United States Court of Appeals 

for the Federal Circuit ______________________ 

DANIEL HAGGART, KATHY HAGGART, FOR 

THEMSELVES AND AS REPRESENTATIVES OF A 

CLASS OF SIMILARLY SITUATED PERSONS,

Plaintiffs-Appellees

v.

GORDON ARTHUR WOODLEY, DENISE LYNN 

WOODLEY,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2014-5106

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:09-cv-00103-CFL, Judge Charles F. 

Lettow. 

______________________ 

Decided: January 8, 2016

______________________ 

 CARTER GLASGOW PHILLIPS, Sidley Austin LLP, Washington, DC, argued for plaintiffs-appellees. Also represented by JACQUELINE G. COOPER; THOMAS SCOTT 

STEWART, ELIZABETH MCCULLEY, Stewart Wald & McCul-
2 HAGGART v. UNITED STATES

ley, LLC, Kansas City, MO; STEVEN WALD, St. Louis, MO; 

J. ROBERT SEARS, Baker, Sterchi, Cowden & Rice, LLC, 

St. Louis, MO.

 DAVID CHARLES FREDERICK, Kellogg, Huber, Hansen, 

Todd, Evans & Figel, PLLC, Washington, DC, argued for 

plaintiffs-appellants. 

 MARY GABRIELLE SPRAGUE, Environment and Natural 

Resources Division, United States Department of Justice, 

Washington, DC, argued for defendant-appellee. Also 

represented by WILLIAM B. LAZARUS, SAM HIRSCH.

 MARK F. HEARNE, II, Arent Fox, LLP, Clayton, MO, 

for amicus curiae National Association of Reversionary 

Property Owners. Also represented by LINDSAY S.C.

BRINTON, MEGHAN SUE LARGENT, STEPHEN SHARP DAVIS. 

______________________ 

Before REYNA, WALLACH, and HUGHES, Circuit Judges.

WALLACH, Circuit Judge.

Appellants Gordon and Denise Woodley (“Woodleys”) 

challenge the decision of the United States Court of 

Federal Claims (“Claims Court”) approving a settlement 

agreement in a class action takings suit and awarding 

attorney fees to class counsel under the common fund 

doctrine. The United States (“Government”) confesses 

error for failing to support the Woodleys’ claim before the 

Claims Court and, like the Woodleys, now asserts the 

Claims Court erred in approving the settlement agreement and awarding class counsel attorney fees under the 

common fund doctrine. For the reasons set forth below, 

we vacate and remand on both issues. 
HAGGART v. UNITED STATES 3

BACKGROUND

I. Procedural History

This is an appeal by two members of a certified class 

in a class action suit, challenging the Claims Court’s 

approval of a $110 million settlement agreement and its 

decision to award class counsel approximately $35 million 

in attorney fees. See Haggart v. United States (Haggart 

IV), 116 Fed. Cl. 131 (2014). In 2003, Burlington Northern Railroad sought to divest its interest in three segments of land in King County, Washington. The 

divestiture was accomplished pursuant to section 208 of

the National Trails Systems Act Amendments of 1983, 16 

U.S.C. § 1247(d) (“Trails Act”).1 The Surface Transportation Board, a federal adjudicatory body with broad economic regulatory oversight of railroads, authorized King 

County to use the railroad corridor for a public trail. 

However, the authorization forestalled the reversion of 

the property to the fee title landowners of the segments of 

land, who had only granted easements to the railroads. 

In February 2009, Daniel and Kathy Haggart filed a 

complaint alleging that they and other landowners held 

interests in the railroad corridor and the Trails Act effect1 “The Trails Act is designed to preserve railroad 

rights-of-way by converting them into recreational trails.” 

Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir. 

2012). “Actions by the [G]overnment 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 

[G]overnment’s action under the Trails Act prevented 

reversion of the property to the original owner.” Id. (first 

citing Preseault v. United States, 100 F.3d 1525, 1550–52 

(Fed. Cir. 1996) (en banc); then citing Caldwell v. United 

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

 
4 HAGGART v. UNITED STATES

ed an uncompensated taking, in violation of the Fifth 

Amendment’s Takings Clause, when King County acquired an interest in the land.2 Before the class was 

certified, sixty-four class members signed contingent fee 

agreements with class counsel, providing for a thirty-five 

percent fee of the “common fund.”3 The Haggarts sought 

to define the common fund to include land values, interest, and statutory fees under section 304(c) of the Uniform 

Relocation Assistance and Real Property Acquisition

Policies Act of 1970 (“URA”). See 42 U.S.C. § 4654(c). 

In September 2009, the Claims Court certified the 

class as an opt-in class action in accordance with Rule 23 

of the Rules of the United States Court of Federal Claims 

(“RCFC”). See Haggart v. United States (Haggart I), 89 

Fed. Cl. 523, 536 (2009). On October 16, 2009, class 

counsel notified the Claims Court and the Government 

that attorney fees “will be the greater of (a) 35% of any 

recovery (45% if the case is appealed); or (b) its statutory 

attorney[] fees.” S.A. 239.4 Class counsel also provided a 

2 The Supreme Court has held that the Fifth 

Amendment requires the Government to pay compensation under the Tucker Act, 28 U.S.C. § 1491(a) (1982), to 

landowners whose reversionary interests in property were 

forestalled by the Trails Act. See Preseault v. I.C.C., 494 

U.S. 1, 12–13 (1990). 

3 The Government presents a different figure (sixtyone members). See Government Br. 41 n.26. However, 

Exhibit A of the Haggarts’ Fifth Amended Complaint lists 

sixty-eight class members who entered an appearance and 

signed the contingency fee agreement (i.e., those members 

identified as “Engaged”). Government Suppl. App. 

(“S.A.”) 280–93. 

4 Class counsel issued a notice of proposed final settlement that ultimately sought thirty as opposed to thirtyfive percent of the recovery.

 
HAGGART v. UNITED STATES 5

copy of the contingency fee agreement to class members 

who did not sign the agreement. The Claims Court subsequently divided the class into six subclasses. See Haggart v. United States (Haggart II), 104 Fed. Cl. 484, 491

(2012). After discovery, the parties filed cross-motions for 

partial summary judgment relating to two subclasses 

(subclasses two and four). In December 2012, the Claims 

Court granted-in-part and denied-in-part the crossmotions. See Haggart v. United States (Haggart III), 108 

Fed. Cl. 70, 75 (2012) (asserting that the United States 

was “liable to the [s]ubclass [t]wo plaintiffs and several 

categories of the [s]ubclass [f]our plaintiffs for the taking 

of their property by issuing the trail-use authorizations 

when the rail easements did not encompass that use”). 

Following this decision, the class was winnowed to 253 

class members. 

II. Settlement Negotiations

After the Claims Court’s decision in Haggart III, the 

parties commenced settlement negotiations for the 253 

class members. Both parties retained appraisers to 

independently examine the properties and to determine 

their fair market value.5 After two days of mediation, the 

parties reached a settlement agreement in the amount of 

$110,000,000 for the land of the 253 class members and 

5 Because of the large number and different types of 

individual properties, the appraiser for the class established twenty-two valuation groups based on the character and use of the properties. Each of the twenty-two 

representative parcels was individually appraised. The 

unappraised parcels were each allocated to one of the 

twenty-two representative parcels. As to these parcels, 

the appraisers extrapolated the square footage values 

from the representative parcels, and using these values 

and other variable inputs, estimated the fair market 

value of the property interest taken. 

 
6 HAGGART v. UNITED STATES

agreed that interest should be compounded at 4.2% from 

the date of the taking, totaling an additional 

$27,961,218.69 through May 31, 2014.6 After a second 

mediation, the parties settled on a statutory attorney fees 

figure of $2,580,000, consisting of $1,920,000 in fees and 

$660,000 in costs. Class members received notice regarding the likely terms of the settlement in September 2013, 

and many consented to them at that time. 

