  United States Court of Appeals
      for the Federal Circuit
                ______________________

  DANIEL HAGGART, KATHY HAGGART, FOR
THEMSELVES AND AS REPRESENTATIVES OF A
  CLASS OF SIMILARLY SITUATED PERSONS,
              Plaintiffs-Appellees

                           v.

  GORDON ARTHUR WOODLEY, DENISE LYNN
                WOODLEY,
            Plaintiffs-Appellants

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2014-5106
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:09-cv-00103-CFL, Judge Charles F.
Lettow.
               ______________________

               Decided: January 8, 2016
                ______________________

    CARTER GLASGOW PHILLIPS, Sidley Austin LLP, Wash-
ington, DC, argued for plaintiffs-appellees. Also repre-
sented by JACQUELINE G. COOPER; THOMAS SCOTT
STEWART, ELIZABETH MCCULLEY, Stewart Wald & McCul-
2                                HAGGART   v. UNITED STATES



ley, LLC, Kansas City, MO; STEVEN WALD, St. Louis, MO;
J. ROBERT SEARS, Baker, Sterchi, Cowden & Rice, LLC,
St. Louis, MO.

    DAVID CHARLES FREDERICK, Kellogg, Huber, Hansen,
Todd, Evans & Figel, PLLC, Washington, DC, argued for
plaintiffs-appellants.

    MARY GABRIELLE SPRAGUE, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by WILLIAM B. LAZARUS, SAM HIRSCH.

    MARK F. HEARNE, II, Arent Fox, LLP, Clayton, MO,
for amicus curiae National Association of Reversionary
Property Owners. Also represented by LINDSAY S.C.
BRINTON, MEGHAN SUE LARGENT, STEPHEN SHARP DAVIS.
                ______________________

    Before REYNA, WALLACH, and HUGHES, Circuit Judges.
WALLACH, Circuit Judge.
    Appellants Gordon and Denise Woodley (“Woodleys”)
challenge the decision of the United States Court of
Federal Claims (“Claims Court”) approving a settlement
agreement in a class action takings suit and awarding
attorney fees to class counsel under the common fund
doctrine. The United States (“Government”) confesses
error for failing to support the Woodleys’ claim before the
Claims Court and, like the Woodleys, now asserts the
Claims Court erred in approving the settlement agree-
ment and awarding class counsel attorney fees under the
common fund doctrine. For the reasons set forth below,
we vacate and remand on both issues.
HAGGART   v. UNITED STATES                                 3



                        BACKGROUND
                   I.   Procedural History
    This is an appeal by two members of a certified class
in a class action suit, challenging the Claims Court’s
approval of a $110 million settlement agreement and its
decision to award class counsel approximately $35 million
in attorney fees. See Haggart v. United States (Haggart
IV), 116 Fed. Cl. 131 (2014). In 2003, Burlington North-
ern Railroad sought to divest its interest in three seg-
ments of land in King County, Washington.              The
divestiture was accomplished pursuant to section 208 of
the National Trails Systems Act Amendments of 1983, 16
U.S.C. § 1247(d) (“Trails Act”). 1 The Surface Transporta-
tion Board, a federal adjudicatory body with broad eco-
nomic regulatory oversight of railroads, authorized King
County to use the railroad corridor for a public trail.
However, the authorization forestalled the reversion of
the property to the fee title landowners of the segments of
land, who had only granted easements to the railroads.
    In February 2009, Daniel and Kathy Haggart filed a
complaint alleging that they and other landowners held
interests in the railroad corridor and the Trails Act effect-



    1   “The Trails Act is designed to preserve railroad
rights-of-way by converting them into recreational trails.”
Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir.
2012). “Actions by the [G]overnment pursuant to the
Trails Act can result in takings liability where the rail-
road acquired an easement from the property owner, the
railroad’s use of the property ceased, and the
[G]overnment’s action under the Trails Act prevented
reversion of the property to the original owner.” Id. (first
citing Preseault v. United States, 100 F.3d 1525, 1550–52
(Fed. Cir. 1996) (en banc); then citing Caldwell v. United
States, 391 F.3d 1226, 1228 (Fed. Cir. 2004)).
4                                 HAGGART   v. UNITED STATES



ed an uncompensated taking, in violation of the Fifth
Amendment’s Takings Clause, when King County ac-
quired an interest in the land. 2 Before the class was
certified, sixty-four class members signed contingent fee
agreements with class counsel, providing for a thirty-five
percent fee of the “common fund.” 3 The Haggarts sought
to define the common fund to include land values, inter-
est, and statutory fees under section 304(c) of the Uniform
Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (“URA”). See 42 U.S.C. § 4654(c).
    In September 2009, the Claims Court certified the
class as an opt-in class action in accordance with Rule 23
of the Rules of the United States Court of Federal Claims
(“RCFC”). See Haggart v. United States (Haggart I), 89
Fed. Cl. 523, 536 (2009). On October 16, 2009, class
counsel notified the Claims Court and the Government
that attorney fees “will be the greater of (a) 35% of any
recovery (45% if the case is appealed); or (b) its statutory
attorney[] fees.” S.A. 239. 4 Class counsel also provided a



    2    The Supreme Court has held that the Fifth
Amendment requires the Government to pay compensa-
tion under the Tucker Act, 28 U.S.C. § 1491(a) (1982), to
landowners whose reversionary interests in property were
forestalled by the Trails Act. See Preseault v. I.C.C., 494
U.S. 1, 12–13 (1990).
    3    The Government presents a different figure (sixty-
one members). See Government Br. 41 n.26. However,
Exhibit A of the Haggarts’ Fifth Amended Complaint lists
sixty-eight class members who entered an appearance and
signed the contingency fee agreement (i.e., those members
identified as “Engaged”).       Government Suppl. App.
(“S.A.”) 280–93.
    4    Class counsel issued a notice of proposed final set-
tlement that ultimately sought thirty as opposed to thirty-
five percent of the recovery.
HAGGART   v. UNITED STATES                                 5



copy of the contingency fee agreement to class members
who did not sign the agreement. The Claims Court sub-
sequently divided the class into six subclasses. See Hag-
gart v. United States (Haggart II), 104 Fed. Cl. 484, 491
(2012). After discovery, the parties filed cross-motions for
partial summary judgment relating to two subclasses
(subclasses two and four). In December 2012, the Claims
Court granted-in-part and denied-in-part the cross-
motions. See Haggart v. United States (Haggart III), 108
Fed. Cl. 70, 75 (2012) (asserting that the United States
was “liable to the [s]ubclass [t]wo plaintiffs and several
categories of the [s]ubclass [f]our plaintiffs for the taking
of their property by issuing the trail-use authorizations
when the rail easements did not encompass that use”).
Following this decision, the class was winnowed to 253
class members.
               II.   Settlement Negotiations
    After the Claims Court’s decision in Haggart III, the
parties commenced settlement negotiations for the 253
class members. Both parties retained appraisers to
independently examine the properties and to determine
their fair market value. 5 After two days of mediation, the
parties reached a settlement agreement in the amount of
$110,000,000 for the land of the 253 class members and


    5   Because of the large number and different types of
individual properties, the appraiser for the class estab-
lished twenty-two valuation groups based on the charac-
ter and use of the properties. Each of the twenty-two
representative parcels was individually appraised. The
unappraised parcels were each allocated to one of the
twenty-two representative parcels. As to these parcels,
the appraisers extrapolated the square footage values
from the representative parcels, and using these values
and other variable inputs, estimated the fair market
value of the property interest taken.
6                                 HAGGART   v. UNITED STATES



agreed that interest should be compounded at 4.2% from
the date of the taking, totaling an additional
$27,961,218.69 through May 31, 2014. 6 After a second
mediation, the parties settled on a statutory attorney fees
figure of $2,580,000, consisting of $1,920,000 in fees and
$660,000 in costs. Class members received notice regard-
ing the likely terms of the settlement in September 2013,
and many consented to them at that time.
    III.   The Claims Court’s Approval of the Settlement
              Agreement and Award of Attorney Fees
    On February 12, 2014, class counsel and the Govern-
ment filed a joint motion for approval of the settlement
agreement. The joint motion asserted that “the proposed
settlement is fair, reasonable, and adequate with respect
to the individual claims of each opt-in class member and
as to the class as a whole.” S.A. 375. A day later, class
counsel moved for an additional award of attorney fees
under the common-fund doctrine.
    On February 25, 2014, the Claims Court preliminarily
approved the proposed settlement agreement and also
approved a notice to be sent to the 253 class members.
On February 27, 2014, a slightly revised notice advising
class members of the overall settlement terms, as well as
the settlement terms for the claims of individual class
members (the notice included an individual disclosure
page, which provided the principal and interest for each
landowner’s property) and attorney fees, was sent to class
members. 7




