Arnold v. United States

In the United States Court of Federal Claims
FOR PUBLICATION
No. 15-1252L
(Filed: May 22, 2023)
)
JOHN ARNOLD, et al., )
)
Plaintiffs, ) Rails-to-Trails Temporary Taking:
) Attorney’s Fees and Litigation
v. ) Expenses under 42 U.S.C. § 4654(c);
) Fed. R. Evid. 408: Settlement Offers
UNITED STATES, )
)
Defendant. )
)
R. Deryl Edwards, Law Office of R. Deryl Edwards, Joplin, MO, for plaintiffs. With
him on the briefs was James F.B. Daniels, McDowell, Rice, Smith & Buchanan,
Kansas City, MO.
Davené D. Walker, Senior Attorney, Natural Resources Section, Environment and
Natural Resources Division, U.S. Department of Justice, Washington, DC, for
defendant. With her on the briefs were Todd Kim, Assistant Attorney General,
Environment and Natural Resources Division, and David A. Harrington,
Assistant Chief, and Hannah O’Keefe, Trial Attorney, Natural Resources Section,
Environment and Natural Resources Division, U.S. Department of Justice,
Washington, DC.
OPINION AND ORDER1
BONILLA, Judge.
This rails-to-trails Fifth Amendment takings action is one of four collaterally
litigated cases involving an abandoned railroad line once extending through parts of
1 This case was transferred to the undersigned for adjudication on February 28, 2022, pursuant to
Rule 40.1(b) of the Rules of the United States Court of Federal Claims (RCFC). Briefing on the
issues resolved herein was completed on March 10, 2023. Oral argument was deemed unnecessary.
Nebraska and Kansas.2 The one-year compensable temporary taking began on
October 22, 2015, when the United States Surface Transportation Board (STB)
issued a Notice of Interim Trail Use (NITU) under Section 1247(d) of the National
Trails System Act, 16 U.S.C. §§ 1241–51, and ended on October 16, 2016, with the
NITU’s expiration.3 In accordance with RCFC 54(b), the parties stipulated to the
entry of partial final judgment in favor of 14 owners of 17 parcels of land in the
aggregate amount of $5,356.54 in just compensation, with each prevailing plaintiff
recovering between $17.48 and $800.90, plus nominal interest.
Pending before the Court is plaintiffs’ application for over $1 million in
attorney’s fees and litigation expenses under the Uniform Relocation Assistance
and Real Property Acquisition Policies Act (URA), 42 U.S.C. § 4654(c). As this
Court found in the consolidated Dawson case: “The claimed attorney’s fees and
expenses exceed the bounds of any objective measure of reasonableness.” See
Arnold v. United States, 163 Fed. Cl. 13, 18 (2022). For the reasons detailed herein,
plaintiffs are awarded $111,215.87 in attorney’s fees and $11,012.45 in litigation
expenses. Accordingly, plaintiffs’ application is GRANTED–IN–PART and
DENIED–IN–PART.
BACKGROUND4
Plaintiffs own property in Kansas along a 57.3-mile railroad segment
previously operated by Nebraska, Kansas & Colorado Railway, LLC (NKCR).
In 2015, when NKCR announced its intent to abandon the rail line, Sunflower
Rails-to-Trails Conservancy, Inc. (Sunflower) noticed its interest in converting the
railroad segment to recreational trails. The STB issued a NITU on October 22,
2 Two companion cases, Flying S. Land Co. v. United States, No. 15-1253 (Fed. Cl.), and David H.
Field Trust, No. 1 v. United States, No. 19-1202 (Fed. Cl.), were voluntarily dismissed through
negotiated settlement. The third companion case, Dawson v. United States, No. 15-1268 (Fed. Cl.),
involved the eventual settlement of just compensation followed by the Court’s adjudication of
plaintiffs’ request for attorney’s fees and litigation expenses.
3As discussed infra, in litigating this case, plaintiffs asserted at one point that the taking continued
until the railway company consummated the abandonment (i.e., September 3, 2019). Because
the parties resolved this issue in stipulating the just compensation due before the United States
Court of Appeals for the Federal Circuit issued its decision in Memmer v. United States, 50 F.4th 136(Fed. Cir. 2022), this Court did not address the disputed three-year delta. See id. at 146 (“We agree
with the government that the taking ended upon expiration of the NITU . . . . This is so because it
was on that date that the United States was no longer responsible for mandating the continuation
of the easement because, from that point forward, the decision rested solely in the hands of [the
railroad company].”).
4 In addressing cross-motions for partial summary judgment in this case and, thereafter, the URA
application filed in Dawson, the Court included detailed recitations of the factual background and
legal proceedings. See Arnold v. United States, 137 Fed. Cl. 524, 535–46 (2018); Arnold, 163 Fed. Cl.
at 18–22. A brief recap is provided herein, as necessary.
2
2015, authorizing NKCR and Sunflower to negotiate a trail-use agreement within
180 days, ultimately extended through October 16, 2016. The NITU expired
without agreement and NKCR consummated the abandonment on September 3,
2019.
Several months before the NITU was issued, plaintiffs’ counsel, R. Deryl
Edwards, began researching the potential railbanking of the 57.3-mile railroad
segment and recorded ownership of the adjacent land. Counsel subsequently
contracted Elite Consulting, Inc. (Elite) to assist in these endeavors.5 After
Sunflower expressed interest in sponsoring the rails-to-trails conversion,
Mr. Edwards and several other law firms distributed letters and convened public
meetings to inform local landowners of their property rights, vet potential claims,
and solicit clients. These efforts led to Mr. Edwards’ ultimate representation of the
19 owners of 27 tracts of land who eventually joined this case.
In a September 10, 2015 Attorney Representation Agreement executed with
the lead plaintiff in this case, Mr. Edwards agreed to represent landowners based
on the anticipated issuance of a NITU. In terms of hourly rates, the agreement
states:
I/We agree that our ATTORNEY has accepted representation of
my/our interests based upon an hourly rate of compensation for his
services and for the services of his consultants, paralegals, legal
assistants and staff. I/We agree that our ATTORNEY charges
$450 per hour, his consultant charges $300 per hour, and paralegals,
legal assistants and experts receive $150 per hour, and further agree
that those rates are fair and reasonable. . . .
ECF 217-1 at 2. The retainer agreement further provides: “CLIENT(S) will not be
liable for any case fees, expenses or costs to the extent permitted by law or rule,
but rather shall be solely submitted to the U.S. Government for payment under
applicable law. . . .” Id.
On October 26, 2015, four days after the STB issued the NITU, plaintiffs
filed a 95-page complaint accompanied by over 300 pages of exhibits. The amended
complaint, filed on March 18, 2016, included two additional plaintiffs. See ECF 15.
Through the ensuing claims book review, the parties partially resolved property
ownership and title issues. The parties thereafter disputed how the case should
proceed: plaintiffs pressed to address comprehensive liability whereas the
government focused on resolving outstanding title issues pending the conclusion
of the STB regulatory process.
5 In November 2016, Mr. Edwards involved co-counsel James F.B. Daniels. See ECF 209-2 ¶ 10.
3
After several status conferences, on November 22, 2016, the Court ordered
plaintiffs to file “partial motions for summary judgment regarding title issues,
including fee or easement, intervening roads, and adjacency.” ECF 27 (emphasis
added). Notwithstanding the Court’s directive, plaintiffs moved for summary
judgment on the issue of liability. See ECF 33. In their 54-page motion,
accompanied by 700 pages of exhibits, plaintiffs argued the alleged taking
“continued through the end of the expiration of the extension - October 16, 2016.”
See id. at 47. Exhibit 1 comprised a 91-page proffer, largely repeating facts pled
in the complaint. Compare ECF 33-1 with ECF 15. The government responded
in kind to plaintiffs’ legal arguments and factual contentions. See ECF 42–43.
On July 7, 2017, the Court denied plaintiffs’ motion “as premature” and ordered
plaintiffs to refile their motion for partial summary judgment consistent with the
Court’s instructions. See ECF 45–46.6, 7
On September 18, 2017, following the STB’s grant of a six-month extension
for NKCR to consummate abandonment of the subject railroad segment, the Court
ordered both parties “to submit a brief filing . . . explaining what impact, if any,
the extension . . . has on the claims pending before the court.” See ECF 62. In a
lengthy submission, plaintiffs asserted “the impact is substantial and prejudicial”;
and, departing from their prior litigation position, claimed the compensable taking
continued beyond the NITU’s October 16, 2016 expiration through at least the
STB’s current extension. Plaintiffs further argued the railroad company’s continued
failure to consummate abandonment would eventually convert the alleged taking to
“permanent in nature.” Compare ECF 64 at 33 with ECF 33 at 47. The government
maintained that any potential taking ended upon the NITU’s expiration.
See ECF 65 at 4.
On November 17, 2017, the government partially withdrew its cross-motion
for partial summary judgment. Through this withdrawal and along with the
parties’ previous agreement, the government stipulated that NKCR possessed only
an easement for all but five of the outstanding parcels in dispute. See ECF 66 & 66-
1. Defendant’s partial withdrawal was based on the then-recent (October 27, 2017)
decision of the Supreme Court of Kansas in Jenkins v. Chicago Pac. Corp., 306 Kan.
6 The Court further ordered plaintiffs’ counsel to move for the dismissal of landowners who were
“ripe for dismissal” and to explain the “proper conveyances” related to three additional parcels of
land. See ECF 46 at 1–2. Joint owners of a parcel of land were voluntarily dismissed on July 12,
2017; owners of two additional parcels of land were voluntarily dismissed after additional briefing.
See ECF 48; ECF 70.
7 In ordering revised briefing, the Court directed: “Plaintiffs shall specifically identify any factual
or legal variations, or changes in position on [title] issues only, between plaintiffs’ earlier motions
for summary judgment and the revised motions.” ECF 46 at 1. On July 21, 2017, plaintiffs filed a
48-page revised motion, appending over 360 pages of recycled and additional exhibits. See ECF 56.
