Ambitious land valuation sinks attorney fee request

“Hoist by your own petard: if you are hoist by your own petard, something that you did in order to bring you advantages or to harm someone else is now causing serious problems for you.” Cambridge Idioms Dictionary, 2nd ed. Copyright © Cambridge University Press 2006.

For more than 20 years, Manuel Moroun and the federal government have been tussling about some property Moroun owns near the Ambassador Bridge. Moroun also owns the bridge.

A slow, endless stream of truck traffic flows between Detroit and Windsor, Ontario over Moroun’s bridge. This is great business for Moroun, so much so that he’d like to build another bridge. So would a lot of other folks. The politicians in Lansing have been trying to sort it out for years.

Sometime in the 1970s, the federal government decided that Moroun’s bridge needed a bigger customs facility and that Moroun’s land near his bridge would be the perfect spot. The government filed a condemnation action in 1979.

The haggling about the property’s value dragged on until 2002, when a jury in U.S. District Court Judge Gerald Rosen’s courtroom settled the matter.

The feds offered an appraisal of $923,000. It was Moroun’s turn next. But before Moroun took the stand, Rosen told that jury that whatever Moroun said wasn’t evidence about the land’s actual value. Moroun’s figure could only be considered as his personal belief about what the land was worth.

Moroun’s figure for the jury was $13 million.

Next, Moroun’s expert took the stand and said that if the land’s use was “integrated” with the bridge, the value was $8.1 million. At the government’s urging, Rosen told the jury to disregard that figure and told the expert to try again because an integrated use was not a compensable use.

The expert settled on $6.1 million, based on the land’s proximity to the bridge.

The jury awarded Moroun a shade over $4 million in just compensation.

Well, okay, the Moroun camp figured, $4 million is closer to $6 million, the only number we came up with that the jury could consider. And $4 million is way more than the $923K the government was talking about, so we should be all set for a $2.8 million attorney fee award. We’ve prevailed under the Equal Access to Justice Act.

Not so fast, ruled Rosen. You guys didn’t prevail. Moroun said the land was worth $13 million. The EAJA says you’re stuck with that figure. $4 million is a long way from $13 million and a lot closer to $923K. Sorry, no fees for you.

“Huh?” said the Moroun camp. “That’s right,” said the Sixth Circuit.

In a classic bit of judicial understatement, Sixth Circuit Judge Boyce Martin Jr. observed, “In a condemnation action, it is not always immediately obvious who prevailed.”

That’s because even if the government gets the land, if the property owner’s valuation is closer to the jury’s award than government’s valuation, the property owner prevails for purposes of claiming attorney fees from the government.

A prevailing party in a condemnation case, in the thick words of the EAJA, is “a party who obtains a final judgment (other than by settlement), exclusive of interest, the amount of which is at least as close to the highest valuation of the property involved that is attested to at trial on behalf of the property owner as it is to the highest valuation of the property involved that is attested to at trial on behalf of the Government.” EAJA § 2412(d)(2)(H).

The key word in that long, tortured sentence is “attested.”

Moroun argued mightily that if the jury couldn’t consider his $13 million figure as evidence of what the property was worth, then it shouldn’t be used as a benchmark to determine whether he gets attorney fees.

But that’s not how the EAJA works, explained Martin:

A plain reading of the Act compels the conclusion that valuations testified to at trial be used in performing the prevailing party calculation even if the finder of fact is not permitted to consider them. “Attested” means only that the fact is affirmed to be true. Black’s Law Dictionary 147 (9th ed. 2009) … .

Consistent with the text of the statute, Moroun’s $13 million subjective valuation was a valuation “attested to at trial,” even though the district court instructed the jury not to consider it. …

Therefore, the highest value attested to on behalf of International Bridge Company was the $13 million figure offered by Moroun. Based on this, the district court correctly concluded that International Bridge Company was not the prevailing party.

We cannot substitute our judgment for that of Congress’ and rewrite the statute even though determining the prevailing party based on values that the finder of fact was prohibited from considering is somewhat inconsistent with how we typically treat excluded evidence. …

Were we charged with developing a metric to determine the prevailing party in a condemnation action, we might elect to do so differently. …

[T]he Act’s definition of prevailing party based on valuations attested to at trial may have unintended consequences because it includes valuations testified to but ultimately not accepted into evidence.

As to that last paragraph, I’m sure Moroun would attest to that.

The case is United States v. Certain Land, et al.