Biery v. United States , 818 F.3d 704 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
DOROTHY L. BIERY, FOR HERSELF AND AS
REPRESENTATIVE OF A CLASS OF SIMILARLY
SITUATED PERSONS,
Plaintiff
GORDON HOLLOWAY, AS SUCCESSOR AND
REPRESENTATIVE OF DECEDENT GEORGE A.
HOLLOWAY, STACY E. JUDY TRUST, DATED
MARCH 7, 1994,
Plaintiffs-Appellants
JULIA R. CHALFANT ETVIR TRUST, K.A.K.
FARMS, INC., AMERICAN PACKING
CORPORATION, COLLINS INDUSTRIES, INC.,
Plaintiffs
JERRAMY PANKRATZ AND ERIN PANKRATZ,
HUSBAND AND WIFE, DONALD E. WEDDELL AND
EVANGELINE WEDDELL, HUSBAND AND WIFE,
THAD J. COLLING, THICK GON MAR, TRUSTEE
OF THE THICK GON MAR REVOCABLE TRUST,
DATED NOVEMBER 7, 1995, MICHAEL A. WOODS
AND MARCIA J. WOODS, HUSBAND AND WIFE,
FLOYD E. MYERS AND BECKY MYERS, HUSBAND
AND WIFE, FOR THEMSELVES AND AS
REPRESENTATIVES OF A CLASS OF SIMILARLY
SITUATED PERSONS,
Plaintiffs-Appellants
v.
UNITED STATES,
2 BIERY v. US
Defendant-Appellee
______________________
2014-5084
______________________
Appeal from the United States Court of Federal
Claims in Nos. 1:07-cv-00675-NBF, 1:07-cv-00693-NBF,
Senior Judge Nancy B. Firestone.
______________________
Decided: March 23, 2016
______________________
MARK F. HEARNE II, Arent Fox, LLP, Clayton, MO,
argued for plaintiffs-appellants. Also represented by
LINDSAY S.C. BRINTON, STEPHEN SHARP DAVIS, MEGHAN
SUE LARGENT; DEBRA J. ALBIN-RILEY, Los Angeles, CA.
TAMARA N. ROUNTREE, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOHN C. CRUDEN.
______________________
Before PROST, Chief Judge, NEWMAN and STOLL, Circuit
Judges.
PROST, Chief Judge.
Plaintiffs appeal from an order of the Court of Federal
Claims awarding them attorney fees under the fee shift-
ing provisions of the Uniform Relocation Assistance and
Real Property Act of 1970, 42 U.S.C. § 4654(c). Plaintiffs’
counsel asserts that the Court of Federal Claims erred
when it made a number of reductions to its requested fee
award. Also pending before this court are plaintiffs’
motion to supplement the record and plaintiffs’ motion to
order payment of the uncontested attorney fee amount.
BIERY v. US 3
For reasons discussed below, plaintiffs’ motion to supple-
ment the record is denied, and the judgment of the Court
of Federal Claims is affirmed. Because we affirm the
judgment below, plaintiffs’ motion for payment of uncon-
tested attorney fees is denied as moot.
BACKGROUND
In 2007, thirteen Kansas landowners brought suit in
the Court of Federal Claims against the United States.
Plaintiffs alleged that the government had taken their
land without just compensation in violation of the Fifth
Amendment after the conversion of a rail corridor to a
trail under the National Trail Systems Act, 16 U.S.C.
§ 1247(d). The cases were consolidated the following year.
Five years later, the parties cross-moved for summary
judgment on the issue of liability. The Court of Federal
Claims granted summary judgment in favor of the United
States concerning the claims of five plaintiffs and dis-
missed those claims. 1 The Court of Federal Claims then
certified questions to the Kansas Supreme Court concern-
ing the scope of railroad easements in Kansas. On Sep-
tember 23, 2010, after briefing and holding oral argument
on the certified questions, the Kansas Supreme Court
determined that it lacked jurisdiction to accept certified
questions from the Court of Federal Claims and dismissed
the case.
