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’ EQUAL ACCESS TO JUSTICE ACT 
PETITION FOR INTERIM FEES THROUGH THE PHASE 1.0 PROCEEDING 
INTRODUCTION 
On October 9, 2003, Plaintiffs requested an award under the Equal Access to Justice Act 
(“EAJA”), 28 U.S.C. § 2412, for attorney fees incurred in connection with the Phase 1 trial in 
1999, the Contempt II trial in 2002, and the Phase 1.5 trial in 2003. On May 27, 2004, the Court 
denied the fee request, but advised Plaintiffs that they could submit an interim EAJA application 
for appropriate fees incurred "through the Phase 1.0 proceeding." Cobell v. Norton, 319 F. Supp. 
2d 36, 44 (D.D.C. 2004). Plaintiffs were instructed to exclude from this application all fees 
previously awarded for Contempt I. Id. at 42. The Court also determined that Plaintiffs were not 
entitled at this time to any EAJA fees incurred in connection with Contempt II or the Phase 1.5 
trial. Id. at 42-43. 
On August 17, 2004, Plaintiffs filed their EAJA Petition for Interim Fees Through the 
Phase 1.0 Proceeding ("Interim Petition"). In the Interim Petition, Plaintiffs claim that because 
they prevailed during the Phase 1 trial and the position of Defendants was not substantially 
justified, Plaintiffs are entitled to an interim award of attorney fees and expenses under EAJA, 28
U.S.C. § 2412(d). Interim Petition at 2. To avoid the statutory cap on fee recoveries imposed by 
§ 2412(d), Plaintiffs allege bad faith by Defendants, both before and after their suit was filed, and 
thus seek unrestricted fees under 28 U.S.C. § 2412(b). Interim Petition at 2-4. Plaintiffs seek an 
award of $14,528,467.21. 
The Interim Petition is not ripe for consideration by the Court until Plaintiffs demonstrate 
compliance with Federal Rule of Civil Procedure 23(h), which requires that class members be 
given notice of the Petition and an opportunity to object. The Interim Petition itself is also 
procedurally defective in that it does not show, or even allege, that Plaintiffs are eligible to 
recover fees, as required by EAJA. It is also defective to the extent that many of the time records 
supposedly supporting the Petition are admittedly not contemporaneous records. 
In addition to these threshold defects, Plaintiffs have not satisfied the requirements for 
recovery under § 2412(d), and have not established the requisite bad faith for recovery under 
§ 2412(b). The entire Interim Petition should be denied. 
If the Court disagrees, and determines that an interim EAJA award for fees incurred 
through the Phase 1 trial is appropriate, the amount requested by Plaintiffs is grotesquely 
excessive. They have ignored the Court's May 27, 2004 Order and submitted time beyond the 
Phase 1 trial. They have submitted time spent on settlement and mediation that is not 
compensable and, in the case of the 1999 mediation, was expressly foreclosed by order of this 
Court. Their time records also reveal that an unreasonable amount of time was expended on 
many matters, including the time spent in preparing the Interim Petition. Any interim EAJA 
award for Phase 1 should not exceed $4,313,047.22. 
2
BACKGROUND 
The Court is obviously familiar with the procedural history of this case, but a brief 
summary may be helpful to put the Interim Petition in perspective. The Complaint was filed on 
June 10, 1996, seeking declaratory and injunctive relief, and an accounting of funds held in trust. 
The Complaint included a request for EAJA fees. Complaint at 27. 
On February 4, 1997, the Court certified five named plaintiffs1 as class representatives for 
all present and former IIM account beneficiaries. On May 5, 1998, the Court bifurcated the case 
into a "prospective" or "fixing the system" phase addressing Plaintiffs’ claims for declaratory and 
injunctive relief ("Phase 1") and an "accounting" phase to assess "defendants’ rendition of an 
accounting" ("Phase 2"). On November 5, 1998, the Court denied, in part, Defendants’ motion to 
dismiss and motion for summary judgment as premature, but dismissed any claim for mandamus, 
Cobell v. Babbitt, 30 F. Supp. 2d 24, 37 (D.D.C. 1998), and ordered phrases indicating that 
damages were being sought stricken from the Complaint. Id. at 40 n.18. 
After a six-week Phase 1 trial, on December 21, 1999, the Court issued a declaratory 
judgment holding that the American Indian Trust Fund Management Reform Act of 1994, Pub. 
L. No. 103-412, 108 Stat. 4239 ("1994 Act"), requires Interior to provide an accurate accounting 
of all money in the IIM trust accounts held for the benefit of Plaintiffs. Cobell v. Babbitt , 91 F. 
Supp. 2d 1 (D.D.C. 1999), aff’d sub nom, Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). 
Because the agency had not yet provided such an accounting, the Court remanded the matter to 
allow Interior the opportunity to come into compliance. The Court also retained jurisdiction for 
five years, and required Interior to file quarterly reports explaining the steps taken to rectify the 
1/ Elouise Cobell, Earl Old Person, Mildred Cleghorn, Thomas Maulson, and James LaRose. 
3
breaches found. Id. at 56. The Court declared breaches of trust obligations with respect to a 
variety of other matters, including staffing and computer support. Id. at 48-49. The Court 
dismissed Plaintiffs' common law claims. Id. at 28-31. 
On interlocutory appeal, the D.C. Circuit largely affirmed. Cobell, 240 F.3d 1081. The 
D.C. Circuit recognized the duty to perform an accounting, and also affirmed the Court's decision 
to retain jurisdiction over the case for five years and to require periodic progress reports, id. at 
1109, noting that this relief was "relatively modest," id., and "well within the district court's 
equitable powers," id. at 1086. The Court of Appeals explained, however, that the only 
actionable breach of duty was the failure to produce an accounting. It thus required the Court to 
amend its opinion to the extent that it had held that operations that may have an effect on an 
accounting constituted breaches of an enforceable duty. Id. at 1106. 
On November 30, 2000, Plaintiffs moved to reopen the Phase 1 trial, claiming spoliation 
of evidence, presentation of false testimony at the Phase 1 trial, and general misleading and 
deceitful actions. On October 19, 2001, Plaintiffs moved to amend their motion to reopen the 
Phase 1 trial and consolidated it with a motion to appoint a receiver and a motion to show cause 
why Defendants should not be held in contempt. On November 28, 2001, the Court ordered 
Interior Defendants to show cause why they should not be held in contempt on four 
specifications: (1) Failing to comply with the Court's Order of December 21, 1999 to initiate a 
Historical Accounting Project; (2) Committing a fraud on the Court by concealing the 
Department's true actions regarding the Historical Accounting Project during the period from 
March 2000 until January 2001; (3) Committing a fraud on the Court by failing to disclose the 
true status of the TAAMS project between September 1999 and December 21, 1999; and (4) 
4
Committing a fraud on the Court by filing false and misleading quarterly status reports starting in 
March 2000, regarding TAAMS and BIA Data Clean-up. A fifth specification – committing a 
fraud on the Court by making false and misleading representations starting in March 2000, 
regarding computer security of IIM trust data – was added in a supplemental order to show cause 
issued on December 6, 2001. 
After a twenty-nine day “Contempt II” trial, the Court issued an order and memorandum 
opinion on September 17, 2002, holding the Secretary and Assistant Secretary in contempt based 
on the five specifications.2 Cobell v. Norton, 226 F. Supp. 2d 1 (D.D.C. 2002). The Court 
ordered Defendants to pay the Plaintiffs' reasonable expenses, including attorney fees, incurred 
"as a result of the defendants' contumacious conduct." Id. at 153. The Court also ordered that 
Interior file plans “for conducting a historical accounting” and for “bringing themselves into 
compliance with the fiduciary obligations that they owe to the IIM beneficiaries,” permitted 
Plaintiffs to file their own plans, and set a Phase 1.5 trial regarding these plans. Id. at 162. 
On July 18, 2003, the D.C. Circuit vacated the Court's contempt Order. Cobell v. Norton, 
334 F.3d 1128 (D.C. Cir. 2003). The Court of Appeals also overturned the award of fees. Id. at 
1150. The D.C. Circuit declined to assert jurisdiction over the Court’s orders regarding the filing 
of plans and the setting of the Phase 1.5 trial because the Court’s September 17, 2002 opinions 
“signified very little to be done by the DOI.” Id. at 1138. 
On January 6, 2003, Interior and Plaintiffs filed the plans ordered by the Court, and the 
Court then conducted a forty-four day Phase 1.5 trial on those plans. On September 25, 2003, the 
2/ On the same date the Court entered an order denying the Motion to Reopen Trial 1 as "moot" 
given the contempt order. See Order of September 17, 2002. 
5
Court issued a “structural injunction.” Cobell v. Norton, 283 F. Supp. 2d 66 (D.D.C. 2003). The 
Court did not adopt Plaintiffs’ plans which, among other things, had asserted that an accounting 
was “impossible.” 
On October 29, 2003, Defendants filed a notice of appeal of the Phase 1.5 structural 
injunction. The Court of Appeals stayed the structural injunction on January 28, 2004, pending 
appeal. Argument on the appeal is scheduled for September 15, 2004. 
ARGUMENT 
THE INTERIM PETITION IS NOT RIPE FOR CONSIDERATION I. 
Before the Court may consider the Interim Petition, Plaintiffs must demonstrate that they 
have complied with Federal Rule of Civil Procedure 23(h). For motions by class counsel for an 
award of attorney fees, notice of the motion must be "directed to class members in a reasonable 
manner." Fed. R. Civ. P. 23(h)(1). Class members must be given an opportunity to object to the 
fee petition. Fed. R. Civ. P. 23(h)(2). The Court may hold a hearing and must find the facts and 
state its conclusions of law. Fed. R. Civ. P. 23(h)(3). 
The Advisory Committee notes concerning new Rule 23(h) indicate that the provision 
was added to give the court (and, presumably, absent class members) more opportunity to 
supervise class counsel's representation of the class: 
Fee awards are a powerful influence on the way attorneys initiate, develop, and conclude 
class actions. Class action attorney fee awards have heretofore been handled, along with 
all other attorney fee awards, under Rule 54(d)(2), but that rule is not addressed to the 
particular concerns of class actions. This subdivision is designed to work in tandem with 
new subdivision (g) on appointment of class counsel, which may afford an opportunity 
for the court to provide an early framework for an eventual fee award, or for monitoring 
the work of class counsel during the pendency of the action. 
Fed. R. Civ. P. 23(h) Advisory Committee Note.
6
Although Rule 23(h) does not itself create any right to recover fees, by its terms the 
provision applies if class counsel seeks such a recovery. Neither the rule nor the accompanying 
Advisory Committee Note draws any distinctions based upon how class counsel will actually be 
paid. Thus, the new rule seems to apply regardless of whether the attorney fees will be paid from 
the class members' common proceeds, from money paid directly by a defendant, or from taxpayer 
funds available under EAJA. 
These provisions of Rule 23(h) became effective on December 1, 2003. Plaintiffs might 
argue that a rule change enacted after the commencement of the litigation should not be applied 
to their fee petition. The new rule was enacted, however, before the Interim Petition was filed. 
Also, the Supreme Court has held that "[c]hanges in procedural rules may often be applied in 
suits arising before their enactment without raising concerns about retroactivity." Landgraf v. 
USI Film Products, 511 U.S. 244, 275 (1994). This principle holds true because "rules of 
procedure regulate secondary rather than primary conduct." Id. 
Our research has not found much reported discussion of new Rule 23(h). Two cases have 
so far mentioned Rule 23(h), and both appear to have applied it to existing class actions. See In 
re Excess Value Ins. Coverage Litig., 2004 WL 1724980 (S.D.N.Y July 30, 2004) (citing Rule 
23(h) in decision approving proposed settlement of multidistrict case involving multiple certified 
classes); Coleman v. General Motors Acceptance Corp., 220 F.R.D. 64 (M.D. Tenn. 2004) 
(referring to Rule 23(h) while considering motion to expand existing state-wide class action, 
instituted in 1998, to cover a nationwide class). 
7
Until Plaintiffs demonstrate that they have complied with the requirements of Rule 
23(h),3 and the class members have been given notice of the Interim Petition and an opportunity 
to be heard, the Interim Petition is not ripe for review by the Court. 
THE INTERIM PETITION SUFFERS FROM FATAL TECHNICAL DEFECTS II. 
A. Plaintiffs Have Not Submitted the Required Detailed Contemporaneous 
Time Records To Support All the Requested Fees and Expenses 
Before a court can award attorney fees and expenses under EAJA § 2412(d), the claimant 
must satisfy several threshold requirements. An EAJA petition must show “the amount sought, 
including an itemized statement from any attorney or expert witness representing or appearing in 
behalf of the party stating the actual time expended and the rate at which fees and other expenses 
were computed.” 28 U.S.C. § 2412(d)(1)(B). 
To satisfy this pleading requirement, an attorney must submit “contemporaneous records 
of exact time spent on the case, by whom, their status and usual billing rates, as well as a 
breakdown of expenses such as the amounts spent copying documents, telephone bills, mail costs 
and other expenditures related to the case.” Cmty. Heating & Plumbing Co. v. Garrett, 2 F.3d 
1143, 1146 (Fed. Cir. 1993) (internal quotation marks and citation omitted). Sufficiently detailed 
information about the hours logged and the work done “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.” Nat'l Ass'n of Concerned 
3/ It is not clear what will constitute adequate "notice" of the Interim Petition that must be 
provided to the class members under Rule 23(h). Merely posting the Interim Petition on 
Plaintiffs' website (www.indiantrust.com) would be insufficient because many class members – 
who Plaintiffs' counsel refer to as the "poorest of the poor" – may not have internet access, but it 
is notable that the Interim Petition is conspicuously absent from their website, on which 
Plaintiffs' counsel have posted almost all of their court filings. 
8
Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). Thus, “[c]asual 
after-the-fact estimates of time expended on a case are insufficient to support an award of 
attorney fees. Attorneys who anticipate making a fee application must maintain 
contemporaneous, complete and standardized time records which accurately reflect the work 
done by each attorney.” Id.; see also Cobell, 319 F. Supp. 2d at 43 (EAJA application must 
include "[d]etailed contemporaneous time records showing itemized statements of tasks 
performed"). 
Although they have known since their Complaint was filed that they would be seeking 
EAJA fees, Plaintiffs' attorneys – and experts – have not all complied with this requirement. In 
the Interim Petition, Mr. Gingold seeks $4,817,641.70. He concedes in his Affidavit of August 
16, 2004, that the time records that he submitted to support his request were not 
contemporaneous records. Mr. Gingold input the information from the "hard copy diaries" where 
he maintains his contemporaneous records into a "software application." Affidavit of Dennis M. 
Gingold at ¶ 2 (August 16, 2004). Mr. Gingold did not transfer the information verbatim. 
Instead, he "added clarity where contemporaneous entries had been made in abbreviated, coded, 
short-hand, or summary form . . . ." Id. Mr. Gingold has submitted 454.2 hours for conducting 
the following task while preparing the Interim Petition: "Review, segregate, prepare relevant 
time re Trial 1 EAJA fee application." See Gingold Affidavit, "EAJA Petition Time." It is 
unknown how much of the time that Mr. Gingold has submitted for reviewing, segregating, and 
preparing his time records for the Interim Petition was spent on adding "clarity" to his 
9
contemporaneous entries, but his modified time records are not contemporaneous and therefore 
do not satisfy the requirements of EAJA.4 
Mr. Harper also admits that he has edited his time records. Affidavit of Keith M. Harper 
at ¶ 4 (August 16, 2004). As with Mr. Gingold, he concedes that he "clarified" the time entries. 
Id. Ms. Babby also admits that "because of the need for increased clarity . . . I have slightly 
modified some of the descriptions to clarify the task completed." Affidavit of Lorna Babby at 
¶ 3; see also Affidavit of John Echohawk at ¶ 3; Affidavit of Geoffrey Rempel at ¶ 4; Affidavit 
of Stacy Gingold Bear at ¶ 2. All of these recently modified records are also defective under 
EAJA's contemporaneity requirement. 
Other time records submitted by Plaintiffs were contemporaneous, but are defective 
because they lack sufficient detail. For example, Mr. Holt supplied contemporaneous – but 
occasionally indecipherable – records: "I have not modified [the original entries] in any way . . . 
and they accordingly contain abbreviations and occasional typographical errors." Holt Affidavit 
at ¶ 4. According to the affidavit accompanying the time records submitted by Plaintiffs' expert, 
PriceWaterhouseCoopers ("PWC"), for June 1996 until March 1998 "sufficient details were not 
maintained to allow a description of the specific tasks performed by person by day." Pollner 
Affidavit at ¶ 30. The amount claimed by PWC for this period is $1,723,377. These records are 
defective because they lack the required detail. 
4/ If the Court plans to rely on the altered records of Mr. Gingold and the other Plaintiffs' 
attorneys who concede that they modified their records, Defendants request the right to obtain 
discovery from those attorneys in order to ascertain the extent to which "clarity" was added. At a 
minimum, Defendants are entitled to review the contemporaneous records to compare them with 
the newly revised records. 
10
Plaintiffs are not entitled to recover fees for time that is not supported by detailed 
contemporaneous records. 
The Request Is Defective for Failure to Allege Eligibility to Collect Fees B. 
EAJA also requires a party seeking attorney fees and expenses under § 2412(d) to submit 
an application that “shows that the party is . . . eligible to receive an award under [the] 
subsection.” 28 U.S.C. § 2412(d)(1)(B). The eligibility requirement refers to the EAJA’s 
definition of “party,” which, the statute says, means “an individual whose net worth did not 
exceed $2,000,000 at the time the civil action was filed.” Id. at § 2412(d)(2)(B)(i). 
EAJA requires an applicant to show that he or she is eligible to receive an award of fees, 
not merely allege eligibility. See 28 U.S.C. § 2412(d)(1)(B) (the party seeking fees under EAJA 
must submit an application “which shows that the party is a prevailing party and is eligible to 
receive an award,” but need only “allege that the position of the United States was not 
substantially justified”). The requirement, however, is not an onerous one. An affidavit as to net 
worth from the party or the party's attorney – essentially someone in a position to know the 
party's net worth at the commencement of the litigation – ordinarily should be sufficient to meet 
the applicant's burden, “absent some at least minimally factually supported argument by the 
government that the applicant is not eligible.” Fields v. United States, 29 Fed. Cl. 376, 382 
(1993). This eligibility requirement is also jurisdictional and its absence bars an award. See 28 
U.S.C. § 2412(d); but see Bazalo v. West, 150 F.3d 1380, 1383 (Fed. Cir. 1998) (EAJA applicant 
permitted to supplement his filing after 30-day filing period in order to set forth a more explicit 
statement about his net worth). 
11
Plaintiffs do not even attempt to satisfy the EAJA eligibility requirement in the Interim 
Petition. They do not allege, much less show, that the five named Plaintiffs were eligible for 
EAJA at the time the suit was filed.5 Defendants do not have information that would suggest the 
Plaintiffs are ineligible, but the burden to satisfy this requirement is on Plaintiffs. The absence of 
eligibility information renders the Interim Petition defective. 
The Interim Petition Is Premature C. 
The plain language of § 2412(d)(1)(B) makes clear that, to receive an award of attorney 
fees under § 2412(d), a claimant must submit an application for fees within 30 days of final 
judgment. EAJA defines "final judgment" as "a judgment that is final and not appealable." 28 
U.S.C. § 2412(d)(2)(G). This means that an EAJA petition must be filed within 90 days of a 
district court judgment (60 days until the time for appeal has lapsed plus 30 days in which to file 
the application); and within 120 days from any court of appeals' judgment (90 days until the time 
for a petition for certiorari has lapsed plus 30 days in which to file the application). 
5/ The fee arrangement the named Plaintiffs have with their attorneys is unknown to Defendants 
and thus it is not clear who is responsible for paying counsel fees or whether all the named 
Plaintiffs need submit eligibility information. Mr. Gingold and Mr. Holt initially had an 
arrangement that they would be paid $345 per hour, but this arrangement apparently ended on 
June 5, 1998. See Holt Affidavit at ¶ 22; Gingold Affidavit at ¶ 13. It is not clear who was 
responsible to pay this fee. Since June 1998, Mr. Gingold and Mr. Holt have had a contingent 
fee arrangement with Plaintiffs. See Holt Affidavit at ¶ 22; see also Plaintiffs' Memorandum of 
Supplemental Information at 4 (filed March 22, 1999) (Plaintiffs’ attorneys advised the Court 
that they have waived all "but a portion" of their hourly fees and that they plan to apply for fees 
under the "common fund" doctrine). Because this Court does not have jurisdiction to award 
damages, the creation of a “common fund” in this litigation seems impossible, absent settlement 
involving a monetary payment. Where the parties have agreed that only one of them will be 
responsible for paying the attorney in the event they should be unsuccessful in the litigation, the 
party responsible for paying the fees is the “real party in interest” with respect to fees and, thus, 
the only party whose financial eligibility is relevant. Unification Church v. INS, 762 F.2d 1077, 
1082 (D.C. Cir. 1985). 
12
Because none of the orders or judgments in this litigation is “final,” Plaintiffs’ Interim 
Petition is premature under EAJA. Defendants recognize that the Court has permitted Plaintiffs 
to file an interim EAJA application, Cobell, 319 F. Supp. 2d at 41-42, but Defendants 
respectfully submit that this was error. Many of the issues for which Plaintiffs are now claiming 
a fee award have not been finally resolved. For example, the parties are still disputing in the 
appeal of the structural injunction entered by the Court after the Phase 1.5 trial whether this case 
is solely about the accounting required under the 1994 Act or whether it is a broad "institutional 
reform" case covering virtually any trust reform matter. 
Ordinarily, whether a party has "prevailed" in litigation cannot be determined until the 
end of the lawsuit, for only then is it known whether the party has "obtain[ed] an enforceable 
judgment against the [government] . . . or comparable relief through a consent decree or 
settlement." Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citations omitted). Interim fees should 
not be awarded when the final judgment in the case may undo the very victory for which the 
party seeks attorney fees. See Grubbs v. Butz, 548 F.2d 973, 976 (D.C. Cir. 1976) (if courts 
prematurely grant interim attorney fees, “the ultimately successful party might end up having 
subsidized a large segment of the losing party’s suit”); Harmon v. United States, 101 F.3d 574, 
587 (8th Cir. 1996) ("[T]he better course is for the district court to refrain from passing on the 
question of attorney fees until the litigation is final . . . [so as to] avoid deciding an issue that may 
become moot if the government prevails on appeal."). 
It is particularly inappropriate to award interim fees in this case because some of the time 
submitted by Plaintiffs in the Interim Petition is intertwined with Phase 1.5 and even Phase 2 
matters. Many of Plaintiffs' attorneys concede the difficulty in differentiating between time spent 
13
on various phases of the case, but have submitted the time nonetheless. See Gingold Affidavit at 
¶ 4; Harper Affidavit at ¶ 8; Babby Affidavit at ¶ 5; Echohawk Affidavit at ¶ 5; Holt Affidavit at 
¶ 9 ("some time was of necessity spent in the early part of the case on matters that would later be 
identified with Phases 1.5 and 2"). 
Plaintiffs’ Interim Petition is premature. Under EAJA, the petition will not be timely 
until after final judgment has been entered, and thus should be rejected by the Court. 