The exhibits included an 87-page document with “proposed findings of fact,” again compelling an
in-kind response for defendant. Compare ECF 56-10 with ECF 60; see also ECF 59.
4
1305, 403 P.3d 1213 (2017), clarifying the governing state law regarding property
interest conveyance to railroad companies. Based upon the parties’ filings, on
April 10, 2018, this Court granted plaintiffs’ motion for partial summary judgment
on title issues concerning 17 parcels of land, finding: plaintiffs owned the properties
at the time of the NITU issuance, the land was adjacent to the railroad corridor,
and NKCR possessed only an easement limited to railroad purposes. See Arnold,
137 Fed. Cl. at 583–85. Concomitantly, the Court granted defendant’s cross-motion
for partial summary judgment regarding two parcels of land and denied the parties’
cross-motions concerning four other parcels. See id. at 582, 584–85. On July 6,
2018, upon further stipulation, plaintiffs voluntarily dismissed the four outstanding
claims. See ECF 85.
In sum, by July 6, 2018, of the initial 27 claims asserted by 19 plaintiffs,
17 claims asserted by 14 plaintiffs remained as a result of voluntary dismissals and
the Court’s ruling. Nevertheless, over the course of the next year, the parties
maintained “fundamental differences” regarding the applicable liability analysis
framework and continued proceedings: plaintiffs urged additional briefing on
liability and proposed an interlocutory appeal; defendant sought to await further
guidance from the Federal Circuit in other pending cases and, instead, proposed
proceeding to discovery. See, e.g., ECF 84; ECF 95; ECF 99; ECF 101; ECF 105.
On July 25, 2019, plaintiffs filed a motion for partial summary judgment
urging the Court to find that state law abandonment had occurred. See ECF 107.
Mid-briefing, on September 3, 2019, NKCR consummated its abandonment, mooting
the issue. Plaintiffs’ reply brief, filed two days later, asserted that “state law
abandonment is irrelevant and not necessary” to determine liability.8 See ECF 109
at 2. When pressed on the inconsistent positions advanced regarding the end date
of the temporary taking, plaintiffs doubled down on the later consummation date of
September 3, 2019. See ECF 114. The parties continued to dispute the applicable
liability analysis framework and, relatedly, whether the claimed taking ceased on
October 16, 2016, when the NITU expired, or continued until NKCR consummated
its abandonment three years later on September 3, 2019. See, e.g., ECF 120;
ECF 122. The Federal Circuit ultimately adopted the government’s position in
Caquelin v. United States, 959 F.3d 1360 (Fed. Cir. 2020) (Caquelin II). The parties
then engaged in settlement discussions and requested a stay of proceedings.
See ECF 136.
On December 17, 2020, the parties reported a tentative settlement on
just compensation due the prevailing landowners but requested additional time
to negotiate plaintiffs’ claims for attorney’s fees and expenses under the URA.
See ECF 141. After reaching an impasse in their efforts to settle plaintiffs’ URA
fees, the parties stipulated to the entry of partial final judgment on landowner
8 The Court ultimately dismissed plaintiffs’ motion on state law abandonment as moot. ECF 201.
5
compensation. Specifically, the 14 owners of 17 parcels of land totaling 82.34 acres
would split the aggregate sum of $5,356.54 in just compensation, plus nominal
interest.9 Drilling down, each claim was worth between $16.59 and $763.55, netting
each plaintiff between $17.48 and $800.90. See ECF 196. The Court entered partial
judgment consistent with the parties’ stipulation on September 19, 2022. ECF 200.
As in Dawson, with the stipulated entry of partial judgment addressing
just compensation, the sole remaining matter is plaintiffs’ application for attorney’s
fees and litigation expenses under the URA. Pending before the Court is plaintiffs’
request for $969,712.50 in attorney’s fees and $75,584.17 in litigation expenses,
broken down as follows:
Claimed Attorney’s Fees
Hours Billing Rate Total
Mr. Edwards 2,015.8 $450 per hour $907,110.00
Mr. Daniels 147.3 $425 per hour $62,602.50
Total $969,712.50
Claimed Litigation Expenses
Hours Billing Rate Total
Elite Consulting 465.6 $150 per hour $69,840.0010
Mr. Edwards $5,623.3711
Other expenses
Elite Consulting $120.80
Total $75,584.17
9The parties agreed to the accrual of interest at a rate of $0.26 per day, from August 1, 2022,
through the date of payment.
10 Plaintiffs’ original URA application reflects a total of $70,980 for Elite, comprising billed service
fees of $70,860 and copying expenses of $120.80. See ECF 209-1 at 75–94. A day after the
government filed its response attaching itemized objections to plaintiffs’ billing records, plaintiffs
filed a Notice of Substitution appending an amended version of Elite’s billing entries reflecting a
reduced amount of $69,960.80, including 465.6 hours billed at $150 per hour plus copying expenses
of $120.80. See ECF 218 at 2; ECF 218-1.
11Plaintiffs’ URA application lists $718.37 for “ordinary costs, disbursements and expenses.”
See ECF 208 at 43. However, the accompanying billing records–including combined hourly billing
and expense charges–reflect a total of $5,623.37 billed by Mr. Edwards for various food, travel, and
copying charges. Compare id. with ECF 209-1 at 2–64. Defendant’s response–which reorganized
and segregated the expenses from the hourly service billing–totaled the claimed expenses to be
$9,133.37. See ECF 217-5. Although plaintiffs raised no objections to the government’s calculation,
the Court notes the September 12, 2015 entry of $3,510 for 7.8 hours appears to be mistakenly
included in the government’s calculation of expenses and corrects that in the analysis herein. See id.
at 5. Relatedly, as to the hourly billing, the government also mistakenly included Mr. Edwards’
billing entry of 1 hour on October 29, 2021, as 0.1 hour, which the Court also corrects herein.
Compare ECF 209-1 at 63 with ECF 217-3 at 73.
6
The government challenges the reasonableness of plaintiffs’ request for
attorney’s fees and expenses on several grounds. First, the government contends
the URA limits recovery to attorney’s fees and expenses “actually incurred”
by plaintiffs which, based on the retention agreement, negates any award.
Alternatively, the government argues plaintiffs’ fee calculations use excessive
hourly rates and that plaintiffs improperly seek payment for hours attributed to
client solicitation and other pre-complaint work, unsuccessful efforts, duplicative
and excessive work, administrative tasks, and excessive “fees on fees.” Finally, the
government avers plaintiffs’ minimal success in this case warrants an additional
reduction to plaintiffs’ claimed attorney’s fees.
In sum, under the government’s alternative calculation–using the lodestar
method–the maximum attorney’s fees award should be $65,012.16. See ECF 217
at 45. However, the government argues this amount should be further reduced by
at least 75% to account for plaintiffs’ limited degree of success and the disparity
between the landowners’ compensation and counsel’s fee request. By the Court’s
calculation, the government aver that any attorney’s fees award should be capped
at $48,759.12. As for the claimed expenses, defendant contends the requested
reimbursement should be reduced because plaintiffs failed to substantiate their
demands, and improperly request unnecessary expenses and expenses attributed to
unsuccessful claims, limiting the recoverable amount to court fees totaling $463.35.
DISCUSSION
I. Fee-Shifting Statute
The URA’s fee-shifting provision provides that plaintiffs are entitled to
an award of reasonable attorney’s fees and expenses for services rendered in
vindicating their takings or condemnation claims:
The court rendering a judgment for the plaintiff in a proceeding
brought under section 1346(a)(2) or 1491 of [T]itle 28, awarding
compensation for the taking of property by a Federal agency, or the
Attorney General effecting a settlement of any such proceeding,
shall determine and award or allow to such plaintiff, as a part of such
judgment or settlement, such sum as will in the opinion of the court or
the Attorney General reimburse such plaintiff for his reasonable costs,
disbursements, and expenses, including reasonable attorney . . . fees,
actually incurred because of such proceeding.
42 U.S.C. § 4654(c). The URA’s fee-shifting provision ensures plaintiffs with
small takings claims can attract and retain the assistance of competent counsel.
See Bywaters v. United States, 684 F.3d 1295, 1295 (Fed. Cir. 2012). As stated by
the Federal Circuit: “litigation of these types of disputes serves a greater purpose
7
(vindicating constitutionally protected property rights).” Id. at 1296. In
determining awards of attorney’s fees and recoverable expenses under fee-shifting
statutes like the URA, a trial court has considerable discretion but “must ‘provide
a concise but clear explanation of its reasons for the fee award.’” Biery v. United
States, 818 F.3d 704, 710 (Fed. Cir. 2016) (quoting Hensley v. Eckerhart, 461 U.S.
424, 437 (1983)).
Fee-shifting statutes like the URA, however, “were not designed as a form of
economic relief to improve the financial lot of attorneys, nor were they intended to
replicate exactly the fee an attorney could earn through a private fee arrangement
with his client.” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air,
478 U.S. 546, 565 (1986) (Delaware Valley I), as supplemented, 483 U.S. 711 (1987);
accord Biery, 818 F.3d at 710 (“Ultimately, a fee award must ‘be adequate to
attract competent counsel,’ but must not ‘produce windfalls to attorneys.’”)
(quoting Hensley, 461 U.S. at 444). Indeed, jurisprudence surrounding the award
of reasonable attorney’s fees and expenses pursuant to the URA and other
fee-shifting statutes prevents windfalls and avoids situations where counsel are
overcompensated through excessive or unreasonable fee requests. See, e.g., Davis
Cnty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Env’t Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999) (Davis County) (recognizing exception
to forum rate rule to “prevent the occasional erratic result where the successful
[plaintiff] is vastly overcompensated given the amount he contracted to pay for
legal services”), cited with approval in Avera v. Sec’y of Health & Hum. Servs.,
515 F.3d 1343, 1349 (Fed. Cir. 2008) (adopting Davis County exception).
II. No-Fee Retention Agreement
The retention agreement in this case assures each landowner that they bear
no costs and pay no fee for counsel’s representation. Instead, according to the
terms of the agreement, all attorney’s fees and litigation expenses “shall be solely
submitted to the U.S. Government for payment under any federal fees, costs and
expense recovery statutes.” See ECF 217-1 at 2; accord id. (“[counsel] will seek
reimbursement of all reasonable costs, expenses, attorney’s fees, etc[.] . . . directly
from the U.S. government . . .”). As in Dawson, the government argues the
attorney’s fees “actually incurred” as prescribed under the URA are limited to what
plaintiffs actually committed to pay their counsel. According to the government,
because the retention agreement commits plaintiffs to pay nothing to their counsel,
recovery under the URA is precluded.
