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NATIONAL LAW CTR. ON HOMELESSNESS & POVERTY v. UNI

July 28, 1992

NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, et al., Plaintiffs, and NATIONAL UNION OF THE HOMELESS, et al., Intervenors,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.



The opinion of the court was delivered by: OLIVER GASCH

 On July 1, 1991, plaintiffs petitioned the Court for an award of attorneys' fees, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, in connection with their work on five issues in this case, namely: 1) plaintiffs' motion for a further order enforcing the permanent injunction of December 12, 1988, filed July 12, 1990, heard by the Court on September 21, 1990, and granted in part on February 13, 1991; 2) a status conference related in part to that motion, held on January 3, 1991; 3) proceedings related to defendants' motion to alter or amend the Court's order of February 13, 1991, which was denied on May 2, 1991; 4) plaintiffs' motion for an order compelling publication of regulations which was made and granted at a hearing on April 26, 1991; and 5) preparation of the present fee petition. Defendants moved for a stay of consideration of plaintiffs' petition which the Court denied on February 11, 1992.

 In addition, plaintiffs have petitioned for an award of attorneys' fees and expenses incurred in connection with defendants' appeal of the aforementioned orders. The Court considers both fee petitions at this time.

 BACKGROUND

 This case is about the duties of the United States under a statute known as Title V of the Stewart B. McKinney Homeless Assistance Act (the "McKinney Act"), 42 U.S.C. § 11301 et seq., § 11411. Upon granting plaintiffs' motion for summary judgment, the Court, on December 12, 1988, issued a permanent injunction granting most of the relief plaintiffs requested. See National Coalition for Homeless v. United States Veterans Admin., 695 F. Supp. 1226 (D.D.C. 1988) (preliminary injunction); National Coalition for Homeless v. United States Veterans Admin., Civ. A. No. 88-2503- OG, 1988 WL 136958 (D.D.C. Dec. 15, 1988) (permanent injunction). *fn1" Essentially, defendants had unreasonably delayed compliance with Title V of the McKinney Act. That order was not appealed.

 However, plaintiffs subsequently moved for a second order enforcing the permanent injunction on July 12, 1990, the subject of the current fee litigation. Argument was heard after full briefing on September 21, 1990. Broadly speaking, the issues were: a) how HUD was to canvass landholding agencies, both in content and frequency; b) whether defendants had placed unreasonable burdens on McKinney Act applicants with regard to an environmental questionnaire; c) whether defendants had instituted a meaningful outreach program to applicants; and d) whether a statement of intent to apply for funding under Title IV of the McKinney Act was alone sufficient to demonstrate funding for purposes of application for housing under Title V.

 While the Court was considering the motion argued on September 21, 1990, Congress amended the McKinney Act with the Stewart B. McKinney Homeless Assistance Amendments Act of 1990 ("Amendments Act"), on November 29, 1990. A status conference was held on January 3, 1991, to determine what, if any, impact the Amendments Act had on the motion at bar. It was agreed by the parties at that conference that the amendments did not affect the motion for further enforcement of the permanent injunction. The Court then granted, in part, plaintiffs' motion to further enforce the permanent injunction on February 13, 1991. See National Law Center on Homelessness & Poverty v. United States Veterans Admin., 765 F. Supp. 1 (D.D.C. 1991).

 Defendants moved to alter or amend the Court's order of February 13, 1991. This was denied on May 2, 1991. Id. at 13-14. The February 13, 1991, and May 2, 1991, orders were appealed. In the time between these two orders, plaintiffs moved for an order compelling publication of regulations concerning implementation of the McKinney Act. That motion was granted at a hearing on April 26, 1991. The original fee petition was filed on July 1, 1991. The Court of Appeals affirmed this Court's opinions of February 13, 1991 and May 2, 1991, on May 29, 1992. National Law Center on Homelessness & Poverty v. United States Dept. of Veterans Affairs, 964 F.2d 1210, (D.C. Cir.). A petition for an award of fees and expenses in connection with the appeal was filed on July 8, 1992.

