Envtl. Defense Fund, Inc. v. Envtl. Protection Agency, Ad Hoc Comm. on Liquid Dielectrics of the Electronic Indus. Ass'n, 672 F.2d 42 (D.C. Cir. 1982)

TABLE OF CONTENTS

Page

I. The Chronology op Events Pertaining to EDF’s Motion for Attorneys’ Fees............................................. 46

II. The Applicable Statutory Standard for an Award of Attorneys’ Fees Under TSCA ........................ — .............. 47

III. The EDF Claims for Attorneys’ Fees......................... 50

A. Time Claimed For Work On The Case-In-Chief________________ 50

B. The Decision in Copeland v. Marshall________________________ 51

C. EPA’s Opposition To The Claim For Attorneys’ Fees----------- 52

IV. An Evaluation and Judgment Concerning the “Hours Reasonably Expended,” the “Reasonable Hourly Rate,” and “Adjustments to the ‘Lodestar”’............... 53

A. Documentation_________________________________________ 54

B. Hours Reasonably Expended_______________________________ 55

1. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Upon Which EDF Did Not Prevail_____ 55

2. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Raised By Industry Intervenors_______ 55

3. EPA’s Request To Reduce Hours In Connection With Work Performed During Post-Decision Negotiations_____________ 56

C. The Reasonable Hourly Rates______________________________ 58

D. Calculation Of The “Lodestar” Fee_________________________ 59

E. Adjustments To The “Lodestar"____________________________ 59

V. The Award of Attorneys’ Fees on the Case-in-Chief........... 61

VI. Timeliness of EDF’s Request for Attorneys’ Fees.............. 61

Page

VII. The Attorneys’ Fee Claim Pertaining to the Supplemental Fee Application of EDF for the Services of Trilling & Kennedy_____ 61

A. EDF Entitlement To An Award Oí Attorney’ Fees For Time Spent In Preparing The Application For Fees_________________ 62

B. Documentation_________________________________________ 63

C. Hours Reasonably Expended_______________________________ 63

D. Reasonable Hourly Rates_________________________________ 63

E. Adjustments To The “Lodestar”____________________________ 63

VIII. The Award of Attorneys’ Fees for the Work Done by Trilling & Kennedy__________________________________________________ 04

IX. Conclusion _______________________________________________ 04

HARRY T. EDWARDS, Circuit Judge:

On June 7, 1979, the Environmental Defense Fund (EDF) petitioned for review of regulations, issued by the Environmental Protection Agency (EPA), implementing Section 6(e) of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2629 (1976). Section 6(e) of TSCA provides broad rules governing the disposal, marking, manufacture, processing, distribution, and use of a class of chemicals called polychlorinated biphenyls (PCBs). EDF sought review of three aspects of the EPA regulations. First, it challenged the determination by EPA that certain commercial uses of PCBs are “totally enclosed,” a designation that exempts those uses from regulation under the Act. Second, it claimed that the EPA acted contrary to law when it limited the applicability of the regulations to materials containing concentrations of PCBs greater than 50 parts per million (ppm). Third, EDF challenged the decision by EPA to authorize the continued use of 11 non-totally enclosed uses of PCBs.

The oral argument in this case was held on June 6, 1980, and an opinion for the court was issued on October 30, 1980, in which it was held that:

Environmental Defense Fund v. EPA, 636 F.2d 1267 (D.C.Cir.1980). As a result of this decision by the court, the parties agreed upon and the court approved a series of new rulemaking proceedings designed to develop the factual bases for an improved approach toward the regulation of PCBs.

On August 24, 1981, EDF moved for an award of $156,600.00 in attorneys’ fees for its participation in the case. This figure was later amended to $156,248.00. In addition, EDF requested $13,992.00 for the hours devoted by the law firm of Trilling & Kennedy for the preparation of a reply memorandum on the issue of attorneys’ fees.

I. THE CHRONOLOGY OF EVENTS PERTAINING TO EDF’S MOTION FOR ATTORNEYS’ FEES

The following list details the sequence of events pertaining to EDF’s motion for attorneys’ fees:

Sept. 15, 1981 — Response of EPA to EDF’s Motion (hereinafter “EPA Response”)

The opposition filed by intervenor AC Paper raises three issues. First, it is contended that the 837 hours of experienced lawyer time claimed by EDF appears to be an excessive expenditure of time for this case. Second, it is argued that there is no basis for EDF’s request that its “lodestar” fee be adjusted upward by 100%. Finally, it is urged that Petitioner’s Motion should be dismissed because EDF’s request for fees is over nine months out of time. The EPA, although opposing EDF’s motion for fees on several grounds, has not contended that the motion is untimely. EDF, not surprisingly, rejects the claim that its Motion is untimely; however, in an abundance of caution, EDF has filed a “Motion For Leave To File Its Motion for Attorneys’ Fees Out of Time.”1

The EPA Response to the EDF Motion does not seriously contest the claim for attorneys’ fees.2 Rather, EPA makes the following principal arguments:

These arguments duplicate those raised by AC Paper except with respect to the timeliness issue.