PLAINTIFFS ARE NOT ENTITLED TO RECOVERY UNDER SECTION 2412(d) III. 
Even if Plaintiffs’ Interim Petition were not otherwise defective, Plaintiffs still have not 
established a right to recovery under EAJA § 2412(d). To recover under that section, after a 
party has satisfied the threshold pleading requirements, it must demonstrate that it was a 
“prevailing party.” Section 2412(d)(1)(A). If this is established, the United States then has the 
burden of showing that its position was “substantially justified.” Id. 
Moreover, as the Supreme Court has held, "[t]he EAJA renders the United States liable 
for attorney's fees for which it would not otherwise be liable, and thus amounts to a partial 
waiver of sovereign immunity. Any such waiver must be strictly construed in favor of the United 
States." Ardestani v. INS, 502 U.S. 129, 137 (1991); see also St. Louis Fuel & Supply Co. v. 
FERC, 890 F.2d 446 (D.C. Cir. 1989). 
14
A. Plaintiffs Were “Prevailing Parties” in the Phase 1 Proceeding, but Not as to 
All Claims 
Under the Supreme Court's “generous formulation” of the term, “‘plaintiffs may be 
considered “prevailing parties” for attorney fees purposes if they succeed on any significant issue 
in [the] litigation which achieves some of the benefit the parties sought in bringing suit.’” 
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 
278-79 (1st Cir. 1978)). Even where the government has been prevailed against, a prevailing 
party is not entitled to fees for unsuccessful claims that are separate and distinct from those 
claims on which the party prevailed. Hensley, 461 U.S. at 440 (“Where the plaintiff has failed to 
prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the 
unsuccessful claim should be excluded in considering the amount of a reasonable fee.”). 
For a plaintiff to qualify as a prevailing party, that plaintiff “must obtain an enforceable 
judgment against the [government] . . . or comparable relief through a consent decree or 
settlement.”6 Farrar, 506 U.S. at 111 (citation omitted). Furthermore, “[w]hatever relief the 
plaintiff secures must directly benefit him at the time of the judgment or the settlement.” Id. 
Otherwise, the judgment or settlement cannot be said to “affec[t] the behavior of the defendant 
toward the plaintiff.” Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam). 
For these reasons, a party who litigates to judgment and loses on all his claims cannot be 
a prevailing party, even if the party obtained a favorable interlocutory ruling on some evidentiary 
question or point of law. See Hewitt v. Helms, 482 U.S. 755, 760 (1987); Thomas v. Nat'l 
6/ The Supreme Court has since made clear that only settlements approved by a court qualify to 
make a party a “prevailing party.” Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t 
of Health and Human Res., 532 U.S. 598, 604 & n.7 (2001). 
15
Science Found., 330 F.3d 486, 493 (D.C. Cir. 2003); Sims v. Apfel, 238 F.3d 597, 601 (5th Cir. 
2001) (per curiam); Huey v. Sullivan, 971 F.2d 1362, 1367 (8th Cir. 1992); Escobar v. Bowen, 
857 F.2d 644, 646 (9th Cir. 1988). Under this formulation, “a technical victory may be so 
insignificant . . . as to be insufficient to support prevailing party status.” Texas State Teacher's 
Ass'n v. Garland, 489 U.S. 782, 792 (1989). 
Under the EAJA standards, Plaintiffs are probably prevailing parties for the Phase 1 trial. 
They have not, however, prevailed on all their claims. Their common law claims were 
dismissed. Cobell v. Babbitt, 91 F. Supp. 2d at 28-31. The Court's December 21, 1999 opinion 
holding that the 1994 Act requires Interior to provide an accurate accounting of all money in the 
IIM trust accounts held for the benefit of Plaintiffs was largely affirmed on appeal, Cobell, 240 
F.3d 1081, but the Court of Appeals explained that the only actionable breach of duty was the 
failure to produce an accounting. The Court's declared breaches of trust obligations with respect 
to a variety of other matters, including staffing and computer support, 91 F. Supp. 2d at 48-49, 
were not affirmed on appeal. Indeed, the D.C. Circuit required the Court to amend its order to 
the extent that it had held that operations that may have an effect on an accounting constituted 
breaches of an enforceable duty. Cobell, 240 F.3d at 1106. 
Based upon the opinions and structural injunction issued by the Court after the Phase 1.5 
trial, it appears that the Court disagrees with Defendants about the proper scope of this case. The 
Court obviously views this as an "institutional reform" case involving trust matters well beyond 
the provision of an accounting. Defendants do not expect to persuade the Court that its view is 
wrong in this Opposition. Rather, Defendants only want the record to be clear that, while 
Plaintiffs have included extensive discussion in their Interim Petition about alleged 
16
mismanagement of the IIM trust and alleged breaches of trust duties, the issue of whether these 
topics are properly the subject of this case is being vigorously disputed in the current appeal and 
has not been finally resolved for purposes of an EAJA evaluation. 
Defendants' Positions Were Substantially Justified B. 
EAJA does not provide for attorney fees, even to prevailing parties, if “the court finds 
that 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). EAJA does not define the term 
“substantially justified.” In Pierce v. Underwood, 487 U.S. 552, 565 (1988), however, the 
Supreme Court explained that “substantially justified” does not mean “‘justified to a high 
degree,’ but rather ‘justified in substance or in the main’ – that is, justified to a degree that could 
satisfy a reasonable person.” Id. at 565. The government bears the burden of showing that its 
position was substantially justified. Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 
(3d Cir. 1993). 
In Commissioner, INS v. Jean, 496 U.S. 154 (1990), the Supreme Court held that 
“[w]hile the parties' postures on individual matters may be more or less justified, the EAJA – like 
other fee-shifting statutes – favors treating a case as an inclusive whole, rather than as atomized 
line-items.” Id. at 161-62. Both the underlying agency conduct as well as the agency's litigation 
position must be considered. 28 U.S.C. § 2412(d)(2)(D). See also Aguilar-Ayala v. Ruiz, 973 
F.2d 411, 416 (5th Cir. 1992). But, as Jean emphasizes, only a single substantial justification 
inquiry is made, looking at the case as a whole. See United States v. Rubin, 97 F.3d 373, 375 
(9th Cir. 1996) (recognizing Jean’s statement that EAJA favors treating case as an inclusive 
whole for substantial justification inquiry); Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 
17
139 (4th Cir.) (“when determining whether the government’s position in a case is substantially 
justified, we look beyond the issue on which the petitioner prevailed to determine, from the 
totality of circumstances, whether the government acted reasonably in causing the litigation or in 
taking a stance during the litigation”). 
The question whether the government’s position was substantially justified is analytically 
distinct from whether its merits position was right or wrong. That the government lost at trial or 
on appeal cannot raise the presumption that its position was not substantially justified. See H.R. 
Rep. No. 96-1418, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4989-90; see also Cooper 
v. United States R.R. Ret. Bd., 24 F.3d 1414, 1416 (D.C. Cir. 1994) (the inquiry into the 
reasonableness of the government’s position under EAJA “may not be collapsed into our 
antecedent evaluation of the merits, for EAJA sets forth a ‘distinct legal standard’”) (quoting 
FEC v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986)). Thus, “because ‘unreasonable’ may have 
different meanings in different contexts, even the presence of that term or one of its synonyms in 
the merits decision does not necessarily suggest that the Government will have a difficult time 
establishing that its position was substantially justified.” F.J. Vollmer Co. v. Magaw, 102 F.3d 
591, 595 (D.C. Cir. 1996); see also United States v. $19,047.00 in U.S. Currency, 95 F.3d 248, 
251-52 (2d Cir. 1996) (explaining why search found unreasonable under Fourth Amendment may 
be reasonable for EAJA purposes); Lousiana, ex rel. Guste v. Lee, 853 F.2d 1219, 1222 (5th Cir. 
1988) (quoting Griffon v. HHS, 832 F.2d 51, 52 (5th Cir. 1987)) (“a finding of unreasonable 
governmental action is not ‘conclusive on the substantial justification issue, else in this class of 
case the substantial justification issue would always simply merge with the decision on the 
18
merits’”); Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir. 1988) (in the EAJA context, “arbitrary 
and capricious conduct is not per se unreasonable”). 
Plaintiffs' assessment of the government's position focuses almost exclusively on the trust 
management failures and claimed breaches of fiduciary duties over the years. Interim Petition at 
10-12. As discussed above, the issue of whether these matters are properly a part of this case has 
not yet been finally resolved. For purposes of this interim EAJA application, the only relevant 
consideration is whether the government's positions on the duty to render an accounting were 
substantially justified. 
On this accounting issue, Plaintiffs have mischaracterized the government's position. 
They claim that "the government took the position during the entire Phase 1.0 proceeding that the 
United States does not owe a duty to account to individual Indian trust beneficiaries." Interim 
Petition at 11. The government has disputed the source of the accounting duty, its scope, and its 
enforceability. Defendants raised defenses, including sovereign immunity, and asserted that the 
Court's jurisdiction was limited by the APA. Defendants did not claim, however, that no 
accounting duty was owed to the IIM beneficiaries. 
Although the government did not prevail at the Phase 1 trial, the greatest indicator that its 
position was nonetheless substantially justified is that the Court certified its December 21, 1999 
order for interlocutory appeal. Cobell, 91 F. Supp. 2d at 57, 59 (citing 28 U.S.C. § 1292(b) 
(2000)). Relying on the standards set out in 28 U.S.C. § 1292(b), this Court found "that this 
order involves controlling questions of law as to which there is substantial ground for difference 
of opinion . . . ." Cobell, 91 F. Supp. 2d at 57. Under the Supreme Court's "reasonableness" 
standard, see Pierce, 487 U.S. at 565-66, it is difficult to imagine how the government's position 
19
was not "justified to a degree that could satisfy a reasonable person," id. at 565, when the Court 
certified its Order for appeal because of the "substantial ground for difference of opinion" 
regarding "controlling questions of law" contained in that Order. 
The Court's Phase 1 opinion also contains other indicia of the reasonableness of the 
government's position. For example, both agency Defendants agreed to many factual stipulations 
prior to trial. Cobell, 91 F. Supp. 2d at 33-34 (e.g., "Interior has made significant concessions 
. . . ."). Even when the Court criticized Interior's positions, it did not do so in language that 
would lead a reasonable person to believe that Interior's positions were not substantially justified. 
For example, the Court stated, "Defendants' position that the court should simply allow them to 
carry out their duties under the same supervision that has brought them to this point cannot 
prevail." Id. at 53. Such language is quite different from cases where courts have found the 
government's position not to be substantially justified. See, e.g., Halverson v. Slater, 206 F.3d 
1205, 1212 (D.C. Cir. 2000) (citing "[Defendant's] failure to offer any convincing reasons for 
believing that its interpretation of [a regulation] was substantially justified."); F.J. Vollmer, 102 
F.3d at 593 ("[A]gency's position was not substantially justified because it was wholly 
unsupported by the text, legislative history, and underlying policy of the governing statute."); 
Cooper, 24 F.3d at 1417 (Government "wholly lacked a reasonable factual basis for its 
conclusion" and "nothing in the record" supported its position.); Wilkett v. I.C.C., 844 F.2d 867, 
872 (D.C. Cir. 1988) (describing government's position "not only as 'misdirected,' but as 
positively 'unreasonable'" and holding that "no adequate explanation was possible."). While this 
20
Court did use some strong language in ruling against Interior,7 such language does not rise to the 
level of "no adequate explanation possible" language seen elsewhere in this Circuit. 
Likewise, the D.C. Circuit's Phase 1 opinion contains indicia of the reasonableness of the 
government's position. For example, the court acknowledged Interior's concessions on legal as 
well as factual matters at the trial level. Cobell, 240 F.3d at 1090. The court also agreed with the 
government's trial argument that "an on-going program or policy is not, in itself, a 'final agency 
action' under the APA."8 Id. at 1095 (citation omitted). The court also referred to the 
government's arguments regarding excessive interference in the executive's ministerial functions 
as "sound legal principles," id. at 1109, and acknowledged that "[t]he level of oversight proposed 
by the district court may well be in excess of that countenanced in the typical delay case . . . ."9 
Id. In concluding, the court noted that "supervision of the Department's conduct in preparing an 
accounting may well be beyond the district court's jurisdiction" and that "the district court may 
have mischaracterized some of the government's specific obligations . . . ." Id. at 1110. 
In short, the circuit court "generally" affirmed the Court's judgment and order while 
"order[ing] the district court to modify the characterization of some of its findings . . . ." Id. at 
7/ Cobell, 91 F. Supp. 2d at 41 (The "court can see no basis for inferring any such limitation [on 
Interior's interpretation of "all funds."]); id. at 45 (Interior's "misunderstanding" of the Special 
Trustee's timetable renders it "irrelevant and useless" and is thus "disingenuous."); id. at 48 
("[C]ertain basic mechanical functions" are not "complex."); id. at 54 ("[D]efendants have the 
type of historical record of recalcitrance that troubles the court."). 
8/ The court found, however, that the trial court nonetheless had jurisdiction under an 
"unreasonable delay" theory. Cobell, 240 F.3d at 1095-96. 
9/ The court "excuse[d] court oversight that might be excessive in an ordinary case" because of 
the "magnitude of government malfeasance and potential prejudice to the plaintiffs' class." Id. at 
1109. 
21
1086. Even more than this Court's opinion, the circuit court's opinion thus leads to the 
conclusion that the government's position at Phase 1 was “'justified in substance or in the main' – 
that is, justified to a degree that could satisfy a reasonable person." Pierce, 487 U.S. at 565. 
Therefore, Plaintiffs cannot collect attorney fees for Phase 1 because the government's position in 
Phase 1 was substantially justified. 
PLAINTIFFS ARE NOT ENTITLED TO RECOVERY UNDER SECTION 2412(b) IV. 
In addition to providing for fees at a capped rate pursuant to 28 U.S.C. § 2412(d)(1)(A), 
EAJA also contains a lesser waiver of sovereign immunity in § 2412(b), which makes the United 
States "liable for such fees and expenses to the same extent that any other party would be liable 
under the common law or under the terms of any statute which specifically provides for such an 
award." 28 U.S.C. § 2412(b). The common law "American rule" – a party is normally 
responsible for its own attorney fees – contains a bad faith exception that permits fee-shifting to 
deter conduct related to abuse of process “where an action has been commenced or conducted ‘in 
bad faith, vexatiously, wantonly or for oppressive reasons.’” Nemeroff v. Abelson, 620 F.2d 
339, 348 (2d Cir. 1980). The “bad faith” theory allows an award where a party has willfully 
disobeyed a court order, or has acted in bad faith, vexatiously, wantonly or for oppressive 
reasons. Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991); Aleyeska Pipeline Co. v. 
Wilderness Soc’y, 421 U.S. 240, 258-59 (1975); Kerin v. United States Postal Serv., 218 F.3d 
185, 190 (2d Cir. 2000). 
In this case, were the Court to find that Defendants' position in defending the litigation 
was not substantially justified, Plaintiffs' attorney fees should be limited to the EAJA capped 
rates because they have failed to establish any bad faith that would entitle them to enhanced rates. 
22
Plaintiffs have not presented any evidence that clearly and convincingly establishes that 
Defendants acted "in bad faith, vexatiously, wantonly or for oppressive reasons." Chambers, 501 
U.S. at 45-46. Instead, they make unfounded accusations that fail to meet the stringent burden of 
proof required for recovery of fees on that basis. 
The substantive standard for a finding of bad faith is “stringent” and “attorneys’ fees will 
be awarded only when extraordinary circumstances or dominating reasons of fairness so 
demand.” Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 187 F.3d 655, 660 (D.C. Cir. 
1999). A finding of bad faith must be supported by “‘clear and convincing evidence,’” which 
“‘generally requires the trier of fact, in viewing each party’s pile of evidence, to reach a firm 
conviction of the truth on the evidence about which he or she is certain.’” Id. (quoting United 
States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir.1994)). And if the court concludes that a party 
has litigated in bad faith, the court must provide detailed factual findings to explain its reasoning. 
Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 21 (2d Cir. 1996); see 
also Kerin, 218 F.3d at 191 (“fee awards under the bad faith exception must be supported by 
‘clear evidence,’ and . . . the factual findings of the court below must exhibit a ‘high degree of 
specificity’”) (emphasis in original) (citation omitted). The reason for such a stringent standard 
is that the underlying rationale of fee shifting upon a showing of bad faith is punishment of the 
wrongdoer rather than compensation of the victim. Nepera Chem., Inc. v. Sea-Land Serv., Inc., 
794 F.2d 688, 702 (D.C. Cir. 1986). 
"Bad faith can support an award of attorneys' fees in circumstances where the bad faith 
(1) occurred in connection with the litigation, or (2) was an aspect of the conduct giving rise to 
the litigation." Am. Hosp. Ass'n v. Sullivan, 938 F.2d 216, 219 (D.C. Cir. 1991). Bad faith in 
23
conduct giving rise to the lawsuit "may be found where 'a party confronted with a clear statutory 
or judicially-imposed duty towards another, is so recalcitrant in performing that duty that the 
injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal 
rights.'" Id. at 220 (quoting Fitzgerald v. Hampton, 545 F. Supp. 53, 57 (D.D.C. 1982). 
However, pre-litigation conduct alone may not be the sole basis for a fee award resulting from a 
finding of bad faith. Kerin, 218 F.3d at 195 (“[w]hile bad faith fees may not be awarded solely 
on the basis of prelitigation business conduct, district courts may properly consider such conduct 
in making a determination that there was bad faith sufficient to justify a fee award”); Lamb Eng'r 
& Constr. Co. v. Nebraska Pub. Power Dist., 103 F.3d 1422, 1435 (8th Cir. 1997) (court 
evaluating a fee award for bad faith conduct “may consider conduct both during and prior to the 
litigation, but it may not base an award solely on the conduct that led to the substantive claim”); 
Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 767 (10th Cir. 1997); Perales v. Casillas, 950 
F.2d 1066, 1071 (5th Cir. 1992); Ass'n of Flight Attendants v. Horizon Air Indus., Inc., 976 F.2d 
541, 548-50 (9th Cir. 1992); Shimman v. Int'l Union of Operating Eng'rs, Local 18, 744 F.2d 
1226, 1233 (6th Cir. 1984). 
A finding of bad faith requires a determination that the government both (1) pursued 
claims that were “entirely without color,” and (2) was motivated by an “improper purpose,” such 
as harassment or delay, in making the claims. Wells v. Bowen, 855 F.2d 37, 46 (2d Cir. 1988). 
The test for bad faith is “conjunctive and neither meritlessness alone nor improper purpose alone 
will suffice.”10 Id. An improper purpose cannot be solely based on a party's colorless or 
10/ A claim is “meritless” if it is “entirely without color.” Kerin, 218 F.3d at 190 n.2. “A claim is 
colorable, for the purpose of the bad faith exception, when it has some legal and factual support, 
considered in light of the reasonable beliefs of the individual making the claim. The question is 
24
frivolous position because to do so erroneously transforms the two-part test into a one-part test. 
Sierra Club v. United States Army Corps of Eng'rs, 776 F.2d 383, 391 (2d Cir. 1985) (reversing 
finding of bad faith where district court concluded improper purpose from its determination that 
defendant's position was colorless). Thus, a pattern of "bureaucratic bungling" and improper 
legal assessments does not amount to bad faith, in the absence of additional evidence of 
vexatious, wanton, or oppressive motives on the part of the government. See United States v. 
Waksberg, 942 F. Supp. 40, 43 (D.D.C. 1996) (government action to enforce settlement 
agreement, although not substantially justified, was the result of "bureaucratic bungling" and an 
improper legal assessment of the agreement, rather than bad faith). 
Moreover, to the extent any bad faith is found to have occurred, “[o]nly those [bad faith] 
fees attributable to the offensive conduct can be awarded.” Ostano Commerzanstalt v. Telewide 
Sys., Inc., 880 F.2d 642, 650 (2d Cir. 1989). Therefore, the district court should apportion the 
bad faith fee award to cover only that segment of the litigation where the government acted in 
bad faith. See Kerin, 218 F.3d at 192 (“[t]he amount of bad faith fees awarded is a function of 
the attorneys’ fees attributable to the offensive conduct in question”); Sierra Club, 776 F.2d at 
389 ("[W]e require that the award be limited to those expenses necessary to counter the losing 
party's bad faith."). 
Plaintiffs allege bad faith by Defendants both before the suit was filed and during the 
litigation itself. They fail to make the requisite showing of bad faith necessary for an award of 
fees calculated above the EAJA-capped rates. Nowhere in their Interim Petition do they point to 
whether a reasonable attorney could have concluded that facts supporting the claim might be 
established, not whether such facts actually had been established.” Id. (emphasis in original) 
(citations omitted). 
25
clear and convincing evidence that any of the conduct they describe, to the extent it occurred, 
was the result of bad faith.11 In addition, they improperly seek to recover fees at enhanced rates 
for the entire time period covered by their Petition, regardless of whether such time was spent in 
countering alleged bad faith. 
Defendants Did Not Engage in Pre-litigation Bad Faith A. 
As with the "substantial justification" assessment, Plaintiffs' pre-litigation claims of bad 
faith focus almost exclusively on their claims of trust mismanagement and supposed breaches of 
various trust duties. Interim Petition at 15-20. It can only be an understatement to concede that 
management of the IIM trust over its first hundred years will not be featured in any textbook as 
the model for efficient trust management. Indeed, most of the "evidence" for mismanagement 
relied upon by Plaintiffs comes from reports prepared by the government itself throughout the 
years. The IIM trust beneficiaries deserved better trust services than they received. But a 
lawsuit, especially one against the United States, is more than a question of simply asking for 
what one deserves. Not all injustices can be remedied in all courts; not all claims for better 
11/ Many of the misconduct allegations included in the Interim Petition overlap with the claims 
made by Plaintiffs in their contempt claims against the many non-party individuals. It is 
unknown how much of the fees and expenses in this Petition were actually incurred in 
prosecuting those baseless contempt claims, but those fees cannot be recovered under EAJA. 
Plaintiffs have not prevailed in any of these proceedings and, under EAJA, Plaintiffs are only 
entitled to recover fees in a “civil action,” not a criminal proceeding. Moreover, to the extent 
that the contempt claims were brought against defendants in their individual, as opposed to their 
official capacity, no EAJA fees may be recovered. See 28 U.S.C. §2412(d)(1)(A) (civil actions 
“brought by or against the United States”); § 2412(b) (civil suits “brought by or against the 
United States or any agency or any official of the United States acting in his or her official 
capacity”). As the Supreme Court has explained, “[a] victory in a personal-capacity [suit] is a 
victory against the individual defendant, rather than against the entity that employs him.” 
Kentucky v. Graham, 473 U.S. 159, 167-68 (1985). As a consequence, neither § 2412(b) nor 
§ 2412(d) authorizes an award of attorney fees against the United States in personal capacity 
suits. See Kreines v. United States, 33 F.3d 1105, 1109 (9th Cir. 1994). 
26
treatment are enforceable. Plaintiffs must fit their pleas into legally cognizable, judicially 
enforceable claims. 
