United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION OF
MOTION FOR ATTORNEY FEES
H. RITTER UNITED STATES MAGISTRATE JUDGE
High Plains Livestock LLC, Michael Flen, and Calvin and
Darcie Pareo filed an Application for Attorney's Fees
and Other Expenses Pursuant to the Equal Access to Justice
Act 28 U.S.C. § 2412  on June 29, 2017. [Doc.
349]. The United States filed a response on August 21, 2017
[Doc. 375], and Defendants filed a reply on September 22,
2017. [Doc. 398]. With leave of court, see [Docs.
410 & 411], the United States filed a sur-reply on
October 25, 2017. [Doc. 412].
November 13, 2017, U.S. District Judge M. Christina Armijo
entered an Order of Reference of the motion to U.S.
Magistrate Judge Jerry H. Ritter [Doc. 415], with direction
to prepare a recommended disposition.
1. Whether the District Court should consider Defendants'
motion or, instead, dismiss or return it as premature?
2. Whether any of the Defendants is a “prevailing
party” which could be eligible for an award of fees and
expenses under the Equal Access to Justice Act
3. Whether the position of the United States was
“substantially justified” so as to foreclose an
award to a prevailing party under the EAJA?
4. If the Defendants are entitled to attorney fees and costs,
what fees and costs should be awarded?
United States filed this action to resolve thirteen claims
that the Defendants violated the Packers & Stockyards Act
(PSA), 7 U.S.C. §§ 181-231, and sought civil
penalties and injunctive relief [Doc. 1]. At the direction of
District Judge Armijo, U.S. Magistrate Judge William P. Lynch
held an evidentiary hearing to determine whether a temporary
injunction should issue. After four days of testimony,
Magistrate Judge Lynch found that Defendants had committed
multiple violations of the PSA that it was “appropriate
to appoint a receiver to conduct an initial review of
HPL's continued viability and, if viable, to take over
all aspects of HPL's operations. Additionally, Defendants
Calvin and Darcie Pareo and Michael Flen [were to] have no
control over the business, but [were] permitted to provide
advice to the receiver.” [Doc. 55, at 2-3]. When no
qualified receiver could be obtained, District Judge Armijo
appointed a Special Master to monitor and report on
Defendants' operations. [Docs. 103 & 104]
District Judge Armijo resolved a jurisdictional challenge to
Counts I-VIII by ruling that the governing statutes require
the Secretary of Agriculture to pursue civil fines or
prohibitions upon violations of the PSA through an
administrative process before filing suit in the courts.
[Doc. 165, at 10-12]. The District Court denied the United
States' motion for reconsideration. [Doc. 295].
District Court did not dismiss Count IX, against Calvin Pareo
[Doc. 165, at 14], nor dissolve the injunctive relief
previously entered against all Defendants, deeming it in the
public interest to maintain oversight over the
Defendants' activities pending initiation of
administrative proceedings by the United States.
[Id., at 14-16]. The Court noted that Congress
"anticipated ... and allowed for such temporary relief
under strictly defined circumstances. 7 U.S.C. §
228a." [Id., at 7]. The Court later ordered the
appointment of a co-special master, not then identified, to
provide additional oversight and issued a preliminary
injunction addressed to the operations of Defendants under
the PSA. [Doc. 296].
filed a separate motion to dismiss Count IX for failure to
state a claim against Calvin Pareo [Doc. 266], but the motion
was not ruled upon. Instead, Count IX was dismissed [Doc.
345] upon the unopposed motion of the United States which
asserted that, so long as temporary injunctive relief
remained in place, it was "no longer in the interest of
the United States to pursue this claim." [Doc. 336, at
1]. The order of dismissal expressly "[left] in place
only the United States' request for temporary injunctive
relief under 7 U.S.C. § 228a." [Doc. 345, at 1].
29, 2017, after dismissal of the claims for civil penalties
but before the naming of the co-special master, Defendants
filed the instant motion seeking an award of attorney fees
and other expenses in the amount of $168, 037.73. [Doc. 349,
at 7]. While Defendants' motion for EAJA fees and
expenses was pending, the District Court appointed a
co-special master to fulfill some of the objectives of the
injunction it previously put in place. [Doc. 353].
initiating a parallel administrative process through the U.S.
