Cobell v. Norton, Civ.A. 96-1285(RCL).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtLamberth
Citation407 F.Supp.2d 140
PartiesElouise Pepion COBELL, et al., Plaintiffs, v. Gale A. NORTON, Secretary of the Interior, et al., Defendants.
Docket NumberNo. Civ.A. 96-1285(RCL).,Civ.A. 96-1285(RCL).
Decision Date19 December 2005
407 F.Supp.2d 140
Elouise Pepion COBELL, et al., Plaintiffs,
Gale A. NORTON, Secretary of the Interior, et al., Defendants.
No. Civ.A. 96-1285(RCL).
United States District Court, District of Columbia.
December 19, 2005.

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Earl Old Person, Browning, MT, pro se.

Dennis M. Gingold, Elliott H. Levitas, Kilpatrick Stockton, LLP, Keith M. Harper, Mark Kester Brown, Richard A. Guest, Native American Rights Fund, Dennis M. Gingold, Washington, DC, Robert Meyer Peregoy, Ronan, MT, David C. Smith, Kilpatrick Stockton LLP, Winston Salem, NC, Elliott H. Levitas, Kilpatrick Stockton, LLP, Washington, DC, William E. Dorris, Kilpatrick Stockton LLP, Atlanta, GA, for Plaintiffs.

Andrew M. Eschen, Brian L. Ferrell, Charles Walter Findlay, III, Connie S. Lundgren, Edith R. Blackwell, Robert D. Luskin, Patton Boggs LLP, Sandra Marguerite Schraibman, Sarah D. Himmelhoch, Susan Virginia Cook, Tom C. Clark, Lewis Steven Wiener, Sutherland, Asbill & Brennan, L.L.P., Henry A. Azar, Jr., J. Christopher Kohn, Jennifer R. Rivera, John Thomas Stemplewicz, Jonathan Brian New, Mark E. Nagle, Troutman Sanders, LLP, Robert Craig Lawrence, Sandra Peavler Spooner, Seth Brandon Shapiro, Dodge Wells, Gino D. Vissicchio, John R. Kresse, John Joseph Siemietkowski, John Warshawsky, Michael John Quinn, Phillip Martin Seligman, Timothy Edward Curley, Tracy Lyle Hilmer, Washington, DC, John Charles Cruden, U.S. Department of Justice, Annandale, VA, Terry M. Petrie, U.S. Department of Justice, Denver, CO, for Defendants.


LAMBERTH, District Judge.

Before the Court is plaintiffs' Equal Access to Justice Act Petition for Interim Fees Through the Phase 1.0 Proceeding ("Interim Fee Petition"). Plaintiffs seek fees and expenses in the amount of $14,528,467.21 for their efforts "resolv[ing] issues" central to Phase 1.0 of the case and "set[ting] the stage for future relief." Cobell v. Norton, 319 F.Supp.2d 36, 41 (D.D.C.2004). Defendants oppose the Interim

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Fee Petition, citing both plaintiffs' failure to demonstrate a legal entitlement to an award under the Equal Access to Justice Act as well as plaintiffs' submission of poorly documented, excessive, redundant, and otherwise defective time records. Defendants maintain that, to the extent an award is warranted, it should not exceed $4,313,047. Opposition to plaintiffs' Equal Access to Justice Act Petition for Interim Fees Through the Phase 1.0 Proceeding ("Defendants' Opposition"), at 78. Plaintiffs, in response, press the Court to immediately grant an award for all "uncontested" hours at "market rates" and postpone deciding the "contested" hours until a later date. Plaintiffs' Reply, at 67.

After examining the record and considering the briefs presented, the Court, for the reasons set out more fully below, awards plaintiffs fees in the amount of $4,534,275.97 and expenses in the amount of $2,532,195.08, for a total Interim Fee Award of $7,066,471.05.


Plaintiffs initiated this class action in 1996 on behalf of more than 350,000 Native Americans against the Secretaries of the Interior and the Treasury as trustee-delegates, seeking equitable relief to redress mismanagement of the trust fund accounts. Cobell v. Babbitt, 30 F.Supp.2d 24 (D.D.C.1998). The class was initially represented by five-named plaintiffs, Elouise Pepion Cobell, Thomas Maulson, James Louis Larose, Penny Cleghorn, and Earl Old Person, until the Court, on March 5, 2003, removed Old Person as a class representative.

Plaintiffs sought both a "retrospective" accounting of the government's Individual Indian Money (IIM) trust account system as well as a "prospective" order demanding that the Departments of the Interior and the Treasury manage Indian accounts in accordance with their statutory and common-law duties. Plaintiffs grounded their claims on a long line of Congressional Acts including the General Allotment Act of 1887, ch. 119, 24 Stat. 388 (vesting beneficial title of certain lands in the United States as trustee for individual Native Americans); the Indian Reorganization Act of 1934, 48 Stat. 984 (halting allotment of Native American lands and returning surplus land to tribal ownership); the Indian Self-Determination and Education Assistance Act, 88 Stat. 2203 (1975) (granting tribal management over certain functions previously administered by the Bureau of Indian Affairs and the Office of Trust Fund Management); and the more recently promulgated Indian Trust Fund Management Reform Act ("Trust Reform Act"), 108 Stat. 423q (codified as amended at 25 U.S.C. § 162a(d) (1994)).

