Haggart v. United States ( 2020 )

In the United States Court of Federal Claims
No. 09-103L
(Filed: August 12, 2020)
)
DANIEL and KATHY HAGGART, et ) Applications for award of attorneys’ fees
al., For Themselves and As ) and expenses under the Uniform
Representatives of a Class of Similarly ) Relocation Assistance and Real Property
Situated Persons, ) Acquisition Policies Act, 42 U.S.C. §
) 4654(c); jurisdiction; effect of earlier
Plaintiffs, ) award of fees in settlement agreement;
) fees not awardable to pro se litigants; fees
v. ) incurred to preserve and defend settlement
) against effort to overturn it;
UNITED STATES, ) reasonableness of fees and expenses
)
Defendant. )
Thomas S. Stewart, Stewart Wald & McCulley LLC, Kansas City, Missouri, for plaintiffs
Daniel Haggart and Kathy Haggart, et al. With him on the briefs were Elizabeth G. McCulley,
Stewart Wald & McCulley LLC, Kansas City, Missouri, Steven M. Wald and Michael J. Smith,
Stewart Wald & McCulley LLC, St. Louis, Missouri.
David C. Frederick, Kellogg, Hansen, Todd, Figel & Frederick, PLLC, Washington,
D.C., for plaintiffs Gordon A. Woodley and Denise L. Woodley.
Mary Crego Peterson, Hillis Clark Martin & Peterson P.S., Seattle, Washington, for
plaintiff Cleveland Square, LLC and twenty-five others.
Richard B. Sanders, Goodstein Law Group PLLC, Tacoma, Washington, for plaintiffs
Faramarz Ghoddoussi and Westpoint Properties, LLC.
Lucinda J. Bach, Trial Attorney, Natural Resources Section, Environment and Natural
Resources Division, United States Department of Justice, Washington, D.C., for defendant.
With her on the briefs were Prerak Shah, Deputy Assistant Attorney General, Environment and
Natural Resources Division, and Sarah Izfar, Trial Attorney, Natural Resources Section,
Environment and Natural Resources Division, United States Department of Justice, Washington,
D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Pending before the court in this protracted rails-to-trails takings class action are five
motions for legal fees and expenses. These motions follow a circuitous procedural history that
has engendered numerous opinions from this court and two separate opinions from the Federal
Circuit.1 As pertinent here, for a second time this court approved a settlement agreement on
January 26, 2018, but, anticipating an appeal, deferred pursuant to Rule 54(b) of the Rules of the
Court of Federal Claims (“RCFC”) any decision on the amount of related legal fees and costs
that might be awarded. See Haggart VIII, 136 Fed. Cl. at 81. The Federal Circuit subsequently
affirmed this court’s decision approving and enforcing the settlement agreement on November
27, 2019 but declined on jurisdictional grounds to consider any argument concerning attorney
fees and costs. See Haggart IX, 943 F.3d at 951. The pending motions now bring that issue
before the court.
BACKGROUND
The origins of the dispute underlying the pending motions concern land in the State of
Washington that was converted into a recreational trail pursuant to Section 208 of the National
Trails System Act Amendments of 1983, Pub. L. No. 98-11, § 208, 97 Stat. 42, 48 (codified in
relevant part at 16 U.S.C. § 1247(d)). Plaintiffs filed suit over a decade ago, alleging that the
conversion constituted a taking of their property without just compensation. Compl. ¶¶ 14, 18.
The court certified an initial class of over 500 members, which was subsequently split into six
subclasses. See Haggart II, 104 Fed. Cl. at 491. In 2012, the court ruled on cross-motions for
summary judgment, finding “the government liable to certain class members within Subclass
Two and Categories A through D of Subclass Four” while also granting “the government
summary judgment as to class claimants in Subclass Four, Category E.” Haggart VI, 131 Fed.
Cl. at 631 (citing Haggart III, 108 Fed. Cl. at 70).
After extensive mediation, the parties reached a settlement in February 2014. Of the 521
claimants and their 659 parcels of land, the settlement would dismiss the claims of 268 class
members without compensation and pay $110 million to the remaining 253 class members, plus
interest, attorneys’ fees, and litigation costs. See Haggart VIII, 136 Fed Cl. at 74. After a
fairness hearing in March 2014, the court approved the settlement and entered final judgment,
awarding legal fees to class counsel through a common fund. See generally Haggart IV, 116
Fed. Cl. 131.
1
This case has been the subject of nine reported decisions, including seven from this court
and two from the Federal Circuit. See Haggart v. United States, 89 Fed. Cl. 523 (2009)
(“Haggart I”); Haggart v. United States, 104 Fed. Cl. 484 (2012) (“Haggart II”); Haggart v.
United States, 108 Fed. Cl. 70 (2012) (“Haggart III”); Haggart v. United States, 116 Fed. Cl.
131 (2014) (“Haggart IV”), vacated and remanded sub nom. Haggart v. Woodley, 809 F.3d 1336(Fed. Cir. 2016) (“Haggart V”); Haggart v. United States, 131 Fed. Cl. 628 (2017) (“Haggart
VI”); Haggart v. United States, 133 Fed. Cl. 568 (2017) (“Haggart VII”); Haggart v. United
States, 136 Fed. Cl. 70 (2018) (“Haggart VIII”), aff’d, Haggart v. United States, 943 F.3d 943(Fed. Cir. 2019) (“Haggart IX”).
2
Two of the class members, Mr. and Mrs. Woodley (“the Woodleys”), objected to the
settlement and appealed this court’s final judgment. See generally Haggart V, 809 F.3d 1336.
Initially represented by Mr. Woodley himself, they put forward two main objections on appeal.2
First, they claimed that class counsel had failed to provide enough written information to enable
individual class members to verify the calculations determining how much of the total settlement
amount they were to receive. See id. at 1343, 1348. Second, they challenged the award of legal
fees based on a common fund approach. See id. at 1343, 1351-59. On appeal, the government
reversed course and, while it did not file its own appeal or raise any additional issues, filed a
brief supporting the Woodleys, contrary to its previous position during the fairness hearing. Id.
at 1343. On January 8, 2016, the Federal Circuit vacated this court’s approval of the settlement
because it determined that class counsel had provided to the Woodleys and class members
generally inadequate information for verifying their individual award allocations. Id. at 1351,
1359. After the Federal Circuit’s mandate issued on April 25, 2016, this court re-opened
discovery to rectify the deficiency of written notice to the class, enabling the Woodleys and other
class members to access detailed documentation that had not previously been made available to
them in electronic form. Haggart VI, 131 Fed. Cl. at 632. The informational defect that the
Federal Circuit had identified in this court’s prior approval of the settlement agreement was
cured during this period of discovery. See Haggart VIII, 136 Fed. Cl. at 77.
Throughout the proceedings until this time, none of the parties had suggested “that the
[s]ettlement [a]greement itself had been set aside, vacated, or altered, except potentially as to the
allocation of the individual amounts.” Haggart VIII, 136 Fed. Cl. at 74 (citation omitted). Then
for the first time, in an abrupt volte face in November 2016, the government indicated that it
considered the settlement agreement itself to be invalid. See Def.’s Resp. to Class Counsel’s
Request for Trial Setting at 2-4, ECF No. 227. Following up on that suggestion, on March 1,
2017, the government filed a motion for reconsideration seeking to undermine the basis of the
settlement agreement and render it invalid, see generally The United States’ Mot. for Recons. of
Certain Rulings on the Parties’ Cross[-]Mots. for Summary Judgment, ECF No. 244,
engendering a subsequent flurry of motions and proceedings that yielded two additional opinions
from this court and a second appeal.