When suing the United States, part of this calculus depends upon where the suit is 
launched. Suits filed in United States district courts by law deprive the court of jurisdiction over 
certain claims. For example, Plaintiffs' attorneys could have filed a suit in the Court of Federal 
Claims for damages for mismanagement of the IIM trust, or for breach of trust duties. Instead, 
they elected to file the current suit. The Court of Appeals has explained that the only actionable 
duty in this case is the duty to provide an accounting. 
Defendants may have had other trust duties apart from providing an accounting, but 
failure to fulfill those duties is not part of this case and thus cannot support a claim of prelitigation 
bad faith. This case is not about whether Interior or Treasury had appropriate trust 
architecture systems over the years, or appropriate IT security, or appropriate computer systems, 
or the appropriate record-keeping systems, or the countless other areas of trust management 
where Plaintiffs claim the government failed in its trust responsibilities. 
To be sure, Plaintiffs have also alleged that the failure to conduct an accounting by June 
1996, when they filed suit, was also evidence of bad faith. Interim Petition at 15. Although the 
Court of Appeals has recognized that a duty to account existed before the 1994 Act was passed, it 
never suggested that such a preexisting duty was independently enforceable. Morever, there is no 
evidence that before 1994 the government had an obligation to provide an accounting unless 
asked by a beneficiary. Plaintiffs have produced no evidence that an IIM beneficiary requested 
an accounting and the request was denied in bad faith. 
27
After 1994, an enforceable duty to provide such an accounting to all IIM beneficiaries 
existed, even in the absence of a request. The Court of Appeals has found that the failure to 
provide the accounting required by the 1994 Act constituted unreasonable delay for purposes of 
jurisdiction under the APA, but unreasonable delay is not the equivalent of bad faith. Given the 
massive effort in time and money involved in providing the accounting required by the 1994 Act 
– money that can only be spent if appropriated by Congress – it is difficult to comprehend how it 
could be bad faith, within the meaning of EAJA, that such an accounting was not accomplished 
before June 1996 when this lawsuit was initiated. 
Defendants Did Not Conduct the Litigation in Bad Faith B. 
Even if the Court believes that the failure to provide the accounting required by the 1994 
Act prior to commencement of this suit was a result of bad faith by the government, pre-litigation 
conduct alone cannot support a finding of bad faith for purposes of § 2412(b). See Kerin, 218 
F.3d at 195 (“[w]hile bad faith fees may not be awarded solely on the basis of prelitigation 
business conduct, district courts may properly consider such conduct in making a determination 
that there was bad faith sufficient to justify a fee award”); Lamb Eng'r, 103 F.3d at 1435 (court 
evaluating a fee award for bad faith conduct “may consider conduct both during and prior to the 
litigation, but it may not base an award solely on the conduct that led to the substantive claim”); 
Towerridge, 111 F.3d at 767; Perales, 950 F.2d at 1071; Horizon Air Indus., 976 F.2d 541 at 
548-50; Shimman, 744 F.2d at 1233. Plaintiffs thus also allege that the United States has 
conducted the litigation in bad faith. Interim Petition at 20. 
The "foundational" positions of Defendants do not constitute bad faith 1. 
28
Plaintiffs begin by claiming that the "foundational positions" taken by the United States 
during the litigation can support a finding of bad faith under EAJA. Interim Petition at 21. 
Plaintiffs cite no case law in support of this novel position. Indeed, they recognize that EAJA 
law only permits the recovery of the fees and expenses incurred as a result of specific instances 
of bad faith conduct. See Interim Petition at 21. 
Moreover, they do not identify which "foundational" positions of the government they 
believe qualify as bad faith under this novel standard. The United States has certain defenses, 
such as sovereign immunity, unavailable to an ordinary defendant or trustee. Similarly, 
jurisdiction over certain claims against the United States cannot be asserted in all courts. If 
Plaintiffs are contending that it was "foundational" bad faith for the United States to assert 
certain defenses and raise questions about the enforceability of certain of their claims, they have 
cited no case law to support their contention. As discussed above in the evaluation of whether 
the positions of the United States were substantially justified, the best evidence that the 
"foundational" positions asserted by Defendants during the Phase 1 proceedings were not bad 
faith is the Court's decision to certify its decision in Phase 1 for interlocutory appeal.12 
Defendants' positions regarding the jurisdiction of the Court, the sovereign immunity of 
the United States, the source and scope of the accounting duty, and the ability of Plaintiffs to 
obtain judicial relief were not bad faith positions. Indeed, Defendants succeeded on some of 
12/ Although not relevant to their EAJA claims, in the Interim Petition Plaintiffs allege that IIM 
trust beneficiaries, "including tens of thousands of children, the elderly, and the infirm" have 
been "deprived of their property, their funds, their assets and thus are unable to obtain adequate 
shelter, food, clothing, health care, and education" as a result of the "bad faith defense mounted 
by defendants and their counsel." Interim Petition at 25. This horrible accusation, which has 
become commonplace by Plaintiffs, is not supported by a shred of evidence from this litigation, 
or otherwise, and is vehemently denied by the United States. 
29
their positions during the Phase 1 proceeding: Plaintiffs' common law claims were dismissed 
and the Court of Appeals agreed that the only actionable claim was for an accounting. Some of 
the positions asserted by the United States were determined to be wrong in the Court's Phase 1 
decision and in the Court of Appeals affirming opinion. Other positions have not yet been 
decided. None was adopted or asserted in bad faith. 
Plaintiffs' Interim Petition is replete with general, unsupported allegations of 
"malfeasance" and "misconduct" during the litigation. Shorn of these types of generalized 
allegations of bad faith that cannot qualify Plaintiffs for an award under § 2412(b), Plaintiffs 
have identified several instances of specific activity which they believe constitute bad faith 
misconduct during the litigation. These allegations fit into three categories: 1) activity which 
has already been the subject of a contempt trial; 2) activity which occurred during settlement or 
mediation talks; 3) activity which occurred as part of the Phase 1 proceedings. The alleged 
activity in the first two categories cannot form the basis of a bad faith fee award as a matter of 
law. The alleged activity in the third category does not constitute bad faith as a matter of fact and 
law. 
The Contempt II allegations do not constitute bad faith 2. 
The vast majority of the conduct identified as bad faith in the Interim Petition involves 
precisely the same allegations that were the subject of the Contempt II trial. Indeed, much of the 
discussion in the Interim Petition on these topics was lifted verbatim from Plaintiffs' Motion To 
Reopen Trial One in This Action (filed November 30, 2000). The same so-called chronological 
"factual" appendix attached to that motion has been attached to the Interim Petition. As the 
Court will recall, the Motion To Reopen Trial One was amended by Plaintiffs on October 19, 
30
2001, and consolidated with a Motion to Show Cause.13 This consolidated amended motion, 
which contained precisely the same allegations as in the original Motion, with a few additional 
charges added, resulted in the Contempt II trial. 
The Court is thus familiar with all of the allegations in the Interim Petition related to the 
testimony at the Phase 1 trial and the subsequent reporting to the Court in the Quarterly Reports 
regarding: TAAMS systems "architecture," Interim Petition at 35-36, 46-47, 61-65, the TAAMS 
"implementation schedule," id. at 36, 56-59, 60-61, the "Independent Verification and 
Validation" of TAAMS, id. at 36, 46, 65-67, the "interface" between TAAMS and TFAS, id. at 
37, 46-47, 61-65 the "functionality" of TAAMS, id., the "TAAMS works" testimony, id. at 43- 
45, 52-56, TAAMS as a "COTS" system, id. at 45-46; BIA "Data Cleanup," id. at 47-48, 69-70, 
the "Probate Backlog," id. at 49, the "user acceptance" of TAAMS, id. at 49–50, the definition of 
"deployment" of TAAMS, id. at 50, 59-60. 
Plaintiffs' tedious and repetitive discourse on these claims in the Interim Petition (the 
redundant discussions on these topics consumes almost forty of the eighty pages of text in their 
Interim Petition) does not obscure the fact that these allegations were the genesis for the 
specifications at the Contempt II trial.14 The Court heard testimony and received exhibits on all 
of these claims. The Court's September 17, 2002 opinion discusses each of these allegations in 
13/ This amended Motion to Reopen included heavy reliance upon the reports of the Court 
Monitor, who has since been disqualified. 
14/ Mr. Brown even concedes that much of the time related to Contempt II and Trial 1.5 "can be 
viewed as part of the effort to prove or confirm defendants' misrepresentations to this Court in 
Trial 1 and the Quarterly Reports." Declaration of Mark Brown at ¶ 6. 
31
considerable detail. See 226 F. Supp. 2d at 46-100, 122-127. The Court agreed with Plaintiffs in 
its Contempt II opinion that the conduct on these topics alleged by Plaintiffs was contumacious. 
These allegations cannot support a claim of bad faith in the Interim Petition, however, 
because the Court's opinion and finding of misconduct on these matters were overturned on 
appeal. See Cobell v. Norton, 334 F. 3d at 1150. Indeed, the Interim Petition now marks the 
third time that Plaintiffs have tried to collect fees for the very same conduct. The fees incurred 
"as a result of the defendants' contumacious conduct" were awarded to Plaintiffs in the 
September 17, 2002 Contempt II opinion. That award was overturned on appeal when the D.C. 
Circuit vacated the Court's opinion. Plaintiffs then filed a Request for Award of Attorney's Fees 
and Related Expenses Based Upon Findings Establishing Defendants' Litigation Misconduct 
(filed November 26, 2003). In denying that motion on May 27, 2004, the Court explained that 
"[t]he Court's finding of misconduct was tied directly to those five counts which the Circuit 
overturned and for which the Circuit explicitly denied Plaintiffs the right to collect fees." 319 F. 
Supp. 2d at 40. 
Perhaps Plaintiffs should be singled out for their persistence and creativity in their efforts 
to recover the fees related to these allegations. As this Court and the Court of Appeals have 
already ruled, however, they cannot be awarded these fees. 
Moreover, although not articulated as such in the Interim Petition, it is possible that 
Plaintiffs have included these allegations in their Interim Petition because they believe that even 
if the fees related to these issues cannot be recovered, the alleged misconduct constitutes 
sufficient bad faith to permit an uncapped § 2412(b) EAJA award of other, unrelated fees. If this 
is Plaintiffs' position, they are mistaken. To the extent any bad faith is found to have occurred, 
32
“only those [bad faith] fees attributable to the offensive conduct can be awarded.” Ostano 
Commerzanstalt, 880 F.2d at 650; see also Kerin, 218 F.3d at 192 (“[t]he amount of bad faith 
fees awarded is a function of the attorneys’ fees attributable to the offensive conduct in 
question”); Sierra Club, 776 F.2d at 389 ("[W]e require that the award be limited to those 
expenses necessary to counter the losing party's bad faith."). 
The settlement and mediation allegations do not constitute bad faith 3. 
The Interim Petition also seeks recovery of fees and expenses incurred in various 
settlement and mediation efforts. Although the body of the Interim Petition contains no 
discussion of the content or nature of the settlement and mediation talks, several of the 
supporting affidavits include allegations that Defendants conducted these talks in bad faith.15 
Many of Plaintiffs' attorneys claim that the mediation efforts in 1999 and the 2001 
settlement talks were conducted in bad faith. See Gingold Affidavit at ¶ 14; Harper Affidavit at 
6-7 n.1; Babby Affidavit at 5 n.1; Echohawk Affidavit at 5 n.1.16 One of their non-attorney 
assistants, Geoffrey Rempel, also asserts bad faith by Defendants during the 2001 settlement 
negotiations, which he labels as "bogus." Rempel Affidavit at ¶ 16 (August 16, 2004). He 
further claims that the government "coerced plaintiffs into settlement discussions to improperly 
procure plaintiffs' experts' workproduct [sic]," upon which the government allegedly "promptly 
15/ Plaintiffs seek market rates for their settlement and mediation time, another indicator that they 
believe these talks were conducted in bad faith. 
16/ The Court's October 14, 1999 Order required that the substance – and information related to 
the substance – of the mediation efforts remain confidential. October 14, 1999 Order at 2-4; see 
also December 21, 1999 Order at 1 ("the requirements of confidentiality . . . shall remain in full 
force and effect"). Mr. Gingold, Mr. Harper, Ms. Babby, and Mr. Echohawk have violated that 
Order. 
33
ceased those negotiations." Id.17 Aside from the failure of the term "bogus" to constitute 
evidence, Mr. Rempel cites no support for these reckless assertions, nor is any to be found in his 
time records that he indicates relate to settlement negotiations, id. at 26-28, Schedule E 
(September 6, 2000 to December 11, 2000). 
As discussed below in Section V, the fees and expenses of unsuccessful settlement and 
mediation talks are not compensable in an EAJA application. However, the allegations of bad 
faith during these talks cannot go unchallenged. Defendants unequivocally deny that any of the 
settlement and mediation efforts in this litigation were conducted in bad faith by Defendants. 
Should the Court consider it necessary for Defendants to counteract Plaintiffs' vague and 
unsubstantiated claims – and is willing to modify its October 14, 1999 Order requiring 
confidentiality – Defendants are prepared to submit affidavits from individuals who were actively 
involved in the relevant settlement and mediation efforts to disprove Plaintiffs' claims. 
In the meantime, Plaintiffs' vague claims do not satisfy the "stringent" standards for 
showing bad faith. The allegations regarding the settlement and mediation talks cannot support a 
finding of bad faith. 
4. Destruction of documents at the Treasury Hyattsville facility does not 
constitute bad faith 
Plaintiffs claim that the destruction of 162 boxes of documents maintained at Treasury's 
Financial Management Service ("FMS") facility in Hyattsville, Maryland, from November 1998 
until January 1999, also constitutes bad faith by Defendants. Interim Petition at 26-29. They rely 
17/ Plaintiffs' "workproduct" apparently refers to their revenue model – rejected by the Court as a 
substitute for an historical accounting in its Phase 1.5 opinion – which was not provided to 
Defendants until late 2001, well after the February 28, 2001 cut-off date chosen by Plaintiffs for 
this petition. 
34
heavily upon the findings in the December 3, 1999 Report and Recommendation of the former 
Special Master. The Special Master, in turn, relied upon the results of the thorough and detailed 
investigation of the matter that was conducted by the government and transmitted to the Special 
Master on June 3, 1999. Contrary to the claims from the Interim Petition, the report from the 
Special Master showed that the destruction of documents potentially relevant to the IIM trust at 
the Hyattsville facility was not done intentionally. As soon as it was discovered that potentially 
relevant documents were being destroyed, the FMS employees immediately stopped the 
destruction and ordered a review of the remaining 245 boxes of documents housed at the facility 
to determine potential relevance to the IIM trust. 
The Special Master did not conclude that the documents were destroyed as a result of any 
bad faith by Defendants or their employees. The Special Master questioned why it took three 
months for the Court (and for counsel from the Department of Justice representing Treasury) to 
learn of the destruction from Treasury, but he concluded that the delay was largely a result of 
institutional communication problems. Report & Recommendation at 99-107. He recommended 
that procedures be implemented to minimize the risk of inadvertent destruction. Report & 
Recommendation at 121. The Department of Justice and Treasury concurred with the Special 
Master's recommendation and instituted changes. See, e.g., Report of the United States on 
Corrective Measures (January 18, 2000); Corrected Supplemental Report (January 21, 2000); 
Second Supplemental Report (February 25, 2000). 
There is also no evidence of actual – or even potential – prejudice suffered by Plaintiffs, 
at least with respect to any matters at issue in the Phase 1 proceeding – which is obviously the 
subject of this interim EAJA application. In denying Plaintiffs' motion to reopen the Phase 1 trial 
35
record to include the Special Master's December 3, 1999 Report, the Court concluded that even if 
relevant, it was cumulative of other evidence and thus denied the motion. Order of December 21, 
1999 at 1-2. The records destroyed at the FMS Hyattsville facility were historical documents 
related to disbursements made by various federal agencies from the beginning of the twentieth 
century until approximately 1958. Report and Recommendation at 1-2. To the extent that any of 
the destroyed documents were related to the IIM trust, the only possible relevance they would 
have in this litigation would be to Phase 2 issues in demonstrating that disbursements indicated 
in an accounting were actually made. 
Plaintiffs have not met their "stringent" burden of proof. They have not demonstrated any 
bad faith by any employee or Defendant in this matter. They may not recover enhanced fees. 
5. Document retention problems identified in the Special Master Site Visit 
Reports do not constitute bad faith 
Plaintiffs also allege that the document retention issues identified in four Site Visit 
Reports from former Special Master Balaran constitute litigation misconduct.18 Interim Petition 
at 29-31. Plaintiffs are unable to identify any evidence of bad faith by Defendants. The Special 
Master identified mistakes and poor conditions at several Interior facilities where IIM records 
were housed, but these problems were the result of inadequate resources, mistakes, or simple 
"bureaucratic bungling," see Waksberg, 942 F. Supp. at 43, rather than any bad faith by 
Defendants. 
Moreover, these document retention issues are related to general trust management 
activities, not issues that were properly part of the Phase 1 proceeding. Indeed, the propriety of 
18/ The Special Master's Fourth Site Visit Report was issued in November 29, 2000, well outside 
the scope of this interim EAJA application. 
36
these kinds of monitoring activities was questioned by the Court of Appeals when it disqualified 
Special Master-Monitor Kieffer. See Cobell v. Norton, 334 F. 3d 1128, 1142-1144 (D.C. Cir. 
2003). Record-keeping failures by Defendants do not constitute litigation misconduct.19 They 
cannot support an enhancement of fees under EAJA. 
6. Sanctions imposed for January 21, 2000 Motion for Protective Order filed by 
Defendants do not constitute bad faith 
Relying on a Report and Recommendation of the Special Master, Plaintiffs claim that 
Defendants acted in bad faith in filing a Motion for Protective Order on January 21, 2000. 
Interim Petition at 32-33. The Special Master concluded that three of the four arguments 
advanced by Defendants in support of the motion were not "substantially justified" and thus, 
pursuant to Federal Rule of Civil Procedure 37, he recommended that Defendants should pay 
75% of the fees incurred by Plaintiffs in responding to the motion. Over the objections of 
Defendants, the Court adopted the recommendation of the Special Master and imposed sanctions 
on Defendants. See Order of November 12, 2002. 
Defendants continue to maintain that the Special Master and the Court were mistaken in 
this matter and that the arguments presented by Defendants in their Motion were substantially 
justified. But for purposes of the Interim Petition, the appropriateness of the Court's Order is 
beside the point. Plaintiffs have already been awarded all reasonable fees incurred in responding 
to this matter and they cannot get an award of additional fees in the Interim Petition.20 
19/ It is also inappropriate, at least at this time, to rely upon the reports of Special Master Balaran. 
Although he has resigned, the Court of Appeals has not yet decided whether it will rule upon 
Defendants' bias claims against him. 
20/ In addition, Defendant's Motion was not filed until after the Phase 1 proceeding was over. 
This matter is thus outside the scope of this interim EAJA application. 
37
Overwriting of Email backup tapes at Interior does not constitute bad faith 7. 
As part of their "evidence" of "bad faith," Plaintiffs rehash the same specious arguments 
they have made over and over again regarding the issue of overwriting of backup tapes of 
Solicitor's Office emails. Interim Petition at 39-44. This issue was the subject of a motion for 
civil and criminal contempt, filed March 20, 2002, against seven current and former government 
employees in their official and personal capacities. Both the government and the individuals 
responded to that motion, pointing out that no evidence existed of any intent to destroy relevant 
documents, and that although backup tapes had been overwritten in the ordinary course, all 
Solicitor's Office employees had been instructed repeatedly to retain hard copies of their emails. 
Although the Court gave Plaintiffs numerous additional opportunities to specify what actions by 
which individuals supposedly violated a Court order or constituted "fraud on the court," they 
failed to do so. Their attempt to resurrect this issue in support of their "bad faith" argument 
underscores the weakness of their claim. 
There is no need to burden this Court with additional exhaustive argument detailing the 
many flaws in Plaintiffs' contentions on this issue, since the existing stack of papers addressing it 
is already voluminous. Accordingly, we incorporate by reference the arguments made in the 
Memorandum of Points and Authorities in Support of the Government's Motion to Dismiss 
Plaintiffs' March 20, 2002 Motion for Order to Show Cause Why Interior Defendants and Their 
Employees and Counsel Should Not Be Held in Contempt in Connection with the Overwriting of 
Backup Tapes and "Bills of Particulars" Filed by Plaintiffs in Support of Such Motion (filed 
January 6, 2003) (the "Government's Memorandum"), and the Reply Memorandum in support of 
same (filed March 5, 2003). The same failures that doomed Plaintiffs' demand for contempt 
38
sanctions based upon the overwriting of backup tapes also undermine their attempt to use this 
issue as evidence of "bad faith" for purposes of obtaining an enhanced fee under EAJA. 
As noted above, for Plaintiffs to qualify for an enhanced rate under EAJA, they must 
show that the government willfully disobeyed a court order, or acted in bad faith, vexatiously, 
wantonly or for oppressive reasons. Chambers, 501 U.S. at 45-46. As with the "fraud on the 
court" claims that Plaintiffs have leveled against the government previously, Plaintiffs' "bad 
faith" claim is subject to a "stringent" standard of proof and must be established by clear and 
convincing evidence. Ass'n of Am. Physicians and Surgeons, 187 F.3d at 660. Accordingly, 
loose charges unsupported by actual evidence are as insufficient to sustain a claim of "bad faith" 
as they are to support a demand for sanctions based on "fraud on the court." The Government's 
Memorandum details the serious deficiencies in Plaintiffs' allegations that any government 
official had acted intentionally to thwart any clear directive of the Court or otherwise to destroy 
relevant evidence in connection with the backup tape issue. We summarize those deficiencies 
here. 
As the Government's Memorandum points out, Plaintiffs have both misstated and 
overblown the backup tape issue. The overwriting of the backup tapes did not fulfill any of the 
elements necessary to show civil or criminal contempt or fraud on the court. The issue 
concerned Interior's failure to preserve backup tapes of Solicitors' Office email for certain periods 
of time. The Solicitors' Office had a paper recordkeeping system, in accordance with rules 
promulgated by the National Archives and Records Administration ("NARA") and upheld in 
Public Citizen v. Carlin, 184 F.3d 900 (D.C. Cir. 1999). Backup tapes were created solely to 
allow the Office to recover from a catastrophic failure of the computer system. The backup tapes 
39
were not archival, and, in the normal course of operations, Solicitor’s Office backup tapes were 
periodically overwritten.21 When Plaintiffs received the Third Document Request, the Solicitor’s 
Office was preserving certain backup tapes only because an Independent Counsel had specifically 
requested backup tapes. See July 27, 2001 Opinion at 4. Those backup tapes that the 
Independent Counsel had specifically requested continued to be preserved. After the 
Independent Counsel notified Interior that she no longer needed backup tapes, the Solicitor's 
Office resumed its normal practice of overwriting newly generated backup tapes. Plaintiffs, 
despite multiple opportunities to do so, have never shown that the resumption of overwriting 
violated any specific court order, or that it was done with the intent to deceive anyone or with the 
intent to defraud the Court. Overwriting of the tapes was the normal and accepted practice 
within the Department of the Interior.22 
21/As noted in the Government's Memorandum at 21, Item 14 to General Records Schedule 20, 
"Disposition of Electronic Records," 60 Fed. Reg. 44643 (August 28, 1995), promulgated by 
NARA, authorizes (that is, requires) deletion of email records from the email system after they 
have been copied into a paper or other recordkeeping system. 60 Fed. Reg. at 44649. The 
provisions of General Records Schedule 20 that permitted the Department of the Interior and 
other agencies to maintain email records in paper form and authorized the agencies to delete 
electronic copies were upheld in Public Citizen v. Carlin, supra. In that decision, the Court of 
Appeals specifically upheld the Archivist's "ultimate determination that a record in electronic 
form lacks sufficient value to warrant preservation once it is transferred intact to a paper 
recordkeeping system." Id. at 910. Accordingly, Plaintiffs' repeated attempts to cast the 
overwriting of backup tapes as a "destruction of federal records" is entirely fallacious. 
