         In the United States Court of Federal Claims
                                     Nos. 10-54L
                               NOT FOR PUBLICATION
                                 (Filed: April 4, 2014)

                                           )
DAFFNEY A. THOMAS, et. al,                 )
                                           )
                     Plaintiffs,           )       Rails-to-Trails; Attorneys’ Fees and
                                           )       Costs; 42 U.S.C. § 4654
v.                                         )
                                           )
THE UNITED STATES,                         )
                                           )
                     Defendant.            )
                                           )

          OPINION AND ORDER ON ATTORNEYS’ FEES AND COSTS

FIRESTONE, Judge.

       Pending before the court is plaintiffs’ petition for attorneys’ fees and costs in this

Rails-to-Trails case. Plaintiffs are seeking reimbursement for 1,457.4 hours of work—

which amounts to a requested fee of $504,522.50—under the Uniform Relocation

Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654

(“URA”). Plaintiffs are also seeking reimbursement for $22,541.61 in costs. Thomas v.

United States, No. 10-54L, is a class action brought by persons and legal entities that

claimed to own land adjoining the railroad right-of-way that became a trail.

       All of the plaintiffs alleged that the operation of the National Trails System Act,

16 U.S.C. § 1247(d) (“Trails Act”), resulted in a taking of their property interests in the

railroad corridor at issue upon the filing of a Notice of Interim Trail Use (“NITU”),
issued October 26, 2007. The applicable NITU covered a 13.34-mile section of railroad

right-of-way from milepost ONI 210.66 near Cordova to milepost ONI 224 in Memphis,

Tennessee. The Thomas class action covers a 7.02-mile portion of the right-of-way

subject to the NITU. After this court determined liability, the government and plaintiffs

agreed on a settlement for just compensation of the 82 claims remaining of the 157

original claims. The 75 claims not included in that settlement will be dismissed. This

case had been consolidated with Crews v. United States, No. 10-459, which is restricted

to a 1.09-mile stretch of the right-of-way conveyed to the railroad by Mullins/Small in

1888 between milepost 216.53 and milepost 217.62. The cases have now been

unconsolidated; this opinion deals only with attorneys’ fees and costs requested by the

Thomas plaintiffs.

       The Uniform Relocation Assistance and Real Property Acquisition Policies Act of

1970, 42 U.S.C. § 4654 (“URA”), provides that a court may award to the plaintiff, as part

of a judgment, a sum that “will in the opinion of the court” reimburse the prevailing

plaintiff for his reasonable costs, including attorneys’ fees, that he “actually incurred”

because of the takings suit. Id. A plaintiff seeking an award of fees and costs under a

statute such as the URA, “bears the burden of establishing entitlement to an award and

documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart,

461 U.S. 424, 437 (1983). Plaintiffs also shoulder the burden of providing sufficient

evidence of the reasonableness of the attorneys’ hourly rate. See Hensley, 461 U.S. at

433 (“The party seeking an award of fees should submit evidence supporting the . . . rates

claimed.”).

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       In awarding fees, the court applies the lodestar method in which the amount of

fees awarded is based on the hours reasonably expended multiplied by a reasonable

hourly rate. E.g. Bywaters v. United States, 670 F.3d 1221, 1225-26 (Fed. Cir. 2012).

The rate to be applied is ordinarily set using the forum rate, which for this court is the

Washington, D.C. forum rate. However, an exception to using the forum rate, known as

the “Davis exception” is recognized where the “bulk of the work” was performed outside

of the forum and the hourly rate for attorneys in the area where the work was performed

is significantly lower than the forum rate. Hall v. Sec’y of Health and Human Servs., 640

F.3d 1351, 1353 (Fed. Cir. 2011) (quoting Avera, 515 F.3d at 1349); see also Bywaters,

670 F.3d at 1232-33 (discussing Davis exception). Against this backdrop, the court will

first examine the reasonable number of hours and then turn to the appropriate hourly rate.

I.     Reasonable Number of Hours

       As noted above, plaintiffs bear the burden of proving that the number of hours

submitted for payment is reasonable and are admonished to exclude from their

application hours that are excessive, redundant, or otherwise unnecessary. Hensley, 461

U.S. at 434, 437. Here, plaintiffs are seeking reimbursement of attorneys’ fees based on

1,457.4 hours of work. The government argues that the number of hours should be

reduced for several reasons, which will be discussed in turn.

       A.     Client Development

              1.     Prior to Complaint

       Plaintiffs request reimbursement for approximately 127.1 hours for work done

before the initial complaint was filed in the Thomas class action. The government argues

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that hours spent on client development should be excluded from the reimbursement

request in this case. Hours spent on client development are not the type of hours that are

typically billed to a paying client. See Hensley, 461 U.S. at 434 (“Hours that are not

properly billed to one’s client also are not properly billed to one’s adversary pursuant to

statutory authority.” (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)

(en banc)). Plaintiffs respond that the URA allows for reimbursement of a reasonable

number of hours spent on preparing a complaint and thus that these hours are

reimbursable.

