Fastship, LLC v. United States

In the United States Court of Federal Claims
No. 12-484C

(Filed Under Seal: March 31, 2021)
(Reissued April 7, 2021)

)
FASTSHIP, LLC, ) Patent case; prevailing plaintiff’s claim
) for attorneys’ fees and expenses; 28
Plaintiff, ) U.S.C. § 1498(a); lack of substantial
) justification for government’s position;
v. ) attorneys’ fees and expenses
)
UNITED STATES, )
)
Defendant. )
)

Mark L. Hogge, Dentons US LLP, Washington, D.C. for the plaintiff. With him on briefs
were Rajesh C. Noronha, Dentons US LLP, Washington, D.C. and Donald E. Stout, Fitch, Even,
Tabin & Flannery LLP, Washington, D.C.

Scott Bolden, Deputy Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C for the United States. With him on briefs were
Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, Gary L. Hausken,
Director, Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, D.C, and Andrew P. Zager, Department of the Navy, Washington, D.C.

OPINION AND ORDER 1

LETTOW, Senior Judge.

Pending before the court in this patent case is FastShip, LLC’s motion for attorneys’ fees
and bill of costs. 2 The court previously found that in constructing a class of littoral combat ships

1
Because of the protective order entered in this case, this opinion was initially filed under
seal. The parties were requested to review this opinion and to submit proposed redactions of any
confidential or trade secret material. No redactions were requested.
2
This case has been extensively litigated, resulting thus far in six published opinions and
orders. See FastShip, LLC v. United States, 114 Fed. Cl. 499 (2013) (“FastShip I”) (claims
construction); FastShip LLC v. United States, 122 Fed. Cl. 71 (2015) (“FastShip II”); FastShip,
LLC v. United States, 131 Fed. Cl. 592 (2017) (“FastShip III”) (ruling on liability and just
compensation for infringement), aff’d, FastShip, LLC v. United States, 892 F.3d 1298 (Fed Cir.
2018) (“FastShip IV”); FastShip, LLC v. United States, 143 Fed. Cl. 700 (2019) (“FastShip V”)
(“LCS”), the Navy infringed two patents held by FastShip. See FastShip III, 131 Fed. Cl. at 627-
28 (awarding FastShip $6,449,585.82 plus interest for the United States’ infringement); FastShip
IV, 892 F.3d at 1310 (correcting a transcription error, resulting in an award of $7,117,271.82).
Ultimately, FastShip recovered $12.36 million, including interest. See FastShip V, 143 Fed. Cl.
at 709. In 2018, plaintiff initially moved for attorneys’ fees and related expenses. See Pl’s Mot.
for Atty’s Fees & Related Expenses, ECF No. 190. The court granted plaintiff’s motion in part
and awarded FastShip $7,407,967.36 for attorney’s fees and related expenses. Id. at 735. The
government appealed the court’s ruling, and the Federal Circuit vacated and remanded. FastShip
VI, 968 F.3d at 1336. FastShip now renews its motion for attorneys’ fees and costs. The court
finds that the government’s litigating positions were not substantially justified. Therefore,
FastShip’s motion is GRANTED IN PART and DENIED IN PART, and the court awards
FastShip fees and costs totaling $7,786,601.46.

BACKGROUND

A. Factual Background & Merits Litigation

This case concerns two patents originally issued to David Giles and later assigned to
FastShip. See U.S. Patent Nos. 5,080,032 (“the ’032 patent”) (issued Jan. 14, 1992) and
5,231,946 (“the ’946 patent”) (issued Aug. 3, 1993). The patents described the claimed
invention as a “monohull fast sealift . . . or semi-planing monohull . . . ship . . . whose hull design
in combination with a waterjet propulsion system permits . . . transoceanic transit speeds of up to
40 to 50 knots in high or adverse sea states” for large ships “of about 25,000 to 30,000 tons
displacement with a cargo carrying capacity of 5,000 tons.” ’032 Patent col. 1, lines. 6-13; ’946
Patent col. 1, lines. 10-17.

Beginning in the early 2000s the Navy began “exploring the concept that later became the
LCS program[,] seeking new ships that could be used for ‘focused missions’ at high speeds,” and
requested proposals for the LCS program in 2003. FastShip III, 131 Fed. Cl. at 600 (internal
citation omitted). The Navy’s request did not specify a required hull design. See id. FastShip
engaged with two government contractors involved in the LCS program and signed an agreement
that provided for “information sharing between the LCS team and FastShip.” Id. at 601-02.
While it was “unlikely” that the parties would enter into a direct arrangement concerning hull
design, FastShip could be added “to the team for certain design aspects” of the project. Id. at
601 (internal quotation marks and citation omitted). Despite this understanding, FastShip was
not involved in the design of the ship during the procurement or construction process. See id. at
602-03. The first of the ships produced in the LCS program, LCS-1, USS Freedom, launched on
September 23, 2006, and featured a semi-planing monohull. Id. at 602-03. In 2008, FastShip
filed an administrative claim with the Navy, contending that the LCS program infringed on its
patents. FastShip II, 122 Fed. Cl. at 77. The Navy responded to the administrative claim two
years later, stating that, after investigation, it believed the LCS program did not infringe on
FastShip’s patents and denying any compensation. Id.

(awarding attorneys’ fees and expenses), vacated and remanded, FastShip, LLC v. United States,
968 F.3d 1335 (Fed. Cir. 2020) (“FastShip VI”).

2
 Subsequently, in August 2012, FastShip filed its complaint in this court. FastShip II, 122
Fed. Cl. at 77. FastShip’s claims addressed ships produced within the Freedom class of the LCS
program. Id. 3 The parties submitted briefs on claim construction, and the court held a Markman
hearing and in October 2013 issued an opinion construing eight of the claim terms. FastShip I,
114 Fed. Cl. 499.

After the parties conducted discovery, the government moved for summary judgment.
FastShip II, 122 Fed. Cl. at 77. The court granted the government’s motion with regard to LCS-
3 and the subsequent ships in the Freedom class on the ground that those ships “were not
‘manufactured’ by or for the government within the meaning of 28 U.S.C. § 1498 prior to the
expiration of the patents in suit.” Id. at 86. Following this decision, FastShip’s remaining
infringement claims only concerned LCS-1, USS Freedom. FastShip III, 131 Fed. Cl. at 607.

After a site visit to the constructing shipyard, the court held a 10-day trial in October
2016. FastShip III, 131 Fed. Cl. at 607. 4 The court ultimately issued a decision in April 2017,
finding that the ’032 and ’946 patents were valid, and that the government, through the
construction of its LCS-1 ship, directly infringed FastShip’s patents. See id. at 618. The court
awarded FastShip $6,449,585.82 in damages plus interest for delayed compensation. Id. at 627.
Additionally, the court stated that FastShip could apply for “reasonable costs and reasonable fees
for expert witnesses and attorneys under 28 U.S.C. § 1498(a) . . . within 30 days after any
appellate process has been concluded.” Id. at 627-28. On appeal, the Federal Circuit affirmed
this court’s decision of infringement as to LCS-1 and its grant of summary judgment in the
government’s favor as to LCS-3 and subsequently manufactured ships, while modifying the
damages amount due to a transcription error. FastShip IV, 892 F.3d at 1310. Each party was to
“bear its own costs” for the appeal. Id. at 1311.

