SUBJECT: Susanville Indian Rancheria,

Susanville Indian Rancheria (Tribe) appealed the August 16, 2002 decision of Administrative Law Judge (ALJ) William E. Hammett on the Tribe's application for fees and expenses under the Equal Access to Justice Act (EAJA). Under EAJA, an eligible party may receive an award for attorney fees and other expenses when it prevails over a federal agency in an adversary adjudication, unless the adjudicative officer finds that the position of the federal agency was substantially justified or that special circumstances would make an award of fees and expenses unjust.
5 U.S.C. § 504(a)(1). The Tribe sought an award of fees and expenses incurred in connection with its appeal of the determination of the Indian Health Service (IHS) to partially decline the Tribe's proposal to renew its contract to provide health care programs, functions, services and activities under the Indian Self-Determination Act. I issued a final decision in that matter on February 6, 2002 (Susanville Indian Rancheria, DAB No. 1813). The ALJ denied the Tribe's application for fees and expenses on the ground that the Tribe did not submit an application signed by "the applicant or an authorized officer of the applicant" as required by the applicable regulations.

For the reasons discussed below, I conclude that the ALJ erred in denying the Tribe's application on the ground that the Tribe did not comply with the signature requirement in the regulations. Accordingly, I remand the case to the ALJ for further proceedings.

Background

The regulations implementing the Indian Self-Determination Act provide in part that "EAJA claims against the DOI [Department of the Interior] or the DHHS [Department of Health and Human Services] will be heard by the IBIA [Interior Board of Indian Appeals] under 43 CFR 4.601-4.619." 25 C.F.R. § 900.177. Section 4.608(f) of 43 C.F.R. states:

The application shall be signed by the applicant or an authorized officer of the applicant. The application shall contain or be accompanied by a written verification under oath or affirmation under penalty of perjury that the information provided in the application and all accompanying material is true and complete to the best of the signer's information and belief.

In this case, page 8 of a document captioned (on page 1) "APPLICATION FOR ATTORNEY FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT" is signed by Geoffrey D. Strommer of Hobbs, Straus, Dean & Walker, LLP, as "Attorney for Appellant, Susanville Indian Rancheria." This page bears the typed date "March 5, 2002." The next page, which is unnumbered and has no heading, contains the following statement signed by Ike Lowry, Chairman, and the handwritten date 3/1/02:

I hereby certify that I am an officer for the Susanville Indian Rancheria, duly authorized to sign the foregoing fee application on its behalf, and do hereby verify under penalty of perjury that the information provided in the application and all accompanying material is true and complete to the best of my knowledge and belief.

The next page, a certificate of service stating that "a copy of Appellant Susanville Indian Rancheria's Application for Attorney Fees and Expenses Under the Equal Access to Justice Act was served" upon opposing counsel, is signed by Mr. Strommer. This is followed by Exhibits A - E. Exhibit D is captioned "AFFIDAVIT OF IKE LOWRY." This affidavit provides information about the status of the Tribe necessary to determine whether it qualified as a party under EAJA. The last paragraph of the affidavit states:

I have reviewed the fee application in the above captioned action and hereby provide written verification under oath that the application and all information contained therein accompanying such application is true and complete to the best of my belief and knowledge.

Exhibit D at 2.

All of the documents described above are bound together.

On March 11, 2002, the ALJ issued an order acknowledging receipt of the Tribe's EAJA application, stating that the Tribe had not filed a net worth exhibit as required by 43 C.F.R. § 4.609(b), and directing the Tribe to file such an exhibit by March 25, 2002. The Tribe submitted a Supplemental Filing of Net Worth Affidavit on March 25. IHS filed its answer to the Tribe's EAJA application on April 24, to which the Tribe replied on May 22. Finally, IHS responded on June 24. The parties' briefs addressed the merits of the EAJA application. There were no further proceedings before the issuance of the ALJ Decision on August 16. IHS at no time argued that the Tribe had not signed the application, nor did the ALJ ask the parties to brief the issue of whether the Tribe had signed the application.

The ALJ denied the EAJA application on the ground that the Tribe had not met the requirements of the applicable EAJA regulations by submitting an application signed by "the applicant or an authorized officer of the applicant," but had instead submitted an application signed by the Tribe's attorney, Mr. Strommer. The ALJ cited in support of his decision a decision of the Interior Board of Indian Appeals holding that "an EAJA application signed only by the applicant's attorney fails to meet the requirement of 43 CFR 4.608(f)." ALJ Decision at 2, quoting Tohatchi Special Education and Training Center, Inc. v. Navajo Area Director, Bureau of Indian Affairs, 26 IBIA 138, 142 (1994). In the ALJ's view, although Mr. Lowry's first statement states that he is "duly authorized to sign the foregoing fee application," Mr. Lowry did not sign the fee application but "merely made a sworn statement that he has reviewed the fee application." ALJ Decision at 2 (italics in original). The ALJ also opined that the separate statements from Mr. Lowry verifying the application "would be superfluous if he had signed the application." Id. at 3. In addition, the ALJ noted that the dates on Mr. Lowry's statements differ from the date on the application, which the ALJ stated "only serve[s] to highlight the fact that Mr. Lowry did not sign the application." Id.

