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March 26, 2002


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 ...

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