[00:00:03] Speaker 05:
We have four argued cases this morning.

[00:00:05] Speaker 05:
The first is number 212309, Dobbins versus United States.

[00:00:11] Speaker 05:
Mr. Reed.

[00:00:24] Speaker 04:
May I please declare James Reed for plaintiff appellant, J. Anthony Dobbins.

[00:00:28] Speaker 04:
Good morning.

[00:00:29] Speaker 04:
I'd like to focus on the trial court's orders and its interpretation of the Equal Access to Justice Act, which are reviewed de novo, and because there were no decisions made on the merits of each application, we would submit that it may be viewed as a summary proceeding and reviewed de novo as well.

[00:00:45] Speaker 04:
I believe the most helpful thing I can do for the court this morning is to provide a brief chronology of the events that we believe told the filing deadline for the plaintiff's Equal Access to Justice application for fees.

[00:00:57] Speaker 04:
On May 1st, 2019, the trial court issued an order at Appendix 40 for the parties to provide a status report by May 17th, 2019 as to any unfinished court business.

[00:01:09] Speaker ?:
On May 15th, 2019, the parties filed a joint status report of Appendix 435.

[00:01:15] Speaker 04:
Plaintiff stated that he was filing the petition for certiorari, after which he would file in each application for attorney fees or, at minimum, defeating the government's counterclaims.

[00:01:25] Speaker ?:
that same day May 15th, 2019, the trial court issued an

[00:01:35] Speaker ?:
final resolution of the plaintiff's request for relief from the Supreme Court on indicating their delay schedules for further proceedings in this matter.

[00:01:44] Speaker ?:
On February 4, 2020, the Supreme Court denied the petition for certiorari, and 25 days later, on March 20, 2020, the Supreme Court's denial and the Federal Circuit's reversal of plaintiff's trial victory became final.

[00:01:58] Speaker 04:
On April 20, 2020, counsel for plaintiff and the government exchanged emails in which the Justice Department agreed that an amendment

[00:02:10] Speaker ?:
trial court to issue a new judgment, it will

[00:02:14] Speaker ?:
Appendix 74.

[00:02:15] Speaker 04:
On April 24, 2020, the parties filed a joint status report found in Appendix 440.

[00:02:22] Speaker 04:
Planned described again his intent to file an EJ application.

[00:02:26] Speaker ?:
On May 4, 2020, the trial court issued an order stating that no amended judgment would be issued, and that's Appendix 242.

[00:02:33] Speaker 04:
The court noted that Plank intended to file an application for attorney's fees under the Equal Access to Justice Act.

[00:02:40] Speaker 04:
The court ordered the parties to file by May 18, 2020, quote,

[00:02:44] Speaker ?:
joint status report proposing a schedule, including specific calendar dates, to govern further proceedings in this case."

[00:02:52] Speaker ?:
On May 18, 2020, at Appendix 450, the parties filed a joint status report.

[00:02:58] Speaker 04:
The parties proposed August 17, 2020 as a date for planning to file as previously described requests for attorney's fees, along with any other motions.

[00:03:11] Speaker 04:
The trial court issued an order adopting the party's proposed schedule, setting August 17, 2020 as plaintiff's deadline to file post-appeal motions, and commended the parties for working together to create this schedule.

[00:03:24] Speaker ?:
On August 14, 2020, at Appendix 246, the court extended plaintiff's filing deadline to October 16, 2020 for good

[00:03:34] Speaker 05:
I think we know what happened before getting into the merits of the equitable tolling.

[00:03:46] Speaker 05:
Well, I had a predicate question.

[00:03:49] Speaker 05:
You seem to be claiming attorney's fees both with respect to the counterclaim as to which I guess you were the prevailing party, but also on the merits of your own claim.

[00:04:03] Speaker 05:
And I'm not quite understanding how you were a prevailing party since you lost on your claim.

[00:04:11] Speaker 04:
The standard is to change the legal standing of the plaintiff as a result of prevailing.

[00:04:25] Speaker 04:
Now, Judge O'Reager issued a number of findings of fact against the ATF.

[00:04:31] Speaker 04:
Those included that ATF intentionally exposed the plant to danger by removing

[00:04:36] Speaker 04:
his covert identifications, obstructing the investigation of the arson of his home.

