United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ASHBURN BYWATERS, CARL LANCASTER, 

BETTY L. HOHENBERGER, ORMAN RODERICK, 

JUNE RODERICK, AND NAN O. BEELER, 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2011-1032 

__________________________ 

Appeal from the United States District Court for the 

Eastern District of Texas in case no. 99-CV-0451, Judge 

Leonard Davis. 

___________________________ 

Decided: March 1, 2012 

___________________________ 

KATHLEEN C. KAUFFMAN, Ackerson Kauffman Fex, 

PC, of Washington, DC, argued for plaintiffs-appellants. 

On the brief was CECILIA FEX. 

ELLEN J. DURKEE, Attorney, Appellate Section, Environment & Natural Resources Division, United States 

Department of Justice, of Washington, DC, argued for 

defendant-appellee. With her on the brief was IGNACIA S.

MORENO, Assistant Attorney General. 
BYWATERS v. US 2

__________________________ 

Before RADER, Chief Judge, PLAGER and DYK, Circuit 

Judges. 

Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge PLAGER. 

DYK, Circuit Judge. 

This case presents the question of when a district 

court may reduce the “lodestar” calculation of reasonable 

attorneys’ fees to account for the “amount involved and 

results obtained” or other factors. Although the district 

court here did an exemplary job, we conclude that two 

errors require a remand. First, while the district court 

may reduce the lodestar figure to account for the “amount 

involved and results obtained” and other factors in rare 

and exceptional circumstances, we conclude that the 

district court erred here by taking these factors into 

account after calculating the lodestar figure, rather than 

as a part of the lodestar calculation itself. We also hold 

that the district court should have used forum rates in 

determining the reasonable hourly rate for the lodestar 

calculation. Accordingly, we vacate and remand for 

further proceedings consistent with this opinion. 

BACKGROUND

The United States has waived its sovereign immunity 

with respect to constitutional claims, including government takings claims arising under the Fifth Amendment. 

See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). The United States 

Court of Federal Claims has exclusive jurisdiction over 

such claims where the amount in controversy is greater 

than $10,000, § 1491(a)(1) (the “Tucker Act”), but shares 

jurisdiction with the district courts where the amount in 

controversy does not exceed $10,000, § 1346(a)(2) (the 
3 BYWATERS v. US

“Little Tucker Act”). In actions brought under the Tucker 

Act or the Little Tucker Act in which a plaintiff is 

awarded compensation for the taking of property, the 

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (“URA”) provides for the recovery of “such sum as will in the opinion of the court or the 

Attorney General reimburse such plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney . . . fees, actually incurred because of 

such proceeding.” 42 U.S.C. § 4654(c).1 

This case involves takings compensation claims 

brought by appellants against the United States. On May 

23, 2000, following the transfer of their compensation 

claims to the United States District Court for the Eastern 

District of Texas, Plaintiff-Appellant Ashburn Bywaters 

and other named plaintiffs (collectively, “appellants”), 

represented by counsel based in Washington, DC, filed an 

amended class action complaint on behalf of themselves 

and all others similarly situated, alleging that they were 

the owners of interests in land constituting part of a 

railroad corridor (the “Chaparral rail corridor”) that had 

been converted for trail use by the Interstate Commerce 

Commission pursuant to the National Trails System Act 

 1 42 U.S.C. § 4654(c) provides, in its entirety: “The 

court rendering a judgment for the plaintiff in a proceeding brought under section 1346(a)(2) or 1491 of Title 28, 

awarding compensation for the taking of property by a 

Federal agency, or the Attorney General effecting a settlement of any such proceeding, shall determine and 

award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will in the opinion of the 

court or the Attorney General reimburse such plaintiff for 

his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering 

fees, actually incurred because of such proceeding.” 
BYWATERS v. US 4

(“Trails Act”), 16 U.S.C. § 1247(d).2 The Trails Act is 

designed to preserve railroad rights-of-way by converting 

them into recreational trails. Actions by the government 

pursuant to the Trails Act can result in takings liability 

where the railroad acquired an easement from the property owner, the railroad’s use of the property ceased, and 

the government’s action under the Trails Act prevented 

reversion of the property to the original owner. See

Preseault v. United States, 100 F.3d 1525, 1550-52 (Fed. 

Cir. 1996) (en banc); see also Caldwell v. United States, 

391 F.3d 1226, 1228 (Fed. Cir. 2004). 

On August 25, 2000, the district court certified a class 

consisting of all persons who owned an interest in land 

constituting the Chaparral rail corridor extending from 

Farmersville, Texas, to Paris, Texas, that was converted 

to trail use pursuant to the Trails Act, and whose claims 

did not exceed $10,000 per claim. On April 17, 2003, the 

government stipulated to takings liability with respect to 

those claims for segments of the Chaparral rail corridor in 

which the railroad acquired only an easement.3 From 

 2 16 U.S.C. § 1247(d) provides, in relevant part: 

“Consistent with the purposes of [the Railroad Revitalization and Regulatory Reform Act of 1976], and in furtherance of the national policy to preserve established 

railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, in the case of 

interim use of any established railroad rights-of-way . . . , 

such interim use shall not be treated, for purposes of any 

law or rule of law, as an abandonment of the use of such 

rights-of-way for railroad purposes.” 

3 The agreement between the parties recognized 

that there was no takings liability where the original 

owner had conveyed the property to the railroad in fee 

simple. See Preseault, 100 F.3d at 1533. 
5 BYWATERS v. US

2003 to 2009, the parties cooperated to determine the 

amount of just compensation to be paid to the members of 

the class. 

