Bratcher v. United States ( 2018 )

In the United States Court of Federal Claims
No. 15-986L
(Filed: March 9, 2018)
) Keywords: Rails-to-Trails; Fifth
MICHAEL A. AND TINA C. BRATCHER, et ) Amendment Takings Clause; Uniform
al., ) Relocation Assistance and Real Property
)
Acquisition Policies Act; 42 U.S.C.
Plaintiffs, )
) § 4654; Attorney Fees; Fee Shifting;
v. ) Forum Rate; Davis County Exception.
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
Mark F. (Thor) Hearne, II, Arent Fox LLP, Washington, DC, with whom were Lindsay S.C.
Brinton, Meghan S. Largent, Stephen S. Davis, and Abram J. Pafford, Arent Fox LLP, for
Plaintiffs.
Randall M. Stone, Senior Attorney, Environment and Natural Resources Division, U.S.
Department of Justice, Washington, DC, with whom was Jeffrey H. Wood, Acting Assistant
Attorney General, for Defendant.
OPINION AND ORDER
KAPLAN, Judge.
This rails-to-trails case is currently before the Court on Plaintiffs’ Motion for Payment of
Attorney Fees and Litigation Expenses. In accordance with the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654(c) (URA), Plaintiffs
request an award of $1,072,455.40 in attorneys’ fees and $95,668.81 for expenses incurred in
connection with this litigation. The government opposes Plaintiffs’ motion, contending that the
number of hours claimed and the hourly rates charged are excessive. It also contends that several
of Plaintiffs’ claimed expenses are unreasonable and should be disallowed.
For the reasons set forth below, the Court concludes that Plaintiffs are entitled to an
award of attorneys’ fees in the amount of $523,786.98 and reimbursement for expenses in the
amount of $69,098.83. Accordingly, Plaintiffs’ motion is GRANTED-IN-PART and DENIED-
IN-PART.
BACKGROUND
This rails-to-trails takings case involves properties abutting a 2.91-mile railroad right-of-
way in Lafayette County, Missouri. Compl. at 1, ECF No. 1. Those properties became the
subject of a Notice of Interim Trail Use issued by the Surface Transportation Board in 2012. See
id.; see also id. ¶ 9. This suit was initiated on September 4, 2015, when the owners of two
properties along the right-of-way (Michael and Tina Bratcher and Michael Slaughter) filed a
complaint in this Court seeking just compensation under the Fifth Amendment’s Takings Clause.
See id. at 1–2. On January 15, 2016, Plaintiffs filed an amended complaint which added twenty
additional property owners as plaintiffs. ECF No. 12.
The parties filed a stipulation regarding title matters on July 1, 2016, and a revised
stipulation on July 29, 2016. ECF Nos. 17, 20. Several weeks later, on August 19, 2016, they
reported to the Court that they had resolved all liability matters through the stipulation. ECF No.
24. Based on the stipulation, Plaintiffs subsequently voluntarily dismissed thirteen claims
asserted by twelve of the twenty-two landowners (including the claims asserted by the original
plaintiff property owners, the Bratchers and Michael Slaughter). ECF Nos. 37 and 38.
In the meantime, on August 26, 2016, the Court issued a pre-trial order to govern the
valuation stage of the case. ECF No. 27. The parties thereafter engaged in discovery and a trial
date was set.
On August 14, 2017, Plaintiffs filed a notice of acceptance of the government’s Rule 68
offer of judgment. See Landowners’ Notice of Acceptance of Gov’t’s Rule 68 Offer of J., ECF
No. 81. The offer Plaintiffs accepted included a total principal amount of $77,466.80, covering
fourteen claims made by a total of eleven property owners. Id. Ex. A. at 2–3, ECF No. 81-1. The
range of payments per claim was between $603.60 and $14,575.20. Id.On September 1, 2017, Plaintiffs filed the present motion for an award of attorneys’ fees
and expenses. ECF No. 86. The government filed its opposition on October 13, 2017, ECF No.
97, and Plaintiffs replied on October 27, 2017, ECF No. 100.
Judge Bruggink, to whom this case was then assigned, set argument on Plaintiffs’ motion
for January 8, 2018. Prior to that date, however, Judge Bruggink determined that a declaration
filed by Plaintiffs with their reply brief had created a ground for his disqualification under 28
U.S.C. § 455(a). See Order, ECF No. 105. Accordingly, Judge Bruggink transferred the matter to
the undersigned by order of January 12, 2018. Id.; see also ECF No. 107.
That same day, Plaintiffs filed a motion seeking an order requiring the parties to engage
in mediation regarding Plaintiffs’ attorney fee request. ECF No. 106. The government opposed
the motion, ECF No. 108, and the Court denied it on January 25, 2018, ECF No. 112.
The Court held oral argument on Plaintiffs’ motion for an award of attorneys’ fees on
February 13, 2018.
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DISCUSSION
I. Standards
The URA’s attorney fee provision provides, in pertinent part, that:
The court rendering a judgment for the plaintiff in a proceeding brought
under section 1346(a)(2) or 1491 of Title 28, awarding compensation for
the taking of property by a Federal agency . . . shall determine and award
or allow to such plaintiff, as a part of such judgment . . . such sum as will
in the opinion of the court . . . reimburse such plaintiff for his reasonable
costs, disbursements, and expenses, including reasonable attorney,
appraisal, and engineering fees, actually incurred because of such
proceeding.
42 U.S.C. § 4654(c). The government does not dispute that Plaintiffs are entitled to an award of
reasonable attorneys’ fees and expenses for services performed in connection with the claims
that were the subject of its offer of judgment. See United States’ Resp. to Pls.’ Mot. for Att’ys’
Fees & Expenses Under the [URA] & RCFC 54(d) (Def.’s Resp.) at 1–2, ECF No. 97.
“In determining the amount of reasonable attorneys’ fees under federal fee-shifting
statutes, the Supreme Court has consistently upheld the lodestar calculation as the ‘guiding light
of [its] fee-shifting jurisprudence.’” Bywaters v. United States, 670 F.3d 1221, 1228–29 (Fed.