[00:04:41] Speaker 05:
And there's no case that I'm aware of that suggests that that makes you a prevailing party.

[00:04:49] Speaker 04:
Your Honor, the cases that we cited indicated that an outcome which changed the legal relationship between the plaintiff and his employer is sufficient to obtain attorney's fees under IJA.

[00:05:06] Speaker 04:
granted that we did not win under the covenant of good faith and fair deal, and Your Honor, as you well know, is one of the authors of that opinion.

[00:05:15] Speaker 04:
However, after those findings of that court issued, Agent Dobbins was no longer suspect in this case.

[00:05:23] Speaker 04:
He was exonerated in a 55-page trial court opinion as an arson suspect, and he was no longer pursued.

[00:05:30] Speaker 04:
He was also characterized as a whistleblower.

[00:05:33] Speaker 04:
All of these things are vital alterations to his relationship.

[00:05:36] Speaker 04:
with ATF.

[00:05:38] Speaker 05:
I understand your point.

[00:05:40] Speaker 05:
Why don't you go on to the equitable tolerance issue?

[00:05:43] Speaker 04:
I'm sorry.

[00:05:44] Speaker 04:
Yes, sir.

[00:05:45] Speaker 04:
Yes, sir.

[00:05:45] Speaker 04:
Now, the trial courts overstated May 15, 2019, May 4, 2020, and May 20, 2020.

[00:05:53] Speaker ?:
All calls planned

[00:05:55] Speaker ?:
The court had suspended and extended plenty of time to process each application as foremost among the federal proceedings for which the court requested and then adopted a stipulated schedule of proceedings.

[00:06:08] Speaker ?:
Nowhere did the trial court try to exclude from the plaint's future filing from the court's multiple references to, quote, further proceedings in this request for scheduling order.

[00:06:19] Speaker 01:
The court did not do so until July 120.

[00:06:22] Speaker 01:
Excuse me, sir.

[00:06:22] Speaker 01:
I've got to listen a little bit better.

[00:06:24] Speaker 01:
Can I ask you this?

[00:06:26] Speaker 01:
Why would anything said by the trial court about scheduling that was actually said after

[00:06:38] Speaker 01:
March 20, 2020 matter.

[00:06:43] Speaker 04:
Your Honor, this order is March, that is May 15, 2019.

[00:06:48] Speaker 01:
I know one of them, but you group all these things together and it feels important, for I think a pretty obvious reason, to separate those

[00:06:58] Speaker 01:
statements, orders by the district court that came after the deadline passed from those which came before.

[00:07:06] Speaker 01:
Now, presumably, statements afterwards, if they were clear enough, might indicate that there was, in fact, a new deadline.

[00:07:15] Speaker 01:
But these don't quite do that.

[00:07:18] Speaker 01:
So which are the ones that preceded the running of the deadline, which I think you said it was March 20, 2019?

[00:07:25] Speaker 01:
And why do those create a basis for equitable tolling?

[00:07:30] Speaker 04:
Your Honor, if I may, the judgment became non-appealable and final after the Supreme Court

[00:07:38] Speaker ?:
expired before the Supreme Court on March 20.

[00:07:42] Speaker ?:
The 30-day period then, under the trial court's perspective, was April 19.

[00:07:51] Speaker ?:
So it's about a suspender's argument, Your Honor.

[00:07:56] Speaker ?:
There's two different reasons.

[00:07:57] Speaker ?:
Apart from the May 15, 2019, scheduling order, the agreement by the government in writing in our brief

[00:08:06] Speaker ?:
that an amended judgment would issue would start at the age of filing period at the date of issuance of the amended judgment.

[00:08:14] Speaker 01:
And that's right.

[00:08:16] Speaker 01:
So my recollection from reading these papers is that that passage in that email is far and away the most significant thing to think about.

[00:08:26] Speaker 01:
And I think what the court said about that was there was no kind of agreement in the sense of a contract between the

[00:08:38] Speaker 01:
of that would have been had it existed it was rather one lawyer predicting something and another lawyer saying okay and the claims court said you weren't entitled to rely on that prediction

[00:08:53] Speaker 04:
And as we specifically stated in the briefs, Your Honor, we did not claim that there was a binding oral agreement with the Department of Justice, nor did we claim that the Department of Justice was empowered to do that.

