Center For Science In The Public Interest v. Regan

• Decision Date: 26 September 1986
• Docket Number: No. 83-1988,83-1988
• Citation: 802 F.2d 518
• Parties: , 55 USLW 2205 CENTER FOR SCIENCE IN THE PUBLIC INTEREST, et al., Appellants, v. Donald T. REGAN, Secretary of the Treasury, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 518

802 F.2d 518

255 U.S.App.D.C. 442, 55 USLW 2205

CENTER FOR SCIENCE IN THE PUBLIC INTEREST, et al., Appellants, v. Donald T. REGAN, Secretary of the Treasury, et al.

No. 83-1988.

United States Court of Appeals District of Columbia Circuit.

Argued April 25, 1986.

Decided Sept. 26, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-00610).

Bruce Silverglade, Washington, D.C., and Mitchell Zeller, for appellants.

Marleigh D. Dover, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty. and William Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees. Nicholas S. Zeppos, Atty., Department of Justice, Washington, D.C., also entered an appearance for appellees.

Before ROBINSON and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

The Center for Science in the Public Interest (CSPI) appeals from a denial of attorneys' fees under the Equal Access to Justice Act. 28 U.S.C. Sec. 2412 (1982). For the reasons that follow, we hold that, in determining whether the Government's position was "substantially justified" within the meaning of the statute, the District Court is now obliged to apply the standard set forth in the 1985 Amendments to the Act.

I

The underlying litigation that gave rise to the present fee proceeding concerns the Secretary of the Treasury's decision to rescind a regulation requiring the labeling of ingredients contained in alcoholic beverages. The regulatory odyssey began in 1974, when the Bureau of Alcohol, Tobacco, and Firearms (BATF) published proposed regulations requiring ingredient labeling for distilled spirits, wine, and malt beverages. After several hearings, the agency withdrew the proposed regulations. 40 Fed.Reg. 52,613 (1975). Several years later, in 1979, a Notice of Proposed Rulemaking to require partial ingredient labeling of alcoholic beverages was issued, 44 Fed.Reg. 6740 (1979); then, in 1980, the regulation was promulgated in final form. Under the terms of the regulation, alcoholic beverage labels were, beginning in 1983, to disclose either the essential ingredients or an address where such information could be obtained. T.D. ATF-66, 45 Fed.Reg. 40,538 (1980). Prompted by Executive Order 12291 directing federal agencies to review existing regulations, see 46 Fed.Reg. 13,193 (1981), BATF in 1981 proposed rescission of the ingredient labeling rule. 46 Fed.Reg. 24,962 (1981). Based upon comments received, as well as the record of the earlier proceedings, the agency rescinded the requirement. T.D. ATF-94, 46 Fed.Reg. 55,039 (1981).

CSPI thereupon filed suit in the United States District Court for the District of Columbia, contending that the rescission violated the Federal Alcohol Administration Act, 27 U.S.C. Secs. 201-12 (1982) (FAA Act). In CSPI's view, that statute required BATF to promulgate ingredient labeling regulations which "provide the consumer with adequate information as to the identity and quality of the products." Id. at 205(e)(2). In addition, CSPI challenged the adequacy of the agency's statement of basis and purpose for rescinding the rule. See 5 U.S.C. Sec. 553(c) (1982).

Defending the rescission, the Treasury Department maintained that it enjoyed wide discretion with respect to its rulemaking authority and that the FAA Act did not mandate ingredient labeling; in addition, the agency argued that the rescission was supported by substantial evidence. These arguments proved unavailing, however, as the District Court granted summary judgment in favor of CSPI, ruling in pertinent part that the rescission was not accompanied by an adequate statement of basis and purpose and that the rescission violated Congressional intent. The court ordered reinstatement of the rule. Center for Science in the Public Interest v. Department of the Treasury, 573 F.Supp. 1168 (D.D.C.1983). The reinstatement order was subsequently vacated on appeal, but the District Court's ruling invalidating the rescission itself was never appealed. This court declined to vacate that order under United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), because appellate review was prevented "not by 'happenstance,' but by the deliberate action of the losing party." In addition, the Department had promulgated a second rescission which, this court determined, mooted further consideration of its prior action. Center for Science in the Public Interest v. Regan, 727 F.2d 1161, 1165-66 (D.C.Cir. Feb. 7, 1984, as amended Mar. 1, 1984). ¹