The Court rejects the government’s position. The URA is the default
mechanism by which successful rails-to-trails landowners may attract, retain, and
pay competent counsel reasonable attorney’s fees and reimburse litigation expenses
to vindicate their Fifth Amendment rights. As noted supra, however, the statutory
scheme was not designed or intended by Congress to fund overzealous and litigious
8
counsel for every hour claimed to have been expended. To conclude otherwise is
to remove the term “reasonable” from the statutory language. Thus, although not
conclusive, the financial arrangement between an attorney and their client “may be
taken into account in the lodestar calculation.” Bywaters v. U.S., 670 F.3d 1221,
1231–32, 1232 n.7 (Fed. Cir. 2012) (Bywaters I). Accordingly, the Court will
consider the retention agreement, along with other relevant factors, in assessing
reasonable fees recoverable in this case.
III. Lodestar Calculation
The Court now turns to the lodestar calculation to assess counsel’s request
for attorney’s fees, “which is ‘the product of reasonable hours times a reasonable
rate.’” Haggart v. Woodley, 809 F.3d 1336, 1355 (Fed. Cir. 2016) (quoting City of
Burlington v. Dague, 505 U.S. 557, 559–60 (1992) (quoting Delaware Valley I,
478 U.S. at 565)). “A fee award that is determined through the use of a lodestar
calculation carries a ‘strong presumption’ that it represents a ‘reasonable’
attorney fee.” Biery, 818 F.3d at 710 (quoting Bywaters I, 670 F.3d at 1229);
accord Bywaters I, 670 F.3d at 1228–29 (“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.’”) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010)).
As explained by the United States Supreme Court in Blum v. Stenson:
To inform and assist the court in the exercise of its discretion, the
burden is on the fee applicant to produce satisfactory evidence–in
addition to the attorney’s own affidavits–that the requested rates are
in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience and reputation.
465 U.S. 886, 895 n.11 (1984). Likewise, the burden rests on the fee applicant
to properly document the hours expended, with sufficient specificity to enable
meaningful review. See Hensley, 461 U.S. at 437; id. at 441 (Burger, J., concurring)
(The fee applicant must “provide detailed records of the time and services for which
fees are sought” and establish “by clear and convincing evidence the time expended
was necessary to achieve the results obtained.”).
A. Hourly Rates
The Court first turns to hourly rates. In assessing reasonable rates, courts
generally look to the “prevailing market rate” of the forum court. Avera, 515 F.3d
at 1348 (citing cases). Again, the URA applicant bears the burden of demonstrating
that the hourly rates requested are both reasonable and comparable to similarly
qualified attorneys providing similar services. The so-called Davis County exception
9
to the forum court locale applies where, as here, “the bulk of the work is done
outside of the District of Columbia in a legal market where the prevailing attorneys’
rates are substantially lower.” See Avera, 515 F.3d at 1349. The parties do not
dispute the exception applies in this case.
Plaintiffs’ application devotes less than two pages discussing counsel’s
claimed rates. Mr. Edwards requests an hourly rate of $450 for himself as the
purported prevailing rate in Joplin, Missouri, where he performed the bulk of his
work. Mr. Daniels claims an hourly rate of $425 for his work performed in Kansas
City, Missouri.12 In support of his proffered rate, Mr. Edwards cites a Missouri
state court’s judgment granting his interim application for attorney’s fees against
the estate of his late son, where Mr. Edwards served as trustee of his son’s
law practice, and his other son served as the representative of the estate.13
Mr. Edwards further represents that he has settled other rails-to-trails cases with
the government where he demanded similar rates.14 In turn, Mr. Daniels cites
an unrelated case where the Court awarded another attorney $595 per hour,
proffering: “[Mr.] Daniels’ qualifications and practice experience [listed in his
declaration] are equivalent.” See ECF 208 at 35.
Here, the Court is presented with a record where plaintiffs’ counsel offer
little more than self-serving statements in support of the reasonableness of their
requested hourly rates. Such proffers are generally afforded little weight. See, e.g.,
Bradley v. United States, 164 Fed. Cl. 236, 261 (2023) (“[Counsel’s] statements,
12 As noted supra, in memorializing the landowners’ no-fee liability, the retention agreement
includes the hourly rates counsel intend to seek from the government under the URA: $450 for
Mr. Edwards, $300 for consultants, and $150 for support staff and experts. See ECF 217-1 at 2. The
retention agreement in the record pre-dates Mr. Daniels’ engagement in this case. The agreement
further states the landowners agree that these hourly rates–that the landowners themselves are not
obligated to pay–are “just, reasonable, and proper.” See id. Counsel’s self-proclaimed reasonable
rates and their non-paying clients’ purported acquiescence, while not entirely irrelevant, warrant
little weight and do not dictate counsel’s recovery from the government under the URA. To hold
otherwise would effectively abrogate the mandated reasonableness assessment the Court must
undertake.
13In support of his declaration in this case, Mr. Edwards includes a previously-executed declaration
and billing entries related to the “Walmart litigation,” where he asserted “each [billing] entry . . . is
truthful, fair, and reasonable and was necessary to preserve the estate’s and trust’s interest . . . .”
See ECF 209-2 at 31. The billing entries list hourly rates of $300 and $425 for two different cases.
Id. at 32–39. The subject matter of the cited litigation and its purported import to the
reasonableness assessment in this case remain unclear.
14The parties dispute the relevance of the purported agreed-upon rates in other cases resolved
through settlement. As both parties recognize, reasonableness assessments under the URA
necessarily present fact specific inquiries rooted in the particular circumstances of a given case. The
parties’ settlement of unrelated cases, while potentially relevant, is not determinative of this Court’s
independent assessment.
10
while unrebutted by defendant, are self-serving and conclusory, and therefore
cannot be afforded great weight.”). For its part, the government relies upon the
declaration of Laura A. Malowane, Ph.D., an economist and attorney touting
“extensive experience in analyzing and testifying on issues relating to the awarding
of attorney[’s] fees . . . .” See ECF 217-2 ¶¶ 1–2. The government posits that a
reasonable attorney’s fee award should use locally-based hourly rates of $245.70 to
$304.20, rising between 2015 and 2022. For the reasons articulated in Dawson,
the Court places limited weight on Dr. Malowane’s opinions, noting her previous
contradictory opinions in the rails-to-trails context while retained by plaintiffs’
counsel. See Arnold, 163 Fed. Cl. at 28.
Plaintiffs further proffer that a locality adjustment to the highest partner
rates awarded in Dawson (i.e., $500 per hour) would justify an hourly rate of $470
for Mr. Edwards. See ECF 222 at 25. In Dawson, after considering the record
presented, persuasive caselaw from Missouri-based courts and this Court, and
relevant billing rates surveys, this Court awarded hourly rates of $215–$500 to the
St. Louis-based attorneys. Counsel’s claimed rates of $425–$450 in this case fall
toward the high end of that range. To arrive at the reasonable rates in this case,
however, the Court considers several distinguishing factors. First, by referring to
St. Louis as “[the] big city,” see ECF 208 at 32–33, Mr. Edwards recognizes a locality
difference between Joplin and St. Louis, meriting a downward adjustment from the
St. Louis rates awarded in Dawson. Second, Messrs. Edwards and Daniels billed
72% of their claimed fees in the beginning stages of the case (i.e., 1,559 hours by
end of 2017, including 421 hours by the March 18, 2016 filing of the amended
complaint).
Third, while the litigation team in Dawson included over 25 junior attorneys
(i.e., non-partners) and legal support professionals, Messrs. Edwards and Daniels
are the sole attorneys and litigation team members in this case. Consequently, in
Dawson, junior team members billed over 43% of the total billed hours (797.6 of
1,834.4 hours) at lower (non-partner) rates–rates ultimately awarded by the Court
at between $100 and $300. By contrast, Messrs. Edwards and Daniels billed all
2,163.1 hours claimed in this case, 93% of them (i.e., 2,015.8 hours) at the claimed
hourly rate of $450. Counsel’s solo law practice may, as here, result in one or two
senior attorneys undertaking all levels of work, regardless of complexity or required
professional skills. That circumstance, however, cannot compel URA recovery of
every claimed hour at partner rates. To that end, the Court is struck by the fact
that Messrs. Edwards and Daniels–two attorneys touting their combined 90 years
of legal experience–claim to have expended over 300 more hours than the
35 attorneys and legal professionals in the consolidated Dawson case (i.e., 2,263.1
hours versus 1,834.4 hours). Yet, in the end, the results achieved were comparably
less: just compensation in the aggregate amounts of $5,356.54 and $7,595.17,
respectively.
11
Fourth, although counsel claim extensive legal experience, their venture
into the “complex and novel area of federal [railbanking] law,” see ECF 209-2 ¶ 85,
is relatively new. According to his declaration, Mr. Edwards first “originated,
investigated, and filed” railbanking cases in around 2014. See, e.g., id. at ¶¶ 27–29,
30 (listing previous cases). Mr. Daniels became involved in rails-to-trails cases
“[i]n early 2017.”15 See ECF 209-3 ¶ 16. If counsel devoted decades of practice to
other areas of law, whatever hourly rates they charged for their seasoned specialties
do not automatically apply to their new professional pursuit. That is particularly
true where, as here, in seemingly one of their first rails-to-trails cases, counsel
demand partner rates for every hour expended, including hours devoted to tasks
normally delegated to junior attorneys and support staff (e.g., basic legal research,
formatting and filing documents, collecting documentation).
