In the United States Court of Federal Claims

No. 09-315L 

(E-Filed: August 1, 2018)1

 

 ) 

Attorneys’ Fees; RCFC 54(d); 

Uniform Relocation Assistance 

and Real Property Acquisition 

Policies Act, 42 U.S.C. § 4654 

(2012). 

 

WHISPELL FOREIGN CARS, INC., et al., )

 )

 Plaintiffs, )

 )

 v. )

 )

THE UNITED STATES, )

 )

 Defendant. )

 )

Mark F. (Thor) Hearne, II, Clayton, MO, for plaintiffs. Lindsay S.C. Brinton, Meghan S. 

Largent, Stephen S. Davis, and Abram J. Pafford, of counsel. 

Taylor Ferrell, Trial Attorney, with whom was Jeffrey H. Wood, Acting Assistant 

Attorney General, Environment and Natural Resources Division, United States 

Department of Justice, Washington, DC, for defendant. 

OPINION 

CAMPBELL-SMITH, J. 

 Before the court is plaintiffs’ motion for attorneys’ fees and litigation costs, 

pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies 

Act (URA), 42 U.S.C. § 4654(c) (2012) and Rule 54(d)(2) of the Rules of the United 

States Court of Federal Claims (RCFC). See ECF No. 229. Plaintiffs seek attorneys’ 

fees and costs following the settlement, in their favor, of certain takings claims related to 

 

1

 This opinion was issued under seal on July 18, 2018. The parties were invited to 

identify source selection, proprietary or confidential material subject to deletion on the 

basis that the material was protected/privileged. No redactions were proposed by the 

parties. Thus, the sealed and public versions of this opinion are identical, except for the 

publication date and this footnote. 
2 

property in Pinellas, Florida. See ECF No. 13-1 (second amended complaint). 

Defendant filed, by leave of court, a corrected response brief and supporting exhibits in 

response to plaintiffs’ motion, as three separate docket entries, ECF No. 251 

(defendant’s corrected response); ECF No. 248 (corrected exhibit 1, filed under seal); 

ECF No. 275 (exhibits 2 through 4). And plaintiffs filed a reply brief, ECF No. 262. 

Following its review of the parties’ submissions, the court directed the parties to file 

supplemental briefs. See ECF No. 274 (January 30, 2018 order). 

 Thereafter, plaintiffs erroneously filed their supplemental brief as a supplemental 

motion for attorneys’ fees, ECF No. 278, and defendant filed its supplemental brief as a 

response thereto, ECF No. 279.2

 Plaintiffs then filed a sur-reply in support of their 

supplemental brief. See ECF No. 280. And finally, defendant filed a sur-reply brief. See 

ECF No. 281. Additionally, during the course of the briefing schedule, plaintiffs filed 

three notices of additional authority relating to plaintiffs’ motion for attorneys’ fees. See 

ECF No. 235 (first notice); ECF No. 271 (second notice); ECF No. 282 (third notice). 

Defendant filed a notice of supplemental authority, see ECF No. 283, and plaintiffs filed 

a response, see ECF No. 284. Plaintiffs’ motion is fully briefed and ripe for ruling by the 

court, without oral argument. For the reasons set forth below, plaintiffs’ motion for 

attorneys’ fees and litigation costs is GRANTED, in part and DENIED, in part. 

I. Background 

 In May 2009, plaintiffs filed this rails-to-trails lawsuit as a putative class action, 

alleging that defendant violated their rights—and the rights of those similarly situated— 

as guaranteed by the Fifth Amendment to the Constitution of the United States, by taking 

property without providing just compensation in return. See ECF No. 1. Plaintiffs filed 

two amended complaints, which eliminated the class action, but joined a number of 

plaintiffs. See ECF Nos. 11 (order granting motion for leave to file and accepting first 

amended complaint, as filed); 10-1 (first amended complaint); and, ECF Nos. 14 (order 

granting motion for leave to file second amended complaint); 13-1 (second amended 

complaint). On summary judgment, the court dismissed the claims in the second 

amended complaint made by all but three of those plaintiffs. See ECF No. 67 (February 

7, 2011 opinion); ECF No. 82 (June 7, 2011 opinion on reconsideration). 

 

2 Plaintiffs’ counsel filed plaintiffs’ supplemental brief as a supplemental motion, 

see ECF No. 278, whereas it should have been filed as a supplemental brief per the 

court’s January 30, 2018 order, see ECF No. 274. Since plaintiffs’ brief was filed as a 

motion, it is now a pending motion on the docket in this matter. The clerk’s office is 

directed to TERMINATE this motion and edit the docket entry, ECF No. 278, to 

properly reflect that this filing is plaintiffs’ supplemental brief, not a motion.
3 

 The parties then filed cross-motions for summary judgment on the remaining 

claims. See ECF Nos. 105, 112 (defendant’s motions for summary judgment); ECF No. 

116 (plaintiffs’ cross-motion for summary judgment). The court ruled that defendant was 

liable for the claims made by one plaintiff, see ECF No. 154 (June 5, 2012 opinion 

determining that defendant was liable for the claim made by Mr. Lawrence C. Alton), but 

did not resolve liability on summary judgment as to the others, see ECF No. 164 (August 

30, 2012 opinion denying motion for summary judgment as to liability for claims made 

by the Abrams Family and Bama Sea Products, Inc.). On September 13, 2013, the parties 

informed the court that they had reached a negotiated settlement of the pending claims, 

for an amount of $130,000, plus interest. See ECF No. 188 (joint status report). Since 

that time, the parties have been litigating the attorneys’ fees award, though the case was 

stayed for a period of approximately twenty months, to await a potentially relevant 

decision expected from the United States Court of Appeals for the Federal Circuit. See 

ECF No. 218 (order granting stay); ECF No. 219 (order lifting stay). 

 When this litigation began, plaintiffs’ counsel worked in the St. Louis, Missouri 

office of Lathrop and Gage, a Missouri law firm that also maintained an office in 

Washington, D.C. See ECF No. 229-3 at 2 (Decl. of Mark F. (Thor) Hearne, II). After 

the initial stage of litigation was underway, in February 2010, plaintiffs’ counsel joined 

Arent Fox, a Washington, D.C.-based law firm with an office in St. Louis, Missouri. See 

id. The parties disagree as to whether Washington, D.C. market rates or St. Louis market 

rates should be used in the court’s fees calculation. 