1 On June 4, 2014, we reversed the Court of Federal
Claims’ summary judgment order regarding three of the
five plaintiffs. Biery v. United States, 753 F.3d 1279 (Fed.
Cir. 2014). Those claims are still pending. For purposes
of this appeal and for consistency with the opinion below,
we will refer to these plaintiffs as “the unsuccessful
plaintiffs” as any potential fee award for work done on
their behalf is not at issue here.
4 BIERY v. US
The remaining plaintiffs subsequently refiled their
motion for summary judgment on the issue of liability
with the Court of Federal Claims. On June 9, 2011, the
Court of Federal Claims granted plaintiffs’ motion. After
the Court of Federal Claims issued its opinion, plaintiffs’
counsel (“counsel”) requested attorney fees under the
Uniform Relocation Assistance and Real Property Act of
1970, 42 U.S.C. § 4654(c). In response, the Court of
Federal Claims instructed counsel to file a motion for
partial summary judgment to determine the method by
which the attorney fee award would be calculated.
In its submission, counsel requested that the Court of
Federal Claims apply the “national” rate charged by its
firm for all work completed at the prevailing market rate.
According to counsel, the use of current, rather than
historical, rates was based on the contingent nature of the
representation, where payment does not take place until
successful completion of the case. In its contingent fee
agreement with clients, counsel explained that fees were
ordinarily paid when they are accrued, usually on a
monthly basis. However, the use of rates in effect at the
end of the case, rather than the rates in effect when the
work took place, would be used based on “the risk that
there will be no recovery and that, if a recovery is award-
ed, the Firm may not be reimbursed for the expenses until
some time in the future.” J.A. 944.
On November 27, 2012, the Court of Federal Claims
issued an opinion on the requested summary judgment
motion. In its opinion, the Court of Federal Claims de-
termined that it would calculate attorney fees using the
lodestar method, where a reasonable number of hours
expended is multiplied by the prevailing rate in the
relevant community. The Court of Federal Claims then
determined that, for purposes of the case, the hourly rate
for work primarily done in St. Louis would be based on
the prevailing market rate in St. Louis, Missouri. The
Court of Federal Claims noted that, at that time, it could
BIERY v. US 5
not, “without further evidence, rule on specific reasonable
rates for St. Louis.” J.A. 17. The Court of Federal Claims
also determined that, due to the “no-interest rule,” histor-
ical rates, rather than rates in force at the end of litiga-
tion, would be used to compute a final award. See Library
of Congress v. Shaw, 478 U.S. 310, 311 (1986).
Counsel subsequently moved for summary judgment
requesting $2,017,987 in attorney fees and $201,924 in
costs. Counsel based its fee request, in part, on rates in
effect in the Washington D.C. metropolitan area at the
time of its request based on the Kavanaugh Matrix, an
alternative to the Adjusted Laffey Matrix maintained by
the United States Attorney’s Office. 2 Counsel did not
submit any evidence regarding the computation of rates
for the St. Louis area. The government cross-moved for
summary judgment on the issue of the appropriate hourly
rate.
On January 24, 2014, the Court of Federal Claims is-
sued its opinion on attorney fees and costs. In determin-
ing the appropriate number of hours, the Court of Federal
Claims made a number of adjustments. Specifically, the
2 The parties and cited cases use various terms for
these two matrices. See, e.g., Bywaters v. United States,
670 F.3d 1221, 1226 n.4 (Fed. Cir. 2012) (referring to the
Kavanaugh matrix as the “Updated Laffey Matrix”);
Rodriguez v. Sec. of Health & Human Servs., 632 F.3d
1381, 1384 (Fed. Cir. 2011) (using the terms “Laffey
Matrix” and “Adjusted Laffey Matrix” interchangeably);
Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d
694, 709–10 (3d Cir. 2005) (referring to “the U.S. Attor-
ney’s Matrix” as “ICO’s updated Laffey Matrix”). For
clarity, we refer to the matrix maintained by the United
States Attorney’s office as the “Adjusted Laffey Matrix”
and the matrix developed by Dr. Michael Kavanaugh as
the “Kavanaugh Matrix.”