22/ Plaintiffs have repeatedly referred to the overwriting of backup tapes as "spoliation" of 
evidence. While the Special Master did make such a finding in his July 27, 2001 opinion, the 
Master did not include sanctions for the overwriting itself in his recommendation to the Court. 
Such sanctions would not be appropriate on this record because of Plaintiffs' failure to 
demonstrate that the backup tape overwriting constituted a conscious effort by the government to 
destroy potentially relevant evidence. See Shepherd v. Am. Broad. Co., 62 F.3d 1469, 1481 
(D.C. Cir. 1995) ("A sanction for failure to preserve evidence is appropriate only when a party 
has consciously disregarded its obligation to do so."). Moreover, as already noted here and in the 
Government's Memorandum, the overwriting of backup tapes conformed to NARA rules and did 
40
While the Special Master concluded that Interior should have continued to preserve 
Solicitor's Office email backup tapes for purposes of discovery in this action, other judicial 
officers addressing nearly the same issue in the same time frame reached differing conclusions 
about a party's obligation to search backup tapes for materials responsive to document production 
requests. See McPeek v. Ashcroft, 202 F.R.D. 31, 33 (D.D.C. 2001) (Mag. J. Facciola) ("[T]here 
is certainly no controlling authority for the proposition that restoring all backup tapes is 
necessary in every case. The Federal Rules of Civil Procedure do not require such a search, and 
the handful of cases are idiosyncratic and provide little guidance."); Byers v. Illinois State Police, 
No. 99-8105, 2002 WL 1264004 at *10 (N.D. Ill. June 3, 2002) (magistrate judge decision) 
(holding that plaintiffs were entitled to production of emails on backup tapes only if they paid a 
portion of the cost of production). This split in authority demonstrates that the limited 
overwriting of some backup tapes is not conduct of the magnitude necessary to constitute "bad 
faith" under the EAJA. 
Finally, as noted in the Government's Memorandum, Plaintiffs have not even attempted to 
show that the allegedly wrongful overwriting prejudiced them in presenting their case or caused 
them to expend additional resources. In their numerous filings on the backup tape issue, 
including the current motion for fees, Plaintiffs have not even identified the issue or issues to 
which documents responsive to the Third Document Request were relevant or how the absence 
of the emails on the overwritten tapes prejudiced their ability to present their case on any issue. 
not violate any specific court order or requirement of the Federal Rules of Civil Procedure. For 
the same reasons Plaintiffs have failed to establish a basis for a "spoliation" sanction, they have 
also failed to show that the overwriting constituted "bad faith" for purposes of an enhanced 
attorney fee award. 
41
Plaintiffs’ overheated rhetoric should not obscure the limited scope of the Third 
Document Request. Item one of the Third Document Request requested production of "[a]ll 
documents prepared or signed" by three attorneys in the Solicitor's Office, all of whom worked in 
the Washington, D.C. headquarters of the Solicitor's Office, "which express legal advice, 
conclusions, opinions, assessments, instructions or directions to the Secretary or any and all other 
Department of Interior personnel not employed in the Office of the Solicitor, . . . pertaining to the 
administration of the Individual Indian Money (IIM) trust." The Third Document Request also 
asked for "All documents prepared or signed by past or present attorneys in the Solicitor's Office 
and relating to the administration of the IIM trust which express legal advice, conclusions, 
opinions, assessments, instructions, or directions to Interior Personnel" regarding the transfer of 
trust assets to tribes (Item 2), the 1990 delegation of IIM trust fund disbursement authority to 
Interior area office and agency personnel (Item 3), proposed legislation referred to as the Tribal 
Trust Fund Settlement Act of 1998 (Item 4), or "interest overdrafts" described by the then- 
Special Trustee in a deposition (Item 5). Id. The Third Document Request incorporated by 
reference definitions set forth in Plaintiffs' First Set of Interrogatories, and those definitions 
defined "documents" as including emails and information contained on “tapes.” 
The Third Document Request did not specifically request production of "backup tapes." 
The Third Document Request did not request production of all Solicitor's Office emails. The 
Third Document Request did not even request production of all Solicitor's Office documents or 
emails pertaining to the administration of the IIM trust. Interpreted broadly, item one of the 
Third Document Request asked for documents prepared or signed by three identified employees 
which pertained to administration of the IIM trust, while items two through five were limited to 
42
documents prepared or signed by other Solicitor's Office attorneys which addressed one or more 
of four specific topics. Moreover, throughout the course of motion practice on the Third 
Document Request, Defendants and the Named Individuals promptly notified the Court, the 
Special Master and Plaintiffs of developments concerning the Solicitor’s Office backup tapes. 
All of these circumstances plainly belie Plaintiffs' accusation that the government acted in "bad 
faith, vexatiously, wantonly or for oppressive reasons." Accordingly, this issue cannot serve as a 
basis for enhancing Plaintiffs' claim for attorney fees. 
Representations about adequacy of trust systems do not constitute bad faith 8. 
Throughout the Interim Petition, Plaintiffs accuse Defendants of misrepresenting the 
adequacy of trust management and trust management systems. See, e.g., Interim Petition at 22, 
33-38, 51. Most of these allegations involve the same accusations that were the subject of 
Contempt II, as discussed above. One new allegation in the Interim Petition involves statements 
made in a pretrial submission to the Court. Plaintiffs accuse Defendants of telling the Court that 
"present" management of the IIM trust (as of 1998) was adequate when, according to Plaintiffs, 
they knew that it was inadequate. Interim Petition at 22-23. 
The Court had ordered Defendants to submit a "statement of the specific respects, if any, 
in which they concede that the present management of the trust here involved is inadequate." 
Order at 2, ¶ 1 (May 5, 1998), quoted in Interim Petition at 22. Defendants responded that "the 
present management of the trust, taking into account the changes that are in progress, is 
adequate" ("1998 Statement"). Cobell v. Babbitt, 30 F. Supp. 2d 24, 47 (D.D.C. 1998). The 
Court rejected Plaintiffs' motion to strike Defendants' statement as "not responsive." Id. 
Specifically, the Court recognized that "defendants clearly concede that some improvements need 
43
to be made" and "that their present management of the trust is adequate because of ongoing 
reform." Id. 
Unwilling to acknowledge the law of the case on this issue, Plaintiffs then attempt a bait 
and switch by comparing Interior's position on the adequacy of management with Defendants' 
stipulated concessions about Interior's inability at the time of the Phase 1 trial to carry out 
specific administrative functions. Interim Petition at 22-23. Plaintiffs mischaracterize the 1998 
Statement as Defendants' "pre-trial position that trust management systems were 'adequate.'"23 
Id. at 23 (emphasis added). "Management of the trust, taking into account the changes that are in 
progress" is not synonymous with the current status of "trust management systems." 
In short, far from being a position taken in bad faith, Defendants' litigation position on 
management of the trust was reasonable. Moreover, as discussed above, the Phase 1 trial was not 
– or at least according to the Court of Appeals should not have been – about management of the 
trust. This issue cannot sustain enhanced fees under EAJA for bad faith. 
9. Representations about the level of accounting records at Treasury do not 
constitute bad faith 
Plaintiffs claim that Treasury "falsely" represented that it did not keep detail-level 
accounting information but later admitted that it did keep such information. Interim Petition at 
67-68. Plaintiffs' offhand accusation on this matter does not provide the Court – or Defendants – 
any information about the so-called false representations, who they claim made them and when, 
23/ Plaintiffs admit that, even under their misleading representations of the 1998 Statement and 
the Trial 1 stipulations, the government could show that its position had changed in the year from 
the filing of the 1998 Statement and the stipulations. Interim Petition at 23-24. 
44
and what relevance this has to the Phase 1 trial, much less the detailed factual support that they 
must provide to establish clear and convincing evidence of bad faith. 
They incorrectly attribute to a Justice attorney and a Treasury witness a supposed 
assertion that Treasury maintains only summary-level documents. Interim Petition at 67 
(interpolating the word "only" into a statement by government counsel). Neither the attorney nor 
the witness asserted any such thing. The government correctly explained that "Treasury only has 
summary level accounting responsibilities for these accounts." Trial 1 Tr. 5003 (emphasis 
added). Commissioner Gregg also attested to this fact. See, e.g., Phase 1 Tr. 3299, 3309-3310. 
In addition, the Commissioner made abundantly clear that Treasury maintains information about 
individual checks that it can retrieve with appropriate predicate information. See, e.g., Phase 1 
Tr. 3311. This testimony belies any suggestion that Treasury sought to persuade the Court that it 
does not maintain any information at the individual level. 
Manner in which IIM funds are kept at Treasury does not constitute bad 10. 
faith 
Plaintiffs also claim that Treasury finally admitted in June 2000 that all the IIM funds 
were kept in one account. Interim Petition at 69. Plaintiffs do not identify which claim or issue 
this is related to in this litigation. They do not describe how the manner in which funds are kept 
by the United States could possibly constitute litigation misconduct. 
So-called retaliation against Mona Infield does not constitute bad faith 11. 
Plaintiffs claim that retaliation against Mona Infield also constituted bad faith. Interim 
Petition at 73 n.46. Defendants dispute this allegation, but Plaintiffs already have received fees 
related to this matter in a settlement. They cannot recover additional fees in this EAJA petition. 
45
In short, Plaintiffs have not identified evidence of compensable bad faith conduct by 
Defendants either before the litigation began or during the case. They are thus not entitled to an 
enhanced award of fees under § 2412(b). 
THE SCOPE OF REQUESTED FEES IS OVERBROAD V. 
Plaintiffs Cannot Recover Fees Incurred after the Phase 1 Proceeding A. 
The Court's May 27, 2004 Order advised Plaintiffs that they could file an EAJA 
application "for work done through the Phase 1.0 proceeding." 319 F. Supp. 2d at 44. Plaintiffs 
have ignored the Court's Order. They have redefined the phrase "through the Phase 1.0 
proceeding" to include vast amounts of work done after the Court's Phase 1 opinion was issued 
on December 21, 1999. They include time spent during this period "monitoring defendants' trust 
reform efforts." Interim Petition at 5. As support for their position they cite "institutional 
reform" cases and other cases in which decrees were entered and required time monitoring the 
decree. Interim Petition at 4-7. Plaintiffs neglect to discuss that none of those cases involved an 
interim fee petition where the Court had already circumscribed the time period for which fees 
could be awarded. 
As discussed at length above, whether this is an "institutional reform" case has not been 
finally resolved. The only enforceable duty at issue in this case is the duty to conduct an 
accounting. Time spent monitoring "trust reform" is not compensable.24 At the very least it 
should not be awarded at this time. This is an interim fee petition. If Plaintiffs prevail in the 
24/ It should also be noted that the Court appointed Mr. Kieffer to the job of monitoring trust 
reform. Before he was disqualified, he generated $1,264,527.12 in fees and expenses, paid for by 
the taxpayer. The Special Master also engaged in monitoring activities, and before he resigned, 
he generated $3,813,041.14 in fees and expenses, paid for by the taxpayer. The taxpayer has 
already paid "monitoring" fees and should not be required to pay additional fees to Plaintiffs. 
46
Phase 1.5 appeal or at a later phase of this case, they can resubmit the fees incurred after the 
Phase 1 proceeding in a final EAJA petition. 
Plaintiffs have also included time spent in 2000 and 2001 trying to prove the bad faith 
litigation allegations that they have made in the Interim Petition. Plaintiffs make the tortured 
circular argument that even though the time was incurred after the Phase 1 proceedings, it is 
relevant to this interim Phase 1 fee petition because they included the time in the Phase 1 fee 
petition, and without it they would not be able to show bad faith. Interim Petition at 7-8. 
The Interim Petition includes a claim for 7,403.66 hours incurred after the Phase 1 
proceeding ended on December 21, 1999.25 For the convenience of the Court, attached as 
Exhibit 1 is a table identifying the amount of time submitted by each individual that falls outside 
the scope of this interim fee petition.26 This time should be deducted from any interim EAJA 
award. 
Plaintiffs also seek reimbursement for PWC's fees incurred after conclusion of the Phase 
1 trial in July 1999. PWC's billings between August 1999 and January 2000 indicate that, 
following the trial, PWC spent time assisting in post-trial pleadings. See Pollner Affidavit, 
Exhibit AG. However, the following table illustrates that the vast majority of time submitted for 
25/ Plaintiffs also include time spent on the appeal of the Phase 1 opinion and time spent 
preparing the Interim Petition. Defendants agree that reasonable time spent on these activities is 
properly part of this Interim Petition. As discussed below, Plaintiffs have included excessive 
time spent on these matters. 
26/ Attached as Exhibit 2A is a marked-up copy of Plaintiffs' Interim Petition time records. We 
have added a "PT" notation beside the post-Phase 1 trial entries. This bulky exhibit is being filed 
separately in paper form and is available for review from the Clerk's office. 
47
the period after the Phase 1 trial was unrelated to Phase 1 and should be excluded from any 
interim award: 
Month 
Aug. 1999 
Sept. 1999 
Oct. 1999 
Nov. 1999 
Dec. 1999 
Jan. 2000 
Total 
B. 
As discussed above, none of the time related to the Contempt II allegations is 
compensable. This time is a subset of the improper post-Phase 1 billings discussed above, but 
even if the Court permits Plaintiffs to include time spent after Phase 1, the Contempt II time 
should be deducted. 
27/ See Pollner Affidavit, Exhibit AG, August 1999 (Pollner, Schweitzer, Rempel, Tomlinson, and Weber 
billings related to post-trial pleadings). 
28/ See Pollner Affidavit, Exhibit AG, September 1999 (Schweitzer billings related to post-trial 
pleadings). 
29/ See Pollner Affidavit, Exhibit AG, December 1999 (Schweitzer billings related to review of Trial I 
Opinion). 
30/ See Pollner Affidavit, Exhibit AG, January 2000 (Pollner 10/10/2000 billing related to review of Trial 
I Opinion). 
PWC Billings August 1999-January 2000 
Fees Unrelated To Trial I And 
Outside Scope Of 5/27/04 Order 
Fees Related To Trial I or Related 
Post Trial Work 
Total Monthly Bill 
From PWC 
$52,800.0027 $87,315.00 $34,515.00 
$33,075.00 $900.0028 $33,975.00 
$62,888.00 $0.00 $62,888.00 
$17,168.00 $0.00 $17,168.00 
$5,625.00 $1,463.0029 $7,088.00 
$3,375.00 $450.0030 $3,825.00 
$156,646.00 $55,613.00 $212,259.00 
Time Spent on Contempt II Matters Must Be Deducted 
48
For the convenience of the Court, we have attached, as Exhibit 2B, a copy of the bills 
previously submitted by Plaintiffs for these Contempt II fees.31 We have also attached, as Exhibit 
3, a table identifying this time previously billed by Plaintiffs for Contempt II matters that has 
reappeared in the current petition.32 
Time Must Be Deducted from Mr. Gingold's Claim To Avoid Double Billing C. 
The time records that Mr. Gingold submitted in connection with previous fee petitions 
and sanctions awards in this case were so inadequate that it is now impossible to determine 
whether time previously compensated has been deducted from the modified time records that he 
has submitted in the Interim Petition. Because we are unable to determine whether he eliminated 
previous awards when he added "clarity" to the current records, all time previously compensated 
must be deducted from his current fee petition. For the convenience of the Court we have 
prepared a table, attached as Exhibit 4, which, for each day that he has been awarded fees in this 
litigation, indicates the amount of time previously compensated and subtracts it from the amount 
that he is seeking now.33 Attached as Exhibit 5 is a table identifying the number of hours that 
should be deducted each year for Mr. Gingold. Defendants submit that this approach is the only 
fair way to ensure that Mr. Gingold does not receive a double award. 
31/ This bulky exhibit is being filed separately and is available for review in the Clerk's office. 
32/ Plaintiffs have also submitted in the Interim Petition time incurred on Contempt II matters that 
was not previously billed by Plaintiffs. This time is also a subset of the post-Phase 1 category 
but should also be deducted from any interim award even if the Court permits post-Phase 1 time. 
33/ For those days for which this calculation produces a negative number, Defendants have used 
zero as the appropriate hours. 
49
D. Plaintiffs Cannot Recover Fees and Expenses Related to Settlement and 
Mediation Efforts 
Plaintiffs seek to recover fees and expenses for "time spent in trying to resolve this case 
through settlement and mediation." Interim Petition at 8 n.11. Based on the time records 
submitted by Plaintiffs, it appears that they are requesting compensation for four different efforts. 
First, in 1996 and 1997, they claim to have spent time investigating whether a legislative 
"settlement" could be reached and whether money could be paid from the Judgment Fund for this 
effort. Second, in 1996 through 1999, the parties jointly engaged in a statistical sampling project. 
Each party hired accounting experts – the government hired Arthur Anderson and Plaintiffs hired 
PWC – to assist them in identifying an appropriate sample of IIM accounts, the detailed 
examination of which could enable the parties to ascertain an agreed-upon error rate. With this 
agreed error rate, it was believed that the parties could then engage in informed settlement talks 
and perhaps work out an appropriate settlement amount. This unsuccessful statistical sampling 
project consumed much time in 1997 and 1998, both by attorneys and the accounting 
professionals assisting them. Third, in 1999, the parties engaged in mediation talks. These talks 
were authorized by the Court's Order of October 14, 1999. Fourth, in 2001, the parties again 
engaged in settlement talks. 
Plaintiffs' Interim Petition seeks recovery for 3,269.07 hours spent on these various 
settlement and mediation efforts, yet they fail to present any argument as to why these 
unsuccessful efforts should be compensated under EAJA. They cite two cases, Ellis v. Univ. of 
Kansas Med. Ctr., 163 F. 3d 1186, 1202-03 (10th Cir. 1998), and E.M. v. Milville Bd. of Educ., 
849 F. Supp. 312, 317 (D.N.J. 1994), as authority for the Court to award time spent on settlement 
50
and mediation. Interim Petition at 8 n.11. Both cases, however, involved settlement and 
mediation efforts which were successful and terminated the proceedings. The discussion in those 
cases was thus about whether the plaintiffs had "prevailed" under those circumstances and 
whether the settlements constituted a sufficient change in the relationship of the parties to qualify 
for an EAJA award. 
In stark contrast, the settlement and mediation efforts here were unsuccessful. They did 
not terminate the litigation and no change in the legal relationship between the parties resulted. 
See Buckhannon, 532 U.S. at 604 & n.7 (only settlements changing the legal relationship of the 
parties which are approved by a court qualify to make a party a “prevailing party”). These efforts 
were thus discrete, severable claims upon which Plaintiffs did not prevail.34 See Hensley, 461 
U.S. at 440 (“Where the plaintiff has failed to prevail on a claim that is distinct in all respects 
from his successful claims, the hours spent on the unsuccessful claim should be excluded in 
considering the amount of a reasonable fee.”). 
The settlement time submitted by Plaintiffs is thus not compensable under EAJA. It 
would be particularly inappropriate to award the accounting fees submitted by PWC incurred in 
the statistical sampling project. Defendants have already paid a large amount of money to Arthur 
Anderson for this project. It would be unjust to ask the American taxpayer to pay additional 
accounting fees for the very same work. 
34/ It is expected that Plaintiffs will claim that the time spent on the statistical sampling project 
was not part of a settlement effort, but was rather an approach designed to identify a possible 
surrogate for an accounting. Even if true, the EAJA analysis is unchanged. This was time spent 
on a discrete, severable claim which was not part of Phase 1 and on which Plaintiffs did not 
prevail. 
51
Moreover, with respect to the 1999 mediation efforts, the October 14, 1999 Order 
provides that "[e]ach party shall be independently responsible for its own expenses associated 
with the mediation process, attorney fees, or any of their own expert expenses it deems necessary 
for the process." Order at 1. Plaintiffs have ignored this Order and included time for the 1999 
mediation efforts in their fee request. This time cannot be compensated. 
Defendants have attached as Exhibit 6 a table identifying the amount of time each 
individual spent on settlement and mediation efforts. Attached as Exhibit 7 is a table identifying 
the time spent on the statistical sampling project.35 
UNREASONABLE FEES AND EXPENSES MUST BE DEDUCTED VI. 
The EAJA authorizes a court to award only "reasonable attorney fees." 28 U.S.C. 
§2412(d)(2)(A). The party requesting the fees has the burden of establishing the reasonableness 
of its fee request. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004). In 
determining what constitutes a reasonable attorney fee, a court's first step is to calculate a 
"lodestar" by multiplying the reasonable number of hours it finds the prevailing party expended 
on the litigation by a reasonable hourly rate. Hensley, 461 U.S. at 433.36 Plaintiffs have failed to 
meet their burden of establishing the reasonableness of the number of hours they claim and the 
hourly rates upon which they seek reimbursement. "Lawyers claiming fees from the government 
must exercise 'billing judgment.'" Action on Smoking and Health v. C.A.B., 724 F.2d 211, 220 
35/ Attached as Exhibit 2A is a marked-up copy of Plaintiffs' Interim Petition time records. We 
have added a "M/S" notation beside the settlement and mediation entries and a "PWC/SS" 
notation beside the statistical sampling entries. 
36/ Although Hensley did not involve the EAJA, the Supreme Court in INS v. Jean, 496 U.S. 154, 
161 (1990), made clear that the Hensley analysis applies to EAJA cases. See also Atkins v. 
Apfel, 154 F.3d 986, 988 (9th Cir. 1998). 
52
(D.C. Cir. 1984) (quoting Hensley, 461 U.S. at 434 (citations omitted)). Plaintiffs have failed to 
do so. Instead, they have submitted a fee request totaling $14,528,467.21, accompanied by 
inadequately documented and excessive time entries, as well as time and expenses that are 
simply not compensable under the EAJA. 
Number of Hours A. 
1. Inadequate Documentation 
The party seeking fees under the EAJA bears the burden of submitting evidence 
supporting the number of hours worked. Hensley, 461 U.S. at 433. Section 2412(d)(1)(B) 
specifically requires the party seeking an award of attorney fees and expenses to submit “an 
itemized statement . . . stating the actual time expended” in the litigation. The party seeking a fee 
award "has the burden of establishing the reasonableness of its fee request and '[s]upporting 
documentation must be of sufficient detail and probative value to enable the court to determine 
with a high degree of certainty that such hours were actually and reasonably expended . . . .' " 
Role Models, 353 F.3d at 970 (internal citations omitted). The D.C. Circuit has held that 
attorneys who submit time records that lack sufficient detail to adequately describe the work for 
which their client is being billed fail to meet their burden. Id. at 971. A court should not award 
attorney fees where the claimant has not adequately documented the hours spent. See Hensley, 
461 U.S. at 433 (“[w]here the documentation of hours is inadequate, the district court may reduce 
the award accordingly”). 
