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Stremple v. Peake

January 22, 2009


The opinion of the court was delivered by: Magistrate Judge Bissoon


For the reasons that follow, Plaintiff‟s Petition for Attorneys‟ Fees, Costs, and Interest (Docs. 108) will be granted in part and denied in part as follows: attorneys‟ fees in the amount of $223,473.60 will be awarded to Plaintiff John F. Stremple under the Equal Access to Justice Act ("EAJA"); and his requests for costs and interest will be denied.


A. Plaintiff's First Amended Petition Will Be Denied, His Second Amended Petition Will Be Stricken, and the Court Will Rule on His Original Petition

Plaintiff has filed an original Petition (Doc. 108), a First Amended Petition (Doc. 115), and a Second Amended Petition (Doc. 118). For the purposes of establishing eligibility under the EAJA‟s "net worth" provisions, the original Petition contained only the bald assertion that Plaintiff‟s net worth did not exceed $2 million. Compare Doc. 108 at ¶ 5 with text Order dated Dec. 5, 2008 ("to be eligible under the EAJA, Plaintiff bears the burden of proving that his net worth did not exceed $2,000,000 at the time his civil action was filed") (citation to quoted source omitted).

The only material difference between the original and First Amended Petitions is the latter‟s amendments addressing Plaintiff‟s request for interest. Compare Doc. 108 with Doc. 115. For the reasons stated below, the Court will not award interest, and the First Amended Petition (Doc. 115) therefore is DENIED AS MOOT.

The Second Amended Petition was filed in response to the Court‟s directive that Plaintiff provide evidence, not bald assertions, regarding his net worth. See Dec. 5th text Order.

The Second Amended Petition provides such evidence, but it also seeks additional "fees for fees" based on counsel‟s efforts to secure Plaintiff‟s accounting information, and related activities. See Doc. 118 at pgs. 24-25.

Plaintiff was neither invited nor granted leave to file his Second (or First) Amended Petition(s). To the extent that additional filings were necessary, they resulted from Plaintiff counsel‟s failure to include in the original Petition evidence regarding Plaintiff‟s net worth.

Counsel‟s request for additional "fees for fees," based on their failure to adequately support Plaintiff‟s initial EAJA request, is inappropriate and, frankly, brazen in its conception.

Plaintiff‟s Second Amended Petition (Doc. 118) is STRICKEN, although the Court will construe the evidence attached thereto regarding Plaintiff‟s net worth as his response to the text Order dated December 5, 2008.

B. Plaintiff Qualifies Under the EAJA's "Net Worth" Provisions

Plaintiff has submitted the sworn statements of his certified public accountant, "prepared using generally accepted accounting principles," opining that Plaintiff‟s net worth as of the filing of the Complaint was $1,598,793.00. See Doc. 118-2 at pgs. 1-2. The Court is satisfied that this evidence carries Plaintiff‟s burden of proof under the EAJA. See Broaddus v. U.S. Army Corps of Eng‟rs, 380 F.3d 162, 169 (4th Cir. 2004) (where CPA‟s affidavit "allows the court to subtract liabilities from assets, thereby enabling the court to determine an applicant‟s net worth, then no further documentation is required").

The only specific challenge leveled by Defendant is the accountant‟s failure to include as an "asset" Plaintiff‟s presumed Civil Service Retirement System ("CSRS") payments.

See Def.‟s Resp. to Am. Petitions (Doc. 119) at 11-12. The Government posits:

When he retired in July of 1999, Plaintiff had over thirty-one . . . years of federal service. Thus, Plaintiff would be receiving a federal yearly pension, since his retirement, based on a percentage of his high-three average of yearly salary. Plaintiff's annual VA salary when he retired was $163,205.14. When a proper valuation of this is included, . . . Plaintiff's net worth will increase significantly. . . . Since Plaintiff has not included this asset within the valuation, he has not demonstrated that his net worth was less than $2,000,000 when he commenced this action.


Taking Defendant‟s premise as true, the Government‟s objection is insufficient to rebut Plaintiff‟s evidence that his net worth did not exceed $2 million. Using Plaintiff‟s pre-retirement salary of $163,205.14 as his "high-three [year] average," Plaintiff would enjoy a daily payment of $447.14 ($163,205.14 divided by 365).*fn2 Plaintiff retired effective July 17, 1999 (see Doc. 27 at ¶ 38), and he filed his Complaint on May 18, 2001. See Compl. (Doc. 1). 671 days passed between Plaintiff‟s retirement and the filing of this lawsuit and, under Defendant‟s theory, the sum of Plaintiff‟s CSRS payments would have been $300,030.94 ($447.14 times 671). Adding this to his accountant‟s net worth figure of $1,598,793.00, Plaintiff falls safely under the $2 million ceiling established in the EAJA (i.e., $1,598,793.00 plus $300,030.94 equals $1,898,823.94).

Defendant‟s arguments regarding Plaintiff‟s presumed CSRS payments do not create sufficient doubt regarding his eligibility under the EAJA, and the courts have cautioned against allowing the "determination of eligibility for . . . fees [to] result in a second trial." See Broaddus, 380 F.3d at ...

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