South Yuba River Citizens League et al v. National Marine Fisheries Service et al
Filing
498
ORDER signed by Judge Lawrence K. Karlton on 11/1/12 ORDERING Plaintiffs' motion for a supplemental order directing the Federal Defendants to pay the attorneys' fees and costs awarded by the court, 491 , is DENIED. Final Judgment in this case has been entered, as of issuance of this court's May 31, 2012 Order, 475 . The fee awards set forth in the court's March 27, 2012 and May 31, 2012 orders are STAYED pending resolution of Defendants' appeal. The parti es SHALL notify the court upon resolution of the Federal Defendants' appeal or, if the Office of the Solicitor General decides not to approve Federal Defendants' appeal, upon the withdrawal of such appeal. The motion hearing currently set for November 5, 2012 at 10:00 a.m. is VACATED.(Matson, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SOUTH YUBA RIVER CITIZENS
LEAGUE and FRIENDS OF THE
RIVER,
NO. CIV. S-06-2845 LKK/JFM
Plaintiffs,
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v.
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O R D E R
NATIONAL MARINE FISHERIES
SERVICE, et al.,
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Defendants.
/
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Plaintiffs successfully challenged a Biological Opinion issued
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by the National Marine Fisheries Service related to two dams on the
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South Yuba River operated by the Army Corps of Engineers.
Pending
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before
the
court
is
Plaintiffs’
motion
for
a
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supplemental order directing the Federal Defendants to pay the
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attorneys’ fees and costs awarded by the court. Pls’ Mot., ECF No.
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491.
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For the reasons provided below, the court denies Plaintiffs’
motion.
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I. BACKGROUND
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On March 27, 2012, this court determined that Plaintiffs are
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“entitled to recover fees and costs in the amount of $1,875,951.20
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from the federal defendants.”
Order, ECF No. 469.
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By order issued on May 31, 2012, this court awarded Plaintiffs
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$1,705 in supplemental fees and required Defendants to “pay all
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fees due no later than ninety (90) days from the issuance of th[e]
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order, and . . . file a declaration with the court stating that
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they have done so.”
Order, ECF No. 475, at 4.
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On July 30, 2012, Defendants filed a notice of appeal of this
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court’s May 31, 2012 order, as well as “all interlocutory orders
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and decisions contributing to that order, including, but not
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limited to, Docket No. 469 (March 27, 2012).”
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Appeal, ECF No. 481.
Defs’ Notice of
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On July 30, 2012, Defendants filed a “motion for stay of the
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May 31, 2012 order pending the outcome of any appeal if authorized”
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by the Solicitor General.
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alternative, Defendants requested that the court “modify its order
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. . . to require Federal Defendants to submit a request to the
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Treasury Department for the payment of all fees due by August 27,
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2012” because the “disbursement of judgment appropriations is
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neither controlled nor administered by Federal Defendants or the
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Department of Justice” and, instead, “the actual ‘payment of final
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judgments rendered by a district court . . . against the United
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States shall be made on settlements by the Secretary of the
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Treasury.’” Id. (citing 28 U.S.C. § 2414).
Defs’ Mot., ECF No. 482, at 2.
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In the
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On August 29, 2012, the court granted Federal Defendants’
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motion for modification of the court’s May 21, 2012 order.
The
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court provided, “The language of the Order is modified to require
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Federal Defendants to submit a request to the Treasury Department
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for the payment of all fees due by September 4, 2012.
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days of the issuance of this order, defendants SHALL inform the
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court of the status of the payment to plaintiffs.”
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490.
Within 30
Order, ECF No.
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On September 28, 2012, Federal Defendants filed a notice
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informing the court of the status of the payment of attorneys’ fees
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to Plaintiffs.
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attested, inter alia, that: (1) “[t]he Justice Department submitted
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the required forms to the Judgment Fund Branch of the Financial
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Management
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Treasury, and pursuant to the Court’s modified order, on September
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4, 2012, requested payment of the Court-awarded attorney fees and
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costs”;
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Financial Management Service, a bureau of the U.S. Department of
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the Treasury] had a telephonic conference with Plaintiffs’ counsel
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on September 27, 2012,” during which “government counsel explained
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that Treasury is statutorily prohibited from paying the fee order
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at this time because Federal Defendants had appealed that order,
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and it was thus not a ‘final judgment’ as Congress had defined the
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term for purposes of certifying payment from the Judgment Fund.”
