Nelson v. United States

Appellate Case: 20-1267 Document: 010110711456 FILED
Date Filed: 07/15/2022 Page: 1
United States Court of Appeals
Tenth Circuit

PUBLISH July 15, 2022
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

JAMES NELSON; ELIZABETH
VARNEY,

Plaintiffs - Appellees,
No. 20-1267
v.

UNITED STATES OF AMERICA,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:11-CV-02953-DDD-CBS)

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.
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 2

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

2
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 3

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.

3
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 4

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

4
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 5

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

5
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 6

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.

6
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 7

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.

7
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 8

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 Br. at 13. Instead, the government contends that it was challenging “the

district court’s pre-existing legal conclusion that it has statutory authority to

award attorney’s fees,” pursuant to CRUS. Id. In that way, the government

claims that “[o]nly the pre-existing legal issue of the authority to award fees is

part of this appeal, not the amount of fees” actually recommended by the special

master and adopted by the district court. Aplt.’s Reply Br. at 4 (first emphasis

added). And because “there is no dispute that the United States objected to the

district court’s legal ruling that section 2412(b) permits a fee award to [Mr.

Nelson and Ms. Varney], a matter that the special master had nothing to do with,”

the government argues that it properly preserved its challenge to the fee award.

Id.

Moreover, the government insists that it was unable to immediately appeal

from the district court’s March 2018 order awarding attorney’s fees “because the

court did not determine the amount of fees to be awarded.” Aplt.’s Opening Br.

at 13. That is, the government claims that its challenge to the fee award became

appealable as a final decision only after the district court adopted the final fee

award amount recommended by the special master.

8
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 9

We agree with the government. It properly preserved its present objection

to the attorney’s fees award.

It is certainly true that “the failure to make timely objections to the

magistrate’s findings or recommendations waives appellate review of both factual

and legal questions.” United States v. One Parcel of Real Prop., 73 F.3d 1057,

1059 (10th Cir. 1996) (quoting Moore v. United States, 950 F.2d 656, 659 (10th

Cir. 1991)). And, in light of the statutory-authority question at the heart of this

appeal, it is noteworthy that “[a] magistrate judge’s lack of statutory authority is

not a jurisdictional defect; thus, objection to such authority is waived if not

timely raised.” In re Griego, 64 F.3d 580, 583 (10th Cir. 1995); see also Clark v.

Poulton, 963 F.2d 1361, 1366 (10th Cir. 1992) (holding that because the appellant

“made no objection to the referral to the magistrate judge,” he “waived” any

argument “that there was no statutory authorization for the referral”).

But we have never expressly applied this firm waiver rule in the context of

a failure to object at all or a failure to timely object to a special master’s

recommendation. Yet it is clear to us that, even if the rule did apply here, as it

does for a magistrate judge’s recommendation, the rule still would not foreclose

the government’s present challenge to the attorney’s fees award. That is because

the government’s objection—both before the district court and here—has not been

to the precise amount of fees recommended by the special master. Nor has the

government claimed that the special master’s recommendation somehow exceeded

9
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 10

its statutory authority under 28 U.S.C. § 636 or Federal Rule of Civil Procedure

53. Instead, the government’s objection has been to an action that preceded the

special master’s recommendation—that is, the district court’s award of attorney’s

fees itself. In a nutshell, the government has maintained that the court lacked

statutory authority to make this award.

For that reason, then, our caselaw on omitted or untimely objections to a

magistrate judge’s recommendations is inapposite. And this is so even if that

caselaw sheds light on the principles that should govern how we treat such

recommendations of special masters. The focus of the government’s objection is,

after all, the action of the district court. Likewise, equally inapposite are the

various out-of-circuit decisions cited by Mr. Nelson and Ms. Varney involving

failures to object to special master recommendations. See Aplees.’ Br. at 12 n.6.

Those cases involve objections to particular findings or recommendations by a

special master, but it is the action of the district court in awarding attorney’s fees

that is at issue here, and that is the subject of the government’s objection.

