Louisiana v. Lee

No. 83-6126 (E.D. La. November 18, 1986)

Plaintiffs are entitled to attorneys fees and costs under the Equal Access to Justice Act (EAJA) for their successful suit to compel the Corps of Engineers to prepare an environmental impact statement (EIS) for shell dredging permits, because the position of the United States was not substantially justified. The court notes that plaintiffs clearly prevailed on the merits of their claims and that the presence of the state of Louisiana as a plaintiff ineligible to recover costs neither bars other plaintiffs' recovery nor constitutes a "special circumstance" barring EAJA relief. Placing the burden of showing that the United States' position was substantially justified on the defendants, the court holds that defendants' failure to develop an EIS for shell dredging operations was not reasonable.

[The underlying decision is published at 16 ELR 20828.]

Counsel for Plaintiffs
Nicholas C. Yost
Dickstein, Shapiro & Morin
2101 L St. NW, Washington DC 20037
(202) 785-9700

Counsel for Defendants
John Volz, U.S. Attorney
Hale Boggs Federal Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-2921

[17 ELR 20209]

McNamara, J.:

Before the court is the Motion of Plaintiffs, Save our Coast, Inc., Orleans Audubon Society, Sierra Club, Manchac Fishermen's Association, and Environmental Defense Fund, for an award of attorneys' fees and costs. Pursuant to this court's Minute Entry of September 24, 1986, the only issue before the court at this time is whether the Plaintiffs are entitled to an award of attorneys' fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412. Having considered the extensive memoranda and attachments of counsel and the applicable law, and for reasons more fully set out below, this court finds that the Plaintiffs are entitled to an award of attorneys' fees and costs under the Equal Access to Justice Act.

The Equal Access to Justice Act in relevant part provides as follows:

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.

A party seeking an award of fees and other expenses shall . . . submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection . . . .

28 U.S.C. § 2412(d)(1)(A) and (B). There is no serious argument that the Plaintiffs are not prevailing parties or eligible parties under the Act.¹ Thus, the only issue effectively before the court is whether the United States' position was substantially justified. The burden of demonstrating substantial justification rests with the Defendants,² who must show that the position taken both in litigation and at the agency level,³ was reasonable in light of the relevant facts and law.⁴ Consistent with the previous Opinion, Order and Judgment entered herein on April 23, 1986 (at pp. 34, 35 and 37), this court finds as a matter of fact that the Defendants' decision not to develop an environmental impact statement was not reasonable. Therefore, Plaintiffs are clearly entitled to an award of attorneys' fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412.

Accordingly;

IT IS ORDERED that the remaining issue in this Motion, i.e., that of quantum, be and is hereby referred to Magistrate Ronald A. Fonseca to conduct whatever proceedings he deems necessary and to prepare for submission to this court proposed findings and recommendations for disposition of the Motion.

1. The court finds meritless the United States' claim that since the State of Louisiana is not an eligible party, all Plaintiffs are ineligible. See Sierra Club v. U.S. Army Corps of Engineers, 776 F.2d 383, 393 [15 ELR 21039] (2d Cir. 1985). Similarly, this court finds that the presence of the State of Louisiana as a party litigant is not a special circumstance under the Equal Access to Justice Act to warrant denial of an award of attorneys' fees and costs.

2. S&H Riggers and Erectors, Inc. v. Occupational Safety & Health Review Commission, 672 F.2d 426, 430 (5th Cir. 1982).

3. 28 U.S.C. § 2412(d)(2)(D) provides as follows:

"Position of the United States" means, 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."

See also Bazaldua v. United States INS, 776 F.2d 1266 (5th Cir. 1985).

4. Russell v. National Mediation Board, 775 F.2d 1284, 1286-88 (5th Cir. 1985); Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 679 F.2d 64 (5th Cir. 1982); S&H Riggers, 672 F.2d at 430.