Nelson v. United States

• Decision Date: 15 July 2022
• Docket Number: 20-1267
• Parties: James NELSON ; Elizabeth Varney, Plaintiffs - Appellees, v. UNITED STATES of America, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

40 F.4th 1105

James NELSON ; Elizabeth Varney, Plaintiffs - Appellees,

v.UNITED STATES of America, Defendant - Appellant.

No. 20-1267

United States Court of Appeals, Tenth Circuit.

FILED July 15, 2022

Edward Himmelfarb, Appellate Staff (Jeffrey Bossert Clark, Acting Assistant Attorney General, Jason R. Dunn, United States Attorney, Charles W. Scarborough, Appellate Staff, and Brian M. Boynton, Acting Assistant Attorney General, with him on the briefs), United States Department of Justice, Civil Division, Washington, D.C., for Appellant.

D. Dean Batchelder (David P. Hersh with him on the brief) Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, Colorado for Appellees.

Before TYMKOVICH, Chief Judge, HOLMES, and MCHUGH, Circuit Judges.

HOLMES, Circuit Judge.

Mr. James Nelson was seriously injured while riding his bicycle on a trail on Air Force Academy property in Colorado. He and his wife, Ms. Elizabeth Varney, sued the United States under the Federal Tort Claims Act ("FTCA"). Mr. Nelson sought damages for his personal injuries; Ms. Varney sought damages for loss of consortium. After several years of litigation—including two prior appeals to this court—the district court ruled that the government was liable for Mr. Nelson's accident and injuries. The court based its decision on the Colorado Recreational Use Statute ("CRUS"). The court awarded Mr. Nelson more than $6.9 million, and it awarded Ms. Varney more than $400,000.

In addition to the damages awards, the district court also ordered the government to pay Mr. Nelson's and Ms. Varney's attorney's fees. CRUS contains an attorney's-fees-shifting provision, allowing prevailing plaintiffs to recover their fees against defendant landowners. Providing an exception to the United States's sovereign immunity, a federal statute—the Equal Access to Justice Act ("EAJA")—provides that "[t]he 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 or under the terms of any statute which specifically provides for such an award." 28 U.S.C. § 2412(b). The district court concluded that CRUS qualifies as "any statute which specifically provides for [an attorney's fees] award," and, consequently, that the government must pay for Mr. Nelson's and Ms. Varney's fees. Aplt.’s App. at 101, 106 (Order, dated Mar. 22, 2018) (quoting 28 U.S.C. § 2412(b) ).

The chief issue presented in this appeal is whether the district court erred in ordering the government to pay the attorney's fees after holding that CRUS qualifies under the EAJA as "any statute which specifically provides for" an attorney's fees award. 28 U.S.C. § 2412(b). We conclude that the court did not err. Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Mr. Nelson was riding his bicycle one day on a trail on property owned by the Air Force Academy. He ran into a sinkhole and was seriously injured. In November 2011, he and Ms. Varney sued the United States under the FTCA. The district court conducted bifurcated trials for liability and damages. In the first trial, the district court found that the United States was liable for Mr. Nelson's injuries. See Nelson v. United States (Nelson I ), 20 F. Supp. 3d 1108, 1139 (D. Colo. 2014), rev'd , 827 F.3d 927 (10th Cir. 2016). The court based its decision on a Colorado state statute other than CRUS, reasoning that CRUS did not apply because the Air Force Academy had not intended for the trail to be used for recreational purposes. Id. at 1135. After the second trial concerning damages, the court awarded Mr. Nelson more than $6.9 million in damages for his personal injuries. It also awarded Ms. Varney more than $400,000 for loss of consortium.

The United States appealed. It argued that the district court should have looked to CRUS to determine whether it was liable for Mr. Nelson's injuries. And it argued that CRUS barred Mr. Nelson's claim because it generally limits the civil liability of a landowner who "either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes." Colo. Rev. Stat. Ann. § 33-41-103(1). We agreed that CRUS applied, and we thus reversed the district court's decision. See Nelson v. United States (Nelson II ), 827 F.3d 927, 929 (10th Cir. 2016). Yet we remanded the case to the district court to determine in the first instance whether the government was liable for Mr. Nelson's injuries under CRUS due to the Air Force Academy's "willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm." Colo. Rev. Stat. Ann. § 33-41-104(1)(a).

