Jay Anthony Dobyns v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JAY ANTHONY DOBYNS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2309
______________________
Appeal from the United States Court of Federal Claims
in No. 1:08-cv-00700-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: May 10, 2024
______________________
J AMES BERNARD R EED , Udall Shumway PLC, Mesa, AZ,
argued for plaintiff-appellant.
WILLIAM J AMES G RIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY .
______________________
Before D YK, MAYER , and T ARANTO, Circuit Judges.
Case: 21-2309 Document: 63 Page: 1 Filed: 05/10/2024

-- 1 of 13 --

DOBYNS v. US 2
D YK, Circuit Judge.
Jay Anthony Dobyns appeals from a decision of the
Court of Federal Claims (“Claims Court”), denying his ap-
plication for attorneys’ fees under the Equal Access to Jus-
tice Act (“EAJA”) as untimely. The Claims Court abused
its discretion, and it applied the incorrect legal standard.
Under the correct standard, the filing was timely. We re-
verse and remand for further proceedings.
BACKGROUND
This litigation has a long history. The sole issue now
is attorneys’ fees and costs under EAJA.
Mr. Dobyns first filed a complaint on October 2, 2008,
alleging that the United States Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) “breached a settlement
contract with [Mr. Dobyns] by failing to adequately protect
[him] and his family from threats related to the undercover
work [he] performed while an agent with the ATF.” Dobyns
v. United States, 154 Fed. Cl. 310, 312 (2021). The govern-
ment counterclaimed, alleging that Mr. Dobyns violated
his employment contract and several federal regulations
and ATF orders by publishing a book based on his experi-
ence as an agent and by contracting his story to create a
motion picture. A trial was held in the Claims Court in
2013. The court found that there was no express breach of
the settlement agreement, but that the government’s con-
duct breached the covenant of good faith and fair dealing.
The Claims Court further found that Mr. Dobyns was enti-
tled to emotional distress damages in the amount of
$173,000.
With respect to the government’s breach of contract
counterclaim, the Claims Court found that the government
was not entitled to relief because ATF officials knew of Mr.
Dobyns’ book and movie contracts before they signed the
settlement agreement designed to “fully resolve and settle
any and all issues and disputes arising out of [Mr. Dobyns’]
Case: 21-2309 Document: 63 Page: 2 Filed: 05/10/2024

-- 2 of 13 --

DOBYNS v. US 3
employment with ATF.” Dobyns v. United States, 118 Fed.
Cl. 289, 327–28 (2014), rev’d, 915 F.3d 733 (Fed. Cir. 2019).
The government was thus unable to “complain about pro-
jects that were already in the works when the Settlement
Agreement was executed,” nor to “seek compensation that
originates from the efforts that those contracts represent.”
Id. at 330.
The government appealed the Claims Court’s judgment
as to the breach of the implied duty of good faith and fair
dealing, and Mr. Dobyns cross-appealed to this court an-
other aspect of the Claims Court decision.1 See Dobyns v.
United States, 915 F.3d 733 (Fed. Cir. 2019). The govern-
ment did not appeal the denial of its counterclaim. We re-
versed the finding that the government breached the
implied duty of good faith and fair dealing in the 2007
agreement. Id. at 741.
Because Mr. Dobyns had prevailed as to the govern-
ment’s counterclaim, Mr. Dobyns sought attorneys’ fees
and costs for work in defending against the counterclaim.
1 After the Claims Court entered final judgment, it
“sua sponte issued an order voiding its judgment based on
concerns of potential government misconduct.” Dobyns,
915 F.3d at 737. The government moved to vacate the or-
der because the government had already filed its notice of
appeal, transferring jurisdiction to this court. We re-
manded to the Claims Court to determine whether relief
was warranted under Rule 60 of the Rules of the Court of
Federal Claims (“RCFC”). The Claims Court appointed a
special master to determine whether Rule 60 relief was ap-
propriate. The special master determined that none of al-
leged acts warranted relief under Rule 60 and the Claims
Court adopted that determination. Mr. Dobyns appealed
that decision. We affirmed the Claims Court’s determina-
tion that Mr. Dobyns was not entitled to relief under Rule
60.
Case: 21-2309 Document: 63 Page: 3 Filed: 05/10/2024