[00:09:04] Speaker 04:
What we claimed was that the Department of Justice had waived its right to object to the filing period for each opening

[00:09:12] Speaker 04:
prior to the date that they revealed that they were going to recant at that position on April 24, 2020.

[00:09:20] Speaker 04:
Now, it does matter, and our decisions that we cite indicate that the government can waive those deadlines and waive its objection to object those deadlines.

[00:09:32] Speaker ?:
The point being, then, if under Your Honor's perspective of this, and I respectfully disagree that the court's order governing further proceedings did not include Egypt, but if we go with Your Honor's perspective of this, that what matters is the predictions and the perspective of the Department of Justice, then April 24, 2020 was the date that the Egypt 30-day filing window opened.

[00:09:59] Speaker ?:
Now, just 10 days later, the trial court issued its order on May 4th, specifically referring to Plants Intent Defile in each application.

[00:10:09] Speaker ?:
That May 4th order renewed the court's May 19th request for the parties to stipulate to a schedule for post-appeal motions

[00:10:19] Speaker ?:
including the IJA application.

[00:10:21] Speaker 04:
That order also indicated for the first time that no new judgment would issue.

[00:10:26] Speaker 04:
So up until that point there was a common assumption between the two parties that an amended judgment would issue and that the IJA filing window had not opened.

[00:10:35] Speaker 04:
Even if the trial courts made forth

[00:10:37] Speaker 04:
were found to start the age of filing period by announcing for the first time that no admitted judgment would issue.

[00:10:44] Speaker 04:
The court then adopted the party's filing schedule just 16 days later on May 20th, 2020.

[00:10:51] Speaker 04:
And under the multiple decisions that are cited by Plaintiff in the opening reply briefs, the government waived any timely objections when it attempted to recant its agreement that a new judgment would issue through to April 24th, 2020.

[00:11:07] Speaker ?:
Again, just 10 days later, the court directed the parties to stipulate a briefing schedule, and 16 days later, the court adopted it.

[00:11:15] Speaker 04:
Now, the decisions citing that waiter and tolling perspective include North Carolina Alliance, the Northern District of Ohio decision of Vasquez versus Barnett, and the District of Kansas decision in Olin House versus Commodity Credit Card.

[00:11:32] Speaker 04:
Now, the trial court, in its May 15, 2019 order and its May 20, 2020 order, consistently used the term quota proceedings to include plaintiffs' each application.

[00:11:45] Speaker 04:
And by those orders, and by the trial court's subsequent orders, granting plaintiffs' consent motion to plaintiffs' filing deadline as August 17,

[00:11:55] Speaker 04:
twenty-twenty, which the court specifically did, the trial court suspended and extended each following date.

[00:12:02] Speaker 04:
And at minimum, it should be found to have totally under equitable grounds.

[00:12:07] Speaker ?:
If somehow the trial court did not understand that it was doing so, or that it was reasonable for the plaintiff to believe it was doing so, that is not the fault of the plaintiff, nor should it be to the prejudice of the plaintiff.

[00:12:20] Speaker ?:
And specifically,

[00:12:27] Speaker 04:
As we cite in our opening paragraph, page 37, the Middle District of North Carolina, in the North Carolina Alliance for Transportation Reform versus Department of Transportation decision, in reviewing each of section 2412 D1B motion for fees, wrote, the Supreme Court has recognized that a court in the equitable toll deadline

[00:12:48] Speaker 04:
The court leaves the clinic to believe that he has done everything required of him.

[00:12:53] Speaker 04:
We could not have been more clear that we were filing each application.

[00:12:57] Speaker 04:
We made it clear in our May 15, 2019, status report, and the court referred to all further proceedings as being subject to the party's stipulated scheduling order.

[00:13:10] Speaker ?:
And, Your Honor, as I was going to reserve three minutes for borrow, I would just say that as for the 2412, now we've been talking about 2412D, as for 2412B, which is governed by claims quote rule 54, even in the world's south states, this 30-day deadline can be modified by court order.

[00:13:31] Speaker ?:
And the U.S.

[00:13:32] Speaker ?:
Supreme Court decision in Scarborough v. Principi in 2004 made clear that 2412D1B's 30-day deadline is subject to equitable tolling because the 30 days is not the judicial.