II. THE APPLICABLE STATUTORY STANDARD FOR AN AWARD OF ATTORNEYS’ FEES UNDER TSCA

Section 19(d), of TSCA, 15 U.S.C. § 2618(d), authorizes awards of attorneys’ fees in cases involving petitions for review of regulations brought, as was the instant case, pursuant to section 19(a):

As was noted in Sierra Club v. Gorsuch, 672 F.2d 33 (D.C.Cir.1982), a case involving a comparable attorneys’ fee provision under the Clean Air Act:

Id. at 34. The same may be said of the relevant statutory provision in section 19(d) of TSCA.

The significance of the attorneys’ fee provision of TSCA may be highlighted by comparison to other statutory fee provisions. For example, 5 U.S.C. § 552(a)(4)(E) provides that attorneys’ fees under the Freedom of Information Act are available only to a complainant who has “substantially prevailed.” Likewise, 28 U.S.C. § 2412(b), covering awards of fees against the United States, provides that:

(emphasis added).3 In enacting a provision allowing for an award of attorneys’ fees whenever a court finds that such “an award is appropriate,” it seems plain that Congress intended to give the courts greater latitude than is allowed under statutes such as FOIA (“substantially prevailing”) and 28 U.S.C. § 2412 (“prevailing party”).

Albeit sparse, the legislative history surrounding the attorneys’ fee provision of TSCA confirms this reading and offers some guidance in identifying “appropriate” cases. Section 19 in the original Senate and House bills, i.e., the bills that preceded the passage of TSCA in its final form, each contained provisions allowing the courts to award “reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate.” See S. 3149, 94th Cong., 2d Sess. § 19(c)(3) (1976); H.R. 14032, 94th Cong., 2d Sess. § 19(c)(3) (1976), reprinted in Legislative History of the Toxic Substances Control Act, at 136, 384 (1976) (hereinafter “Legislative History”). Although minor modifications were made to section 19 in the conference between the Senate and House Managers of the TSCA bills, the Conference Committee ultimately retained intact the provision allowing for awards of “reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate.” Id. at 709.

The only significant discussion of the attorneys’ fee provision apparently occurred on September 28, 1976, during the Senate’s consideration of the Conference Report. Id. at 721, 727-30. During this discussion, Senator Magnuson, who was the ranking Senate Manager on the Conference Committee, made it clear that the attorneys’ fee provision “is not restricted to plaintiffs or to successful parties." Legislative History at

729 (emphasis added). However, Senator Magnuson made a point of indicating that the attorneys’ fee provision was not without limits:

Id. at 729.4

In addition to his own remarks, Senator Magnuson sought and received consent to print the remarks of Senator Tunney (which had appeared in the Congressional Record of March 26, 1976), as part of the legislative history of section 19. Id. at 727. In his printed comments, Senator Tunney first stated that

Id. (emphasis added). Following this initial comment, Senator Tunney added that:

Id. at 727-28 (emphasis added) (citations omitted). Although Senator Tunney occasionally referred to “prevailing” or “successful” plaintiffs, these references — when read in context — cannot be seen to be inconsistent with his initial view that the attorneys’ fee provision should be “liberally construed.” Id. at 727. Nor do his remarks appear to be inconsistent with Senator Magnuson’s view that the attorneys’ fee provision “is not restricted to . . . successful parties.” Id. at 729. This latter point is confirmed by Senator Tunney’s observation that attorneys’ fees may be “appropriate” “where the award is in the public interest without regard to the outcome of the litigation.” Id. at 728.

The remaining remarks offered by Senator Tunney pertained to the appropriate measure of attorneys’ fees. On this final point, he commented as follows:

By specifying a general rule for the amount of fees to be awarded, this provision requires the method of calculating fees be no different than that now being utilized in other fields of law as, for example antitrust and securities regulation litigation. The “actual time” spent is that reasonably calculated to advance the client’s interest. The Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974), and the amount can be adjusted for factors including inter alia, the centingent [sic] nature of the success or the quality of the work performed. Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973), on remand, 382 F.Supp. 999 (E.D.Pa.1974), or benefits to the public from the suit. Davis v. County of Los Angeles, 8 E.P.D. 9444 (C.D.Cal.1974). Fees should not be reduced merely because the attorneys are salaried employees of public interest and or foundations-funded law firms.

Legislative History at 728.

With these general legislative standards in mind, we may now turn to the specific claims being advanced by EDF for attorneys’ fees in this case.

III. THE EDF CLAIMS FOR ATTORNEYS’ FEES

A. Time Claimed For Work On The Case-In-Chief

The EDF Motion claims a total of 837.4 hours for the three attorneys who were assigned to and worked on the litigation in EDF v. EPA, broken down as follows:

See EDF Motion, EDF Supplementary Motion and EDF Reply. In an “Affidavit of Jacqueline M. Warren,” accompanying the EDF Motion, it is indicated that Ms. Warren was a senior staff attorney at EDF, where she worked from June of 1973 until November of 1980. She graduated from Smith College in 1963 and from George Washington University National Law Center in 1972, where she ranked third in her class. At EDF, she was the principal staff attorney for the Toxic Chemicals Program, and participated in “many administrative and judicial proceedings concerning toxic chemicals.” Id. at 1, 7-8.