     6 Because “the judgment was not paid on May 31,
2014, and has not been paid to date, interest is now
accruing at approximately $16,100 per day.” Haggart Br.
7.
    7  The notice read in part:
HAGGART   v. UNITED STATES                              7



     The Claims Court held a fairness hearing on March
28, 2014. Of the 253 class members, only three partici-
pated in the hearing. 8 The Woodleys expressed their
dissatisfaction with their proposed award, the awarding
of additional attorney fees as a percentage of the total
recovery, and the lack of “access by class members to
appraisal data.” Haggart IV, 116 Fed. Cl. at 142. The
Claims Court granted class counsel’s motion for approval
of the attorney fees and division of the common fund.
However, the court rejected class counsel’s request that
the statutory fee under the URA should be included in the
common fund for purposes of calculating the contingent
fee.
    The Woodleys appeal the settlement approval and
award of attorney fees. The remaining members of the
class (collectively, the “Haggarts”), oppose the Woodleys
through their class counsel. Although it failed to take a
formal position below, on appeal the Government takes
the position that class counsel improperly refused to




       Class [c]ounsel has proposed that the Court
       approve an award of attorney[] fees in the
       amount of [thirty percent] of the settlement
       sum of $139,881,218.69, which includes prin-
       cipal, interest, and the statutory attorney[]
       fees, but excludes the $660,000.00 that the
       United States agreed to pay to reimburse
       Plaintiffs for the costs and expenses incurred
       on their behalf by [c]lass [c]ounsel. The at-
       torney[] fee award requested by [c]lass
       [c]ounsel amounts to $41,964,365.61.
   S.A. 434.
   8   In addition to the Woodleys, Michael Young and
Sue Long also objected to the proposed settlement agree-
ment.
8                                 HAGGART   v. UNITED STATES



disclose information necessary to allow class members to
assess the fairness and reasonableness of the proposed
settlement. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(3) (2012).
                        DISCUSSION
     Before we address the merits of the Woodleys’ claim,
we are presented with multiple threshold issues. First,
the Haggarts contend the Government lacks standing and
thus cannot challenge the approved settlement and award
of attorney fees. 9 Second, the Haggarts argue that by
failing to raise its arguments before the Claims Court, the
Government’s contentions before this court are barred by
waiver and judicial estoppel. We address each of these
threshold issues in turn.
    I.    The Government Has Standing to Challenge the
         Claims Court’s Award of Attorney Fees Under the
                    Common Fund Doctrine
    The Haggarts contend that the Government lacks
standing to seek review of “any issues pertaining to [c]lass
[c]ounsel’s recovery of attorney[] fees” because it lacks
“any cognizable interests at stake that could support this
[c]ourt’s jurisdiction to review those issues.” Haggart Br.
14 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). In support of this argument, the Haggarts cite to
the Claims Court decision in Geneva Rock Products, Inc.
v. United States, in which the court determined that
because “no class member has objected to the [attorney]


    9   All parties agree that this court’s jurisdiction does
not rest on the Government demonstrating standing
because the Woodleys have standing to contest the set-
tlement agreement and award of attorney fees under the
common fund doctrine. Instead, the Haggarts contend
that this court should not consider the arguments prof-
fered by the Government because it lacks standing.
HAGGART   v. UNITED STATES                                   9



fee award and . . . neither the [G]overnment’s liability nor
its susceptibility to damages is in any way contingent on,
or affected by, the amount of attorney[] fees awarded
apart from the statutory fee,” the Government cannot
establish standing to challenge the contingent fee. 119
Fed. Cl. 581, 593 (2015) (citations omitted).
    Unlike the class members in Geneva Rock, here the
Woodleys have objected to the attorney fee award. Also,
the line of cases relied on by the Claims Court distinguish
between the losing party’s ability to challenge attorney
fees to be paid from a common fund as opposed to a statu-
tory fee. See Copeland v. Marshall, 641 F.2d 880, 905 n.57
(D.C. Cir. 1980) (“[W]here the prevailing party’s fees are
paid by the loser pursuant to statute . . . the losing par-
ty . . . retains an interest in contesting the size of the fee.
This is not the case in ‘common fund’ fee litigation.” (em-
phasis added)).
    The Government possesses an institutional interest in
assuring that courts do not abrogate Congress’s intent by
impermissibly substituting the common fund doctrine in
place of a fee-shifting statute like the URA when award-
ing attorney fees. See Freeman v. Ryan, 408 F.2d 1204,
1206 (D.C. Cir. 1986) (“Where litigation involving federal
programs comes to involve questions of attorney[] fees[,]
the cognizant federal official has an interest in the fee
award as well as the merits of the litigation even though,
or assuming, the fee does not decrease funds in the
Treasury.” (emphasis added)). Attorney fee awards are
“one aspect of the interest of Government officials in the
programs they administer, an interest that is not to be
narrowly and technically confined so as to limit presenta-
tion to courts of issues they consider to have significance
in terms of their overall responsibilities as public offi-
cials.” Id. Although we recognize the Fifth Amendment’s
Takings Clause is not a program administered by the
Government, when an inverse condemnation action under
the Tucker Act alleging a Government taking results in
10                                 HAGGART   v. UNITED STATES



an award of compensation and a statute expressly man-
dates the Attorney General, in settling such actions, to
“determine” and “allow” “such sum as will in the opinion
of . . . the Attorney General reimburse [] plaintiff for . . .
reasonable attorney . . . fees,” 42 U.S.C. § 4654(c), the
Government retains an interest in defending the Attorney
General’s determination that the URA fee constitutes the
reasonable attorney fee. See Allen v. United States, 606
F.2d 432, 434 (4th Cir. 1979) (“[E]ven though fees [were]
not assessed against the [Government][,] . . . the
[G]overnment [retains] [an] interest in the propriety of
fees which it is obliged to disburse.”).
    Because Congress intended the URA to assure that
plaintiffs in inverse-condemnation actions obtain just
compensation for their property taken by the Government
by requiring that the Government pay plaintiffs’ reasona-
ble attorney fees, see Florida Rock Industries v. United
States, 9 Cl. Ct. 285, 291 (1985) (“The Act thus entitles a
plaintiff to be made whole for expenses incurred in achiev-
ing victory”), the Government has an interest “in seeing
that [the attorney fees] it owes to litigants are disbursed
properly.” Allen, 606 F.2d at 434.
     II.   The Government’s Arguments Are Not Barred by
                    Waiver or Judicial Estoppel
                           A. Waiver
     The Haggarts contend the Government should not be
allowed to “disavow[] th[e] settlement [agreement] . . . ,
based upon concerns that it could have raised, but did not
raise, with [the Claims] [C]ourt.” Haggart Br. 15. The
Haggarts assert that during the fairness hearing, “[t]he
[Government] [] sat mute on the disclosure issue. In-
stead, it emphasized the ‘arduous process’ that produced
the settlement and defended [the settlement agreement]
as ‘fair, reasonable[,] and adequate.’” Id. at 16. (brackets
and citations omitted). As to the attorney fee award, they
contend the Government “affirmatively disclaimed any
HAGGART   v. UNITED STATES                               11



