Foster v. United States

3 Cl. Ct. 738, 1983 U.S. Claims LEXIS 1597
United States Court of Claims·Decided October 20, 1983·No. No. 34-75·Published·Cited by 16 cases

Opinion

OPINION

HARKINS, Judge.

Disposition of this taking case has been protracted. Substantial amounts of litigating time and effort have been expended by counsel and by the courts. Plaintiffs’ petition (now complaint) was filed in the United States Court of Claims on February 7, 1975. There was a 10-day trial in January-February 1977 on both liability and quantum issues. The trial judge’s opinion, filed on October 18, 1978, concluded that there' had been a temporary taking, and that the [739] date of taking was November 18, 1971. In an opinion dated October 17, 1979,1 the Court of Claims determined that plaintiffs’ mineral rights had been permanently abrogated, and remanded the case to the trial division for ascertainment of plaintiffs’ compensation. The parties were unable to stipulate the amount due to plaintiffs, and further evidentiary proceedings, over defendant’s objection, were ordered. A second 10-day trial was held in January 1981.

On October 1, 1982, the case was transferred to the United States Claims Court by section 403(d) of the Federal Courts Improvement Act of 1982.2 In an opinion filed April 7, 1983, plaintiffs’ leasehold interest that was taken on November 18, 1971, was valued at $28,0003 and counsel were given a briefing schedule with respect to plaintiffs’ application for litigation expenses pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.4 Final briefing on plaintiffs’ application was completed August 25, 1983.

Plaintiffs have applied for a total reimbursement of $214,736.69. Defendant does not question its responsibility for plaintiffs’ reasonable litigation expenses and is satisfied with the accuracy of plaintiffs’ supporting documentation. Defendant objects, however, to $61,323.59, in attorney fees and costs, and to $10,173.45 in expert witnesses’ fees and other expenses, on the ground that plaintiffs’ request for an additional eviden-tiary proceeding was not reasonable and that the expenses incurred therein are ineligible as reasonable costs of litigation.

The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 requires the court rendering judgment for plaintiff in a taking case to allow as part of the judgment, an amount that will reimburse the plaintiff “for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees actually incurred.”

The statute requires: (1) judgment for plaintiff for a taking; (2) reasonable fees and expenses; and (3) fees and expenses that are actually incurred because of the proceeding. Plaintiffs have established that they are entitled to judgment and that the property taken had a value of $28,000. Plaintiffs’ application for fees and expenses, with the supporting materials, establish that the amounts claimed were actually incurred because of this litigation, and in fact have been paid by plaintiffs.

The statute does not specify a standard to establish the limits of what are “reasonable” as fees and expenses. The United States Court of Claims, in taking cases where the judgment involved attorney fees and expenses under 42 U.S.C. § 4654(c), did not identify specific factors to be applied to give content to “reasonable” as used in the statute.5 In its consideration of attorney fee allowances pursuant to the Indian Claims Commission Act,6 the Court of Claims endorsed the standard that derived generally from the factors set forth in the American Bar Association Code of Profes[740] sional Responsibility, DR 2-106(B)7 Courts in passing upon “reasonable” attorney fees authorized in other statutes generally have considered these factors, with minor variations in order and definition.8

The weight to be given to the respective factors varies with the requirements of the particular case. Of primary importance, however, is a consideration of the number of hours reasonably expended, and the hourly rate that is reasonable and customary in the community for the type of work involved.9 In this case, in addition, emphasis is given to the complexity of the litigation, the rates the parties have agreed upon, the time that has been consumed between the initial taking and the award of compensation to plaintiffs, and the policies that underlie the decision of Congress to reimburse plaintiffs who ultimately are successful in taking cases.

Plaintiffs’ application shows that fees were billed on a straight time basis, and that the rates changed over the period involved. Plaintiffs do not seek reimbursement on a “flat rate” basis, with the highest rate applied to the entire period. The following hourly rates were charged for work performed during the course of this litigation:

TIME PERIOD PRINCIPAL ATTORNEY ASSOCIATE ATTORNEYS
1975 and part of 1976 $65/hour $30-$40/hour"
latter 1976
and 1977 $70/hour $35/hour
1978 $75-$80/hour* $35-$40/hour*
most of 1979 $80-$85/hour* $40-$50/hour *
latter 1979 and
most of 1980 $100/hour $55/hour
[741] TIME PERIOD PRINCIPAL ATTORNEY ASSOCIATE ATTORNEYS
latter 1980 and most of 1981 $115/hour $65/hour
latter 1981 and most of 1982 $120/hour $75/hour
latter 1982 $125/hour $75/hour
1983 thru March $135/hour
* rates shifted sliightly in mid-period;
•* rate differences reflect differences in experience of personnel

The hours expended by the principal attorney, associates, and law elerks/parale-gals were as follows:

HOURS
YEAR PRINCIPAL ASSOCIATES LAW CLERK/PARALEGAL
1975-77 * 253.9 167.8 61.6
1977 243.8 291.2 0
1978 153.5 11.6 30.1
1979 110.8 140.3 0
1980 120.0 166.9 0
1981 226.5 232.6 0
1982 13.9 66.8 0
1983 ** .5 0 0
• thru March 31
*• to April 1,1983

The total amount of attorney fees and expenses for which plaintiffs seek reimbursement is summarized as follows:

CATEGORY TOTAL
Attorneys (includes costs of $10,601.51) $ 161,619.06

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