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The Direct Lineal Decendants of Rosie Jack and Wagon Jack v. The Secretary of The Interior

United States District Court, D. Nevada

April 28, 2015

THE DIRECT LINEAL DECENDANTS OF ROSIE JACK AND WAGON JACK et al. Plaintiffs,
v.
THE SECRETARY OF THE INTERIOR et al., Defendants.

ORDER

ROBERT C. JONES, District Judge.

This case arises from Plaintiffs' attempt to be placed on the Judgment Roll of Western Shoshone Indians. Pending before the Court is Plaintiffs' Motion for Attorneys' Fees (ECF No. 48) pursuant to the Equal Access to Justice Act ("EAJA" or "the Act"). Defendants filed a Response (ECF No. 49) and Plaintiffs replied (ECF No. 50). For the reasons contained herein, the motion is GRANTED in part and DENIED in part.

I. FACTS AND PROCEDURAL HISTORY

The parties are well acquainted with the facts of this case. Marion Gayle nee Sanders Miles ("Miles"), Nancy Laura nee Sanders Stewart ("Stewart"), Jody Faye White ("Jody White"), [1] the Estate of Jesse Wayne White ("Jesse White"), and William Edward White ("William White") each sought to be included on the Judgment Roll of Western Shoshone Indians. The Secretary of the Interior denied their request because Plaintiffs were found to possess less than 25% Western Shoshone blood. Plaintiffs filed this action alleging a deprival of due process, a denial of equal protection under the law, and a violation of the Administrative Procedure Act. (Compl. 6-10, ECF No. 1).

Plaintiffs initially sought a preliminary injunction to prevent the Secretary of the Interior from issuing a finding that they each were less than 25% Western Shoshone. Prior to the Court ruling on the preliminary injunction motion, the parties submitted a stipulation signed by counsel and accompanied by a proposed order that the case be remanded back to the agency with an instruction that the five individual Plaintiffs be added to the Judgment Roll. (Stipulation, ECF No. 12). Specifically, the stipulation stated that "[t]he Secretary and the applicants agree and stipulate that, as to each of the five applicants, the applications for inclusion on the Western Shoshone Judgment Roll may be remanded to the Secretary of the Interior with directions that each of the applicants shall be added to and included on the Western Shoshone Judgment [R]ole...." ( Id. ¶ 4).

About a week later, Defendants filed a motion to withdraw the stipulation stating that the "remand and associated directive described in the stipulation does not represent the complete and final position of the Secretary in this action." (Mot. to Withdraw 3, ECF No. 13). The Secretary's explanation of why the Court should grant the withdrawal was that "the directive to add the five plaintiffs to the Western Shoshone Judgment [R]oll [could not] be supported by the existing analysis of the current AR and [would not] thus be in accordance with the Western Shoshone Claims Distribution Action." ( Id. at 3-4). Absent from Defendants' motion to withdraw was an explanation of why the adequacy of the administrative record was not evaluated before counsel agreed to the stipulation.

While the motion to withdraw was pending, the Court accepted the stipulation, (ECF No. 20), which essentially mooted Defendants' motion to withdraw. Defendants immediately filed a motion to vacate the Court's order on the stipulation, reasserting the arguments made in their motion to withdraw the stipulation. ( See ECF No. 22). Plaintiffs' response to the motion to vacate rested on the arguments that Plaintiffs previously asserted in opposition to Defendants' motion to withdraw. ( See ECF No. 23). The Court initially found that simply resting on previous pleadings was insufficient to counter Defendants' motion to vacate because the Court was not interested in "hunting for truffles buried in briefs, " and it ruled in Defendants' favor. (July 23, 2014 Order 2, ECF No. 29). Plaintiffs responded to the Court's ruling to vacate the order on the stipulation by filing a motion to reconsider, which contained arguments as to why the Court should not allow Defendants to unilaterally withdraw the stipulation that had been originally presented in Plaintiffs' opposition to Defendants' motion to withdraw. Upon a review of those arguments regarding the contractual nature of a stipulation, and finding that Defendants failed to demonstrate circumstances justifying a withdrawal of the stipulation, the Court granted Plaintiffs' motion to reconsider. The Court also reinstated its original order accepting the stipulation of the parties that the case be remanded to the Secretary of the Interior with the instruction that the individual Plaintiffs be added to the Western Shoshone Judgment Role. Defendants appealed this judgement. (ECF No. 44).

