[00:00:00] Speaker 04:
Our final case this morning is number 23, 1951, Arnold versus United States.

[00:00:11] Speaker 04:
OK, Mr. Daniels.

[00:00:29] Speaker 03:
May it please the court, may I know for the record that I probably will shortly be joined by my co-counsel and friend of 50 years, Mr. Royce D. Edwards, who's, well, he has been here and I'm sure he'll return.

[00:00:46] Speaker 03:
It's my third appearance before this court, absent a happy accident, which I am told I have no

[00:00:55] Speaker 03:
reasoned basis to expect.

[00:00:56] Speaker 03:
It will be my last appearance, but it has been an honor to serve this court.

[00:01:02] Speaker 03:
Time's short, so I'll get right into it.

[00:01:06] Speaker 03:
I think a basic point is that both the government and plaintiff's appellant, Arnold, are in agreement.

[00:01:14] Speaker 03:
This case shocks the country.

[00:01:16] Speaker 03:
assuming, perhaps generously, that conscience plays much of a role any longer in that process that all of us have devoted our lives to, and that it's susceptible to being shocked.

[00:01:31] Speaker 03:
The government says it shocks the conscience that we would seek a million dollar fee in a case where the recovery was $5,000, a temporary taking of reversionary interest in property

[00:01:44] Speaker 03:
that lasted about one year's duration, and the damages are measured by the fair rental value of that property, as determined by published market data in the state of Kansas, which describes a rental value to each and every arable acre in Kansas.

[00:01:59] Speaker 03:
We say it shocks the conscience that any defendant, and I don't care what seal it operates under,

[00:02:08] Speaker 03:
It might be a Pentastar.

[00:02:10] Speaker 03:
It might be IBM.

[00:02:12] Speaker 03:
It might be the Federal Legal of the United States.

[00:02:15] Speaker 03:
But every litigant has some obligation in a $5,000 case to settle the case for $5,000 rather than pursue eight years of hard fought litigation defending against that ultimate prize.

[00:02:36] Speaker 03:
So I would propose to just raise four points here, and each will begin with a question, and I'll endeavor to answer it.

[00:02:45] Speaker 03:
Now, mindful of that, the briefing has been extensive, and my friend Mr. Bravender for the government has done an excellent job of holding his client's interests, and we've endeavored to do the best we could.

[00:03:03] Speaker 03:
But the first question is, and I've already alluded to it, why should it take eight years?

[00:03:09] Speaker 04:
Could I ask you a question that seems to be relevant to that?

[00:03:13] Speaker 04:
This material that allegedly comes within Rule 408, the settlement material, is that settlement communications about the underlying merits of the case or settlement material relating to the amount of the attorney's fee?

[00:03:29] Speaker 03:
It's relating to the fee.

[00:03:31] Speaker 03:
And may I say, the reason that was offered in evidence, what it was was some 90 pages of government commentary on our lodestar, item by item, date by date, service by service.

[00:03:47] Speaker 03:
And in that commentary, the government said, without more, unnecessary, or duplicative, or excessive.

[00:03:57] Speaker 03:
did not offer any facts to show wherein and how anything was unnecessary or duplicative or excessive.

[00:04:03] Speaker 03:
That is the only reason we offered it in evidence.

[00:04:06] Speaker 03:
It was not offered to show.

[00:04:07] Speaker 03:
And what do you get out of that?

[00:04:11] Speaker 03:
What do we get out of it?

[00:04:13] Speaker 03:
We get out of it that the government, we say, did not satisfy its burden under bywaters to show us wherein and how our entries were unnecessary or duplicative or excessive.

[00:04:26] Speaker 03:
And may I say that's the substance of every other.

[00:04:30] Speaker 03:
Bywater says that the URA is to be read in the same way as all other fee shifts.

[00:04:36] Speaker 04:
Bywater is talking about the showing you have to make in court, not the showing you have to make in a settlement negotiation.

[00:04:42] Speaker 03:
Well, I understand that, Judge.

[00:04:43] Speaker 03:
But let me say this.

[00:04:48] Speaker 03:
Fee disputes are something no court ever wants to deal with.

[00:04:51] Speaker 03:
I have never had

[00:04:53] Speaker 03:
a fee shift dispute where the trial judge didn't say, what have you people done to settle this before dumping this burden in my lap?

[00:05:02] Speaker 03:
Never once.

