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Recovery of litigation fees and expenses in federal condemnation proceedings under the equal access to justice act.

The U.S. Constitution requires the payment of just compensation to the owners of property taken by eminent domain. Despite this constitutional guaranty, securing adequate just compensation often involves expensive litigation that requires a property owner to obtain the services of professionals such as attorneys and appraisers. Professional fees and other litigation costs can add up to a significant percentage of the award of just compensation for the condemned property. Nevertheless, the Constitution does not oblige a condemning authority to reimburse a property owner for the costs associated with a condemnation proceeding. (1) The U.S. Supreme Court has explained that, while it might be "fair or efficient to compensate a landowner for all the costs he incurs as a result of a condemnation action ... such compensation is a matter of legislative grace rather than constitutional command." (2)

Congress has enacted a few laws that provide property owners with a right to reimbursement for litigation expenses in limited circumstances. If a federal agency abandons a condemnation proceeding or a federal court rules that the agency cannot acquire a property through condemnation, an owner is entitled to reimbursement for "reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings." (3) A property owner also has a right to such reimbursement following a favorable judgment or settlement in an inverse condemnation proceeding initiated by the owner against a federal agency. (4) However, neither of these statutes applies to the typical condemnation proceeding initiated by a federal government agency that results in an award of just compensation to the owner.

The Equal Access to Justice Act, 28 U.S.C. [section] 2412, (EAJA) provides a possible vehicle for an eligible property owner to recover litigation expenses, including attorneys' fees and appraisal costs, incurred because of a condemnation proceeding initiated by a federal agency. However, EAJA does not guarantee reimbursement of litigation expenses in every case or to every property owner. The statute imposes several requirements that an owner must meet before a court will order the government to reimburse the owner's litigation fess and expenses. Owners must show that their net worth is below EAJA's statutory cap and that they were the "prevailing party" at trial. After that, the court must still find that the government's position regarding just compensation was not "substantially justified."

The purpose of this article is to provide a brief explanation of the reimbursement of litigation expenses, including appraisal fees, under EAJA. The article will provide an overview of the scope of reimbursement provided by EAJA and the procedure for seeking reimbursement. This article will also explain the three major limitations on recovery under EAJA: the net worth requirement, the "prevailing party" test, and the standard for determining whether the government's position was "not substantially justified."

Overview of Recovery of Litigation Expenses Under EAJA Purpose of EAJA

Congress enacted EAJA in 1980 to help small litigants vindicate their rights against unreasonable government action without assuming enormous financial burdens. (5) Congress found that individuals and small businesses were "deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved" in litigating against the government. (6) Congress recognized that "the Government with its greater resources and expertise can in effect coerce compliance with its position...." (7)

The congressional hearings on the bill that became EAJA included several references indicating that Congress intended EAJA to address "the plight of condemnees faced with potential litigation costs comprising a large portion of the difference between the value of the condemned estate and the government's [pre-trial offer]." (8) One court-documented opportunistic behavior by a federal agency was shown in an agency's dealings with a property owner regarding the condemnation of land. In 1977, a land acquisition officer for the National Park Service described his strategy when negotiating with property owners:
 My job is to acquire this land for the National Park
 Service. I hope to acquire it for about 30 [cents] on
 the dollar. If the landowners cannot accept our reasonable
 offers, we let the matter ride for a few years.
 Then if necessary, we go to Court, including trials
 and appeals. This procedure is very expensive for the
 landowners. If we cannot agree on our terms, the landowners
 can hire lawyers at one-third [referring to contingency
 fee arrangements] and pay the court costs in
 addition. All of this takes some several years. (9)


As one court recognized, applying EAJA to federal condemnation proceedings "is consistent with the express policy underlying the Act--to diminish the deterrent effect of probable litigation fees on potential challenges to government action." (10)

Scope of EAJA's Coverage

Under EAJA, a prevailing party is entitled to an award of fees and other expenses incurred in a civil action brought by or against the United States, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (11) "Fees and other expenses" are defined in EAJA to include

* the reasonable expenses of expert witnesses;

* the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case; and

* reasonable attorney fees. (12)

In the condemnation context, "fees and other expenses" under EAJA includes appraisal costs and the fees paid to appraisers to prepare opinions and testify as expert witnesses.

