Appendix — Weissbrodt v. White Mountain Apache Tribe of Arizona, 115 S. Ct. 319 (1994) (No. 94-240)

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APPENDIX A

[Filed Jul. 12, 1994]

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

94-5036

WHITE MOUNTAIN APACHE TRIBE OF ARIZONA,

Plaintiff-A ppellee,

V.

THE UNITED STATES,

Defendant-A ppellee,

Vv.

ISRAEL S. WEISSBRODT,

Movant-A ppellant.

JUDGMENT

ON APPEAL from the United States Court of

Federal Claims in CASE NO(S). 22-H

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

PER CURIAM (MICHEL, LOURIE and SCHALL,

Circuit Judges):

AFFIRMED. See Fed. Cir. R. 36.

ENTERED BY ORDER

OF THE COURT

/s/ Francis X. Gindhart

FRANCIS X. GINDHART

Clerk

Dated Jul. 12, 1994

2a

APPENDIX B

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 22-H

(Filed November 4, 1993)

WHITE MOUNTAIN APACHE TRIBE OF ARIZONA,

Plaintiff,

Vv.

THE UNITED STATES,

Defendant.

Indian claims; claim for attorneys’ fees and

expenses under the Indian Claims Commission

Act.

William H. Veeder, Washington, D.C., for plaintiff.

Michael D. Lieder, Washington, D.C., for I.S. Weiss-

brodt.

James M. Upton, Washington, D.C., with whom was

Acting Assistant Attorney General Lois J. Schiffer, for

defendant.

OPINION

NETTESHEIM, Judge.

This matter is before the court after argument on Israel

S. Weissbrodt’s motion filed August 19, 1992, on behalf

of the now dissolved firm of Weissbrodt & Weissbrodt

3a

(referred to collectively as the “associated attorneys”), for

reimbursement of attorneys’ fees and expenses. Mr. Weiss-

brodt, former attorney of record for the White Mountain

Apache Tribe (“the Tribe”), moves pursuant to General

Order No. 4, Dec. 20, 1982 (Indian Claims Commission

Act of August 13, 1946, 60 Stat. 1053 § 15, as amended,

25 U.S.C. § 70n (1976) (omitted from Code pursuant

to Commission termination on Sept. 30, 1978)), for an

order awarding him 10 percent of the $14,386,470.32

judgment in favor of the Tribe entered by this court on

July 21, 1992, White Mountain Apache Tribe v. United

States, 25 Cl. Ct. 333 (1992), aff'd, No. 93-5018, 1993

U.S. App. LEXIS 20,903 (Fed. Cir. Aug. 17, 1993)

(unpubl.), reh’g denied (Fed. Cir. Sept. 13, 1993), plus

interest, which now totals approximately $19 million.’

Mr. Weissbrodt also moves for reimbursement of pre-

viously unreimbursed expenses totalling $75,205.44 in-

curred in connection with the prosecution of the Tribe’s

claims.

FACTS

Mr. Weissbrodt began his association with the Tribe on

July 15, 1949, under a contract with the Tribe’s counsel.

Commencing in 1953 Mr. Weissbrodt worked directly

with the Tribe under 10-year contracts approved by the

Department of the Interior, up to the point of his with-

drawal as attorney of record for the Tribe’s claims on

February 23, 1982. The last contract under which Mr.

Weissbrodt worked for the Tribe contained a clause bas-

ing compensation on a contingent fee of up to 10 percent

of any amount recovered for the Tribe. The full text of

the clause reads:

8. It is agreed that the compensation of the

ATTORNEYS for the services previously rendered

and to be rendered under the terms of this CON-

1The motion was fully briefed in 1992; the court stayed its

decision until the Federal Circuit resolved the Tribe’s appeal of

the judgment. See Order entered on Oct. 30, 1992, {[ 2.

4a

TRACT is to be wholly contingent upon a recovery

for the TRIBE. The ATTORNEYS shall receive

such compensation as the court or tribunal awarding

a recovery to or for the TRIBE shall determine to

be equitably due the ATTORNEYS, or, if the matter

be settled without submission to a court or tribunal

resulting in a recovery to or for the TRIBE, as the

Secretary of the Interior or his authorized represen-

tative may find to be equitably due the ATTOR-

NEYS, but in no event shall the aggregate fees ex-

ceed ten percentum of any and all sums recovered

or procured, through efforts, in whole or in part, for

the TRIBE, whether by suit, action of any depart-

ment of the Government or of the Congress of the

United States, or otherwise.

Attorney Contract between the White Mountain Apache

Tribe and I.S. Weissbrodt, et al., June 17, 1966, € 8

(emphasis in origina!).

Ten percent was the maximum allowed under section

15 of the Indian Claims Commission Act, 60 Stat. 1053,

§ 15 (formerly codified at 25 U.S.C. § 70n),-which pro-

vides:

The fees of such attorney or attorneys for all services

rendered in prosecuting the claim in question, whether

before the Commission or otherwise, shall, unless the

amount of such fees is stipulated in the approved

contract between the attorney or attorneys and the

claimant, be fixed by the Commission at such

amount as the Commission, in accordance with

standards obtaining for prosecuting similar contingent

claims in courts of law, finds to be adequate com-

pensation for services rendered and results obtained,

considering the contingent nature of the case, plus

all reasonable expenses incurred in the prosecution

of the claim; but the amount so fixed by the Com-

mission, exclusive of reimbursements for actual ex-

penses, shall not exceed 10 per centum of the

amount recovered in any case... .

5a

In October 1950, as amended on October 27, 1959,

the Tribe and the San Carlos Apache Tribe of Arizona

(“the San Carlos Tribe”) filed a petition with the Indian

Claims Commission seeking to recover for mismanage-

ment of tribal resources and funds and for aboriginal land

claims. In 1959 the aboriginal land claims were severed

from the resource management and accounting claims.

The land claims were eventually settled for $4,900,000.00

on September 12, 1972. Litigation continued on the re-

maining claims under Docket No. 22-H, which were trans-

ferred to the Court of Claims on December 15, 1976. It

appears that little activity occurred during this time aside

from the issuance of an accounting report by the Govern-

ment in 1970 and the court-ordered revision of the same

in 1975. In April 1978 the Trial Division of the Court

of Claims conducted a 6-day trial on the propriety of the

Government’s disbursements from the Indian Moneys,

Proceeds of Labor accounts through August 1946. After

the trial counsel for defendant was directed to prepare

a set of proposed findings of fact. During this period

settlement talks ensued.

The present controversy involves an attempt to settle

the claims in Docket No. 22-H and the Tribe’s subse-

quent discharge of Mr. Weissbrodt. The settlement dis-

cussions begun by the parties in March 1980 eventually

led to a proposed agreement under which the Tribe would

be paid $13 million for its claims and the San Carlos

Tribe $10 million.*? The San Carlos Tribe approved the

settlement, and judgment was entered in favor of the San

* At the time the settlement was presented to the Tribe for

approval, it was far from a done deal. The acceptance letter dated

October 28, 1980, sent by then-Assistant Attorney General James

W. Moorman was subject to a number of conditions including: ap-

proval of the settlement by the governing bodies of the plaintiff

tribes and the Court of Claims; approval of the settlement and the

tribal resolutions by the Secretary of the Interior; and waiver of all

claims that had been or could be brought by the Tribe under

Docket No. 22-H.