On July 31, 2009, the parties proposed a settlement 

agreement that resolved all issues in the case, except for 

the amount of attorneys’ fees and costs to be awarded 

under the URA. The district court approved the proposed 

settlement after finding that the proposed settlement 

would secure 100% of the just compensation due to class 

members with eligible claims, subject to the $10,000 

jurisdictional cap of the Little Tucker Act. Under the 

settlement, appellants’ total recovery was $1,241,385.36, 

including pre-judgment interest. 

Following settlement, appellants filed a claim for attorneys’ fees under the URA, requesting attorneys’ fees in 

the amount of $832,674.99, which included 2,119.69 hours 

of work from August 1999, when the case was transferred 

to the Eastern District of Texas, to December 2009. 

Appellants also urged the district court to determine the 

appropriate amount of attorneys’ fees by applying market 

rates for the District of Columbia, where appellants’ 

counsel practiced, rather than rates charged by attorneys 

in the forum where the case was brought (the Eastern 

District of Texas). In response, the government argued 

for application of the forum rule. The government also 

argued for the reduction of the fees claimed based on 

various grounds, including that the hours claimed were 

unreasonable in light of the government’s stipulation to 

liability early in the case, and the fact that a fee agreement between appellants and their counsel provided for 

the award of attorneys’ fees calculated at the greater of 

counsel’s regular hourly rate or one third of appellants’ 

total recovery. 
BYWATERS v. US 6

The district court, applying Federal Circuit law, determined the amount of attorneys’ fees to be awarded 

under the “lodestar” approach, i.e., by multiplying the 

number of hours reasonably expended by a reasonable 

hourly rate. In determining the lodestar figure, the 

district court first considered the hours requested by 

appellants and the government’s objections and determined that only 18.2 hours spent drafting and filing an 

amicus brief were unreasonable. Accordingly, the court 

reduced the amount of hours requested by appellants by 

18.2 hours. The court next determined that the relevant 

market for determining the reasonable hourly rate was 

the District of Columbia and applied the Updated Laffey

Matrix4 to determine the reasonable hourly rates for 

complex litigation. Accordingly, the district court determined that “multiplying the number of hours reasonably 

expended by the reasonable hourly rate using the Updated Laffey Matrix” yielded a lodestar figure of 

$826,044.19. Bywaters v. United States, No. 6:99-CV-451, 

2010 WL 3212124, at *4 (E.D. Tex. Aug. 12, 2010) (hereinafter “Attorneys’ Fees Order”).

However, calculation of the lodestar figure did not end 

the district court’s inquiry. The district court found that 

 4 The “Updated Laffey Matrix” is a billing survey of 

District of Columbia market rates. The survey was 

conducted in 1988-1989 and has been recalculated in 

subsequent years using a methodology advocated by 

economist Dr. Michael Kavanaugh. The Updated Laffey

Matrix has been used by the United States District Court 

for the District of Columbia to determine the amount of a 

reasonable attorney fee on several occasions. See, e.g., Salazar v. District of Columbia, 123 F. Supp. 2d 8, 15 

(D.D.C. 2000) (“[T]he Court concludes that the updated 

Laffey matrix more accurately reflects the prevailing rates 

for legal services in the D.C. community.”). 
7 BYWATERS v. US

the factor of “amount involved and results obtained” was 

not adequately taken into account in determining a 

reasonable fee. The district court reasoned that the 

lodestar figure would yield an award of attorneys’ fees 

that was 66.5% of the total relief awarded to appellants, 

which was “extremely high considering the amount at 

stake in this case and the actual results obtained.” Id. 

The district court observed that “[o]verlooking the large 

disparity between Plaintiffs’ award and the lodestar 

figure would only encourage protracted litigation.” Id. 

The court also concluded that the work performed by 

appellants’ counsel was “administrative in nature and did 

not require a high level of legal skill.” Id. Finally, the 

court noted that the lodestar figure exceeded the amount 

calculated under the contingent-fee option in the fee 

agreement between appellants and their counsel, which 

provided that appellants’ counsel would be compensated 

at either “the value of [their] professional services at 

[their] regular hourly rate or by multiplying by one third 

the amount recovered for the plaintiff class as damages, 

whichever is greater.” Id. The court reduced the calculated lodestar figure by 50%, awarding attorneys’ fees in 

the amount of $413,022.10. 

Appellants timely appealed the district court’s award 

of attorneys’ fees. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(2). 

DISCUSSION

Generally, our legal system adheres to the “American 

Rule” under which “each party in a lawsuit ordinarily 

shall bear its own attorney’s fees.” Hensley v. Eckerhart, 

461 U.S. 424, 429 (1983). However, in certain categories 

of cases Congress has carved out exceptions to the American Rule and allowed for recovery of attorneys’ fees. See

Pennsylvania v. Del. Valley Citizens’ Council for Clean 
BYWATERS v. US 8

Air, 478 U.S. 546, 561-62 (1986). The fee-shifting provisions of the URA are one such example. See 42 U.S.C. 

§ 4654. We have not yet had an occasion to interpret the 

fee-shifting provisions of the URA. 

I 

As a threshold matter we must first determine 

whether, in calculating the amount of reasonable attorneys’ fees under the URA, we should apply our law or the 

law of the regional circuit—here, the Fifth Circuit. Notwithstanding this court’s exclusive jurisdiction over 

Tucker Act and Little Tucker Act appeals, see 28 U.S.C. 

§ 1295(a)(2), the government contends that we should 

apply Fifth Circuit law in reviewing the district court’s 

grant of attorneys’ fees under the URA. Specifically, the 

government argues that the district court’s award of 

attorneys’ fees is “entirely dependent on Fed. R. Civ. P. 

23” and thus implicates procedural issues, rather than the 

merits of a takings claim under the Tucker Act. Appellee’s Br. 41. The district court’s award of attorneys’ fees 

in this case was quite clearly based upon the mandatory 

fee-shifting provision of the URA. Compare Fed. R. Civ. 