Cir. 2012) (alteration in original) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551
(2010)). Under the “lodestar” approach, the court multiplies the number of hours reasonably
expended in the case by a reasonable hourly rate. Id. at 1225–26; see also Blum v. Stenson, 465
U.S. 886, 888 (1984). Hourly rates are determined “according to the prevailing market rates in
the relevant community.” See Blum, 465 U.S. at 895. The rates should be in line with those of
other attorneys in the “relevant community” offering similar services with “reasonably
comparable skill, experience and reputation.” Id. at 895 n.11
The court of appeals has adopted the “forum rule” to identify the “relevant community”
that serves as the basis for determining a reasonable hourly rate. See Avera v. Sec’y of HHS, 515
F.3d 1343, 1348–49 (Fed. Cir. 2008) (observing that “the courts of appeals have uniformly
concluded that, in general, forum rates should be used to calculate attorneys’ fee awards under
other fee-shifting statutes”). Under that rule, the location of the trial court is typically designated
as the applicable forum. See Bywaters, 670 F.3d at 1233 (citing Avera, 515 F.3d at 1348–49)
(noting that the court should generally calculate the lodestar amount based on rates prevailing in
the forum court’s geographic location). Washington, DC is the applicable forum for cases before
the Court of Federal Claims. See Avera, 515 F.3d at 1348; Biery v. United States (Biery I), Nos.
07-693L & 07-675L, 2012 WL 5914260, at *6 (Fed. Cl. Nov. 27, 2012).
The Federal Circuit, however, has recognized a “limited exception” to the forum rule in
cases where the bulk of the work in the case is performed outside of the forum and where there is
a “very significant” difference between the forum rate and the local rate. Avera, 515 F.3d at 1349
(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d
755, 758–60 (D.C. Cir. 1999) (per curiam)). This limitation on the general rule—known as the
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“Davis County exception” (in recognition of the case from which it originates)—is designed to
prevent windfalls and avoid “the occasional erratic result where the successful petitioner is vastly
overcompensated.” Id. (quoting Davis Cty., 169 F.3d at 758); see also Biery v. United States
(Biery III), 818 F.3d 704, 710 (Fed. Cir.) (observing that “[u]ltimately, a fee award must ‘be
adequate to attract competent counsel,’ but must not ‘produce windfalls to attorneys’” (quoting
Hensley v. Eckerhart, 461 U.S. 424, 444 (1983) (Brennan, J., concurring in part and dissenting in
part))), cert. denied, 137 S. Ct. 389 (Mem.) (2016); Bywaters, 670 F.3d at 1224, 1232–34
(applying the rationale of Avera to a case arising under the URA’s attorney fee provisions).
II. Hours Compensable
Plaintiffs bear the burden of proving that the number of hours submitted for payment is
reasonable and does not include hours that are “excessive, redundant, or otherwise unnecessary.”
Hensley, 461 U.S. at 434. In this case, Plaintiffs claim that counsel and support staff spent more
than 1,900 hours on the litigation, an expenditure that they argue “was reasonable and necessary
– especially given the government’s aggressive opposition.” Landowners’ Mem. in Supp. of
Mot. for Payment of Att’y Fees & Litigation Expenses (Pls.’ Mem.) at 1, ECF No. 86-1.
The government challenges the number of hours for which Plaintiffs seek attorneys’ fees
on a number of bases, claiming: 1) that Plaintiffs have included hours attributable to claims
which they agreed to dismiss and on which they accordingly did not prevail; 2) that Plaintiffs
have claimed reimbursement for time spent on client solicitation and business development
activities; 3) that Plaintiffs are not entitled to recover fees associated with what the government
calls a “deficient deposition notice and subpoena” that was served on a third party; 4) that
Plaintiffs are not entitled to fees for billings the government characterizes as “questionable” and
attributable to attorneys “who have not appeared in the case”; 5) that Plaintiffs are not permitted
to seek fees for 100% of the time spent in travel; 6) that time spent on assorted other matters is
not compensable; 7) that the fee request attributable to certain legal services is excessive given
counsel’s expertise; and 8) that fees for time spent preparing the motion for fees must be
reduced. Each of these objections is addressed below.
A. Reduction for Claims on Which Plaintiffs Did Not Succeed
In the context of fee-shifting statutes like the URA, hours spent on unsuccessful claims
should be excluded from the lodestar amount where the claim or claims on which a plaintiff
failed to prevail is “distinct in all respects from his successful claims.” Hensley, 461 U.S. at 440.
Here, the claims on which Plaintiffs failed to prevail are readily distinguishable from those on
which they did prevail, because the unsuccessful claims involved different pieces of property and
therefore different property interests.
Plaintiffs’ time records do not specify the claims or parcels of property to which the
recorded hours pertain. Consistent with the approaches taken in similar cases, the Court will
account for the time attributable to the unsuccessful claims by applying a percentage reduction to
certain of the hours claimed. See Biery III, 818 F.3d at 712 (holding that “the Court of Federal
Claims did not abuse its discretion when it reduced the hours and costs by 30% in order to take
into account work done on behalf of the unsuccessful plaintiffs”); Gregory v. United States, 110
4
Fed. Cl. 400, 404–06 (2013) (applying percentage adjustment to hours claimed prior to grant of
summary judgment as to some of the plaintiffs’ claims).
Thus, as noted above, in a July 29, 2016 stipulation, the parties agreed that approximately
50% of the claims contained in the Amended Complaint should be dismissed. Recognizing,
however, that the unsuccessful claims may have had issues that overlapped with the successful
ones, the Court will disallow 40% rather than 50% of the hours claimed for work performed up
through July 29, 2016. See Biery III, 818 F.3d at 712 (affirming CFC decision which—
recognizing overlap—reduced hours by 30% where Plaintiffs did not prevail on 40% of their
claims). This reduction will be applied after taking into consideration the other reductions
described below.
