Haggart v. United States

Case: 21-1660 Document: 47 Page: 1 Filed: 06/22/2022

United States Court of Appeals
for the Federal Circuit
______________________

DANIEL HAGGART, KATHY HAGGART, HUSBAND
AND WIFE, FOR THEMSELVES AND AS REPRE-
SENTATIVES OF A CLASS OF SIMILARLY SITU-
ATED PERSONS, GORDON ARTHUR
WOODLEY, PERSONAL COUNSEL FOR KIT-
TINGER DEED CLAIMANTS, WESTPOINT PROP-
ERTIES, LLC, C/O FARAMARZ GHODDOUSSI,
CLEVELAND SQUARE, LLC, RC TC MERIDIAN
RIDGE, LLC, TWOSONS LLC, GRETCHEN CHAM-
BERS, WILLIAM AMES, DENNIS J. CRISPIN,
DEBLOIS PROPERTIES LLC, C/O DAVID AND
DEBRA DEBLOIS, STAR EVANS, MICHAEL B. JA-
COBSEN, FRANCES JANE LEE, SUSAN B. LONG,
CLAUDIA MANSFIELD, FREDERICK P. MILLER,
SUSAN L. MILLER, PBI ENTERPRISES, LLC, MI-
CHAEL G. RUSSELL, ELANA RUSSELL, JAMES M.
SATHER, KELLY J. SATHER, JAMES E. STRANG,
D. MICHAEL YOUNG, JULIA H. YOUNG, MOLLY A.
JACOBSEN, LESLIE MILSTEIN, ALISON L. WEBB,
PATRICIA STRANG,
Plaintiffs

DENISE LYNN WOODLEY,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2021-1660
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2 HAGGART v. US

______________________

Appeal from the United States Court of Federal Claims
in No. 1:09-cv-00103-CFL, Senior Judge Charles F. Lettow.
______________________

Decided: June 22, 2022
______________________

GORDON ARTHUR WOODLEY, Bellevue, WA, argued for
plaintiff-appellant.

BRIAN C. TOTH, Environment and Natural Resources
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by TODD KIM.
______________________

Before PROST, REYNA, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
In 2009, the United States Court of Federal Claims
(Claims Court) certified a class of landowners seeking just
compensation from the United States under the Fifth
Amendment to the Constitution for what they alleged was
a government taking of their property. Two of the class
members are spouses Denise and Gordon Woodley, who
sought compensation for taking of property they jointly
own as community property. After approval of a settlement
agreement that required payment of compensation to the
class under the Uniform Relocation Assistance and Real
Property Acquisition Policies Act (URA), 42 U.S.C.
§ 4654(c), the Woodleys sought attorney’s fees for work per-
formed by counsel they jointly hired. The Claims Court
awarded those fees, which are not at issue here.
What is at issue is a motion filed separately by Denise
Woodley for fees and expenses. In the motion, she sought
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HAGGART v. US 3

attorney’s fees for work performed by her attorney-spouse,
Gordon Woodley, joint owner of the property at issue and
co-plaintiff in the case, explaining that he was one of her
lawyers throughout the proceeding, and she also sought to
recoup certain expenses. The Claims Court denied the mo-
tion, reasoning that pro se litigants cannot recover attor-
ney’s fees and expenses and that the work of Gordon
Woodley, as a co-plaintiff and joint owner of the property
at issue, was pro se and thus not compensable. Haggart v.
United States, 149 Fed. Cl. 651, 661–62 (2020) (Claims
Court Op.); Haggart v. United States, 151 Fed. Cl. 58, 65–
66 (2020) (Reconsideration Decision).
Denise Woodley appeals. We affirm the Claims Court’s
determination that she is not entitled to attorney’s fees for
the legal work performed by her attorney-spouse in this
case. But we vacate the court’s determination that she is
not entitled to any expenses on that basis, and we remand
for a determination of the proper reimbursement, if any, of
the claimed expenses.
I
In 2009, the Claims Court certified a class of landown-
ers who owned property along a railroad corridor, in the
State of Washington, that was converted to a recreational
trail under the National Trails System Act. See Haggart v.
Woodley, 809 F.3d 1336, 1340–41 (Fed. Cir. 2016) (Haggart
II). 1 Denise and Gordon Woodley, who jointly owned prop-
erty along the railroad, were members of the class seeking