 Plaintiffs filed the motion that is presently before the court on October 11, 2016. 

See ECF No. 229. In their motion, plaintiffs ask the court to award $998,402 in 

attorneys’ fees and $10,860 in litigation costs. See ECF No. 229-1 at 33. That figure has 

now grown to $1,118,299 in fees, and $14,362 in costs, during the course of litigating the 

issue of attorneys’ fees. See ECF No. 262 at 8. Plaintiffs allege that their request, based 

on Washington, D.C. market rates, or the equivalent thereof, is a “fair, just and 

reasonable amount,” and should not be adjusted. See ECF No. 229-1 at 12. 

 In support of this assertion and the fees requested, plaintiffs initially submitted: 

(1) billing entries from the law firms Lathrop Gage and Arent Fox, LLP, see ECF No. 

229-2; (2) the declaration of plaintiffs’ lead counsel, Mark F. (Thor) Hearne, II, see ECF 

No. 229-3; (3) the declaration of Elizabeth Munno, chief financial officer, Arent Fox, 

LLP, see ECF No. 229-4; (4) the declaration of Dr. Michael Kavanaugh, an economist, 

see ECF No. 229-5; (5) the declaration of Dr. Laura A. Malowane, an economist, made in 

connection with Biery v. United States, Consolidated Case Nos. 07-693L and 07-675L, 

ECF No. 229-6; (6) the supplemental declaration of Dr. Malowane, made in connection 

with Biery v. United States, Consolidated Case Nos. 07-693L and 07-675L, ECF No. 
4 

229-7; (7) two surveys of attorney billing rates, ECF No. 229-8; (8) a portion of a hearing 

transcript from Biery v. United States, Consolidated Case Nos. 07-693L and 07-675L, 

ECF No. 229-9; and (9) a memorandum and order filed in the United States District 

Court for the Eastern District of Virginia in Vienna Metro, LLC v. Pulte Home 

Corporation, Case No. 1:10-cv-00502 (2011), ECF No. 229-10. 

 In response, defendant argues that the court should reduce plaintiffs’ request on 

three bases: (1) plaintiffs’ success in the case was “minimal,” since only three of the 

original fourteen plaintiffs recovered, ECF No. 251 at 19; (2) a portion of the fees 

charged were “unreasonable” in violation of the URA, such as fees charged for 

administrative tasks, id. at 27; and (3) “plaintiffs’ requested rates of compensation are 

excessive,” id. at 32. Defendant’s corrected response, ECF No. 251, was supported by an 

exhibit filed under seal, see ECF No. 248, which addressed the specific billing entries 

submitted by plaintiffs. But defendant’s corrected response did not include the 

documents referred to therein as Exhibits 2, 3, and 4.3

 

 Along with their reply to defendant’s opposition, ECF No. 262, plaintiffs 

submitted: (1) billing entries for additional fees and expenses, ECF No. 262-1; (2) a 

hearing transcript from Campbell v. United States, Case No. 13-324L, ECF No. 262-2; 

(3) a summary of defendant’s time and expenses, ECF No. 262-3; (4) a supplemental 

declaration from Mr. Hearne, plaintiffs’ counsel, ECF No. 262-4; (5) a table comparing 

the government’s proposed St. Louis rates and Washington, D.C. rates, ECF No. 262-5; 

(6) the declaration of Catherine L. Hanaway, a partner at Husch Blackwell, a law firm in 

St. Louis, ECF No. 262-6; (7) a table comparing the government’s proposed rates in other 

cases, ECF No. 262-7; (8) DOJ’s locality pay table, ECF No. 262-8; (9) the declaration of 

Hugh Culverhouse, an attorney in Florida, originally filed in a different case, ECF No. 

262-9; (10) a table comparing Washington, D.C. market rates with rates calculated 

according to the Laffey matrix, ECF No. 262-10; and (11) the U.S. Attorney’s fees matrix 

from 2015-2017, ECF No. 262-11. 

 After reviewing the parties’ initial submissions relating to plaintiffs’ motion for 

attorneys’ fees and costs, the court found that “neither plaintiffs nor defendant ha[d] 

 

3

 This paragraph refers to arguments made in, and exhibits filed with, defendant’s 

corrected response to plaintiffs’ motion for attorneys’ fees, ECF No. 251. Defendant 

moved the court for leave to file a corrected response, see ECF No. 249, a motion the 

court granted, see ECF No. 250. In filing its corrected response, several exhibits were 

omitted. The court addressed this filing error in its order of January 30, 2018, within 

which it directed defendant to file the government’s exhibits 2, 3, and 4 as a separate 

docket entry in this matter. See ECF No. 274 (scheduling order); ECF No. 275 (notice of 

filing of exhibits 2, 3, and 4). 
5 

provided the court with sufficient evidence to resolve the issue” of whether Washington, 

D.C. or St. Louis rates apply and directed the parties to file supplemental briefs. See ECF 

No. 274 at 1 (scheduling order). Specifically, the parties failed to submit evidence to 

establish the prevailing rates in either market in order to allow the court to make a 

comparison of those rates. As the court explained: 

Plaintiffs have offered no numbers that purport to represent relevant St. Louis 

market rates, much less the actual St. Louis rates charged by either of the firms 

at issue. The only evidence in the record from plaintiffs that provides any 

basis for comparison between the two markets is a statement in the declaration 

made by Ms. Elizabeth Munno, the Chief Financial Officer for Arent Fox. 

She states that the firm charges a rate “approximately fifteen percent lower 

for an associate in St. Louis compared to a similarly experienced associate in 

Los Angeles, New York or Washington, D.C.” See Decl. of Ms. Elizabeth 

Munno, ECF No. 229-4 at 3. Ms. Munno makes no representations about 

comparable partner compensation, and she provides no basis for concluding 

that the fifteen percent differential that she cites is specifically applicable to 

the type of legal work involved with this case. Furthermore, even assuming 

that Arent Fox’s St. Louis billing rates are fifteen percent lower than the rates 

sought in this case, plaintiffs have provided no evidence of whether that rate 

is representative of the St. Louis market. 

Id. at 2. The court also noted in its order that while defendant had apparently attempted 

to file relevant data on St. Louis market rates with its original response brief, ECF No. 