B. “Client Solicitation and Business Development”
The government contends that the Court should eliminate sixty-eight hours of the time
claimed by Plaintiffs that it characterizes as “client solicitation” and “business development”
activities. See Def.’s Resp. at 14–15. In particular, it challenges Plaintiffs’ request for fees for
time spent by counsel and paralegals preparing for and attending meetings with local landowners
during the months that preceded the filing of the Amended Complaint in January 2016. See id.
The Court rejects the government’s characterization of these meetings as “solicitation” or
“business development” activities. Rather, these meetings were apparently held to engage in
substantive discussions with individuals who had property interests in the land that abutted the
railroad corridor. These individuals were presumably already interested in retaining counsel (at
least for purposes of determining whether they had claims), and the meetings themselves were
consultations with counsel. The research and discussions that occurred before, during, and after
these meetings served as the basis for the amended complaint that Plaintiffs filed in January
2016. The Court, accordingly, rejects the government’s categorical objection to the
compensability of these hours. See Greenwood v. United States, 131 Fed. Cl. 231, 241 (holding
that “class counsel’s work investigating plaintiffs’ claims, establishing the facts necessary to file
a case on behalf of a class, prior to the filing of the complaint was not client development but
necessary to ensure proper property claims and critical to every plaintiff achieving an award in
th[e] case”), appeal docketed, No. 17-2243 (Fed. Cir. June 28, 2017). Instead, because this work
occurred before the July 29, 2016 stipulation, the hours shall be reduced by 40% to account for
time spent on unsuccessful claims, as described above.
C. Time Spent on Allegedly Deficient Deposition Notice and Subpoena
The government asks that the Court cut 43.6 hours counsel billed for work attributable to
a motion to quash that Union Pacific Railroad filed in response to a deposition notice that
Plaintiffs filed. See Def.’s Resp. at 15–17. Plaintiffs noticed the deposition after the government
preliminarily identified as one of its witnesses a “[r]epresentative of Union Pacific Railroad with
knowledge about trail use negotiations with [the] City of Lexington.” Id. at 15. Union Pacific
moved to quash the deposition on the grounds that the notice was procedurally defective. Id. at
15–16; see also ECF No. 44. Thereafter, on May 15, 2016, the Court held a status conference at
which there was an extended discussion of, among other things, whether the parties might enter a
stipulation that would obviate any need for the government to present the testimony of a Union
5
Pacific witness. See Def.’s Resp. at 16; see also ECF No. 47. As a result of this discussion,
Plaintiffs agreed to withdraw the notice of deposition pending a resolution of that issue. The
Court, accordingly, denied the motion to quash as moot. ECF No. 47. And the parties (as well as
Union Pacific) subsequently agreed that should the government decide to present the testimony
of a Union Pacific witness, then Plaintiffs would have an opportunity to depose that witness.
ECF No. 51.
According to the government, Plaintiffs should not recover attorneys’ fees for any of the
work in connection with the notice of deposition or motion to quash. It argues that “[t]he bottom
line is that Plaintiffs generated unnecessary fees and costs by issuing and later withdrawing a
deposition notice and subpoena that was deficient for several reasons, none of which were
caused by the United States.” Def.’s Resp. at 16. The Court disagrees. Once the government
identified a representative of Union Pacific as a potential witness, it was reasonable for Plaintiffs
to seek the opportunity to depose that witness. Further, Plaintiffs did not withdraw their notice of
deposition because it was “deficient”; indeed, by the time of the status conference on May 15,
the alleged deficiencies (i.e., the failure to identify the name of the witness or tender the witness
fee) had been cured. Rather, Plaintiffs withdrew their notice because the government agreed to
reconsider whether it was necessary to call a witness from Union Pacific at all. Thus, Plaintiffs’
efforts had the desired effect of precluding the government from calling a witness whom Plaintiff
had not had the opportunity to depose. The government’s objection to Plaintiffs’ recovery of fees
in connection with this work lacks merit.
D. Allegedly “Questionable Billings”
The government seeks a reduction of 34.9 attorney hours for what it characterizes as
“questionable billings.” Id. at 17–19. First, it contends that Plaintiffs failed to establish the
reasonableness of the 11.4 hours of time billed by Debra Albin-Riley, an Arent Fox partner. Id.at 17–18. In a declaration accompanying Plaintiffs’ reply brief, Ms. Albin-Riley states that she is
the partner at the firm who is responsible for retaining and managing experts in all Trails Act
cases handled by the firm. Decl. of Debra Albin-Riley (Riley Decl.) ¶¶ 1–2, ECF No. 100-2. She
explains that the total of 11.4 hours she billed to review pleadings and address “expert matters”
involved the approval of engagements for the landowners’ appraisers and mapping expert, and
that it was necessary for her to review the pleadings to ascertain the exact scope of the experts’
involvement in the case. Id. ¶ 3. The Court concludes that the amount of time claimed for work
connected to approving engagements for Plaintiffs’ experts in this routine case appears
excessive, especially when the individual doing the work is a senior partner who performs these
duties in connection with all of the firm’s rails-to-trails cases. Accordingly, the Court will reduce
the time claimed for Ms. Albin-Riley’s work by 70%.
The government also challenges 18.9 hours of time billed by counsel Meghan S. Largent,
contending that the vast majority of the work done involved reviewing filings or attending
meetings, which the government argues is duplicative of the work performed by other attorneys
in the case. Def.’s Resp. at 18. In a declaration submitted with Plaintiffs’ reply, Ms. Largent
states that she performed substantive work in this case that was necessary for Plaintiffs to
prevail, including participation in client meetings and work on pleadings filed in the case. Decl.
of Meghan S. Largent (Largent Decl.) ¶ 2, ECF No. 100-3.
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The Court concludes that it was not unreasonable for Ms. Largent to bill time to attend
client meetings in Lexington, Missouri on October 20, 2015, along with Ms. Brinton. It was not
unreasonable for the firm to assign two attorneys to attend the meetings because there were
multiple prospective plaintiffs. Ms. Largent’s other entries involve brief periods of time to
perform a review of pleadings and orders, to discuss discrete legal issues and other matters, to
conduct specific research tasks, and to attend meetings with the litigation team to discuss
strategy. The Court concludes that these entries also appear reasonable.