1 The procedural history of this case is extensive.
E.g., Haggart v. United States, 116 Fed. Cl. 131 (2014)
(Haggart I), vacated and remanded sub nom. Haggart v.
Woodley, 809 F.3d 1336 (Fed. Cir. 2016) (Haggart II); Hag-
gart v. United States, 136 Fed. Cl. 70 (2018) (Haggart III),
aff’d, 943 F.3d 943 (Fed. Cir. 2019) (Haggart IV). We note
only relevant aspects here.
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just compensation for the alleged taking. Counsel was ap-
pointed to represent the class; in addition, Gordon Wood-
ley, an attorney, represented a subclass of claimants from
late 2009 until early 2014, a representation recognized in
a fee-sharing agreement he had with class counsel.
In late 2013, class counsel and the government reached
a tentative settlement agreement, under which the class
would receive $110 million in principal plus 4.2% interest
and $2.58 million for attorney’s fees. Haggart II, 809 F.3d
at 1342. Class counsel filed a motion seeking to be paid a
30% contingent fee as well, to come out of the principal and
interest under the common fund doctrine. Id. at 1341 &
n.4. The Woodleys objected to that request and also to hav-
ing been denied access to the appraisal data that class
counsel was using to calculate each claimant’s share of the
principal. Id. at 1342. The Claims Court rejected the
Woodleys’ challenges and approved the settlement agree-
ment and a contingent fee award of approximately $33 mil-
lion, representing roughly 24% of the common fund. Id. at
1356 & n.20.
The Woodleys appealed. They filed an informal open-
ing brief in this court, proceeding pro se, U.S. Appx. 132–
55, but they subsequently hired David Frederick and his
firm to represent them, U.S. Appx. 191–93. We vacated the
Claims Court’s decision. We held that the award to class
counsel of a substantial portion of the class’s compensation
was impermissible under the URA and that the Woodleys
were entitled to see certain documents relevant to the cal-
culation of each class member’s compensation, and we re-
manded for further proceedings. Haggart II, 809 F.3d at
1351, 1359.
On remand, the Claims Court ultimately approved an
agreement consistent with our ruling. Haggart III,
136 Fed. Cl. at 81. We affirmed. Haggart IV, 943 F.3d at
952. The government then paid the principal, interest, and
fees pursuant to the settlement agreement.
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HAGGART v. US 5

At that point, the Claims Court entertained additional
motions for attorney’s fees. One such motion, filed by the
Woodleys together, sought more than $1 million for reim-
bursement of fees and costs they incurred to Mr. Frederick
and his firm beginning in February 2015. A second motion,
filed by Denise Woodley separately, sought an additional
payment of roughly $371,800, mostly for attorney’s fees
covering legal work by Gordon Woodley (through his law
firm, Woodley Law) from February 2014 to February 2020.
Applicant Denise Lynn Woodley’s Brief in Support of Re-
ceiving her URA Expenses at 4–5, Haggart v. United
States, No. 1:09-cv-00103-CFL (Fed. Cl. Feb. 28, 2020),
ECF No. 353–1. That motion also sought reimbursement
of $10,674.16 in expenses—a $505 Federal Circuit filing fee
paid in June 2014 (in the Woodleys’ first appeal), a $169.16
fee for URA legislative history research conducted by a
third party, and a $10,000 appraisal fee to assess the value
of the property taken.
The Claims Court, while awarding attorney’s fees to
the Woodleys for the work of Mr. Frederick and his firm,
denied Denise Woodley’s request for fees for her husband’s
legal work starting in February 2014. Claims Court Op.,
149 Fed. Cl. at 661–62. The Claims Court explained that
fee-shifting statutes such as the URA generally do not al-
low pro se litigants to recover legal fees and costs, and it
denied Denise Woodley’s request on two bases: first, the
Woodleys, throughout the litigation, “referred to them-
selves as pro se litigants”; and second, the underlying tak-
ings claim concerned property jointly owned by the
Woodleys, and so Gordon Woodley, in all his actions repre-
senting the interests of his wife, was “simultaneously rep-
resenting his own interests [as a co-plaintiff] on a pro se
basis.” Id. at 662. Denise Woodley sought reconsideration
of that decision and submitted supplemental documenta-
tion to show fees to Woodley Law for more than $473,700
through October 2020. The court denied reconsideration,
Reconsideration Decision, 151 Fed. Cl. at 65–66, while
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6 HAGGART v. US

