Whispell v. United States

In the United States Court of Federal Claims
No. 09-315L
(E-Filed: August 1, 2018)1
)
WHISPELL FOREIGN CARS, INC., et al., )
) Attorneys’ Fees; RCFC 54(d);
Plaintiffs, ) Uniform Relocation Assistance
) and Real Property Acquisition
v. ) Policies Act, 42 U.S.C. § 4654
) (2012).
THE UNITED STATES, )
)
Defendant. )
)
Mark F. (Thor) Hearne, II, Clayton, MO, for plaintiffs. Lindsay S.C. Brinton, Meghan S.
Largent, Stephen S. Davis, and Abram J. Pafford, of counsel.
Taylor Ferrell, Trial Attorney, with whom was Jeffrey H. Wood, Acting Assistant
Attorney General, Environment and Natural Resources Division, United States
Department of Justice, Washington, DC, for defendant.
OPINION
CAMPBELL-SMITH, J.
Before the court is plaintiffs’ motion for attorneys’ fees and litigation costs,
pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies
Act (URA), 42 U.S.C. § 4654(c) (2012) and Rule 54(d)(2) of the Rules of the United
States Court of Federal Claims (RCFC). See ECF No. 229. Plaintiffs seek attorneys’
fees and costs following the settlement, in their favor, of certain takings claims related to
1
This opinion was issued under seal on July 18, 2018. The parties were invited to
identify source selection, proprietary or confidential material subject to deletion on the
basis that the material was protected/privileged. No redactions were proposed by the
parties. Thus, the sealed and public versions of this opinion are identical, except for the
publication date and this footnote.
property in Pinellas, Florida. See ECF No. 13-1 (second amended complaint).
Defendant filed, by leave of court, a corrected response brief and supporting exhibits in
response to plaintiffs’ motion, as three separate docket entries, ECF No. 251
(defendant’s corrected response); ECF No. 248 (corrected exhibit 1, filed under seal);
ECF No. 275 (exhibits 2 through 4). And plaintiffs filed a reply brief, ECF No. 262.
Following its review of the parties’ submissions, the court directed the parties to file
supplemental briefs. See ECF No. 274 (January 30, 2018 order).
Thereafter, plaintiffs erroneously filed their supplemental brief as a supplemental
motion for attorneys’ fees, ECF No. 278, and defendant filed its supplemental brief as a
response thereto, ECF No. 279.2 Plaintiffs then filed a sur-reply in support of their
supplemental brief. See ECF No. 280. And finally, defendant filed a sur-reply brief. See
ECF No. 281. Additionally, during the course of the briefing schedule, plaintiffs filed
three notices of additional authority relating to plaintiffs’ motion for attorneys’ fees. See
ECF No. 235 (first notice); ECF No. 271 (second notice); ECF No. 282 (third notice).
Defendant filed a notice of supplemental authority, see ECF No. 283, and plaintiffs filed
a response, see ECF No. 284. Plaintiffs’ motion is fully briefed and ripe for ruling by the
court, without oral argument. For the reasons set forth below, plaintiffs’ motion for
attorneys’ fees and litigation costs is GRANTED, in part and DENIED, in part.
I. Background
In May 2009, plaintiffs filed this rails-to-trails lawsuit as a putative class action,
alleging that defendant violated their rights—and the rights of those similarly situated—
as guaranteed by the Fifth Amendment to the Constitution of the United States, by taking
property without providing just compensation in return. See ECF No. 1. Plaintiffs filed
two amended complaints, which eliminated the class action, but joined a number of
plaintiffs. See ECF Nos. 11 (order granting motion for leave to file and accepting first
amended complaint, as filed); 10-1 (first amended complaint); and, ECF Nos. 14 (order
granting motion for leave to file second amended complaint); 13-1 (second amended
complaint). On summary judgment, the court dismissed the claims in the second
amended complaint made by all but three of those plaintiffs. See ECF No. 67 (February
7, 2011 opinion); ECF No. 82 (June 7, 2011 opinion on reconsideration).
2
Plaintiffs’ counsel filed plaintiffs’ supplemental brief as a supplemental motion,
see ECF No. 278, whereas it should have been filed as a supplemental brief per the
court’s January 30, 2018 order, see ECF No. 274. Since plaintiffs’ brief was filed as a
motion, it is now a pending motion on the docket in this matter. The clerk’s office is
directed to TERMINATE this motion and edit the docket entry, ECF No. 278, to
properly reflect that this filing is plaintiffs’ supplemental brief, not a motion.
2
The parties then filed cross-motions for summary judgment on the remaining
claims. See ECF Nos. 105, 112 (defendant’s motions for summary judgment); ECF No.
116 (plaintiffs’ cross-motion for summary judgment). The court ruled that defendant was
liable for the claims made by one plaintiff, see ECF No. 154 (June 5, 2012 opinion
determining that defendant was liable for the claim made by Mr. Lawrence C. Alton), but
did not resolve liability on summary judgment as to the others, see ECF No. 164 (August
30, 2012 opinion denying motion for summary judgment as to liability for claims made
by the Abrams Family and Bama Sea Products, Inc.). On September 13, 2013, the parties
informed the court that they had reached a negotiated settlement of the pending claims,
for an amount of $130,000, plus interest. See ECF No. 188 (joint status report). Since
that time, the parties have been litigating the attorneys’ fees award, though the case was
stayed for a period of approximately twenty months, to await a potentially relevant
decision expected from the United States Court of Appeals for the Federal Circuit. See
ECF No. 218 (order granting stay); ECF No. 219 (order lifting stay).
When this litigation began, plaintiffs’ counsel worked in the St. Louis, Missouri
office of Lathrop and Gage, a Missouri law firm that also maintained an office in
Washington, D.C. See ECF No. 229-3 at 2 (Decl. of Mark F. (Thor) Hearne, II). After
the initial stage of litigation was underway, in February 2010, plaintiffs’ counsel joined
Arent Fox, a Washington, D.C.-based law firm with an office in St. Louis, Missouri. See
id. The parties disagree as to whether Washington, D.C. market rates or St. Louis market
rates should be used in the court’s fees calculation.
