On March 19, 2018, the U.S. Court of Federal Claims gave the attorneys for prevailing plaintiffs in a rails-to-trails Fifth Amendment takings case a severe haircut on their attorneys’ fee petition.  (See earlier blog entitled Judicial Hair Cut). At issue before the Court in the motion for reconsideration was whether the market rate for attorneys’ fees in the non-forum community, rather than the forum or trial court location, should be used to determine the reasonable hourly rate.

Plaintiffs, eleven property owners in Lafayette County, Missouri, accepted a nearly $80k offer of judgment in August 2017, and their attorneys sought roughly $1.1 million in fees for 1,974 hours of work. The CFC initially found that the hours claimed were excessive and that the fees should have been based on St. Louis rates. The Court awarded $523,786 in fees for 1,663 hours reasonably expended.

Generally, the trial court location is designated the forum for determining prevailing rates. The CFC is in Washington. The Court, however, ruled again that an exception applies because the bulk of the work was performed outside of Washington, in St. Louis, where rates are substantially lower.

In the motion for reconsideration, the attorneys pointed out that the rates they requested were their standard rates, and that these rates are routinely paid by their clients. They, therefore, contended that awarding attorneys’ fees based on their standard billing rate would not result in a windfall.

But the trial court disagreed, and she also rejected plaintiffs’ argument that “prevailing” in the “prevailing attorneys’ rates” language, in a Federal Circuit decision interpreting the exception, describes the rates rather than the attorneys who secured a favorable judgment.

The Court concluded that plaintiffs’ construction is “not reasonable” and is “inconsistent with the way” the Federal Circuit has applied the test. The Court denied the motion for reconsideration of attorneys’ fees and expenses on April 19, 2018.

Read Judge Elaine D. Kaplan’s full decision here.