United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHLFEF JUDGE
the court is the Motion for Attorney Fees and Costs [Doc.
13');">1353] filed by plaintiffs, William Fletcher, et
al.[1" name="FN1" id=
"FN1">1] For the reasons set forth below,
plaintiffs' motion is granted in part and denied in part.
case has a long and complicated history. Plaintiffs filed the
case on May 31, 2002. Their original Complaint contained four
claims: (1) that the government's regulations violated
their First, Fifth and Fourteenth Amendment rights to vote in
Osage tribal elections and to participate in the Osage
Tribe's government; (2) that the government breached its
trust responsibilities by (a) eliminating plaintiffs'
right to participate or vote in Osage tribal elections, and
(b) allowing headrights to be alienated to persons not of
Osage blood; (3) that the government's failure to manage
the Tribe's assets, coupled with the government's
inability to keep Osage headrights from passing into the
hands of those who are not of Osage blood, constituted a
Fifth Amendment taking; and (4) that federal regulations
restricting plaintiffs' right to participate in tribal
government constituted illegal agency action pursuant to the
Administrative Procedures Act, 5 U.S.C. § 706. [Doc. 1,
pp. 6-12]. Plaintiffs sought the following relief: (a) an
order holding that the federal regulation pertaining to Osage
tribal elections violated their constitutional rights; (b) an
order holding that the government breached its trust
responsibilities by restricting plaintiffs' right to
participate in tribal elections and by allowing Osage
headrights to be alienated to those not of Osage blood; (c)
an order holding that, by allowing the alienation of
headright interests to those not of Osage blood, the
government effected an unconstitutional taking of a protected
property interest; and (d) an order directing the government
to pay attorney fees and costs under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412.
government moved to dismiss the Complaint for failure to join
the Osage Tribal Council as a necessary and indispensable
party under Fed.R.Civ.1');">p. 19. On June 6, 2004, Senior United
States District Judge James O. Ellison granted the motion to
dismiss [Doc. 13');">13]. Plaintiffs appealed. On December 3, 2004,
while the appeal was pending, Congress reaffirmed the Osage
Tribe's inherent sovereign right to determine its own
membership, provided that the rights of any person to Osage
mineral estate shares are not diminished thereby.
See Public Law 108-431, 118 Stat. 2609. On November
19, 2005, the members of the Osage Nation overwhelmingly
voted that all adult tribal members, not just mineral rights
owners, could vote in future elections. A month later, the
Tenth Circuit vacated the dismissal of this case and remanded
to determine whether the Osage Tribal Council was a necessary
and indispensable party with regard to the breach of trust
and takings claims. See Fletcher v. United States,
160 Fed.Appx. 792');">160 Fed.Appx. 792 (10th Cir. Dec. 29, 2005) (hereinafter,
Fletcher I). The circuit panel held that this court
had jurisdiction over plaintiffs' breach of trust and
takings claims, as plaintiffs did not seek money damages
under 5 U.S.C. § 702.
remand in 2006, this case was reassigned to United States
District Judge Terence Kern, and plaintiffs filed a First
Amended Complaint [Doc. 23; Doc. 24]. Plaintiffs asserted
three claims: (1) that the government breached its statutory
trust responsibilities by wrongfully distributing royalty
payments to persons who are not Osage Indians, and by failing
to account to plaintiffs for all funds resulting from the
Osage Mineral Estate and available to be distributed as trust
property; (2) that the government's failure to properly
manage the Osage Tribe's trust accounts and funds,
coupled with the distribution of headright payments to
persons who are not Osage Indians, constituted a taking in
violation of the Fifth Amendment; and (3) that the
government's administrative actions were not in
accordance with law and were contrary to plaintiffs'
constitutionally and statutorily guaranteed property rights.
Plaintiffs sought certification of a class action and
requested the following relief: (a) an order compelling the
government to provide an accounting of royalty payments
distributed from the Osage Mineral Estate, including whether
such royalty payments have been distributed only to Osage
Indians; (b) a reformation of plaintiffs' and class
members' trust funds found to be due and owing to them,
following completion of the accounting; and (c) an order
compelling the government to prospectively distribute trust
property only to Osage Indians.
government moved to dismiss the First Amended Complaint on
the following grounds: (a) failure to join other necessary
and indispensable parties, including the Osage Nation and
non-Osage owners of headrights; (b) lack of jurisdiction for
failure to comply with the final agency action prerequisites
to judicial review under the Administrative Procedures Act, 5
U.S.C. § 701; and (c) failure to challenge an actionable
final agency action within the applicable statute of
limitations. [Doc. 46].