244 (see exhibits thereto), its corrected response brief, ECF No. 251, omitted these 

exhibits. 

 Since the time of the court’s ruling, both parties have made additional 

submissions. First, defendant corrected its omission of exhibits 2 through 4 to its 

corrected response brief, ECF No. 251, to include the following exhibits: (1) a 2014 

opinion issued in Adkins v. United States, Case Nos. 09-503L, 09-241L, & 09-158L, 

ECF No. 275-1; (2) a series of surveys of St. Louis, Missouri attorney billing rates 

published in Missouri Lawyers Weekly, in August 2017, September 2016, September 

2015, June 2014, June 2013, August 2012, March 2011, March 2010, and March 2009, 

see ECF No. 275-2; and (3) biographies of the plaintiffs’ attorneys, see ECF No. 275-3. 

 Plaintiffs then filed their supplemental brief, ECF No. 278, including three 

additional declarations: (1) a supplemental declaration of Mr. Hearne, plaintiffs’ counsel, 

ECF No. 278-1; (2) the declaration of Stephen S. Davis, an attorney with Arent Fox 
6 

practicing in St. Louis, Missouri, ECF No. 278-2; and (3) the declaration of Aaron 

Williams, a Certified Personnel Consultant in Missouri, ECF No. 278-3. 

II. Legal Standards 

 As a general rule, plaintiffs may not recover attorneys’ fees from the United 

States. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983). In this case, however, 

plaintiffs are eligible to request attorneys’ fees and costs pursuant to the URA, which 

creates an exception to the general rule, and provides, in relevant part: 

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 . . . shall determine and award or allow 

to such plaintiff, as a part of such judgment . . . such sum as will in the opinion 

of the court . . . reimburse such plaintiff for his reasonable costs, 

disbursements, and expenses, including reasonable attorney, appraisal, and 

engineering fees, actually incurred because of such proceeding. 

42 U.S.C. § 4654(c). “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.’” Bywaters v. United 

States, 670 F.3d 1221, 1228-29 (Fed. Cir. 2012) (alteration in original) (quoting Perdue v. 

Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010)). In making the lodestar calculation, 

the court multiplies the number of hours reasonably expended in the litigation by a 

reasonable hourly rate. Id. at 1225-26. Plaintiffs “bear[ ] the burden of establishing 

entitlement to an award and documenting the appropriate hours expended and hourly 

rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). 

 This formula is deceptively simple. In order to perform the proper calculation, the 

court must first review the hours billed and determine whether the work is properly 

charged to the client. Administrative tasks, for instance, are not compensable. See Hopi 

Tribe v. United States, 55 Fed. Cl. 81, 100 (2002). The court then must decide whether 

plaintiffs have applied the appropriate hourly rate, which is set “according to the 

prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 

(1984). 

 In order to identify the relevant community, the Federal Circuit applies the forum 

rule. See Avera v. Sec’y of Dept. of Health and Human Servs., 515 F.3d 1343, 1348-49 

(Fed. Cir. 2008). Under the forum rule, the relevant community is defined by the 

geographic location of the trial court. See Bywaters, 670 F.3d at 1233 (citing Avera, 515 
7 

F.3d at 1348). The forum for cases before the United States Court of Federal Claims is 

Washington, D.C. See Avera, 515 F.3d at 1348; Biery v. United States, Nos. 07-693L & 

07-675L, 2012 WL 5914260, at *6 (Fed. Cl. Nov. 27, 2012). 

 The court may, however, apply an exception to the forum rule when “the bulk of 

[an attorney’s] work is done outside the jurisdiction of the court and where there is a very 

significant difference in compensation favoring D.C.” Avera, 515 F.3d at 1349 (quoting 

Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 

755, 758 (D.C. Cir. 1999) (per curiam) (emphasis in original). In recognizing this socalled Davis County exception to the forum rule, the Federal Circuit intended to prevent a 

windfall to attorneys and “prevent the occasional erratic result where the successful 

petitioner is vastly overcompensated.” See id. (quoting Davis Cty., 169 F.3d at 758). 

The Federal Circuit has applied the Davis County exception in the context of 

compensation sought pursuant to the URA. See Bywaters, 670 F.3d at 1224, 1232-34. 

III. Analysis 

 A. Compensable Hours 

 Defendant contends that plaintiffs’ requested fee award should be reduced for 

several reasons. First, defendant argues that plaintiffs achieved minimal success, and 

therefore, should not recover the full amount of fees requested. See ECF No. 251 at 19-

26. In addition, defendant argues that plaintiffs’ request includes fees in four noncompensable categories of work: (1) work related to the solicitation of prospective 

clients; (2) administrative work; (3) vague and unexplained timesheet entries; and (4) 

excessive hours, specifically those dedicated to briefing the request for attorneys’ fees. 

See ECF No. 251 at 27-32. The court will address each issue in turn. 

 1. Reductions to Plaintiffs’ Award Due to the Level of Success 

 Defendant divides this case into four procedural phases and argues that after 

determining the level of success in each phase, the court should reduce any fee recovery 

for the unsuccessful portion of the plaintiffs’ efforts. See ECF No. 251 at 19-26. As an 

initial matter, plaintiffs’ object to the structure of defendant’s argument, claiming that 

dividing the case into “discrete phases” violates Supreme Court precedent. ECF No. 262 

at 10. Plaintiffs do not cite any authority for this assertion, but it appears that they intend 

to refer to the Court’s opinion in Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), in 

which the Court observed: 

In [some] cases the plaintiff’s claims for relief will involve a common core 

of facts or will be based on related legal theories. Much of counsel’s time 
8 

will be devoted generally to the litigation as a whole, making it difficult to 

divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot 

be viewed as a series of discrete claims. Instead the [trial] court should focus 

on the significance of the overall relief obtained by the plaintiff in relation to 

the hours reasonably expended on the litigation. 

In the court’s view, the analytical framework suggested by defendant does not violate this 

guidance. Defendant’s division of the case into time periods simply provides the court 

with a way to structure a discussion of whether plaintiffs’ counsel should be compensated 

for unsuccessful portions of the case. It does not divide the suit itself into discrete claims. 

Rather, the approach proposed by defendant has been employed previously and 

effectively by this court. See Gregory v. United States, 110 Fed. Cl. 400, 404 (2013) 

(dividing the case into five time periods for the purpose of analyzing appropriate 

reductions to hours billed). 