[00:05:04] Speaker 03:
Whether it's under 42 USA 1988 or under Title 11.

[00:05:10] Speaker 03:
And the Court of Claims, therefore, has said,

[00:05:14] Speaker 03:
that particularly in URA, fee matters, that evidence of what the parties talked about in settlement prior to the bringing of a contested application is relevant.

[00:05:27] Speaker 03:
And they've admitted it.

[00:05:29] Speaker 03:
So I understand that the trial court made an object of it.

[00:05:36] Speaker 03:
And let me say this.

[00:05:39] Speaker 03:
I've tried a lot of lawsuits.

[00:05:43] Speaker 03:
all over the United States.

[00:05:45] Speaker 00:
I beg your pardon, Your Honor.

[00:05:47] Speaker 00:
I want to interrupt because time is short.

[00:05:50] Speaker 00:
So on the question of whether the work was excessive, whether you filed too much stuff, what is the specific reduction that the claims court

[00:06:06] Speaker 00:
invoked that idea for?

[00:06:09] Speaker 03:
It's essentially arithmetic.

[00:06:13] Speaker 03:
For one block of time expended over about a two-year period, it's a 30% reduction.

[00:06:18] Speaker 03:
For another year period, it's a 50% reduction.

[00:06:22] Speaker 03:
In other words, it is uniformly not individual time entries that are attacked, that are the object of

[00:06:32] Speaker 03:
an adverse decision in the FIA order.

[00:06:34] Speaker 00:
It's all arithmetic.

[00:06:38] Speaker 00:
Does that include or is this separate from some question about whether during the several year period when the government was still fighting what it lost in Kaplan that you filed too much?

[00:06:55] Speaker 03:
I'm not sure.

[00:06:57] Speaker 03:
Frankly, I'd have to see that in black and white in the FIA opinion.

[00:07:02] Speaker 03:
The fact is that in the period post-Cacklin and post our successful summary judgment, Judge Horn, Marion Blank Horn, who was presiding in the case, keep in mind that the judge, and this isn't about judges, it's about pieces of paper, i.e.

[00:07:18] Speaker 03:
decisions, but the judge who ultimately entered the field did not preside over any substantive aspect of this case.

[00:07:27] Speaker 00:
Let me ask you another question.

[00:07:29] Speaker 00:
So one of the things that the claims court did, I think this was the first reduction anyway, a very large reduction, was based on the idea that when

[00:07:46] Speaker 00:
The court looked at a bunch of the records concerning activities before the complaint, so pre-filing activities.

[00:07:59] Speaker 00:
The court said some of that seemed to involve people other than the plaintiff landowners.

[00:08:07] Speaker 00:
And maybe some of it involved trying to get clients.

[00:08:15] Speaker 00:
And I guess I'm not quite sure what to make of that.

[00:08:22] Speaker 00:
It seems relatively clear that

[00:08:24] Speaker 00:
Prefiling work in general is not excluded from compensation.

[00:08:29] Speaker 03:
Did you say not excluded?

[00:08:30] Speaker 00:
Not excluded from compensation in general.

[00:08:33] Speaker 00:
And that in a matter like this, where there may be common deeds in the line back to the original railroad acquisition, you're going to be looking at things that might apply to different members

[00:08:51] Speaker 00:
different current landowners.

[00:08:55] Speaker 00:
And on the other hand, I thought the claims court said, I can't separate this stuff out, sift, from your records.

[00:09:05] Speaker 00:
Where would I go and look at the relevant pre-filing records to understand whether there's a potential legal error

[00:09:20] Speaker 00:
that could have some effect on that.

[00:09:22] Speaker 03:
Well, unhappily, I see the massive appendix.

[00:09:26] Speaker 03:
up there, reason we've favored the court as it were with that appendix is because this court has an opportunity equal to that of the trial court to determine what was done and why, because the trial court wasn't there either.

[00:09:41] Speaker 02:
Do you know which page numbers correspond to your pre-filing of the complaint attorney fee hours?

[00:09:57] Speaker 04:
The draw court allowed some percentage of the pre-filing activity, right?

[00:10:02] Speaker 03:
It did.

[00:10:02] Speaker 03:
And I cannot recall precisely what.

[00:10:05] Speaker 02:
15%, right?

[00:10:06] Speaker 03:
Yes, it was.

[00:10:07] Speaker 03:
Thank you, Your Honor.