6a

Carlos Tribe pursuant to the settlement on January 19,

1981.

The Tribe was more hesitant about the settlement than

the San Carlos Tribe. Of particular concern was the

language contained in € 6 of the Department of Justice’s

version of the settlement, which set as a condition of the

settlement:

6. That the judgments entered into pursuant to

this settlement shall finally dispose of all rights,

claims, and demands which the plaintiffs have as-

serted or could have asserted against the defendant

under the provisions of the Indian Claims Com-

mission Act in Docket No. 22-H before the Court

of Claims.

On October 10, 1980, tribal attorney Kathleen A. Rihr

requested clarification from the Weissbrodt firm and from

attorney William H. Veeder, the Tribe’s Water Rights

Attorney, of whether the settlement precluded the water

rights and land recovery claims that the Tribe had been

pursuing through Mr. Veeder. At the Tribal Council

meeting called to discuss the settlement negotiated by the

Weissbrodt firm, several concerns were raised. Members

of the Tribal Council were confused about how the Weiss-

brodt firm had arrived at the figure of $13 million as

the settlement amount. Tribal Council Chairman Ronnie

Lupe raised the concern that € 6 of the settlement offer

would require the Tribe to waive its rights to other claims,

including water rights and land recovery claims.

These concerns, coupled with concerns about the

amount of offset claims the Government may have as-

serted against the Tribe and the scope and basis of the

3 Mr. Veeder eventually became counsel of record in November

1983, replacing interim counsel of record Robert C. Brauchli, who

has served as General Counsel to the Tribe from 1980 through

1987; as Special Counsel from August 1987 through May 1988; and

General Counsel from May 1990 to date.

Ta

settlement, caused growing discontent within the Tribe

regarding the associated attorneys’ handling of the Tribe’s

claims. By Tribal Resolution adopted on February 10,

1981, the settlement was eventually rejected on the basis

that it would compromise the Tribe’s other claims and

that the $13 million figure was inadequate compensation

for damage due to mismanagement. After this event re-

lations between the Tribe and the associated attorneys

worsened until the Tribe terminated the contract with the

associated attorneys by Tribal Resolution adopted on

April 1, 198i. Although the Department of Interior failed

to approve the Tribe’s termination of the contract for

cause, the associated attorneys agreed to terminate the

contract by mutual consent. On February 23, 1982, the

Court of Claims granted Mr. Weissbrodt leave to with-

draw as attorney of record and substituted Mr. Brauchli

as his successor. On November 7, 1983, Mr. Veeder

became counsel of record and pursued the litigation

through two trials in the United States Claims Court up

to July 21, 1992, when judgment was entered in favor

of the Tribe. Throughout this period, Mr. Veeder pro-

vided his services at an hourly rate of $80.00. At present

Mr. Veeder continues as the Tribe’s counsel of record.

Pursuant to an order entered on April 28, 1983, Mr.

Weissbrodt filed a memorandum on May 27, 1983, in-

forming this court of his intention to claim attorneys’

fees out of any possible award to the Tribe. Following

the Tribe’s response to Mr. Weissbrodt’s subsequent mo-

tion for attorneys’ fees filed on August 19, 1992, and

defendant’s motion to stay proceedings on the motion

pending appellate review of the judgment entered on the

merits, this court issued an order on September 24, 1992,

asking the parties to respond to the motion to stay. Af-

ter briefing, an order entered on September 30, 1992,

delaying resolution of the motion pending receipt of Mr.

Weissbrodt’s reply brief to the Tribe’s response. See

supra note |. The order indicated that if a percentage-

8a

based fee award was used, an accurate determination of

the fee amount could not be made until after appellate

review of the final award to the Tribe. A determination

regarding the stay therefore was made contingent on a

finding by the court of whether a percentage or a fixed-

sum award was appropriate for the fee award.

On October 30, 1992, the court issued an order stating

that “[a]fter extensive review of the applications for fees

and expenses, the court concludes that a fixed amount

should be awarded. . . .” The court also reconsidered

its prior order and granted the stay pending appellate

review because “a reasonable award cannot be made with-

out knowing with certainty the amount of the ultimate

award and the types of interest that will be allowed

thereon. .. .” 7d. The order further provided that a de-

cision on the motion for fees and expenses would follow

promptly after the Federal Circuit decision was rendered.

The appeals court affirmed the final judgment on August

13, 1993. White Mountain Apache Tribe v. United

States, No. 93-5018, 1993 U.S. App. LEXIS 20,903

(Fed. Cir. Aug. 17, 1993) (unpubl. ), reh’g denied (Fed.

Cir. Sept. 13, 1993).

The parties have been aware since September 30, 1992,

that the court was considering an award of a fixed amount.

Indeed, prior to that order, the associated attorneys had

briefed their motion with information relating to approxi-

mately 5,000 hours actually worked. During argument

on October 15, 1993, the court discussed with the parties

an award based on an hourly rate for the attorney hours

expended as a measure of the reasonableness of the

award. Mr. Weissbrodt filed a motion on October 25,

1993, for leave to supplement the record to include addi-

tional evidence concerning the number of hours expended,

the nature of work performed, and a reasonable hourly

rate. This motion was granted. In response -plaintiff filed

a motion to preclude reliance upon affidavits to supple-

ment the record or, alternatively, to provide the Tribe with

9a

records supporting the total hours claimed, as well as

the hours that were the subject of the associated attor-

neys’ original motion. The affidavits in question support

the associated attorneys’ claim that a $200-250.00 per

hour fee is reasonable for the associated attorneys’ work

by present-day standards, and two affidavits purport to

justify some 9,000 hours. Because resolution of the as-

sociated attorneys’ motion does not require use of present-

date fee rates, see discussion infra at 20-21 [27a-29a

herein], it is unnecessary to preclude reliance on these

affidavits. Insofar as the affidavits address hours worked,

the associated attorneys have no excuse for attempting to

submit evidence to augment the number of hours at this

late date. The Tribe’s motion was therefore denied.

DISCUSSION

Mr. Weissbrodt styled his motion for attorneys’ fees and

expenses as a motion for summary judgment. A fee ap-

plication is not meant to be a time-consuming trial-type

proceeding. Hensley v. Eckerhart, 461 U.S. 424, 437

(1983). Rather, it is a summary proceeding by which the

court determines a fee that is reasonable for the work

performed. Mr. Weissbrodt, however, is misguided in

relying on summary judgment standards to support his

motion since the standards of RCFC 56 are inapplicable

to fee applications. Most fee applications are challenged,

with disputed facts resolved based on the record. AIl-

though the number and disputatiousness of factual thrusts

and parries in the matter may be of singular record, the

record provides sufficient material and relevant informa-

tion to determine the amount of an appropriate award.