Finally, the Court rejects the government’s challenge to the 4.6 hours Plaintiffs have
billed for the services of attorney Donna Mo, a senior associate who conducted a discrete
research project concerning appraisal issues. See Def.’s Resp. at 18–19. The government’s
objection to this entry appears to be based on the facts that Ms. Mo is in another practice group
(Labor and Employment) and that her claimed billing rate is $665 per hour. The government’s
objection to the relatively modest number of hours claimed for this discrete research project is
unpersuasive. The Court addresses the reasonableness of Ms. Mo’s claimed hourly rate below.
E. Travel Time
The government contends that any time that counsel billed for travel should be reduced
by at least 50%. Id. at 19–20. As the court of appeals has noted, however, “[w]hen a lawyer
travels for one client he incurs an opportunity cost that is equal to the fee he would have charged
that or another client if he had not been traveling.” Crumbaker v. Merit Sys. Prot. Bd., 781 F.2d
191, 193 (Fed. Cir. 1986) (quoting Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984)),
modified on other grounds, 827 F.2d 761 (Mem.) (Fed. Cir. 1987).
In this case, a good portion of the time for which travel was billed involved trips by
automobile within the State of Missouri. Because it would not have been possible to also perform
case-related work during these trips, that time is fully compensable. See Greenwood, 131 Fed.
Cl. at 242 (observing that “because the transit time was spent driving, it would not have been
possible for class counsel to work while in transit and thus they are entitled to their fees while in
transit”).
On the other hand, the timesheets also include entries from Ms. Brinton and Mr. Davis
which appear to involve airline travel to attend depositions in Flint, Michigan; Madison,
Wisconsin; and Denver, Colorado. Ms. Brinton specified in two instances that she performed
work on the case while on the plane, noting in an entry for July 6, 2017, that she “review[ed]
notes and exhibits on plane” and in an entry for July 10, 2017, that she “review[ed] notes during
travel.” Landowners’ Mot. for Att’y Fees & Expenses Under the URA & Local Rule 54(d) (Pls.’
Mot.) Ex. 1 at 22–23, ECF No. 86-2.1 In other entries, however, which combined time spent in
travel with other tasks performed that same day, Ms. Brinton did not indicate that she performed
work on this case while on the plane. See id. at 12 (entry for February 14, 2017); id. at 17
(entries for May 11 and 12, 2017); id. at 22–24 (entries for July 5, 11, 13 and 14, 2017).
Similarly, Mr. Davis’s entries do not specify that he performed work while travelling by air on
May 8 and 9, 2017, and his entries similarly combine the time spent in travel with other tasks.
See id. at 16–17. The Court will accordingly reduce the hours claimed for those entries by 20%
1
Throughout this Opinion, citations to this exhibit are to the ECF pagination.
7
to account for time spent in airline travel where counsel could have performed other work on this
case, but did not.
F. Miscellaneous
The government also challenges Plaintiffs’ request for fees for approximately 2.3 hours
of time that appears to have been spent reviewing files in other cases. Def.’s Resp. at 20
(challenging entries from October 5, 2015, and December 23, 2015). The Court agrees that
Plaintiffs have failed to explain the relevance of this work to this case. Accordingly it rejects
these hours.
The government objects to time billed in relation to FOIA requests made by Plaintiffs
requesting information about the number of hours that Justice Department attorneys put in on
this case. Id. at 20–21. The Court is not persuaded by the government’s argument that such time
is not reimbursable because Plaintiffs had the option of seeking discovery of the documents it
requested. While counsel may not double-bill by using FOIA to secure documents that have
already been received through discovery, it is not unreasonable for them to employ other
information-gathering techniques, including FOIA requests, as a means of building Plaintiffs’
case.
The government challenges Plaintiffs’ request for compensation attributable to certain
time billed by paralegals for performing what the government characterizes as essentially
secretarial tasks. Id. at 21–22; see also Biery v. United States (Biery II), Nos. 07-693L and 07-
675L, 2014 WL 12540517, at *4 (Fed. Cl. Jan. 24, 2014) (paralegal time devoted to “[t]asks such
as proofreading, assembling, photocopying, and mailing” may be non-compensable), aff’d, 818
F.3d 704 (Fed. Cir. 2016); Hopi Tribe v. United States, 55 Fed. Cl. 81, 99–100 (2002) (ruling
that tasks such as proofreading, assembling documents, photocopying, and mailing are
considered non-compensable secretarial and administrative work); Fang ex rel. Yang v. Sec’y of
HHS, No. 10-33V, 2013 WL 4875120, at *6 (Fed. Cl. Office of the Special Masters Aug. 22,
2013) (deducting paralegal time spent on saving and filing orders and placing an event on the
calendar); Lawrence v. Sec’y of HHS, No. 09-435V, 2013 WL 3146775, at *3–4 (Fed. Cl. Office
of the Special Masters May 28, 2013) (deducting all hours billed as paralegal time that were
secretarial in nature).
The tasks which the government identifies as non-compensable are those characterized in
the timesheets with descriptions such as “reviewing and managing client data” or working on
“landowner access to pleadings.” See, e.g., Pls.’ Mot. Ex. 1 at 10 (December 6, 2016 entry for
paralegal Mary Shambro); id. (December 8, 2016 entry for paralegal Megan Epperson); id. at 11(January 13, 2017 entry for paralegal Megan Epperson); id. at 12 (March 2, 2017 entry for
paralegal Megan Epperson). At oral argument, counsel for Plaintiffs explained that these generic
descriptions represented time spent by paralegals communicating requests that clients provide
documents such as deeds, title records, and surveys, and then receiving those documents from
the clients. See Oral Argument at 15:05–55 (Feb. 13, 2018). Because it is unclear from the
descriptions in the billing records whether the paralegals performed any analysis of the
documents, the Court agrees with the government that Plaintiffs have failed to establish that
these tasks were not largely clerical or secretarial in nature. Accordingly, they are not
compensable and reductions will be taken for such work.