III. The Claims Court’s Approval of the Settlement 

Agreement and Award of Attorney Fees

On February 12, 2014, class counsel and the Government filed a joint motion for approval of the settlement 

agreement. The joint motion asserted that “the proposed 

settlement is fair, reasonable, and adequate with respect 

to the individual claims of each opt-in class member and 

as to the class as a whole.” S.A. 375. A day later, class 

counsel moved for an additional award of attorney fees 

under the common-fund doctrine. 

On February 25, 2014, the Claims Court preliminarily 

approved the proposed settlement agreement and also 

approved a notice to be sent to the 253 class members. 

On February 27, 2014, a slightly revised notice advising 

class members of the overall settlement terms, as well as 

the settlement terms for the claims of individual class 

members (the notice included an individual disclosure 

page, which provided the principal and interest for each 

landowner’s property) and attorney fees, was sent to class 

members.7 

6 Because “the judgment was not paid on May 31, 

2014, and has not been paid to date, interest is now 

accruing at approximately $16,100 per day.” Haggart Br. 

7. 

7 The notice read in part: 

 
HAGGART v. UNITED STATES 7

The Claims Court held a fairness hearing on March 

28, 2014. Of the 253 class members, only three participated in the hearing.8 The Woodleys expressed their 

dissatisfaction with their proposed award, the awarding 

of additional attorney fees as a percentage of the total 

recovery, and the lack of “access by class members to 

appraisal data.” Haggart IV, 116 Fed. Cl. at 142. The 

Claims Court granted class counsel’s motion for approval 

of the attorney fees and division of the common fund. 

However, the court rejected class counsel’s request that 

the statutory fee under the URA should be included in the 

common fund for purposes of calculating the contingent 

fee. 

The Woodleys appeal the settlement approval and 

award of attorney fees. The remaining members of the 

class (collectively, the “Haggarts”), oppose the Woodleys 

through their class counsel. Although it failed to take a 

formal position below, on appeal the Government takes 

the position that class counsel improperly refused to 

Class [c]ounsel has proposed that the Court 

approve an award of attorney[] fees in the 

amount of [thirty percent] of the settlement 

sum of $139,881,218.69, which includes principal, interest, and the statutory attorney[] 

fees, but excludes the $660,000.00 that the 

United States agreed to pay to reimburse 

Plaintiffs for the costs and expenses incurred 

on their behalf by [c]lass [c]ounsel. The attorney[] fee award requested by [c]lass 

[c]ounsel amounts to $41,964,365.61. 

S.A. 434. 

8 In addition to the Woodleys, Michael Young and 

Sue Long also objected to the proposed settlement agreement. 

 
8 HAGGART v. UNITED STATES

disclose information necessary to allow class members to 

assess the fairness and reasonableness of the proposed 

settlement. This court has jurisdiction under 28 U.S.C. 

§ 1295(a)(3) (2012).

DISCUSSION

Before we address the merits of the Woodleys’ claim, 

we are presented with multiple threshold issues. First, 

the Haggarts contend the Government lacks standing and 

thus cannot challenge the approved settlement and award 

of attorney fees.9 Second, the Haggarts argue that by 

failing to raise its arguments before the Claims Court, the 

Government’s contentions before this court are barred by 

waiver and judicial estoppel. We address each of these

threshold issues in turn. 

I. The Government Has Standing to Challenge the 

Claims Court’s Award of Attorney Fees Under the 

Common Fund Doctrine

The Haggarts contend that the Government lacks 

standing to seek review of “any issues pertaining to [c]lass 

[c]ounsel’s recovery of attorney[] fees” because it lacks 

“any cognizable interests at stake that could support this 

[c]ourt’s jurisdiction to review those issues.” Haggart Br. 

14 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 

(1992)). In support of this argument, the Haggarts cite to 

the Claims Court decision in Geneva Rock Products, Inc. 

v. United States, in which the court determined that 

because “no class member has objected to the [attorney] 

9 All parties agree that this court’s jurisdiction does 

not rest on the Government demonstrating standing 

because the Woodleys have standing to contest the settlement agreement and award of attorney fees under the 

common fund doctrine. Instead, the Haggarts contend 

that this court should not consider the arguments proffered by the Government because it lacks standing. 

 
HAGGART v. UNITED STATES 9

fee award and . . . neither the [G]overnment’s liability nor 

its susceptibility to damages is in any way contingent on, 

or affected by, the amount of attorney[] fees awarded 

apart from the statutory fee,” the Government cannot 

establish standing to challenge the contingent fee. 119 

Fed. Cl. 581, 593 (2015) (citations omitted).

Unlike the class members in Geneva Rock, here the 

Woodleys have objected to the attorney fee award. Also, 

the line of cases relied on by the Claims Court distinguish 

between the losing party’s ability to challenge attorney 

fees to be paid from a common fund as opposed to a statutory fee. See Copeland v. Marshall, 641 F.2d 880, 905 n.57 

(D.C. Cir. 1980) (“[W]here the prevailing party’s fees are 

paid by the loser pursuant to statute . . . the losing party . . . retains an interest in contesting the size of the fee. 

This is not the case in ‘common fund’ fee litigation.” (emphasis added)). 

The Government possesses an institutional interest in 

assuring that courts do not abrogate Congress’s intent by

impermissibly substituting the common fund doctrine in 

place of a fee-shifting statute like the URA when awarding attorney fees. See Freeman v. Ryan, 408 F.2d 1204, 

1206 (D.C. Cir. 1986) (“Where litigation involving federal 

programs comes to involve questions of attorney[] fees[,]

the cognizant federal official has an interest in the fee 

award as well as the merits of the litigation even though, 

or assuming, the fee does not decrease funds in the 

Treasury.” (emphasis added)). Attorney fee awards are 

“one aspect of the interest of Government officials in the 

programs they administer, an interest that is not to be 

narrowly and technically confined so as to limit presentation to courts of issues they consider to have significance 

in terms of their overall responsibilities as public officials.” Id. Although we recognize the Fifth Amendment’s

Takings Clause is not a program administered by the 

Government, when an inverse condemnation action under 

the Tucker Act alleging a Government taking results in 
10 HAGGART v. UNITED STATES

an award of compensation and a statute expressly mandates the Attorney General, in settling such actions, to 

“determine” and “allow” “such sum as will in the opinion 

of . . . the Attorney General reimburse [] plaintiff for . . . 

reasonable attorney . . . fees,” 42 U.S.C. § 4654(c), the 

Government retains an interest in defending the Attorney 

General’s determination that the URA fee constitutes the 

reasonable attorney fee. See Allen v. United States, 606 

F.2d 432, 434 (4th Cir. 1979) (“[E]ven though fees [were]

not assessed against the [Government][,] . . . the 

[G]overnment [retains] [an] interest in the propriety of 

fees which it is obliged to disburse.”). 

Because Congress intended the URA to assure that 

plaintiffs in inverse-condemnation actions obtain just 

compensation for their property taken by the Government 

by requiring that the Government pay plaintiffs’ reasonable attorney fees, see Florida Rock Industries v. United 

States, 9 Cl. Ct. 285, 291 (1985) (“The Act thus entitles a 

plaintiff to be made whole for expenses incurred in achieving victory”), the Government has an interest “in seeing 

that [the attorney fees] it owes to litigants are disbursed 

properly.” Allen, 606 F.2d at 434. 

II. The Government’s Arguments Are Not Barred by 

Waiver or Judicial Estoppel

A. Waiver

The Haggarts contend the Government should not be 

allowed to “disavow[] th[e] settlement [agreement] . . . , 

based upon concerns that it could have raised, but did not 

raise, with [the Claims] [C]ourt.” Haggart Br. 15. The 

Haggarts assert that during the fairness hearing, “[t]he 

[Government] [] sat mute on the disclosure issue. Instead, it emphasized the ‘arduous process’ that produced 

the settlement and defended [the settlement agreement] 

as ‘fair, reasonable[,] and adequate.’” Id. at 16. (brackets 

and citations omitted). As to the attorney fee award, they 

contend the Government “affirmatively disclaimed any 
HAGGART v. UNITED STATES 11

interest in the matter, both in response to [c]lass 

[c]ounsel’s fee motion and at the fairness hearing.” Id. 

Thus, “[b]ecause the [Government] failed to raise these 

issues below,” the Haggarts contend we should find them 

waived. Id. at 17. 

