United States v. Harrell

FILED
United States Court of Appeals
Tenth Circuit

April 29, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 10-2153

MELISSA LEIGH HARRELL,
Unknown Owner; DONALD
HARRELL, and his Wife, Maryana N.
Harrell; GEORGE THOMPSON, III,
and his Wife Betty Thompson;
CLAIRE G. MEADOR; JACK
GULLAHORN, and his Wife Patti
Gullahorn; EDWARD (BUBBA)
DEWAY SPEARS, Personal
Representative of the Estate of Lois D.
Spears, deceased; RONALD J.
HARRELL; DEBBIE HARRELL
EVANS, Independent Co-executor of
the Estate of Joab B. Harrell, Jr.,
Deceased, and Estate of Marie S.
Harrell, Deceased,

Defendants-Appellants,

and

99,223.7238 ACRES OF LAND, more
or less in Sandoval and Rio Arriba
Counties, New Mexico; MAGMA
POWER COMPANY, a Nevada
Corporation - Unknown Owner;
ERNESTINE BIRDSEY PHINNEY;
ANN TEMESI, Unknown Owner;
JAMES P. DUNIGAN, JBD Trust,
 TFP Trust, WRD Trust, JAP Security
Trust - unknown owners; PUBLIC
SERVICE COMPANY OF NEW
MEXICO, Unknown Owner;
SANDOVAL COUNTY, Unknown
Owner - Attn: Lorraine Dominguez,
Treasurer; RIO ARRIBA COUNTY,
Unknown Owner - Attn: Livia Olguin,
Treasurer; STATE OF NEW MEXICO
TAXATION AND REVENUE
DEPARTMENT; GEOPRODUCTS
OF NEW MEXICO, INC., Gregory J.
Nibert, Registered Agent,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 2:06-CV-00933-RB-RHS)

Submitted on the briefs: *

Andrew J. Cloutier, James M. Hudson, Lucas M. Williams of Hinkle, Hensley,
Shanor and Martin, L.L.P., Roswell, New Mexico, for Defendants-Appellants.

Ignacia S. Moreno, Assistant Attorney General, Kristin R. Muenzen, Jeffrey M.
Tapick, Brian C. Toth, Attorneys, U.S. Department of Justice, Environment and
Natural Resources Division, Washington, D.C., for Plaintiff-Appellee.

Before HOLMES and McKAY, Circuit Judges, and PORFILIO, Senior Circuit
Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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McKAY, Circuit Judge.

This appeal asks us to consider whether the defendant-appellant property

owners were the “prevailing party” in this case, as that term is defined for

eminent domain proceedings under the Equal Access to Justice Act (EAJA),

28 U.S.C. § 2412(d)(2)(H). The district court determined that appellants were not

the prevailing party, even though the court had awarded them a judgment for

approximately $3.8 million, and the court therefore denied their motion for

approximately $2 million in attorney’s fees and costs under EAJA.

We affirm the district court’s order denying defendants’ motion for

attorney’s fees, even though the defendant landowners won the judgment, and

even though they won $3.8 million—much more than the government ever offered

them for their property. Although this result may seem unfair under the

circumstances of this case, set out below, the language defining “prevailing party”

in § 2412(d)(2)(H) is clear both on its face and in light of its legislative history,

and it is clear that defendants cannot qualify as the prevailing party under Tenth

Circuit law.

We have already held, in the context of § 2412(d)(2)(H), that “[t]he EAJA

is a waiver of sovereign immunity and it therefore must be strictly construed”

when we consider “under what circumstances Congress was willing to require the

government to pay the attorney’s fees of other parties” under the “mathematical

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prevailing party standard” set out in § 2412(d)(2)(H). United States v. Charles

Gyurman Land & Cattle Co., 836 F.2d 480, 481, 483 (10th Cir. 1987). We have

also held, in the context of § 2412(d)(2)(H), that we are not free to create

exceptions to Congress’ unambiguous statutory language, even to prevent

manifest injustice. United States v. 1002.35 Acres of Land, 942 F.2d 733, 735-37

(10th Cir. 1991).