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The government also objects to what it claims was excessive time (59.5 hours) spent by
Plaintiffs’ counsel researching issues relevant to the Federal Circuit’s consideration of and ruling
in Caquelin v. United States, 697 F. App’x 1016 (Fed. Cir. 2017) (per curiam), and the Supreme
Court’s decision in Arkansas Game and Fish Commission v. United States, 568 U.S. 23 (2012).
See Def.’s Resp. at 22. The issues researched were relevant to this case because the government
moved for a stay based on the pending Federal Circuit decision in Caquelin and because Judge
Bruggink explicitly advised the parties that if the matter went to trial, he would hear evidence
relevant to the application of the factors set forth in Arkansas Game and Fish to Plaintiffs’
claims.
The Court agrees with the government, however, that the amount of time billed by
counsel for research related to these issues is excessive, given their extensive experience in rails-
to-trails cases and the fact that counsel were already intimately familiar with the issues raised in
Caquelin (having filed an amicus brief in that case and written extensively regarding its
implications in other rails-to-trails cases). Accordingly, the hours billed for attorney time
expended on these issues shall be reduced by 50%.2
Finally, the government challenges as unreasonable the more than 100 hours counsel
claim was spent preparing their motion for fees. Id. at 22–23. The Court agrees that the number
of claimed hours is unreasonable, particularly given the fact that Plaintiffs devoted a significant
amount of that time to an argument that the Court rejects below—that the Court should award
fees at prevailing rates for the Washington, DC area, rather than the St. Louis market. Moreover,
it is apparent that a number of the longer passages in Plaintiffs’ motion do not represent original
work, but were instead cut and pasted from other fee applications. The Court concludes therefore
that the hours billed for the attorney fee litigation should be reduced by 50%.3 Further, to the
extent Plaintiffs’ attorneys billed for time regarding the recovery of fees well in advance of the
filing of Plaintiffs’ fee petition, that time is not compensable, as the Court presumes that such
time was spent merely logging hours. See, e.g., Pls.’ Mot. Ex. 1 at 3 (entry for counsel Lindsay
Brinton from November 16, 2015, for 0.2 hours spent “work[ing] on matters re: recovery of
fees”); id. at 4 (entries for January 4, 2016, and January 14, 2016, for 0.2 and 0.1 hours,
2
Where Arent Fox’s attorneys’ billing descriptions include time devoted to the Caquelin issue in
conjunction with other work performed, the Court shall reduce the hours by 25%. See, e.g., Pls.’
Mot. Ex. 1 at 12 (entry for Mark Hearne for work performed on February 14, 2017, with a billing
description that includes “hearing before Judge Bruggink” as well as “research of relevant
caselaw on the relevance of Caquelin to the situation of these owners”).
3
Where Arent Fox’s attorneys’ billing descriptions include time devoted to the fee issue in
conjunction with other work performed, the Court shall reduce the hours by 25%. See, e.g., Pls.’
Mot. Ex. 1 at 15 (entry for Lindsay Brinton for 3.2 hours of work performed on April 12, 2017,
with a billing description of “[w]ork on matters re: recovery of fees; work on trial preparation;
review DOJ’s exhibit and witness lists; email correspondence with DOJ re: same; preparation for
status conference; attend same; e-mail correspondence with DOJ re: pre-trial schedule; e-mail
correspondence with our experts; client correspondence”).
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respectively, same description); id. at 5 (entry for February 9, 2016, for 0.1 hours, same
description).
III. Hourly Rate
According to lead counsel in this case, Mark Hearne, the fees Plaintiffs request were
calculated on the basis of the hourly rates that Arent Fox charges paying clients in the
Washington, DC market for similar services. Those hourly rates, as back-calculated on the basis
of counsel’s billing records, are as follows:
10
Attorney Requested Rate
Debra Albin-Riley (Partner)4 $895/hour
Mark (Thor) Hearne (Partner)5 $859/hour
Abram Pafford (Counsel)6 $740/hour
Meghan Largent (Counsel)7 $590/hour
Lindsay Brinton (Counsel)8 $580/hour
Donna Mo (Associate)9 $665/hour
Stephen Davis (Associate)10 $540/hour
In addition, Plaintiffs claim hourly rates ranging between $210–$355 for the services of
paralegals, as well as $190–$205 per hour for work by certain “project assistants.”
4
Ms. Albin-Riley is a senior partner with Arent Fox, where she is a member of the firm’s
Complex Litigation Practice Group. Riley Decl. ¶ 1. She has over thirty years of litigation
experience and is a Fellow of the Litigation Counsel of America. Id. She primarily works in the
firm’s Los Angeles, California office. Id.
5
Mr. Hearne is an equity partner with Arent Fox. Decl. of Mark F. (Thor) Hearne, II (Hearne
Decl.) ¶ 2, ECF No. 86-3. He has practiced law for over thirty years and has extensive
experience as lead counsel in complex federal litigation before both trial and appellate courts,
including, in particular, takings cases arising out of the rails-to-trails act. Id. ¶¶ 1, 9–11.
6
Mr. Pafford is currently counsel with Arent Fox. Decl. of Abram J. Pafford ¶ 3, ECF No. 86-6.
He has practiced law since 2000, including time with Fried Frank, Covington & Burling, and in
his own boutique litigation firm. Id. ¶¶ 4–7. At oral argument, counsel for Plaintiffs indicated
that Mr. Pafford is based in Washington, DC. See Oral Argument at 2:20–28.
7
Ms. Largent is currently counsel with Arent Fox. Pls.’ Mot. Ex. 22, ECF No. 100-9. She has
twelve years of litigation experience. Suppl. Decl. of Mark. F. (Thor) Hearne, II ¶ 15, ECF No.
100-1. Her declaration does not state where her practice is based. See generally Largent Decl.