On November 5, 1998, this Court bifurcated the proceedings into two "phases." Phase 1.0 was "a trial to determine the extent to which the defendants have violated their trust duties"; while Phase 2.0 is projected to be "a trial on the extent to which the defendants have remedied those breaches." Cobell v. Norton, 226 F.R.D. 67, 73 (D.D.C.2005).

On December 21, 1999, after conducting a six-week bench trial addressing plaintiffs' Phase 1.0 claims, the Court issued a Memorandum Opinion containing detailed factual findings and conclusions of law. Cobell v. Babbitt, 91 F.Supp.2d 1 (D.D.C. 1999) (hereinafter referred to as "Cobell V" (see Cobell, 226 F.R.D. at 73 n. 4)). In Cobell V, the Court found defendants in breach of their statutory trust duties and issued a declaratory judgment requiring defendants: (1) to provide plaintiffs an accurate accounting; (2) to retrieve and retain all information necessary to render an accurate accounting of all money in the IIM trust; and (3) to establish written policies and procedures for complying with

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their statutory obligations and for rectifying those breaches identified by the Court. Cobell, 91 F.Supp.2d at 57. The Court also retained jurisdiction for a period of five years and ordered defendants to file quarterly status reports "setting forth and explaining the steps that defendants have taken to rectify the breaches of trust declared today and to bring themselves into compliance with their statutory trust duties." Id.

The Court denied, however, plaintiffs' requests for the appointment of a monitor with investigatory powers, id. at 52, and for prospective relief. Id. at 56. The Court also dismissed with prejudice plaintiffs' common-law claims as well as their allegations that defendants obstructed the operation of the Special Trustee. Id. at 57.

On February 23, 2001, the United States Court of Appeals for the District of Columbia affirmed this Court's rulings and held that: (1) the District Court could consider plaintiffs' claims absent final administrative action; (2) the Secretary of the Treasury breached his fiduciary obligations toward beneficiaries by failing to maintain documents necessary to perform accounting; (3) there was ample evidence supporting the Court's finding that defendants failed to take reasonable steps to discharge their trust obligations; (4) management of a trust and rendering of an adequate accounting required locating and retaining records, operational computer systems, and adequate staffing; and (5) the Court's continued oversight was mandatory. Cobell v. Norton, 240 F.3d 1081, 1098 (D.C.Cir.2001) (hereinafter referred to as "Cobell VI" (see Cobell, 226 F.R.D. at 73 n. 4)).

Plaintiffs request reimbursement for fees and costs incurred by attorneys Dennis Gingold, Thaddeus Holt, and Mark Brown; the Native American Rights Fund ("NARF"); the law firm of Kilpatrick Stockton ("KS"); accountant and litigation consultant Geoffrey Rempel; and the accounting firm, PricewaterhouseCoopers ("PwC"), for bringing about these rulings.

Defendants challenge plaintiffs' Interim Fee Petition on every conceivable front, alleging: (1) that plaintiffs' petition runs afoul of the notice requirements of Fed. R.Civ.P. 23(h)(1); (2) that plaintiffs failed to demonstrate "eligibility" under section 2412(d)(2)(B); (3) that plaintiffs are not "prevailing parties" entitled to recover under section 2412(d); (4) that defendants' position was, at all relevant times, "substantially justified;" (5) that plaintiffs failed to submit "contemporaneous" time records; (6) that plaintiffs' time entries are inadequately documented, excessive, and non-compensable under EAJA; and (7) that plaintiffs are not entitled to a fee enhancement under Section 2412(b).

Defendants' objections are considered below.


The Equal Access to Justice Act ("EAJA") provides, in pertinent part, that:

[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 (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or 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).

In enacting EAJA, Congress sought to "ensure that individuals ... [would] not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in securing the vindication

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of their rights." Sullivan v. Hudson, 490 U.S. 877, 883, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) (quoting H.R.Rep. No.120, 99th Cong., 1st Sess. 4, U.S.Code Cong & Admin.News 1985, p. 151 (1985)). The Act effectuates this legislative purpose by requiring the federal government to pay attorneys' fees and expenses incurred by the victims of its unreasonable action. The Court is satisfied the Indian beneficiaries were just such victims.


Defendants argue that plaintiffs are not entitled to a recovery under EAJA, having failed to comply with the notice requirement of Fed.R.Civ.P. 23(h)(1). Opposition, at 8. Rule 23(h)(1) requires...

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