Declaration of Damon L. Ward — Abdala Aden dba LaFoole Tax Services, No. 22-CV-283 (KMM/ECW) (Dkt. 34, D. Minn.)
Summary
Damon L. Ward, one of the attorneys for defendant Abdala Aden dba LaFoole Tax Services, signed this declaration on January 9, 2023 in United States of America v. Abdala Aden dba LaFoole Tax Services, Court File No. 22-CV-283 (KMM/ECW), District of Minnesota, opposing Plaintiff's Motion for Attorney's Fees and Cost. The declaration states that Ward met and conferred with opposing counsel Elizabeth A. Kirby about producing Mr. Aden's personal and business information, and that Mr. Aden had represented no longer having the requested information. Exhibit 1 is a Congressional Research Service In Focus of June 10, 2019, Attorney's Fees and the Equal Access to Justice Act: Legal Framework, which notes that the Act caps recoverable attorney's fees at $125 per hour. Exhibit 2 is a billing list from No. 21-CV-1455 with grand totals of 3,516.80.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
)
United States of America, ) Court File No.: 22-CV-283 (KMM/ECW)
)
Plaintiff, )
v. )
) DECLARATION OF
) DAMON L. WARD
Abdala Aden dba LaFoole Tax Services, )
)
Defendant. )
)
STATE OF Minnesota )
)ss.:
COUNTY OF Hennepin )
Damon L. Ward declares as follows:
1. That I am over 18 years of age, of sound mind and otherwise competent to make
this Declaration. The evidence set out in the foregoing Declaration is based on my
personal knowledge.
2. That I am one of the Defendant’s attorneys in this matter, and I am personally
familiar with the pleadings during this litigation and submits this declaration in support of
the Memorandum in Opposition to Plaintiff’s Motion for Attorney’s Fees and Cost..
3. That after commencement of this lawsuit, I met and conferred with opposing
counsel, Elizabeth A. Kirby, via e-mail and teleconference to discuss the production of
certain personal and business information of Mr. Aden.
4. We discussed that Mr. Aden had represented that he no longer had the requested
information and could not otherwise recall the requested and ordered information to
prepare any referenced list.
5. Attached hereto as Exhibit 1 is a true and correct copy of a Certified (by the
Library of Congress) Congressional Research Service Report titled Attorney’s Fees and
the Equal Access to Justice Act: Legal Framework.
6. Attached hereto as Exhibit 2 is a true and correct copy of a billing transaction list
provided in the Bd. of Trs. of the Teamsters Joint Council 32 - Employers Health &
Welfare Fund v. H. Brooks & Co., No. 21-CV-1455 (KMM/DJF (D. Minn. December 1,
2022).
FURTHER YOUR DECLARANT SAITH NOT.
I declare under penalty of perjury that everything I have stated in this document is true
and correct to the best of my knowledge and recollection. In addition to the signature, the
date of signing and the county and state where the document was signed shall be noted on
the document.
/s/Damon L. Ward
Damon L. Ward
Date: January 9, 2023
2
EXHIBIT 1
June 10, 2019
Attorney’s Fees and the Equal Access to Justice Act:
Legal Framework
In 1980, Congress enacted the Equal Access to Justice Act any civil action brought by or against the United States” or
(the EAJA, or the Act) and significantly expanded the any U.S. agency or official, the government “shall be
federal government’s liability to pay the attorney’s fees of liable” for attorney’s fees “to the same extent that any other
parties that prevail against the government in litigation or party would be liable under the common law or under the
administrative proceedings. This In Focus explains the state terms of any statute which specifically provides for such an
of the law before the EAJA was enacted, outlines the award.” Section 2412(b) thus expands any existing statutory
government’s liability for attorney’s fees under the EAJA, and court-created exceptions to the American rule to apply
and briefly discusses relevant congressional considerations to the federal government as they would to a private party.
concerning the EAJA.
