United States Court of Appeals
`for the Federal Circuit
`______________________
`
`DANIEL HAGGART, KATHY HAGGART, ET AL.,
`FOR THEMSELVES AND AS REPRESENTATIVES
`OF A CLASS OF SIMILARLY SITUATED PERSONS,
`Plaintiffs-Appellees
`
`v.
`
`UNITED STATES,
`Defendant-Appellant
`______________________
`
`2018-1757
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:09-cv-00103-CFL, Senior Judge Charles F. Lettow.
`______________________
`
`Decided: November 27, 2019
`______________________
`
`CARTER GLASGOW PHILLIPS, Sidley Austin LLP, Wash-
`ington, DC, argued for plaintiffs-appellees Daniel Haggart,
`Kathy Haggart, Cleveland Square, LLC, RC TC Meridian
`Ridge LLC, TWOSONS LLC, Dennis J. Crispin, Gretchen
`Chambers, DeBlois Properties LLC, Star L. Evans, Mi-
`chael B. Jacobsen, Molly A. Jacobsen, Frances Jane Lee,
`Susan B. Long, Claudia Mansfield, Frederick P. Miller, Su-
`san L. Miller, Leslie Milstein, PBI Enterprises LLC, Mi-
`chael G. Russell, Elana Russell, James M. Sather, Kelly J.
`Sather, James E. Strang, Patricia Strang, Alison L. Webb,
`D. Michael Young, Julia H. Young, Faramarz Ghoddoussi,
`
`

`

`2
`
`HAGGART v. UNITED STATES
`
`Westpoint Properties, LLC. Also represented by THOMAS
`SCOTT STEWART, ELIZABETH MCCULLEY, Stewart Wald &
`McCulley, LLC, Kansas City, MO; STEVEN WALD, St. Louis,
`MO. Plaintiffs-appellees Cleveland Square, LLC, RC TC
`Meridian Ridge LLC, TWOSONS LLC, Dennis J. Crispin,
`Gretchen Chambers, DeBlois Properties LLC, Star L. Ev-
`ans, Michael B. Jacobsen, Molly A. Jacobsen, Frances Jane
`Lee, Susan B. Long, Claudia Mansfield, Frederick P. Mil-
`ler, Susan L. Miller, Leslie Milstein, PBI Enterprises LLC,
`Michael G. Russell, Elana Russell, James M. Sather, Kelly
`J. Sather, James E. Strang, Patricia Strang, Alison L.
`Webb, D. Michael Young, Julia H. Young also represented
`by LOUIS DAVID PETERSON, Hillis, Clark, Martin & Peter-
`son PS, Seattle, WA. Plaintiffs-appellees Faramarz Ghod-
`doussi, Westpoint Properties, LLC also represented by
`RICHARD SANDERS, Tacoma, WA.
`
` DAVID CHARLES FREDERICK, Kellogg, Huber, Hansen,
`Todd, Evans & Figel, PLLC, Washington, DC, argued for
`plaintiffs-appellees Gordon Arthur Woodley, Denise Lynn
`Woodley. Also represented by JOANNA ZHANG.
`
` ERIC GRANT, Environment and Natural Resources Di-
`vision, United States Department of Justice, Washington,
`DC, argued for defendant-appellant. Also represented by
`JEFFREY H. WOOD, BRIAN C. TOTH, JEFFREY B. CLARK,
`WILLIAM B. LAZARUS, MARY GABRIELLE SPRAGUE.
` ______________________
`
`Before PROST, Chief Judge, WALLACH and HUGHES, Circuit
`Judges.
`WALLACH, Circuit Judge.
`Appellees Daniel Haggart, Kathy Haggart, et al. (col-
`lectively, “Landowners”) filed this “rails-to-trails” class ac-
`tion against the United States (“Government”), claiming
`that the Government, through the National Trails System
`Act, effected a Fifth Amendment taking of Landowners’
`
`

