                                   UNITED STATES DISTRICT COURT
                                   FOR THE DISTRICT OF COLUMBIA

 NEW LIFE EVANGELISTIC CENTER,
 INC.,
       Plaintiff,
                                                                            Civil Action No. 09-1294
                                                                                   CKK/DAR
        v.

 KATHLEEN SEBELIUS, Secretary, U.S.
 Department of Health and Human Services,
 et al.,

             Defendants.

                                          MEMORANDUM OPINION

         By an order filed on March 31, 2011 (Document No. 47), the undersigned denied

Plaintiff’s Petition for Attorney’s Fees and Costs (“Petition”) (Document No. 25). The basis

upon which the undersigned did so is set forth herein.



BACKGROUND

         Plaintiff, New Life Evangelistic Center, Inc. (“New Life”), filed the above-captioned

matter on July 13, 2009. See Complaint (“Compl.”) (Document No. 1). Defendants named in

the complaint were Kathleen Sebelius, in her official capacity as Secretary of the U.S.

Department of Health and Human Services (“HHS”), and Martha N. Johnson,1 in her official

capacity as Administrator of the U.S. General Services Administration (“GSA”). Plaintiff

challenges Defendants’ denial of Plaintiff’s application made pursuant to Title V of the

McKinney-Vento Homeless Assistance Act (“McKinney Act”) to use a particular piece of federal



         1
            Martha N. Johnson was substituted as a defendant in this action upon being appointed as Administrator of the GSA.
See 12/01/2010 Memorandum Opinion (Document No. 45) at 1 n.1.
New Life Evangelistic Center v. Sebelius, et al.,                                                 2

property located at 339 Broadway Street, Cape Girardeau, Missouri for a homeless assistance

program. See 12/01/2010 Memorandum Opinion at 1. Plaintiff moved for a preliminary

injunction “which would enjoin any transfer of the property and [asked the Court to] remand the

matter back to HHS for a proper and lawful decision.” See Motion for Preliminary Injunction

(Document No. 9) at 3. On December 8, 2009, the Court granted Plaintiff’s motion. Id. at 22.

After further review, Plaintiff received a second denial letter from HHS. Approximately one year

later, on December 1, 2010, the Court issued a second Memorandum Opinion denying Plaintiff’s

second motion for vacatur. See 12/01/2010 Memorandum Opinion. The Court then dismissed

this action in its entirety with the exception of the issues regarding Plaintiff’s Petition for

Attorney’s Fees and Costs (“Petition”) (Document No. 25), which was pending at the time of the

Court’s order. See 12/20/2010 Minute Order.

        On July 21, 2010, the parties appeared before the undersigned for oral argument on

Plaintiff’s Petition for Attorney’s Fees and Costs. See 07/21/10 ECF Entry; see also Transcript

(Document No. 43). The court heard argument on issues regarding attorney’s fees under 28

U.S.C. § 2412, and these arguments are paralleled to those contained in the parties’ written

submissions.



CONTENTIONS OF THE PARTIES

        On March 22, 2010, Plaintiff filed its Petition for Attorney’s Fees and Costs pursuant to

28 U.S.C. § 2412. See Petition. In its petition, Plaintiff requests an order of the Court awarding

Plaintiff $63,496.62. Id. at 1. In support of its request, Plaintiff argues that it is a “prevailing

party” within the meaning of the statute. Furthermore, Plaintiff cites the correspondence attached
New Life Evangelistic Center v. Sebelius, et al.,                                                                         3

to its petition as a basis for the Court granting its request for fees and costs. Document No. 25-1.

Subsequently, on March 30, 2010, Defendants filed their opposition to said petition. Defendants’

Opposition to Plaintiff’s Petition for Attorney’s Fees & Costs Under the Equal Access to Justice

Act (“Opposition”) (Document No. 26). In opposition to Plaintiff’s petition, Defendants submit

that Plaintiff is not entitled to attorneys’ fees and costs because “(1) its [Equal Access to Justice

Act] EAJA petition is untimely; (2) [Plaintiff] is not a “prevailing party” within the meaning of

the EAJA; and (3) the government’s position did not lack substantial justification.” Id. at 2.