William A. Butler was General Counsel of EDF when he participated in this case. He obtained a B.A. degree from Stanford University in 1963, a Master’s degree from Oxford University in 1965, a J.D. degree from Yale University in 1969 and a Ph.D. from Harvard University in 1971. Mr. Butler was employed at EDF from 1970 until 1981 and, during that time, he “initiated, prepared and ultimately supervised the considerable amount of environmental litigation undertaken by EDF in federal district court and in courts of appeals.” Id. at 9.

David J. Lennett graduated from George Washington University National Law Center in 1979, and has been employed as a staff counsel at EDF ever since then. Prior to his graduation, Mr. Lennett worked part time at EDF and assisted with environmental litigation. Following graduation, he became the principal EDF attorney on hazardous waste matters. Id. at 10.

In the extensive descriptions of the work performed by these three EDF attorneys, their hours on EDF v. EPA are broken down as follows:

See EDF Motion (“Memorandum of Points”) at 4, EDF Supplementary Motion, and EDF Reply. The EDF Supplementary Motion (which contains a lengthy document entitled “Supplementary Declarations In Support of Petitioner EDF’s Motion For Attorneys’ Fees”) sets forth in great detail the attorneys’ time logs and narrative descriptions of all legal work done by each attorney.

Following the guidelines set forth in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc), discussed infra in section III-B, EDF has made the following claim for attorneys’ fees:

B. The Decision In Copeland v. Marshall

In submitting a claim of $156,248.00 for attorneys’ fees for work done on the case in chief, EDF relies heavily on the decision in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc).5 Under Copeland, the attorneys’ fee is computed by first determining the “lodestar,” i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. The “lodestar” fee may then be adjusted up or down to reflect the quality of representation and the contingent nature of success. Id. at 891-94.

As to the factor of “hours reasonably expended,” Copeland states that:

641 F.2d at 891-92 (emphasis in original) (citations omitted).

Concerning adjustments to the “lodestar” attributable to “the contingent nature of success,” 641 F.2d at 892, the decision in Copeland observes that:

641 F.2d at 892-93. Since, as has already been indicated, attorneys’ fees may be awarded to “prevailing,” “substantially prevailing” or “non-prevailing” parties under TSCA, this portion of the “contingent nature of success” factor discussed in Copeland is irrelevant in this case.

The court in Copeland also included a factor of “delay” under the heading of “contingent nature of success.” On this point, Copeland states:

in the “lodestar” represent the prevailing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. That delay can present cash-flow problems for the attorneys. In any event, payment today for services rendered long in the past deprives the eventual recipient of the value of the use of the money in the meantime, which use, particularly in an inflationary era, is valuable. A percentage adjustment to reflect the delay in receipt of payment therefore may be appropriate.

Id. at 893.

Finally, regarding adjustments to the “lodestar” for “quality of representation,” Copeland holds that:

Lindy II, 540 F.2d at 117-18 (emphasis in original).

641 F.2d at 893-94.

In considering the relevance of Copeland, there is one point that must be emphasized. As noted above, Copeland involved a claim for fees under Title VII, a statute under which the “prevailing party” may seek “a reasonable attorney’s fee as a part of costs.” 42 U.S.C. § 2000e-5(k) (1976). TSCA, on the other hand, allows for “reasonable attorneys’ fees” “if the court determines such an award is appropriate.” 15 U.S.C. § 2618(d). The legislative history of this provision indicates that the attorneys’ fee provision in TSCA “is not restricted to ... successful parties,” and that an award of attorneys’ fees may be “appropriate” “where such award is in the public interest without regard to the outcome of the litigation.” Legislative History at 728-29. Thus, while “success” in litigation may be a factor in determining whether an adjustment to the “lodestar” is due, it is not determinative of the question of whether any fee is due. Excluding this point, we believe that Copeland is a controlling precedent that must be followed in this case.

C. EPA’s Opposition To The Claim For Attorneys' Fees

As noted at the outset of this opinion, EPA principally argues that EDF’s claim

should be strictly scrutinized, that the estimated “lodestar” fee is exaggerated, and that no upward adjustment to the “lodestar” is warranted. There is no serious claim that EDF is not entitled to some amount of attorneys’ fees.

Specifically, EPA has raised the following issues:

As an alternative proposal to EDF’s claim on hours, EPA suggests that the following time should be excluded from the “lodestar:”

In sum, EPA argues that the number of “hours reasonably expended” for each attorney should be adjusted as follows:

In addition, EPA argues that “EDF’s suggested rates should be reduced to reflect the fact that much of the time consumed by its three counsel appears to have included neither ‘in-court’ time, nor other core litigation activity, such as brief writing.” EPA Response at 20. EPA thus urges that the rates for EDF attorneys should be adjusted downwards as follows:

EPA Response at 21.