[00:13:46] Speaker 04:
Finally, Your Honor, I did put in the briefs that the extraordinary interruptions due to COVID after March 20, 2020 made the production to each application impossible, either by April 19, 2020, or by May 4, or May 20, 2020.

[00:14:01] Speaker 04:
The time entries for the six years were housed at two prior law firms which had closed and were inaccessible during COVID.

[00:14:09] Speaker ?:
Each of these factors is an independent and sufficient reason to find plaintiffs' EJA filing deadline total.

[00:14:14] Speaker 04:
And coupled with the absence of prejudice from plaintiffs being part of the merits of this EJA application, this we believe should guide the court to reverse the trial court's July 1, 2021, order denying attorneys' fees and costs.

[00:14:26] Speaker 04:
And I'll reserve the last minute and a half for a follow-up.

[00:14:28] Speaker 04:
Okay.

[00:14:29] Speaker 04:
Thank you, Mr. Reed.

[00:14:30] Speaker 04:
Thank you.

[00:14:49] Speaker 03:
So does the government agree that global tolling would be available both for the statutory deadline and the deadline in the rule?

[00:15:07] Speaker 03:
Well, escargot does seem to say that because it's a statutory deadline and not a jurisdictional deadline, that there is equitable tolling is available.

[00:15:18] Speaker 03:
The Townsend case that's referenced in our briefing from the Sixth Circuit has found that equitable tolling is available.

[00:15:25] Speaker 03:
It ultimately denied it in the subsequent decision, but it does seem like that's where the jurisdictions are going, Your Honor, yes.

[00:15:32] Speaker 05:
Okay, so I'm a little puzzled as to the government's position as to why equitable tolling is not available here.

[00:15:40] Speaker 05:
I mean, the quintessential Supreme Court case on equitable tolling is Earl.

[00:15:46] Speaker 05:
And Earl gives us an example of a situation where someone's misled by an adversary, a case called Glaus, which is not cited by either party.

[00:15:58] Speaker 05:
It's 359 U.S.

[00:15:59] Speaker 05:
231.

[00:16:02] Speaker 05:
And in Glaus, the Supreme Court held that where somebody had represented to the other party that the statute of limitations was seven years, when it was a shorter period, that was sufficient to create equitable tolling.

[00:16:18] Speaker 05:
And I guess I'm looking at the facts of this case, and they seem to me to be somewhat similar to Glaus.

[00:16:25] Speaker 05:
So why, I mean, assuming my description of Glaus is accurate,

[00:16:30] Speaker 05:
And equitable tolling existed where one party told the other that the statute of limitations was longer than it in fact was.

[00:16:37] Speaker 05:
Why isn't that like this here?

[00:16:40] Speaker 03:
Well, if Your Honor, before I answer that question, which I 100% will, Your Honor, I do want to point this to the standard of review here for equitable tolling, which would be abuse of discretion.

[00:16:51] Speaker 03:
Well, let's answer the question first.

[00:16:53] Speaker 03:
Yeah, so we're looking into whether the trial court made an irrational judgment

[00:16:57] Speaker 03:
when it disagreed with that.

[00:16:58] Speaker 05:
That's what the trial court said was the parties can't extend the time by agreement.

[00:17:02] Speaker 05:
That's not a viable theory.

[00:17:05] Speaker 05:
I disagree with that, Your Honor.

[00:17:07] Speaker 05:
That's not what the trial court said.

[00:17:09] Speaker 05:
Answer my question, okay?

[00:17:10] Speaker 03:
Yeah, I am.

[00:17:11] Speaker 03:
Right now.

[00:17:12] Speaker 03:
Your Honor, that's not what the trial court said.

[00:17:15] Speaker 05:
No, not that question.

[00:17:16] Speaker 05:
The question about Klaus.

[00:17:18] Speaker 05:
Why isn't this like Klaus?

[00:17:21] Speaker 03:
Well, the trial court found that Mr. Dobbins identified that there was an extension of time based on a trial court's filing, sorry, the trial court's office, the ones predating and post-dating, as Your Honor points out, as well as the statement from the DOJ counsel.

[00:17:42] Speaker 03:
So what the trial court found was the reason for the delay, when looking at that part of the excusable neglect test,

[00:17:50] Speaker 03:
was a misreading of those waters, as well as Mr. Dobbins should have done the research himself.

