Citizens for Responsibility & Ethics in Wash. v. Nat'l Archives & Records Admin.

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CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON et al., Plaintiffs, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION et al., Defendants.

No. 20-cv-00739 (APM)

United States District Court, District of Columbia

June 8, 2022

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge.

I.

In December 2019, Defendant National Archives and Records Administration (“NARA”) approved a schedule for disposing of certain records belonging to Defendant U.S Immigration and Customs Enforcement (“ICE”). Plaintiffs^[1] filed suit challenging the approval. This court previously ruled largely in Plaintiffs' favor vacating the disposition schedule for five of the six records categories at issue and remanding those categories to NARA for further consideration. Citizens for Resp. &amp Ethics in Wash. v. Nat'l Archives & Recs. Admin. (CREW), No. 20-cv-00739 (APM), 2021 WL 950142, at *10 (D.D.C. Mar. 12, 2021).

Plaintiffs now move the court for an award of attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”). Pls.' Mot. for Atty's Fees, ECF No. 23 [hereinafter Pls.' Mot.], Pls.' Mem. in Supp. of Pls.' Mot., ECF No. 23-1 [hereinafter Pls.' Mem.]. For the reasons that follow, Plaintiffs' motion is granted.

II.

Under the EAJA, unless otherwise provided by statute,

a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . ., including proceedings for judicial review of agency action, brought by or against the United States . . ., 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)-(B). The plaintiff must establish itself to be a “prevailing party”; if it does so, the government bears the burden of showing that its position was “substantially justified.” See LePage's 2000, Inc. v. Postal Regul. Comm'n, 674 F.3d 862, 866 (D.C. Cir. 2012). If a prevailing party establishes entitlement to a fee, it then must demonstrate the “reasonableness” of its request. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004); 28 U.S.C. § 2412(d)(2)(A).

A.

Defendants concede that Plaintiffs prevailed on the merits. See generally Defs.' Opp'n to Pls.' Mot., ECF No. 27 [hereinafter Defs.' Opp'n]. They nevertheless maintain that Plaintiffs are not entitled to a fee award because Defendants' position was substantially justified. Defs.' Opp'n at 8-18. Alternatively, Defendants argue that Plaintiffs' requested fee award is not reasonable. It should be discounted, they contend, by one sixth to account for the fact that the court only vacated and remanded NARA's decision as to five of the six records categories at issue. Id. at 1820. The court takes each argument in turn.

B.

“A position is substantially justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” SecurityPoint Holdings, Inc. v. TSA, 836 F.3d 32, 39 (D.C. Cir. 2016) (internal quotation marks omitted). Meeting that burden requires something more than showing that the agency's position was “merely undeserving of sanctions for frivolousness, ” Pierce v. Underwood, 487 U.S. 552, 565-66 (1988), but does not require “establishing] that it was correct-indeed, since the movant is established as a prevailing party it could never do so.” Air Transp. Ass'n of Can. v. FAA, 156 F.3d 1329, 1332 (D.C. Cir. 1998).

The government's “position” is defined by statute to include both its litigation position in court and “the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D); see also Role Models, 353 F.3d at 967 (“The government . . . must demonstrate the reasonableness not only of its litigating position, but also of the agency's actions.”); see also Am. Wrecking Corp. v. Sec y of Lab., 364 F.3d 321, 325-26 (D.C. Cir. 2004). The court considers both “the agency's prelitigation conduct and the Department of Justice's subsequent litigation positions” separately but makes “only one threshold determination for the entire civil action.” Comm'r, INS v. Jean, 496 U.S. 154, 159 (1990). See Am. Wrecking Corp., 364 F.3d at 325-26 (approaching analysis in “piecemeal fashion”).

NARA's Decisionmaking: As a preliminary matter, the parties disagree over precisely which portion of the agency's actions comprise “the government's position.” Pls.' Reply, ECF No. 29 [hereinafter Pls.' Reply], at 2. Defendants characterize it as “NARA's decision to approve [ICE's] Schedule.” Defs.' Opp'n at 8. Plaintiffs, on the other hand, describe it as NARA's “failure to address relevant public comments and binding agency policy.” Pls.' Reply at 2. Plaintiffs have the better of the argument.