Finally, EPA contends that there should be no upward adjustment in the “lodestar” because (1) “the efforts of EDF’s counsel were substantially within the range of skill normally expected of attorneys receiving the rates that they suggest,” id. at 22; (2) “the burden faced by EDF... is the standard burden of any litigant in an administrative agency case,” id. at 25; and (3) “no contingency adjustment would be warranted here for delay in renumeration [because] EDF has only recently submitted its requests for fees” and because “the hourly rates they suggest are derived from other recent decisions and, therefore, reflect current market values.” Id. at 25.

IV. AN EVALUATION AND JUDGMENT CONCERNING THE “HOURS REASONABLY EXPENDED,” THE “REASONABLE HOURLY RATE,” AND “ADJUSTMENTS TO THE ‘LODESTAR’ ”

Having outlined the applicable statutory standard, the controlling judicial precedents

(as set forth in Copeland) and the contentions of the parties, we now may proceed to determine' the merits of EDF’s claim for attorneys’ fees.

A. Documentation

EPA initially argues that EDF’s claim should be rejected for “lack of adequate documentation.” See note 2 supra. For the reasons hereafter enumerated, we reject this contention as wholly untenable on the record before us.

In Copeland, this court stated that, with respect to “documentation” of attorneys’ fee claims, the party seeking a fee should submit information that will allow the reviewing court to “segregate into categories the kinds of work performed by each participating attorney.” 641 F.2d at 891. The court added that:

Copeland, 641 F.2d at 891 (quoting from Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973)).

The documentation furnished by EDF in this case is more than enough to satisfy the test set forth in Copeland. Here, petitioner has submitted

See EDF Motion (including “Memorandum of Points” and “Affidavit of Jacqueline M. Warren”), EDF Supplementary Motion (including “Supplementary Declarations”), and EDF Reply. We have considered this information with care and we find it sufficient to allow us to judge the reasonableness of the hours expended. Indeed, we believe that petitioners in this case have furnished more detailed information than was required by this court in Copeland. (See discussion at 641 F.2d 902 for a review of the documentation considered in Copeland.)

We agree with EPA that, as an appellate court (without the benefit of pre-trial motions, discovery supervision, and extended courtroom hearings comparable to what a district judge might experience), we should scrutinize an attorneys’ fee claim with particular care. We also note, however, as did the court in Copeland, that “[ojther circuit courts of appeals have observed that appellate judges are themselves experts in assessing the reasonableness of an attorney’s fee award, and that the appellate court . . . may independently review the record, or itself set the fee.” 641 F.2d at 902 (footnotes omitted). Since, under TSCA, we are obliged to “independently review the record” and “set the fee,” we have undertaken this responsibility and pursued the task with care. We have no doubt that, had it been necessary, we could have requested further documentation from the parties or scheduled hearings before designated members of the panel. In this case, however, since the documentation furnished by EDF is more than adequate, we are confident that we have enough information to complete the task before us.

B. Hours Reasonably Expended

1. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Upon Which EDF Did Not Prevail

EPA asserts that, under Copeland, EDF should not receive attorneys’ fees for time spent litigating claims upon which petitioners did not prevail. For the reasons already given at the conclusion of section III-B supra, we reject this contention.

First, to reiterate, attorneys’ fees under TSCA are not restricted to “successful parties.” Legislative History at 729. Furthermore, because we find that the litigation in EDF v. EPA involved critically important and difficult issues of first impression, and that the outcome of the litigation greatly served the public interest, we hold that there should be no discount in the fees awarded simply because EDF failed to prevail on one of three closely-related issues. At the conclusion of a 41-page slip opinion in EDF v. EPA, the court highlighted the significance of the litigation with the following observation:

636 F.2d at 1286-87 (footnote omitted). We think that there can be no doubt regarding the point that the public interest was well served by EDF’s litigation in EDF v. EPA.

Even with respect to the “use authorization” issue alone, see 636 F.2d at 1275, upon which EDF did not prevail in EDF v. EPA, we find that the efforts of EDF nevertheless benefitted the public interest. The questions pertaining to the “use authorization” regulations were highly detailed, difficult, important and hardly frivolous. The resolution of these questions was important in determining under what circumstances and to what extent TSCA permits EPA to authorize by rule non-totally enclosed uses of PCBs.

In light of all of these considerations and in light of the fact that the “use authorization” issue was intimately related to other issues in the case, we reject EPA’s request for a reduction in hours because of EDF’s failure to prevail on one issue.6

2. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Raised By Industry Intervenors

EPA contends that the hours logged by both Ms. Warren and Mr. Butler in litigating against intervenors should not be charged to EPA. Apart from the 16 hours claimed for Mr. Butler for “monitoring of post-decision petitions for rehearing,”7 we reject EPA’s position.