The Government acknowledges that it “did not take a 

position below on the adequacy of [c]lass [c]ounsel’s disclosures or its motion for additional fees.” Government

Reply Br. 3. However, with respect to the settlement 

agreement, it claims that it “assumed that [c]lass 

[c]ounsel had fulfilled its obligation to provide the owners 

relevant information,” until the fairness hearing when the 

Woodleys “provided additional information about their 

communications with [c]lass [c]ounsel.” Government Br. 

19. On the basis of this information, the Government 

contends it “determined that [c]lass [c]ounsel improperly 

refused to disclose information necessary to evaluate the 

methodology for valuing the compensation proposed to be 

paid to each class member.” Id. Thus, the Government 

avers that its current position constitutes a confession of 

error “for failing to take a position in the [Claims Court] 

on the [Woodleys’] assertions of inadequate disclosure” 

and “for failing to oppose in the [Claims Court] [c]lass 

[c]ounsel’s motion for additional attorney[] fees under the 

common-fund doctrine.” Government Reply Br. 4–5. 

We are not bound to accept the Government’s confession nor does it relieve us of our obligation to examine 

independently the errors confessed. See Young v. United 

States, 315 U.S. 257, 258–59 (1942). Nevertheless, the 

Supreme Court has held that the Government’s assertion 

that reversible error has been committed is “entitled to 

great weight,” id. at 258, and that “candid reversal of its 

position is commendable,” Orloff v. Willoughby, 345 U.S. 

83, 87 (1953); see also Ramos v. Dep’t of Justice, 552 F.3d 

1356, 1358 (Fed. Cir. 2009) (accepting the Government’s 

confession of error). Because the Government’s “error 

[should] not [be] penalized by precluding [its] subsequent 
12 HAGGART v. UNITED STATES

assertion of the truth,” we find that the Government 

should be allowed to put forth its arguments. Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980). 

B. Judicial Estoppel

The facts of this case render the Haggarts’ judicial estoppel arguments untenable.10 Judicial estoppel is an 

equitable doctrine, designed to “protect the integrity of 

the judicial process” by “preven[ting] a party from prevailing in one phase of a case on an argument and then 

relying on a contradictory argument to prevail in another 

phase.” Davis v. Wakelee, 156 U.S. 680, 689 (1895) 

(“Where a party assumes a certain position in a legal 

proceeding, and succeeds in maintaining that position, he 

may not thereafter, simply because his interests have 

changed, assume a contrary position, especially if it be to 

the prejudice of the party who has acquiesced in the 

position formerly taken by him.”). Although “[t]he circumstances under which judicial estoppel may appropriately be invoked are [] not reducible to any general 

formulation or principle,” Allen v. Zurich Ins. Co., 667 

F.2d 1162, 1166 (4th Cir. 1982), “main factors” which 

typically inform a court’s decision in applying the doctrine 

include: “(1) a party’s later position is ‘clearly inconsistent’ 

with its prior position, (2) the party successfully persuaded a court to accept its prior position, and (3) the party 

‘would derive an unfair advantage or impose an unfair 

10 Although the Supreme Court has applied the equitable doctrine of judicial estoppel to bar state governments from asserting particular arguments, it has never 

expressly applied the doctrine to the federal government. 

See New Hampshire v. Maine, 532 U.S. 742, 749 (2001)

(holding that under the doctrine of judicial estoppel, “New 

Hampshire is equitably barred from asserting––contrary 

to its position in the 1970’s litigation—that the inland

Piscataqua River boundary runs along the Maine shore”). 

 
HAGGART v. UNITED STATES 13

detriment on the opposing party if not estopped,’” Organic 

Seed Growers & Trade Ass’n v. Monsanto Co., 718 F.3d 

1359, 1358–59 (Fed. Cir. 2013) (quoting New Hampshire,

532 U.S. at 750–51). 

Although the Haggarts contend “[a]ll of [the factors in 

Monsanto] are present” in this case, they nonetheless 

concede the Government “raised no issues about [the 

inadequate disclosures] in the joint motion seeking approval of the settlement or at the fairness hearing.” 

Haggart Br. 18 (emphasis added); see also id. at 20 n.9 

(characterizing the Government’s conduct as “studied 

silence”). Similarly, with respect to the attorney fee 

award, the Haggarts again assert “the [Government] 

formally took no position on it [before] the [Claims 

Court].” Id. at 19 (emphasis added). 

The Haggarts do not contend the arguments made by 

the Government before the Claims Court contradict those 

made before this court because there was no precise 

argument proffered by the Government either before the 

Claims Court or in the fairness hearing. The Government’s only attempt to do so was with regard to its assertion that the settlement agreement was “fair, 

reasonable[,] and adequate.” Id. at 16 (brackets omitted)

(quoting S.A. 545–46). However, acquiescence that the 

settlement agreement in total was fair, reasonable, and 

adequate is not inconsistent with the Government’s 

current assertion that class counsel failed to provide 

adequate disclosure of how the settlement agreement was 

distributed among every individual class member.11 See 

11 “While the [Government] continues to believe that 

the total principal amount of $110 million is fair to the 

class as a whole, the approval of the settlement without 

requiring proper disclosure constituted an abuse of discretion and this case should be remanded to the [Claims 

 
14 HAGGART v. UNITED STATES

S.A. 545–46 (During the fairness hearing, the Government asserted it “had specific points about the different 

properties and the issues that [were] involved with them 

and we didn’t discuss necessarily every individual property, but there were common factors among groups of property that we discussed.” (emphasis added)). Here, the 

Government has not disavowed or proffered any conflicting assertions not raised before the Claims Court or in the 

fairness hearing. What is more, its acquiescence or 

failure to take a position on the attorney fees issue is not 

congruent to a disavowal of a previous position and, thus, 

cannot form the basis for judicial estoppel. See United 

States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (“[I]f the 

[G]overnment is to be judicially estopped, the estoppel 

must be limited to a precise argument presented by the 

[G]overnment and accepted by the [court].” (emphasis 

added)). 

Because the Government has not presented arguments at variance with its earlier contention, none of the 

three factors articulated in Monsanto are present in the 

case before us. Therefore, the Government’s arguments 

are not barred by judicial estoppel. 

III. Class Counsel Failed to Disclose How It Calculated 

the Individual Compensation Amounts

We review the Claims Court’s “legal holdings de novo 

and examine[] [its] factual findings for clear error.” 

Banks v. United States, 741 F.3d 1268, 1275 (Fed. Cir. 

2014) (citing Bell BCI Co. v. United States, 570 F.3d 1337, 

1340 (Fed. Cir. 2009)). As to the Claims Court’s approval 

of a class action settlement agreement, we review its 

determination that the agreement was fair, reasonable, 

and adequate for abuse of discretion. See In re Cendant 

Court] for proper disclosure to all class members.” Government Br. 28.

 
HAGGART v. UNITED STATES 15

Corp. Litig., 264 F.3d 201, 231 (3d Cir. 2001); see also In 

re Gen. Motors Corp. Engine Interchange Litig., 594 F.2d 

1106, 1124 (7th Cir. 1979)

The Government contends “[c]lass [c]ounsel improperly refused to disclose information necessary to evaluate 

the methodology for valuing the compensation proposed to 

be paid to each class member, and this refusal deprived 

class members of the ability to evaluate the fairness and 

reasonableness of the proposed settlement.” Government

Br. 19. The Woodleys and the Government also contend 

class counsel failed to provide “the square-footage documentation, appraisals or spreadsheets.” Id. at 20 (footnotes omitted). According to the Government,

compensation amounts were allocated to individual class 

members “based on the square-footage documentation, 

the appraisals of the representative parcels, and the 

series of three spreadsheets that show how [c]lass 

[c]ounsel and its appraiser extrapolated [dollar/squarefootage] values from the appraised parcels to the unappraised parcels.” Id. The spreadsheets include: “(1) the 

original spreadsheet reflecting [c]lass [c]ounsel’s initial 

demand, (2) the spreadsheet prepared after the first day 

of mediation on May 29, 2013, reflecting a reduced demand, and (3) the spreadsheet reflecting the $110 million 

settlement.”12 Id. at 19–20. 