I. Statutory Definition of “Prevailing Party” in Eminent Domain Proceedings

Congress has defined the following mathematical formula for determining

whether a landowner who obtained the judgment in eminent domain proceedings

is a prevailing party:

[A] “prevailing party”, in the case of eminent domain proceedings,
means a party who obtains a final judgment (other than by
settlement), exclusive of interest, the amount of which is at least as
close to the highest valuation of the property involved that is attested
to at trial on behalf of the property owner as it is to the highest
valuation of the property involved that is attested to at trial on behalf
of the Government[.]

§ 2412(d)(2)(H). Congress added this subparagraph to EAJA in 1985 to clarify

that EAJA does apply to eminent domain proceedings (an issue over which the

circuits had split) and to provide the definition for “prevailing party” for eminent

domain proceedings.

Congress explained its reasons for adding subparagraph (d)(2)(H) to EAJA

in the House Report, which clearly shows Congress’ intent that a district court

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make its decision about “prevailing party” status in an eminent domain

proceeding based on the testimony at trial:

Under this amendment, a party would be regarded as a
prevailing party when the amount it is awarded by the court lies at
least halfway between the highest amount testified to on behalf of
the government and the highest amount testified to on behalf of the
opposing party. In other words, the prevailing party is the one
whose testimony in court is closer to the award. If the award is
exactly in the middle, it gives the benefit to the property owner.
This amendment applies only to values testified to in court.

H.R. Rep. 99-120, at 18, 1985 U.S.C.C.A.N. 132, at 147 (“all caps” style omitted)

(emphasis added).

Congress also explained that its definition of “prevailing party” provided an

incentive for the parties to an eminent domain proceeding to be reasonable in

their valuations:

The Committee expects that this amendment will terminate the
uncertainty which currently exists due to continuing litigation over
who is the prevailing party in condemnation actions. The committee
also hopes that the amendment will result in bringing the government
and the property owner closer together in their land valuations, since
they would both have the extra incentive of being determined the
prevailing party under the Equal Access to Justice Act.

Id.

Under the definition set out in § 2412(d)(2)(H), appellants must meet two

requirements to qualify as the “prevailing party.” First, they must have obtained

the judgment. They did obtain the judgment, see Aplt. App., Vol. 2, at 410, so

they have met the first requirement. The second requirement, however, is that

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their highest valuation of the property “attested to at trial” must be at least as

close to the judgment they obtained as the government’s highest valuation

“attested to at trial[.]” See § 2412(d)(2)(H).

The district court held that its $3.8 million judgment in favor of appellants

was closer to the highest valuation testified to by the government’s expert,

$186,500, than to the highest valuation testified to by appellants’ expert,

$33 million, leading to the court’s conclusion that appellants were not the

prevailing party and were not entitled to attorney’s fees under EAJA. Aplt. App.,

Vol. 2, at 426-29. On appeal, appellants do not seriously dispute that the highest

valuation in their expert’s testimony was $30.6 million at the first hearing and

$33 million at the second hearing. They argue, rather, that they should not be

bound by the highest valuations in the evidence they presented at trial because

they moved to adopt the $6.1 million valuation proposed by the special

commission the parties had agreed to appoint under Fed. R. Civ. P. 71.1(h)

for the very purpose of determining the value of their property. Understanding

appellants’ arguments requires a review of the procedural history, which follows.

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 II. Procedural History

Appellants formerly owned an undivided 12.5% mineral interest in land

formerly called the Baca Ranch in the volcanic Jemez Mountains in New Mexico. 1

The original owners bought the land as a speculative investment in its potential

for geothermal development, but there was also some value in its hard rock

minerals. Geothermal energy development was attempted, but it was not

successful, and the original owners apparently did not get along well. In 2000,

the government purchased, from owners other than the appellants, the surface

estate of the Baca Ranch and 87.5% of the mineral estate to create a national

preserve. Appellants refused the government’s December 2001 offer of

$1.875 million for their undivided 12.5% mineral interest. See Aplt. App., Vol. 1,

at 53, 123. (The district court later noted that, by extrapolation, the government’s

payment for the land and the other 87.5% of the mineral estate valued the

remaining 12.5% mineral estate at $2.273 million. Id., Vol. 2, at 374 n.7.)