Department of Agriculture, the parties resolved their dispute
and Defendants submitted an Amended Unopposed Emergency
Motion to Dismiss Remaining Claims and for an Order Directing
Special Masters to Cease All Work on and Related to this
Matter [Doc. 388], which the District Court granted on
September 12, 2017. [Doc. 390]. The same day, the District
Court entered a Judgment dismissing "all of
Plaintiff's claims against Defendants". [Doc. 391,
Equal Access to Justice Act contains two provisions
authorizing an award of attorney fees under proper
circumstances, 28 U.S.C. §§ 2412(b) and 2412(d).
Defendants here rely upon the latter provision, which states:
"[e]xcept 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 a civil action (other than cases sounding in tort),
... 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).
the District Court should consider Defendants' motion or,
instead, dismiss or return it as
Equal Access to Justice Act requires that a motion for fees
and expenses be filed "within thirty days of final
judgment in the action." 28 U.S.C. § 2412(d)(1)(B).
The term "final judgment" is defined as "a
judgment that is final and not appealable, and includes an
order of settlement." 28 U.S.C. § 2412(d)(2)(G);
see Melka Marine, Inc. v. United States, 29
Fed.Appx. 594, 597 (Fed. Cir. 2002) (unpublished). "The
30-day EAJA clock begins to run after the time to appeal that
'final judgment' has expired." Melkonyan v.
Sullivan, 501 U.S. 89, 96 (1991).
an outdated case, Bryan v. Office of Pers. Mgmt.,
165 F.3d 1315 (10th Cir. 1999), the United States contends
that the EAJA application period is jurisdictional. [Doc. 375
at 2]. In 2004, the U.S. Supreme Court held that the
thirty-day period is not a declaration of subject-matter
jurisdiction but is a claim processing rule. See
Scarborough v. Principi, 541 U.S. 401, 413-14 (2004).
For that reason, and in distinction from subject-matter
jurisdiction which cannot be created by consent, Bender
v. Williamsport Area School District, 475 U.S. 534, 541
(1934), the Government can waive the time requirement. Such a
waiver can occur either before the filing period begins,
see Former Employee of Marlin Firearms Co. v. United
States Secretary of Labor, 2017 WL 2591781, *3 (No.
11-00060, June 14, 2017) ( U.S.Ct. Int'l Trade), or after
it has run. See Vasquez v. Barnhart, 459 F.Supp.2d
835 (N.D. Iowa 2006). In this case, however, the United
States has not waived the statutory time period, and so the
Court must decide what authority it has to review an
application filed “too soon”, noting that
"[t]he EAJA is a waiver of sovereign immunity and it
therefore must be strictly construed, Ruckelshaus v.
Sierra Club, 463 U.S. 680, 685 (1983)." United
States v. Charles Gyurman Land & Cattle Co., 836
F.2d 480, 483 (10th Cir. 1987).
plain meaning of the preposition within indicates
that an EAJA application neither be filed after, nor before,
the thirty-day statutory window. In keeping with that
approach, before final judgment, a pending application can be
dismissed without prejudice, see, e.g., J.C.N.
Constr., Inc. v. United States, 2013 WL 491013, at 1
(Fed. Cl. Feb. 8, 2013). As another option, in 2002, the
Federal Circuit ruled that it is within a court's
discretion to "return" an EAJA application filed
before entry of a final judgment. Melka Marine,
Inc., 29 Fed.Appx. at 4.
is abundant authority, however, for the proposition that a
court may likewise exercise discretion to consider the merits
of an early application, although the U.S. Supreme Court has
not ruled definitively on the issue. Compare
Melkonyan, 501 U.S. at 103 (1991) ("This case is
not an appropriate vehicle for resolving the issue [of
whether the applicant can file for EAJA fees even before
entry of a final judgment]."). Some circuit courts have
found circumstances where EAJA fee applications were deemed
timely even though filed before entry of a final judgment.