12 According to the Government: 

The relevant factors addressed in these documents are: (1) the ‘before’ parcel [squarefootage]; (2) the before parcel $/[squarefootage]; (3) the estimated cost of removing 

ballast from the right-of-way (the ‘excavation 

cost’) . . . ; (4) the ‘after” parcel [squarefootage] (deducting the [square footage] in 

the right-of-way); (5) the after parcel 

 
16 HAGGART v. UNITED STATES

The Haggarts contend the Claims Court “determined 

that class members had sufficient information concerning 

their individual settlement amounts, including the appraisals.” Haggart Br. 27. They argue the Government 

and the Woodleys “fail to cite any authority supporting 

their argument that [c]lass [c]ounsel had a duty separate 

and apart from [RCFC] Rule 23(e)(1)[13] to provide the 

$/[square-footage] (which is often different 

from the before parcel $/[square-footage]); 

and (6) whether the deed is a ‘Roeder’ deed. 

Based on these factors, the ‘before’ parcel’s 

value is ([square-footage] × ($/[squarefootage])) − (excavation cost). The ‘after’ parcel’s value is [square-footage] × ($/[squarefootage]). The compensation amount for each 

parcel is generally (before value − after value) × 80% (for parcels with ‘Roeder’ deeds), 

although there are exceptions.

Government Br. 21 (footnote omitted). 

The term “Roeder deed” was established in The

Roeder Co. v. Burlington Northern Inc., where the 

Supreme Court of Washington, sitting en banc, 

described it as “a deed [that] refers to the right of 

way as a boundary but also gives a metes and 

bounds description of the abutting property.” 105 

Wash. 2d 567, 577 (Wash. 1986) (en banc).

13 RCFC Rule 23(e)(1) states: 

(e) Settlement, Voluntary Dismissal, or 

Compromise. The claims, issues, or defenses 

of a certified class may be settled, voluntarily 

dismissed, or compromised only with the 

court’s approval. The following procedures 

apply to a proposed settlement, voluntary 

dismissal, or compromise.

 
HAGGART v. UNITED STATES 17

specific documents and information requested by individual class members regarding their individual settlement 

amounts.” Id. at 29 (footnote added). Finally, the Haggarts contend class counsel ‘“explained the underlying 

methodology and data’ . . . [which] was more than adequate to enable class members to decide whether to object 

to the settlement –– and [the Woodleys] in fact did object 

and were give a lengthy opportunity to be heard at the 

fairness hearing.” Id. at 30 (quoting Haggart IV, 116 Fed. 

Cl. at 142). The Haggarts concede that “the master 

damages calculation spreadsheet for all 253 parcels was 

not provided to the class members (i.e., class members 

were not shown the individual settlement amounts of 

other class members).” Haggart Br. 34–35. However, the 

Haggarts assert that “[c]lass [c]ounsel explained the 

methodology for determining the individual settlement 

amounts” during meetings held with class members in 

October 2013. Id. at 35 (emphasis added). 

The precise issue before us is whether the Claims 

Court abused its discretion by finding class counsel’s act 

of explaining, as opposed to physically providing objecting 

class members with a copy of the final spreadsheet detailing the precise methodology used to calculate the allocation of their property values, satisfied the requirement 

that the settlement agreement be “fair, reasonable and 

adequate.” RCFC 23(e)(2). The facts of this case support 

our finding that it did. 

We recognize that notice need not “contain a formula 

for calculating individual awards” or provide a “complete 

source of information.” Petrovic v. Amoco Oil Co., 200 

(1) The court must direct notice in a 

reasonable manner to all class members 

who would be bound by the proposal.

RCFC 23(e)(1). 

 
18 HAGGART v. UNITED STATES

F.3d 1140, 1153 (8th Cir. 1999) (quoting DeBoer v. Mellon 

Mortg. Co., 64 F.3d 1171, 1176 (8th Cir. 1995)); see also

William B. Rubenstein, Newberg on Class Actions § 8:17 

(5th ed. 2015) (“Newberg”) (“[N]otice need not be overly 

long and stuffed with every relevant bit of information, 

and parties are not always strictly bound to the language 

approved by the court.” (footnotes omitted)). However, 

because notices are often general and need not encompass 

all relevant details, it is crucial that class counsel allow 

class members to “easily acquire more detailed information” should they choose to do so. Petrovic, 200 F.3d at 

1153; see also Faught v. Am. Home Shield Corp., 668 F.3d 

1233, 1240 (11th Cir. 2011) (approving settlement agreement because the notice provided “instructions for accessing a website established for the purpose of providing 

additional information regarding the proposed settlement”); Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1797.6 (3d ed. 2004) (“[C]ourts 

have approved notices that did not contain some of the 

precise details of the settlement, such as the distribution 

or allocation plan, or the amount of attorney fees to be 

taken out, as long as sufficient contact information is 

provided to allow the class members to obtain more 

detailed information about those matters.” (footnotes 

omitted)); Manual for Complex Litigation, Fourth, 

§ 21.312 (2004) (“Manual”) (stating that notice should 

“prominently display the address and phone number of 

class counsel and how to make inquiries”). 

Despite the Haggarts’ attempt to frame it as such, 

this case does not concern the notice provided by class 

counsel to class members outlining the details of the 

settlement agreement. Rather, it is rooted in the Woodleys’ request for additional information concerning the 

methodology class counsel employed in calculating the 

fair market value of unappraised properties. Courts have 

rarely had an opportunity to assess counsel’s provision of 

additional information concerning a settlement agree-
HAGGART v. UNITED STATES 19

ment due to the proliferation of the use of easilyaccessible mediums, such as the Internet, which permits 

class members to evaluate the agreement in greater 

detail. See Newberg § 8:17 at 283 (“[A]s the Internet 

develops, it is easy, and relatively costless, to provide 

class members free access to a set of documents in the 

lawsuit at settlement, not just to a synopsis describing the 

settlement. . . . Given the ease of making this material 

available to class members, courts may become increasing[ly] wary of settlements that fail to do so.”); see also In 

re Pet Food Prods. Liab. Litig., 629 F.3d 333, 339–40 (3d 

Cir. 2010) (“[A] settlement website [was] established, 

through which class members could obtain additional 

information and copies of settlement documents.”) 

The Claims Court may approve a settlement proposal 

“only after a hearing and on finding that it is ‘fair, reasonable, and adequate.’” RCFC 23(e)(2). Although typically articulated in the context of challenges to formal 

court-approved notices of settlement under Rule 23(e)(1) 

of the Federal Rules of Civil Procedure (“FRCP”), the 

general principle that notice must be “reasonably calculated, under all the circumstances, to apprise interested 

parties of the pendency of the action and afford them an 

opportunity to present their objections,” Mullane v. Cent. 

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)

(citations omitted), is equally applicable in the context of 

the provision of additional information, see In re Katrina 

Canal Breaches Litig., 628 F.3d 185, 197 (5th Cir. 2010) 

(reversing approval of a class action settlement because 

class members were not provided “information reasonably 

necessary for them to make a decision whether to object to 

the settlement”). Although “[t]here are no rigid rules to 

determine whether a settlement notice to the class satisfies constitutional or Rule 23(e) requirements,” Wal-Mart 

Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 

2005), class counsel, either by notice or the method by 

which additional information is provided, must provide 
20 HAGGART v. UNITED STATES

“all necessary information for any class member to become fully apprised and make any relevant decisions,” 

Katrina, 628 F.3d at 198 (emphasis added) (internal 

quotation marks and citation omitted). Of course what 

constitutes “necessary information” depends on the particular circumstances of the proposed settlement. See 

Wal-Mart Stores, 396 F.3d at 114. 

