United States District Court for the District of Columbia
May 27, 2004.
ELOUISE PEPION COBELL, et al., Plaintiffs,
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 , filed on November 26, 2003; 2) Plaintiffs'
Bill of Cost , filed December 16, 2003; 3) Plaintiffs' Request for
an Award of Attorney's Fees and Expenses Pursuant to the Equal Access to
Justice Act , filed on October 9, 2003. Related to these filings
are Plaintiffs' Motion for Enlargement of Time , filed on October
15, 2003, Plaintiffs' Motion to Amend Their Bill of Costs , 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 , 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 
("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
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
II. Plaintiffs' Bill of Cost .
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)  ("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
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  ("Plaintiffs' EAJA
Plaintiffs request an award of attorney's fees under the Equal Access
to Justice Act ("EAJA"), 28 U.S.C. § 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 discrete to be treated as a separate unit', Van Hoomissen
v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974)." H.R. Conf. Rep.
No. 96-1434, at 22 (1980), reprinted in 1980 U.S.C.C.A.N. 5003, 5011.
The Court will examine each of the proceedings for which plaintiffs
request fees and determine if it is appropriate for an interim award of
fees either because it was central to the case or because it was an
interlocutory appeal that is "sufficiently significant and discrete to be
treated as a separate unit." Van Hoomissen, 503 F.2d at 1133. In the
Phase 1.0 trial plaintiffs achieved many significant results on issues
central to the case. The Court certified the opinion for interlocutory
appeal and was affirmed. See Cobell v. Norton, 240 F.3d 1081 (D.C. Cir.
2001). The Phase 1.0 opinion meets the criteria in the legislative history: it
resolved issues central to the case, set the stage for future relief for
plaintiffs, and as an interlocutory appeal was both significant and
discrete. The Court finds it appropriate to consider an interim award of
fees for the Phase 1.0 trial. Further, any fee petition submitted as to
Phase 1.0 should by necessity include all appropriate time expended by
plaintiffs since the inception of the suit with the exception of the
Court's award of fees for the first contempt trial. See Cobell v.
Babbitt, 188 F.R.D. 122 (D.D.C. 1999). That opinion analyzed plaintiffs'
time entries in order to provide future guidance on subsequent fee
petitions regarding other hours incurred at that time.
The second contempt trial is not an appropriate proceeding for an award
of interim fees. The Court of Appeals vacated the contempt findings and
award of attorney's fees to the plaintiffs. Plaintiffs are not prevailing
parties and the procedural orders remaining after appeal are insufficient
to make plaintiffs prevailing parties for that proceeding. See Thomas v.
Nat'l Science Found., 330 F.3d 486, 493 (D.C. Cir. 2003) (noting that
where a Court entered a preliminary injunction in a party's favor but the
injunction did not change the legal relationship in a way that afforded
the party the relief they sought that the party was not entitled to an
attorney's fee award). But some findings of fact set forth in the second
contempt opinion were relied upon by this Court in the Phase 1.5
proceeding. Cobell v. Norton, 283 F. Supp.2d 66, 85 (D.D.C. 2003)
("Because the D.C. Circuit did not set aside the findings of fact made in
this Court's September 17, 2002 memorandum opinion, the Court will treat
those factual findings as having been established."). Therefore, if
plaintiffs file an EAJA application for the Phase 1.5 proceeding, see
discussion infra, they may include in that application those hours
expended relating to the findings of fact established at the second
contempt trial and later relied upon by this Court in the Phase 1.5
opinion. Defendants may, of course, at that time contest whether such work is properly compensable as part of the Phase 1.5 proceeding.
The Phase 1.5 trial resulted in an opinion by this Court that is
currently on appeal with oral arguments set for fall 2004. It is not an
appropriate proceeding for an award of interim fees at this time.
Plaintiffs' request as to Phase 1.5 is premature and shall be denied
without prejudice to refile at the conclusion of the appeal, if
Plaintiffs request an award pursuant to two separate sections of EAJA.
Plaintiffs move for fees under 28 U.S.C. § 2412 (d) (2004) and
28 U.S.C. § 2412 (b) (2004). § 2412(d) sets forth a statutory scheme for
awarding attorney's fees against the government and includes an hourly
rate cap of $125/hour. See 28 U.S.C. § 2412 (d)(2)(A)(ii). An application
for fees under this section should include all information required by §
2412(d), which usually includes: (1) Affidavits asserting total number of
hours spent; (2) Detailed contemporaneous time records showing itemized
statements of tasks performed by attorney and including rates; (3)
Information on normal billing rate charged by attorney or firm for all
time periods in question; (4) Biographical information on petitioning
attorneys; (5) Information on the novelty and difficulty of the case; and
(6) Information on awards in similar cases.
§ 2412(b) provides that the "United States shall be liable for such
fees and expenses to the same extent that any other party would be liable
under the common law or under the terms of any statute which specifically
provides for such an award." Under the American rule, "common law as a
general matter precludes the award of attorneys' fees from the losing
party to the prevailing party." Am. Hosp. Ass'n v. Sullivan, 938 F.2d 216,
219 (D.C. Cir. 1991). But an exception to the American rule allows the
award of attorney's fees "where the losing party acted in bad faith."