It is essential to distinguish an objection to the district court’s statutory

authority to award attorney’s fees from an objection to the precise amount of fees

recommended by the special master. The government timely raised the former

objection; even Mr. Nelson and Ms. Varney concede as much. See id. at 14

(“Certainly, the United States had opposed the district court’s award of attorney’s

fees.”). More specifically, on June 9, 2017, the district court on remand held that

10
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 11

the United States was liable for Mr. Nelson’s and Ms. Varney’s injuries and

reinstated the original damages award. The court also again awarded attorney’s

fees to Mr. Nelson and Ms. Varney. See Aplt.’s App. at 18 (Docket). On July 6,

2017, the government filed a motion for relief from the court’s order awarding

attorney’s fees. It argued that, under § 2412(b), the court could not award fees

pursuant to CRUS. See id. at 25–34. On March 22, 2018, the district court

denied the government’s motion and once again held that the award for attorney’s

fees was permissible. See id. at 89–108.

Importantly, the government could not immediately appeal this district

court order because the court had not yet determined the exact amount of fees to

be awarded. See Am. Soda, LLP v. U.S. Filter Wastewater Grp., 428 F.3d 921,

924 (10th Cir. 2005) (“An award of attorneys’ fees is not final and appealable . . .

until it is reduced to a sum certain.”); Phelps v. Washburn Univ. of Topeka, 807

F.2d 153, 154 (10th Cir. 1986) (per curiam) (“[I]f an award of attorney’s fees is

not reduced to a sum certain, it is not final.”). It could not appeal the court’s

attorney’s fees award until after the court had approved a final award amount, and

that is precisely what the government eventually did. The critical point is that the

government objects not to the amount awarded, but to the district court’s

authority to order any award. The government timely raised this authority

objection, and it is thus properly preserved for our review.

11
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 12

B

We now turn to the chief issue presented in this appeal: whether CRUS

qualifies under § 2412(b) of the EAJA as “any statute which specifically provides

for” an attorney’s fee award, and, in turn, whether the government must therefore

pay Mr. Nelson’s and Ms. Varney’s attorney’s fees. At its heart, the parties’

dispute on this issue turns on the meaning of “any statute” in § 2412(b). The

government offers a narrow interpretation, one limited to a discrete category of

federal statutes; Mr. Nelson and Ms. Varney offer a broader interpretation,

encompassing both federal and state statutes. We conclude that the plain text of

§ 2412(b) supports the interpretation offered by Mr. Nelson and Ms. Varney.

1

The government argues that “[t]he most natural reading of section 2412(b)

is that a statute ‘specifically provides for’ a fee award only when it directly

applies to the United States.” Aplt.’s Opening Br. at 15 (emphasis added). That

is, the government claims that § 2412(b) waives sovereign immunity for

attorney’s fees awards only in a “very specific class of litigation: actions brought

against a federal entity under a federal statute, where the statute provides for

attorney’s fees for a prevailing plaintiff but not expressly in the case of a federal

government defendant.” 1 Id. at 22. Critically, under the government’s view, state

1
The government helpfully elaborates on this point:
(continued...)

12
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 13

fee-shifting statutes, such as CRUS, do not fall within § 2412(b) because “they do

not (and cannot) authorize [a] suit against the United States and therefore do not

‘specifically provide for’ fee awards as required under section 2412(b).” Id. at

24. In this regard, recall that it was a federal statute, the FTCA—not CRUS—that

provided the foundation for the lawsuit of Mr. Nelson and Ms. Varney against the

United States; it was only through the state-law incorporation mechanism in the

FTCA that the United States’s liability was determined under CRUS. See, e.g.,

Hoery v. United States, 324 F.3d 1220, 1222 (10th Cir. 2003) (“[W]e resolve

questions of liability under the FTCA in accordance with the law of the state

where the alleged tortious activity took place.” (quoting Franklin v. United States,

992 F.2d 1492, 1495 (10th Cir. 1993))).

The government insists that the plain text of the EAJA supports its

argument. Its textual analysis naturally homes in on the phrase “any statute

1
(...continued)
For example, the Age Discrimination in Employment Act,
29 U.S.C. [§] 621 et seq., authorizes suits against federal entities
for age discrimination in employment and permits an award of
attorney’s fees against defendants, 29 U.S.C. [§] 626(b)
(applying remedies found in 29 U.S.C. [§] 216(b), which include
“a reasonable attorney’s fee to be paid by the defendant”), but
not expressly against the United States. In this context, at least
some courts have held that section 2412(b) provides the
necessary waiver of sovereign immunity to permit a fee award
against a federal defendant to the same extent fees would be
available against a private party.