[00:10:29] Speaker 04:
items were allowed and which weren't, because it wasn't done on that basis, right?

[00:10:35] Speaker 03:
No, it wasn't.

[00:10:36] Speaker 03:
It was all, I hate to use the word arbitrary, it was by fiat.

[00:10:41] Speaker 03:
In other words, I don't like this time, which I mean in the best sense.

[00:10:44] Speaker 03:
It was an estimate.

[00:10:45] Speaker 03:
And therefore, I shall reduce it by x%.

[00:10:48] Speaker 02:
I think, did the court look at, I noticed in some footnotes, the court made examples of some entry

[00:11:07] Speaker 03:
I do not want to say that there were not specific references to specific time entries in the fee order.

[00:11:19] Speaker 03:
Your Honor is 100% correct.

[00:11:21] Speaker 02:
And the court also pointed out that it was hard to look at those time entries, which you're trying to identify in the appendix.

[00:11:28] Speaker 02:
It's hard to look at those and tell which work was

[00:11:32] Speaker 02:
for your role as an obligation to really do research, which we understand you have to do, and which work was for soliciting clients.

[00:11:41] Speaker 02:
That's why we want to look at those, if you can identify them.

[00:11:49] Speaker 03:
Pardon me, Your Honor.

[00:11:56] Speaker 03:
Well, let me just say this.

[00:12:00] Speaker 03:
The application itself has annexed to it the complete lodestar time entries, which by date reference would show whether they were rendered prior to the filing of the petition or not.

[00:12:19] Speaker 03:
I do beg for the filing of the complaint or not.

[00:12:23] Speaker 03:
And I think the court has it exactly.

[00:12:28] Speaker 03:
Prefiling work is not only compensable, it's absolutely necessary.

[00:12:35] Speaker 03:
It has to be done sometime.

[00:12:37] Speaker 03:
You can either discover that your case is meritorious before you file it, or theoretically under Rule 11, you can hope to discover it after you have filed it.

[00:12:46] Speaker 04:
But the trial court's right that some of that is client development, which isn't compensable, and some of it is work on the case, which is.

[00:12:53] Speaker 04:
I understand.

[00:12:53] Speaker 04:
And I guess what Judge Stoll is getting at is, what did you do to show

[00:12:59] Speaker 04:
that 15% was the wrong number.

[00:13:01] Speaker 04:
Did you say we spent much more than 15% of the time on performing our Rule 11 obligations?

[00:13:10] Speaker 04:
Let's put it that way.

[00:13:11] Speaker 04:
Did you give her specifics?

[00:13:14] Speaker 03:
I cannot say that we said it in those many words, Your Honor.

[00:13:18] Speaker 03:
I can say that we argue we had a rule of 11 duty to investigate the claim.

[00:13:23] Speaker 03:
I can also say that we, with regard to those plaintiffs among those who engaged us originally, whose claims did not succeed, we listed those time entries respecting those people at no charge.

[00:13:39] Speaker 03:
something the government ignored during negotiations, something the government ignored during a briefing on the application, and something which I believe is ignored in the field.

[00:13:51] Speaker 03:
So once we look.

[00:13:55] Speaker 03:
where our law firm works is that you've got to record all your time, whether you're going to get any money for it or not.

[00:14:01] Speaker 03:
And that's what was done here.

[00:14:03] Speaker 03:
And it was listed as no charge.

[00:14:04] Speaker 04:
I guess I'm seeing that the trial court doesn't have the obligation on its own to sift through these entries.

[00:14:11] Speaker 04:
It has to rely on counsel to list the entries that should have been reflecting recoverable time.

[00:14:19] Speaker 04:
And I guess you didn't do that, right?

[00:14:22] Speaker 03:
Well, I say that neither did the government.

[00:14:25] Speaker 03:
The government was not burdenless here.

[00:14:29] Speaker 03:
It did not advert to any facts showing wherein and how any of these charges were assailable.

[00:14:36] Speaker 03:
The court apparently determined to do it ex gratia, and perhaps that is his or her or its right.

[00:14:44] Speaker 03:
But the fact is the government did not identify any of this.

[00:14:48] Speaker 03:
So if I am to be tarred with a brush, I might say the government should bear the same mark.

[00:14:56] Speaker 03:
Nobody, it would appear, did anything to assist this court in showing wherein and how these entries were compensable.

[00:15:07] Speaker 03:
We thought we carried that burden by identifying the lodestar.

