Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00762-RPM

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Filed 12/21/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00762-RPM J. DAVID EVANS and BERNITA M. EVANS, Plaintiffs, vs. ANN M.VENEMAN, Secretary, United States Department of Agriculture, Defendant.

DEFENDANT'S RESPONSE TO PLAINTIFFS' APPLICATION FOR ATTORNEY'S FEES

Defendant, by undersigned counsel, responds to Plaintiffs' Application for Attorney's Fees and Expenses Pursuant to 28 U.S.C. § 2412(d) as follows: A. Defendant's Position was Substantially Justified Although the Court has previously ruled that the agency's position after remand was not substantially justified, for the purpose of preserving the argument, the Defendant submits that the agency's position was substantially justified for the reasons set forth in Defendant's Response Brief, which is incorporated herein by reference. [Docket # 23]. Defendant's position was reasonable in both law and fact. Wyoming Wildlife Federation v. United States, 792 F.2d 981, 985 (10 th Cir. 1986).

Case 1:04-cv-00762-RPM

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B. Plaintiffs' Fee Application is Defective Plaintiffs' EAJA application is defective because it does not establish that Plaintiffs' net worth is not more than $2,000,000 individually, or $7,000,000 as a business entity. Pate v. United States, 982 F.2d 457, 459 (10 th Cir. 1993). C. Expert Fees Should Not Be Awarded Plaintiffs are seeking $8500 for Tri-State's real estate appraisal and supplements. These costs should not be awarded because they were not necessary for the pursuit of this litigation; were not used to support Plaintiff's position during the litigation; and were not a factor in the Court's decision. Plaintiff can only recover fees and expenses that are reasonable and were necessarily incurred. 28 U.S.C. § 2412(d)(2)(A). Furthermore, there is no evidence presented that would allow the Court to determine if the appraiser charged more or less than the highest rate paid by the United States. Id. D. Consultation Fees with Kruegar and Baumstark Should Not Be Awarded Plaintiffs seek $2392.50 in fees, apparently for consulting with Jill Kruegar and/or Beth Baumstark. The dates of these entries are June 25, 2004, July 8, 2004, July 9, 2004, October 28, 2004, October 29, 2004 and July 21, 2005 (14.5 hours). However, the records fail to identify who these individuals are, or why it was reasonable and necessary for Mr. Dudgeon to consult with them. Therefore, the fees for talking to these individuals should not be awarded.

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Case 1:04-cv-00762-RPM

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E. Travel Expenses and Telephone Calls Plaintiffs seek $1,173 for their travel expenses to conferences in Denver, and $952 in long distance telephone charges. These expenses should not be awarded because they are not recoverable under EAJA. See Weakley v. Bowen, 803 F.2d 575, 580 (10 th Cir. 1986). F. Transcription and Recording Fee Plaintiff seeks $700.00 for a transcription by Secretech, and $11.00 for a recording fee. No further detail is provided. Therefore, Plaintiff fails to establish these expenses were reasonable and necessary. F. The Hourly Fee is Not Justified Plaintiff has failed to establish any justification for exceeding the statutory hourly rate of $125.00. 28 U.S.C. § (d)(2)(A). For the above stated reasons, Plaintiffs' application should be denied in its entirety. Alternatively, the award should be reduced to $33,612.50 ($125 x 268.9 hours (283.4 hrs. - 14.5 hrs)).

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Case 1:04-cv-00762-RPM

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Filed 12/21/2005

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Dated this 21 st day of December, 2005. Respectfully submitted, WILLIAM J. LEONE United States Attorney s/William G. Pharo William G. Pharo Assistant United States Attorney 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected] Attorney for Defendant

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Case 1:04-cv-00762-RPM

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Filed 12/21/2005

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CERTIFICATE OF MAILING I hereby certify that on this 21 st day of December, 2005, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFFS' APPLICATION FOR ATTORNEY'S FEES with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John M. Dudgeon [email protected] I hereby certify that on this 21 st day of December, 2005, I mailed or served the foregoing DEFENDANT'S RESPONSE TO PLAINTIFFS' APPLICATION FOR ATTORNEY'S FEES to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Duane Ross via U.S. Mail Office of General Counsel United States Department of Agriculture P.O. Box 25005 Denver, CO 80225-0005 s/William G. Pharo William G. Pharo Assistant United States Attorney United States Attorney's Office 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 Attorney for Defendant

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