interest in the matter, both in response to [c]lass
[c]ounsel’s fee motion and at the fairness hearing.” Id.
Thus, “[b]ecause the [Government] failed to raise these
issues below,” the Haggarts contend we should find them
waived. Id. at 17.
    The Government acknowledges that it “did not take a
position below on the adequacy of [c]lass [c]ounsel’s dis-
closures or its motion for additional fees.” Government
Reply Br. 3. However, with respect to the settlement
agreement, it claims that it “assumed that [c]lass
[c]ounsel had fulfilled its obligation to provide the owners
relevant information,” until the fairness hearing when the
Woodleys “provided additional information about their
communications with [c]lass [c]ounsel.” Government Br.
19. On the basis of this information, the Government
contends it “determined that [c]lass [c]ounsel improperly
refused to disclose information necessary to evaluate the
methodology for valuing the compensation proposed to be
paid to each class member.” Id. Thus, the Government
avers that its current position constitutes a confession of
error “for failing to take a position in the [Claims Court]
on the [Woodleys’] assertions of inadequate disclosure”
and “for failing to oppose in the [Claims Court] [c]lass
[c]ounsel’s motion for additional attorney[] fees under the
common-fund doctrine.” Government Reply Br. 4–5.
    We are not bound to accept the Government’s confes-
sion nor does it relieve us of our obligation to examine
independently the errors confessed. See Young v. United
States, 315 U.S. 257, 258–59 (1942). Nevertheless, the
Supreme Court has held that the Government’s assertion
that reversible error has been committed is “entitled to
great weight,” id. at 258, and that “candid reversal of its
position is commendable,” Orloff v. Willoughby, 345 U.S.
83, 87 (1953); see also Ramos v. Dep’t of Justice, 552 F.3d
1356, 1358 (Fed. Cir. 2009) (accepting the Government’s
confession of error). Because the Government’s “error
[should] not [be] penalized by precluding [its] subsequent
12                                  HAGGART   v. UNITED STATES



assertion of the truth,” we find that the Government
should be allowed to put forth its arguments. Konstan-
tinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980).
                      B. Judicial Estoppel
    The facts of this case render the Haggarts’ judicial es-
toppel arguments untenable. 10 Judicial estoppel is an
equitable doctrine, designed to “protect the integrity of
the judicial process” by “preven[ting] a party from prevail-
ing in one phase of a case on an argument and then
relying on a contradictory argument to prevail in another
phase.” Davis v. Wakelee, 156 U.S. 680, 689 (1895)
(“Where a party assumes a certain position in a legal
proceeding, and succeeds in maintaining that position, he
may not thereafter, simply because his interests have
changed, assume a contrary position, especially if it be to
the prejudice of the party who has acquiesced in the
position formerly taken by him.”). Although “[t]he cir-
cumstances under which judicial estoppel may appropri-
ately be invoked are [] not reducible to any general
formulation or principle,” Allen v. Zurich Ins. Co., 667
F.2d 1162, 1166 (4th Cir. 1982), “main factors” which
typically inform a court’s decision in applying the doctrine
include: “(1) a party’s later position is ‘clearly inconsistent’
with its prior position, (2) the party successfully persuad-
ed a court to accept its prior position, and (3) the party
‘would derive an unfair advantage or impose an unfair


     10 Although the Supreme Court has applied the eq-
uitable doctrine of judicial estoppel to bar state govern-
ments from asserting particular arguments, it has never
expressly applied the doctrine to the federal government.
See New Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(holding that under the doctrine of judicial estoppel, “New
Hampshire is equitably barred from asserting––contrary
to its position in the 1970’s litigation—that the inland
Piscataqua River boundary runs along the Maine shore”).
HAGGART   v. UNITED STATES                              13



detriment on the opposing party if not estopped,’” Organic
Seed Growers & Trade Ass’n v. Monsanto Co., 718 F.3d
1359, 1358–59 (Fed. Cir. 2013) (quoting New Hampshire,
532 U.S. at 750–51).
    Although the Haggarts contend “[a]ll of [the factors in
Monsanto] are present” in this case, they nonetheless
concede the Government “raised no issues about [the
inadequate disclosures] in the joint motion seeking ap-
proval of the settlement or at the fairness hearing.”
Haggart Br. 18 (emphasis added); see also id. at 20 n.9
(characterizing the Government’s conduct as “studied
silence”). Similarly, with respect to the attorney fee
award, the Haggarts again assert “the [Government]
formally took no position on it [before] the [Claims
Court].” Id. at 19 (emphasis added).
    The Haggarts do not contend the arguments made by
the Government before the Claims Court contradict those
made before this court because there was no precise
argument proffered by the Government either before the
Claims Court or in the fairness hearing. The Govern-
ment’s only attempt to do so was with regard to its asser-
tion that the settlement agreement was “fair,
reasonable[,] and adequate.” Id. at 16 (brackets omitted)
(quoting S.A. 545–46). However, acquiescence that the
settlement agreement in total was fair, reasonable, and
adequate is not inconsistent with the Government’s
current assertion that class counsel failed to provide
adequate disclosure of how the settlement agreement was
distributed among every individual class member. 11 See



   11   “While the [Government] continues to believe that
the total principal amount of $110 million is fair to the
class as a whole, the approval of the settlement without
requiring proper disclosure constituted an abuse of discre-
tion and this case should be remanded to the [Claims
14                                HAGGART   v. UNITED STATES



S.A. 545–46 (During the fairness hearing, the Govern-
ment asserted it “had specific points about the different
properties and the issues that [were] involved with them
and we didn’t discuss necessarily every individual proper-
ty, but there were common factors among groups of prop-
erty that we discussed.” (emphasis added)). Here, the
Government has not disavowed or proffered any conflict-
ing assertions not raised before the Claims Court or in the
fairness hearing. What is more, its acquiescence or
failure to take a position on the attorney fees issue is not
congruent to a disavowal of a previous position and, thus,
cannot form the basis for judicial estoppel. See United
States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (“[I]f the
[G]overnment is to be judicially estopped, the estoppel
must be limited to a precise argument presented by the
[G]overnment and accepted by the [court].” (emphasis
added)).
    Because the Government has not presented argu-
ments at variance with its earlier contention, none of the
three factors articulated in Monsanto are present in the
case before us. Therefore, the Government’s arguments
are not barred by judicial estoppel.
III.   Class Counsel Failed to Disclose How It Calculated
             the Individual Compensation Amounts
    We review the Claims Court’s “legal holdings de novo
and examine[] [its] factual findings for clear error.”
Banks v. United States, 741 F.3d 1268, 1275 (Fed. Cir.
2014) (citing Bell BCI Co. v. United States, 570 F.3d 1337,
1340 (Fed. Cir. 2009)). As to the Claims Court’s approval
of a class action settlement agreement, we review its
determination that the agreement was fair, reasonable,
and adequate for abuse of discretion. See In re Cendant



Court] for proper disclosure to all class members.” Gov-
ernment Br. 28.
HAGGART   v. UNITED STATES                               15



Corp. Litig., 264 F.3d 201, 231 (3d Cir. 2001); see also In
re Gen. Motors Corp. Engine Interchange Litig., 594 F.2d
1106, 1124 (7th Cir. 1979)
    The Government contends “[c]lass [c]ounsel improper-
ly refused to disclose information necessary to evaluate
the methodology for valuing the compensation proposed to
be paid to each class member, and this refusal deprived
class members of the ability to evaluate the fairness and
reasonableness of the proposed settlement.” Government
Br. 19. The Woodleys and the Government also contend
class counsel failed to provide “the square-footage docu-
mentation, appraisals or spreadsheets.” Id. at 20 (foot-
notes omitted).         According to the Government,
compensation amounts were allocated to individual class
members “based on the square-footage documentation,
the appraisals of the representative parcels, and the
series of three spreadsheets that show how [c]lass
[c]ounsel and its appraiser extrapolated [dollar/square-
footage] values from the appraised parcels to the unap-
praised parcels.” Id. The spreadsheets include: “(1) the
original spreadsheet reflecting [c]lass [c]ounsel’s initial
demand, (2) the spreadsheet prepared after the first day
of mediation on May 29, 2013, reflecting a reduced de-
mand, and (3) the spreadsheet reflecting the $110 million
settlement.” 12 Id. at 19–20.