       Plaintiffs argue that the work spent before filing the complaint was spent on

establishing the facts necessary to file a case on behalf of a class. Plaintiffs contend that

this is not client development, but rather case development. The court agrees with

plaintiffs. The hours requested do not fall into the category of client development that are

typically not reimbursable. As a result, the 127.1 hours for work undertaken by counsel

prior to filing the class action complaint are reimbursable in full.

                2.   After Filing Complaint

       After the initial complaint was filed, this court certified a class on October 10,

2010. The government agrees with plaintiffs that their attorneys were required to spend

some time advising existing clients and meeting with potential class members to meet

their obligations as class counsel. However, the government argues that plaintiffs’

counsel in this case is also seeking reimbursement for time spent on developing clients

for other cases filed in connection with the subject trail. Plaintiffs argue in response that

they have deleted such redundant hours.

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       The court recognizes that it does not have the records available to ensure that

plaintiffs’ counsel have deducted all hours attributable to work on other cases. However,

it is not necessary for the court to resolve that issue at this time. Absent evidence to the

contrary, the court has no reason to doubt plaintiffs’ statements and will accept that they

have deducted hours for redundant work. The court also has before it the additional

Rails-to-Trails cases that relate to this trail, Lambert v. United States, No. 12-395, and

Turner v. United States, No. 13-838. Plaintiffs will have to establish in those cases with

greater specificity than they do here that they are not seeking reimbursement for the hours

of work already reimbursed here. As a result, the 232 hours sought for this time period

are reimbursable in full.

       B.     Unsuccessful Claims

       The court now turns to the government’s argument that some overall reduction in

hours is appropriate to account for the fact that plaintiffs did not establish a right to just

compensation for 75 of the 157 class members in Thomas. It is well-established in the

context of fee-shifting statutes such as the URA that “[w]here [a] plaintiff has failed to

prevail on a claim that is distinct in all respects from his successful claims, the hours

spent on the unsuccessful claim should be excluded in considering the amount of a

reasonable fee.” Hensley, 461 U.S. at 440; see also Bywaters, 670 F.3d at 1229-30 (the

trial court may look at the results obtained in determining the hours reasonably expended

when calculating the lodestar).

       The government argues that work done on the 75 claims that will be dismissed,

which represent 47% of the total claims, should not be reimbursable. Specifically, the

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government argues that the court should reduce by 47% the 158.9 hours claims for the

preparing the “Claims Book,” such that plaintiffs should be reimbursed for only 74.7

hours. With regard to the 9.8 hours that plaintiffs claim investigating and analyzing class

members’ claims, the government further argues that a 47% reduction is also appropriate,

resulting in reimbursement for only 4.7 hours. Finally, the government argues that none

of the 29.9 hours related to the investigation of the construction of the Sam Cooper

Highway and work on motions to dismiss plaintiffs are reimbursable. Thus, the

government seeks a total reduction in the number of hours for unsuccessful claims in the

amount of 109.3 hours.

       Plaintiffs argue in response that there is no reason to reduce the hours sought by

plaintiffs’ success rate on the grounds that the landowners included in the settlement will

receive a substantial amount, in excess of several million dollars. Given the success

plaintiffs’ counsel achieved in this case, plaintiffs’ argue that there is no basis for

reducing the number of reimbursable hours spent achieving this result. Plaintiffs further

argue that their counsel did not incur additional hours or costs based on unsuccessful

landowners. Rather, plaintiffs argue that there was substantial overlap between the

landowners such that it was necessary to undertake all of the hours incurred. With regard

to the government’s contention that time spent resolving issues on the Sam Cooper

Highway should not be reimbursable, plaintiffs argue that the hours spent on these issues

were intertwined in determining and delineating the surrounding claims and thus should

not be reduced. According to plaintiffs, the work in defining the bounds of the Sam



                                              -6-
Cooper Highway proved to be successful claims because it helped to establish the rights

of other landowners to just compensation.

       The court finds that some reduction for work done on claims that were

unsuccessful is appropriate. The court agrees with the decision in Gregory v. United

States, 110 Fed. Cl. 400, 404, 1 that where, as here, the precision of the fee request does

not permit the court to connect specific hours worked to specific claims, a reduction that

takes into account the amount of overlapping work between successful and unsuccessful

claims should be considered. The court also agrees with plaintiffs, however, that in

considering overall success the court should be mindful of the effort necessary to secure

the relatively large size of the recovery secured by plaintiffs’ counsel on behalf of the

successful plaintiffs. In this connection, the court notes the complex issues that were

presented in this case, such as defining property lines of a trail located in an urban area

and resolving certain boundary issues. Taking all of these factors into account, the court

finds that a 23.5% reduction in hours is appropriate for unsuccessful claims. Thus, the

167.7 hours identified by the government shall be reduced by 23.5%. The court agrees

with plaintiffs, however, that no reduction is warranted for the hours spent on claims

associated with the Sam Cooper Highway. The court finds that this work was so

intertwined with the work needed to complete a settlement on successful claims that no

reduction for these hours is warranted.