To support its newfound position, the government relied on an indirectly related case in
the United States District Court for the Western District of Washington, Kaseburg v. Port of
Seattle.3 Emphasizing Kaseburg, the government sought reconsideration of liability
2
During the briefing stage of this first appeal, the Woodleys retained Mr. David Frederick
and his firm, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. (“Kellogg Hansen”), to
represent them, and they continued to do so in subsequent proceedings before this court and the
Federal Circuit. See Pls. Gordon and Denise Woodley’s Mot. for Attorneys’ Fees, Expenses, and
Costs at 3, ECF No. 360; see also Order Granting in Part and Denying in Part Mot. to Substitute
Attorney, ECF No. 222.
3
Kaseburg v. Port of Seattle, No. C14-0784 JCC, 2015 WL 6449305 (W.D. Wash. Oct.
23, 2015) (“Kaseburg I”); Kaseburg v. Port of Seattle, No. C14-0784 JCC, 2016 WL 4440959(W.D. Wash. Aug. 23, 2016) (“Kaseburg II”), aff’d, 744 Fed. Appx. 356 (9th Cir. 2018).
3
determinations made in Haggart III. See Haggart VI, 131 Fed. Cl. at 633. On May 4, 2017—in
Haggart VI—the court denied the government’s motion for reconsideration and granted an
opposing motion by class counsel to enforce the settlement agreement. See id. Then on July 24,
2017, the government moved for reconsideration of the court’s decision to enforce the settlement
agreement. See generally The United States’ Mot. for Recons. of May 4, 2017 Order (ECF No.
275) Granting Pls.’ Mot. to Enforce Settlement Agreement, ECF No. 291. Again relying on
Kaseburg, the government contended that the vast majority of class members were entitled to no
compensation because they purportedly owned no interest in the underlying property. See
Haggart VII, 133 Fed. Cl. at 572. On August 17, 2017—in Haggart VII—the court rejected the
government’s attempt “to negate the unconditional, comprehensive [s]ettlement [a]greement that
the government executed with the class.” Id. at 572.
Plaintiffs then sought approval of a renewed notice to the class regarding the settlement,
which the government opposed on the same grounds it had raised in its prior post-remand
motions. See Haggart VIII, 136 Fed. Cl. at 75. The court held a fairness hearing on December
18, 2017 in Seattle, Washington, in which numerous class members participated. Id. On January
26, 2018—in Haggart VIII—the court approved the settlement agreement and entered a partial
final judgment under Rule 54(b), enabling the government to appeal the settlement approval
immediately while reserving judgment on the matter of whether plaintiffs could recover statutory
legal fees and costs beyond those already contained within the settlement agreement itself. See
Haggart VIII, 136 Fed. Cl. at 81. Effectively, the court employed Rule 54(b) to bifurcate its
approval of the settlement agreement from any determination regarding legal fees and costs
outside the settlement agreement.
On the government’s subsequent appeal, the Federal Circuit affirmed this court’s
approval of the settlement on November 27, 2019 but declined to address the government’s
arguments regarding legal fees and costs on the jurisdictional ground that this court had not
previously acted regarding them. See Haggart IX, 943 F.3d at 951-52. The Federal Circuit’s
mandate issued on January 21, 2020. See ECF No. 347. On March 2, 2020, plaintiffs filed five
separate motions, representing four different plaintiffs or groups of plaintiffs,4 seeking statutory
legal fees and costs pursuant to the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (“Uniform Relocation Act”), 42 U.S.C. § 4654(c).5 Following
4
The five motions were filed by (1) class counsel; (2) the Woodleys; (3) individual class
members Mr. Farmarz Ghoddoussi and Westpoint Properties, LLC (“Westpoint”); and (4) a
separate collection of class members (hereinafter referred to collectively as “Cleveland Square”);
and (5) the Woodleys, who with the court’s leave, filed and briefed two separate motions
because they received representation by two different persons, first by Mr. Woodley himself and
later by Mr. David C. Frederick of Kellogg Hansen. See Order granting Motion for Leave to
File, ECF No. 354.
5
See Mot. for Attorneys Fees (“Class Counsel’s Mot.”), ECF No. 355; Mot. for Leave to
File Separate Mots. for Attorneys’ Fees, Expenses, and Costs, Ex. 1 (“Woodleys’ Pro Se Mot.”),
ECF No. 353; Mot. for Attorney Fees (“Woodleys’ Kellogg Hansen Mot.”), ECF No. 360; Mot.
4
an additional round of motions practice in which the government sought to compel the
production of retainer and fee agreements from class counsel,6 the government individually
responded to each of the fee motions on June 22, 2020.7 Plaintiffs filed replies on July 6, 2020.8
The motions are now ready for disposition.
STANDARDS FOR DECISION
The Uniform Relocation Act waives federal sovereign immunity with respect to legal
fees and costs in takings cases and mandates that when awarding a plaintiff compensation for a
taking by a federal agency, the court shall “reimburse such plaintiff for his reasonable costs,
disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees,
actually incurred because of such proceeding.” 42 U.S.C. § 4654(c) (emphasis added).
This is an unusual fee proceeding, but it is governed by settled law. Courts consider “a
number of factors” in determining the reasonableness of attorneys’ fees. Hubbard v. United
States, 480 F.3d 1327, 1332 (Fed. Cir. 2007) (citing Hensley v. Eckerhart, 461 U.S. 424, 436
(1983)). “[T]he most critical factor,” and the threshold inquiry to determine if all costs and fees
incurred may be reimbursed, “is the degree of success obtained.” Hensley, 461 U.S. at 436. That
factor favors the fee applicants, but other considerations appertain to this proceeding.
The fee applicants have the burden of production. See Hensley, 461 U.S. at 437; Rumsey
v. Department of Justice, 866 F.3d 1375, 1379 (Fed. Cir. 2017) (The party seeking fees “bears
the burden of . . . documenting the appropriate hours expended and hourly rates” and exercising
“billing judgment” in doing so.). That burden is “routinely satisf[ied]” by the “[s]ubmission of
invoices and billing records.” Rumsey, 866 F.3d at 1379; see also Lost Tree Village Corp. v.
United States, 135 Fed. Cl. 92, 96 (2017), appeal dismissed, 2018 WL 3545924 (Fed. Cir. Mar.
23, 2018). The materials thus provided must supply “sufficient detail” to permit the court “to
determine whether the hours, fees, and expenses are reasonable for any individual item
invoiced.” Preseault v. United States, 52 Fed. Cl. 667, 679 (2002). The court may also refer to
for Attorney Fees (“Ghoddoussi’s Mot.”), ECF No. 356; Mot. for Attorney Fees (“Cleveland
Square’s Mot.”), ECF No. 357.
6
See Order Granting in Part and Denying in Part Mot. to Compel, ECF No. 374.
7
See Def.’s Resp. to Class Counsel’s Mot., ECF No. 382; Def.’s Resp. to Woodleys’ Pro
Se Mot., ECF No. 381; Def.’s Resp. to Woodleys’ Kellogg Hansen Mot., ECF No. 380; Def.’s
Resp. to Ghoddoussi’s Mot., ECF No. 379; Def.’s Resp. to Cleveland Square’s Mot., ECF No.
378.
8
See Reply to Def.’s Resp. to Class Counsel’s Mot. (“Class Counsel’s Reply”), ECF No.