P. 23(h) (“[T]he court may award reasonable attorney's 

fees . . . .” (emphasis added)), with 42 U.S.C. § 4654(c) 

(“The court . . . shall determine and award . . . reasonable 

attorney . . . fees . . . .” (emphasis added)). The award of 

fees thus depends on construction of the URA and not 

Rule 23. 

Additionally, the government argues that because we 

do not have exclusive jurisdiction over all claims arising 

under the URA generally, Federal Circuit law should not 

apply. The URA provides for the award of “reasonable” 

attorneys’ fees in two separate circumstances. First, 

attorneys’ fees may be awarded where the government 

initiates a condemnation proceeding that results in either 
9 BYWATERS v. US

a final judgment that the government may not acquire the 

property by condemnation or abandonment of the proceeding by the government. § 4654(a). Such cases are litigated in the district courts and appealed to the regional 

circuits. See, e.g., United States v. 122.00 Acres of Land, 

856 F.2d 56, 58-59 (8th Cir. 1988) (reviewing a district 

court’s award of fees pursuant to section 4654(a)). Second, attorneys’ fees may also be awarded where, as in this 

case, a property owner brings an inverse condemnation 

action under the Tucker Act or the Little Tucker Act 

alleging a government taking under the Fifth Amendment 

and that action results in an award of compensation for 

the taking. § 4654(c). We have exclusive appellate jurisdiction in such cases. See 28 U.S.C. § 1295(a)(2). We are 

concerned here only with the second provision, section 

4654(c). 

While we do not have exclusive jurisdiction in all 

cases arising under section 4654 of the URA, the feeshifting provision at issue here—section 4654(c)—is 

applicable only to government takings claims brought 

under the Tucker Act or the Little Tucker Act, cases that 

are within our exclusive jurisdiction. In Heisig v. United 

States, 719 F.2d 1153 (Fed. Cir. 1983), we held that 

district courts adjudicating claims under the Little Tucker 

Act should apply the law of the Federal Circuit, rather 

than regional circuit law. We noted that “[l]ogic, as well 

as the express congressional desire for uniformity, dictate 

that similar standards of review and the precedents of 

this circuit should obtain in a proceeding in a district 

court that is substantially identical, except for jurisdictional amount, to one in the Claims Court.” Id. at 1156; 

see also United States v. Hohri, 482 U.S. 64, 71 (1987) (“A 

motivating concern of Congress in creating the Federal 

Circuit was the special need for nationwide uniformity in 

certain areas of the law.” (internal quotation marks 
BYWATERS v. US 10

omitted)). Furthermore, we have consistently applied our 

law to claims for attorneys’ fees under section 285 of the 

Patent Act because section 285 relates to an area of 

substantive law within our exclusive jurisdiction. See, 

e.g., Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 

1295, 1299 (Fed. Cir. 2004); see also 35 U.S.C. § 285. 

Here too attorneys’ fees were awarded pursuant to a 

statutory fee-shifting provision that relates only to cases 

brought pursuant to the Tucker Act and the Little Tucker 

Act, an area within our exclusive jurisdiction. In light of 

“the evident congressional desire for uniform adjudication 

of Little Tucker Act claims” and Tucker Act claims, Hohri, 

482 U.S. at 73, we hold that our law, rather than the law 

of the regional circuit, should apply to an award of attorneys’ fees under section 4654(c). 

II 

While we have not yet interpreted section 4654(c), the 

Supreme Court has advised that all federal fee-shifting 

statutes calling for an award of “reasonable” attorneys’ fee 

should be construed “uniformly.” City of Burlington v. 

Dague, 505 U.S. 557, 562 (1992); see also Indep. Fed’n of 

Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989) 

(“We have stated in the past that fee-shifting statutes’ 

similar language is ‘a strong indication’ that they are to 

be interpreted alike.” (quoting Northcross v. Memphis Bd. 

of Educ., 412 U.S. 427, 428 (1973))); Hubbard v. United 

States, 480 F.3d 1327, 1333 (Fed. Cir. 2007). Nothing in 

the language or legislative history of the URA suggests 

that it should receive a different construction than other 

fee-shifting statutes. 

Generally, in determining the amount of reasonable 

attorneys’ fees to award under federal fee-shifting statutes, the district court is afforded considerable discretion. 

See Hensley, 461 U.S. at 437; see also 42 U.S.C. § 4654(c) 
11 BYWATERS v. US

(providing for an award of attorney fees that will “in the 

opinion of the court” reimburse plaintiffs for reasonable 

expenses actually incurred (emphasis added)). This 

deference results from “the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are 

factual matters.” Hensley, 461 U.S. at 437. In this case, 

the district court carefully and thoughtfully considered 

the submissions of the parties, including over forty pages 

of billing records submitted by appellants in support of 

their fee application. In calculating the lodestar figure 

and subsequently reducing that figure, the district court 

candidly acknowledged the reasons for its decision. It 

may well be that the amount awarded by the district 

court will turn out to be the correct amount. While we 

think the district court’s approach was largely correct, we 

think a remand is nonetheless required because the 

district court’s analysis was incorrect in two respects. 

First, the district court should have considered the 

“amount involved and results obtained” as well as the 

administrative nature of the work and the fee agreement 

in determining the lodestar figure, rather than applying 

these factors after calculation of the lodestar figure. 

Second, the district court was required to apply the forum 

rule in determining the reasonable hourly rate for the 

relevant market. 