I. Attorneys’ fees

There is a notable paucity of case law regarding the

award of attorneys’ fees in situations such as the one at

hand. Few Indian claims have been brought in the last

25 years, and those that have did not involve significant

disputes regarding attorneys’ fees. In prior cases wherein

10a

attorneys’ fees were at issue, the fee awarded has consist-

ently been at or near the statutory maximum of 10 per-

cent of the final award. See Western Shoshone Identifi-

able Group v. United States, 228 Ct. Cl. 26, 39, 652

F.2d 41, 49 (1981). The present case is unique, how-

ever, because it involves a motion for fees made by at-

torneys who were not involved in the litigation resulting

in the final award and whose last contract with the plain-

tiff Tribe ended 10 years before the final award was

made. As such, this matter is essentially one of first im-

pression. _

A. Factors considered in determining the reason-

ableness of award

In Western Shoshone the Court of Claims adopted the

factors considered in Cherokee Nation v. United States,

174 Ct. Cl. 131, 355 F.2d 945 (1966), for determining

the reasonableness of an attorneys’ fee award:

1) The nature of the undertaking and the character

of the services required

2) The responsibility assumed

3) The professional repute, standing, ability, and ex-

perience of counsel

4) The services rendered, including the time and

labor required

5) The magnitude and importance of the cases

6) The novelty and difficulty of the questions in-

volved

7) The opposition encountered

8) The results accomplished and the benefits flow-

ing to the clients

9) The professional competence displayed, includ-

ing skill, industry, and diligence

lla

10) The fidelity of counsel to the interests of their

clients.

11) The contingent nature of the employment and

the hazards and risks involved

12) The loss of income and opportunities for other

employment due to employment of counsel in the

litigation for which compensation is to be awarded

13) Customary charges and going rates of attorneys

for similar services

228 Ct. Cl. at 37, 652 F.2d at 49 (citing Cherokee Na-

tion, 174 Ct. Cl. at 146-47, 355 F.2d at 953-54). The

associated attorneys have cited the Western Shoshone cri-

teria as the appropriate test for the reasonableness of their

fee request. In justifying the 10-percent award requested,

the associated attorneys rely presumptively on the results

that they obtained for the Tribe, i.e., the proposed settle-

ment; the well-established custom of awarding attorneys

10 percent of the final award; the risks involved in the

litigation; and their loyalty to the Tribe. Taken together

these factors do justify compensating the associated attor-

neys for their services, but not to the extent of the full

10 percent of the final award.

1. The results obtained

The associated attorneys argue that the $13 million

proposed settlement negotiated by them in October 1980

“provides the measure of the associated attorneys’ results.”

Assoc. Attys’ Br. filed Aug. 19, 1992, at 11. The as-

sociated attorneys compare the settlement amount with

the $14.386.545.32 award eventually obtained in 1992

and claim that even with conservative investment, the

present value of the 1982 settlement would far exceed the

1992 value of the litigated award. This argument rests

on the invalid assumption that the two are comparable

since the settlement proceeds would not have been held

for 10 years.

12a

With hindsight, litigation decisions often take on a dif-

ferent light. But it is quite unreasonable to condemn a

decision once the factfinder is gifted with the knowledge

the passage of time allows. In 1982 the Tribe could not

have known what the result of pursuing the litigation

would be. Based on its own wishes and the advice of

counsel, the Tribe made the decision to reject the settle-

ment and litigate the claims. The decision to accept or

reject a settlement offer rests solely with the client, not

with the attorney who negotiates it. United States v. Int'l

Bhd. of Teamsters, 986 F.2d 15, 19 (2d Cir. 1993)

(citing United States v. Beebe, 180 U.S. 343, 350-53

(1901)).

The record demonstrates that the Tribal Council care-

fully considered the settlement, but could not reconcile

the questions that it had regarding waiver of the water

and land claims and the basis for the $13 million settle-

ment figure. Several requests were made to the associated

attorneys to address these concerns, but the Tribe event-

ually concluded that these concerns warranted rejecting

the certainty of the settlement. This court cannot pre-

sume the decision of the Tribe to reject the settlement

offer was unreasonable, especially since the Tribe eventually

recovered a substantial sum. Although the associated at-

torneys have made allegations that the Tribe was unduly

influenced by Mr. Veeder, they have introduced no evi-

dence to indicate that the Tribe’s decision was irrational

or the product of undue influence. Evidence to the con-

trary abounds. Absent significant evidence of fraud or

mutual mistake, this court is unwilling and unable to ques-

tion the validity of the Tribe's decision. Cf. Cheyenne-

Arapaho Tribes of Indians v. United States, 229 Ct. Cl.

434, 442-43, 671 F.2d 1305, 1311 (1982) (citing Callen

v. Pennsylvania R.R. Co., 332 U.S. 625, 630 (1948) )

(settlement can only be challenged by showing that it “is

tainted with invalidity, either by fraud practiced upon

him or by a mutual mistake under which both parties

acted”).

ee ee ee EEE

13a

The result obtained by the associated attorneys was a

settlement that was not acceptable to the Tribe. A re-

jected settlement, no matter how attractive it appears

with hindsight, cannot reasonably be termed a “result

accomplished” that justifies a 10-percent fee from an

award obtained through totally separate litigation. The

result obtained by the associated attorneys for the Tribe

was essentially nil. The true “result accomplished and the

benefit{] flowing to the client[]” was the final award.

The associated attorneys are entitled to compensation only

to the extent that their efforts contributed to achieving

this award.

The work performed by the associated attorneys in pur-

suing the Tribe’s claim in the initial stages was beneficial

to the Tribe. By pursuing the claims before the Indian

Claims Commission, the associated attorneys began the

process that eventually resulted in a favorable award to

the Tribe. The court does not question the assertion that

the services performed provided some benefit to the Tribe.

Rather, the record belies the associated attorneys’ asser-

tion that the value of these services should be measured

using either the proposed settlement or the final award

as lodestars.

Based on the record and the court’s first-hand knowl-

edge of the trials, it is clear that the research performed

by the associated attorneys was not used in obtaining the

final judgment. The research undertaken for the settle-

ment was never turned over to the Tribe. See Affidavit

of Robert C. Brauchli dated Sept. 14, 1992, 44 38-39,

59. Although Mr. Weissbrodt claims that his firm amassed

over 100 cubic feet of documents in preparation for liti-

gation, the witnesses in the resource and accounting phases

of litigation relied on the products of their own research.

The associated attorneys contend that their work was

instrumental in obtaining the 1975 GSA Indian Trust

Accounting Division, Office of Finance Disbursement Ac-

count Report that formed the basis of the 6-day 1978

14a

trial on certain fiscal claims and that they filed numerous

exceptions to the 1975 GSA Report. The court under-

stands that this 1978 trial involved the Government’s

proof to substantiate the reasonableness of its accounting.

The court acknowledges this work in its calculation of the

award due on the motion for fees. However, the 3-week

1991-1992 trial on all accounting issues was de novo (see

order entered on July 31, 1990); expanded in scope; and

did not utilize anything from the prior effort, other than

the 1975 GSA Report which, itself was supplemented in

the long period during which the Tribe’s fiscal claims

were developed and litigated before this court. See White

Mountain Apache Tribe v. United States, 4 Cl. Ct. 586

(1984) (interim order on fiscal claims). Paul J. Gillis,

the Tribe’s expert on fiscal claims, prepared the excep-

tions to the 1975 GSA Report that were the basis for trial

in 1991-1992. In addition, since the earlier trial was

limited to determining the sufficiency of the Government’s

accounting, the vast majority of the evidence was sub-

mitted by defendant, not the Tribe. Under these circum-

stances the court is justified in substantially limiting the

award due the associated attorneys. See Red Lake and

Pembina Bands v. Turtle Mountain Band of Chippewa

Indians, 173 Ct. Cl. 928 937-38, 355 F.2d 936, 938

(1965) (finding that although claimant attorneys did

“perform certain legal services in connection with the

Commission’s final award,” this work did not contribute

to the attainment of the final award and did not justify

an award of attorneys’ fees).

