undertook the necessary steps to start the formal rulemaking process well before plaintiffs filed their action.
On May 26, 1995, over a month prior to plaintiffs' filing suit, the Shipyard Commander wrote to the Commander, Naval Base Seattle, requesting that 33 C.F.R. § 334.1240 be amended to clarify that RA2 is for the exclusive use of the Navy, and to specifically exclude unauthorized persons from the area. See Pls.' Mot. For Award of Att'y Fees, Ex. 1. In a letter to the Corps dated May 30, 1995, the Commander, Naval Base Seattle, Rear Admiral H.F. Herrera, requested that such action be taken. See id., Ex. 4. On June 9, 1995, Rear Admiral E.S. McGinley, Vice Commander of the Naval Sea Systems Command, requested that the Coast Guard establish a temporary security zone around the Shipyard. See Defs.' Mem. of P. & A. in Opp'n to Pls.' Mot. For an Award of Att'y Fees, Ex. A. Rear Admiral McGinley subsequently informed the Coast Guard that the Navy was in the process of seeking an amendment to the Corps' regulation set forth in 33 C.F.R. § 334.1240 to exclude unauthorized persons, in addition to vessels, from RA2, and that the purpose of the temporary Coast Guard security zone was to provide for the security of the vessels therein and to provide for public safety until such time as the administrative procedures for amending the Corps' regulation could be carried out. Id.
On June 12, 1995, the Coast Guard, acting under the authority of 33 C.F.R. Part 165, established a combined security and safety zone in the waters surrounding the Shipyard. By its own terms, that regulation, CGD13-95-028, was to expire on September 9, 1995. The Federal Register notice of the regulation stated the emergency need for this temporary regulation and informed the public that the regulation was needed as an interim measure until such time as 33 C.F.R. § 334.1240 could be amended through the formal rulemaking process. 60 Fed. Reg. 33120 (June 27, 1995). Plaintiffs' lawsuit was not filed until July 10, 1995. Thus, although defendants did not begin the formal rulemaking process until July 1995, they had announced their intention to begin that process when they issued the emergency regulation on June 12, 1995, to immediately remedy the recently-determined loophole in the existing regulation.
Plaintiffs further allege that defendants would not have finalized the rulemaking process but for plaintiffs' second motion for a preliminary injunction. The facts show, however, that defendants were proceeding with the rulemaking process all along, well prior to plaintiffs' second motion. The Corps published the Interim Final Rule and sought comments beginning August 21, 1995. The comment period closed on October 20, 1995. On October 19, 1995, the Government Accountability Project submitted its comments to the Corps. The Corps submitted the public comments it received to the Navy on October 25, 1995. See Pls.' Mot. For an Award of Att'y Fees, Ex. 2. The Navy sent its response to the comments back to the Corps on December 15, 1995. See id., Ex. 3. On January 22, 1996, plaintiffs filed their second motion for a preliminary injunction. After consideration of all comments, the final rule, in identical form to the interim rule, was published on January 25, 1996.
Plaintiffs contend that it was their January 22, 1996, motion that prompted the finalization of the rule on January 25, 1996. However, the record shows that the defendants were proceeding with the rulemaking process all along.
On March 1, 1996, plaintiffs filed a motion to dismiss their second motion for a preliminary injunction and their entire complaint. Plaintiffs' motion for a preliminary injunction was merely coincidental with the timing of the publication of the interim final rule in the Federal Register and did not cause defendants to finalize the rule.
Plaintiffs argue that despite the fact that the Court denied both their motion for a temporary restraining order and their first motion for a preliminary injunction, they have, nonetheless, prevailed in this lawsuit. They claim that their motion for a temporary restraining order and a preliminary injunction furthered plaintiffs' interests, since the filings (1) caused defendants to allow plaintiffs access, albeit limited, to collect samples from RA2 during the course of the litigation, and (2) caused defendants to allow the EPA and the Washington State Department of Health to conduct an unscheduled dive for samples within RA2. These minor allowances fail to satisfy the Center for Auto Safety test used to determine prevailing party status. The reason plaintiffs were allowed access on July 13, 1995, to collect biological samples on a portion of the Shipyard's land was that the area was temporarily open to the public, for reasons wholly unrelated to plaintiffs' desire to conduct sampling or to their lawsuit. Additionally, the joint sampling of the Shipyard's restricted waters by the Navy, the EPA, and the Washington State Department of Health was not the relief plaintiffs sought through their lawsuit. Plaintiffs instead sought an order from this Court enjoining defendants from excluding plaintiffs from the Shipyard's waters. This relief was not attained. Plaintiffs are unable to show that they substantially received the relief sought and that their lawsuit contributed to that relief. 28 U.S.C. § 2412; Center for Auto Safety, 595 F. Supp. at 101.
II. Substantially Justified
Even if plaintiffs met the prevailing party requirements, defendants' position was substantially justified. 28 U.S.C. § 2412; Synar v. United States, 670 F. Supp. 410, 415 (D.D.C. 1987); Battles Farm Co. v. Pierce, 257 U.S. App. D.C. 6, 806 F.2d 1098, 1101 (D.C. Cir. 1986); Spencer v. NLRB, 229 U.S. App. D.C. 225, 712 F.2d 539, 557 (D.C. Cir. 1983), cert. denied, 466 U.S. 936, 80 L. Ed. 2d 457, 104 S. Ct. 1908 (1984). In determining whether defendants were substantially justified, all defendants need show is that they "acted slightly more than reasonably." Synar, 670 F. Supp. at 415 (citing FEC v. Rose, 806 F.2d 1081, 1087, 256 U.S. App. D.C. 395 (D.C. Cir 1986)); Battles Farm Co., 806 F.2d at 1101 n. 11.
Defendants were substantially justified in promulgating Emergency Rule CG13-95-028 and in finalizing 33 C.F.R. § 334.1240. Defendants contend that they were unaware of the seeming loophole in 33 C.F.R. § 334.1240 that permitted swimmers access to RA2 until District Judge Dwyer ruled that the regulation did not specifically exclude swimmers from the restricted zone. Defendants enacted the emergency regulation in order to quickly close this loophole, and to safeguard the security of the Shipyard and prevent any risk to those persons who might swim into the restricted zone. The need to immediately close this loophole in the regulation was urgent enough to justify enacting an emergency regulation. Defendants reinforced their position by declaring that the regulation would expire on September 9, 1995, and that a notice and comment period would then ensue for the proposed amended regulation. The Court concludes that defendants meet the burden of showing that they acted at least "slightly more than reasonably" in enacting Emergency Rule CG13-95-028. Therefore, even if plaintiffs could be found to be the prevailing party, defendants were substantially justified in their position and plaintiffs should be denied attorney fees. 28 U.S.C. § 2412; Synar, 670 F. Supp. at 415.
For the reasons stated above, the Court denies plaintiffs' motion for attorney fees. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: JUL 31 1996
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that plaintiffs' motion for attorney fees is denied.
Stanley S. Harris
United States District Judge
Date: JUL 31 1996