A time entry is inadequately documented if: (1) it lumps multiple tasks together in a 
single entry, (2) it contains generic descriptions with no subject matter specified, e.g., "research," 
or (3) the entries contain initials or subjects that cannot be identified as relating to the litigation. 
53
Role Models, 353 F.3d at 971. Such entries are inadequate for reimbursement because they 
prevent a court from evaluating the reasonableness of time spent on a particular task and whether 
the proper amount of time has been deducted for non-compensable tasks. Id. 
The attorney and expert fee schedules attached to the Interim Petition are riddled with 
entries that contain inadequate documentation and woefully fail to meet the standard of providing 
the Court a high degree of certainty that the hours submitted were actually reasonably expended. 
a. Dennis Gingold 
Mr. Gingold's fee schedule contains dozens of time entries between April 24, 1996, and 
November 24, 1996, in which all of the tasks for each day are lumped together in one time entry. 
See Gingold Schedule at 1-21. Some of his entries span as many as 12 hours and contain several 
tasks, but with no breakdown to explain how much time he spent on each task. See, e.g., id. at 3 
(10.8 hours on 6/5/96 in one entry); id. at 8 (12.0 hours on 7/25/96 in one entry). Under the 
circumstances, it is impossible for Defendants or the Court to determine whether the hours 
included were reasonably expended for each task. Thus, the time included in such entries should 
be deducted from any fee award to Mr. Gingold. Hensley, 461 U.S. at 433. 
b. Robert Peregoy 
Mr. Peregoy's submission also contains several entries that do not segregate tasks. For 
example, on June 5, 1996, he includes 11.9 hours of work on seven different tasks in one entry, 
and on June 7, 1996, he includes 13.2 hours of work on five tasks in one entry, only segregating 
1.5 hours and leaving the reader to guess how the other 11.7 hours are divided. Peregoy 
Schedule at 2-3. It is impossible for Defendants or the Court to determine whether a reasonable 
54
amount of time is expended on each task. Any fee award to Mr. Peregoy should be reduced 
accordingly. 
Mr. Peregoy also fails to adequately document entries by not specifying the subject matter 
of meetings or conference calls in several instances, and it is not otherwise apparent from their 
context which matters they concern. Indeed, for one conference call, he does not bother to 
include any subject matter at all: 
DATE 
5/31/96 
6/1/96 
6/14/96 
6/27/96 
7/2/96 
7/2/96 
7/2/96 
7/2/96 
7/2/96 
7/2/96 
7/12/96 
7/15/96 
7/18/96 
12/20/96 
Total 
Robert Peregoy 
Inadequately Documented Entries 
Hours Billed Activity 
2 MEET WITH N-D, JMCC, DG, DP, RD, KH, EC LD 
7 MEET WITH IIM TEAM 
1 MEET WITH D HARRISION, C AHWINONA, M ZUNI 
0.5 GENERAL CALLS TO DG; RD; DP 
0.6 TELEPHONE CALL TO DENNIS G RE MEETING 
0.8 PREPARATION OF MEETING WITH KSIH, PRESS, GLIDDEN 
1.4 MEET WITH KISH, PRESS AND GLIDDEN 
0.9 TELEPHONE CALL TO LMC AND JEE RE MEETING WITH KISH, 
ET AL 
1.5 MEET WITH RD, KH RE MEETING 
0.8 GENERAL FOLLOW-UP NOTES AFTER MEETING 
1.5 TELEPHONE CALL FROM TELECON WITH TEAM 
0.8 MEET WITH IIM TEAM 
3 MEET WITH IIM TEAM 
0.5 TELEPHONE CALL FROM [no description] 
22.30 
55
These inadequately documented time entries should be excluded from any fee award to 
Mr. Peregoy. 
Mr. Dauphinais's time records contain inadequate descriptions throughout. Examples 
include "Meet with DG, DP, RP, KH" for 2.5 hours on May 15, 1996, and 2.5 hours of 
additional time spent on that day for "Preparation of MTG" without specifying what either of the 
meetings concerned or even if they concerned this case. See Dauphinais Schedule at 2. In 
addition, for numerous entries, Mr. Dauphinais uses indecipherable shorthand and initials that 
make it impossible for Defendants and the Court to discern the particular task for which he is 
billing. See, e.g., id. at 7. Time entries with inadequate or indecipherable descriptions should be 
deducted from any award to Mr. Dauphinais. 
Mr. Holt seeks reimbursement for the following entries in which he fails to document the 
subject matter of research, telephone calls, and a meeting: 
DATE 
5/1/96 
5/2/96 
5/3/96 
7/15/96 
7/19/96 
7/23/96 
10/17/97 
c. Richard Dauphinais 
d. Thaddeus Holt 
Thaddeus Holt 
Inadequately Documented Entries 
Hours Billed Activity 
3 Basic Research 
3 Basic Research 
3 Basic Research 
2.5 Confce call and followups 
4 Research 
3 Confce call and followup 
4.5 Prepare for XXX meeting; lunch meeting with Gingold, Cobell to discuss 
same, future strategy; telcon Harper re status, projects for status conference 
56
4 Research at WBAM 7/18/98 
27.00 Total 
Mr. Holt's failure to adequately describe these tasks makes it impossible to determine 
whether the time Mr. Holt spent on these tasks was reasonable. Thus, 27 hours should be 
deducted from any fee award to Mr. Holt. 
e. Elliot Levitas and Attorneys and Staff Under his Supervision 
Mr. Levitas's affidavit submits a schedule seeking reimbursement for numerous 
individuals he alleges were under his supervision. Although he identifies several of the 
individuals in his affidavit, his fee submission contains the following initials of other 
unidentified individuals: "MSY," "WWB," "TC," "BLS," "DGB," "ASC," "JWX," "TKB," 
"JCB," "AD," "DFC, "JTC," "RCV," "JFM," and "RSF." Levitas Affidavit. Because these 
individuals are not identified, Defendants have no way to determine whether the 186.7 hours 
submitted for these individuals was reasonable. Time for these individuals should be excluded 
from any fee award to Mr. Levitas and his firm. 
f. PriceWaterhouseCoopers 
If the Court were to determine that Plaintiffs are eligible for reimbursement for any of the 
time spent by Plaintiffs' expert, PWC, the Court should disallow reimbursement for those 
portions of PWC's time submissions with inadequate documentation. In her affidavit, PWC 
partner Jessica Pollner admits that PWC can provide no adequate documentation for its alleged 
work through March 1998. She adds this disclaimer in her affidavit: "[S]ufficient details were 
not maintained to allow a description of the specific tasks performed by person by day. 
Subsequent to March, 1998, our invoices detailed the tasks completed by each PwC staff member 
57
by day, as well as the total hours for each task." Pollner Affidavit, ¶ 30. Plaintiffs never address 
this defect, but simply attach PWC's bill and request full reimbursement for the period of time for 
which adequate documentation is lacking – totaling a staggering $1,723,377 – notwithstanding 
that their expert concedes that documentation is inadequate. This submission is particularly 
egregious because Plaintiffs have known since the beginning of this litigation that they intended 
to seek EAJA fees, Complaint at 27, and therefore had the responsibility to instruct their expert 
to maintain detailed time records if they expected to be reimbursed. Because no detailed records 
were kept and no adequate documentation is presented, it is impossible for Defendants or the 
Court to ever know whether the time for which Plaintiffs seek reimbursement was reasonable. 
Accordingly, PWC's undocumented time should be excluded and the amount billed for that time 
period for PWC, $1,723,377 should be deducted from any fee award.37 
2. Excessive Time Claimed 
A court also should exclude from a fee calculation “hours that were not ‘reasonably 
expended.’” Hensley, 461 at 434 (quoting S. Rep. No. 94-1011, at 6 (1976)). Counsel for the 
prevailing party must "exclude from a fee request hours that are excessive, redundant, or 
otherwise unnecessary.” Id. In addition to excessiveness by one attorney, duplication of effort is 
another basis on which hours have been found to be excessive. Role Models, 353 F.3d at 972. 
As the D.C. Circuit has explained, "[h]ours are not reasonably expended if an attorney duplicates 
work done earlier by another attorney, if an attorney takes extra time due to inexperience, or if an 
attorney performs tasks that are normally performed by paralegals, clerical personnel or other 
non-attorneys." Action on Smoking and Health, 724 F.2d at 221. The standard of 
37/ The amount of time submitted by PWC is also excessive. See Section VI.A(2), infra. 
58
reasonableness under EAJA in some instances prohibits recovery for fees that law firms routinely 
bill clients. "In awarding fees under the EAJA, however, [the courts] have a special 
responsibility to ensure that taxpayers are required to reimburse prevailing parties for only those 
fees and expenses actually needed to achieve the favorable result."38 Role Models, 353 F.3d at 
975. 
Plaintiffs' fee submission as a whole is excessive on its face. Plaintiffs request nearly 
$15,000,000 in fees and expenses, including $4,817,641.70 for lead counsel Dennis Gingold. 
Perhaps the most egregious example of Mr. Gingold's excessive billing are his entries for time 
spent editing his own time entries – after the fact. For the period between June 4, 2004, and 
August 14, 2004, he submits, along with other time, a series of 63 virtually identical time entries 
containing the description "review, segregate, prepare relevant time re Trial 1 EAJA petition fee 
application." See Gingold Schedule at 260-264. In his affidavit, Mr. Gingold euphemistically 
refers to this pursuit as "add[ing] clarity" to his time entries. Yet, in total, Mr. Gingold seeks 
reimbursement for 454.2 hours for simply fixing his time entries to get a fee award. At the 
market rate Mr. Gingold is attempting to claim, this amounts to $249,810 sought in 
reimbursement for adding "clarity" to time entries. That does not include 15.7 hours Mr. Gingold 
claims for meeting and conferring with colleagues about "the same." In total, Mr. Gingold 
incurred 604.7 hours on preparing his fee petition. 
To put the utter excessiveness of Mr. Gingold's time editing activities into proper 
perspective, Mr. Gingold's bill indicates that he spent more time fixing his time entries to obtain 
38/ Thus, the willingness of a private client to pay a bill does not necessarily mean the fee can be 
assessed against the government. Role Models, 353 F.3d at 975. 
59
a fee award than he spent on the case from inception up through researching, drafting and filing 
the complaint (202.3 hours), or during the trial dates of the Phase 1 proceeding (428 hours), or 
preparing proposed findings of fact and conclusions of law for Phase 1 and Plaintiffs' Reply 
(269.2 hours). By any measure, this type of billing is so grossly excessive that the Court should 
deduct such time – 469.9 hours – from any award to Mr. Gingold, rather than unjustifiably 
rewarding his behavior at taxpayer expense. 
In addition to Mr. Gingold's time editing activities, the total time Plaintiffs' attorneys 
spent on preparing their entire EAJA petition – 1,410.46 hours – is excessive. The following 
table lists the amount of time each individual attorney or law clerk billed for preparation of the 
fee petition: 
Plaintiffs' EAJA Time 
ATTORNEY 
Gingold 
Harper 
Guest 
Kelly - Law Clerk 
Babby 
Echohawk 
Holt 
Levitas 
Brown 
Rempel 
Pollner-PWC 
Total Hours: 
TIME 
604.70 
206.80 
75.60 (Not Detailed) 
41.00 (Not Detailed) 
None Listed 
None Listed 
17.50 
160.30 
140.16 
164.40 
None Listed 
1410.46 
60
Plaintiffs may attempt to justify this enormous expenditure of time by claiming that they 
were required to review time spent after the Phase 1 trial to identify time spent on so-called 
"monitoring" of the Phase 1 trial order. To the contrary, expending time in that manner was 
completely unnecessary because the Court's May 27, 2004 Order plainly ordered Plaintiffs to 
only submit a petition "for work done through the Phase 1.0 proceeding." Cobell, 319 F. Supp 
2d at 44. 
If Plaintiffs had simply abided by the Court's order and only reviewed time through the 
Phase 1 trial, including the time spent on the appeal, there would have been no reason to waste 
additional time wading through entries in 2000 and 2001. While it is impossible to determine 
exactly how much additional time Plaintiffs spent searching through these entries, it is apparent 
that their decision to extend the date range substantially increased the time spent to prepare the 
petition. Accordingly (after deducting the excessive time Mr. Gingold spent editing his entries), 
the Court should apply a 50 percent reduction to the remaining hours each attorney and law clerk 
has submitted for time preparing their EAJA petition. 
Not to be outdone, Plaintiffs' experts at PWC submitted bills for $4,528,684, at times 
billing as much as $265,769 per month on the case. Pollner Affidavit, Exhibit AC. In PWC, 
Plaintiffs had a veritable think tank of 44 consultants who were nearly constantly billing on this 
case (although they only started keeping detailed records in March 1998). While it is up to 
Plaintiffs to determine PWC's value to them, when viewed objectively in terms of hours 
reasonably expended, much of their work was overkill, particularly since there were several 
attorneys and support staff already working on the litigation full time. 
61
PWC billed an excessive number of hours for trial time during the Phase 1 trial. In 
addition to Plaintiffs' lawyers and legal staff, there were as many as three PWC consultants at 
$200 per hour in court at any given time, inflating Plaintiffs' hourly expenses by $600 per hour. 
See Pollner Affidavit, Exhibit AG, July and August 1999. This was an unnecessary duplication 
of effort that contributed to PWC's excessive bill. PWC consultants describe their time as "trial 
preparation and attendance" or "trial attendance and preparation" or simply "trial attendance." Id. 
However, they were not testifying experts and Plaintiffs fail to provide any justification for 
having as many as three consultants from the same firm sitting in court. Accordingly, Plaintiffs 
should be reimbursed – at most – for one consultant's time for each day of the Phase 1 trial. 
PWC billed 539 hours resulting in $100,975 in expenses for "Assistance with Post Trial 
Briefs." Pollner Affidavit, Exhibit AD. Plaintiffs already had five attorneys, and legal assistants, 
spending 522 hours on post trial briefing. Plaintiffs fail to meet their burden to show that it was 
reasonable to have a consulting firm spend even more time on that same task. It should be 
excluded as excessive. 
PWC billed 252 hours to review DOI's High Level Implementation Plan [HLIP] resulting 
in a bill of $50,400. Pollner Affidavit, Exhibit AD. The HLIP was 93 pages, which means that it 
cost $541.93 per page just to have PWC "review" the document, in addition to amounts charged 
by Plaintiffs' attorneys for the same task. 
In a recent decision analyzing the reasonableness of a fee application, the court found it 
appropriate to compare the total number of hours worked to the specific document produced. 
Mitchell v. National R.R. Passenger Corp., 217 F.R.D. 53, 58-60 (D.D.C. 2003) (Facciola, MJ); 
see also Environmental Defense Fund v. Reilly, 1 F.3d 1254, 1258 (D.C. Cir. 1993) (evaluating 
62
fee application under Resource Conservation and Recovery Act by multiplying prevailing hourly 
rate by number of attorney hours reasonably expended). 
We have randomly selected several pleadings for which time was submitted in the Interim 
Petition and calculated the amount of time claimed for these documents. This analysis reveals 
that Plaintiffs' attorneys have submitted excessive billings. For example, Plaintiffs submitted 
24.8 hours (from four different attorneys) for a two-page Request for Trial Date (filed October 
28, 1997) – over twelve hours per page. For the nine-page Reply to Defendants' Opposition to 
the Request for Trial Date (filed November 13, 1997), Plaintiffs submitted 122.33 hours – over 
thirteen hours per page. Attached as Exhibit 8 is a table identifying the more egregious examples 
of this type of excessive billing in the Interim Petition. 
In addressing excessive fee requests, the D.C. Circuit has applied a fixed reduction when 
a large number of entries suffer from one or more deficiencies. See Action on Smoking and 
Health, 724 F.2d at 220 ("Where a [fee] request has been inadequately documented, or is 
excessive, we will not attempt to identify and eliminate particular hours. Rather, following the 
Supreme Court's suggestion in Hensley v. Eckerhart, we will 'simply reduce the award' by 
particular percentages to account for deficiencies in the application."). Based on overall 
excessiveness, Plaintiffs' fee request should be reduced by at least 20 percent, after hours outside 
the scope of the Court's May 27, 2004 Order, inadequately documented hours, and otherwise 
non-compensable hours are excluded. 
3. Time Otherwise Not Compensable Under the EAJA 
Certain activities and expenses for which attorneys might ordinarily bill clients are 
nevertheless non-compensable under the EAJA. These include: (1) time spent filing and serving 
63
documents, Role Models, 353 F.3d at 973; (2) time spent conversing with the press, id. ; (3) 
overhead expenses, including time spent by attorneys drafting a retainer agreement, time spent 
applying for admission to a court, secretarial or clerical duties, id. at 973-74; and (4) taxi fares, 
messenger services, travel expenses, telephone bills, and postage expenses, Massachusetts Fair 
Share v. Law Enforcement Assistance Admin., 776 F.2d 1066, 1069 (D.C. Cir. 1985). 
Plaintiffs seek reimbursement for the following non-compensable activities and expenses: 
a. Dennis Gingold 
Mr. Gingold seeks reimbursement for time spent "filing" the Complaint and "serving" 
individuals, listed in addition to drafting the complaint in an unsegregated 9.5 hour time entry on 
June 10, 1996. Gingold Schedule at 3. He also seeks reimbursement for "serving" Paul Homan 
with a subpoena as well as drafting it in an unsegregated 3.8 hour time entry dated May 28, 1997. 
Because these time entries are not segregated, it is impossible to determine how much time he 
actually spent on drafting these documents as opposed to "filing" and "serving" them. 
Accordingly, 13.3 hours should be deducted from any award to Mr. Gingold. 
b. Keith Harper 
Mr. Harper seeks reimbursement in the following time entries for time apparently spent 
consulting with the media and preparing for other public relations activities, traveling to and 
attending conferences, and performing administrative tasks relating to funding Plaintiffs' 
litigation efforts: 
64
DATE 
9/3/96 
9/9/96 
10/18/96 
10/29/96 
12/10/96 
1/3/97 
1/23/97 
1/23/97 
1/23/97 
1/24/97 
1/24/97 
1/24/97 
1/24/97 
1/24/97 
1/27/97 
1/28/97 
Keith Harper 
Other Non-Compensable Activities 
Activity 
Media and Public Relations Activities 
(RC) NATIVE AM. NEWS: UPDATE ON CASE 
NATIVE NEWS CALL 
TELEPHONE CALL TO JIM MCCARTHY RE: NBC & LA TIMES 
CONFERENCE CALL WITH DG RE: WHETHER TO ATTEND 
ALBEQUERQUE, MEDIA STRATEGY, SPECIAL TRUSTEE AND 
FY98 APPROPRIATIONS 
TELEPHONE CALL FROM NATIVE NEWS REPORTER; UPDATE 
TELEPHONE CALL FROM MCCARTHY; RE: MEDIA 
DEVELOPMENTS, PARTICULARLY KEEPING INDIAN COUNTRY 
INFORMATION AS PER DENVER ITMA MEETING 
TELEPHONE CALL FROM MCCARTHY; RE: MEDIA INDIAN 
COUNTRY RELEASE AND SCHEDULING 
TELEPHONE CALL FROM MCCARTHY; GET VERSIONS OF PRESS 
RELEASE & MOVE FORWARD ON INDIAN MEDIA SCHEDULE 
TELEPHONE CALL FROM MCCARTHY; PRESS RELEASE AND 
CONFERENCE 
CONFERENCE CALL WITH BP & MCCARTHY; INDIAN PRESS 
TELEPHONE CALL TO FINAL COMMENTS ON MEDIA RELEASE 
& SUGGEST PRE-CALL FOR HOSTS AND MCCARTHY 
APPROVE FINAL PRESS RELEASE 
TELEPHONE CALL TO N*D; RE: INDIAN MEDIA 
TELECONFERENCE 
TELEPHONE CALL FROM JM; RE: LAST EDIT ON PRESS 
RELEASE 
TELEPHONE CALL TO RETURN CALL FROM REPORTER @ FORT 
HALL & LEAVE MESSAGE TO CONTACT MCCARTHY 
TELEPHONE CALL TO DG; RE: REPLY BRIEF & MEDIACC 
CONFERENCE CALL WITH INDIAN COUNTRY MEDIA; Q & A 
SESSION 
65 
Hours Billed 
0.7 
0.2 
0.3 
0.3 
0.2 
0.3 
0.2 
0.2 
0.5 
0.1 
0.2 
0.1 
0.1 
0.1 
0.3 
1.0
1/28/97 
2/6/97 
2/6/97 
2/7/97 
3/19/97 
10/14/97 
3/2/99 
7/18/99 
7/19/99 
7/21/99 
7/22/99 
7/22/99 
7/26/99 
9/2/99 
9/7/99 
9/7/99 
9/13/99 
9/13/99 
9/14/99 
9/15/99 
0.4 CONFERENCE CALL WITH EC & JEE; RE: PRE-CONFERENCE 
CALL 
FOR UPDATE FOR THE INDIAN COUNTRY MEDIA CALL 
0.4 TELEPHONE CALL FROM TWO INDIAN COUNTRY PAPERS & 
TIMES 
0.3 TELEPHONE CALL FROM DG; UPDATING HIM ON MEDIA 
DEVELOPMENTS 
0.3 CONFERENCE WITH INDIAN COUNTRY PAPERS INCL. 
ADVOCATE 
0.2 TELEPHONE CALL FROM REPORTER FROM PUBLIC RADIO (MN) 
8.40 GENERAL RESEARCH ATTEND ITMA CONFERENCE; COLLECT 
INFO; TAKE NOTES; ADDRESS QUESTIONS RE: IIM CASE; 
ATTEND CONFERENCE DINNER; REQUEST FOR INFORMATION 
0.3 TELEPHONE CALL FROM AM LAWYER PHOTOGRAPHER 
6 TRAVEL TO WEST COAST (ON WAY TO VANCOUVER) FOR NCAI 
MEETING 
3.5 DRAFT COMMENTS FOR NCAI PRESENTATION 
1.5 MEET WITH INDIVIDUALLY W/ TRIBAL LEADERS TO DISCUSS 
VARIOUS ISSUES RE: IIM CASE; ADDRESS RAISED POLITICAL 
CONCERNS 
3.5 PREPARATION OF COMMENTS FOR PRESENTATION TO 
GENERAL ASSEMBLY 
1 APPEAR AT PRESENTATION OF COMMENTS TO GENERAL 
ASSEMBLY 
8 TRAVEL FROM WEST COAST TO DC (POST NCAI) 
0.2 GENERAL TRAVEL FOR ITMA IN WARM SPRINGS 
0.3 TELEPHONE CALL TO MARY ZUNI RE: ITMA CONFERENCE 
1.2 DRAFT STATEMENT FOR ITMA CONFERENCE 
7 TRAVEL TO WARM SPRINGS FOR ITMA MEETING 
1.2 DRAFT AND FINALIZE NOTES FOR COMMENTS ON COBELL 
CASE FOR ITMA 
6 GENERAL ATTEND REMAINDER OF ITMA SESSION INCL. 
DISCUSSIONS BY TOMMY THOMPSON, MCHUGH, HARRISON, 
ZUNI, ORR, ETC. 