2. The customary fee charged by Indian claims

attorneys

The contract under which the associated attorneys per-

formed their work provided for a contingent, not a fixed

fee. There was never a guarantee that they would be

paid. The attorney contract explicitly stated that payment

to the associated attorneys was to be “wholly contingent

upon a recovery for the TRIBE.” Attorney Contract be-

Ct id AANA Ra OIC allan iy gE Waaliaeee

15a

tween the White Mountain Apache Tribe and I.S. Weiss-

brodt, et al., June 17, 1966, at 48 (emphasis in origi-

nal) (“Attorney Contract”). Because the contract was

contingent, the associated attorneys were aware that there

was a chance that they would receive nothing for their

efforts.

The associated attorneys correctly state that the Court

of Claims traditionaliy awarded the full 10-percent fee in

Indian claims cases. In almost all the cases cited as sup-

port for this contention, however, the attorneys receiving

the 10-percent fee were also the attorneys who pursued

the litigation up to and through the final award.* A close

*In Western Shoshone, 228 Ct. Cl. at 41, 652 F.2d at 50, the

attorneys carried their clients’ claim through 49 years of litigation,

including resolution of unfavorable precedent, resisting offsetting

claims, and valuation of land claims. The attorneys were discharged

just four months before the Indian Claims Commission finally

issued a $26,145,189.89 award. All the work leading up to the

award except the final oral argument had been performed by the

initial attorneys, however. In Gila River Pima-Maricopa Indian

Community v. United States, 8 Cl. Ct. 569, 571 (1985), the attor-

neys brought their client’s claim through two trials and three

appeals using “extensive and novel efforts in discovery, organiza-

tion and presentation.” Even in the case involving the San Carlos

Tribe settlement, the associated attorneys were the attorneys of

record at the time a favorable award was obtained.

Uniformly, the 10-percent fee has been awarded only to the

attorneys who actually brought the client’s claim to final judgment.

See Sioux Nation of Indians v. United States, 227 Ct. Cl. 404, 650

F.2d 244 (1981) (attorneys successfully lobbied Congress to pass

law excluding offset claims against clients, overcame 2 prior ad-

verse decisions and won the largest award in tribunal’s history—

$105,994,430.52); Turtle Mountain Band of Chippewa Indians,

225 Ct. Cl. 746, 748 (1980) (attorneys established title and bound-

aries to land, determined favorable time of taking, and prevailed

on two appeals over 37 years of litigation) ; Citizen Band of Potta-

watomie Indians, 221 Ct. Cl. 847, 848 (1979) (17-page docket

showed “virtually an unbroken sequence of activity in this case

since its original filing in 1950,” including 2 appeals leading up

to $4,497,815.59 final award) ; Kickapoo Tribe of Kansas, 220 Ct.

Cl. 687 (1979) (case required 27 years, and numerous trials in-

16a

examination of these cases shows that the Court of Claims

intended the 10-percent fee as compensation for attorneys

who succeeded in prosecuting a case to a final award for

their clients. The 10-percent contingent fee was meant as

payment for a “result achieved” for the client, not an

automatic guaranteed payment for all work done. The

associated attorneys have not cited, and this court is un-

aware of any ca‘*s, in which the full 10-percent fee was

awarded to attorneys who did not participate in bringing

the claim to final judgment.

The associated attorneys now ask this court to compel

the Tribe to remit 10 percent of its judgment to attorneys

who did not participate in the suit that eventually yielded

the award, even though the Tribe has already paid the

attorney that prosecuted the case. Not unreasonably,

the associated attorneys point out that the congressionally

mandated 10-percent award is less than customary con-

tingent fee contracts. Congress presumably selected the

10-percent figure in recognition of both the magnitude of

awards in Indian Claims Commission cases and the years

of litigation effort necessary to achieve an award. There-

fore, it can be argued that a 10-percent award is ipso

facto reasonable since, being a departure from the norm

and favoring the Indians, it represents Congress’ assess-

ment of the extent to which Indian claims attorneys

should be compensated in the circumstances. Hence, the

associated attorneys argue that Mr. Veeder has been

compensated with an annual fee per his contract with

the Tribe, but they have not.

The difficulty with this approach is that it would trans-

mute the congressionally-approved maximum into a man-

volving conflicting claims, to result in a $11,427,130.00 final judg-

ment); Creek Nation, 220 Ct. Cl. 620 (1979) (attorney began re-

searching tribe’s claim in 1930, was involved in creation of Indian

Claims Commission, and spent 27 years litigating claim). While

the associated attorneys’ efforts are worthy of compensation, they

pale in comparison to the efforts that have previously warranted

a 10-percent contingency fee.

17a

dated award, whereas Congress specifically reserved to

the court the determination of a reasonable fee. Regard-

less of the favorable nature of the proposed settlement

that the associated attorneys negotiated years before,

this court does not find 10 percent of the final award to

be equitable compensation as envisioned by the contract.

The associated attorneys are entitled to compensation,

but not an amount equal to that traditionally awarded

to attorneys who have played a much greater role in ob-

taining a final award.

3. The risks involved

The associated attorneys assert that there was a sub-

stantial risk of nonrecovery when they decided to take on

the Tribe’s case in 1950. Many issues pivotal to success

on the merits were unresolved when the action was first

started. Because the associated attorneys could not be

confident of a fee commensurate with the hours devoted

to the case, they argue that a 10-percent fee is appro-

priate.

Risk does have significance in fee analysis, but its sig-

nificance is substantially diminished in the present case

due to the lack of involvement of the associated attorneys

in the litigation of the Tribe’s claims. Once the associated

attorneys decided not to pursue litigation, but instead

negotiated a settlement, the risk to them was substan-

tially reduced. Considering, in addition, the other factors

surrounding this case, the risks involved take on a rela-

tively minor importance in determining the associated

attorneys’ fees. The risk in settling the case was certainly

much less than the risk of carrying the case to trial.

4. Loyalty to the interests of the Tribe

The discharge of the associated attorneys was marred

with accusations of malpractice and incompetence made

by both Mr. Weissbrodt’s firm and Mr. Veeder. The

allegations and attacks launched by each side have bor-

18a

dered on the hysterical at points and have impaired,

rather than facilitated, a reasoned resolution to this dis-

pute.

Given the appreciable sum negotiated by the associ-

ated attorneys and the findings of the Secretary of the

Interior regarding the Weissbrodt firm’s performance as

counsel, it is unnecessary to pursue the issue of malprac-

tice and breach of loyalty any further. These allegations

are insufficiently founded to have an effect on the amount

due the associated attorneys. When this factor is viewed

in light of other considerations, especially the degree to

which the associated attorneys’ work assisted in obtaining

the final judgment, the other factors overshadow the

poorly developed and openly bellicose accusations leveled

by both sides.

5. Other considerations

The associated attorneys maintain that other factors,

including the extensive scope of the Tribe’s claims, the

skill of the attorneys, the excellent result obtained in the

proposed settlement, and the opposition encountered, sup-

port a 10-percent fee. To lend support to their claim,

they have submitted Gocumentation of the hours the firm

devoted to the Tribe’s claim and a summary of other

awards obtained by their firm for other Indian clients.

