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Boardley v. United States Dept. of Interior

United States District Court, District of Columbia

February 7, 2013

Michael BOARDLEY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF the INTERIOR, et al., Defendants.

Page 2

Jordan Woodard Lorence, Alliance Defense Fund, Washington, DC, Heather G. Hacker, Timothy D. Chandler, Alliance Defense Fund, Folsom, CA, Kevin H. Theriot, Alliance Defense Fund, Leawood, KS, for Plaintiff.

Robin Michelle Meriweather, Assistant United States Attorney, Washington, DC, for Defendants.

OPINION & ORDER [Resolving Doc. 64.]

JAMES S. GWIN,[1] District Judge:

Plaintiff Michael Boardley seeks a judgment for costs and attorney expenses after his successful First-Amendment challenge

Page 3

to regulations promulgated by the Department of the Interior. [Doc. 64.] For the following reasons, the Court GRANTS the motion in part, and DENIES it in part.

I.

Plaintiff Michael Boardley " filed this action, seeking a declaration that the [National Park Service] regulations are unconstitutional and violative of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, on their face and as applied to him." Boardley v. U.S. Dep't of Interior, 615 F.3d 508, 512-13 (D.C.Cir.2010).

As the Court of Appeals interpreted the regulations,

[t]he two regulations challenged here govern " [p]ublic assemblies, meetings," 36 C.F.R. § 2.51, and the " [s]ale or distribution of printed matter," id. § 2.52, within the national parks.... First, they call for the designation of what the government calls " free speech areas." ... Second, the regulations prohibit " [p]ublic assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views" and " [t]he sale or distribution of [non-commercial] printed matter" within park areas, unless " a permit [authorizing the activity] has been issued by the superintendent." Id. §§ 2.51(a), 2.52(a).

Boardley, 615 F.3d at 512.

The Court of Appeals found the regulations fatally overboard because they applied to small groups and individuals, and even in designated free speech areas. Id. at 520-23. Noting that " neither party has argued that we should sever the regulations in order to leave part of them intact," the Court of Appeals struck them down in their entirety. Id. at 525.

Having obtained some of the relief he sought— Boardley had also sought damages— on some of his proposed bases, Boardley filed this petition for fees and costs under the Equal Access to Justice Act (" EAJA" ). [Doc. 64.]

II.

The EAJA provides in certain circumstances for award of attorney's fees and costs to a litigant who prevails in a lawsuit against the United States:

A court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
The court, in its discretion, may reduce the amount to be awarded ... or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably ...

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