`

`HAGGART v. UNITED STATES
`
`3
`
`reversionary rights to property underlying railroad ease-
`ments owned by the BNSF Railway Company. On remand,
`the U.S. Court of Federal Claims granted a motion to en-
`force a settlement agreement (“the Settlement Agree-
`ment”) that the parties had previously negotiated and
`agreed upon. Haggart v. United States (Haggart VI), 131
`Fed. Cl. 628, 643 (2017) (J.A. 1–16). Thereafter, the Court
`of Federal Claims entered a partial final judgment pursu-
`ant to Rule 54(b) of the Rules of the U.S. Court of Federal
`Claims, approving the Settlement Agreement, but defer-
`ring determination on the amount of attorney fees and
`costs to award class counsel under the Uniform Relocation
`Assistance and Real Property Acquisition Policies Act of
`1970 (“URA”). Haggart v. United States (Haggart VIII),
`136 Fed. Cl. 70, 81 (2018) (J.A. 28–39); see J.A. 40
`(Rule 54(b) Judgment).
`The Government appeals. We have jurisdiction pursu-
`ant to 28 U.S.C. § 1295(a)(3) (2012). We affirm.
`BACKGROUND1
`In 2013, the Government and Landowners negotiated
`and agreed to the terms of the Settlement Agreement. See
`J.A. 2903–04; see also J.A. 2931–62 (Settlement Agree-
`ment).2 In May 2014, the Court of Federal Claims
`
`
`1 The procedural history of this case is extensive, in-
`volving seven reported opinions by the Court of Federal
`Claims and a prior opinion by this court. We provide a
`summary of only those proceedings relevant here, which
`occurred after we remanded this case to the Court of Fed-
`eral Claims in Haggart v. Woodley (Haggart V), 809 F.3d
`1336 (Fed. Cir. 2016). We assume familiarity with the
`prior procedural history of this case, a thorough recitation
`of which may be found in Haggart V. See id. at 1340–43.
`2 Pursuant to the Settlement Agreement, the Gov-
`ernment agreed to pay Landowners $140,541,218.69,
`
`

`

`4
`
`HAGGART v. UNITED STATES
`
`approved the Settlement Agreement and awarded class
`counsel $33,172,243.74 in attorney fees under the common
`fund doctrine,3 in addition to the attorney fees set forth in
`the Settlement Agreement. See Haggart v. United States
`(Haggart IV), 116 Fed. Cl. 131, 148–49 (2014). In Hag-
`gart V, we vacated the Court of Federal Claims’ approval
`of the Settlement Agreement and award of common-fund
`attorney fees. 809 F.3d at 1359. We held that the Court of
`Federal Claims “erred in approving a settlement agree-
`ment where class counsel withheld critical
`infor-
`mation . . . necessary for . . . class members to make an
`informed decision,” “such as the spreadsheets detailing the
`precise methodology used to calculate the fair market value
`of the properties.” Id. at 1351. We also held that the Court
`of Federal Claims erred in awarding class counsel fees un-
`der the common fund doctrine, because the URA addresses
`the “inequity” that would warrant the doctrine’s applica-
`tion, by “provid[ing] class counsel with reasonable fees as
`compensation for their efforts.” Id. at 1357–58; see 42
`U.S.C. § 4654(c) (2012).
`
`
`consisting of: $110,000,000.00 in principal; $27,961,218.69
`in annual interest, “based upon an estimated date of pay-
`ment of May 31, 2014”; and $2,580,000.00 in statutory at-
`torney fees and costs under the URA. J.A. 2932–33.
`3 Under the common fund doctrine, “a litigant or a
`lawyer who recovers a common fund for the benefit of per-
`sons other than himself or his client is entitled to a reason-
`able attorney[] fee from the fund as a whole.” US Airways,
`Inc. v. McCutchen, 569 U.S. 88, 96 (2013) (quoting Boeing
`Co. v. Van Gemert, 444 U.S. 472, 478 (1980)); see Knight v.
`United States, 982 F.2d 1573, 1580 (Fed. Cir. 1993) (“Re-
`covery under the common fund doctrine stems from the eq-
`uitable power of a court to create the obligation for attorney
`fees against benefits some received as a result of the advo-
`cacy of another.”).
`
`