As has been accurately noted in the EDF Reply, “[h]ere, even where intervenors or the amicus curiae raised points not specifically made by EPA, EDF’s responses were largely made in terms directly applicable to EPA and its arguments.” Id. at 23. In addition, it was critical for EDF to respond to and prevail on the jurisdictional challenge raised by the Electronic Industries Association in order to reach the merits of the issues raised in EDF v. EPA.

EPA argues that the “agency is not in privity with the intervenors, did not control or direct their presentations to the Court, and EDF did not oppose these interventions.” EPA Response at 15. What is more important, however, is that' all of the positions advanced by the intervenors were in defense of the disputed EPA regulations. Furthermore, there is no suggestion that EDF counsel did any duplicate work in responding to the arguments raised by intervenors as opposed to those raised by EPA. Finally, and most significantly, EPA never opposed any of the positions asserted by the intervenors.8 In view of these considerations, we can find no merit in EPA’s position.

3. EPA’s Request To Reduce Hours In Connection With Work Performed During Post-Decision Negotiations

EPA contends that the agency should not be “taxed with attorneys’ fees relating to post-decision negotiations.” EPA Response at 17. When considered in the context of the specific litigation here in question, this claim by the agency borders on being frivolous. Accordingly, we reject it.

We need look no further than the EPA Response for an accurate description of the post-decision events that are critical to our inquiry on this point:

complex problem of PCBs in low concentrations. Each of the parties to the prior litigation recognized that developing new rules would require the generation of a great amount of new factual material.

EPA Response at 3-6.

As may be seen from EPA’s own description, following the court’s decision in EDF v. EPA, (1) the parties (including both EDF and EPA) participated in extensive deliberations and negotiations in order to seek a stay of the mandate and develop a program to achieve a revised regulatory scheme; (2) a stay of the mandate was issued, and court jurisdiction retained, pursuant to joint motions submitted by the parties; (3) the post-decision events were intimately related to the litigation in the case-in-chief; and (4) the continued participation of EDF in the post-decision deliberations was essential to a successful resolution of this litigation.9 With these facts in mind, we cannot take seriously EPA’s assertion that EDF is barred from claiming attorneys’ fees for post-decision negotiations work.10

C. The Reasonable Hourly Rates

As noted above, EDF has requested rates of $110/hour, $90/hour and $55/hour for Mr. Butler, Ms. Warren and Mr. Lennett, respectively. EPA has countered with rate proposals of $82.50/hour, $75/hour and $55/hour. EPA does not seriously contest the accuracy of rates cited by EDF insofar as “market value” is concerned.11 Rather, EPA principally contends that the court should distinguish between “in-court,” “out-of-court,” and “travel” time, and that the rates claimed for Mr. Butler and Ms. Warren should be reduced because most of their work in this case involved non-court time.12

Whatever there is to be said about “travel time” can await another day; it is conceded that “travel time” is not a significant factor in this case. As for the distinction sought between “in-court” and “out-of-court” time, the simple answer is that Copeland does not compel any such rate differentiations. Rather, in determining “market value,” the decision in Copeland focuses on (1) level of skill necessary, (2) time limitations, (8) the amount to be obtained in the litigation, (4) the attorney’s reputation, and (5) the undesirability of the case. 641 F.2d at 892. Copeland does indicate that “there may be more than one reasonable hourly rate for each of the attorneys, and for each of the kinds of work, involved in the litigation.” Id. (emphasis added). The emphasis, however, is on a general reference to “kinds of work,” not “in-court” versus “out-of-court” work.

In this case, given the importance of the post-decision negotiations, the high level of skill required (to maintain a litigation victory and yet accommodate to the legitimate needs and interests of numerous intervenors and a federal agency), the significant public interest value of the litigation, and the going “market value” for the services of a lawyer with like experience and skills, we find that the $110/hour rate claimed for Mr. Butler is perfectly reasonable. Taking into account like considerations, we also find that the rate of $90/hour claimed for Ms. Warren is quite reasonable. EPA does not contend that any of Ms. Warren’s time was frivolous, insignificant or unrelated to the litigation. Indeed, it appears that she was principally responsible for marshalling and implementing the entire EDF litigation strategy.13 Thus, it seems to us that EPA’s focus on non-court time misses the mark. Ms. Warren did

most of the very substantial work on the EDF briefs and this work certainly was no less significant to the success of the litigation than was her oral presentation to the court. Since the rate claimed for Ms. Warren appears to be well within the range of the “market value” for a person of her experience performing the type of work at issue here, we shall grant the request for 617 hours at $90/hour.14

We should add that, with respect to the rates claimed for all three EDF attorneys, we are also influenced by the factors cited in the legislative history of section 19(d) of TSCA. See Legislative History at 728. We note in particular that EDF did not “stand to gain significant economic benefits through participation in the proceeding.” Id. at 729. As a public interest group, relying heavily on private donations and attorneys’ fees in cases such as this one, EDF cannot be considered to be an association “that could otherwise afford to participate,” in the sense that that condition is intended in the legislative history. Id. at 730.

