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 ______________________

JAMES BERNARD REED, Udall Shumway PLC, Mesa, AZ, argued for plaintiff-appellant.

WILLIAM JAMES GRIMALDI, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY. ______________________

Before DYK, MAYER, and TARANTO, Circuit Judges. Case: 21-2309 Document: 63 Page: 2 Filed: 05/10/2024

2 DOBYNS v. US

DYK, 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: 3 Filed: 05/10/2024

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 dut