8
Ms. Brinton is currently counsel with Arent Fox and was previously a senior associate with the
firm from 2010 to 2015. Decl. of Lindsay S.C. Brinton ¶ 3, ECF No. 86-4. She received her J.D.
from the University of Missouri in 2006 and is a member of both the Missouri and District of
Columbia bars. Id. ¶¶ 1–2. She is based out of an office Arent Fox maintains in Clayton,
Missouri (hereinafter, the “St. Louis office”).
9
Donna Mo is an associate with Arent Fox. See Pls.’ Mot. Ex. 1 at 22. Plaintiffs have not
provided the Court with a summary of her work experience. See Landowners’ Reply in Supp. of
Their Mot. for Payment of Att’y Fees & Litigation Expenses (Pls.’ Reply) at 8, ECF No. 100.
Ms. Mo billed for just 4.6 hours of work on this case. See Pls.’ Reply at 8.
11
According to Mr. Hearne, the rates charged by Arent Fox “are established and reviewed
annually” and are “based upon substantial analysis and research of the legal marketplace.”
Hearne Decl. ¶ 38. “Among other factors,” Mr. Hearne states, “the firm considers, (a) the
prevailing hourly rates charged by our peer firms for comparable work by attorneys possessing
comparable skill and experience, (b) surveys of AmLaw 200 law firm billing rates prepared by
PriceWaterhouseCoopers and the National Law Journal, (c) the overhead and expenses necessary
to provide the legal services to our clients; and (d) the billing practices in the marketplace.” Id.
The government argues that Plaintiffs are not entitled to recover their fees at forum rates
because counsel performed the bulk of the work in this case outside of Washington, DC, and
because there is a significant difference between the forum rates and the prevailing market rate
for legal services in St. Louis, Missouri, where Plaintiffs’ counsel practice. See Def.’s Resp. at
24–35. In the alternative, the government contends that if the Court applies Washington, DC
rates, it should adopt the billing rates set forth in the Laffey Fee Matrix that is maintained by the
U.S. Attorney’s Office for the District of Columbia.11 See id. at 35–38.
Plaintiffs do not meaningfully contest that the bulk of the work in this case was
performed outside of Washington, DC.12 See Oral Argument at 1:20–2:39. They contend,
10
Mr. Davis is an associate with Arent Fox. Pls.’ Mot. Ex. 1 at 2. His work experience includes
time as an Assistant United States Attorney for the Eastern District of Missouri; an adjunct
professor at St. Louis University School of Law; and a state elections operations director for a
presidential campaign. Decl. of Stephen S. Davis ¶¶ 3–5, ECF No. 86-5. His declaration does not
state where his practice is based. See id. ¶ 3.
11
The Matrix maintained by the U.S. Attorney’s Office has its origin in the 1983 decision of the
District Court for the District of Columbia in Laffey v. Northwest Airlines, Inc., 572 F. Supp.
354, 371–72, 374 (D.D.C. 1983), aff’d in part, rev’d in part, 746 F.2d 4 (D.C. Cir. 1984),
overruled by Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988)
(en banc). That case “set out a matrix of reasonable rates for attorneys in the Washington, D.C.
metropolitan area who were engaged in complex federal litigation at that time.” Biery III, 818
F.3d at 712–13 (citing Laffey, 572 F. Supp. at 371–72). There have been “two competing
approaches” used to update the 1983 Laffey Matrix rates. Id. at 713. The first, and the one the
government endorses in this case, is “based on changes to the cost of living in the Washington
D.C. metropolitan area as measured by the Consumer Price Index for All Urban Consumers
(‘CPI–U’).” Id. (citation omitted). “The second approach is to use the ‘Kavanaugh Matrix,’
advanced by economist Dr. Michael Kavanaugh,” which updates Laffey Matrix rates based on
changes to the Legal Services Index (LSI) component of the Consumer Price Index (CPI). Id.
12
Further, inferences drawn from the billing records strongly support the conclusion that the
bulk of the work was performed outside of Washington, DC. Thus, the majority of the attorney
hours billed are attributable to work performed by Ms. Brinton and Mr. Davis, both of whom
appear to work out of Arent Fox’s St. Louis office. Virtually all of the conferences with the
Court were held by telephone. While Mr. Hearne apparently practices out of an office in
Washington, DC as well as the St. Louis office, he supplied the address of Arent Fox’s St. Louis
office to the Clerk when this case was filed. Indeed, Mr. Hearne was in the St. Louis office when
this Court held oral argument on the application for attorney fees. To the extent that Plaintiffs
12
however, that the Davis County exception is nevertheless wholly inapplicable because Arent Fox
is seeking to recover fees at its actual billing rates. See Pls.’ Reply at 14. According to Plaintiffs,
the Davis County exception applies where “an attorney seeks a fee-shifting windfall by asking
for fees greater than those they actually command and receive in the ordinary course of their
practice.” Id. “That is the exact opposite of the situation here,” Plaintiffs claim, because
“[l]andowners’ counsel . . . seek to be compensated at their usual Arent Fox rates—nothing less,
nothing more.” Id. (emphasis omitted).
Plaintiffs’ argument that the Davis County exception is inapplicable lacks merit. The
purpose of that exception is to preclude counsel from receiving a windfall by securing
compensation at a forum rate that is significantly higher than the reasonable rate counsel could
command in the local market where he or she practices law and was retained. In some cases, of
course, counsel’s “actual billing rates” might be given significant weight in determining the
prevailing rate in the forum or in the local market. See Lost Tree Vill. Corp. v. United States,
135 Fed. Cl. 92, 96 (2017), appeal docketed, No. 18-1466 (Fed. Cir. Jan. 24, 2018). But given
that there is no evidence in this case that Plaintiffs agreed to pay fees at Arent Fox’s standard
billing rates, they have no bearing on the applicability of the Davis County exception.13
Plaintiffs contend that the government has failed to establish that prevailing local rates in
St. Louis are substantially lower than the Washington, DC rates that they seek. The Court notes
that Plaintiffs have supplied no evidence of their own regarding prevailing rates in St. Louis,
Missouri. In another rails-to-trails case involving the same counsel, however, Judge Firestone
concluded on the basis of data drawn from one of the plaintiffs’ own affiants that (at least in
2012) rates in St. Louis were significantly lower than rates in DC. See Biery I, 2012 WL
5914260, at *6.