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Oliphant Decl., ECF No. 494, Att. 1, at 2.
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Defs’ Notice, ECF No. 494.
Service,
and
(2)
a
bureau
“[c]ounsel
of
for
the
Federal Defendants
U.S.
Federal
Department
Defendants
of
and
the
[the
Federal Defendants also submitted a letter from Michael
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Collota, Deputy Chief Counsel of the Department of the Treasury,
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Financial Management Service, to S. Jay Govindan, Assistant Chief
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of
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Resources Division, addressing why Federal Defendants’ submitted
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claim for attorneys fees and costs had been rejected.
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Letter, ECF No. 494, Att. 1, at 5.
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U.S.
Department
of
Justice,
Environmental
&
Natural
Collota
Collota stated:
[T]he fact that this award of attorney fees has
been appealed by the Government means that it is
not a final judgment for Judgment Fund purposes.
As with any other appropriation, the Judgment Fund
is limited in use to the specific purpose (or
purposes) that Congress has specified. Here, the
Judgment Fund appropriation is limited to the
payment of “final judgments.” . . . . Since the
Government has noticed an appeal of this judgment,
it is not final and the Judgment Fund appropriation
is not legally available to pay it.
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the
Id.
On September 20, 2012, Plaintiffs filed the instant motion for
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a supplemental order on attorneys fees and costs.
Pls’ Mot., ECF
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No. 491.
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order implicitly “denied the Federal Defendants’ request for a
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stay” of the orders awarding fees and costs pending appeal.
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at 3. Plaintiffs further contest the Treasury Department’s denial
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of payment pending appeal of the fee award and argue that “[t]he
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United States has thus unilaterally granted itself the stay of the
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obligation to pay the attorneys fees and costs pending its Ninth
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Circuit appeal that the Federal Defendants sought from this Court
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and which this Court denied.”
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“clarifying that the Treasury Department cannot decide unilaterally
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to grant the United States a stay of the obligation to pay the
Plaintiffs contend that this court’s August 29, 2012
Id. at 4.
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Id.
Plaintiffs seek an order
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attorneys fees and costs awarded by the Court and that the Treasury
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Department must instead pay the attorneys fees and costs by a date
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certain.”
Id. at 5.
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II. ANALYSIS
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As a preliminary matter, the court finds that the Federal
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Defendants have complied with the court’s August 29, 2012 order by
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submitting a request to the Treasury Department for the payment of
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all fees due by September 4, 2012, and by informing the court of
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the
status
of
do
the
not
payment
control
to
or
Plaintiffs.
administer
the
Because
Federal
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Defendants
disbursement
of
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judgment appropriations, the court declines to require a date
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certain for the payment of attorneys fees and costs.
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What remains at issue, however, is the Treasury Department’s
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refusal to pay the attorneys fees and costs ordered by this court,
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based on its interpretation of 31 U.S.C. § 1304 and 28 U.S.C. §
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2414.
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The Judgment Fund statute, 31 U.S.C. § 1304, provides in
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pertinent part that “(a) Necessary amounts are appropriated to pay
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final judgments, awards, compromise settlements, and interest and
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costs specified in the judgments or otherwise authorized by law
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when-(3) the judgment, award, or settlement is payable . . . (A)
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under section 2414 . . . of title 28.”
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Section
2414
provides
that
“payment
of
final
judgments
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rendered by a district court . . . against the United States shall
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be made on settlements by the Secretary of the Treasury” and that
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“[w]henever the Attorney General determines that no appeal shall
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be taken from a judgment or that no further review will be sought
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from a decision affirming the same, he shall so certify and the
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judgment shall be deemed final.”
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The parties contest the implications of Rosenfeld v. United
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States, 859 F.2d 717 (9th Cir. 1988), in which the Ninth Circuit
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interpreted the “final judgment” provisions of the Judgment Fund
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statute
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presented.
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and
Section
2414,
as
applied
to
the
situation
here
In Rosenfeld, the Ninth Circuit reviewed the propriety of a
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district
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government in an action arising under the Freedom of Information
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Act (“FOIA”).
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of
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jurisdiction to order it to pay an interim fee award because 31
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U.S.C. § 1304(a) permits payment only when a judgment is final
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under 28 U.S.C. § 2414, and an interim fee award does not become
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a “final judgment” for purposes of 31 U.S.C. § 1304 and 28 U.S.C.