III 

We first consider the district court’s adjustment to the 

lodestar figure. In determining the amount of reasonable 

attorneys’ fees under federal fee-shifting statutes, the 

Supreme Court has consistently upheld the lodestar 

calculation as the “guiding light of [its] fee-shifting jurisprudence.” Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 

1662, 1672 (2010) (quoting Gisbrecht v. Barnhart, 535 

U.S. 789, 801 (2002)). Although there is a “strong pre-
BYWATERS v. US 12

sumption” that the lodestar figure represents a “reasonable” attorney fee, Dague, 505 U.S. at 562, the Supreme 

Court has recognized a district court’s discretion to adjust 

the lodestar figure “upward or downward” based upon 

other considerations, Del. Valley, 478 U.S. at 564 (quoting 

Hensley, 461 U.S. at 434). However, adjustments to the 

lodestar figure “are proper only in certain ‘rare’ and 

‘exceptional’ cases, supported by both ‘specific evidence’ on 

the record and detailed findings by the lower courts.” Id.

at 565; see also Perdue, 130 S. Ct. at 1673 (reaffirming 

that enhancements to the lodestar figure may be awarded 

in only “rare” and “exceptional” circumstances). Adjustments are warranted only where the lodestar figure fails 

to take into account a relevant consideration. As the 

Supreme Court recently stated, “an enhancement may not 

be awarded based on a factor that is subsumed in the 

lodestar calculation.” Perdue, 130 S. Ct. at 1673 (citations 

omitted). The question is whether the “amount involved 

and results obtained” in this case warranted an adjustment. 

We note initially that the Supreme Court has not always been clear about what is encompassed within the 

category of “amount involved and results obtained”—that 

is, whether it refers to the absolute level of success or the 

proportionate level of success (percentage of recovery on 

the initial claim). In truth, even though this case involves 

an adjustment for the absolute level of success, it seems to 

make little difference in the mandated approach. As the 

Supreme Court standards have evolved, neither an adjustment for the absolute or proportionate level of success 

is appropriate absent unusual circumstances. The 

“amount involved and results obtained” factor was first 

identified as relevant to the attorney fee inquiry as one of 

twelve factors—the so-called “Johnson factors”—

considered by the Fifth Circuit in Johnson v. Georgia 
13 BYWATERS v. US

Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).5 In 

1983, citing Johnson, the Court initially opined in Hensley

that the district court could, in its discretion, adjust the 

lodestar figure “upward or downward” to account for the 

“crucial” factor of the “results obtained.” 461 U.S. at 434. 

Specifically, the Court noted that in considering this 

factor, the district court should “focus on the significance 

of the overall relief obtained by the plaintiff in relation to 

the hours reasonably expended on the litigation,” but that 

there was “no precise rule or formula” for taking this 

factor into consideration. Id. at 435-36. 

In the years since Hensley, the Supreme Court’s view 

on the degree of discretion afforded district courts in 

adjusting the lodestar figure has undergone change, thus 

cabining the district court’s ability to adjust the lodestar 

figure to only “rare” and “exceptional” cases. See Perdue, 

130 S. Ct. at 1673. Later cases have made clear that 

while the “amount involved and results obtained” remains 

a factor to be considered in determining a reasonable 

attorney fee, it cannot be a basis for reducing the lodestar 

figure where it could have been taken into account in 

calculating the lodestar figure in the first instance. In 

Blum v. Stenson, 465 U.S. 886 (1984), decided just one 

 5 The twelve Johnson factors are: (1) the time and 

labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service 

properly; (4) the preclusion of other employment by the 

attorney due to acceptance of the case; (5) the customary 

fee; (6) whether the fee is fixed or contingent; (7) time 

limitations imposed by the client or the circumstances; (8) 

the amount involved and the results obtained; (9) the 

experience, reputation, and ability of the attorneys; (10) 

the “undesirability” of the case; (11) the nature and length 

of the professional relationship with the client; and (12) 

awards in similar cases. Johnson, 488 F.2d at 717-19. 
BYWATERS v. US 14

year after Hensley, the Court clarified that while “there 

may be circumstances in which the basic standard of 

reasonable rates multiplied by reasonably expended hours 

results in a fee that is either unreasonably low or unreasonably high,” the lodestar figure is “presumed” to be 

reasonable. Id. at 897. The Court also cautioned against 

“double counting” factors such as the “amount involved 

and results obtained” by adjusting the lodestar figure 

where those factors are fully reflected in the reasonable 

hourly rate of the attorneys and the reasonable number of 

hours expended. Id. at 899-900; see also Dague, 505 U.S. 

at 562-63. In particular, the Court noted that “[b]ecause 

acknowledgment of the ‘results obtained’ generally will be 

subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent 

basis for increasing the fee award.” Blum, 465 U.S. at 

900; see also City of Riverside v. Rivera, 477 U.S. 561, 568-

69 (1986) (plurality opinion) (recognizing that while the 

“amount involved and results obtained” may be considered in determining a reasonable attorney fee, a district 

court is not free to mechanically adjust the lodestar figure 

downward based on this factor). 

Most recently, the Court considered the principles 

governing the district court’s authority to adjust the 

lodestar figure in Perdue, 130 S. Ct. 1662. In Perdue, the 

Court once again endorsed the lodestar method, noting 

that it is “readily administrable; and unlike the Johnson

approach, the lodestar calculation is ‘objective,’ and thus 

cabins the discretion of trial judges, permits meaningful 

judicial review, and produces reasonably predictable 

results.” Id. at 1672 (internal citations omitted). Quoting 

Blum with approval, the Court also held that as a rule, 

the lodestar figure should only be adjusted in “rare” and 

“exceptional” cases and may not be adjusted “based on a 

factor that is subsumed in the lodestar calculation.” Id. at 
15 BYWATERS v. US

1673. A district court seeking to adjust the lodestar 

figure must justify its deviation with “specific evidence” 

demonstrating that the factors considered are not adequately subsumed within the lodestar calculation. See

Blum, 465 U.S. at 898-900; see also Perdue, 130 S. Ct. at 

1676 (“It is essential that the judge provide a reasonably 

specific explanation for all aspects of a fee determination, 

including any award of an enhancement.”); Del. Valley, 

478 U.S. at 565 (noting that modifications of the lodestar 

figure should be supported by “detailed findings” by the 

lower court). In Perdue, the Court held that the upward 

adjustment for “results obtained” was not permissible. 