1
To be specific, there were two parcels of land and two separate mineral
interests. They were adjudicated together, however, and one of the mineral
interests was determined to have negligible value. See, e.g., Aplt. App., Vol. 2,
at 403-05 (showing the district court’s determination of fair market value for the
Baca Ranch mineral interest as $3.8 million and the Bandelier mineral interest as
$968). For the purposes of this opinion, we refer to both interests as one, and
have rounded most of the numerical values to millions.

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 By stipulation of the parties, the government took appellants’ 12.5%

mineral interest on May 21, 2006. Id. at 377. In October 2006, the government

initiated this eminent domain proceeding to determine how much it would be

required to pay appellants as just compensation for the taking. See id.,

Vol. 1, at 34. The government attached documentary evidence to its complaint

stating that appellants’ mineral interest was worth $700,000, and the government

deposited that amount with the district court. See id. at 44, 50. Appellants did

not file an answer; rather, the magistrate judge filed an initial scheduling order

setting a hearing for the parties to discuss the possibility of settlement and to

begin discovery. R., D.C. No. 06-0933 RB/RHS, Doc. 15.

Unable to reach a settlement during discovery, the parties agreed pursuant

to Rule 71.1(h) in June 2008 for the district court to appoint a three-member

commission to determine the value of appellants’ undivided 12.5% mineral

interest. The Commission received evidence and heard testimony from the

parties’ experts at a hearing in March 2009. The government’s expert,

John Widdoss, testified that appellants’ 12.5% mineral interest was worth only

$186,500. See Aplt. App., Vol. 2, at 377-78 & n.10. Appellants’ expert,

Dr. Mitchell E. Albert, testified that their mineral interest was worth a range of

values up to approximately $30.6 million (counting the hard rock mineral value as

well as the geothermal value of both mineral estates). Id. at 380-81, 400; see also

Aplee. Br. at 22-23.

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 The Commission decided based upon the evidence presented at trial that the

value of appellants’ undivided 12.5% mineral interest was $6.1 million.

Appellants moved the district court to adopt that valuation, but the government

objected to it, suggesting that evidence of comparable sales presented to the

Commission would support a modification of the assessed value to an amount

between $200,000 and $3.8 million. Aplt. App., Vol. 2, at 257.

Before the district court considered the parties’ motions concerning the

Commission’s valuation, appellants moved the district court for sanctions against

the government based on discovery abuse. Id. at 214. They asserted that during

discovery, the government had produced only the 2001 “Halmbacher Appraisal,”

see id. at 216-17, which valued appellants’ mineral interest at $1.875 million, see

id. at 384. Four days before the March 2009 trial before the Commission,

however, the government had disclosed the existence of the 2000 “Van Court

Supplemental Appraisal,” which appraised a portion of the Baca Ranch and was

therefore covered by a discovery order entered by the magistrate judge on

September 26, 2007. See id. at 384, 405. This was appellants’ second motion for

sanctions (the first motion was denied), and they argued that the government’s

conduct in failing to disclose the Van Court Supplemental Appraisal until “almost

two years” after the government was ordered to produce all of the appraisals was

“inexcusable[.]” Id. at 214.

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 Appellants asked that judgment be entered against the United States “in the

amount of $30,310,785, as a sanction for its conduct in this matter” and that they

be awarded their attorney’s fees and costs. Id. at 222-23. The magistrate judge

entered a Report and Recommendation recommending that the motion for

sanctions be denied because appellants had not sought a continuance to consider

the late-filed appraisal, and thereby waived the government’s delay.

R., D.C. No. 06-0933 RB/RHS, Doc. 190. Appellants filed objections to the

recommendation. Id., Doc. 197.