[00:15:11] Speaker 03:
and identifying temporarily when those entries were made so the court could determine, based upon the detailed description and when the services were rendered, whether they were compensable or business development.

[00:15:29] Speaker 03:
I see my time is expired.

[00:15:30] Speaker 04:
OK, we'll give you two minutes to rebuttal.

[00:15:33] Speaker 04:
Mr. Bravender?

[00:15:47] Speaker 05:
Thank you, may it please the court.

[00:15:49] Speaker 05:
My name is Alan Brabender with the United States.

[00:15:53] Speaker 05:
This appeal of an award of attorney's fees can be resolved on the abuse of discretion standard of review or the doctrine that arguments not made or developed in the opening brief are forfeited.

[00:16:05] Speaker 05:
Starting with the standard of review, while neither party agreed with the CFC's ultimate decision, the determination of a reasonable fee award is one within the trial court's considerable discretion, and therefore is reviewed only for an abuse of discretion.

[00:16:22] Speaker 05:
But plaintiffs fail to acknowledge the standard of review here, seeking instead for this court's de novo review.

[00:16:29] Speaker 05:
And as such, plaintiffs utterly fail to show that the CFC committed an abuse of discretion.

[00:16:35] Speaker 05:
There is no issue in this appeal warranting de novo review.

[00:16:39] Speaker 05:
The issues are evidentiary rulings, fact findings, or determinations of reasonable hours or hourly rates.

[00:16:46] Speaker 02:
To the extent that the court didn't apply the correct law, and I'm not saying that the court didn't, but to the extent the court didn't, which is an allegation being made, that would be an abuse of discretion, right?

[00:16:57] Speaker 05:
Certainly, that could be an abuse of discretion.

[00:17:00] Speaker 02:
And to the extent there's a clearly erroneous fact finding, that also could be an abuse of discretion.

[00:17:04] Speaker 05:
That is also true.

[00:17:06] Speaker 05:
But there is no issue of law put before this court, and there is no demonstration of a clearly erroneous fact finding.

[00:17:14] Speaker 05:
In fact, most of the stated reasons for the CFC's fee determinations are unchallenged in the opening brief.

[00:17:23] Speaker 05:
Again, that's because the plaintiffs are seeking a de novo review and didn't feel the need to challenge the CFC's stated rationale.

[00:17:31] Speaker 00:
So the point that I guess jumped out to me is, what is it, page 21?

[00:17:37] Speaker 00:
And Mr. Daniels adverted to this, the idea that

[00:17:48] Speaker 00:
The amount of the fee is a very large multiple of the recovery.

[00:17:57] Speaker 00:
And I'm not sure that there isn't a legal error there.

[00:18:05] Speaker 00:
Well, assuming, right, on the claims for which there was a recovery, every one of them was small and assuming, whether it's this case or a hypothetical,

[00:18:21] Speaker 00:
that the plaintiff gets everything asked for.

[00:18:26] Speaker 00:
The fact that it takes a tremendous amount of legal work to arrive at that is not a ground to reduce the fee if all of it was justified to win that small amount.

[00:18:43] Speaker 00:
Right?

[00:18:43] Speaker 00:
That's correct, Your Honor.

[00:18:45] Speaker 00:
But that's not the reason for it.

[00:18:49] Speaker 00:
A number of courts of appeals have said that.

[00:18:52] Speaker 00:
And it's almost inherent fee provision about small takings.

[00:18:57] Speaker 00:
The government shouldn't be able to make small takings and not be

[00:19:02] Speaker 00:
not have to pay the fees for the plaintiffs to recover just because there's a lot of work involved in winning the $1,200.

[00:19:14] Speaker 05:
And the plaintiffs were well compensated for that work.

[00:19:17] Speaker 05:
They were given over $110,000.

[00:19:20] Speaker 00:
So what is going on here in the reference about minimal success and other considerations?

[00:19:26] Speaker 00:
The URA application seeks nearly 200 times plaintiffs aggregate

[00:19:31] Speaker 05:
So what the CFC is referring to there is the final of its six reductions.

[00:19:38] Speaker 05:
And because it was the final of a series of cumulative reductions, it's a fairly small reduction in the end, a 35% reduction.

[00:19:46] Speaker 05:
And that was imposed because of the disparity between

[00:19:50] Speaker 05:
the results in the fee request, but also due to the plaintiff's litigation conduct.

