United States District Court, D. Arizona
K. DUNCAN UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiffs' fully briefed application
for fees under the Equal Access to Justice Act
(“EAJA”). (Docs. 67, 70, 71) As detailed below,
the Court concludes that Plaintiffs are entitled to an award
of $33, 363.15.
and Procedural Background
Routsons initiated this matter as an appeal from an adverse
administrative decision at the Bureau of Land
Management's Interior Board of Land Appeals (IBLA). (Doc.
25) After the Court denied Defendants' motion to dismiss,
both parties filed motions for summary judgment. (Docs. 30,
42, 44) The Court concluded that the IBLA decision was based
on a land survey that appeared to be erroneous and so it
denied both motions and remanded for further proceedings.
EAJA, “a court shall award to a prevailing party other
than the United States fees and other expenses . . . incurred
by that party in any civil action . . . against the United
States . . . unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A). “The dual factors of (1) a material
alteration in the parties' legal relationship that is (2)
judicially sanctioned comprise the current test for whether a
litigant is a ‘prevailing party.' The issue here is
whether the results of this litigation pass muster under that
test.” Ali v. Gonzales, 486 F.Supp.2d 1197,
1201 (W.D.Wash., 2007).
creates a presumption that fees will be awarded unless the
government's position was substantially justified.”
Thomas v. Peterson, 841 F.2d 332, 335
(9th Cir. 1988). This means “justified in
substance or in the main-that is, justified to a degree that
could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). The government has
the burden to show that its position was substantially
justified. Tobeler v. Colvin, 749 F.3d 830, 832
(9th Cir. 2014).
as the moving party, have the burden of establishing that
their fee request is reasonable. Golden Gate Audubon
Soc., Inc. v. U.S. Army Corps of Engineers, 738 F.Supp.
339, 344 (N.D. Cal., 1988) (citing Blum v. Stenson,
465 U.S. 886, 896 (1983)). To demonstrate that a fee
enhancement is appropriate, Plaintiffs must demonstrate that
(1) “the attorney must possess distinctive knowledge
and skills developed through a practice specialty, ”
(2) “those distinctive skills must be needed in the
litigation, ” and (3) “those skills must not be
available elsewhere at the statutory rate.” Love v.
Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991).
The Court has the discretion to adjust a fee application.
Pierce v. Underwood, 487 U.S. 552, 571 (1988).
preliminary matter, the Court notes that the United States
does not challenge that Routsons' EAJA fee application
was timely filed and that the Routsons have satisfied
EAJA's net worth requirement. (Doc. 67-3)
United States' first argument is that the Routsons were
not the “prevailing party” for EAJA purposes.
(Doc. 70 at 9-14) The Court remanded the matter for further
proceedings, a judicially sanctioned material alteration in
the parties' legal relationship. Ali, 486
F.Supp.2d at 1201. Accordingly, the Court concludes that the
Routsons were the prevailing party in this matter.
United States also argues that its position was substantially
justified but does not challenge the Court's conclusion
that the IBLA relied on a potentially erroneous survey. (Doc.
70 at 14-16) Accordingly, the Court concludes that the
Government has not demonstrated that its position was
the Court, in its discretion, concludes that the
Routsons' counsel have not demonstrated that their fee
request is reasonable and they have not demonstrated that
they are entitled to a fee enhancement beyond the maximum
approved by the Ninth Circuit. See
(statutory maximum rates under EAJA).
have not provided any evidence to show that they have any
experience with applications to correct land patents and the
large amount of time billed for research indicates that their
practice specialties have not, in fact, rendered them subject
matter experts in appeals from the IBLA. (Doc. 67-4, 67-5,
67-6) Even if they had made such a demonstration, that
experience is no guarantee of an enhancement. The Court further
notes that remand was predicated on a question of material
fact that the Routsons did not raise and the remand Order
detailed numerous gaps in the record that ...