   12    According to the Government:
        The relevant factors addressed in these doc-
        uments are: (1) the ‘before’ parcel [square-
        footage]; (2) the before parcel $/[square-
        footage]; (3) the estimated cost of removing
        ballast from the right-of-way (the ‘excavation
        cost’) . . . ; (4) the ‘after” parcel [square-
        footage] (deducting the [square footage] in
        the right-of-way); (5) the after parcel
16                                    HAGGART   v. UNITED STATES



    The Haggarts contend the Claims Court “determined
that class members had sufficient information concerning
their individual settlement amounts, including the ap-
praisals.” Haggart Br. 27. They argue the Government
and the Woodleys “fail to cite any authority supporting
their argument that [c]lass [c]ounsel had a duty separate
and apart from [RCFC] Rule 23(e)(1)[13] to provide the


          $/[square-footage] (which is often different
          from the before parcel $/[square-footage]);
          and (6) whether the deed is a ‘Roeder’ deed.
          Based on these factors, the ‘before’ parcel’s
          value is ([square-footage] × ($/[square-
          footage])) − (excavation cost). The ‘after’ par-
          cel’s value is [square-footage] × ($/[square-
          footage]). The compensation amount for each
          parcel is generally (before value − after val-
          ue) × 80% (for parcels with ‘Roeder’ deeds),
          although there are exceptions.
Government Br. 21 (footnote omitted).
The term “Roeder deed” was established in The
Roeder Co. v. Burlington Northern Inc., where the
Supreme Court of Washington, sitting en banc,
described it as “a deed [that] refers to the right of
way as a boundary but also gives a metes and
bounds description of the abutting property.” 105
Wash. 2d 567, 577 (Wash. 1986) (en banc).
     13    RCFC Rule 23(e)(1) states:
          (e) Settlement, Voluntary Dismissal, or
          Compromise. The claims, issues, or defenses
          of a certified class may be settled, voluntarily
          dismissed, or compromised only with the
          court’s approval. The following procedures
          apply to a proposed settlement, voluntary
          dismissal, or compromise.
HAGGART   v. UNITED STATES                              17



specific documents and information requested by individ-
ual class members regarding their individual settlement
amounts.” Id. at 29 (footnote added). Finally, the Hag-
garts contend class counsel ‘“explained the underlying
methodology and data’ . . . [which] was more than ade-
quate to enable class members to decide whether to object
to the settlement –– and [the Woodleys] in fact did object
and were give a lengthy opportunity to be heard at the
fairness hearing.” Id. at 30 (quoting Haggart IV, 116 Fed.
Cl. at 142). The Haggarts concede that “the master
damages calculation spreadsheet for all 253 parcels was
not provided to the class members (i.e., class members
were not shown the individual settlement amounts of
other class members).” Haggart Br. 34–35. However, the
Haggarts assert that “[c]lass [c]ounsel explained the
methodology for determining the individual settlement
amounts” during meetings held with class members in
October 2013. Id. at 35 (emphasis added).
    The precise issue before us is whether the Claims
Court abused its discretion by finding class counsel’s act
of explaining, as opposed to physically providing objecting
class members with a copy of the final spreadsheet detail-
ing the precise methodology used to calculate the alloca-
tion of their property values, satisfied the requirement
that the settlement agreement be “fair, reasonable and
adequate.” RCFC 23(e)(2). The facts of this case support
our finding that it did.
    We recognize that notice need not “contain a formula
for calculating individual awards” or provide a “complete
source of information.” Petrovic v. Amoco Oil Co., 200



            (1) The court must direct notice in a
            reasonable manner to all class members
            who would be bound by the proposal.
RCFC 23(e)(1).
18                                HAGGART   v. UNITED STATES



F.3d 1140, 1153 (8th Cir. 1999) (quoting DeBoer v. Mellon
Mortg. Co., 64 F.3d 1171, 1176 (8th Cir. 1995)); see also
William B. Rubenstein, Newberg on Class Actions § 8:17
(5th ed. 2015) (“Newberg”) (“[N]otice need not be overly
long and stuffed with every relevant bit of information,
and parties are not always strictly bound to the language
approved by the court.” (footnotes omitted)). However,
because notices are often general and need not encompass
all relevant details, it is crucial that class counsel allow
class members to “easily acquire more detailed infor-
mation” should they choose to do so. Petrovic, 200 F.3d at
1153; see also Faught v. Am. Home Shield Corp., 668 F.3d
1233, 1240 (11th Cir. 2011) (approving settlement agree-
ment because the notice provided “instructions for access-
ing a website established for the purpose of providing
additional information regarding the proposed settle-
ment”); Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1797.6 (3d ed. 2004) (“[C]ourts
have approved notices that did not contain some of the
precise details of the settlement, such as the distribution
or allocation plan, or the amount of attorney fees to be
taken out, as long as sufficient contact information is
provided to allow the class members to obtain more
detailed information about those matters.” (footnotes
omitted)); Manual for Complex Litigation, Fourth,
§ 21.312 (2004) (“Manual”) (stating that notice should
“prominently display the address and phone number of
class counsel and how to make inquiries”).
    Despite the Haggarts’ attempt to frame it as such,
this case does not concern the notice provided by class
counsel to class members outlining the details of the
settlement agreement. Rather, it is rooted in the Wood-
leys’ request for additional information concerning the
methodology class counsel employed in calculating the
fair market value of unappraised properties. Courts have
rarely had an opportunity to assess counsel’s provision of
additional information concerning a settlement agree-
HAGGART   v. UNITED STATES                                 19



ment due to the proliferation of the use of easily-
accessible mediums, such as the Internet, which permits
class members to evaluate the agreement in greater
detail. See Newberg § 8:17 at 283 (“[A]s the Internet
develops, it is easy, and relatively costless, to provide
class members free access to a set of documents in the
lawsuit at settlement, not just to a synopsis describing the
settlement. . . . Given the ease of making this material
available to class members, courts may become increas-
ing[ly] wary of settlements that fail to do so.”); see also In
re Pet Food Prods. Liab. Litig., 629 F.3d 333, 339–40 (3d
Cir. 2010) (“[A] settlement website [was] established,
through which class members could obtain additional
information and copies of settlement documents.”)
     The Claims Court may approve a settlement proposal
“only after a hearing and on finding that it is ‘fair, rea-
sonable, and adequate.’” RCFC 23(e)(2). Although typi-
cally articulated in the context of challenges to formal
court-approved notices of settlement under Rule 23(e)(1)
of the Federal Rules of Civil Procedure (“FRCP”), the
general principle that notice must be “reasonably calcu-
lated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections,” Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)
(citations omitted), is equally applicable in the context of
the provision of additional information, see In re Katrina
Canal Breaches Litig., 628 F.3d 185, 197 (5th Cir. 2010)
(reversing approval of a class action settlement because
class members were not provided “information reasonably
necessary for them to make a decision whether to object to
the settlement”). Although “[t]here are no rigid rules to
determine whether a settlement notice to the class satis-
fies constitutional or Rule 23(e) requirements,” Wal-Mart
Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir.
2005), class counsel, either by notice or the method by
which additional information is provided, must provide
20                                HAGGART   v. UNITED STATES