The D.C. Circuit has held that “a ‘holistic' approach to the government's position is contrary to EAJA, and that the relevant ‘position' of the government is that which corresponds to the claim or aspect of the case on which the private party prevailed.” Jacobs v. Schiffer, 204 F.3d 259, 264 (D.C. Cir. 2000) (internal citation omitted). So, for example, in SecurityPoint Holdings the D.C. Circuit said that the agency bore the burden “of showing that the underlying action-the failure to address critical arguments made by [the plaintiff]-was substantially justified, ” rather than the plaintiff's “principal argument” before the agency. 836 F.3d at 40 (emphasis added). Here, Plaintiffs prevailed not on whether NARA's approval of ICE's schedule was reasonable but on NARA's “fail[ures] to consider an important aspect of the problem” and to “respond to ‘relevant' and ‘significant' public comments.” CREW, 2021 WL 950142, at *7 (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977)) (citing Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). It is these failures then (and the government's subsequent defense of them in litigation) that the court is tasked with considering.

“Courts evaluating substantial justification must . . . analyze why the government's position failed in court.” Taucher v. Brown-Hruska, 396 F.3d 1168, 1174 (D.C. Cir. 2005). Courts disfavor an agency's action when “it was wholly unsupported by the text of the applicable regulations.” Role Models, 353 F.3d at 967 (internal quotation marks omitted). Courts also look less favorably on instances where the challenged action is “flatly at odds with the controlling case law” but are more sympathetic where “the government lost because an unsettled question was resolved unfavorably.” Taucher, 396 F.3d at 1174 (internal quotation marks omitted).

NARA's challenged actions lacked substantial justification for two related reasons: (1) the agency did not meaningfully address a critical factor-research value-in evaluating whether to permanently retain ICE records, and (2) it failed to respond to substantive comments directed to that factor. Id. NARA's governing statute and its internal Appraisal Policy expressly obligated the agency to “consider the research value of the records in ICE's Disposition Schedule.” CREW, 2021 WL 950142, at *7. Congress required NARA, when evaluating a disposition schedule, to determine whether “any of the records listed in a list or schedule . . . do not, or will not after the lapse of the period specified, have sufficient administrative, legal, research, or other value to warrant their continued preservation by the Government.” 44 U.S.C. § 3303a(a) (emphasis added). Appendix 1 of the agency's Appraisal Policy required NARA staff to ask, “How significant are the records for research?” and, in answering that question, instructed that “[i]t is necessary to consider the kinds and extent of current research use and to try to make inferences about anticipated use both by the public and by the Government.”^[2] Yet, NARA's evaluation of research value was wholly inadequate. “The record before [the] court . . . [did] not reveal that NARA considered current research use or made inferences about the anticipated use of documents in future research.” CREW, 2021 WL 950142, at *8. Its analysis was cursory or nonexistent as to multiple records categories. See id. The agency thus violated a basic duty under the APA: to provide an explanation that is sufficient to allow a court to understand the agency's methodology. Id. (citing Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 564 (D.C. Cir. 2002)).

NARA compounded its error by neglecting to address “numerous comments touting the current and anticipated future research value of the records and criticizing the agency for not properly measuring their true value.” Id. Instead, NARA summarily responded that the “anticipated research use will be more contemporary rather than many years into the future, ” without explaining how the agency came to that conclusion. Id. Giving such short shrift to substantive comments about a key factor in the agency's decisionmaking flew in the face of well-established precedent. See id. (citing Gresham v. Azar, 950 F.3d 93, 103 (D.C. Cir. 2020)).

That NARA's decisionmaking lacked substantial justification is supported by the D.C. Circuit's decision in Hill v Gould. In that case, the question at issue in the underlying litigation was whether the Secretary of the Interior had erroneously denied protection to a species of bird, the mute swan, under the Migratory Bird Treaty Act (“MBTA”). Hill v. Gould, 555 F.3d 1003, 1005 (D.C. Cir. 2009). The Secretary had not designated the mute swan for protection based on her reading of treaty language that excluded the mute swan from the definition of “migratory bird” because it was a nonnative bird. The Secretary lost on appeal, not because the court deemed...