7 TRAVEL FROM WARM SPRINGS FROM ITMA MEETING 
66
2/23/00*39 
2/24/00* 
4/4/00* 
8/14/97 
12/1/97 
1/8/98 
2/4/98 
The foregoing time is not compensable under EAJA and thus, 71.75 hours should be 
71.75 
Hours Billed 
4 
3 
Total 
deducted from any award to Mr. Harper. 
DATE 
5/29/96 
6/3/96 
an asterisk. 
Mr. Peregoy seeks reimbursement for the following time spent on public relations matters 
as well as administrative time on client engagement letters: 
39/ The time that should be excluded for other reasons, such as post-Phase 1 work, is marked with 
c. Robert Peregoy
Robert Peregoy 
Other Non-Compensable Activities Under the EAJA 
MEET WITH IIM TRUST TEAM MEETING AND INTERVIEWS 
WITH COMMUNICATIONS FIRMS 
MEET WITH MEDIA CONSULTANTS AND IIM TEAM 
4 APPEAR AT NCAI POLICIES AND PROCEDURES MEETING; 
DISCUSS SAME WITH DG AND LB 
1.4 APPEAR AT NCAI TO DISCUSS COBELL ISSUES WITH TRIBAL 
2.1 GENERAL PREPARATION OF COMMENTS FOR FBA AND 
RESEARCH 
Administrative and Funding Activities 
1.1 TELEPHONE CALL FROM DG; RE: LEGEND ISSUE AND LANNAN 
FOUND. FUNDING AND USE FOR PRICE 
0.35 TELEPHONE CALL FROM DG; RE: UPDATE ON BANK OF 
AMERICA FUNDING POSSIBILITY 
0.9 DRAFT LETTER. (1ST) OF ENGAGEMENT LETTERS. 
0.5 TELEPHONE CALL FROM REBECCA ADAMSON RE: POTENTIAL 
FUNDING FR ALLOTTEE FACT-FINDING 
Activity 
67
6/7/96 
7/25/96 
12/18/96 
2/26/97 
4/8/97 
4/29/97 
8/15/97 
8/16/97 
8/17/97 
Total 
Since public relations and administrative time is not compensable under the EAJA, 34.7 
hours should be deducted from any award to Mr. Peregoy. 
DATE 
9/14/99
Ms. Babby seeks reimbursement for the following time preparing for, traveling to, 
attending, and speaking at a symposium: 
d. Lorna Babby 
Lorna Babby 
Other Non-Compensable Activities Under the EAJA 
PREPARATION FOR INDIAN LAND CONSOLIDATION 
SYMPOSIUM PRESENTATION ON COBELL LITIGATION (DISCUSS 
W/ KEITH) 
13.2 MEET IIM ATTORNEYS; TT AND MT WITH PR PEOPLE; 
DRAFT 2 PAGE PR PAPER; DRAFT, SEND AND COLLECT CLIENT 
ENGAGEMENT LETTERS FOR CLEGHORN, LAROSE AND 
MAULSON TALK WITH REPORTERS FROM AZ REB, USA TOD 
AND INDIAN COUNTRY TODAY; REVIEW AND EDIT 
COMPLAINT 1.5 HOURS; 
8 PREPARATION OF PORTLAND TRIP-REVISE FACT SHEET, Q&A 
DRAFT PRESS RELEASE; TT BOULDER; TT JEE; TT DG (4); TT 
DP (1); HEARING PREP; GN MT RD; MT KH RE DOCS; 
0.3 TELEPHONE CALL TO DENNIS GINGOLD RE DISCOVERY 
ORDER; HISTRAN FILES; BILLING MATTERS 
1.3 DRAFT REVISE LETTER TO ANHORAGE TIMES AND DRAFT 
LETTER TO CONG YOUNG RE EDITORIAL; CALL HILL RE SAME 
0.4 TELEPHONE CALL TO TWO CALLS TO DENNIS GINGOLD RE 
GRANT AND ATTORNEYS TIME 
0.5 REVIEW GINGOLD, HOLT, PW CONTRACTS AND BILLS AND 
DRAFT MEMO TO BOULDER AND FAX 
1 GENERAL PREPARE SPEECH 
2 PREPARATION OF SPEECH 
1 FINALIZE SPEECH TO INDIAN COUNTRY RE IIM STATUS 
34.70 
Hours Billed Activity 
2.3 
68
9/20/99 
9/20/99 
9/23/99 
9/23/99 
Total 
Since time spent on public relations matters is not compensable under the EAJA, 20.7 
hours should be deducted from any award to Ms. Babby. 
DATE 
11/27/96 
11/29/96 
12/23/96 
12/26/96 
12/27/96 
4/22/97 
5/7/97 
5/7/97 
5/8/97 
Mr. Holt seeks reimbursement for the following time spent on administrative matters that 
appear to relate to Plaintiffs' efforts at securing funding and budgeting for the litigation: 
e. Thaddeus Holt 
Thaddeus Holt 
Other Non-Compensable Activities under the EAJA 
Further telcons and discussions revising orders; attended status confce re 
same; followup with govt lawyers; review report to funders (0.5 hrs court 
Revising report to funders 
Work on budgeting, funding questions; telcons Gingold re same 
Review draft budget etc 
Draft budget; draft proposal re 1997 
Telcon Gingold re new billing practices 
Telcons Gingold re contracts 
Review Gingold 1st draft contract 
Telcons Gingold re contracts 
Review Gingold 2d draft contract 5/9/97 
PREPARATION OF COMMENTS FOR COBELL PRESENTATION AT 
INDIAN LAND CONSOLIDATION SYMPOSIUM 
TRAVEL TO PALM SPRINGS (PHOENIX LAYOVER) 
TRAVEL FROM PALM SPRINGS TO PHOENIX 
GENERAL INDIAN LAND CONSOLIDATION SYMPOSIUM; 
COBELL PRESENTATION 
Activity 
time) 
69 
1.5 
7.8 
1.5 
7.6 
20.70 
Hours Billed 
2.5 
1
1
1
1
0.5 
0.2 
0.3 
0.2 
0.5
0.1 Telcon Gingold re NARF contracts 5/10/97 
0.1 Review Gingold 3d draft contract 5/11/97 
0.5 Telcons, voicemails Gingold re XXX Fdn, handling of demand for sample 10/10/97 
8.90 Total 
These all appear to be overhead items that are not compensable under EAJA. 
Accordingly, 8.9 hours should be deducted in calculating the portion of any fee award pertaining 
to Mr. Holt. 
Mr. Holt also seeks reimbursement for $3,626.59 in expenses: $1,808.25 in taxi fares; 
$1,220.90 in telephone expenses; and $597.44 in miscellaneous expenses for Lexis, Express 
mail, telephone bills, transcript fees, United Parcel Service, and postage expenses. Exhibits 2-4, 
Holt Affidavit. Of these expenses, only the $356.68 claimed in Lexis expenses are compensable 
under the EAJA. Therefore, $3,269.91 in expenses should be deducted from any award to Mr. 
Holt. The Court should also deduct the 3.0 hours Mr. Holt spent preparing his expenses schedule 
because D.C. Circuit case law has determined that these expenses are not compensable under the 
EAJA. Massachusetts Fair Share, 776 F.2d at 1069. 
f. Elliott Levitas 
Mr Levitas seeks reimbursement for the following time entries pertaining to client 
engagement letters, which are not compensable under the EAJA: 
Elliott Levitas & Attorneys & Staff Under His Supervision 
Other Activities Not Compensable Under the EAJA 
Hours Billed Activity DATE 
0.5 3/22/99 EHL - draft and revise engagement letters to plaintiffs, modifications to 
same and lawyer fees reduction 
0.7 EHL - revisions to engagement letters to plaintiffs 4/7/99 
1.20 Total 
70
Accordingly, 1.2 hours should be deducted from any award to Mr. Levitas. 
g. Geoffrey Rempel 
Mr. Rempel seeks reimbursement for the following time spent on public relations 
matters, contracting and consulting with public relations firms, internet web site firms, and also 
secretarial and administrative tasks, which are not compensable under the EAJA: 
DATE 
5/24/00* 
6/5/00* 
6/5/00* 
6/12/00* 
6/16/00* 
6/22/00* 
6/23/00* 
6/25/00* 
6/26/00* 
6/27/00* 
6/27/00* 
6/28/00* 
6/29/00* 
7/6/00* 
7/6/00* 
40/ Mr. Rempel indicates in his affidavit that Policy Impact is a public relations firm. Rempel 
Affidavit at ¶ 16, p. 6. 
Geoffrey Rempel 
Other Activities Not Compensable Under the EAJA 
Non-Compensable Time Spent on Public Relations Matters 
Meeting w/ DG and Phil Smith PR firm re: public relations and class 
outreach. 
Discussion and meeting w/ Policy Impact,40 potential PR firm for Plaintiffs. 
DG, EC. 
CC w/ EC, DG (part) re: afternoon meeting with Policy Impact. 
Review Policy Impact proposal for clients. 
Meeting w/ Policy Impact, DG re: Public Relations approach and outreach. 
Meeting w/ Hayley Barber, Policy Impact, DG re: T II update and PR for 
IIM class. 
Meeting w/ Policy Impact, DG, EC re: T II and PR requirements for class. 
Review Policy Impact letter to EC re: T II and public relations for class. 
Discussion w/ Phil Smith re: Policy Impact contract. 
Draft e-mail to EC re: Policy Impact and contract revisions. 
Discussion w/ Policy Impact re: contract changes. 
CC w/ EC re: T II update and Policy Impact. 
Draft letter to Joe Ignat re: authorization of website for outreach. 
Review Internet material for IIM website. 
Discussion with Phil Smith, Policy Impact, re: events update. 
Activity 
71 
Hours Billed 
1.5 
1.5 
1.3 
0.3 
1.0 
1.2 
1.3 
0.2 
0.1 
0.2 
0.4 
0.2 
1.3 
0.3 
0.1
7/6/00* 
7/9/00* 
7/10/00* 
7/10/00* 
7/11/00 
7/11/00* 
7/12/00* 
7/13/00* 
7/17/00* 
7/17/00* 
7/21/00* 
7/25/00* 
7/25/00* 
8/2/00* 
8/3/00* 
8/3/00* 
8/4/00* 
8/9/00* 
8/10/00* 
8/21/00* 
8/28/00* 
8/29/00* 
9/2/00* 
9/5/00* 
9/5/00* 
1.5 Review contract for internet services co. Viawest. Forward onto Viawest. 
0.1 E-mail response to Phil Sith, Policy Impact. 
0.1 E-mail w/ Phil Smith re: update. 
0.2 Discussion w/ Phil Smith. Update on case status. 
0.3 Discussion w/ Phil Smith re: udpate on events and T II progress. 
0.5 Discussion w/ Joe Ignat re: internet website, progress of identification of 
experts and related T II issues. 
1.2 Discussion w/ DG and Policy Impact re: approach to communication with 
constituents, reporters and class. (EC by phone). 
0.3 Review Policy Impact case overview and edit. 
0.2 Discussion w/ Phil Smith re: IIM chronology for communication purposes. 
0.2 Review Phil Smith chronology for completeness and accuracy. 
0.1 CC w/ Joe Ignat re: meeting w/ Policy Impact re: internet web hosting 
service. 
2.0 Meeting w/ Policy Impact, EC, Joe Ignat (by CC for part) re: status of 
public relations effort, Babbitt and status of litigation. 
0.4 Discussion w/ Phil Smith re: website, approach and related issues. 
1.1 Review web hosting contract for PR firm. 
0.5 CC w/ web hosting firm, Phil Smith and MKB re: contract and disputed 
provisions. 
2.0 Review web hosting contract and update with draft changes. 
0.8 Review web hosting contract and update with MKB and my changes. 
0.4 CC w/ Policy Impact, GSL, MKB re: contract w/ web hosting firm. ( 2 
calls). 
0.3 CC w/ Blackburn re: PR firm. 
0.1 CC w/ Adam Lombardo re: invoicing and web site. 
0.4 Review web site material and suggest changes. 
0.7 CC w/ EC re: update & approach to NPR interview. (2 calls) 
0.2 CC w/ Phil Smith re: submittal of affidavit of Diane Rehm radio program 
w/ Gover. 
0.1 Left msg w/ Real Legal re: posting on transcripts on web site. 
0.1 CC w/ Eva Gottleib at Real Legal re: posting transcripts on web site. 
72
9/6/00* 
9/7/00* 
9/13/00* 
9/14/00* 
9/15/00 * 
9/15/00* 
9/18/00* 
11/7/00 * 
11/29/00* 
12/13/00* 
12/15/00* 
12/18/00* 
12/18/00* 
12/18/00* 
12/19/00* 
12/19/00 * 
12/19/00* 
1/19/01* 
1/26/01* 
1/26/01* 
2/6/01* 
2/12/01* 
2/12/01* 
7/12/00* 
9/8/00* 
12/16/00* 
1.5 Transfer domain name to GSL re: Indian trust web site, including CC w/ 
Adam Lombardo (website contractor). 
0.1 Left msg. For real legal.com re: web site. 
0.4 CC w/ reallegal.com re: web hosting. 
0.3 CC w/ GSL Solutions re: Indian trust web site. 
0.6 Meeting w/ GSL personnel re: indian trust web site. 
0.2 CC w/ AP reporting re: class size definition. 
0.2 Meeting w/ Policy Impact re: communication w/ class and related 
settlement updates. 
0.2 CC w/ GSL re: web site. 
0.6 CC w/ EC, Phil Smith re: presentation (2 calls). 
1.3 Review Policy Impact contract draft and edit. 
0.5 Review Policy Impact contract and edit. 
0.3 CC w/ DG, EC re: recent motions and events, including Policy Impact. 
0.5 Edit Policy Impact contract. 
0.4 Meet w/ Policy Impact regarding contract edits and goals, includes CC w/ 
principal. 
0.2 Discuss w/ Policy Impact re: agreement. 
0.2 CC w/ EC, DG re: Policy Impact. 
0.3 Review Policy Impact contract. 
1.7 Discuss w/ EC, Policy Impact, DG re: status. 
1.6 Discuss w/ DG, MB, Policy Impact re: drafting of public comments. 
0.4 Meet w/ DG, Policy Impact, MKB re: status of case and recent events. 
0.2 CC w/ Policy Impact, GSL re: website. 
0.5 Discuss case options w/ Policy Impact, DG, MB. 
1.3 Discuss w/ DG, Policy Impact re: status. 
Non-compensable Time Serving Documents and on Secretarial Duties 
0.3 Transcribe unknown caller's voice mail for possible investigation into 
probate (mis) reporting. 
0.6 Serve email brief at federal courthouse. 
0.2 Fax to DOJ motion for extension. 
73
1.3 1/05/01* Go to Courthouse to retrieve Bakaly Grand Jury investigation material for 
e-mail contempt 
40.60 Total 
Accordingly, 40.6 hours should be deducted from any award to Mr. Rempel. 
Hourly Rates B. 
The EAJA-Capped Rates Are Appropriate For Any Fees Awarded 1. 
If the Court finds that Defendants' position was not substantially justified and it elects to 
award interim fees to Plaintiffs, then it should use the EAJA-capped rates in calculating any fee 
award to Plaintiffs.41 As set forth above, Plaintiffs have failed to meet the stringent standard to 
establish bad faith conduct by Defendants that could entitle them to hourly rates beyond the 
statutory cap. 
2. The Laffey Matrix Should Apply For Fees Attributable To Conduct 
Deemed Bad Faith. 
If the Court were to disagree with Defendants and find bad faith conduct, the Court 
should use the Laffey Matrix to determine "market rates." In determining a reasonable hourly 
rate, the petitioner's proposed rates should be compared to rates "'charged for similar work by 
attorneys of like skill in the area.' " Sierra Club v. Army Corps of Engineers, 776 F.2d 383, 392 
(2d Cir. 1985) (remanded to the district court where there was no indication that these rates were 
compared with rates charged by attorneys in similar skill area) (quoting Cohen v. West Haven 
Board of Police Comm'rs, 638 F.2d 496, 505-06 (2d Cir. 1980)). As this Court has previously 
observed, the updated version of the Laffey Matrix "reflects prevailing market rates in the greater 
41/ Defendants agree with Plaintiffs that the table included in the Interim Petition, id. at 12, 
reflects the appropriate capped EAJA rates, as adjusted for cost of living increases. 
74
Washington area." Cobell v. Norton, 231 F. Supp. 2d 295, 302 (D.D.C. 2002). Moreover, 
Plaintiffs have previously submitted the Laffey Matrix as evidence of reasonable hourly rates for 
calculating prior fee awards in this case. Id. 
Plaintiffs fail to provide any competent evidence that the Laffey Matrix no longer 
represents a reasonable hourly rate. In the Interim Petition, they request that the Court depart 
from the Laffey Matrix and increase their fees based on substantially higher rates found in a 
PWC "Survey" attached to their submission. See Levitas Affidavit, Exhibit D-1.42 Indeed, it 
dramatically enriches their fee award – increasing Mr. Gingold's submission alone by over $1.4 
million, see Gingold Affidavit at 15 – yet Plaintiffs do not bother to lay a foundation for use of 
the survey, either by affidavit or other means, or otherwise attempt to explain why it should serve 
as competent evidence of "market rates." Instead, they just casually attach it to their submission 
with a passing mention in a footnote explaining that they "utilized" the PWC survey instead of an 
expert for evidence of "market rates." See EAJA Petition at 2 n.2. 
In using the PWC survey, Plaintiffs provide no explanation as to whether all relevant 
parts of the PWC survey are attached,43 what the methodology is behind the survey, whether it is 
typically used or has ever been used in litigation as evidence of reasonable market rates or 
whether it is applicable to attorneys practicing in this type of class action litigation in this 
locality. There is also no way to tell from the survey itself whether Mr. Gingold, for instance, 
42/ Plaintiffs mistakenly inform the Court that the PWC "survey" is attached to the Gingold 
Affidavit. See Interim Petition at 2 n.2. In addition, their request – unaccompanied by a motion 
for a protective order – that the PWC "survey" be kept confidential, id., should not be granted. 
43/ Without explanation, it provides less detailed information for the years 1996 and 1997 than for 
the years 1998 through 2001. See Levitas Affidavit, Exhibit D-1. 
75
should be billed at the very top billing rate category for all attorneys in Washington, DC, as he 
opines in his affidavit. Gingold Affidavit at 14. Tellingly, Mr. Gingold and Mr. Holt both state 
in their affidavits that, prior to June 5, 1998, the actual hourly rate they charged their clients in 
this case was $345 per hour, including expenses. Gingold Affidavit at ¶ 29; Holt Affidavit at 
¶ 22. Yet, they now both inexplicably seek to rely on this survey for higher "market rates" than 
they actually charged their clients. Gingold Affidavit at ¶ 30; Holt Affidavit at ¶ 23. In short, 
Plaintiffs have submitted the PWC survey without meeting their burden to establish that the rates 
contained therein are "'charged for similar work by attorneys of like skill in the area.'" Sierra 
Club, 776 F.2d at 392. Therefore, it must be rejected. 
3. Hourly Rates For Consultants Performing Paralegal Work Must Not 
Exceed The Reasonable Hourly Rate For Paralegals 
Improper billing rates from Plaintiffs' consultants also contribute to the excessiveness of 
the Interim Petition. Plaintiffs' professional consultants bill at a $200 to $225 hourly rate for 
tasks ordinarily performed by a paralegal at a lower rate. Examples include, but are not limited 
to, PWC Associate Consultant Chris Weber spending 149 hours in February 1999 bates 
numbering documents. See Pollner Affidavit, Exhibit AG, February 1999. At his $200 
consultant rate, this amassed a $29,800 bill. Similarly, during February 1999, another PWC 
Associate Consultant, Henry Ines, spent 117 hours to inventory, stamp, and label documents at an 
hourly rate of $200 per hour, amassing a $23,400 bill. Id. Prior to that, in August 1998, Mr. 
Weber billed at his $200 rate for preparing binders. Id. Exhibit AG, August 1998. Two hundred 
dollars per hour is not a reasonable hourly rate for stamping documents and preparing binders. 
PWC associate consultants also performed paralegal functions during the Phase 1 trial, 
yet billed at their higher consultant rates. Leslie Tomlinson spent 266 hours performing "Trial 
76
Support" work that included organizing exhibits, pulling documents, and maintaining a database 
of documents, but billed at $200 per hour, amassing a bill of $53,200 for those tasks in June 
1999. See Pollner Affidavit, Exhibit AG, June 1999. Also during the trial, Mr. Weber billed 
$200 per hour on multiple occasions for a task described as "Courthouse run/photocopy 
documents for court" and another PWC consultant, Rachel Graban charged $200 per hour to 
"Download and print trial transcripts." Id., Exhibit AG, June 1999. These are but a few 
examples of PWC consultants performing what are essentially paralegal functions. While 
Plaintiffs may wish to use $200 per hour consultants to organize exhibits and photocopy and 
print documents, the government cannot be required to reimburse Plaintiffs at those unreasonably 
high hourly rates. Accordingly, for all time spent performing these type of tasks, PWC 
consultants' hourly rates should be reduced to the EAJA-capped rate for paralegal work. 
Plaintiffs' consultant, Geoffrey Rempel, is also requesting reimbursement at $225 per 
hour for time after he left the employ of PWC and worked directly for Plaintiffs' legal team. As 
Mr. Rempel points out, the Court previously ruled that he was entitled to an hourly rate of $225 
per hour for his professional services. See Rempel Affidavit at 7. While that hourly rate may be 
reasonable for time Mr. Rempel spent performing accounting work, it is not a reasonable hourly 
rate for a legal assistant. The work he bills for in this submission is the type of work ordinarily 
performed by a paralegal. He assists with drafting legal pleadings, reviews documents, conducts 
research and other litigation tasks that do not require the expertise of an accountant. Id., 
Schedule A. Mr. Rempel's bills include tasks like searching for a document on the internet, 
conferring with attorneys regarding bates stamping documents, printing documents, and 
distributing documents via fax or e-mail. Id., Schedule A at 3. His tasks range from drafting 
77
documents, id., Schedule A at 7, to acting as a courier to pick up documents at the courthouse 
(which are not compensable under the EAJA), id., Schedule F at 33. Mr. Rempel does not claim 
to have a law degree and, by any reasonable measure, this is not accounting work. Regardless of 
what title Plaintiffs assign to Mr. Rempel, the tasks described in his time entries indicate that the 
work actually performed is akin to the work of a paralegal. Accordingly, Mr. Rempel's work as a 
legal assistant for Plaintiffs' counsel should only be reimbursed at EAJA-capped rates for 
paralegals. 
VII. APPROPRIATE INTERIM EAJA TIME 
As discussed above, Plaintiffs are not entitled to any EAJA award. If the Court 
nevertheless elects to grant an interim award, Defendants have prepared a table, attached as 
Exhibit 9, which identifies the improperly billed hours in the Interim Petition (as described in 
Sections V & VI above). Exhibit 10 is a table that indicates the maximum amount under EAJA 
that can be awarded to each individual after the improperly billed hours are deducted. As 
discussed above, this figure should be reduced by 20% due to the excessive billing in the Interim 
Petition. After these calculations are done, Plaintiffs can be awarded no more than 
$4,313,047.22. 
78
For these reasons, Plaintiffs’ Interim Petition should be denied and no EAJA fees or 
expenses should be awarded. 