[00:18:00] Speaker 05:
So, and you could say that about clouds too.

[00:18:03] Speaker 05:
I mean, here's one party saying to the other, the statute of limitations is seven years.

[00:18:07] Speaker 05:
The other party doesn't bother to look it up, and yet the Supreme Court says there's equitable tolling.

[00:18:12] Speaker 05:
Same thing here.

[00:18:14] Speaker 05:
You told him that there was no need to ask for an order that the trial court would automatically issue a new judgment, which would start the period for the attorney's fees motion.

[00:18:29] Speaker 03:
Well, I think the government counsel in this case agreed with Mr. Dawkins about the amendment job.

[00:18:37] Speaker 03:
When you look at the statement and what it said, Your Honor, I think, and I don't want to just say it off the top of my head because I don't want to misrepresent it, so I'm going to jump back into the court decision here, Your Honor, and get it exactly.

[00:18:52] Speaker 01:
I don't think we need to ask the trial court to issue a new judgment.

[00:18:58] Speaker 01:
It will do that as a matter of course.

[00:19:04] Speaker 05:
Mr. Dobbers, how he describes the situation is a mutual mistake of fact, not relying on... But he describes, he makes multiple arguments, one of which is that he was misled by his adversary, that is you, the Justice Department, okay?

[00:19:21] Speaker 05:
And you told him,

[00:19:24] Speaker 05:
that there would, not you personally, but that there would be a new judgment which would start the time.

[00:19:30] Speaker 05:
That was wrong.

[00:19:31] Speaker 05:
Why isn't that sufficient for equitable talent?

[00:19:34] Speaker 03:
Well, the question was whether there would be a new judge for that.

[00:19:38] Speaker 03:
I mean, I'm going to be honest, I'm going to skip that, Your Honor, and focus on this, but the trial court found was that, especially after

[00:19:46] Speaker 03:
It was like 10 years of hard fighting against the government.

[00:19:49] Speaker 03:
It was unreasonable for Mr. Dobbins to rely on a statement from government counsel in that case.

[00:19:55] Speaker 03:
So it was.

[00:19:56] Speaker 01:
This was an exceedingly friendly, cooperative email.

[00:20:02] Speaker 01:
Correct.

[00:20:03] Speaker 01:
This was not, I will say, absolutely nothing that creates the slightest risk of helping your case.

[00:20:14] Speaker 03:
but you know and just to you know for my own sake i've enjoyed working with Mr. Reid and there's been no issues but at that time the other motions that are mentioned in the trial court decision the orders that are going to be filed are attempts to seek criminal sanctions against government employees uh... civil sanctions against them there is still a tension between these parties at this time it wasn't all copacetic even though the tone of the government's email there was very

[00:20:44] Speaker 05:
But the email misled him, didn't it?

[00:20:50] Speaker 03:
Well, I think the email didn't correct his misunderstanding.

[00:20:54] Speaker 05:
Because the email that was sent... Well, he said that the trial court will enter a new judgment.

[00:21:00] Speaker 05:
We don't need to do anything.

[00:21:03] Speaker 03:
correct because the premise of the mutual misunderstanding is that an amended judgment would be coming, right Your Honor?

[00:21:11] Speaker 03:
That there would be an amended judgment.

[00:21:12] Speaker 03:
There was a need for one.

[00:21:14] Speaker 03:
Mr. Dobbins's counsel suggested that and government counsel did not correct him because the government counsel... No, it's more than that.

[00:21:21] Speaker 05:
He actually told him that there would be no need for a new judgment because the trial court would enter one as a matter of course.

[00:21:30] Speaker 05:
I don't think we're disagreeing, Your Honor.

[00:21:32] Speaker 05:
So why isn't that sufficient to misleading behavior to qualify for equitable tolling?

[00:21:40] Speaker 03:
Well, Your Honor, as we said in our briefs, as the trial court said, which again, this court is reviewing for irrational judgment, that it was Mr. Domles's responsibility to do his own research on this and not just trust a statement from government counsel on it.

[00:21:55] Speaker 01:
And I'm aware of the case that... The way I think that

[00:21:59] Speaker 01:
Judge Dike framed the point before, is that what appears to have been the case is that claims court relied on an incorrect legal proposition that an adversary's representation cannot be the basis for equitable tolling.

