Biery v. United States
2016 U.S. App. LEXIS 5449
Fed. Cir.2016Background
- Thirteen Kansas landowners sued the United States in the Court of Federal Claims claiming a takings violation after a rail-to-trail conversion; cases consolidated and some claims dismissed on summary judgment.
- After interlocutory proceedings (including a Kansas Supreme Court certification attempt), plaintiffs ultimately prevailed on liability in the Court of Federal Claims in 2011 and counsel sought attorney fees under 42 U.S.C. § 4654(c).
- Counsel sought fees using firm “national” rates and current (end-of-case) rates based on contingent-fee rationale and the Kavanaugh Matrix; the government contested rates and hours.
- The Court of Federal Claims applied the lodestar method, used historical rates (no-interest rule), applied St. Louis rates for pre-2010 work and D.C. rates thereafter (using the Adjusted Laffey Matrix), and reduced hours and costs for duplicative/unrelated work (including a 30% cut for work on unsuccessful plaintiffs).
- Counsel filed a FOIA request after the fee decision, received government time records on appeal, and moved to supplement the record; the Court of Federal Claims’ fee award was appealed to the Federal Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to supplement record with FOIA-obtained time records | FOIA records are newly produced, relevant, and unavailable earlier so appellate record should be supplemented | Records were requested after fee decision and counsel failed to timely pursue them before reconsideration | Denied — appellate supplementation not warranted because records were obtainable earlier and counsel did not timely present them below |
| 30% reduction for work on unsuccessful plaintiffs | Reduction improperly treated as an overall lodestar cut requiring Perdue-level justification | Reduction was applied to hours to avoid compensating work on unsuccessful claims and was within discretion | Affirmed — reduction to hours was proper given overlapping issues and limited success |
| Use of Adjusted Laffey vs. Kavanaugh Matrix | Counsel: Kavanaugh Matrix (legal-services-based) better reflects market and should have been used | Government: Adjusted Laffey is a reasonable starting point; trial court may choose either with explanation | Affirmed — trial court may choose either matrix; it permissibly used Adjusted Laffey and compared other fee awards to avoid windfall |
| Use of historical vs. current (end-of-case) rates | Counsel: contingent-fee market uses end-of-case rates; award should match private-market paid rates | Government: no-interest rule bars delay compensation; historical rates required | Affirmed — no-interest rule bars delay/interest compensation; historical rates proper |
| Determination of St. Louis hourly rates | Counsel: court initially said rates unclear; later used St. Louis rates without adequate evidence | Government: counsel failed to produce evidence of St. Louis market rates; court relied on local district-court awards | Affirmed — counsel bore burden to present evidence; court appropriately relied on available local fee awards |
| Reductions for duplicative work (Kansas Supreme Court argument, fee preparation) | Counsel contended reductions were excessive | Government: hours were duplicative/excessive; court should reduce | Affirmed — court adequately explained reductions (large percentage cuts) for duplicative/excessive time |
Key Cases Cited
- Library of Congress v. Shaw, 478 U.S. 310 (1986) (no-interest rule prohibits delay/interest compensation in fee awards)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar method and reduction for limited success; hours not recoverable for unsuccessful claims)
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) (departures from lodestar require specific evidence)
- Bywaters v. United States, 670 F.3d 1221 (Fed. Cir. 2012) (lodestar presumption and use of matrices in fee awards)
- Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983) (original Laffey Matrix as starting point for D.C. rates)
- Covington v. District of Columbia, 57 F.3d 1101 (D.C. Cir. 1995) (Adjusted Laffey Matrix is a useful starting point)
- Chiu v. United States, 948 F.2d 711 (Fed. Cir. 1991) (application of no-interest rule to fee awards)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party with burden must produce evidence to meet it)