See, e.g., Cummings v. Sullivan, 950 F.2d
492, 495 n. 4 (7th Cir. 1991) (EAJA application deemed timely
when filed after "section six" Social Security
remand but prior to final judgment) (issue raised sua
sponte); Haitian Refugee Center v. Meese, 791
F.2d 1489 (11th Cir. 1986) (Interim fees could be awarded on
application filed after remand of interlocutory appeal where
district court denied government motion to enter final
judgment.), partially vacated on other grounds after
rehearing en banc, 804 F.2d 1573 (11th Cir. 1986);
Bostic v. Comm'r of Social Security, 858
F.Supp.2d 1301, 1303-04 (M.D. Fl. 2011) (EAJA application
filed seven weeks before entry of final judgment deemed
timely filed.). In 2006, the District Court for the District
of Hawaii reported that, while the Ninth Circuit Court of
Appeals had not weighed in on the issue, since the 1985 EAJA
amendments every circuit district court opinion on the issue
declared the thirty-day period to be "a deadline, not a
window." Center for Food Safety v. Johanns,
2006 WL 3783434, *1 (CV. NO. 03-00621-JMS-BMK, Nov. 7, 2006).
argue [Doc. 398, at 2] that the timeframe issue is moot since
the Court entered a “final judgment” on September
12, 2017 [Doc. 391]. Although the definition of final
judgment in the EAJA requires the expiration of
appellate deadlines after the trial court's judgment, 28
U.S.C. § 2412(d)(2)(G), the combination of the September
12th filing and the lack of any appeal thereafter brings this
case within authority from the Tenth Circuit and elsewhere
which would allow the District Court to consider the merits
of this EAJA application. See Koch v. U.S. Dep't of
Interior, 47 F.3d 1015, 1021 (10th Cir. 1995) ("[A]
plaintiff may ask for attorney's fees [under EAJA] even
when the time for appeal has not elapsed."); see
also, e.g., Heger v. U.S., 114 Fed.Cl. 204, 208 n. 3
(2014) ("Subsequent cases have interpreted
Melkonyan to allow courts to give effect to EAJA
applications filed prior to final judgment.");
Bostic, 858 F.Supp.2d at 1304 (citing Singleton
v. Apfel, 231 F.3d 853, 956 (11th Cir. 2000),
Haitian Refugee Ctr., 791 F.2d at 1495-96, and
Inman v. Apfel, No. 3:97-CV-1273-J-HTS, 2000 WL
1221858 (M.D. Fla. July. 14, 2000)).
practical matter, a dismissal or return of the application as
“premature” would only invite Defendants to
refile, with a likely challenge by the United States that the
new application is untimely, creating a
“Catch-22” situation that would prevent a
determination of the merits of the application and, to that
extent, frustrate the purpose of Congress in enacting the
EAJA. See Ewing v. Rodgers, 826 F.2d 967, 970 (10th
any of the Defendants is a “prevailing party”
which could be eligible for an award of fees
and expenses under the EAJA?
the Equal Access to Justice Act, to obtain an award of fees
and expenses in litigation against the United States, an
applicant must be a "prevailing party". 28 U.S.C.
EAJA does not contain an express definition of prevailing
party, except in condemnation cases. See 28
U.S.C. § 2412(d)(2)(H). The watershed definition of
prevailing party for federal fee-shifting statutes
is from Buckhannon Board & Care Home, Inc. v. W.Va.
Dep't of Health and Human Resources, 532 U.S. 598
(2001) (as recognized and applied to an EAJA application by
the Tenth Circuit Court of Appeals in Biodiversity
Conservation All. v. Stem, 519 F.3d 1226 (10th Cir.
2008)). Further development of the definition of
prevailing party occurs throughout federal cases
involving multiple fee-shifting statutes as the same
definition generally applies. See Cactus Canyon Quarries,
Inc. v. Fed. Mine Safety & Health Review Comm'n,
820 F.3d 12, 16 (D.C. Cir. 2016).
identified "some relief by the court", 532 U.S. at
603, as essential to creation of a prevailing party, although
not necessarily through a decision on the merits. For
example, an enforceable consent decree even without admission
of liability may suffice. Id. at 604. The necessary
judicial investment may also be represented by the mooting of
the applicant's claims, and particularly claims for
damages. See Id. at 608-09. The key element is the
"judicial imprimatur" on the result; for
that reason, a voluntary action by the opponent, even where