In view of the above considerations, the Court finds that a downward
adjustment to the partner rates requested by plaintiffs’ counsel is warranted and
awards reasonable hourly rates of $315 for Mr. Edwards and $265 for Mr. Daniels.
The Court now turns to the determination of compensable hours.
B. Compensable Hours
Counsel request reimbursement for a total of 2,163.1 hours: 2,015.8 claimed
by Mr. Edwards and 147.3 hours claimed by Mr. Daniels. Urging significant
reductions, the government objects to the number of requested hours based on the
following grounds: overbilling for pre-complaint work; unsuccessful claims and
efforts; excessive and duplicative hours; wasteful and unnecessary efforts;
administrative tasks; and excessive “fees on fees.” The government further
contends plaintiffs’ minimal success–demanding nearly 200 times the amount
awarded in just compensation–and counsel’s litigation approach, merit an
additional downward adjustment of at least 75% to the calculated lodestar.
The Court addresses these issues seriatim.
1. Business and Client Development
Based on counsel’s billing records, Mr. Edwards began billing for this case
on July 6, 2015, over three months before the STB issued the NITU and prior to
the retention of any plaintiffs (prevailing or otherwise).16 When the initial
complaint was filed on October 26, 2015 (i.e., four days after the NITU’s issuance),
15Seemingly inconsistent with his declaration, Mr. Daniels’ billing records include entries in this
case dating back to November 2016. See ECF 209-1 at 66.
16Counsel represent the first retention agreement was executed on August 15, 2015. That document
was not included in the record, and it remains unclear whether that retention agreement pertains to
a plaintiff, let alone a prevailing plaintiff, in this case.
12
Mr. Edwards had already billed 367 hours.17 By March 18, 2016, when plaintiffs
filed their amended complaint, Mr. Edwards had billed a total of 421 hours. During
this time, Mr. Edwards reportedly contracted Elite’s services, accounting for an
additional 339.1 hours claimed.18
In September 2015, after Sunflower expressed an interest in sponsoring
the rails-to-trails conversion, Mr. Edwards “intensified” his efforts, convened public
meetings, and continued to research and review geographical mapping, ancient
deeds, and tax documents.19 ECF 209-2 ¶¶ 40–42; see ECF 209-1 at 6–9. Billed a
month before the NITU issued, most of counsel’s billing entries are not linked to a
landowner, let alone a landowner who subsequently joined and prevailed in this
case.20 While this type of effort may be typical before initiating a rails-to-trails suit,
such work is “more appropriately classified as client development [and] cannot be
reimbursed.” Bradley, 164 Fed. Cl. at 263 (citing Hensley, 461 U.S. at 434).
Substantial reductions are therefore warranted to account for the non-compensable
hours counsel expended on soliciting business and vetting claims. Counsel’s failure
to properly document and delineate between compensable client representation and
non-compensable business development further merits downward adjustment.
In assessing appropriate reductions, the Court recognizes that certain entries
include compensable work dedicated to or contributing toward the representation
of plaintiffs who ultimately prevailed (e.g., complaint drafting, NITU research).
17 These hours represent counsel’s efforts to, for example: monitor STB dockets; “research[] and
investigat[e] the state of legal title to [the] 57.3 miles of former railroad corridor in order to
determine the prospect of railbanking”; “secure[] . . . evidence of cognizable property interests”;
convene “public meeting[s]” with landowners in adjacent counties along the railroad; and advise
landowners on STB process development. See ECF 209-2 ¶¶ 36–42. The billing records during this
time include numerous entries for locating and investigating potentially impacted land in the event
a NITU was issued. These include over 40 hours billed for traveling to Kansas for “onsite research”
between August 9-13, 2015. See ECF 209-1 at 4–5. These exemplary hours were billed before
counsel convened public meetings in local counties to recruit clients, before counsel retained any
client, and before Sunflower’s initial STB filing indicating its willingness to sponsor the rails-to-trails
conversion.
18The parties dispute the nature and characterization of Elite’s reported services and whether they
are eligible for reimbursement under the URA as presented. The Court addresses these issues in
Sections IV(A) & (B)(2), infra.
19The billing records for September 2015 include: hours traveling to local counties; “research and
drafting materials” for the public meetings; reviewing “ancient source docs” and “township maps”;
“prep meeting room: exhibits, handouts, etc.”; and associated travel, and corresponding with the
landowners and unspecified “clients.” See generally ECF 209-1 at 6–9; see, e.g., ECF 209-1 at 7
(8 hours billed on Sept. 9, 2015, for “Drive to Norton Co., Ks from Joplin, Mo”); id. at 8 (7.8 hours
billed on Sept. 12, 2015, for “Travel from Norton Co., Ks to Joplin, Mo”).
20 The accompanying travel, printing, and food expenses, which counsel seek reimbursement as
litigation expenses, addressed infra, suffer the same defects.
13
To account for these factors, the Court reduces counsel’s requested hours by 85%
through October 26, 2015 (i.e., the filing date of the initial complaint).21 Counsel’s
business and client development efforts likely continued thereafter, including
through the filing of the amended complaint which added two plaintiffs.22 However,
given that counsel’s claimed hours between October 26, 2015, and March 18, 2016,
reflect case-related work for retained clients, and taking into account the significant
adjustment for pre-complaint non-compensable solicitation, the Court does not
similarly reduce the hours claimed for this later period despite the entanglement of
hours claimed for continuing business development.
2. Unsuccessful Claims and Efforts
Hours expended on unsuccessful claims are not reimbursable. Hensley,
461 U.S. at 435 (“no fee may be awarded for services on the unsuccessful claim[s]”);
Biery, 818 F.3d at 712 (“There is no dispute that work done on behalf of the
unsuccessful plaintiffs is not recoverable.”). Out of the initial 27 claims included
in the amended complaint, plaintiffs ultimately prevailed through settlement on
17 claims. By July 6, 2018, eight claims were voluntarily dismissed and the Court
ruled in defendant’s favor on two others.
Plaintiffs’ counsel represent that they do not seek reimbursement for services
performed for unsuccessful claims, proffering these services were performed at
“no charge.” See ECF 208 at 33. Counsel’s billing records belie this representation.
The Court identifies only 14 out of Mr. Edwards’ almost 700 entries as containing
“N/C” (no charge) tasks, mostly relating to the actual filing of plaintiffs’ motions to
voluntarily dismiss certain claims and notifying clients of the same. The first of
these entries is dated March 1, 2017; before then, counsel billed–and now seeks
reimbursement for–a total of 951.2 hours. Similarly, up through July 11, 2017
(i.e., the date of the second “N/C” entry identifying 0.4 hours for two items relating
to the filing of another motion to dismiss), counsel billed and now seeks payment for
an additional 227 hours. The same applies to counsel’s subsequent billing. The
total hours requested undoubtedly reflects time spent investigating and briefing
all 27 claims included in the amended complaint, including the 17 that prevailed
and, relevant here, the 10 that did not.23
21 In the billing records presented, ECF 1 (i.e., the initial complaint filed on October 26, 2015) was
ascribed, in whole or in part, to billing entries up through December 11, 2015. See ECF 209-1 at 13.
22 Counsel sought to add additional plaintiffs as late as June 2019. See ECF 101 at 9 (request to add
more landowners to this case).
23 The billing entries similarly include time spent reviewing, researching, and corresponding about
plaintiffs’ motions to dismiss certain claims. See, e.g., ECF 209-1 at 38 (0.5 hours billed on July 13,
2017: reviewing defendant’s three-page response to plaintiffs’ voluntary dismissal without prejudice);
id. at 39 (4.3 hours billed on July 15, 2017: 1 hour reviewing the same three-page document and
14
Mr. Daniels began billing to this case on November 17, 2016, when all
27 claims were involved, and continued throughout the case. His entries do not
identify any “N/C” items. Presumably, Mr. Daniels’ review, drafting, and
teleconferencing hours involved all pending claims. His billing entries, however,
fail to identify a particular landowner or client; the records also do not distinguish
between work performed in furtherance of successful claims and pursuing claims
voluntarily dismissed or otherwise unsuccessful.
The billing records presented in support of plaintiffs’ URA application
demonstrate little effort by counsel to carve out non-compensable hours expended
on unsuccessful claims. As such, the Court finds a reduction warranted,
particularly in view of counsel’s failure to make reasonable efforts while proffering
contradictory (and unsupported) representations. Accordingly, the Court imposes a
35% reduction of hours billed through July 6, 2018.24
On similar grounds, defendant objects to counsel’s time expended on several
unsuccessful filings, including plaintiffs’ first round of summary judgment briefing
which the Court summarily denied as premature. The Court’s initial order was
clear in directing plaintiffs to “file their partial motions for summary judgment
regarding title issues . . . .” See ECF 27. As explained above, counsel instead
briefed the overarching issue of liability, necessitating a new round of briefing
consistent with the Court’s initial directive. See ECF 46. For the first brief, counsel
billed roughly 210 hours through March 13, 2017. By the time plaintiffs filed a
revised brief on July 21, 2017, counsel billed another 200-plus hours, mostly
devoted to preparing the revised filing and resolving the parties’ disputes resulting
from plaintiffs’ initial brief.25 Such unnecessary efforts fall outside of the realm of
recovery allowable under the URA. The same holds true for the interim hours
counsel expended on unsuccessfully defending their chosen litigation path departing
from the Court’s explicit order.
Counsel’s unfruitful efforts extend further, to include the hours spent
addressing the issue of state law abandonment. Early on, counsel expressed their
3.3 hours researching and Shepardizing cases on dismissal); id. at 45 (3.1 hours billed on Jan. 5,
2018: similar review and research); id. at 47 (1.3 hours billed on July 5, 2018: correspondence with
defendant regarding dismissal).