Plaintiffs filed the motion that is presently before the court on October 11, 2016.
See ECF No. 229. In their motion, plaintiffs ask the court to award $998,402 in
attorneys’ fees and $10,860 in litigation costs. See ECF No. 229-1 at 33. That figure has
now grown to $1,118,299 in fees, and $14,362 in costs, during the course of litigating the
issue of attorneys’ fees. See ECF No. 262 at 8. Plaintiffs allege that their request, based
on Washington, D.C. market rates, or the equivalent thereof, is a “fair, just and
reasonable amount,” and should not be adjusted. See ECF No. 229-1 at 12.
In support of this assertion and the fees requested, plaintiffs initially submitted:
(1) billing entries from the law firms Lathrop Gage and Arent Fox, LLP, see ECF No.
229-2; (2) the declaration of plaintiffs’ lead counsel, Mark F. (Thor) Hearne, II, see ECF
No. 229-3; (3) the declaration of Elizabeth Munno, chief financial officer, Arent Fox,
LLP, see ECF No. 229-4; (4) the declaration of Dr. Michael Kavanaugh, an economist,
see ECF No. 229-5; (5) the declaration of Dr. Laura A. Malowane, an economist, made in
connection with Biery v. United States, Consolidated Case Nos. 07-693L and 07-675L,
ECF No. 229-6; (6) the supplemental declaration of Dr. Malowane, made in connection
with Biery v. United States, Consolidated Case Nos. 07-693L and 07-675L, ECF No.
3
229-7; (7) two surveys of attorney billing rates, ECF No. 229-8; (8) a portion of a hearing
transcript from Biery v. United States, Consolidated Case Nos. 07-693L and 07-675L,
ECF No. 229-9; and (9) a memorandum and order filed in the United States District
Court for the Eastern District of Virginia in Vienna Metro, LLC v. Pulte Home
Corporation, Case No. 1:10-cv-00502 (2011), ECF No. 229-10.
In response, defendant argues that the court should reduce plaintiffs’ request on
three bases: (1) plaintiffs’ success in the case was “minimal,” since only three of the
original fourteen plaintiffs recovered, ECF No. 251 at 19; (2) a portion of the fees
charged were “unreasonable” in violation of the URA, such as fees charged for
administrative tasks, id. at 27; and (3) “plaintiffs’ requested rates of compensation are
excessive,” id. at 32. Defendant’s corrected response, ECF No. 251, was supported by an
exhibit filed under seal, see ECF No. 248, which addressed the specific billing entries
submitted by plaintiffs. But defendant’s corrected response did not include the
documents referred to therein as Exhibits 2, 3, and 4.3
Along with their reply to defendant’s opposition, ECF No. 262, plaintiffs
submitted: (1) billing entries for additional fees and expenses, ECF No. 262-1; (2) a
hearing transcript from Campbell v. United States, Case No. 13-324L, ECF No. 262-2;
(3) a summary of defendant’s time and expenses, ECF No. 262-3; (4) a supplemental
declaration from Mr. Hearne, plaintiffs’ counsel, ECF No. 262-4; (5) a table comparing
the government’s proposed St. Louis rates and Washington, D.C. rates, ECF No. 262-5;
(6) the declaration of Catherine L. Hanaway, a partner at Husch Blackwell, a law firm in
St. Louis, ECF No. 262-6; (7) a table comparing the government’s proposed rates in other
cases, ECF No. 262-7; (8) DOJ’s locality pay table, ECF No. 262-8; (9) the declaration of
Hugh Culverhouse, an attorney in Florida, originally filed in a different case, ECF No.
262-9; (10) a table comparing Washington, D.C. market rates with rates calculated
according to the Laffey matrix, ECF No. 262-10; and (11) the U.S. Attorney’s fees matrix
from 2015-2017, ECF No. 262-11.
After reviewing the parties’ initial submissions relating to plaintiffs’ motion for
attorneys’ fees and costs, the court found that “neither plaintiffs nor defendant ha[d]
3
This paragraph refers to arguments made in, and exhibits filed with, defendant’s
corrected response to plaintiffs’ motion for attorneys’ fees, ECF No. 251. Defendant
moved the court for leave to file a corrected response, see ECF No. 249, a motion the
court granted, see ECF No. 250. In filing its corrected response, several exhibits were
omitted. The court addressed this filing error in its order of January 30, 2018, within
which it directed defendant to file the government’s exhibits 2, 3, and 4 as a separate
docket entry in this matter. See ECF No. 274 (scheduling order); ECF No. 275 (notice of
filing of exhibits 2, 3, and 4).
4
provided the court with sufficient evidence to resolve the issue” of whether Washington,
D.C. or St. Louis rates apply and directed the parties to file supplemental briefs. See ECF
No. 274 at 1 (scheduling order). Specifically, the parties failed to submit evidence to
establish the prevailing rates in either market in order to allow the court to make a
comparison of those rates. As the court explained:
Plaintiffs have offered no numbers that purport to represent relevant St. Louis
market rates, much less the actual St. Louis rates charged by either of the firms
at issue. The only evidence in the record from plaintiffs that provides any
basis for comparison between the two markets is a statement in the declaration
made by Ms. Elizabeth Munno, the Chief Financial Officer for Arent Fox.
She states that the firm charges a rate “approximately fifteen percent lower
for an associate in St. Louis compared to a similarly experienced associate in
Los Angeles, New York or Washington, D.C.” See Decl. of Ms. Elizabeth
Munno, ECF No. 229-4 at 3. Ms. Munno makes no representations about
comparable partner compensation, and she provides no basis for concluding
that the fifteen percent differential that she cites is specifically applicable to
the type of legal work involved with this case. Furthermore, even assuming
that Arent Fox’s St. Louis billing rates are fifteen percent lower than the rates
sought in this case, plaintiffs have provided no evidence of whether that rate
is representative of the St. Louis market.