In response to appellants’ motion for sanctions, the district court reopened

discovery so that the parties’ experts could update their appraisals to include the

late-filed Van Court Supplemental Appraisal, and the court scheduled a hearing

for October 13, 2009, to determine “[t]he issues of just compensation and the

appropriateness of sanctions[.]” Aplt. App., Vol. 2, at 287. The court specified

that the parties could provide a summary of “highest and best use of the mineral

interests at issue in this case, an evidentiary-based assessment of fair market

value, and any evidence of actual prejudice to the Defendants based on the

untimely disclosure of an appraisal by the United States.” Id. at 288. Appellants

were instructed, however, that they could “only . . . address the issue of just

compensation on rebuttal.” Id. 2

2
The district court’s order may have been ambiguous. The court might have
(continued...)

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 At the October 13 hearing, the government’s expert, Mr. Widdoss, once

again testified that appellants’ mineral interest was worth only $186,500. Id.

at 298, 427. In argument, the government’s counsel contended that the value was

at most $3.8 million based on comparable sales. Id. at 322 (tr. at 130-31).

Appellants again offered the testimony of Dr. Albert, who said that if he had had

the government’s late-filed appraisal in a timely manner, he would have increased

his estimation of the value of appellants’ mineral interest to a range as high as

approximately $33 million. See id. at 291 (tr. at 8 ln. 15-18, 9 ln. 11-14), 427.

In their brief on appeal, appellants claim to have again adopted the

Commission’s $6.1 million valuation during their rebuttal argument at the

October 13 hearing, in spite of the evidence they had just put on that their

property was worth as much as $33 million. See Aplt. Opening Br. at 13. There

are two somewhat vague references in the hearing transcript relevant to this

assertion. See generally Aplt. App., Vol. 2, at 289-327. At the close of

appellants’ opening argument, which is the cite appellants provide in their

opening brief on appeal, appellants’ counsel objected to the government’s

2
(...continued)
meant that appellants’ rebuttal was limited to the issue of just compensation, or,
alternatively, it might have meant that appellants were not allowed to address the
issue of just compensation until rebuttal. Appellants interpreted the order to
mean that they were not permitted to address the issue of just compensation until
rebuttal. They have not argued that the district court’s order was ambiguous,
however, which results in a waiver of such an argument on appeal.

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argument that there had been no testimony that their property was worth

$6.1 million, as the Commission had determined. Id. at 306 (tr. at 66).

Appellants’ counsel said:

First of all, I think, from a trying-a-damages-case perspective,
they’re taking an absurd position to argue that there’s no evidence
for the $6.1 million, of the Commission’s position, because nobody
testified to $6.1 million. Nobody testified to less than 6 megawatts
per well. Your Honor, this is a damages case. We put on our
damages case. We didn’t say, It’s this or nothing. It’s 6.1.

Id. (tr. at 66 ln. 14-21). In addition, during his rebuttal argument, appellants’

counsel said that appellants were “very gratified – even though they thought it

was too low, they’re very gratified to get the Commission’s ruling. They’ve been

waiting a long time.” Id. at 326 (tr. at 149 ln. 12-15). As explained below, we

find it unnecessary to decide whether appellants “readopted” the Commission’s

$6.1 million valuation at the October 13, 2009, hearing.

In its Memorandum Opinion and Order entered on December 14, 2009, the

district court considered both the parties’ motions concerning the Commission’s

valuation of the property and appellants’ motion for sanctions. See id.

at 366-409. Upon de novo review, the court determined that the value of

appellants’ undivided 12.5% mineral interest was $3.8 million. Id. at 403-05.

The court rejected the Commission’s $6.1 million valuation (and appellants’

motion to adopt it) because the members did not set out the path they followed to

reach their valuation. Id. at 389. The court based its valuation on evidence of

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comparable sales, adjusted for inflation, for the highest and best use of the

mineral interest at the time of the taking in May 2006, which the court determined

was to continue to hold it as a speculative investment until technological

advancements would make development of the geothermal properties

economically feasible. See id. at 398-405. The court granted appellants’ motion

for sanctions, rejecting the magistrate judge’s recommendation. Id. at 405. The

court awarded appellants attorney’s fees of $50,000, much less than they had

requested. Id. at 407-08. The court then entered judgment in favor of appellants.