B. Costs and Fees Pursuant to 28 U.S.C. § 1498(a)

After prevailing on the appeal, FastShip filed a motion for attorneys’ fees and related
expenses and a bill of costs in October 2018. See ECF Nos. 190-91. The government opposed
FastShip’s motion. See Def.’s Objs. to Pl.’s Bill of Costs, ECF No. 201; Def.’s Resp. to Pl.’s
Mot. for Att’ys’ Fees, ECF No. 203. The parties fully briefed the motion, see ECF Nos. 211-12,

3
The Freedom class of LCS are designated as LCS-1, 3, 5, 7, 9, 11, et al., taking into
account the design and construction of a second class of littoral combat ships, the Independence
class, designated as LCS-2, 4, 6, et al. The Independence class of ships employs a different hull
design. See Pl.’s Mem. in Supp. of its Mot. for Atty’s Fees and Related Expenses (“Pl.’s Mem.”)
at 3 n.2, ECF No. 233-1.
4
The trial transcript was filed in ten volumes, one for each day of trial. See ECF Nos.
129, 131, 133, 135, 137, 141, 143, 145, 147, 149. Following the protective order entered in this
case, the transcripts were redacted. See ECF Nos. 154, 156-164. Citations to the trial transcripts
will be cited as follows: “Trial Tr. Vol. XX page number:line number.” The date will be omitted
from the citation.

3
and the court held a hearing on April 3, 2019. 5 In June 2019, the court entered an opinion
awarding FastShip attorneys’ fees and costs. FastShip V, 143 Fed. Cl. at 735. The court—
building on its prior determination in Hikansut LLC v. United States, 142 Fed. Cl. 341 (2019)—
stated that “[t]he text of 28 U.S.C. § 1498(a) refers to a single ‘position of the United States’ . . .
[and] makes no distinction between the pre-litigation position and the position taken once
litigation commences.” FastShip, 143 Fed. Cl. at 719 (quoting Hikansut, 142 Fed. Cl. at 357).
The court thus considered “all of the government’s conduct . . . when determining whether the
position of the United States was ‘substantially justified.’” Id. at 720 (emphasis in original).
Ultimately, the court determined that that government’s “overall conduct demonstrates its
position was ultimately not ‘substantially justified’ when viewed in totality,” id. at 723, and
awarded FastShip $6,178,288.29 in attorneys’ fees and $1,229,679.07 in costs, id. at 735.

An appeal followed. See FastShip VI, 968 F.3d 1335. The Court of Appeals for the
Federal Circuit found that this court erred by relying on the government’s pre-litigation conduct
when determining whether the position of the United States was substantially justified. Id. at
1338-39. The Federal Circuit stated that because the decision relied “in large part on pre-
litigation conduct and did not conclude that the litigation conduct itself was sufficient for an
award of fees, a remand [was] required.” Id. at 1339. The Circuit directed this court on remand
to “consider whether the government’s litigation conduct alone, to the extent that it was not
substantially justified, was sufficient to justify a fee award.” Id. 6

FastShip thereafter renewed its motion for attorneys’ fees and costs. See Pl.’s Renewed
Mot. for Att’ys’ Fees & Related Expenses (“Pl.’s Mot.”), ECF No. 233; Pl.’s Mem.; Pl.’s
Renewed Mem. in Supp. of its Bill of Costs (“Pl.’s Bill of Costs”), ECF No. 236. FastShip
argues that the government’s litigating positions were not substantially justified, and therefore, it
is entitled to attorneys’ fees and costs associated with the litigation. See Pl.’s Mem. The
government counters with three alternative arguments. Def.’s Resp, ECF No. 235. It first argues
that FastShip’s “renewed [Bill of Costs is] impermissibly untimely.” Id. at 8. Additionally, the
government argues that its litigation position was substantially justified, id. at 8-29, or, if the
court awards costs and fees, FastShip should be awarded a reduced amount, id. at 29-39. The
motion has been fully briefed, see Pl.’s Reply, ECF No. 238; Def.’s Sur-Reply, ECF No. 240.
FastShip filed a supplemental memorandum detailing “additional documentary support for fees
incurred since the time of its renewed motion.” Pl.’s Suppl. Mem. at 2, ECF No. 242. The court
held a hearing on January 26, 2021.

STANDARDS FOR DECISION

A. “Substantially Justified”

Title 28, Section 1498 of the United States Code governs the award of compensation in
patent cases. When the United States manufactures or otherwise uses a patented invention
5
FastShip additionally filed two supplemental memoranda to support its motion for
attorney’s fees and bill of costs. See ECF Nos. 196-97.
6
Additionally, the Federal Circuit stated that there were “[n]o costs” for either party.
FastShip VI, 968 F.3d at 1340.

4
“without license . . . or lawful right to use or manufacture the same,” the patent owner may
recover “reasonable and entire compensation for such use.” 28 U.S.C. § 1498(a). The Section
defines “[r]easonable and entire compensation” as “includ[ing] the owner’s reasonable costs,
including reasonable fees for expert witnesses and attorneys.” Id. To qualify for such
compensation, (1) the owner of the patent must be “an independent inventor, a nonprofit
organization, or an entity that had no more than 500 employees,” 7 and (2) the court must not
determine that “the position of the United States was substantially justified.” Id. The
government has the burden to show that its position was substantially justified. FastShip VI, 968
F.3d at 1338 (citing Doty v. United States, 71 F.3d, 384, 385, (Fed. Cir. 1995)).

When evaluating whether “the position of the United States was substantially justified,”
the Federal Circuit has held that this court should apply the common-law definition of the phrase
“the position of the United States.” Hitkansut LLC v. United States, 958 F.3d 1162, 1168 (Fed.
Cir. 2020). As such, “‘the position of the United States’ as used in § 1498(a) refers to the
litigation positions taken by the United States in the civil action in which the attorneys’ fees were
incurred.” Id. However, “nothing . . . prevents the [court] from looking to the facts of an
individual case, including facts that occurred pre-litigation, when deciding whether [the
government’s] litigation positions were substantially justified.” Id.

The court, in applying “the ‘substantially justified’ test, asks whether a position is
‘justified in substance or in the main—that is, justified to a degree that would satisfy a
reasonable person.’” Hitkansut, 958 F.3d at 1168 (quoting Commissioner, Immigr. &
Naturalization Serv. v. Jean, 496 U.S. 154, 158 n.6 (1990) (additional citation omitted)). The
government’s litigation “positions ‘lack[] substantial justification’ when they are ‘unsupported
by the facts’” Id. at 1168-69 (quoting Hitkansut, 142 Fed. Cl. at 359 (2019) (alteration in
original)).

B. Reasonable Fees

Section 1498(a) states that “[r]easonable and entire compensation . . . include[s] the
owner’s reasonable costs, including reasonable fees for expert witnesses and attorneys.” 28
U.S.C. § 1498(a). When considering the reasonableness of an award of fees, the “most useful
starting point . . . is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Hubbard v. United States, 480 F.3d 1327, 1332 (Fed. Cir. 2007) (citing
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Courts, in calculating the amount of fees to
award, look to “a number of factors, of which ‘the most critical factor is the degree of success
obtained.’” Id. (citing Hensley, 461 U.S. at 436).

7
The parties agree that FastShip meets the first requirement. See Pl.’s Mot. at 9-10;
Def.’s Resp. at 6 n.1 (“The government does not dispute that FastShip qualifies under [the 500-
employee] limitation.”).

