Nelson v. United States, 40 F.4th 1105

James Nelson was injured when his bicycle hit a sinkhole on a trail at the Air Force Academy; he and his wife sued the United States under the Federal Tort Claims Act (FTCA).
Liability and damages were bifurcated; the district court awarded Nelson >$6.9M and Mrs. Varney >$400K; earlier appeals produced remands and rulings about the applicability of the Colorado Recreational Use Statute (CRUS).
On remand the district court found the Air Force Academy willfully failed to warn, making the United States liable under CRUS, and reinstated the damages awards.
CRUS contains a mandatory-fee-shifting provision for prevailing recreational users; the district court ordered the United States to pay plaintiffs’ attorney’s fees and the court relied on the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b), as a waiver of sovereign immunity.
The government moved to vacate the fee award and later appealed after the district court adopted a special master’s recommended fee amount; the appeals court addressed (1) whether the government waived its challenge by failing to object to the special master and (2) whether § 2412(b)’s phrase "any statute" includes state fee-shifting statutes like CRUS.
The Tenth Circuit affirmed: the government did not forfeit its statutory-authority challenge, and § 2412(b)’s plain text covers state statutes that specifically provide for attorney’s fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of challenge to fee award because gov’t did not object to special master’s recommendation	Nelson/Varney: gov’t participated in and did not object to special master’s recommendation, so it waived appellate review of the fee amount	U.S.: preserved challenge to district court’s statutory authority to award fees under § 2412(b); appeal concerns authority, not amount	No waiver: gov’t preserved its timely challenge to the district court’s authority to award fees; appeal is proper
Whether § 2412(b) permits awarding attorney’s fees against the United States under a state statute (CRUS)	Nelson/Varney: § 2412(b) refers to "any statute" and is expansive; it covers state statutes that specifically provide for fees	U.S.: "any statute" should be read only as federal statutes (or at least statutes that create a cause of action against the U.S.); state statutes like CRUS do not authorize suits against the U.S. and thus fall outside § 2412(b)	Held for plaintiffs: plain text of § 2412(b) includes "any statute," which—construed in context and consistent with precedent—covers state statutes providing for attorney’s fees, so the U.S. is liable under EAJA to the same extent as private defendants

Nelson v. United States, 827 F.3d 927 (10th Cir. 2016) (appellate decision finding CRUS applied and remanding to evaluate willful failure to warn)
Nelson v. United States, 915 F.3d 1243 (10th Cir. 2019) (affirming district court’s CRUS-based liability on remand)
Adamson v. Bowen, 855 F.2d 668 (10th Cir. 1988) (construed "any statute" in § 2412(b) broadly to include rules/statutes that permit fee awards)
Joe v. United States, 772 F.2d 1535 (11th Cir. 1985) (held, based on legislative history, that "any statute" in § 2412(b) refers only to federal statutes)
Stender v. Archstone-Smith Operating Trust, 958 F.3d 938 (10th Cir. 2020) (federal costs governed by § 1920—state-law cost provisions cannot expand federal allowable costs)
BedRoc Ltd., LLC v. United States, 541 U.S. 176 (2004) (principle that courts resort to legislative history only when statutory text is ambiguous)
United States v. One Parcel of Real Prop., 73 F.3d 1057 (10th Cir. 1996) (failure to timely object to magistrate’s recommendation waives appellate review)
Am. Soda, LLP v. U.S. Filter Wastewater Grp., 428 F.3d 921 (10th Cir. 2005) (attorney’s-fee award is not final and appealable until reduced to a sum certain)