The opinion of the court was delivered by: Thomas F. Hogan, Chief Judge.
On November 17,1998, Truckers United for Safety ("TUFS"), a
nonprofit organization of motor carriers, and the individually
named companies, filed suit in this Court alleging that the DOT
OIG lacked legal authority to engage in the particular
compliance review investigations conducted in conjunction with
the DOT's Office of Motor Carriers ("OMC"). Plaintiffs sought a
preliminary injunction and declaratory relief because, they
argued, the DOT IG was not authorized to engage in DOT
operations, specifically criminal investigations of standard
compliance with federal motor carrier safety regulations.
Plaintiffs also sought the return of any seized materials that
had not already been returned by the Government. Defendant filed
a motion for summary judgment, asserting that TUFS lacked
standing and that the DOT OIG acted within its authority in
authorizing the investigations.
On March 1, 2000, this Court granted defendant's motion to
dismiss the organizational plaintiff, granted defendant's motion
for summary judgment denied plaintiffs' motion for class
certification, and denied plaintiffs' motion for a preliminary
injunction. This Court found that the Inspector General Act did
not authorize the DOT IG to conduct investigations into motor
carrier compliance. As a result the IG had no authority to
search plaintiffs' premises or seize their records. However,
this Court found that the Motor Carrier Safety Improvement Act
of 1999 ("MCSIA"), signed into law subsequent to the filing of
plaintiffs' action, amended the Inspector General Act ("IGA"),
and constituted a new grant of authority broad enough to
encompass the kind of investigations at issue here. Although the
OIG did not have the authority to investigate plaintiffs as part
of a compliance review in 1998, the MCSIA had given the IG
authority to do so in the future. Plaintiffs appealed.
The Court of Appeals for the District of Columbia Circuit
agreed with this Court's analysis of the IGA, but held that the
IG violated the IGA when he conducted the disputed
investigations and seizures of plaintiffs records in 1998, and
that the MCSIA of 1999 did not retroactively authorize
investigations that were ultra vires when conducted. The court
further held that plaintiffs were entitled to return of records
and other property seized from them during the IG's ultra
vires investigations and seizures. Defendant filed a petition
for rehearing on the specific issue of the return of all records
— this was denied. On July 5, 2001, plaintiffs filed the instant
motion for attorney fees and costs under the EAJA.
The EAJA states as follows:
Except as otherwise specifically provided by statute,
a court shall award to a prevailing party . . . fees
and other expenses, in addition to any costs . . .
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).
I. Substantially Justified
Under the statute, a court shall award "fees and other
expenses" to a party that has prevailed in a civil action
against an official of the United States acting in his or her
official capacity unless the position of the United States was
"substantially justified." 28 U.S.C. § 2412(d)(1)(A). The
Government bears the burden of proving that its position, both
in the underlying agency action and the arguments defending the
action in court, were substantially justified. See Cinciarelli
v. Reagan, 729 F.2d 801, 806 (D.C.Cir. 1984). The Supreme Court
has interpreted "substantially justified" to mean, "not
justified to a high degree, but rather justified in substance or
in the main — that is, justified to a degree that could satisfy
the reasonable person." Pierce v. Underwood, 487 U.S. 552,
565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). This means the
Government must prove that the position had "a reasonable basis
in law and fact." Air Transport Association of Canada v.
Federal Aviation Administration, 156 F.3d 1329, 1332 (D.C.Cir.
1998) (quoting Pierce, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541,
101 L.Ed.2d 490 (1988)). Courts have interpreted this to mean
that government bears the burden of demonstrating that both the
underlying agency action and the litigation positions were
substantially justified. See Halverson v. Slater,
206 F.3d 1205, 1208 (D.C.Cir. 2000); Nat'l Assoc. of Mfrs. v. United
States Department of Labor, 962 F. Supp. 191, 196 (D.C. 1997).
In this case, the Court finds that the IG was not
substantially justified in its actions, and, therefore, the
issue of whether the Government was substantially justified in
its litigation position need not be discussed in detail.
Further, a court's merits reasoning is not necessarily
determinative of the issue of substantial justification and the
inquiry into the reasonableness of the Government's position may
not be collapsed into antecedent evaluation on the merits. See
Halverson, at 1208. Therefore, even in cases such as this,
where the district court previously accepted the Government's
position, or, a portion of ...