 It is indisputable that plaintiffs achieved less than they set out to achieve when this 

lawsuit began. Following dismissal of most of the claims on summary judgment, see 

ECF No. 67, only three of fourteen plaintiffs ultimately recovered, see ECF No. 188 

(joint status report).4 That said, it does not automatically follow that plaintiffs’ fee 

request should be reduced in direct proportion to that measure of success. As this court 

has previously noted, rails-to-trails cases involve both uniquely interrelated claims, and 

serve the special purpose of “vindicating constitutionally protected property rights.” 

Gregory, 110 Fed. Cl. at 404 (quoting Bywaters, 684 F.3d at 1296). With these concepts 

in mind, the court reduces the requested fee award as detailed below. 

 a. First Litigation Period: April 2009 to March 2010 

 Plaintiffs filed their original complaint on May 18, 2009. See ECF No. 1. 

Plaintiffs’ counsel has submitted billing records beginning in April 2009, reflecting work 

done in advance of that initial filing. See ECF No. 230 at 2. Plaintiffs’ first amended 

complaint was filed by leave of court on October 28, 2009, see ECF No. 10 (amended 

complaint); ECF No. 11 (order granting motion for leave to file and accepting first 

amended complaint, as filed), and a second amended complaint was filed by leave of the 

court on December 14, 2009, see ECF No. 13 (second amended complaint); ECF No. 14 

(order granting motion for leave to file and accepting second amended complaint, as 

 

4

 Defendant contends that there were sixteen plaintiffs in this case, but states that for 

purposes of this motion, it adopts plaintiffs’ position that there were fourteen. See ECF 

No. 251 at 9 n.3. The court will likewise conform its discussion to the parties’ 

accounting, as it has no material impact on the outcome in these circumstances. 
9 

filed). During this time, the parties also exchanged initial disclosures. See ECF No. 251 

at 9. 

 Defendant contends that “[d]uring this period, more than 80 percent of Counsels’ 

work was dedicated to the pursuit of non-meritorious claims (i.e.[,] claims that were 

ultimately dismissed) and/or on the solicitation of additional clients.” ECF No. 251 at 

22-23. Defendant concedes, however, that “at least some of the work on behalf of the 

unsuccessful Plaintiffs can be traceable to the later success of the three settling 

Plaintiffs.” Id. at 23. In defendant’s estimation, a fifty percent reduction in the fee 

request is appropriate for this time period. Id. Plaintiffs offer no specific refutation of 

defendant’s position. See generally ECF No. 262. 

 Taking all of the available facts and argument together, the court concludes as 

follows. Particularly in the beginning stage of a case, attorneys must devote considerable 

time both to the development and presentation of the legal theory underlying a claim, and 

to the gathering of facts that are material to that claim. Here, the initial development and 

presentation of plaintiffs’ legal theories represent an aspect of this litigation in which the 

plaintiffs’ claims are most interconnected. The claims of various plaintiffs, however, 

more clearly diverge with regard to fact gathering. In order to give plaintiffs’ counsel full 

credit for the legal work, and partial credit for the fact-gathering work on successful 

claims, the court, in its discretion, hereby reduces by thirty percent the number of hours 

billed for each timekeeper during this period. 

b. Second Litigation Period: March 2010 to September 2011 

 During the second period of time delineated by defendant, the parties litigated 

cross-motions for summary judgment, which addressed all claims made in this case, and 

a subsequent motion for reconsideration. See ECF No. 29 (plaintiffs’ motion for partial 

summary judgment); ECF No. 38 (defendant’s cross-motion for summary judgment); 

ECF No. 67 (February 7, 2011 opinion granting in-part and denying in-part the parties’ 

motions for summary judgment); ECF No. 69 (defendant’s motion for reconsideration); 

ECF No. 99 (August 29, 2011 opinion granting in-part and denying in-part defendant’s 

motion for reconsideration). The end result of the motion practice during this period was 

that the court dismissed the claims of all but three plaintiffs on summary judgment. ECF 

No. 99 at 27-28. 

 Given plaintiffs’ marginal rate of success during this period of time, a significant 

reduction is appropriate. In the court’s view, however, the eighty percent reduction 

requested by defendant is excessive. It is true that plaintiffs had approximately a twenty 

percent success rate if that rate is calculated based on the number of plaintiffs whose 
10 

claims survived the motions for summary judgment. But, this calculation fails to account 

for legal work from which both the successful and unsuccessful plaintiffs benefitted. In 

order to appropriately credit plaintiffs’ counsel for work that commonly applied to all 

plaintiffs’ claims, the court, in its discretion, hereby reduces by fifty percent the number 

of hours billed for each timekeeper during this period. 

c. Third Litigation Period: September 2011 to August 2013 

 The third time period encompasses the parties’ efforts to assess and settle the 

claims made by the ultimately successful plaintiffs. As such, defendant seeks no 

reduction in fees for lack of success, and the court will not impose a reduction of its own 

accord. 

d. Fourth Litigation Period: September 2013 to the Present 

 

 The final time period involves plaintiffs’ efforts to recover attorneys’ fees. 

Defendant’s argument for reducing fees billed as part of this effort primarily rests on the 

assertion that plaintiffs’ counsel should not recover for making arguments contrary to 

opinions previously issued by the Federal Circuit. Specifically, defendant argues that 

plaintiffs should not recover for hours billed to an unsuccessful motion to compel in 

addition to their motion seeking attorneys’ fees,5

 or for hours billed for developing 

arguments for the recovery of attorneys’ fees that previously have been rejected by the 

Federal Circuit. See ECF No. 251 at 25-26. The court hereby declines to reduce the 

requested fees during the fourth time period on the basis that plaintiffs’ efforts were not 

entirely successful, but will revisit the issue of whether the total hours are excessive 

below. 

 2. Additional Reductions for Non-Compensable Categories of Work 

 In addition to the above reductions on the basis of plaintiffs’ level of success, the 

court finds that the following reductions for non-compensable categories of work are 

appropriate. 