[00:22:19] Speaker 01:
That wouldn't be so much irrational as one ground for abusive discretion, which is reliance on an incorrect legal view.

[00:22:28] Speaker 03:
I don't think the trial court goes that far.

[00:22:31] Speaker 03:
I wasn't going to come up here and tell you today that nothing the government can say could ever cause equitable tolling.

[00:22:38] Speaker 03:
That's not our position.

[00:22:39] Speaker 03:
We didn't receive this statement in particular as being problematic.

[00:22:45] Speaker 03:
as the court had pointed out, that there was a history between the parties, a contentious history, and also the statement itself, as I've discussed, Your Honor.

[00:22:54] Speaker 03:
I don't think there's a lot of difference between what we're saying, Your Honor, but the spin that we see on this is that the statement is not purposely pushing Mr. Dobbins in a direction he wasn't already going, but just failed to correct his mistake.

[00:23:08] Speaker 05:
Oh, it didn't mention that.

[00:23:10] Speaker 05:
It said explicitly, we don't need to ask for a new judgment because the court will automatically enter one.

[00:23:17] Speaker 05:
And if he trusted that, he got it.

[00:23:21] Speaker 03:
The record shows that.

[00:23:22] Speaker 03:
No.

[00:23:22] Speaker 03:
How does the record show that?

[00:23:23] Speaker 03:
Well, the record shows that on April 22, after the deadline.

[00:23:28] Speaker 01:
Correct, after the deadline.

[00:23:29] Speaker 03:
That is, but it's referring back to an order from a year ago.

[00:23:35] Speaker 03:
Okay, Your Honor.

[00:23:35] Speaker 03:
So yes, that does point out to you that this is three days too late in my thought process here.

[00:23:41] Speaker 03:
But it's relying on an order from May 1st, 2019, Your Honor, where it shows the trial court isn't going to do anything but terminate the case.

[00:23:54] Speaker 03:
So that order has been sitting out for a while now.

[00:23:59] Speaker 03:
And that was, if I'm remembering correctly, Appendix Page 9, 26.

[00:24:04] Speaker 01:
Is this the same as 240?

[00:24:05] Speaker 03:
Well, let's start with 240.

[00:24:10] Speaker 03:
I think that's correct.

[00:24:11] Speaker 03:
If you want to go to the other door, yes.

[00:24:13] Speaker 01:
Right.

[00:24:14] Speaker 01:
But that doesn't say, does it, that once the clock runs on the Supreme Court process, there will be no need for any further action?

[00:24:28] Speaker 03:
That's the problem this entire case.

[00:24:30] Speaker 03:
Nothing is explicit.

[00:24:32] Speaker 03:
And everything that we're going through here, Your Honor, has been very explicit.

[00:24:35] Speaker 03:
This is your deadline for your e-dict application.

[00:24:40] Speaker 03:
And that's why we're here today, right?

[00:24:43] Speaker 03:
Because the parties are interpreting these differently.

[00:24:45] Speaker 03:
But what the email from April 22, 2020 shows is that Mr. Don has interpreted this order as not doing anything, as saying that there will be amended judgment, that the case would just be terminated.

[00:25:02] Speaker 02:
How about the schedule lawyers that the court adopted that mentioned the IJA case, the IJA application?

[00:25:13] Speaker 03:
As the trial court said, there was nothing stopping parties from filing motions within their actual deadlines.

[00:25:20] Speaker 03:
But that 60-day deadline for the JSR was to deal with numerous things that were to be filed, like the criminal motions that I mentioned and the sanction motions.

[00:25:30] Speaker 03:
So the trial court found that basically a party should be doing research, figuring out what the deadlines are, and filing appropriate motions when they're due, and not just waiting for the JSR.

[00:25:45] Speaker 05:
If you honor this, on that theory, Klaus was decided incorrectly.

[00:25:50] Speaker 03:
You are right that the parties didn't address Klaus, so I am not familiar with its facts.

[00:25:54] Speaker 03:
I apologize for that.

[00:25:55] Speaker 05:
Well, I gave you the facts.

[00:25:57] Speaker 05:
They told them there was seven years.

[00:25:58] Speaker 05:
And you could just as easily say, well, you should have done your own research to figure out there wasn't seven years.

