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NUCLEAR MILITARY MONITORING v. PERRY

July 31, 1996

NUCLEAR MILITARY MONITORING, et al., Plaintiffs,
v.
WILLIAM J. PERRY, Secretary of Defense, et al., Defendants.



The opinion of the court was delivered by: HARRIS

 Before the Court are plaintiffs' Motion for an Award of Attorney Fees, defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for an Award of Attorney Fees, and Plaintiffs' Reply to Defendants' Objection to the Motion for an Award of Attorney Fees. Upon consideration of the entire record, the Court denies plaintiffs' motion for an award of attorney fees.

 BACKGROUND

 The facts of this case are fully set out in the Court's Opinion of July 31, 1995, which denied plaintiffs' motion for a preliminary injunction. *fn1" In brief: plaintiffs Norman Buske and an organization called Nuclear Military Monitoring ("NMM") had been collecting biological samples from within the Restricted Area 2 ("RA2") in the Sinclair Inlet of Puget Sound to measure whether Puget Sound Naval Station ("PSNS") had been discharging more radioactive material into the Inlet than Naval safety standards allowed. At the time plaintiffs began collecting samples from RA2, PSNS was a restricted-access area into which vessels were not allowed to enter absent prior permission from the Navy. According to the language of 33 C.F.R. § 334.1240 (1995), swimmers, divers, and other individuals not embarked on vessels could enter RA2. *fn2" Plaintiffs collected the samples from RA2 by dispatching a boat to an area adjacent to the restricted-access site, with Buske's then swimming into RA2 to collect the samples. Generally, plaintiffs notified the Navy before swimming into RA2. Occasionally, the Navy would escort plaintiffs into the Inlet and would share the samples for its own research.

 On September 22, 1994, and again on September 30, 1994, plaintiff Buske was detained by defendants when he swam into RA2 to gather biological samples. Plaintiff was tried in federal district court in Oregon on May 23, 1995, for a violation of 18 U.S.C. § 1382. He was acquitted of all charges against him by United States District Judge William L. Dwyer, who noted that 33 C.F.R. § 334.1240 explicitly excluded "vessels" from RA2, but did not explicitly preclude "swimmers" from entering RA2. On May 24, 1995, plaintiff took samples once again in RA2, escorted by Department of Defense and Navy personnel. Plaintiff subsequently gave notice to defendants that he planned to conduct a follow-up study on June 13, 1995. On June 12, 1995, the local office of the Coast Guard published an emergency regulation, CGD13-95-028, establishing a combined security and safety zone on the waters surrounding the Shipyard. This emergency regulation, according to defendants, closed the loophole which previously allowed swimmers to enter RA2. Plaintiff was served with written notice on June 13, 1995, that he could be charged with a felony if he entered RA2.

 In response, on July 10, 1995, plaintiffs filed a motion for a temporary restraining order and a preliminary injunction to prevent defendants from enforcing the emergency regulation. The Court denied both motions.

 On July 12, 1995, representatives from the Environmental Protection Agency ("EPA") and the Washington State Department of Health accompanied the head of the Shipyard's Radiological Monitoring Branch to take biological samples in RA2. *fn3" On July 13, 1995, plaintiff Buske was escorted by the head of the Radiological Monitoring Branch and was permitted to take biological samples in waters immediately outside RA2 and from a land area of the Shipyard. *fn4"

 On August 21, 1995, the Army Corps of Engineers ("Corps") issued an interim final rule amending 33 C.F.R. § 334.1240 to prohibit swimmers and other persons, in addition to vessels, from entering the restricted area without authorization. In the Federal Register notice accompanying the rule, the Corps invited written comments and set a deadline of October 20, 1995, to receive all comments. On October 19, 1995, the Government Accountability Project submitted its comments to the Corps. *fn5" On January 22, 1996, plaintiffs filed a second motion for a preliminary injunction. After considering all comments, the Corps decided to adopt the interim final rule as a final rule without modification. 61 Fed. Reg. 2117 (Jan. 25, 1996). On March 1, 1996, plaintiffs filed a motion to dismiss their motion for a preliminary injunction and their complaint on the grounds that the Corps' completion of the rulemaking process in amending 33 C.F.R. § 334.1240 mooted their action. The Court granted plaintiffs' motion to dismiss on March 18, 1996. Plaintiffs had specifically reserved the right to file a motion for attorney fees, and on April 17, 1996, plaintiffs filed their motion for an award of attorney fees under the Equal Access to Justice Act.

 DISCUSSION

 Under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, the party seeking fees must first establish that it was the prevailing party. Public Citizen Health Research Group v. Young, 285 U.S. App. D.C. 307, 909 F.2d 546, 549 (D.C. Cir. 1990). This Circuit employs a two-prong test to determine "prevailing party" status. Center for Auto Safety v. Dole, 595 F. Supp. 98, 101 (D.D.C. 1984). First, plaintiff must substantially receive the relief sought, and second, plaintiff's lawsuit must have contributed to that relief. Id. According to the EAJA, if, and only if, the party makes this showing, the burden shifts to the government to show that its position was substantially justified. 28 U.S.C. § 2412; Synar v. U.S., 670 F. Supp. 410, 415 (D.D.C. 1987). The D.C. Circuit has held that "the position of the United States is substantially justified if it acted slightly more than reasonably." Id. (citing FEC v. Rose, 806 F.2d 1081, 256 U.S. App. D.C. 395 (D.C. Cir 1986)). *fn6"

 Plaintiffs are required to establish that they are the prevailing parties in the lawsuit in order to be awarded attorney fees. 28 U.S.C. § 2412. Although "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief," Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980), the party must have nonetheless received a significant part of the relief sought. Lundin v. Mecham, 299 U.S. App. D.C. 7, 980 F.2d 1450, 1457 (D.C. Cir. 1992). Plaintiffs sought a temporary restraining order and a preliminary injunction to stop enforcement of Emergency Rule CG13-95-028, arguing that it interfered with their constitutional rights and did not comply with proper rulemaking requirements. Plaintiffs claim that although the Court denied the motions for a temporary restraining order and a preliminary injunction, during the litigation defendants took several actions in response to plaintiffs' filings that demonstrate that plaintiffs ultimately succeeded in this matter. However, plaintiffs fail to show that they have "substantially received" the relief that was sought. See Center for Auto Safety, 595 F. Supp. at 101.

 A. Constitutional Rights

 Plaintiffs argued that their constitutional right to travel and their First Amendment right to freedom of speech were violated by defendants' allegedly unlawful emergency regulation. Plaintiffs asserted that defendants' emergency regulation was a grossly unconstitutional prior restraint on plaintiffs' attempts to study RA2 and an impermissible attempt to suppress plaintiffs' right to publish information pertinent to public health and safety. However, defendants' reasons for excluding plaintiffs were not based on the content of plaintiffs' speech. While plaintiffs clearly have the right to publish whatever they like, the government is not required to permit them free entry into restricted-access zones to allow them to gather whatever data they choose. Elrod v. Burns, 427 U.S. 347, 373-74 & n. 29, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (citing New York Times Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971)); Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 21 L. Ed. 2d 325, 89 S. Ct. 347 (1969); Zemel v. Rusk, 381 U.S. 1, 17, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965). For similar reasons, plaintiffs' right-to-travel argument fails; while plaintiffs have the right to travel on public land, they have no right to access quasi-public, ...


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