Second, 28 U.S.C. § 2412(d) requires a court to award
Immunity and the American Rule attorney’s fees and costs to a party prevailing against the
Absent express action by Congress, the U.S. government is United States in a civil action, “unless the court finds that
not liable for opponents’ attorney’s fees for two reasons. the position of the United States was substantially justified
First, the default rule in the United States, known as the or that special circumstances make an award unjust.” The
“American rule,” provides that each party pays its own Supreme Court has interpreted the substantial justification
litigation costs, regardless of the outcome of a case. (The standard to require the government to prove that its
alternative regime, known as the “English rule,” provides litigating position was reasonable in both fact and law.
that the losing party pays the winner’s attorney’s fees.) Third, 5 U.S.C. § 504 authorizes awards of attorney’s fees
Second, the government enjoys sovereign immunity, in proceedings before an administrative agency on the same
meaning that it may not be sued—and therefore may not be terms as Section 2412(d).
required by a court to pay another party’s attorney’s fees—
unless it expressly waives its immunity. The EAJA provides that fee awards shall be paid by the
defendant agency. In practice, however, the Department of
Congress has waived the federal government’s sovereign Justice often advances funds and then receives gradual
immunity in many contexts. Unless Congress expressly reimbursements from the agency.
provides otherwise, however, the American rule applies to
suits where the United States is a party, and each party pays Scope of Application
its own fees. Indeed, although the American rule is subject The EAJA’s fee award provisions apply “except as
to certain court-created exceptions in litigation between otherwise specifically provided by statute.” Put another
private parties, courts have generally declined to apply way, the EAJA does not supersede other, more specific
those exceptions to the federal government. federal laws that allow or restrict fee awards.
Even in contexts where Congress has permitted suits The Act’s judicial fee award provisions apply only to civil
against the federal government, without access to fee actions, meaning they do not authorize awards of attorney’s
awards against the United States, litigation costs may deter fees in criminal proceedings. Section 2412(d) further
would-be plaintiffs from bringing suit. Before enacting the excludes cases sounding in tort. Section 2412(d) applies to
EAJA, Congress tried to address that concern piecemeal, suits in “any court,” which includes the federal district and
enacting numerous fee-shifting statutes that allowed awards appellate courts, the U.S. Court of Federal Claims, and the
of fees against the United States only in specific types of U.S. Court of Appeals for Veterans Claims. It is unclear
cases, such as cases arising under Title VII of the Civil whether bankruptcy courts can award fees under the Act,
Rights Act or the Freedom of Information Act. With the but they may recommend that the district court do so.
EAJA, Congress went further by more generally allowing
fee-shifting in cases involving the United States. The provision related to administrative proceedings applies
to “adversary adjudication,” including agency proceedings
The Equal Access to Justice Act under the Administrative Procedure Act and certain other
Congress enacted the EAJA temporarily in 1980 before statutes. Petitions for judicial review of agency action are
reauthorizing the statute permanently in 1985. Motivated in included among the civil actions subject to Section 2412(d).
part by a desire to deter government overreach and
wrongdoing, the Act significantly departed from the default Eligibility
American rule by permitting awards of attorney’s fees The EAJA permits recovery of fees by both organizations
against the federal government in many types of judicial and individuals, but Sections 504 and 2412(d) limit the
and administrative proceedings. The statute includes three parties that may receive a fee award. First, those provisions
key provisions. First, 28 U.S.C. § 2412(b) provides that “in only allow for one-way fee shifting: “a prevailing party
https://crsreports.congress.gov
Attorney’s Fees and the Equal Access to Justice Act: Legal Framework
other than the United States” may receive attorney’s fees, plaintiff who prevails in part may nonetheless receive no
while the government may not. Second, only an individual fees at all.