In this case, due to the large number of individual 

properties, class counsel and the class appraiser divided 

the properties into three distinct categories: (1) “unique” 

properties; (2) “representative” properties; and (3) “nonrepresentative” properties. See Haggart IV, 116 Fed. Cl. 

at 136. Properties characterized as unique “did not share 

enough common valuation features with any other properties directly appraised,” thus their fair market values 

were “directly determined by an appraisal for that specific 

property.” Id. Similarly, with respect to representative

properties, determination of the parcels’ fair market value 

was also based on a direct appraisal of the property. The 

only parcels not individually appraised were nonrepresentative parcels. In calculating the fair market 

values of non-representative parcels, the properties were 

divided into twenty-two groups and within each group, 

representative parcels were chosen to serve as proxies for 

the properties in the group based on a myriad of factors 

such as “common use, zoning, similar location, and other 

significant features with the other properties in the subgroup.” J.A. 85. 

Full disclosure of the precise methodology employed 

in arriving at the value of non-representative properties is 

especially important in this context because of the various 

inputs used in calculating the fair market value of unappraised properties and the significant discrepancy in the 

allocation of the final property values. See S.A. 403–17 

(proposed compensation ranged from $444.45 to more 

than $2.4 million). Where inequities in treatment exist 

among class members, class counsel must provide mem-
HAGGART v. UNITED STATES 21

bers with sufficient information justifying any disparate 

treatment. See Vassalle v. Midland Funding LLC, 708 

F.3d 747, 755 n.1 (6th Cir. 2013) (reversing the district 

court’s approval of proposed settlement agreement and 

stating that “[e]ven if they were not disproportionate, we 

would still hold the inequities in treatment here are 

unfair because the record contains no justification for 

these inequities”). 

Because the fair market values of non-representative 

parcels were extrapolated from one of twenty-two representative groups, determinations of the fair market 

values of non-representative properties must have been 

derived from some methodology, using the value of the 

representative property and some variable inputs (i.e., 

square footage documentation of the unappraised property, the topography of the property, and the excavation 

cost). However, it is undisputed that class counsel did not 

provide the Woodleys, or any other class members, with 

information about the representative property from which 

their parcel was extrapolated or how any of the variable 

inputs were valued in calculating the fair market value of 

their individual properties. In response, the Haggarts 

assert that counsel “did not provide to class members the 

appraisals of the [twenty-two] representative parcels 

because [counsel] believed that they would have been of 

no assistance to the class members in evaluating their 

individual settlement amounts.” Haggart Br. 33. Thus, 

class counsel never provided class members with information about the base value from which the fair market 

value of their unappraised parcels was derived. Because 

the fair market value of each non-representative parcel is 

derivative of one of the twenty-two representative properties, the value of the representative properties constitutes 

the starting point in determining the value of nonrepresentative properties. Absent provision of this value, 

class members cannot assess whether the fair market 
22 HAGGART v. UNITED STATES

value of their property was fair, reasonable, and adequate. See RCFC 23(e)(2). 

Class counsel also asserts that it provided “the portion 

of the spreadsheet concerning each class member’s parcel.” Haggart Br. 35. However, this information does not 

constitute “necessary information for any class member to 

become fully apprised and make any relevant decision[].” 

See Katrina, 628 F.3d at 198 (citation omitted). A relevant decision could not have been made by any class 

member whose property was not directly appraised. Mere 

examination of the spreadsheet detailing the fair market 

value of the property provides no guidance or insight in 

determining whether the property value is fair, reasonable, and adequate because necessary information such as 

the articulation of the variables and other inputs from 

which the fair market value was derived was not provided. See Manual § 21.312 (Class counsel must “explain the 

procedures for allocating and distributing settlement 

funds, and, if the settlement provides different kinds of 

relief for different categories of class members, clearly set 

forth those variations.”).

We recognize receipt of only three objections from a 

class of 253 members militates in favor of approval of the 

settlement agreement.14 However, in this instance, 

because counsel withheld additional information critical 

14 See, e.g., Wal-Mart Stores, 396 F.3d at 118 (stating that “the absence of substantial opposition is indicative of class approval” when only eighteen of five-million 

class members objected); see also Raulerson v. United 

States, 108 Fed. Cl. 675, 678 (2013) (“The fact that only a 

small number of class members object to a proposed 

settlement strongly favors approval.” (citation omitted)); 

Manual § 21.61 at 310 (“The lack of significant opposition 

may mean that the settlement meets the requirements of 

fairness, reasonableness, and adequacy.”). 

 
HAGGART v. UNITED STATES 23

to any evaluation of the settlement agreement, such 

conduct renders the agreement unfair because the Woodleys and all other class members were unable to verify 

whether their individual settlement awards were “fair, 

reasonable, and adequate.” RCFC 23(e)(2). That objections are only by a minority of class members cannot 

ratify the deprivation of readily available information and 

does not negate the earnest efforts of class members, 

however few, from seeking fair compensation. See Eubank v. Pella Corp., 753 F.3d 718, 721 (7th Cir. 2014) 

(noting “the importance . . . of objectors . . . and of intense 

judicial scrutiny of proposed class action settlements”); see 

also Manual § 21.61 (stating that the lack of significant 

opposition to a settlement agreement “might signify no 

more than inertia by class members”). 

With respect to the Haggarts’ contention that class 

counsel “explained the methodology for determining the 

individual settlement amounts,” Haggart Br. 35, apart 

from documents provided in the notice to the class, class 

counsel did not provide any additional documents such as 

the spreadsheets detailing the precise methodology used 

to calculate the fair market value of the properties that 

would have placed the Woodleys and other class members 

in a position to determine for themselves whether the 

allocation of the settlement agreement was fair, reasonable, and adequate, see S.A. 548 (Mrs. Woodley asserting 

during the fairness hearing that “[w]e would just like to 

see [the appraisal documentation] . . . . The appraisal 

starting point, the spreadsheets, the calculations. We’ve 

never seen them. [Class counsel] talked about it, briefly, 

but we’ve never seen it.”); see also Manual § 21.312 (Asserting that class counsel must “provide information that 

will enable class members to calculate or at least estimate 

their individual recoveries.” (emphasis added)). 

Mere provision of the final values of the unappraised 

properties, without more, cannot render the settlement 

agreement “fair, reasonable, and adequate.” RCFC 
24 HAGGART v. UNITED STATES

23(e)(2). Moreover, under the Washington Rules of Professional Conduct (“RPC”), class counsel owes a fiduciary 

duty to his clients to furnish such information. See Washington RPC 1.4(a)(4) (“A lawyer shall: promptly comply 

with reasonable requests for information.”). We see no 

reason why under these facts class counsel can or should 

deny his clients access to the physical copy of information 

which they are entitled to receive. Otherwise, effective 

representation of the class members’ interests cannot 

occur. See Weinberger v. Kendrick, 698 F.2d 61, 74 (2d 

Cir. 1982) (stating that to achieve “effective representation of the class’s interests,” the provision of adequate 

information includes allowing “access to materials produced in discovery” (citations omitted)). 

The Claims Court erred in approving a settlement 

agreement where class counsel withheld critical information not provided in the mailed notice to class members, but which had been produced and was readily 

available. Thus, the court abused its discretion by failing 

to consider the accessibility or availability of information 

necessary for the Woodleys and other class members to 

make an informed decision about the settlement agreement. See In re Bank of Am. Corp. Sec., Derivative, & 

Emp. Ret. Income Sec. Act (ERISA) Litig., 772 F.3d 125, 

132 (2d Cir. 2014) (in a class action suit, a court abuses or 

exceeds the discretion accorded to it when “its decision––

though not necessarily the product of a legal error or a 

clearly erroneous factual finding––cannot be located 

within the range of permissible decisions” (internal quotation marks and citation omitted)); see also Eastway Constr. Corp. v. City of N.Y., 821 F.2d 121, 123 (2d Cir. 1987) 

(“All discretion is to be exercised within reasonable limits. 

The concept of discretion implies that a decision is lawful 

at any point within the outer limits of the range of choices 

appropriate to the issue at hand; at the same time, a 

decision outside those limits exceeds or, as it is infelici-
HAGGART v. UNITED STATES 25

tously said, ‘abuses’ allowable discretion.” (citations 

omitted)). 