“all necessary information for any class member to be-
come fully apprised and make any relevant decisions,”
Katrina, 628 F.3d at 198 (emphasis added) (internal
quotation marks and citation omitted). Of course what
constitutes “necessary information” depends on the par-
ticular circumstances of the proposed settlement. See
Wal-Mart Stores, 396 F.3d at 114.
    In this case, due to the large number of individual
properties, class counsel and the class appraiser divided
the properties into three distinct categories: (1) “unique”
properties; (2) “representative” properties; and (3) “non-
representative” properties. See Haggart IV, 116 Fed. Cl.
at 136. Properties characterized as unique “did not share
enough common valuation features with any other proper-
ties directly appraised,” thus their fair market values
were “directly determined by an appraisal for that specific
property.” Id. Similarly, with respect to representative
properties, determination of the parcels’ fair market value
was also based on a direct appraisal of the property. The
only parcels not individually appraised were non-
representative parcels. In calculating the fair market
values of non-representative parcels, the properties were
divided into twenty-two groups and within each group,
representative parcels were chosen to serve as proxies for
the properties in the group based on a myriad of factors
such as “common use, zoning, similar location, and other
significant features with the other properties in the sub-
group.” J.A. 85.
    Full disclosure of the precise methodology employed
in arriving at the value of non-representative properties is
especially important in this context because of the various
inputs used in calculating the fair market value of unap-
praised properties and the significant discrepancy in the
allocation of the final property values. See S.A. 403–17
(proposed compensation ranged from $444.45 to more
than $2.4 million). Where inequities in treatment exist
among class members, class counsel must provide mem-
HAGGART   v. UNITED STATES                               21



bers with sufficient information justifying any disparate
treatment. See Vassalle v. Midland Funding LLC, 708
F.3d 747, 755 n.1 (6th Cir. 2013) (reversing the district
court’s approval of proposed settlement agreement and
stating that “[e]ven if they were not disproportionate, we
would still hold the inequities in treatment here are
unfair because the record contains no justification for
these inequities”).
    Because the fair market values of non-representative
parcels were extrapolated from one of twenty-two repre-
sentative groups, determinations of the fair market
values of non-representative properties must have been
derived from some methodology, using the value of the
representative property and some variable inputs (i.e.,
square footage documentation of the unappraised proper-
ty, the topography of the property, and the excavation
cost). However, it is undisputed that class counsel did not
provide the Woodleys, or any other class members, with
information about the representative property from which
their parcel was extrapolated or how any of the variable
inputs were valued in calculating the fair market value of
their individual properties. In response, the Haggarts
assert that counsel “did not provide to class members the
appraisals of the [twenty-two] representative parcels
because [counsel] believed that they would have been of
no assistance to the class members in evaluating their
individual settlement amounts.” Haggart Br. 33. Thus,
class counsel never provided class members with infor-
mation about the base value from which the fair market
value of their unappraised parcels was derived. Because
the fair market value of each non-representative parcel is
derivative of one of the twenty-two representative proper-
ties, the value of the representative properties constitutes
the starting point in determining the value of non-
representative properties. Absent provision of this value,
class members cannot assess whether the fair market
22                                HAGGART   v. UNITED STATES



value of their property was fair, reasonable, and ade-
quate. See RCFC 23(e)(2).
     Class counsel also asserts that it provided “the portion
of the spreadsheet concerning each class member’s par-
cel.” Haggart Br. 35. However, this information does not
constitute “necessary information for any class member to
become fully apprised and make any relevant decision[].”
See Katrina, 628 F.3d at 198 (citation omitted). A rele-
vant decision could not have been made by any class
member whose property was not directly appraised. Mere
examination of the spreadsheet detailing the fair market
value of the property provides no guidance or insight in
determining whether the property value is fair, reasona-
ble, and adequate because necessary information such as
the articulation of the variables and other inputs from
which the fair market value was derived was not provid-
ed. See Manual § 21.312 (Class counsel must “explain the
procedures for allocating and distributing settlement
funds, and, if the settlement provides different kinds of
relief for different categories of class members, clearly set
forth those variations.”).
    We recognize receipt of only three objections from a
class of 253 members militates in favor of approval of the
settlement agreement. 14    However, in this instance,
because counsel withheld additional information critical


     14 See, e.g., Wal-Mart Stores, 396 F.3d at 118 (stat-
ing that “the absence of substantial opposition is indica-
tive of class approval” when only eighteen of five-million
class members objected); see also Raulerson v. United
States, 108 Fed. Cl. 675, 678 (2013) (“The fact that only a
small number of class members object to a proposed
settlement strongly favors approval.” (citation omitted));
Manual § 21.61 at 310 (“The lack of significant opposition
may mean that the settlement meets the requirements of
fairness, reasonableness, and adequacy.”).
HAGGART   v. UNITED STATES                                  23



to any evaluation of the settlement agreement, such
conduct renders the agreement unfair because the Wood-
leys and all other class members were unable to verify
whether their individual settlement awards were “fair,
reasonable, and adequate.” RCFC 23(e)(2). That objec-
tions are only by a minority of class members cannot
ratify the deprivation of readily available information and
does not negate the earnest efforts of class members,
however few, from seeking fair compensation. See Eu-
bank v. Pella Corp., 753 F.3d 718, 721 (7th Cir. 2014)
(noting “the importance . . . of objectors . . . and of intense
judicial scrutiny of proposed class action settlements”); see
also Manual § 21.61 (stating that the lack of significant
opposition to a settlement agreement “might signify no
more than inertia by class members”).
    With respect to the Haggarts’ contention that class
counsel “explained the methodology for determining the
individual settlement amounts,” Haggart Br. 35, apart
from documents provided in the notice to the class, class
counsel did not provide any additional documents such as
the spreadsheets detailing the precise methodology used
to calculate the fair market value of the properties that
would have placed the Woodleys and other class members
in a position to determine for themselves whether the
allocation of the settlement agreement was fair, reasona-
ble, and adequate, see S.A. 548 (Mrs. Woodley asserting
during the fairness hearing that “[w]e would just like to
see [the appraisal documentation] . . . . The appraisal
starting point, the spreadsheets, the calculations. We’ve
never seen them. [Class counsel] talked about it, briefly,
but we’ve never seen it.”); see also Manual § 21.312 (As-
serting that class counsel must “provide information that
will enable class members to calculate or at least estimate
their individual recoveries.” (emphasis added)).
    Mere provision of the final values of the unappraised
properties, without more, cannot render the settlement
agreement “fair, reasonable, and adequate.”        RCFC
24                                HAGGART   v. UNITED STATES



23(e)(2). Moreover, under the Washington Rules of Pro-
fessional Conduct (“RPC”), class counsel owes a fiduciary
duty to his clients to furnish such information. See Wash-
ington RPC 1.4(a)(4) (“A lawyer shall: promptly comply
with reasonable requests for information.”). We see no
reason why under these facts class counsel can or should
deny his clients access to the physical copy of information
which they are entitled to receive. Otherwise, effective
representation of the class members’ interests cannot
occur. See Weinberger v. Kendrick, 698 F.2d 61, 74 (2d
Cir. 1982) (stating that to achieve “effective representa-
tion of the class’s interests,” the provision of adequate
information includes allowing “access to materials pro-
duced in discovery” (citations omitted)).
     The Claims Court erred in approving a settlement
agreement where class counsel withheld critical infor-
mation not provided in the mailed notice to class mem-
bers, but which had been produced and was readily
available. Thus, the court abused its discretion by failing
to consider the accessibility or availability of information
necessary for the Woodleys and other class members to
make an informed decision about the settlement agree-
ment. See In re Bank of Am. Corp. Sec., Derivative, &
Emp. Ret. Income Sec. Act (ERISA) Litig., 772 F.3d 125,
132 (2d Cir. 2014) (in a class action suit, a court abuses or
exceeds the discretion accorded to it when “its decision––
though not necessarily the product of a legal error or a
clearly erroneous factual finding––cannot be located
within the range of permissible decisions” (internal quota-
tion marks and citation omitted)); see also Eastway Con-
str. Corp. v. City of N.Y., 821 F.2d 121, 123 (2d Cir. 1987)
(“All discretion is to be exercised within reasonable limits.
The concept of discretion implies that a decision is lawful
at any point within the outer limits of the range of choices
appropriate to the issue at hand; at the same time, a
decision outside those limits exceeds or, as it is infelici-
HAGGART   v. UNITED STATES                                25



tously said, ‘abuses’ allowable discretion.” (citations
omitted)).
            IV.    The Common Fund Doctrine
     We now turn to the Claims Court’s award of attorney
fees under the common fund doctrine. 15 The common
fund doctrine is rooted in the traditional practice of courts
of equity and derives from the equitable power of the
courts under the doctrines of quantum meruit, Central
R.R. & Banking Co. v. Pettus, 113 U.S. 116, 128 (1885),
and unjust enrichment, Trustees v. Greenough, 105 U.S.
527, 532 (1881). Under the common fund doctrine, “a
litigant or a lawyer who recovers a common fund for the
benefit of persons other than himself or his client is
entitled to [] reasonable attorney[] fees from the fund as a
whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478
(1980) (citations omitted).
    Our analysis requires three steps. First, we address
whether the circumstances of this case creates a common
fund. We then address whether the common fund doc-
trine is applicable under RCFC 23 class actions. Finally,
we determine whether an attorney may recover attorney
fees under the common fund doctrine in lieu of reasonable
attorney fees provided by the URA. We take each of these
issues in turn.
                  A. A Common Fund Exists
    The Woodleys and the Government assert that, con-
trary to the Claims Court’s determination, “[t]here is no
common fund.” Woodley Br. 12. Specifically, the Gov-