Id. at 410.

III. Appellants’ Motion for Attorney’s Fees under EAJA

Having won the judgment, appellants moved for attorney’s fees and costs

under EAJA, arguing that they were the prevailing party under § 2412(d)(2)(H),

and asserting that “their” valuation of $6.1 million was closer to the district

court’s $3.8 million judgment than the government’s $186,500 valuation.

See Aplt. App., Vol. 2, at 412. Appellants further argued that the government’s

litigation position was not substantially justified because the government had

previously valued the property variously at $2.2 million (by the district court’s

extrapolation from the government’s actual purchase price of the other 87.5%

mineral interest), at $1.875 million (in the Halmbacher Appraisal and the

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government’s actual December 2001 purchase offer to defendants), and at

$700,000 (in a valuation attached to the government’s complaint). Id. at 413.

Appellants asserted in their motion for attorney’s fees that they had put on

evidence that the value of their geothermal property was either $4.5 million or

$8.9 million, and that the value of their non-geothermal property (that is, hard

rock minerals) was nearly $1 million. See id. at 414. They did not mention that

their expert, Dr. Albert, had testified that their property was worth as much as

$30.6 million (at the hearing before the Commission) or as much as $33 million

(at the hearing before the district court on their motion for sanctions). See id.

Instead, they stated that the Commission had concluded that the value of their

mineral interest was $6.1 million, and they then performed the mathematical

comparison set out in § 2412(d)(2)(H) as if $6.1 million was their highest

valuation of their mineral interest attested to at trial. See Aplt. App., Vol. 2,

at 414-15. They stated that “[f]ollowing the Special Commission’s award of

$6.1 million, Defendants adopted the Special Commission’s award and filed their

Motion to Adopt the Special Commission’s Report.” Id. at 415. They also noted

that “[s]eparate and apart from [their] Motion to Adopt the Special Commission’s

Report, [they] proffered the testimony of Dr. Mitch Albert on October 13, 2009

regarding damages suffered by Defendants in connection with the United States’

untimely disclosure of the Van Court Supplemental Appraisal.” Id. n.1. They did

not mention that the prejudice they claimed to have suffered was that their expert,

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Dr. Albert, would have testified based on the Van Court Supplemental Appraisal

that their property was worth up to $33 million, even more than the $30.6 million

value he had testified to at the hearing before the Commission. See id.

As noted above, the district court denied appellants’ motion for attorney’s

fees, holding that its $3.8 million judgment in favor of appellants was closer to

the highest valuation testified to by the government’s expert, $186,500, than to

the highest valuation testified to by appellants’ expert, $33 million, and that

appellants therefore were not the prevailing party under § 2412(d)(2)(H). Aplt.

App., Vol. 2, at 426-29.

IV. Standards of Review and Issues on Appeal

This court reviews the denial of an award of attorney’s fees under EAJA for

abuse of discretion. United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481,

1486 (10th Cir. 1984). “Under this standard of review, the district court’s

conclusions of law are reviewable on a de novo basis, and its findings of fact are

to be reversed only if clearly erroneous.” Id. (citation omitted) (internal

quotation marks omitted).

Appellants do not dispute what happened in the district court, but, rather,

the legal significance of what happened. They raise two issues on appeal. First,

they argue that the district court erred in holding that they offered valuation

testimony at the hearing on their sanctions motion because the district court’s

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scheduling order limited their testimony to establishing prejudice arising from the

government’s untimely disclosure of the Van Court Supplemental Appraisal. This

argument is contradicted by the court’s order, however, which informed the

parties that a hearing was being scheduled in order for the court to determine

“[t]he issues of just compensation and the appropriateness of sanctions[.]” Aplt.

