffs their fees based
on the current market rates for Washington, D.C. This Court must
now determine the applicable market rates for Washington, D.C.
Plaintiff has requested that the fee awarded be based on a fee
schedule for Washington, D.C., that has been accepted by the
District Court for the District of Columbia and the Court of
Appeals for the District of Columbia. The fee schedule is called
the "Laffey Matrix" because it was first accepted by the District
Court for the District of Columbia in Laffey v. Northwest
Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), aff'd,
746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, Save
Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1525 (D.D.
Cir. 1988) (en banc).
The original and updated Laffey Matrix has been consistently
used to determine appropriate fee awards by Courts in the
District of Columbia. See Salazar v. The District of
Columbia, 123 F.Supp.2d 8, 13-15 (D.D.C. 2000); Fischbach v.
District of Columbia, 1993 U.S. Dist. LEXIS 19756, *10 (D.D.C.
1993); Palmer v. Barry, 704 F.Supp. 296, 298 (D.D.C. 1989).
There is some disagreement as to how the Laffey Matrix is
properly updated. Defendant argues that the Laffey Matrix ought
to be updated using the consumer price index, or CPI, for the
Washington, D.C., metropolitan area to the original 1981-1982
Laffey Matrix. This updating methodology was developed by the
U.S. Attorney for the District of Columbia for use in settlement
negotiations. Covington v. District of Columbia, supra,
839 F.Supp. at 898. This methodology produces lower hourly rates than
the Plaintiff's methodology.
Plaintiff has updated the Laffey Matrix to more accurately
reflect the presently existing market rates in Washington, D.C.
This updating has been accepted by the District Court for the
District of Columbia, this Court, and the Middle District of
North Carolina. Salazar v. The District of Columbia, supra,
123 F.Supp.2d at 13-15; PIRG v. Magnesium Elecktron, Inc., Civ.
No. 89-3193, Slip op. 2, 10 (D.N.J. December 28, 1995), vacated
on other grounds, 123 F.3d 111 (3d Cir. 1997); North Carolina
Alliance for Transportation Reform v. North Carolina Department
of Transportation, 168 F.Supp. 2d 569, 579-580 (M.D.N.C. 2001).
There has been one instance where the District of Columbia has
considered these two alternate methods for updating the Laffey
Matrix. In that case, Salazar v. District of Columbia, supra,
123 F.Supp. at 13-15, the plaintiffs requested fees based on the
methodology for updating the Laffey Matrix used by Plaintiffs
here. The defendant, like Honeywell, requested that the U.S.
Attorney's matrix be used to reflect market rates. In its
decision, the court evaluated the approaches and found that the
approach used by plaintiffs was more appropriate.*fn4
Plaintiffs have also submitted the 2002 survey of billing rates
from the National Law Journal in support of their assertion that
the Laffey Matrix as updated is reasonable. Although Defendant
argues that the National Law Journal survey is inadmissible
hearsay, rate surveys have long been recognized as a means of
demonstrating market rates in fee litigation. See, e.g.
Covington v. District of Columbia, supra, 57 F.3d at 1109;
Mathis v. Spears, 857 F.2d 749, 755-756 (Fed. Cir. 1988);
Salazar v. District of Columbia, supra, 123 F.Supp.2d at 14.
Accordingly, this Court will award Plaintiff's their fees based
upon the Laffey Matrix as updated ...