EAJA imposes caps on the hourly rates that will be reimbursed for the services of expert witnesses and attorneys and may not provide a dollar-for-dollar recovery. The reimbursement rate for an expert witness's services is capped at "the highest rate of compensation for expert witnesses paid by the United States."(13) The rate the government pays its testifying appraiser will often be disclosed through the discovery process. The reimbursement of attorneys' time is limited to $125.00 per hour "unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." (14)

Procedure for Asserting a Claim Under EAJA

The procedure for asserting a claim for fees and expenses under EAJA is set forth in the statute. The prevailing party must submit an application to the court for fees and other expenses. (15) The application must be filed within thirty days of final judgment in the action, which means the judgment that is "final and not appealable." (16) The application must include a detailed "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." (17) Because the court will only award fees found to be "necessary for the preparation of the party's case," (18) the itemized statement should include some description of the time spent to show how it related to overall case preparation. Thus, in federal condemnation proceedings, it is prudent for both appraisers and attorneys to keep detailed time entry records of their activities and how they relate to preparing the owner's case.

The fee application must also assert that the property owner satisfies the three prerequisites to recovery under EAJA: (1) that the owner is eligible under EAJA's net worth requirement; (2) that the owner was a prevailing party under 28 U.S.C. [section] 2412(d)(2)(H); and (3) that the position of the federal agency was not substantially justified. (19) The standard for meeting these three requirements will be discussed in more detail below.

A property owner in a condemnation proceeding may assert an EAJA claim only after a final judgment following a trial. In the event of a settlement, a property owner does not have a right to assert a claim under EAJA. However, the owner and the federal agency are expected to factor any EAJA claim that the owner might bring into the amount of their settlement. In 1985, Congress amended EAJA to define the term "prevailing party" in eminent domain proceedings. Pursuant to the 1985 amendment, a "prevailing party" in a condemnation case means "a party who obtains a final judgment (other than by settlement)...." (20) In its report on the 1985 amendment, Congress stated:
 This Amendment applies only to values testified to
 in court. It would have no application to settlement
 negotiations or agreements. In fact, the Amendment
 expressly denies the status of prevailing party to any
 party who obtains a judgment by settlement. (21)


Although Congress excluded owners who obtain favorable settlements as "prevailing parties" under EAJA, it expressed its intent that settlements include an allowance for any possible EAJA claims:
 [I]t is presumed that any claim for expenses and fees
 under the Act which a party might have asserted in
 the event of trial would be considered by the parties
 in their negotiations and that an appropriate allowance,
 if any, would be made in the settlement amount
 agreed upon, so that a final judgment achieved
 through settlement shall foreclose thereafter the assertion
 of any such claim. (22)


As a practical matter, it may be difficult for the government and an owner to agree upon an appropriate settlement allowance for fees and expenses, especially in light of the requirements that the owner prevail at trial and that the government's position be "not substantially justified." The government may assert that the trial is more likely to result in an award closer to the government's valuation than the owner's. In addition, the government may contend that, even if the owner prevails at trial, the government's reliance upon its appraisal was justified to a degree that would satisfy a reasonable person and thus provides a safe harbor from EAJA liability. The owner will likely point out any shortcomings in the government's appraisal uncovered through the discovery process and argue that the government faces a risk that the owner will prevail at trial and that a court will find that the government's position is not substantially justified. If the parties reach an impasse regarding EAJA liability, they may resort to mediation or other alternative dispute resolution to help them assess the relative strengths and weaknesses of their positions and determine a mutually agreeable allowance for EAJA fees and expenses.

