       In the United States Court of Federal Claims
                                            No. 15-986L
                                       (Filed: June 29, 2018)

                                                   )    Keywords: Rails-to-Trails Conversion;
 MICHAEL A. AND TINA C. BRATCHER,                  )    Fifth Amendment; Takings Clause;
 et al.,                                           )    Uniform Relocation Act; Attorney Fees;
                                                   )    Supplemental Motion.
                        Plaintiffs,                )
                                                   )
 v.                                                )
                                                   )
 THE UNITED STATES OF AMERICA,                     )
                                                   )
                        Defendant.                 )
                                                   )

Mark F. (Thor) Hearne, II, Arent Fox LLP, Washington, D.C., with whom were Lindsay S.C.
Brinton, Meghan S. Largent, Stephen S. Davis, and Abram J. Pafford, Arent Fox LLP, for
Plaintiffs.

Randall M. Stone, Senior Attorney, Environment and Natural Resources Division, U.S.
Department of Justice, Washington, D.C., with whom was Jeffrey H. Wood, Acting Assistant
Attorney General, for Defendant.

                                      OPINION AND ORDER

KAPLAN, Judge.

        Currently before the Court in this rails-to-trails case is Plaintiffs’ Supplemental Motion
for Attorney Fees and Expenses Under the Uniform Relocation Act and RCFC 54(d)
(Pls.’ Mot.). ECF No. 122. On March 9, 2018, this Court issued an initial award of attorney fees
in the amount of $523,786.98 and expenses in the amount of $69,098.83, covering the period
from September 4, 2015 (when this case was filed) through August 25, 2017 (after Plaintiffs
accepted the government’s offer of judgment under Rule 68 of the Rules of the Court of Federal
Claims (RCFC), and several days before they filed their initial attorney fee petition). In the
supplemental motion now before the Court, Plaintiffs request an additional award of $99,822.50
in attorney fees incurred from August 26, 2017 through May 11, 2018. They also request
reimbursement of $12,688.34 in expenses, all but $1,934.40 of which were incurred during the
period covered by their initial motion.

     For the reasons set forth below, Plaintiffs’ motion is GRANTED-IN-PART and
DENIED-IN-PART.
                                          DISCUSSION

I.     Attorney Fees1

        As the Court observed in its decision on Plaintiffs’ first request for attorney fees and
expenses, a lodestar approach is used to determine reasonable attorney fees under federal fee-
shifting statutes. Bywaters v. United States, 670 F.3d 1221, 1228–29 (Fed. Cir. 2012). Under that
approach, the court multiplies the number of hours reasonably expended in the case by a
reasonable hourly rate. Id. at 1225–26. Plaintiffs bear the burden of proving that the number of
hours submitted for payment is reasonable and does not include hours that are “excessive,
redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

        In their supplemental motion, Plaintiffs have billed an additional 291.7 hours of work,
seeking compensation at the rates this Court found reasonable when it issued its initial fee award.
See Pls.’ Mot. Ex. 1 at 9, ECF No. 122-1. The hours billed primarily involve the preparation,
briefing, and argument of the initial fee petition. In addition, Plaintiffs request reimbursement of
attorney fees and expenses incurred in connection with efforts made with respect to other issues,
including an unsuccessful request for reconsideration of Judge Bruggink’s decision to recuse
himself and an unsuccessful motion to compel mediation.

        The Court concludes that the supplemental fees requested are excessive, particularly in
light of the relatively small size of the recovery in this case, Plaintiffs’ lack of success in
persuading the Court to award fees at the higher rates initially sought, and the sizable fee award
they have already received. The Court makes the following reductions in the hours billed:

       A.      Time Spent on Unsuccessful Pleadings

       Plaintiffs seek compensation for approximately fifty hours of time spent on two
pleadings—one asking Judge Bruggink to reconsider his decision to recuse himself from the case
and another seeking to compel mediation of their initial request for attorney fees. These hours are
disallowed in their entirety. Both pleadings were unsolicited. Both were unlikely to succeed.
Neither did succeed.2

1
  The government appears to argue that this Court should not entertain Plaintiffs’ Supplemental
Motion because final judgment has already been entered in this case and Plaintiffs have not filed
a motion requesting alteration or amendment of the final judgment in accordance with RCFC
59(e). See United States’ Resp. to Pls.’ Suppl. Mots. Concerning Additional URA Fees &
Expenses (Def.’s Resp.) at 2, ECF No. 123. It contends that when Judge Bruggink was presiding
over this case, he indicated a preference for having any fee award made part of the final
judgment. See id. at 1–2. But the Order the government cites in support of its position (ECF No.
95) did not expressly state that Judge Bruggink would not entertain any post-judgment motions
for attorney fees and expenses, and such motions are authorized under RCFC 54(d).
2
 Where Arent Fox’s attorneys’ billing descriptions include time devoted to these issues in
conjunction with other work performed that is compensable, the Court shall reduce the hours by
50%.