increasing the fee award to the Woodleys for the work of
Mr. Frederick and his firm, id. at 67.
The Claims Court issued a final judgment on August
13, 2020. Denise Woodley timely appealed that judgment.
The Claims Court issued an amended final judgment on
November 25, 2020, and Denise Woodley timely transmit-
ted an amended notice of appeal. The appeal is limited to
the denial to Denise Woodley of (1) fees for Gordon Wood-
ley’s legal work from 2014 to 2020 and (2) reimbursement
of certain expenses. We have jurisdiction over her appeal
under 28 U.S.C. § 1295(a)(3).
II
This court reviews the Claims Court’s ruling on attor-
ney’s fees for an abuse of discretion, a review that includes
de novo resolution of underlying legal issues. See Biery v.
United States, 818 F.3d 704, 710 (Fed. Cir. 2016). Denise
Woodley claims entitlement to the fees at issue under the
URA, which provides:
The court rendering a judgment for the plaintiff in
a proceeding brought under section 1346(a)(2) or
1491 of title 28, awarding compensation for the tak-
ing of property by a Federal agency, or the Attorney
General effecting a settlement of any such proceed-
ing, shall determine and award or allow to such
plaintiff, as a part of such judgment or settlement,
such sum as will in the opinion of the court or the
Attorney General reimburse such plaintiff for his
reasonable costs, disbursements, and expenses, in-
cluding reasonable attorney, appraisal, and engi-
neering fees, actually incurred because of such
proceeding.
42 U.S.C. § 4654(c). We see no legal error or other abuse of
discretion in the Claims Court’s rejection of Denise Wood-
ley’s request for fees under this provision.
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HAGGART v. US 7

It is accepted here that, under the URA as more gener-
ally, a pro se litigant who is not an attorney cannot collect
attorney’s fees. See, e.g., Kay v. Ehrler, 499 U.S. 432, 435–
36 & n.5 (1991) (in non-URA context, adopting, and noting
multi-circuit agreement on, denial of fees to non-attorney
pro se litigants); Naekel v. Dep’t of Transportation, 845
F.2d 976, 980–81 (Fed. Cir. 1988) (denying fees to non-at-
torney pro se litigant under Back Pay Act and Equal Access
to Justice Act (EAJA)). Importantly for the present case,
the Supreme Court extended that principle to an attorney
pro se litigant in Kay v. Ehrler, denying fees for civil-rights
cases covered by the authorization of “a reasonable attor-
ney’s fee” in 42 U.S.C. § 1988. 499 U.S. at 433, 437–38.
The Court noted that “the word ‘attorney’ assumes an
agency relationship, and it seems likely that Congress con-
templated an attorney-client relationship as the predicate
for an award under § 1988.” Id. at 435–36 (footnotes omit-
ted). And the Court explained that “[t]he statutory policy
of furthering the successful prosecution of meritorious
claims is better served by a rule that creates an incentive
to retain [independent] counsel” and “[a] rule that author-
izes awards of counsel fees to pro se litigants—even if lim-
ited to those who are members of the bar—would create a
disincentive to employ counsel whenever such a plaintiff
considered himself competent to litigate on his own behalf.”
Id. at 438.
The rationale of Kay is not limited to § 1988, but has
been applied to other fee provisions. See, e.g., Kooritzky v.
Herman, 178 F.3d 1315, 1317–21 (D.C. Cir. 1999) (denying
fees to attorney-litigant under EAJA, overruling pre-Kay
circuit precedent); Burka v. U.S. Dep’t of Health & Human
Services, 142 F.3d 1286, 1289–90 (D.C. Cir. 1998) (denying
fees to attorney-litigant under Freedom of Information Act
(FOIA)); Ray v. U.S. Dep’t of Justice, 87 F.3d 1250, 1251–
52 (11th Cir. 1996) (applying Kay to FOIA fees provision).
And we have reached the same result under a provision not
sharing the policy recited in Kay—namely, Federal Rule of
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8 HAGGART v. US