24To the extent multiple grounds of reduction apply to the same period, the reductions apply
cumulatively. The Court finds many entries in the billing records at issue suffer multiple defects
warranting cumulative percentage reductions. The Court must take all applicable grounds into
account in assessing the compensable portion.
25Including Elite’s contemporaneous billing, the government calculates counsel billed 703.4 hours
for their initial and revised summary judgment briefs, of which 390.5 hours were expended before
the Court rejected the initial filing. Plaintiffs did not respond or object to the government’s
calculations.
15
understanding that, without abandonment through the STB regulatory process,
abandonment under state law would not afford plaintiffs the relief requested.
See ECF 26 at 8; see also id. at 5 (counsel intended to seek relief from the STB to
compel abandonment); see also ECF 209-2 ¶¶ 48–49 (outlining counsel’s effort to
“aggressively participate” in STB proceeding compelling NKCR’s abandonment);
ECF 107-1 at 29 (plaintiffs’ post-abandonment filing in STB proceeding). Then,
in 2019, over defendant’s objection, counsel in this case joined attorneys in the
companion cases and requested briefing on this issue. See ECF 105. Relatedly,
despite not being a party to a then-pending third-party discovery dispute, counsel
submitted a brief contending substantial impact, urging discovery, and advising the
Court on various matters. See ECF 101.26 Shortly after plaintiffs filed a 32-page
memorandum, appending over 100 pages of exhibits, NKCR abandoned the subject
rail line on September 3, 2019, mooting the issue. Two days later, despite counsel’s
proposal to brief the issue, plaintiffs proclaimed: “state law abandonment is
irrelevant and not necessary.”27 See ECF 109 at 2.
These examples highlight counsel’s sustained effort to brief and otherwise
pursue issues bearing little impact on the ultimate resolution of this case.
Counsel’s request for fees under the URA, generously inclusive of all hours
dedicated to such efforts, disregards the burden borne by the fee applicant to
demonstrate reasonableness. Despite the Court’s considerable effort, counsel’s
billing records–rife with inaccurately ascribed ECF numbers and vague
descriptions–coupled with counsel’s failure to meaningfully respond to defendant’s
objections and calculations, render it nearly impossible to accurately delineate
compensable hours from fruitless endeavors.
For the foregoing reasons, the Court imposes a 50% reduction on hours for
the following periods: (1) November 17, 2016 (i.e., first billing entry associated with
the Court’s November 22, 2016 order on briefing title issues), through July 7, 2017
(i.e., Court order denying plaintiffs’ initial motion for partial summary judgment);
26The Court’s June 6, 2019 order scheduled a status conference to address the third-party discovery
dispute in the related cases. See ECF 100. Counsel in this case expended over 40 hours researching
and drafting an 11-page brief of “suggestions” ahead of the scheduled status conference, and another
2.9 hours communicating with counsel and attending the June 14, 2019 status conference. As
reflected in the post-status conference order, counsel’s suggestions–including referral to the STB
and to add additional plaintiffs–were largely denied. See ECF 102; see also ECF 103. Nevertheless,
counsel seeks reimbursement for all hours expended on these efforts.
27 Defendant contends plaintiffs’ counsel billed 143.5 hours in 2019 on the issue of state law
abandonment. Plaintiffs did not respond or object to this calculation. ECF 217 at 38. By the Court’s
count, between June 6, 2019 (i.e., when the Court issued an order convening a status conference on
third-party discovery leading to the state law abandonment briefing), and March 27, 2020 (plaintiffs’
filing stating “no need for the Court to consider the issue of state law abandonment”), counsel billed
226.7 hours, the majority of which appears to be devoted to researching and briefing state law
abandonment.
16
and (2) May 30, 2019 (i.e., first billing entry associated with the Court’s June 6,
2019 order convening status conference leading to state law abandonment briefing),
through May 29, 2020 (i.e., last billing entry associated with the parties’ filings on
March 27, 2020 agreeing state law abandonment is irrelevant).
3. Excessive, Duplicative, and Unnecessary Hours
Recovery under the URA excludes excessive, duplicative, or otherwise
unnecessary hours. “Counsel for the prevailing party should make a good faith
effort to exclude from a fee request hours that are excessive, redundant, or
otherwise unnecessary, just as a lawyer in private practice ethically is obligated
to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434 (noting
“billing judgment” is important component in fee setting). Based on itemized
reductions of varying percentages to identified billing entries, defendant proposes
reducing plaintiffs’ URA application by 378.3 hours to account for excessive and
duplicative entries, and 548.97 hours to account for wasteful and unnecessary
efforts. ECF 217 at 40, 42. The Court agrees reductions are warranted as counsel’s
billing records are devoid of the requisite “good faith effort” and “billing judgment”
to identify and appropriately exclude or adjust such hours.
As noted above, counsel’s billing records include 367 hours billed by
October 26, 2015, when the initial complaint was filed. During this time, Elite
billed an additional 318.4 hours. Counsel represents the complaint was prepared
and filed “in a RCFC 56(c) format, unlike the other cases.” ECF 26 at 5; see, e.g.,
ECF 209-1 at 11 (exemplary billing entries stating complaint was drafted in
“RCFC 56 SJ format” or “SJ format”). The 95-page complaint and accompanying
40 exhibits “set out ancient provisions of the Kansas Constitution, Kansas statutes
and ancient records of judicial condemnations of rights-of-way, together with
controlling Kansas decisions[.]” ECF 209-2 ¶ 52; ECF 1. The complaint attached
“all the government records and records of cognizable property interest which
[counsel] had assembled or was assembling[,]” including “ICC Valuation Sheets . . .
ICC Valuation Maps . . . deeds, tax records, judgments of condemnation, tract maps,
and plat maps[.]” ECF 209-2 ¶¶ 42, 53.
In contrast, the complaints filed in the three companion cases ranged in
length from six to fifteen pages. The nature, relative complexity, and comparative
outcomes of these cases undermine the claimed reasonableness of counsel’s
exhaustive pre-filing investment of time and resources. This is particularly true
where, as here, despite the touted thoroughness in preparing the “extensively
researched and documented complaint” with “dispositive proofs” on title issues,
see id. at ¶¶ 51, 52, counsel then expended hundreds of additional hours on filing
the subsequent motion for partial summary judgment. By the time plaintiffs
responded to defendant’s cross-motion for partial summary judgment on
September 8, 2017, counsel billed 1,444.1 hours in this case. In the end, nearly
17
all of the title issues were resolved through negotiation and stipulation. On this
record, and particularly given counsel’s claimed subject matter expertise, the Court
finds the hours expended on title issues excessive.28
Counsel’s billing records therefore do not reflect the required level of
reasonable billing judgment. The case did not require additional briefing on the
issue of liability and the parties settled on just compensation in the months
following the Federal Circuit’s decision in Caquelin II. Yet, after the resolution
of title issues, counsel billed another 500-plus hours, of which approximately
135 hours were attributed to efforts to resolve plaintiffs’ URA application.29
Counsel’s excessive billing is further exhibited by their extraneous filings and
over-briefing of issues. See, e.g., ECF 26; ECF 64; ECF 69–70; ECF 101. Given the
relative import of these efforts, the Court finds counsel’s billing crosses the line
from reasonable to excessive and unnecessary. The billing records further include
numerous entries billed for handling simple court filings, reviewing case documents,
and corresponding with Elite and clients regarding unspecified work.30 And despite
counsel’s touted rail-to-trails experience and expertise, the billing records include
numerous entries expending significant hours researching the Court’s rules and
basic legal issues.31 Each hour spent performing basic legal research is billed at a
senior partner rate.
28Another example lies in the fact that counsel billed 18.5 hours reviewing the Court’s April 10, 2018
opinion and another two hours drafting client letters regarding the same.
29An October 29, 2021 joint status report included the following update regarding the parties’ efforts
to amicably resolve plaintiffs’ URA application: “Plaintiffs in this action have demanded URA
reimbursement in an amount substantially larger (in both dollar and percentage terms) than the
approved settlement in Flying S. Land and the rejected settlement in Dawson.” ECF 157 at 2 n.2.
30 See, e.g., ECF 209-1 at 6 (1.5 hours billed on Aug. 14, 2015: “review emails from Elite and draft
emails”; “t/c with Elite”); id. at 14 (7.5 hours billed on Dec. 28-29, 2015: review defendant’s answer
to initial complaint); id. at 24 (0.3 hours billed on Sept. 19, 2016: review one-paragraph order
rescheduling status conference; id. at 36 (0.6 hours billed on June 10, 2017: “t/c with Elite re client
contacts and issues – CPI research”); id. at 34 (0.6 hours billed on Mar. 10, 2017: “Review Elite email
re JacksonIT”; “t/c with Elite”); id. at 52 (0.5 hours billed on June 21, 2019: “review email from
client”; “t/c” with client); id. at 53 (0.9 hours billed on July 12, 2019: “Review email from client
Hillebrand” and “t/c with client”); id. at 56 (0.2 hours billed on Mar. 19, 2020: review order listing
dial-in information for status conference); id. at 58 (2 hours billed on Sept. 15, 2020: “Research
time line [sic] and cases as they [r]elate to Arnold case and scheduled hearing”); id. at 58 (1 hour
billed on Sept. 21, 2020: “Telephone conference with plaintiff Cecelia Hillebrand re her earlier email
received today”).
31 See, e.g., ECF 209-1 at 9 (8 hours billed on Oct. 2, 2015: review and research “CFC jurisdiction,”
“5th amendment takings claims,” “reviewing [unspecified] docs,” “Ladd and shep”); id. at 12
(7.5 hours billed on Oct. 21, 2015: “research 28 USC 2501” and cases); id. at 37 (8.5 hours billed on
June 19, 2017: research “RCFC 15” and cases); id. at 37 (8.4 hours billed on June 21, 2017: “Research
RCFC 8(c)(1)” and cases); id. at 48 (8.2 hours billed on Aug. 28, 2018: research “28 USC 1292(d)(2),”
“RCFC 54(b),” and cases); id. at 57 (6.9 hours billed on Jun. 22, 2020: review filings in “Caquelin”
18
As these examples illustrate, counsel’s billing records lack indicia of
reasonable billing judgment and deprive the Court the ability to delineate the
appropriate number of compensable hours. For these reasons, the Court imposes an
overarching 30% reduction of hours to reflect counsel’s failure to exercise reasonable
billing judgment and otherwise compensate for the evidentiary shortcoming.