In support of their motion, the associated attorneys

submitted 56 pages summarizing the amount of time de-

voted to the Tribe’s claim between 1969 and 1982. These

submissions, however, cause concern due to the lack of

specificity regarding the nature of the work and the client

for whom the work was done. The sheets submitted con-

tain only the number of hours worked and do not provide

any sort of description of the work performed. The court

has no basis for determining whether the amounts claimed

are properly allocable to the Tribe. Cf. Naporano Iron

& Metal Co. v. United States, 825 F.2d 403 (Fed. Cir.

1987) (under Equal Access to Justice Act contempo-

19a

raneous records of time and usual rates necessary to de-

termine reasonableness of charges).

In addition, the billing sheets do not clearly define

the work devoted to the Tribe. Instead, the sheets dis-

tribute the hours worked between three clients: White

Mountain Apache Tribe, Western Apache Tribe, and

San Carlos Apache Tribe. The associated attorneys con-

tend that the settlement for ihe Tribe had the same basis

as that of a neighboring and related Western Apache

Tribe—the San Carlos Apache Tribe. Thus, much of

the work done was allocated equally between the San

Carlos Tribe and plaintiff Tribe. From 1969-1982 the

associated attorneys claim 385 hours allocable to plain-

tiff Tribe, 267.25 hours allocable to the San Carlos Tribe,

and 9,218 hours divided equally between the two tribes.

The total devoted to plaintiff Tribe would be half of the

joint total (4,609 hours), plus the amount directly com-

pleted for the plaintiff Tribe (385 hours), yielding 4,994

hours.

The court is mindful of one overriding fact that dis-

tinguishes this case from the customary motion for fees

in Indian claims cases. The associated attorneys ren-

dered their services with the expectation that they would

receive a percentage of the recovery, if any. However,

the precedent dealing with fee shifting developed during

the 1980's, largely under the aegis of the Equal Access

to Justice Act, Pub. L. No. 96-481, 94 Stat. 2328 (codi-

fied at 28 U.S.C. § 2412(d) (1988)) (the “EAJA”).

Although the Tribe insists that the associated attorneys

should take nothing because their records do not show

time spent on work and tasks performed for the Tribe,

it would be unfair to find the associated attorneys’ record-

keeping fatally defective on the basis of current standards.

The associated attorneys ask the court to take the other

extreme by awarding the flat 10-percent figure. They

hypothesize that had the Tribe accepted the $13 million

settlement in 1980, the Tribe would be in a better posi-

20a

tion than receiving an award in 1993 of $19 million. As

discussed earlier, this scenario assumes that one is com-

paring $13 million banked in 1980 with the 1993 judg-

ment. The comparison is invalid since it assumes the

Tribe would have banked all the proceeds. In fact, the

Tribe recovered substantially more in 1992 than the set-

tlement as a result of having litigated its claims. More

importantly to the Tribe, it now has the satisfaction of

knowing what its claims were worth, which, according

to the Tribal Resolution adopted April 1, 1981, was a

principal reason why the Tribe rejected the proposed set-

tlement.

The associated attorneys also hypothesize that the

Court of Claims would have awarded the 10 percent had

the Tribe accepted the settlement and the matter been

concluded in 1981. The associated attorneys therefore

question why the situation should be any different now,

especially since their contract is still valid and no other

attorney seeks to participate in the award. The long

answer is that a great deal of litigative and jurisprudential

history ensued during the last decade. Were this a case

wherein a firm was terminated incident to trial or settle-

ment, the associated attorneys’ claim would have some

ethical appeal. In this case the entire resource and fiscal

claims were developed and tried after the associated at-

torneys were no longer associated with the Tribe. A

hypothetical more fitting to the facts of the instant case

would have the Tribe rejecting the settlement in 1981

and then abandoning the claims without recovering any-

thing. In such a case, the associated attorneys could not

expect payment for their services. Cf. Knight v. United

States, 982 F.2d 1573, 1584 (Fed. Cir. 1993) (attor-

neys seeking 25-percent contingency fee were not entitled

to a fee when court of appeals decision left no basis for

plaintiff's recovery).

In short, the associated attorneys either fail or refuse

to grasp the significance of their total non-involvement

21a

in the case during the 10 years leading up to the final

award. This 10-year absence is the keystone to any

analysis of the associated attorneys’ claim. Any award

that did not account for this long period of inactivity

would be inequitable. If the associated attorneys had liti-

gated the case to its conclusion, little question would

exist that they would be entitled to the full 10-percent

fee. They did not, however. Awarding a fee to the as-

sociated attorneys based on an result obtained by another

attorney who has already been compensated would not

only be incomprehensible, it would be wrong. A con-

tingency fee is meant to be a merit-based form of com-

pensation. It is not the guaranteed windfall that the

associated attorneys appear to think it is.

B. Determination of adjusted fee that associated

attorneys are due

1. Authority of the court to determine fee

This court has authority under both the Indian Claims

Commission Act and the attorney contract between the

associated attorneys and the Tribe to determine an ade-

quate fee for services rendered to the Tribe. 60 Stat.

1053, § 15, Attorney Contract € 8. The court must use

its sound discretion in fixing an adequate fee, taking into

consideration the factors enumerated in Western Sho-

shone. In addition, when more than one attorney has

represented a claimant under separate contracts, the court

must “determine whether any of the attorneys of record

[are] entitled to compensation for [their] services in

prosecuting the claim.” Pottawatomie Tribe vy. United

States, 227 Ct. Cl. 739, 741 (1981). Once the court

makes the determination of entitlement, “ ‘their fees will

be apportioned on the entry of judgment in proportion

to the value of their services to claimants.’ ” Sisseton and

Wahpeton Bands or Tribes v. United States, 191 Ct. Cl.

459, 469, 423 F.2d 1386, 1391 (1970) (quoting Beddo

v. United States, 28 Ct. Cl. 69, 76 (1893)).

22a

Because the associated attorneys did not take part in

the litigation of the suit that led to the final award of

damages, it is inappropriate to use this award as the

measure of value of the associated attorneys’ services.

This award reflects Mr. Veeder’s work and does not re-

flect the work done by the associated attorneys.” No one

is in a better position to pass on the relative capabilities

of the associated attorneys and Mr. Veeder than this

court, whose final task after years of arduous litigation

is to assure that justice is done in a case of this magni-

tude and complexity. See Godfrey v. United States, 199

Ct. Cl. 487, 496, 467 F.2d 909, 914 (1972) (Indian

Claims Commission was in “the best position to decide

5 The court notes that the associated attorneys fault Mr. Veeder’s

conduct of the litigation and point to instances where Mr. Veeder’s

advocacy has been taken to task by other courts. This court has

presided over the White Mountain case since its assignment on

January 25, 1983, with Mr. Veeder as counsel of record during

all but 915 months. For nine years during the litigation of its

claims, the court has acquired total familiarity with the legal effort

on the Tribe’s behalf. The associated attorneys left no fingerprints

on the case that eventually was passed on to Mr. Veeder. The 1978

trial record on certain fiscal claims was unusable, and this court

tried the Tribe’s fiscal claims in full. Mr. Veeder may be difficult

and trying to the court’s patience, but he has served as an abso-

lutely dedicated advocate on the Tribe’s behalf, and the Tribe has

been fortunate to have his counsel.