 DISCUSSION

 I. Applicable Law

 Under the Equal Access to Justice Act, to be entitled to an award of attorneys' fees, the petitioner (a private litigant) must bear the burden of proving that he is a "prevailing party" against the government. Defendants fairly concede that plaintiffs are, in fact, prevailing parties on some issues that were the bases for the underlying enforcement action. *fn2"

 However, once plaintiffs have proven that they are prevailing parties, the burden shifts to the government. Defendants then have the opportunity of proving that their position was "substantially justified," on both the agency's underlying action which gave rise to the litigation, and with respect to the government's litigation position. These are separate inquiries. Jones v. Lujan, 887 F.2d 1096, 1098 (D.C. Cir. 1989). If defendants can carry these burdens for any of the issues on which plaintiffs can be said to have prevailed and for which they seek fees, no fees should be awarded with respect to those issues. Since the Court finds it difficult to separate issues on which the government was substantially justified, and since a mathematical division is neither practical nor favored, the fee award will be reduced on an equitable basis to reflect the extent to which the Court believes the government bore its burden. *fn3" See supra note 2.

 It is not the purpose of the EAJA to relitigate issues that have already been decided. Hensley, 461 U.S. at 437. However, a separate analysis as outlined above must be undertaken. Plaintiffs won some of their motions. That fact is not now in dispute, nor are the merits of those motions. The crucial question is whether the government's position was substantially justified, that is, justified in substance or in the main, justified to a degree that would satisfy a reasonable person. Pierce v. Underwood, 487 U.S. 552, 563-68, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988). There need only be a reasonable basis in law and fact for the government's position to be substantially justified. *fn4" Id. at 566 n.2.

 Before addressing the questions of whether defendants were substantially justified in their underlying agency actions and in their litigation position, a fundamental misunderstanding of the applicable law needs to be ironed out.

 Plaintiffs cite Abel Converting, Inc. v. United States, 695 F. Supp. 574, 577-78 (D.D.C. 1988), which in turn relies on Trahan v. Regan, 824 F.2d 96, 102 (D.C. Cir. 1987), for the proposition that, "when the [agency] conduct is determined to be 'contrary to law, the government will rarely be able to demonstrate that its administrative action is substantially justified.'" Plaintiffs' Reply Memorandum at 2. While the Abel Converting decision was correctly decided, given the law of this Circuit at the time, it is quite clear that two weeks after it was decided, the Court of Appeals en banc vacated both the panel opinion, Trahan v. Regan, 824 F.2d 96 (D.C. Cir. 1987), and the district court opinion, 625 F. Supp. 1163 (D.D.C. 1985). Trahan v. Regan, 866 F.2d 1424 (D.C. Cir. 1988) (en banc). Pierce v. Underwood, supra, was decided by the Supreme Court on June 27, 1988. The Court of Appeals was simply remanding Trahan in light of the new standard of reasonableness articulated in Pierce which overruled the District of Columbia Circuit's standard of "slightly more" than reasonableness announced in Spencer v. NLRB, 712 F.2d 539, 558 (D.C. Cir. 1983), cert. denied, 466 U.S. 936, 80 L. Ed. 2d 457, 104 S. Ct. 1908 (1984).

 The Abel Converting decision did, interestingly enough, take the holding in Pierce into account. In a rather bold footnote, this Court said: "Surviving equally well after the Pierce decision, however, is the more specific analysis in Trahan that government action contrary to law will only rarely be substantially justified." Abel Converting, 695 F. Supp. at 577 n.3 (citing Trahan, 824 F.2d at 102). With Trahan having been vacated in the wake of Pierce, the fate of this assertion was undetermined. After the remand of Trahan for a fresh evaluation of the fee petition, in the subsequent affirmance, Judge Sentelle wrote: "Undoubtedly, there will be instances in which an agency might take a position about its own statute or regulation, which, while incorrect, might appear correct to a reasonable person." Trahan v. Brady, 907 F.2d 1215, 1220 (D.C. Cir. 1990). He distinguished between "patently unreasonable agency action" and "mere failure to conform to their own statutes and regulations." Id.

 In Spencer v. NLRB, the Court of Appeals wrote: "The more clearly established are the governing norms, and the more clearly they dictate a result in favor of the private litigant, the less 'justified' it is for the government to pursue or persist in litigation." Spencer v. NLRB, 712 F.2d at 559. Whether this is still the law in light of Pierce and all the holdings in Trahan is, at a minimum, questionable. After Pierce, justification for agency action and related litigation is now merely a reasonableness inquiry. Whether agency action was contrary to law or not is no longer the main question. Whether the agency action was contrary to law may only help inform the court of the reasonableness of the action and the litigation position.

 II. Justification of Underlying Agency Action

 Now that the standards are plain, the Court should go about the business of deciding whether the actions of the various agencies involved in this case, those which gave rise to the enforcement proceedings and defendants' motion to alter or amend, were substantially justified. To do this, it is best to go through what plaintiffs asked for, what they got, and what defendants' reasons were for disagreement and litigation. If an agency's position was such that a reasonable person might have thought it correct, then it ...


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