901 F. Supp. 2d 1
D.D.C.2012Background
- IRS long-distance excise tax shifted from distance-based to duration-based collection as technology evolved.
- Cohen, Sloan, and Gurrola filed challenges seeking refunds and APA relief; Notice 2006-50 halted collection and offered a limited refund process.
- MDL consolidation occurred for pretrial purposes; Judge Urbina initially dismissed, then D.C. Circuit remanded to consider merits.
- Court previously held Notice 2006-50 final agency action reviewable; en banc affirmed remand for merits.
- This motion seeks final judgment and interim attorneys’ fees; reassignment to the undersigned judge after Judge Urbina’s retirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sloan, Cohen, and Gurrola receive final judgment on procedural APA claim | All plaintiffs pursued procedural APA theories in their filings | Only Sloan asserted procedural APA claim; Cohen and Gurrola did not plead it in their complaints | Final judgment granted only for Sloan on procedural APA claim |
| Interim attorneys’ fees eligibility under EAJA | Fees should be awarded interimly under EAJA for substantial work | Interim fees require a separate need demonstration; IRC/EAJA distinction | Interim fees denied; EAJA governs, but no fees awarded at this stage |
| Basis for fee entitlement under EAJA sections 2412(b) and (d) | Common-benefit theory supports fees under § 2412(b); Sloan should recover under § 2412(d) as prevailing party | Common-benefit theory inapplicable; only individual prevailing parties eligible; government position substantially justified for Sloan | Fees denied under § 2412(b); Sloan not entitled under § 2412(d) for Cohen/Gurrola; government substantially justified for Sloan |
Key Cases Cited
- Cohen v. United States, 650 F.3d 717 (D.C.Cir.2011) (en banc status and procedural APA implications (not all claims))
- In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 539 F.Supp.2d 281 (D.D.C.2008) (pretrial consolidation and dismissal grounds; notice issues)
- Brzonkala v. Morrison, 272 F.3d 688 (4th Cir.2001) (common-benefit fee analysis limitations)
- Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (Supreme Ct.1975) (requirements for class beneficiaries in common-benefit theories)
- Grace v. Burger, 763 F.2d 457 (D.C.Cir.1985) (rejects common-benefit theory for government injunctive relief)
- LePage’s 2000, Inc. v. Postal Regulatory Comm’n, 674 F.3d 862 (D.C.Cir.2012) (test for substantial justification)
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598 (U.S.2001) (prevailing party standard)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S.1983) (reasonableness of hours and degrees of success)