          Regarding the timeliness of Plaintiff’s petition, Defendants argue that Plaintiff is

“jurisdictionally barred from recovering any EAJA fees or costs from the government . . . ” Id.

Defendants further submit that Plaintiff filed its EAJA petition on March 22, 2010, twelve days

following the expiration of the statutory deadline. Id. at 3. Furthermore, Defendants cite Turner

v. Dist. of Columbia Bd. of Elections & Ethics, 183 F. Supp. 2d 22, 26 (D.D.C. 2001), for the

proposition that the thirty-day statutory deadline is a jurisdictional prerequisite for an award of

attorney’s fees and costs.2 “Because the thirty-day requirement is jurisdictional, neither the

Courts nor the parties may waive it.” Turner, 183 F. Supp. 2d at 26 (citation omitted). Also,

“the claim of untimeliness is an affirmative defense and therefore the defendant bears the burden

of pleading it.” Id. Defendants contend that such a late filing is amounts to a waiver of the rights

to collect fees and costs. Opposition at 4.

          With respect to Plaintiff’s status as a “prevailing party” under the EAJA, Defendants

proffer that Plaintiff did not succeed on the merits of its underlying claim, and that an order to


          2
              “A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit
to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive
an award . . . ” 28 U.S.C. § 2412 (d)(1)(B).
New Life Evangelistic Center v. Sebelius, et al.,                                            4

vacate and remand an agency decision is insufficient to meet the statutory standard. Id. at 5.

Defendants, in support of this contention, proffer that a plaintiff must have succeeded on a

significant issue in litigation “which achieve[d] some of the benefit the [party] sought in bringing

the suit.” Waterman Steamship Corp. v. Maritime Subsidy Bd., 901 F.2d 1119, 1121 (D.C. Cir.

1990).

         Defendants also argue that their position in denying Plaintiff’s application under the

McKinney Act was substantially justified. Defendants rely on authority of this Court that holds

that “judgment as to the adequacy of an agency’s explanation is not only one on which

reasonable minds can and frequently do differ, but it is also logically unrelated to whether the

underlying agency action is justified for purposes of establishing a defense under the EAJA.”

Nat’l Coalition Against the Misuse of Pesticides v. Thomas, 828 F.2d 42, 45 (D.C. Cir. 1987)

(per curiam) (citation omitted).

         Defendants’ final contention is that the award Plaintiff’s requests fees is “excessive” and

“insufficiently detailed.” Opposition at 9. Defendants proffer that in awarding fees under the

EAJA, district courts “have a responsibility to ensure that taxpayers are required to reimburse

prevailing parties for only those fees and expenses actually needed to achieve the favorable

result.” Role Models America, Inc. v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004). In arguing

the excessiveness of Plaintiff’s request, Defendants note that there is a $125 per hour statutory

cap on the award of attorney’s fees. 28 U.S.C. § 2412(D)(2)(A)(ii). Defendants further argue

that billing records provided by Plaintiff do not allow for a determination of the reasonableness

of the fees and costs. Opposition at 12.

         Plaintiff does not dispute the date of its filing. Plaintiff’s Reply Memorandum in Support
New Life Evangelistic Center v. Sebelius, et al.,                                                5

of Its Petition for Fees and Costs (“Reply”) (Document No. 28) at 5. However, Plaintiff argues

that its petition is not time-barred under the EAJA. Id. at 4. In support of its position, Plaintiff

relies on the holding in Scarborough v. Principi, 541 U.S. 401 (2004), in which the Supreme

Court held that EAJA’s filing deadline for fee applications is not jurisdictional. Id. at 414.