2007, the case was transferred to the undersigned. The court
granted the government's motion to dismiss in part and
denied it in part, holding that (a) the Osage Nation was not
a required party under Rule 19(a); (b) non-Osage headright
owners were required parties because plaintiffs sought to
terminate their property interest in quarterly headright
royalty distributions; and (c) it was impossible to discern
from the face of the First Amended Complaint the specific
agency actions and/or inactions plaintiffs were challenging.
The court directed plaintiffs to file a Second Amended
Complaint adding all non-Osage headright owners as defendants
and identifying with specificity the challenged agency
actions and/or inactions. [Doc. 79].
12, 2009, plaintiffs filed their Second Amended Complaint
[Doc. 97], which joined the approximately 1, 700 non-Osage
headright owners. However, because plaintiffs again failed to
specify the agency actions being challenged, the court again
ordered plaintiffs to amend. [Doc. 213');">13]. Plaintiffs filed
their Third Amended Complaint [Doc. 985] on May 6, 2010.
the non-Osage headright owners filed motions to dismiss. In
an Opinion and Order [Doc. 1122');">1122] dated March 31, 2011, the
court granted a motion to dismiss filed by defendant Ben T.
Benedum for failure of the Third Amended Complaint to state a
claim upon which relief could be granted. The court rejected
plaintiffs' overarching legal argument that the Osage
Allotment Act precludes non-Osage from receiving quarterly
income payments from the Osage mineral estate. [Doc. 1122');">1122, p.
9]. On May 16, 2011, the court dismissed the remaining 1, 700
non-Osage headright owners for the same reason. [Doc. 1143].
2, 2011, the government moved to dismiss the Third Amended
Complaint, contending that the portions premised on
plaintiffs' argument that non-Osage cannot hold legal or
equitable title to a headright should be dismissed for (1)
failure to state a claim; (2) lack of subject matter
jurisdiction; and (3) failure to identify a specific final
agency action for judicial review. The government also argued
that the portions of the Third Amended Complaint in which
plaintiffs claimed a right to an accounting should be
dismissed because there was no trust relationship between the
government and headright owners, and because the statutes
upon which plaintiffs relied did not afford them a right to
an accounting. The court granted the motion to dismiss as to
the allegations of wrongful distributions to non-Osage
headright owners for failure to state a claim and for failure
to specify any challenged agency actions or inactions. The
court rejected the government's argument that it has no
trust obligations to headright owners, but held that
plaintiffs had not identified a statutory right to an
accounting of distributions from the Osage Mineral Estate.
[Doc. 1164]. Plaintiffs appealed the dismissal of the
accounting claim, and the Tenth Circuit reversed and
remanded, holding that plaintiffs were entitled to seek an
accounting under 25 U.S.C. § 4011(a). Fletcher v.
United States, 1206');">730 F.3d 1206 (10th Cir. 2013');">13)
(hereinafter, Fletcher II).
remand, this court granted plaintiffs' Motion to Certify
Class [Doc. 1196]. The government filed the administrative
record, and the parties briefed the scope of the
government's accounting duty. The court concluded that
plaintiffs were not limited to an accounting of their
respective Individual Indian Money (IIM) accounts, but were
entitled to an accounting of the Osage tribal trust account,
and that the Osage Nation had not waived the plaintiffs'
individual accounting rights in connection with the
Nation's settlement of a lawsuit against the United
States in the Court of Federal Claims. Fletcher v. United
States, 153 F.Supp.3d 13');">1354');">153 F.Supp.3d 13');">1354, 13');">1361-68 (N.D. Okla. 2015).
The court then ordered the government to provide plaintiffs
an accounting running from the first quarter of 2002, and
specified six additional requirements.
parties then filed Rule 59(e) motions to alter or amend the
judgment. The court granted the government's request for
additional time to complete the accounting, and granted
plaintiffs' request to have the accounting deadline run
from the entry of the court's judgment. However, the
court denied plaintiffs' request to require a more
detailed accounting and to expand the time frame of the
accounting back to 1906. Fletcher v. United States,
2016 WL 927196 (N.D. Okla. Mar. 11, 2016), [Doc. 13');">1306].
appealed and the Tenth Circuit affirmed. The panel held that
the district court did not abuse its discretion when it
ordered the accounting to run from 2002, and noted that
“even if a more detailed accounting might uncover
additional evidence of misdistribution, the increased expense
to do so is not justified.” Fletcher v. United
States, 1201');">854 F.3d 1201, 1207 (10th Cir. 2017)
(hereinafter, Fletcher III).
their initial motion for attorney fees and costs under EAJA,
plaintiffs requested $1, 835, 665.19 in attorney fees and
$57, 817.43 in costs and “other expenses.” [Doc.