383; Reply to Def.’s Resp. to Woodleys’ Pro Se Mot. (“Woodleys’ Pro Se Reply”), ECF No.
386; Reply to Def.’s Resp. to Woodleys’ Kellogg Hansen Mot. (“Woodleys’ Kellogg Hansen
Reply”), ECF No. 385; Reply to Def.’s Resp. to Ghoddoussi’s Mot. (“Ghoddoussi’s Reply”),
ECF No. 384; Reply to Def.’s Resp. to Cleveland Square’s Mot. (“Cleveland Square’s Reply”),
ECF No. 387.
5
declarations made by other attorneys about the reasonableness of fees in a geographic area and
may likewise rely on its “own expertise to recognize applicable prevailing rates.” Morris v.
Secretary of Dep’t of Health and Human Servs., 20 Cl. Ct. 14, 29 (1990) (citation omitted). To
satisfy their burden, the applicants have submitted time details, fee invoices, and expense
records, along with declarations from counsel knowledgeable of rate practices in pertinent areas.
Fees incurred and paid by a client at an agreed rate are presumptively reasonable because
“in reaching agreement, lawyer and client have already considered and weighed all the relevant
factors.” Florida Rock Indus., Inc. v. United States, 9 Cl. Ct. 285, 290 (1985) (citing Laffey v.
Northwest Airlines, Inc., 746 F.2d 4, 24-26 (D.C. Cir. 1984) (“When fixed market rates already
exist, there is no good reason to tolerate the substantial costs of turning every attorneys[’] fee
case into a major ratemaking proceeding. In almost every case, the firms’ established billing will
provide fair compensation.”), overruled in part on other grounds by Save Our Cumberland
Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) (en banc)).
A further major reference point in a fee-shifting case involving the Uniform Relocation
Act can be supplied by the lodestar method. The lodestar figure is “the product of reasonable
hours times a reasonable rate” and there is a “strong presumption” that the lodestar represents a
reasonable fee. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546,
565 (1986); see also First Fed. Sav. & Loan Ass’n of Rochester v. United States, 88 Fed. Cl. 572,
587 (2009) (noting that the lodestar method is “[a] widely accepted mode of determining
reasonable attorneys’ fees” which “requires determining both the reasonable hourly rate and the
reasonable number of hours expended on the litigation”).
ANALYSIS
A. The Court’s Jurisdiction to Award Additional Fees9
The court must decide at the outset whether the settlement agreement’s provision for
statutory legal fees and costs categorically precludes any additional award for subsequent fees
and costs plaintiffs incurred to enforce and defend the agreement. The agreement does not create
such a categorical preclusion.
The 2014 settlement agreement specified that it “encompasses all existing claims,
disputed issues and/or demands for money damages or other relief (inclusive of all interest,
attorneys[’] fees, and other litigation expenses that have been or could be incurred), that were
asserted or could have been asserted in this action.” Mot. for Settlement, Ex. B (“Settlement
Agreement”) at 2, ECF No. 299. It also stated that the government would “pay statutory
9
The government’s responses to all five pending motions implicate the question of
whether the court possesses jurisdiction to award additional fees. With respect to jurisdiction,
unlike the subsequent discussion of what fees are recoverable and whether those sought are
reasonable, each motion raises similar arguments and each plaintiff is, for the most part,
similarly situated. Accordingly, the court will address this issue collectively without specific
consideration to each individual or group of plaintiffs.
6
attorneys’ fees and costs of $2,580,000.00 pursuant to the [Uniform Relocation Act].” Id. at 2-3.
These contractual provisions, in the government’s view, preclude the pending fee applications.
The government contends that the agreement, “by its express terms, allocated to
[p]laintiffs the risk that additional attorneys’ fees and costs might be incurred in the future.”
Def.’s Resp. to Class Counsel’s Mot. at 17. Accordingly, “[h]aving failed to expressly reserve in
the [s]ettlement [a]greement a right to seek additional [Uniform Relocation Act] fees and
expenses, [p]laintiffs cannot now rewrite the [a]greement to permit such recovery.” Id. at 17-18.
The government emphasizes that plaintiffs knew when they signed the agreement that “it was a
near-certainty that substantial additional attorney time would be necessary” because the
Woodleys had already objected at the fairness hearing and plaintiffs could well anticipate their
appeal. Id. at 18. Further, the government asserts that “[b]ecause this [c]ourt’s jurisdiction over
the settlement derives solely from the agreement itself, . . . there is no longer any issue as to
which the [c]ourt could conceivably exercise ancillary jurisdiction.” Id. at 17. Thus, in the
government’s view, “the [c]ourt lacks jurisdiction.” Id. at 16. Plaintiffs, on the other hand,
freely concede and agree that the settlement is binding on the parties as established by the prior
proceedings, but contend that it does not prevent them from seeking additional statutory fees and
costs “that were required simply and solely because of the government’s change in position.”
Class Counsel’s Mot. at 9.
Contrary to the government’s suggestion, this court’s jurisdiction does not and could not
stem merely from the settlement agreement itself. See Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (“[N]o action of the parties can confer
subject-matter jurisdiction upon a federal court.”). Moreover, what the agreement does not give
it cannot take away. The government is thus incorrect to assert that the settlement agreement’s
fixed terms dictate the court’s jurisdiction to award legal fees and costs pursuant to the Uniform
Relocation Act. Jurisdiction derives from the same sources that it has throughout the protracted
pendency of this litigation: the Tucker Act and the Uniform Relocation Act. Accordingly, the
court maintains jurisdiction over the Uniform Relocation Act fee dispute until the entry of final
judgment. As the Federal Circuit observed, “the [g]overnment may subsequently raise its
arguments with respect to [fees and costs] before the Court of Federal Claims.” Haggart IX, 943
F.3d at 95; see also Cygnus Telecomms. Tech., LLC v. TotalAxcess.com, Inc., 345 F.3d 1372,
1375 (Fed. Cir. 2003) (concluding that the trial court had jurisdiction in a suit for patent
infringement to enforce a judgment entered upon a settlement agreement against the former
defendant’s corporate successor, relying on Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 379 (1994), which ruled that a court maintains jurisdiction to “vindicate its authority
and effectuate its decisions”).10
Nor must the court alter the terms of the settlement agreement to award additional fees
and costs, as the government insists it would. See Def.’s Resp. to Class Counsel’s Mot. at 14-23.
The government is correct as to the “near-certainty” that some, perhaps considerable, additional
10
Kokkonen distinguished the situation where the settlement terms are included in the
court’s judgment from that where a settlement agreement had been made part of an order of
dismissal. See Kokkonen, 511 U.S. at 381.
7
attorney time would have been required to conclude the litigation at the time the settlement was
signed. Id. at 18. More expense would of course have been necessary to handle the first appeal
and wrap-up loose ends, and the settlement terms undoubtedly encompassed such costs.
Nevertheless, the agreement’s provisions are less comprehensive than the government is willing
to concede.
