United States of America v. Land et al

Filing 61

ORDER & REASONS: denying 50 Motion for Attorneys' Fees and Costs. Signed by Judge Carl Barbier on 10/29/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA

CIVIL ACTION

VERSUS

NO: 13-4722

LAND

SECTION:
J(3)

ORDER AND REASONS
Before the Court is a Motion for Attorneys' Fees and Costs
(Rec. Doc. 50)

filed by Defendant, Walter Dan Thompson, Jr.

("Thompson"), as well as an Opposition (Rec. Doc. 56) by Plaintiff,
the United States of America ("the Government"), and Defendant's
Reply (Rec. Doc. 60). Having considered the motion, the parties’
submissions, the record, and the applicable law, the Court finds,
for the reasons expressed below, that the motions should be DENIED.

PROCEDURAL AND FACTUAL BACKGROUND
Walter Dan Thompson, Jr. was the owner of a 1.014 acre tract
of unencumbered land located on the north side of Highway 11 and
the south side of the Mississippi River in Buras, Louisiana,
located in Plaquemines Parish. After Hurricane Katrina, the Army
Corps of Engineers set out to repair the levee that runs between
Thompson's property and the river. To perform the repairs, the
Corps determined that it was necessary to acquire an easement over

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0.648 acres of Thompson's property, and the government filed this
action on June 5, 2013 to acquire that easement. This left Thompson
a remaining tract of 0.366 unencumbered acres.
The

parties

encountered

two

issues

of

material

dispute

throughout the course of this lawsuit. First, as part of its
exercise of eminent domain, the Army Corps removed four mature live
oak trees that closely surrounded the residence on Thompson's
property, but which were located on the taken portion of the
property. Thompson contended that because the trees were located
close to the residence, they comprised a significant portion of the
value of his remaining property.

Thompson sought recovery for the

diminution in value to his current property as a result of the
removal of the oak trees. The Court settled this issue

based on

the parties' pleadings, finding that Thompson was prevented from
introducing evidence to support a calculation of the value of the
oak trees, as he was not entitled to recover the value of the
trees.1
The second issue comprising the lawsuit was the value of just
compensation to which Thompson was entitled as a result of the
Government's

establishment

of

an

easement

on

his

property.

Initially, the Government offered Thompson a value of $15,200,
based on a pre-condemnation appraisal conducted by their expert.

1

This issue was resolved in an Order issued by this Court on June 5, 2014
granting the Government's Motion to Exclude Testimony Which Violates the Unit
Rule and Seeks Non-Compensable Damages. (Rec. Doc. 25).

2

The Government then entered this amount into the registry of the
Court. Thompson rejected the offer on the basis of his expert's
report, which appraised the value of the land at $26,000. The
parties ultimately submitted to a settlement conference, conducted
by Magistrate Judge Shushan, in which the parties stipulated that
the Government would pay the entire $26,000 sought by Thompson as
just compensation for the easement. This Court subsequently issued
a

judgment

enforcing

this

stipulation,

and

requiring

the

Government's payment of $26,000 while reserving Thompson's right to
seek attorneys' fees under the Equal Access to Justice Act, 28 U.S.
C. § 2412 ("EAJA"). (Rec. Doc. 47). Pursuant to this judgment,
Thompson filed the instant motion on September 4, 2014, seeking a
total EAJA award of $52,040, composed of $10,200 in expert fees and
$41,840 in attorneys' fees.
DISCUSSION
Under the EAJA, a Court shall award attorneys' fees and costs
to a prevailing party in a civil action brought by or against the
United States, "unless the court finds the position of the United
States was substantially justified or that special circumstances
make an award unjust." 28 U.S.C. § 2412(d)(1)(A) (2011). Thompson
asserts that he is entitled to costs and fees pursuant to the EAJA
as he is a prevailing party, the Government was not substantially
justified in its position throughout the litigation, and no special
circumstances are present which would render an award unjust. The

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Government argues first that Thompson is not entitled to attorneys'
fees under the EAJA, and also that the fees and costs sought by
Thompson are unreasonable.
Thompson first contends that he is a prevailing party within
the context of the EAJA. Despite the fact that he was unable to
recover the amount he originally sought for the four live oak
trees,