Id. at 2. The court also noted in its order that while defendant had apparently attempted
to file relevant data on St. Louis market rates with its original response brief, ECF No.
244 (see exhibits thereto), its corrected response brief, ECF No. 251, omitted these
exhibits.
Since the time of the court’s ruling, both parties have made additional
submissions. First, defendant corrected its omission of exhibits 2 through 4 to its
corrected response brief, ECF No. 251, to include the following exhibits: (1) a 2014
opinion issued in Adkins v. United States, Case Nos. 09-503L, 09-241L, & 09-158L,
ECF No. 275-1; (2) a series of surveys of St. Louis, Missouri attorney billing rates
published in Missouri Lawyers Weekly, in August 2017, September 2016, September
2015, June 2014, June 2013, August 2012, March 2011, March 2010, and March 2009,
see ECF No. 275-2; and (3) biographies of the plaintiffs’ attorneys, see ECF No. 275-3.
Plaintiffs then filed their supplemental brief, ECF No. 278, including three
additional declarations: (1) a supplemental declaration of Mr. Hearne, plaintiffs’ counsel,
ECF No. 278-1; (2) the declaration of Stephen S. Davis, an attorney with Arent Fox
5
practicing in St. Louis, Missouri, ECF No. 278-2; and (3) the declaration of Aaron
Williams, a Certified Personnel Consultant in Missouri, ECF No. 278-3.
II. Legal Standards
As a general rule, plaintiffs may not recover attorneys’ fees from the United
States. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983). In this case, however,
plaintiffs are eligible to request attorneys’ fees and costs pursuant to the URA, which
creates an exception to the general rule, and provides, in relevant part:
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). “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)). In making the lodestar calculation,
the court multiplies the number of hours reasonably expended in the litigation by a
reasonable hourly rate. Id. at 1225-26. Plaintiffs “bear[ ] the burden of establishing
entitlement to an award and documenting the appropriate hours expended and hourly
rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
This formula is deceptively simple. In order to perform the proper calculation, the
court must first review the hours billed and determine whether the work is properly
charged to the client. Administrative tasks, for instance, are not compensable. See Hopi
Tribe v. United States, 55 Fed. Cl. 81, 100 (2002). The court then must decide whether
plaintiffs have applied the appropriate hourly rate, which is set “according to the
prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895
(1984).
In order to identify the relevant community, the Federal Circuit applies the forum
rule. See Avera v. Sec’y of Dept. of Health and Human Servs., 515 F.3d 1343, 1348-49
(Fed. Cir. 2008). Under the forum rule, the relevant community is defined by the
geographic location of the trial court. See Bywaters, 670 F.3d at 1233 (citing Avera, 515
6
F.3d at 1348). The forum for cases before the United States Court of Federal Claims is
Washington, D.C. See Avera, 515 F.3d at 1348; Biery v. United States, Nos. 07-693L &
07-675L, 2012 WL 5914260, at *6 (Fed. Cl. Nov. 27, 2012).
The court may, however, apply an exception to the forum rule when “the bulk of
[an attorney’s] work is done outside the jurisdiction of the court and where there is a very
significant difference in compensation favoring D.C.” Avera, 515 F.3d at 1349 (quoting
Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d
755, 758 (D.C. Cir. 1999) (per curiam) (emphasis in original). In recognizing this so-
called Davis County exception to the forum rule, the Federal Circuit intended to prevent a
windfall to attorneys and “prevent the occasional erratic result where the successful
petitioner is vastly overcompensated.” See id. (quoting Davis Cty., 169 F.3d at 758).
The Federal Circuit has applied the Davis County exception in the context of
compensation sought pursuant to the URA. See Bywaters, 670 F.3d at 1224, 1232-34.
III. Analysis
A. Compensable Hours
Defendant contends that plaintiffs’ requested fee award should be reduced for
several reasons. First, defendant argues that plaintiffs achieved minimal success, and
therefore, should not recover the full amount of fees requested. See ECF No. 251 at 19-
26. In addition, defendant argues that plaintiffs’ request includes fees in four non-
compensable categories of work: (1) work related to the solicitation of prospective
clients; (2) administrative work; (3) vague and unexplained timesheet entries; and (4)
excessive hours, specifically those dedicated to briefing the request for attorneys’ fees.
See ECF No. 251 at 27-32. The court will address each issue in turn.
1. Reductions to Plaintiffs’ Award Due to the Level of Success
Defendant divides this case into four procedural phases and argues that after
determining the level of success in each phase, the court should reduce any fee recovery
for the unsuccessful portion of the plaintiffs’ efforts. See ECF No. 251 at 19-26. As an
initial matter, plaintiffs’ object to the structure of defendant’s argument, claiming that
dividing the case into “discrete phases” violates Supreme Court precedent. ECF No. 262
at 10. Plaintiffs do not cite any authority for this assertion, but it appears that they intend
to refer to the Court’s opinion in Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), in
which the Court observed:
In [some] cases the plaintiff’s claims for relief will involve a common core
of facts or will be based on related legal theories. Much of counsel’s time
7
will be devoted generally to the litigation as a whole, making it difficult to
divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot
be viewed as a series of discrete claims. Instead the [trial] court should focus
on the significance of the overall relief obtained by the plaintiff in relation to
the hours reasonably expended on the litigation.
In the court’s view, the analytical framework suggested by defendant does not violate this
guidance. Defendant’s division of the case into time periods simply provides the court
with a way to structure a discussion of whether plaintiffs’ counsel should be compensated
for unsuccessful portions of the case. It does not divide the suit itself into discrete claims.
Rather, the approach proposed by defendant has been employed previously and
effectively by this court. See Gregory v. United States, 110 Fed. Cl. 400, 404 (2013)
(dividing the case into five time periods for the purpose of analyzing appropriate
reductions to hours billed).