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§ 2414 until the Attorney General certifies an intention not to
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appeal or exhausts the government's appeals.
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Ninth Circuit reasoned that “[i]f attorney fee awards cannot be
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paid until a final judgment is rendered, and if interim fee awards
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are not appealable orders, then payment of interim awards may be
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postponed until the conclusion of the litigation, rendering them
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no longer ‘interim’” and, thus, “making nonsense of the concept of
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an interim award.”
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that “[s]ince Congress waived sovereign immunity from attorney's
its
court’s
grant
of
an
interim
fee
award
against
the
On appeal, the government argued that, in violation
sovereign
immunity,
the
Id. at 726, 727.
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district
court
had
lacked
Id. at 726.
The
Thus, the Circuit determined
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fees in the FOIA actions . . . no additional waiver is required for
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interim fees.
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limitation on the government's waiver of sovereign immunity.” Id.
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at 726-27.
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The Judgment Fund statute is not a superseding
The Ninth Circuit further provided:
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The government's insistence that the Judgment Fund
is the only possible source of payment of an
interim fee award is simply wrong. The Judgment
Fund statute is itself a mechanism for facilitating
payment of judgments, not a further limitation on
the United States' waivers of sovereign immunity.
. . . We also note that when a court has rejected
the Judgment Fund argument, the government has
managed to pay the interim fee award.
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Id. at 727 (citing Jurgens v. EEOC, 660 F.Supp. 1097, 1102
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(N.D.Tex. 1987) (“When faced with a citation for contempt of court,
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however, the defendants in Shafer [v. Commander, Army & Air Force
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Exchange Service, No. CA 3-76-1246-R, 1985 WL 9492 (N.D.Tex. Dec.
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3, 1985)] made immediate payment. The court believes that the EEOC
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can also arrange for immediate payment of this court's interim
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award.”); see also Trout v. Garrett, 891 F.2d 332, 335 (D.C.Cir.
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1989) (finding that the “payment of final judgments” language in
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section 2414, incorporated by reference into the Judgment Fund
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statute, was not designed “to retract or limit duly enacted waivers
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of sovereign immunity”); but see Office of Personnel Management v.
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Richmond, 496 U.S. 414, 430, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990)
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(“[I]t would be most anomalous for a judicial order to require a
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Government official . . . to make an extrastatutory payment of
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federal funds.
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imprisonment, for any Government officer or employee to knowingly
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spend money in excess of that appropriated by Congress.”).
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It is a federal crime, punishable by fine and
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Here, the attorneys fees and costs awarded to Plaintiffs were
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not an award of interim fees, but instead, were awarded following
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a final judgment on the merits of Plaintiff’s case.
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Circuit’s holding in Rosenfeld is, therefore, not applicable to the
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situation here presented.
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provisions of 31 U.S.C. § 1304 and 28 U.S.C. § 2414, the court
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stays the fee award pending resolution of Defendants’ appeal.1
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The Ninth
In observance of the “final judgment”
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III. CONCLUSION
Accordingly, the court ORDERS as follows:
[1]
Plaintiffs’ motion for a supplemental order directing
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the Federal Defendants to pay the attorneys’ fees and
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costs awarded by the court, ECF No. 491, is DENIED.
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[2]
Final Judgment in this case has been entered, as of
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issuance of this court’s May 31, 2012 Order, ECF No.
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475.
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[3]
The fee awards set forth in the court’s March 27, 2012
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and May 31, 2012 orders are STAYED pending resolution
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of Defendants’ appeal.
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[4]
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The parties SHALL notify the court upon resolution of
the Federal Defendants’ appeal or, if the Office of
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In doing so, the court does not concur with the Treasury
Department’s view, that it is free to disregard a court order.
Rather, unlike the executive branch, this court sees little point
in initiating a crisis between the judiciary and the executive
branch. Nonetheless, those in the executive branch ought not to
take this as a precedent.
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To think that an unauthorized appeal supports the Treasury’s
position is, to say the least, remarkable.
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the Solicitor General decides not to approve Federal
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Defendants’ appeal, upon the withdrawal of such
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appeal.
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[5]
The motion hearing currently set for November 5, 2012
at 10:00 a.m. is VACATED.
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IT IS SO ORDERED.
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DATED: November 1, 2012.
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