Wilkett v. I.C.C.
| Decision Date | 22 April 1988 |
| Docket Number | No. 82-1373,82-1373 |
| Citation | 844 F.2d 867,269 U.S.App.D.C. 249 |
| Parties | James WILKETT d/b/a Wilkett Trucking Co., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John J. McMackin, Jr., and June E. Edmondson, Washington, D.C., were on the motion for attorney fees and expenses.
Michael Martin, Atty., Colleen J. Bombardier, Atty., Lawrence H. Richmond, Deputy Associate General Counsel, Henri F. Rush, Associate General Counsel, John Broadley, General Counsel, I.C.C., William F. Baxter, Charles F. Rule, Asst. Attys. Gen., Robert B. Nicholson, and Laura Heiser, Attys., Dept. of Justice, Washington, D.C., were on responses to motion for attorney fees and expenses.
Before EDWARDS and RUTH BADER GINSBURG, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
James Wilkett seeks an award of attorney fees and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412 (1982 & Supp. III 1985), as the prevailing party in a case against the Interstate Commerce Commission ("ICC"). See Wilkett v. ICC, 710 F.2d 861 (D.C.Cir.1983). The disposition of this case has been long delayed because the original request for fees languished unnoticed in the Clerk's Office for almost four years. We express our regrets for this unfortunate situation, especially since there is no good excuse for the mishandling of Wilkett's initial application for fees.
Albeit belatedly, we now conclude that a fee award is appropriate, because the position of the United States in agency proceedings and in litigation before this court lacked substantial justification and because no special circumstances render an award unjust. We find, however, that two of the Government's objections to the amounts claimed by Wilkett are valid. We have therefore modified the requested award accordingly.
Wilkett Trucking Company ("Wilkett Trucking"), a family business owned by James Wilkett, began operations in 1975 and received its first ICC license in 1978. In March 1981, it applied to the ICC for expanded authority to transport coal from all points in Oklahoma to any point in Texas. The ICC denied Wilkett Trucking's license application because James Wilkett had been convicted in 1981 of second-degree murder under Oklahoma law and conspiracy to distribute a controlled substance in violation of 21 U.S.C. Sec. 846 (1976). In the ICC's judgment, Wilkett's evident disregard for the law rendered him unfit to hold a license, and his ownership of Wilkett Trucking in turn rendered the company unfit for the ICC authorization it had requested.
Wilkett appealed the ICC's decision to this court. The ICC thereupon requested us to remand the case for reconsideration, which we did. Upon reconsideration, the ICC affirmed its earlier denial of Wilkett Trucking's license application. Wilkett again appealed.
This time we reached the merits and reversed. Finding that the ICC's decision constituted "an unexplained departure from previously applied standards," we ruled that the ICC's denial of Wilkett Trucking's application was arbitrary and capricious. Wilkett v. ICC, 710 F.2d 861, 865 (D.C.Cir.1983). Accordingly, we remanded the case to the ICC "for the purpose of promptly issuing the authority with such reasonable time limitations as it deems necessary." Id.
On July 22, 1983, Wilkett filed a timely application for attorney fees and other expenses under the EAJA, including fees and expenses incurred in making the fee application. The Government opposed Wilkett's application. Wilkett submitted a reply to the Government's objections (for the preparation of which Wilkett also requested attorney fees and expenses), and the Government responded with a second memorandum. Due to a clerical error in the Court Clerk's Office, the panel that decided Wilkett's appeal was not notified of his attorney fee application until four years later, when Wilkett inquired into the delay. On October 14, 1987, we directed the parties to submit supplemental memoranda addressing the ramifications for Wilkett's application of the 1985 amendments to the EAJA and of pertinent judicial decisions issued since the time of Wilkett's initial application.
Section 2412(d)(1)(A) (Supp. III 1985) provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), 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 Government does not deny that Wilkett meets the statutory definition of a "party" or that he prevailed in his appeal. Nor is there any longer reason to doubt that Wilkett's suit constituted a "civil action" not sounding in tort. To be sure, in 1983 the Government contended that judicial review of an agency licensing decision was not a "civil action" for purposes of 28 U.S.C. Sec. 2412 because another provision of the EAJA, codified at 5 U.S.C. Sec. 504(b)(1)(C) (1982), explicitly precluded an award of attorney fees in connection with agency proceedings "for the purpose of granting or renewing a license." The 1985 amendments to the EAJA, however, added the phrase "including proceedings for judicial review of agency action" to clarify the unexplained existing reference to "any civil action." Equal Access to Justice Act, Extension and Amendment of 1985, Pub.L. No. 99-80, Sec. 2(a)(2), 99 Stat. 183, 184. The Government apparently concedes that this addition eviscerates its former objection. See Respondents' Supplemental Memorandum in Opposition to Petitioner's Application for Fees and Other Expenses at 4 n. 3. In light of the change, Wilkett's suit plainly falls within the statutory definition of "any civil action." 1
Because these prerequisites have been met, our analysis must proceed in three stages. First, we must ascertain whether the Government's position was "substantially justified." If it was not, then we must further ask whether "special circumstances" would render an award of attorney fees unjust. If the answer to this question is also negative, we must, finally, consider the Government's objections to the amount of the fees Wilkett claims.
In determining whether the Government's position was substantially justified, we must examine the ICC's actions and explanations as well as the Government's arguments before this court. The EAJA, as amended, defines the "position of the United States" to mean, "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. Sec. 2412(d)(2)(D) (Supp. III 1985). The EAJA further provides that "[w]hether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought." 28 U.S.C. Sec. 2412(d)(1)(B) (Supp. III 1985). The burden of proving that its position was substantially justified both in agency proceedings and in litigation rests with the Government. See Federal Election Comm'n v. Rose, 806 F.2d 1081, 1086-87 & n. 12 (D.C.Cir.1986); Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).
Under the law of this circuit, the Government's position was "substantially justified" if the Government "acted slightly more than reasonably, even though not in compliance with substantive legal standards applied in the merits phase" of the litigation. Rose, 806 F.2d. at 1087; see also Baker v. Commissioner, 787 F.2d 637, 643 n. 10 (D.C.Cir.1986); Blitz v. Donovan, 740 F.2d 1241, 1244 (D.C.Cir.1984); Spencer, 712 F.2d at 558. A finding that an agency acted arbitrarily and capriciously within the meaning of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A), does not preclude the Government from demonstrating that the agency's actions and its conduct in litigation were "substantially justified." Some types of arbitrary and capricious behavior, such as an agency's failure to provide an adequate explanation for its actions or its failure to consider some relevant factor in reaching its decision, may not warrant a finding that an agency's action lacked substantial justification under applicable statutes or regulations. See, e.g., Rose, 806 F.2d at 1087-89. However, a finding that an agency acted arbitrarily and capriciously by denying equal treatment to two similarly situated parties, or by failing to enforce a rule in a situation to which it plainly applied, renders it much more likely that the Government's action was not substantially justified. See Rose, 806 F.2d at 1089.
On the facts of this case, we find that the Government has failed to satisfy its burden of showing that its position was substantially justified. The ICC's actions and the Government's arguments before this court clearly fail this circuit's test of "slightly more stringent than 'one of reasonableness.' " Spencer, 712 F.2d at 558. Indeed, they do not even deserve the appellation "reasonable." 2
In denying Wilkett Trucking's license application, the ICC considered only the owner's fitness for the expanded authority. Moreover, it based its decision solely on James Wilkett's criminal convictions, not on his record of...
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