App., Vol. 2, at 287. Further, if the district court was conducting a trial de novo

at the October 13 hearing, as appellants argue, see Aplt. Opening Br. at 19-21,

then the court necessarily would have heard testimony on the value of the

property. The issue of just compensation was before the court because, although

appellants had not objected to the Commission’s valuation of their mineral

interest, the government had objected to it. See Aplt. App., Vol. 2, at 257.

Moreover, appellants’ approach to proving that they were prejudiced by the

government’s untimely disclosure of the Van Court Supplemental Appraisal was

to put their expert on the stand to testify that it would have increased his estimate

of the value of their property. See id. at 427.

Second, appellants argue that the district court erred in holding that the

government’s $186,500 value was closer to the $3.8 million judgment than their

valuation because they had “attested to” the Commission’s $6.1 valuation by

moving to adopt it, and $6.1 million is therefore the value the district court

should have used for their part of the comparison required by § 2412(d)(2)H).

We disagree.

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 We note that if defendants were entitled to rely on the Commission’s $6.1

valuation as their highest valuation of the property “attested to at trial[,]” then

they would be correct that their valuation would be closer to the district court’s

$3.8 million judgment than the government’s valuation. See § 2412(d)(2)(H).

$3.8 million minus $186,500 equals $3,613,500. $6.1 million minus $3.8 million

equals $2.3 million, so the Commission’s valuation is closer to the final judgment

than the government’s highest valuation. For appellants’ valuation to be farther

from the judgment than the government’s valuation, it would have to be no less

than $3.8 million plus $3,613,500, which equals $7,413,500. As a result, if

appellants’ highest valuation “attested to at trial” was more than approximately

$7.4 million, then they cannot be prevailing parties under the plain language of

§ 2412(d)(2)(H).

The question before us in this appeal is whether appellants are entitled to

rely on the Commission’s $6.1 million valuation as their highest “attested to”

valuation for purposes of “prevailing party” status under § 2412(d)(2)(H).

Appellants frame their arguments challenging the district court’s conclusion on

their fee motion as if they are challenging factual findings reviewed for clear

error. See Aplt. Opening Br. at 21 (“[T]he district court’s finding that

$33,000,000 was the highest valuation offered on behalf of Appellants was clearly

erroneous.”), 23 (“By ignoring the Appellants[’] explicit adoption of the

Commission’s value, the district court’s reasoning that Appellants were not the

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prevailing party is actually contrary to the stated legislative intent the court relied

on, indicating that the district court’s conclusion is clearly erroneous.”).

However, we believe that their issue implicates the proper interpretation of the

phrase “attested to” in § 2412(d)(2)(H) and, therefore, presents a legal question

reviewed de novo. Fruitt v. Astrue, 604 F.3d 1217, 1220 (10th Cir. 2010) (“To

the extent that the district court’s order involves statutory construction, we review

it de novo.”). Unfortunately, appellants’ arguments do not address how to

properly interpret § 2412(d)(2)(H) under Tenth Circuit law.

V. Tenth Circuit Precedent

We have previously issued two opinions discussing issues arising under

§ 2412(d)(2)(H), and these decisions foreclose appellants’ arguments on appeal in

this case.

In United States v. Charles Gyurman Land & Cattle Co., 836 F.2d 480

(10th Cir. 1987), neither the district court’s application of the definition for

“prevailing party” in § 2412(d)(2)(H) (which was under consideration at the time

of the district court’s ruling, but which had not yet been enacted by Congress),

nor the district court’s determination that the landowner was the prevailing party

under § 2412(d)(2)(H) was challenged on appeal. Charles Gyurman Land &

Cattle Co., 836 F.2d at 482. The issue, rather, was “[t]he proper test for

determining whether the government’s position is substantially justified[.]” Id.

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In the process of developing a test for substantial justification, we stated that

“[t]he EAJA is a waiver of sovereign immunity and it therefore must be strictly

construed” when the court considers “under what circumstances Congress was

willing to require the government to pay the attorney’s fees of other parties”

under the “mathematical prevailing party standard” set out in § 2412(d)(2)(H).

Charles Gyurman Land & Cattle Co., 836 F.2d at 481, 483.