The associated attorneys portray themselves as es Indian

claims attorneys. The Weissbrodt firm is a long-established Wash-

ington, DC specialist and is highly regarded within the Indian

claims legal community. The court has credited the associated

attorneys’ expertise, but this is just one factor to be taken into

consideration under Western Shoshone and, as the associated at-

torneys themselves acknowledged during oral argument, is not

one of the three most important factors to be considered in their

view (loyalty to the interests of the Tribe, risks involved, and

customary fees charged). The Court of Claims in Western Sho-

shone stated that section 15 emphasizes the results obtained and

the contingent nature of Indian claims. 228 Ct. Cl. at 41, 652

F.2d at 51. In light of the discussion of the other factors, legal

expertise certainly is not determinative.

eT bs ie

23a

the contribution of each group of lawyers” in fee litiga-

tion). Justice would be disserved if this court were re-

quired administratively to discharge 10 percent of the

Tribe’s hard-won judgment to the associated attorneys

based on the showing that has been put forward on their

behalf. Since no sum exists that actually inured to the

benefit of the Tribe from which a percentage fee can be

calculated, compensation is most appropriately awarded

using a fixed fee. In determining the reasonableness of

this figure, an hourly rate calculation gives the most ac-

curate analysis of this award.

The court recognizes that the Court of Claims explicitly

rejected use of the “lodestar” method in Western Shoshone

Identifiable Group, 228 Ct. Cl. at 39, 652 F.2d at 49.

The fixed fee the court has chosen was not derived using

the lodestar method. Rather, this method serves as a use-

ful and accurate means of assessing the reasonableness of

a fixed fee.* See Rosquist v. Soo Line R.R., 692 F.2d

1107, 1114 (8th Cir. 1982) (trial court’s comparison of

attorneys’ potential hourly award to customary contin-

gency percentages and fixed fee rates was proper). At

any rate, this case is easily distinguishable from Western

Shoshone. Unlike that case and the Cases cited therein,

this case involves attorneys who were neither under a

contract at the time of the final judgment nor involved in

any way in the litigation leading to the final judgment.

The court in Western Shoshone relied on the statutory

framework governing Indian claims cases in rejecting the

lodestar method, citing the statute’s consideration of “serv-

® Although the court tests the reasonableness of its award against

the number of hours worked, were the associated attorneys to

reopen the record to adduce support for more than approximately

5,000 hours that they documented in their original motion, the

Tribe would have the right to demand support for all hours worked,

and the proceeding would rocket out of orbit. Both parties had

ample opportunity to brief the matter in 1992. Moreover, the

hours would merely provide a test for reasonableness; the fixed

award stands alone as reasonable.

24a

ices rendered and results obtained, considering the con-

tingent nature of the case.” 228 Ct. Cl. at 39, 652 F.2d

at 49. The petitioning attorneys in that case had “ac-

complished remarkable results for their clients.” 228 Ct.

Cl. at 40, 652 F.2d at 49. Unlike the associated attor-

neys, the attorneys in Western Shoshone had taken the

case from its inception through numerous trials on differ-

ent issues over a 30-year period and were discharged a

mere 3 months before oral argument and 4 months before

the Commission issued its final judgment in favor of the

Western Shoshones. 228 Ct. Cl. at 34, 652 F.2d at 46.

The Western Shoshone court thus had little difficulty as-

sessing the benefit flowing to the claimant tribe from the

attorneys’ work.

In the instant case, it is difficult to assess what, if any,

work performed by the associated attorneys contributed

to the final judgment for the Tribe. In all other cases re-

viewed by this court, the petitioning attorneys made a

substantial, quantifiable, and easily identifiable contribu-

tion to their client’s recovery. In contrast, the services

rendered and the results obtained by the associated attor-

neys in this case are insufficiently established to justify

using a contingent fee calculation. Using a contingency

analysis would result in a valuation of the associated at-

torneys’ work that is based not on their work, but on Mr.

Veeder’s. Such a result was not contemplated by Western

Shoshone and should not apply here.

In lieu of a fixed fee based on an hourly-rate calcula-

tion, the judicially “safer” way of determining the fee

would be to resort to a percentage based calculation.

While such a calculation is feasible, it would be inherently

inaccurate and, in the view of the court, dishonest. Using

a percentage calculation, the associated attorneys would

only be entitled to a share of the 10-percent of the con-

tingency that represented their proportional contribution

to achieving the final award. In Godfrey the Court of

Claims upheld a Claims Commission decision allocating

30 percent of the final award to co-counsel because the

a

Hy

f

2

25a

efforts of lead counsel far outweighed co-counsel’s efforts.

199 Ct. Cl. at 495, 467 F.2d at 913.

Even so, resort to either the final award or the settle-

ment as the basis for calculating a percentage fee would

yield a woefully unsatisfactory result. Using a percent-

age of the final award would focus on results obtained

by a different lawyer and to which the associated attor-

neys’ efforts contributed only marginally. The percent-

age to which the associated attorneys would be entitled

would be commensurately small. Given the earlier de-

termination by this court that the work product of the

associated attorneys was virtually useless, an award of

slightly more than one percent, and not a full 10 percent,

is the maximum this court could justify awarding. Such

a fee would imply that 10 percent of the work performed

for the final award was performed by the associated attor-

neys.” Even with this generous, but quite insupportable

and speculative amount, the resulting fee would be less

than the $200,000.00 this court deems is appropriate as

a fixed fee. Alternatively, if the proposed settlement ne-

gotiated by the associated attorneys is used as the base

amount, the court would take into account the value of

the settlement to the Tribe in calculating the percentage

fee. As stated before, this settlement Was rejected and

this court may not second-guess the Tribe’s reasons for

doing so. The rejected settlement had little, if any, value

to the Tribe. Again, a generous and unavoidably specula-

tive fee of one percent * could be used to calculate the

fee, resulting in an even smaller amount.

7A 10-percent contingency award would yieid a sum of

$1,438,647.03. If the associated attorneys had performed 10 per-

cent of the work in the case, they would be entitled to 10 percent

of this sum, or $143,864.70.

8’ This would be equivalent to 10 percent of the amount tradi-

tionally awarded to attorneys who litigate a case to its conclusion

and actually obtain a tangible, monetary benefit for their client.

Again, using the method the associated attorneys Suggest, this

award would be made even though the Tribe received nothing from

the proposed settlement.

26a

In short, using a percentage-based calculation can only

result in an arbitrary, speculative, and disingenuous valu-

ation of the associated attorneys’ work. Western Sho-

shone did not contemplate a situation such as the one

at hand, and to follow the letter of this case merely be-

cause it did not anticipate the present dispute would

amount to judicial sloth. The case at hand is glaringly

different from the situation in Western Shoshone and

every other case that this court has reviewed.

2. Reasonableness of the fixed fee

The 10-percent attorneys’ fee provision of the Indian

Claims Commission Act was meant to be an absolute

limit on the compensation to be paid for “ ‘all services

rendered in prosecuting the claim in question,’ not merely

to the fee of the particular counsel whose claim is being

adjudicated.” Sisseton and Wahpeton Bands or Tribes v.

United States, 191 Ct. Cl. 459, 465, 423 F.2d 1386,

1389 (1970). While the amount that Mr. Veeder has

been paid does not of necessity determine the exact

amount to which the associated attorneys are entitled, it

does emphasize the unreasonableness of a claim to the full

10 percent. As a starting point, since Mr. Veeder has

been paid for his services, the associated attorneys cannot

be entitled to the full 10-percent fee.