Aplt.’s Opening Br. at 22.

13
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 14

which specifically provides for such an award.” The government reasons that

because § 2412(b) “concerns fee awards against the United States,” the phrase

“‘such an award’ must refer to an award against the United States.” Aplt.’s

Opening Br. at 21. Therefore, the government concludes that “the most natural

reading of this clause is that a statute ‘specifically provides for such an award’

only if it directly applies to the United States,” id. (emphasis added), that is, if

the statute “creat[es] the cause of action against the United States,” 2 Aplt.’s Reply

Br. at 6.

2
This interpretation of § 2412(b)—indicating that, to allow for
attorney’s fees against the government, a statute must not only be federal, but also
must create a cause of action against the government—differs from the argument
that the government advanced before the district court. There, the government
argued that it was not only necessary but sufficient that the qualifying statute be
federal. Indeed, the government forthrightly admits that it has changed tack on
appeal. See Aplt.’s Opening Br. at 26 n.4 (“We have consistently argued that the
CRUS is not a qualifying statute within the meaning of section 2412(b), but the
precise rationale for that conclusion on appeal differs somewhat from the
argument we advanced below. In district court, the government argued primarily
that the term ‘any statute’ in section 2412(b) is limited solely to federal statutes
as a textual matter.” (citation omitted)). Consequently, there is—at a
minimum—a reasonable assertion that could be made that the government’s
interpretive argument is forfeited in whole or part. See, e.g., McDonald v.
Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (“It is clear in this
circuit that absent extraordinary circumstances, we will not consider arguments
raised for the first time on appeal. This is true whether an appellant is attempting
to raise ‘a bald-faced new issue’ or ‘a new theory on appeal that falls under the
same general category as an argument presented at trial.’” (emphasis added)
(citation omitted) (quoting Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 722
(10th Cir. 1993))). However, Mr. Nelson and Ms. Varney have not asserted a
lack of preservation regarding this matter; accordingly, we proceed to directly
address the merits of the government’s interpretive argument. See, e.g., Cook v.
Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010) (“Plaintiffs have
themselves forfeited any forfeiture argument they may have on this issue, and this
court will consider the merits of Defendants’ argument.”).

14
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 15

The government reasons that state statutes such as CRUS do not provide a

cause of action against the United States. Instead, they are merely “borrowed for

purposes of the federal cause of action that the FTCA created,” and used to assess

whether the government is liable for a tort. Aplt.’s Opening Br. at 24. That is,

under the FTCA, a court “treats the United States as if it were a private individual

being sued under state law for the same alleged tort, and it looks to state law to

determine whether such a private individual would be liable and to what extent.”

Id. Therefore, even though the government’s FTCA liability in this case turns on

CRUS, it nonetheless remains true, as the government sees things, that CRUS

itself does not “provide[] a cause of action against the United States”; thus, it

necessarily falls outside the scope of § 2412(b). Id. at 25. The government

further notes that all three federal circuit courts that have directly addressed this

issue have concluded that § 2412(b) “is limited to federal statutes,” id. at 26,

because “state statutes cannot authorize suit against the United States,” id. at 28.

In response, Mr. Nelson and Ms. Varney argue that the plain language of

§ 2412(b) unambiguously provides that “a court may award attorney’s fees to the

prevailing party in any civil action involving the United States . . . under the

terms of any statute specifically providing for an award of those attorney’s fees.”

Aplees.’ Br. at 15. Mr. Nelson and Ms. Varney emphasize § 2412(b)’s use of the

term “any statute” in its critical final sentence. According to them, “‘[a]ny

statute’ is expansive[;] it is not limited.” Id. at 19.

15
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 16

More specifically, they contend that “there is no requirement in the

language [of § 2412(b)] that the statute providing the cause of action [against the

United States] also be the statute that provides for an award of attorney’s fees.”

Id. at 23. Mr. Nelson and Ms. Varney offer some reasons why. Among other

things, they insist that “Congress clearly could have used language tying the

fee-shifting provision to the cause of action,” yet opted not to expressly “require a

link between the cause of action and the basis for an award of fees.” Id. Further,

they look for support in the first sentence of § 2412(b), which states that it applies

to “any civil action by or against the United States.” The phrase “any civil

action” is not qualified by language suggesting that § 2412(b) applies only to

actions based on federal statutes authorizing suits against the United States.