We also note that the legislative history cites Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973), on remand, 382 F.Supp. 999, aff’d in part and vacated in part, 540 F.2d 102 (3d Cir. 1976), Legislative History at 728, a case heavily relied upon by this court in Copeland. See, e.g., 641 F.2d at 890-94, 902-03. The citation to Lindy is significant because the Third Circuit, just as did this court in Copeland, endorsed a “market value” approach in fee-setting. 487 F.2d at 167.

Finally, the legislative history makes it clear that “[f]ees should not be reduced merely because the attorneys are salaried employees of public interest and or foundations-funded law firms.” Legislative History at 728. This factor is, of course, relevant here in the light of EDF’s institutional status as a public interest organization.

As a final point of emphasis, we reiterate that EPA has made only a feeble challenge to the specific hourly rates claimed by EDF. See note 11 supra. There is no contention that EDF has failed to follow the “market-value” approach adopted in Copeland. EPA has disputed the rates cited by EDF, but we have found this challenge to be wanting. Id.15

D. Calculation Of The “Lodestar” Fee

In the light of our holdings above, the “lodestar” fee in this case is calculated as follows:

E. Adjustments To The “Lodestar”

Copeland holds that the “lodestar” may be adjusted to reflect “the contingent nature of success” and the “quality of representation.”16 The legislative history of section 19(d) of TSCA adds a third factor that may be considered with respect to any proposed adjustment: “benefits to the public from the suit.” Legislative History at 728.

Following these guidelines, EDF has argued at length that the “lodestar” fee should be doubled. We agree that there should be a modest adjustment, in the neighborhood of 15-20%, to reflect “benefits to the public from suit,” Legislative History at 728, and “the delay in receipt of payment for services rendered.” Copeland, 641 F.2d at 893. However, we believe that any greater adjustment would be excessive given the circumstances of this case.

EDP cites Keith v. Volpe, 86 F.R.D. 565 (C.D.Cal.1980), in support of its request for a doubling of the “lodestar.” Keith, like this case, was a case of first impression, involving an. interpretation of the California Environmental Quality Act of 1970. There, the plaintiffs successfully sought an order enjoining the construction of a massive freeway project principally because of its environmental impact. In applying a 3.5 multiplier of the “lodestar,” the court in Keith noted that plaintiffs’ counsel “provided first-rate legal services in successfully advocating the protection of the environmental and human interests at stake.” Id. at 574. We find Keith instructive but not determinative. Here, we are bound to follow Copeland and the guidelines set forth in the legislative history surrounding section 19(d) of TSCA.

The two factors that we rely on to increase the “lodestar” from $76,804 to $90,-000, i.e., approximately 17%, are public benefit and delay in receipt of payments. As we have already noted several times, it is clear that EDF’s pursuit of this litigation greatly benefitted the public interest. TSCA was designed by Congress to “eliminate or control life threatening chemicals, such as PCBs,” and the action by EDF helped to demonstrate that the regulatory “effort by EPA [had], in certain respects, fallen far short of the mark set by the congressional mandate found in section 6(e) of the Toxic Substances Control Act.” EDF v. EPA, 636 F.2d at 1286-1287. The benefit to the public is obvious and EDF is entitled to an upward adjustment in the “lodestar” for their litigation efforts.

Likewise, an upward adjustment, albeit modest, is also due for the delay in the receipt of attorneys’ fees. As this court noted in Copeland:

641 F.2d at 893. While we believe that some increase is due for delay, we have limited the amount because of three factors. First, the hourly rates claimed by EDF are current market rates, not those in effect when the case was litigated. Second, EDF did not file its claim for attorneys’ fees until August 1981 and a portion of the documentation was not presented until October 1981 (in the EDF Supplementary Motion and the EDF Reply). Finally, the actual period of delay, from the time when all documentation was submitted until EDF is actually paid, should be no more than six months.

As for EDF’s additional claims in support of a greater increase in the “lodestar fee,” we must reject them for several reasons. Apart from the delay factor, nothing more is due for “the contingent nature of success” because EDF did not have to “prevail” in order to obtain attorneys’ fees under TSCA. This clearly distinguishes this case from the situation posed in Copeland. See 641 F.2d at 892-93. “The contingency adjustment is a percentage increase in the ‘lodestar’ to reflect the risk that no fee will be obtained.” Id. at 893 (emphasis added). In this case, we believe that there was little or no risk that “no fee” would be obtained.

As to “quality of representation,” we agree with the position of EPA that “EDF’s counsel performed at [levels] of proficiency that [were] within the usual range of these experienced lawyers’ skills.” EPA Response at 24. We also agree that the legal burden faced by EDF in this litigation was “the standard burden of any litigant in an administrative agency case.” Id. at 25. It is true that the case was extremely important and very complicated, and that EDF counsel performed with great skill; however, these factors are fully compensated by the amounts credited under the categories

of “hours reasonably expended” and “reasonable hourly rates.”