`

`HAGGART v. UNITED STATES
`
`5
`
`On remand, the Court of Federal Claims conducted a
`hearing in August 2016, discussing: (1) the status of the
`case; (2) the necessary steps before the Court of Federal
`Claims could hold a second fairness hearing, including
`what information needed to be disclosed to the class mem-
`bers; and (3) how to deal with potential objectors.
`J.A. 5047–102 (Hearing Transcript). In the succeeding
`months, the parties engaged in extensive motions practice.
`See, e.g., J.A. 5106–13 (Request for a Trial Setting), 5277–
`302 (Motion for Partial Summary Judgment), 5483–90
`(Motion for Partial Summary Judgment), 5547–50 (Motion
`for Summary Judgment), 5560–65 (Motion for Summary
`Judgment), 5814–20 (Cross Motion for Summary Judg-
`ment), 5826–29 (Motion for Summary Judgment). In
`March 2017, the Court of Federal Claims heard arguments
`on the parties’ motions. J.A. 7436–515 (Hearing Tran-
`script). The following month, class counsel moved to en-
`force the Settlement Agreement. J.A. 7516–42 (Motion to
`Enforce the Settlement Agreement).
`In May 2017, the Court of Federal Claims granted class
`counsel’s Motion to Enforce the Settlement Agreement and
`denied all other outstanding motions. Haggart VI, 131
`Fed. Cl. at 633; see J.A. 7543–44 (Judgment). The court
`concluded that “the Settlement Agreement was and re-
`mains a binding and enforceable contract” that “[t]he
`[G]overnment cannot avoid . . . even if it now has had a
`change of heart and wishes to back out[.]” Haggart VI, 131
`Fed. Cl. at 641. In a footnote, the Court of Federal Claims
`rejected the Government’s argument that the parties had
`“abandoned” the Settlement Agreement, finding the claim
`to be “manifestly inconsistent with the [G]overnment’s pre-
`vious positions before the court of appeals and th[e C]ourt
`[of Federal Claims.]” Id. at 641 n.11.
`In July 2017, the Government filed a motion for recon-
`sideration, arguing that the parties had abandoned the
`Settlement Agreement, as evidenced by their conduct on
`remand. J.A. 8174, 8209–14. Following a hearing in
`
`

`

`6
`
`HAGGART v. UNITED STATES
`
`August 2017, the Court of Federal Claims denied the Gov-
`ernment’s motion, see Haggart v. United States (Hag-
`gart VII), 133 Fed. Cl. 568, 572 (2017) (J.A. 17–27), finding
`that “the [G]overnment ha[d] not met its burden of demon-
`strating that the parties unequivocally intended to aban-
`don the Settlement Agreement,” id. at 576.
`In August 2017, class counsel filed a motion for prelim-
`inary approval, notice, and a fairness hearing on the Set-
`tlement Agreement. J.A. 8684–93. In October 2017, the
`Court of Federal Claims preliminarily approved the Settle-
`ment Agreement and “also approve[d] the proposed plan
`for notice and a Notice of Settlement to be mailed to the
`class members under that plan.” J.A. 9159; see J.A. 9160–
`69 (Notice). In December 2017, the Court of Federal
`Claims conducted a fairness hearing, J.A. 9726–863 (Hear-
`ing Transcript), at which no class member objected to the
`Settlement Agreement, see J.A. 9739 (counsel for class
`members Faramarz Ghoddoussi and Westpoint Properties,
`LLC explaining that his clients were “in support of the
`[S]ettlement [Agreement]”), 9739 (counsel for an independ-
`ent group of class members explaining that “[a]ll members
`of my group have approved th[e Settlement Agreement]
`and we would like to see it approved by [the Court of Fed-
`eral Claims]”), 9797–98 (class members explaining that
`they supported approval of the Settlement Agreement),
`9802–07 (same). In January 2018, the Court of Federal
`Claims issued an opinion and order, approving the Settle-
`ment Agreement as “procedurally” and “substantively
`fair,” Haggart VIII, 136 Fed. Cl. at 76–77, and entered a
`partial final judgment pursuant to Rule 54(b) “in the total
`amount of $159,636,521.65, consisting of $110,000,000 in
`principal and $49,636,521.65 in interest,” id. at 81. The
`Court of Federal Claims deferred determining the amount
`of attorney fees and costs until “[a]fter all proceed-
`ings . . . have been completed and the court’s judgment is
`final[.]” Id.
`
`

