Gasplus, L.L.C. v. U.S. Dept. of Interior

• Decision Date: 06 January 2009
• Docket Number: No. 03-1902 (RMC).,03-1902 (RMC).
• Citation: 593 F.Supp.2d 80
• Parties: GASPLUS, L.L.C., Plaintiff, v. UNITED STATES DEPARTMENT OF The INTERIOR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

593 F.Supp.2d 80

GASPLUS, L.L.C., Plaintiff, v. UNITED STATES DEPARTMENT OF The INTERIOR, et al., Defendants.

Civil Action No. 03-1902 (RMC).

United States District Court, District of Columbia.

January 6, 2009.

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Shelby J. Kelley, Nancy J. Appleby, Bracewell & Giuliani LLP, Washington, DC, Charles K. Purcell, NM, Mark A. Smith, Rodey, Dickason, Sloan, Akin & Robb, PA, Albuquerque, NM, for Plaintiff.

Devon Lehman McCune, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

The Southwest Regional Director of the Bureau of Indian Affairs ("BIA"), at the request of the Nambe Pueblo Indian tribe, issued a decision declaring, inter alia, that a management agreement between Gas-Plus, L.L.C. ("GasPlus") and the Nambe Pueblo Development Corporation was terminated immediately for lack of approval by the Secretary of the Interior, as 25 U.S.C. § 81 ("Section 81") requires. That decision was sustained on administrative review within the Department of the Interior ("DOI") but reversed by this Court. See GasPlus, L.L.C. v. United States Dep't of Interior, 510 F.Supp.2d 18 (D.D.C.2007). Although the government initially appealed this Court's decision, it subsequently withdrew that appeal. GasPlus now applies for costs and attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. GasPlus argues that in addition to allowable costs under 28 U.S.C. § 2412(a)(1) ("Subsection 2412(a)(1)"), it is entitled to attorneys' fees under 28 U.S.C. § 2412(d)(1)(A) ("Subsection 2412(d)(1)(A)") because it is a prevailing party and the government's position was not substantially justified. GasPlus also urges the Court to award discretionary fees, under 28 U.S.C. § 2412(b) ("Subsection 2412(b)"), as a punitive measure for the government's bad faith.

Pursuant to Subsections 2412(a)(1) and 2412(d)(1)(A), the Court will award Gas-Plus the allowable costs and fees it incurred in suing the United States but not the costs and fees it incurred in suing government officials in their individual capacities under Bivens¹ because those are not claims against the United States and, therefore, not covered by EAJA. See Kreines v. United States, 33 F.3d 1105, 1109 (9th Cir.1994) ("a Bivens action is not a `civil action ... against the United States'" under EAJA). The Court does not find the bad faith necessary to support a further award of discretionary fees under Subsection 2412(b).

I. FACTUAL BACKGROUND

Section 81 requires government approval of a contract that is between a non-Indian and an Indian tribe, when the contract encumbers tribal land and is for a term greater than seven years.² This case deals with its application. For purposes of this decision on costs and attorneys' fees, the Court assumes familiarity with its decision on the merits and provides only a brief summary.

On February 7, 2002, the Regional Director declared that a Management Agreement ("Agreement") between GasPlus and the Nambe Pueblo Development Corporation was subject to Section 81; that the Agreement was immediately terminated because it had not received prior approval by the Secretary of the Interior; and that GasPlus must disgorge all monies received under the Agreement. The Agreement at that time was more than one year old but the Regional Director issued his Decision with no notice to, or hearing from, Gas-Plus.

On February 28, 2002, GasPlus appealed the Director's decision to the Interior Board of Indian Appeals ("IBIA"). On June 9, 2003, the Assistant Secretary of the BIA issued its decision affirming the Director. GasPlus appealed to this Court, and on September 6, 2007, the Court granted summary judgment to GasPlus. See GasPlus, 510 F.Supp.2d 18. The government appealed the Court's decision to the D.C. Circuit on November 2, 2007, but then withdrew its appeal on February 13, 2008. The Circuit entered an order dismissing the appeal on March 12, 2008, 2008 WL 931162. Thereafter, on April 7, 2008, GasPlus applied for attorneys' fees and costs pursuant to EAJA. See Dkt. # 70.