 

5

 Defendant states that plaintiffs filed two unsuccessful motions to compel, but the 

court docket only reflects one motion to compel in this case, ECF No. 226 (plaintiffs’ 

motion to compel); ECF No. 239 (opinion denying motion to compel). 
11 

 a. Plaintiffs May Not Recover for Work Related to Soliciting 

 Clients 

 

 One of the cardinal rules in seeking an award of attorneys’ fees under a feeshifting statute is that “[h]ours that are not properly billed to one’s client also are not 

properly billed to one’s adversary pursuant to statutory authority.” Hensley, 461 U.S. at 

434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (1980) (en banc) (emphasis in 

original). Defendant argues that plaintiffs’ attempt to recover “for work in soliciting 

clients, rather than performing work on behalf of a retained client,” violates this rule. 

ECF No. 251 at 27. The court agrees. Plaintiffs may not recover fees for hours billed for 

business development as opposed to client representation. Upon review of the entries 

designated as client development entries in Exhibit 1 to defendant’s response, see ECF 

No. 248, the court finds that a reduction is warranted, but disagrees on the designation as 

to a small number of entries. Accordingly, the court hereby disallows plaintiffs’ request 

for reimbursement of time spent soliciting clients as requested by defendant, with the 

exception of fifteen hours billed for Mr. Hearne, plaintiffs’ counsel. 

 b. Plaintiffs May Not Recover for Administrative Work 

 Defendant argues that plaintiffs “seek reimbursement for 76 hours of 

administrative or secretarial work that is not recoverable under the URA.” ECF No. 251 

at 29. Defendant is correct that plaintiffs cannot recover fees for tasks properly 

categorized as administrative. See Hopi Tribe, 55 Fed. Cl. at 100. Upon review of the 

time entries in Exhibit 1 to defendant’s response, see ECF No. 248, the court agrees with 

most of defendant’s designations of administrative work, and will reduce the 

compensable hours accordingly. The court hereby disallows the hours as requested by 

defendant, with the exception of two hours billed for David Yearwood, and 3.2 hours 

billed for Alexandrea Barney. 

 c. Plaintiffs’ Request Must Be Discounted for Vague Time 

 Entries 

 Defendant objects to plaintiffs’ request for fees related to two specific attorneys on 

the basis that their billing entries are too vague to allow the court to determine whether 

the work performed was reasonable. First, defendant argues that the billing entries 

recorded by Joseph Cavinato, prior to November 2011, lack the requisite specificity for 

reimbursement. See ECF No. 251 at 28-29 & n.14 (stating that defendant “does not 

contest the sufficiency of Mr. Cavinato’s billing descriptions after November 2011”). 

Additionally, defendant contends that the billing entries recorded by Debra Albin-Riley 

suffer from the same deficiency. See id. at 28-29. Specifically, defendant asks the court 
12 

to reduce the fees requested for hours billed for Mr. Cavinato by twenty-five percent, and 

for hours billed for Ms. Albin-Riley by fifty percent. 

 Defendant is correct that the court has the discretion to reduce hours billed on the 

basis of vague time entries. See Biery v. United States, Case Nos. 07-693L and 

07-675L, 2014 WL 12540517, at *3 (Fed. Cl. Jan. 24, 2014) (reducing fee award for 

hours billed by the same two attorneys at issue in this case by fifty percent due to vague 

billing entries). See also Avogoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 

2011) (affirming deduction of hours for entries that simply stated “draft client 

correspondence” as too vague); Greenhill v. United States, 96 Fed. Cl. 771, 781 (2011) 

(deducting hours associated with vague time entries). Upon review of the entries 

designated as vague in Exhibit 1 to defendant’s response, see ECF No. 248, the court 

finds that a reduction is warranted, but also finds that defendant overstates the problem. 

Accordingly, the court hereby reduces the hours billed for Mr. Cavinato, prior to 

November 2011, by ten percent, rather than the twenty-five percent requested by 

defendant. In addition, the court reduces the hours billed for Ms. Albin-Riley by twentyfive percent, rather than the fifty percent requested by defendant. 

 

 d. Plaintiffs’ Request Must Be Discounted for Excessive Work 

 Related to Attorneys’ Fees 

 Finally, defendant argues that plaintiffs’ total hours are excessive, particularly 

with regard to their effort to recover attorneys’ fees. See ECF No. 251 at 30-32. 

Defendant totals plaintiffs’ fee request related to time spent preparing their RCFC 54(d) 

attorneys’ fees motion at approximately $150,000. See id. Since that time, plaintiffs 

have revised their request to include an additional $120,000 in fees. See ECF No. 262-1. 

These additional fees were evidently also incurred in the pursuit of a fee recovery, as the 

present motion for attorneys’ fees was the only issue pending in this litigation during that 

time period. Plaintiffs’ total fee request is $1,118,299. See ECF No. 262 at 8. In other 

words, nearly twenty-five percent of the work for which plaintiffs seek reimbursement 

was work done on the fee petition. And plaintiffs’ recovery of fees for work preparing 

the fee petition, at $270,000, would be more than twice the $130,000 that plaintiffs 

recovered in this matter. 

 This court has recognized that “courts will typically award some fees for work 

necessary to prepare a fee petition.” Biery, 2014 WL 12540517, at *4 (citing Gregory, 

110 Fed. Cl. at 406 (finding that 10.3 hours billed for preparing a fee petition was 

reasonable)). In Biery, the court concluded that eighty hours, as opposed to the 700 hours 

requested by plaintiffs, was reasonable, compensable time for so-called “fees on fees” 

work. Id. (allowing plaintiffs to recover for twenty hours of paralegal time, thirty hours 
13 

of associate time, and thirty hours of partner time). See also Campbell v. United States, 

No. 13-324L, 2018 WL 2253042, at *5 (Fed. Cl. May 17, 2018) (disallowing 400 of the 

640 hours requested for fees-on-fees recovery, when that portion of the fee recovery 

would have been three times plaintiffs’ recovery); Lost Tree Vill. Corp. v. United States, 

135 Fed. Cl. 92, 98 (2017) (allowing reimbursement for 192.7 hours of work on fee 

petition in light of the unusually complex and extended nature of the litigation). 

 Here, plaintiffs have offered no explanation for the excessive proportion of time 

spent on attempting to recover fees beyond general statements, such as: “[The] time the 

owners[’] counsel devoted to this litigation was reasonable, appropriate and necessary.” 

ECF No. 262 at 14. This statement simply does not assist the court in its difficult linedrawing task. 

