On one hand, we don't care for attorneys' fee fights. They are satellite litigation, almost always after the merits have been resolved. They can get tedious (does anyone like going over years of timesheets and billing records, and haggling over whether a motion should have reasonably taken 1 hour or 5 hours?), many judges don't really like fee requests (even where the law requires fee shifting), and some judges are not really tuned in to the real-world financial realities of funding litigation and believe their job is to cut down fee requests to whatever level the judge thinks is acceptable. It can be a remarkably capricious process.
On the other hand, however, these things are obviously vitally important, and really worth the tedium. In many jurisdictions, (Hawaii, for example), property owners in eminent domain or inverse cases generally cannot recover attorneys' fees and costs, either as part of just compensation or by statute, even though making them fund their own defense really does deprive them of the "full and perfect equivalent" of the property taken. It's unfair and in our view, unconstitutional. So when there actually is an opportunity to recover fees, you bet we're all over it.
With all that as background, here's the latest in the attorneys fee front, a just-filed cert petition from our colleagues at Federal Takings. The underlying matter is a rails-to-trails compensation case in the Court of Federal Claims and Federal Circuit, and the petition involves the way attorneys fee requests get considered (and in this case, reduced) under the URA (Uniform Relocation Act).
Here are the Questions Presented:
1. Whether trial courts have discretion to make across-the-board percentage adjustments to the lodestar fee and, if so, what “specific proof” or “explanation” must the court provide so the adjustment is “objective and reviewable”?2. Whether a trial court must consider “specific proof” to determine prevailing market rates for legal services and, if the trial court uses Laffey-rates to calculate a lodestar fee, should the thirty-year-old Laffey-rates be adjusted for inflation using (a) the Consumer Price Index (CPI) (what the court below did); or, (b) the Legal Services Index (LSI) – which is how the Third Circuit and DC Circuit adjust Laffey-rates?3. Whether the “no-interest-rule” in Shaw v. Library of Congress, 478 U.S. 310 (1986), prohibits trial courts from following this Court’s direction in Missouri v. Jenkins, 491 U.S. 274 (1989), and Perdue v. Kenny A. ex. Rel. Winn, 559 U.S. 542 (2010), that attorney fees should be calculated using hourly rates in effect on the date of payment?
That's a lot to digest if you don't regularly do these things.
But that aside, we think this petition is well worth your time to review. We believe in it so much that we're going to overcome our usual reluctance about attorneys fee issues and we're going to be filing an amicus brief in support.
The petition was filed last week, and has not yet been docketed by the Court. Stay tuned for more.