Thereafter, Plaintiffs filed a renewed motion under the EAJA for attorneys' fees incurred during the litigation. (ECF No. 37). On January 9, 2015, the Court denied this motion without prejudice for Plaintiffs' failure to sufficiently establish that they were qualified applicants as required by the EAJA. (ECF No. 46). The Court explained that there was no information upon which the Court could make a finding in regards to Plaintiffs' economic status at the time the case was filed, but the Court invited Plaintiffs to try once more. ( Id. ). On March 24, 2015, the Ninth Circuit Court of Appeals granted Defendants' unopposed motion to dismiss their appeal. Then, on April 6, 2015, Plaintiffs filed the instant Motion for Attorneys' Fees. Plaintiffs currently seek $63, 167.50 in fees for 152.2 hours of attorney work, plus $645.67 in costs.

II. DISCUSSION

The EAJA states that "a court shall award to a prevailing party other than the United States fees and other expenses... incurred by that party in any civil action... including proceedings for judicial review of agency action, brought by or against the United States... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). Accordingly, in order for Plaintiffs to recover fees and costs under the Act, the Court must determine (1) whether they each qualify as a "party" as defined by the Act, (2) whether they are the "prevailing party" in this action, and (3) whether Defendants' position was "substantially justified." See Citizens for Better Forestry v. U.S. Dep't of Agric., 567 F.3d 1128, 1131 (9th Cir. 2009); Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1988); United States v. Guess, 390 F.Supp.2d 979, 984 (S.D. Cal. 2005).

A. "Party"

Under the EAJA, a "party" is "an individual whose net worth did not exceed $2, 000, 000 at the time the civil action was filed." 28 U.S.C. § 2412(d)(2)(B). "The party seeking fees has the burden of establishing its eligibility" under the Act. Love v. Reilly, 924 F.2d 1492, 1494 (9th Cir. 1991). The standard of proof required to show eligibility is not articulated in the statute. U.S. v. 88.88 Acres of Land, 907 F.2d 106, 108 (9th Cir. 1990). However, the Ninth Circuit has held that "some informality of proof is appropriate, and the decision of the district court on the point is to be reviewed under the abuse of discretion standard." Id. Some courts have accepted a plaintiff's affidavit as sufficient evidence of net worth. See United States v. Heavrin, 330 F.3d 723, 732 (6th Cir. 2003) (holding that a plaintiff's bare assertions that his or her net worth falls under two million dollars will generally be insufficient to show eligibility, but rather "the movant should at least proffer an affidavit showing that the statutory criteria has been met"). Yet even informal proof must include some financial information whereby the court may determine whether the plaintiff's net worth actually falls below the threshold amount. See 88.88 Acres of Land, 907 F.2d at 108 (reviewing plaintiff's financial statements to verify that his net worth was less than $2, 000, 000).

In this case, Plaintiffs have demonstrated that they each individually did not have a net worth of more than $2, 000, 000 when this case was initially filed. In support of Plaintiffs' previous motion for attorneys' fees, Plaintiffs submitted a single affidavit in which Plaintiff Stewart attested on behalf of all the individually named Plaintiffs that they each "did not have a net worth in excess or $2, 000, 000 nor were any of them the owner of an [entity] the net worth of which exceeded $7, 000, 000 or which employed more than 500 employees." (Stewart Aff. ¶ 7, ECF No. 21-1). Based on this information alone, the Court could not make a finding that Plaintiffs truly were eligible under the EAJA. As such, the Court directed that if Plaintiffs refiled their motion for attorneys' fees that they include separate affidavits in which each Plaintiff attested to his or her assets and liabilities. Plaintiffs have complied.

Plaintiff Stewart attests that at the time this case was filed she "individually had assets of approximately $290, 000 and liabilities of $44, 300, for a net worth of approximately $245, 700." (Stewart Aff. ¶ 4, Mar. 27, 2015, ECF No. 48-4). Plaintiff Miles attests that at the time this case was filed she "individually had assets of approximately $25, 000 and liabilities of $13, 000, for a net worth of approximately $12, 000." (Miles Aff. ¶ 4, ECF No. 48-5). Plaintiff William White attests that at the time this case was filed he "individually had assets of approximately $140, 000 and liabilities of $74, 000, for a net worthy of approximately $66, 000." (William White Aff. ¶ 4, ECF No. 48-6). And Elizabeth Ann White, on behalf of Jody White ...


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