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