Prerequisites to Recovering Litigation Expenses Under EAJA

As mentioned previously, in order to receive reimbursement of litigation fees and expenses following a final judgment in a condemnation proceeding, a property owner must satisfy three requirements: (1) whether an individual or a business, the owner's net worth must not exceed the statutory maximum, (2) the owner must have been the prevailing party, and (3) the court must find that the government's position was not substantially justified. Unless the property owner satisfies all three of these requirements, the court will deny the owner's request for fees and expenses under EAJA. (23)

Net Worth Limitation

Recovery under EAJA is limited to individuals "whose net worth did not exceed $2,000,000 at the time the civil action was filed" and to businesses, local governments, or other organizations with not more than 500 employees "the net worth of which did not exceed $7,000,000 at the time the civil action was filed." (24) If a property owner's application for reimbursement fails to assert that the owner's net worth is below the statutory cap, a court will conclude that the owner is not an eligible party and reject the application. (25)

One situation that arises in condemnation cases is how to compute the value of the property that is the subject of the proceeding when determining the individual's or business's net worth under EAJA. The property that is the subject of the condemnation may have been held by the owner for many years, during which its value may have appreciated well above the EAJA limits. Should the property owner use the value of the property determined by the condemnation proceeding (i.e., its current fair market value) or some other figure?

One court addressing this issue has concluded that a property owner should use the owner's "acquisition cost"--the price the owner paid for the property at the time it was acquired when calculating the owner's net worth under EAJA. (26) The court cited the legislative history of EAJA, which stated that "[i]n determining the value of assets, the cost of acquisition rather than fair market value should be used." (27) The court noted that "[i]t would be ironic to the point of absurdity for success by a landowner in a condemnation suit to lead to his being deprived of reimbursement" under EAJA." (28)

Prevailing Party

Congress has enacted a definition of "prevailing party" applicable to eminent domain proceedings. The definition creates a simplistic formula for determining whether a property owner is a "prevailing party":
 "prevailing party", in the case of eminent domain proceedings,
 means a party who obtains a final judgment
 (other than by settlement), exclusive of interest, the
 amount of which is at least as close to the highest
 valuation of the property involved that is attested to
 at trial on behalf of the property owner as it is to the
 highest valuation of the property involved that is attested
 to at trial on behalf of the Government. (29)


EAJA's legislative history explains how this test should be applied by the courts:
 [A] party would be regarded as a prevailing party when
 the amount it is awarded by the court lies at least halfway
 between the highest amount testified to on behalf
 of the government and the highest amount testified to
 on behalf of the opposing party. In other words, the
 prevailing party is the one whose testimony in court is
 closer to the award. If the award is exactly in the middle,
 it gives the benefit to the property owner. (30)


Case law demonstrates the relatively easy application of this formula. In United States v. 5,507.38 Acres of Land, the government's highest valuation at trial for the land was $2,852,819 while the owner's highest valuation at trial was $36,674,523. (31) The commissioner awarded the owner just compensation for the land of $7,236,336. Because the government's valuation was closer to the award than the property owner's valuation, the court held that the property owner was not the prevailing party and therefore not entitled to fees and expenses under EAJA. (32)

There has been some litigation regarding what should be included when determining the "highest valuation of the property involved that is attested to at trial on behalf of the property owner." For example, in a case involving a partial taking of land in which the property owner is seeking severance damages, should the property owner's "highest valuation" include both the value of the land included in the take and the claimed amount of severance damage to the remainder? The Ninth Circuit Court of Appeals has held that the property owner must include both elements in the "highest valuation" when determining whether the owner is a prevailing party under EAJA. (33) The court reasoned that "[i]t is incorrect to think of 'severance damage' as a separate and distinct item of just compensation apart from the difference between the market value of the entire tract immediately before the taking and the market value of the remainder immediately after the taking." (34) The court concluded that "any value testified to at trial which relates to the question of just compensation should be included when determining prevailing party for purposes of [EAJA]." (35)

Another issue arises when the property owner and the owner's appraiser offer differing opinions regarding the value of the property. Which should be used to determine the prevailing party under EAJA? In one case, the property owner's appraiser testified that the property had a value of $892,000, and the owner testified that he believed the property was worth $1.25 million. (36) The just compensation award was $746,804. The government's highest valuation was $465,000. Thus, whether the owner was the prevailing party turned upon which valuation was used to make the determination: the owner's or the appraiser's.