    15   The doctrine presents one variant to the American
Rule of attorney fees reaffirmed by the Supreme Court in
Alyeska Pipeline Service Company v. Wilderness Society,
under which all parties are to bear their own costs in
litigation. 421 U.S. 240, 275 (1975).
26                                HAGGART   v. UNITED STATES



ernment argues that “[t]he bundling of individual pay-
ments so [c]lass [c]ounsel can conveniently collect fees
cannot transform separate payments into a ‘common fund’
entitling [c]lass [c]ounsel to common-fund fees.” Govern-
ment Br. 38.
    In response, the Haggarts argue that the Woodleys
and the Government’s contention that the Claims Court’s
“award was merely a ‘bundling’ of individual claims is []
puzzling” because “[a]ll class actions, and hence all class
action settlements, are necessarily a bundling of individ-
ual claims.” Haggart Br. 41.
    The issue here is whether the circumstances of this
case create a common fund. Although often collapsed by
courts into a single analysis, as we explain in greater
detail below, the question of whether a common fund has
been created is distinct from whether the doctrine may be
applied to allow class counsel or the prevailing litigant to
recover attorney fees. See Brytus v. Spang & Co., 203
F.3d 238, 243 (3d Cir. 2000) (“[T]he fact that a common
fund has been created does not mean that the common
fund doctrine must be applied in awarding attorney’s
fees.”). Recovery of attorney fees under a common fund is
based on the existence of some inequity borne by counsel
or the successful litigant. See id. at 246. Conversely,
whether a common fund exists concerns whether the $110
million settlement agreement to be distributed to class
members may be so characterized. See Knight v. United
States, 982 F.2d 1573, 1582 (Fed. Cir. 1993).
    Although the historical origins of the common fund
doctrine suggests it was primarily applied to decisions
involving express trusts in which there was a clearly
defined trust fund, see Greenough, 105 U.S. at 527; Pettus,
113 U.S. at 127, it has also been applied where the crea-
tion of the fund is prospective and has yet to be made
formally available to individuals who are similarly situat-
ed, see Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 167
HAGGART   v. UNITED STATES                                27



(1939). 16 The Supreme Court spoke more precisely on this
issue in Boeing, where it determined that “[t]he criteria
[for application of the common fund doctrine] are satisfied
when each member of a certified class has an undisputed
and mathematically ascertainable claim to part of a lump-
sum judgment recovered on his behalf.” 444 U.S. at 479.
Here, the lump-sum amount is the $110 million to be paid
by the Government and each landowner’s individual
ascertainable claim is the fair market value of his proper-
ty. Id.
    The Woodleys and the Government argue that be-
cause the individual appraisal values must first be de-
termined, then summed before arriving at the $110
million settlement, this is substantively distinct from first
determining the aggregate amount of the fund, then from
this total, apportioning individual claims.        However,
predicating the creation of a common fund on the order in
which the settlement agreement was calculated would
yield an untenable distinction not contemplated by any
prevailing Supreme Court precedent. The determination
of a total settlement agreement is always derived from
the aggregation of some underlying individual claim.
Moreover, limiting the common fund doctrine to exclude
the discrete bundling of individual awards would unduly
narrow the application of the doctrine, which is expressly
designed to give courts the power to equitably spread
costs. See Sprague, 307 U.S. at 167.
    Our decision finds support from the Ninth Circuit,
which has allowed the creation of putative or hypothetical
funds by aggregating the amount a defendant would pay
in damages to members of the class under the settlement


    16  In Sprague, the creation of the fund was not based
on a common pool of money in which each claimant is
entitled, but instead distributed across fourteen individu-
al trusts. 307 U.S. at 166.
28                                HAGGART   v. UNITED STATES



agreement. See Staton v. Boeing Co., 327 F.3d 938, 972
(9th Cir. 2003); see also id. at 971 n.21 (“The description
of the total amount of the [common] fund need not take
any particular form and could result from adding up
separately-enumerated amounts in the agreement.”).
Thus, we hold the circumstances in this case create a
common fund.
          B. The Common Fund Doctrine is Applicable to
                     RCFC 23 Class Actions
    Because we find a common fund exists, we turn to the
applicability of the common fund doctrine to RCFC 23
class actions. That is a question of law subject to de novo
review. See Capital Bancshares Inc. v. Fed. Deposit Ins.
Corp., 957 F.2d 203, 209 (5th Cir. 1992).
    The Government argues that even if we were to find
that the “settlement created a ‘common fund,’ the com-
mon-fund doctrine still does not apply because there are
no non-clients who benefit from class counsels’ efforts in
[RCFC 23] class-actions.” 17 Government Br. 38 (emphasis
added).
     In response, the Haggarts argue the circumstances of
this case render the application of the common fund
doctrine apposite. Specifically, the Haggarts assert that
“[c]lass [c]ounsel obtained a sizeable recovery that bene-
fits all of the class members, and equity demands that all
class members contribute to [class] [c]ounsel’s compensa-
tion.” Haggart Br. 39. The Haggarts also argue that


     17 RCFC 23 requires potential class members to opt-
in to the class, whereas FRCP 23(b)(3) class actions are
opt-out class actions. See Newberg § 9:48, at 551–53 (“The
default rule in class actions is that a class member is
included in the class unless she excludes herself; a court
cannot, therefore adopt the reverse rule––that only class
members who include themselves are part of the class.”).
HAGGART   v. UNITED STATES                                29



“RCFC 23 does not require opt-in class members to share
the litigation expenses” and “[c]lass [c]ounsel d[id] not
have a fee agreement with all of the class members (alt-
hough all class members were made aware of the agree-
ment) and all stand to recover substantial sums from the
United States.” Id. at 42.
    The Government’s contention that, because RCFC 23
requires potential class members to opt-in to the class,
there can be “no non-clients who benefit from class coun-
sels’ efforts,” Government Br. 38, presents a distinction
without a difference. Here, class counsel initially had a
thirty-five percent contingency fee agreement with some
class members before the class was certified. Haggart IV,
116 Fed. Cl. at 137–38. However, upon certification of the
class, “although all class members were made aware of
the agreement,” class counsel did “not have a fee agree-
ment with all of the class members.” Haggart Br. 42
(emphasis added). Thus, the fact that these members
opted-in and were therefore “parties” to the litigation is
irrelevant. Rather, in considering the application of the
common fund doctrine, the relevant question is whether
an inequity exists. See Boeing Co., 444 U.S. at 478. Of
the 253 class members entitled to compensation, we count
only sixty-eight members as signing the contingency-fee
agreement. Although 253 individuals opted-in to the
class, it is clear that 185 (approximately 73%) of those
members are not differently situated from absentees in a
FRCP 23(b)(3) class action because they were not contrac-
tually obligated to contribute to the payment of attorney[]
fees incurred on their behalves. Thus, contrary to the
Government’s assertion, what matters is not whether
“counsel in RCFC 23 class actions can enter into agree-
ments with each member at the opt-in stage,” but wheth-
er he actually did. Government Br. 40 (emphases added).
    Here, because 185 class members did not sign the con-
tingency fee agreement, they were not contractually
obligated to contribute to the costs of the litigation. Thus,
30                                  HAGGART   v. UNITED STATES



before considering how the URA impacts the application
of the common fund doctrine, at this point in our discus-
sion, it is clear that some inequity exists, at least with
respect to sixty-eight members of the class. Ascribing
significance to the fact that the remaining 185 members
“opted-in” and were therefore parties to the litigation
elevates form over substance. See Sprague, 307 U.S. at
167 (“[T]he formalities of the litigation . . . hardly touch
the power of equity in doing justice as between a party
and the beneficiaries of his litigation.”).
          C. Recovery of Attorney Fees Under the Common
               Fund Doctrine Is Preempted by the URA
    We turn to whether the presence of the URA resolves
the inequity. That is, we consider whether class counsel
can recover attorney fees under the common fund doctrine
in lieu of the URA, which provides class counsel with
reasonable attorney fees. We review the determination of
reasonable attorney fees for abuse of discretion. See
Bywaters, 670 F.3d at 1228; Hall v. Sec’y of Health &
Human Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011).
However, errors of law in the award of attorney fees are
corrected without deference. See Bywaters, 670 F.3d at
1228–34; Brytus, 203 F.3d at 244.
    Congress has determined that in certain cases the
prevailing parties may recover their attorney fees from
the opposing side. See 42 U.S.C. § 4654(c). 18 Statutes