130 S. Ct. at 1676. We see no basis for distinguishing 

between an upward adjustment and a downward adjustment for “results obtained.” Neither is permissible absent 

unusual circumstances. 

Applying the standards set forth in Hensley and later 

cases, we find that this case does not present the sort of 

“rare” and “exceptional” circumstance where the factor of 

“amount involved and results obtained” should be considered as a basis for departure from the lodestar figure. 

The mere fact that the recovery is small in amount is not 

a circumstance justifying a reduced fee award. See Millea 

v. Metro-North R.R. Co., 658 F.3d 154, 168 (2d Cir. 2011). 

The district court’s conclusory statement that the 

“‘amount involved and results obtained’ factor [was] not 

adequately taken into account” in determining a reasonable fee, Attorneys’ Fees Order, 2010 WL 3212124, at *4, is 

also not sufficient, standing alone, to support a departure 

from the lodestar figure. While it is legitimate to consider 

the “amount involved and results obtained” in determining a reasonable attorney fee award, the district court 

should have considered this factor when determining the 

reasonable number of hours expended and the reasonable 

hourly rates of the attorneys. It is axiomatic that attor-
BYWATERS v. US 16

neys almost inevitably consider the amount involved in a 

particular case when determining a reasonable number of 

hours to expend on any given issue or when allocating 

personnel resources based upon the expertise or experience required. Where only a small amount is at stake, it 

certainly would not be reasonable to expend countless 

hours on such a small claim or to commit the most experienced or valued attorney in the firm to work on the case. 

Thus where the amount involved is small, reductions in 

the reasonable number of hours expended or the reasonable hourly rate can easily be made to reflect this fact. It 

is for this reason that the Supreme Court has held that 

the “results obtained” factor is generally subsumed within 

the lodestar calculation and thus normally should not 

provide an independent basis for a departure from the 

lodestar figure. Blum, 465 U.S. at 900; see also Perdue, 

130 S. Ct. at 1674. 

Just as the “amount involved and results obtained” 

can readily be incorporated into the lodestar figure, so too 

can the administrative nature of the work and the low 

level of skill involved, which the district court identified 

as alternative bases for reducing the lodestar figure.6 The 

district court’s findings with respect to these factors can 

be fairly reflected by reducing the number of hours reasonably expended and the appropriate hourly rates of the 

attorneys. See Del. Valley, 478 U.S. at 566 (“Because 

considerations concerning the quality of a prevailing 

 6 We reject appellants’ contention that the work 

was not significantly “administrative” in nature. The 

district court could properly consider the fact that 917.85 

hours of the total 2,119.69 hours requested by appellants 

accrued after the government’s stipulation to takings 

liability in determining the reasonableness of the number 

of hours requested and the appropriate hourly rates of the 

attorneys. 
17 BYWATERS v. US

party’s counsel’s representation normally are reflected in 

the reasonable hourly rate, the overall quality of performance ordinarily should not be used to adjust the lodestar . 

. . .”); Blum, 465 U.S. at 898-99 (“The novelty and complexity of the issues presumably were fully reflected in 

the number of billable hours recorded by counsel and thus 

do not warrant an . . . adjustment. . . . Neither complexity 

nor novelty of the issues, therefore, is an appropriate 

factor in determining whether to increase the basic fee 

award.”). 

Finally, the fee agreement between appellants and 

their counsel in this case is not a proper basis for reducing 

the lodestar figure, though it may be taken into account in 

the lodestar calculation. Unlike many contingent-fee 

agreements, the agreement here provides for appellants’ 

counsel to seek attorneys’ fees calculated as the greater of 

either “the value of [their] professional services at [their] 

regular hourly rates or by multiplying by one third the 

amount recovered for the plaintiff class as damages.” J.A. 

602. Thus, the fee agreement did not cap attorneys’ fees 

as a percentage of the recovery, and cannot be used to 

limit the recovery of attorneys’ fees after determining the 

lodestar figure.7 We nonetheless think that the agreement may be considered in calculating the lodestar figure. 

 7 In Blanchard v. Bergeron, 489 U.S. 87 (1989), the 

Supreme Court construed the language of the fee-shifting 

provision of the Civil Rights Act, 42 U.S.C. § 1988, which 

provides for recovery of “a reasonable attorney’s fee” to 

the prevailing party. The Court held that although the 

existence of a contingent-fee agreement could “aid in 

determining reasonableness,” such an agreement does not 

impose an “automatic ceiling” on an award of attorneys’ 

fees. Id. at 93. The Court specifically reasoned that 

“[s]hould a fee agreement provide less than a reasonable 

fee calculated [using the lodestar method], the defendant 

should nevertheless be required to pay the higher 
BYWATERS v. US 18

In conclusion, the district court should have considered the “amount involved and results obtained,” as well 

as the administrative nature of the work and the fee 

agreement, in determining the reasonable number of 

hours expended or the reasonable hourly rate. A remand 

is therefore necessary. On remand, the district court must 

determine the amount of attorneys’ fees, taking into 

account the “amount involved and results obtained,” the 

administrative nature of the work and the low level of 

skill involved, and the fee agreement in calculating the 

lodestar figure rather than by reducing the lodestar figure 

itself.8 

 

amount.” Id. However, in Marre v. United States, 38 F.3d 

823 (5th Cir. 1994), the Fifth Circuit construed 26 U.S.C. 