2

We believe Mr. Nelson and Ms. Varney have the better of this dispute. The

most persuasive support for their interpretation of “any statute” in § 2412(b)

comes from the statutory text of § 2412 itself. There are two good reasons to

think that “any statute” in § 2412(b) does not refer only to federal statutes that

create a cause of action against the United States. First, all other uses of the word

“statute” in § 2412 are not preceded by the word “any,” as in § 2412(b), and each

of these uses of the term “statute” alone in § 2412 most naturally refers only to

federal statutes. Second, the government’s urged alternative textual interpretation

of this broad language—that is, “[a] statute that ‘specifically provides for such an

16
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 17

award’ is one that . . . provides a cause of action against the United States and

contains a fee provision for parties that prevail over the defendant,” Aplt.’s

Opening Br. at 25—cannot be squared with our precedent addressing § 2412(b)’s

scope. We shall discuss each reason in turn.

We begin, first, by looking to all other references to “statute” in § 2412 as

a whole. The word “statute” alone appears five times in § 2412. Only

once—namely, in § 2412(b)—does the phrase “any statute” appear. As we shall

soon explain, we conclude that each use of “statute” alone most naturally refers

only to federal statutes. It is fair to reason, then, that the qualifier “any” in

§ 2412(b) broadens the scope of that usage of “statute” beyond federal statutes.

The first two uses of “statute” appear in § 2412(a)(1):

Except as otherwise specifically provided by statute, 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 in any court having
jurisdiction of such action. A judgment for costs when taxed
against the United States shall, in an amount established by
statute, court rule, or order, 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) (emphases added). The best interpretation of both uses of

the term “statute” here is that they refer only to federal statutes—not also state

statutes. A contrary interpretation would seem to create the possibility that a

17
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 18

state statute might dictate or override a grant of costs afforded under a federal

statute—more specifically, as enumerated in 28 U.S.C. § 1920.

Our decision in Stender v. Archstone-Smith Operating Trust, 958 F.3d 938

(10th Cir. 2020), is most instructive, if somewhat indirectly, on this matter. The

question presented in Stender was whether a federal court could award certain

costs authorized under an applicable state law when those costs were not allowed

under Federal Rule of Civil Procedure 54(d). We held that the court could not

award the state-law-authorized costs. We reasoned that § 1920 alone defines the

allowable costs a federal court may award under Rule 54(d). The state law in

question allowed for a broader range of costs, but we concluded that, under Rule

54(d), a federal court could only award costs from the narrower list enumerated in

§ 1920.

The strong implication of Stender is that federal courts are bound to award

only the types of costs specifically enumerated in § 1920—and not other types of

costs that may be enumerated in more capacious or contradictory state laws.

Thus, “statute” in the opening clause of § 2412(a)(1)—“[e]xcept as otherwise

specifically provided by statute”—is not naturally read as encompassing state

statutes. Reading “statute,” here, that broadly would seem to leave open the

possibility that a state statute’s capacious enumeration of potentially taxable costs

might apply instead of § 1920’s enumeration.

18
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 19

The same basic rationale would likewise caution against interpreting the

second use of “statute”—in § 2412(a)(1)—to include state statutes. Recall, again,

that § 2412(a)(1)’s final sentence reads: “A judgment for costs when taxed against

the United States shall, in an amount established by statute, court rule, or order,

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) (emphasis

added). Here, too, interpreting “statute” to encompass state statutes would leave

open the possibility that a judgment for costs might be assessed in a manner

inconsistent with federal law. For example, § 1920(5) lists “docket fees under

section 1923” as a permissible cost that may be awarded. 28 U.S.C. § 1920(5).

Section 1923, in turn, lists various dollar amounts for various kinds of docket

fees. Surely no state law that enumerated permissible award amounts for certain

docket fees could supplant § 1923’s enumeration of a permissible award amount

for the same docket fees. But interpreting the term “statute” in the language “an

amount established by statute” to mean federal and state statutes would appear to

create precisely this possibility.

We have held that any award for costs under § 2412(a)(1) must strictly

adhere to the dollar limits enumerated in § 1920, as § 2412(a)(1) clearly indicates.