The court held that the landowners valuation testimony must be included in a trial court's prevailing party analysis. (37) Focusing on the language and legislative history of EAJA, the court reasoned that "Congress did not intend to limit relevant valuation testimony to that offered by an expert appraiser, but rather ... it intended for all testimony relating to the issue of just compensation to be considered by a district court in determining who is a prevailing party." (38) The court noted that Congress intended EAJA to bring the government and the property owner closer together in their valuations because both have an incentive of being determined the prevailing party under EAJA. (39) The court reasoned that "this incentive would be lost if property owners were permitted to personally advocate a high valuation of their property for compensation purposes, but then disavow such testimony when seeking to recover fees." (40)

The Government's Position Was Not Substantially Justified

Even if the property owner satisfies the net worth requirement and was the prevailing party, the owner will nevertheless be denied fees if the court finds that the government's position was "substantially justified." Although federal courts have had some difficulty articulating with precision when the government's position in a condemnation case is substantially justified, the cases indicate that the inquiry focuses on the reasonableness of the government's appraisal and any discrepancies between it and the government's settlement offers and proof of valuation at trial.

As one court has noted, "[t]he 'substantially justified' standard is a difficult and flexible one." (41) Congress intended the standard to be "an acceptable middle ground between an automatic award of fees" and the more restrictive standard of awarding fees "only where the government action was arbitrary, frivolous, unreasonable, or groundless." (42) As a general matter, in order to meet the substantially justified standard, the government's position must be "more than merely reasonable." (43) The Eighth Circuit has described the standard as follows:
 In meeting that standard, we conclude that the Government
 now must show not merely that its position
 was marginally reasonable; its position must be clearly
 reasonable, well founded in law and fact, solid though
 not necessarily correct. (44)


In the condemnation context, federal courts agree that the substantially justified inquiry "should focus upon the relationship between the government's offer, the appraisals, and the valuations established by the government's expert witnesses during trial." (45) The courts consider the totality of the circumstances, including the following factors:

1. The reasonableness and reliability of the government's appraisals introduced into evidence based on the

a. qualifications of the appraiser;

b. impartiality or lack thereof of the appraiser (for example, it might be important to know how often he or she was employed by the government);

c. factual basis of the appraisal, specifically the reasons the appraisal differs from that of the landowner;

d. awards and sales of similar property in the area at or about the time in question;

e. whether the comparable sales used by the appraiser were in fact comparable;

2. A comparison of the government's appraisal, the offer made, and proof of valuation at trial;

3. Any explanation offered by the government as to discrepancies between its offer, the appraisal(s), and trial evidence;

4. The good faith, or lack of it, of the government in trying to reconcile the dispute prior to litigation; and

5. Any other relevant evidence. (46)

The courts have emphasized that the inquiry turns upon more than just whether the government's appraisers were qualified and whether the government's offer and testimony at trial are consistent with its appraisal. (47) "[T]he the government will [not] always find itself in a safe harbor, absent evidence of bad faith, if its position, however extreme, is supported by the valuation of a qualified independent appraiser." (48) Ultimately, the government's position must be "clearly reasonable, well founded in law and fact, solid though not necessarily correct." (49)