Our holding that EAJA must be strictly construed is a constraint on

appellants’ arguments in this case, although they have not acknowledged it. The

plain language of § 2412(d)(2)(H) expressly requires the district court to use the

highest valuation in their evidence for the mathematical comparison. We do not

believe that the phrase “attested to at trial” is ambiguous, but even if it is, the

legislative history makes clear that “[t]his amendment applies only to values

testified to in court.” See H.R. Rep. 99-120, at 18, 1985 U.S.C.C.A.N. 132,

at 147 (“all caps” style omitted). The government advances this same argument

directly from the legislative history, rather than from our holding in

Charles Gyurman Land & Cattle Co. See Aplee. Br. at 20.

A strict construction of § 2412(d)(2)(H) leaves no room for appellants’

argument that the district court should have used the Commission’s $6.1 million

as their highest “attested to” valuation because they moved to adopt it, despite the

fact that their expert’s testimony valued their property as high as $30.6 million at

the trial before the Commission and as high as $33 million at the hearing before

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the district court. And even if we were to accept appellants’ argument that they

should not be bound by the valuation testimony they put on at the October 13

hearing to prove prejudice arising from the government’s untimely disclosure of a

relevant appraisal, the highest valuation in their testimony would still be

$30.6 million, much more than the $7.4 million value at which they would lose

“prevailing party” status, in light of the language of § 2412(d)(2)(H) and the

government’s highest “attested to” valuation in this case. See, e.g., Aplee. Br.

at 17, 22-23. The government asserts that appellants have waived any argument

that the $30.6 million value was not obtained “at trial[,]” as required by

§ 2412(d)(2)(H), by failing to present it in their opening brief. See id. at 15, 23.

We agree.

We also addressed § 2412(d)(2)(H) in United States v. 1002.35 Acres of

Land, 942 F.2d 733 (10th Cir. 1991). In that case, we considered whether the

new definition for “prevailing party” enacted in 1985 should apply to eminent

domain proceedings initiated in 1979. See 1002.35 Acres of Land, 942 F.2d

at 734-35. The district court had adopted the magistrate judge’s decision to apply

an earlier definition for “prevailing party” adopted by the Fifth Circuit, “under

which a landowner is considered the prevailing party for EAJA purposes if he

succeeds in recovering far more than the government had offered or admitted

liability for in a condemnation case.” Id. at 735 (quotation marks omitted). The

magistrate judge had acknowledged that § 2412(d)(2)(H) called for a comparison

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of the highest valuations in the parties’ evidence to the judgment obtained, and

that the landowners would not be the prevailing party if the new definition

applied. See id.

We reversed on the ground that the new definition set forth in

§ 2412(d)(2)(H) applied. 1002.35 Acres of Land, 942 F.2d at 736-37. We

reasoned that “[w]here . . . Congress expressly provides, as it did in the 1985

[EAJA] Amendments, that a statute shall apply to cases pending on or

commenced on or after the date of the enactment, courts have no choice but to

follow its dictates.” Id. at 736 (emphasis added). We explained that “[c]ourts are

not at liberty to create exceptions to the application of a statute when Congress

expressly directs its application[,]” and that “courts can proceed by assuming that

Congress authorizes them to prevent manifest injustice” only “[i]n instances

where Congress is silent or the statute is ambiguous[.]” Id.

Our holdings in 1002.35 Acres of Land are also constraints on appellants’

arguments in this case, although they do not acknowledge these holdings. The

plain language of § 2412(d)(2)(H) requires a district court to use the “highest

valuation of the property involved that is attested to at trial on behalf of the

property owner[.]” That leads to a result in this case—that appellants are not the

prevailing party—that may seem manifestly unjust for two reasons. First,

appellants obtained a judgment more than twice as high as the amount the

government had offered them for their mineral interest before litigation began.

