Biery v. United States
| Decision Date | 23 March 2016 |
| Docket Number | No. 2014–5084.,2014–5084. |
| Parties | Dorothy L. BIERY, for herself and as Representative of a Class of similarly situated persons, Plaintiff Gordon Holloway, as successor and representative of decedent George A. Holloway, Stacy E. Judy trust, dated March 7, 1994, Plaintiffs–Appellants Julia R. Chalfant Etvir Trust, K.A.K. Farms, Inc., American Packing Corporation, Collins Industries, Inc., Plaintiffs Jerramy Pankratz and Erin Pankratz, Husband and Wife, Donald E. Weddell and Evangeline Weddell, Husband and Wife, Thad J. Colling, Thick Gon Mar, trustee of the Thick Gon Mar Revocable Trust, dated November 7, 1995, Michael A. Woods and Marcia J. Woods, Husband and Wife, Floyd E. Myers and Becky Myers, husband and wife, for themselves and as Representatives of a class of similarly situated persons, Plaintiffs–Appellants v. UNITED STATES, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Mark F. Hearne II, Arent Fox, LLP, Clayton, MO, argued for plaintiffs-appellants. Also represented by Lindsay S.C. Brinton, Stephen Sharp Davis, Meghan Sue Largent ; Debra J. Albin–Riley, Los Angeles, CA.
Tamara N. Rountree, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by John C. Cruden.
Before PROST, Chief Judge, NEWMAN and STOLL, Circuit Judges.
Plaintiffs appeal from an order of the Court of Federal Claims awarding them attorney fees under the fee shifting provisions of the Uniform Relocation Assistance and Real Property Act of 1970, 42 U.S.C. § 4654(c). Plaintiffs' counsel asserts that the Court of Federal Claims erred when it made a number of reductions to its requested fee award. Also pending before this court are plaintiffs' motion to supplement the record and plaintiffs' motion to order payment of the uncontested attorney fee amount. For reasons discussed below, plaintiffs' motion to supplement the record is denied, and the judgment of the Court of Federal Claims is affirmed. Because we affirm the judgment below, plaintiffs' motion for payment of uncontested attorney fees is denied as moot.
In 2007, thirteen Kansas landowners brought suit in the Court of Federal Claims against the United States. Plaintiffs alleged that the government had taken their land without just compensation in violation of the Fifth Amendment after the conversion of a rail corridor to a trail under the National Trail Systems Act, 16 U.S.C. § 1247(d). The cases were consolidated the following year.
Five years later, the parties cross-moved for summary judgment on the issue of liability. The Court of Federal Claims granted summary judgment in favor of the United States concerning the claims of five plaintiffs and dismissed those claims.1 The Court of Federal Claims then certified questions to the Kansas Supreme Court concerning the scope of railroad easements in Kansas. On September 23, 2010, after briefing and holding oral argument on the certified questions, the Kansas Supreme Court determined that it lacked jurisdiction to accept certified questions from the Court of Federal Claims and dismissed the case.
The remaining plaintiffs subsequently refiled their motion for summary judgment on the issue of liability with the Court of Federal Claims. On June 9, 2011, the Court of Federal Claims granted plaintiffs' motion. After the Court of Federal Claims issued its opinion, plaintiffs' counsel ("counsel") requested attorney fees under the Uniform Relocation Assistance and Real Property Act of 1970, 42 U.S.C. § 4654(c). In response, the Court of Federal Claims instructed counsel to file a motion for partial summary judgment to determine the method by which the attorney fee award would be calculated.
In its submission, counsel requested that the Court of Federal Claims apply the "national" rate charged by its firm for all work completed at the prevailing market rate. According to counsel, the use of current, rather than historical, rates was based on the contingent nature of the representation, where payment does not take place until successful completion of the case. In its contingent fee agreement with clients, counsel explained that fees were ordinarily paid when they are accrued, usually on a monthly basis. However, the use of rates in effect at the end of the case, rather than the rates in effect when the work took place, would be used based on "the risk that there will be no recovery and that, if a recovery is awarded, the Firm may not be reimbursed for the expenses until some time in the future." J.A. 944.
