UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

GEORGE H. LAMSON; ROSEMARIE
LAMSON,
                                                                         No. 95-2770
Defendants-Appellants,

and

21.52 ACRES OF LAND, more or less,
in Clarke County, Virginia,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
B. Waugh Crigler, Magistrate Judge.
(CA-90-74-H)

Submitted: May 21, 1996

Decided: July 15, 1996

Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Norman Lamson, Charlottesville, Virginia, for Appellants. Lois J.
Schiffer, Assistant Attorney General, Robert L. Klarquist, Jonathan F.
Klein, Appellate Section, Environment and Natural Resources Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Robert P. Crouch, Jr., United States Attorney, Richard A. Llo-
ret, Assistant United States Attorney, Roanoke, Virginia; Anthony R.
Conte, Office of the Solicitor, DEPARTMENT OF THE INTERIOR,
Newton Corner, Massachusetts, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants, George and Rosemarie Lamson ("the Lamsons"),
appeal an order of the magistrate judge1 denying their application for
attorney's fees under the Equal Access to Justice Act (EAJA).2 The
issue is whether the district court abused its discretion in finding the
government's position "substantially justified." We affirm.

The National Park Service attempted for a number of years to
acquire 21.52 acres of a 163.52 acre tract of land located solely in
Clarke County, Virginia, and owned by the Lamsons, to serve as part
of a wooded corridor to protect the Appalachian National Scenic Trail
from residential development. The government hired an appraiser,
Richard Bowers, who prepared an appraisal in 1987 valuing the 21.52
acres at $52,040. In the same month the Park Service offered to pur-
chase the property for $52,000. The Lamsons declined the offer,
claiming that comparable land sales reflected a much higher value.

Eventually, the matter was turned over to the United States Depart-
ment of Justice, which filed a complaint in condemnation in 1990.
_________________________________________________________________
1 Both parties consented to the jurisdiction of the magistrate judge pur-
suant to 28 U.S.C. § 636(c) (1988).
2 28 U.S.C. § 2412 (West Supp. 1996).

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Approximately five years after the initial appraisal, the government
obtained a second appraiser, Joe Wingate, who prepared an appraisal
in 1992 valuing the 21.52 acres at $73,100. At a hearing a few months
after this second appraisal, the government's attorney informed the
court that he had authority to offer $70,000 and the Lamsons' attorney
stated that his clients believed the land was worth $250,000.

At trial, the government claimed the value of the 21.52 acres was
$73,100. This figure was based upon the value of all of the Lamsons'
land before the partial taking and the value remaining after the partial
taking. The government's expert witness at trial, Joe Wingate, calcu-
lated the value of the Lamsons' land based on one inspection of the
property and ten comparable land sales in Clarke County, Virginia.
Mr. Wingate valued the Lamsons' entire 162.52 acre tract before the
taking of 21.52 acres at $635,100, and the value of the 141 acres
remaining after the partial taking at $562,000.

At trial, Mr. Lamson testified as to the value of the land. He
claimed the value of the 21.52 acres was $172,162. Mr. Lamson cal-
culated the value based upon his knowledge of the land and numerous
comparable land sales in both Clarke County and Loudoun County.
The jury returned a verdict for $156,916.67, and the court entered
judgment in that amount.

After the time for appeal expired, the Lamsons filed an application
for attorney's fees and expenses. The EAJA provides that attorney's
fees and other expenses shall be awarded to the prevailing party "un-
less the court finds that the position of the United States was substan-
tially justified or that special circumstances make an award unjust."3
They claimed the government's pre-litigation position based upon the
Bowers' appraisal left them with no choice but to litigate. They also
claimed the government violated the Uniform Real Property Acquisi-
tion Policy Act,4 and that the government's second appraiser, Joe
Wingate, was unqualified because his office was in Roanoke, Vir-
ginia, was four hours from the Lamsons' land, and because the com-
parable sales upon which he based his appraisal were all from Clarke
County.
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3 28 U.S.C.A. § 2412(d)(1)(A) (West Supp. 1996).
4 42 U.S.C. § 2651 (1988).

                    3
The district court denied the application and found the govern-
ment's position "substantially justified." The Lamsons appealed.
Because the magistrate judge failed to use the proper test to evaluate
the government's position, we reversed and remanded with instruc-
tions.

On remand, the magistrate judge again denied the Lamsons' peti-
tion for attorney's fees. The magistrate judge found that based on the
totality of the circumstances, both prelitigation and at trial, the gov-
ernment's position was substantially justified. The Lamsons appeal,
arguing that the magistrate judge abused his discretion by failing to
find that the appraisals relied upon by the government were supported
by an adequate factual basis.

We review the decision of a district court to award or to deny fees
and expenses under the EAJA for an abuse of discretion.5 After con-
ducting a detailed review of the record, we conclude that the magis-
trate judge did not abuse his discretion in finding that the government
had substantial justification for its position. When, as in this case, the
government uses experienced, qualified, competent appraisers, and
consistently relies on their valuations in its offers of compensation,
without any evidence of bad faith on its part, the government's posi-
tions are substantially justified.6 We do not believe that the magistrate
judge's failure to state that the government's appraisals were sup-
ported by an adequate factual basis resulted in an abuse of discretion
in this case. Therefore, we affirm the denial of the Lamsons' petition
for attorney's fees and other expenses. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED
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5 Pierce v. Underwood, 487 U.S. 552, 557-63 (1988).
6 United States v. 1,378.65 Acres of Land Situate in Vernon County,
State of Mo., 794 F.2d 1313, 1319 (8th Cir. 1986).




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