The government has the burden of proving that its position was substantially justified. (50) The legislative history explains Congress's rationale for placing the burden of proof on the government:
 The test of whether or not a Government action is
 substantially justified is essentially one of reasonableness.
 Where the Government can show that its case
 had a reasonable basis both in law and fact, no award
 will be made. In this regard, the strong deterrents to
 contesting Government action require that the burden
 of proof rest with the Government. This allocation
 of the burden, in fact, reflects a general tendency
 to place the burden of proof on the party who has
 readier access to and knowledge of the facts in question.
 The committee believes that it is far easier for
 the Government, which has control of the evidence,
 to prove the reasonableness of its action than it is for
 a private party to marshal the facts to prove that the
 Government was unreasonable. (51)


United States v. 68.94 Acres of Land, More or Less, Situated in Kent County, State of Delaware provides an example of how a federal court assesses whether the government's position was substantially justified in a condemnation case. (52) This case involved the condemnation of two tracts of land owned by two separate owners. At trial on the issue of just compensation, the government's highest valuation of the two tracts was $62,813.10 and $13,675 respectively. (53) The owners' highest valuation of the two tracts was $409,630 and $19,120 respectively. (54) The jury's award of just compensation for the two tracts was $73,979.85 and $21,730 respectively. (55)

The owners subsequently filed an application for fees and expenses under EAJA. (56) Because the owner's valuation of the second tract of land was closer to the jury's award than the government's valuation of the second tract, the court assumed that the owner was the prevailing party and then analyzed whether the government's position was substantially justified. (57)

The court first considered the qualifications of the government's appraiser and concluded that he was thoroughly qualified as an appraiser and sufficiently impartial. (58) The court noted that the government's appraiser had been a real estate appraiser for over half a century and had appraised property in the area in which the subject property was located thirty to thirty-five times. (59) The court also found that the appraiser had previously done appraisals for landowners whose property was being condemned by the government and that his appraisal work for the government constituted less than five percent of his business. (60)

The court next turned to the substance of the government's appraisal and concluded that it was both reasonable and reliable. (61) Although the owner questioned the comparable sales selected by the government's appraiser because they focused only on purchases made by a single buyer in the area, the court held that "the government was justified in relying on [the appraiser's] comparable sales data." (62) The court reasoned that the government's reliance was justified because the appraiser had testified that the comparable sales involved various sellers and that the single buyer "was the 'market maker' in that part of Kent County, Delaware, and that he paid 'top dollar' for his purchases." (63)

The court then compared the government's appraisal with the government's pre-trial offers and its proof of valuation at trial. The court found that both the government's pre-trial deposit into the court's registry and its valuation at trial were based solely on its appraiser's valuation. (64) The court concluded that "[i]t is obvious that, throughout this case, the government was acting in accordance with the just compensation figures supplied by [its appraiser] and attested to at trial." (65)

The court also considered whether the government acted in good faith before trial. (66) The court found that the government had made two reasonable offers prior to trial that were rejected by the owners. (67) The court noted that "[t]he government's second offer, which promised a sum that was higher than its first appraisal, was thus dearly reasonable and demonstrated its good faith in trying to settle out of court." (68)

Based on consideration of all of the foregoing factors, the court held that the government had met its burden of demonstrating that its position "both before and during trial, was justified to a degree that would satisfy a reasonable person." (69) The court thus denied the owner's application for fees and expenses under EAJA stating that: "[e]ven if [the owners] could be said to have prevailed in the condemnation proceeding underlying this fee application, they would not be entitled to attorney fees." (70)

Conclusion

Because there is no constitutional right to attorneys' fees and appraisal costs when private property is taken by eminent domain, the Equal Access to Justice Act is the avenue available to property owners to seek reimbursement of litigation fees and expenses in condemnation proceedings that are initiated by a federal agency and that are not abandoned or otherwise terminated. The Equal Access to Justice Act does not provide automatic relief to every property owner in every case. The property owner's net worth must fall under the statutory cap and the property owner's valuation at trial must be closer to the ultimate award than the government's valuation. Even then, the trial court must still find that the government's position was not substantially justified, an inquiry that will turn upon the reasonableness of the government's appraisal, the qualifications and impartiality of its appraiser, and the reasonableness of any deviations from the government's appraisal both prior to and at trial.

