IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE A. NORTON, Secretary of 
the Interior, et al., 
) 
) 
)
)
)
)
) No. 1:96CV01285 
(Judge Lamberth) 
Defendants. 
)
) 
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR ENLARGEMENT 
OF TIME WITHIN WHICH TO FILE SUPPORTING ATTORNEY AND EXPERT 
WITNESS DOCUMENTATION RE EAJA FEE APPLICATION 
On October 9, 2003, Plaintiffs filed a Request for an Award of Attorney’s Fees and 
Expenses Pursuant to the Equal Access to Justice Act (“Request”). The Request is defective, 
among other reasons, for failing to include an itemized statement of the attorney fees and 
expenses sought, as required by the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 
(2000). Recognizing this defect, on October 23, 2003, Plaintiffs filed a Motion for Enlargement 
of Time Within Which To File Supporting Attorney and Witness Documentation Re EAJA Fee 
Application (“Motion for Enlargement”). 
In the Motion for Enlargement, Plaintiffs argue that because “plaintiffs have much to do 
over the coming weeks and months given the schedule this Court has set forth in its September 
25, 2003 Trial 1.5 Order” they should not be required to comply with EAJA and file a proper 
application that includes the required itemized statement of requested fees and expenses. See 
Motion for Enlargement at 1.1 Instead, without any citation to authority for their novel approach, 
1/ Plaintiffs do not identify the tasks that were assigned to them in the Trial 1.5 Order which 
prevented them from filing a complete EAJA application. Since the close of the phase 1.5 trial,
they propose that the Court first declare their entitlement to fees and then 60 days later they will 
reveal the fees they are requesting. See id. at 3. 
Plaintiffs misunderstand the requirements of EAJA. The statement of itemized fees and 
expenses is not merely “supporting documentation” for an application. See Motion for 
Enlargement at 2. The statement is a necessary part of the application itself. See 28 U.S.C. 
§ 2412(d)(1)(B) (“A party seeking an award of fees and other expenses shall . . . submit to the 
court an application for fees and other expenses which shows . . . the amount sought, including 
an itemized statement from any attorney or expert witness . . . stating the actual time expended 
and the rate at which fees and other expenses were computed.”). Such information “is essential 
not only to permit the District Court to make an accurate and equitable award but to place 
government counsel in a position to make an informed determination as to the merits of the 
application.” National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 
1327 (D.C. Cir.1982). 
Plaintiffs’ new approach to EAJA applications does not permit the Court, or the 
government, to make informed determinations about the Request. Decisions about entitlement 
can be affected by the nature of the actual fees and expenses that are sought. For example, if 
Plaintiffs include in their itemized statement a request for fees associated with issues that are 
unrelated to the matters on which they claim to have prevailed they would not be entitled to such 
fees, even if these matters arose within the “appropriate temporal parameters,” Motion for 
Plaintiffs have noticed fourteen depositions and served thirteen sets of requests for production of 
documents. This discovery onslaught was neither scheduled nor authorized in the Court’s 
September 25, 2003 Order and certainly does not excuse Plaintiffs’ failure to complete a proper 
EAJA application. 
2
Enlargement at 3, on which Plaintiffs seek an initial ruling from the Court. Plaintiffs’ newly 
invented approach to EAJA applications does not comply with the requirements of EAJA and 
should be rejected.2 
In any event, as discussed in Defendants’ Opposition to the Request (filed October 23, 
2003), Plaintiffs’ entire Request is premature under EAJA because no final judgment has been 
entered in this case. See Opposition at 7-9. The Motion for Enlargement is similarly premature. 
Plaintiffs claim that, because they are filing an “interim” EAJA request, no time limits apply to 
their Request, and that it is only “in an abundance of caution” that they are seeking an 
enlargement of time in which to file “supporting documentation.” Motion for Enlargement at 2. 
The thirty day period for filing an EAJA application runs from a final judgment. See 28 U.S.C. 
§ 2412(d)(1)(B). Because there has not been a final judgment in this case the thirty day clock has 
not yet begun to run.3 
Plaintiffs should not be granted additional time to file information that was required to be 
included in their Request. Instead, they need to withdraw their defective Request and file a 
timely, complete EAJA application after a final judgment has been entered in this case, if they 
still contend at such time that they are entitled to relief under EAJA. 
2/ Plaintiffs claim that their new bifurcated approach to EAJA applications will save “Court 
time” and is a “more efficient use of judicial and party resources.” Motion for Enlargement at 1- 
2. It may indeed be less burdensome on Plaintiffs to file an incomplete EAJA application. It is 
difficult to understand how any Court time is saved by reviewing their application piecemeal. 
3/ Plaintiffs neglect to mention that if their “abundance of caution” thirty day rule were applied to 
the Phase 1 judgment, their Request would be tardy. 
3
CONCLUSION 
For these reasons, Plaintiffs’ Motion for Enlargement should be denied. 
Respectfully submitted, Dated: November 6, 2003 
ROBERT D. McCALLUM, JR. 
Associate Attorney General 
PETER D. KEISLER 
Assistant Attorney General 
STUART E. SCHIFFER 
Deputy Assistant Attorney General 
J. CHRISTOPHER KOHN 
Director 
/s/ Phillip M. Seligman 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
PHILLIP M. SELIGMAN 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
4
I hereby certify that, on November 6, 2003 the foregoing Defendants’ Opposition to 
Plaintiffs’ Motion for Enlargement of Time Within Which to File Supporting Attorney and Expert 
Witness Documentation re EAJA Fee Application was served by Electronic Case Filing, and on 
the following who are not registered for Electronic Case Filing in the manner indicated: 
by Facsimile: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
Fax (406) 338-7530 
CERTIFICATE OF SERVICE 
/s/ Kevin P. Kingston 
Kevin P. Kingston 
5
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. Case No. 1:96CV01285 
(Judge Lamberth) 
)
)
)
)
) 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
ORDER 
This matter comes before the Court on Plaintiffs’ Motion for Enlargement of Time 
Within Which To File Supporting Attorney And Expert Witness Documentation Re EAJA Fee 
Application. Upon consideration of the Motion for Enlargement, the responses thereto, and the 
record in this case, it is hereby 
ORDERED that the Motion for Enlargement is DENIED. 
SO ORDERED. 
Date: _________ 
ROYCE C. LAMBERTH 
United States District Judge
cc: 
Sandra P. Spooner 
John T. Stemplewicz 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
Fax (202) 514-9163 
Dennis M Gingold, Esq. 
Mark Kester Brown, Esq. 
607 - 14th Street, NW, Box 6 
Washington, DC 20005 
Fax (202) 318-2372 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
Fax (202) 822-0068 
Elliott Levitas, Esq. 
1100 Peachtree Street, Suite 2800 
Atlanta, GA 30309-4530 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
(406) 338-7530