Finally, we must also consider the “results of the litigation.” Copeland, 641 F.2d at 894. Although petitioners need not “prevail” in order to claim attorneys’ fees under TSCA, we believe that “non-prevailing” is a factor that should militate against upward adjustments in the “lodestar.” Here, EDF lost on one of three issues decided by the court in EDF v. EPA. The issue was hardly insignificant and, therefore, it cannot be ignored in our calculations.

In sum, we find that EDF should receive an upward adjustment of 15-20% in the “lodestar” fee, in recognition of the critically important public benefits of the litigation and to compensate for delay in payment. However, for the reasons cited, we must reject the request by EDF for an increase in the “lodestar” by a factor of two.

V. THE AWARD OF ATTORNEYS’ FEES ON THE CASE-IN-CHIEF

In the light of our holdings above, the award of attorneys’ fees to EDF for work on the case-in-chief shall be as follows:

VI. TIMELINESS OF EDF’S REQUEST FOR ATTORNEYS’ FEES

Intervenor AC Paper & Film Capacitor has filed a special opposition to EDF’s motion for attorneys’ fees, contending that fees should be denied because EDF’s request “is over nine months out of time.”, AC Paper Opposition at 4. In particular, AC Paper cites Rule 39(c) of the Federal Rules of Appellate Procedure. Finding no merit in this claim, we reject it.

Initially, we would indicate that we doubt that AC Paper has any standing to raise a timeliness claim on fees that will be assessed solely against EPA. We need not decide this issue, however, because the claim is patently without merit. Rule 39(c) covers only “costs,” not attorneys’ fees. We are unwilling, automatically to apply the 14-day limitations period from Rule 39 in connection with a statutory fee provision. There is no specific limitations period for the submission of attorneys’ fees claims under section 19(d) of TSCA. The statute simply provides that fees may be awarded “if the court determines that such an award is appropriate.” This standard gives a court discretion to consider the reasonableness of attorneys’ fees claims and, if “appropriate” (considering traditional equitable principles), to reject claims as untimely filed.

EPA has not contended that it was unreasonable for EDF to file for attorneys’ fees when they did. Furthermore, given the extensive and complicated history of the litigation in this case (including elaborate post-decision proceedings), we do not believe that any such claim would be justified. All things considered, the timeliness claim of AC Paper must be denied.

VII. THE ATTORNEYS’ FEE CLAIM PERTAINING TO THE SUPPLEMENTAL FEE APPLICATION OF EDF FOR THE SERVICES OF TRILLING & KENNEDY

The final issue to be decided here involves the supplemental attorneys’ fees application of EDF for legal services performed by Trilling & Kennedy. See EDF Reply at 46-48, and EDF Supplementary Motion.

On October 5, 1981, EDF and Trilling & Kennedy executed a retainer agreement, whereby Trilling & Kennedy agreed “to perform all required legal services in connection with an application for attorneys’ fees with respect to” the EDF v. EPA litigation. See “Supplementary Declarations” in the EDF Supplementary Motion. The agreement also stated that “the parties ... consider $110 per hour to be a reasonable hourly rate for the services of Trilling & Kennedy.” Id.

Pursuant to this agreement, Trilling & Kennedy prepared and submitted the EDF Reply, a “Motion For Leave to File Motion for Attorneys' Fees Out of Time,” and the

EDF Supplementary Motion (with attachments). For this work, EDF has claimed 11.2 hours for Mr. Kennedy17 and 73.60 hours for Mr. Trilling,18 for a total of 84.8 hours. The hourly rate requested is $110/hour, with a “lodestar” amplification of 50%. EDF Reply at 48-49. Thus, the “lodestar” fee for Trilling & Kennedy is $9,328.00, and the total fee requested (with the 50% amplification) is $13,992.00.19

A. EDF Entitlement To An Award Of Attorneys’ Fees For Time Spent In Preparing The Application For Fees

EDF, relying on Chrapliwy v. Uniroyal, Inc., 509 F.Supp. 442 (N.D.Ind.1981), and other like decisions, submits that “it is well established that time reasonably devoted to obtaining attorneys’ fees in the context of litigation where the court must be petitioned for such an award is itself subject to the award of attorneys’ fees.” EDF Reply at 46. In Chrapliwy, the court noted that:

509 F.Supp. at 454. The EPA neither disputes the general principle stated by EDF nor the relevance of Chrapliwy and like decisions. Within bounds, we accept the basic contention of EDF, i.e., that time reasonably devoted to obtaining attorneys’ fees in the context of litigation where the court must be petitioned for such an award is itself subject to an award of fees.

For us, the critical fact here is that EDF was required to seek a court award of attorneys’ fees under TSCA. The attorneys’ fee question has, as a consequence, become one of the issues of the case. EDF, therefore, should be entitled to receive just attorneys’ fees for time reasonably expended to resolve the matter in dispute if the court otherwise determines such fees to be appropriate.