6 BIERY v. US
Court of Federal Claims found that some the of hours
spent on the argument before the Kansas Supreme Court
were duplicative, and that the number of hours spent on
calculating the attorney fees and costs were excessive.
Consequently, the Court of Federal Claims reduced the
number of hours spent on those tasks by approximately
75% and 80%, respectively.
In addition, in order to avoid compensating counsel
for work done on claims which had been dismissed, the
Court of Federal Claims reduced the number of hours
expended on the litigation leading up to the first sum-
mary judgment motion by 30%. The Court of Federal
Claims noted that it made this reduction “[r]ecognizing
the validity of plaintiffs’ contention that there were over-
lapping issues between the successful and unsuccessful
plaintiffs.” J.A. 35. Viewing the number of hours ex-
pended on the remainder of the litigation to be excessive,
the Court of Federal Claims further reduced those hours
by 10%.
To determine the appropriate billing rate, the Court of
Federal Claims held that two distinct rates should apply.
For hours expended from the commencement of litigation
until 2010, when plaintiffs’ lead counsel was affiliated
with a St. Louis law firm, local St. Louis rates should
apply. For the period after 2010, when plaintiffs’ lead
counsel moved to a law firm based in Washington D.C.,
local Washington D.C. rates would apply. The Court of
Federal Claims determined that, at that time, there was
“ample evidence” to determine a St. Louis rate and used a
rate based on four attorney fee awards by district courts
in the Eastern District of Missouri. J.A. 36–39. For work
taking place in Washington D.C., the Court of Federal
Claims used the Adjusted Laffey Matrix rate, noting that
this rate had been used in awarding attorney fees to
counsel’s firm in two other district court litigations.
BIERY v. US 7
In addition to making reductions to the requested bill-
ing rate and the number of hours, the Court of Federal
Claims made a 30% reduction to costs incurred before the
summary judgment motion to account for expenses in-
curred on the unsuccessful claims.
On January 30, 2014, six days after the Court of Fed-
eral Claims issued its attorney fee order, counsel submit-
ted a request under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to obtain the government’s time
entry records and costs regarding 101 distinct cases,
including the instant cases. Counsel also filed a motion
for reconsideration with the Court of Federal Claims on
February 5, 2014. The motion made no reference to the
then-pending FOIA request. The Court of Federal Claims
denied the motion on April 1, 2014.
Counsel timely brought this appeal challenging a
number of cuts made by the Court of Federal Claims. On
September 15, 2015, after the appeal was filed, the gov-
ernment responded to counsels’ FOIA request and provid-
ed its time summaries for the instant cases. Shortly
thereafter, counsel moved to supplement the record with
this new information.
We have jurisdiction of this appeal under 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
I
We review the Court of Federal Claims’ attorney fee
determination for an abuse of discretion. Haggart v.
Woodley, 809 F.3d 1336, 1354 (Fed. Cir. 2016). We review
its underlying legal conclusions de novo. Id. “An abuse of
discretion exists when the trial court’s decision is clearly
unreasonable, arbitrary or fanciful, or is based on clearly
erroneous findings of fact or erroneous conclusions of
law.” Lazare Kaplan Int’l, Inc. v. Photoscribe Techs., Inc.,
714 F.3d 1289, 1293 (Fed. Cir. 2013) (internal quotation
8 BIERY v. US
marks and citations omitted).
Though a trial court has discretion in determining a
fee award, it must “provide a concise but clear explana-
tion of its reasons for the fee award.” Hensley v. Ecker-
hart, 461 U.S. 424, 437 (1983). A fee award that is
determined through the use of a lodestar calculation
carries a “strong presumption” that it represents a “rea-
sonable” attorney fee. Bywaters v. United States, 670
F.3d 1221, 1229 (Fed. Cir. 2012) (citing City of Burlington
v. Dague, 505 U.S. 557, 562 (1992)). Departures from the
lodestar figure, once calculated, must be supported by
“specific evidence” justifying the award. Perdue v. Kenny
A. ex rel. Winn, 559 U.S. 542, 553 (2010). Ultimately, a
fee award must “be adequate to attract competent coun-
sel,” but must not “produce windfalls to attorneys.”