Litigation expenses incurred by plaintiffs to defend and enforce the agreement do not fall
within the scope of the agreement’s terms. The agreement did not and could not contemplate
that the government would aggressively contest its very validity. A careful reading of the
agreement’s text supports this conclusion. The language of the agreement states that it
“encompasses all existing claims, disputed issues and/or demands for money damages or other
relief (inclusive of all interest, attorneys[’] fees, and other litigation expenses that have been or
could be incurred), that were asserted or could have been asserted in this action.” Settlement
Agreement at 2 (emphases added). A demand for litigation expenses incurred to defend against
the government’s subsequent attempts to undermine the basis for the agreement was not an
existing claim, demand, or issue at the time of the agreement. No one at that time—presumably
not even the government itself—could anticipate the government’s unilateral move seeking to
scuttle the agreement it had negotiated. Similarly, the agreement stated that it only included
claims, disputes, or demands (and the related legal expenses) that “were or could have been
asserted.” Id. This language captures within its sweep only legal expenses related to claims,
disputes, or demands implicated before the date of the agreement. Thus, demands for legal fees
incurred to defend against a litigating position that had never been asserted and could not even
have been anticipated at the time of the agreement do not fit within these terms. Accordingly,
awarding additional legal fees and costs for such matters in no way upsets or contravenes the
express terms of the agreement.
B. Recoverable Fees & Costs
Having determined that it possesses jurisdiction to award legal expenses at this juncture
consistent with the terms of the agreement, the court must now decide what fees and costs,
contingent on their reasonableness, would be recoverable. Because each motion presents
somewhat factually unique circumstances on this point, the court will address them separately.
1. The class’s legal expenses.
The class members seek to recover “fees and costs incurred after the Federal Circuit’s
[o]pinion after the first appeal, after Haggart V was issued on January 8, 2016, including fees
reasonably incurred by Sidley Austin LLP . . . to enforce the [s]ettlement [a]greement through
the second appeal, which resulted in the Haggart IX opinion.” Class Counsel’s Mot. at 9 n.34.
The period following the first appeal was marked by considerable uncertainty about the
means to address the informational deficiency identified by the Federal Circuit. Class counsel
expended significant time and expense in curing that deficit. Notably, the class was certainly
aware at the time of the settlement of the Woodleys’ objections and could anticipate the appeal
that followed. The outcome of the appeal and the likelihood of incurring additional expense on
8
that account was likewise foreseeable. Therefore, insofar as these expenses are concerned, the
settlement agreement made allowance for such existing legal charges that could be incurred.
Accordingly, the court will not award additional fees and costs that were anticipated by the
remand from the Federal Circuit.
A different setting arose after March 1, 2017, when the government filed its motions
seeking to overturn the settlement agreement. From that time forward, the class incurred legal
fees and costs that were not contemplated by the settlement agreement. As a practical matter,
that date serves as a temporal dividing line between time and costs expended on matters
governed by the settlement agreement and time and costs that were required to defend against the
government’s later position. Accordingly, the class may recover reasonable legal fees and costs
incurred on and after March 1, 2017.
2. The Woodleys’ legal expenses.
The Woodleys seek to recover legal fees and costs incurred both by the representation of
Mr. Woodley himself and later for the Woodleys’ representation by Kellogg Hansen. First, the
Woodleys seek to recover fees for 670.5 hours of time expended by Mr. Woodley between 2014
and 2020 and an additional $10,674.16 of related legal costs. See Woodleys’ Pro Se Mot. at 4.
Fee-shifting statutes do not generally permit pro se litigants to recover legal fees and
costs. See, e.g., Kay v. Ehrler, 499 U.S. 432, 435-38 (1991) (holding that a lawyer representing
himself may not recover legal fees under 42 U.S.C. § 1988); May v. United States, 534 Fed.
Appx. 930, 936-37 (Fed. Cir. 2013) (declining to award pro se legal fees pursuant to 28 U.S.C. §
2412 and 42 U.S.C. § 1988); Phillips v. General Servs. Admin., 924 F.2d 1577, 1583 (Fed. Cir.
1991) (determining that under 28 U.S.C. § 2412, “a party acting pro se is not entitled to an
attorney fee award”); Naekel v. Department of Transp., 845 F.2d 976 (Fed. Cir. 1988).
Permitting pro se plaintiffs to recover legal fees, even if limited to licensed attorneys, “would
create a disincentive to employ counsel whenever such a plaintiff considered himself competent
to litigate on his own behalf,” thereby undermining the statutory purpose of “ensuring the
effective prosecution of meritorious claims.” Kay, 499 U.S. at 437-38. “The statutory policy of
furthering the successful prosecution of meritorious claims is better served by a rule that creates
an incentive to retain counsel in every such case.” Id. at 438. That rationale applies equally to
the Uniform Relocation Act’s fee-shifting provisions and the court accordingly will decline to
award any fees or costs incurred by any pro se plaintiff.
The Woodleys attempt to characterize their claim for fees as deriving from an attorney-
client relationship between Mr. Woodley and his wife. But the Woodleys have in the past
referred to themselves as pro se litigants. See, e.g., Notice of Appeal, ECF No. 199 (describing
Mr. and Mrs. Woodley as “Pro Se Objecting Class[]Claimants”). Moreover, any attempt to
describe the relationship between the Woodleys as an attorney-client relationship necessarily
elevates form over substance because their underlying claim concerns property jointly owned by
them. See Decl. of Denise Woodley ¶ 2, ECF No. 251 (noting that the Woodleys jointly
purchased the property in 1994). Thus, while Mr. Woodley may have assumed the role of
representing his wife, he could only do so by simultaneously representing his own interests on a
9
pro se basis. Consequently, the court regards the Woodleys as pro se litigants and declines to
award any legal fees or costs insofar as Mr. Woodley’s representation is concerned.
Second, the Woodleys seek to recover legal fees and costs incurred by their
representation by attorneys at Kellogg Hansen between 2015 and 2020, amounting to
$1,059,152.89. See Woodleys’ Kellogg Hansen Mot. at 13. The Woodleys contend that the
settlement agreement could not and did not make provision for the fees they incurred by their
individual counsel to object to the agreement and appeal its approval to the Federal Circuit
because such objections “could not be asserted until . . . after negotiation of the agreement, and
could not be resolved until after approval of the [s]ettlement [a]greement.” Woodleys’ Kellogg
Hansen Reply at 7. Nevertheless, although the fees the Woodleys incurred in objecting to the
settlement agreement may not have been contemplated by the agreement as initially constituted,
their subsequent success in obtaining amounts beyond those specified in the agreement, see
generally Mot. for Settlement, Ex. D, ECF No. 299, belies any assertion that they obtained no
recovery for their efforts.11 Accordingly, the court will award no additional recovery for the
expenditure of time and costs incurred to object to the settlement agreement, conduct the first
appeal in the Federal Circuit, or negotiate with class counsel after the successful appeal.
The situation changed, however, after the government filed its motions seeking to
overturn the settlement agreement on March 1, 2017. From that point forward, the primary
emphasis of the legal work performed by Kellogg Hansen on behalf of the Woodleys shifted
from resolving the disputed informational and allocation issues to defending, both in this court
and on appeal, against the government’s attempts to vacate the agreement. As already noted,
those expenses were not comprehended by any of the aspects of the settlement agreement itself
or the earlier proceedings related to the agreement. Consequently, the Woodleys may recover
reasonable legal fees and costs incurred in retaining representation by Kellogg Hansen on and
after March 1, 2017.
3. Cleveland Square’s legal expenses.
After the Federal Circuit’s decision vacating the first approval of the settlement
agreement, Cleveland Square and twenty-five other class members obtained representation by
Hillis Clark Martin & Peterson P.S. (“Hillis Clark”). See Cleveland Square’s Mot. at 1. In
addition to the portion they received as part of the settlement agreement, the Cleveland Square
group now seeks to recover legal fees it paid to Hillis Clark amounting to $244,372.00 and costs
of $4,243.92. Id. at 9.