 Based on the available data, the court finds that Biery provides the best factual 

comparison to the case at bar for evaluating a fees-on-fees award. Biery was a rails-totrails case, litigated by the same plaintiffs’ attorneys seeking fees in this matter. And like 

the present case, Biery initially involved thirteen plaintiffs, a number of whose claims 

were dismissed on summary judgment. See Biery, 2014 WL 12540517, at *1. Campbell 

was also a rails-to-trails case litigated by the current team of plaintiffs’ attorneys, but that 

case was much larger, involving claims from seventy-six plaintiffs. See Campbell, 2018 

WL 2253042, at *1. As an additional point of comparison, the Biery litigation spanned 

nearly seven years, and the present case has spanned almost nine years. Finally, the court 

recognizes that plaintiffs’ billing entries reflect time spent attempting to settle a fee award 

with defendant, an issue not considered by the court in Biery. 

 The court in Biery allowed plaintiffs to recover for eighty hours of work on their 

fee petition—twenty hours of paralegal time, thirty hours of associate time, and thirty 

hours of partner time. See Biery, 2014 WL 12540517, at *4. Defendant urges the court 

to adopt the same measure in this instance. See ECF No. 251 at 31-32. While the court 

agrees that Biery provides a useful starting point, the longer life of this case and the work 

toward settlement—not addressed in Biery—justify a more generous allowance. The 

court hereby concludes that 125 hours of work on plaintiffs’ fee petition is reasonable in 

this case, divided as follows—twenty-five hours of paralegal time, sixty hours of 

associate time, and forty hours of partner time.

 B. Relevant Community 

 

 As noted above, in order to calculate the proper award of attorneys’ fees, the court 

must identify “the prevailing market rates in the relevant community.” Blum, 465 U.S. at 

895. The relevant community is, as a general rule, the geographic location of the court. 
14 

See Bywaters, 670 F.3d at 1233 (citing Avera, 515 F.3d at 1348). Plaintiffs contend that 

the court should apply this so-called forum rule, and calculate fees based on Washington, 

D.C. market rates. See ECF No. 229-1 at 11-12; ECF No. 262 at 14-15. 

 Defendant argues, however, that the court should apply the exception to this rule, 

established in Davis County Solid Waste Management & Energy Recovery Special 

Service District v. Environmental Protection Agency, 169 F.3d 755, 758 (D.C. Cir. 

1999). See ECF No. 251 at 32-41. The Davis County exception to the forum rule allows 

the court to apply lower rates “where the bulk of [an attorney’s] work is done outside the 

jurisdiction of the court and where there is a very significant difference in compensation 

favoring D.C.” Avera 515 F.3d at 1349 (quoting Davis County, 169 F.3d at 758) 

(emphasis in original). 

 Thus, in order to determine whether the Davis County exception applies in this 

case, the court must determine: (1) where the bulk of the work on this case was 

performed; and, (2) whether there is a very significant difference in market rates between 

the location from which the work was performed, and the market rates in Washington, 

D.C. 

 1. The Bulk of the Work Was Performed in St. Louis 

 Plaintiffs do not contend that most of the legal work in this case was performed in 

Washington, D.C. In his most recent declaration, Mr. Hearne states that Meghan Largent 

and Lindsay Brinton, two attorneys whose names appear most frequently in the billing 

records submitted by plaintiffs, live in St. Louis. See ECF No. 278-1 at 2; ECF Nos. 230, 

262-1 (billing records for plaintiffs). He also represents that he has offices in both St. 

Louis and Washington, D.C., and performs some work from Arent Fox’s offices in Los 

Angeles, San Francisco, and New York.6

 See id. He does not, however, represent that 

any of the attorneys who have billed time to this case were located in Washington, D.C. 

As such, the court finds it can reasonably infer that the bulk of the work on this case was 

performed in St. Louis, for purposes of applying the Davis County exception. 

 2. There Is a Very Significant Difference between St. Louis and 

 Washington, D.C. Market Rates 

 Plaintiffs have submitted hundreds—if not thousands—of pages of argument, 

declarations, and billing statements in support of their fees request. See ECF Nos. 229, 

229-1, 229-2, 229-3, 229-4, 229-5, 229-6, 229-7, 229-8, 229-9, 229-10 (plaintiffs’ motion 

 

6 The court also notes that Mr. Hearne’s official address as reflected in court records 

is in Clayton, Missouri. See CM/ECF Docket, Case No. 09-315L.

16 

market rate should apply to work done at Arent Fox.7

 See ECF No. 229-1 at 11. 

Although an updated chart was not filed, it appears that plaintiffs have increased these 

rates in the supplemental billing entries filed with its reply brief. See, e.g., ECF No. 262-

1 at 6 (reflecting an hourly billing rate of $859 for Mr. Hearne); ECF No. 262-1 at 7 

(reflecting an hourly billing rate of $580 for Ms. Brinton). 

 In response to the court’s directive to provide additional information to establish 

St. Louis market rates for comparison, ECF No. 274, plaintiff filed three declarations. 

See ECF No. 278. The first, from plaintiffs’ counsel, Mr. Hearne, adds no new facts in 

support of plaintiffs’ fee petition. The only statement included in the declaration that 

comments substantively on the issues before the court is Mr. Hearne’s contention that 

“the government’s proposed rate structure for ‘St. Louis rates’ bears absolutely no 

relation to the actual market for legal services in St. Louis or Washington DC.” ECF No. 

278-1 at 6. Likewise, a declaration from Stephen S. Davis, an attorney with Arent Fox, 

provides little assistance to the court. After summarizing his professional experience, 

Mr. Davis states: 

The “St. Louis” hourly rates proposed by the government for federal 

litigation in the Eastern District of Missouri are much lower than the hourly 

rates a St. Louis-based law firm with resources similar to Arent Fox would 

charge for work by attorneys with complex federal litigation experience, such 

as that possessed by the attorneys in this litigation. 

ECF No. 278-2 at 2-3. While the court does not have any reason to view either Mr. 

Hearne’s or Mr. Davis’s statement as disingenuous, neither declaration affirmatively 

establishes what plaintiffs’ believe are reasonable St. Louis billing rates. 

 The third declaration, from Aaron Williams, C.P.C., “a nationwide attorney search 

and legal management consultant,” does provide the court with some actual numbers. He 

includes the following chart to illustrate his opinion of appropriate St. Louis billable hour 

rates: 

 

7

 The Laffey matrix is a schedule of hourly rates for legal services in the 

Washington, D.C. area originally established in Laffey v. Northwest Airlines, 572 F. 

Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, Laffey v. Nw. 

Airlines, 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds en banc, Save 

Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988). Plaintiffs 

offer calculations based on an updated version of the Laffey matrix “to approximate [fees 

earned by attorneys at Lathrop and Gage] for the Washington, D.C. market.” See ECF 

No. 229-1 at 11. 


19 

See, e.g., Bratcher v. United States, 136 Fed. Cl. 786, 799-800 (Mar. 9, 2018) (adopting a 

partner rate of $475, a counsel rate of $375, and an associate rate of $275, a paralegal rate 

of $150, and collecting numerous cases in support). 

 That said, the court takes issue with defendant’s proposed rates in one respect. 

While the court believes that the surveys underlying defendant’s proposed rates are more 

reliable than the survey underlying plaintiffs’ proposed rates, defendant offers no clear 

reason for assigning each attorney an hourly rate that is marginally lower than the 

average hourly rate in the corresponding survey years. For example, according to the 

Missouri Lawyers Weekly survey published in August 2017 (compiling information from 

the preceding twelve months), the average hourly compensation for a partner in St. Louis 

was $504, see ECF No. 275-2 at 7, and the survey published the previous year, in 

September 2016 (compiling information from work performed in 2015 and 2016), the 

average hourly compensation for a partner in St. Louis was $459, see id. at 18, but 

defendant proposes a rate of $426 for Mr. Hearne. It appears that defendant relies on 

some combination of persuasive authority from this court and from other jurisdictions in 

arriving at these figures, see ECF No. 251 at 39, but the evidence submitted in the present 

proceeding is a superior basis for the court’s decision. 

 The court concludes that the average St. Louis hourly rates for attorneys, as 

presented in the Missouri Lawyers Weekly surveys, provide a reasonably reliable basis 

for establishing appropriate rates in this case. The court, therefore, must compare the 

market rates for Washington, D.C. proposed by plaintiffs and the market rates evidenced 

by the Missouri Lawyers Weekly surveys. In the billing statements filed with plaintiffs’ 

opening brief, Mr. Hearne recorded an hourly rate of $826. See ECF No. 230 at 2 (listing 

a billing entry for 0.5 hours, for a total fee of $413). In the supplemental billing 

statements filed with plaintiffs’ reply brief, Mr. Hearne recorded an hourly billing rate of 

$859. See ECF No. 262-1 at 6. The most recent hourly rate for average partner 

compensation, found in the August 2017 survey, is $504. See ECF No. 275-2 at 7. Mr. 

Hearne’s hourly rate of $826 is a 64% increase of the average $504, while his hourly rate 

of $859 is more than a 70% increase of the average $504. In the court’s view, either 

calculation represents a “very significant” difference in hourly rates. Avera 515 F.3d at 

1349 (quoting Davis County, 169 F.3d at 758). As a result, the court hereby finds that St. 

Louis market rates should apply to plaintiffs’ recovery in this case.8

 

8

 After reviewing the parties’ submissions on this issue, the court notes that 

defendant’s Exhibit 1, ECF No. 248, does not consistently apply a proposed St. Louis rate 

for each individual recording billing entries. Despite the fact that defendant strenuously 

argues that St. Louis rates should apply to plaintiffs’ attorneys in the text of its brief, see, 

e.g., ECF No. 251 at 37, the chart provided in the exhibit substitutes a proposed Laffey 

rate for ten attorneys, without adequate explanation. See, e.g., ECF No. 248 at 16 
20 

 3. Plaintiffs’ Recovery Must Be Based on Historical Rates 

 The court also notes that the parties disagree as to whether attorney compensation 

should be awarded based on historical rates or current rates. Plaintiffs argue that, despite 

the fact that this case has been on-going for nearly a decade, all work should be 

compensated on the basis of current billing rates. See ECF No. 229-1 at 28-30. 

Defendant argues that binding precedent requires the court to award fees based on 

historical rates. See ECF No. 251 at 41-44. 

 In Biery v. United States, the Federal Circuit held that attorneys’ fees awarded 

pursuant to the URA should be calculated based on historical rates because “under the 

no-interest rule, recovery of interest on an award of attorney fees is barred unless an 

award of interest is expressly and unambiguously authorized by statute.” 818 F.3d 704, 

714 (Fed. Cir. 2016) (citing Shaw v. Library of Congress, 478 U.S. 310, 322 (1986)). 

Plaintiffs contend that this court should not adhere to this precedential opinion on the 

basis of two decisions issued by the Supreme Court of the United States, both of which 

pre-date the Federal Circuit’s decision in Biery. See ECF No. 229-1 at 28-30 (discussing 

Missouri v. Jenkins, 491 U.S. 274 (1989) and Perdue v. Kenny A. ex rel. Winn, 559 U.S. 

542 (2010)). Not only were these cases available to the Federal Circuit at the time it 

decided Biery, neither Jenkins nor Perdue involved the URA. 

 In their opening brief, plaintiffs stated their intention to take this issue to the 

Federal Circuit or the Supreme Court if this court failed to adopt their view that current 

rates should apply: 

 

(assigning Ms. Albin-Riley and Mr. Makin Laffey rates rather than St. Louis rates). The 

key provided at the beginning of the chart states that the “Proposed Reimbursement” 

column “[i]dentifies reimbursement owed Plaintiffs, applying St. Louis rates where 

applicable and Laffey rates where St. Louis rates are not applicable.” See id. at 2. 

Defendant fails, however, to explain this hybrid approach to assigning the appropriate 

hourly rate, and it is contrary to the court’s present understanding of when the Laffey 

matrix rates are relevant to a fee award. See, e.g., Bratcher, 136 Fed. Cl. at 798 & n.11 

(explaining that the Laffey matrix may be used in the event that Washington, D.C. rates 

are applied, but applying St. Louis rates in calculating fee award); see also ECF No. 229-

1 (plaintiffs explaining that “the Laffey Matrix can be used to approximate [St. Louis] 

fees for the Washington, D.C. market”); ECF No. 251 (defendant noting that “[b]oth 

parties agree that, if D.C. rates apply, the Court should generally derive rates from the 

Laffey matrix”). As such, the court will disregard this calculation included in 

defendant’s chart. 
21 

We acknowledge this Court is bound by the Federal Circuit’s decisions. To 

the extent this Court reads Biery to preclude calculating the lodestar fee using 

current hourly rates, the Federal Circuit’s holding is contrary to the Supreme 

Court’s holdings. Should this Court adopt this view, we preserve this issue 

for review by the Federal Circuit en banc or by the Supreme Court. 