5
 ANALYSIS

I. Timeliness of FastShip’s Bill of Costs

Prior to analyzing FastShip’s motion and bill of costs, the court must address the first
issue raised by the government, i.e., that FastShip’s bill of costs is untimely. See Def.’s Resp. at
7-8. Defendant characterizes FastShip’s renewed bill of costs as a successive fee request, noting
that the court has previously refused to accept successive fee requests. Def.’s Sur-Reply at 6
(citing Hitkansut, 142 Fed. Cl. at 360, and Bratcher v. United States, 138 Fed. Cl. 543, 547-48
(2018)). FastShip argues alternatively that it was either not required to renew its bill of costs, see
Pl.’s Bill of Costs at 2 n.2, or that it filed within 30 days of the expiration of the available period
for FastShip to petition the United States Supreme Court for certiorari, see id. at 7 n.4.

The Rule 54 of the Rules of the Court of Federal Claims (“RCFC”) states that a party
seeking costs must file its bill of costs “within 30 days after the date of final judgment, as
defined in 28 U.S.C. § 2412(d)(2)(G).” RCFC 54(d)(1)(B)(i). Section 2412(d)(2)(G) defines
“final judgment” as “a judgment that is final and not appealable.” 28 U.S.C. § 2412(d)(2)(G).
The Federal Circuit filed its decision vacating and remanding on August 3, 2020, and the
mandate issued on September 24, 2020. See ECF Nos. 226-27. Under Rule 13 of the Rules of
the Supreme Court to the United States, “a petition for a writ of certiorari to review a judgment
in any case . . . entered by . . . a United States court of appeals . . . is timely when it is filed with
the Clerk of this Court within 90 days after entry of the judgment.” Sup. Ct. R. 13(1).
According to this Supreme Court Rule, FastShip had 90 days following the issuance of the
Federal Circuit’s decision to timely file a petition for certiorari. See Sup. Ct. R. 13(1). The
ninetieth day following the Federal Circuit’s decision was November 2, 2020. On that day, the
Federal Circuit’s judgment was considered “final and not appealable.” 28 U.S.C. §
2412(d)(2)(G). FastShip filed its renewed bill of costs on December 2, 2020, 30 days later. See
ECF No. 236. Thus, FastShip’s bill of costs was filed “within 30 days after final judgment,”
RCFC 54(d)(1)(B), and is therefore timely. 8

II. Whether the Government’s Litigating Position Was Substantially Justified

The government argues that its litigating position, when considered as a whole, was
substantially justified. See Def.’s Resp. at 8-29. FastShip extensively counters that the
government’s position was unreasonable throughout the course of litigation. See Pl.’s Mem. at
10-36. When determining whether the government’s conduct was substantially justified, the
court must inquire whether the government’s position was “justified to a degree that would
satisfy a reasonable person.” Hitkansut, 958 F.3d at 1168 (citations omitted). Because the
government bears the burden, the court will look at the government’s justifications to determine
if, on the whole, the government’s position was substantially justified.

The government argues that, despite losing on the merits both at trial and on appeal, its
litigating position, when viewed in totality, was substantially justified. See Def.’s Resp. at 8-29.

8
The government’s arguments about successive bills of cost and motions for attorneys’
fees also fail to persuade, given the timing of FastShip’s renewed motions on remand.

6
The government first supports its argument by stating that it litigated in good faith and did not
engage in fraud. Id. at 9-13. 9 The government then states that the arguments it advanced during
the non-infringement and invalidity proceedings were substantially justified. Id. at 13-29.

In support of an award of fees and costs, FastShip elaborates various positions taken by
the United States that lacked merit. Primarily, those positions related to whether the patented
hull design and waterjet powering mechanism and design enabled the ships to gain higher speeds
in the water by lifting the stern and reducing drag. See e.g. Pl.’s Mem. at 14-15. Plaintiff’s
patents specified three components that contributed to lift: a hooked hull design, configuration of
the waterjet inlets, and inclusion of interceptors near the stern. See ’946 patent col. 5, lines 64-
68; col. 6, lines 7-11; col. 14, lines 18-23; ’032 patent col. 9, lines 38-46; col. 10, lines 14-24;
col. 14, lines 23-28. FastShip first points to the government’s response to one of FastShip’s
interrogatories. Pl.’s Mem. at 14. In that response, the government indicated that “there is no
evidence . . . of an area in the stern section of the LCS-1 and LCS-3 with hydrodynamically
generated pressure sufficient in magnitude to produce an upward rather than downward force
vector.” Pl.’s Mot at 14. Put differently, the government would have it that the stern of the hull
of the Freedom class of LCS ships was not subject to lift but was able to maintain a high rate of
speed solely because of the power the ships generated. The government maintained this
argument—that the ships did not produce upward lift at the stern based on their design —
throughout the course of litigation. See, e.g., Def.’s Post-Trial Br. at 26, ECF. No. 165. This
contention was disputed by evidence disclosed during discovery, see Fastship III, 131 Fed. Cl. at
612-13, and even by the government’s own expert at trial. Despite the lack of support for this
position, the government applied it consistently throughout litigation.

A. Errors in Government’s Scaled Model

The government prepared a scale model of the LCS-1 design for testing at its Carderock
Division, Naval Surface Warfare Center, and introduced the results of that testing at trial. See
FastShip III, 131 Fed. Cl. at 603-05. Discrepancies in the government’s model stern undermined
the government’s position. See generally id. at 611-18. Both patents explicitly anticipate that
the hull would include a hook. ’032 Patent, col. 6, lines 1-2 (noting the “buttock lines with a
slight downward hook terminating sharply at a transom stern); ’946 Patent, col. 5, lines 67-68
(same). 10 Whether the LCS-1 model had a hook at the stern, whether it had been included in the

9
The fact that the government litigated in good faith or did not engage in fraud is not the
standard upon which the court evaluates the government’s arguments on a motion for fees and
costs under Subsection 1498(a). See Hitkansut, at 142 Fed. Cl. at 357 (“That a litigation position
may be reasonable in the abstract . . . does not mean that the litigation position as applied to a
specific case remains reasonable when contradicted or unsupported by the factual record.”).
10
As the court described in its merits opinion, a hooked stern is also called a “stern
wedge.” FastShip III, 131 Fed. Cl. at 613. “Generally, the purpose of a hook is to change the
trim of the ship by moving the stern upward,” id., because “the hydrodynamic lift is influenced
strongly by the buttock shape of the hull bottom as you approach the stern of the [semi-planing]
vessel,” Trial Tr. Vol. 7 1651:10-15 (Test. of Donald Blount, a government expert).

7
various model testing, and the extent to which a hook affected the hydrodynamics and speed of
the LCS-1 model were disputed during the litigation.

Prior to trial, the court and expert witnesses conducted a site visit to Carderock and
observed the model used in the government’s testing. FastShip III, 131 Fed. Cl. at 604 n.11.
Upon inspection of the model’s stern, as seen at Carderock and in photos admitted into evidence
at trial, the model appeared to have a “rocker” stern. Id. 11 The LCS-1’s lines and hull plans,
however, indicate that the ship had a hooked stern rather than a rocker stern. Id. The
government conducted a waterjet flow test on the model and “argue[d] that the waterjets
counteract lift rather than cause additional lift.” Id. at 616. These data were not indicative of the
LCS-1 as the model was not designed properly with a hook stern. Id. at 604 n.11. The court
noted in its opinion on the merits that the model “as inspected, [did] not accurately represent the
stern of the LCS-1” and that the totality of the evidence indicated that the LCS-1 did, in fact,
have a hook stern as contemplated by the patents. Id. 12

11
A rocker stern curves upward at the bottom of the hull at the stern of a ship. See
Fastship III, 131 Fed. Cl. at 603 n.9.
12
At one point, the government proposed that the scale model was built with a hook but
over time it had warped in a way that eliminated that feature and resulted in a rocker shape.
Counsel for the government suggested this theory during a line of questions during cross-
examination of FastShip’s expert Dr. Garwin:

Mr. Bolden. And I believe you stated that the model that you saw at Carderock did not
have a hook?