     18Section 4654(c) of Title 42 of the United States
Code provides in its entirety:
          The court rendering a judgment for the
          plaintiff in a proceeding brought under sec-
          tion 1346(a)(2) or 1491 of Title 28, awarding
          compensation for the taking of property by a
          Federal agency, or the Attorney General ef-
          fecting a settlement of any such proceeding,
HAGGART   v. UNITED STATES                               31



that provide for such fees are termed “fee-shifting” stat-
utes. Unlike the common fund doctrine, fee-shifting
statutes require the losing party to bear the burden of the
attorney fees. Under a fee-shifting statute, the court
calculates awards for attorney fees using the “lodestar
method” which is “the product of reasonable hours times a
reasonable rate.” City of Burlington v. Dague, 505 U.S.
557, 559–60 (1992) (quoting Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986)).
    In common fund cases, district courts have applied
the lodestar method to determine the amount of attorney
fees. See In re Wash. Pub. Power Supply Sys. Sec. Litig.,
19 F.3d 1291, 1299 (9th Cir. 1994). However, unlike
statutory fee-shifting cases, in common fund cases, courts
have applied a risk multiplier when using the lodestar
approach. 19 Id. Alternatively, as in this case, courts may
determine the amount of attorney fees to be awarded from


      shall determine and award or allow to such
      plaintiff, as a party of such judgment or set-
      tlement, such sum as will in the opinion of
      the court or the Attorney General reimburse
      such plaintiff for his reasonable costs, dis-
      bursements, and expenses, including reason-
      able attorney, appraisal, and engineering
      fees, actually incurred because of such pro-
      ceeding.
42 U.S.C. § 4654(c).
    19  “A ‘multiplier’ is a number, such as 1.5 or 2, by
which the base lodestar figure is multiplied to increase (or
decrease) the award of attorney[] fees on the basis of
factors such as the risk of prevailing on the merits of the
case and the length of the proceedings.” See Staton, 327
F.3d at 968. But see Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 546 (2010) (asserting that “there is a strong
presumption that the lodestar is sufficient”).
32                                HAGGART   v. UNITED STATES



the fund by employing a percentage method. See Blum v.
Stenson, 465 U.S. 886, 900 n.16 (1984) (“[U]nder the
‘common fund doctrine,’ . . . a reasonable fee is based on a
percentage of the fund bestowed on the class.”); see also
Applegate v. United States, 52 Fed. Cl. 751, 760 (2002)
(“[C]ourts readily calculate fees [] as a percentage of the
fund.”).
    The URA is a fee-shifting statute and provides for the
award of “reasonable” attorney fees in two distinct cir-
cumstances. First, attorney fees may be awarded where
the Government begins a condemnation proceeding re-
sulting in either a final judgment that the Government
may not acquire the property by condemnation or aban-
donment of the proceeding by the Government. See 42
U.S.C. § 4654(a)(1)–(2); see also Bywaters, 670 F.3d at
1227. Second, attorney fees may also be granted where,
as in the case before us, a landowner brings an inverse
condemnation action under the Tucker Act or the Little
Tucker Act alleging a Government taking under the Fifth
Amendment and that action results in an award of com-
pensation for the taking. See id.; 42 U.S.C. § 4654(c).
    The Government argues that “applying [a common
fund] to a judgment specifying a sum certain for every
party/client when the attorney will receive a reasonable
statutory fee [under the URA] stretches the doctrine
beyond all recognition.” Government Br. 32. According to
the Government, because “[f]ederal fee-shifting statutes,
including the URA, . . . provide for defendants to pay
‘reasonable’ fees[,] [a]n additional fee is by definition
unreasonable when a reasonable statutory fee has already
been awarded.” Id. at 41. Accordingly, the Government
contends “[t]here is no basis in equity for awarding com-
mon-fund fees as well as the URA fees.” Id.
    The Haggarts assert the Supreme Court’s decision in
Venegas v. Mitchell is controlling because it “did not
preclude recovery of additional attorney[] fees under a
HAGGART   v. UNITED STATES                               33



contingency fee contract.” Haggart Br. 44 (citing 495 U.S.
82, 90 (1990)). According to the Haggarts, “[t]he teaching
of Venegas is that fee-shifting statutes do not regulate
what clients pay their lawyers, and do not cap or limit the
amount of fees that lawyers can collect.” Id. at 45. Thus,
the Haggarts contend “the URA does not address or
regulate what plaintiffs are to pay [c]lass [c]ounsel, and
does not impose any constraint on the [Claims Court’s]
inherent equitable authority to award common-fund fees.”
Id. at 45–46.
    The Claims Court defined the common fund to include
the principal amount and interest. Haggart IV, 116 Fed.
Cl. at 144. However, it rejected the Haggarts’ contention
that the statutory attorney fees of $1,920,000, calculated
using the lodestar method, must be included as part of the
common fund. Id. (“[H]ere the contingent fee percentage
should be applied to the principal and interest, not also to
the amount of statutory fees.”). The court found “that the
common fund consists of $137,961,218.69 ($110,000,000 in
principal [plus] $27,961,218.69 in interest).” Id. at 148.
    As to whether class counsel’s request for thirty per-
cent of the common fund was reasonable, the Claims
Court looked to factors it has previously applied in deter-
mining the percentage of recovery. Id. at 145. The court
ultimately used a scaled methodology and, from the $110
million the Government agreed to pay, “award[ed] class
counsel 30% of the first $50 million, 25% of the next $50
million, and 20% of all monies over $100 million.” Id. at
148. Thus, the court awarded class counsel fees totaling
$35,092,243.74. Id. Finally, because class counsel re-
tained the agreed statutory fee, the court awarded class
members “a dollar-for-dollar credit for the statutory fee
paid by the [G]overnment in the amount of $1,920,000,
[thus] reducing the amount of the attorney[] fees to paid
34                               HAGGART   v. UNITED STATES



out of the common fund to $33,172,243.74. 20 Id. (footnote
omitted).
     The fact that a common fund has been created is not
sufficient to establish a finding that the common fund
doctrine must be applied when awarding attorney fees, an
assertion implicit in the Haggarts’ argument. See Brytus,
203 F.3d at 243. Rather, recovery under the common
fund doctrine derives from the equitable power of courts
to create the obligation for attorney fees against benefits
received as a result of the advocacy of another. Knight,
982 F.2d at 1580. Thus, recovery requires the existence of
an inequitable outcome, which in turn requires redressa-
bility.
    We begin our analysis by noting that, contrary to the
Haggarts’ contention and the Claims Court’s determina-
tion, Venegas does not govern the case before us. See
Haggart IV, 116 Fed. Cl. at 148 n.18 (stating that “to
disallow a contingent fee in this case would be contrary to
[Venegas]”). In Venegas, the Supreme Court held a stat-
ute authorizing payment of reasonable attorney fees to
prevailing civil rights plaintiffs does not invalidate con-
tingent fee contracts that would require a prevailing
plaintiff to pay his attorney more than the statutory
award against the defendant. 495 U.S. at 90 (stating that
42 U.S.C. § 1988 “does not interfere with the enforceabil-
ity of a contingent-fee contract”). Unlike the common
fund doctrine, which is imposed absent the express
agreement of class members as a matter of equity, contin-
gent fee awards are a matter of individual contract. Thus,
although the Court’s holding in Venegas may be applica-
ble to class members who signed the contingent fee
agreement, we see no reason to extend it to the majority