In class actions like this one, the general rule is that “[f]ees and costs may be awarded to
the counsel for objectors to a class action settlement if the work of the counsel produced a
beneficial result for the class.” Olden v. Gardner, 294 Fed. Appx. 210, 221 (6th Cir. 2008)
(citations omitted); see also Fed. R. Civ. P. 23, Committee Notes, 2003 Amendment, Subdivision
The Woodleys received an additional amount over that provided for them in the
11
settlement agreement, but the increase for them did not affect amounts of the recovery for other
class members but rather was derived from class counsel. See Haggart VIII, 136 Fed. Cl. at 78.
10
(h) (“[Subdivision (h)] provides a format for all awards of attorney fees and non-taxable costs in
connection with a class action, not only the award to class counsel. In some situations, there may
be a basis for making an award to other counsel whose work produced a beneficial result for the
class, such as attorneys who acted for the class before certification but were not appointed class
counsel, or attorneys who represented objectors to a proposed settlement under Rule 23(e) or to
the fee motion of class counsel.” (emphasis added)). That principle applies here. It is not
superseded or overridden by the circumstance that the fee applications are based upon the
Uniform Relocation Act. Cleveland Square’s retention of independent counsel may have
obtained for it a larger overall amount derived from a separate agreement with, and payment
from, class counsel, see Haggart VIII, 136 Fed. Cl. at 78, but there is no evidence to show that it
provided a benefit to the class as a whole. Notably, counsel for the Cleveland Square group did
not seek to enter an appearance in the litigation until July 14, 2017. See Mot. to Substitute
Attorney, ECF No. 285. That was 71 days after the court had entered an opinion and order
denying the government’s motions that sought to overturn the settlement agreement and granting
the motion by class counsel to enforce the agreement. See Haggart VI, 131 Fed Cl. 628
(granting motion to enforce the settlement agreement). In short, the parameters of the remanded
case had been set in place before, not after, Cleveland Square’s counsel sought to appear.
Cleveland Square’s separate representation thus generated no benefit to the broader class.
Accordingly, Cleveland Square is not entitled to any legal fees or costs.
4. Legal expenses of Mr. Ghoddoussi and Westpoint.
Class members Mr. Ghoddoussi and Westpoint retained Goodstein Law Group PLLC
(“Goodstein”) to represent them on May 18, 2017. See Ghoddoussi’s Mot. at 1. They now seek
legal fees incurred to retain Goodstein pursuant to a contingent fee agreement in the amount of
$143,044. See id. at 4. They also seek $69,035 to reimburse Goodstein’s costs, id. at 5, as well
as time and expenses expended by Mr. Ghoddoussi for “valuable assistance in preparation of the
litigation” and various costs he incurred to retain “expert title officers, appraisers, surveyors, a
railroad mapping service, and engineers” even before he retained Goodstein, id. at 1-2.
As previously noted, fees and costs may only be awarded if they provided a benefit to the
entire class. See Olden, 294 Fed. Appx. at 221. Mr. Ghoddoussi and Westpoint indicate in their
brief that Goodstein’s representation assisted them in obtaining more proceeds than before. See
Ghoddoussi’s Mot. at 2 (noting that they entered into an agreement with class counsel on
December 4, 2017). They have not, however, produced any evidence tending to show that the
legal fees and costs they seek to recover generated any benefit to the broader class. Moreover, as
with the Cleveland Square group, counsel’s motion for separate representation of Mr. Ghoddossi
and Westpoint was first filed on June 16, 2017, see Mot. to Substitute Attorney, ECF No. 281, 43
days after the court had ordered that the settlement agreement was enforceable and effective and
11
should be enforced.12 Accordingly, Mr. Ghoddoussi and Westpoint are not entitled to any
additional fees or costs.
C. Reasonableness Analysis
Having determined that the class and the Woodleys are entitled to recover legal fees and
costs incurred on and after March 1, 2017, the court must address and assess the reasonableness
of the amounts sought. The firm Stewart, Wald & McCulley (“Stewart Wald”) served as class
counsel throughout this litigation and during the period relevant here. Stewart Wald retained
Sidley Austin LLP (“Sidley Austin”) to handle the appellate portion of the litigation. The class
thus seeks to recover reasonable fees and costs attributable to representation by both Stewart
Wald and Sidley Austin.13 The firm Kellogg Hansen represented the Woodleys during the
period relevant here. The reasonableness of the fees and costs submitted by each of these three
firms will be assessed in turn.
1. Reasonableness of Stewart Wald’s fees and costs.
The class seeks to recover legal fees attributable to Stewart Wald’s representation from
January 8, 2016 through February 15, 2020, amounting to $3,049,425.50. See Class Counsel’s
Mot. at 36. They likewise seek costs for the same period in the amount of $293,550.32. See id.
In its reply brief, the class increased those amounts, seeking an additional $184,354.00 in fees
and $217.90 in costs incurred between February 15, 2020 and July 6, 2020. See Class Counsel’s
Reply at 31. As already noted, the court declines to award fees and costs incurred before March
1, 2017. During the more limited time period beginning on March 1, 2017 and extending
through February 15, 2020, the court calculates that six timekeepers at Stewart Wald expended
4,186.70 hours on this matter, incurring fees amounting to $2,008,830.50.14 During that same
12
That first motion was denied on procedural grounds, see Order of July 5, 2017, ECF No.
284, but was renewed on August 23, 2017, see Mot. to Substitute Attorney, ECF No. 306, after
which the subsequent motion was granted, see Order of Oct. 11, 2017, ECF No. 322.
13
Sidley Austin’s fees are essentially an expense incurred by class counsel. Class counsel
represents that any recovery based on Sidley Austin’s submission “will be reimbursed and paid
directly to Sidley Austin LLP whereas the fees and costs incurred and paid to [c]lass [c]ounsel
will reimburse the [c]lass [m]embers.” Class Counsel’s Mot. at 16 n.40.
14
The court calculated this amount by reference to the detailed time log provided in the
appendix attached to class counsel’s motion. See generally Class Counsel’s Mot., App. 1. That
detailed ledger provides the date of each time entry, the relevant timekeeper’s name, a
description of the work performed, and the amount of time expended. See id. Since 2016, six
timekeepers at Stewart Wald have expended time on this matter. See id. at 208. The report
contains a summary showing each of their hourly rates (which remained static during all the
reported time period) and the total hours they worked. See id.
12
period, Stewart Wald incurred expenses of $196,124.73.15 Accordingly, including the additional
amounts sought for the period after February 15, 2020, the total amount of legal fees and costs
sought and potentially recoverable by the class is $2,389,527.13.
Under the lodestar method, the court must first examine the reasonableness of the hours
expended. During the period at issue, the class was obligated to defend multiple motions seeking
to nullify the settlement agreement and also undermine the court’s previous liability rulings.
During this time, having rectified the informational deficiencies identified in the first appeal, the
class moved to enforce the settlement agreement, distributed court-approved further notice to
class members, and actively participated in a second fairness hearing. When the government
appealed the court’s order subsequently enforcing the settlement agreement, the class was then
obligated to retain and coordinate with appellate counsel in contesting the second appeal. The
class has produced extensive documentation of the attendant fees and costs. The time report
provided identifies the timekeeper performing each task, describes the tasks performed, and sets
forth each timekeeper’s hourly rate and the amount of time expended. See Class Counsel’s Mot.,
App. 1. Exercising billing judgment, the firm eliminated hours it considered excessive,
redundant, or duplicative, see Class Counsel’s Mot., App. 2 ¶ 37 (Decl. of Thomas S. Stewart),
and provided a summary of the careful division of labor between its attorneys and paralegals, see
Class Counsel’s Mot. at 23-24.