[00:19:56] Speaker 00:
I want to put everything else aside.

[00:19:58] Speaker 00:
And I guess I'm worried about a general idea that a small recovery, even if it's a complete success, can't support a very large fee, even if that very large fee represents in its entirety

[00:20:18] Speaker 00:
work necessary for the small recovery.

[00:20:21] Speaker 00:
And that seems, I think, wrong as a matter of law.

[00:20:25] Speaker 00:
And it shouldn't infect a fee assessment.

[00:20:28] Speaker 05:
I don't know if it's wrong as a matter of law.

[00:20:30] Speaker 05:
But it's not the situation before this court.

[00:20:35] Speaker 00:
Well, I guess I'm interested in the question whether it's wrong as a matter of law.

[00:20:40] Speaker 00:
Because if you all and the trial court

[00:20:45] Speaker 00:
think it is right as a matter of law, then I fear I'm going to keep seeing that.

[00:20:50] Speaker 00:
So I'm interested in whether that's incorrect.

[00:20:54] Speaker 00:
I think there's a sentence, at least in Weiswater, that says that's wrong.

[00:20:57] Speaker 00:
I've got a variety of other courts of appeals decisions that say that by itself cannot be a reason to reduce the lodestar.

[00:21:09] Speaker 05:
Well, I think what Weiswater says is that

[00:21:13] Speaker 05:
The fee must be high enough to allow someone with a small takings claim to vindicate their rights.

[00:21:20] Speaker 05:
And in this situation, the plaintiffs haven't shown that $110,000 isn't sufficient to allow plaintiffs with small claims to vindicate their rights.

[00:21:32] Speaker 05:
In fact, in these sort of rails to trails takings litigation,

[00:21:36] Speaker 05:
Plaintiffs are not having a difficult time finding attorneys.

[00:21:39] Speaker 05:
Attorneys are lining up to represent them.

[00:21:42] Speaker 05:
But what Bywaters also says is that trial court does have the discretion to reduce hours due to the disparity between the results obtained and the hours expended, as long as it's done on an hours basis when calculating the load star.

[00:22:01] Speaker 05:
That is exactly what the CFC did here.

[00:22:03] Speaker 05:
It followed Bywaters' instructions to a T.

[00:22:08] Speaker 04:
Where is this reference to reducing the hours with the results?

[00:22:13] Speaker 04:
Is that on A25?

[00:22:15] Speaker 04:
Is that right?

[00:22:19] Speaker 00:
I was looking at the bottom of A21.

[00:22:20] Speaker 00:
A21?

[00:22:22] Speaker 00:
The very last sentence on the page.

[00:22:26] Speaker 00:
I mean, I understand, obviously, if there's a lot of work that's done and a bunch of it is done for claims on which the plaintiff did not succeed, you don't get paid for that.

[00:22:38] Speaker 00:
But this seems to be simply focusing on the disparity between the amount recovered and the fee.

[00:22:53] Speaker 00:
And so I am focusing on.

[00:22:57] Speaker 00:
the possibility that the idea is floating around here, that even if a plaintiff wins on every single claim and gets every single dollar requested, if that sum total is small, you cannot have a fee that's very much larger than that, even if all those hours were actually necessary.

[00:23:21] Speaker 05:
And I don't think that's what we're arguing, Your Honor.

[00:23:23] Speaker 05:
And I don't think that's what the CFC filed.

[00:23:27] Speaker 05:
Again, it took into account many different factors in making its final small reduction.

[00:23:33] Speaker 05:
And it was more than just the disparity.

[00:23:37] Speaker 02:
And again, I don't know.

[00:23:38] Speaker 02:
What else was it based on?

[00:23:39] Speaker 02:
I mean, there are things said in pages A21 to 25 that.

[00:23:44] Speaker 05:
Sure.

[00:23:44] Speaker 05:
It was also based on plaintiff's litigation conduct, its inconsistent positions that it took throughout the litigation.

[00:23:53] Speaker 05:
Incurring unnecessary hours.

[00:23:56] Speaker 05:
What's that?

[00:23:56] Speaker 05:
I'm sorry.

[00:23:57] Speaker 04:
Incurring unnecessary hours.

[00:24:00] Speaker 05:
Incurring unnecessary hours, insistence on briefing irrelevant issues and falsely representing that they did not seek any hours for the STP proceedings.

