Brass v. United States

In the United States Court of Federal Claims
No. 14-437C
(Filed: November 7, 2016)*
*Opinion originally filed under seal on October 28, 2016

)
TWANYA L. BRASS, )
)
Plaintiff, ) Equal Access to Justice Act, 28 U.S.C.
) § 2412; Supplemental Motion for
v. ) Attorneys’ Fees and Costs; Timeliness;
) RCFC 54(d); Reasonable Attorneys’
THE UNITED STATES, ) Fees
)
Defendant. )
)

Barton F. Stichman, Washington, DC, for plaintiff. David Sonenshine,
Washington, DC, of counsel.

William P. Rayel, Commercial Litigation Branch, Civil Division, United States
Department of Justice, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Reginald T. Blades, Jr.,
Assistant Director, for defendant. LCDR Steven Gonzales, General Litigation Division,
Office of the Judge Advocate General, United States Navy, Washington, DC, of counsel.

OPINION ON PLAINTIFF’S SUPPLEMENTAL APPLICATION
FOR AWARD OF ATTORNEYS’ FEES AND EXPENSES

FIRESTONE, Senior Judge.

Pending before the court is a supplemental motion for attorneys’ fees and costs

filed by plaintiff Twanya L. Brass (“Ms. Brass”), a Navy veteran, pursuant to the Equal

Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”). Ms. Brass seeks $8,745.51 in fees

and $4,310.00 in expenses for the work associated with her partially successful initial

application for EAJA fees and costs, see Brass v. United States, 127 Fed. Cl. 505 (2016)
(“Brass II”), and $5,174.74 in fees for the work performed preparing this supplemental

request, for a total supplemental award of $18,230.25.

The Federal Circuit has found that “a prevailing party in a veterans case is entitled

to an award of fees not only for hours devoted to the underlying merits litigation, but also

for attorney time reasonably expended defending an initial EAJA application.” Wagner

v. Shinseki, 640 F.3d 1255, 1259 (Fed. Cir. 2011) (“Wagner I”) (citing Comm’r,

Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 161-62 (1990); Fritz v.

Principi, 264 F.3d 1372, 1377 (Fed. Cir. 2001)). A party is entitled to reasonable fees

associated with an EAJA application to the extent she “successfully defends [her] original

fee application.” Id. at 1259-60 (citing Fritz, 264 F.3d at 1377).

Defendant the United States (“the government”) argues that the court should deny

Ms. Brass’s supplemental motion for attorneys’ fees and costs on the grounds that the

motion is untimely under Rule 54(d)(2)(B)(i) of the Rules of the United States Court of

Federal Claims (“RCFC”). RCFC 54(d) states in relevant part that “[u]nless a statute or a

court order provides otherwise, the motion [for attorneys’ fees and costs] must . . . be

filed within 30 days after the date of final judgment, as defined in 28 U.S.C. §

2412(d)(2)(G).” 1 The government contends that under RCFC 54(d), Ms. Brass had to

seek fees and costs for work on her EAJA application within 30 days of the date of the

final judgment on the merits of her case. The government asserts that the court’s

1
The EAJA defines the term “final judgment” as “a judgment that is final and not appealable,
and includes an order of settlement.” 28 U.S.C. § 2412(d)(2)(G).

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judgment became final and not appealable on November 24, 2015 and therefore Ms.

Brass could not seek attorneys’ fees and expenses after December 24, 2015. Because the

supplemental fee application was filed more than 30 days after the date of the final

judgment, the government argues it is untimely under RCFC 54(d). The government also

argues that even if Ms. Brass’s supplemental motion is timely under RCFC 54(d), the

court should nonetheless deny the supplemental fees and cost request on the grounds that

Ms. Brass unreasonably delayed filing her supplemental EAJA application by waiting

five weeks after the court ruled on her initial EAJA application.

Finally, the government argues that if the court accepts the application as timely,

the court should reject the fees and costs Ms. Brass seeks in connection with establishing

her financial eligibility for fees and costs under the EAJA. This includes $572.85 for

attorneys’ fees and $4,310.00 for costs incurred in preparing a financial statement. The

government also challenges the reasonableness of $324.61 for attorneys’ fees related to

the preparation of a declaration regarding Ms. Brass’s fee arrangement. The government

has not challenged the reasonableness of any of Ms. Brass’s other requested fees or costs,

including the fees for the preparation of Ms. Brass’s supplemental motion. 2

2
With regard to the reasonableness of $324.61 for 1.7 hours of attorney time, at $190.95 per
hour, related to the preparation of a declaration regarding Ms. Brass’s fee arrangement, Ms.
Brass has not disputed that compensation for those hours would be unreasonable. Therefore, this
portion of Ms. Brass’s supplemental request is DENIED.

