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, this panel has

determined unanimously to grant the parties’ request 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. 

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Karen Budd-Falen of Budd-Falen Law Offices, P.C., Cheyenne, Wyoming, for

Plaintiff-Appellant.

Thomas L. Strickland, United States Attorney, Michael E. Hegarty, Assistant

United States Attorney, Denver, Colorado, for Defendants-Appellees. 

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

BALDOCK , Circuit Judge.

Plaintiff The Shooting Star Ranch settled a quiet title action against various

entities of the United States and then sought attorney 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, holding 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. 1
2 On appeal to this court, plaintiff requests leave under 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 supplementation 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 argue that the omission

of the material it now seeks to present was the result 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) (quotation 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 additional evidence did not affect the

(continued...)

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In order to qualify as a “party” under the EAJA for purposes of an award,

plaintiff had to establish that, at the time the civil 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 carry this burden,

plaintiff submitted an unsworn, unverified letter from its certified public

accountant stating that plaintiff’s net worth was between $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 the time the action was filed. 

Appellees’ Supp. App. at 52. Plaintiff was granted leave to file a reply, which it

did. The exhibits submitted with the reply, however, dealt with various corporate

matters pertinent to plaintiff, but did not bolster the mere letter from plaintiff’s

accountant on the issue of net worth. 2
2

(...continued)

correctness of the district court’s decision. See id.

-4-

It is clear from the legislative history of the EAJA that Congress intended

to provide for the recovery of costs and fees to insure that entities “‘not be

deterred from seeking review of, or defending against, 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 in a second major piece of

litigation. See Hensley v. Eckerhart , 461 U.S. 424, 437 (1983). 

While the EAJA itself fails to define “net worth” or explain how such a

calculation should be arrived at, the Committee Reports 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
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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 assertion that it meets the statutory

criteria. Here, plaintiff’s sole evidence regarding 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 the government, such evidence

cannot, without more, establish plaintiff’s net worth. 

Plaintiff argues that the government should have been required to present

evidence refuting plaintiff’s net worth assertion before plaintiff could be required

to come forward with more evidence. We do not reach 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, withstood a challenge as to net

worth by the government. 

Here, plaintiff has failed to produce even an affidavit 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
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incorporates EAJA requirements); see also Estate of Woll ex rel. Woll v. United

States , 44 F.3d 464, 470 (7th Cir. 1994) (party seeking EAJA 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 denying plaintiff “party” status for

purposes of the EAJA.

Plaintiff-Appellant’s motion to supplement the record is DENIED. The

judgment of the United States District Court for the District of Colorado is

AFFIRMED.