[00:26:04] Speaker 03:
Yes.

[00:26:05] Speaker 03:
I don't know what to say, Your Honor, because as I said, I'm not familiar with all the facts in that case.

[00:26:10] Speaker 03:
But the facts here show that from this order in 2019, there was doubt that their case would have an amendment judgment, that there would just be a termination, and that carried out in April 22, 2020, which Your Honor points out three days after the deadline.

[00:26:27] Speaker 03:
that Mr. Dobbins was interpreting that order from the year before as the case would just be terminated, no amended judgment.

[00:26:34] Speaker 01:
And am I remembering correctly or incorrectly that the first assertion by the department that a fees application would be untimely came after the deadline ran?

[00:26:50] Speaker 03:
To the court, yes.

[00:26:52] Speaker 03:
I don't, I wasn't involved in the case at that time.

[00:26:55] Speaker 03:
I'm not sure if it happened between April 8 and April 19.

[00:26:58] Speaker 05:
There's nothing in the record to suggest that you raised the problem with this issue.

[00:27:04] Speaker 05:
Well, it's not to the court, Ronald, but it does not make the case, right?

[00:27:10] Speaker 05:
Not to your adversary either.

[00:27:12] Speaker 05:
I don't know, Your Honor, I'm not trying to... You didn't mean the record, but correct.

[00:27:16] Speaker 03:
Correct.

[00:27:17] Speaker 03:
Correct.

[00:27:17] Speaker 03:
That's what I was trying to say, Your Honor, that there's nothing to show that in between those two time periods what happened, but there was some discussion, because by the time the JSR came out, if you read the position of the plaintiff appellant in that JSR, they were aware of the government's time that this argument.

[00:27:34] Speaker 03:
So there was some discussion at some point.

[00:27:36] Speaker 03:
I just don't know the date, Your Honor.

[00:27:37] Speaker 03:
It's not in the record.

[00:27:40] Speaker 03:
Your Honor, my time is low here.

[00:27:42] Speaker 03:
I would want to just address your preliminary question that you mentioned about the change in legal relationship.

[00:27:49] Speaker 03:
And can there be EGIA in a prevailing party?

[00:27:53] Speaker 03:
And this is, of course, Your Honors, no, this is not something that was briefed because the trial court didn't reach this.

[00:27:58] Speaker 03:
But our view of the case law is that there needs to be a change in the legal relationship that directly benefits the party.

[00:28:08] Speaker 05:
And it was on the counterclaim, right?

[00:28:11] Speaker 05:
It was on the counterclaim.

[00:28:11] Speaker 03:
We also found a case where a party lost its claim, went on a counterclaim, and got EGFEs either.

[00:28:20] Speaker 03:
So the case of Senate United Construction as being able to get EGFEs on a counterclaim, they were for prevailing party on their own claim as well.

[00:28:30] Speaker 03:
Here, Mr. Donald sought ultimately $17.2 million dollars on this affirmative thing after some amendments, and after this court's decision got $0.

[00:28:40] Speaker 03:
So he's going to run into a preventing party issue.

[00:28:43] Speaker 03:
He's also going to run into a substantially justified issue, because the Commissioner INS v. Jean case says that you need to look at wholistically an entire case to determine whether or not the government is substantially justified.

[00:28:56] Speaker 03:
This is a contract case where Mr. Dobbin sold $17.2 million.

[00:29:00] Speaker 03:
And he got zero.

[00:29:02] Speaker 03:
And yes, he defeated the counterclaim.

[00:29:04] Speaker 01:
How much was the government seeking in the counterclaim?

[00:29:08] Speaker 03:
I'm not remembering at this time about that, John.

[00:29:12] Speaker 03:
But looking at the totality, holistically, not substantially justified.

[00:29:18] Speaker 03:
There's nothing the government could have done.

[00:29:20] Speaker 03:
There's no wiggle room between the zero and $17.2 million.

[00:29:25] Speaker 05:
I don't understand.

[00:29:27] Speaker 05:
I'm not being titled to $17 million, but maybe they spent $100,000 in defending against the counterclaim or something like that.

[00:29:35] Speaker 05:
That wouldn't.

[00:29:36] Speaker 03:
I was talking about the main issue, Your Honor.