`

`HAGGART v. UNITED STATES
`
`7
`
`DISCUSSION
`I. Standard of Review and Legal Standard
`On remand, the Court of Federal Claims granted class
`counsel’s Motion to Enforce the Settlement Agreement af-
`ter reviewing the motion under the standard for summary
`judgment. See Haggart VI, 131 Fed. Cl. at 636–37 (setting
`forth the standard for summary judgment), 639–43 (treat-
`ing class counsel’s Motion to Enforce the Settlement Agree-
`ment under the standard for summary judgment). While
`our case law does not explicitly address the standard under
`which we review a district court’s decision to summarily
`enforce a settlement agreement, we have held that a dis-
`trict court’s exercise of its inherent powers, which include
`the power to summarily enforce settlement agreements, see
`Core–Vent Corp. v. Implant Innovations, Inc., 53 F.3d 1252,
`1259 (Fed. Cir. 1995) (“Courts have inherent power sum-
`marily to enforce a settlement agreement with respect to
`an action pending before it.” (internal quotation marks,
`brackets, and citation omitted)), is reviewed for an abuse of
`discretion, see Pickholtz v. Rainbow Techs., Inc., 284 F.3d
`1365, 1376 (Fed. Cir. 2002) (citing Chambers v. NASCO,
`Inc., 501 U.S. 32, 55 (1991)) (“A court’s exercise of its inher-
`ent powers is reviewed for an abuse of discretion.”). Ac-
`cordingly, we join the majority of our sibling courts in
`holding that a district court’s decision whether to summar-
`ily enforce a settlement agreement is reviewed for an abuse
`of discretion. See, e.g., Kashi v. Gratsos, 790 F.2d 1050,
`1057 (2d Cir. 1986) (reviewing a district court’s decision
`whether to summarily enforce a settlement agreement for
`an abuse of discretion). In determining whether a district
`court has abused its discretion, we review the district
`court’s underlying factual determinations for clear error.
`See Presidio Components, Inc. v. Am. Tech. Ceramics Corp.,
`875 F.3d 1369, 1383 (Fed. Cir. 2017) (“A district court
`abuses its discretion when it . . . exercises its discretion
`based upon . . . clearly erroneous factual findings.” (inter-
`nal quotation marks, brackets, and citation omitted)).
`
`