Dr. Garwin. Correct.

Q. Do you know at the scale of the model how big the hook would have been at the
transom?

A. Yes. The hook would have been about a third of an inch, so six inches on the full size
[model] and the scale factor of 18, so about a third of an inch, easily visible. Instead of
coming down a third of an inch, it went up at least two-thirds of an inch.

Q. And do you know whether the model that you saw was warped?

A. I don’t think a model like that could be warped. No.

Q. What about if the model was stored for six years and supported on its bow and its
stern only? You don’t expect that it would be warped in that condition?

A. No, I do not.

Trial Tr. Vol. 10 2302:16 to 2303:8.

8
 The lack of a hooked stern was assumed by the government throughout litigation and
contributed to the lack of accurate forecasting by its principal expert, Dr. Stern, and its
arguments offered before and after trial. For example, in its post-trial briefs, while FastShip
argued that “the hooked stern of LCS-1 cause[d] high pressure and therefore cause[d]
hydrodynamic lifting of the stern as the ships gains speed,” the government maintained that the
“hydrodynamic lifting of the stern would only occur at speeds above which LCS-1 has been
shown to achieve.” FastShip III, 131 Fed. Cl. at 611 (citations omitted). 13 Based on the court’s
finding that the totality of the evidence showed that LCS-1 included a hooked stern, a reasonable
person could not conclude that the government was justified in consistently asserting otherwise.
See Hitkansut, 958 F.3d at 1168 (citations omitted).

B. Incorrect Units in Figure 11

In the same general vein, the government pointed to an aspect of the patents themselves
in an effort to show that the hull design of the LCS-1 was not efficient. Both the ’032 patent and
the ’946 patent include a figure 11. See ’032 patent, fig. 11; ’946 patent, fig. 11. Figure 11
provides a line graph representation of shaft horsepower as compared to ship speed. ’032 patent,
fig. 11; ’946 patent, fig. 11. At trial, the government provided a misleading graph showing
information for LCS-1, prepared by counsel, using imperial units, instead of the metric units
reflected in figure 11. FastShip III, 131 Fed. Cl. at 617. The use of imperial units made the
LCS-1 displacement hull appear to be inefficient. See id. Further, the government’s principal
expert based his analysis and opinion on these incorrect representations of data. See infra;
FastShip V, 143 Fed. Cl. at 721-22. The government’s counsel continued to use imperial units,
throughout the trial and post-trial briefing, despite being told of the error on the first day of trial.
See FastShip V, 143 Fed. Cl. at 721 n.12. 14

13
The court detailed the government’s mistaken arguments in this regard in its merits
opinion. See FastShip III, 131 Fed. Cl. at 611-15. Particularly, the court discussed the findings
and testimony of one of FastShip’s experts, Dr. Richard Garwin, an eminent physicist, in which
Dr. Garwin described the existence of the hook and its effect on LCS-1’s hydrodynamics. See
id. The court accepted that testimony, and it directly contradicted the government’s non-
infringement arguments. See id.
14
The patents’ inventor, Mr. Giles, testified on the first day of trial. During an exchange
with the government’s lawyer Mr. Zager regarding figure 11, Mr. Giles stated that figure 11 used
metric units:

Mr. Zager. The Y axis says “Shaft horsepower times 1000.” Is that correct?

Mr. Giles. Um-hum, yes.

Q. You also discussed effective horsepower this morning –

A. Yes.

9
 This court previously held that the government’s position as it related to figure 11 was
not substantially justified. FastShip V, 143 Fed. Cl. at 721-22. On appeal, the United States
Court of Appeals of the Federal Circuit affirmed this part of the court’s determination, stating
that it saw “no clear error in the Claims Court’s factual findings here or its conclusion that the
government’s position here was not substantially justified.” Fastship VI, 968 F.3d at 1340. Such
a position continues to be “unsupported by the facts,” Hitkansut, 958 F.3d at 1169 (citations
omitted), and therefore, the court finds that the government’s erroneous misconstruction of figure
11 had no justification.

C. Expert Analysis

Dr. Frederick Stern, one of the government’s principal experts at trial, provided analysis
central to the government’s non-infringement arguments, making serious mistakes in both his
computational drag analysis related to flow dynamics and in his related testimony at trial. See
FastShip III, 131 Fed. Cl. at 616. The government relied on these flawed computational fluid
dynamics calculations to assert that the LCS-1 hull did not generate high pressure causing
hydrodynamic lift under the stern. Id. at 613 n.22. FastShip provided evidence and testimony at
trial related to the complex nature of the computational fluid dynamics calculations. See, e.g.,
Trial Tr. Vol. 10 2313:6-10 (Dr. Garwin: “[M]y experience in doing computer analysis is that it
requires an enormous effort . . . to make sure that the analysis is done right.”). Central to this
error was Dr. Stern’s “overestimat[ion of] the force of the waterjets by a factor of four.” Id. at
616 (citations omitted). Plaintiff’s expert Dr. Garwin, rebutting Dr. Stern’s analysis and
testimony at trial, stated that the results of Dr. Stern’s analysis “should have been a red flag.”
Trial Tr. Vol. 10 2286:16-17. To create Dr. Stern’s results at 40 knots, the ship would have
required “400,000 horsepower rather than 100,000 horsepower in the actual ship.” Id. at
2286:17-18. Dr. Garwin further indicated that if he or “a graduate student or a colleague had
been faced with this result from our computation, [they] would have said stop right here until we
understand this.” Id. at 2286:19-22. While Dr. Stern stated that that the primary focus of his
analysis was not on the power or drag components and thus it was reasonable for him to continue
with the analysis regardless of the error, Dr. Garwin suggested that analysis could not reasonably
have proceeded until the source of the inaccuracy was discovered and corrected. Id. at 2287:8-
13 (Dr. Garwin: “In my opinion, they have made a foolish blunder someplace, but they have not
looked to see where that blunder is, and they just assume[d] that the computation [wa]s correct

Q. – in another context.

A. Yes.

Q. What is the difference between shaft horsepower and effective horsepower?

A. Well, it’s variously expressed. This is actually shaft horsepower in kilowatts, and
sometimes, as you can see, I think in some of your own disclosures, by the – by
Carderock, the – it says horsepower EHP, or shaft horsepower, BHP, SHP, or kilowatts.

Trial Tr. Vol. 1 205:6-20.

10
and [went] on to look at small differences among large numbers and represent[ed] that that
represents the lift or absence of lift due to waterjets.”)

Dr. Stern also failed to take into account “key characteristics of the performance of the
model-scale and full-size LCS-1” and “the scaling of the hydrodynamic boundary layer” between
the hull and the sea. FastShip III, 131 Fed. Cl. at 616. Specifically, Dr. Stern’s analysis did not
include a hook or interceptors on the LCS-1 model hull. Id. at 613 n.22; Trial Tr. Vol. 8 1783:4-
5 (Dr. Stern: “I was not aware of a hook . . . in the geometry of LCS-1.”). Further, Dr. Stern’s
analysis “ignore[d] the well-known and undisputed fact” associated with using a smaller scale
model—that the boundary layer under the hull of the ship is two and a half times thicker on the
model relative to the full-sized ship. Trial Tr. Vol. 10 2289:15-17; 2292:6-18 (Garwin). This
difference affected drag and boundary flow, both of which were not considered by Dr. Stern. Id.
at 2290:9-10; 2292:6-12. Additionally, because “the interceptors generate high pressure at the
stern, and therefore generate upward lift,” FastShip III, 131 Fed. Cl. at 615, their absence from
Dr. Stern’s analysis resulted in lesser lift at the stern of the ship than was reflected in full-size
LCS-1, id. at 613 n.22.