-- 3 of 13 --

DOBYNS v. US 4
28 U.S.C. § 2412(a), (b), (d).2 Although EAJA provides mul-
tiple bases for recovery of fees and costs, see 28 U.S.C.
§ 2412(a), (b), (d), only section (d) includes a 30-day dead-
line. Rule 54 of the Rules of the Court of Federal Claims
provides a 30-day deadline for costs and attorneys’ fees
that is applicable to claims under provisions of EAJA other
than section (d). RCFC 54(d)(1)(B)(i); RCFC 54(d)(2)(B)(i).
Thus, pursuant to EAJA and to the Rules of the Court of
Federal Claims, a motion for attorneys’ fees was due here
30 days after the entry of final judgment. See 28 U.S.C.
§ 2412(d)(1)(B); RCFC 54(d)(2)(B)(i).
Our reversal of the Claims Court’s judgment in favor of
Mr. Dobyns did not render the judgment final because, fol-
lowing his appeal to our court, Mr. Dobyns filed a petition
for a writ of certiorari. The petition was denied on Febru-
ary 24, 2020. Mr. Dobyns had a right to seek rehearing at
the Supreme Court within 25 days but did not do so. The
Supreme Court’s decision to deny his petition became final
on March 20, 2020. Thirty days following this date made
the motion for attorneys’ fees due April 19, 2020, unless the
Claims Court were to enter a new final judgment. Mr.
Dobyns did not file his motion for attorneys’ fees under
EAJA until October 30, 2020, alleging that he relied on the
government’s advice that a new judgment would be en-
tered. Since a new judgment was not entered, he contends
that the 30-day deadline should be equitably tolled and
2 Mr. Dobyns also sought fees with respect to the
government’s breach of the covenant of good faith and fair
dealing, despite losing that claim. He argues that “he pre-
vailed against the [g]overnment regarding critical findings
of fact.” Appellant Opening Br. 6. The cases foreclose any
such theory. See Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health and Hum. Res., 532 U.S. 598, 605
(2001).
Case: 21-2309 Document: 63 Page: 4 Filed: 05/10/2024

-- 4 of 13 --

DOBYNS v. US 5
that the same arguments he makes for section (d) of EAJA
should be applied to section (a) and (b).
The Claims Court denied the motion for attorneys’ fees,
finding that it was untimely. The court held that the doc-
trine of equitable tolling did not apply and found that “this
case falls into the category of cases in which inadvertence,
ignorance of the rules, or mistakes construing the rules do
not . . . constitute excusable neglect.” Dobyns, 154 Fed. Cl.
at 318 (internal quotations and citation omitted).
This appeal followed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
D ISCUSSION
We review decisions concerning attorneys’ fees under
EAJA for an abuse of discretion. RAMCOR Servs. Grp.,
Inc. v. United States, 185 F.3d 1286, 1288 (Fed. Cir. 1999).
“[W]hether equitable relief is warranted on the circum-
stances of a particular case involves factual determina-
tions . . . which are entitled to deference.” Frazer v. United
States, 288 F.3d 1347, 1351 (Fed. Cir. 2002). However,
“when the material facts are not in dispute . . . this court
has treated the question of the availability of equitable toll-
ing as a matter of law.” Former Emps. of Sonoco Prods. Co.
v. Chao, 372 F.3d 1291, 1295 (Fed. Cir. 2004) (citation omit-
ted). Cases that require the “application of the appropriate
standard [of equitable tolling] to undisputed facts[] are
properly questions of law reviewed de novo by this court.”
Id.
I
We first consider whether the EAJA 30-day filing dead-
line in 28 U.S.C. § 2412(d)(1)(B) is subject to equitable toll-
ing.
In Scarborough v. Principi, the Supreme Court recog-
nized that “limitations principles should generally apply to
the Government in the same way that they apply to private
Case: 21-2309 Document: 63 Page: 5 Filed: 05/10/2024