`

`8
`
`HAGGART v. UNITED STATES
`
`Abandonment is a question of fact. See Preseault v.
`United States, 100 F.3d 1525, 1546 (Fed. Cir. 1996) (en
`banc). An agreement may be abandoned only through mu-
`tual assent of the parties, see, e.g., Graham v. James, 144
`F.3d 229, 238 (2d Cir. 1998) (“[A]bandonment of a contract
`can be accomplished only through mutual assent of the par-
`ties[.]”), which may be expressed in writing or orally, or
`may be inferred from the acts or conduct of the parties, see,
`e.g., Fanucchi & Limi Farms v. United Agri Prods., 414
`F.3d 1075, 1082 (9th Cir. 2005) (“[I]t is not necessary to
`meet and state either in writing or orally that the original
`contract was rescinded. If the intent to abandon can be as-
`certained from the acts and conduct of the parties the same
`result will be attained.” (internal quotation marks and ci-
`tation omitted)). Where abandonment is to be inferred, it
`must be “demonstrated by positive and unequivocal con-
`duct inconsistent with an intent to be bound.” Graham,
`144 F.3d at 238; see, e.g., Anstalt v. F.I.A. Ins. Co., 749 F.2d
`175, 178 (3d Cir. 1984) (“When . . . abandonment of a con-
`tract is to be implied from the conduct of the parties, the
`actions must be positive and unequivocal.”).4
`
`
`
`4 Our sibling courts have held that where a material
`factual dispute “concerning the existence or terms of [a set-
`tlement] agreement” exists, “the matter must be remanded
`to the district court in order to conduct an evidentiary hear-
`ing.” Wilson v. Wilson, 46 F.3d 660, 664 (7th Cir. 1995).
`Here, while the parties dispute whether the Settlement
`Agreement was abandoned, see Appellant’s Br. 2, 24–26,
`42–48; Appellees’ Br. 23–30; Woodleys’ Br. 35–46, they do
`not contest the underlying record evidence, see Appellant’s
`Br. 24 (“[T]he relevant history . . . consists of record facts
`that do not turn on credibility determinations[.]”). See gen-
`erally Appellees’ Br.; Woodley’s Br. Thus, “[n]othing would
`
`

`

`HAGGART v. UNITED STATES
`
`9
`
`II. The Court of Federal Claims Did Not Clearly Err in
`Finding that The Parties Did Not Abandon the
`Settlement Agreement or Abuse Its Discretion in Grant-
`ing Class Counsel’s Motion to Enforce the Settlement
`Agreement
`The Court of Federal Claims found that the Govern-
`ment failed to “demonstrat[e] that the parties unequivo-
`cally intended to abandon the Settlement Agreement.”
`Haggart VII, 133 Fed. Cl. at 576. The court accordingly
`concluded that the Settlement Agreement “remains a bind-
`ing and enforceable contract.” Id. at 578. The Government
`argues that the Court of Federal Claims erred in finding no
`abandonment because “undisputed record facts show a pos-
`itive and unequivocal intent on the part of class counsel to
`abandon . . . the [S]ettlement [A]greement[.]” Appellant’s
`Br. 26. Specifically, the Government contends that class
`counsel’s conduct on remand, including statements made
`before the Court of Federal Claims in August 2016 and in
`earlier letters to class members, was “inconsistent with any
`intent to preserve the [Settlement A]greement[.]” Id. at 29,
`48; see id. at 24–35. We disagree with the Government.
`The Court of Federal Claims did not clearly err in find-
`ing no mutual intent to abandon the Settlement Agree-
`ment, as the parties’ conduct on remand did not rise to the
`level of “positive and unequivocal conduct inconsistent
`with an intent to be bound.” Graham, 144 F.3d at 238. In-
`stead, the parties’ conduct evidences an effort to address
`various legal and factual uncertainties. For example, fol-
`lowing remand, it was unclear whether, and to what ex-
`tent, class members would object to their individual
`settlement amounts. See, e.g., J.A. 5077 (the Government
`agreeing with the Court of Federal Claims that “there
`
`
`be gained by requiring a further proceeding at the trial
`level.” Preseault, 100 F.3d at 1546.
`
`

