Boardley v. U.S. Dep't of the Interior
| Decision Date | 07 February 2013 |
| Docket Number | Case No. 1:07–CV–01986. |
| Citation | 924 F.Supp.2d 1 |
| Parties | Michael BOARDLEY, Plaintiff, v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Recognized as Unconstitutional
36 C.F.R. §§ 2.51(a), 2.52(a).
Jordan Woodard Lorence, Alliance Defense Fund, Washington, DC, Heather G. Hacker, Timothy D. Chandler, Alliance Defense Fund, Folsom, CA, Kevin H. Theriot, Alliance Defense Fund, Leawood, KS, for Plaintiff.
Robin Michelle Meriweather, Assistant United States Attorney, Washington, DC, for Defendants.
OPINION & ORDER [Resolving Doc. 64.]
Plaintiff Michael Boardley seeks a judgment for costs and attorney expenses after his successful First–Amendment challenge to regulations promulgated by the Department of the Interior. [Doc. 64.] For the following reasons, the Court GRANTS the motion in part, and DENIES it in part.
Plaintiff Michael Boardley “filed this action, seeking a declaration that the [National Park Service] regulations are unconstitutional and violative of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb–1, on their face and as applied to him.” Boardley v. U.S. Dep't of Interior, 615 F.3d 508, 512–13 (D.C.Cir.2010).
As the Court of Appeals interpreted the regulations,
[t]he two regulations challenged here govern “[p]ublic assemblies, meetings,” 36 C.F.R. § 2.51, and the “[s]ale or distribution of printed matter,” id.§ 2.52, within the national parks.... First, they call for the designation of what the government calls “free speech areas.” ... Second, the regulations prohibit “[p]ublic assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views” and “[t]he sale or distribution of [non-commercial] printed matter” within park areas, unless “a permit [authorizing the activity] has been issued by the superintendent.” Id. §§ 2.51(a), 2.52(a).
The Court of Appeals found the regulations fatally overboard because they applied to small groups and individuals, and even in designated free speech areas. Id. at 520–23. Noting that “neither party has argued that we should sever the regulations in order to leave part of them intact,” the Court of Appeals struck them down in their entirety. Id. at 525.
Having obtained some of the relief he sought—Boardley had also sought damages—on some of his proposed bases, Boardley filed this petition for fees and costs under the Equal Access to Justice Act (“EAJA”). [Doc. 64.]
The EAJA provides in certain circumstances for award of attorney's fees and costs to a litigant who prevails in a lawsuit against the United States:
A court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
...
The court, in its discretion, may reduce the amount to be awarded ... or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy
“Once a plaintiff has been shown to be a prevailing party, the burden is on the government to show that its litigation position was substantially justified on the law and the facts.” Cinciarelli v. Reagan, 729 F.2d 801, 806 (D.C.Cir.1984). To show substantial justification for purposes of the EAJA, the Government must show that its position was “justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quotation omitted). It must show that its position was “more than merely undeserving of sanctions for frivolousness.” Id. at 566, 108 S.Ct. 2541. Where the merits panel finds the Government's position was entirely without merit, it is not substantially justified for EAJA purposes. See Halverson v. Slater, 206 F.3d 1205, 1211 (D.C.Cir.2000).
The Government's “position” for EAJA purposes “includes, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). “While the parties' postures on individual matters may be more or less justified, the EAJA—like other fee-shifting statutes—favors treating a case as an inclusive whole, rather than as atomized line-items.” Comm'r, I.N.S. v. Jean, 496 U.S. 154, 161–62, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). Nonetheless,
[i]n some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories.... The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.
Hensley v. Eckerhart, 461 U.S. 424, 434–35, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see Jean, 496 U.S. at 161, 110 S.Ct. 2316 (); see also Gatimi v. Holder, 606 F.3d 344, 350 (7th Cir.2010); Tripoli Rocketry Ass'n, Inc. v. ATF, 698 F.Supp.2d 168, 175 (D.D.C.2010).
The Government concedes that Boardley is a prevailing party, [Doc. 69 at 8]and does not point to special circumstances that would make an award unjust. Instead, the Government says that it was substantially justified in promulgating, maintaining, and defending the regulations. [Doc. 69 at 8.] It says that it prevailed on many issues and that Boardley did not obtain all of the relief he sought.2 [Doc. 69 at 10–11.] Boardley says that at least with regard the “other public expression of views” phrasing, and the regulations' failure to exempt individuals and small groups, the Department was not substantially justified. [Doc. 64 at 5.] He notes that he obtained invalidation of the entire regulation. [Doc. 71 at 19.]
But, Boardley brought two distinctly different sets of claims: his successful First Amendment overbreadth challenge, and his unsuccessful claims premised on different legal rights and some even against different defendants. [Doc. 1.] These two sets of claims constitute “distinctly different” actions, premised on different factual predicates and different legal theories. While the former deserves reimbursement, the latter do not.
Throughout this litigation, the Government maintained that the regulations did not violate the free-speech clause of the First Amendment. And the Court of Appeals found the regulations constitutionally deficient in toto. See Boardley, 615 F.3d at 525. Accordingly, evaluating the Government's free speech position holistically, the Court finds that the Government fails to carry its burden of showing substantial justification for its position.
In “considering whether conduct is substantially justified, [a court] should look to the reason the agency action was invalidated.” LePage's 2000, Inc. v. Postal Regulatory Comm'n, 674 F.3d 862, 866 (D.C.Cir.2012) (emphasis in original). The Court of Appeals found the regulations Boardley, 615 F.3d at 508.
Overbreadth doctrine protects against free-speech-chilling regulation. See id. at 513 (quoting Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)). It thus exists in some tension with the EAJA's “substantial justification” requirement: Substantial justification might refer to the quality of the rationale for the regulation or scope of the regulation's tailoring. The Court finds no reason to choose one construction over the other and finds the latter more applicable here.3
The rationale the Government offer for the regulations, while justified in some applications, was incongruous with the broad reach of the regulations. See Boardley, 615 F.3d at 519. The Court of Appeals particularly noted two shortcomings. First, the Court of Appeals observed that the “ ‘free speech areas' made available within national parks ... are subject to the same permit requirement as all other locations within the national parks.” Id. at 515. But, “by definition, these are not areas where the Government has a paramount interest in maintaining a ‘peaceful and tranquil environment.” Id. at 521. Accordingly, the Court of Appeals found that “within ‘free speech areas,’ the Government has exceedingly little basis for hushing ‘lone pamphleteer [s]....’ ” Id. (further citation omitted). Even after considering the justifiable applications of the regulation, the Court of Appeals found this defect so grave that the regulation could not be saved by severability. See id. at 522–23. That it so found suggests just how unjustifiably overbroad the regulations were.
Second, the Court of Appeals found “considerable support from this and other circuits” that the failure of the regulations to exempt small groups and lone individuals rendered the regulations defectively overbroad. Id. at 520. Indeed the Court of Appeals noted that the Ninth Circuit found that “we and almost every other circuit to have considered the issue have refused to uphold registration requirements that apply to individual speakers or small groups in a public forum.” Id. (quoting Berger v. City of Seattle, 569...
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