The court is further concerned both with the inability

of the associated attorneys to identify in the time sheets

submitted what work was being performed by the attor-

neys and for whom. The claim that work performed by

attorneys benefited the tribes equally is not per se invalid.

See Red Lake and Pembina Bands, 173 Ct. Cl. at 937,

355 F.2d at 941. Rather, it is the claim by the asso-

ciated attorneys that the work was equally apportioned

between the two tribes that raises concerns.* Uncertainty

® The only evidence submitted by the parties that could form a

basis for evaluating the relative worth of the services to the San

Carlos Tribe and plaintiff Tribe is the proposed settlements ne-

is CORA ean ain ON Paha

:

.

.

q

.

”

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27a

arising from imprecise recordkeeping are to be resolved

against claimant attorneys. International Travel Ar-

rangers, Inc. v. Western Airlines, 623 F.2d 1255, 1278

(8th Cir.), cert. denied, 449 U.S. 1063 (1980). Al-

though the court declines to hold the associated attorneys

to recordkeeping standards developed in the 1980's, some

adjustment must be made for the lack of any meaningful

attorney billing records. The court therefore deems it

appropriate to discount by 15 percent the 4,609 hours

claimed as allocable to the Tribe, but billed as equally

split between the two tribes to compensate for the lack

of specificity. This yields 3,917.7 hours. Both this

amount and the amount directly allocated to the Tribe

(385 hours) should be discounted another 15 percent

for inability to explain what work was performed. This

leaves 3,657.3 hours properly allocable to the Tribe.

If the court were to award the full 10 percent fee

($1,438,654.53), this would result in an hourly rate of

$393.36 for the 3,657.3 hours allocable to the Tribe.

Even if the unadjusted amount claimed is used, this yields

an hourly rate-of $289.12. Such fees are unusually high

in 1993 and would have been quite unusual in the period

from 1949-1982 during which the work claimed was

actually performed.” This court may use its discretion

to adjust the number of hours requested in attorney fee

petitions. Saxton vy. Secretary of DHHS, No. 93-5007,

slip. op. at 9 (Fed. Cir. Aug. 31, 1993).

gotiated by the associated attorneys. The $13 million settlement

negotiated for the Tribe was 30-percent greater than the $10

million dollar settlement negotiated for the San Carlos Tribe. This

suggests that the associated attorneys’ services were at least that

much more valuable to the Tribe. Although the court is unwilling

to use the negotiated settlements as a basis for valuing the associ-

ated attorneys’ efforts, reference to the settlements shows that the

associated attorneys themselves did not apportion equal worth

to their work.

10The court notes that the majority of the hours—3592.75 or

72 percent of the hours claimed—were worked between 1973 and

1978.

28a

Due to the difficulty in assessing how much and what

type of work was actually performed by the associated

attorneys and the period when the work was performed,

as well as the intangible benefits flowing to the Tribe from

the associated attorneys’ work, the court finds that a flat

fee of $200,000.00 is appropriate compensation for the

work performed. This sum would amount to an hourly

rate of roughly $55.00 for the associated attorneys’ time—

an amount that more realistically refiects the rate of com-

pensation during the period of 1949 to 1982 for Indian

claims cases than the statutory limit of $75.00 per hour

later imposed by the EAJA. 28 U.S.C. § 2412(d)(2)

(A) (1988), as amended by Act of Aug. 5, 1985, Pub.

L. 99-80 §§ 2, 6, 99 Stat. 184, 186 (1988).

The court finds a $55.00 hourly rate reasonable and

appropriate for the duration of the services performed—

1949-1982. Although this rate is substantially below the

$200-$300.00 rate suggested by the associated attorneys

in their supplemental brief, it is reasonable under the

circumstances of the case. The plaintiff from whom the

associated attorneys seek payment is an improverished

Indian tribe. In the interest of justice, the impoverished

state of the Tribe should be taken into account in fixing

an appropriate fee.

In 1973 the United States District Court for the Dis-

trict of Columbia approved an attorneys’ fee award in an

Indian claim case based on a rate of $30.00 per hour.

While the court referred to this as a “bedrock minimum”

for compensation, it provides a useful, and unusually

rare, point of comparison for awards involving Indian

claims at this time. Pyramid Lake Paiute Tribe of Indians

v. Morton, 360 F. Supp. 669, 672 (D.D.C. 1973), rev’d

on other grounds, 499 F.2d 1095 (D.C. Cir. 1974),

cert. denied, 420 U.S. 962 (1975). The court based its

finding on the impoverished nature of the plaintiff, the

significant harm to the Tribe caused by the Government,

the intransigent action of defense counsel, and the en-

hancement of public interests accomplished by the suit.

29a

Similar factors present in the case at bar support the rea-

sonableness of the $200,000.00 flat fee.

The associated attorneys submit that the court should

calculate the appropriate fee using the customary hourly

rate charged for similar work in 1993. Citing Catlett v.

Missouri Highway & Transp. Comm'n, 828 F.2d 1260,

1271 (8th Cir. 1987), cert. denied, 485 U.S. 1021

(1988), the associated attorneys argue that the delay in

receipt of fee payment so dilutes the award as to make

it unreasonable. Under Missouri vy. Jenkins, 491 USS.

274, 278-84 (1989), a court may adjust for such dilution

by basing the fee award on current rates or by determin-

ing the present value of the award.

Before a court adjusts a fee, however, it must deter-

mine that the delay in payment makes the fee unfair.

Such a situation does not exist in the present case. Again,

the absence of the associated attorneys from the 9 years

of active litigation leading up to the award is crucial to

the analysis. The delay in payment of the fee award was

not caused by an intractable client; it occurred because

the associated attorneys were discharged and another at-

torney undertook to prosecute the Tribe’s claims from

beginning to end without any contribution from the as-

sociated attorneys. The Tribe was essentially forced to

Start over with its claims.

This court is not the proper forum to determine

whether or not the discharge of the associated attorneys

by the Tribe was justified. The court merely acknowl-

edges that it occurred; the record provides no basis for

an inference that the discharge wrongfully prejudiced the

associated attorneys. Absent such a showing, the delay

cannot be viewed as unfair. Were this court to use the

present rates suggested by the associated attorneys, it

would result in an unearned windfall to them and an un-

justifiable penalty to the Tribe. No adjustment for delay

is warranted in this case.

30a

Finally, the associated attorneys claimed in their mo-

tion for leave to supplement the record with information

relative to the lodestar approach that they were unaware

that the court was considering awarding a fixed fee. As

discussed in the procedural history of the case, this in-

tention was made clear in two prior orders filed by this

court approximately one year before the associated at-

torneys filed their motion to supplement. This objection

therefore is unfounded.