On remand, the district court found that the Air Force Academy had willfully failed to warn against the dangerous sinkhole, rendering the government liable under CRUS. See Nelson v. United States (Nelson III ), 256 F. Supp. 3d 1136, 1168 (D. Colo. 2017). It therefore reinstated its original damages award. CRUS has a seemingly mandatory fee-shifting provision. It provides that the "prevailing party in any civil action by a recreational user for damages against a landowner who allows the use of the landowner's property for public recreational purposes shall recover the costs of the action together with reasonable attorney fees as determined by the court." Colo. Rev. Stat. Ann. § 33-41-105.5 (emphasis added). Pursuant to this provision, the district court further awarded Mr. Nelson and Ms. Varney their attorney's fees. See Nelson III , 256 F. Supp. 3d at 1169.

At this point, the government filed a motion to amend the judgment to remove the attorney's fees award. See Aplt.’s App. at 25–34 (Mot. for Relief from Order Awarding Atty's Fees, filed July 6, 2017). The government also simultaneously appealed the district court's CRUS-based liability judgment. We eventually affirmed the district court's decision that the government was liable under CRUS. See Nelson v. United States (Nelson IV ), 915 F.3d 1243, 1246 (10th Cir. 2019).

As the government's appeal of the liability judgment was pending, the dispute over the attorney's fees lingered on in the district court. Eventually, in March 2018, the district court denied the government's motion to amend the judgment to remove the attorney's fees award. The court noted that the fee issue centered on whether CRUS qualified as "any statute which specifically provides for [an attorney's fees] award." See Aplt.’s App. at 93–94 (quoting 28 U.S.C. § 2412(b) ). The government argued that § 2412(b) applied only to federal statutes. Yet the court concluded "from the literal language of the statute that the expansive reference, with no limitation, to ‘any statute’ in § 2412(b) encompasses all statutes, i.e., both federal and state statutes that award attorney fees to the prevailing parties." Id. at 97. The court found the plain language of § 2412(b) so unambiguous that it was "both unnecessary and improper to resort to legislative history." Id. at 103. As a result, the court concluded that the government was liable for attorney's fees as provided in CRUS.

In August 2019, after we had affirmed the liability judgment, the district court appointed a special master to determine the proper amount of attorney's fees. See id. at 109–115 (Order Appointing Special Master, dated Aug. 14, 2019). The special master recommended a fee award of slightly more than $1.8 million. See id. at 125 (Special Master's Recommendation, filed Apr. 29, 2020). The government did not file an objection to this recommendation. And, in a May 2020 order, the district court adopted the recommendation. See id. at 126–28 (Order Adopting Special Master's Recommendation, dated May 27, 2020). The government then timely filed the present appeal.

II

This appeal presents two issues. The first issue is whether the government waived its objection to the attorney's fees award by failing to object to the special master's recommended fee amount. The second—and chief—issue is whether the district court erred in finding that CRUS qualifies under § 2412(b) of the EAJA as "any statute which specifically provides for" an attorney's fee award, and thus in ordering the government to pay Mr. Nelson's and Ms. Varney's attorney's fees. We shall address each issue in turn.

A

We begin with whether the government has waived its objection to the attorney's fees award. This issue was first raised at our court's behest by our Clerk's Office. In an August 2020 order, the Clerk directed the parties to address in their briefs whether the firm waiver rule applies when a party fails to object to a special master's recommendation—as it would when a party fails to object to a magistrate judge's findings or recommendations.

In response, Mr. Nelson and Ms. Varney argue that because the government "fail[ed] to object to the special master's recommendation" of a fee amount, the government waived its present challenge to the attorney's fees award. Aplees.’ Br. at 15. Mr. Nelson and Ms. Varney emphasize that the government "agreed to and recommended to the court that a special master be appointed to determine the amount of attorney's fees," and then subsequently "agreed to and participated in this [special master] process." Id. at 13. They admit that the government "had opposed the district court's award of attorney's fees" in a motion filed in the immediate wake of the district court's order granting this award. Id. at 14. Yet Mr. Nelson and Ms. Varney nonetheless contend that we should not entertain the government's objection to the attorney's fees award because the government "suggested that the district court appoint a special master, participated in proceedings before her, and then filed no object to her recommendation." Id.

The government, in turn, does "not take a position" on whether the firm waiver rule applies to a special master's recommendation—because it insists that it is not actually challenging the special master's recommendation. Aplt.’s Opening...