If EPA had been willing to pay attorneys’ fees on EDF’s original submission in August of 1981, see EDF Motion (including “Memorandum of Points and Authorities”), then EDF would have been limited to a claim of 30 hours for the time spent by Mr. Lennett in “preparation of materials to request attorneys’ fees.” Id. However, once EPA challenged the submission, making it an issue for disposition by the court, EDF was entitled to seek an award for fees for the additional time reasonably expended in defending the original request for fees. For us to rule otherwise would be to unfairly penalize EDF and to ignore the clear congressional mandate found in section 19(d) of TSCA.

B. Documentation

The documentation submitted by Trilling & Kennedy of hours reasonably expended is both clear and thorough. The documentation also makes plain the fact that potentially duplicate and/or nonproductive hours have been excluded. Since we find that the documentation for the supplemental claim is as detailed and complete as the documentation for the case-in-chief, we have no difficulty in accepting it as submitted.

C. Hours Reasonably Expended

EPA argues that EDF “overestimated the number of Trilling & Kennedy’s hours that were ‘reasonably expended’ ” on the work in question. EPA Response to Supplementary Motion at 5. In particular, EPA first contends that “EDF did not prevail on some aspects of the merits in this case, so any calculation of ‘reasonable hours’ for a fee award should be reduced according to the relative proportions of merits issues on which EDF won and lost.” Id. For the reasons already given in section IV-B(l), supra, we reject this argument.

EPA next argues that the “hours should be further reduced, to the extent that the supplemental claim represents EDF efforts in litigating against intervenor EIA, rather than EPA, on fee award issues.” Id. at 6. Insofar as this argument reasserts questions already disposed of in section IV-B(2), we reject it. However, insofar as the EPA position focuses on a claim that “compensation is being sought for about 10 hours of Trilling & Kennedy’s time that was devoted solely to responding to EIA’s argument that EDF’s original fee award motion is untimely,” id. at 7, we find it to be meritorious. On this latter point, we hold that the hours submitted by EDF for work performed by Trilling & Kennedy should be reduced by 9.75 hours to exclude the time spent on the timeliness issue. As we have already noted, the timeliness issue was patently meritless and thus warranted little if anything by way of response. More importantly, however, we note that counsel for EPA authorized counsel for EDF to represent that EPA did not object to the granting of the “Motion for Leave to File Out of Time.” See note 2 supra. Therefore, unlike the other issues discussed in section IV-B(2), supra, the positions of EPA and the intervenor were not aligned on the issue of timeliness. For these reasons, we believe that the agency should not be charged for legal work done on behalf of EDF on this issue.

D. Reasonable Hourly Rates

EPA asserts that the $110/hour rate claimed for the work done by Trilling & Kennedy is excessive. EPA Response to Supplementary Motion at 8. This argument is advanced despite the fact that EPA concedes that “Trilling & Kennedy are attorneys with levels of experience and competence equivalent to Mr. Butler and Ms. Warren of EDF.” Id. at 10.

Since the arguments made by EPA to support this position are nearly identical to the ones raised in connection with the claim for attorneys’ fees in the case-in-chief, we need not repeat our rulings on the agency’s contentions. Suffice it to say that the EPA position finds no substantial support in the record and must, therefore, be rejected for the reasons already given in section IV-C supra. See also note 11 supra.

E. Adjustments To The “Lodestar”

EDF has requested an upward adjustment to the “lodestar” of 50% for the hours expended by Trilling & Kennedy. Except for a 5% adjustment for a factor of “delay,” we deny this request largely for the reasons given in section IV-E supra.

As to the “contingent nature of success” factor, EDF argues that the contingency fee arrangement between EDF and Trilling & Kennedy “is manifestly the situation envisioned as appropriate for upward adjustment” under Copeland. EDF Reply on Supplementary Motion at 6. We think not. The “contingency” in question is not whether Trilling & Kennedy will recover under their agreement with EDF, but whether EDF will recover fees under section 19(d) of

TSCA. As we have already said, “in this case, we believe that there was little or no risk that ‘no fee’ would be obtained.” See section IV-E.

Furthermore, while the “quality of representation” furnished by Trilling & Kennedy was first-rate, the work done clearly was performed at levels of proficiency that were within the usual range of these experienced lawyers’ skills. As a consequence, the hours expended by Trilling & Kennedy will be fully compensated by the amounts credited under the categories of “hours reasonably expended” and “reasonable hourly rates.”

Lastly, we find no adjustment due for “benefits to the public.” See Legislative History at 728. The work done by Trilling & Kennedy was helpful to the court in considering and deciding issues of first impression regarding the proper construction of section 19(d) of TSCA. Nevertheless, substantial guidance was available because of the existence of the legislative history and controlling precedents such as Cope-la nd. We cannot, therefore, equate this work with the legal work done on the casein-chief.

VIII. THE AWARD OF ATTORNEYS’ FEES FOR THE WORK DONE BY TRILLING & KENNEDY

In light of our holdings above, an award of attorneys’ fees to EDF for the work done by Trilling & Kennedy shall be made in the following amount:

IX. CONCLUSION

For all of the reasons heretofore set forth in this opinion, we hereby rule that EDF shall be paid by EPA, as expeditiously as is reasonably possible, an award of attorneys’ fees totalling $99,534.50.