After determining that “Dr. Stern’s model and methodology render[ed] his calculations
unreliable,” the court afforded Dr. Stern’s analysis “little weight.” FastShip III, 131 Fed. Cl. at
613 n.22. Dr. Stern served as the government’s primary expert, and the government relied upon
his analysis to show a lack of infringement. See id. The pervasiveness of the errors in Dr.
Stern’s analysis and testimony, as well as the government’s heavy reliance upon his analysis in
preparation for and during trial, were not “justified to a degree that would satisfy a reasonable
person,” Hitkansut, 958 F.3d at 1168 (citations omitted), and were “unsupported by the facts,” id.
at 1169 (citation omitted).

The burden in proving reasonableness is on the government, and the court finds the
government has failed to carry that burden in this case. Although parts of the government's
conduct could be seen as reasonable when viewed in isolation, 15 its overall conduct demonstrates
its position was ultimately not “substantially justified” when viewed in totality.

III. Reasonable Fee Amount

Because the court determines that the government’s litigation position, on the whole, was
not substantially justified, the court must consider the proper amount of fees that should be
awarded to FastShip. As a preliminary matter, the court must address whether it can consider
plaintiff’s supplemental memorandum filed on January 25, 2021, in support of its motion for
attorney’s fees. See ECF No. 242. The purpose of this memorandum was to supplement its
original request for attorney’s fees with expenses incurred since FastShip filed its renewed
15
For example, the government was ultimately successful on summary judgment
regarding all ships produced after the LCS-1. As the court stated previously, “[t]he claims
regarding the LCS-3 and later Freedom class ships were, in effect, time barred . . . because the
patents had expired” at the time the LCS-3 ship was manufactured. FastShip V, 143 Fed. Cl. at
722 (citations omitted). The government’s position, as a whole, can lack substantial justification
“even though [the government] may have taken reasonable stances in some respects.” Id. at 723.

11
motion on October 30, 2020. Id. at 1. Plaintiff requested an additional $138,857.00 in fees and
expenses, as of January 24, 2021, and provided documentary evidence supporting the hours
worked and the expenses incurred. See id. Ex. 1, ECF No. 242-2. The government argues that
FastShip’s supplemental memorandum is “untimely.” Hr’g Tr. 18:22-23. 16 Much like its
general argument about timeliness, the government contends that “FastShip can’t do these fee
requests by installment.” Id. at 20:21-22.

However, much like FastShip’s bill of costs, the court views the supplemental
memorandum as timely. While the government is correct that this court in Hitkansut stated
“[t]he court cannot entertain multiple, successive fee requests,” the plaintiff in that case had not
submitted its request for additional fees. 142 Fed. Cl. at 360. Because FastShip is requesting
“fees or expenses [that] were included in its application or have since been provided,” id., the
group accepts FastShip’s supplemental memorandum. 17

The government contends that, even if its litigation positions were substantially
unjustified, FastShip’s fees should be reduced. Def.’s Resp. at 29-39. In doing so, the
government cites its successes during litigation, such as the court’s grant of its motion for partial
summary judgment as to ships built after LCS-1 and its success on appeal of that issue. Id. at 30-
31. Additionally, the government argues that the court should reduce FastShip’s requested fees
to a reasonable level as it did previously. Id. at 37-38. The court partially agrees with the
government about fee reductions and will reduce FastShip’s requested fees as specified below.

IV. Fees for Various Aspects of the Litigation

A. Dismissal of the LCS-3 Claim

The government argues that “FastShip is not entitled to fees for opposing the
Government’s successful motion for partial summary judgment” that resulted in the dismissal of
FastShip’s claims related to the LCS-3 and all subsequent Freedom class ships. Def.’s Resp. at
30. FastShip contends that despite the government’s success on summary judgment, FastShip
“utilized a significant amount of evidence that focused on the LCS-3 in its successful proof of
infringement by the LCS-1.” Pl.’s Mem. at 56. As a result, FastShip argues that its stated
attorneys’ fees “were reasonably incurred to advance the claims on which FastShip prevailed in
this case.” Id. at 57.

The court partially agrees with FastShip. As the court previously stated, “FastShip’s
award for attorneys’ fees and costs should not be reduced because it was unsuccessful on a
subsidiary aspect of its claim.” FastShip V, 143 Fed. Cl. at 723-24 (citing Hitkansut, 142 Fed.

16
FastShip filed its supplemental memorandum after the government filed its sur-reply.
See Def.’s Sur-Reply (filed December 18, 2020); Pl.’s Suppl. Mem. (filed January 25, 2021).
The government therefore did not have the opportunity to respond in writing but did so during
the hearing on January 26, 2021.
17
While the court accepts FastShip’s supplemental memorandum as timely, the requested
fees will be subject to the limitations detailed below.

12
Cl. at 364). FastShip filed one count of infringement in this court. See Compl. ¶¶ 16-18, ECF
No. 1. FastShip prevailed on its sole claim before this court: that the ships built by the United
States Navy infringed on FastShip’s patents. FastShip III, 131 Fed. Cl. at 627. The Federal
Circuit, in affirming this court’s decision in Hitkansut, stated that a fee award was appropriate
when the plaintiff is “succe[ssful] on its sole claim, and prove[s] a material amount of actual,
compensable damages.” Hitkansut, 958 F.3d at 1170. Had the court found that LCS-3 also
infringed on FastShip’s patents, FastShip would have received additional damages. The
additional damages that could have resulted from infringement on later Freedom class ships
would have stemmed from FastShip’s basic claim. Because FastShip succeeded on its sole claim
of infringement, the court will not reduce FastShip’s attorneys’ fees and costs because it was
“unsuccessful on a subsidiary aspect of its claim.” FastShip V, 143 Fed. Cl. at 723-24.

B. Motions Practice with Austal

The government next argues that “FastShip is not entitled to fees for its motion to compel
production for Austal, a subpoenaed third-party to the litigation” because the “Government’s
position in the litigation had nothing to do with the interactions and disputes of Austal and
FastShip.” Def.’s Resp. at 31. 18 The government further contends that it would be “unfair to
shift these fees to the Government for assisting in the matter, where the fees would have been the
responsibility of FastShip and/or Austal if the Government had not assisted.” Id. at 32. The
government’s argument that it helped resolve the situation amicably, FastShip argues, is
speculation. Pl.’s Reply at 16.

The court declines to reduce FastShip’s hours on this point. As the court stated in its
prior opinion, “FastShip was only required to issue the subpoena to third-party Aust[]al due to
the government’s insistence that it did not possess the documents at issue.” FastShip V, 143 Fed.
Cl. at 725. While FastShip’s motion to compel was not directed at the government, the motion
was likely what “brought the two parties together to reach an agreement that did not require the
court’s intervention.” Id. Therefore, the court will not exclude the Austal motion to compel
from the calculation of attorneys’ fees and costs.

C. Computational Fluid Dynamics Analysis

The government states that the court should deny FastShip fees associated with “its failed
efforts to engage experts . . . in Sweden.” Def.’s Resp. at 32. FastShip worked with experts in
Sweden “to conduct a computational analysis regarding the hydrodynamic properties of the hull
of the LCS.” Pl.’s Reply at 16. FastShip ultimately did not pursue the computational fluid
dynamics analysis. See id. According to the government, this expert work “was never disclosed,
cited, or relied on by FastShip or its experts” and, therefore, FastShip should not be able to
recover the $349,292.50 in fees and expenses associated with it. Def.’s Resp. at 32. FastShip

18
Early in litigation, FastShip filed a motion to compel against non-party Austal USA,
LLC (“Austal”). See Mot. to Compel, ECF No. 39. After the motion was fully briefed, the court
held a hearing. During the hearing, the parties informed the court that they had reached an
agreement concerning the discovery dispute, and the court subsequently denied the motion as
moot. See Order of July 18, 2014, ECF No. 59.