§ 7430, which provides for the recovery of “reasonable fees 

paid or incurred for the services of attorneys” to the 

prevailing party in a tax dispute against the United 

States. Distinguishing Blanchard based on the differing 

statutory language, the Fifth Circuit held that section 

7430’s requirement that the fees be “incurred” meant that 

an award of attorneys’ fees was limited to that provided 

for in a contingent-fee agreement. Marre, 38 F.3d at 829. 

We need not decide in this case whether a contingent-fee 

agreement providing for fees based on a percentage of the 

appellants’ recovery would impose a limit on recovery of 

attorneys’ fees under the URA, which similarly requires 

that the attorneys’ fees be “actually incurred.” 42 U.S.C. 

§ 4654(c). 

8 To be clear, the remand is not designed to give the 

district court a second chance to adjust the lodestar 

amount, but rather to give the district court the opportunity to recalculate the lodestar amount itself to take into 

account the factors that the district court mistakenly used 

to support the reduction of the lodestar amount. 
19 BYWATERS v. US

IV 

The second issue in this case is whether the district 

court properly applied hourly rates representative of 

those charged in the District of Columbia, where appellants’ counsel’s office was located, rather than applying 

hourly rates in the forum where the case was brought, the 

Eastern District of Texas. The Supreme Court has indicated that the reasonable hourly rates to be applied in 

determining the lodestar figure are the “prevailing market rates in the relevant community.” Blum, 465 U.S. at 

895. However, the Supreme Court has been silent on how 

to determine the “relevant community” under the URA or 

any other fee-shifting statute. The district court found 

that the “relevant community” in this case was the District of Columbia. We disagree. 

As we have recognized, “the courts of appeals have 

uniformly concluded that, in general, forum rates should 

be used to calculate attorneys' fee awards under other feeshifting statutes.” Avera v. Sec’y of Health & Human 

Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008).9 In Avera, 

we considered whether, in awarding attorneys’ fees under 

the National Vaccine Injury Compensation Program, 42 

U.S.C. § 300aa–10 to –34 (2000), the relevant community 

should be based upon “the prevailing market rate of the 

forum court . . . or the prevailing market rate of the 

geographic location where the attorney is based.” Id. We 

 9 See also Alan Hirsch & Diane Sheehey, Awarding 

Attorneys’ Fees and Managing Fee Litigation 24 (Fed. 

Judicial Ctr. ed., 2d ed. 2005), available at

http://www.fjc.gov/public/pdf.nsf/lookup/attfees2.pdf/$file/

attfees2.pdf (“Most courts consider the forum community 

the proper yardstick, so an award for out-of-town counsel 

will not be based on the rates in their usual place of 

work.”). 
BYWATERS v. US 20

held that “to determine an award of attorneys’ fees, a 

court in general should use the forum rate in the lodestar 

calculation.” Id. at 1349. However, we recognized a 

narrow exception to the “forum rule” where “the bulk of 

the work is done outside of the [forum] in a legal market 

where the prevailing attorneys’ rates are substantially 

lower.” Id.

Contrary to appellants’ contention, nothing in Avera

suggests that the forum rate should be disregarded when 

plaintiffs elect to retain counsel who are located outside 

the forum in a jurisdiction that charges higher rates than 

the forum rates. In that situation, the forum rate applies 

absent some unusual justification for departing from it. 

While we have not yet squarely addressed the issue, we 

recognize that several circuits have acknowledged an 

exception to the forum rule where local counsel is either 

unwilling or unable to take the case.10 We agree that 

 10 See, e.g., McClain v. Lufkin Indus., Inc., 649 F.3d 

374, 382 (5th Cir. 2011) (“[W]e hold that where . . . abundant and uncontradicted evidence proved the necessity of 

[] turning to out-of-district counsel, the co-counsel's ‘home’ 

rates should be considered as a starting point for calculating the lodestar amount.”); Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 705-07 (3d Cir. 2005) 

(recognizing two exceptions to the forum rule where (1) 

local counsel do not possess the “special expertise” necessary to handle the case; and (2) local counsel is unwilling 

to take the case); Rum Creek Coal Sales, Inc. v. Caperton, 

31 F.3d 169, 179 (4th Cir. 1994) (allowing for award of 

out-of-district rates where “‘the complexity and specialized nature of a case may mean that no attorney, with the 

required skills, is available locally,’ and the party choosing the attorney from elsewhere acted reasonably in 

making the choice”); Gates v. Deukmejian, 987 F.2d 1392, 

1405 (9th Cir. 1992) (holding that the district court did 

not abuse its discretion by applying exception to the 

forum rule where local counsel were unavailable); Polk v. 

N.Y. State Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 
21 BYWATERS v. US

such an exception is appropriate, but we also agree that it 

is applicable only in unusual situations. Such exceptions 

are permissible only where supported by specific evidence 

that no local attorneys possess the “special expertise” 

necessary to take the case or that no local attorneys were 

willing to take the case. See McClain, 649 F.3d at 382 

(application of out-of-district rates appropriate only where 

supported by “abundant and uncontradicted evidence” 

that out-of-district counsel were necessary); Interfaith 

Cmty., 426 F.3d at 705-06; Barjon v. Dalton, 132 F.3d 496, 

501-02 (9th Cir. 1997); see also Arbor Hill Concerned 

 

1983) (noting an exception to the forum rule “upon a 

showing that the special expertise of counsel from a 

distant district is required”); Maceira v. Pagan, 698 F.2d 

38, 40 (1st Cir. 1983) (“If a local attorney could perform 

the service, a well-informed private client, paying his own 

fees, would probably hire local counsel at the local, average rate. . . . But, if the client needs to go to a different 

city to find that specialist, he will expect to pay the rate 

prevailing in that city. In such a case, there is no basis for 

concluding that the specialist’s ordinary rate is unreasonably high.”); Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 

768 (7th Cir. 1982) (“If a high priced, out of town attorney 

renders services which local attorneys could do as well, 

and there is no other reason to have them performed by 

the former, then the judge, in his discretion, might allow 

only an hourly rate which local attorneys would have 

charged for the same service. On the other hand, there 

are undoubtedly services which a local attorney may not 

be willing or able to perform. The complexity and specialized nature of a case may mean that no attorney, with the 

required skills, is available locally.”); Avalon Cinema 

Corp. v. Thompson, 689 F.2d 137, 140-41 (8th Cir. 1982) 

(“If a plaintiff can show he has been unable through 

diligent, good faith efforts to retain local counsel, attorney's fees . . . are not limited to the prevailing rate in the 

district where the case is tried.” (internal quotation marks 

omitted)). 
BYWATERS v. US 22

Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 

182, 191 (2d Cir. 2008) (holding that the presumption that 

the forum rule should be applied may be rebutted “only in 

the unusual case”). 