-- 5 of 13 --

DOBYNS v. US 6
parties” and explained that the statutory deadline pro-
vided in EAJA is not “properly typed jurisdictional.” 541
U.S. 401, 414, 421 (2004) (internal quotation marks and ci-
tations omitted). Following Scarborough, the Sixth Circuit
has held that “the EAJA time limitation for fee applications
is subject to equitable tolling.” Townsend v. Comm’r of Soc.
Sec. Admin., 415 F.3d 578, 583 (6th Cir. 2005). In Town-
send, the Sixth Circuit analyzed the same factors that the
Supreme Court considered in Scarborough, concluding that
the doctrine applied to private parties, that there was no
Congressional intent suggesting that the doctrine’s stand-
ard should not apply to EAJA, and that there is no evidence
that the government would be prejudiced by the applica-
tion of the doctrine to EAJA. Id. at 582–83.
Although we have not previously had occasion to con-
sider this question, the Supreme Court has held that this
statutory deadline is not jurisdictional, see Scarborough,
541 U.S. at 414, and the Sixth Circuit has held that the
EAJA deadline is subject to equitable tolling, see Town-
send, 415 F.3d at 583. There is no contrary authority after
Scarborough. The government in this case concedes that
“equitable tolling may be applied in limited circumstances
under EAJA.” Appellee Br. 33. We are in agreement that
the filing deadline for fee applications under EAJA is sub-
ject to equitable tolling.
II
EAJA has two bases for recovery of attorneys’ fees, sec-
tions (b) and (d), and section (a) provides for recovery of
costs. See 28 U.S.C. § 2412. As noted earlier, only section
(d), however, includes a deadline for filing applications for
recovery. 28 U.S.C. § 2412(d)(1)(B). Sections (a) and (b) of
EAJA do not contain a statutory deadline, and Rules
54(d)(1)(B)(i) and 54(d)(2)(B)(i) of the Rules of the Court of
Federal Claims setting a 30-day deadline are applicable.
Rule 6(b)(1) of the Court of Federal Claims’ Rules pro-
vides that “[w]hen an act may or must be done within a
Case: 21-2309 Document: 63 Page: 6 Filed: 05/10/2024

-- 6 of 13 --

DOBYNS v. US 7
specified time, the court may, for good cause, extend the
time.” Subsection (B) of the rule additionally provides that
the court may extend the time “on motion made after the
time has expired if the party failed to act because of excus-
able neglect.” This rule is modeled after Rule 6 of the Fed-
eral Rules of Civil Procedure (“FRCP”),3 which includes the
same language.
The good cause standard “allows plaintiffs to raise sub-
stantially the same equitable arguments that they can
raise under the equitable tolling doctrine.” Lambert v.
United States, 44 F.3d 296, 299 (5th Cir. 1995) (citing Bald-
win Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984))
(considering the good cause standard in FRCP 4(m)). The
excusable neglect standard is similarly equitable. See Pio-
neer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380,
395 (1993). When analyzing excusable neglect under
FRCP 6, “the determination is at bottom an equitable one,
taking account of all relevant circumstances surrounding
the party’s omission.” Id.
Thus, we read both the “good cause” and “excusable ne-
glect” standards of RCFC 6 as encompassing (but not lim-
ited to) the circumstances that justify equitable tolling.
III
Having determined that equitable tolling applies to the
statutory deadline in EAJA and that the standard for toll-
ing the deadline under RCFC 6 encompasses the standard
for equitable tolling, we turn to the question of whether eq-
uitable tolling applies here.
The mandate from this court regarding Mr. Dobyns’
previous appeal was filed on May 1, 2019. On that same
3 Rule 6 of the Rules of the Court of Federal Claims
was amended in 2002 “to conform with FRCP 6.” RCFC 6
Rules Committee Note.
Case: 21-2309 Document: 63 Page: 7 Filed: 05/10/2024

-- 7 of 13 --

DOBYNS v. US 8
day, the Claims Court issued an order to the parties to con-
fer and file a joint status report indicating any issues that
needed to be addressed before the case was terminated.
Mr. Dobyns indicated his intent to file for certiorari at the
Supreme Court, and the Claims Court ordered the parties
to file a joint status report within sixty days of the final
resolution of Mr. Dobyns’ petition. The Supreme Court’s
denial of certiorari became final on March 20, 2020.
On April 8, 2020, within the 30-day limit, Mr. Dobyns’
counsel emailed government’s counsel to discuss drafting
the joint status report. In relevant part, the email stated:
EAJA has a thirty day window, but Judge Camp-
bell-Smith’s determination of a scheduling order
can supersede that, and in any event, would not
close until thirty days following entry of a proper
and correct final judgment. I do not perceive us as
having that [i.e., a final judgment], for the reasons
stated. [4]
Please advise as to your position on this, because if
I need to file a motion for clarification or some other
form of relief during the sixty day period, I would
like to do that this week.
Dobyns, 154 Fed. Cl. at 313.
The government’s counsel responded the same day in
relevant part:
4 An earlier part of the email explained Mr. Dobyns’
counsel’s reasoning that the previous judgment “was re-
versed by the Federal Circuit and therefore should be
amended to reflect that, or replaced by a judgment indicat-
ing that Plaintiff takes nothing by its complaint, but with
either form indicating that government takes nothing by
its counterclaim, and etc. for other language that needs to
be there.” J.A. 443.
Case: 21-2309 Document: 63 Page: 8 Filed: 05/10/2024