      This amount represents approximately 24% of the
     20

common fund.
HAGGART   v. UNITED STATES                               35



of class members, including the Woodleys, who did not
sign the agreement.
     The URA expressly allows landowners to retain the
full compensation of the value of their property by man-
dating the Government to assume the litigation expenses
of counsel in bringing forth the takings claim. See 42
U.S.C. §4654(c); (asserting that plaintiff shall be awarded
“such sum as will in the opinion of the court or the Attor-
ney General reimburse such plaintiff for his . . . reasona-
ble attorney . . . fees”); see also URA Legislative History,
S.1, Senate Floor Remarks, Congressional Record, Senate,
115 Cong. Rec. 31533 (Oct. 27, 1969), Uniform Relocation
Assistance and Land Acquisition Policies Act of 1969
(“Transactions must be carried out in a manner that will
assure that the person whose property is taken is no
worse off economically than before the property was
taken.”). Under the URA, it is the Government, as op-
posed to class counsel or another member of the plaintiff
class, who bears the reasonable cost of the action; thus,
the inequity that would otherwise result is expressly
addressed by the statute. In the presence of the URA, we
find no inequity to redress. The sine qua non of the com-
mon fund doctrine is that some inequity must exist.
Without inequity, class counsel cannot attempt to aug-
ment reasonable attorney fees by substituting the appli-
cation of the doctrine in place of the URA. Such an action
not only undermines the purpose of the URA, see Milwau-
kee v. Illinois & Michigan, 451 U.S. 304, 314 (1981)
(“[W]hen Congress addresses a question previously gov-
erned by a decision rested on federal common law[,] the
need for such an unusual exercise of lawmaking by feder-
al courts disappears.”), but also unjustly enriches class
counsel at the expense of class members, a result diamet-
ric to the primary purpose of the common fund doctrine,
see Greenough, 105 U.S. at 532; see also Tex. v. Pankey,
441 F.2d 236, 241 (10th Cir. 1971) (asserting that federal
common law applies “[u]ntil the field has been made the
36                                HAGGART   v. UNITED STATES



subject of comprehensive legislation or authorized admin-
istrative standards”).
    Our decision finds support in Supreme Court holdings
concerning the intersection of law and equity. In Petrella
v. Metro-Goldwyn-Mayer, Inc., the Court found that the
common law equitable doctrine of laches is inapplicable
when Congress has, through statute, filled the void the
common law doctrine was intended to address. 21 134 S.
Ct. 1962, 1973 (2014) (“Last, but hardly least, laches is a
defense developed by courts of equity; its principal appli-
cation was, and remains, to claims of an equitable cast for
which the Legislature has provided no fixed time limita-
tion.” (citation omitted)). According to the Supreme
Court, because “[l]aches . . . originally served as a guide
when no statute . . . controlled the claim; it can scarcely
be described as a rule for intervening a statutory prescrip-
tion.” Id. at 1975. Similarly, the common fund is an
equitable doctrine established for the primary purpose of
addressing inequities resulting from the unjust enrich-
ment of class members at the expense of the litigating
party. With the enactment of the URA, which provides
class counsel with reasonable fees as compensation for
their efforts in bringing forth the litigation, Congress has
spoken “directly to the question at issue.” Am. Elec.
Power Co. v. Connecticut, 131 S. Ct. 2527, 2537 (2011)
(internal quotation marks, brackets, and citations omit-
ted); see id. (“Legislative displacement of federal common
law does not require the ‘same sort of evidence of a clear
and manifest congressional purpose’ demanded for



     21 In Petrella, the Supreme Court rejected the appli-
cation of laches to a statutorily defined limitations period,
asserting that it has “never applied laches to bar in their
entirety claims for discrete wrongs occurring within a
federally prescribed limitations period.” 134 S. Ct. 1962
at 1975.
HAGGART   v. UNITED STATES                                 37



preemption of state law.” (bracket and citation omitted));
see also Petrella, 134 S. Ct. at 1977 (holding that applica-
ble statutory language “leaves little place” for equitable
principles to the contrary (citation omitted)).
     Finally, the Haggarts point to the Ninth Circuit’s de-
cision in Staton, which held that statutory fee-shifting
and the equitable common fund doctrine operate differ-
ently and should be treated separately as support for
their contention that the common fund doctrine may be
applied in the presence of a fee-shifting statute. See
Staton, 327 F.3d at 967. Staton also held that “unless
Congress has forbidden the application of the common
fund doctrine in cases in which attorneys could potentially
recover fees under the type of fee-shifting statute[][,] []
courts retain their equitable power to award common
fund attorney[] fees.” Id. at 968 (citing Alyeska Pipeline,
421 U.S. at 257–59). However, the Seventh Circuit in
Pierce v. Visteon Corp., limited the common fund doctrine
to cases “outside the scope of a fee-shifting statute.” 22 791
F.3d 782, 787 (7th Cir. 2015); see also id. (“But this case
was litigated under a fee-shifting statute, and we do not
see a good reason why, in the absence of a contract, coun-
sel should be entitled to money from the class on top of or
in lieu of payment by the losing litigant.”).




    22  In Pierce, terminated employees brought a puta-
tive class action suit against their previous employer,
alleging that the employer failed to timely deliver notice
of employees’ opportunity to continue health insurance at
their own expense under the Consolidated Omnibus
Budget Reconciliation Act. 791 F.3d at 784. The court
affirmed the district court’s award of attorney fees under
the Employee Retirement Income Security Act, 29 U.S.C.
§ 1132, a different fee-shifting statute than the one at
issue in this case. See id.
38                                HAGGART   v. UNITED STATES



    We agree with the Seventh Circuit. The fact that
Congress did not expressly abjure the common fund
doctrine in enacting the URA is not dispositive. See
Petrella, 134 S. Ct. at 1975 (asserting that equity “can
scarcely be described as a rule for interpreting a statutory
prescription”). What is more, we agree with the Pierce
court’s determination that permitting class counsel to
recover in the presence of fee-shifting statutes similar to
the URA contravenes the Supreme Court’s decision in
Dague. See Pierce, 791 F.3d at 787. In Dague, the Court
held that, in calculating a reasonable fee under fee-
shifting statutes like the URA, district courts should not
include a multiplier that effectively compensates class
counsel for risk of loss. See 505 U.S. at 562 (“We note at
the outset that an enhancement for contingency would
likely duplicate in substantial part factors already sub-
sumed in the lodestar.”). However, similar to the contin-
gent fee agreement addressed in Dague, allowing class
counsel to recover under a common fund would operate in
precisely the same manner because, like a contingent fee
agreement, “[a] common-fund award . . . [effectively
serves to] build[] in a multiplier in [] cases where counsel
prevails.” Pierce, 791 F.3d at 787.
    We do not foreclose the application of the common
fund doctrine in all instances in which a fee-shifting
statute is present. Equity may sometimes deem it appro-
priate to give counsel a piece of either the final judgment
or settlement agreement. See id. (positing that it may
“sometimes [be] appropriate to give . . . [counsel] a slice
of the class’s recovery on top of a fee-shifting award”); see
also Brytus, 203 F.3d at 247 (“This is not to say that the
common fund doctrine may never be applied in a case for
which there is a statutory fee provision . . . .”). At its
heart, equity is about fairness. See Petrella, 134 S. Ct. at
1977 (asserting that equity may still intervene to address
a party’s conduct in certain circumstances).
HAGGART   v. UNITED STATES                            39



   In the present case, the URA provision was expressly
enacted with the primary purpose of rendering property
owners whole and fee recovery is governed by statute.
The URA provides a reasonable fee and thus forecloses
application of the common fund doctrine.
                       CONCLUSION
    We reverse the Claims Court’s approval of the settle-
ment agreement and award of attorney fees under the
common fund doctrine and remand for further considera-
tion consistent with the foregoing. The Claims Court’s
decision is
              VACATED AND REMANDED