1
 In addition, the court agrees with the recent decisions in Biery v. United States, No. 07-693
(Fed. Cl. Jan. 24, 2014), Adkins v. United States, No. 09-503 (Fed. Cl. Jan. 30, 2014), Jenkins v.
United States, No. 09-241 (Fed. Cl. Jan. 30, 2014), and Rasmuson v. United States, No. 09-158
(Fed. Cl. Jan. 30, 2014).
                                               -7-
       C.     Competing Claims

       The government also argues that the 63.2 hours directly attributed to contesting

the competing claims between the Crews and Thomas plaintiffs are not reimbursable.

The government argues that it was not responsible for the dispute and therefore should

not have to reimburse the Thomas attorneys for this work. The plaintiffs argue that these

hours were necessary to ensure that the Crews plaintiffs received all of the compensation

to which they were entitled and that resolving these claims was necessary because of the

government’s taking. The court agrees with the government. Accordingly, the 63.2

hours sought for work on competing claims are not reimbursable.

       D.     Excessive and Duplicative Hours

       The government argues that plaintiffs’ attorneys spent an excessive number of

hours researching, drafting, and preparing summary judgment briefs. The government

requests that the hours requested by plaintiffs be reduced by 50% and that plaintiffs

should be reimbursed for no more than 64 hours for drafting the motion for summary

judgment. The court has reviewed the time records and concludes that 128 hours was not

excessive and that no reduction in hours is appropriate or required. Similarly, the court

does not find that a reduction is required for the 53.5 hours spent preparing for and

participating in oral argument for the summary judgment motions.

       E.     Travel Time

       Plaintiffs seek reimbursement for 124.3 hours of travel time for their attorneys’

and paralegals. The government argues that this amount should be reduced for two

reasons. First, the government argues that only 62 hours should be reimbursed to account

                                            -8-
for travel for the purposes of client development. Second, the government argues that

travel time generally should be reimbursed at half the applicable lodestar rate. The court

has reviewed the cases relied upon by the government and agrees with the government

that a reduction in fees for travel time is appropriate. Of the hours of travel time

requested by plaintiffs, all of the hours are reimbursable, though at 50% of the lodestar

rate.

         F.      Vague Entries

         Finally, the government argues that plaintiffs should not be reimbursed for 7.1

hours of work that the government argues are too vaguely recorded or are part of internal

law firm management for which a client would not be responsible. These hours include

entries such as “Meeting regarding status of the case,” “Work on strategies for

prosecution of case,” and “Arrange logistics for client meetings.” D’s Resp. to Mot., Ex.

C, ECF No. 118. The plaintiffs object to the government’s characterization of those 7.1

hours.

         The court has reviewed those hours and agrees with the government that the 7.1

hours represented by these entries are too vague and appear to be covered by other hours

plaintiffs claim. As a result, these hours are not reimbursable.

II.      Costs

         In addition to attorneys’ fees, the URA allows for reimbursement to a prevailing

plaintiff of reasonable costs incurred in connection with the case. In this case, plaintiffs

request reimbursement of $27,641.61 in such costs, including $5,000 for costs to close

out the case. The government argues that, as with reasonable hours, the costs must be

                                             -9-
adjusted to reflect plaintiffs’ unsuccessful claims. The court has reviewed the cost

requests and finds that, given the ultimate settlement in this case, plaintiffs’ request for

$22,641.61 is reasonable and should be reimbursed without any reduction. However, the

court finds that plaintiffs’ request for an additional $5,000 for prospective costs

associated with closing out the case is not supported. Plaintiffs shall be entitled only to

reimbursement of the actual costs incurred in finalization of the settlement.

III.   Reasonable Billing Rates

       The court now turns to the issue of an appropriate billing rate for reimbursable

hours. The court has reviewed the parties’ submissions, including their most recent

supplemental submissions, and finds that plaintiffs have established that their rates,

although at the higher end of the scale for attorneys practicing in St. Louis, are reasonable

and justified. In this connection, the court agrees with plaintiffs that there is no

justifiable reason to use different rates than those charged by partners and associates

doing the same work at the same firm in Kansas City, Missouri. The court thus sets a

billing rate for Steven M. Wald and J. Robert Sears at $475 per hour. The rate for

associates is set at $275 per hour and the rate for paralegals is set at $175 per hour or

$150 per hour depending on the level of experience.

IV.    Conclusion

       For the reasons set forth above, the court GRANTS-IN-PART and DENIES-IN-

PART plaintiffs’ motion for attorneys’ fees and costs. The parties shall have 15 days

from the fairness hearing to submit a proposed judgment, including just compensation

with interest, fees, and costs.

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       The parties shall proceed with finalizing the class action settlement. Once the

parties have finalized the settlement, the parties shall file a joint status report proposing a

schedule for final steps, including providing notice of the settlement to class members

and setting a date for a fairness hearing.

       IT IS SO ORDERED.

                                                            s/Nancy B. Firestone
                                                            NANCY B. FIRESTONE
                                                            Judge




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