-- 8 of 13 --

DOBYNS v. US 9
I don’t think we need to ask the trial court to issue
a new judgment, it will do that as a matter of
course.
Id.
On April 24, 2020, outside the 30-day window, the par-
ties filed the joint status report. In the report, Mr. Dobyns
stated his intention to file an application for an award of
attorneys’ fees under EAJA and stated his position that
“the Court is required to issue an amended judgment” at
which point the 60-day time for appeal would commence,
after which the 30-day EAJA application timeline would
begin. Joint Status Report at 7, Dobyns v. United States,
No. 08-700C (Fed. Cl. April 24, 2020). The government,
however, now took the position that that the case was fi-
nally decided by the denial of certiorari and that any in-
tended application for attorneys’ fees was “untimely, moot,
or both.” Id. Mr. Dobyns argued that the government “re-
versed its position regarding the issuance of judgment by
this Court, and therefore the time in which Plaintiff may
file an EAJA application.” Id. at 3. Mr. Dobyns further
argued that the government’s position is “wrong, waived,
estopped, and inappropriate. Private parties and their
counsel should be able to rely on representations made by
the United States’ attorneys.” Id. at 6.
On May 4, 2020, the Claims Court “decline[d] to enter
the schedule as proposed” and stated that it would not en-
ter an amended judgment. Order at 1, Dobyns v. United
States, No. 08-700C (Fed. Cl. May 4, 2020).5 Because no
5 Mr. Dobyns also contends his application was not
untimely because the trial court extended the deadline
through court scheduling orders. He argues that the “trial
court possessed the authority to set a schedule for Dobyns’
EAJA fee application that differed from EAJA’s thirty-day
deadline, and that [it] did so, whether it intended to or not.”
Case: 21-2309 Document: 63 Page: 9 Filed: 05/10/2024

-- 9 of 13 --

DOBYNS v. US 10
new amended judgment was issued after the Supreme
Court’s denial of Mr. Dobyns’ petition for certiorari, the
court found that the case became final on March 20, 2020.
Thirty days following that date would mean Mr. Dobyns’
application was due by April 19, 2020.
On October 30, 2020, Mr. Dobyns filed a motion for at-
torneys’ fees and costs pursuant to EAJA, 28 U.S.C. § 2412.
He argued that his reliance on government counsel’s rep-
resentations regarding the entry of amended judgment was
reasonable and that the reliance or mutual mistake should
equitably toll the 30-day deadline. J.A. 503–06. “[W]ith
twelve days left in the normal EAJA Subsection (d) filing
period, the Justice Department agreed with undersigned
counsel’s expectation” that a new judgment would issue.
J.A. 503.
The Claims Court denied Mr. Dobyns’ motion for attor-
neys’ fees as untimely. The Claims Court found that “[Mr.
Dobyns’] decision to rely on defendant’s counsel’s mistaken
understanding of this court’s procedure was his error.”
Dobyns, 154 Fed. Cl. at 318. The court found Mr. Dobyns’
decisions “unreasonable and ill-advised,” and faulted Mr.
Dobyns for choosing not to pursue a “remedy for resolving
any uncertainty.” Id. at 317.
IV
The Claims Court’s assessment improperly applies the
law of equitable tolling. It overlooks that misleading con-
duct by an adversary can be the basis for equitable tolling.
The seminal equitable tolling case, Irwin v. Department of
Veterans Affairs, recognizes that the Supreme Court has
“allowed equitable tolling in situations . . . where the com-
plainant has been induced or tricked by his adversary’s
Appellant Opening Br. 40–41. Because we hold that equi-
table tolling applies in this circumstance, we do not reach
this theory.
Case: 21-2309 Document: 63 Page: 10 Filed: 05/10/2024