`

`10
`
`HAGGART v. UNITED STATES
`
`might be some [class members] . . . who are not happy with
`the settlement,” but acknowledging that “we don’t know
`that . . . at this stage of the game”). This was significant
`because, as the Government explained, if class members
`objected, the parties would likely “have . . . to reopen set-
`tlement negotiations.” J.A. 5065–66. Given the unknown
`number of potential objectors, which class counsel initially
`believed could be “anywhere between [five] and [thirty]
`class members,” J.A. 5070, class counsel expressed doubts
`at the August 2016 hearing about whether “the settle-
`ment . . . [was] still in place,” J.A. 5069. These and other
`statements by class counsel were not, however, unequivo-
`cal expressions of intent to abandon the Settlement Agree-
`ment as the Government contends. See Appellant’s Br. 24–
`35. Instead, class counsel was apparently responding to
`the uncertainties facing the parties. At the same hearing,
`class counsel indicated that he had begun the “process of
`meeting with all 253 class members” to ascertain whether
`they were likely to object to their individual settlement
`amounts, J.A. 5070, which the Government agreed was the
`proper course of action, see J.A. 5064 (the Government ex-
`plaining that “class counsel needs to provide the infor-
`mation that will enable the individual class members to
`determine whether the split of . . . money is fair, and [the
`parties] need to go from there”). As class counsel ex-
`plained, his “goal [was] to resurrect[5] the [S]ettlement
`
`5 The Government argues that class counsel’s use of
`the term “resurrect” is “inconsistent with preserving the
`settlement,” Appellant’s Br. 26; see id. at 26–29, but as
`class counsel aptly points out, use of this term is consistent
`with “the reality that no one knew at the time whether or
`how many [c]lass [m]embers might object . . . and what the
`outcome would be . . . if such objections were raised,” Ap-
`pellees’ Br. 34–35; see J.A. 5110 (class counsel explaining
`that “the alternative to trying to resurrect the settle-
`ment . . . is to merely start over” (emphasis added)).
`
`

`

`HAGGART v. UNITED STATES
`
`11
`
`[Agreement] for any and every class member that wants it
`resurrected[,]” and he advised the court that of the “200
`class members that [class counsel had] met with” so far,
`“[a]ll but one [was] completely satisfied.” J.A. 5070–71.
`The Government’s reliance upon class counsel’s state-
`ments in letters to class members to show abandonment,
`see Appellant’s Br. 26–29, fairs no better, as these state-
`ments were made in the context of the same uncertainties
`facing the parties in August 2016. For example, consider-
`ing the likely consequences of potential objectors, class
`counsel correctly explained, in a letter to class members,
`that “the total amount of loss incurred . . . could be open to
`reconsideration” and, as a result, each class member’s in-
`dividual settlement amount “could” end up being more or
`less. J.A. 8224. Nothing about class counsel’s statements
`demonstrates an unequivocal intent to abandon the Settle-
`ment Agreement. In fact, in a subsequent letter, class
`counsel advised class members that he understood the Gov-
`ernment to be “taking the position that the underlying base
`settlement . . . [was] still intact[,]” and continued to ex-
`press his desire to “resurrect the initial settlement
`amounts for any and all [c]lass [m]embers who were satis-
`fied before, and are satisfied now after further disclosures
`[were] made.” J.A. 8227; see J.A. 7764 (class counsel reit-
`erating that his “first priority and goal [was] to resurrect
`the prior settlement for any and all [c]lass [m]embers that
`were satisfied with their settlement”). Class counsel ad-
`vised class members, as he would the Court of Federal
`Claims, that he was “meeting[] with [c]lass [m]embers,”
`and was “pleased to report” that the majority of class mem-
`bers were satisfied with their individual settlement
`amounts, and “ha[d] already signed ‘Reconsent’ forms to
`resurrect the . . . [S]ettlement [Agreement].” J.A. 7764.
`Notably, the Government began arguing that the par-
`ties had “abandoned” the Settlement Agreement only after
`Kaseburg v. Port of Seattle, No. C14-0784 JCC, 2016 WL
`4440959 (W.D. Wash. Aug. 23, 2016), aff’d, No. 16-35768,
`
`