It is indisputable that plaintiffs achieved less than they set out to achieve when this
lawsuit began. Following dismissal of most of the claims on summary judgment, see
ECF No. 67, only three of fourteen plaintiffs ultimately recovered, see ECF No. 188
(joint status report).4 That said, it does not automatically follow that plaintiffs’ fee
request should be reduced in direct proportion to that measure of success. As this court
has previously noted, rails-to-trails cases involve both uniquely interrelated claims, and
serve the special purpose of “vindicating constitutionally protected property rights.”
Gregory, 110 Fed. Cl. at 404 (quoting Bywaters, 684 F.3d at 1296). With these concepts
in mind, the court reduces the requested fee award as detailed below.
a. First Litigation Period: April 2009 to March 2010
Plaintiffs filed their original complaint on May 18, 2009. See ECF No. 1.
Plaintiffs’ counsel has submitted billing records beginning in April 2009, reflecting work
done in advance of that initial filing. See ECF No. 230 at 2. Plaintiffs’ first amended
complaint was filed by leave of court on October 28, 2009, see ECF No. 10 (amended
complaint); ECF No. 11 (order granting motion for leave to file and accepting first
amended complaint, as filed), and a second amended complaint was filed by leave of the
court on December 14, 2009, see ECF No. 13 (second amended complaint); ECF No. 14
(order granting motion for leave to file and accepting second amended complaint, as
4
Defendant contends that there were sixteen plaintiffs in this case, but states that for
purposes of this motion, it adopts plaintiffs’ position that there were fourteen. See ECF
No. 251 at 9 n.3. The court will likewise conform its discussion to the parties’
accounting, as it has no material impact on the outcome in these circumstances.
8
filed). During this time, the parties also exchanged initial disclosures. See ECF No. 251
at 9.
Defendant contends that “[d]uring this period, more than 80 percent of Counsels’
work was dedicated to the pursuit of non-meritorious claims (i.e.[,] claims that were
ultimately dismissed) and/or on the solicitation of additional clients.” ECF No. 251 at
22-23. Defendant concedes, however, that “at least some of the work on behalf of the
unsuccessful Plaintiffs can be traceable to the later success of the three settling
Plaintiffs.” Id. at 23. In defendant’s estimation, a fifty percent reduction in the fee
request is appropriate for this time period. Id. Plaintiffs offer no specific refutation of
defendant’s position. See generally ECF No. 262.
Taking all of the available facts and argument together, the court concludes as
follows. Particularly in the beginning stage of a case, attorneys must devote considerable
time both to the development and presentation of the legal theory underlying a claim, and
to the gathering of facts that are material to that claim. Here, the initial development and
presentation of plaintiffs’ legal theories represent an aspect of this litigation in which the
plaintiffs’ claims are most interconnected. The claims of various plaintiffs, however,
more clearly diverge with regard to fact gathering. In order to give plaintiffs’ counsel full
credit for the legal work, and partial credit for the fact-gathering work on successful
claims, the court, in its discretion, hereby reduces by thirty percent the number of hours
billed for each timekeeper during this period.
b. Second Litigation Period: March 2010 to September 2011
During the second period of time delineated by defendant, the parties litigated
cross-motions for summary judgment, which addressed all claims made in this case, and
a subsequent motion for reconsideration. See ECF No. 29 (plaintiffs’ motion for partial
summary judgment); ECF No. 38 (defendant’s cross-motion for summary judgment);
ECF No. 67 (February 7, 2011 opinion granting in-part and denying in-part the parties’
motions for summary judgment); ECF No. 69 (defendant’s motion for reconsideration);
ECF No. 99 (August 29, 2011 opinion granting in-part and denying in-part defendant’s
motion for reconsideration). The end result of the motion practice during this period was
that the court dismissed the claims of all but three plaintiffs on summary judgment. ECF
No. 99 at 27-28.
Given plaintiffs’ marginal rate of success during this period of time, a significant
reduction is appropriate. In the court’s view, however, the eighty percent reduction
requested by defendant is excessive. It is true that plaintiffs had approximately a twenty
percent success rate if that rate is calculated based on the number of plaintiffs whose
9
claims survived the motions for summary judgment. But, this calculation fails to account
for legal work from which both the successful and unsuccessful plaintiffs benefitted. In
order to appropriately credit plaintiffs’ counsel for work that commonly applied to all
plaintiffs’ claims, the court, in its discretion, hereby reduces by fifty percent the number
of hours billed for each timekeeper during this period.
c. Third Litigation Period: September 2011 to August 2013
The third time period encompasses the parties’ efforts to assess and settle the
claims made by the ultimately successful plaintiffs. As such, defendant seeks no
reduction in fees for lack of success, and the court will not impose a reduction of its own
accord.
d. Fourth Litigation Period: September 2013 to the Present
The final time period involves plaintiffs’ efforts to recover attorneys’ fees.
Defendant’s argument for reducing fees billed as part of this effort primarily rests on the
assertion that plaintiffs’ counsel should not recover for making arguments contrary to
opinions previously issued by the Federal Circuit. Specifically, defendant argues that
plaintiffs should not recover for hours billed to an unsuccessful motion to compel in
addition to their motion seeking attorneys’ fees,5 or for hours billed for developing
arguments for the recovery of attorneys’ fees that previously have been rejected by the
Federal Circuit. See ECF No. 251 at 25-26. The court hereby declines to reduce the
requested fees during the fourth time period on the basis that plaintiffs’ efforts were not
entirely successful, but will revisit the issue of whether the total hours are excessive
below.
2. Additional Reductions for Non-Compensable Categories of Work
In addition to the above reductions on the basis of plaintiffs’ level of success, the
court finds that the following reductions for non-compensable categories of work are
appropriate.
5
Defendant states that plaintiffs filed two unsuccessful motions to compel, but the
court docket only reflects one motion to compel in this case, ECF No. 226 (plaintiffs’
motion to compel); ECF No. 239 (opinion denying motion to compel).