4. Administrative Work, Vague Entries
Reimbursement under the URA generally excludes hours performing
administrative, secretarial, and clerical tasks regardless of whether these
assignments are performed by attorneys or professional support staff. See Whispell
Foreign Cars, Inc. v. United States, 139 Fed. Cl. 386, 395 (2018) (citing Hopi Tribe v.
United States, 55 Fed. Cl. 81, 100 (2002)). This is particularly true where, as here,
Mr. Edwards (a solo practitioner) and Mr. Daniels (a partner in a small firm)
performed numerous administrative tasks customarily performed by junior
attorneys and legal support professionals.
Many billing entries mix non-compensable administrative work with
compensable substantive work, leaving the Court to guess the extent of each
category. The Court identifies the following non-exhaustive exemplary filings for
Mr. Edwards:
 For a one-sentence order reassigning this case to another judge, counsel
billed 0.4 hours to review the order and “note change of judge in file and
computer” (Jan. 12, 2016).
 In response to a one-page order to submit a transcription of a deeds
document, counsel assigned 12 entries totaling 12.4 hours to review the
order, calendar the deadline, transcribe the two-page document, and file
the transcription (Dec. 7-22, 2017).32
 In response to a post-status conference order requesting statements to
“confirm in writing the parties’ positions on several issues discussed at the
teleconference,” see ECF 125, counsel expended 5.3 hours preparing and filing
a two-page response (Mar. 25-27, 2020)–half of which concerns listings of
dismissed parcels and the number of remaining plaintiffs, and another
3.7 hours reviewing and analyzing defendant’s 5-page consolidated response
to the same order (Mar. 27, 2020) on the four related cases.
and research); id. at 71 (14.7 hours billed on June 14-20, 2022: research URA fees in rails-to-trails
cases).
32The billing entries included at least 5.1 hours devoted to transcribing the document and, without
explanation, another 1.1 hours billed the day after the filing.
19
 To file a two-sentence report identifying himself as the individual attending
a status conference, Mr. Edwards billed 0.4 hours (Sept. 14, 2020) and
another 0.1 hours (Sept. 15, 2020) reviewing defendant’s submission
identifying Ms. Walker.
 When the Court stayed all related cases for settlement and requested counsel
“file with the court a list of each plaintiff represented by such counsel, as well
as the parcel(s) claimed by each plaintiff,” see ECF 136, counsel assigned
six entries totaling 4.5 hours to review the two-paragraph order and prepare
and file a one-page list of plaintiffs (Sept. 18-25, 2020).
 After the parties reached settlement on just compensation in December 2020,
Mr. Edwards billed at least 24 hours corresponding with landowners
regarding the settlement.
As for Mr. Daniels, the Court identifies the following examples similar in nature:
0.9 hours preparing a two-page motion for an extension of time and reviewing the
order granting the motion (Jan. 19 & 23, 2017); 1.4 hours revising and renumbering
exhibits appended to plaintiffs’ initial motion for partial summary judgment
(Mar. 11, 2017); 0.7 hours reviewing a one-sentence order denying plaintiff’s
dispositive motion as premature (July 7, 2017); and, in connection with the URA
fee application, 5.1 hours to “[a]ssemble and reformat billing records” (June 9,
2021).
Although certain entries include some compensable substantive work,
the billable records submitted in support of plaintiffs’ URA application make no
discernable effort to identify and distinguish between hours properly attributable to
substantive work performed by partners and non-compensable administrative tasks
typically handled by junior attorneys and support staff. To compensate for counsel’s
improper inclusion of administrative work throughout the case and their failure to
apply appropriate reductions, the Court imposes an across-the-board 30% reduction
in hours.
5. Fees-on-Fees Hours
After the parties resolved the issue of just compensation due the prevailing
plaintiffs in December 2020, as noted above, counsel billed 135.5 hours primarily
focused on efforts to resolve the issue of attorney’s fees and litigation expenses due
under the URA. Acknowledging the general allowability of recovering attorney’s
fees for hours expended resolving URA applications, defendant objects to the
number of hours claimed, proposing a 50% reduction for 91.8 hours billed in 2022.
Although Mr. Edwards handled most of the work up to and through the
parties’ settlement negotiations, Mr. Daniels was tasked with formatting the billing
records and drafting plaintiffs’ fee application. Nearly three years since his last
20
entry in 2018, Mr. Daniels billed 5.1 hours on June 9, 2021, assembling and
reformatting the billing records.33 Eleven months later, beginning on June 15,
2022, Mr. Daniels billed at least 90 hours researching and drafting the pending
URA application. Consistent with his representation that he became involved in
rails-to-trails cases in early 2017 through Mr. Edwards (see ECF 209-3 ¶¶ 16–18),
Mr. Daniels billed–at partner rates–over 14 hours conducting “initial” research on
URA fees under 42 U.S.C. § 4654.34Many of defendant’s itemized objections are based on excessiveness or the
clerical nature of the work, addressed supra. To account for the potential overlap
and avoid “double counting,” while disallowing improper recovery, the Court applies
an additional 10% downward adjustment to the hours billed from December 18,
2020, onward.
6. Minimal Success and Other Considerations
In assessing the number of reasonable hours and reasonable attorney’s fees
recoverable under the URA, “the most critical factor is the degree of success
obtained.” Hensley, 461 U.S. at 436. Where plaintiffs achieve limited success,
“the product of hours reasonably expended on the litigation as a whole times a
reasonable hourly rate may be an excessive amount.” Id. at 436. In cases with
minimal recovery, appropriate reductions may be reflected in determining
reasonable hours, rather than as an independent basis for adjusting the overall
lodestar calculation. See Bywaters I, 670 F.3d at 1229 (adjustments to the lodestar
figure are proper only in “rare” and “exceptional” cases, “where the lodestar figure
fails to take into account a relevant consideration”) (quoting Delaware Valley I,
478 U.S. at 565); accord Perdue, 559 U.S. at 553.
The 14 prevailing landowners (out of the initial 19 plaintiffs) settled for
an aggregate amount of $5,356.54 in just compensation, including interest.
Individual claimants recovered between $17.48 and $800.90. All but three plaintiffs
recovered less than $450–i.e., Mr. Edwards’ requested hourly rate. For achieving
these results, counsel request $969,712.50 in attorney’s fees and, as addressed
infra, an additional $75,584.17 in litigation expenses. The URA application seeks
nearly 200 times plaintiffs’ aggregate recovery.
33Of note, the billing records generally comprise Mr. Edwards’ entries beginning July 2015,
with over 770 hours billed before Mr. Daniels joined the case in November 2016.
34For his part, Mr. Edwards’ hours during this period focused on reviewing Court orders and
status reports drafted by the government and filing several notices and motions for extensions of
time. See, e.g., ECF 209-1 at 63 (0.9 hours billed on Jan. 5, 2022: assembling list of plaintiffs); id. at
63 (1.3 hours billed in Feb. 2022: unopposed motion for an extension of time to revise and resubmit
billing records; reviewing court orders); id. at 64 (0.6 hours billed on Sept. 16, 2022: unopposed
motion for an extension of time to file the pending URA fee application). These hours are likewise
billed at senior partner rates.
21
Defendant urges an additional reduction of at least 75% to account for the
disparity between the compensation recovered and the attorney’s fees requested,
citing counsel’s overly litigious approach to this case and lack of billing discipline.
The Court agrees that an additional reduction to the hours is warranted,
particularly in view of the following factors which, although related to, were not
fully reflected in, the afore discussed grounds.
Prior to and throughout this litigation, counsel represent they “aggressively
participate[d]” in the STB proceedings and ultimately “forced” the NKCR to
consummate abandonment in September 2019. See, e.g., ECF 209-2 ¶¶ 48–49
(outlining counsel’s active involvement in the STB proceedings). On January 4,
2022, the Court directed plaintiffs to revise their billing records, stressing that the
time “billed for charges that related to the [STB] [is] not recoverable in the case[.]”
See ECF 159. In the pending URA application, counsel represent that their revised
submission does not seek reimbursement for counsel’s efforts before the STB.
ECF 209-2 ¶ 50. Counsel’s billing records belie this representation.
The billing records filed in support of plaintiffs’ pending URA application
continue to include entries related to the STB proceedings.35 Counsel further spent
considerable time and effort updating the Court on the STB proceedings and
counsel’s engagement with the regulatory board.36 Although these hours include
work necessary for this case and, thus, compensable under the URA, the billing
records render it most difficult, if not impossible, to discern the precise extent of
such compensable work.
Review of counsel’s extensive briefing on the STB proceedings, however,
reveals a more troubling issue: plaintiffs’ inconsistent positions as to the nature
and duration of the claimed taking, which counsel expended numerous hours
disputing. In the pending fee application, counsel state:
35See, e.g., ECF 209-1 at 53 (0.4 hours billed on July 2, 2019: “t/c with STB”); id. (1 hour billed
on July 11, 2019: “Telephone call John Arnold re STB and federal claims court action”); id. at 55
(0.3 hours billed on Sept. 3, 2019: “review STB Morell letter”); id. at 60–61 (a total of 5 hours billed
on Feb. 11, 2021: communicating with client, including advising landowners “of [counsel]’s success
before the STB requesting railroad consummate abandonment of easement”).
36See, e.g., ECF 1 (95-page initial complaint with sections detailing STB proceedings); ECF 27
(91-page “proposed findings of fact” including restatement of STB proceedings); ECF 64 (35-page
brief including recitations of STB history, role, jurisdiction, and actions); ECF 107-1 (32-page brief
with restatement on status of STB proceedings); id. at 29 (explaining counsel’s engagement in
STB proceeding); ECF 114 at 4–5 (explaining counsel’s work in petitioning the STB to compel
abandonment).