`

`12
`
`HAGGART v. UNITED STATES
`
`2018 WL 3687555 (9th Cir. Aug. 3, 2018), was issued. See
`J.A. 7592–93 (the Government arguing, for the first time
`in May 2017, that the “the parties’ post-remand conduct
`demonstrates that they abandoned the . . . Settlement
`Agreement”). In Kaseburg, seventy-eight plaintiffs, all
`members of this class action, filed suit requesting an order
`quieting title in the property at issue in this case against a
`number of defendants, including King County, Washington
`(“King County”). See 2016 WL 4440959, at *1. King
`County counterclaimed to quiet title against the plaintiffs.
`See id. The district court issued decisions on summary
`judgment in favor of the defendants, ultimately dismissing
`plaintiffs’ claims and quieting title to King County. See id.
`at *11–12. Prior to Kaseburg being issued—indeed, only
`days before at the August 2016 hearing—the Government
`represented to the Court of Federal Claims that there was
`no need to “reopen[] settlement negotiations,” because the
`parties “ha[d] a settlement number.” J.A. 5063–64; see
`J.A. 5064 (the Government explaining that “it would be
`premature” to refer “this case . . . to the settlement judge
`all over again”). While the Government admits that Kase-
`burg “changed” its “settlement posture,” Appellant’s Br. 38;
`see J.A. 5388 (the Government explaining that it had been
`“in [a] settlement posture,” but “[t]he Kaseburg decision
`changed all of that”), the Government denies, despite the
`coincidental timing, that Kaseburg prompted its abandon-
`ment argument, see Appellant’s Reply Br. 14–16. Regard-
`less, the Government’s abandonment argument fails as the
`record does not demonstrate the parties’ mutual intent to
`abandon the Settlement Agreement by “positive and une-
`quivocal conduct.” Graham, 144 F.3d at 238.6
`
`
`6 While the Government also relies upon class coun-
`sel’s Request for a Trial Setting and statements made by
`class counsel therein to show abandonment, see Appellant’s
`Br. 29–35, 37, class counsel requested a trial date only
`
`

`

`HAGGART v. UNITED STATES
`
`13
`
`Accordingly, the Court of Federal Claims did not
`clearly err in finding that the Government failed to meet
`“its burden of demonstrating that the parties unequivo-
`cally intended to abandon the Settlement Agreement,”
`Haggart VII, 133 Fed. Cl. at 576, or abuse the court’s dis-
`cretion in granting class counsel’s Motion to Enforce the
`Settlement Agreement.
`III. We Lack Jurisdiction to Address The Government’s
`Argument that the Court of Federal Claims Erred by Not
`Limiting Class Counsel to the Agreed Amount of URA
`Fees and Costs
`The Court of Federal Claims entered a partial final
`judgment, pursuant to Rule 54(b), as to the principal and
`interest amounts under the Settlement Agreement, but de-
`ferred consideration of attorney fees and costs until “[a]fter
`all proceedings . . . have been completed and the court’s
`judgment is final[.]” Haggart VIII, 136 Fed. Cl. at 81. The
`Government argues that the Court of Federal Claims
`“erred by enforcing the [Settlement Agreement] as to the
`principal amounts of compensation and interest but not
`limiting [class] counsel to the agreed amount of URA fees
`and costs.”
` Appellant’s Br. 58; see
`id. at 58–61.
`
`after the Government failed to respond to class counsel’s
`multiple inquiries “concerning [the Government’s] position
`going forward.” J.A. 5107; see J.A. 5112 (class counsel re-
`questing that the Government “[p]lease let [class counsel]
`know [the Government’s] position as soon as possi-
`ble[,] . . . [a]lternatively, [class counsel] will ask [the Court
`of Federal Claims] for a trial setting”). Moreover, as class
`counsel argues, when he stated in the request that “the
`prior settlement no longer exists,” he did so because, based
`on “the Government’s silence following the Kaseburg deci-
`sion,” Appellees’ Br. 44, he could no longer “assume that
`any portion of the prior settlement can or will be resur-
`rected,” J.A. 5108.
`
`