After the District Court's order granting summary judgment, CSPI in March 1983 filed a timely application for attorneys' fees under the Equal Access to Justice Act (EAJA). Citing this court's decision in Spencer v. NLRB, 712 F.2d 539 (D.C.Cir.1983), the District Court ruled that the Government's litigation position was substantially justified and thus denied CSPI's request. Center for Science in the Public Interest v. Department of the Treasury, Civil No. 82-610 (D.D.C. July 8, 1983). This appeal followed. Consideration of the appeal was held in abeyance pending Congress' action on proposed amendments to and extension of the EAJA, which were thereafter enacted and signed into law. The parties thereupon filed supplemental briefs addressing the question whether, in view of the statutory amendments, the "position" of the United States should now be interpreted to include the agency's pre-litigation position.

Thus, the threshold question presented, and indeed the only question we reach, concerns the proper standard for determining whether the position of the Government was "substantially justified" within the meaning of the EAJA. In this circuit, the "position" of the Government for purposes of the pre-1985 EAJA has been construed to mean only its position in the litigation, which in this case means the arguments advanced by the agency's counsel in the litigation defending the rescission. Spencer v. NLRB, 712 F.2d at 557.

The amended EAJA, however, now provides that the "position" of the United States includes not only its litigation position but also "the action or failure to act by the agency upon which the civil action is based." Pub.Law No. 99-80, Sec. 2(c)(2)(B), 99 Stat. 183, 185 (1985). Section 7 of the 1985 Amendments states that, except as otherwise provided "the amendments ... shall apply to cases pending on or commenced on or after the date of the enactment of this Act," that is, August 5, 1985. ² Pub.L. No. 99-80, Sec. 7(a), 99 Stat. at 186 (emphasis added). This litigation was, all agree, pending on that date. It is also clear that if the merits portion of this case had been pending on August 5, 1985, the new EAJA standard would apply. The issue before us is whether the statutory term, "cases pending," was intended to encompass pending fee applications or was, instead, limited to cases pending "on the merits."

II

It is axiomatic that statutory interpretation begins with the language of the statute itself. But we do not merely start with the statute. Absent "clear evidence," United States v. Apfelbaum, 445 U.S. 115, 121, 100 S.Ct. 948, 952, 63 L.Ed.2d 250 (1980), of a "clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive," Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). United States v. Locke, 471 U.S. 84, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985); Bread Political Action Committee v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982). As the Supreme Court has recently reiterated, "[d]eference to the supremacy of the legislature, as well as recognition that congressmen typically vote on the language of a bill, generally require us to assume that 'the legislative purpose is expressed by the ordinary meaning of the words used.' " Locke, 105 S.Ct. at 1793 (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962)). As the Court admonished, " 'going behind the plain language of a statute in search of a possible contrary congressional intent is "a step to be taken cautiously" even under the best of circumstances.' " Id. (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1540, 71 L.Ed.2d 748 (1982) and Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977)). ³

The statute before us is exclusively concerned with attorneys' fees and fee petitions; as a result, the plain meaning of "cases pending" in specifying the effective date of the fee statute "presumably would be commonly understood to include pending fee applications." Trahan v. Regan, 625 F.Supp. 1163, 1164 (D.D.C.1985). As the Fifth Circuit aptly put it in addressing this issue, "[t]he phrase 'cases pending' makes no distinction between the fee application stage of a case and consideration of the merits." Russell v. National Mediation Board, 775 F.2d 1284, 1286 (5th Cir.1985); Gavette v. Office of Personnel Management, 785 F.2d 1568, 1578 (Fed.Cir.1986). Both stages of litigation would seem to be encompassed by the statutory term. At all events, no such distinction is to be found in the language of the statute itself.

Numerous decisions from other circuits are in accord with this straightforward reading of the statute. McQuiston v. Marsh, 790 F.2d 798, 800 (9th Cir.1986) (1985 Amendments held to apply to pending fee petition); Gavette, 785 F.2d at 1578 & n. 62 (same); United States v. Kemper Money Market Fund, Inc., 781 F.2d 1268, 1270 n. 1 (7th Cir.1986) (same); Trust Co. of Columbus v. United States, 776 F.2d 270, 271-72 & n. 1 (11th Cir.1985) (same); Russell, 775 F.2d at 1286-87 (same); accord Trahan, 625 F.Supp. at 1166 & n. 4 (same); see Fulton v. Heckler, 784 F.2d 348, 349 (10th Cir.1986) (...