In this case, the only evidence to suggest that an exception to the forum rule was applicable is Bywaters’s 

declaration indicating that the local attorney that he had 

originally hired to represent him was unable to help him 

in a “complex, specialized area of law” and that the only 

attorney he could find to represent him “in the whole 

country” was his current District of Columbia-based 

counsel. J.A. 539-40. We find Bywaters’s conclusory 

declaration to be insufficient. See Schwarz v. Sec’y of 

Health & Human Servs., 73 F.3d 895, 907 (9th Cir. 1995) 

(holding that exception to forum rule was inapplicable 

where the plaintiff’s own declaration, the only evidence in 

support of an exception, showed only that she had difficulty obtaining local counsel).11 There is no evidence to 

suggest that no local attorneys were competent to handle 

Bywaters’s case. Nor is there any indication that Bywaters conducted a reasonable search for local counsel to 

handle his case. While appellants were free to engage 

out-of-district counsel to represent them, the government 

should not be required to subsidize their decision to do so 

under these circumstances. See 10 James Wm. Moore et 

al., Moore’s Federal Practice § 54.190[2][b][i][E] (3d ed. 

1997 & Supp. 2011). Thus, we hold that an exception to 

 11 Compare Schwarz, 73 F.3d at 907, with McClain, 

649 F.3d at 383 (applying exception where the “the record 

[was] replete with affidavits from a variety of expert 

employment lawyers who swore that no Texas attorneys 

were willing and able to assist in such a large case”). 
23 BYWATERS v. US

the forum rule was not warranted in this case.12 On 

remand, the district court should apply the forum rule to 

determine the reasonable hourly rate, bearing in mind 

appellants’ burden “to produce satisfactory evidence . . . 

that the requested rates are in line with those prevailing” 

in the forum “for similar services by lawyers of reasonably 

comparable skill, experience and reputation.” Blum, 465 

U.S. at 896 n.11. 

CONCLUSION

For the foregoing reasons, the district court’s award of 

attorneys’ fees is vacated and the matter is remanded for 

further proceedings consistent with this opinion. 

VACATED and REMANDED. 

 12 Contrary to the dissent, the district court’s choice 

of Washington, DC as the relevant community did not 

represent fact-finding, but a misunderstanding of this 

court’s law. See Attorneys’ Fees Order, 2010 WL 3212124, 

at *3 (“Although [the forum rule] may be the law in the 

Fifth Circuit, Federal Circuit law is not so restrictive.”). 

The plaintiffs of course have the absolute right to choose 

their own counsel; what they do not have is the right to 

recover Washington, DC rates where competent local 

counsel are available. 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ASHBURN BYWATERS, CARL LANCASTER, 

BETTY L. HOHENBERGER, ORMAN RODERICK, 

JUNE RODERICK, AND NAN O. BEELER, 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2011-1032 

__________________________ 

Appeal from the United States District Court for the 

Eastern District of Texas in case no. 99-CV-0451, Judge 

Leonard C. Davis. 

__________________________ 

PLAGER, Circuit Judge, dissenting. 

The majority opinion focuses on two issues in this appeal1—first, whether the trial court correctly determined 

the amount of attorney fees to which the plaintiffs are 

entitled; and second, a subset of that question, was the 

trial court correct in using as the relevant market for 

pricing attorney services the District of Columbia, rather 

than Texas. On the first issue, I agree with the majority 

 1 The preliminary question addressed by the majority--whose law to apply to the case—seems indisputable; I 

concur in their conclusion. 
BYWATERS v. US 2

that the trial judge erred in his final calculation of the 

amount of reimbursable attorney fees; where we differ is 

on what to do about it. On the second issue, I disagree 

with the majority’s overriding of the trial court’s factual 

determination that the relevant market for these particular attorney services is the home base of these particular 

attorneys. 

With regard to the first issue—whether the trial court 

correctly determined the amount of reimbursable attorney 

fees under this fee-shifting statute—the majority acknowledges the generally fine job the trial court did in 

sorting through the evidence, with which I agree; the 

majority recites the applicable law; and the majority 

concludes that the trial court did err in its final figure. To 

that point we are in agreement. How that error should be 

corrected, however, is a matter of dispute between us. 

Simply stated, the trial court correctly invoked the 

controlling lodestar formula; made the required detailed 

findings regarding the number of hours reasonably expended by the plaintiffs’ attorneys; multiplied that by the 

reasonable hourly rate using the “Updated Laffey Matrix” 

applicable to District of Columbia attorney services; and 

came up with a lodestar figure. 

The record is undisputed that the trial court determined that the hours claimed (and awarded with small 

adjustment) were reasonable; the court specifically so 

found. The trial court properly multiplied those hours by 

the reasonable rates it had determined, and then arrived 

at what on the record is a reasonable and correct lodestar 

award. 