13
maintains that this computational analysis “was essential to FastShip in understanding the
limitations of computational fluid dynamics . . . to model and compute the hydrodynamic
properties of large naval vessels such as LCS-1.” Pl.’s Reply at 16.

The court agrees with FastShip. While the government is correct that FastShip did not
introduce this analysis at trial nor therefore could the court rely upon it in its opinion on the
merits, see Def.’s Resp. at 33, it does not follow that “this work was not a necessary expense,”
id. at 32. Plaintiff’s expert Dr. Garwin referenced the expert work at trial. Trial Tr. Vol. 10
2311:23 to 2315:19. Dr. Garwin’s opinion, combined with an understanding of the complexity
and limitations of the computational fluid dynamics analysis provided by the experts in Sweden,
allowed FastShip to rebut the government’s non-infringement case. See Pl.’s Reply at 16.
Specifically, the process of pursuing computational fluid dynamics data resulted in the
development of FastShip’s litigation strategy, including its successful challenge to Dr. Stern’s
analysis of boundary fluid flow around the hull. See Trial Tr. Vol. 10 2290:9-10, 2292:6-12.
Therefore, there is no basis to exclude the computational fluid dynamics analysis from
FastShip’s fee award.

D. Appeals to the Federal Circuit

The government next argues that “FastShip is entitled to no more than half of the fees”
from both the first and second appeal. Def.’s Resp. at 33-34. The government contends that
FastShip advanced “unmeritorious and unsuccessful appellate positions” and should have its fees
reduced accordingly. Def.’s Sur-Reply at 17. FastShip counters that its first appeal “resulted in
an affirmance of this Court’s findings of infringement of the LCS-1 and non-infringement of the
LCS-3, and the damages award to FastShip was increased.” Pl.’s Reply at 16. While the second
appeal resulted in the Federal Circuit overturning this court’s legal determination concerning the
term “substantial justification,” FastShip argues that it prevailed on another issue, the
government’s reliance on the incorrect units in figure 11, and is therefore entitled to fees
stemming from the appeal. Id. at 16-17.

As the court stated in its prior opinion, “both sides c[an] claim victory for the appellate
court’s decision” as to the first appeal. FastShip V, 143 Fed. Cl. at 724 (“[T]he government was
successful in having the summary judgment regarding the LCS-3 affirmed, but the finding of
infringement at trial was also affirmed.”). Thus, because “a fee award presumptively
encompasses all aspects of the civil action,” Jean, 496 U.S. at 161, FastShip is entitled to fees for
the initial appeal.

FastShip, however, overstates its success as to the second appeal. The government
unilaterally appealed, arguing that this court erred by relying on the government’s pre-litigation
conduct when determining whether the government’s conduct was substantially justified.
FastShip VI, 968 F.3d at 1338. The Federal Circuit agreed with the government, holding that,
“[o]n remand, the Claims Court must consider whether the government’s litigation conduct
alone, to the extent it was not substantially justified, was sufficient to justify a fee award.” Id.

14
FastShip’s limited success as to a factual issue only entitles it to half its attorneys’ fees for the
second appeal. 19

E. Settlement Discussions

The government further contends that FastShip should not receive attorneys’ fees for
“responding to settlement discussions initiated by the Government.” Def.’s Resp. at 37.
According to the government, it would be “unjust to shift these fees to the Government for
engaging in a good-faith attempt to amicably resolve the litigation.” Id. The court agrees with
FastShip that the government “provides no support for this contention.” Pl.’s Reply at 19.
While generally the government’s good or bad faith could result in a finding about substantial
justification of its conduct, the government’s good faith attempts to settle the dispute do not
warrant a reduction in fees after a finding, as in this case, that the government’s litigating
positions were not substantially justified.

F. Preparing the Fee Motions

Finally, the government avers that FastShip should not be awarded fees for its allegedly
deficient filings in this court. Def.’s Resp. at 34-35. After the initial motion for attorneys’ fees
was fully briefed, the court entered an order stating that documentation containing entries was
“deficient.” Order of June 5, 2019, ECF No. 219. The court requested that FastShip “provide
the court with support that details the number of hours worked by each attorney and support
staff[,] . . . the rates charged by those attorneys and support staff, and the dates for each of the
time entries.” Id. FastShip subsequently filed the requested documentation on June 12, 2019.
See Pl.’s Resp. to the Ct.’s Order of June 5, 2019, ECF No. 220. The government asserts that
“FastShip is not entitled to shift fees resulting from deficient filings.” Def.’s Resp. at 34.

The government also contends that recovery should be reduced because arguments in the
present motion are “significantly copied-and-pasted” from the 2018 fee-recovery motion. Def.’s
Resp. at 35. The government notes the similarities between the plaintiff’s 2018 fee requests and
the present fee request, stating that 34 sections are “substantively copied” and 9 sections are
“partially copied.” Id.

Nonetheless, the court’s request for additional documentation and the necessity of
preparing refreshed motions upon remand does not necessarily merit the government’s requested
reduction in hours. FastShip is entitled to recover “all reasonably incurred fees.” Hitkansut, 142
Fed. Cl. at 360 (citing Jean, 496 U.S. at 156). The court will examine the fees requested and
rates charged to determine if they are reasonable.

19
As a result, the court will halve the attorneys’ fees requested by FastShip between the
filing of the notice of appeal, August 30, 2019, see ECF No. 225, and the issuance of the Federal
Circuit’s decision, August 3, 2020, see ECF No. 226.

15
 V. Reduction of FastShip’s Requested Attorneys’ Fees and Expert Witness Fees

A. Attorneys’ Fees

The court must next determine whether the attorneys’ fees sought by FastShip should be
awarded in full. In its prior opinion, the court provided a detailed discussion of the process to
determine reasonable hourly rates for attorneys’ fees under fee-shifting statutes. FastShip V, 143
Fed. Cl. at 726-28. The court looked to the American Intellectual Property Law Association’s
2017 Report of the Economic Survey (“AIPLA Survey”). Id. at 727. The AIPLA Survey
provides a summary of “attorneys’ fees in intellectual property litigation, broken down by
geographic location, levels of experience, and other categories.” Id. The report provides an
average hourly rate, a median rate, and a 90th percentile rate for attorneys in Washington, D.C.
Id. at 728. The court considered each attorney’s level of experience and expertise, determining
that the third-quartile rates were appropriate for partners and associates. Id.

For FastShip’s two attorneys of record, Mark L. Hogge and Rajesh C. Noronha, FastShip
requested an average hourly rate of $835 and $669 respectively. FastShip V, 143 Fed. Cl. at
728-79. These rates were above the relevant average rates for partners and associates in
Washington, D.C. Id. The court therefore awarded a third-quartile hourly rate of $681 for Mr.
Hogge, totaling $1,568,819.70, and a third-quartile hourly rate of $555 for Mr. Noronha, totaling
$1,762,180.50. Id. The court next found that the requested fees for associates, Gary D. Mangels,
Matthew P. Larson, James F. Wiley, Jr., and Thomas R. Millar, and partners, Nicholas H.
Jackson and Shailendra K. Maheshwari, were reasonable because they were lower than the 2017
AIPLA Survey third-quartile hourly rates. Id. at 729. FastShip was awarded $1,431,206.69 in
fees for these attorneys. 20 Id.