Hensley, 461 U.S. at 444 (internal quotation marks and
citations omitted).
II
As a threshold issue, we must decide whether to grant
counsel’s motion to supplement the record. In general, an
appellate court’s review is limited to the record presented
at the court below. See Del. Valley Floral Grp. v. Shaw
Rose Nets, LLC, 597 F.3d 1374, 1380 n.1 (Fed. Cir. 2010).
However, we do have authority to supplement the record
in rare instances, should the circumstances of the case
require it. See id. (citing Dickerson v. Alabama, 667 F.2d
1364, 1367 (11th Cir. 1982)).
Counsel argues that supplementing the record would
be in the interests of justice because the government’s
time-keeping records for the instant cases are relevant to
the reasonableness of the fees requested. Counsel also
asserts that the records were not available earlier because
the government did not respond to the FOIA request until
the appeal was pending, and twenty months after counsel
made its first request. Consequently, counsel was unable
BIERY v. US 9
to provide this information to the Court of Federal
Claims.
Under FOIA, a government agency must provide an
initial response to a request within twenty days of receipt.
5 U.S.C. § 552(a)(6)(A)(i). There is no dispute that the
government’s response to the initial request was not
timely. However, the initial request was made after the
Court of Federal Claims issued its initial attorney fee
determination.
Though counsel is correct that it filed the FOIA re-
quest before the Court of Federal Claims’ opinion on
attorney fees was made final, the timing of the request
indicates that the Court of Federal Claims would not have
been in a position to consider the documents in deciding
the attorney fee request, even if the government had
immediately responded.
Had the government responded immediately, coun-
sel’s request to the Court of Federal Claims to consider
the government’s records would necessarily have been
part of its motion for reconsideration. Such motions are
governed by Rule 59(a)(1), R.C.F.C. Under Rule 59(a)(1),
a court, in its discretion, “may grant a motion for recon-
sideration when there has been an intervening change in
the controlling law, newly discovered evidence, or a need
to correct clear factual or legal error or prevent manifest
injustice.” Young v. United States, 94 Fed. Cl. 671, 674
(Fed. Cl. 2011). A motion for reconsideration must also be
supported “by a showing of extraordinary circumstances
which justify relief.” Caldwell v. United States, 391 F.3d
1226, 1235 (Fed. Cir. 2004) (internal quotation marks and
citations omitted).
Counsel has presented arguments as to why this in-
formation was unavailable between January 30, 2014,
when it initially filed its FOIA request, and September
15, 2015, when it received the relevant documents from
the government. However, counsel has not adequately
10 BIERY v. US
explained why it did not seek this information sooner.
Notably, counsel’s motion for reconsideration before the
Court of Federal Claims did not even make reference to
its then-pending FOIA request.
If, as counsel argues, this information was relevant to
the determination of a reasonable number of hours, the
FOIA request should have been filed before the initial
attorney fee motion, not after the motion had been decid-
ed. Under these circumstances, even if counsel had been
able to present this new evidence to the Court of Federal
Claims when it filed its motion for reconsideration, the
Court of Federal Claims would have been within its
discretion to deny the motion.
In sum, the information could have been requested in
a timely manner in order to influence the underlying
decision. Because counsel’s submission is based on a
request that took place after the Court of Federal Claims’
fee order, there is no basis to grant counsel’s motion to
supplement the record.
III
With regards to the merits of the fee award, counsel
challenges the cuts made based on work done on behalf of
the unsuccessful plaintiffs, the Court of Federal Claims’
use of the Adjusted Laffey Matrix, the use of historical
rates, its determination of the standard St. Louis hourly
rate, and reductions to the work done for the Kansas
Supreme Court argument and fee motions.
A
Counsel argues that the Court of Federal Claims
erred when it reduced the number of hours and costs
awarded by 30% to take into account work done on behalf
of the unsuccessful plaintiffs. Counsel characterizes this
reduction as an overall adjustment to the lodestar figure
that must be supported by specific evidence under Perdue.