A separate legal regime is in place that should, in theory, decrease the likelihood that a federal agency will rely upon a flawed appraisal or make offers and present valuation opinions less than its appraisal. The Uniform Relocation Assistance and Real Property Acquisition Policies Act (URARPA) and its implementing regulations require the government, prior to initiating negotiations for real property, to obtain an independent and impartial appraisal prepared by a qualified appraiser in accordance with the Uniform Appraisal Standards for Federal Land Acquisitions. (71) In addition, URARPA requires the government, prior to negotiations, to make an offer for the property that is no less than the agency's approved appraisal of the fair market value of such property. (72) The possibility of liability under EAJA should provide an additional incentive to federal agencies to eschew opportunistic behavior and steer a conservative course that complies with URARPA and results in truly reasonable pre-trial offers and valuation testimony at trial.

Although the legal requirements of URARPA are intended to reduce the occurrence of the government taking positions in condemnation proceedings that are not substantially justified, the conduct of federal agencies should be closely scrutinized in each particular case for noncompliance with URARPA's mandates or reliance upon an appraisal based on flawed analysis or faulty information. As one judge has noted, under EAJA, "[n]ot only must the government follow reasonable procedures, the government must take a reasonable position." (73)

Ultimately, both legal counsel and consulting and/or testifying appraisers for a property owner will conduct an ongoing assessment of the owner's case for recovering litigation fees and expenses under EAJA. The lawyers and appraisers will need to work closely together to examine the reasonableness of the government's appraisal and to develop a case at trial that both results in the owner achieving prevailing party status and fuels an argument that the government's position was not substantially justified. In supporting its application for fees and expenses under EAJA, the owner will most likely rely upon the weaknesses in the government's appraisal uncovered during the discovery process and presented at trial through the cross-examination of the government's appraiser and the direct examination of the owner's appraiser. Ultimately, the owner's goal is to convince the court that, by relying on its appraisal, the government did not sail into a safe harbor from EAJA liability, but rather has run aground on the rocky shores of unreasonable government action that EAJA was intended to combat.

(1.) The U.S. Supreme Court has held that attorneys' fees, appraisal expenses, and other litigation costs are not included in the lust compensation required by the Fifth Amendment's "Takings Clause." United States v. Bodcaw Co., 440 U.S. 202, 203 (1979); Dohany v. Rogers, 281 U.S. 362, 368 (1930) ("Attorneys fees and expenses are not embraced within just compensation").

(2.) Bodcaw Co., 440 U.S. at 204.

(3.) 42 U.S.C. [section] 4654(a). This statute only applies to condemnation proceedings initiated by federal agencies. Whether a particular state has enacted a similar law is beyond the scope of this article.

(4.) 42 U.S.C. [section] 4654(c). This statute only applies to inverse condemnation proceedings brought against the federal agencies. Inverse condemnation proceedings involving state agencies are beyond the scope of this article.

(5.) United States v. 329. 73 Acres of Land, Situated in Grenada and Yalobusha Counties, Miss., 704 F.2d 800, 801-02 (5th Cir. 1983); Spencer v. NLRB, 712 F.2d 539, 550 (D.C.Cir. 1983).

(6.) The Equal Access to Justice Act, Pub. L. No. 96-481, [section] 202(a) 94 Stat. 2325 (1980).

(7.) 329.73 Acres of Land, 704 F.2d at 802 (quoting H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10 reprinted in 1980 U.S. Code Cong. & Ad. News 4988-89).

(8.) United States v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, 716 F.2d 714, 720 (9th Cir. 1983).