[00:24:11] Speaker 05:
So it was the litigation conduct in addition to the disparity, which is why the court entered its final cumulative reduction, which is fairly small compared to the other reductions.

[00:24:25] Speaker 05:
And unless the court has questions about other reductions.

[00:24:29] Speaker 00:
Can I just ask how to think about the question of pre-filing work?

[00:24:37] Speaker 00:
Can you describe what you think the law says is recoverable and what isn't?

[00:24:45] Speaker 05:
What the CFC said is it was going to compensate for the work that was done for the benefit of a client, a client that prevailed in the litigation.

[00:24:58] Speaker 04:
But would that mean that you'd have to incur the work after the retention

[00:25:08] Speaker 05:
Well, I think that would depend on whether or not the work ultimately benefited the client.

[00:25:14] Speaker 05:
But much of the work here was done, it was basically business solicitation, at least a good portion of it, convening public hearings, sending out letters, things like that.

[00:25:26] Speaker 02:
Do you know the appendix site for those?

[00:25:29] Speaker 05:
Sure.

[00:25:29] Speaker 05:
I looked that up while I was sitting there.

[00:25:34] Speaker 05:
It starts at page 3529.

[00:25:39] Speaker 05:
And you will see based on the dates, which was before the complaint was filed.

[00:25:47] Speaker 00:
So suppose there's a situation, right?

[00:25:52] Speaker 00:
This may have some correspondence to this case or not.

[00:25:55] Speaker 00:
But Railroad files a application to abandon in front of STB.

[00:26:02] Speaker 00:
There is a need to issued.

[00:26:08] Speaker 00:
It comes to the point at which there might well be a taking, which might be right at the time of the NITU, or at the time of an actual conversion, or at the expiration of the NITU.

[00:26:21] Speaker 00:
But a lawyer says,

[00:26:28] Speaker 00:
I'm going to investigate.

[00:26:31] Speaker 00:
Clearly, there may well have been a significant number of takings of the abutting landowners' interests.

[00:26:44] Speaker 00:
And I'm going to go do the research to look at where the railroad got all of the rights that it got, try to figure out which ones were

[00:26:53] Speaker 00:
were mere easements and which ones were fee simple, and look at the property records and see who now owns it.

[00:27:02] Speaker 00:
And at that point, I will have identified who actually has a claim.

[00:27:09] Speaker 00:
Is it your view that none of that work is compensable?

[00:27:13] Speaker 05:
As long as ultimately that work ultimately benefited a client, I think it is compensable.

[00:27:18] Speaker 05:
But the problem that the CFC faced was that it couldn't tell based on the state of the billing records which work ultimately benefited a client who prevailed in the litigation.

[00:27:28] Speaker 05:
And it was not just the fact that there was some business development and indecipherable billing records.

[00:27:33] Speaker 05:
The court also found that the pre-filing hours were excessive.

[00:27:38] Speaker 05:
something like I believe it was 700 hours before the filing of the complaint.

[00:27:44] Speaker 05:
in a situation where drafting a complaint can be done by a paralegal in like seven hours, as opposed to a society.

[00:27:51] Speaker 00:
Well, it depends whether you want it to be a, I forget what the lingo is, a storytelling complaint or a bare bones complaint.

[00:27:59] Speaker 00:
And there are often reasons to do one or the other, including when the defendant sees a elaborate factual complaint, maybe the defendant says, now I actually understand the case, I'm going to make an offer.

[00:28:12] Speaker 05:
Sure, certainly.

[00:28:14] Speaker 05:
But that doesn't change the fact that CFC found that the hours were excessive.

[00:28:19] Speaker 05:
And that was another reason for the reduction in the pre-filing hours.

[00:28:27] Speaker 04:
So looking at page 25 here, there's this element of 35%.

[00:28:38] Speaker 04:
It's a 35% reduction to the hours.

[00:28:42] Speaker 04:
That's correct.

[00:28:47] Speaker 04:
That's based on an analysis of what the hours were.

[00:29:17] Speaker 03:
May it please Your Honor, or may it please the Court.

[00:29:20] Speaker 03:
I just beg your pardon.

[00:29:23] Speaker 03:
A couple of things.

[00:29:24] Speaker 03:
First of all, with regard to standard of review, and I think, frankly, the Court is, if not the government, has already seized with all of the concepts involved.