22
From the November 18, 2016 STB Decision onward, every lawyer
in this case knew that the methodology whereby temporary takings
damages would be quantified and awarded to the Arnold Plaintiffs
was to determine the rental value of the property “taken” during the
one-year duration of the “taking.” The Government, however, continued
to press every defense to these modest claims, thus requiring Plaintiffs
to engage in continuous litigation from 2015 through 2020.
ECF 209-2 ¶ 93 (emphases added). Counsel further represent:
Controlling authority, which requires no citation at this point, makes
it very clear that the issuance of the NITU, standing alone, constitutes
a taking of property which, should the NITU expire, will be deemed
to be a temporary taking equal in duration to the time the NITU
was in effect. . . . The Government knew or should have known as of
10/13/2016, that since the NITU would not be extended by the STB in
the face of NCKR’s [sic] objection, this case would be and forever
remain a case of temporary taking. . . .
ECF 222 at 11–12 (emphases added).
Briefing throughout this case, however, undermines counsel’s current
reflections. Early on, counsel contended that the taking at issue was “temporary
in nature” and ended on “the expiration of the NITU extension . . . on October 16,
2016.” See ECF 33 at 19. Less than seven months later, counsel submitted a
35-page brief arguing that “the duration of the taking is measured from the NITU
to the March 1, 2018 deadline,” and that “[t]he United States is currently liable
for a temporary taking from October 21, 2015, until March 1, 2018.” See ECF 64
at 32–33. Counsel further proffered “the taking [could be] permanent in nature.”
Id. at 33. In their July 2019 brief on state law abandonment, counsel stressed:
“The Arnold Plaintiffs maintain that the extensions of the consummation of
abandonment deadlines, each requiring STB ‘decisions’ and each decision thereby
extending STB jurisdiction, resulted in similarly extending the duration of the
taking.” ECF 107-1 at 20 n.6. Then, in early 2020, five months after the NKCR
abandonment, counsel again changed their position, arguing that “the duration
of the federal law-based taking ceased at the time of NKCR’s September 3, 2019
abandonment consummation.” See ECF 119 at 6.
Defendant, in contrast, maintained that the October 16, 2016 expiration of
the NITU put a clear end to the claimed taking. See, e.g., ECF 42 at 143 (June 7,
2017 brief stating “this action concerns a NITU that was in effect for less than a
year . . . alleged temporary taking”) (emphasis in original); ECF 65 (October 2, 2017
brief stating “the relevant time period for determining whether the United States is
liable for a temporary taking in this case begins with the issuance of the NITU on
23
October 22, 2015, and ends with the expiration of that NITU on October 16, 2016”);
ECF 115 at 2 (October 16, 2019 brief reiterating “the period for any temporary
taking is the period that the NITU was in place, i.e., from October 22, 2015 to
October 16, 2016”).
As late as February 26, 2020–five years into this case and when the parties
jointly requested a stay pending the Federal Circuit’s decision in Caquelin II–
plaintiffs’ counsel argued, after taking several inconsistent positions, that the
taking lasted until at least September 3, 2019, and would end only “when the
owners regained their state law right to use the land.” See ECF 122 at 4. On this
record, counsel’s assertions that the government prolonged the resolution of this
critical issue rings hollow.
Next, plaintiffs stress the long history of this case supports the requested
2,163.1 attorney hours claimed. In support, plaintiffs refer to the timekeeping
records maintained by the United States Department of Justice in the Dawson case
to suggest the tendered hours in this case are on par and, thus, reasonable. In
citing the seven-year pendency of the case, plaintiffs seemingly ignore the following:
proceedings were idle or stayed for extended periods while the parties reached
impasses and engaged in settlement negotiations37; since December 2020, the sole
issue remaining has been plaintiff’s URA application, which the parties endeavored
to resolve without judicial intervention; the requests for extensions of time filed by
both parties; and, as highlighted above, plaintiffs’ litigiousness and evolving legal
positions. The last item on this non-exhaustive list explains the alleged parity
between the hours billed by plaintiffs’ counsel and the time attributed to this case
by defendant’s counsel: the government, as the defendant, must respond to each
argument and filing made by plaintiffs regardless of length or merit.38 For example,
as explained above, plaintiffs’ decision to ignore the Court’s directive to limit
briefing on title issues and, instead, brief comprehensive liability issues
necessitated two rounds of briefing comprising thousands of pages.
Counsel’s current reliance upon state law abandonment is similarly telling.
In seeking reimbursement for the hours billed on state law abandonment, plaintiffs
note the filing was ordered by the Court. See ECF 222 at 14 (“by filing a brief on
the ‘abandonment’ issue, the Arnold Plaintiffs did no more than to respond to an
order directing them to do so . . .”). However, plaintiffs fail to acknowledge that
37See, e.g., ECF 99–ECF 100 (no docket entries between October 10, 2018, and June 5, 2019); ECF
136 (four consolidated cases stayed effective September 21, 2020, at the parties’ request, to permit
settlement discussions).
38Additionally, as noted by the Court in denying the Dawson plaintiffs’ motion for reconsideration,
the government’s time sheets are not comparable to private counsel’s billing records: they are not
created, maintained, or used for the purpose of justifying or seeking payment from clients or, as here,
under a fee-shifting statute.
24
they urged the Court to order the parties to brief this issue over the government’s
objection. See, e.g., ECF 105 (plaintiffs propose briefing on state law abandonment
“[d]espite the United States’ objection that this briefing on state law abandonment
is not necessary at this time.”); ECF 107-1 at 30 (“The Plaintiffs submit that Kansas
state law abandonment has occurred to the Lines, thereby triggering the plaintiff
landowners’ reversionary property interests.”); ECF 115 (defendant stating “the
issue of ‘state law abandonment’ is irrelevant”). Indeed, it was only after NKCR
consummated abandonment on September 3, 2019, that plaintiffs stated in their
September 5, 2019 brief: “state law abandonment is irrelevant and not necessary.”
See ECF 109 at 2.
In the end, this one-year temporary taking dispute was resolved through one
round of cross-motions for partial summary judgment (addressing a few outstanding
title issues) and a negotiated settlement of liability and just compensation. This
case did not involve novel legal issues or complex discovery. Further, there were no
expert witnesses, depositions, in-person court proceedings (proceedings were limited
to telephonic status conferences), evidentiary hearings, trials, or interim appeals.
Save the URA application filed in the consolidated Dawson case, the Court
finds no comparable precedent with a similar ratio of damages achieved to
attorney’s fees requested, particularly in a case where most issues were resolved
through settlement–protracted in large measure due to plaintiffs’ litigation
approach and demands for excessive attorney’s fees. On this record, to account for
the minimal degree of success and the foregoing considerations, the Court finds an
additional adjustment to the overall hours claimed is warranted. If ever there is
a case falling into the “rare and exceptional” category meriting a downward
adjustment to the lodestar figure, this matter qualifies. However, given the specific
reductions already imposed, and mindful of potential “double counting” concerns,
the Court imposes an additional 35% hours-only adjustment, without reducing the
hourly rates awarded or the calculated lodestar figure. See Blum, 465 U.S. at 899–
900 (adjustment to lodestar figure constituted double counting based on the same
factors used to assess reasonable hours and rates).
Compensable Attorney’s Fees
As captured in the table below, with the foregoing adjustments to rates and
hours, the Court awards attorney’s fees in the amount of $111,215.87 as follows:
Attorney Requested Adjusted Requested Adjusted Adjusted
Rate Rate Hours Hours Fees
R. Deryl Edwards $450/hour $315/hour 2,015.8 322.6827013 $101,645.05
James F.B. Daniels $425/hour $265/hour 147.3 36.1163075 $9,570.82
Total $111,215.87
25
IV. Claimed Expenses
Under the URA, successful plaintiffs may seek the reimbursement of
reasonable expenses incurred in the course of the litigation. Bratcher, 136 Fed. Cl.
at 801. To recover litigation expenses, however, plaintiffs must demonstrate the
costs incurred were “reasonable and necessary” in furtherance of the case and
produce adequate proof to facilitate the Court’s review. Id. (quoting Oliveira v.
United States, 827 F.2d 735, 744 (Fed. Cir. 1987)). In this case, plaintiffs seek
reimbursement of $75,584.17 in claimed litigation expenses. Urging substantial
reductions, defendant contends counsel failed to substantiate all but $463.35 in
court filing fees, and plaintiffs improperly seek unnecessary and non-reimbursable
overhead costs as well as expenses attributed to unsuccessful claims. The Court
agrees significant reductions are warranted.
A. Elite Service Fees
As part of their requested litigation expenses, plaintiffs seek reimbursement
in the amount of $69,840.00 purportedly paid to Elite for services rendered in this
case; specifically, 465.6 hours at $150 an hour for “real estate title and abstracting
services.” See ECF 208 at 43; ECF 218. The record presented does not include
information pertaining to the names, positions or titles, or qualifications of the
contractors who performed the claimed services, and does not otherwise justify
the hourly rate requested. The record is similarly devoid of any substantive
information about Elite. Online research using the limited information available
merely revealed a single-family residence in Neosho, Missouri.