(9.) United States v. 341.45 Acres of Land, More or Less, Located in the County of St. Louis, State of Minn., 751 F.2d 924, 927 (8th Cir. 1984).

(10.) 101.80 Acres of Land, 716 F.2d at 727.

(11.) 28 U.S.C. [section] 2412(d)(1)(A). The full text of 28 U.S.C. [section] 2412(d)(1)(A) is as follows: "Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to [28 U.S.C. [section] 2412(a)], incurrred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumtances make an award unjust."

(12.) 28 U.S.C. [section] 2412(d)(2)(A).

(13.) Id.

(14.) Id.

(15.) 28 U.S.C. [section] 2412(d)(1)(B).

(16.) Id. and [section] 2412(d)(2)(G) (defining "final judgment").

(17.) 28 U.S.C. [section] 2412(d)(1)(B).

(18.) 28 U.S.C. [section] 2412(d)(2)(A).

(19.) 28 U.S.C. [section] 2412(d)(1)(B).

(20.) 28 U.S.C. [section] 2412(d)(2)(H).

(21.) H.R.Rep. No. 120(I), 99th Cong. 1st Sess. (1985), reprinted in 1985 U.S. Code Cong. & Admin. News 132, 147.

(22.) Id.

(23.) United States v. Charles Gyurman Land & Cattle Co., 836 F.2d 480,483 (10th Cir. 1987) ("The court must first determine whether the non-government party prevailed. If so, that party 'shall' be awarded fees unless the government's position was substantially justified.").

(24.) 28 U.S.C. [section] 2412(d)(2)(B). A nonprofit organization that qualifies for tax-exempt status under [section] 501 (c)(3) of the Internal Revenue Code and cooperative associations defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. [section] 1141 (j)(a)) qualify for EAIA relief regardless of their net worth. 28 U.S.C. [section] 2412(d)(2)(B).

(25.) United States v. 68.94 Acres of Land, More or Less, Situated in Kent County, State of Delaware, 736 F. Supp. 541,546 (D.DeL 1990).

(26.) United States v. 88.88 Acres of Land, More or Less, State of California, 907 F.2d 106, 107 (9th Cir. 1990).

(27.) Id. (quoting H.R. Rep. No. 1418, 96th Cong., 2d Sess. 16 (1980), reprinted in 1980 U.S. Code Cong. & Admin. News 4953, 4984, 4994).

(28.) Id.

(29.) 28 U.S.C. [section] 2412(d)(2)(H).

(30.) H.R. Rep. No. 120(I), 99th Cong. 1st Sess. (1985), reprinted in 1985 U.S. Code Cong. & Admin. News 132, 147 (emphasis added).

(31.) United States v. 5,507.38 Acres of Land, 832 F.2d 882, 883 (5th Cir. 1987).

(32.) Id.

(33.) United States v. 50.50 Acres of Land, 931 F.2d 1349, 1358-59 (9th Cir. 1991).

(34.) Id. at 1358.

(35.) Id. at 1359.

(36.) United States v. 2.6 Acres of Land, More or Less, Situated in Whatcom County, State of Washington, 251 F.3d 809, 811-12 (9th Cir. 2001).

(37.) Id. at 813-14.

(38.) Id. at 813.

(39.) Id.

(40.) Id.

(41.) United States v. 640.00 Acres of Land, More or Less, in the County of Dade, State of Florida, 756 F.2d 842, 850 (11th Cir. 1985).

(42.) H.R. Rep. No. 1418, 96th Cong., 2d Sess. 14, reprinted in 1980 U.S. Code Cong. & Ad. News 4993.

(43.) H.R. Rep. No. 120(1), 99th Cong. 1st Sess. (1985), reprinted in 1985 U.S. Code Cong. & Admin. News 132.

(44.) United States v. 1,378.65 Acres of Land, More or Less, Situated in Vernon County, State of Missouri, 794 F.2d 1313, 1318 (8th Cir. 1986).