IV. The Common Fund Doctrine

We now turn to the Claims Court’s award of attorney 

fees under the common fund doctrine.15 The common 

fund doctrine is rooted in the traditional practice of courts 

of equity and derives from the equitable power of the 

courts under the doctrines of quantum meruit, Central

R.R. & Banking Co. v. Pettus, 113 U.S. 116, 128 (1885), 

and unjust enrichment, Trustees v. Greenough, 105 U.S. 

527, 532 (1881). Under the common fund doctrine, “a 

litigant or a lawyer who recovers a common fund for the 

benefit of persons other than himself or his client is 

entitled to [] reasonable attorney[] fees from the fund as a 

whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 

(1980) (citations omitted). 

Our analysis requires three steps. First, we address 

whether the circumstances of this case creates a common 

fund. We then address whether the common fund doctrine is applicable under RCFC 23 class actions. Finally, 

we determine whether an attorney may recover attorney 

fees under the common fund doctrine in lieu of reasonable 

attorney fees provided by the URA. We take each of these 

issues in turn. 

A. A Common Fund Exists

The Woodleys and the Government assert that, contrary to the Claims Court’s determination, “[t]here is no 

common fund.” Woodley Br. 12. Specifically, the Gov15 The doctrine presents one variant to the American 

Rule of attorney fees reaffirmed by the Supreme Court in 

Alyeska Pipeline Service Company v. Wilderness Society, 

under which all parties are to bear their own costs in 

litigation. 421 U.S. 240, 275 (1975).

 
26 HAGGART v. UNITED STATES

ernment argues that “[t]he bundling of individual payments so [c]lass [c]ounsel can conveniently collect fees 

cannot transform separate payments into a ‘common fund’ 

entitling [c]lass [c]ounsel to common-fund fees.” Government Br. 38. 

In response, the Haggarts argue that the Woodleys

and the Government’s contention that the Claims Court’s 

“award was merely a ‘bundling’ of individual claims is [] 

puzzling” because “[a]ll class actions, and hence all class 

action settlements, are necessarily a bundling of individual claims.” Haggart Br. 41. 

The issue here is whether the circumstances of this 

case create a common fund. Although often collapsed by 

courts into a single analysis, as we explain in greater 

detail below, the question of whether a common fund has 

been created is distinct from whether the doctrine may be 

applied to allow class counsel or the prevailing litigant to 

recover attorney fees. See Brytus v. Spang & Co., 203 

F.3d 238, 243 (3d Cir. 2000) (“[T]he fact that a common 

fund has been created does not mean that the common 

fund doctrine must be applied in awarding attorney’s 

fees.”). Recovery of attorney fees under a common fund is 

based on the existence of some inequity borne by counsel 

or the successful litigant. See id. at 246. Conversely, 

whether a common fund exists concerns whether the $110 

million settlement agreement to be distributed to class 

members may be so characterized. See Knight v. United 

States, 982 F.2d 1573, 1582 (Fed. Cir. 1993). 

Although the historical origins of the common fund 

doctrine suggests it was primarily applied to decisions 

involving express trusts in which there was a clearly 

defined trust fund, see Greenough, 105 U.S. at 527; Pettus, 

113 U.S. at 127, it has also been applied where the creation of the fund is prospective and has yet to be made 

formally available to individuals who are similarly situated, see Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 167 
HAGGART v. UNITED STATES 27

(1939).16 The Supreme Court spoke more precisely on this 

issue in Boeing, where it determined that “[t]he criteria 

[for application of the common fund doctrine] are satisfied 

when each member of a certified class has an undisputed 

and mathematically ascertainable claim to part of a lumpsum judgment recovered on his behalf.” 444 U.S. at 479. 

Here, the lump-sum amount is the $110 million to be paid 

by the Government and each landowner’s individual

ascertainable claim is the fair market value of his property. Id. 

The Woodleys and the Government argue that because the individual appraisal values must first be determined, then summed before arriving at the $110 

million settlement, this is substantively distinct from first

determining the aggregate amount of the fund, then from 

this total, apportioning individual claims. However, 

predicating the creation of a common fund on the order in 

which the settlement agreement was calculated would 

yield an untenable distinction not contemplated by any 

prevailing Supreme Court precedent. The determination 

of a total settlement agreement is always derived from 

the aggregation of some underlying individual claim. 

Moreover, limiting the common fund doctrine to exclude 

the discrete bundling of individual awards would unduly 

narrow the application of the doctrine, which is expressly 

designed to give courts the power to equitably spread 

costs. See Sprague, 307 U.S. at 167. 

Our decision finds support from the Ninth Circuit, 

which has allowed the creation of putative or hypothetical

funds by aggregating the amount a defendant would pay 

in damages to members of the class under the settlement 

16 In Sprague, the creation of the fund was not based 

on a common pool of money in which each claimant is 

entitled, but instead distributed across fourteen individual trusts. 307 U.S. at 166. 

 
28 HAGGART v. UNITED STATES

agreement. See Staton v. Boeing Co., 327 F.3d 938, 972 

(9th Cir. 2003); see also id. at 971 n.21 (“The description 

of the total amount of the [common] fund need not take 

any particular form and could result from adding up 

separately-enumerated amounts in the agreement.”). 

Thus, we hold the circumstances in this case create a 

common fund. 

B. The Common Fund Doctrine is Applicable to 

RCFC 23 Class Actions

Because we find a common fund exists, we turn to the 

applicability of the common fund doctrine to RCFC 23 

class actions. That is a question of law subject to de novo 

review. See Capital Bancshares Inc. v. Fed. Deposit Ins. 

Corp., 957 F.2d 203, 209 (5th Cir. 1992). 

The Government argues that even if we were to find 

that the “settlement created a ‘common fund,’ the common-fund doctrine still does not apply because there are 

no non-clients who benefit from class counsels’ efforts in 

[RCFC 23] class-actions.”17 Government Br. 38 (emphasis 

added). 

In response, the Haggarts argue the circumstances of 

this case render the application of the common fund 

doctrine apposite. Specifically, the Haggarts assert that 

“[c]lass [c]ounsel obtained a sizeable recovery that benefits all of the class members, and equity demands that all 

class members contribute to [class] [c]ounsel’s compensation.” Haggart Br. 39. The Haggarts also argue that 

17 RCFC 23 requires potential class members to optin to the class, whereas FRCP 23(b)(3) class actions are 

opt-out class actions. See Newberg § 9:48, at 551–53 (“The 

default rule in class actions is that a class member is 

included in the class unless she excludes herself; a court 

cannot, therefore adopt the reverse rule––that only class 

members who include themselves are part of the class.”).

 
HAGGART v. UNITED STATES 29

“RCFC 23 does not require opt-in class members to share 

the litigation expenses” and “[c]lass [c]ounsel d[id] not 

have a fee agreement with all of the class members (although all class members were made aware of the agreement) and all stand to recover substantial sums from the 

United States.” Id. at 42. 

The Government’s contention that, because RCFC 23 

requires potential class members to opt-in to the class, 

there can be “no non-clients who benefit from class counsels’ efforts,” Government Br. 38, presents a distinction 

without a difference. Here, class counsel initially had a 

thirty-five percent contingency fee agreement with some 

class members before the class was certified. Haggart IV, 

116 Fed. Cl. at 137–38. However, upon certification of the 

class, “although all class members were made aware of 

the agreement,” class counsel did “not have a fee agreement with all of the class members.” Haggart Br. 42 

(emphasis added). Thus, the fact that these members 

opted-in and were therefore “parties” to the litigation is 

irrelevant. Rather, in considering the application of the 

common fund doctrine, the relevant question is whether 

an inequity exists. See Boeing Co., 444 U.S. at 478. Of

the 253 class members entitled to compensation, we count 

only sixty-eight members as signing the contingency-fee 

agreement. Although 253 individuals opted-in to the 

class, it is clear that 185 (approximately 73%) of those 

members are not differently situated from absentees in a 

FRCP 23(b)(3) class action because they were not contractually obligated to contribute to the payment of attorney[] 

fees incurred on their behalves. Thus, contrary to the 

Government’s assertion, what matters is not whether 

“counsel in RCFC 23 class actions can enter into agreements with each member at the opt-in stage,” but whether he actually did. Government Br. 40 (emphases added). 