Had the trial court stopped there, it would have been 

fine. Inexplicably, at least to me, the trial court then 

reduced the lodestar award by 50%. Other than noting 

that the fee seemed to be “extremely high” in contrast to 
3 BYWATERS v. US

the overall award on the merits, the only substantive 

basis for such a reduction the trial court mentioned was 

the existence of a fee agreement between the plaintiffs 

and their attorneys that included a contingent fee option. 

Otherwise there is nothing to suggest or support the 

reduction in the award. 

I agree with my colleagues that “the fee agreement 

between appellants and their counsel in this case is not a 

proper basis for reducing the lodestar . . . .” Maj. op. at 

17. The fee agreement expressly stated that the attorneys’ fee could be based on either regular billing hours or 

a contingent fee, whichever was greater. We need not 

spend undue time reciting the obscure law on contingent 

fee considerations to simply acknowledge that under such 

an agreement, the possibility of a contingent fee does not 

serve as the benchmark for the fee award. 

The Supreme Court in Perdue stated that any departure from the lodestar by the trial court must evidence “a 

method [for a different calculation] that is reasonable, 

objective, and capable of being reviewed on appeal . . . .” 

Purdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1674 

(2010). Once the contingent fee is removed from the 

calculation, there is nothing in the trial court’s opinion 

that meets any of those criteria. More importantly, on the 

record in this case I see no reasoned basis for departing 

from the lodestar. The attorneys won virtually everything 

they set out to win. This is the kind of case that fee 

shifting is intended to encourage—many plaintiffs with 

small individual claims but a common transgression by 

the Government. Congress has made clear that the 

award is to be of the “reasonable attorney . . . fees, actually incurred . . . .” 42 U.S.C. § 4654(c). That the award is 

substantial when compared to the total recovery is neither surprising nor unusual. See Reply Br. 11. Once the 

hours expended and fees earned were found reasonable, 
BYWATERS v. US 4

the trial court’s work in this phase of the litigation was 

concluded. By summarily halving the award, the trial 

court misunderstood its job under the statute, and by 

acting contrary to law exceeded its authority. 

The Supreme Court has wisely said, “[a] request for 

attorney’s fees should not result in a second major litigation. Nor should it lead to years of protracted appellate 

review.” Perdue at 1684 (Kennedy, J., dissenting) (citing 

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). I would 

simply reverse and reinstate the lodestar award, and not 

put the trial court to the task of further hearings and this 

court to the inevitable further appeals. 

Regrettably, the majority proposes instead to remand 

the issue to the trial court to again undertake a calculation of the lodestar, this time however to consider the 

“amount involved and results obtained” as part of the 

initial lodestar calculation, rather than as an afterthought. But that won’t work either. As the majority 

itself acknowledges, the Supreme Court has made it 

abundantly clear that the lodestar controls absent “rare 

and exceptional circumstances.” Maj. op. at 2. There is 

nothing rare or exceptional about these circumstances, 

beyond the trial court’s unfortunate abuse of its discretion 

in arbitrarily reducing the lodestar award which it had 

determined to be reasonable. On remand, the same 

lodestar figure, absent the halving, is the only outcome 

the record could support. To remand is just to make work 

for the trial court, which it does not need, and to provide 

an opportunity for another appeal here, likely of little if 

any value to any one. Accordingly, from the decision to 

remand for no good purpose I respectfully dissent. 

With regard to the second issue--was the trial court 

correct in using as the relevant market for pricing these 

attorney services the District of Columbia, rather than 
5 BYWATERS v. US

Texas--I agree with my colleagues that “in determining 

the amount of reasonable attorneys’ fees to award under 

federal fee-shifting statutes, the district court is afforded 

considerable discretion.” Maj. op. at 10. We defer to the 

trial court in so far as possible, and particularly in its fact 

finding, given that the trial court is closest to the parties 

and to the ebb and flow of the litigation, and given the 

legal standard on appeal: we must find an abuse of 

discretion to overturn the trial court’s determinations. 

At the trial, the plaintiffs explained fully about their 

search for the best counsel for this type of specialized 

takings litigation. There is no showing that their choice 

of this particular counsel, located in Washington D.C., 

was motivated by anything other than a desire to get the 

best qualified representation. Under the circumstances, 

particularly when much of the legal work was office work 

done at the attorneys’ home offices, the simple economic 

notion of opportunity-cost would justify using the attorneys’ hometown rates. The trial court made that determination, and found such rates to be reasonable under 

the fee-shifting statute. When parties seek justice in the 

courts, especially when the Government is the defendant, 

neither we nor the Government should be in a position to 

challenge a plaintiff’s reasoned choice of private counsel. 

In holding to the contrary, the majority fails to grant 

the trial court the discretion in fact-finding that the law 

provides, and, from the rarified heights of an appellate 

court and a distance of a thousand miles, denies these 

plaintiffs the right to seek out and employ the best lawyers they could find to handle a complex class-action 

litigation that has now been in dispute for over ten years. 

The majority explains this by saying that this is not factfinding but a misunderstanding of law, and adding, “[t]he 

plaintiffs of course have the absolute right to choose their 

own counsel; what they do not have is the right to recover 
BYWATERS v. US 6

Washington, D.C. rates where competent local counsel are 

available.” Maj. op. at 23, n. 12. One might have thought 

that the trial judge was in the best position to ascertain 

whether there were local lawyers available with equivalent competencies to the plaintiffs’ chosen lawyers in this 

particular field of litigation; ruling that all lawyers are 

fungible as a matter of law is for me carrying egalitarianism a bit too far. 

Contrary to my colleagues’ position, I would affirm the 

trial court’s decision that the basis for determining a 

reasonable fee for the services rendered should be the fees 

charged in the hometown of the plaintiffs’ chosen attorneys (Washington, D.C.) and not what some lawyers 

might charge for services rendered at the forum (in this 

case Texas). From the majority’s contrary holding, I must 

respectfully dissent.