League of Women Voters of California v. FCC, CV-79-1562-MML.

• Decision Date: 11 July 1983
• Docket Number: No. CV-79-1562-MML.,CV-79-1562-MML.
• Parties: LEAGUE OF WOMEN VOTERS OF CALIFORNIA, Henry Waxman, Pacifica Foundation, Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.
• Court: U.S. District Court — Central District of California

568 F. Supp. 295

LEAGUE OF WOMEN VOTERS OF CALIFORNIA, Henry Waxman, Pacifica Foundation, Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.

No. CV-79-1562-MML.

United States District Court, C.D. California.

July 11, 1983.

Center for Law in the Public Interest, Frederic D. Woocher, Lucas Guttentag, John R. Phillips, Los Angeles, Cal., for plaintiffs.

Stephen S. Trott, U.S. Atty., Stephen D. Petersen, Asst. Chief U.S. Atty., Los Angeles, Cal., Paul Blankenstein, Judith F. Ledbetter, J. Paul McGrath, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for defendant.

ORDER DENYING PLAINTIFFS' APPLICATION FOR AN AWARD OF ATTORNEYS' FEES

LUCAS, District Judge.

On August 6, 1982 this Court entered summary judgment in favor of plaintiffs. League of Women Voters of California v. FCC, 547 F.Supp. 379 (C.D.Cal.1982). In the order granting summary judgment the Court indicated that plaintiffs were entitled to an award of costs and reasonable attorneys' fees. Id., 577 F.Supp. at 388. Thereafter, defendant moved to alter or amend the judgment to delete the award of attorneys' fees. Plaintiffs opposed this motion and filed a timely application for an award of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). Plaintiffs' application and defendant's motion came on for hearing before the Court, the Honorable Malcolm M. Lucas, District Judge, presiding, on November 1, 1982. At oral argument the Court indicated that the award of attorneys' fees was inadvertently included in the August 6, 1982 order. Such an award was not appropriate in that plaintiffs had not applied for such an award at that time as required by 28 U.S.C. § 2412(d)(1)(B). The Court, therefore, orally ordered the award of attorneys' fees stricken from the judgment pursuant to F.R.Civ.P. 60. The Court then proceeded to hear plaintiffs' application, treating defendants' papers in support of its motion to alter or amend the judgment as papers in opposition to plaintiffs' application. After careful consideration of the excellent briefs and oral argument presented by counsel for both parties, the Court denies plaintiffs' application for an award of attorneys' fees under the EAJA. Plaintiffs are, however, entitled to their costs of this action. 28 U.S.C. § 2412(a).

The EAJA provides that a prevailing party¹ in litigation against the United States or an agency or officer of the United States is entitled to an award of reasonable attorneys' fees "unless the Court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). "After a prevailing party has submitted an application for an award, the burden of proving that a fee award should not be made rests with the Government." H.R.Rep. No. 1418, 96th Cong., 2d Sess. reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 5011.

Plaintiffs succeeded in this litigation in establishing that a federal statute, 47 U.S.C. § 399,² was unconstitutional on its face. Although, as will be discussed fully below, defendant did not oppose plaintiffs throughout much of this litigation, defendant argues that even if it had vigorously defended the constitutionality of § 399 its position would have been "substantially justified" as a matter of law. That is, defendant contends that as a threshold "matter of law, an Executive agency is substantially justified in defending an act of Congress against Constitutional challenge." (Defendant's Memorandum of Points and Authorities in Support of Motion to Alter or Amend Judgment, Defendant's Memorandum, page 11, lines 14-16.) In support of this argument defendant notes that there is usually a strong presumption in favor of the constitutional validity of congressional action. Defendant further argues that "it is inconceivable that Congress itself intended for attorneys' fees to be assessed against an Executive agency that has done nothing more or less than defend the constitutionality of statutes enacted by Congress." (Defendant's Memorandum, page 11, lines 24-27.)

Although it is certainly true that defense of a congressional statute from constitutional challenge will usually be substantially justified, the Court rejects defendant's argument that this is true as a matter of law. The language of the EAJA is clear: it applies to "any civil action other than cases sounding in tort." 28 U.S.C. § 2412(d)(1)(A). There is nothing in the statute itself or in its legislative history to support defendant's argument that attorneys' fees cannot be awarded in cases involving a constitutional challenge to a federal statute.³

The Court must, therefore, turn to the facts of this case to determine whether an award of attorneys' fees is warranted. The complex procedural history of this case has been set forth at length in the Court's order granting summary judgment. League of Women Voters, supra, 547 F.Supp. 380-383. However, a summary of this history will be useful here.