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       Plaintiffs also seek compensation for approximately fifteen hours spent preparing an
opposition to the government’s motion for clarification of the briefing schedule. Judge Bruggink
granted-in-part and denied-in-part the government’s motion. The Court accordingly reduces by
50% the time claimed by Plaintiffs for opposing the motion.3

       B.      Time Spent on Briefing and Arguing Plaintiffs’ Initial Attorney Fee Petition

        In its initial decision, the Court reduced by one-half the hours attributable to preparing
Plaintiffs’ attorney fee request because a substantial portion of those hours was devoted to
Plaintiffs’ unsuccessful argument that the Court should use District of Columbia market rates to
determine their attorneys’ hourly rates. See Bratcher v. United States, 136 Fed. Cl. 786, 797
(2018). The Court will similarly apply a 50% reduction to the additional hours billed in the
supplemental petition attributable to the litigation and argument of its initial fee request.4

       C.      Notice of Supplemental Authority

        Plaintiffs billed for approximately eight hours of time spent on a filing entitled “Notice of
Supplemental Authority,” which alerted the Court to Judge Lettow’s decision in Lost Tree
Village Corp. v. United States, No. 08-117L, 2017 WL 5425051 (Fed. Cl. November 14, 2017),
appeal dismissed, No. 18-1466 (Fed. Cir. Mar. 23, 2018), ECF No. 9. See Pls.’ Mot. Ex. 1; see
also Notice of Suppl. Authority, ECF No. 102. As the government notes, on the same day that it
filed the Notice in this case, Arent Fox filed the identical pleading in at least two other cases,
Campbell v. United States, No. 13-324 (Fed. Cl.), and McCarty v. United States, No. 14-316
(Fed. Cl.). In recent filings, Mr. Hearne has claimed the same amount of time for the same work
in those cases. See Def.’s Resp. at 5–7. Time billed for work on this pleading is therefore
disallowed.5

       D.      Miscellaneous Deductions

        Plaintiffs have billed for 6.3 hours of attorney time to prepare an itemization of their bill
of costs on April 18, 19, and 23, 2018. The Court agrees with the government that this work
likely could have been performed by either a paralegal or clerical employee. Accordingly, it will
compensate these hours at paralegal rates.

       Additionally, Plaintiffs billed 0.4 hours of time on September 12, 2017 and November
21, 2017 for partner Debra Albin-Riley to perform “work on expert issues.” This time is

3
 Where Arent Fox’s attorneys’ billing descriptions include time devoted to this issue in
conjunction with other work performed that is compensable, the Court shall reduce the hours by
25%.
4
 Where Arent Fox’s attorneys’ billing descriptions include time devoted to these issues in
conjunction with other work performed that is compensable, the Court shall reduce the hours by
25%.
5
 Where Arent Fox’s attorneys’ billing descriptions include time devoted to this issue in
conjunction with other work performed that is compensable, the Court shall reduce the hours by
50%.


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disallowed because by these dates Plaintiffs had already accepted the government’s offer of
judgment and expert discovery had ended. Further, although Ms. Albin-Riley’s name is not on
any of the briefs in this case, Plaintiffs have billed for time she spent on the case reviewing
pleadings and engaging in similar tasks. Given that Plaintiffs seek compensation for the work of
at least four other attorneys during the time covered by the supplemental petition, it does not
appear reasonable to also charge for another partner at Arent Fox to review pleadings. That time
is therefore also disallowed.

       Finally, Plaintiffs seek reimbursement for 0.9 hours of paralegal work on September 21,
2017 to “review and manage client data” and “manage client update letters.” As described in the
Court’s initial attorney fee decision, time spent performing such clerical tasks is not reimbursable
under fee-shifting statutes. See Bratcher, 136 Fed. Cl. at 796.