Plaintiff also argues that Defendants have not shown that the position of the United States was

substantially justified in denying Plaintiff’s application under the McKinney Act. See Reply at

10. Plaintiff further contends that its request for fees should be granted in full. Id. at 12.

        On July 24, 2010, Plaintiff filed an amendment to its petition for attorney’s fees and

costs. Plaintiff’s Amendment to Petition for Attorney’s Fees and Costs (“Amendment”)

(Document No. 38). Plaintiff sought an award for an additional 61.25 hours worked – which

included “hours worked on the day of filing its reply brief, and hours worked in preparation for

oral argument.” Id. at 1-2. Five days later, Defendants filed their opposition to Plaintiff’s

amendment. Defendants’ Opposition to Plaintiff’s Amendment to its Petition for Attorney’s

Fees and Costs (“Opposition to Amendment”) (Document No. 39). In their opposition,

Defendants reassert that Plaintiff “is not entitled to recovery of any fees or costs related to this

litigation because it failed to timely file its EAJA petition, because it is not a prevailing party

within the meaning of the EAJA, and because the government’s position did not lack substantial

justification.” Id. at 1. Moreover, Defendants submit that Plaintiff’s requested fees are

“unreasonable.” Id.



LEGAL STANDARD

        The Equal Access to Justice Act (“EAJA”) provides for the award of attorney’s fees and
New Life Evangelistic Center v. Sebelius, et al.,                                              6

other expenses to eligible individuals against the government. See 28 U.S.C. § 2412. Eligible

individuals are parties to a litigation that would be considered a “prevailing party.” “The

‘plaintiff[] may be considered a ‘prevailing party’ for attorney’s fees purposes if [he] succeed[ed]

on any significant issue in litigation which achieves some of the benefit the parties sought in

bringing suit.’” Talley v. District of Columbia, 433 F. Supp. 2d 5, 7 (D.D.C. 2006) (citation

omitted). This court recognizes a three-part test for determining whether a litigant qualifies as a

prevailing party under 28 U.S.C. § 2412:

               (1) there must be a “court ordered change in the legal relationship”
               of the parties; (2) the judgment must be in favor of the party
               seeking fees; and (3) the judicial pronouncement must be
               accompanied by judicial relief.

District of Columbia v. Straus, 590 F.2d 898, 901 (D.C. Cir. 2010) (citation omitted).

       The Supreme Court in Scarborough, held that EAJA’s filing deadline for fee applications

is not jurisdictional. Scarborough, 541 U.S. at 414. The Court stated: “[a]ccordingly, . . .

[EAJA’s] 30-day deadline for fee applications and its application-content specifications are not

properly typed ‘jurisdictional.’” Id. at 413-14 (citation omitted). Therefore, because EAJA’s 30-

day filing deadline is not jurisdictional, it is subject to estoppel and equitable tolling. Currier v.

Radio Free Europe/Radio Liberty Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1999).

       This Circuit has held that “substantially justified” means “justified to a degree that could

satisfy a reasonable person.” Halverson v. Slater, 206 F.3d 1205, 1208 (D.C. Cir. 2000) (citation

omitted). Moreover, the government “has the burden of proving that its position, including both

the underlying agency action and its arguments taken in court in defense of its action, were

‘substantially justified’ within the meaning of the act.” Id. (citation omitted).
New Life Evangelistic Center v. Sebelius, et al.,                                                                       7




DISCUSSION

         There is no dispute that Plaintiff did not file his petition for fees and costs within the 30-

day period prescribed by 28 U.S.C. § 2412 (d)(1)(B). The statute provides in pertinent part: “[a]

party seeking an award of fees and other expenses shall, within thirty days of final judgment in

the action, submit to the court an application for fees and other expenses which shows that the

party is a prevailing party and is eligible to receive an award . . . ” Id. However, the undersigned

finds that the court need not resolve the issue of whether nor not the deadline is jurisdictional,

because the undersigned finds that Plaintiff is not a prevailing party.3

         A plaintiff “prevails when actual relief on the merits of his claim materially alters the

legal relationship between the parties by modifying the defendant’s behavior in a way that

directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (emphasis

supplied); see also Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. Health and

Human Resources, 532 U.S. 598, 603 (2001) (“[p]revailing party,” to whom court may award

reasonable attorney fees under fee-shifting statutes, is one who has been awarded some relief by

court”); see also Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945 (D.C. Cir. 2005)(“it

is now clear that Buckhannon’s construction of ‘prevailing party’ also applies to fee claims

arising under EAJA”) (citation omitted); accord GasPlus, L.L.C. v. U.S. Dept. of Interior, 593 F.