Further, in another recent decision by Judge Firestone in a rails-to-trails case, she found
that a reasonable hourly rate for partners practicing in the St. Louis market is $475, for
associates, $275, and for paralegals, $150–$175. See Greenwood, 131 Fed. Cl. at 240–41.14
Similarly, a district court in the Eastern District of Missouri recently awarded fees at comparable
hourly rates in a civil rights case. Holmes v. Slay, No. 4:12CV2333, --- F. Supp. 3d ---, 2017 WL
994473, at *3 (E.D. Mo. Mar. 15, 2017) (awarding fees at rate of $450 per hour for named
take the position that the bulk of the work was not performed outside of Washington, DC, the
Court believes that it was their obligation to establish that fact, which they have failed to do.
13
Plaintiffs did not submit a copy of their retainer agreements with Arent Fox, but it is the
Court’s understanding that the standard practice is for the firm to take rails-to-trails cases on a
contingent fee basis.
14
See also Thomas v. United States, Nos. 10-54L and 10-459L, 2014 WL 1347221, at *4 (Fed.
Cl. Apr. 4, 2014) (rails-to-trails case awarding fees “at the higher end of the scale for attorneys
practicing in St. Louis”—$475 per hour for partners; $275 per hour for associates; and $150–
$175 per hour for paralegals).
13
partner in law firm with over 20 years of experience;15 $400 per hour for another highly
experienced partner;16 $330 and $350 per hour for two associates; and $150 per hour for a
paralegal).
In Banks v. Slay, No. 4:13CV02158, 2016 WL 5870059, at *3 (E.D. Mo. Oct. 7, 2016),
aff’d, 875 F.3d 876, 882–83 (8th Cir. 2017), a successful effort to enforce a default judgment in a
civil rights case, the district court awarded fees for the services of a highly experienced attorney
at the rate of $355 per hour and for a paralegal at $93 per hour. Although the attorney had
elsewhere received $450 per hour for his work in civil rights cases, the court found the lower rate
reasonable because the case was not a typical civil rights matter and because the attorney had
billed a large amount of time to conduct research. Id.; see also Van Booven v. PNK (River City),
LLC, No. 4:14-CV-851, 2015 WL 3774043, at *5 (E.D. Mo. June 17, 2015) (awarding highly
experienced partners hourly rates of $300 and $350 for services in wage-and-hour case settled
through offer of judgment).
Both the rails-to-trails case (Greenwood) and the civil rights case (Holmes) resulted in
significantly greater recoveries than in this case, which was resolved through an offer of
judgment in the amount of approximately $77,000. Holmes went to trial and resulted in a verdict
of $2.5 million for a single plaintiff. See 2017 WL 994473, at *1. Greenwood was settled on
behalf of 53 landowners for more than $1 million. See 131 Fed. Cl. at 236. Arguably, then, the
Court would be acting well within its discretion to award fees in this case at rates lower than
those awarded in Greenwood and Holmes. See Dalles Irrigation Dist. v. United States, 91 Fed.
Cl. 689, 698–99 (2010) (observing that “the degree of success obtained . . . may affect the
proportional amount of fees awardable”).
Nonetheless, the Court is also cognizant of the attorney rate ranges and average rates set
forth in the Missouri Lawyers Weekly 2016 survey, see ECF No. 97-10, which are consistent
with the fee awards in Holmes and Greenwood. This Court accordingly concludes that in the St.
15
See Jon Loevy, Loevy & Loevy, https://www.loevy.com/attorneys/jon-loevy/ (last visited Mar.
6, 2018) (describing experience of named partner Jon Loevy).
16
See Roshna Bala Keen, Loevy & Loevy, https://www.loevy.com/attorneys/roshna-bala-keen/
(last visited Mar. 6, 2018) (describing experience of partner Roshna Bala Keen).
14
Louis market the reasonable rates for the services of counsel and paralegals in this case are as
follows:
Attorney Rate
Debra Albin-Riley (Partner) $475/hour
Mark (Thor) Hearne (Partner) $475/hour
Abram Pafford (Counsel) $375/hour
Meghan Largent (Counsel) $375/hour
Lindsay Brinton (Counsel) $375/hour
Donna Mo (Associate) $275/hour
Stephen Davis (Associate) $275/hour
Paralegals/Project Assistants $150/hour
As is readily apparent, these rates are substantially lower (close to one-half) of the forum
rates Plaintiffs claim, which the Court will assume are reasonable for purposes of making the
Avera comparison. Accordingly, under Avera, the Court will award fees to Plaintiffs at the
aforementioned St. Louis rates.
IV. Attorney Fee Award
As described in the table below, with the foregoing deductions, the Court awards
Plaintiffs fees in the amount of $523,786.98.
15
Claimed Claimed Adjusted Adjusted Adjusted
Attorney Claimed Fee
Hours Rate Hours Rate Fee
Debra Albin-Riley 11.4 $895/hour $10,203.00 2.7 $475/hour $1,271.10
Mark (“Thor”) 439.6 $859/hour $377,616.40 390.0 $475/hour $185,250.00
Hearne, Jr.