See, e.g., Hull by Hull v. United States, 978 F.2d 570, 573 (10th Cir. 1992)

(“[T]he very terms of section 2412(a) indicate that the limits contained in sections

1920 . . . apply to any award of costs made pursuant to that statute.”). In light of

19
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 20

this holding and our decision in Stender, then, we can reasonably conclude that

the two uses of “statute” in § 2412(a)(1) refer most naturally only to federal

statutes.

A third use of “statute” alone appears in § 2412(d)(1)(A):

Except 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 any civil action (other
than cases sounding in tort), including proceedings for judicial
review of agency action, 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) (emphasis added). Here again, “statute” most

naturally refers only to federal statutes. Section 2412(d)(1)(A) requires a federal

court to award fees in certain circumstances; unlike § 2412(b), this provision uses

the term “shall award” instead of “may award.” It would be odd indeed—absent

clear textual evidence to the contrary—to conclude that “statute” here

encompasses state statutes. If it did, it would seem to create the possibility that a

state statute might delimit what a federal statute requires a court to do—i.e.,

award costs in scenarios expressly defined by subsection (d)(1)(A). It seems most

appropriate, then, to conclude that “statute” in § 2412(d)(1)(A) likewise refers

only to federal statutes.

The fourth use of “statute” appears in § 2412(d)(5)(D)(iii). That provision

requires the Administrative Conference of the United States to include in an

20
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 21

annual report certain information about each case in which the government was

obligated to pay a prevailing parties’ fees. Section 2412(d)(5)(D)(iii) stipulates

that the report must specifically include “the statute under which the plaintiff

filed suit.” 28 U.S.C. § 2412(d)(5)(D)(iii). Here, too, the best interpretation of

“statute” is “federal statute.” A contrary interpretation would suggest that a

plaintiff might be suing the federal government under a state statute.

There is, however, one more notable use of “statute” alone in § 2412, and it

comes in the first sentence of § 2412(b) itself:

Unless expressly prohibited by statute, a court may award
reasonable fees and expenses of attorneys, in addition to the costs
which may be awarded pursuant to subsection (a), 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 in any court having
jurisdiction of such action.

28 U.S.C. § 2412(b) (emphasis added). If any use of “statute” alone in § 2412

might be credibly interpreted to encompass federal and state statutes, it is this

one. After all, reading § 2412(b) as a whole, one might fairly conclude that it

would be inconsistent to suggest that, under § 2412(b)’s first sentence, only a

federal statute may expressly prohibit an attorney’s fees award, while at the same

time also suggesting that, under § 2412(b)’s final sentence, both a federal and

state statutes may authorize such an award. Cf. First Nat’l Bank of Durango v.

Woods (In re Woods), 743 F.3d 689, 697 (10th Cir. 2014) (“[W]e recognize that

‘[t]he normal rule of statutory construction assumes that identical words used in

21
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 22

different parts of the same act are intended to have the same meaning.’” (second

alteration in original) (quoting Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860

(1986))).

Even so, we conclude that it would be wrong to interpret the first use of

“statute” in § 2412(b) and the later use of “any statute” as identical in meaning.

As the district court rightly noted, the government’s argument to the contrary runs

afoul of the rule against surplusage. See Aplt.’s App. at 101. This rule

“encourages courts to give meaning to every word used in a statute,” on the

assumption that “Congress would not have included superfluous language.”

Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1033, 1039 (10th Cir. 2006).

When “[r]ead naturally, the word ‘any’ has an expansive meaning, that is,

‘one or some indiscriminately of whatever kind.’” United States v. Gonzales, 520

U.S. 1, 5 (1997) (quoting Any, W EBSTER ’ S T HIRD N EW I NT ’ L D ICTIONARY 97

(1976)); see Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219–21 (2008)

(interpreting the term “any” expansively to conclude that “Congress’[s] use of

‘any’ to modify ‘other law enforcement officer’ is most naturally read to mean

law enforcement officers of whatever kind”); see also Kelley v. City of

Albuquerque, 542 F.3d 802, 813–14 (10th Cir. 2008) (interpreting the term “any”

expansively to conclude that “the phrase ‘participated in any manner in . . . [a]

proceeding’ . . . relates to all types of participation” (alteration and first omission

in original) (quoting 42 U.S.C. § 2000e-3(a))). The rule against surplusage, then,

22
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 23

would counsel us to construe “any statute,” in § 2412(b), in a different and

broader manner than the provision’s initial, unadorned reference to “statute” in

order to give meaning to the term “any.” It follows that, under these

circumstances, we may construe the plain meaning of the term “any statute” to

include within its sweep state statutes, as well as federal statutes. Cf. O’Connor

v. U.S. Dep’t of Energy, 942 F.2d 771, 773–74 (10th Cir. 1991) (holding, in

construing another section of the EAJA, that the term “any court,” as it appeared

in isolation and without qualification, had a different, broader meaning than the

statutorily defined term “any court of the United States”).