II. Attorneys’ expenses

Mr. Weissbrodt seeks reimbursement for expenses total-

ling $75,205.44. In order for an attorney to recover ex-

penses for services rendered, “[t]he petition for reimburs-

able expenses shall be itemized showing time, place, pur-

pose and amount of each item incurred or paid by the

applicants, and as to items paid by or on behalf of the

applicants there shall be filed with the petition, receipts or

other evidences of payment... .” 25 C.F.R. § 503.34b

(a) (1979). The documentation submitted in support of

Mr. Weissbrodt’s motion shows nine categories of ex-

penses:

A. Purchase of Materials and Services: $ 1,299.01

B. Expert Ass, tance:

1. Berman, Goldman & Ribakow—

Accountants $13,105.00

2. Nicklason Research Associates—

Historians $26,726.08

3. William Woolford & Associates—

Range Experts $ 2,935.91

4. Wesley Rickard, Inc.—

Timber Experts $ 6,226.50

C. Research Assistant $12,786.36

D. Travel Expenses $ 1,356.61

E. Stenographic, Typing & Clerical

Services $ 6,966.41

mnt af iw Biss Sauce aiid lier nati

3la

F. Long Distance Telephone $ 500.10

G. Local Fares $ 245.43

H. Duplication of Documents $ 3,011.75

I. Extra Postage $ 46.28

Total $75,205.44

In support of these expenditures, Mr. Weissbrodt has

submitted detailed records, including attorney affidavits,

cancelled checks, invoices, ledger entries, receipts, and

other documentation indicating the persons or firms pro-

viding the services and the dates and amounts paid for

such services. The expenses are, on the whole, well doc-

umented and specifically designated as allocable to the

Tribe.

The Tribe has claimed that some of the expert witness

fees should not be allowed because they might have been

paid out of an expert witness loan obtained by the Tribe

from the Department of Interior. The loans, however,

were obtained after the periods claimed by the associated

attorneys. The court finds the documentation submitted

sufficient to prove the amounts claimed. All expenses

claimed will be allowed.

CONCLUSION

I.S. Weissbrodt’s motion for attorneys’ fees and ex-

penses is granted to the following extent: The court

awards the associated attorneys a fee of $200,000.00 for

services rendered to the Tribe in the prosecution of Doc-

ket No. 22-H, plus expenses, for a total award of

$275,205.44. The Clerk of the Court shall enter judg-

ment accordingly.

IT IS SO ORDERED.

No costs.

/s/ Christine Cook Nettesheim

CHRISTINE Cook NETTESHEIM

Judge

32a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal Nos. 85-895 and 85-1348

WHITE MOUNTAIN APACHE TRIBE OF ARIZONA,

Appellant/Cross-A ppellee,

V.

THE UNITED STATES,

Appellee/Cross-A ppellant.

DECIDED: August 7, 1985

Before BALDWIN, NEWMAN, and BISSELL, Circuit

Judges.

BALDWIN, Circuit Judge.

DECISION

The decision of the United States Claims Court, dis-

missing with prejudice all claims of the White Mountain

Apache Tribe (Tribe) for failing to comply with pretrial

orders of that court, is vacated and remanded. The Claims

Court’s entry of judgment in the amount of $10 million

in favor of the Tribe is also vacated.

33a

OPINION

Dismissal of the Tribe’s Claims

Although we see no error in the Claims Court’s orders

requiring the pretrial preparation and exchange of expert

reports, we send this case back to the Claims Court to

give the Tribe one final Opportunity to comply with that

court's pretrial orders. We do so because we believe that

the Tribe’s failure to comply has been based on its mis-

understanding of the effect of the Claims Court’s orders

and the procedural rules and law supporting those orders.

We also rely on the sincerity of the representations made

by the Tribe’s counsel at oral hearing before us that the

Tribe is ready and willing to comply with lawful court

orders.

The Tribe’s main concern js that the Claims Court’s

order would deny the Tribe its “day in open court.” This

concern is unfounded.

The November 7, 1983 Order permits the parties to

proceed by both written and oral testimony at trial. In

the February 7, 1984 Opinion and Order, the court

reiterated its intent to hear oral testimony of witnesses

at trial:

[T]rial, insofar as expert testimony is concerned, will

be based on, but by no means limited to, expert

reports. An expert’s direct. testimony can highlight

his report, explain points that require elaboration,

and summarize. Cross-examination will proceed in

open court.

Even at oral hearing before us, counsel for the Tribe

agreed that the Claims Court orders would not bar it

from presenting oral testimony. The Tribe’s contention,

based on the Claims Court Rules including rule 43(a), is

simply that the Claims Court cannot receive into evidence

at trial any amount of written testimony (e.g., in the form

34a

of written expert reports )—that is, all evidence introduced

at trial must be by means of oral testimony.

This court’s August 1, 1984 order (No. 84-1434) rejects

the Tribe’s contention and is law of the case. The Claims

Court’s pretrial orders are consistent with that court’s

rules and the applicable Federal Rules of Civil Procedure

incorporated by those rules. Indeed, the use of written

expert reports makes good sense in this unique case where

the Tribe’s claims are admittedly complex and involve

thousands of pages of archival documentation stretching

over a period of at least 75 years.

The Tribe’s further contention, that the Claims Court

orders deprive it of constitutional due process, is pre-

mature. There has been no trial yet. Nor has the Claims

Court done anything to indicate that it would deprive

the Tribe of a proper opportunity to present its case and

counter the government’s case at the forthcoming trial.

We leave it to the Claims Court judge on remand to

allow the Tribe a reasonable time to comply with its

pretrial orders.

The Award of $10 Million

That part of the Claims Court’s judgment awarding $10

million to the Tribe must be vacated as there is no juris-

dictional basis for such an award. The government’s

earlier offer of settlement cannot be used as a basis for an

award in lieu of evidence adduced at trial.

Although the Tribe may justly deserve an award on its

fiscal and mismanagement claims, justice requires that the

Tribe prove the merit of its claims by a trial according to

orderly court procedures.

‘s ———

35a

BISSELL, Circuit Judge, dissenting in part.

I respectfully dissent from that portion of the ma-

jority’s decision which vacates the decision of the Claims

Court dismissing the Tribe’s claims. Although I am not

without sympathy for the majority’s view, the question is

not whether this court as an original matter would have

dismissed the action; it is whether the Claims Court abused

its discretion in so doing. National Hockey League vy.

Metropolitan Hockey Club, Inc., 427 U.S. 639 ( 1976).

Under the circumstances of this case, I can find no

abuse of discretion on the part of the Claims Court and

thereby no grounds for reversal. By reversing, absent a

finding of an abuse of discretion, we undermine the neces-

sary power of the Claims Court to invoke sanctions in

order to prevent undue delays in the disposition of pend-

ing cases and to avoid congestion in its calendar. Link v.

Wabash Railroad Co., 370 U.S. 626 (1962).

As was stated in National Hockey League:

There is a natural tendency on the part of review-

ing courts, properly employing the benefit of hind-

sight, to be heavily influenced by the severity of out-

right dismissal as a sanction for failure to comply

with a discovery order. It is quite reasonable to con-

clude that a party who has been subjected to such an

order will feel duly chastened, so that even though

he succeeds in having the order reversed on appeal

he will nonetheless comply promptly with future dis-

covery orders of the district court.

But here, as in other areas of the law, the most

severe in the spectrum of sanctions provided by stat-

ute or rule must be available to the district court in

appropriate cases, not merely to penalize those whose

conduct may be deemed to warrant such a sanction,

but to deter those who might be tempted to such

conduct in the absence of such a deterrent.

National Hockey League, 427 U.S. at 642-43.

36a

It logically follows that the Tribe may faithfully comply

with all future pretrial orders entered by the Claims Court,

but other parties to other lawsuits may well feel freer,

than I think Claims Court Rules 16 and 37 contemplate

they should feel, to flout other pretrial orders of the

Claims Court.