Preseault v. United States

United States Court of Federal Claims · 1996 · Property

PropertyTakingsAttorneys' FeesUniform Relocation Assistance Act42 U.S.C. § 4654(c)URATucker Actactually incurred

Facts

Plaintiffs owned land in Vermont crossed by a railroad right-of-way that later became the subject of a rails-to-trails dispute. Before filing their Tucker Act takings action, plaintiffs had pursued other litigation, including an ICC proceeding and appeals challenging the National Trails Act and seeking to invalidate the government action rather than obtain compensation. After the Federal Circuit determined that a taking had occurred and the Court of Federal Claims later awarded $234,000 plus interest, plaintiffs sought more than $1.4 million in fees and expenses under the URA. Their request included fees from multiple law firms, a nonprofit legal services organization that represented them under an agreement to seek any fee award from the government, and charges tied to other matters such as recusal motions, unrelated research, and poorly documented billing.

Issue

Under 42 U.S.C. § 4654(c), which of plaintiffs' claimed attorneys' fees and expenses were recoverable as reasonable costs actually incurred because of the Tucker Act takings proceeding? In particular, could plaintiffs recover for pre-Tucker Act litigation, nonprofit legal services provided on a contingent fee-award basis, and various allegedly excessive, unrelated, or inadequately documented charges?

Rule

Section 4654(c) permits recovery only of reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of a proceeding brought under 28 U.S.C. § 1346(a)(2) or § 1491 awarding compensation for a federal taking. Fees incurred before the Tucker Act proceeding are not recoverable unless they were incurred because of that proceeding; fees from pro bono or nonprofit counsel are incurred if there is an express or implied agreement that any fee award will be paid over to counsel; and only reasonable, adequately documented, non-duplicative charges are recoverable.

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Nina Flores owns land in Boise, Idaho, affected by a federal flood-control easement. Before filing a Tucker Act compensation suit in the Court of Federal Claims, she spent four years in the Ninth Circuit seeking a declaration that the federal regulation creating the easement was unconstitutional and void so the easement would be removed altogether. After losing there, she filed a Tucker Act takings action and won compensation.

In her later fee application under 42 U.S.C. § 4654(c), are Nina's fees from the earlier Ninth Circuit litigation most likely recoverable?

Explanation. Section 4654(c) allows reimbursement only for reasonable fees actually incurred because of the Tucker Act proceeding itself. Fees from earlier litigation are not recoverable when the owner pursued a different objective—such as undoing the government action instead of obtaining compensation. The fact that the earlier case involved the same property or helped develop useful legal issues does not satisfy the statute's causation requirement. The court did not adopt an absolute rule that every pre-suit expense is categorically unrecoverable; the key inquiry is whether the expense was incurred because of the Tucker Act proceeding.