Here, because 185 class members did not sign the contingency fee agreement, they were not contractually 

obligated to contribute to the costs of the litigation. Thus, 
30 HAGGART v. UNITED STATES

before considering how the URA impacts the application 

of the common fund doctrine, at this point in our discussion, it is clear that some inequity exists, at least with 

respect to sixty-eight members of the class. Ascribing 

significance to the fact that the remaining 185 members 

“opted-in” and were therefore parties to the litigation 

elevates form over substance. See Sprague, 307 U.S. at 

167 (“[T]he formalities of the litigation . . . hardly touch 

the power of equity in doing justice as between a party 

and the beneficiaries of his litigation.”). 

C. Recovery of Attorney Fees Under the Common 

Fund Doctrine Is Preempted by the URA

We turn to whether the presence of the URA resolves 

the inequity. That is, we consider whether class counsel 

can recover attorney fees under the common fund doctrine 

in lieu of the URA, which provides class counsel with 

reasonable attorney fees. We review the determination of 

reasonable attorney fees for abuse of discretion. See

Bywaters, 670 F.3d at 1228; Hall v. Sec’y of Health & 

Human Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011). 

However, errors of law in the award of attorney fees are 

corrected without deference. See Bywaters, 670 F.3d at 

1228–34; Brytus, 203 F.3d at 244. 

Congress has determined that in certain cases the 

prevailing parties may recover their attorney fees from 

the opposing side. See 42 U.S.C. § 4654(c).18 Statutes 

18 Section 4654(c) of Title 42 of the United States 

Code 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, 

 
HAGGART v. UNITED STATES 31

that provide for such fees are termed “fee-shifting” statutes. Unlike the common fund doctrine, fee-shifting 

statutes require the losing party to bear the burden of the 

attorney fees. Under a fee-shifting statute, the court 

calculates awards for attorney fees using the “lodestar 

method” which is “the product of reasonable hours times a 

reasonable rate.” City of Burlington v. Dague, 505 U.S. 

557, 559–60 (1992) (quoting Pennsylvania v. Del. Valley 

Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986)). 

In common fund cases, district courts have applied 

the lodestar method to determine the amount of attorney 

fees. See In re Wash. Pub. Power Supply Sys. Sec. Litig., 

19 F.3d 1291, 1299 (9th Cir. 1994). However, unlike 

statutory fee-shifting cases, in common fund cases, courts 

have applied a risk multiplier when using the lodestar 

approach.19 Id. Alternatively, as in this case, courts may

determine the amount of attorney fees to be awarded from 

shall determine and award or allow to such 

plaintiff, as a party 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. 

42 U.S.C. § 4654(c). 

19 “A ‘multiplier’ is a number, such as 1.5 or 2, by 

which the base lodestar figure is multiplied to increase (or 

decrease) the award of attorney[] fees on the basis of 

factors such as the risk of prevailing on the merits of the 

case and the length of the proceedings.” See Staton, 327 

F.3d at 968. But see Perdue v. Kenny A. ex rel. Winn, 559 

U.S. 542, 546 (2010) (asserting that “there is a strong 

presumption that the lodestar is sufficient”). 

 
32 HAGGART v. UNITED STATES

the fund by employing a percentage method. See Blum v. 

Stenson, 465 U.S. 886, 900 n.16 (1984) (“[U]nder the 

‘common fund doctrine,’ . . . a reasonable fee is based on a 

percentage of the fund bestowed on the class.”); see also

Applegate v. United States, 52 Fed. Cl. 751, 760 (2002) 

(“[C]ourts readily calculate fees [] as a percentage of the 

fund.”). 

The URA is a fee-shifting statute and provides for the 

award of “reasonable” attorney fees in two distinct circumstances. First, attorney fees may be awarded where 

the Government begins a condemnation proceeding resulting in either a final judgment that the Government 

may not acquire the property by condemnation or abandonment of the proceeding by the Government. See 42 

U.S.C. § 4654(a)(1)–(2); see also Bywaters, 670 F.3d at 

1227. Second, attorney fees may also be granted where, 

as in the case before us, a landowner 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. See id.; 42 U.S.C. § 4654(c).

The Government argues that “applying [a common 

fund] to a judgment specifying a sum certain for every 

party/client when the attorney will receive a reasonable 

statutory fee [under the URA] stretches the doctrine 

beyond all recognition.” Government Br. 32. According to 

the Government, because “[f]ederal fee-shifting statutes, 

including the URA, . . . provide for defendants to pay 

‘reasonable’ fees[,] [a]n additional fee is by definition 

unreasonable when a reasonable statutory fee has already 

been awarded.” Id. at 41. Accordingly, the Government 

contends “[t]here is no basis in equity for awarding common-fund fees as well as the URA fees.” Id. 

The Haggarts assert the Supreme Court’s decision in 

Venegas v. Mitchell is controlling because it “did not 

preclude recovery of additional attorney[] fees under a 
HAGGART v. UNITED STATES 33

contingency fee contract.” Haggart Br. 44 (citing 495 U.S. 

82, 90 (1990)). According to the Haggarts, “[t]he teaching 

of Venegas is that fee-shifting statutes do not regulate 

what clients pay their lawyers, and do not cap or limit the 

amount of fees that lawyers can collect.” Id. at 45. Thus, 

the Haggarts contend “the URA does not address or 

regulate what plaintiffs are to pay [c]lass [c]ounsel, and 

does not impose any constraint on the [Claims Court’s] 

inherent equitable authority to award common-fund fees.” 

Id. at 45–46. 

The Claims Court defined the common fund to include 

the principal amount and interest. Haggart IV, 116 Fed. 

Cl. at 144. However, it rejected the Haggarts’ contention 

that the statutory attorney fees of $1,920,000, calculated 

using the lodestar method, must be included as part of the 

common fund. Id. (“[H]ere the contingent fee percentage 

should be applied to the principal and interest, not also to 

the amount of statutory fees.”). The court found “that the

common fund consists of $137,961,218.69 ($110,000,000 in 

principal [plus] $27,961,218.69 in interest).” Id. at 148. 

As to whether class counsel’s request for thirty percent of the common fund was reasonable, the Claims 

Court looked to factors it has previously applied in determining the percentage of recovery. Id. at 145. The court 

ultimately used a scaled methodology and, from the $110 

million the Government agreed to pay, “award[ed] class 

counsel 30% of the first $50 million, 25% of the next $50 

million, and 20% of all monies over $100 million.” Id. at 

148. Thus, the court awarded class counsel fees totaling 

$35,092,243.74. Id. Finally, because class counsel retained the agreed statutory fee, the court awarded class 

members “a dollar-for-dollar credit for the statutory fee 

paid by the [G]overnment in the amount of $1,920,000, 

[thus] reducing the amount of the attorney[] fees to paid 
34 HAGGART v. UNITED STATES

out of the common fund to $33,172,243.74.20 Id. (footnote 

omitted). 

The fact that a common fund has been created is not 

sufficient to establish a finding that the common fund 

doctrine must be applied when awarding attorney fees, an 

assertion implicit in the Haggarts’ argument. See Brytus, 

203 F.3d at 243. Rather, recovery under the common 

fund doctrine derives from the equitable power of courts 

to create the obligation for attorney fees against benefits 

received as a result of the advocacy of another. Knight,

982 F.2d at 1580. Thus, recovery requires the existence of 

an inequitable outcome, which in turn requires redressability. 

We begin our analysis by noting that, contrary to the 

Haggarts’ contention and the Claims Court’s determination, Venegas does not govern the case before us. See 

Haggart IV, 116 Fed. Cl. at 148 n.18 (stating that “to 

disallow a contingent fee in this case would be contrary to 

[Venegas]”). In Venegas, the Supreme Court held a statute authorizing payment of reasonable attorney fees to 

prevailing civil rights plaintiffs does not invalidate contingent fee contracts that would require a prevailing 

plaintiff to pay his attorney more than the statutory 

award against the defendant. 495 U.S. at 90 (stating that 

42 U.S.C. § 1988 “does not interfere with the enforceability of a contingent-fee contract”). Unlike the common 

fund doctrine, which is imposed absent the express 

agreement of class members as a matter of equity, contingent fee awards are a matter of individual contract. Thus, 

although the Court’s holding in Venegas may be applicable to class members who signed the contingent fee 

agreement, we see no reason to extend it to the majority 

20 This amount represents approximately 24% of the 

common fund. 