      *       *      *         *         *       *         *    *       *       *    *        *    *

        As described in the table below, with the foregoing deductions, the Court awards
Plaintiffs fees in the amount of $48,826.25.

                                    Claimed          Adjusted
              Attorney                                                  Rate        Adjusted Fee
                                     Hours            Hours
          Debra Albin-Riley        4.8               0.8            $475/hour       $380.00
          Mark (“Thor”)            53.5              29.25          $475/hour       $13,893.75
          Hearne, Jr.
          Abram Pafford            62.7              21.38          $375/hour       $8,015.63
          Meghan Largent           1.9               1.00           $375/hour       $375.00

          Lindsay Brinton          60.1              44.35          $375/hour       $15,213.75
          Stephen Davis            72.5              27.83          $275/hour       $7,651.88
          Paralegals/              36.2              21.98          $150/hour       $3,296.25
          Project Assistants

              TOTALS                     291.7         146.58                        $48,826.25

II.       Expenses

       In their supplemental application, Plaintiffs request reimbursement of expenses totaling
$12,688.34. Pls.’ Mot. Ex. 2 at 3, ECF No. 122-2. All but $1,934.40 of this total represents
expenses incurred through August 26, 2017, the cut-off date Plaintiffs used in their initial
application for fees and expenses. See id. at 1–3. Plaintiffs chose not to claim any of these
expenses in their initial application. Instead, on August 31, 2017, before the entry of a final
judgment, they submitted the expenses for reimbursement through a bill of costs. See ECF No.
85-1. Because Plaintiffs did not submit these expenses with their initial application, the Court


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concludes that they have waived their right to seek their reimbursement under the fee-shifting
provision of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970 (URA). Instead, those expenses are recoverable, if at all, in connection with Plaintiffs’ bill
of costs (discussed below).

        Accordingly, the Court awards Plaintiffs expenses in the amount of $1,934.40.

III.    Bill of Costs

        As noted above, Plaintiffs filed a premature bill of costs in this case in August 2017. ECF
No. 85-1. Judge Bruggink then stayed consideration of the bill of costs pending the resolution of
Plaintiffs’ motion for attorney fees. ECF No. 95.

        In April 2018, Plaintiffs provided the government with a modified and/or itemized bill of
costs. See United States’ Objs. to Pls.’ Bill of Costs at 1–2, ECF No. 120. At the Court’s
direction, the government recently filed its objections to the bill of costs as modified. Id.
Plaintiffs then filed a motion for leave to file a response to the government’s objections, in which
they proposed to file an amended bill of costs that would include only “uncontested” costs, while
including the “contested” costs within the ambit of their supplemental fee petition. See
Landowners’ Mot. for Leave to File Resp. to the Gov’t’s Objs. to Bill of Costs & Notice
Regarding Suppl. Fee Appl. at 2, ECF No. 121. As discussed above, however, to the extent the
“contested” costs include costs and/or expenses incurred through August 26, 2017, Plaintiffs
have waived the right to seek their reimbursement under the URA. Plaintiffs thus may only
recover those expenses and/or costs to the extent permitted by 28 U.S.C. § 2412(a) and the Rules
of the Court of Federal Claims.

        Under RCFC 54(d)(1)(B), a prevailing party may file a bill of costs “within 30 days after
the date of final judgment, as defined in 28 U.S.C. § 2412(d)(2)(G).” Final judgment, as defined
in § 2412(d)(2)(G), “means a judgment that is final and not appealable.” It is the Court’s
understanding that after resolving the supplemental fee petition, no further issues will remain in
this case.

         Accordingly, the Court directs Plaintiffs to file a final bill of costs covering the entirety of
this litigation by July 23, 2018. The government may then file an objection as provided in the
Court’s rules. Plaintiffs’ motion for leave to file a response to the government’s objection to its
previously filed bill of costs (ECF No. 121) is therefore DENIED as moot.

                                           CONCLUSION

       For the foregoing reasons, Plaintiffs’ motion for a supplemental award of attorney fees
and expenses is GRANTED-IN-PART and DENIED-IN-PART. Plaintiffs are awarded
attorney fees in the amount of $48,826.25 and expenses in the amount of $1,934.40. Pursuant to
RCFC 58, the Clerk shall enter judgment accordingly.




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IT IS SO ORDERED.


                        s/ Elaine D. Kaplan
                        ELAINE D. KAPLAN
                        Judge




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