794 F.3d 21
D.C. Cir.2015Background
- In 1998 the U.S. Postal Service promulgated 39 C.F.R. § 232.1, which, as written, barred solicitation (including signature collection for petitions) on all Postal Service real property, including perimeter sidewalks adjacent to public streets.
- Nonprofit groups that collect petition signatures sued the Postal Service in 2000, challenging the perimeter-sidewalk prohibition under the First Amendment.
- During district-court summary-judgment proceedings, the Postal Service announced a non-enforcement policy toward perimeter-sidewalk solicitation and the district court granted summary judgment relying on that changed position and ordered a bulletin notifying postmasters.
- On appeal this Court (D.C. Cir.) in 2005 held that the regulation’s text and posted rule still chilled First Amendment rights and that the non-enforcement policy did not cure the constitutional defect; the Court reversed and remanded, explaining the Postal Service could cure the defect by amending the regulation.
- After the 2005 decision the Postal Service amended the regulation to permit perimeter-sidewalk solicitation; the plaintiffs then sought EAJA attorney’s fees for work performed before the 2005 opinion.
- The district court denied EAJA fees, ruling plaintiffs were not “prevailing parties” because the Postal Service’s amendment was voluntary; the D.C. Circuit reversed and remanded for further proceedings on substantial-justification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are a "prevailing party" under EAJA | The D.C. Cir.'s 2005 decision was a court-ordered change that relieved the regulatory chill and therefore conferred prevailing-party status | The Postal Service says its pre-decision non-enforcement and the post-decision amendment were voluntary, so there was no court-ordered change | Plaintiffs are prevailing parties under 28 U.S.C. § 2412(d)(1)(A) because the 2005 opinion effected a court-ordered change in the parties' legal relationship |
| Whether the appellate opinion produced a court-ordered change in legal relationship | The opinion invalidated the regulation as applied to perimeter sidewalks and remanded, making substantive relief inevitable (regulation amendment or district-court injunction) | The Court did not explicitly order an amendment, so any change was voluntary | The Court held the remand and ruling made a substantive victory obvious; the opinion sufficed to change the legal relationship (Buckhannon test satisfied) |
| Whether plaintiffs met the other EAJA prongs (judgment in favor and judicial relief) | The 2005 judgment was in plaintiffs' favor and remand provided judicial relief | N/A | Plaintiffs satisfied the remaining two Turner/Thomas prongs (judgment in favor and judicial relief) |
| Whether fees are barred because the Government's position was "substantially justified" | Plaintiffs say the Government was not substantially justified and fees should be awarded | Postal Service argues its position may have been substantially justified | Decidedly close; remanded to the district court to determine substantial justification in the first instance |
Key Cases Cited
- Initiative & Referendum Institute v. U.S. Postal Service, 417 F.3d 1299 (D.C. Cir. 2005) (appellate decision holding regulation chilled First Amendment rights and remanding)
- Initiative & Referendum Institute v. U.S. Postal Service, 685 F.3d 1066 (D.C. Cir. 2012) (upholding Postal Service’s later amended regulation)
- Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598 (2001) (defining "prevailing party" as requiring a court-ordered change in the legal relationship)
- Turner v. National Transportation Safety Board, 608 F.3d 12 (D.C. Cir. 2010) (articulating three-part EAJA prevailing-party test)
- Thomas v. National Science Foundation, 330 F.3d 486 (D.C. Cir. 2003) (applying Turner-like test to EAJA prevailing-party analysis)
- Waterman Steamship Corp. v. Maritime Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990) (party may prevail where remand makes substantive victory obvious)
- National Rifle Association of America, Inc. v. City of Chicago, 646 F.3d 992 (7th Cir. 2011) (awarding fees where appellate decision rendered remaining relief ministerial)