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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The facts of this case are set out in Brass v. United States, 120 Fed. Cl. 157 (2015)

(“Brass I”), and Brass II, 127 Fed. Cl. at 505, and will not be repeated here. With regard

to fees and costs, on July 22, 2016, the court granted in part and denied in part

Ms. Brass’s initial EAJA application because, after reviewing the time sheets provided,

the court found that the multiple attorneys who worked on the case failed to set out their

distinct contributions and the hours appeared to be excessive and redundant. See Brass

II, 127 Fed. Cl. at 513. The court ordered the parties to submit a proposed final judgment

consistent with the court’s opinion by August 31, 2016. Id. at 515.

On August 30, 2016, approximately five weeks after the court issued its opinion

on Ms. Brass’s initial EAJA application, Ms. Brass filed the pending supplemental

motion for attorneys’ fees and costs (ECF No. 49). 3 The government filed its response to

Ms. Brass’s supplemental motion on September 16, 2016 (ECF No. 52) and Ms. Brass

filed her reply in support of the motion on September 26, 2016 (ECF No. 53). The court

finds that oral argument is not necessary.

II. DISCUSSION

A. Ms. Brass’s Motion for Supplemental Attorneys’ Fees and Costs is
Timely.

Contrary to the government’s contentions, the court finds that RCFC

54(d)(2)(B)(i) does not require a party to file a supplemental motion for attorneys’ fees

3
On August 31, 2016, the parties separately filed proposed final judgments and stated that they
disagreed on the relationship between the proposed final judgment and Ms. Brass’s supplemental
motion for attorneys’ fees and costs (ECF Nos. 50, 51).

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and costs, i.e., the motion for fees and costs associated with litigating an EAJA petition,

within 30 days of the date the court’s judgment on the merits becomes final and not

appealable. The Federal Circuit found in Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed.

Cir. 2013) (“Wagner II”), with regard to a supplemental EAJA fee application before the

United States Court of Appeals for Veterans Claims (“the Veterans Court”), that the

EAJA only contemplates a deadline for an initial fee application. The Federal Circuit

stated that “[o]nce an initial fee application is filed within 30 days of the merits judgment,

the timing rule of section 2412(d)(1)(B) is satisfied, and as to supplemental applications,

‘Congress envisioned only one strict requirement in EAJA fee cases, namely that the

court and the Government be put on notice that the claimant seeks fees under the

EAJA.’” Id. (quoting United States v. Eleven Vehicles, 200 F.3d 203, 209 (3d Cir.

2000)). The Federal Circuit noted that “[f]or a supplemental application [for attorneys’

fees and costs], the tribunal’s procedural rules as well as equitable considerations may

apply to the time of filing, but section 2412(d)(1)(B) does not.” Id. (citing Eleven

Vehicles, 200 F.3d at 209-10). The court finds that like 28 U.S.C. § 2412(d)(1)(B),

RCFC 54(d) does not specify a time limitation for filing a supplemental motion for

attorneys’ fees and costs pursuant to the EAJA. As such, Ms. Brass has met the

requirements of RCFC 54(d) by filing a timely initial EAJA application. The court notes

that in contrast to RCFC 54(d) there are courts with rules that limit the time for filing

supplemental EAJA applications. For example, Rule 39(b) of the Veterans Court

provides a specific deadline for a party to file a supplemental EAJA fee application; it

provides in relevant part that a party whose initial EAJA application “has been granted in

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whole or in part may, not later than 20 days after the Court action granting such

application, file a supplemental application for attorney fees and other expenses in

connection with the defense of such application.” RCFC 54(d) does not contain a similar

time limitation and the court will not read one into the rule.

The court also finds, contrary to the government’s contentions, that Ms. Brass did

not unreasonably delay filing her supplemental motion for attorneys’ fees and costs by

waiting five weeks after the initial fee award to file her request. Other courts have found

that a supplemental motion filed up to three months after the initial award of fees was

reasonable. See Eleven Vehicles, 200 F.3d at 210, 210 n.8 (finding that the district court

did not abuse its discretion by granting a supplemental motion for attorneys’ fees filed

three months after the initial award of attorneys’ fees where the government was on

notice earlier in the litigation and it did “not appear that the Government was in any way

prejudiced by the . . . delay”). Here, the government should have understood that Ms.