10
a. Plaintiffs May Not Recover for Work Related to Soliciting
Clients
One of the cardinal rules in seeking an award of attorneys’ fees under a fee-
shifting statute is that “[h]ours that are not properly billed to one’s client also are not
properly billed to one’s adversary pursuant to statutory authority.” Hensley, 461 U.S. at
434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (1980) (en banc) (emphasis in
original). Defendant argues that plaintiffs’ attempt to recover “for work in soliciting
clients, rather than performing work on behalf of a retained client,” violates this rule.
ECF No. 251 at 27. The court agrees. Plaintiffs may not recover fees for hours billed for
business development as opposed to client representation. Upon review of the entries
designated as client development entries in Exhibit 1 to defendant’s response, see ECF
No. 248, the court finds that a reduction is warranted, but disagrees on the designation as
to a small number of entries. Accordingly, the court hereby disallows plaintiffs’ request
for reimbursement of time spent soliciting clients as requested by defendant, with the
exception of fifteen hours billed for Mr. Hearne, plaintiffs’ counsel.
b. Plaintiffs May Not Recover for Administrative Work
Defendant argues that plaintiffs “seek reimbursement for 76 hours of
administrative or secretarial work that is not recoverable under the URA.” ECF No. 251
at 29. Defendant is correct that plaintiffs cannot recover fees for tasks properly
categorized as administrative. See Hopi Tribe, 55 Fed. Cl. at 100. Upon review of the
time entries in Exhibit 1 to defendant’s response, see ECF No. 248, the court agrees with
most of defendant’s designations of administrative work, and will reduce the
compensable hours accordingly. The court hereby disallows the hours as requested by
defendant, with the exception of two hours billed for David Yearwood, and 3.2 hours
billed for Alexandrea Barney.
c. Plaintiffs’ Request Must Be Discounted for Vague Time
Entries
Defendant objects to plaintiffs’ request for fees related to two specific attorneys on
the basis that their billing entries are too vague to allow the court to determine whether
the work performed was reasonable. First, defendant argues that the billing entries
recorded by Joseph Cavinato, prior to November 2011, lack the requisite specificity for
reimbursement. See ECF No. 251 at 28-29 & n.14 (stating that defendant “does not
contest the sufficiency of Mr. Cavinato’s billing descriptions after November 2011”).
Additionally, defendant contends that the billing entries recorded by Debra Albin-Riley
suffer from the same deficiency. See id. at 28-29. Specifically, defendant asks the court
11
to reduce the fees requested for hours billed for Mr. Cavinato by twenty-five percent, and
for hours billed for Ms. Albin-Riley by fifty percent.
Defendant is correct that the court has the discretion to reduce hours billed on the
basis of vague time entries. See Biery v. United States, Case Nos. 07-693L and
07-675L, 2014 WL 12540517, at *3 (Fed. Cl. Jan. 24, 2014) (reducing fee award for
hours billed by the same two attorneys at issue in this case by fifty percent due to vague
billing entries). See also Avogoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir.
2011) (affirming deduction of hours for entries that simply stated “draft client
correspondence” as too vague); Greenhill v. United States, 96 Fed. Cl. 771, 781 (2011)
(deducting hours associated with vague time entries). Upon review of the entries
designated as vague in Exhibit 1 to defendant’s response, see ECF No. 248, the court
finds that a reduction is warranted, but also finds that defendant overstates the problem.
Accordingly, the court hereby reduces the hours billed for Mr. Cavinato, prior to
November 2011, by ten percent, rather than the twenty-five percent requested by
defendant. In addition, the court reduces the hours billed for Ms. Albin-Riley by twenty-
five percent, rather than the fifty percent requested by defendant.
d. Plaintiffs’ Request Must Be Discounted for Excessive Work
Related to Attorneys’ Fees
Finally, defendant argues that plaintiffs’ total hours are excessive, particularly
with regard to their effort to recover attorneys’ fees. See ECF No. 251 at 30-32.
Defendant totals plaintiffs’ fee request related to time spent preparing their RCFC 54(d)
attorneys’ fees motion at approximately $150,000. See id. Since that time, plaintiffs
have revised their request to include an additional $120,000 in fees. See ECF No. 262-1.
These additional fees were evidently also incurred in the pursuit of a fee recovery, as the
present motion for attorneys’ fees was the only issue pending in this litigation during that
time period. Plaintiffs’ total fee request is $1,118,299. See ECF No. 262 at 8. In other
words, nearly twenty-five percent of the work for which plaintiffs seek reimbursement
was work done on the fee petition. And plaintiffs’ recovery of fees for work preparing
the fee petition, at $270,000, would be more than twice the $130,000 that plaintiffs
recovered in this matter.
This court has recognized that “courts will typically award some fees for work
necessary to prepare a fee petition.” Biery, 2014 WL 12540517, at *4 (citing Gregory,
110 Fed. Cl. at 406 (finding that 10.3 hours billed for preparing a fee petition was
reasonable)). In Biery, the court concluded that eighty hours, as opposed to the 700 hours
requested by plaintiffs, was reasonable, compensable time for so-called “fees on fees”
work. Id. (allowing plaintiffs to recover for twenty hours of paralegal time, thirty hours
12
of associate time, and thirty hours of partner time). See also Campbell v. United States,
No. 13-324L, 2018 WL 2253042, at *5 (Fed. Cl. May 17, 2018) (disallowing 400 of the
640 hours requested for fees-on-fees recovery, when that portion of the fee recovery
would have been three times plaintiffs’ recovery); Lost Tree Vill. Corp. v. United States,
135 Fed. Cl. 92, 98 (2017) (allowing reimbursement for 192.7 hours of work on fee
petition in light of the unusually complex and extended nature of the litigation).
Here, plaintiffs have offered no explanation for the excessive proportion of time
spent on attempting to recover fees beyond general statements, such as: “[The] time the
owners[’] counsel devoted to this litigation was reasonable, appropriate and necessary.”
ECF No. 262 at 14. This statement simply does not assist the court in its difficult line-
drawing task.
