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United States v. 269 Acres, Located In Beaufort County

United States District Court, D. South Carolina, Beaufort Division

September 26, 2019

United States of America, Plaintiff,
v.
269 Acres, More or Less, Located in Beaufort County, State of South Carolina; et al., Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE

         Before the Court is the Landowners' motion for attorneys' fees and costs. (Dkt. No. 173.) For the reasons set forth below, the motion is denied.

         I. Background

         The United States of America (the "Government") filed this action on July 15, 2016 to impose a permanent restrictive easement over 269.22 acres of land (the "Property") located in Beaufort, South Carolina, which the Landowners had owned in fee simple since 1955. (Dkt. No. 1.) The easement encumbers 179 acres of the 446.33-acre industrially zoned parcel and the entire 90.22-acre residentially zoned parcel. It restricts land development in the flight path of jets in and out of the adjacent U.S. Marine Corps Air Station notwithstanding preexisting overlay zoning. (Dkt. No. 140-1.)

         The Court appointed a three-person Commission pursuant to Rule 71.1 of the Federal Rules of Civil Procedure that was comprised of Jean H. Toal, Stephen A. Spitz and Alan J. Reyner. The sole issue in dispute was the appropriate amount of just compensation due to the Landowners for this constructive taking. After a three-day trial, the Commission issued its final Report and Recommendation of just compensation, to which the Government objected. (Dkt. Nos. 164, 172.) After hearing oral arguments and reviewing the Commission's Recommendation de novo, the Court made specific findings of the pre- and post-taking values of the industrial and residential parcels based on each's highest and best use, and found that the full award of just compensation due to the Landowners by the Government is $4, 441, 410.00. (Dkt. No. 180.)

         The Landowners now seek certain attorneys' fees and costs incurred during this approximately three-year litigation. The Court considers the Landowners' motion and supplemental motion (Dkt. Nos. 173, 186), the Government's response in opposition (Dkt. No. 188), the Landowners' reply (Dkt. No. 191) and the Government's sur-reply (Dkt. No. 196).

         II. Legal Standard

         The Fifth Amendment forbids the taking of private property for public use without "just compensation." The compensation owed under this provision is the monetary equivalent of the property taken, which does not take into account indirect costs to the property owner caused by the taking. United State v. Bodcaw Co., 440 U.S. 202, 203 (1979). Thus, "attorneys' fees and expenses are not embraced within just compensation." Id. The American Rule provides that parties bear their own legal fees, exceptions to which must be explicitly authorized by Congress. In re Crescent Estates, LLC, 588 F.3d 822, 825-26 (4th Cir. 2009). Imposition of costs against the Government is generally prohibited and may only be imposed "to the extent allowed by law." Fed.R.Civ.P. 54(d)(1). Congress explicitly authorized the imposition of certain costs and attorneys' fees in the Equal Access to Justice Act ("EAJA"). 28 U.S.C. § 2412.

         The district court's interpretation of EAJA is subject to de novo review. United States v. 50.50 Acres of Land, 931 F.2d 1349, 1356 (9th Cir. 1991). The court's order on an application made under EAJA is reviewed for abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 562-63 (1988); United States v. 515 Granby, LLC, 736 F.3d 309, 314 (4th Cir. 2013). If the court determines that the applicant is entitled to fees and expenses, the court "has considerable discretion in determining the amount of the fee award." 515 Granby, LLC, 736 F.3d at 318. The court abuses its discretion when it makes a clear error of law. United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009). This "standard is deferential, " 515 Granby, LLC, 736 at 314, but requires a "suitably informed deference" that may entail a "canvassing of the relevant materials, " United States v. Paisley, 957 F.2d 1161, 1166, n.3 (4th Cir. 1992).

         III. Discussion

         The Landowners seek $687, 602.50 in attorneys' fees pursuant to EAJA subsections 2412(b) and (d), and $37, 998.60 in costs pursuant to subsections 2412(a) and (d). The Landowners also seek certain costs pursuant to Rules 54(d) and 71.1 of the Federal Rules of Civil Procedure.

         A. Attorneys' Fees and Costs Pursuant to the EAJA

         The issue of attorneys' fees and costs to prevailing landowners in federal condemnation actions has suffered a long and complicated history, with which Congress and the courts have struggled. Regarding attorneys' fees, under the American Rule, each party bears its own fees absent a statutory provision or contractual obligation otherwise. Congress sought to correct this matter in federal condemnation cases through the EAJA, allowing the prevailing landowner to obtain attorneys' fees where the Government took a position that was not substantially justified or acted in bad faith. 28 U.S.C. § 2412(d)(1)(A), § 2412(b).[1] However, the EAJA limits this remedy to a "party, " defined in part as an individual whose net worth was two million dollars or less at the time the case was filed. 28 U.S.C. § 2412(d)(2)(B).[2]

         The EAJA defines "party" and "prevailing party" "[f]or the purposes of subsection 2412(d). 28 U.S.C. § 2412(d)(2). But courts have consistently found that subsection 2412(d) definitions apply to the terms when used in other subsections due to the "presumption that a given term is used to mean the same thing throughout a statute." Brown v. Gardner,513 U.S. 115, 118 (1994). See, e.g., Poche v. Joubran,644 F.3d 1105, 1109 (10th Cir. 2011) ("Although subsection (d)(4)'s language does not, by its terms, apply to sections (a) and (b), the statute as a whole makes the most sense when all of its provisions regarding 'prevailing parties' are read in the same way."); Petro-Hunt, L.L.C. v. United States,365 F.3d 385, 388 n.l (5th Cir. 2004) ("Prevailing party status is a prerequisite to recovering attorneys' fees under 28 U.S.C. § 2412(b)."); United States v. 50.50 Acres of Land,931 F.2d 1349, 1358 (9th Cir. 1991) ("We conclude that the legislative history of the amendment [§2412(d) definition of 'prevailing party'] reflects Congressional intent that the new definition was to apply to awards of both costs and fees."); United States v. 5, 507.38 Acres of Land,832 F.2d 882, 883-84 (5th Cir. 1987) ("A 'plain meaning' reading of the statute indicates that this subsection [2412(d)(1)(A)] applies only where it has been found that the private party 'prevailed' under § 2412(b) and thereby made a prima facie case of entitlement to fees."); United States v. Certain Land Situated in the City of Detroit,600 F.Supp.2d 880, 890 (E.D. Mich. 2009) ("In order to recover fees and costs under the EAJA, however, it is not enough to simply demonstrate that the moving party meets the net worth and employee-number requirements set forth in § 2412(d)(2)(B)."); United States v. 87.98 Acres of Land More or Less in Donn Raymond Campion, No. 03-6064 AWI LJO, 2006 WL 8445962, at *2 (E.D. Cal. Apr. 7, 2006) ("This language ['For purposes of subsection 2412(d)] suggests that Section 2412(d)(2)(H) only defines 'prevailing party' for Section 2412(d) and not Section 2412(a) or Section 2412(b), " but "[o]ther circuits have, without discussion or mention of the ...


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