Brass would seek all of the fees and costs she would be entitled to under the EAJA and

the government has not provided any evidence that it has been prejudiced by the delay.

Accordingly, the court will proceed to consider the merits of Ms. Brass’s supplemental

fee and cost application.

B. Ms. Brass is Entitled to Attorneys’ Fees and Costs Associated with the
Preparation of Her Financial Statement.

With regard to the merits of Ms. Brass’s supplemental motion for attorneys’ fees

and costs, the government’s challenge focuses on the reasonableness of her request for

$572.85 for three hours of attorney time and $4,310.00 in costs in connection with the

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preparation of a financial statement which showed that Ms. Brass’s net worth did not

exceed $2,000,000 at the time the civil action was filed and thus she was eligible to

obtain EAJA fees pursuant to 28 U.S.C. § 2412(d)(2)(B). The government asserts that

Ms. Brass did not need to prepare a formal financial statement to comply with the

requirement for a party seeking EAJA fees and costs to document his or her net worth.

Ms. Brass argues that the preparation of a financial statement was reasonable

because the government had argued, in response to her initial application for attorneys’

fees and costs, that an affidavit or declaration regarding her net worth would not have

been sufficient to demonstrate that she was eligible to obtain EAJA fees. See Doe v.

United States, 54 Fed. Cl. 337, 342 (2002) (requiring “supporting documentary evidence”

to establish eligibility for EAJA fees (quoting Fields v. United States, 29 Fed. Cl. 376,

382 (1993))). Ms. Brass has provided a declaration from Ian Shulman, the certified

public accountant who reviewed Ms. Brass’s financial statement. Pl.’s Reply Ex. A at

¶ 2. Mr. Shulman states in his declaration that Ms. Brass’s “statement of financial

condition” was “substantially less in scope and costs” than an “audited financial

statement” would have been. Id. Moreover, Mr. Shulman states that “[a]nything less

than a reviewed statement of financial condition would not have provided the assurance

necessary to demonstrate the net worth of Ms. Brass.” Id. at ¶ 3.

The court agrees with Ms. Brass that the requested fees and costs for the

preparation and review of her financial statement are reasonable. While in some other

cases involving veterans the government has been satisfied with sworn declarations from

individual parties that their net worth is $2 million or less, see Sabo v. United States, 127

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Fed. Cl. 606, 622 (2016); Martinez v. United States, 94 Fed. Cl. 176, 181 (2010), that was

not true here. In this case, the government specifically demanded additional “evidence”

of Ms. Brass’s net worth. The government stated that a “conclusory affidavit without

supporting evidence” is insufficient because an EAJA applicant “must present sufficient

evidence so that his or her net worth may be ascertained and verified by the court.”

Def.’s Resp. to Pl.’s Initial EAJA Appl. 10 (quoting Fields, 29 Fed. Cl. at 382, and also

citing Doe, 54 Fed. Cl. at 342). In response to the government’s demand, Ms. Brass

provided evidence of her net worth in the form of a statement of financial condition,

which she states was the minimum amount of evidence necessary to prove her eligibility

for EAJA fees and was lower in cost than an audited financial statement. The

government asserts that “Ms. Brass could have easily demonstrated that her net worth

falls well below $2 million” but the government does not identify what other evidence it

would have considered sufficient. Def.’s Resp. to Pl.’s Suppl. EAJA Appl. 7. In these

circumstances, the court finds that Ms. Brass’s preparation of a statement of financial

condition was reasonable and therefore she may recover the associated fees and costs

pursuant to the EAJA.

III. CONCLUSION

For the reasons above, Ms. Brass’s supplemental motion for attorneys’ fees and

costs pursuant to the EAJA is GRANTED in the amount of $17,905.64. This amount

will be added to the sum of $55,973.86 the court previously awarded in Brass II, 127 Fed.

Cl. at 515. Final judgment shall be entered as follows:

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 Pursuant to the court’s opinions and orders filed July 22, 2016 and October 28,

2016, it was held that plaintiff is entitled to receive attorneys’ fees and expenses pursuant

to 28 U.S.C. § 2412(d).

It is ordered and adjudged on this date, pursuant to Rule 58 of the Rules of the

United States Court of Federal Claims, that plaintiff is awarded attorneys’ fees and

expenses in the amount of $73,879.50. Said sum shall be paid by the subject agency as

provided for in 28 U.S.C. § 2412(d).

IT IS SO ORDERED.

s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge

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