Based on the available data, the court finds that Biery provides the best factual
comparison to the case at bar for evaluating a fees-on-fees award. Biery was a rails-to-
trails case, litigated by the same plaintiffs’ attorneys seeking fees in this matter. And like
the present case, Biery initially involved thirteen plaintiffs, a number of whose claims
were dismissed on summary judgment. See Biery, 2014 WL 12540517, at *1. Campbell
was also a rails-to-trails case litigated by the current team of plaintiffs’ attorneys, but that
case was much larger, involving claims from seventy-six plaintiffs. See Campbell, 2018
WL 2253042, at *1. As an additional point of comparison, the Biery litigation spanned
nearly seven years, and the present case has spanned almost nine years. Finally, the court
recognizes that plaintiffs’ billing entries reflect time spent attempting to settle a fee award
with defendant, an issue not considered by the court in Biery.
The court in Biery allowed plaintiffs to recover for eighty hours of work on their
fee petition—twenty hours of paralegal time, thirty hours of associate time, and thirty
hours of partner time. See Biery, 2014 WL 12540517, at *4. Defendant urges the court
to adopt the same measure in this instance. See ECF No. 251 at 31-32. While the court
agrees that Biery provides a useful starting point, the longer life of this case and the work
toward settlement—not addressed in Biery—justify a more generous allowance. The
court hereby concludes that 125 hours of work on plaintiffs’ fee petition is reasonable in
this case, divided as follows—twenty-five hours of paralegal time, sixty hours of
associate time, and forty hours of partner time.
B. Relevant Community
As noted above, in order to calculate the proper award of attorneys’ fees, the court
must identify “the prevailing market rates in the relevant community.” Blum, 465 U.S. at
895. The relevant community is, as a general rule, the geographic location of the court.
13
See Bywaters, 670 F.3d at 1233 (citing Avera, 515 F.3d at 1348). Plaintiffs contend that
the court should apply this so-called forum rule, and calculate fees based on Washington,
D.C. market rates. See ECF No. 229-1 at 11-12; ECF No. 262 at 14-15.
Defendant argues, however, that the court should apply the exception to this rule,
established in Davis County Solid Waste Management & Energy Recovery Special
Service District v. Environmental Protection Agency, 169 F.3d 755, 758 (D.C. Cir.
1999). See ECF No. 251 at 32-41. The Davis County exception to the forum rule allows
the court to apply lower rates “where the bulk of [an attorney’s] work is done outside the
jurisdiction of the court and where there is a very significant difference in compensation
favoring D.C.” Avera 515 F.3d at 1349 (quoting Davis County, 169 F.3d at 758)
(emphasis in original).
Thus, in order to determine whether the Davis County exception applies in this
case, the court must determine: (1) where the bulk of the work on this case was
performed; and, (2) whether there is a very significant difference in market rates between
the location from which the work was performed, and the market rates in Washington,
D.C.
1. The Bulk of the Work Was Performed in St. Louis
Plaintiffs do not contend that most of the legal work in this case was performed in
Washington, D.C. In his most recent declaration, Mr. Hearne states that Meghan Largent
and Lindsay Brinton, two attorneys whose names appear most frequently in the billing
records submitted by plaintiffs, live in St. Louis. See ECF No. 278-1 at 2; ECF Nos. 230,
262-1 (billing records for plaintiffs). He also represents that he has offices in both St.
Louis and Washington, D.C., and performs some work from Arent Fox’s offices in Los
Angeles, San Francisco, and New York.6 See id. He does not, however, represent that
any of the attorneys who have billed time to this case were located in Washington, D.C.
As such, the court finds it can reasonably infer that the bulk of the work on this case was
performed in St. Louis, for purposes of applying the Davis County exception.
2. There Is a Very Significant Difference between St. Louis and
Washington, D.C. Market Rates
Plaintiffs have submitted hundreds—if not thousands—of pages of argument,
declarations, and billing statements in support of their fees request. See ECF Nos. 229,
229-1, 229-2, 229-3, 229-4, 229-5, 229-6, 229-7, 229-8, 229-9, 229-10 (plaintiffs’ motion
6
The court also notes that Mr. Hearne’s official address as reflected in court records
is in Clayton, Missouri. See CM/ECF Docket, Case No. 09-315L.
14
market rate should apply to work done at Arent Fox.7 See ECF No. 229-1 at 11.
Although an updated chart was not filed, it appears that plaintiffs have increased these
rates in the supplemental billing entries filed with its reply brief. See, e.g., ECF No. 262-
1 at 6 (reflecting an hourly billing rate of $859 for Mr. Hearne); ECF No. 262-1 at 7
(reflecting an hourly billing rate of $580 for Ms. Brinton).
In response to the court’s directive to provide additional information to establish
St. Louis market rates for comparison, ECF No. 274, plaintiff filed three declarations.
See ECF No. 278. The first, from plaintiffs’ counsel, Mr. Hearne, adds no new facts in
support of plaintiffs’ fee petition. The only statement included in the declaration that
comments substantively on the issues before the court is Mr. Hearne’s contention that
“the government’s proposed rate structure for ‘St. Louis rates’ bears absolutely no
relation to the actual market for legal services in St. Louis or Washington DC.” ECF No.
278-1 at 6. Likewise, a declaration from Stephen S. Davis, an attorney with Arent Fox,
provides little assistance to the court. After summarizing his professional experience,
Mr. Davis states:
The “St. Louis” hourly rates proposed by the government for federal
litigation in the Eastern District of Missouri are much lower than the hourly
rates a St. Louis-based law firm with resources similar to Arent Fox would
charge for work by attorneys with complex federal litigation experience, such
as that possessed by the attorneys in this litigation.
ECF No. 278-2 at 2-3. While the court does not have any reason to view either Mr.
Hearne’s or Mr. Davis’s statement as disingenuous, neither declaration affirmatively
establishes what plaintiffs’ believe are reasonable St. Louis billing rates.