Dated: September 7, 2004 
CONCLUSION 
Respectfully submitted, 
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/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
TIMOTHY E. CURLEY 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
79
CERTIFICATE OF SERVICE 
I hereby certify that, on September 7, 2004 the foregoing Defendants' Opposition to 
Plaintiffs' Equal Access to Justice Act Petition for Interim Fees Through the Phase 1.0 
Proceeding was served by Electronic Case Filing, and; 
on the following who is not registered for Electronic Case Filing, by pre paid First Class U.S. 
Mail to: 
Earl Old Person (Pro se) 
Blackfeet Tribe 
P.O. Box 850 
Browning, MT 59417 
a copy of the Bulky exhibits was served upon: 
Dennis M Gingold, Esq. 
Mark Brown, Esq. 
Elliot Levitas, Esq 
607 - 14th Street, NW, 9th Flr. 
Washington, D.C. 20005 
Keith Harper, Esq. 
Richard A. Guest, Esq. 
Native American Rights Fund 
1712 N Street, NW 
Washington, D.C. 20036-2976 
/s/ Kevin P. Kingston 
Kevin P. Kingston
1999 
0.2 
9.2 
0 
0 
1 
0 
0.5 
0 
10.6 
7 
19.4 
1 .I 
4 
0 
0 
13 
21 -6 
0 
0 
0 
0 
4 
0 
0 
0 
0 
Billing Entity 
ASC 
BABBY 
BLS 
BROWN 
CHRIS WEBER 
CRB (CHARLOTTE BUTTRAM) 
DMZ (DAVID ZACKS) 
ECHOHAWK 
EHL (LEVITAS) 
GINGOLD 
HARPER 
HOLT 
JESSICA POLLNER 
JMW (J. MICHAEL WIGGINS) 
JTC 
LAURA SCHWEITZER 
MJA (MILES ALEXANDER) 
MSY 
NARF CLERKS 
PEREGOY 
RCD (RODERICK DENNEHY) 
REMPEL 
RIC PACE 
RLR (RONALD L. RAIDER) 
RPM (ROBERT MARCOVITCH) 
RSF 
SAC (STEVE CLAY) 
SANDEEP SOORYA 
SP (SARAH PEREZ) 
TC 
WP (WILMER PARKER) 
WWB 
0 
0 
0 
0 
2 
0 
2001 
0.8 
59.2 
1.5 
796 
6.8 
2000 
143.386 
0 
237.638 
0 
1.4 
29.2 
1 .a 
628.2 
1813.6 
1050.45 
35.7 
3 
249.1 
2.1 
6 
0.6 
0 
221.45 
0 
53.2 
587.975 
0 
3.2 
40 
0 
0 
2.5 
0 
62.5 
376.2 
73.2 
72.6 
0 
116.6 
0 
0 
0.5 
6.8 
132.5 
0 
0 
276.625 
0 
2.2 
0 
0 
0 
0 
38.7 
0 
0 
0 
0.8 
0.6 
7 
141.9 
5.1 
0.3 
0.8 
0 
0 
0 
2002 
20.331 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
0 
2.5 
864.4 
6.8 
1 .a 
109.4 
7 
365.7 
2.1 
19 
1.1 
6.8 
353.95 
21.6 
53.2 
864.6 
4 
3.2 
42.2 
0.8 
Total 
401.355 
1 
1.4 
32.2 
701.3 
2196.8 
1143.05 
0.6 
7 
180.6 
5.1 
2.3 
0.8 
7403.655 
EXHIBIT I 
Defs’ Opposition 10 Pltfs 
EAJA Fees for Phase I 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. 
)
) 
NOTICE REGARDING EXHIBIT ATTACHMENT 
Exhibit 2, an attachment to Defendants' Opposition To Plaintiffs' Equal Access To Justice 
Act Petition For Interim Fees Through The Phase 1.0 Proceeding, is in paper form only and is 
being maintained in the case file in the Clerk’s Office. This document – which is comprised of 
two parts, Exhibits 2A and 2B – will be available for public viewing and copying between the 
hours of 9:00 a.m. to 4:00 p.m., Monday through Friday. 
Respectfully submitted, Dated: September 7, 2004 
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/ Sandra P. Spooner 
SANDRA P. SPOONER 
D.C. Bar No. 261495 
Deputy Director 
JOHN T. STEMPLEWICZ 
Senior Trial Counsel 
TIMOTHY E. CURLEY
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
P.O. Box 875 
Ben Franklin Station 
Washington, D.C. 20044-0875 
(202) 514-7194 
2
EXHIBIT 3 
Defs' Opposition lo PkfS 
EAJA Fees for Phase I DATE 
October 8 1997 
October 15, 1997 
October 22,1997 
October 23, 1997 
October 29, 1997 
October 30, 1997 
October 31, 1997 
November 3, 1997 
November 4, 1997 
November 5, 1997 
November 14, 1997 
November 17, 1997 
November 20, 1997 
November 21, 1997 
Noveniber 24, 1997 
November 25, 1997 
Noveniber 26, 1997 
December 1, 1997 
December 2, 1997 
December 3, 1997 
December 4, 1997 
December 5, 1997 
December 6, 1997 
December 7,1997 
December 8, 1997 
December 10, 1997 
December 11, 1997 
December 12, 1997 
CURRENT BILL 
3.6 
2.4 
5.9 
6.8 
1.5 
3.8 
4.6 
5.6 
2.7 
8 
1.9 
1.8 
2.5 
4 
6.4 
5.4 
4.9 
7 
4.2 
5.8 
7.8 
1.6 
2.1 
5.9 
3.5 
6.4 
9.2 
PIZEWOUS AWARD 
- 
1.9 
0.1 
0.4 
0.7 
0.2 
0.8 
0.8 
- 1.1 
0.2 
1.2 
2.0 
1.5 
2.5 
- 4.8 
0.9 
2.3 
3.0 
- 
- 
4.9 
1.3 
1.5 
7.3 
0.9 
1.2 
1.1 
0.4 
6.4 
0.7 
CORRECTED 
I .7 
2.3 
5.5 
6.2 
1.3 
3.0 
3.8 
4.5 
2.6 
6.8 
-0.1 
0.3 
0.0 
-0.8 
5.5 
3.2 
1.9 
2.1 
2.9 
4.3 
0.5 
0.7 
0.9 
4.8 
3.2 
0.0 
8.5 Year 
1996 
1997 
1998 
1999 
2000 
DOUBLE BILLINGlCONFUSING BILLS 
(previously awarded hours, excluding time deducted for other objections) 
Hours deducted (previously awarded) 
31.5 
89.6 
356.7 
90.3 
6.2 
Grand total : 574.3 
EXI-IIBIT 5 
Dcfs’ Oooosition lo Pllrs EXHIBIT 6 
Dcfs’ Opposition lo Pltfs 
EAJA Fecs for Phase I STATISTICAL SAMPLING 
EAJA &cs for Phase 1 PLEADING PGs Bahby Brown Echohawk Dauphinais Gingold Harper Holt Kawahara Levitas Peregoy PWC NARF TOTAL 
43 Certify Class Action, Filed 6-6-96 
4-16-97 
Plaintiffs' Opposition to Defendants' 14 
Motion for Protective Order and to 
Quash Subpoena Directed to Paul Hrsl 
H o r n File 6-13-97 
Reply Memorandum in Support of 
Plaintiffs' Motion for Interim Relief 
nts./ 
Page 
Plaintiffs' Motion for Interim Relief 44 
Filed 
Hrs.1 
Page 
Page 
25 
HIS./ 
Page 
2 
Filed 7-21-97 
Plaintiffs' Request for Trial Date to 
Begin on Aug 03 1998 Filed 10-28-97 'fiS./ 
Page 
Plaintiffs' Reply to Defendants' 
Opposition to Setting a Trial Date 
Filed 11-13-97 
9 
HIS./ 
Page 
EXCESSIVE TIME 
ATTORNEY TIME 
75.80 33.55 
1.76 0.78 
444.30 1.80 
10.09 0.04 
24.30 
1.73 
120.00 
4.80 
16.50 
8.25 
59.60 
6.62 
Clerks 
285.75 18.40 76.00 63.50 18.50 
6.64 0.42 0.43 1.47 1.76 
581.90 11.90 16.00 87.80 20.10 
13.22 0.27 0.45 1.99 2.75 
65.05 17.15 20.30 3.30 
0.23 1.45 1.22 4.64 
263.70 96.90 36.80 9.80 
10.54 .392 1.47 3.87 
24.80 
12.40 
4.20 
2.10 
4.10 
2.05 
18.50 122.33 40.83 3.40 
0.37 4.53 2.05 13.59 
EXHIBIT 8 
Defs' Opposition to Plrfs 
EAJA Fees for Phase I EXCESSIVE TIME 
PLEADING I PGs lBabby( Broww 
13.90 Plaintiffs' Memorandum in Opposition 11 
to Defendants' Motions for Protective 
Order and Expedited Hearing 
Regarding Depositions of Joe Christie 
andDonna Erwin, Filed, Apr. 2,1998 Hrs./ 1.26 
Page 
Defendants Motion for Protective PGs Babby Brown Echohawk Daupllinais Gingold Harper Holt Kawabara Levitas Peregoy PWC NAl7F TOTAL 
Hrd 2.04 
Page 
I 
PLEADING 
Plaintiffs' Opposition to Defendants' 9 
Motion for Leave to File Reply to 
Plaintiffs' Answers to "Corrected" 
Petition for Petition for Permission to 
Appeal, Jan 24,2000 
Appellees Response Brief, Jun 23, 
2000 
66 
Hrs./ 3.20 0.92 
Page 
2.80 18.40 
0.31 
21 1.60 60.87 1.70 
0.02 
EXCESSIVE TIME 
7.30 16.90 
0.81 1.87 
212.00 205.10 
3.10 3.21 
15.20 
0.23 
13.40 1.90 
1.48 0.21 
146.00 
2.21 
Clerks 
60.70 
9.74 
852.47 
12.91 Billing Entity 
JFM 
___ 
_ _ _ _ ~ 237.351 71.50 408.261 66.90 -~ 431.031 
34.30 
- 
-j______-’ 
____, 
AD 
ADRIAN CLARKE 
AEA (ALEXIS APPLEGATE) 
ANDREA CLARK-CIGANEK 
ANDREAMCGLYNN 
ASC 
BABBY 
BEAR 
BLS 
BRENDASUN 
BRIAN MCKAY 
BROWN 
CANDICE WU 
CHRIS BDRDENER 
CHRIS FORHECZ 
CHRIS WEBER 
CHRISTINE HSlEH 
CRB (CHARLOTE BUTTWIM) 
DANELLE LARSEN 
DANTE PARHAM 
DAUPHlNAlS 
DFC 
DGB 
DMZ (DAVID ZACKS) 
DONALD MCGAUHEY 
DOUGLAS BARBIN 
ECHOHAWK 
EHL (LEVITAS) 
ELENI BUNCH 
ERIC SEIFERT 
ERICA STMTEN 
GEOFFREY REMPEL (PWC) 
GlNGOLD 
GREG BARDNELL 
HARPER 
HENRY INES 
HOLT 
JASON FLEMMDNS 
JCB 
JEFF PARMET 
~~ 
JESSICA PDLLNER 
JMW (J. MICHAEL WIGGINS) 
JOE CHERIATHUNOAM 
JOHN LANKENAU 
JRS (JORDANA STERNBERG) 
JTC 
JVH (VANCE HUGHES) 
JWX 
KAWMRA 
KHS (KIM STDGNER) 
Dab Year 
1996 1998 
Hours Bilied IHOUE Disputed Hours Bilied ~HOUE Dispuled Hours Billed IHours Dispuled HDUE Billed 1Hours Dispuled HOUS Billed IHaun DisPulea 
12.501 
I 
i 
_ _ _ _ _ ~ I 
___ 
1 
I 
I - 15.001 
~ . _ _ _ _ I - I 
I 
-___ I 
__ I 1 I 
0.00 0.001 
17.80 
~~ 
-. - 
- 
51.10 
-7 
I 
i 
I 
I ~- 
1 
1 
I 
I 
363751 
i 
29.401 
I 
I 
I 
I 
I 
I 
I 
I-____ 
I 
1,315.601 
I 
400.101 
i 
____/ 
I 
I 
I 
i 
I 
6.351 
i 
I 
I 
1478.901 
631.54- 
i 
I 7- 1 
i 
I 
I 
1 
1 ____ i i I 
94.8oi- 13.80 
I 
169.001 I 
1 - 
493.001 
I 
__.___. I j-- 
I 
3.20 118.741 
i 
1997 
.__- I !-~.-.___ 
I #-- 
58.001 L- 1 - 
I 
1 
I 
I 
I 
973.711 I 
I-- 
I 
286.001 I 
I 
0.00 0.001 
i 
o.ooi 
I !-____ 
I 
i 
! ~ ___ I 
I 
I 
i I 
I 
288.20 
71.62 
5.00 
0.00 
26.00 
2.30 
153.00 
507.10 
45.00 
18.25 
42.50 -, 
55.00 
10.00 
-~ 
34.001 
223.001 
725.001 ~- I 
I 
-_ 9.001 
4.001 
i 
~_____ I 
I 
1 
I 
58.001 
4.95 ____ 11.151 
I 
115.001 
67.001 
7.001 
1,169.0! 
1,732.101 
197.00! 
825.46 
456.00/ 
46.001 
I 
I 
I 
I 
_ _ ~ 257.001 I __ 
55.001 
855.201 ~ 
I 
1.301 
i 
1.347.001 
2,321.801 
1,663.251 
3.001 
33.301 
I 
6.301 
-i 
I i 
1 
2000 1999 
I ___ 
23.501 
I ~- 
~ 
43.003 
! 
34.101 
1.423.64 
94.401 
I 
I 
31.001 
O.OO! 
285.00!! 
I 
493.001 
106.001 
I 
I 
102.001 
I 
0.60! 
17.101 
15.001 
I 
68.401 
1.092.601 
I 
I 
116.10 321.101 36.10 
3.10 
j 
1 
1 
4.00 
68.30 
3.101 
2.001 
150.001 
io1.501 
108.001 
24.001 
5 . 2 0 7 -~ 
1.30 
3.001 
287.401 
I 
I 
I 
2.601 
I 
1 
1 
3.00 
254.80 
~ _ . ~ ~ _ _ _ _ _ _ _ _ _ _ 
____.____ 
2.61) 
0.50 
33.30 
0.80 
23.50 __ 7 
I ___- 
34-10 __ 
43.30 
2.50 
797.50 
20.90 - - 
196.31 
~ 
42.10 - 
j 
1 
2.501 
1.130.10l 
20.901 
I 
I 
292.053 
I 
i- 
I 
I 
i 
I 
I 
I 
I 
0.801 
47.101 
1 
I 
6.201 
1.131.001 
I 
I 
I 
I-_____ 
2.252.401 
I 
1,858.051 
0.80 
1.80 
740.30 
127.30 
1.563.75 
0.00 
1.00 
~- 1.401 1.40 
__ 
- 
0.60 
11.30 
- 
341.30 
-~ 2.00 
490.80 
251.40 
~ 
EXHIBIT 9 
Dcfs’ Opposition to Plffs 
EAJA Fees for Phase 1 I I I I 2001 
IHom Billed Billing EnIiD, 
2003 2004 
iHaurs Dlpuled IHo~rs Billed iHaun Gispuled IHours Billed IHoun Gispuled 
I - __ ~ 1 I 
2002 
IHoun Disputed lHoun Billed 
I 
I 
I 
i 
I I I- I 
I 
I I 1 i I __ 
I 
I 
I 
I 
i 
I 
1.601 
60.201 
1.60 
59.20 ..... I I 
I-___ 
I 
I 
I 
I 
I 
__ I 
I ! 
I i 1 
69.64 
I 
I 
I 
I 
I 
15.601- 
0.201 
I 
I 
I 
I 
I 
I 
I 
140.161 
I 
I 
I ==--- 
l- 
J*M 
AD 
ADRIAN C M K E 
AEA (ALEXIS APPLEGATEI 
ANDREA CLARK-CIGANEKJ 
ANDREA MCGLYNN 
ASC 
BABBY 
BEAR 
~. BLS 
___ 
BRENOASUN 
BRIAN MCWY 
BROWN 
CANDICE WU 
CHRIS BDRDENER 
CHRIS FORHECZ 
CHRIS WEBER 
CHRISTINE HSlEH 
DANELLE LARSEN 
DAME PARHAM 
DAUPHlNAlS 1 
-1 
I 
I 
- 1 2.501- 
I 
I 
7 I 
370.921 
I 
i 
I 
I 
i1.- 
I 
I 
CRB (CHARLOlTE B W I I____?_ 
I 
i=- 1 I 
68.30/--" 
I 
i 
i 
I 
431.80i 
09.901 
I 
7 6 . 5 5 7 
I 
I 
i-- 
!--- 
123.901 
I-- 
I 
I 
I 
I 
- ~-~ I - 
!- 
I 
357.20 24.081-, 24.06 139.20 
I- 
I __ I 
I 
I 
I 
2.50 
62.90 
29.90 
____ 73.20 
116.60 
.- 
-1 - 
v- i 
I 
61.201 I 
I 
__ 
L 
I 
I ~ 
I 
I 
I 
i- 
I 
I 7-- I - I 111.00 
__ I 
I 
I 
i I i~-.- 
I i + I 
I 9.65 
264.60 
103.40 
0.75 *- 
+- 
-- 
0.60! 
___i 
I 
19.301 
I 
I 
I 
I 
569.20f 
I 
206.601 
1 
17.501 
83.70 --- I i- 
I--'- 
~~ 
~~ 
0.40 
15.00 
50.00 
121.50 
2,311.40 
115.00 
67.00 
7.00 - 
2.516.00 
10,101.60 
253.00 
5.675.10 
713.00 
2,346.99 
46.00 
342.00 
!rrIIp-p I 
I 
I I 
I !-- 
i 
I 
I 
I I 
1 
I 
I 
I 
I I 
I ___ I 
I 1 I 
1 i 
I 
I 
' 
i 
-i-___ 
~~ I 
I ~-7 
3.10 -7 2.00 
i 
I 
I-____ 
I 1. 
I 
I_- 
I 
I 
- % E 
601.00 
24.00 
5.20 
.- ~ 3.90 
- . - ~ _ _ _ _ 
213.54 
3.00 
33.30 
6.30 
40.60 82.60 
4.00 
363.75 
0.60 
0.80 
67.50 
-7 DFC 
DGB 
OMZ (DAVID ZACKSI 
DONALD MCGAUHEY 
DOUGLAS BARBIN 
ECHOHAWK 
EHL (LEVITAS) 
ELENl BUNCH 
ERIC SEIFERT 
ERICASlRATEN 
GEOFFREY REMPEL(PWC1 1 
GINGOLD 
HARPER 
HENRY INES 
HOLT 
JWX 
KAWAHARA 
KHS (KIM STOGNER) 
7 I 
i 
i 
I 
G R E G 1 
I 
I 
I 
I 
I 
I 
i 
i___---.-. 
STERNBERGI !-, 
I 
FLEMMONS 
JCB 
JEFF PARMET 
JESSICA POLLNER 
JMW (J. MICHAEL WIGGINS)-/ 
JOE CHERIATLUNDAM 
JOHN WKENAU 
=JORDAN!+ 
JTC 
JVH(VANCE HUGHES) 
I 
I 
I 
Tobl Hours Bilied Total Haun Dispvled 
__ ,= 
7.00 
0.20 
--__ 
70.06 
- 
23.50 
56.00 
15.00 
43.00 
15.00 
38.40 
3.587.65 
94.40 
20.90 
206.00 
31.00 
974.40 
265.00 
34.00 
716.00 
1,752.00 
106.00 
23.50 
7.00 
5.00 
30.40 
900.00 
20.90 
717.36 
26.00 
1.00 
42.00 
17.00 
0.60 
0.00 
56.30 
9.05 
1.154.15 
155.00 
1,777.00 
45.00 
2,126.42 
415.5 
3.10 
62.00 
439.70 
10.00 
3.90 
0.50 
33.30 
17.00 
0.00 - 
__ 
__ Biilin@v 
LARRY THIBODEAU 
LAURA GDODING 
LAURA SCHWEITZER 
LESLIE TOMLINSDN 
M I C E OORSEY 
MCKAY MOTSHABI 
MICHAEL CHANG 
MiKE SAVAGE 
MJA (MILES ALEXANDER)- 
MSY 
NARFCLERKS _____ 
PATRICK KELKAR 
PAUL GUNSDN 
PEREGOY 
RACHEL GRABAN 
RCD (RODERICK DENNEHY) 
RCV 
REMPEL 
RENEE GRAVES 
RIC PACE 
RLR (RONALD L. RAIDER) 
RON MONTICONE 
RPM (ROBERT MARCOVITCH) 
RSF 
SAC (STEVE CLAV 
SANOEEP SOORYA 
SHANNON JONES 
SHARON FlTZSlMMONS 
SP (SARAH PEREZ) 
STEPHANIE ZHUANG 
TC 
TKB 
TRACEY FDLEY 
WP (WILMER PARKER) 
WWB 
,GiandTolal 
Dela Yea, 
- 
1996 
Houn Biiied /Hours Dl?.pputed 
I 
I 
I 
I 
I 
i:- 
1997 
1 
I 
I 
I 
I 
i 
I 
I 
I-.-- 
1 
267.351 
I-- 
I 
I____---, 
I 
I -. 
!-- 
-7- 
i-- 
, I 
I 
I 1 
I 
1 
i 
I 
I 
I 
7 I 
I 
2.708.351 
I 
3.254.791 251.45 
- 
Houn Billed /Hours Disputed Hours Billed 
1998 
206.001 
I 
17.001 
78.001 
2.001 
25.001 
146.251 
13.001 
293.251 
I c- 317.751 
I 
I 
I 
I 
I 
1 
I 
1- 
I 
I 
i--- 
62.95 
-~ I 
I 
I i-- 
Y 
391.001 
I 
I 
I 
I 
I 
21.001 
729.631 
-. ! 