Civil Procedure 37, which authorizes recovery of “reasona-
ble expenses incurred in making” a motion regarding dis-
covery misconduct. Pickholtz v. Rainbow Technologies,
Inc., 284 F.3d 1365, 1375–76 (Fed. Cir. 2002). We relied in
Pickholtz on the “incurred” language, concluding that “one
cannot ‘incur’ fees payable to oneself.” Id. at 1375; see also
Massengale v. Ray, 267 F.3d 1298, 1302–03 (11th Cir.
2001) (same for Federal Rule of Civil Procedure 11).
Denise Woodley makes essentially two arguments for
the requested URA fees here. First, she argues that the
URA should be distinguished from other fee statutes be-
cause the URA was enacted with the purpose of making
litigants whole. Second, she argues that, even if the Kay
principle applies to the URA, it should not apply to her in
this case because she was not a pro se litigant. We address
those assertions in turn.
A
We see no sound reason to read the URA’s fee provision
to authorize an attorney pro se litigant to receive attorney’s
fees when 42 U.S.C. § 1988 and other fee-shifting statutes
do not. For purposes of calculating the amount of a reason-
able attorney’s fee under the URA, we have concluded that
“[n]othing in the language or legislative history of the URA
suggests that it should receive a different construction
than other fee-shifting statutes.” Bywaters v. United
States, 670 F.3d 1221, 1228 (Fed. Cir. 2012). Here, with
regard to allowing fees to attorney pro se litigants, we sim-
ilarly have been pointed to nothing in the statutory lan-
guage or legislative history that persuasively distinguishes
other fee-shifting statutes for which such fees have been
held unavailable.
Denise Woodley points to this court’s observation in
Haggart II—where we rejected the contingent-fee award to
be taken out of the class recovery—that “the URA provision
was expressly enacted with the primary purpose of render-
ing property owners whole.” 809 F.3d at 1359. But a make-
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HAGGART v. US 9

whole purpose does not make the URA relevantly different
from other statutes where pro se representation is not com-
pensable. In Kay itself, the Supreme Court referred to leg-
islative history reciting recognition of the elementary
economic fact that “private citizens needed fee-shifting pro-
visions to be made whole again.” Kay, 499 U.S. at 436 n.8
(citation omitted). Similarly, in Naekel, we explained that,
although the Back Pay Act was enacted with the purpose
of “mak[ing] the wronged employee reasonably financially
whole,” such a legislative purpose does not mean that pro
se litigants may receive fees for their own expenditures of
time and energy representing themselves in litigation to
secure the back-pay remedy—whose net benefit is neces-
sarily reduced by those expenditures. 845 F.2d at 979–80.
Nor is a different outcome on this issue supported by
the fact that the URA uses “shall” in its fee provision, as
quoted above, whereas § 1988 and some other fee statutes
use “may.” See 42 U.S.C. § 1988; 5 U.S.C. § 552(a)(4)(E)
(FOIA). The Court in Kay did not rely on (or even discuss)
the discretion inherent in “may” in its holding that a pro se
litigant may not recover attorney’s fees; it categorically
barred pro se litigants, as a class, from recovering attor-
ney’s fees for time spent pursuing their own cases. Moreo-
ver, both this court, before Kay, and the D.C. Circuit, after
Kay, held pro se litigants barred from receiving fees under
the EAJA fee provision, which provides that fees “shall” be
awarded where the standards are met. 28 U.S.C.
§ 2412(d)(1)(A); see Naekel, 845 F.2d at 981; Kooritzsky, 178
F.3d at 1320–21. Accordingly, we conclude that the rule of
Kay applies to the URA.
B
We also affirm the Claims Court’s application of that
rule to this case. The underlying claim in this case is about
the taking of a property interest that is owned jointly by
the Woodleys together as community property, and they
pursued that essentially unitary claim jointly, as co-
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10 HAGGART v. US

