Haggart v. United States

  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), 

 (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),

, 81 (2018) (J.A. 28–39); see J.A. 40
(Rule 54(b) Judgment).
    The Government appeals. We have jurisdiction pursu-
ant to 

(a)(3) (2012). We affirm.
                       BACKGROUND 1
    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), 

 (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 

 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), 

, 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. 

. 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.” 

. 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.” 

 at 1357–58; see 

(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, 

 (2013) (quoting Boeing
Co. v. Van Gemert, 

 (1980)); see Knight v.
United States, 

 (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, 

; 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, 

. 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.]” 

 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), 

 (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,” 

.
     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., 

 (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., 

 (Fed. Cir. 2002) (citing Chambers v. NASCO,
Inc., 

 (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, 

 (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.,

 (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, 

 (Fed. Cir. 1996) (en
banc). An agreement may be abandoned only through mu-
tual assent of the parties, see, e.g., Graham v. James, 

 (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., 

, 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,

; see, e.g., Anstalt v. F.I.A. Ins. Co., 

, 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, 

 (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, 

. The court accordingly
concluded that the Settlement Agreement “remains a bind-
ing and enforceable contract.” 

. 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, 

. 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, 

.
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 

 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, 

 (W.D. Wash. Aug. 23, 2016), aff’d, No. 16-35768,
12                                 HAGGART v. UNITED STATES

 (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 

, at *1. King
County counterclaimed to quiet title against the plaintiffs.
See 

 The district court issued decisions on summary
judgment in favor of the defendants, ultimately dismissing
plaintiffs’ claims and quieting title to King County. See 

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, 

. 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, 

, 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, 

 (1981) (ci-
tation omitted); see 

(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., 

(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., 

 (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, 

 (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, 

 (Fed. Cir. 2013)
(citation omitted).