with a net worth of $2 million or less, or the owner of a
business or other organization worth $7 million or less and Considerations for Congress
with no more than 500 employees may recover an award of Commentators have raised concerns related to the EAJA’s
attorney’s fees under Sections 504 and 2412(d). Nonprofits cost and whether fee awards are benefiting appropriate
exempt from taxation under Section 501(c)(3) of the recipients. Proposed measures to curb costs include
Internal Revenue Code are not subject to the size and net removing the “special factor” exception to the fee cap,
worth caps. which some argue has been applied too permissively by
lower courts. By contrast, the Equal Access to Justice
Limitations on Fees Reform Act, first introduced in 2003, would have attempted
The EAJA caps the rate for recoverable attorney’s fees at to “remove existing barriers and inefficiencies in EAJA,”
$125 per hour (lower than the prevailing rates in many legal including by broadening the definition of “prevailing
markets), subject to exceptions due to cost of living party,” raising the net worth caps, and eliminating the
increases or the presence of “a special factor, such as the government’s substantial justification defense.
limited availability of qualified attorneys for the
proceedings involved.” In Pierce v. Underwood, 487 U.S. Other commentators allege that EAJA fee awards have
552 (1988), the Supreme Court interpreted the “special spurred abusive litigation by nonprofit organizations with
factor” language narrowly. The Court held that it was in-house lawyers. They assert that nonprofits may seek
improper to increase fees based on general conditions in the purportedly reasonable fees that exceed their actual labor
legal market. A departure from the base rate was warranted costs and use the resulting awards to bring numerous claims
only when a case required “attorneys having some based on alleged procedural violations that cause the
distinctive knowledge or specialized skill needful for the organizations no tangible injury. Proposed amendments to
litigation in question,” such as an expertise in patent law, the EAJA including the Government Litigation Savings Act
foreign law, or foreign language. of 2011 would have sought to address that concern by
requiring any party seeking a fee award to have “a direct
What Is A Prevailing Party? and personal monetary interest” in the adjudication or civil
One of the most often litigated questions under the EAJA is action, “including because of personal injury, property
when a litigant may be considered a “prevailing party” damage, or unpaid agency disbursement.”
entitled to attorney’s fees. In Texas State Teachers
Association v. Garland Independent School District, 489 Concerns about the EAJA’s costs and the destination of fee
U.S. 782 (1989), the Supreme Court held that a party need awards are difficult to evaluate because there is little recent
not prevail on all of its claims, or even on the “central data on EAJA fee awards. As originally enacted, the EAJA
issue” in the case, but only on “any significant issue in required annual reports to Congress on the number, nature,
litigation which achieve[d] some of the benefit the parties and amount of awards of fees under the statute. However,
sought in bringing the suit.” A party also need not prevail Congress repealed the reporting requirement in 1995. The
after a full trial on the merits. A favorable settlement may John D. Dingell, Jr. Conservation, Management, and
support a finding that a party prevailed, if embodied in a Recreation Act (P.L. 116-9), enacted on March 12, 2019,
judicially enforceable consent decree. However, absent an included an “Open Book on Equal Access to Justice”
enforceable agreement, a party is not deemed to have section that reinstated and updated the reporting
prevailed just because a proceeding caused the government requirements. The new provisions require the
to alter its behavior. Administrative Conference of the United States to make
annual reports to Congress and to maintain a searchable
Prevailing party status is a threshold issue determining the online database containing information about each fee
potential availability of any attorney’s fees under the EAJA. award under the EAJA, including the amount, the recipient,
It is unnecessary that the prevailing party recover and the basis for the finding that the government’s position
substantial monetary damages. In Farrar v. Hobby, 506 was not substantially justified. Once the new reporting
U.S. 103 (1992), the Court held that a litigant who received requirements take effect, Congress may potentially be better
a nominal damages award of one dollar had prevailed equipped to evaluate whether further reforms of the EAJA
because such an award “materially alters the legal are warranted.
relationship between the parties.” However, the Act also
provides that an award of fees must be “reasonable.” In Joanna R. Lampe, Legislative Attorney
Farrar, the Court explained that the degree of the plaintiff’s
success relative to the other goals of the lawsuit is critical to IF11246
determining the size of a reasonable fee, holding that a
https://crsreports.congress.gov
Attorney’s Fees and the Equal Access to Justice Act: Legal Framework
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.