1291');">1291, 1');">p. 15');">1');">p. 15]. In response, the government argued that
plaintiffs had failed to satisfy certain threshold
eligibility requirements. The government argued that
threshold legal questions existed as to plaintiffs' net
worth eligibility under EAJA. It also argued that plaintiffs
had not met their burden of demonstrating that they have
“incurred” fees and other expenses for which
reimbursement is proper under EAJA; that no EAJA award is
proper because the government's position was
substantially justified; and that any award must be limited
because plaintiffs only partially prevailed. See
[Doc. 13');">1316]. Concurrently with their initial fee request,
plaintiffs filed a Bill of Costs pursuant to Fed.R.Civ.P.
54(d)(1), seeking $34, 839.61. [Doc. 1290]. The Court Clerk
held a hearing and taxed costs in the amount of $30, 003.19
pursuant to Rule 54. [Doc. 13');">1317]. The government then moved
to review the Clerk's taxation of costs, arguing that
plaintiffs' Bill of Costs must be considered under EAJA.
court stayed the proceedings on plaintiffs' Motion for
Attorney's Fees and Costs under EAJA pending
plaintiffs' appeal of the court's accounting order.
[Doc. 13');">1337]. Upon the issuance of the mandate affirming the
accounting order, this court issued an order granting the
government's Motion to Review the Court Clerk's
Taxation of costs, concluding that “any award of costs
must be evaluated pursuant to EAJA, not Rule 54.” [Doc.
13');">1345');">13');">1345, p. 3');">p. 3]. The court directed the parties to “address
the appropriateness of recovery of . . . court costs under
EAJA in supplemental briefing, specifically identifying,
attributing, and separating expenses in relation to the claim
on which plaintiffs prevailed.” [Doc. 13');">1345');">13');">1345, p. 3');">p. 3].
22, 2017, plaintiffs moved to lift the stay, and sought leave
to re-file or supplement their EAJA motion. [Doc. 13');">1346]. On
July 13');">13, 2017, the court granted the plaintiffs' motion
to lift the stay, struck plaintiffs' first motion for
fees and costs, and ordered consolidated briefing as follows:
Because EAJA governs this court's analysis on both
attorneys' fees and court cost issues, the court strikes
plaintiffs' pending requests on both those subjects and
orders consolidated briefing on the following: (1) threshold
EAJA issues identified above and in Doc. 13');">1316; and (2)
identification, attribution, and separation of attorney's
fees and costs in relation to the claim on which plaintiffs
prevailed. However, plaintiffs shall not be permitted to
request attorneys' fees or costs in excess of the amounts
previously stated in their bill of costs or their initial
attorneys' fees briefing.
[Doc. 13');">1348, p1');">p. 1-2].
filed their second motion for EAJA fees and costs on August
17, 2017. [Doc. 13');">1353]. The following day, the court
discovered that plaintiffs had submitted lump sum billing
summaries for their attorney fees and expenses, which did not
meet EAJA's standard that a prevailing party must provide
sufficient detail for time spent. The court directed
plaintiffs to file detailed attorney time records
identifying, at a minimum, the attorney(s) who performed the
work, a description of the work performed, the time allocated
to each task, and the hourly rate. [Doc. 13');">1354]. On August 25,
2017, plaintiffs filed their time records. [Doc. 13');">1355].
Shortly thereafter, on September 5, 2017, the government
moved to strike plaintiffs' second EAJA motion and time
records on the grounds that plaintiffs (1) had not addressed
whether their costs and fees were “incurred”; (2)
had not complied with this court's directive to identify,
attribute, and separate attorney fees and costs in relation
to the claim on which plaintiffs prevailed; (3) had requested
attorney fees and costs in excess of the amounts previously
requested, in violation of the court's Order of July 13');">13,
2017; and (4) had submitted new evidence in the form of a
purported expert declaration. The court denied the
government's motion to strike, but granted the
government's alternative request for an extension of time
to present its defenses to plaintiffs' EAJA claims. [Doc.
government responded to plaintiffs' second EAJA motion on
March 30, 2018. [Doc. 13');">1379]. Plaintiffs filed a motion to
strike [Doc. 13');">1386] the expert declaration attached to the
government's response, which the court granted.
Plaintiffs filed a reply, and briefing on the EAJA motion is
THE APPLICABLE STANDARDS
provides that a prevailing party shall recover reasonable
attorney fees and expenses incurred in any civil action
against the United States, unless the position of the United
States was substantially justified or special circumstances
make an award unjust:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, 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). EAJA also provides that a
prevailing party may recover costs incurred in any civil
action against the United States or one of its agencies:
Except as otherwise specifically provided by statute, a
judgment for costs, as enumerated in section 1920 of this
title, but not including the fees and expenses of attorneys,
may be awarded to the prevailing party in any civil action
brought by or against the United States or any agency or any
official of the United States acting in his or her official
capacity in any court having jurisdiction of such action. A
judgment for costs when taxed against the United States
shall, in an amount established by statute, court rule, or
order, be limited to reimbursing in whole or in part the
prevailing party for the costs incurred by such party in the
Id. § 2412(a)(1).