`

`14
`
`HAGGART v. UNITED STATES
`
`Specifically, the Government argues that because the Set-
`tlement Agreement awarded $2,580,000.00 in “statutory
`attorney[] fees and costs . . . pursuant to the URA,” and be-
`cause the agreement provides that this amount is “inclu-
`sive of all interest, attorney[] fees, and other litigation
`expenses that have been or could be incurred,” no URA fees
`above that amount may be awarded. Id. at 60 (quoting
`J.A. 2932). We lack jurisdiction to address the Govern-
`ment’s argument at this time.
`The Court of Federal Claims did not make a decision
`concerning attorney fees and costs. See Haggart VIII, 136
`Fed. Cl. at 81. Rather, as the Government admits, the
`Court of Federal Claims “expressed its intent to ‘entertain
`applications for attorney[] fees and expenses,’” but has not
`yet ruled on them. Appellant’s Br. 59 (emphasis added)
`(quoting J.A. 9860–91; Haggart VIII, 136 Fed. Cl. at 81).
`We ordinarily only have jurisdiction over appeals from “fi-
`nal decision[s]” of the Court of Federal Claims, i.e., ones
`that “end[ ] the litigation on the merits and leave[] nothing
`for the court to do but execute the judgment.” Firestone
`Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981) (ci-
`tation omitted); see 28 U.S.C. § 1295(a)(3) (providing that
`we “have exclusive jurisdiction of an appeal from a final
`decision” of the Court of Federal Claims (emphasis added)).
`The Supreme Court has acknowledged a “narrow class” of
`“exception[s] to the final decision rule” which “do not ter-
`minate the litigation, but must, in the interest of achieving
`a healthy legal system, nonetheless be treated as final.”
`Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867
`(1994) (internal quotation marks and citations omitted).
`We are not persuaded, however, that a determination on
`the amount of attorney fees and costs to award class coun-
`sel under the URA, if any, is within that narrow class of
`exceptions. Accordingly, we lack jurisdiction to address the
`Government’s argument in this regard.
`At oral argument, the Government expressed concern
`that Landowners would invoke the mandate rule to
`
`

`

`HAGGART v. UNITED STATES
`
`15
`
`foreclose the Government’s arguments with respect to URA
`fees when this case returns to the Court of Federal Claims.
`See Oral Arg.
`at
`16:42–17:05, http://oralargu-
`ments.cafc.uscourts.gov/default.aspx?fl=2018-1757.mp3.
`The mandate rule provides that “issues actually decided on
`appeal—those within the scope of the judgment appealed
`from, minus those explicitly reserved or remanded by the
`court—are
`foreclosed
`from
`further
`consideration.”
`Amado v. Microsoft Corp., 517 F.3d 1353, 1360 (Fed.
`Cir. 2008) (internal quotation marks, brackets, and cita-
`tion omitted). Because the issue of attorney fees and costs
`is not within the scope of the judgment below, the mandate
`rule is inapplicable, and the Government may subse-
`quently raise its arguments with respect to this issue be-
`fore the Court of Federal Claims.7
`CONCLUSION
`We have considered the Government’s remaining argu-
`ments and find them unpersuasive.8 Accordingly, the
`
`7 This is true notwithstanding a curious statement
`at oral argument by counsel for class members Gordon and
`Denise Woodley that he would only “accept for hypothetical
`purposes” that there “will not be waiver issues” only “if the
`Government litigates correctly.” Oral Arg. at 41:01–41:52.
`8 The Government argues, for the first time on ap-
`peal, that class counsel repudiated the Settlement Agree-
`ment. See Appellant’s Br. 25–42; Appellant’s Reply Br. 23
`(the Government admitting that its repudiation argument
`is an “elaboration of the argument made” before the Court
`of Federal Claims (emphasis added)); see also Mobil Oil
`Expl. & Producing Se., Inc. v. United States, 530 U.S. 604,
`608 (2000) (“[R]epudiation is a statement by the obligor to
`the obligee indicating that the obligor will commit a breach
`that would of itself give the obligee a claim for damages for
`total breach.” (internal quotation marks and citation omit-
`ted)). While the Government had the opportunity to raise
`
`

`

`16
`
`HAGGART v. UNITED STATES
`
`Partial Final Judgment of the United States Court of Fed-
`eral Claims is
`
`AFFIRMED
`
`
`this argument before the Court of Federal Claims, it did
`not. “Because [the Government] failed to raise this argu-
`ment below, we find it waived and decline to address it.”
`Ladd v. United States, 713 F.3d 648, 655 (Fed. Cir. 2013)
`(citation omitted).
`
`