United States v. Moseley

No. N 89-0107 C (E.D. Mo. April 5, 1993)

The court holds that no attorneys fees and expenses may be awarded to a defendant who prevails in a civil action brought by the federal government pursuant to § 301(a) of the Federal Water Pollution Control Act, where the government's position was substantially justified within the meaning of the Equal Access to Justice Act (EAJA). Although the government based its action on the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands, which was later revoked, the court holds that the government's position was justified to a degree that could satisfy a reasonable person. There was a reasonable basis in law and fact for the government's claim, and therefore, the government's position was substantially justified within the meaning of the EAJA.

Counsel for Plaintiff
Joseph B. Moore, Ass't U.S. Attorney
U.S. Attorney's Office
1114 Market St., Rm. 401, St. Louis MO 63101
(314) 539-3280

Counsel for Defendants
Richard P. Alexander
Alexander & House
116 N. School St., Fayetteville AR 72701
(501) 521-9188

[23 ELR 20969]

Gunn, J.:

Memorandum and Order

Defendants James Allen Moseley and Mary Ann Moseley prevailed in a civil action brought by the United States government pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA). Defendants now move for attorneys' fees and expenses in the amount of $ 64,438.71 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(b) (EAJA). For the reasons stated below, the Court finds that the government's position was substantially justified and accordingly will deny the motion for attorneys' fees.

In September of 1988, the United States Army Corps of Engineers (the Corps) presented defendants with a "cease and desist" order regarding the construction of a levee on their property in Chariton County, Missouri. In October of 1988, the Corps advised defendants that the levee was being constructed on wetlands and that they would have to obtain a permit for the construction, in accordance with section 404 of the CWA. Defendants applied for a section 404 permit and meanwhile continued construction of the levee. The Corps issued a proposed permit which defendants rejected on grounds that it contained unacceptable restrictions.

In August of 1989, the government brought a civil action in this Court seeking injunctive relief and civil penalties pursuant to the CWA. A jury trial was held on April 18 and 19, 1991. The jury returned a verdict for defendants and the Court entered judgment dismissing the action on the merits and ordering the government to pay defendants' [23 ELR 20970] costs. Following the expiration of the period for appeal, defendants brought this motion for attorneys' fees and expenses.

Defendants' sole argument for their assertion that the government was not substantially justified in this litigation relies upon a change in the law which occurred four months after the trial. On August 17, 1991, the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989 Manual) was revoked and the 1987 Wetlands Delineation Manual was reinstated effective immediately upon the President's signing of the 1992 Energy and Water Appropriation Act. Defendants argue that "[t]he extraordinary measure of immediate implementation shows clearly that Congress and the President regard[ed] the 1989 Manual to be unreasonable and an error on the part of the government." Defendants' sole contention, therefore, is that the government's position was not substantially justified because the law applicable to the case at the time it was litigated was "unreasonable and an error on the part of the government." Defendants do not, however, argue that the government's position lacked a reasonable basis either in fact or in the law as it existed at the time of the litigation.

The EAJA provides in pertinent part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, . . . 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). The determination of whether the government's position was substantially justified is a matter for the Court's discretion. Pierce v. Underwood, 487 U.S. 552, 557-63 (1988). The question before this Court is whether the government's position was "justified to a degree that could satisfy a reasonable person." Id. at 565. Stated differently, the government's position was substantially justified if it had a reasonable basis in law and fact. Id. at 565-66 & n.2; Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir. 1991).

Upon review of the record, the Court finds that the government was justified to a degree that could satisfy a reasonable person because there was a reasonable basis in law and fact for the claim that defendants discharged a pollutant into protected waters of the United States without a section 404 permit, in violation of section 1311(a) of the CWA. The government's position therefore was substantially justified within the meaning of the EAJA. Accordingly,

IT IS HEREBY ORDERED that defendants' motion for attorneys' fees and expenses is denied.