Abram Pafford 102.0 $740/hour $75,480.00 101.6 $375/hour $38,100.00
Meghan Largent 18.9 $590/hour $75,480.00 15.9 $375/hour $5,962.50
Lindsay Brinton 492.6 $580/hour $285,708.00 427.5 $375/hour $160,314.38
Donna Mo 4.6 $665/hour $3,059.00 4.6 $275/hour $1,265.00
Stephen Davis 216.3 $540/hour $116,802.00 182.8 $275/hour $50,270.00
Paralegals/ 688.8 $190– $192.436.00 542.4 $150/hour $81,354.00
Project Assistants $355/hour
TOTALS 1,974.2 $1,072,455.40 1,663.2 $523,786.98
V. Expenses
Under the URA, Plaintiffs are entitled to reimbursement of reasonable costs actually
incurred in connection with this case. Such expenses must, of course, be “reasonable and
necessary.” Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987) (“[T]he trial court, in
its discretion, may award only those reasonable and necessary expenses of an attorney incurred
or paid in preparation for trial of the specific case before the court, which expenses are those
customarily charged to the client where the case is tried.”). And plaintiffs must submit adequate
documentation in support of their request in order for the court to approve it. See Preseault v.
United States, 52 Fed. Cl. 667, 679 (2002) (documentation is required because “[w]ithout
sufficient detail, a court is unable to determine whether the hours, fees, and expenses are
reasonable for any individual item invoiced”).
Plaintiffs have requested reimbursement of $95,668.91 in expenses. Pls.’ Mot. Ex. 1 at
41. As with their attorneys’ fees claim, Plaintiffs have not identified which expenses were
associated with unsuccessful claims. Accordingly, the Court will reduce by 40% those expenses
incurred through July 29, 2016.
The government has also challenged as insufficiently documented and/or unjustified the
expenses Plaintiffs have claimed for Federal Express shipments. Def.’s Resp. at 39. The Court
agrees with the government that the over 100 Federal Express charges Plaintiffs have billed are
not accompanied by explanations that would allow the Court to determine what documents were
transmitted and to whom, and whether the use of the expedited delivery service was reasonable
or necessary, as opposed to merely convenient for counsel. Accordingly, the charges are
disallowed. See Parrot, Inc. v. Nicestuff Distrib. Int’l, Inc., No. 06-61231-CIV, 2010 WL
16680948, at *16 (S.D. Fla. Feb. 24, 2010) (citing Financial Bus. Equip. Sols., Inc. v. Quality,
No. 08-60769-CIV, 2009 WL 1423931, at *3 (S.D. Fla. May 18, 2009)) (denying reimbursement
for Federal Express charges where counsel failed to document need); Kerns v. Pro-Foam of
S. Ala., Inc., No. 06-0431-WS-B, 2007 WL 2710372, at *3 (S.D. Ala. Sept. 13, 2007) (finding
moving party failed to establish the need for Federal Express charge and holding that the charge
thus appeared incurred solely for convenience of counsel); Smith v. Quintiles Int’l, No. 5:04-cv-
657-Oc-10GRJ, 2007 WL 2412844, at *4 (M.D. Fla. Aug. 21, 2007) (Federal Express charges
not recoverable); see also Corsair Asset Mgmt., Inc. v. Moskovitz, 142 F.R.D. 347, 351 (N.D.
Ga. 1992) (denying express mail costs under 28 U.S.C. § 1920).
The Court also agrees with the government that Plaintiffs have failed to sufficiently
justify reimbursement of the itemized charges they have claimed for Westlaw research. See
Def.’s Resp. at 39. Nothing in the record indicates that counsel is charged by Westlaw on a
session-by-session basis. The Court’s understanding is that “many firms pay a flat rate to Lexis
and Westlaw regardless of their usage.” Biery II, 2014 WL 12540517, at *8 (quoting Carpenters
Health & Welfare Fund v. Coca-Cola Co., 587 F. Supp. 2d 1266, 1272 (N.D. Ga. 2008)). And
the Court agrees with Judge Firestone that “counsel cannot claim such flat rate payments as an
out-of-pocket expense.” Id. (quoting Carpenters Health, 587 F. Supp. 2d at 1272). The Court
therefore denies Plaintiffs’ request for reimbursement of these expenses.
The Court, however, rejects the government’s argument that it was unreasonable for
Plaintiffs to pay their mapping expert premium rates in connection with his deposition testimony.
See Def.’s Resp. Ex. 5 at 7, ECF No. 97-5. It similarly rejects the government’s challenge to the
reasonableness of certain rental car rates. See id. at 1–2. In neither instance does the government
support its claims with any evidence that the charges are out of bounds for the services provided.
The Court agrees that—absent adequate justification—it is not reasonable for counsel to
charge for upgrades of standard coach seats on airlines. The $596 charge for a first class upgrade
to Ms. Brinton’s flight from Minneapolis to St. Louis on July 6, 2017, is accordingly
unreasonable. See Pls.’ Mot. Ex. 1 at 101–03. The same is true of the assorted upgrades to exit
row seats charged by Ms. Brinton without stated justification. See id. at 100, 103, 107. Further,
the Court disallows a charge of $324.46 for a round trip flight that counsel cancelled and for
which the charge appears to have been refunded. See id. at 110.
Finally, Plaintiffs request reimbursement of $11,015.38 for a fee that the Westin Hotel in
St. Louis apparently charged them for the cancellation of a conference room rental for the week
of the planned trial. See id. at 38, 41. Plaintiffs have failed to provide documentation to establish
the reasonableness of this charge, which seems exorbitant on its face. They have not supplied a
copy of the hotel policy or of their contract with the hotel, or otherwise explained why the charge
was unavoidable. Accordingly, the cost is disallowed.
As described in the table below, with the foregoing deductions, the Court awards
Plaintiffs expenses in the amount of $76,667.76.
17
Deductions for Work Performed Before $4,774.80
July 19, 2016
Deductions for Fed Ex Shipments $2,212.41
Deductions for Westlaw Research $7568.93
Deduction for Hotel Cancellation Fee $11,015.38
Airline Upgrade Deductions $998.46
Total Deductions $25,571.52
Claimed Expenses $95,668.81
Adjusted Reasonable Expenses $69,098.83
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for attorneys’ fees and expenses is
GRANTED-IN-PART and DENIED-IN-PART. Plaintiffs are awarded fees in the amount of
$523,786.98 and expenses in the amount of $69,098.83.
The parties shall file a joint status report no later than March 23, 2018, identifying any
further steps that must be taken before final judgment may be entered in the case.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
18