THE REQUEST FOR EAJA FEES AND EXPENSES
request for EAJA fees and expenses presents two primary
issues: (a) whether plaintiffs are entitled to recover fees
and expenses under EAJA; and, if so, (b) whether the request
is reasonable. For the reasons set forth below, the court
holds that plaintiffs are not entitled to recover fees and
expenses under EAJA. Moreover, even if plaintiffs were so
entitled, their request is unreasonable and excessive.
Plaintiffs' Entitlement to Recovery
order for plaintiffs to recover reasonable fees and expenses
under EAJA, the court must find that (i) the named plaintiffs
meet EAJA's net worth eligibility requirement; (ii)
plaintiffs are the prevailing parties; (iii) plaintiffs have
“incurred” fees and expenses; (iv) the
government's position was not substantially justified;
and (v) no special circumstances make recovery unjust.
Plaintiffs meet EAJA's net worth eligibility
individual seeking an EAJA award must establish that his or
her “net worth did not exceed $2, 000, 000 at the time
the civil action was filed.” 28 U.S.C. §
2412(d)(2)(B). “Net worth” is calculated by
subtracting total liabilities from total assets. Shooting
Star Ranch, LLC v. United States, 1176');">230 F.3d 1176, 1178
(10th Cir. 2000). In a class action such as this, the named
plaintiffs must each satisfy the net worth requirement.
Olenhouse v. Commodity Credit Corp., 922 F.Supp.
489, 493 (D. Kan. 1996). “In the face of a challenge to
a party's eligibility for an EAJA award, that party must
do more than make a bare assertion that it meets the
statutory criteria. This is especially true when the
government points to facts indicating that a serious question
exists as to the party's eligibility.” United
States v. 819.8 Acres of Land, 13');">133 F.3d 933');">13');">133 F.3d 933, at *3 (10th
Cir. Jan. 7, 1998) (table). “However, the Tenth Circuit
has indicated that absent a challenge otherwise, an affidavit
from a party indicating that they meet the net worth
requirement is sufficient.” United States v.
Gwilliam, 2012 WL 3527893, at *2 (D. Utah Aug. 2012)
(citing 819.8 Acres, 13');">133 F.3d 933');">13');">133 F.3d 933, at *3 and
Shooting Star, 230 F.3d at 1178).
initial matter, the parties dispute the date on which the
named plaintiffs' net worths should be determined.
Plaintiffs argue for the date they filed their original
Complaint (May 31, 2002), since EAJA defines a
“party” as an individual whose net worth did not
exceed $2, 000, 000 at the time the civil action was
filed.” 28 U.S.C. § 2412(d)(2)(B) (emphasis
added). The government argues for April 4, 2006, because
plaintiffs first asserted an accounting claim in their First
Amended Complaint filed that day. Based upon the statutory
language, the court concludes that the date on which
plaintiffs' net worth is to be determined is May 31,
establish their net worth, plaintiffs have submitted the
declarations of Tara Damron, the executor of the estate of
named plaintiff Charles Arthur Pratt, Jr., and the
declaration of plaintiff William S. Fletcher. Damron declares
that Pratt's net worth did not exceed $2 million on or
after May 31, 2002; that Pratt's assets in 2002 included
his $170, 000 house and three vehicles; and that his W-2
income for 2002 was $14, 533.36. [Doc. 13');">1353-11]. Fletcher
declares that he “had some real estate holdings, [a]
BIA account, and a bank account in May, 2002, but [he does]
not know the exact balances of the accounts or the exact
values of the other assets”; that he is
“confident that the total value of all [his] assets as
of May 2002, was less than $2 million”; and that
“most of the information needed to determine the values
of his assets in May, 2002, can be provided by the [BIA] . .
. [and he is] in the process of retrieving, compiling, and
analyzing the detailed information . . . . [and] will
supplement [his] declaration to set forth the details and to
attach copies of relevant account statements and other
documents.” [Doc. 13');">1353-12]. No. such supplement has
have also submitted an affidavit of S. Christopher Lopp, a
certified public accountant with the CPA firm HoganTaylor LLP
in Tulsa, Oklahoma, calculating the net worth of the five
named plaintiffs on May 31, 2002. Lopp states he
“applied Generally Accepted Accounting Principles and