Moreover, our precedent forecloses the government’s attempt to limit the

term “any statute” in § 2412(b)’s final sentence to only those statutes that

“provide[] a cause of action against the United States and contain[] a fee

provision for parties that prevail over the defendant.” Aplt.’s Opening Br. at 25;

see also Aplt.’s Reply Br. at 7 (arguing that the language “specifically provides

for such an award” contextually limits “any statute” to a universe of federal

statutes “provid[ing] a cause of action against the United States” (quoting 28

U.S.C. § 2412(b))); Oral Arg. at 5:40–6:00 (asserting that § 2412(b) is limited to

a statute “that provides the civil action against the United States under which the

person seeking fees is the prevailing party”). This interpretation cannot be

squared with our decision in Adamson v. Bowen, 855 F.2d 668 (10th Cir. 1988).

23
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 24

In Adamson, we held the term “any statute” in § 2412(b) waived the

government’s immunity from monetary sanctions under Federal Rule of Civil

Procedure 11. Id. at 670–71. Rejecting the government’s arguments to the

contrary, we reasoned that “[t]his section . . . would appear on its face to be

sufficiently broad to waive the government’s immunity from fee awards pursuant

to the Federal Rules of Civil Procedure, which have ‘the force of a federal

statute.’” Id. at 671 (footnote omitted) (quoting Sibbach v. Wilson & Co., 312

U.S. 1, 13 (1941)).

Although the government attempts to diminish the import of Adamson

because “the Federal Rules apply directly to the United States,” see Aplt.’s

Opening Br. at 32, its interpretation of § 2412(b) requires a statute to “provide[] a

cause of action against the United States” to fall within § 2412(b)’s waiver of

sovereign immunity, see, e.g., Aplt.’s Opening Br. at 25; Aplt.’s Reply Br. at 7.

But the Federal Rules of Civil Procedure do not “specifically provide” such a

cause of action against the United States; rather, like CRUS, they allow for

attorney’s fees in a suit brought under other causes of action. See Adamson, 855

F.2d at 670, 677 (affirming award of attorney’s fees under Rule 11 in appeal of

Secretary’s denial of social security disability benefits); see also United States v.

Gavilan Joint Cmty. Coll. Dist., 849 F.2d 1246, 1251 (9th Cir. 1988) (reasoning

that an award of costs and attorney’s fees under Rule 11 would be permissible

when the government brought a suit that was clearly barred by the statute of

24
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 25

limitations); United States v. Nat’l Med. Enters., Inc., 792 F.2d 906, 910–11 (9th

Cir. 1986) (affirming an award of costs and attorney’s fees under Rule 37 when

the government committed discovery abuses in an antitrust action). The

government’s proffered reading of § 2412(b) is thus too narrow to be consonant

with our prior interpretation of the provision. 3

We conclude, therefore, that the text of § 2412 as a whole—construed in a

manner consistent with the rule against surplusage and our precedent—indicates

that “any statute” in § 2412(b) does not refer to federal statutes alone. Rather,

§ 2412(b) means what it says: it waives the government’s sovereign immunity

from liability under any statute—state or federal—that would otherwise provide

attorney’s fees against a private party.

We thus conclude that the plain text of § 2412(b) is sufficiently clear to

resolve the chief issue presented in this appeal. To be sure, the government is

correct in asserting that all of our sister circuits that have addressed the meaning

of “any statute” in § 2412(b) have “concluded that . . . the term ‘any statute’ in

section 2412(b) is limited to federal statutes.” Aplt.’s Opening Br. at 26. Each of

these decisions, however, relied exclusively on the EAJA’s legislative history.

3
At oral argument, the government attempted to distinguish Adamson
by contending that the Federal Rules are “implict[ly] built into the cause of
action” in any suit against the United States. Oral Arg. at 12:10–12:13. But this
argument acknowledges that the Federal Rules do not themselves create a cause of
action against the United States. And it fails to distinguish CRUS, which also
maps onto a federal cause of action against the United States.