plaintiffs, in the litigation. Based on the community-prop-
erty law of Washington, the government contends that “the
Woodleys share the property that is the subject of the liti-
gation in which they are both plaintiffs,” “[Denise] Woodley
has no legal claim distinct from [Gordon] Woodley’s claim,
and they shared the same compensation.” U.S. Br. 38.
Denise Woodley does not contest those premises in her
opening brief or reply brief. 2 On those premises, Kay is
sensibly applied to treat the representation pursuing the
essentially unitary claim as pro se representation on behalf
of the joint owners: in this situation, an “attorney” who can
be compensated under Kay must be independent of the
joint-owner unit.
The Claims Court properly so held. It explained that
the Woodleys’ “underlying claim concerns property jointly
owned by them” and thus, “while Mr. Woodley may have
assumed the role of representing his wife, he could only do
so by simultaneously representing his own interests on a
pro se basis.” Claims Court Op., 149 Fed. Cl. at 662. Those
determinations reflect the uncontested premises defining
the nature of the joint interest and claim. And they justify
the Claims Court’s application of Kay to bar the fee claim
here.
Denise Woodley argues otherwise by relying on Rickley
v. County of Los Angeles, 654 F.3d 950 (9th Cir. 2011). The
background fact in Rickley was that a married couple had
filed complaints with the County of Los Angeles concerning
building and safety violations affecting their jointly-owned
property, but the Rickley case did not involve a property
claim, let alone a joint claim about that property. Id. at

2 There has been no suggestion in this appeal that
the takings compensation awarded was only for Denise
Woodley’s share of the property. Nor has it been suggested
to us that the Woodleys’ interests in the property could
have been severed to yield distinct legal claims.
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HAGGART v. US 11

951–52. Rather, after the County allegedly harassed the
couple in retaliation for the complaints, Rickley, as sole
plaintiff, brought an action against the County under 42
U.S.C. § 1983, and Rickley’s spouse served as her attorney.
Id. at 952. When Rickley succeeded in her § 1983 suit, she
sought attorney’s fees for work performed by her spouse,
and the Ninth Circuit held that Kay did not bar an award
of such fees, stating that “a plaintiff who is represented by
her attorney-spouse in a successful civil rights action may
be awarded ‘a reasonable attorney’s fee as part of the costs’
under § 1988.” Id. at 956; see also id. (“There are times
when an attorney-spouse may be the only attorney, or the
best attorney, available to the plaintiff.”).
The Rickley conclusion does not apply to the materially
different circumstances here. Rickley was a sole plaintiff
suing for her own, distinct injury—and that was so even if
Rickley’s (non-plaintiff) attorney-spouse might have suf-
fered a separate injury of the same character arising out of
action directed at both spouses. Id. at 952. In contrast, the
claim in this case asserts, for both spouses as plaintiffs, a
joint claim for compensation for loss of jointly owned com-
munity property. Finding Kay to govern this situation is
not to question the general principle articulated in Rickley
that spouse attorneys are not categorically excluded from a
fee award by Kay. 3
Further, the record in this case does not demonstrate
the existence of an attorney-client relationship between
Denise and Gordon Woodley. As in Kay, the word

3 Nor is it to question the First Circuit’s recognition
that Kay does not bar an award of fees to a prevailing plain-
tiff under § 1988 just because the representation is pro-
vided by a co-plaintiff who is an attorney, in a situation
where the plaintiffs were not pursuing a joint property
claim. Schneider v. Colegio de Abogados de Puerto Rico,
187 F.3d 30, 32 (1st Cir. 1999).
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12 HAGGART v. US