I 
I 
I 
25.00r 
I 
I 
__...,___ 73.001 
I 
I 
I 
8.90 
441.77, 
L-- I 
1.386.ooi 
44.001 
224.001 
151.301 
174.001 
I 
-- 
1493.90 940.01, 
i 
i- 
0.50i-'p 
1.401 
11.OOl 
I 
2.00l 
16.638.591 
7.001 
I 
I 
10.185.341 
/Hours Dispuied Hours Billed 
2000 
IHoun Oispuled 
1 
13.00 
1.00 
- 
1999 
Hour5 Bilicd 
I 
I 
I 
905.201 
395.001 
0.62 
3.00 
1 
1.103 
3sf.ooi 
I 
1 
I 
7.86 21.60 
4.50 
26.301 
481.001 
133.401 
4.401 
I 
42.001 
1M.OOl 
1.001-' 1.00 - 1.301 
3.201 
I 
0.60 
4.00 
0.50 
15.00 
1.40 
2.00 
__ 
6.00 8.001 
_______i-- 
I 
I 
I 
0.90 0.901 i 
245.95 
56.20 
870.58 
245.951 
I I 
i-- 
1 
i 
912.581 
59.501 
I 
3.20 
81.501 44.60 
1.30 
0.60 
7.00 
148.80 
0.601 
7.001 
I 
I 
171.80; 
I ~- 33.701 33.70 
I i 
1.70!-.- 
1.601 
8.885.921 
0.30 
1.60 
5.211.88 - I 
I i 
I 
I 
I 
I 
i 
I 
;+ 
1- 
U K K r IPtWUUWV 
L4URAGOODING 
IAURASCHWEiiZER 
LESLIE TOMLINSON 
MARICE OORSEY 
MCKAY MOTSHABI 
MICHAEL CHANG 
MIKE SAVAGE 
~- RCV 
SP (SARAH PEREZ) 
STEPHANIE ZHUANG 
TC 
TKB 
TRACM FOLEY 
WP (WILMER PARKER)- 
WWB 
Grand Tola1 
0.5[)1 0.5d 
1- 
I , 
MSY 
NARF CLERKS 
PATRICK KELKAR 
PAUL GUNSON 
PEREGOY 
RACHEL GRABAN 
RCO (RODERICK OENNEHY] i + 1 - h 
282.531 
I 
I- 
I 
2.201 
i I 
REMPEL 
RENEE GRAVES 
RiC PACE 
RLR (RONALD L. RAIDER] 
RON MONTICONE 
RPM (ROBERT MARCOVITCH) I 
RSF 
SAC (STEVE CLAY1 
SANOEEP SOORYA 
SHANNON JONES 
SHARON FlTZSiMMONS 
I 
I 
I 
I 
I 
I 
-! 
6.60 
176.50 
6.601 
176.501 
I 
I 
1.742.691 
i 7 I--- 
39.60 40.70i- 
~ 
I 
I 
24.061 1.297.681 
i 
i 
I 
I -1 
I I 
24.081 
265.23 1 
2.20 7 
I 
I 
i 
i 
I 
I 
I 
I 
I 
I 
1 
I 
I 
i 
I 
i- 
!-- 
I 
I 
!- i 
I 
I 
I 
~ _ _ _ _ I 
___-. 
___ 
7 I 
I 
I 
I 
I 
I + I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
-- 
- 1 
-- I 
I 
139.281 
7 I 
i 
I 
I 
I 
i 
I 
I 
I 
I 
I 
I 
I 
I 
I 
i 
i I 
7 
I 
I 
I 
I 
I 
!-- 
I 
I 
I 
I 
I 
I 
I 
1 
I 
I 
! L P I 
I 
I 
-~ 
I 
1 I - 21.00 
i 
164.401 
I 2 iM.00 __ 
43.401 
I 
I 
I 
I ___ 
__ 
I 
69.641 
I 
I 
I 
I 
I 
I 
.- I 
I 
I 
1.258.761 
! L P 
21.70 47.10 
73.00 
83.70 
2.30 
0.60 
1.704.00 
224.00 
44.1)0--- 
~ ~ _ _ _ _ _ 363.80 
~ _ _ 174.00 
33.70 
1.40 
16.00 
3.70 
~ I .. 1.sq 
45.037.991 626.561 
Tolal Hours Billed Tolai Hours Oispuled 
~ 
~ "^ . ^^ I."" _ _ _ ~ ~ 1."" 
67.00 
- 
324.00 
741.00 
905.20 
17.00 
76.00 
397.00 ~~ 
-, 
___ 
25.E 
2.50 
6.60 
1,220.95 
~ 
19.00 
2.00 
6.80 
425.45 
101.31 
60.70 
62.20 
13.00 
1.341.03 
481.00 
192.90 
4.40 
1.359.50 
67.00 __ 
0.60 
1.236.00 
4.00 
25.40 
46.60 
2.30 
0.60 
7.00 
203.40 
33.70 
1.40 
~~ 
2.30 
1.60 
10,359.00 Year 
Hours Billin4 Enlily 
JFM .- 
Dala 
1996 
IEAJA-Rale 1 maunl Hour, 
I 
I 
I 
I 
AD 
ADRIAN CLARKE 
AEA (ALEXIS APPLEGATE) 
ANDREA CLARKCIGANEK 
ANDREA MCGLYNN 
ASC 
BABBY 
BEAR 
~~~ 
______ 
.- 
I---- 
!-- 
i 
- 
345.95ip- 
- 
__........__-__ 
29.41--' 
1264.51- 
365.61- 
i65.651 I--/- 
I 
I 
I 
~ _ _ I I 
I 
I 
!-L ___. 
1 
Ip-_: 
~ _ _ _ . I I 
i 
1 
I 
I 
1 
I--. 
1 
I-&.- 
i 
I 
BLS 
~ 
BRENDA SUN 
BRIAN MCWY ._....___ 
BROWN 
CANDICE WU 
CHRIS BORDFNER 
CHRIS FORHFCZ 
CHRIS WEBER 
CHRISTINE HSlEH 
CRB(CHARLOTTEEUTh?Ab?- 
DANELLE W S E N 
DANE PARHAM 
DAUPHlNAlS 
DFC 
DGB 
DMZ (DAVID ZACKS) 
DONALD MCGAUHEY 
DOUGLAS BARBIN ~ 
ECHOHAWK 
EHL (LEVITAS) 
ELENl BUNCH 
ERIC SEIFERT 
ERICASTRATEN 
GEOFFREY REMPEL (PWC) 
GINGOLD 
GREG BARDNELL 
HARPER 
HENRY INES 
HOLT 
JASON FLEMMDNS 
1997 
i 
i 
!- 
~ - - __ 
-- I 
I 
I -!.- 
__. 
IEAIA.Rale 1 Amounl 
I 
I 
~ 
___.-._____. I 
I 
i 
~ i 
! 
I 
I 
1 
___. 
__-. 
_ _ _ _ ~ I I 
ipp 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
1 i- 
I 
1251 43243.75 
I 
I+- 
3675 1251 
L 
i 
I 671 
7i 2001 1400 
1251 156062.5 2 1261 150260.2 1 12251 127.621 156334.5 
203200 
2001 
2001 
2001 30400 
127.621 103016.5869 
2001 91200 
49584.07096 
I 
2001 
i 
I 
i 
200i 
2001 
2001-- 
I 
I---' 
# 
I 
2001 
127.621 
I 
-I 
I J- 
I 
I 
I 
i 
I 
-~-!_____!-- 
I 
1.41 
---- i- I 
I 
I 
I 
I 
I I 
1251 45725 559.92251 
1251 20731.25 TZZiI 
I 
_ _ ~ I I i i 
I 
1 1 1151 
I 
I 
I 
I 
mi 
I 
! 
i 
I 
I 
i 
I 
I 
i 
I 
I 
1996 
Hours iEAJA.Rale i Amount 
I 
581 
i 
101 
I 
973.7121 
I-___ 
I 
266j 
I 
~ ~ - : I I 
5.81 
151 
I 
0 
-. 
__ 
176.4 
OI 
341 
197 
724 ~ _ _ _ _ . I-'- 
I 
I 
I 
! 
I-' 
58i 
8.851 
10161 
1521 
1261 70550.235 807.21351 456/ 
561 
1411.851 
2571 
739.11 
I 461 7- 9200 pip 
HOWS iWA.Rale I Amount 
I I 
I-- 
I 
! 
2001-_..- 
I 
2001 
31 1 
0% 
2851 
11600___ 
2000 ~, 
01 
127.621 124265.1254 1380.335/ 130.251 179768.6338 
57200- 
______ 
i I 
2001' 
2001 
4931 
10261 
I 
2001 
~~ 1 
1021 
I 
01 
I 
66.41 
751.51 
1 
I 
I 
13451 
18311 
1999 
0 i ~_______.-_____.---~-~.- 01 I 
2001 
! 
i 
200l 
0 
0 
8496 
6200 
0 
57002 
98600 
205200 
6600 
39400 
___ 1061 
800 - ___., 
1800 
11600 
1129.437 
___- 
23000 
130.25,; 
2001 
I 
-. ! 
I 
~202 
0 
755.45 
3000 
i30.25! 
130.251 97662.875 
6909.1 
13400 ~ . _ _ _ I 
2001 
130.251 236487.75 
2001 
130.251 163693.4625 
51400 
269000 
11200 
2001 
130.251 96267.775 
EXHIBIT I 0 
Defs' Opposition to Pltfs 
EAJA Fees for Phase 1 ! 
!-. Billing Entity 
JFM ._ Ru 
ADRIAN C M K E 
ANDREA MCGLYNN 
ASC 
- 
i 2000 
IHaurs IWIcRale I Amounl 
I 
I 7. 1 - I 
I 
! 
I 
01 
! 
I 
BABBY 
BEAR 
BLS 
BRENDA SUN 
BRIAN MCKAY 
BROWN 
CANDICE WU 
CHRIS BORDFNER 
CHRIS FORHECZ 
CHRIS WEBER 
CHRISTINE HSIEH 
CRB (CHARLOTTE BUTTRAM) I 
DANELLE W S E N 
1 95.7371 
-. 
I 
01 
I 
I 
I 
I 
I 
I 
I 
1- 
44734;= 134.51 
I 
I l- 134.51 12876.6265 
i 
I--- 
1 
1 
o-.-:____-. 
- ! /.____I- I 
0 I 
7 - 1 
0 
I.___ 
, I 
i- 
I 2003 I 2001 
IHom IWA.Rale I Amounl IHom 1WA.RaIe I Amounl IHours IWA.Rale I Amaunl 
-.-!____-I 
I I- 
i 
1 
1 
I 
I 
01 
11 
I 
d__-. 
I- 
I 
r I 
-. 
I 
I 
I 
I 
I 
I 
I 
I 
I 
__. 
I 
I _- 
~____. I 
I 
I 
I 
! 
I __. I 
i 
I I 
I I 
I 
1 
I 
I I 
I 
I 
Ldp- I 
1- 
I i ! I 
1381- 
I 
I 
21.6621 
I 
I 
i- 
I 
I 
I 
I 
01 
I 
I 
I 
I 
I 
-i 
I 2002 
-7 
-!- 
I 
I 
0 69.635/- 
i--- I 
10114.48375 
I 
/ - - - - - 
I 
I 
141.251 
I 
I--' 
I 
I 
I--' -. 
ADRIAN CLARKE 
AEA (ALEXIS APPLEGATE) 
AND"\CLARK-T'-"L'~'' 
ANDREA h 
URENDA SUN 
BRIAN MCKAY 
BROWN 
RDENER 
RIS FORHECZ 
RISWEEER -1 
_. I... 
HOHAWK 
L (LNITAS) 
ZNl BUNCH 
IC SEIFERT 
E A STRATEN 
n-nr" "'.."EL __ (pwc) 
2004 
i o m IEAIA.Rale I Amount 
1051 8.81 
' 
-. I 
I 
I 
I 
r-' 
i 
I 
I ' I 
I 
I 
I ___.-- 
i 
I 
I 
!pip- 
i 
i 
Total How 
11600 
924 924 
58 
8.8 
.__.^^^ 
'y 
~ 
~ 
111 
J,""" 
68P"I 
138000 
350200 
22200 
13400 Yeat Data 
IWA-Rate I Amount H o w 
1997 
Houn 
~ 
1996 
I- _- 
I 
-~~-__!____-- 
I 
___- 
L.-&-. I I 
!WA.Rale I Amount 
I 
! 
I 
I 
I 
I 
I 
I-___ 
I 
I 
- 
u- 
I I 
i 
81 I 
I 
I 
1 
I 
i 
I 
l--i 
-i- 
I 
10125 2 5 . 5 4 1 
I 
I 
I 
-~--'___ I 
I-'--! 
-Entity 
JCB 
JEFF PARMET 
JESSICA POLLNER 
JMW (J. MICHAEL WIGGINSI 
JOE CHERIATHUNDAM 
JOHN LANKENAU 
e(J=PANA STERNBERG)- 
JTC 
JVH (VANCE HUGHES) 
JWX 
KAWAHARA 
KHS (KIM STOGNERI 
LARRY THIBODEAU 
LAURA GOODING 
LAURA SCHWEITZER 
LESLIE TOMLINSON 
MARICE DORSEY 
MCKAY MOTSSHABI 
MICHAEL CHANG 
MIKE SAVAGE 
MJA(MILESALO(ANOER1 
MSY 
NARFCLERKS 
PATRICK KELKAR 
PAUL GUNSON 
PEREGOY 
RACHEL GRABAN 
__ 
__ 
- 1- I i 1 - 2 1 
- 
I 
I 
I 
pip 
I 
I 1 
I 
.- 
RCO (RODERICK OENNEHYI- . 
RCV 
REMPEL 
RENEE GRAVES 
RIC PACE 
RLR (RONALD L. RAIDER1 
RON MONTICONE 
RPM (ROBERT MARCOVITCHI 
RSF 
SAC (STEVE CLRY) 
SANDEEP SOORYA 
SHANNON JONES 
SHARON FlRSlMMONS 
SP (SARAH PEREZ1 
STEPHANIE ZHUANG 
TC 
TKB 
TFACEY FOLEY 
WP (WILMER PARKER) 
WWB 
GiandTaWl 
204.41 
i 
I 
I 
I 
! 
1- 
I 
I-- 
I 
I 
I 
I 
I 
I 
I 
2456.91 
1251 25550 
/-- I-- 
I-- 
I 
I -__ I 
I___ 
I 
I 
!- 
I 
i 
~ _ _ _ I I 
1 
I 
I 
308.851 
L I 
I 
I 
I+>! 
I 
I 
I 
I 
I 
I 
.- I 
I 
I 
_ _ ~ I i- 
__- 
I 
I 
I 
I 
I 
I 
8751 307112.5 2813.02351 
I 
i 
I 
I 
I 
I 
I 
293.251 
I 
I 
I 
I 
I 
i 
/-_____-____ !- I 1 7 71 zooi 1400 ___ lll 
01 
2001 2200 
I 
I 
1 
2001 
I 
I 
I 
I 
I 
, 
1- 
1- 
,-. I-___ 
_________ 2061 2001 
~ _ _ i 
2571 
I 
4831 
I 
1 
I 
I 
I 
I 
01 
134 
781 
21 
___- 
251 
~ 
I 
1251 
I____-.- 
I 
I 
!-_ /=- 
_____. 
'i 
i 
I 
I I 
I 
I I 
I 
I 
I 
1 - 
I 1 
i- 
1999 
Hours IEAJA.Rate I Amaunt 
01 __. I I 
I 
~ 26800 
21 
1461 
1998 
w ! W A . R a l e I Amount 
--!_____ 
1 _ _ , _ ~ 
I-- 
2001 
2001 
2001 
130.251 
95600 
r- 7 - 
130.251 
I 
I 
718.375 
2001 
I 
2001 
I 
i-- I 
I 
0 
400 
29200 
2001 
3 3 . 2 ! 2 2 5 / 4324.3 
1081 
241 
21500 
4600 
5n.3 
0 
325.625 0 
5.21 
01 
-~ 2.5I 
01 
1- 
+ - i I 
I___-.- 
I 
1261 14558.04 
1 - 
I 
I 
I 
0 
51400 
41200- 102800 
181040 
130.251 
I 
I 
2001 
2001 
1 
I 
ZOO! 79WO 
3400 
15600 
400 
5000 ___ I 
65.125 
I 
i 
2001 
I 
2001 
2001 
2001 
2001 
I 
I 
1 
! 
31860 
130.251 
I r~-- 
901 
130.251 
2001 
I 
1 
zooi 
2001 
I 
612.175 
96200 
i 
I 
I 
I 
2001 78200 
200!-- 
2001 
901 
2001 
5.51 
I 
I 
5141 
905.21 
I 
I 
0.51 
3951 
-~ 
I 
3541 
I 
I 
4811 
4.71 
I 
128.9- 
01 
5000 ___ 421 
1601 
01 ____ 1 
731 ~ _ _ _ _ _ _ _ _ j-. , oi 
I 
13861 
441 
2241 
138.31 
1741 
_ ~ . _ _ _ . I i- 
____. 
01 
1 
~- 
851 24926.25 x i 851 12601.25 
2600 I 
I 
1261 
I I 
I 
131 
21 I 
I 
I 
14500 
2001 
I 
ZOOI 
I 
ZOOI 
2001 
38915.1 - 127.62/ 92112.22359 
4200 
I 
I 
I 
I 
I 
I 
i 
~ 
391 1 
I 
I 
I 
I 
I 
I 
__,.~__.____ 
I 
15789.225 
0 
8400 
32000 
0 
.- 
0 
277200 
6800 
44800 
12267 
34800 
0 
0 
I 
130.251 
8411 342417.711 9245.3241 6850.721 1533443.194 15328.3851 7423.751 2557158.171 I -1 
L I 
I 
I 
__ 
I 
I 
! 
I 
JMW(J.MlCHAELW1GGlNS) i32.5/- 
JOE CHERIATHUNDAM 
JOHN LANKENAU 
JRS (JORDANA STERNB- 
JTC 
JVH (VANCE HUGHES1 7 I 
01 
JWX 
KAWAHARA 
KHS (KIM STOGNER) ~~~~~~ I I- 
I 
I 1 . - 
!-!- i 
.__._____-- I I I 
01 
I 
01 
I 
I 
I 
! 
3.31 
1- 
i I 
-.___. 
I 
LESLIE TOMLINSON 
MARICE DORSEY 
MCKAY MOTSHABI 
MICHAELCHANG 
MIKE SAVAGE 
MJA(MILESALD(ANDER1 
MSY 
NARF CLERKS 
PATRICK KELKAR 
PAULGUNSON 
PEREGOY 
R4CHEL GRABAN 
RCDODERICKDENNEHYI 1 
RCV 
REMPEL 
RENEE GRAVES 
RIC PACE 
RLR (RONALD L RAIOER) 
RON MOMICONE 
421 
1 I Y - - '-- 
01 
I 
1 
!______ 
38.91 
01 I 
RPM (R0B-J 
RSF 
SAC (STEVE CLAM 
SANDEEP SOORYA 
SHANNON JONES 
SHARON FiTZSlMMONS 
SP (SARAH PEREZ) 
-O!-- j- 
O L - I 
I A - _ _ l 
I 1 
I 
! !-- 
231 
I 
I 
STEPHANIE ZHUANG 
TC 01 
TKB 
TRACEYFOLEY 
WP (WILMER PARKER) 7 1.41 
01 
i 
901 
I 
I 
I 
I 
I-A. 
I 
I 
I WWB 
I 3674.0371 2193.751 491387.2515 447.9121 
0 
ld- 
I 
I 
11941 61759.056 
-. I 
i 
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I 
i 
I 
4384.2 
0 ! 
I 
7.31 
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1381 
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I 
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01 
01 
01 
I 
I 
I 
1 - 
0- 
443.85 134.51 
I 
3780 901 
I 
I 
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01 
I 
I 
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! 
134.251 
I 
I 
I 
0 
4953.825 __-, 01 
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I 
2070 
0 
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188.3 ___ 
1 1007.4 
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141.251 
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0 69.8351 
I 
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! 
145.251 10114.48375 
-___ 
1 - 1 I 
I . ~ _ _ _ . ~ -1 I 
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i 
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1 
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1 - 
I 
1 
I 
I 
I 
I 
-. I 
- 
Billing Enlily 
JCB 
JEFF PARMET 
JESSICA POLLNER 
JMW (J. MICHAEL WIGGINS) 
JOE CHERIATHUNDAM 
JOHN LANKENAU 
JRS [JOROANA STERNBERG) 1 
JTC 
JVH (VANCE HUGHES) 
JWX 
KAWAHARA 
KHS (KIM STOGNER) 
LARRY m i B o o m u 
LAURA GOOOING 
LAURA SCHWEITZER 
LESLIE TOMLINSON 
MARICE OORSEY 
IHou5 IWA-Rale I Amount 
I i - - i 
I 
i 
I 
A ! 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
2004 
MCKAY MOTSHABI 
MICHAEL CHANG 
MIKE SAVAGE 
MJA (MILES ALEXANDER) 
MSY 
NARFCLERKS 
PATRICK KELKAR 
PAUL GUNSON 
PEREGOY 
RACHEL GRABAN 
!- 
I 
I 
1- .~ I 
I 
I 
.~ I 
I L-1- 
RCO (ROOERICK OENNEHY) I-, 
RCV 
REMPEL 
RENEE GRAVES 
RIC PACE 
RLR (RONALD L. RAIDER) 
~ROBERTMARCOVITCH) i RON MONTICONE 
RSF 
SAC (STEVE CLAY 
SANDEEP SOORYA 
SHANNON JONES 
SHARON FITZSIMMONS 
SP [SARAH PEREZ) 
STEPHANIE ZHUANG 
TC 
TKB 
TRACEYFOLEY 
WP IWILMER PARKER) 
I- .__ I 
! 82.21 
1 /xi 148.621 
1 4 - I 
i 
I 
1- 
l-i-' 
I 
.___. I 
I 
I 
i-: 
I 
I 
I 
I i 
I 
I 
I 
I 
I 
I 
I 
I 
!-.- 
i 
I 
I 
I 
I 
I 
r- ! 
I 
I 
I 
I 
I 
I 
I 
1051 
3600 
168.3 
0 
I 630.1781 1355.34 87916.66236 34565.3945 5391309.03 
224 
160.4 
1 74 
0 
1777 
44 _~ 8800 
44600 
14436 
34800 
0 
0 ___ 0 
18 
1.4 
0 W B 
Grand Tolal 
-. I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
I 
i 
i 
I 
I 
I 
8631 
3225.054 
L- 
~ I 
I 
Tola1 Hours Tola1 Amount 
______ 
-- 
-- 260 
0 
2 
. ~ _ _ _ ~ 
73.1 
591 
24-.- 
5.2 
0 -~ 
- 2.5 
0 
196.54 
5.5 
__ 
0 
400 
56000 
9716.4 
116200 
4800 
677.3 
0 
325.625 
0 
24683.04 
716.375 
0 
51400 
144400 
181040 
3400 
15500 
79400 
5000 
65.125 
0 
13 
0 
~- 
17 
257 
722 
905.2 
- 
78 
_ ~ ~ _ _ 481 96200 
397 
25 
0.5 
0 
795.5 69367.5 
2600 
21 4200 
1239.7195 157189.4966 
17233.075 
0 
12411 
13400 
32000 
132.2 
0 
124.2 
67 
150 
21.7 
73 
3225.054 
14600 
4953.625 
0 
0 
36.9 
0 
0 
355400 __________________________________________
) 
ELOUISE PEPION COBELL, et al., ) 
Plaintiffs, 
v. 
GALE NORTON, Secretary of the Interior, et al., ) 
Defendants. 
)
) 
__________________________________________) 
This matter comes before the Court on Plaintiffs’ Equal Access to Justice Act Petition for 
Interim Fees Through the Phase 1.0 Proceeding. Dkt.2627. Upon consideration of the Interim 
Petition, the responses thereto, and the record in this case, it is hereby 
ORDERED that Plaintiffs must provide notice of their Interim Petition and Defendants' 
Opposition to the petition to all class members; it is further 
ORDERED that Plaintiffs’ Interim Petition is denied and no EAJA fees or expenses are 
awarded. 
SO ORDERED. 
Date: _________ 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
Case No. 1:96CV01285 
(Judge Lamberth) 
)
)
)
)
) 
ORDER 
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