Bywaters v. United States , 684 F.3d 1295 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
ASHBURN BYWATERS, CARL LANCASTER,
BETTY L. HOHENBERGER, ORMAN RODERICK,
JUNE RODERICK, AND NAN O. BEELER,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-1032
__________________________
Appeal from the United States Court District Court
for the Eastern District of Texas in case no. 99-CV-0451,
Judge Leonard Davis.
__________________________
ON PETITION FOR REHEARING
__________________________
CECILIA FEX, Ackerson Kauffman Fex, PC, of Wash-
ington, DC, filed a petition for rehearing en banc for
plaintiffs-appellants.
ELLEN J. DURKEE, Attorney, Appellate Section, Envi-
ronment & Natural Resources Division, United States
Department of Justice, of Washington, DC, filed a re-
sponse to the petition for defendant-appellee.
BYWATERS v. US 2
Before RADER, Chief Judge, PLAGER and DYK, Circuit
Judges.
Opinion for the court filed by Circuit Judge DYK. Opinion
concurring in part and dissenting in part filed by Circuit
Judge PLAGER
DYK, Circuit Judge.
Plaintiffs-Appellants, Ashburn Bywaters et al. (“ap-
pellants”), petition for rehearing of our March 1, 2012,
decision in Bywaters v. United States, 670 F.3d 1221 (Fed.
Cir. 2012). In that decision we vacated the district court’s
award of attorneys’ fees and remanded for further consid-
eration. Among other things, we held that “absent un-
usual circumstances,” a district court may not adjust the
lodestar figure upwards or downwards to account for the
“amount involved and results obtained.” Id. at 1230.
However, we also held that “it is legitimate to consider
the ‘amount involved and results obtained’ in determining
a reasonable attorney fee award” by “consider[ing] this
factor when determining the reasonable number of hours
expended and the reasonable hourly rates of the attor-
neys.” Id. at 1231.
In their petition for rehearing, appellants urge that
this aspect of our decision in Bywaters endorses the use of
a strict proportionality test in calculating the lodestar
figure. Appellants misread our decision. The fee-shifting
provisions of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 (“URA”), 42
U.S.C. § 4654, allow for recovery of attorneys’ fees ade-
quate to permit people with small takings claims to
vindicate their rights with the assistance of competent
counsel. We in no way implied that attorneys’ fees would
3 BYWATERS v. US
not be available because of the small amount of the claim.
Rather, we held that in determining the reasonable
number of hours expended and the reasonable hourly
rate, the district court should consider the “amount in-
volved” in the case as well as other factors bearing on
reasonableness, such as the fact that litigation of these
types of disputes serves a greater purpose (vindicating
constitutionally protected property rights).
Just as “a district court is not free to mechanically ad-
just the lodestar figure downward based on [the amount
involved and results obtained],” id. (citing City of River-
side v. Rivera, 477 U.S. 561, 568-69 (1986)), so too a
district court cannot reduce the number of hours ex-
pended or the hourly rate in calculating the lodestar
figure using such a mechanical approach, see Kassim v.
City of Schenectady, 415 F.3d 246, 251-52 (2d Cir. 2005)
(holding that a district court may not mechanically reduce
the number of hours requested based upon “the belief that
the claimed hours were simply disproportionate [to the
amount involved], without regard to the reasonableness of
the attorney’s expenditure of time in responding to the
particular circumstances” (emphasis added)). Nonethe-
less, the “amount involved and results obtained” is a
factor to be considered in the reasonableness analysis.
See Bywaters, 670 F.3d at 1232 & n.8.
The petition for rehearing is denied.
Date: 7/11/12
United States Court of Appeals
for the Federal Circuit
__________________________
ASHBURN BYWATERS, CARL LANCASTER,
BETTY L. HOHENBERGER, ORMAN RODERICK,
JUNE RODERICK, AND NAN O. BEELER,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-1032
__________________________
Appeal from the United States Court District Court
for the Eastern District of Texas in case no. 99-CV-0451,
Judge Leonard Davis.
__________________________
ON PETITION FOR REHEARING
__________________________
PLAGER, Circuit Judge, concurring-in-part and dissenting-
in-part.
In response to the petition for panel rehearing, the
majority, though denying the request for rehearing, has
issued an addition to the opinion in the case. 1 The addi-
1 This could also be considered a grant of the peti-
tion for the limited purpose of clarifying the opinion.
BYWATERS v. US 2
tion confirms that the fee-shifting statute is intended “to
permit people with small takings claims to vindicate their
rights with the assistance of competent counsel,” and
notes that in determining reasonableness of the attorney
award courts should take into account that “litigation of
these types of disputes serves a greater purpose (vindicat-
ing constitutionally protected property rights).” Slip. Op.
at 3. Exactly so.
The addition then goes on to instruct that “‘a district
court is not free to mechanically adjust the lodestar figure
downward based on [the amount involved and results
obtained].’” Id. (citation omitted). That of course was the
error in the district court’s original 50% reduction of its
lodestar award, an error that this court corrected on
appeal. Nor can “a district court . . . reduce the number of
hours expended or the hourly rate in calculating the
lodestar figure using such a mechanical approach.” Id.
(citation omitted). Again, exactly so.
The addition then concludes with the following sen-
tence: “Nonetheless, the ‘amount involved and results
obtained’ is a factor to be considered in the reasonable-
ness analysis.” Id. If by this the majority means that a
district court should evaluate “the reasonableness of the
attorney’s expenditure of time in responding to the par-
ticular circumstances” of her case (see the parenthetical
quote from the 2d Circuit, id. at 3), that seems inherently
sensible. If the nature of the case hardly warrants the
elaborate time and effort allegedly spent by the plaintiff’s
attorney, that suggests the attorney is either padding the
bill or was not competent to handle the case in the first
place. Even if the Government lost the case, it should not
be stuck with an excessive or unjustified award for the
winning attorney.
3 BYWATERS v. US
Here, there is no indication that the winning attor-
neys were anything but competent; indeed, the evidence is
that they were chosen for their particular competence in
this type of case. The trial judge expressly determined
that under the circumstances of this case both the hours
claimed and the attorneys’ rate were reasonable, a deter-
mination that by definition incorporates this factor of
“amount involved and results obtained.” The case was
complex and involved many small property claims con-
solidated into one case. The panel’s addition to the opin-
ion confirms my view that no remand is called for and,
while I agree with what is said here as I understand it, I
continue to dissent from the original panel opinion order-
ing a remand, as well as from the overturning of the trial
court’s reasoned determination regarding the relevant
market for pricing the attorneys’ services.