This action for declaratory relief was filed on April 30, 1979. The original complaint challenged two restrictions imposed upon noncommercial educational broadcasting stations by 47 U.S.C. § 399. Under this statute noncommercial educational broadcasting stations were prohibited both from editorializing and from supporting or opposing candidates for political office. Plaintiffs contended that these prohibitions violated the First and Fifth Amendments. Defendant answered on July 30, 1979 alleging that plaintiffs were not entitled to the relief sought. An amended complaint was filed by stipulation of the parties on August 28, 1979 making a minor correction in the language of the original complaint. On September 12, 1979 defendant answered the amended complaint without significant change from the first answer filed.

The parties agreed that there were no genuine issues of material fact to be resolved and that the legal issues raised by the complaint could be resolved by motion for summary judgment. Plaintiff filed such a motion on September 24, 1979 and noticed it for hearing on November 5, 1979. On October 22, 1979 the parties submitted a stipulation continuing the hearing of this motion on the grounds that

"the attorney for the defendant, the United States Department of Justice, has determined to discontinue its defense of the constitutionality of § 399 ... and has so advised both Houses of Congress. An extension of time is required to enable the Congress to consider the matter, and to take such action within its power with regard to this case as it may deem proper."

Thereafter, the Senate, represented by its own counsel, sought leave to appear as amicus curiae and requested permission to file a motion to dismiss. Plaintiffs filed extensive papers in opposition to the Senate's motions. The Court granted leave for the Senate to appear as amicus curiae and permitted the filing of the Senate's motion to dismiss. Noting that there was a distinct likelihood that the defendant would not enforce § 399 and that defendant's counsel had not opposed plaintiff's motion for summary judgment, the Court dismissed the action on the grounds that there was no justiciable case or controversy. The Court, therefore, did not reach plaintiff's motion for summary judgment.

Plaintiffs appealed the order of dismissal. Defendant took no position on the appeal. Approximately one year after the appeal was filed but before the case was heard or a decision rendered, counsel for defendant, under the newly appointed attorney general, changed its position and decided to defend the constitutionality of § 399. The appellate court remanded the action for a determination of the effect of this change on the Court's dismissal. On remand the Court vacated its order of dismissal. The appeal was subsequently dismissed. The Senate was given leave to withdraw from the litigation.

By order of June 18, 1981, the Court again set plaintiffs' motion for summary judgment on calendar and ordered the parties to file supplemental briefs. Several days before plaintiffs' motion was to be argued to the Court, Congress amended § 399 to limit significantly the statute's ban on editorializing. In light of this change, the Court continued plaintiff's motion, permitted plaintiff to file an amended complaint reflecting the amendment of § 399, and permitted the filing of further supplemental briefs.

On October 2, 1981 plaintiffs filed an amended complaint. In this complaint, however, plaintiffs dropped their challenge to that portion of § 399 which had not been amended (i.e., that portion which prohibited all public broadcasters from supporting or opposing political candidates) and restricted their constitutional challenge to the newly amended and limited ban on editorializing. On this issue plaintiffs' First Amendment challenge was successful.

As indicated above, the EAJA mandates an award of attorneys' fees to the prevailing party in a civil action brought by or against an agency of the United States "unless the position of the United States was substantially justified or ... special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The phrase "substantially justified" has been construed in this and other Circuits to be a reasonableness test. See Foster v. Tourtellotte, 704 F.2d 1109, 1111-12 (9th Cir.1983).

The present case presents an unusual framework for the application of this standard in that the United States was involved both as a party, through defendant FCC, and as amicus curiae, through the Senate. The papers filed by the parties focus primarily on defendant's position in this litigation. This is appropriate in that the position of the Senate was clearly reasonable.

The Senate's role in this litigation was limited to that of amicus curiae. As a friend of the Court, the Senate assisted the Court in resolving the difficult question of whether this action presented a justiciable case or controversy. The Senate did not become involved in the...