## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 17 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THE SHOOTING STAR RANCH, LLC, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; DAN GLICKMAN, Secretary of the Department of Agriculture; MICHAEL DOMBECK, Chief of the Forest Service; ELIZABETH ESTILL, Regional Forester in the Rocky Mountain Region of the Forest Service; JERRY SCHMIDT, Forest Supervisor for the Routt and Medicine Bow National Forests,

Defendants-Appellees. No. 99-1197

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 96-N-2225)

Submitted on the briefs:1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t 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. -2- Karen Budd-Falen of Budd-Falen Law Offices, P.C., C heyenne, Wyoming, for Plaintiff-Appellant. Thomas L. Strickland, United States Attorney, Micha el E. Hegarty, Assistant United States Attorney, Denver, Colorado, for Defen dants-Appellees.

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

BALDOCK , Circuit Judge.

Plaintiff The Shooting Star Ranch settled a quiet t itle action against various entities of the United States and then sought attor ney fees and costs in the district court pursuant to the Equal Access to Justice Act ( EAJA), 28 U.S.C. § 2412(d). The district court denied plaintiff’s claim, holdin g it had failed to establish that it met the financial requirements of the EAJA and thus was not a party eligible for an award of costs and fees. Plaintiff appeals. We review the judgment of the district court for abuse of discretion, see United States v. 88.88 Acres of Land , 907 F.2d 106, 108 (9th Cir. 1990), and affirm. 12 On appeal to this court, plaintiff requests leave u nder Fed. R. App. P.

10(e) to supplement the record with an affidavit as to its value and with various income tax documents. Rule 10(e) allows supplement ation of the record by a circuit court when material evidence is omitted in the record either by error or accident. See Fed. R. App. P. 10(e)(2). Plaintiff does not argu e that the omission of the material it now seeks to present was the res ult of either error or accident. “Rule 10(e) allows a party to supplement the record on appeal but does not grant a license to build a new record.” United States v. Kennedy , No. 98-1421, 2000 WL 1352891, at *2 (10th Cir. Sept. 20, 2000) (quotatio n omitted). This court will not consider evidence not presented before the district court. See id. Plaintiff’s citation to Martinez v. Mafchir , 35 F.3d 1486, 1492 n.6 (10th Cir. 1994) is inapposite. In Martinez , the defendants did not oppose the plaintiff’s motion to supplement, and the additiona l evidence did not affect the (continued...) -3- In order to qualify as a “party” under the EAJA forpurposes of an award, plaintiff had to establish that, at the time the ci vil action was filed, its net worth did not exceed $7,000,000 and it employed not more than five hundred employees. See 28 U.S.C. at § 2412(d)(2)(B). In an attempt to ca rry this burden, plaintiff submitted an unsworn, unverified letter f rom its certified public accountant stating that plaintiff’s net worth was b etween $1,500,000 and $1,800,000. Appellant’s App. at 19. The government challenged this assertion as inadequate to establish plaintiff’s net worth at th e time the action was filed. Appellees’ Supp. App. at 52. Plaintiff was grantedleave to file a reply, which it did. The exhibits submitted with the reply, howeve r, dealt with various corporate matters pertinent to plaintiff, but did not bolsterthe mere letter from plaintiff’s accountant on the issue of net worth. 22 (...continued)

correctness of the district court’s decision. See id. -4- It is clear from the legislative history of the EAJ A that Congress intended to provide for the recovery of costs and fees to in sure that entities “‘not be deterred from seeking review of, or defending again st, unjustified governmental action because of the expense involved in securing the vindication of their rights.’” D’Amico ex rel. NLRB v. Industrial Union of Marine & Shipbuilding Workers of Am. , 630 F. Supp. 919, 922 (D. Md. 1986) (quoting H.R. Rep. No. 99- 120, at 4 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 132-33.) The effort to secure such an award, however, should not result ina second major piece of litigation. See Hensley v. Eckerhart , 461 U.S. 424, 437 (1983). While the EAJA itself fails to define “net worth” o r explain how such a calculation should be arrived at, the Committee Rep orts accompanying the EAJA establish that “net worth” is to be “calculated by subtracting total liabilities from total assets.” H.R. Rep. No. 96-1418, at 15 (1980) reprinted in 1980 U.S.C.C.A.N. 4984, 4994; see also American Pac. Concrete Pipe Co. v. NLRB , 788 F.2d 586, 590 (9th Cir. 1986) ( quoting S. Rep. No. 96-253, at 17 (1979)). Further, generally accepted accounting principles apply to the net worth inquiry. See id. at 591. Thus, while Congress clearly intended to grant relief to qualifying-5-

parties, the means by which a claimant establishes qualification is still an evidentiary process. When challenged as to eligibility for an EAJA award , the party seeking such an award must do more than make a bare asserti on that it meets the statutory criteria. Here, plaintiff’s sole evidence regardin g its net worth is an unverified and unsworn letter from its accountant. It is not possible to calculate net worth by subtracting total liabilities from total assets based merely on the accountant’s letter. Especially in the face of a challenge by t he government, such evidence cannot, without more, establish plaintiff’s net worth. Plaintiff argues that the government should have be en required to present evidence refuting plaintiff’s net worth assertion b efore plaintiff could be required to come forward with more evidence. We do not reac h that question here because plaintiff did not even produce an affidavit of its net worth when faced with a challenge by the government and despite being given the opportunity to supplement the record by the district court. We have found no cases where a mere assertion in an application, without more, wit hstood a challenge as to net worth by the government. Here, plaintiff has failed to produce even an affid avit in the district court on an issue on which it had the burden of proof. See Pate v. United States , 982 F.2d 457, 459 (10th Cir. 1993) (discussing statute, 26 U.S.C. § 7430, that-6-

incorporates EAJA requirements); see also Estate of Woll ex rel. Woll v. United
States , 44 F.3d 464, 470 (7th Cir. 1994) (party seeking E AJA award bore burden of establishing that it met net worth requirements) . On this record, we cannot say that the district court abused its discretion in de nying plaintiff “party” status for purposes of the EAJA. Plaintiff-Appellant’s motion to supplement the reco rd is DENIED. The judgment of the United States District Court for th e District of Colorado is
AFFIRMED.