(45.) United States v. 341.45 Acres of Land, More or Less, Located in the County of St. Louis, State of Minn., 751 F.2d 924-940 (8th Cir. 1984); see also United States v. 312.50 Acres of Land, More or Less, Situated in Prince William County, Commonwealth of Virginia, 851 F.2d 117, 118-19 (4th Cir. 1988); United States v. Bradac, 910 F.2d 439, 442-43 (7th Cir. 1990).

(46.) United States v. 68.94 Acres of Land, More or Less, Situated in Kent County, State of Delaware, 736 F. Supp. 541, 546 (D. Del. 1990); see also United States v. 313.34 Acres of Land, More or Less, Situated in Jefferson County, State of Washington, 897 F.2d 1473, 1476 (9th Cir. 1990); United State v. Charles Gyurman Land & Cattle Co., 836 F.2d 480, 485 (10th Cir. 1987).

(47.) United States v. 313.34 Acres of Land, More or Less, Situated in Jefferson County, State of Washington, 897 F.2d 1473, 1476 (8th Cir. 1990) (noting that such a standard would create a "virtually irrebuttable presumption in favor of the government").

(48.) United States v. .0376 Acres of Land, 838 F.2d 819, 826 (6th Cir. 1988).

(49.) United States v. 1,378.65 Acres of Land, More or Less, Situated in Vernon County, State of Missouri, 794 F.2d 1313, 1318 (8th Cir. 1986).

(50.) Snowbank Enterprises, Inc. v. United States, 7 Cl. Ct. 388, 389 (1985).

(51.) H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S. Code Cong. & Ad. News 4953, 4989-90.

(52.) United States v. 68.94 Acres of Land, More or Less, Situated in Kent County, State of Delaware, 736 F. Supp. 541 (D. Del. 1990).

(53.) Id. at 545.

(54.) Id.

(55.) Id. at 544-45.

(56.) Id. at 543.

(57.) Id. at 547. The trial court denied the owners' petition on two alternate grounds. The trial court held that the owner of the smaller tract had failed to prove that she satisfied EAJA's net worth requirement and that, assuming she had, the government's position was nevertheless substantially justified. The owner of the largest tract (a trust) was denied EAJA fees and expenses because the government's valuation of the larger tract was closer to the jury's award, and the trust was therefore not the prevailing party.

(58.) Id. at 548.

(59.) Id.

(60.) Id.

(61.) Id. at 548-49.

(62.) Id. at 549.

(63.) Id.

(64.) Id. at 550.

(65.) Id.

(66.) Id. at 551.

(67.) Id.

(68.) Id., emphasis in original,

(69.) Id. at 552.

(70.) Id.

(71.) 42 U.S.C. [section] 4651 (2) ("Real property shall be appraised before the initiation of negotiations") and [section] 4601 (13) (defining "appraisal" to mean "a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information"); 49 C.F.R. [section] 24.103 ("A detailed appraisal shall reflect nationally recognized appraisal standards, including, to t extent appropriate, the Uniform Appraisal Standards for Federal Land Acquisition.").

(72.) 42 U.5.C. [section] 4651(3); 49 C.F.R. [section] 24.102(d).

(73.) United States v, 0.376 Acres of Land, 838 F.2d 819,829 (6th Cir. 1988) (J. Merritt dissenting).

David S. Black, JD, is an attorney at Holland & Knight, LLP. He works in the firm's Northern Virginia office and practices in litigation involving land use, eminent domain, commercial, and government contracts disputes. He is a graduate of Georgetown University Law Center. Contact; Holland & Knight LLP, 1600 Tysons Boulevard, Suite 700, McLean, VA 22102; T 703-720-8680; F 703-720-8610; E-mail: David.Black@hklaw.com.
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Title Annotation:law and the appraiser
Author:Black, David S.
Publication:Appraisal Journal
Geographic Code:1USA
Date:Mar 22, 2004
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