ECF No. 229-1 at 29 n.36. This court is, indeed, bound by the rulings of the Federal 

Circuit, but welcomes any clarity or further development in the law that may be provided 

by subsequent appeals filed by plaintiffs. 

 For the foregoing reasons, the court concludes that the attorney billing rates shall 

be calculated based on the average hourly rates as reflected in the Missouri Lawyers 

Weekly surveys, and shall be awarded historically. The court recognizes that the 

categories of “partner” and “associate” used in the surveys do not account for “counsel,” 

the designation used by plaintiffs’ firm that is apparently a middle ground between the 

associate and partner designations. The court also lacks the information to assign 

appropriate designations to all relevant professionals for the years at issue, and notes that 

the billing records include professionals not included in defendant’s chart of timekeepers. 

Therefore, the court directs the parties to CONFER and FILE a joint proposal setting 

forth, by year, the hourly rates for each timekeeper included on the billing statements, 

which incorporates the average hourly rates for partners and associates reflected in the 

Missouri Lawyers Weekly surveys, and which reflects an agreed upon hourly rate for 

individuals serving in counsel positions. 

 C. Costs 

 Plaintiffs seek to recover $14,362 in litigation costs. See ECF No. 262 at 8. 

Based on the descriptions of these costs provided by plaintiffs, they cover expenses for 

matters such as court filings and transcripts, postage and delivery services, photocopy 

services, telephone calls, electronic research, case-related travel expenses, and expert 

fees. See ECF No. 230 at 66-68; ECF No. 262-1 at 9. Defendant does not contest 

plaintiffs’ requested litigation costs. In the court’s view, plaintiffs have demonstrated 

both that the costs were actually incurred, as required by the URA, and that $14,362 is a 

reasonable sum to have spent on the costs included on plaintiffs’ ledger throughout the 

course of nine years of litigation. As such, the court hereby awards plaintiffs’ costs in the 

amount of $14,362. 

IV. Conclusion 

 For the foregoing reasons, plaintiffs’ motion for attorneys’ fees and costs, ECF 

No. 229, is hereby GRANTED, in part, and DENIED, in part as follows: 
22 

 (A) As to the number of compensable hours: 

 (1) Plaintiffs’ fee request shall be reduced based on the level of success 

 divided into four procedural categories, as follows: 

 

(a) First litigation period, from April 2009 to March 2010, the 

court hereby reduces by thirty percent the number of hours 

billed for each timekeeper during this period; 

(b) Second litigation period, from March 2010 to September 

2011, the court hereby reduces by fifty percent the number 

of hours billed for each timekeeper during this period; 

(c) Third litigation period, from September 2011 to August 2013, 

the court hereby imposes no reduction to plaintiffs’ fees 

request for this time period; 

(d) Fourth litigation period, from September 2013 to present, the 

court hereby imposes no reduction to plaintiffs’ fees request 

for this time period. 

(2) Plaintiffs’ fee request also shall be reduced based on noncompensable categories of work, as follows: 

 

 (a) The court hereby reduces plaintiffs’ fee request for 

 reimbursement of time spent soliciting clients, as identified 

 by defendant, with the exception of fifteen hours billed for 

Mark F. (Thor) Hearne, II. 

 (b) The court hereby reduces plaintiffs’ fee request for 

 reimbursement of administrative or secretarial hours, as 

 identified by defendant, with the exception of two hours 

billed for David Yearwood, and 3.2 hours billed for

 Alexandrea Barney. 

 (c) The records supporting plaintiffs’ fee request include a 

 number of vague time entries, and as such, the court hereby 

reduces the hours billed for Joseph Cavinato, prior to 
23 

 November 2011, by ten percent; and reduces the hours 

 billed for Debra Albin-Riley by twenty-five percent. 

 (d) The court hereby reduces plaintiffs’ fee request due to 

 excessive work related to their attorneys’ fees petition, and 

 only the following hours shall be permitted: 125 total hours, 

 divided as follows—twenty-five hours of paralegal time,

 sixty hours of associate time, and forty hours of partner 

 time. 

(3) The court notes that plaintiffs submitted additional billing records 

attached to their reply brief, ECF No. 262, to which defendant did 

not have an opportunity to specifically respond. The parties are 

instructed to cooperate to ensure that the conclusions expressed in 

this opinion are appropriately applied thereto. 

 (B) As to the relevant community: 

 All hours shall be compensated at historical St. Louis market rates, 

 appropriate to the level of experience for each timekeeper, as established by 

 the yearly Missouri Lawyer Weekly surveys submitted by defendant for 

 partner, associate, and paralegal rates, and at an agreed-upon, appropriately 

 commensurate rate for attorneys designated as “counsel.” 

 (C) As to litigation costs: 

 Plaintiffs’ request for litigation costs, in the amount of $14,362, is 

 GRANTED, as reasonable and compensable. 

 The parties are instructed to CONFER and FILE a joint proposal for the award 

of fees and costs based on the guidance and legal conclusions contained in this opinion, 

on or before August 24, 2018. The proposal shall: (1) demonstrate compliance with the 

various reductions that the court has directed the parties to make to plaintiffs’ fee 

petition; (2) state the rates, by year, applied for each timekeeper; and (3) state the total 

number of hours billed for each timekeeper.9

 

 Plaintiffs’ supplemental brief was erroneously filed as a supplemental motion, 

ECF No. 278. The clerk’s office is directed to TERMINATE this motion and edit the 

 

9

 Filing the joint proposal as directed by this court does not waive any right 

plaintiffs may have to pursue a revision of these fees on appeal.
24 

docket entry, ECF No. 278, to properly reflect that this filing is plaintiffs’ supplemental 

brief, not a motion.

 In addition, on or before August 3, 2018, the parties shall CONFER and FILE a 

joint proposed redacted version of this opinion, with any protectable information 

blacked out. 

 IT IS SO ORDERED. 

 s/Patricia E. Campbell-Smith 

 PATRICIA E. CAMPBELL-SMITH 

 Judge