On August 30, 2002, the Tribe sought review of the ALJ Decision pursuant to 25 C.F.R. § 900.177, which provides in relevant part that "[f]or DHHS, appeals from the EAJA award will be according to 25 CFR 900.165(b)." The Secretary's authority to hear appeals under section 900.165(b) was delegated to the Appellate Division of the Departmental Appeals Board on August 16, 1996. IHS took the position in response to the Tribe's August 30 submission that the ALJ properly denied the Tribe's EAJA application.

In its appeal, the Tribe took the position that the signature of the Tribe's Chairman on the page following page 8 of the application constituted the signature of an authorized officer of the applicant required by section 4.608(f) of 43 C.F.R. as well as the verification required by that section. (The Tribe referred to this verification as a "certification.") The Tribe argued that the regulation permits the certification to be part of the application and does not prohibit the attorney from signing the application along with the applicant. The Tribe asserted that it was not significant that the date of the Chairman's certification was different from the date on page 8 of the application, explaining that the Tribe's attorney necessarily filed the application after the Tribe reviewed the final application and approved its content. In addition, the Tribe asserted that Tohatchi is inapposite here because there is no indication in that decision whether the application was certified by the applicant and there were additional grounds in that case on which to deny the application. The Tribe also argued in the alternative that if the signature on the application was insufficient, the ALJ had authority to allow correction and to consider the application.

I note preliminarily that there is no standard application form for an award of fees and expenses under EAJA. The Administrative Conference of the United States, which issued the model rules on which the EAJA regulations in question here are based, rejected a suggestion that it develop a standard application form, commenting that this "seems a burdensome bureaucratic detail." 46 Fed. Reg. 32900, 32906 (June 25, 1981). In the absence of a prescribed format for an EAJA application, whether the application contains the required signature depends on the particular facts of the case.

I agree with the Tribe that the Chairman's signature on the certification met the requirement in section 4.608(f) that the application be signed by an authorized officer of the applicant. The certification signed by Mr. Lowry, an authorized officer of the applicant, was a part of the application. It appeared on a page which preceded a certificate of service stating that a copy of the EAJA application had been served on opposing counsel. The certificate of service necessarily refers to all of the pages which precede it, including Mr. Lowry's certification. Moreover, the certification does not have a separate caption that might have distinguished it from the 8-page document captioned

"APPLICATION FOR ATTORNEY FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT" and was in fact bound together with that document.

In addition, Mr. Lowry clearly intended the signature on his certification to constitute a signature that was signed by "an authorized officer of the applicant" as required by section 4.608(f). Mr. Lowry's certification states that he is an officer for the Tribe, "duly authorized to sign the foregoing fee application on its behalf." I see no reason why he would have made this statement if he did not believe that he was in fact signing the application. This statement was certainly not necessary if all Mr. Lowry intended to do was to make a sworn statement that the information provided in the application was true and complete, as also required by section 4.608(f). Far from being superfluous, as the ALJ stated, the signature on Mr. Lowry's certification fulfilled the dual requirements of section 4.608(f) that an authorized officer of the applicant both sign the application and verify the truth and completeness of the application. (The affidavit of Mr. Lowry in Exhibit D also serves the independent purpose of providing information necessary to establish the Tribe's eligibility as a party under EAJA. I need not consider here whether Mr. Lowry's signature on the affidavit could properly be considered a signature meeting the requirements of section 4.608(f) in view of my conclusion regarding Mr. Lowry's certification.) It does not follow from IHS's argument that section 4.608(f) is reasonably read as having "two separate and distinct requirements - the party's signature on the application and a verification under oath by the party," (IHS submission dated 9/9/02, at 2), that the two requirements cannot be satisfied by one signature on one document. (Contrary to what the ALJ suggested, however, the Tribe's signature on the application could not also satisfy the requirement for a verification unless there was some indication that the person signing verified the truth and completeness of the application.)

Moreover, I see nothing in the language of section 4.608(f) that precludes the attorney as well as an authorized officer of the applicant from signing the application. Although the signature of the attorney is not legally sufficient, it does not thereby invalidate the signature of the authorized officer of the applicant. There is certainly no indication on the face of the application that the attorney was filing as other than a representative of the Tribe; to the contrary, page 1 of the application begins "Appellant, Susanville Indian Rancheria . . . , by and through its attorney, Hobbs, Straus, Dean & Walker, LLP, respectfully applies . . . ." The attorney's signature simply recognizes the obvious fact that the attorney played a major role in preparing a document which requires legal analysis and which is based in part on facts necessarily supplied by the attorney, e.g., the itemized expenses incurred in litigating the Tribe's appeal of IHS's partial declination. Since two signatures are permissible, it is immaterial that these signatures are on different dates.

Furthermore, the ALJ's conclusion is not compelled by the holding in Tohatchi since, as the Tribe pointed out, there is no indication that the EAJA application in that case included the signature of the tribe as well as that of the tribe's attorney and there were other grounds for denying the application.

Finally, IHS advanced no valid reason why, even if the signature on the EAJA application were technically deficient, the Tribe should not be permitted to correct this deficiency.

Conclusion

For the foregoing reasons, I reverse the ALJ Decision and remand the case to the ALJ for further proceedings.

Donald F. Garrett, Member
Departmental Appeals Board