BIERY v. US 11
Counsel’s characterization of the reduction is incor-
rect. The Court of Federal Claims did not make an over-
all reduction of the final award, but, rather, an overall
reduction in the number of hours. Though the end result
may be mathematically identical, the factors a court takes
into account are different, depending on which aspect of
the award is under consideration. “[T]he lodestar figure
includes most, if not all, of the relevant factors constitut-
ing a ‘reasonable’ attorney’s fee . . . .” Pennsylvania v.
Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546,
566 (1986). These factors include the measure of success
achieved by a party. See id. at 562 n.7.
There is no dispute that work done on behalf of the
unsuccessful plaintiffs is not recoverable. “Hours that are
not properly billed to one’s client are also not properly
billed to one’s adversary pursuant to statutory authority.”
Hensley, 461 U.S. at 434 (citation and internal quotation
marks omitted). When multiple claims are brought in a
single litigation and involve common questions of law, it
may be difficult, if not impossible, to separate out the
hours expended on each claim. However, contrary to
counsel’s assertion, this does not compel the conclusion
that all work involved is always compensable. A fee
award is subject to a court’s discretion and a court “may
attempt to identify specific hours that should be eliminat-
ed, or it may simply reduce the award to account for the
limited success.” Id. at 436–37.
Though a court may reduce an award, it should not do
so in a rigid, mechanical way. Hubbard v. United States,
480 F.3d 1327, 1333–34 (Fed. Cir. 2007). Here, the Court
of Federal Claims did not simply reduce the number of
hours based on the number of successful claims but
instead came to a 30% reduction after “[r]ecognizing the
validity of plaintiffs’ contention that there were overlap-
ping issues between the successful and unsuccessful
plaintiffs.” J.A. 35. This reduction, based on the degree
12 BIERY v. US
of success obtained, was within the Court of Federal
Claims’ discretion.
Therefore, the Court of Federal Claims did not abuse
its discretion when it reduced the hours and costs by 30%
in order to take into account work done on behalf of the
unsuccessful plaintiffs.
B
Counsel argues that the Court of Federal Claims
abused its discretion by not applying the Kavanaugh
Matrix and instead applying the lower Adjusted Laffey
Matrix.
In Laffey v. Northwest Airlines, Inc., the District
Court for the District of Columbia set out a matrix of
reasonable rates for attorneys in the Washington, D.C.
metropolitan area who were engaged in complex federal
litigation at that time. See 572 F. Supp. 354, 371–72
(D.D.C.), aff’d in part, rev’d in part, 746 F.2d 4 (D.C. Cir.
1984), overruled by Save Our Cumberland Mountains,
Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) (en banc).
This matrix of fees has become known as the “Laffey
Matrix” and its use has been expressly endorsed by the
Court of Appeals for the D.C. Circuit as a “useful starting
point” for computing attorney fees. See Covington v.
District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995).
We have not had occasion to determine whether the
Laffey Matrix is an appropriate starting point for fee
awards, but have acknowledged its use by the Court of
Federal Claims. See Bywaters, 670 F.3d at 1226 & n.4
(Fed. Cir. 2012); see also Rodriguez v. Sec’y of Health &
Human Servs., 632 F.3d 1381, 1384–85 (Fed. Cir. 2011)
(distinguishing Vaccine Act cases from “complex litiga-
tion” described in Laffey).
Because the matrix proposed by Laffey was based on
prevailing market rates for a single point in time, courts
have found it necessary to determine similar matrices for
BIERY v. US 13
other years using the Laffey rates as a starting point. See
Save Our Cumberland Mountains, Inc., 857 F.2d at 1525.
To this end, two competing approaches have been applied
by district courts and the Court of Federal Claims.
