Osprey Pacific Corp. v. United States

42 Fed. Cl. 740, 1999 U.S. Claims LEXIS 34, 1999 WL 47675
CourtUnited States Court of Federal Claims
DecidedFebruary 3, 1999
DocketNo. 93-710
StatusPublished
Cited by6 cases

This text of 42 Fed. Cl. 740 (Osprey Pacific Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osprey Pacific Corp. v. United States, 42 Fed. Cl. 740, 1999 U.S. Claims LEXIS 34, 1999 WL 47675 (uscfc 1999).

Opinion

OPINION

SMITH, Chief Judge.

On June 10, 1998, this court determined the proper compensation due plaintiffs for the taking of their boat and spare parts and ordered a judgment for $550,000.00 plus compound interest from the date of the taking. The parties now come before the court to determine the amount of attorney fees due plaintiff under the Uniform Relocation and Real Property Acquisition Policies Act of 1970 (“URA”), 42 U.S.C. § 4654(e). For the reasons stated below, this court awards the plaintiff attorney fees of 30 percent of the amount previously awarded to the plaintiff.

FACTS

Osprey Pacific Corp. (“plaintiff’) filed a complaint in the Court of Federal Claims on November 19, 1993 alleging that the government’s actions in seizing their Navy PT boat constituted an uncompensated taking in violation of the Fifth Amendment. Plaintiff filed a motion for summary judgment and the government responded with a motion to dismiss and a cross-motion for summary judgment. After oral argument, the court denied both of the government’s motions from the bench and took plaintiffs motion for summary judgment under advisement. The court issued an unpublished memorandum opinion explaining the court’s first impressions following the oral argument with hopes of furthering settlement. Since the parties could not agree to a settlement, the court held a trial in Portland, Oregon. The court then issued an opinion in Osprey v. United States, 41 Fed.Cl. 150 (1998), in which it held that defendant was liable for an uncompensated taking of plaintiffs property, and determined damages in the amount of $550,-000.00 with compound interest from the date of the taking, October 3,1990.

Following the decision plaintiff filed a request for attorney fees. Defendant contested this filing, alleging plaintiff had failed to show the fees were “actually incurred”, as required by the URA. Plaintiff then provided evidence of a contingent fee agreement for 30 percent of any damages award, and amended its request to $300,000.00 as an approximation of the contingent fee. Plaintiffs theory was that the original damages award of $550,000.00, when the compound interest was calculated to September 2,1998, amounted to $984,403.94. 30 percent of that number was calculated to be $295,321, which led plaintiff to claim the $300,000.00 was “a figure more in line with the fee that will be ‘actually incurred’ by the time plaintiff collects its judgment.” See Plaintiff’s Reply, 2. (Plaintiffs reply was filed on October 13, 1998). The court granted leave for defendant to file a sur-reply, in which defendant argued the contingent fee was not “actually incurred”, and asked for denial of plaintiffs request. The parties were unable to settle their dispute, and the court held oral argument on December 10, 1998. At argument, the court made a preliminary ruling from the bench in favor of granting plaintiffs request for fees based upon the contingency agreement, but requested the parties to try to settle in lieu of a court-imposed decision. Settlement was not possible, and the court now issues this opinion.

DISCUSSION

The issue now before the court is a determination of the award to plaintiff for “reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding” under 42 U.S.C. § 4654(c).

This case is reminiscent of another ease recently decided by this court, Shelden v. United States, 41 Fed.Cl. 347 (1998). In that case, plaintiff requested costs in excess of a contingency fee agreement on the theory [742]*742that they had “actually incurred” a higher amount. Defendant argued against awarding anything greater than the contingency agreement, urging that in light of the agreement, the only fees “actually incurred” were the percentage mandated by the agreement itself. It was never questioned in that case that contingent fee agreements could qualify as fees “actually incurred” under the URA.

Here, the government’s theory is almost exactly the opposite from Shelden. On September 3, 1998, Plaintiff filed a request for attorney fees and expenses under the URA in the amount of $170,000.00. Defendant argued the evidence for these fees, which was less than detailed, was insufficient to show the fees were “actually incurred”, a standard required by the URA. Plaintiffs excuse for the vagueness of its original records was that there was a contingency fee agreement which was intended to account for plaintiffs attorney fees. In response to plaintiffs reasoning, defendant noted that plaintiff had not even provided evidence of said contingency agreement. When plaintiff amended its request to $300,000.00, it filed a copy of a May 15, 1991, signed agreement (penned by plaintiffs attorney of record), which stated: “This letter is to confirm that you have retained me to represent Osprey Pacific Corporation and related parties in connection with their claim against the Port of Newport and State of Oregon for breach of the PTF 26 Charter Agreement. I wish to confirm that my fee will be 30 percent of any amount recovered.” See Plaintiffs Reply, 4. Defendant claims this is insufficient demonstration that plaintiff “actually incurred” fees in the amount of 30 percent of the damages award.

It is true that this court may award less than the contingency agreement declares. See Branning v. United States, 7 Cl.Ct. 777, 779 (1985) (“[T]he defendant’s obligation to the plaintiff in the matter of reimbursement for attorneys’ fees is not to be measured by the terms of the various contingent-fee agreements made by the plaintiff with different law firms.”). It is equally true that we may grant contingency fee based awards. See King v. United States, 504 F.2d 1138, 1143, 205 Ct.Cl. 512 (1974) (awarding “a reasonable fee of $1,090.37 for plaintiffs’ counsel which conforms to counsel’s arrangements with plaintiffs for a 25 percent contingency basis.”). We may also apply the contingency fee percentage to the interest recoverable on the just compensation award. See Shelden, 41 Fed.Cl. at 350; King, 504 F.2d at 1143.

In Branning, the court declined to award based on contingency agreements because the fees had to be “reasonable attorney... fees”. 7 Cl.Ct. at 779. Defendant argues, in light of Branning, that a contingency fee agreement standing alone does not constitute a basis for granting attorney fees under the URA. Defendant emphasizes the Branning holding that beyond reasonable attorney fees, “any additional financial burden to the plaintiff resulting from private arrangements between the plaintiff and counsel must be borne by the plaintiff.” See Branning, 7 Cl.Ct. at 779. It would be absurd if the onus on a plaintiff in proving a contingency fee award were “actually incurred” meant proving that the number of hours worked produced a fee exactly equal to the contingency fee percentage itself.

Branning does not hold that contingency fee agreements are not “actually incurred”, nor that such agreements are insufficient evidence of fees “actually incurred”. It simply requires contingent fee agreements to be “reasonable” in order for them to be enforced. Branning’s facts, moreover, are distinguishable from the present case inasmuch as there was evidence in

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Bluebook (online)
42 Fed. Cl. 740, 1999 U.S. Claims LEXIS 34, 1999 WL 47675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osprey-pacific-corp-v-united-states-uscfc-1999.