Review of the billing entries suggests Elite was contracted to perform
paralegal and secretarial support for Mr. Edwards: approximately 70 entries are
captioned “Conduct assigned research and investigation of legal and factual issues
for inclusion in the forthcoming compliant”; and another 130 entries are captioned
“Performing work assignments on case.” See generally ECF 218 at 2–21. The tasks
Elite billed for include, for example: retrieving and researching land ownership and
conveyance records; drafting, reviewing, and forwarding unspecified documents
and correspondences; communicating with Mr. Edwards; obtaining and reviewing
case-related documents; and assisting with court filings and miscellaneous
administrative tasks.39
39 See generally ECF 218-1 at 1–21 (various task entries for “t/c” or otherwise corresponding with the
“office,” namely, Mr. Edwards’ “draft” or “review” of unspecified emails); see, e.g., id. at 3 (“Continue
printing maps from the Assessors GIS records of current landowners . . .”; “Copy scan and print
maps of landowners for mailing”); id. at 8 (“Scan Decatur source deeds and prepare for meeting”;
“Meeting with Office to inform them re source deeds . . .”); id. at 13 (“T/c office Morlock Fee
agreement, one of the last clients to sign”), id. at 15 (“Meeting with office re claims”), 16 (“T/c with
Office re client contacts”); id. at 17 (“Email copy of email from DOJ sent from Office”; “download[,]
print[,] forward to office”; “Email to office with attachments of 10 exhibits for filing”; “Email to Office
26
Of the 465.6 hours attributed to Elite, over 315 hours (approximately 70%)
were billed before the STB issued the NITU and before counsel filed the initial
complaint. To the extent decipherable, the claimed work is largely attributable to
counsel’s business and client development efforts, or secretarial assistance. The fact
that counsel outsourced this work does not change the non-compensable nature of
the expended hours. Similar to counsel’s billing records, most of Elite’s billing
entries fail to identify a landowner or prevailing plaintiff, exhibiting little effort to
distinguish between compensable hours expended on ultimately successful claims,
potential claims investigated but not pursued, and claims voluntarily dismissed or
rejected by the Court.
Elite’s attribution of certain hours to specified assignments are suspect,
raising additional doubts about the requested recovery. After plaintiffs filed the
amended complaint in this case on March 18, 2016, Elite’s initial billing records
included ten entries–the last entered on November 2, 2020–citing the following
work: “Conduct assigned research and investigation of legal and factual issues for
inclusion in the forthcoming compliant [sic] . . . .” ECF 209-1 at 88–94 (emphasis
added).40 Without explanation, Elite’s revised billing records delete the phrase
“for inclusion in the forthcoming compl[ai]nt” from six entries post-dating the filing
of the amended complaint. Compare 209-1 at 90, 92, 94 with ECF 218-1 at 17, 18,
20–21. The underlying details indicate work related to pre-complaint investigation
related to other claims or another case.
Based on this record, the Court finds plaintiffs’ reimbursement request
for Elite’s purported services largely outside the bounds of reasonably incurred
expenses under the URA. To compensate for the lack of billing judgment,
non-compensable business development and administrative work, vague entries,
incorrectly assigned ECF numbers, and the unexplained alteration of the original
billing records, the Court reduces plaintiff’s’ reimbursement request by 85%–
awarding a total of $10,476.00 in reimbursement for Elite’s claimed services.
re TOC and Cover page”); id. at 17 (“Email to Dana Hess re Gebhard maps [] Email with map (wrong
map) [] T/c to Dana wrong map check number [] Resend Email with correct map [] Download, print
and forward on to Office []”); id. at 17 (“Email requesting address for billing”; “Return email with
billing info”; “T/c from Office re maps for exhibits and other instructions”; “Email 7 maps to Office
due to size”); id. at 19 (“Review Email from Office re the 9 Exhibits I don’t have”; “Email from Office
Re Finding of Facts and Final Cover”; “Review Email from Office Re SJ filing of DOJ”; “forward [bill]
to Office for payment”); id. at 20 (“Review [E]mail[s] from office”).
40The billing records include other “complaint”-related exemplary entries post-dating the amended
complaint, captioned: “Performing work assignments on case.” See, generally ECF 218-1 at 12–15
(after hundreds of hours billed for researching property records and assisting in filing the extensive
complaint, Elite billed significant hours reviewing, researching, or pulling the as-filed exhibits);
see also id. at 17 (July 10, 2017 entry “Email from Office Re Arnold am. complaint”); id. at 19
(Aug. 19, 2017 entry for “Email from Office Re Filed Complaint copy”).
27
B. Other Expenses
Plaintiffs additionally seek reimbursement of $5,744.17 for other expenses,
including: $5,623.37 claimed by Mr. Edwards for travel, lodging, food, court fees,
and copying; and $120.80 charged by Elite for printing and copying. Save court
fees, the government objects, citing plaintiffs’ failure to substantiate the alleged
expenses as well as demonstrate their reasonableness and necessity. In response,
plaintiffs do not offer additional supporting documentation or dispute the
government’s calculations.
1. Travel & Miscellaneous Expenses
Of the $5,160.02 in litigation expenses claimed by plaintiffs (excluding the
$463.35 in court fees), $3,874.26 were reportedly incurred prior to the filing of the
original complaint, and $4,275.33 were incurred before the amended complaint was
filed in March 2016. These expenses include travel, lodging, and food purportedly
incurred during counsel’s trips to counties near the subject railroad, as well as
printing, copying, and postage. As noted supra, this case did not require any travel
for in-person proceedings or depositions. Indeed, counsel’s claimed travel expenses
are largely attributed to counsel’s effort to generate business, recruit clients, and
vet potential claims. As such, they do not qualify as reimbursable expenses under
the URA.
Moreover, the claimed expenses are not attributed to any plaintiffs, let alone
prevailing landowners. Although roughly 15 entries are designated as “complaint
research” or “investigation,” the descriptions include meals, hotel expenses, mileage,
printing, and postage or shipping. See ECF 209-1 at 4–8. Put simply, plaintiffs
failed to meet their burden of demonstrating the reasonableness of the requested
reimbursement. On this record, the Court finds the pre-amended complaint
expenses non-compensable, excluding the undisputed court filing fees in the amount
of $463.35.
After filing the amended complaint, Mr. Edwards reportedly incurred
$884.69 in expenses, including $519.19 in printing and two invoices totaling
$365.50 described as “Litigation Support Vendors.” See ECF 209-1 at 26, 34. The
two vendor entries appear to include certain research relating to the claims book
and/or plaintiffs’ partial summary judgment motion. The invoices do not detail
the nature and scope of the underlying services performed, leaving the Court
to speculate whether and to what extent these charges are attributable to
compensable work. On this record, the Court, in its discretion, awards 20% of
the purported research charges, in the amount of $73.10.
28
2. Elite Copying Charges
Counsel also seeks a total of $120.80 billed by Elite for printing and copying.
Excluding an unaccounted for $11.00 entered on September 7, 2015, the remaining
copying entries accompany the hourly billing, listed in the format of “[XX] Copies
@ $0.1” or “[XX] Color Copies @ $0.25.” See generally ECF 218-1. Presumably, the
copying was to facilitate Elite’s rendering of its services to Mr. Edwards. The fact
that counsel present these copying charges as outside contractor bills does not
change the nature of these expenses as non-compensable administrative overhead.
Regardless of counsel’s contractual arrangement with Elite, the Court finds these
charges are not recoverable.
Reimbursable Litigation Expenses
As captured in the table below, with the foregoing adjustments, the Court
awards claimed litigation expenses in the amount of $11,012.45 as follows:
Requested Expenses Requested Amount Adjusted Award
Elite Service Fees $69,840.00 $10,476.00
Mr. Edwards Expenses $5,623.37 $536.45
Elite Copying Charges $120.80 $0
Total $11,012.45
V. Disclosure of Settlement Communication
One final matter merits attention. In support of plaintiffs’ URA application,
counsel appended over 100 pages of settlement-related correspondence clearly
marked “Confidential Settlement Communication Subject to FRE 408” dated
August 6, 2021. See ECF 209-4 at 4–112 (settlement letter from the government
and accompanying entry-by-entry objections to plaintiffs’ billing records under
negotiation). Plaintiffs’ URA application references and, at times, quotes
defendant’s settlement positions and includes a specific monetary settlement offer
by defendant’s counsel made during the then-ongoing negotiations. See ECF 208 at
22. Of note, the quoted August 6, 2021 letter specifies that the proposed settlement
amount had not been authorized by the United States Attorney General or their
duly authorized designee or the client agency. See ECF 209-4 at 5. Defendant
requests that this correspondence, and plaintiffs’ “summaries” of the same in the
fee application, be stricken from the record. See ECF 217 at 16.
Federal Rule of Evidence 408 generally proscribes the use of evidence of an
offer of compromise as an admission of the validity of a claim. Fed. R. Evid. 408.
Plaintiffs’ submission and citation to unauthorized and preliminary confidential
communications are intended to substantiate claimed statutory attorney’s fees and
29
litigation expenses. Such use runs afoul of this evidentiary rule.41 Additionally, in
a September 27, 2021 order directing the parties to provide an update on the status
of their negotiations, the Court stressed: “the parties shall not provide to the court
any dollar figures in the joint status report.” See ECF 156.
For these reasons, the Court strikes Exhibit 4 to plaintiffs’ URA application
(ECF 209-4) as well as plaintiffs’ improper references to the confidential settlement
communications (ECF 208 at 21–22).
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for attorney’s fees and expenses
is GRANTED–IN–PART and DENIED–IN–PART (ECF No 207). Specifically,
plaintiffs are awarded attorney’s fees in the aggregate amount of $111,215.87,
and litigation expenses in the amount of $11,012.45. The Court further STRIKES
Exhibit 4 to plaintiffs’ URA application (ECF 209-4) as well as plaintiffs’ improper
references to the confidential settlement communications (ECF 208 at 21–22).
The Clerk of the Court is DIRECTED to STRIKE Exhibit 4 to plaintiffs’ URA
application (ECF 209-4) as well as plaintiffs’ improper references to the confidential
settlement communications (ECF 208 at 21–22). The Clerk of the Court is
DIRECTED to enter JUDGMENT accordingly.
It is so ORDERED.
__________________
Armando O. Bonilla
Judge
41On this point, plaintiffs’ reliance on Biery v. United States, No. 07-675, 2012 WL 4497656 (Fed. Cl.
Sept. 27, 2012), is misplaced. Biery did not involve, and the Court did not address, the unilateral
public filing of confidential settlement communications let alone the disclosure of unauthorized
(and unapproved) specific monetary terms offered in the course of preliminary settlement
negotiations.
30