The government levels a variety of objections to the reasonableness of the hours
expended by Stewart Wald. By comparing the total fees now sought with the amount provided
in the settlement agreement, the government concludes that the amount of time expended by
Stewart Wald was excessive, “patently unreasonable when measured against the time expended
by these attorneys in this action during the first five years after filing—a time when substantially
more work was undertaken.” Def.’s Resp. to Class Counsel’s Mot. at 30. To the extent that
objection has any basis, and the court doubts that it does, the court is satisfied that its decision to
limit fees to the period following March 1, 2017 sufficiently addresses it. The government
further contends that numerous time entries are too vague to be reimbursable, that much time
relates to non-reimbursable administrative work, and that time spent preparing the motion for
fees must be reduced because the motion borrowed heavily from a previously filed petition. See
id. at 32-34. The court finds these arguments unpersuasive.
First, the government’s assertion that numerous time entries describing correspondence
or conferences with class members are too vague is undermined by the context of the
surrounding time entries and the general posture of the litigation corresponding to the date of the
entry. That additional detail sheds adequate light on what, standing alone, might otherwise be a
vague entry. Here, the court can easily infer the nature of the correspondence and tasks in these
entries based upon the surrounding context and is satisfied with their reasonableness. Second,
nearly all the entries the government identifies as administrative work are already disallowed
15
The court calculated this figure by reference to the detailed listing (which provides the
date and description) of every expense incurred that is included in the appendix attached to class
counsel’s motion. See Class Counsel’s Mot., App. 1 at 209-29.
13
because they occurred prior to March 1, 2017, see generally Def.’s Resp. to Class Counsel’s
Mot., App. 1, and are thus irrelevant.16 Finally, the government’s objection that the motion for
fees heavily borrowed from the class’s 2013 motion is also undermined by the long elapse of
time and events between these two motions. The court is not persuaded that the motions or
posture of the case at the present time compared to what it was seven years ago are substantially
similar enough to warrant reducing any allowable time.
Satisfied that the hours expended during the relevant time period are reasonable, the court
must next determine the reasonableness of the rates charged by Stewart Wald’s attorneys.
Reasonable hourly rates under the lodestar method are “calculated according to prevailing
market rates in [the] relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984). The
class has provided documentation of the experience and qualifications of each timekeeper as well
as their billing rates, which remained static throughout all relevant times and range from $175
per hour for paralegals to between $445 and $595 per hour for partners. See generally Class
Counsel’s Mot., App. 2. These rates, the class notes, are Stewart Wald’s “historic hourly rates in
Kansas City, utilizing Kansas City as the forum, and the rates were established and utilized based
on the experience of each timekeeper within the Kansas City market.” Class Counsel’s Mot. at
26-27. Additionally, the class has produced three declarations of other attorneys—including one
by a former federal magistrate judge in the relevant market—opining on the reasonableness of
the rates, see id., Apps. 9-11, and concluding that they “reflect the prevailing billing rates of
attorneys within those communities of similar experience and expertise,” id., App. 9 at 6.
The government “agrees that the [c]ourt should apply Kansas City rates to work
performed by [Stewart Wald], but disagrees that rates charged in [St. Louis and Kansas City] are
the same.” Def.’s Resp. to Class Counsel’s Mot. at 35. Instead, the government maintains that
the rates Stewart Wald charged for the work of its partners more closely approximate rates in the
St. Louis market—which, the government also contends, are nearly $100 higher than in Kansas
City. Id. (citing Whispell Foreign Cars, Inc. v. United States, 139 Fed. Cl. 386, 399 (2018)
(which addressed forum rates in St. Louis, not Kansas City)). The government relies on a brief
reference in Whispell to average rates in Kansas City in 2016 and 2017 without offering a
contrary opinion or even addressing the more specific recitations set out in the affidavits
proffered by the class. As the government has not even attempted to rebut the class’s affidavits
testifying specifically to the reasonableness of Stewart Wald’s rates which are informed by first-
hand experience, the court declines the government’s asseverations.
Finally, the court must assess the reasonableness of the costs incurred by Stewart Wald.
Generally, the court “may award only those reasonable and necessary expenses of an attorney
incurred or paid in preparation for trial of the specific case before the court, which expenses are
those customarily charged to the client where the case is tried.” Oliveira v. United States, 827
F.2d 735, 744 (Fed. Cir. 1987) (footnote omitted). The government contends that “[t]he nearly
$300,000 in expenses for which [c]lass [c]ounsel seeks reimbursement from the United States is
16
The government attached to its response brief an appendix identifying its specific
objection to each individual time entry and summarizing the amount of time that falls within
each objection.
14
grossly excessive” and “includes over $100,000 in unrecoverable expenses.” Def.’s Resp. to
Class Counsel’s Mot. at 37. To begin, by limiting recoverable costs only to those incurred after
March 1, 2017, the court has already eliminated nearly $100,000 as unrecoverable. The
remaining amounts fall within three general categories—travel related costs, experts, and
administrative costs such as postage, printing, and copying. The court considers that these costs,
which are carefully documented by class counsel, fall within those “reasonable and necessary
expenses” which are “customarily charged to the client where the case is tried.” Oliveira, 827
F.2d at 744. Moreover, nearly half of the remaining amount is attributable to Stewart Wald’s
retention of expert appraisers (to prepare for a potential trial in response to the government’s
motions for reconsideration) and outside attorneys (to respond to the government’s efforts
regarding fee agreements). These decisions were triggered by the government’s own discovery
efforts and litigation strategy and were reasonably incurred based on the status of the case at the
relevant times. Accordingly, finding the hours, rates, and costs charged by Stewart Wald
reasonable, the court awards the class $2,389,527.13 in legal fees and costs.
2. Reasonableness of Sidley Austin’s fees and costs.
The class next seeks to recover legal fees attributable to Sidley Austin’s representation as
the class counsel’s appellate counsel for the second appeal from 2018 through February 15,
2020. Sidley Austin expended 476.75 hours during this time, amounting to $595,393.75 in fees.
See Class Counsel’s Mot. at 36. They likewise seek costs for the same period in the amount of
$7,832.96. See id. The class supplemented those amounts in its reply brief, seeking an
additional $22,335.00 in fees for an additional 21.25 hours and $16,178.41 in costs attributable
to the period from February 15, 2020 to July 6, 2020.17 See Class Counsel’s Reply at 32. In
sum, the class seeks a total of $641,740.12 for legal fees and costs attributable to Sidley Austin’s
representation.18
All of Sidley Austin’s fees and costs fall within the recoverable time period after March
1, 2017. Consistent with the lodestar method, the court will first examine the reasonableness of
the 498 hours expended. The government focuses its objections on the hourly rates charged by
Sidley Austin and does not appear to contest the reasonableness of the time expended. Any such
objection to Sidley Austin’s time would have been unavailing. Sidley Austin has produced
detailed billing records identifying each timekeeper, describing the tasks performed, and setting
forth each timekeeper’s hourly rate and the amount of time expended. See generally Class
17
Most of the additional costs requested were incurred by the retention of Seth P.
Waxman to review the litigation file and prepare an affidavit regarding the reasonableness of
Sidley Austin’s fees. See Class Counsel’s Reply, App. 2 at 7-10.