[00:29:41] Speaker 03:
$17.2 million is on the main issue, the affirmative case for Mr. Dobbins.

[00:29:45] Speaker 05:
How much do you speak on the counterclaim?

[00:29:48] Speaker 03:
You ought to just ask.

[00:29:49] Speaker 03:
I can't remember how much.

[00:29:51] Speaker 03:
Yeah, yeah, yeah.

[00:29:52] Speaker 03:
So that's all they settled for a short amount.

[00:29:55] Speaker 03:
There's no settlement in this area.

[00:29:58] Speaker 03:
There's no settlement?

[00:29:59] Speaker 03:
That's correct.

[00:30:00] Speaker 03:
The United States lost the counterclaim, and Mr. Dobbins lost his affirmative claim.

[00:30:04] Speaker 05:
It's been two months since he had it.

[00:30:07] Speaker 05:
To be clear, I was asking a different question than Judge Armando was asking.

[00:30:11] Speaker 05:
I thought he was asking what the amount of the counterclaim at Amnam was.

[00:30:16] Speaker 05:
I'm asking how much attorney's fees did they spend in defending it against the counterclaim.

[00:30:21] Speaker 03:
So this was briefed below, and I think that Mr. Dobbins' counsel did an admirable job of trying to parse through and figure out whether his attorney's fees work for the counter-claim, but

[00:30:38] Speaker 03:
the United States did point out that it's speculation, in our opinion, that it's too hard to tell what attorney's fees were spent on what.

[00:30:47] Speaker 05:
What would he say were the attorney's fees attributable to the counter to mine?

[00:30:52] Speaker 03:
Well, if I'm remembering correctly, Your Honor, the application was actually on the record here.

[00:31:02] Speaker 05:
That's all right.

[00:31:05] Speaker 03:
I just found the page if you want to look at it.

[00:31:08] Speaker 03:
So it looks like it's 512.

[00:31:13] Speaker 03:
And then towards the end of it is what you discussed is quantum.

[00:31:24] Speaker 03:
And there's some numbers going back and forth, but the fees incurred to date were something like 731,000.

[00:31:32] Speaker 03:
And it says 146,399 related to the government's counterclaim and Dobbin's defenses there, too.

[00:31:43] Speaker 03:
So I would say about 147,000, Your Honor.

[00:31:48] Speaker 05:
Okay.

[00:31:48] Speaker 05:
Thank you, Mr. Reid.

[00:32:03] Speaker 04:
thank you i'll clean up some issues that the court asked about first of all in terms of whether or not there was a case awarding a counter-claim success of a training season for Egypt that started at page forty-nine of our opening brief that's united construction company versus united states where the federal courts have found

[00:32:29] Speaker 04:
Egypt for defeating a counterclaim.

[00:32:31] Speaker 04:
With respect to how much the government saw under this counterclaim, it saw a regurgitation of the movie contract and the book royalties totaling approximately a half a million dollars.

[00:32:43] Speaker 04:
with respect to whether or not the government can be stopped or found to have waived an objection to the timeliness of each application.

[00:32:57] Speaker 04:
That is our own house decision, which we cite at page 19 of our reply brief.

[00:33:03] Speaker 04:
And it is the North Carolina Alliance decision that we cite at page 37 of our opening brief.

[00:33:10] Speaker ?:
Now, with respect to

[00:33:12] Speaker 04:
the court asked whether there was anything in the record that the government changed their position prior to April 24.

[00:33:20] Speaker 04:
Not only is there nothing in the record, and as the trial attorney I can vouch for that, but the timeliness issue is not raised until April 24.

[00:33:28] Speaker 04:
And the April 22 email confirms that, that that was still the understanding of the parties.

[00:33:33] Speaker 04:
Now, this is not an issue of research.

[00:33:37] Speaker 04:
It is a matter of when each window would open.

[00:33:40] Speaker 04:
And that would be at the earliest on May 4th, 2020, when the trial court stated that no amended judgment would issue.

[00:33:48] Speaker 04:
And our position is that the court then adopted the schedule of the parties in less than 30 days after that.

[00:33:54] Speaker 05:
Okay, thank you, Mr. Reed.

[00:33:56] Speaker 05:
Thank you.

[00:33:56] Speaker 05:
Counselor, the case is submitted.