McCarty v. United States, 131 Fed. Cl. 643

Plaintiffs (67 Indiana landowners) settled their Rails‑to‑Trails takings claims; attorney fees and litigation expenses remained to be determined.
Plaintiffs (Arent Fox) seek $1,395,134 in fees based on District of Columbia (forum) rates; Defendant seeks application of St. Louis locality rates instead.
Defendant served discovery seeking evidence of instances where Arent Fox clients paid the higher rates and requested depositions of two Arent Fox attorneys and a paralegal to establish where counsel’s work was performed.
Plaintiffs objected to the interrogatory and opposed depositions of opposing counsel; they produced limited information and declarations suggesting St. Louis rates are not substantially lower than D.C. rates.
The court applied the general forum‑rate rule but described the Davis County exception (apply locality rates if the bulk of work was performed outside the forum and there is a very significant rate disparity).
The court denied Defendant’s motion to depose opposing counsel, finding Defendant had not shown a sufficient factual predicate of a “very significant” disparity and ordered supplemental briefing on the extent of disparity between D.C. and St. Louis rates; limited non‑counsel discovery might be allowed if disparity is shown.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether forum (D.C.) rates apply to fee award	Forum rule should apply; fees based on D.C. rates are appropriate	Locality (St. Louis) rates should apply because counsel’s work was performed elsewhere	Forum rule presumptively applies; court requires more proof before applying locality exception
Whether Davis County exception (locality rates) applies	Not yet shown; plaintiffs submitted evidence that disparity is not substantial	Davis County exception should apply because disparity between D.C. and St. Louis rates is "very significant"	Defendant did not demonstrate a "very significant" disparity; exception not yet triggered
Whether depositions of opposing counsel are permissible for fee discovery	Oppose depositions; counsel deposition is extraordinary and other discovery means suffice	Seek depositions to establish where work was performed and payment practices	Denied deposition of opposing counsel; if exception later justified, only limited, non‑counsel discovery may be authorized

Avera v. Sec. of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (forum‑rate rule applies in fee awards; limited locality exception when virtually all work is done outside forum and rates are substantially lower)
Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755 (D.C. Cir.) (established narrow exception to forum rule where bulk of work is outside forum and there is a very significant compensation difference)
Donnell v. United States, 682 F.2d 240 (D.C. Cir.) (forum community is generally the relevant market for fee awards)
Hensley v. Eckerhart, 461 U.S. 424 (Supreme Court) (fee petitions should not produce a second major litigation; fee discovery should be limited)
Energy Capital Corp. v. United States, 60 Fed. Cl. 315 (Fed. Cl.) (permitted deposition of opposing counsel where counsel’s conduct was directly at issue)