Common Questions: Referenced in Public Law 108-007, Section 13 for Applicants for Fees and Expenses Associated with Pueblo of Sandia V. Babbitt

• Also see Notice Pursuant to Section 13 of Public Law 108-007

NOTE: Applicants are reminded that Congress has not appropriated monies in support of this legislation. Accordingly, FMS cannot reimburse any applicant for fees and expenses until appropriated monies are available.

Am I entitled to seek fees and expenses associated with this application for fees and expenses?

Because most fee-shifting statutes permit the award of "fees for fees," FMS has interpreted the legislation to permit a similar award, subject to the availability of funds However, applicants are reminded that the legislation limits the amount of reimbursement to $750,000 per party and the total amount reimbursed may not exceed $3,000,000. Significantly, Congress has not yet appropriated monies to execute this legislation. Accordingly, if Congress does not appropriate money then applicants will not be reimbursed for any fees or expenses associated with the preparation or submission of their applications.

What level of documentation or support is necessary?

Because Congress has not articulated a specific standard of adequacy to support a fee application, but has noted that reimbursement of fees and expenses is made in lieu of the Equal Access to Justice Act (EAJA), the Financial Management Service (FMS) will use EAJA as a guideline for determining the adequacy of applications for reimbursement under this legislation. Generally, applicants should submit an affidavit establishing (1) the attorney's hourly fee rate and how it was determined; and (2) include an itemized statement containing the amount of time spent working on specific tasks and (3) and itemized list of other expenses or costs.

May I provide estimates or pro rations of amounts paid?

Where sufficient documentation is available, applicants should submit itemized statements reflecting actual work performed and actual expenses incurred. If adequate documentation is unavailable, FMS will consider reconstructed time records. However, any reconstructed or estimated fee or expense records, including fees or expenses calculated on a pro rata basis, must be clearly identified as such.

Are submissions to FMS subject to disclosure pursuant to the Freedom of Information Act?

The basic policy of FOIA is one of disclosure. Accordingly, FMS will assume that any information submitted as part of an application for fees and expenses is subject to disclosure. However, FMS will consider an applicant's request that certain material not be disclosed. Accordingly, an applicant who requests such consideration should identify the applicable document or information and provide an explanation as to why FMS should not disclose such information or document upon receipt of a proper FOIA request.

Will FMS keep privileged material confidential?

FMS takes no responsibility for the continued protection of privileged material. Generally fee arrangements are not considered privileged. Further, the disclosure of privileged material to a third party waives the privilege. However, FMS will accept redacted documents in support of the fee application so long as the redaction does not hamper FMS' ability to make entitlement determinations.