The court next turned attorneys who billed fewer than 75 hours. FastShip V, 143 Fed. Cl.
at 729. With three exceptions, the court found that the requested fees were reasonable and
awarded $97,723.41. Id. at 729-30. As to the exceptions, partner, Kirk R. Ruthenberg billed at
$955 per hour, counsel, Charles R. Bruton billed at $740, and senior managing associate, Derek
A. Auito billed at $625. Id. The court found that “FastShip [did] not provide any details that
would justify . . . [the] high billing rates” and the court instead awarded them fees in accordance
with the 2017 AIPLA Survey—$681 per hour for Mr. Ruthenberg and Mr. Bruton, and $555 for
Mr. Auito. Id. The court therefore awarded $32,759.10 for their combined work. Id. at 730.

Finally, the court evaluated FastShip’s requested fees for support staff and paralegals.
FastShip V, 143 Fed. Cl. at 730. Because “[t]he [2017] AIPLA Survey d[id] not include
information for paralegals and support staff . . . the court [used] the Adjusted Laffey Matrix as a

20
The court also awarded fees for Mr. Carl P. Bretscher. FastShip V, 143 Fed. Cl. at 729.
Despite the fact that “the rate charged by Mr. Bretscher is below the AIPLA third quartile
number of $681 for a partner,” the court awarded fees for Mr. Bretscher at 60 percent of the
requested rate “due to the lack of detail on his background,” totaling $391,637.70. Id.

16
starting point” for determining appropriate rates. 21 Id. While the Laffey Matrix listed the
reasonable hourly rate for 2019 at $166, the court determined that “an average rate of $175 [was]
appropriate” due to the “technical nature of patent litigation and the experience of the identified
and explained support staff.” Id. (citation omitted). In total, support staff billed 2,451.50 hours
and the court awarded $429,012.50. Id. After conducting this analysis and calculations, the
court awarded FastShip $5,713,339.60 for attorneys’ fees. Id.

In its current motion, FastShip states that it “does not dispute the total awarded or the
rationale for the award” in the court’s 2019 decision. Pl.’s Mem. at 45. The government also
accepts the prior award amount. See Def.’s Resp. at 37-38; Def.’s Sur-Reply at 19 (“Both parties
agree that the Court correctly reduced the attorney and staff fees for the 2018 Requests.”
(citations omitted)). At issue is the supplemental requests for attorneys’ fees incurred since the
prior motion was filed. See Pl.’s Mem. at 45. In its motion, FastShip requests an additional
$634,104.50 for attorneys’ fees between March 8, 2019 and October 30, 2020. Pl.’s Mot. Ex 1.
FastShip also requests $138,857.00 for fees incurred between October 30, 2020 and January 24,
2021. 22 Pl.’s Suppl. Mem. Ex. A. In total, FastShip requests $772,961.50 for attorneys’ fees
stemming from the period of March 8, 2019 to January 24, 2021.

The government states that the court should reduce FastShip’s hourly rates in accordance
with its 2019 opinion, i.e., the court should look to the AIPLA Survey third-quartile hourly rates
based on the experience of attorneys and award an hourly rate of $175 for paralegals and support
staff. Def.’s Resp. at 37-38. While FastShip argues that its “rates are inherently reasonable,” it
requests that “if the Court decides to reduce the rates in accordance with its past practice[,] . . .
that the Court use the 2019 AIPLA Report of the Economic Survey . . . and the 2015-2020
Adjusted Laffey Matrix . . . for awarding fees . . . since these [rates] reflect updated industry
rates. Pl.’s Reply at 20. The government agrees with the use of these updated surveys. Def.’s
Sur-Reply at 19.

The 2019 AIPLA Survey lists the third-quartile hourly rate in Washington, D.C. for
partners at $700 and associates as $516. Pl.’s Mot. Ex. 3. The court accepts the use of the 2019
AIPLA Survey and Laffey Matrix and will adopt third-quartile hourly rates for attorneys and an
hourly rate of $175 for paralegals and support staff for hours incurred between March 8, 2019
and January 24, 2021.

The largest portion of FastShip’s requested attorneys’ fees come from Mr. Hogge and
Mr. Noronha. See Pl.’s Mot. Ex. 1; Pl.’s Suppl. Mem. Ex. A. Mr. Hogge billed 336.4 hours at a
rate that ranged between $995.00 to $1,080.00, totaling $347,938.00. Pl.’s Mot. Ex. 1; Pl.’s
Suppl. Mem. Ex. A. Mr. Noronha billed 450 hours at rates that ranged between $770 to $895,
totaling $379,679.00. In accordance with the 2019 AIPLA survey, the court finds that a third-
quartile hourly rate of $700 appropriate for Mr. Hogge and a rate of $516 for Mr. Noronha.

21
“The Adjusted Laffey Matrix for 2015-2019 list[ed] the reasonable hourly rates for
support staff and paralegals at $154, $157, $164, and $166, respectively.” FastShip V, 143 Fed.
Cl. at 730.
22
As the court previously stated, see supra, FastShip’s supplemental memorandum is
timely.

17
While lower than the requested rates, the court believes these rates satisfy the purpose of the
statute. After reductions by fifty percent for fees incurred during the second appeal, the court
awards FastShip $191,135.00 in fees for the work of Mr. Hogge and $169,248.00 in fees for the
work of Mr. Noronha. 23

FastShip also requests fees for attorneys, partner Kirk R. Ruthenberg, partner Nicholas H.
Jackson, and counsel Kevin R. Greenleaf. Pl.’s Mot. Ex 1. Mr. Ruthenberg billed 12.70 hours
with an average rate of $1,067.05 for a total of $13,551.50; Mr. Jackson billed 2.00 hours with
an average rate of $705.00 for a total of $1,410.00; Mr. Greenleaf billed 15.20 hours with an
average rate of $575.00 for a total of $8,740.00. Pl.’s Mot. Ex. 1; Pl.’s Reply at 18. The court
finds that a $700 hourly rate is reasonable for Mr. Ruthenberg and Mr. Jackson and a $516
hourly rate is reasonable for Mr. Greenleaf. 24 Therefore, the court awards FastShip $6,545.00
for the work of Mr. Ruthenberg, $700 for the work of Mr. Jackson, and $3,921.60 for the work
of Mr. Greenleaf.

For support staff and paralegals, FastShip requests fees for the work of lead legal
researcher Mary K. Ciziunas, lead paralegal Cheryl M. Bednarz, lead paralegal Karen H.
Johnson, and Hilliard T. Moore, Jr. Pl.’s Mot. Ex. 1. 25 Ms. Ciziunas billed 0.60 hours at an
hourly rate of $325; Ms. Bednarz billed 39.00 hours at hourly rates ranging from $365 to $400;
Ms. Johnson billed 14.90 hours at an hourly rate of ranging from $370 to $390; and Mr. Moore
billed 0.50 hours at a rate of $330.00. Pl.’s Mot Ex. 1; Pl.’s Suppl. Mem. Ex A. 26 The Adjusted
Laffey Matrix for 2015-2020 lists the reasonable hourly rates for support staff and paralegals at
$154, $157, $164, $166, and $173, respectively. Pl.’s Mot. Ex. 2. An upward adjustment
remains appropriate, and the court believes $175 is the reasonable hourly fee for paralegals and
support staff. The court awards FastShip $7,087.50 for the work from support staff and
paralegals.

