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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Donald Routson, et al., 

Plaintiffs, 

v. 

Sally Jewell, et al., 

Defendants. 

No. CV-15-8286-PCT-DKD

ORDER 

 Pending before the Court is Plaintiffs’ fully briefed application for fees under the 

Equal Access to Justice Act (“EAJA”). (Docs. 67, 70, 71) As detailed below, the Court 

concludes that Plaintiffs are entitled to an award of $33,363.15. 

Factual and Procedural Background 

The Routsons initiated this matter as an appeal from an adverse administrative 

decision at the Bureau of Land Management’s Interior Board of Land Appeals (IBLA). 

(Doc. 25) After the Court denied Defendants’ motion to dismiss, both parties filed 

motions for summary judgment. (Docs. 30, 42, 44) The Court concluded that the IBLA 

decision was based on a land survey that appeared to be erroneous and so it denied both 

motions and remanded for further proceedings. (Doc. 58) 

Legal Standard 

 Under EAJA, “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 . . . against the 

United States . . . unless the court finds that the position of the United States was 
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substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 

2412(d)(1)(A). “The dual factors of (1) a material alteration in the parties’ legal 

relationship that is (2) judicially sanctioned comprise the current test for whether a 

litigant is a ‘prevailing party.’ The issue here is whether the results of this litigation pass 

muster under that test.” Ali v. Gonzales, 486 F.Supp.2d 1197, 1201 (W.D.Wash., 2007). 

 “EAJA creates a presumption that fees will be awarded unless the government’s 

position was substantially justified.” Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 

1988). This means “justified in substance or in the main—that is, justified to a degree 

that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). 

The government has the burden to show that its position was substantially justified. 

Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). 

 Plaintiffs, as the moving party, have the burden of establishing that their fee 

request is reasonable. Golden Gate Audubon Soc., Inc. v. U.S. Army Corps of Engineers, 

738 F.Supp. 339, 344 (N.D. Cal., 1988) (citing Blum v. Stenson, 465 U.S. 886, 896 

(1983)). To demonstrate that a fee enhancement is appropriate, Plaintiffs must 

demonstrate that (1) “the attorney must possess distinctive knowledge and skills 

developed through a practice specialty,” (2) “those distinctive skills must be needed in 

the litigation,” and (3) “those skills must not be available elsewhere at the statutory rate.” 

Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991). The Court has the discretion to adjust 

a fee application. Pierce v. Underwood, 487 U.S. 552, 571 (1988). 

Analysis 

 As a preliminary matter, the Court notes that the United States does not challenge 

that Routsons’ EAJA fee application was timely filed and that the Routsons have satisfied 

EAJA’s net worth requirement. (Doc. 67-3) 

 The United States’ first argument is that the Routsons were not the “prevailing 

party” for EAJA purposes. (Doc. 70 at 9-14) The Court remanded the matter for further 

proceedings, a judicially sanctioned material alteration in the parties’ legal relationship. 
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Ali, 486 F.Supp.2d at 1201. Accordingly, the Court concludes that the Routsons were the 

prevailing party in this matter. 

 The United States also argues that its position was substantially justified but does 

not challenge the Court’s conclusion that the IBLA relied on a potentially erroneous 

survey. (Doc. 70 at 14-16) Accordingly, the Court concludes that the Government has 

not demonstrated that its position was substantially justified. 

 Finally, the Court, in its discretion, concludes that the Routsons’ counsel have not 

demonstrated that their fee request is reasonable and they have not demonstrated that they 

are entitled to a fee enhancement beyond the maximum approved by the Ninth Circuit. 

See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (statutory 

maximum rates under EAJA). 

 Counsel have not provided any evidence to show that they have any experience 

with applications to correct land patents and the large amount of time billed for research 

indicates that their practice specialties have not, in fact, rendered them subject matter 

experts in appeals from the IBLA. (Doc. 67-4, 67-5, 67-6) Even if they had made such a 

demonstration, that experience is no guarantee of an enhancement.1

 The Court further 

notes that remand was predicated on a question of material fact that the Routsons did not 

raise and the remand Order detailed numerous gaps in the record that undermined the 

Routsons’ claim. (Doc. 58 at 5-6) Accordingly, it does not appear that counsel’s skills 

were applicable or relevant to this matter. 

 Finally, the Routsons’ affidavit states that they only retained this counsel after 

other lawyers declined representation “because they viewed the likelihood of success to 

be low” and because this matter did meet the criteria for representation by a public 

interest law firm. (Doc. 67-3 at ¶5) This does not establish that the skills needed for this 

matter do not exist elsewhere just that retained counsel were the ones willing to accept 

the matter. 

 1

 By way of contrast, this Court regularly receives EAJA fee applications from lawyers who have deep and broad experience with the Social Security Administration. That “specialty” bar does not request, or receive, a fee enhancement. 
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Conclusion 

 Fees. Counsel has submitted a fee application detailing a total of 380.4 hours 

billed on this matter. (Doc. 67-2 at 19) Based on the Court’s extensive experience with 

fee applications and dispositive motions, the Court concludes that 150 hours is a more 

appropriate amount of time to have spent on this matter. Based on the annual summary 

of hours billed in separate years, the Court will allocate the 150 hours evenly between 

2016 and 2017 for a total of $29,210.25.2

 (Doc. 67-5 at 9) 

 Fee Application. Time spent preparing the EAJA fee application is compensable 

but that does not entitle counsel to ignore cost-effective procedures like using associates 

and paralegals for the bulk of the work. (Doc. 67-2 at 20-21) The Court will award a 

total of $1,967.90 for 10 hours of fee application preparation. 

 Costs. Plaintiffs’ request for costs is reduced due to an excessive amount of 

Westlaw charges. Plaintiffs are awarded $2,185.00. 

 Total. In the Court’s discretion, $33,363.15 is awarded to the Routsons. 

IT IS THEREFORE ORDERED granting in part Plaintiffs’ Application for an 

Award of Attorneys’ Fees and Costs Pursuant to the Equal Access to Justice Act. (Doc. 

67) Plaintiffs are awarded attorney fees under the Equal Access to Justice Act in the 

amount of $33,363.15. 

 Dated this 22nd day of June, 2018. 

 2

 This represents 75 hours at $192.68 (the 2016 rate) and 75 hours at $196.79 (the 

2017 rate).