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COBELL v. NORTON

May 27, 2004.

ELOUISE PEPION COBELL, et al., Plaintiffs,
v.
GALE A. NORTON, Secretary of the Interior, et al., Defendants



The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge

MEMORANDUM AND ORDER

Before the Court are: 1) Plaintiffs' Request for Award of Attorney's Fees and Related Expenses Based Upon Findings Establishing Defendants' Litigation Misconduct [2399], filed on November 26, 2003; 2) Plaintiffs' Bill of Cost [2428], filed December 16, 2003; 3) Plaintiffs' Request for an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to Justice Act [2328], filed on October 9, 2003. Related to these filings are Plaintiffs' Motion for Enlargement of Time [2336], filed on October 15, 2003, Plaintiffs' Motion to Amend Their Bill of Costs [2436], filed on December 23, 2003, and Plaintiffs' Motion for Enlargement of Time Within Which to File Supporting Attorney and Expert Witness Documentation re EAJA Fee Application [2345], filed on October 23, 2003. The Court will examine each motion in turn.

I Plaintiffs' Request for Award of Attorney's Fees and Related Expenses Based Upon Findings Establishing Defendants' Litigation Misconduct [2399] ("Motion for Litigation Misconduct Fees").

  Plaintiffs seek fees and expenses due to defendants' "litigation misconduct," as described by the Court in its opinion following the second contempt trial, Cobell v. Norton, 226 F. Supp.2d 1, 152-155 (D.D.C. 2002). Plaintiffs acknowledge that the Court's opinion was vacated on appeal, see 334 F.3d 1128 (D.C. Cir. 2003), yet maintain that nothing in the D.C. Circuit's decision prevents this Court from awarding attorneys fees due to defendants' litigation misconduct. Mot. for Litigation Misconduct Fees at 1-7, 13-20. Plaintiffs are incorrect. The Court ordered defendants to pay the plaintiffs' reasonable expenses, including attorneys' fees, "as a result of the defendants' contumacious conduct." 226 F. Supp.2d at 153. However, the contumacious conduct in issue included: (1) failing to comply with the Court's Order of December 21, 1999, to initiate a Historical Accounting Project; (2) committing a fraud on the Court by concealing the [Interior] Department's true actions regarding the Historical Accounting Project during the period from March 2000 until January 2001; (3) committing a fraud on the Court by failing to disclose the true status of the Trust Asset and Accounting Management System project ("TAAMS") between September 1999 and December 21, 1999; (4) committing a fraud on the Court by filing false and misleading quarterly status reports, starting in March 2000, regarding TAAMS and data cleanup by the BIA; and (5) committing a fraud on the Court by making false and misleading representations starting in March 2000, regarding the computer security of IIM trust data. Cobell v. Norton, 334 F.3d at 1135. Each of these findings were subsequently overturned by the Circuit which held: "[t]he Contempt Order is vacated insofar as it sanctions the defendants on specifications one through five and directs the payment of expenses and fees incurred by the plaintiffs." 334 F.3d at 1150.

  The Court's finding of misconduct was tied directly to those five counts which the Circuit overturned and for which the Circuit explicitly denied Plaintiffs the right to collect fees. Plaintiffs' request for fees arising from the second contempt trial is denied.

  Plaintiffs also request that this Court order "a broad compensatory award of attorney's fees" as sanction for defendants' "well-documented history of litigation misconduct from the outset." Mot. for Litigation Misconduct Fees at 9-10. Plaintiffs have not, however, identified specific instances of misconduct nor detailed any costs or expenses they incurred as a result. This failure is fatal to plaintiffs' request and it therefore shall be denied, except as discussed below.

 II. Plaintiffs' Bill of Cost [2428].

  Plaintiffs also seek to have costs assessed against defendants for the Phase 1.0 trial and the Phase 1.5 trial pursuant to Federal Rule of Civil Procedure 54(d) which provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Defendants contest plaintiffs' bill of costs as premature. Defendants are only partially correct. LCvR 54.1(c) provides that, "[t]he Clerk shall tax costs after the judgment has become final or at such earlier time as the parties may agree or the court may order." (Emphasis added). These rules vest the Court with discretion to award costs before final judgment. See Friends For All Children, Inc. v. Lockheed, 725 F.2d 1392, 1396 (D.C. Cir. 1984) ("Nor do we doubt the discretionary power of a trial judge to order payment of costs pendente lite, in an appropriate case, in favor of a party properly designated as a prevailing party. We are of the view, however, that to qualify as a prevailing party, and thus be eligible for an interlocutory award of costs, one must establish a right or entitlement to some relief on the merits of one or more of his claims"). It is clear plaintiffs have prevailed on those issues related to the Phase 1.0 trial both in this Court and on appeal. Cobell v. Babbitt, 91 F. Supp.2d 1 (D.D.C. 1999), affirmed, 240 F.3d 1081 (D.C. Cir. 2001). Defendants, for their part, concede that "Plaintiffs probably are prevailing parties for the Phase 1 trial." Defs.' Opp'n to Pls.' Req. for an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to Justice Act at 11 (Oct. 24, 2003) [2346] ("Defs.' Opp'n to Pls.' EAJA Motion"). The Court hereby awards plaintiffs fees and costs from the Phase 1.0 trial, subject to the terms set out below.

  Plaintiffs' request for an award of fees and expenses for prosecuting the Phase 1.5 trial, however, is premature. The Court's rulings in that trial are currently pending appeal and no final judgment has been rendered. See LCvR 54.1(c) (defining final judgment as "when the time for appeal has expired and no appeal has been taken, or when the court of appeals issues its mandate").

  The bill of costs filed by plaintiffs includes both Phase 1.0 and Phase 1.5 costs. As the Court has determined that it is not appropriate to consider Phase 1.5 costs at this time, plaintiffs' current bill of costs shall be denied.

  LCvR 54.1 sets forth the procedure for submitting a bill of costs. In accordance with LCvR 54.1(c), the Clerk shall tax costs through the Phase 1.0 proceeding. Plaintiffs are directed to submit their bill of costs to the Clerk within thirty days of this date. Defendants may file objections pursuant to local rule. See LCvR 54. l(b) ("A party from whom costs are sought may file an opposition to the bill of costs within 11 days after service of the bill."). The Clerk shall thereafter act on the bill of costs. Either side may thereafter file a motion to retax costs pursuant to LCvR 54.1(e), and the Court shall then determine any remaining contested issues regarding costs.

 III. Plaintiffs' Request for an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to Justice Act [2328] ("Plaintiffs' EAJA Motion").

  Plaintiffs request an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. ยง 2412 (2004). Plaintiffs seek an EAJA award of fees for the Phase 1.0 trial, the second contempt trial, and the Phase 1.5 trial. Defendants object on numerous grounds and claim the request is "fatally defective on its face," Defs.' Opp'n to Pls.' EAJA Motion at 2, on grounds that plaintiffs have failed to offer any supporting documentation. Defendants are correct. The Court therefore shall direct plaintiffs to refile their request for attorney's fees in accordance with this opinion.

  As an initial matter, the Court must first determine whether it is appropriate to consider making an interim award of fees in this case. Defendants correctly state that "courts have recognized the propriety of an award of interim attorney fees where a party establishes an entitlement to final relief on the merits of a claim before the termination of the litigation as a whole." Defs.' Opp'n to Pls.' EAJA Motion at 2.*fn1 The legislative history of EAJA supports interim awards and even cites a district court case in this circuit: "[a]n award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F. Supp. 1059, 1064 (D.D.C. 1976), or where an interlocutory appeal is `sufficiently significant and ...


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