The third declaration, from Aaron Williams, C.P.C., “a nationwide attorney search
and legal management consultant,” does provide the court with some actual numbers. He
includes the following chart to illustrate his opinion of appropriate St. Louis billable hour
rates:
7
The Laffey matrix is a schedule of hourly rates for legal services in the
Washington, D.C. area originally established in Laffey v. Northwest Airlines, 572 F.
Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, Laffey v. Nw.
Airlines, 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds en banc, Save
Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988). Plaintiffs
offer calculations based on an updated version of the Laffey matrix “to approximate [fees
earned by attorneys at Lathrop and Gage] for the Washington, D.C. market.” See ECF
No. 229-1 at 11.
16
See, e.g., Bratcher v. United States, 136 Fed. Cl. 786, 799-800 (Mar. 9, 2018) (adopting a
partner rate of $475, a counsel rate of $375, and an associate rate of $275, a paralegal rate
of $150, and collecting numerous cases in support).
That said, the court takes issue with defendant’s proposed rates in one respect.
While the court believes that the surveys underlying defendant’s proposed rates are more
reliable than the survey underlying plaintiffs’ proposed rates, defendant offers no clear
reason for assigning each attorney an hourly rate that is marginally lower than the
average hourly rate in the corresponding survey years. For example, according to the
Missouri Lawyers Weekly survey published in August 2017 (compiling information from
the preceding twelve months), the average hourly compensation for a partner in St. Louis
was $504, see ECF No. 275-2 at 7, and the survey published the previous year, in
September 2016 (compiling information from work performed in 2015 and 2016), the
average hourly compensation for a partner in St. Louis was $459, see id. at 18, but
defendant proposes a rate of $426 for Mr. Hearne. It appears that defendant relies on
some combination of persuasive authority from this court and from other jurisdictions in
arriving at these figures, see ECF No. 251 at 39, but the evidence submitted in the present
proceeding is a superior basis for the court’s decision.
The court concludes that the average St. Louis hourly rates for attorneys, as
presented in the Missouri Lawyers Weekly surveys, provide a reasonably reliable basis
for establishing appropriate rates in this case. The court, therefore, must compare the
market rates for Washington, D.C. proposed by plaintiffs and the market rates evidenced
by the Missouri Lawyers Weekly surveys. In the billing statements filed with plaintiffs’
opening brief, Mr. Hearne recorded an hourly rate of $826. See ECF No. 230 at 2 (listing
a billing entry for 0.5 hours, for a total fee of $413). In the supplemental billing
statements filed with plaintiffs’ reply brief, Mr. Hearne recorded an hourly billing rate of
$859. See ECF No. 262-1 at 6. The most recent hourly rate for average partner
compensation, found in the August 2017 survey, is $504. See ECF No. 275-2 at 7. Mr.
Hearne’s hourly rate of $826 is a 64% increase of the average $504, while his hourly rate
of $859 is more than a 70% increase of the average $504. In the court’s view, either
calculation represents a “very significant” difference in hourly rates. Avera 515 F.3d at
1349 (quoting Davis County, 169 F.3d at 758). As a result, the court hereby finds that St.
Louis market rates should apply to plaintiffs’ recovery in this case.8
8
After reviewing the parties’ submissions on this issue, the court notes that
defendant’s Exhibit 1, ECF No. 248, does not consistently apply a proposed St. Louis rate
for each individual recording billing entries. Despite the fact that defendant strenuously
argues that St. Louis rates should apply to plaintiffs’ attorneys in the text of its brief, see,
e.g., ECF No. 251 at 37, the chart provided in the exhibit substitutes a proposed Laffey
rate for ten attorneys, without adequate explanation. See, e.g., ECF No. 248 at 16
19
3. Plaintiffs’ Recovery Must Be Based on Historical Rates
The court also notes that the parties disagree as to whether attorney compensation
should be awarded based on historical rates or current rates. Plaintiffs argue that, despite
the fact that this case has been on-going for nearly a decade, all work should be
compensated on the basis of current billing rates. See ECF No. 229-1 at 28-30.
Defendant argues that binding precedent requires the court to award fees based on
historical rates. See ECF No. 251 at 41-44.
In Biery v. United States, the Federal Circuit held that attorneys’ fees awarded
pursuant to the URA should be calculated based on historical rates because “under the
no-interest rule, recovery of interest on an award of attorney fees is barred unless an
award of interest is expressly and unambiguously authorized by statute.” 818 F.3d 704,
714 (Fed. Cir. 2016) (citing Shaw v. Library of Congress, 478 U.S. 310, 322 (1986)).
Plaintiffs contend that this court should not adhere to this precedential opinion on the
basis of two decisions issued by the Supreme Court of the United States, both of which
pre-date the Federal Circuit’s decision in Biery. See ECF No. 229-1 at 28-30 (discussing
Missouri v. Jenkins, 491 U.S. 274 (1989) and Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542 (2010)). Not only were these cases available to the Federal Circuit at the time it
decided Biery, neither Jenkins nor Perdue involved the URA.
In their opening brief, plaintiffs stated their intention to take this issue to the
Federal Circuit or the Supreme Court if this court failed to adopt their view that current
rates should apply:
(assigning Ms. Albin-Riley and Mr. Makin Laffey rates rather than St. Louis rates). The
key provided at the beginning of the chart states that the “Proposed Reimbursement”
column “[i]dentifies reimbursement owed Plaintiffs, applying St. Louis rates where
applicable and Laffey rates where St. Louis rates are not applicable.” See id. at 2.
Defendant fails, however, to explain this hybrid approach to assigning the appropriate
hourly rate, and it is contrary to the court’s present understanding of when the Laffey
matrix rates are relevant to a fee award. See, e.g., Bratcher, 136 Fed. Cl. at 798 & n.11
(explaining that the Laffey matrix may be used in the event that Washington, D.C. rates
are applied, but applying St. Louis rates in calculating fee award); see also ECF No. 229-
1 (plaintiffs explaining that “the Laffey Matrix can be used to approximate [St. Louis]
fees for the Washington, D.C. market”); ECF No. 251 (defendant noting that “[b]oth
parties agree that, if D.C. rates apply, the Court should generally derive rates from the
Laffey matrix”). As such, the court will disregard this calculation included in
defendant’s chart.