[00:29:34] Speaker 03:
But we cover standard of review in our

[00:29:38] Speaker 03:
reply brief on pages 7 and 8 thereof, or as repaginated by the ECF pages 17 and 18.

[00:29:46] Speaker 03:
So I would commend that, again, to the court's review.

[00:29:49] Speaker 03:
I don't think, and it doesn't appear that there's any dispute, that if an error of law was made, that this court is somehow powerless to correct it based upon some blanket of impenetrable discretion.

[00:30:03] Speaker 04:
So what did you do on this issue

[00:30:06] Speaker 04:
of whether $111,000 in attorney's fees was sufficient to litigate this case.

[00:30:15] Speaker 04:
Did you make a showing that that amount of the fee award was too little to adequately litigate this case?

[00:30:26] Speaker 03:
Well, we would have to make that showing in this court.

[00:30:33] Speaker 04:
I would think you'd have to make that showing in the trial court.

[00:30:36] Speaker 03:
Well, the trial court hadn't yet decided that it would be $100,000.

[00:30:39] Speaker 04:
But the government was saying that they were arguing that you had spent too much money litigating this case.

[00:30:46] Speaker 03:
They already were.

[00:30:47] Speaker 03:
They hadn't liquidated it by dollar amount.

[00:30:49] Speaker 04:
So what did you say justified the necessity for a million dollar fee?

[00:30:57] Speaker 03:
For good or ill, Your Honor, pardon me for interrupting.

[00:31:00] Speaker 03:
For good or ill, we stood on the gospel of bywaters.

[00:31:05] Speaker 03:
that we also emphasize that these cases are complex.

[00:31:10] Speaker 03:
And I might say, insofar as the court would now look at the billing records to try to determine who was served by pre-filing work, their names are in the time entries, indicating that it's easy to identify by name a prevailing plaintiff from a plaintiff who did not succeed.

[00:31:34] Speaker 03:
Beyond that, Your Honor, one fact needs to be emphasized.

[00:31:40] Speaker 03:
And that is that all of the post-summary judgment briefing that was done that was allegedly excessive on our part was ordered by Judge Horn.

[00:31:52] Speaker 03:
We're lawyers.

[00:31:53] Speaker 03:
We only have three options when a court orders us to do something.

[00:31:56] Speaker 01:
Yes, Your Honor.

[00:32:04] Speaker 01:
And then she ordered it?

[00:32:06] Speaker 03:
There was a request to summary judgment brief.

[00:32:10] Speaker 03:
We did not make any post-summary judgment ruling requests for additional things.

[00:32:17] Speaker 03:
In other words, she would order, and I mean that in the best sense, she would order us to brief abandonment under Kansas law, which doesn't have a lot to do with these things.

[00:32:27] Speaker 03:
It's abandonment under federal law that's the ratio of Jason Dindy to these things.

[00:32:32] Speaker 03:
Then she would ask us to brief whether the fact that the STB continued to have the discretion to entertain the abandonment position before consummation of abandonment represented a continued taking, even though the NITU itself had expired.

[00:32:53] Speaker 03:
That was her idea, not ours.

[00:32:56] Speaker 03:
We were told to brief that.

[00:32:57] Speaker 03:
There are other things that we were told.

[00:33:00] Speaker 03:
We were told a brief how much cackling discovery the government should have when it had not yet won or, as it happened, lost the cackling case.

[00:33:12] Speaker 03:
So all of that, I suppose we could have hastened to this court for preemptory writ.

[00:33:18] Speaker 03:
I think we all know where we have gone with that.

[00:33:21] Speaker 03:
The fact is we determined to comply, and in order to do something, we did it.

[00:33:26] Speaker 03:
Did we do it excessively?

[00:33:28] Speaker 03:
I would say not.

[00:33:31] Speaker 03:
But I apologize for the force of that argument.

[00:33:34] Speaker 03:
I mean no disrespect to any judicial officers here.

[00:33:38] Speaker 04:
Second of all, with that forceful argument, I think we're out of time.

[00:33:41] Speaker 04:
I think I'm done here.

[00:33:44] Speaker 04:
Thank you, Mr. Daniels.

[00:33:45] Speaker 04:
Thank you, sir.

[00:33:45] Speaker 04:
Thank you, Mr. Grubb.

[00:33:46] Speaker 04:
Thank you.

[00:33:47] Speaker 04:
The case is submitted.

[00:33:48] Speaker 04:
That concludes our session for this morning.