On November 27, 2012, the Court of Federal Claims issued an opinion on the requested summary judgment motion. In its opinion, the Court of Federal Claims determined that it would calculate attorney fees using the lodestar method, where a reasonable number of hours expended is multiplied by the prevailing rate in the relevant community. The Court of Federal Claims then determined that, for purposes of the case, the hourly rate for work primarily done in St. Louis would be based on the prevailing market rate in St. Louis, Missouri. The Court of Federal Claims noted that, at that time, it could not, "without further evidence, rule on specific reasonable rates for St. Louis." J.A. 17. The Court of Federal Claims also determined that, due to the "no-interest rule," historical rates, rather than rates in force at the end of litigation, would be used to compute a final award. See Library of Congress v. Shaw, 478 U.S. 310, 311, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986).
Counsel subsequently moved for summary judgment requesting $2,017,987 in attorney fees and $201,924 in costs. Counsel based its fee request, in part, on rates in effect in the Washington D.C. metropolitan area at the time of its request based on the Kavanaugh Matrix, an alternative to the Adjusted Laffey Matrix maintained by the United States Attorney's Office.2 Counsel did not submit any evidence regarding the computation of rates for the St. Louis area. The government cross-moved for summary judgment on the issue of the appropriate hourly rate.
On January 24, 2014, the Court of Federal Claims issued its opinion on attorney fees and costs. In determining the appropriate number of hours, the Court of Federal Claims made a number of adjustments. Specifically, the Court of Federal Claims found that some the of hours spent on the argument before the Kansas Supreme Court were duplicative, and that the number of hours spent on calculating the attorney fees and costs were excessive. Consequently, the Court of Federal Claims reduced the number of hours spent on those tasks by approximately 75% and 80%, respectively.
In addition, in order to avoid compensating counsel for work done on claims which had been dismissed, the Court of Federal Claims reduced the number of hours expended on the litigation leading up to the first summary judgment motion by 30%. The Court of Federal Claims noted that it made this reduction "[r]ecognizing the validity of plaintiffs' contention that there were overlapping issues between the successful and unsuccessful plaintiffs." J.A. 35. Viewing the number of hours expended on the remainder of the litigation to be excessive, the Court of Federal Claims further reduced those hours by 10%.
To determine the appropriate billing rate, the Court of Federal Claims held that two distinct rates should apply. For hours expended from the commencement of litigation until 2010, when plaintiffs' lead counsel was affiliated with a St. Louis law firm, local St. Louis rates should apply. For the period after 2010, when plaintiffs' lead counsel moved to a law firm based in Washington D.C., local Washington D.C. rates would apply. The Court of Federal Claims determined that, at that time, there was "ample evidence" to determine a St. Louis rate and used a rate based on four attorney fee awards by district courts in the Eastern District of Missouri. J.A. 36–39. For work taking place in Washington D.C., the Court of Federal Claims used the Adjusted Laffey Matrix rate, noting that this rate had been used in awarding attorney fees to counsel's firm in two other district court litigations.
In addition to making reductions to the requested billing rate and the number of hours, the Court of Federal Claims made a 30% reduction to costs incurred before the summary judgment motion to account for expenses incurred on the unsuccessful claims.
On January 30, 2014, six days after the Court of Federal Claims issued its attorney fee order, counsel submitted a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to obtain the government's time entry records and costs regarding 101 distinct cases, including the instant cases. Counsel also filed a motion for reconsideration with the Court of Federal Claims on February 5, 2014. The motion made no reference to the then-pending FOIA request. The Court of Federal Claims denied the motion on April 1, 2014.
Counsel timely brought this appeal challenging a number of cuts made by the Court of Federal Claims. On September 15, 2015, after the appeal was filed, the government responded to counsels' FOIA request and provided its time summaries for the instant cases. Shortly thereafter, counsel moved to supplement the record with this new information.
We have jurisdiction of this appeal under 28 U.S.C. § 1295(a)(3).
We review the Court of Federal Claims' attorney fee determination for an abuse of discretion. Haggart v. Woodley, 809 F.3d 1336, 1354 (Fed.Cir.2016). We review its underlying legal conclusions de novo. Id. "An abuse of discretion exists when the trial court's decision is clearly unreasonable, arbitrary or fanciful, or is based on clearly erroneous findings of fact or erroneous conclusions of law." Lazare Kaplan Int'l, Inc. v. Photoscribe Techs., Inc., 714 F.3d 1289, 1293 (Fed.Cir.2013) (internal quotation marks and citations omitted).
Though a trial court has discretion in determining a fee award, it...
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