Supp. 2d 80, 85-86 (D.D.C. 2009).



         3
           Likewise, the undersigned need not evaluate the reasonableness of the fees and costs requested, or whether
Defendants’ position was substantially justified.
New Life Evangelistic Center v. Sebelius, et al.,                                                8

        Here, Plaintiff was granted an preliminary injunction by the Court, which precluded

Defendants from disposing of the property, which Plaintiff sought to secure for its own use. In

this case, “Plaintiff sought a declaration nullifying and voiding Defendants’ denial of its

application; an injunction preventing Defendants from taking any further action with respect to

that denial and from transferring the property to the 339 Broadway property to any other person

or entity; and a remand to Defendant, HHS Secretary Sebelius, to make a proper and lawful final

decision with respect to the application.” Reply at 2.

        The Court finds that Plaintiff did not prevail, in this instance, because after two attempts

to receive the excess property from Defendants, Plaintiff was unsuccessful. Thus, Plaintiff did

not get the “precise relief that [it] had sought.” See Role Models, 353 F.3d at 965 (plaintiff

entitled to “prevailing party” status under EAJA where the court issued a permanent injunction

against the defendant, enjoining government agency from disposing of excess property until it

complied with applicable regulatory requirements).

        The Court further finds that the preliminary injunction which was granted merely

maintained the status quo, and afforded Plaintiff an opportunity to amend its application for the

property. The preliminary injunction did not have the “comparable ‘external effect’” of granting

Plaintiff “a substantial part of what plaintiff[] asked the court for in the first place.” Id. (citation

omitted).

        Accordingly, the undersigned finds that the preliminary injunction is not a basis upon

which to find that Plaintiff is a prevailing party. Finally, the undersigned finds that neither

memorandum opinion of the court warrants a finding that Plaintiff “prevailed.”

        In a Memorandum Opinion dated December 8, 2009 (Document No. 24), the court
New Life Evangelistic Center v. Sebelius, et al.,                                              9

granted summary judgment in favor of Plaintiff, but “the Court [was] not asked to – and [did] not

[] – rule upon the ultimate merits of [Plaintiff’s] application for the Broadway Property . . . ”

12/08/09 Memorandum Opinion at 14-15. The court concluded that “HHS’ decision must be

vacated and this case remanded to the agency for further consideration.” Id. at 21. Subsequently,

Plaintiff filed its Petition for Attorney’s Fees and Costs for the undersigned’s consideration.

After the case was remanded to HHS for further consideration pursuant to the court’s ruling

discussed supra, Plaintiff did not obtain the property, as its application was denied a second time.

        In a 52-page Memorandum Opinion date December 1, 2010, the court rejected all of

Plaintiff’s arguments regarding the remand. 12/01/2010 Memorandum Opinion. The court’s

findings included, inter alia, the determination that “[Plaintiff] has failed to establish that the

proceedings on remand were defective”; “[Plaintiff] has failed to establish prejudicial error,” and

“Plaintiff has failed to establish that HHS’ decision on remand was substantively defective.” Id.

at 12, 32 and 34.

CONCLUSION

        For all of the foregoing reasons, the undersigned has determined that Plaintiff is not a

prevailing party, and therefore is not entitled to recover attorney’s fees under April 1, 2010

EAJA.




                                                                             /s/
                                                               DEBORAH A. ROBINSON
                                                               United States Magistrate Judge