Id; see P.P. Rich Co. v. United States, 417 U.S. 116, 129 (1974)
(acknowledging exception to the American common law rule in cases where
an opponent acts in bad faith, vexatiously, wantonly, or for oppressive reasons). There is no statutory
ceiling on the hourly rate used to calculate attorneys fees under §
2412(b) and so "an award of attorney's fees for bad faith can be
calculated at market rates." Gray Panthers Project Fund v. Thompson,
304 F. Supp.2d 36 (D.D.C. 2004); see also Kerin v. U.S. Postal Serv.,
218 F.3d 185, 190-91 (2d Cir. 2000).
An award of attorney's fees under § 2412(b) can take place where "the
bad faith (1) occurred in connection with the litigation, or (2) was an
aspect of the conduct giving rise to the lawsuit." Am. Hosp. Ass'n, 938
F.2d at 219 (citing Nepera Chem., Inc. v. Sea-Land Serv., Inc.,
794 F.2d 688, 701 (D.C. Cir. 1986)). As an example, a court can find bad
faith in a party's pre-litigation conduct where "a party, confronted with
a clear statutory or judicially-imposed duty towards another, is so
recalcitrant in performing that duty that the injured party is forced to
undertake otherwise unnecessary litigation to vindicate plain legal
rights." Id. at 220. (quoting Fitzgerald v. Hampton, 545 F. Supp. 53, 57
(D.D.C. 1982); citing American Employers Ins. Co. v. American Sec. Bank,
747 F.2d 1493, 1502 (D.C. Cir. 1984)).
The "substantive standard for a finding of bad faith is `stringent' and
`attorneys' fees will be awarded only when extraordinary circumstances or
dominating reasons of fairness so demand.'" Ass'n Of Am. Physicians &
Surgeons, Inc. v. Clinton, 187 F.3d 655, 660 (D.C. Cir. 1999) (quoting
Nepera Chem., Inc, 794 F.2d at 702). In addition, the finding of bad
faith must be supported by "clear and convincing evidence." Id.
Furthermore, where a district court opinion has had "insufficient
evidence in the record to satisfy the stringent bad faith standard," the
Court of Appeals for this Circuit has reversed findings of bad faith as
clearly erroneous. Ass'n Of Am. Physicians & Surgeons, Inc., 187 F.3d at
660-61. Advice from the D.C. Circuit is that "generally  the trier of
fact, [should] view each party's pile of evidence [and] reach a firm
conviction of the truth on the evidence about which he or she is
certain." Id. Plaintiffs indicate that they are seeking an award of attorneys fees under this section and
thus should support such an application with detailed factual support and
not merely make an offhand reference to "more than 59 published opinions
of this Court [that] chronicle this unprecedented saga of misbehavior and
bad faith." Pls.' EAJA Mot. at 26. As plaintiffs' are seeking an award
under § 2412(d) and § 2412(b) they should include alternative fee
calculations based on EAJA capped rates, market rates, and rates under
the Laffey matrix.
Having determined that plaintiffs are not eligible for an award of fees
under EAJA for the second contempt proceeding and that an interim award
of fees is inappropriate at this time for the Phase 1.5 proceeding, the
Court shall order plaintiffs to submit their EAJA application for work
done through the Phase 1.0 proceeding. The Court will consider a motion
for fees under both § 2412(b) and § 2412(d). Plaintiffs shall have 30
days in which to file their request. Defendants shall have 20 days in
which to challenge plaintiffs' fee petition. Defendants' challenge must
identify the type of work being challenged, and must specifically state
the grounds for contending that the hours, or the hourly rates, claimed
are unreasonable. Defendants' challenge must be specific and clear enough
to allow plaintiffs an opportunity to respond and defend their request.
Plaintiffs shall have 10 days in which to file their reply.
Upon consideration of the aforementioned motions related to plaintiffs'
fees and expenses, it is hereby:
ORDERED that Plaintiffs' Request for Award of Attorney's Fees and
Related Expenses Based Upon Findings Establishing Defendants' Litigation
Misconduct  is hereby DENIED; it is
ORDERED that Plaintiffs' Bill of Cost  is hereby DENIED without
prejudice and plaintiffs are ORDERED to file any interim bill of costs through the Phase
1.0 proceeding with the Clerk within thirty days of this date; it is
ORDERED that the Clerk tax costs through the Phase 1.0 proceeding after
considering plaintiffs' bill of costs and any objection submitted by
defendants under LCvR 54.1(b); it is
ORDERED that Plaintiffs' Motion for Enlargement of Time  is
GRANTED nunc pro tunc; it is
ORDERED that Plaintiffs' Motion to Amend Their Bill of Costs  is
DENIED AS MOOT; it is
ORDERED that Plaintiffs' Request for an Award of Attorney's Fees and
Expenses Pursuant to the Equal Access to Justice Act  is DENIED
without prejudice; it is
ORDERED that plaintiffs shall submit an EAJA application for interim
fees through the Phase 1.0 proceeding within thirty days of this date and
that defendants shall have twenty days from the date of receipt of
plaintiffs' EAJA application to file an opposition and plaintiffs shall
have a further ten days from that date to file a reply; and it is
ORDERED that Plaintiffs' Motion for Enlargement of Time Within Which to
File Supporting Attorney and Expert Witness Documentation re EAJA Fee
Application  is DENIED AS MOOT.