25
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 26

See Joe v. United States, 772 F.2d 1535, 1537 (11th Cir. 1985) (per curiam)

(resting its interpretive analysis exclusively on the EAJA’s legislative history,

particularly the House Committee Report); see also Anderson v. United States,

127 F.3d 1190, 1191 (9th Cir. 1997) (noting that “[w]e adopt the reasoning and

holding of Joe v. United States”); cf. Olson v. Norman, 830 F.2d 811, 822 (8th

Cir. 1987) (relying on EAJA’s the House Committee Report and concluding “[w]e

do not read § 2412(b) to subject the United States to liability for attorneys’ fees

based on state laws, be they statutory or common”).

Indeed, Joe—which is the seminal case on which our sister circuits have

relied—completely failed to perform a threshold textual analysis of the term “any

statute.” See Joe, 772 F.2d at 1537. Instead, the Eleventh Circuit there opted,

with virtually no independent analysis, to place its confidence in the work of a

single federal trial court that “relied primarily on the legislative history of Section

2412(b).” Id. (citing Mark v. Kanawha Banking & Tr. Co. N.A., 575 F. Supp. 844

(D. Or. 1983)). And our sister circuits that have elected to follow

Joe—notwithstanding the limited scope of its analysis—have similarly elided any

discussion of the plain meaning of the term “any statute.” See Anderson, 127

F.3d at 1191 (omitting any independent analysis while adopting Joe’s holding);

Olson, 830 F.2d at 822 (performing a one-paragraph analysis of the EAJA’s

statutory history without discussion or textual analysis of the term “any statute”).

Such an approach is at odds with well-settled principles of statutory

26
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 27

interpretation, under which an examination of the plain meaning must be the first

step. See St. Charles Inv. Co. v. Comm’r, 232 F.3d 773, 776 (10th Cir. 2000)

(“As in all cases requiring statutory construction, ‘we begin with the plain

language of the law.’” (quoting United States v. Morgan, 922 F.2d 1495, 1496

(10th Cir. 1991)). Accordingly, because the decisions of our sister circuits have

not conducted an analysis of the statute’s text—which we consider to be

appropriate and essential to the resolution of this case—we decline to follow their

rationale. 4

Having determined that the statutory text unambiguously covers state

statutes, we end our analysis there. See BedRoc Ltd., LLC v. United States, 541

U.S. 176, 187 n.8 (2004) (recognizing that courts should ordinarily “resort to

legislative history only when necessary to interpret ambiguous statutory text”);

see also Dutcher v. Matheson, 840 F.3d 1183, 1201 n.9 (10th Cir. 2016)

4
Furthermore, it is noteworthy that the interpretation of § 2412(b) that
the government advances on appeal is even narrower than that of our sister
circuits. With varying degrees of explicitness, these decisions have concluded,
based on the legislative history, that § 2412(b)’s allowance of attorney’s fees is
limited to federal statutes. See Joe, 772 F.2d at 1537 (interpreting the statute to
“refer[] only to federal statutes”); Olson, 830 F.2d at 822 (interpreting the statute
“to refer only to federal law”); cf. Anderson, 127 F.3d at 1191 (adopting “the
reasoning and holding of Joe” without expressly construing the legislative history
to apply only to federal statutes). They have not gone further—like the
government here—and required that the federal statutes at issue “create[] the
cause of action and contain[] a fee provision that does not specifically include the
United States.” Aplt.’s Reply Br. at 15. Accordingly, even if we were inclined to
look to these other circuit decisions for guidance (and we are not), they would not
fully resolve the interpretive question before us.

27
Appellate Case: 20-1267 Document: 010110711456 Date Filed: 07/15/2022 Page: 28

(“Ordinarily, legislative history should be referenced only when the statutory

language is ambiguous.”); Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir.

1986) (“When the meaning of the statute is clear, it is both unnecessary and

improper to resort to legislative history to divine congressional intent.”). We are

able to conclude—from our reading of § 2412(b)’s plain terms—that the statute’s

reference to “any statute” applies to both state and federal statutes. On that basis

alone, we ground our resolution of the merits issue presented here and decline to

resort to legislative history.

III

Accordingly, for the foregoing reasons, we AFFIRM the district court’s

judgment.

28