The first approach is for courts to use the Adjusted
Laffey Matrix which is maintained by the United States
Attorney’s Office. See, e.g., Rooths v. District of Columbia,
802 F. Supp. 2d 56, 62 (D.D.C. 2011); First Fed. Sav. &
Loan Assoc. of Rochester v. United States, 88 Fed. Cl. 572,
586 (Fed. Cl. 2009). Adjustments to this version of the
matrix are based on changes to the cost of living in the
Washington D.C. metropolitan area as measured by the
Consumer Price Index for All Urban Consumers
(“CPI-U”). United States Attorney’s Office, District of
Columbia, Laffey Matrix – 2014-2015, at 1,
http://www.justice.gov/usao/dc/divisions/Laffey%20Matrix
_2014-2015.pdf. The CPI-U measures the average change
in price of a market basket of goods and services including
food, shelter, and medical and legal services. See Bureau
of Labor and Statistics, CPI Detailed Report: Data for
December 2015, at 14, 203,
http://www.bls.gov/cpi/cpid1512.pdf.
The second approach is to use the “Kavanaugh Ma-
trix,” advanced by economist Dr. Michael Kavanaugh,
which makes adjustments to the Laffey Matrix based on
changes to the Legal Services Index (“LSI”) component of
the Consumer Price Index (“CPI”). Bywaters, 670 F.3d at
1226 & n.4; Eley v. District of Columbia, 999 F. Supp. 2d
137, 150 (D.D.C. 2013), vacated and remanded by 793
F.3d 97 (D.C. Cir. 2015). The motivation behind these
adjustments is to provide adjustments that solely capture
the market for legal services and do not take other con-
sumer goods into account, such as food, housing, gas, and
clothing. See Salazar v. District of Columbia, 750 F.
Supp. 2d 70, 73 (D.D.C. 2011).
14 BIERY v. US
Both approaches are subject to criticism and no cir-
cuit has expressly adopted one over the other. See Sala-
zar ex rel. Salazar v. District of Columbia, 809 F.3d 58,
64–65 (D.C. Cir. 2015); Bywaters, 670 F.3d at 1226 & n.4;
Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d
694, 709–10 (3d Cir. 2005). The Adjusted Laffey Matrix
has been criticized because it takes a broad basket of
goods and services into account, including food and fuel,
and may thus yield results that are higher or lower than
the average rates private consumers of legal services in
the Washington, D.C. metropolitan area actually pay. See
Salazar v. District of Columbia, 123 F. Supp. 2d 8, 14–15
(D.D.C. 2000). The Kavanaugh Matrix has been criticized
for its use of the national CPI, and may thus not be an
accurate measure of the relevant community, here the
Washington D.C. metropolitan area. See Eley, 999 F.
Supp. 2d at 152.
The criticisms levied against both the Adjusted Laffey
Matrix and the Kavanaugh Matrix are well-founded and
reasonable. Conversely, the arguments for each are also
compelling. Consequently, we decline to exclusively
endorse either for use in a lodestar calculation. The
decision to use either matrix as a starting point to deter-
mine a lodestar is within the discretion of a trial court.
See Interfaith Cmty. Org., 426 F.3d at 709 (“[T]he original
Laffey Matrix is an appropriate starting point . . . .”);
Covington, 57 F.3d at 1109 (noting that the Adjusted
Laffey Matrix provides a “useful starting point.”). Howev-
er, it would be an abuse of discretion for a court to blindly
use either matrix without considering all the relevant
facts and circumstances. See Eley v. District of Columbia,
793 F.3d 97, 104 (D.C. Cir. 2015). As previously noted,
though a court has broad discretion in computing a lode-
star, the court must “provide a concise but clear explana-
tion of its reasons for the fee award.” Hensley, 461 U.S. at
437. This includes the decision to use either the Adjusted
BIERY v. US 15
Laffey Matrix or the Kavanaugh Matrix and any depar-
ture, or no departure, from the rates they suggest.
Here, the Court of Federal Claims compared the Ad-
justed Laffey Matrix rate with fees awarded to counsel’s
law firm in two district court cases and found those rates
lower than, if not comparable to, the Adjusted Laffey
rates. In doing so, the Court of Federal Claims explained
that the Adjusted Laffey rate was sufficient to adequately
compensate counsel, but not so high as to be a “windfall”
to counsel. See Hensley, 461 U.S. at 444.