https://crsreports.congress.gov | IF11246 · VERSION 2 · NEW
CASE 0:21-cv-01455-KMM-DJF Doc. 30-1 Filed 12/09/22 Page 1 of 2
Date: 12/02/2022 Detail Transaction File List Page: 1
Andrew, Bransky & Poole, P. A. EXHIBIT 2
Trans Hours
Client Date Atty to Bill Amount
Fees
8296.500 05/11/2022 6 1.00 230.00 Begin draft of motion for contempt, research contempt motions
in ERISA cases.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 05/13/2022 6 1.50 345.00 Draft memo of law in support of motion for contempt, research
substitute service issues.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 06/21/2022 6 0.50 115.00 Work on motion for contempt - draft motion, notice, exhibit
index, certificate of compliance.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 06/21/2022 6 0.50 115.00 Review and revise memo of law and declaration in support of
motion.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 06/23/2022 6 0.20 46.00 Phone call to courtroom deputy to schedule motion hearing
(out of office).
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/07/2022 6 0.40 92.00 Second phone call to Judge Tunheim's chambers, call to
Magistrate's chambers.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/07/2022 6 0.60 138.00 Review and edit Motion for Contempt and supporting
documents.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/08/2022 6 0.40 92.00 Review e-filings, e-mail to chambers with proposed order.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/08/2022 6 0.20 46.00 Submit service request to Metro Legal.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/18/2022 6 0.60 138.00 Review Order to Show Cause, review prior service attempts.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/18/2022 6 0.20 46.00 Letter to Hennepin County Sheriff for service on Jaynes.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/19/2022 6 0.20 46.00 Letters to Ramsey and Washington County Sheriff's Office with
service requests.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/21/2022 6 0.80 184.00 Research: Contempt of court and substitute service under
Minn. Stat. 5.25.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
Friday 12/02/2022 10:25 am
CASE 0:21-cv-01455-KMM-DJF Doc. 30-1 Filed 12/09/22 Page 2 of 2
Date: 12/02/2022 Detail Transaction File List Page: 2
Andrew, Bransky & Poole, P. A.
Trans Hours
Client Date Atty to Bill Amount
Fees
*RE: H. Brooks Collection
8296.500 07/28/2022 6 0.20 46.00 Review certificate of non-service from Washington County
Sheriff's Office.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 08/04/2022 6 0.20 46.00 Review certificate of service from Hennepin County Sheriff,
e-filing with court.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 08/22/2022 6 0.20 46.00 Emails with attorney for Jason Jaynes.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 08/24/2022 6 0.50 115.00 Phone call from personal attorney for Jason Jaynes regarding
debt to Health Fund.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 09/13/2022 6 0.50 115.00 Review of file materials, case law research and pleadings in
preparation for hearing.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 09/14/2022 6 5.00 1,150.00 Travel from Duluth to St. Paul for Order to Show Cause
Hearing, return travel to Duluth.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 09/14/2022 6 0.40 92.00 Attend Order to Show Cause Hearing, review minute entry.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
Total for Fees Billable 14.10 3,243.00
Expenses
8296.500 07/13/2022 6 53.00 Metro Legal - Service Process
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
8296.500 07/19/2022 6 220.80 Service Process Requests from 3 counties: Ramsey, Hennepin
and Washington.
TEAMSTERS JOINT COUNCIL 32 -EMPLOYERS H&W FUND
*RE: H. Brooks Collection
Total for Expenses
Billable 0.00 273.80
GRAND TOTALS
Billable 14.10 3,516.80
Friday 12/02/2022 10:25 am
File and source
- File
- gov.uscourts.mnd.198796.34.0.pdf
- Size
- 1,074,284 bytes
- SHA-256
- d2c624a30f344f27cdf1675200537cea78963e3e1cf012554965bf29e0889364
- Our copy
- gov.uscourts.mnd.198796.34.0.pdf
- Original
- archive.org