“attorney” in the URA indicates that Congress contem-
plated an attorney-client relationship for awarding fees.
See 499 U.S. at 435–36; 42 U.S.C. § 4654(c). But as the
Claims Court noted, “the Woodleys have in the past re-
ferred to themselves as pro se litigants.” Claims Court Op.,
149 Fed. Cl. at 662. And Denise Woodley did not refer to
Gordon Woodley as her attorney in the Claims Court. U.S.
Appx. 89–90. Nor does the unsigned agreement provided
by the Woodleys suffice to show the existence of an attor-
ney-client relationship. Woodley Appx. 260. This is con-
trary to Rickley, where it was clear that an attorney-client
relationship existed between the plaintiff and her spouse
attorney. 654 F.3d at 956–57. We cannot conclude the
same about the Woodleys in this case.
For those reasons, we agree with the Claims Court’s
denial of fees to Denise Woodley under the Kay rule about
pro se representation, applied to the URA. We need not
and do not reach a dispute between the parties about
whether Denise Woodley “actually incurred”—in the lan-
guage of the URA—an obligation to pay attorney’s fees to
Gordon Woodley. And we see no developed argument for
any non-URA basis for the fee award that Denise Woodley
seeks. We therefore affirm the denial of fees.
III
We reach a different conclusion about Denise Wood-
ley’s argument that she is entitled to reasonable expenses,
independent of her recovery of attorney’s fees. Woodley’s
Opening Br. 22. Denise Woodley has sought (here and in
the Claims Court) recovery for three expenses assertedly
incurred during the litigation: (1) the cost of obtaining an
appraisal of the property at issue; (2) the Woodleys’ filing
fee in their 2014 pro se appeal to this court, challenging the
size of class counsel’s contingent fee; and (3) a fee for URA
legislative-history research, paid to a third party.
The URA provides that a court shall award “reasonable
costs, disbursements, and expenses, including
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HAGGART v. US 13

reasonable . . . appraisal . . . fees, actually incurred” be-
cause of the proceeding. 42 U.S.C. § 4654(c). The Claims
Court undertook no independent analysis of the reasona-
bleness of the claimed expenses, but denied them simply as
“related legal costs” along with the attorney’s fees sought.
Claims Court Op., 149 Fed. Cl. at 661–62. The statute,
however, treats fees and expenses separately, and the gov-
ernment has pointed to no authority establishing that pro
se litigants may not recover their reasonable expenses. In
particular, Kay does not support such a proposition; the
Court in Kay acknowledged that the pro se petitioner had
requested and recovered expenses, and the appeal con-
cerned only the denial of attorney’s fees. 499 U.S. at 434
n.3. And this court explained in Naekel that recovery of
reasonable expenses under the fee-shifting provision of the
EAJA, which provides for a reimbursement of costs “in-
curred,” is “not dependent on whether [petitioner] was rep-
resenting himself.” 845 F.2d at 981; see also Pickholtz, 284
F.3d at 1371, 1374 (noting that the district judge allowed
recovery for a pro se litigant’s out-of-pocket expenses under
Fed. R. Civ. P. 37, and only the fees issue was on appeal).
We hold that Denise Woodley may recover reasonable
expenses even though she may not recover the attorney’s
fees she seeks for Gordon Woodley’s work. We vacate the
denial of the claimed expenses and remand so that the
Claims Court can address the reasonableness of the three
expenses for which she seeks reimbursement. 4

4 We understand Denise Woodley’s appeal before us
to argue for post-judgment interest on any award of fees or
expenses—“from August 13, 2020, the date on which the
correct judgment should have been entered.” Woodley’s
Opening Br. 34–35 (footnote omitted). Although the
Claims Court rejected an entitlement to interest, it did so
in discussing a fee award and without a clear focus on post-
judgment interest. Reconsideration Decision, 151 Fed. Cl.
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14 HAGGART v. US

IV
For the foregoing reasons, we affirm the district court’s
denial of Denise Woodley’s motion for attorney’s fees for
Gordon Woodley’s work. We vacate the denial of the re-
quest for recovery of her reasonable expenses. We remand
for further proceedings consistent with this opinion.
The parties shall bear their own costs.
AFFIRMED IN PART, VACATED IN PART, AND RE-
MANDED

at 65–66. On remand, the Claims Court, if it awards ex-
penses, should consider any properly preserved request for
interest.