20
We acknowledge this Court is bound by the Federal Circuit’s decisions. To
the extent this Court reads Biery to preclude calculating the lodestar fee using
current hourly rates, the Federal Circuit’s holding is contrary to the Supreme
Court’s holdings. Should this Court adopt this view, we preserve this issue
for review by the Federal Circuit en banc or by the Supreme Court.
ECF No. 229-1 at 29 n.36. This court is, indeed, bound by the rulings of the Federal
Circuit, but welcomes any clarity or further development in the law that may be provided
by subsequent appeals filed by plaintiffs.
For the foregoing reasons, the court concludes that the attorney billing rates shall
be calculated based on the average hourly rates as reflected in the Missouri Lawyers
Weekly surveys, and shall be awarded historically. The court recognizes that the
categories of “partner” and “associate” used in the surveys do not account for “counsel,”
the designation used by plaintiffs’ firm that is apparently a middle ground between the
associate and partner designations. The court also lacks the information to assign
appropriate designations to all relevant professionals for the years at issue, and notes that
the billing records include professionals not included in defendant’s chart of timekeepers.
Therefore, the court directs the parties to CONFER and FILE a joint proposal setting
forth, by year, the hourly rates for each timekeeper included on the billing statements,
which incorporates the average hourly rates for partners and associates reflected in the
Missouri Lawyers Weekly surveys, and which reflects an agreed upon hourly rate for
individuals serving in counsel positions.
C. Costs
Plaintiffs seek to recover $14,362 in litigation costs. See ECF No. 262 at 8.
Based on the descriptions of these costs provided by plaintiffs, they cover expenses for
matters such as court filings and transcripts, postage and delivery services, photocopy
services, telephone calls, electronic research, case-related travel expenses, and expert
fees. See ECF No. 230 at 66-68; ECF No. 262-1 at 9. Defendant does not contest
plaintiffs’ requested litigation costs. In the court’s view, plaintiffs have demonstrated
both that the costs were actually incurred, as required by the URA, and that $14,362 is a
reasonable sum to have spent on the costs included on plaintiffs’ ledger throughout the
course of nine years of litigation. As such, the court hereby awards plaintiffs’ costs in the
amount of $14,362.
IV. Conclusion
For the foregoing reasons, plaintiffs’ motion for attorneys’ fees and costs, ECF
No. 229, is hereby GRANTED, in part, and DENIED, in part as follows:
21
(A) As to the number of compensable hours:
(1) Plaintiffs’ fee request shall be reduced based on the level of success
divided into four procedural categories, as follows:
(a) First litigation period, from April 2009 to March 2010, the
court hereby reduces by thirty percent the number of hours
billed for each timekeeper during this period;
(b) Second litigation period, from March 2010 to September
2011, the court hereby reduces by fifty percent the number
of hours billed for each timekeeper during this period;
(c) Third litigation period, from September 2011 to August 2013,
the court hereby imposes no reduction to plaintiffs’ fees
request for this time period;
(d) Fourth litigation period, from September 2013 to present, the
court hereby imposes no reduction to plaintiffs’ fees request
for this time period.
(2) Plaintiffs’ fee request also shall be reduced based on non-
compensable categories of work, as follows:
(a) The court hereby reduces plaintiffs’ fee request for
reimbursement of time spent soliciting clients, as identified
by defendant, with the exception of fifteen hours billed for
Mark F. (Thor) Hearne, II.
(b) The court hereby reduces plaintiffs’ fee request for
reimbursement of administrative or secretarial hours, as
identified by defendant, with the exception of two hours
billed for David Yearwood, and 3.2 hours billed for
Alexandrea Barney.
(c) The records supporting plaintiffs’ fee request include a
number of vague time entries, and as such, the court hereby
reduces the hours billed for Joseph Cavinato, prior to
22
November 2011, by ten percent; and reduces the hours
billed for Debra Albin-Riley by twenty-five percent.
(d) The court hereby reduces plaintiffs’ fee request due to
excessive work related to their attorneys’ fees petition, and
only the following hours shall be permitted: 125 total hours,
divided as follows—twenty-five hours of paralegal time,
sixty hours of associate time, and forty hours of partner
time.
(3) The court notes that plaintiffs submitted additional billing records
attached to their reply brief, ECF No. 262, to which defendant did
not have an opportunity to specifically respond. The parties are
instructed to cooperate to ensure that the conclusions expressed in
this opinion are appropriately applied thereto.
(B) As to the relevant community:
All hours shall be compensated at historical St. Louis market rates,
appropriate to the level of experience for each timekeeper, as established by
the yearly Missouri Lawyer Weekly surveys submitted by defendant for
partner, associate, and paralegal rates, and at an agreed-upon, appropriately
commensurate rate for attorneys designated as “counsel.”
(C) As to litigation costs:
Plaintiffs’ request for litigation costs, in the amount of $14,362, is
GRANTED, as reasonable and compensable.
The parties are instructed to CONFER and FILE a joint proposal for the award
of fees and costs based on the guidance and legal conclusions contained in this opinion,
on or before August 24, 2018. The proposal shall: (1) demonstrate compliance with the
various reductions that the court has directed the parties to make to plaintiffs’ fee
petition; (2) state the rates, by year, applied for each timekeeper; and (3) state the total
number of hours billed for each timekeeper.9
Plaintiffs’ supplemental brief was erroneously filed as a supplemental motion,
ECF No. 278. The clerk’s office is directed to TERMINATE this motion and edit the
9
Filing the joint proposal as directed by this court does not waive any right
plaintiffs may have to pursue a revision of these fees on appeal.
23
docket entry, ECF No. 278, to properly reflect that this filing is plaintiffs’ supplemental
brief, not a motion.
In addition, on or before August 3, 2018, the parties shall CONFER and FILE a
joint proposed redacted version of this opinion, with any protectable information
blacked out.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge
24