Brass v. United States ( 2016 )

In the United States Court of Federal Claims
No. 14-437C
(Filed: November 7, 2016)*
*Opinion originally filed under seal on October 28, 2016
)
TWANYA L. BRASS, )
)
Plaintiff, ) Equal Access to Justice Act, 28 U.S.C.
) § 2412; Supplemental Motion for
v. ) Attorneys’ Fees and Costs; Timeliness;
) RCFC 54(d); Reasonable Attorneys’
THE UNITED STATES, ) Fees
)
Defendant. )
)
Barton F. Stichman, Washington, DC, for plaintiff. David Sonenshine,
Washington, DC, of counsel.
William P. Rayel, Commercial Litigation Branch, Civil Division, United States
Department of Justice, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Reginald T. Blades, Jr.,
Assistant Director, for defendant. LCDR Steven Gonzales, General Litigation Division,
Office of the Judge Advocate General, United States Navy, Washington, DC, of counsel.
OPINION ON PLAINTIFF’S SUPPLEMENTAL APPLICATION
FOR AWARD OF ATTORNEYS’ FEES AND EXPENSES
FIRESTONE, Senior Judge.
Pending before the court is a supplemental motion for attorneys’ fees and costs
filed by plaintiff Twanya L. Brass (“Ms. Brass”), a Navy veteran, pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”). Ms. Brass seeks $8,745.51 in fees
and $4,310.00 in expenses for the work associated with her partially successful initial
application for EAJA fees and costs, see Brass v. United States, 127 Fed. Cl. 505 (2016)
(“Brass II”), and $5,174.74 in fees for the work performed preparing this supplemental
request, for a total supplemental award of $18,230.25.
The Federal Circuit has found that “a prevailing party in a veterans case is entitled
to an award of fees not only for hours devoted to the underlying merits litigation, but also
for attorney time reasonably expended defending an initial EAJA application.” Wagner
v. Shinseki, 640 F.3d 1255, 1259 (Fed. Cir. 2011) (“Wagner I”) (citing Comm’r,
Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 161-62 (1990); Fritz v.
Principi, 264 F.3d 1372, 1377 (Fed. Cir. 2001)). A party is entitled to reasonable fees
associated with an EAJA application to the extent she “successfully defends [her] original
fee application.” Id. at 1259-60 (citing Fritz, 264 F.3d at 1377).
Defendant the United States (“the government”) argues that the court should deny
Ms. Brass’s supplemental motion for attorneys’ fees and costs on the grounds that the
motion is untimely under Rule 54(d)(2)(B)(i) of the Rules of the United States Court of
Federal Claims (“RCFC”). RCFC 54(d) states in relevant part that “[u]nless a statute or a
court order provides otherwise, the motion [for attorneys’ fees and costs] must . . . be
filed within 30 days after the date of final judgment, as defined in 28 U.S.C. §
2412(d)(2)(G).” 1 The government contends that under RCFC 54(d), Ms. Brass had to
seek fees and costs for work on her EAJA application within 30 days of the date of the
final judgment on the merits of her case. The government asserts that the court’s
1
The EAJA defines the term “final judgment” as “a judgment that is final and not appealable,
and includes an order of settlement.” 28 U.S.C. § 2412(d)(2)(G).
2
judgment became final and not appealable on November 24, 2015 and therefore Ms.
Brass could not seek attorneys’ fees and expenses after December 24, 2015. Because the
supplemental fee application was filed more than 30 days after the date of the final
judgment, the government argues it is untimely under RCFC 54(d). The government also
argues that even if Ms. Brass’s supplemental motion is timely under RCFC 54(d), the
court should nonetheless deny the supplemental fees and cost request on the grounds that
Ms. Brass unreasonably delayed filing her supplemental EAJA application by waiting
five weeks after the court ruled on her initial EAJA application.
Finally, the government argues that if the court accepts the application as timely,
the court should reject the fees and costs Ms. Brass seeks in connection with establishing
her financial eligibility for fees and costs under the EAJA. This includes $572.85 for
attorneys’ fees and $4,310.00 for costs incurred in preparing a financial statement. The
government also challenges the reasonableness of $324.61 for attorneys’ fees related to
the preparation of a declaration regarding Ms. Brass’s fee arrangement. The government
has not challenged the reasonableness of any of Ms. Brass’s other requested fees or costs,
including the fees for the preparation of Ms. Brass’s supplemental motion. 2
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With regard to the reasonableness of $324.61 for 1.7 hours of attorney time, at $190.95 per
hour, related to the preparation of a declaration regarding Ms. Brass’s fee arrangement, Ms.