Counsel argues that it was an abuse of discretion for
the Court of Federal Claims to rely on fee awards from
other jurisdictions in determining the fee award in this
case. However, because counsel had previously requested
fees based on a “national” rate, the use of awards from
other jurisdictions as a comparative base was reasonable.
Therefore, the Court of Federal Claims did not abuse
its discretion in its determination that the Adjusted
Laffey Matrix provided a reasonable rate for the lodestar
calculation.
C
Counsel asserts that it was legal error for the Court of
Federal Claims to find that the “no-interest rule” applied
to its fee request and to require that historical rates be
used.
Under the no-interest rule, recovery of interest on an
award of attorney fees is barred unless an award of inter-
est is “expressly and unambiguously authorized by stat-
ute.” Chiu v. United States, 948 F.2d 711, 719 (Fed. Cir.
1991). This rule has been broadly read to reach any
attempt to provide additional compensation based on a
delayed payment. Shaw, 478 U.S. at 322 (“Interest and a
delay factor share an identical function. They are de-
signed to compensate for the belated receipt of money.”).
“Thus, whether the loss to be compensated by an increase
16 BIERY v. US
in a fee award stems from an opportunity cost or from the
effects of inflation, the increase is prohibited by the no-
interest rule.” Id.Counsel argues that the fee award should reflect a fee
that a private client would pay in the private market and
that, in the private market, the appropriate rates to be
used are those in effect when payment is made. This
argument is undercut by counsel’s own fee agreement,
which notes that fees are ordinarily paid when the work is
performed, not at the end of the case. According to the
agreement, the contingent nature of the representation
required a departure from the normal rule because “the
Firm may not be reimbursed for the expenses until some
time in the future.” J.A. 944. By its own language, this
departure is an attempt to obtain delay compensation and
is therefore barred by the no-interest rule. See Chiu, 948
F.2d at 720.
Therefore, the Court of Federal Claims did not err
when it applied historical rates under the no-interest rule.
D
Counsel argues that there was not sufficient evidence
for the Court of Federal Claims to determine a reasonable
rate for the St. Louis legal market. This argument is
primarily based on the Court of Federal Claims’ initial
statement that it could not, “without further evidence,
rule on specific reasonable rates for St. Louis.” J.A. 17.
According to counsel, the Court of Federal Claims’ later
statement that there was “ample evidence” available, J.A.
36, is in contradiction with this initial statement.
It was counsel’s burden to provide evidence tending to
show an appropriate rate in the St. Louis area. Hensley,
461 U.S. at 437. Counsel failed to provide any evidence
on this issue. In the absence of contradictory evidence,
the Court of Federal Claims applied rates based on four
district court cases from the Eastern District of Missouri.
BIERY v. US 17
This was not an abuse of discretion. When a party has a
burden of production, it must submit evidence in order to
meet the burden. When the burden has not been met, it
is not the responsibility of a court to delay proceedings
and request additional evidence from counsel; it rules on
the record before it. See Celotex Corp. v. Catrett, 477 U.S.
317, 323–24 (1986).
This is especially true here. Counsel was on notice of
the Court of Federal Claims’ intent to apply local St.
Louis rates in 2012. It was counsel, not the government,
that subsequently moved for a final fee award. Counsel
cannot now credibly claim that it was surprised when the
Court of Federal Claims did what it stated it would do
and based its rate calculation on the relevant information
available. It was counsel’s responsibility to produce
evidence rebutting the rate evidence presented. It failed
to do so.
Therefore, the Court of Federal Claims did not abuse
its discretion in its determination of an appropriate
hourly rate for the St. Louis legal market.
We have reviewed the remaining challenged fee re-
ductions, including the reduction in hours for work per-
formed in support of the Kansas Supreme Court
arguments and the fee award, and find that the Court of
Federal Claims has adequately supported them in its
opinion.
CONCLUSION
For the foregoing reasons, counsel’s motion to sup-
plement the record is denied. Counsel’s motion to order
payment of the uncontested legal fees and expenses is
denied as moot. The judgment of the Court of Federal
Claims is affirmed.
AFFIRMED
18 BIERY v. US
COSTS
Each party shall bear their own costs.