B & D Land and Livestock Co. v. Schafer

615 F.Supp.2d 950

B & D LAND AND LIVESTOCK CO., an Iowa corporation, Plaintiff, v. Ed SCHAFER, Secretary, United States Department of Agriculture, Defendant.

No. C 07-3070-MWB.

United States District Court, N.D. Iowa, Central Division.

May 21, 2009.

COPYRIGHT MATERIAL OMITTED

Thomas A. Lawler, Lawler & Swanson, PLC, Parkersburg, IA, for Plaintiff.

ORDER

MARK W. BENNETT, District Judge.

This matter comes before the court pursuant to the plaintiff's April 8, 2009, Application For Costs, Attorney Fees And Expenses, And Other Fees And Expenses (docket no. 43). The plaintiff seeks fees and expenses pursuant to the Equal Access To Justice Act (EAJA), 28 U.S.C. § 2412, after a favorable disposition of its third action for judicial review in an opinion and judgment handed down November 5, 2008. See B & D Land and Livestock Co. v. Schafer, 584 F.Supp.2d 1182 (N.D.Iowa 2008). Somewhat more specifically, the plaintiff claims $57,768.59 in attorney fees (for some hours at $175 per hour and some hours at $185 per hour); $683.00 in costs; $3,414.17 in attorney's expenses; and $13,380.43 in other fees and costs, for work from November 2000 through April 2009 on the series of administrative and judicial review proceedings leading at last to a final favorable outcome in the third action for judicial review. In support of its fee claim, the plaintiff represents that the judgment is now final, that it is a prevailing party, and that the government's position was not substantially justified.¹ The defendant filed a Response (docket no. 44) on April 22, 2009, disputing any award of fees and expenses on the grounds that the government's position was "substantially justified" and that "special circumstances" make an award of fees unjust, and disputing the fee claim as claiming unwarranted hours, particularly for hours spent on a motion for preliminary injunction, and excessive hourly rates, particularly for time expended in administrative proceedings, which the government contends is subject to a cap of $125 per hour pursuant to an applicable regulation. The plaintiff filed a Reply (docket no. 45) on April 23, 2009.

As the Eighth Circuit Court of Appeals has explained,

EAJA allows most parties who prevail against the United States in civil litigation to recover costs. See 28 U.S.C. § 2412(a) (1994). EAJA also allows those parties to recover attorney fees and some litigation expenses if the Government fails to prove that its position in the litigation "was substantially justified or that special circumstances make an award unjust." Id. § 2412(d)(1)(A); see also Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir.1995) (stating the Government bears the burden of proving its position was substantially justified).

Herman v. Schwent, 177 F.3d 1063, 1065 (8th Cir.1999). More specifically, the statute states the following:

Except as otherwise 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.

28 U.S.C. § 2412(d)(1)(A) (emphasis added); see also Yarbrough v. Cuomo, 209 F.3d 700, 703 (8th Cir.2000) ("The EAJA directs courts to award fees and other expenses to prevailing parties unless the United States' position was substantially justified or special circumstances would make an award unjust. See 28 U.S.C. § 2412(d)(1)(A).").

The Eighth Circuit Court of Appeals has had little occasion to elaborate on what constitutes "special circumstances" that might make a fee award unwarranted, see Koss v. Sullivan, 982 F.2d 1226, 1229 (8th Cir.1993) (looking to see whether special circumstances make an award unjust, and finding none, but stating "the denial of fees to counsel whose efforts brought about the Secretary's change of position is unjust"), but it has specifically addressed, many times, when the government's position is "substantially justified," see, e.g., Lauer v. Barnhart, 321 F.3d 762, 764-65 (8th Cir.2003) (holding the Commissioner's position was not substantially justified). As the Eighth Circuit Court of Appeals has explained,

A position enjoys substantial justification if it has a clearly reasonable basis in law and fact. Accordingly, the [government] can advance a losing position in the district court and still avoid the imposition of a fee award as long as the [government's] position had a reasonable basis in law and fact. Further, a loss on the merits by the [government] does not give rise to a presumption that [it] lacked substantial justification for [its] position. The [government] does, however, at all times bear the burden to prove substantial justification.

Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir.2005) (citations omitted); see Lauer, 321 F.3d at 765 (recognizing "the overriding, fundamental principal that the government's position must be well founded in fact to be substantially justified"); Sawyers v. Shalala, 990 F.2d 1033, 1034 (8th Cir.1993) ("To be substantially justified, the [government] must show that [its] position was `justified to a degree that could satisfy a reasonable person.'" (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988))).

Although the mere fact that the government lost in this court does not give rise to a presumption that its position was not substantially justified, Goad, 398 F.3d at 1025, the court has little trouble concluding that the government has failed to carry its burden to prove that its position in this case was "substantially justified," even in light of the government's attempts to relitigate the merits of its various actions in resistance to the plaintiff's fee claim. As to the government's actions at issue in the final judicial review, there was absolutely no reasonable basis in law or fact for the government's conflation of the separate "hydrophytic vegetation" and "wetland hydrology" requirements for a "wetland," and improperly placing the burden on B & D to demonstrate why wetlands were not present based on criteria not identified in the statute or regulations as determinative of a wetland, see B & D, 584 F.Supp.2d at 1199; no reasonable basis in law or fact for disregarding pertinent "saturation" evidence, see id. at 1199-1200; and no reasonable basis in law or fact for the government's disregard of evidence that wetland hydrology had been removed, in light of evidence of a pre-existing drainage tile system and disturbances of any wetland characteristics by an adjacent county road and ditch, see id. at 1200-02. The government's present assertion that the lack of wetland hydrology that this court found was demonstrated by nine soil samples by Mr. Gertsma in 2005, as opposed to the single soil sample by Mr. Moore in 1998, is attributable to the plaintiff's "conversion" of the wetland simply holds no water in light of the evidence of removal or disturbance of wetland hydrology by the tile system and the adjacent county road and ditch long before 2005.² In short, the government's position in this case—and, indeed, in each of the prior incarnations of this case—was not "substantially justified," so that a fee award is appropriate.³

The government contends that a fee award should nevertheless be denied because of "special circumstances," in that the plaintiff did not act in good faith, because NRCS pursued its case against the plaintiff after the plaintiff admitted that it converted land that it knew had been certified as a "wetland," it had been told by NRCS that it could not remove the brush, trees, and shrubs on such "wetland," and after it dropped its administrative appeal of the "wetland" determination. On the other hand, the government contends that it followed its statutory and regulatory duties to pursue those who convert wetlands, and properly relied on its "wetland" determination and the plaintiff's dismissal of his administrative appeal of that determination. The government argues, further, that this court's finding that the plaintiff could still challenge the "wetland" determination in these proceedings, after dismissing an administrative appeal, is not uncontradicted. This is another attempt by the government to relitigate the merits of the parties' dispute, but the government's argument is no more convincing as a "special circumstances" argument than it was in the second judicial review action, when the court rejected it as contrary to the plain meaning of the statute permitting review of "wetlands" determinations when sought by a person affected by the wetland determination, i.e., by a person charged with "converting" a wetland. See B & D Land and Livestock Co. v. Veneman, 332 F.Supp.2d 1200 (N.D.Iowa 2004) (B & D II) (finding and declaring "that the 1999 wetland determination was subject to `appeal' in the administrative proceedings concerning B & D's purported wetland `conversion' violation, and the agency's final determination to the contrary was arbitrary and capricious, an abuse of discretion, and contrary to law"). Thus, there are no "special circumstances" warranting denial of a fee award.

If a fee award is appropriate, as it is here, the reasonable hourly rate for such attorney fees are established by statute:

[A]ttorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A)(ii); see Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir.1994) (quoting the statute, which then...