Brass has not disputed that compensation for those hours would be unreasonable. Therefore, this
portion of Ms. Brass’s supplemental request is DENIED.
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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts of this case are set out in Brass v. United States, 120 Fed. Cl. 157 (2015)
(“Brass I”), and Brass II, 127 Fed. Cl. at 505, and will not be repeated here. With regard
to fees and costs, on July 22, 2016, the court granted in part and denied in part
Ms. Brass’s initial EAJA application because, after reviewing the time sheets provided,
the court found that the multiple attorneys who worked on the case failed to set out their
distinct contributions and the hours appeared to be excessive and redundant. See Brass
II, 127 Fed. Cl. at 513. The court ordered the parties to submit a proposed final judgment
consistent with the court’s opinion by August 31, 2016. Id. at 515.
On August 30, 2016, approximately five weeks after the court issued its opinion
on Ms. Brass’s initial EAJA application, Ms. Brass filed the pending supplemental
motion for attorneys’ fees and costs (ECF No. 49). 3 The government filed its response to
Ms. Brass’s supplemental motion on September 16, 2016 (ECF No. 52) and Ms. Brass
filed her reply in support of the motion on September 26, 2016 (ECF No. 53). The court
finds that oral argument is not necessary.
II. DISCUSSION
A. Ms. Brass’s Motion for Supplemental Attorneys’ Fees and Costs is
Timely.
Contrary to the government’s contentions, the court finds that RCFC
54(d)(2)(B)(i) does not require a party to file a supplemental motion for attorneys’ fees
3
On August 31, 2016, the parties separately filed proposed final judgments and stated that they
disagreed on the relationship between the proposed final judgment and Ms. Brass’s supplemental
motion for attorneys’ fees and costs (ECF Nos. 50, 51).
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and costs, i.e., the motion for fees and costs associated with litigating an EAJA petition,
within 30 days of the date the court’s judgment on the merits becomes final and not
appealable. The Federal Circuit found in Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed.
Cir. 2013) (“Wagner II”), with regard to a supplemental EAJA fee application before the
United States Court of Appeals for Veterans Claims (“the Veterans Court”), that the
EAJA only contemplates a deadline for an initial fee application. The Federal Circuit
stated that “[o]nce an initial fee application is filed within 30 days of the merits judgment,
the timing rule of section 2412(d)(1)(B) is satisfied, and as to supplemental applications,
‘Congress envisioned only one strict requirement in EAJA fee cases, namely that the
court and the Government be put on notice that the claimant seeks fees under the
EAJA.’” Id. (quoting United States v. Eleven Vehicles, 200 F.3d 203, 209 (3d Cir.
2000)). The Federal Circuit noted that “[f]or a supplemental application [for attorneys’
fees and costs], the tribunal’s procedural rules as well as equitable considerations may
apply to the time of filing, but section 2412(d)(1)(B) does not.” Id. (citing Eleven
Vehicles, 200 F.3d at 209-10). The court finds that like 28 U.S.C. § 2412(d)(1)(B),
RCFC 54(d) does not specify a time limitation for filing a supplemental motion for
attorneys’ fees and costs pursuant to the EAJA. As such, Ms. Brass has met the
requirements of RCFC 54(d) by filing a timely initial EAJA application. The court notes
that in contrast to RCFC 54(d) there are courts with rules that limit the time for filing
supplemental EAJA applications. For example, Rule 39(b) of the Veterans Court
provides a specific deadline for a party to file a supplemental EAJA fee application; it
provides in relevant part that a party whose initial EAJA application “has been granted in
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whole or in part may, not later than 20 days after the Court action granting such
application, file a supplemental application for attorney fees and other expenses in
connection with the defense of such application.” RCFC 54(d) does not contain a similar
time limitation and the court will not read one into the rule.
The court also finds, contrary to the government’s contentions, that Ms. Brass did
not unreasonably delay filing her supplemental motion for attorneys’ fees and costs by
waiting five weeks after the initial fee award to file her request. Other courts have found
that a supplemental motion filed up to three months after the initial award of fees was
reasonable. See Eleven Vehicles, 200 F.3d at 210, 210 n.8 (finding that the district court
did not abuse its discretion by granting a supplemental motion for attorneys’ fees filed
three months after the initial award of attorneys’ fees where the government was on
notice earlier in the litigation and it did “not appear that the Government was in any way
prejudiced by the . . . delay”). Here, the government should have understood that Ms.