23
Without the reduction for the hours between August 30, 2019 and August 3, 2020, the
court would have awarded $235,480.00 in fees for Mr. Hogge and $232,200.00 for Mr. Noronha.
However, during the second appeal, Mr. Hogge billed 126.70 hours and Mr. Noronha billed 244
hours. Pl.’s Mot. Ex. 1. The court, therefore, reduced the fees awarded by half during that
period, a $44,345.00 reduction for Mr. Hogge and a $62,952 reduction for Mr. Noronha.
24
Mr. Ruthenberg billed 6.7 hours during the second appeal, while all of Mr. Jackson’s
and Mr. Greenleaf’s hours were billed during that time. Pl.’s Mot. Ex. 1. Mr. Ruthenberg’s fees
will be reduced by $2345.00. Mr. Jackson’s and Mr. Greenleaf’s fee amounts are reduced
accordingly.
25
FastShip does not provide details about Mr. Moore’s background or role in litigation.
As the court noted in its 2019 opinion, Mr. Moore was listed as a “Discovery Engineer” in
FastShip’s initial motion. FastShip V, 143 Fed. Cl. at 730 n.24.
26
During the second appeal, Mr. Bednarz billed 23.4 hours, Mr. Moore billed 0.50 hours,
Mr. Johnson billed 4.5 hours, and Ms. Ciziunas billed 0.60 hours. The court reduced the
awarded fees accordingly.

18
 In total, the court awards FastShip $378,637.10 for attorneys’ fees incurred between
March 8, 2019 to January 24, 2021. When combined with the award of $5,713,339.60 for the
period before March 8, 2019, FastShip’s total award of attorneys’ fees is $6,091,976.70.

B. Expert Witness Fees

“Reasonable and entire compensation . . . includ[es] reasonable fees for expert
witnesses.” 28 U.S.C. § 1498(a). Fees for experts are considered to be presumptively reasonable
if they were incurred in an arm’s length transaction. See, e.g., Hitkansut, 142 Fed. Cl. at 365
(citing Lost Tree Vill. Corp. v. United States, 135 Fed. Cl. 92, 96 (2017). Further, “[f]ees
incurred and paid by a client at an agreed rate are presumptively reasonable.” Florida Rock
Indus., Inc. v. United States, 9 Cl. Ct. 285, 290 (1985).

In its prior opinion, the court discussed FastShip’s experts—Dr. Richard Garwin, Dr.
Chris McKesson, Ms. Krista Holt, and Mr. Nicholas Edmiston—and the reasonableness of their
fees. FastShip V, 143 Fed. Cl. at 730-34. The court found the fees requested for Dr. Garwin and
Dr. McKesson to be reasonable and awarded $196,264.75 for Dr. Garwin and $42,929.94 for Dr.
McKesson. Id. at 731. The court next analyzed the over $1.5 million requested for Ms. Holt and
GreatBridge Consulting, who served as damages experts for FastShip. See FastShip III, 131 Fed.
Cl. at 623 n.33. Ultimately, the court found “that the hours and time expended by Ms. Holt and
her team are not justified by the work documented or explained,” and awarded reduced fees
totaling $225,754.00 for Ms. Holt. FastShip V, 143 Fed. Cl. at 733. Finally, the court denied
fees requested for Mr. Edmiston because FastShip failed to provide documentary support for the
requested fee, and therefore the court could not tell “if the fees were negotiated at arm’s length,
if they were reasonable for the work performed, or any other details about the work of Mr.
Edmiston.” Id. at 734. In total, the court awarded FastShip $464,948.69 in expert witness fees.
Id.
In its present motion, FastShip requests that the court award $464,948.69 for expert fees,
including $196,264.75 for Dr. Garwin, $42,929.94 for Dr. McKesson, and $225,725.00 for Ms.
Holt. Pl.’s Mot. at 53-56. The government states that it “agrees to that amount.” Def.’s Resp. at
38. The court, therefore, adopts its prior analysis and awards FastShip $464,948.69 for expert
fees.
VI. Bill of Costs

The court must determine what amount of costs can reasonably and appropriately be
awarded to FastShip. See 28 U.S.C. §1498(a). The parties dispute whether FastShip was
required to renew its Bill of Costs on remand. FastShip argues that the Federal Circuit’s opinion
did not vacate the award of costs because it only stated that the Circuit “vacate[d] the fee award”
and did not mention costs. Pl.’s Bill of Costs at 1 (citing FastShip VI, 968 F.3d at 1340). 27 The
government states that FastShip was required to file a renewed Bill of Costs on remand and now
“is not entitled to recovery of its litigation costs because it did not timely renew [its] request.”
Def.’s Sur-Reply at 4. As the court stated, FastShip’s Bill of Costs was timely filed. See supra.
27
Plaintiff indicates that “it ha[d] already preserved its right to the award of litigation
costs” and only filed the present Bill of Costs because the government challenged its ability to
recover costs. Pl.’s Bill of Costs at 1.

19
Additionally, FastShip was required to file this renewed Bill of Costs. Section 1498(a) states
that “reasonable and entire compensation shall not include such costs and fees if the court finds
that the position of the United States was substantially justified.” 28 U.S.C. § 1498(a).
Therefore, an award of costs is contingent on the determination of whether the government’s
conduct was substantially justified. When the Federal Circuit vacated the court’s finding that the
government’s conduct was not substantially justified and stated that on remand this court “must
consider whether the government’s litigation conduct alone . . . was not substantially justified,”
the Circuit necessarily vacated both the award of fees and the award of costs previously granted
by this court. FastShip VI, 968 F.3d at 1339. There can be no award of costs in the absence of a
finding that the government’s litigation conduct was not substantially justified.

The government’s litigation conduct was not substantially justified; thus, an award of
costs is appropriate. See 28 U.S.C. § 1498(a). FastShip seeks $1,229,676.07, the same amount
previously granted by this court in its earlier opinion. Pl.’s Bill of Costs at 12; see also FastShip
V, 143 Fed. Cl. at 735. FastShip relies on the arguments advanced in its prior Bill of Costs to
support its requested costs. See Pl.’s Bill of Costs at 11. The parties had previously agreed to
$1,229,679.07. FastShip V, 143 Fed. Cl. at 734 (“Both parties agree that $1,096,193.08 of the
uncontested costs are recoverable. . . . And, both parties agree that a further $133,485.99 . . . are
reasonable and awardable.”). 28 FastShip does not seek, nor could the court award, costs
associated for either appeal. Id. at 735 (“[T]his court has no power to override a decision by the
appellate court.”); see also FastShip IV, 892 F.3d at 1311 (“Each party shall bear its own
costs.”); FastShip VI, 968 F.3d at 1340 (“No costs.”). Therefore, the court awards FastShip
$1,229,676.07 in costs. 29

CONCLUSION

For the foregoing reasons, plaintiff’s motion for attorneys’ fees and bill of costs is
GRANTED IN PART and DENIED IN PART. The court awards plaintiff $6,091,976.70 in
attorneys’ fees, $464,948.69 in expert fees, and $1,229,676.07 in costs. The Clerk shall enter
final judgment for FastShip for a total of $7,786,601.46.

It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge

28
In the present briefing, the government does not object to this amount, specifically.
Instead the government only challenges FastShip’s Bill of Costs as “improper” and “untimely,”
Def.’s Sur-Reply at 5, an argument that the court already resolved against the government, see
supra.
29
The court will not address the government’s argument that FastShip’s fees and costs
award cannot exceed “the apparent value of FastShip’s contingent fees[,] . . . $8,032,653.74,”
Def.’s Sur-Reply at 20, because the total award to FastShip does not exceed the contingent fee
number.

20