-- 10 of 13 --

DOBYNS v. US 11
misconduct in allowing the filing deadline to pass.” 498
U.S. 89, 96 (1990). The Court in Irwin cited another equi-
table tolling case as an example, Glus v. Brooklyn Eastern
District Terminal, 359 U.S. 231, 232 (1959). In Glus, the
respondent “represent[ed] to petitioner that he had seven
years in which to sue,” despite the statute of limitations
running after only three years. Id. The Supreme Court
held that, despite his delay, the petitioner was entitled to
have his suit tried on the merits “if he [could] prove that
the respondent’s responsible agents, agents with some au-
thority in the particular matter, conducted themselves in
such a way that petitioner was justifiably misled.” Id. at
235. The situation here is quite similar.
The Claims Court’s reasons for rejecting equitable toll-
ing do not support its decision. First, the Claims Court
found that defendant’s counsel was “not responsible for en-
suring that plaintiff’s counsel had an accurate understand-
ing of court procedure.” Dobyns, 154 Fed. Cl. at 317. That
is not the question. The question is whether the govern-
ment misled Mr. Dobyns’ counsel. The petitioner in Glus
could have researched the applicable statute the same way
Mr. Dobyns could have researched the Claims Court’s rules
for issuing amended judgments here. The Claims Court
did not consider whether the government’s counsel, an
“agent[] with some authority in the particular matter,”
“conducted [himself] in such a way that petitioner was jus-
tifiably misled” when he assured Mr. Dobyns’ counsel that
a new judgment would be issued as a matter of course.
Glus, 359 U.S. at 235.
Second, the Claims Court found that “[w]hatever the
force of defendant’s representations, it is clearly not em-
powered to speak for the court.” Dobyns, 154 Fed. Cl. at
317. But a finding that the defendant could speak for the
court is not required to equitably toll the statutory dead-
line. Instead, the question is whether it was reasonably
justifiable that, twelve days before the filing deadline for
the normal EAJA period, Mr. Dobyns relied on the
Case: 21-2309 Document: 63 Page: 11 Filed: 05/10/2024

-- 11 of 13 --

DOBYNS v. US 12
government’s assertions that a new judgment would issue
“as a matter of course.” Id. at 313.
Third, the Claims Court noted that “after many years
of hard-fought litigation,” it was “strange . . . to hear plain-
tiff argue that he was right to trust the defendant’s under-
standing of the case.” Dobyns, 154 Fed. Cl. at 318. That
the litigation was hard fought lends no support to the prop-
osition that counsel could not rely on the government’s rep-
resentations. The government, a party with significant
experience before the Claims Court and with particular ex-
pertise with EAJA applications, simply stated its under-
standing of typical procedure—that the Claims Court
would issue a new judgment “as a matter of course.” Id. at
313. It was certainly reasonable for Mr. Dobyns’ counsel to
rely on the government’s representations.6
Finally, to the extent that the Claims Court required
Mr. Dobyns to show that the government had intentionally
misled him, this would be incorrect. This basis for equita-
ble tolling exists even if the adversary did not intentionally
mislead. See, e.g., Bergeron v. Mansour, 152 F.2d 27, 30
(1st Cir. 1945) (“The plaintiff reasonably relied upon the
representations and conduct of the defendant. . . . It is not
necessary that the representations and conduct should be
labelled as fraudulent in a strict legal sense or that they
were made or carried on with an intention to mislead the
plaintiff.”). The complaint in Glus only alleged that the
“defendant’s agents . . . fraudulently or unintentionally
misstated to plaintiff that he had seven years in which to
bring an action.” Glus, 359 U.S. at 232 n.2 (emphasis
added).
6 The fact that, after the deadline passed, Mr.
Dobyns expressed doubts about whether a new judgment
would be entered is irrelevant. See Appellee Br. 29.
Case: 21-2309 Document: 63 Page: 12 Filed: 05/10/2024

-- 12 of 13 --

DOBYNS v. US 13
Mr. Dobyns only needed to show that he relied on the
government’s statements and that his reliance on the
statements of the government about the procedure for
Claims Court judgments was justifiable. We think as a
matter of law that Mr. Dobyns did rely on those statements
and that he was entitled to rely on the government’s repre-
sentations. Equitable tolling is available for his motion for
attorneys’ fees under EAJA, 28 U.S.C. § 2412(d), and thus
there was both good cause and excusable neglect under
RCFC 6 for his motion for attorneys’ fees and costs. Mr.
Dobyns’ filing must be accepted as timely.
We reverse and remand for further proceedings con-
sistent with this opinion.
REVERSED AND REMANDED
COSTS
Costs to appellant.
Case: 21-2309 Document: 63 Page: 13 Filed: 05/10/2024

-- 13 of 13 --