 
HAGGART v. UNITED STATES 35

of class members, including the Woodleys, who did not 

sign the agreement. 

The URA expressly allows landowners to retain the

full compensation of the value of their property by mandating the Government to assume the litigation expenses

of counsel in bringing forth the takings claim. See 42 

U.S.C. §4654(c); (asserting that plaintiff shall be awarded 

“such sum as will in the opinion of the court or the Attorney General reimburse such plaintiff for his . . . reasonable attorney . . . fees”); see also URA Legislative History, 

S.1, Senate Floor Remarks, Congressional Record, Senate, 

115 Cong. Rec. 31533 (Oct. 27, 1969), Uniform Relocation 

Assistance and Land Acquisition Policies Act of 1969 

(“Transactions must be carried out in a manner that will 

assure that the person whose property is taken is no 

worse off economically than before the property was 

taken.”). Under the URA, it is the Government, as opposed to class counsel or another member of the plaintiff 

class, who bears the reasonable cost of the action; thus, 

the inequity that would otherwise result is expressly 

addressed by the statute. In the presence of the URA, we 

find no inequity to redress. The sine qua non of the common fund doctrine is that some inequity must exist. 

Without inequity, class counsel cannot attempt to augment reasonable attorney fees by substituting the application of the doctrine in place of the URA. Such an action 

not only undermines the purpose of the URA, see Milwaukee v. Illinois & Michigan, 451 U.S. 304, 314 (1981) 

(“[W]hen Congress addresses a question previously governed by a decision rested on federal common law[,] the 

need for such an unusual exercise of lawmaking by federal courts disappears.”), but also unjustly enriches class 

counsel at the expense of class members, a result diametric to the primary purpose of the common fund doctrine, 

see Greenough, 105 U.S. at 532; see also Tex. v. Pankey, 

441 F.2d 236, 241 (10th Cir. 1971) (asserting that federal 

common law applies “[u]ntil the field has been made the 
36 HAGGART v. UNITED STATES

subject of comprehensive legislation or authorized administrative standards”). 

Our decision finds support in Supreme Court holdings 

concerning the intersection of law and equity. In Petrella 

v. Metro-Goldwyn-Mayer, Inc., the Court found that the 

common law equitable doctrine of laches is inapplicable 

when Congress has, through statute, filled the void the 

common law doctrine was intended to address.21 134 S. 

Ct. 1962, 1973 (2014) (“Last, but hardly least, laches is a 

defense developed by courts of equity; its principal application was, and remains, to claims of an equitable cast for 

which the Legislature has provided no fixed time limitation.” (citation omitted)). According to the Supreme 

Court, because “[l]aches . . . originally served as a guide 

when no statute . . . controlled the claim; it can scarcely 

be described as a rule for intervening a statutory prescription.” Id. at 1975. Similarly, the common fund is an 

equitable doctrine established for the primary purpose of 

addressing inequities resulting from the unjust enrichment of class members at the expense of the litigating 

party. With the enactment of the URA, which provides 

class counsel with reasonable fees as compensation for 

their efforts in bringing forth the litigation, Congress has 

spoken “directly to the question at issue.” Am. Elec. 

Power Co. v. Connecticut, 131 S. Ct. 2527, 2537 (2011)

(internal quotation marks, brackets, and citations omitted); see id. (“Legislative displacement of federal common 

law does not require the ‘same sort of evidence of a clear 

and manifest congressional purpose’ demanded for 

21 In Petrella, the Supreme Court rejected the application of laches to a statutorily defined limitations period, 

asserting that it has “never applied laches to bar in their 

entirety claims for discrete wrongs occurring within a 

federally prescribed limitations period.” 134 S. Ct. 1962 

at 1975. 

 
HAGGART v. UNITED STATES 37

preemption of state law.” (bracket and citation omitted)); 

see also Petrella, 134 S. Ct. at 1977 (holding that applicable statutory language “leaves little place” for equitable 

principles to the contrary (citation omitted)). 

Finally, the Haggarts point to the Ninth Circuit’s decision in Staton, which held that statutory fee-shifting 

and the equitable common fund doctrine operate differently and should be treated separately as support for 

their contention that the common fund doctrine may be 

applied in the presence of a fee-shifting statute. See 

Staton, 327 F.3d at 967. Staton also held that “unless 

Congress has forbidden the application of the common 

fund doctrine in cases in which attorneys could potentially 

recover fees under the type of fee-shifting statute[][,] [] 

courts retain their equitable power to award common 

fund attorney[] fees.” Id. at 968 (citing Alyeska Pipeline, 

421 U.S. at 257–59). However, the Seventh Circuit in 

Pierce v. Visteon Corp., limited the common fund doctrine 

to cases “outside the scope of a fee-shifting statute.”22 791 

F.3d 782, 787 (7th Cir. 2015); see also id. (“But this case 

was litigated under a fee-shifting statute, and we do not 

see a good reason why, in the absence of a contract, counsel should be entitled to money from the class on top of or 

in lieu of payment by the losing litigant.”). 

22 In Pierce, terminated employees brought a putative class action suit against their previous employer, 

alleging that the employer failed to timely deliver notice 

of employees’ opportunity to continue health insurance at 

their own expense under the Consolidated Omnibus 

Budget Reconciliation Act. 791 F.3d at 784. The court 

affirmed the district court’s award of attorney fees under 

the Employee Retirement Income Security Act, 29 U.S.C. 

§ 1132, a different fee-shifting statute than the one at 

issue in this case. See id. 

 
38 HAGGART v. UNITED STATES

We agree with the Seventh Circuit. The fact that 

Congress did not expressly abjure the common fund 

doctrine in enacting the URA is not dispositive. See 

Petrella, 134 S. Ct. at 1975 (asserting that equity “can 

scarcely be described as a rule for interpreting a statutory 

prescription”). What is more, we agree with the Pierce 

court’s determination that permitting class counsel to 

recover in the presence of fee-shifting statutes similar to 

the URA contravenes the Supreme Court’s decision in 

Dague. See Pierce, 791 F.3d at 787. In Dague, the Court 

held that, in calculating a reasonable fee under feeshifting statutes like the URA, district courts should not 

include a multiplier that effectively compensates class 

counsel for risk of loss. See 505 U.S. at 562 (“We note at 

the outset that an enhancement for contingency would 

likely duplicate in substantial part factors already subsumed in the lodestar.”). However, similar to the contingent fee agreement addressed in Dague, allowing class 

counsel to recover under a common fund would operate in 

precisely the same manner because, like a contingent fee 

agreement, “[a] common-fund award . . . [effectively 

serves to] build[] in a multiplier in [] cases where counsel 

prevails.” Pierce, 791 F.3d at 787. 

We do not foreclose the application of the common 

fund doctrine in all instances in which a fee-shifting 

statute is present. Equity may sometimes deem it appropriate to give counsel a piece of either the final judgment 

or settlement agreement. See id. (positing that it may 

“sometimes [be] appropriate to give . . . [counsel] a slice 

of the class’s recovery on top of a fee-shifting award”); see 

also Brytus, 203 F.3d at 247 (“This is not to say that the 

common fund doctrine may never be applied in a case for 

which there is a statutory fee provision . . . .”). At its 

heart, equity is about fairness. See Petrella, 134 S. Ct. at 

1977 (asserting that equity may still intervene to address 

a party’s conduct in certain circumstances). 
HAGGART v. UNITED STATES 39

In the present case, the URA provision was expressly 

enacted with the primary purpose of rendering property 

owners whole and fee recovery is governed by statute. 

The URA provides a reasonable fee and thus forecloses 

application of the common fund doctrine. 

CONCLUSION

We reverse the Claims Court’s approval of the settlement agreement and award of attorney fees under the 

common fund doctrine and remand for further consideration consistent with the foregoing. The Claims Court’s 

decision is

VACATED AND REMANDED