United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
the Court is the Landowners' motion for attorneys'
fees and costs. (Dkt. No. 173.) For the reasons set forth
below, the motion is denied.
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.)
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.)
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).
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.
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).
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.
Attorneys' Fees and Costs Pursuant to the EAJA
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). 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).
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 ...