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And, second, the government repeatedly lowered its estimate of the value of the

property until the Commission determined that the value was $6.1 million, and

then the government increased its valuation to $3.8 million on the basis of

comparable sales data, even though the government’s original purchase offer to

appellants was less than half as much as $3.8 million. Under 1002.35 Acres of

Land, 942 F.2d at 736, however, we are bound to apply the plain language of

§ 2412(d)(2)(H), and we conclude that appellants are not the prevailing party.

Appellants’ argument that this court should allow them to use the

Commission’s $6.1 million valuation as their “attested to” valuation because it

would effectuate congressional intent to bring the parties’ valuations closer

together is based on a selective reading of the legislative history. See Aplt.

Opening Br. at 23. Congress plainly indicated in the statute that a landowner

could not become a prevailing party in eminent domain proceedings based on a

compromise valuation. See § 2412(d)(2)(H). Appellants’ argument that a legal

dictionary’s broad definition of “attest” would include their motion to adopt the

Commission’s valuation ignores our precedent establishing how to interpret

EAJA. See Aplt. Opening Br. at 22; Aplt. Reply Br. at 7. In addition, the

government correctly argues that both a regular dictionary and a legal dictionary

define “attest” to mean “testify,” and the word “does not encompass the act of

filing a motion or making legal arguments.” Aplee. Br. at 18. We conclude that

appellants’ argument based on an asserted dictionary definition is without merit.

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And, in any event, $6.1 million could not be termed appellants’ highest valuation,

which the district court was required by the plain language of the statute to use.

See § 2412(d)(2)(H).

In this case, the district court cited 1002.35 Acres of Land for the legal

standard to be applied to the “prevailing party” determination, and the court cited

the House Report as support for the limitation that “the only relevant values are

those values testified to in court.” Aplt. App., Vol. 2, at 428. The court did not

cite Charles Gyurman Land & Cattle Co. or make any specific reference to the

requirement that EAJA be strictly construed. That proposition is well-settled in

Tenth Circuit law, however. See, e.g., Sloan v. Pugh, 351 F.3d 1319, 1322

(10th Cir. 2003); In re Estate of Smith v. O’Halloran, 930 F.2d 1496, 1501

(10th Cir. 1991).

Appellants argue that we should resolve the tension created by

§ 2412(d)(2)(H)—acknowledged by the district court—that the landowner is

caught between an incentive to present testimony of the highest possible value of

his property, while being compelled by the definition of “prevailing party” to

keep his valuation testimony lower. Aplt. Opening Br. at 23-24. We believe that

1002.35 Acres of Land has already answered this question, however, because we

held that if Congress’ language is clear, we must apply it even if it results in

manifest injustice. 942 F.2d at 736-37.

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 Appellants also suggest that they should be deemed the prevailing party

because they “received a judgment more tha[n] twenty times higher than the

Government’s highest valuation offered in the case.” Aplt. Opening Br. at 3. It is

true that appellants obtained a judgment much higher than the $1.875 million the

government had offered them, let alone the $186,500 value the government’s

expert testified to in this litigation. However, we considered and rejected in

1002.35 Acres of Land an analysis comparing only what the government had

offered the landowner to what the landowner obtained in the judgment. See

942 F.2d at 735-37. Section 2412(d)(2)(H) plainly calls for a comparison of both

sides’ highest valuation in the testimony with the district court’s judgment.

Finally, in their reply brief, appellants argue that the doctrine of judicial

estoppel should apply to protect them from their decision to move to adopt the

Commission’s $6.1 million valuation and, then, to contradict that position by

putting on evidence that the value was much higher. See Aplt. Reply Br. at 11.

This argument is without merit for two reasons. First, arguments raised for the

first time in a reply brief are generally deemed waived. Wheeler v. Comm’r,

521 F.3d 1289, 1291 (10th Cir. 2008). In addition, the doctrine of judicial

estoppel is an affirmative defense. Hansen v. Harper Excavating, Inc.,

No. 08-4089, 2011 WL 1379821, at *9 (10th Cir. Apr. 13, 2011). Appellants

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have not explained how they can use the doctrine of judicial estoppel to save them

from their own change in position.

VI. Conclusion

The district court’s judgment is AFFIRMED.

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