Thompson

compensation
eventually

as

argues

that

evidenced

stipulated

to

by

he
the

prevailed

payment

fact
of

on

that
the

the
the

full

issue

of

Government
$26,000

of

compensation sought by Thompson, despite their original offer of a
mere $15,200. The Government, in response, argues that Thompson
does not qualify as a prevailing party in accordance with the
language of the EAJA because he was not victorious at trial, and
that he is precluded from achieving prevailing party status as a
result of his settlement.
A party is considered to prevail in a lawsuit if he succeeds
on "any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit." Milton v. Shalala, 17
F.3d 812, 813 (5th Cir. 1994) (citing Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)). A 1985 amendment to the EAJA specifically
defines "prevailing party" as:
[I]n the case of eminent domain proceedings . . . a
party who obtains a final judgment (other than by
settlement), exclusive of interest, the amount of which
is at least as close to the highest valuation of the
property involved that is attested to at trial on behalf
of the property owner as it is to the highest valuation
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of the property involved that is attested to at trial on
behalf of the Government.
28 USC § 2412(d)(2)(H) (2011) (emphasis added). The language of the
statute is unambiguous; it precludes all parties in eminent domain
proceedings whose claims are resolved via settlement, rather than
trial, from recovering attorneys' fees from the government pursuant
to

the

EAJA.

Further,

Congress

has

explained

the

strict

interpretation of this definition in its House Report, which
provides that this definition "expressly denies the status of
prevailing

party

to

any

party

who

obtains

a

judgment

by

settlement." H.R. Rep. No. 99-120(I), § 2, at *18 (1985).
Despite this clear language, Thompson maintains in his Reply
that this Court should find that he qualifies as a prevailing
party.2 Thompson contends that a rule precluding parties from
recovering attorneys' fees in eminent domain lawsuits resolved
through settlement would result in an "absurd result." (Rec. Doc.
60, p. 2). However, regardless of the policy promoted by Thompson,
the language of the statute is unambiguous. As noted by the Tenth
Circuit, "in the context of § 2412(d)(1)A) . . . we are not free to

2

In his motion, Thompson originally argues that he qualifies as a
prevailing party pursuant to the Fifth Circuit's language in U.S. v. 329.73 Acres
of Land, Situated in Grenada and Yalobusha counties, State of Miss, which
provides that the test for a prevailing party in an eminent domain proceeding
"clearly include[s] a landowner who won by judgment or negotiation far more than
the government had offered or admitted liability for in a condemnation case." 704
F.2d 800, 809 (5th Cir. 1983). However, this test has been implicitly overruled
by the aforementioned amendment to the EAJA providing a definition for
"prevailing party" which excludes parties subject to an eminent domain lawsuit
resolved by settlement.
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create exceptions to Congress' unambiguous statutory language, even
to prevent manifest injustice." U.S. v. Harrell, 642 F.3d 907, 909
(10th Cir. 2011) (citing U.S. v. 1002.35 Acres of Land, 942 F.2d
733, 735-37 (10th Cir. 1991)). In light of this, the unambiguous
definition of "prevailing party" applies, to the exclusion of
parties who resolve eminent domain proceedings via settlement as
opposed to trial.
Thompson also asserts that he should not be precluded from
seeking attorneys' fees because a vital part of his stipulation was
the preservation of his right to seek attorney's fees under the
EAJA, as evidenced by the language of the final judgment (Rec. Doc.
60, p. 4). The Court finds that this argument does not hold merit.
The final judgment in no way implies that Thompson would be
entitled to attorneys' fees, but instead simply states:
Any legal fees, costs, or expenses . . . shall be
recoverable only to the extent the court determines to
make such an award after full consideration of
Defendants' EAJA application and Plaintiff's opposition,
or as otherwise agreed by the parties.
(Rec. Doc. 47) (emphasis added). After considering Thompson's
application for attorneys' fees as well as the requirements of the
EAJA, pursuant to this language in the final judgment, the Court
finds that Thompson is not entitled to recover attorneys' fees and
costs.
In the absence of a showing by the party moving for fees and
costs

that

he

qualifies

as

a

prevailing

6

party,

an

award

of

attorneys' fees and costs is not appropriate. Save Our Wetlands,
Inc. v. Conner, 2001 WL 406318, at *2 (E.D. La. Apr. 19, 2001)
(Barbier, J.). Because Thompson did not acquire the compensation
sought via trial, he has not proven that he qualifies as a
prevailing party and is not eligible under the EAJA to recover
attorneys' fees and costs incurred in this lawsuit. As such, it is
unnecessary for the Court to consider whether the Government was
substantially justified in its position throughout the lawsuit or
whether the fees and costs sought by Thompson are reasonable.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motion for Attorneys' Fees and
Costs (Rec. Doc. 50) is DENIED.
New Orleans, Louisiana this 29th day of October, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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