When does a party who loses a petition for rehearing actually win it?
In Bywaters v. United States, No. 2011-1032 (Fed. Cir. Mar. 1, 2012) an opinion we detailed here, a 2-1 panel of the Federal Circuit held that the property owner's request for attorneys fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act was reasonable, but halved it because the amount of compensation sought and awarded was not that large. The majority, in an opinion by Judge Dyk, remanded the case to the Court of Federal Claims for additional calculation.
Judge Plager dissented, asserting that remand was pointless because there was nothing left for the CFC to do but apply the lodestar (reasonable rate x reasonable time), and since the panel majority did not disturb any of the CFC's findings on those two issues, the result, absent the halving, should be the same. Small property owners are just as entitled to competent counsel as owners with larger claims.
The property owner petitioned for rehearing, but today, the Federal Circuit denied the petition in a brief three-page order. The order was also authored by Judge Dyk, and doesn't just recite the usual "petition denied," but goes on to explain the panel ruling. And when we say "explain," we mean "modify." In a good way.
Asserting that "[a]ppellants misread our decision," the order claims that the majority opinion didn't order the CFC to cut the attorneys' fee award in half because the recovery sought was modest. Not so, said the order:
We in no way implied that attorneys’ fees would not be available because of the small amount of the claim. Rather, we held that in determining the reasonable number of hours expended and the reasonable hourly rate, the district court should consider the "amount involved" in the case as well as other factors bearing on reasonableness, such as the fact that litigation of these types of disputes serves a greater purpose (vindicating constitutionally protected property rights).
Order at 2-3. Judge Plager dissented again:
In response to the petition for panel rehearing, the majority, though denying the request for rehearing, has issued an addition to the opinion in the case. The addition confirms that the fee-shifting statute is intended "to permit people with small takings claims to vindicate their rights with the assistance of competent counsel," and notes that in determining reasonableness of the attorney award courts should take into account that "litigation of these types of disputes serves a greater purpose (vindicating constitutionally protected property rights)." Slip. Op. at 3. Exactly so.
Dissent at 1-2 (footnote omitted). Judge Plager concluded that the order denying the request for rehearing "could be considered a grant of the petition for the limited purpose of clarifying the opinion," since it essentially corrected the error in the original opinion.
So everyone could be happy here, if we are reading between the lines correctly. Applying the clarification in the court's order, the CFC could reach the same result as it reached earlier, and award the full amount of attorneys' fees sought. The Federal Circuit majority has saved face and perhaps avoided a cert petition. And Judge Plager's argument is vindicated.