II. LEGAL STANDARDS

A. Costs

Costs are governed by Subsection 2412(a)(1) of EAJA. It provides:

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.... A judgment for costs when taxed against the United States shall ... be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.

28 U.S.C. § 2412(a)(1). Costs allowable under 28 U.S.C. § 1920 may be recovered against the United States under Subsection 2412(a) (1) to the extent that the costs relate to a litigant's obtaining "the functional equivalent of a final judgment against the government that entitles him to some relief." In re Turner, 14 F.3d 637, 641 (D.C.Cir.1994).

B. Attorneys' Fees

1. Mandatory Fees

Mandatory fees are governed by Subsection 2412(d)(1)(A) of EAJA. It provides:

a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ... 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). Only fees attributable to civil actions brought by or against the United States—defined to include "any agency and any official of the United States acting in his or her official capacity"—may be awarded under Subsection 2412(d)(1) (A). Id. § 2412(d)(2)(C). In addition, the fees are capped at $125 per hour "unless the court determines that an increase in the cost of living or a special factor, such as the availability of qualified attorneys for the proceedings involved, justifies a higher fee." Id. § 2412(d)(2)(A).

2. Discretionary Fees

Discretionary fees are governed by Subsection 2412(b) of EAJA. It provides:

a court may award reasonable fees and expenses of attorneys ... 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.... The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law....

28 U.S.C. § 2412(b). Unlike mandatory fees under Subsection 2412(d)(1)(A), there is no statutory cap for discretionary fees under Subsection 2412(b). See Gray Panthers Project Fund v. Thompson, 304 F.Supp.2d 36, 38 (D.D.C.2004). However, fees are available under Subsection 2412(b) only if the Court finds that the United States acted in bad faith. See Am. Hosp. Ass'n v. Sullivan, 938 F.2d 216, 219 (D.C.Cir.1991).

III. ANALYSIS

As a preliminary matter, the Court notes that the government does not dispute that GasPlus qualifies as a "prevailing party" within the meaning of EAJA. Because this Court granted GasPlus summary judgment, see GasPlus, 510 F.Supp.2d 18, GasPlus meets EAJA's definition of "prevailing party." See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (party who wins judgment on the merits is a "prevailing party" for fee-shifting purposes); Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945 (D.C.Cir. 2005) ("it is now clear that Buckhannon's construction of `prevailing party' also applies to fee claims arising under EAJA"). Accordingly, the only issues to be decided are: the amount of costs that will be awarded to GasPlus under Subsection 2412(a)(1); whether the government's position was "substantially justified" within the meaning of Subsection 2412(d)(1)(A); whether the government acted in bad faith within the meaning of Subsection 2412(b); and, if the government was not "substantially justified" and/or acted in bad faith, the amount of attorneys' fees that will be awarded to GasPlus. The Court will address each in turn.

A. Amount of Costs

GasPlus submitted a bill of costs in the amount of $517.71 itemized as follows:

(1) $4.00 in photocopying expenses incurred at the Bernalillo County Clerk's Office on March 6, 2002;

(2) $150.00 filing fee charged by the Clerk of this Court for bringing this action;

(3) $58.71 for service of process on Robert D. Baracker; and

(4) $305 for service of process on Aurene M. Martin.

Pl.'s Appl. for Attys' Fees & Costs, Ex. F (Itemized Costs). The government argues that only the $150 filing fee should be awarded to GasPlus because the photocopying expense is not identifiable as related to this litigation and was incurred long before the initiation of this litigation, and the service of process expenses relate to costs incurred in furtherance of an action against the individual defendants, not the United States. Def.'s Opp'n at 30. The Court agrees. GasPlus has failed to explain how the $4.00 photocopying fee incurred more than a year before the initiation of this lawsuit is attributable to this litigation. Further, even assuming that private process server costs were allowable under 28 U.S.C. § 1920,³ the costs of serving Mr. Baracker and Ms. Martin are not recoverable against the United States under Subsection 2412(a)(1) because they were not incurred as part of GasPlus's action against the United States, and thus fall outside the scope of EAJA. See 28 U.S.C. § 2412(a)(1) (allowable costs 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") (emphasis added); In re Turner, 14 F.3d at 641 (costs recoverable under Subsection 2412(a)(1) are those costs...