18
Class counsel’s reply brief includes a table summarizing Sidley Austin’s fees and costs
through July 6, 2020. See Class Counsel’s Reply at 32. That summary misstates the total as
$641,641.12—the $99.00 difference is apparently attributable to arithmetical error: the total
column adding Sidley Austin’s fees and costs after February 15, 2020 does not foot properly and
that error carries through to the final total.
15
Counsel’s Mot., App. 3. Additionally, the firm provided a declaration by Mr. Carter G. Phillips
testifying about staffing decisions, work performed, and the credentials of each of the
timekeepers involved. See id., App. 4. It also provided a declaration by former Solicitor General
of the United States Seth P. Waxman, opining on the reasonableness of both the rates and total
amount of fees charged, stating that the issues in the appeal “were complex[] and required
extensive research and review of a voluminous record” and concluding that “[t]he total fees
incurred for this matter were comparable to those that I have observed in cases of similar
complexity.” Id., App. 6 ¶ 9. The court is satisfied that the hours Sidley Austin expended on
this matter were reasonable.
The court must next address the reasonableness of the rates charged by Sidley Austin’s
attorneys. The requested hourly rates range from $2,000 for Mr. Phillips to between $850 and
$1,300 for other partners and counsel. See generally Class Counsel’s Mot., App. 3. The hourly
rates for legal assistants range from $360 to $400. Id. The government contends that these rates
are “grossly excessive,” Def.’s Resp. to Class Counsel’s Mot. at 35 (heading), that they “far
outstrip those applied in Trails Act litigation and cannot be justified here” because “[t]his case
does not warrant enhanced, above-market rates,” id. at 36. The government supports this
position by citing the Federal Circuit’s application of the so-called Laffey rates in Biery v. United
States, 818 F.3d 704 (Fed. Cir. 2016). See Def.’s Resp. to Class Counsel’s Mot. at 36-37. Sidley
Austin’s rates, the government emphasizes, “are three to four times greater than the [Laffey] rates
for complex litigation.” Id. at 37. The class counters that while “the rates utilized by [Sidley
Austin] are higher than the rates set forth in the adjusted Laffey Matrix, the fact is that Carter
Phillips and his team are not really included in the adjusted Laffey Matrix because they are
among the top appellate lawyers in Washington, D.C. and their rates are their actual rates that
have actually been paid by [c]lass [c]ounsel.” Class Counsel’s Resp. at 30 (citing Lost Tree
Village, 135 Fed. Cl. at 93-96).
Fees incurred and paid by a client at an agreed rate—as they were here—are
presumptively reasonable because “[i]n reaching agreement, lawyer and client have already
considered and weighed all the relevant factors.” Florida Rock Indus., Inc., 9 Cl. Ct. at 290
(citing Laffey, 746 F.2d at 24-26). What the government fails to consider is that the class
actually incurred Sidley Austin’s fees, see 42 U.S.C. § 4654(c) (requiring the award of legal fees
“actually incurred”), to obtain representation by a uniquely credentialed, experienced, and elite
appellate team. Perhaps only a handful of attorneys in private practice anywhere in the country
bring to bear expertise comparable to that offered by Mr. Phillips—who, in addition to over 35
years of private practice, has served as Assistant to the Solicitor General of the United States,
and has argued 88 cases before the United States Supreme Court and more than 140 cases in the
United States courts of appeals. See Class Counsel’s Mot., App. 4 ¶ 4. All the Sidley Austin
attorneys who worked on this matter are likewise “graduates of elite law schools and most
completed prestigious federal clerkships.” Id., App. 6 ¶ 8. Moreover, “all have experience in
civil litigation commensurate with their years of legal practice.” Id. Accordingly, the court is
satisfied that the rates charged by the team assembled by Mr. Phillips are reasonable.
Nevertheless, the court is also mindful that Mr. Phillips’s rate of $2,000 per hour exceeds
by $700 the next highest rate charged by Sidley Austin on this matter and considers that
16
difference unwarranted by the circumstances at hand. The court notes that Mr. Frederick, an
attorney of less but at least somewhat comparable experience (having argued more than 50 cases
in the United States Supreme Court) charged no more than $1,100 per hour for his work on this
same matter. See Woodleys’ Kellogg Hansen Mot. at 8.19 Therefore, to address and somewhat
limit this disparity, the court—relying on its “own expertise to recognize applicable prevailing
rates,” Morris, 20 Cl. Ct. at 29 (citation omitted)—will reduce the hourly rate recoverable for
Mr. Phillips’s work on this matter to $1,500, which reflects a one-quarter reduction.
Accordingly, applying that reduced rate to the 133.75 hours Mr. Phillips recorded, the court will
award the class $552,228.75 for Sidley Austin’s legal fees.
Finally, the court must assess the reasonableness of the $24,011.37 costs incurred by
Sidley Austin. The government’s response brief does not specifically address or challenge any
of the costs requested by Sidley Austin. Having reviewed the detailed listing of the claimed
costs, the court is satisfied that they were “reasonable and necessary expenses . . . customarily
charged.” Oliveira, 827 F.2d at 744 (footnote omitted). Accordingly, the court awards the class
$576,240.12 in legal fees and costs attributable to the representation by Sidley Austin.
3. Reasonableness of Kellogg Hansen’s fees and costs.
In their initial motion, the Woodleys sought to recover legal fees and costs attributable to
Kellogg Hansen’s representation from February 2015 through February 2020, amounting to
$1,059,152.89. See Woodleys’ Kellogg Hansen Mot. at 13.20 In their reply brief, the Woodleys
increased that amount to $1,089,071.21, requesting an additional $29,918.32 to account for
additional time and expense incurred between March and June 2020.21 See Woodleys’ Kellogg
19
This litigation indeed brought into play the work of preeminent counsel.
20
The detailed billing records set forth in the appendix to the Woodleys’ brief show that
Kellogg Hansen attorneys expended 1,840.90 hours on this matter during this time period. See
Woodleys’ Kellogg Hansen Mot., App. 3 at 76. Based upon the ordinary hourly rates of its
attorneys and staff, Kellogg Hansen would charge $1,047,770.00 for that time, id., and during
that same time period, Kellogg Hansen incurred costs of $26,937.89, id. at 83, amounting to total
fees and costs of $1,074,707.89.
The firm then reduced that amount in two respects. First, it reduced the fees for hours
billed for travel (approximately 24 total hours by two attorneys in October 2019) by 50%,
thereby reducing the total fees sought by $10,440. See Woodleys’ Kellogg Hansen Reply, App.
1 ¶ 4 (Decl. of David C. Frederick). Second, it billed time during 2020 at the attorneys’ lower
2019 rates, reducing the total fees sought by an additional $5,115. Id.
21
The detailed billing records set forth in the appendix to their reply brief show that
Kellogg Hansen attorneys expended 41 more hours on this matter during that time period. See
Woodleys’ Kellogg Hansen Reply, App. 2 at 5. Based upon the ordinary hourly rates of the
attorneys and staff, the firm would charge $34,202 for that time, id., and during that same period
the firm incurred new costs of $184.32, id., amounting to an additional $34,386.32. By charging
17
Hansen Reply at 4-5. In sum, the Woodleys’ seek a total of $1,089,071.21 in legal fees and costs
attributable to Kellogg Hansen’s representation between February 2015 and June 2020.