Brass would seek all of the fees and costs she would be entitled to under the EAJA and
the government has not provided any evidence that it has been prejudiced by the delay.
Accordingly, the court will proceed to consider the merits of Ms. Brass’s supplemental
fee and cost application.
B. Ms. Brass is Entitled to Attorneys’ Fees and Costs Associated with the
Preparation of Her Financial Statement.
With regard to the merits of Ms. Brass’s supplemental motion for attorneys’ fees
and costs, the government’s challenge focuses on the reasonableness of her request for
$572.85 for three hours of attorney time and $4,310.00 in costs in connection with the
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preparation of a financial statement which showed that Ms. Brass’s net worth did not
exceed $2,000,000 at the time the civil action was filed and thus she was eligible to
obtain EAJA fees pursuant to 28 U.S.C. § 2412(d)(2)(B). The government asserts that
Ms. Brass did not need to prepare a formal financial statement to comply with the
requirement for a party seeking EAJA fees and costs to document his or her net worth.
Ms. Brass argues that the preparation of a financial statement was reasonable
because the government had argued, in response to her initial application for attorneys’
fees and costs, that an affidavit or declaration regarding her net worth would not have
been sufficient to demonstrate that she was eligible to obtain EAJA fees. See Doe v.
United States, 54 Fed. Cl. 337, 342 (2002) (requiring “supporting documentary evidence”
to establish eligibility for EAJA fees (quoting Fields v. United States, 29 Fed. Cl. 376,
382 (1993))). Ms. Brass has provided a declaration from Ian Shulman, the certified
public accountant who reviewed Ms. Brass’s financial statement. Pl.’s Reply Ex. A at
¶ 2. Mr. Shulman states in his declaration that Ms. Brass’s “statement of financial
condition” was “substantially less in scope and costs” than an “audited financial
statement” would have been. Id. Moreover, Mr. Shulman states that “[a]nything less
than a reviewed statement of financial condition would not have provided the assurance
necessary to demonstrate the net worth of Ms. Brass.” Id. at ¶ 3.
The court agrees with Ms. Brass that the requested fees and costs for the
preparation and review of her financial statement are reasonable. While in some other
cases involving veterans the government has been satisfied with sworn declarations from
individual parties that their net worth is $2 million or less, see Sabo v. United States, 127
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Fed. Cl. 606, 622 (2016); Martinez v. United States, 94 Fed. Cl. 176, 181 (2010), that was
not true here. In this case, the government specifically demanded additional “evidence”
of Ms. Brass’s net worth. The government stated that a “conclusory affidavit without
supporting evidence” is insufficient because an EAJA applicant “must present sufficient
evidence so that his or her net worth may be ascertained and verified by the court.”
Def.’s Resp. to Pl.’s Initial EAJA Appl. 10 (quoting Fields, 29 Fed. Cl. at 382, and also
citing Doe, 54 Fed. Cl. at 342). In response to the government’s demand, Ms. Brass
provided evidence of her net worth in the form of a statement of financial condition,
which she states was the minimum amount of evidence necessary to prove her eligibility
for EAJA fees and was lower in cost than an audited financial statement. The
government asserts that “Ms. Brass could have easily demonstrated that her net worth
falls well below $2 million” but the government does not identify what other evidence it
would have considered sufficient. Def.’s Resp. to Pl.’s Suppl. EAJA Appl. 7. In these
circumstances, the court finds that Ms. Brass’s preparation of a statement of financial
condition was reasonable and therefore she may recover the associated fees and costs
pursuant to the EAJA.
III. CONCLUSION
For the reasons above, Ms. Brass’s supplemental motion for attorneys’ fees and
costs pursuant to the EAJA is GRANTED in the amount of $17,905.64. This amount
will be added to the sum of $55,973.86 the court previously awarded in Brass II, 127 Fed.
Cl. at 515. Final judgment shall be entered as follows:
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Pursuant to the court’s opinions and orders filed July 22, 2016 and October 28,
2016, it was held that plaintiff is entitled to receive attorneys’ fees and expenses pursuant
to 28 U.S.C. § 2412(d).
It is ordered and adjudged on this date, pursuant to Rule 58 of the Rules of the
United States Court of Federal Claims, that plaintiff is awarded attorneys’ fees and
expenses in the amount of $73,879.50. Said sum shall be paid by the subject agency as
provided for in 28 U.S.C. § 2412(d).
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
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