The court declines, as already noted, to award fees and costs incurred before March 1,
2017. During the more limited time period beginning on March 1, 2017 and extending through
February 2020, the court calculates that 12 timekeepers at Kellogg Hansen expended 771.30
hours on this matter, incurring fees at the firm’s ordinary billing rates amounting to
$473,051.00.22 That figure can then be reduced $15,555—down to $457,496—by using Kellogg
Hansen’s methodology of charging 2019 billing rates for hours expended in 2020 and charging
only 50% for travel hours the firm billed in October 2019. See Woodleys’ Kellogg Hansen
Reply, App. 1 at ¶ 4. From March 1, 2017 through February 2020, Kellogg Hansen incurred
expenses of $10,034.72.23 Finally, including the additional $29,918.32 of fees and costs incurred
from March through June 2020, the total potentially recoverable amount attributable to the
period beginning March 1, 2017 and ending July 6, 2020 is $497,449.
The court again begins the analysis by determining whether the number of hours
expended by Kellogg Hansen during the relevant time period is reasonable. Upon detailed
review of the time entries and descriptions provided by Kellogg Hansen, the court is satisfied
the attorneys’ time at their 2019 rather than 2020 rates, the firm then reduced that amount by
$6,468. See Woodleys’ Kellogg Hansen Reply, App. 1 ¶ 5.
22
The billing detail Kellogg Hansen provided lists each individual time entry—noting the
date, the initials of the timekeeper, a description, and the amount of time expended. See
generally Woodleys’ Kellogg Hansen Mot., App. 3. Because some timekeepers had different
billing rates over the several years in which they performed work on this matter, the report also
includes a summary of the total hours expended by each timekeeper at that individual’s various
billing rates. See id. at 3. The summary does not, however, specify which billing rate pertains to
which year.
Calculating which fees should be apportioned to the period after March 1, 2017 required
the court to determine which billing rates applied to which year. The court noted that the number
of hours at different rates set forth in the summary aligned with the hours expended by the
relevant timekeeper during specific calendar years. Accordingly, the court was able to match the
appropriate bill rate for each timekeeper with the relevant year and apply that finding to
determine the fees incurred on and after March 1, 2017.
The court is confident that its calculation accurately apportions the fees incurred during
this partial period because, by employing the same methodology but extrapolating the rates
across the entire period, it successfully recalculated with exact precision the summary provided
for the full period.
23
The court arrived at this amount by simple addition, summing the expenses detailed in
the billing records that were dated on or after March 1, 2020. See Woodleys’ Kellogg Hansen
Mot., App. 3 at 78-84.
18
that they were reasonable and necessary. The government levels a series of unpersuasive
objections to Kellogg Hansen’s time entries, see Def.’s Resp. to Woodleys’ Kellogg Hansen
Mot. at 22-28, some of which are mooted at the outset by the court’s determination that fees
incurred before March 1, 2017 are not recoverable, see, e.g., id. at 23-24 (seeking denial of
reimbursement for hours incurred between February 2015 and July 2016).
The government contends that any “time spent on unsuccessful claims post-remand”
should be eliminated, Def.’s Resp. to Woodleys’ Kellogg Hansen Mot. at 24, but as the
Woodleys convincingly point out, “[t]he government confuses unsuccessful claims with
unsuccessful (or moot) arguments,” Woodleys’ Kellogg Hansen Reply at 12. The government
next asserts that time spent on the second appeal, addressing enforcement of the settlement
agreement, is not recoverable because it “sounds in contract” and was therefore outside the
purview of the Uniform Relocation Act. Def.’s Resp. to Woodleys’ Kellogg Hansen Mot. at 27.
As noted previously, however, the second appeal was a direct consequence of the government’s
attempt to undermine and overturn the settlement agreement. Declining to award fees under the
government’s contract theory would enable the government to avoid paying fees by litigation
maneuvering, and the court declines to sanction such an approach. Finally, the government
identifies hours that it considers “duplicative and vague billing entries by peripheral attorneys,”
id. at 27, but the court is not satisfied that any of this time is either duplicative or vague.
Contrary to the government’s assertion, the court does not regard as duplicative time spent
mooting Mr. Frederick in advance of oral arguments—a standard practice in appellate litigation.
Likewise, entries the government identifies as vague are hardly lacking sufficient narrative
explanation to enable the court to assess the nature of the work performed and consider the
reasonableness of the time spent.
The court must next consider the reasonableness of the rates charged by Kellogg
Hansen’s attorneys. The requested hourly rates range from $1,100 for Mr. Frederick and
between $395 and $600 for associates. See Woodleys’ Kellogg Hansen Mot. at 8. Solely by
reference to the Laffey matrix, the government contends that these rates are “unreasonably high.”
Def.’s Resp. to Woodleys’ Kellogg Hansen Mot. at 29.
As with its objections to Sidley Austin’s rates, the government has neither addressed nor
offered contrary opinions to counter the affidavit testifying to reasonableness proffered by the
Woodleys. See Woodleys’ Kellogg Hansen Mot., App. 1 (Decl. of Jeffrey A. Lamken). That
affidavit states that “compared to the rates of similarly distinguished appellate practitioners . . .
Mr. Frederick’s rates are relatively low” and the rates charged for the associates’ time “were
reasonable or even on the low side.” Id. ¶¶ 6, 7. Nor has the government considered the
specialized appellate expertise of the team assembled by Kellogg Hansen, an important aspect
notably unaccounted for by the Laffey matrix’s average rates. The government’s exclusive
reliance on the Laffey matrix rates is thus misplaced under these circumstances. Moreover, the
government also fails to observe that the Woodleys actually incurred Kellogg Hansen’s rates,
which they were willing to pay to obtain the high level of representation offered by Mr.
Frederick’s team at Kellogg Hansen—a strong indicator of reasonableness. See Lost Tree
Village, 135 Fed. Cl. at 93-96. Accordingly, the court is satisfied that the rates charged by
Kellogg Hansen’s attorneys were reasonable.
19
Finally, the court must address the reasonableness of the $10,219.04 in costs incurred by
Kellogg Hansen from March 1, 2017 through July 6, 2020. The government contends that the
total costs originally sought by Kellogg Hansen should be reduced by approximately $17,000
because these costs for meals, Westlaw expenses, and attorney admissions “are included in the
overhead associated with operating a firm and are not reimbursable under the [Uniform
Relocation Act].” Def.’s Resp. to Woodleys’ Kellogg Hansen Mot. at 33. Significantly, many
of the costs identified by the government were already eliminated by the court’s decision to
award no costs incurred before March 1, 2017. Furthermore, the government’s assertion that the
costs it identifies are non-reimbursable overhead costs is belied by the fact that the firm billed
and the Woodleys actually paid these amounts to litigate the case. See Woodleys’ Kellogg
Hansen Reply at 17-18 (noting that the meal costs were incurred by attorneys traveling to litigate
the case, the Westlaw expenses are billed to individual clients in the ordinary course of business,
and the admission fees were incurred to permit attorneys to litigate this particular case). In sum,
the court is satisfied that these costs were reasonably incurred.
CONCLUSION
For the reasons stated, the Woodleys’ motion for pro se fees and costs, Mr. Ghoddoussi’s
corresponding motion, and Cleveland Square’s comparable motion are DENIED.
The class’s motion and the Woodleys’ motion for Kellogg Hansen’s fees and costs are
GRANTED IN PART AND DENIED IN PART. The class is awarded reasonable legal fees and
costs attributable to the representation provided by Stewart Wald in the amount of
$2,389,527.13. The class is also awarded reasonable legal fees and costs attributable to the
representation provided by Sidley Austin in the amount of $576,240.12. The Woodleys are
awarded reasonable legal fees and costs attributable to the representation provided by Kellogg
Hansen in the amount of $497,449.00. The clerk is directed to enter final judgment accordingly.
No further costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
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