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National Law Center on Homelessness and Poverty v. United States Department of Veteran Affairs

United States District Court, District Circuit

December 18, 2013



Royce C. Lamberth, U.S. District Judge

Before the Court is plaintiff National Law Center on Homelessness and Poverty’s (NLCHP) Motion [651] for Attorney Fees and the response and reply thereto. For the reasons below, the Court awards NLCHP with $450, 329.52, or 7/8 (87.5%) of the fees it seeks.


Title V of the Stewart B. McKinney Homeless Assistance Act of 1987 (“McKinney Act”) requires federal agencies to make their unneeded property available for use by the homeless. 42 U.S.C. § 11411. In 1988, NLCHP sued various federal agencies for violating the Act. Judge Gasch entered permanent injunctive relief imposing requirements on the defendants beyond those mandated under the statute (at the time). NLCHP v. U.S. Veterans Admin., 1988 WL 136958 (D.D.C. Dec. 15, 1988). The Court subsequently modified and updated the Order on several occasions, most recently in 1993. See NLCHP v. U.S. Veterans Admin., 819 F.Supp. 69 (D.D.C. 1993). The Order, as amended and consolidated in the 1993 opinion, now overlaps substantially with the statute (as amended).

Two decades later, the defendants moved to vacate the 1993 Order. ECF No. 568. After this Court compelled discovery, NLCHP v. U.S. Dep’t of Veterans Affairs, 842 F.Supp.2d 127 (D.D.C. 2012), widespread and longstanding violations of the McKinney Act were revealed. The main violation, and the one at the center of this Motion for Attorney Fees, was “landbanking, ” which occurs when “[l]andholding agencies . . . hid[e] potentially eligible properties from the Title V process.” NLCHP v. U.S. Dep’t of Veterans Affairs, 931 F.Supp.2d 167, 174 (D.D.C. 2013).

On the merits of the Motion to Vacate, the defendants, without contesting the assertion that landbanking occurred, argued that landbanking is irrelevant to whether the defendants had been complying with the McKinney Act and 1993 Order because “the landbanking agencies’ initial ‘property designation decisions are committed to agency discretion by law.’” Id. This Court disagreed, denied the defendants’ Motion to Vacate, and granted NLCHP’s Motion [622] to Enforce and Modify the 1993 Order to explicitly address landbanking. Id. at 173–77.

Following victory on the merits, NLCHP moved this Court for an award of attorneys’ fees totaling $514, 662.31 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. To resolve the threshold issue of whether NLCHP is entitled to any fees at all, the Court must address the defendants’ argument on the merits. Because the Court finds that their litigation position was not substantially justified, NLCHP is entitled to attorneys’ fees. In this case, the Court awards $450, 329.52.


A party that prevails against the United States in an EAJA case is entitled to attorneys’ fees and expenses “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). The phrase “position of the United States” includes both the underlying agency action and the United States’ litigation position. § 2412(d)(2)(D). The position is “substantially justified” if it is “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The United States bears the burden to show that its position was substantially justified. F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 595 (D.C. Cir. 1996).


a. The defendants’ position was not substantially justified.

Characteristics of substantially justified positions include a reasonable interpretation of statutory text and consistency with the underlying policies. See Blitz v. Donovan, 740 F.2d 1241, 1244–47 (D.C. Cir. 1984). In Blitz, the Court of Appeals considered whether a narrow interpretation of a provision restricting participation in programs funded by the Comprehensive Employment and Training Act was substantially justified even though it did not win on the merits. Id. Specifically, the defendant argued on the merits that the provision that prohibited funds “for the participation of individuals who publicly advocate the violent overthrow of the Federal Government” applied only to those who incite imminent unlawful action. Id. at 1244. Noting that the defendant’s interpretation “avoided constitutional concerns, ” id. at 1246, the Court of Appeals reversed the district court, holding that the position was substantially justified because it “complied with sound canons of statutory interpretation, had some support in the legislative history, and contradicted no definitive congressional purpose, ” id. at 1247.

By contrast, when a position would lead to inconsistent results and thwart congressional intent, it is likely not substantially justified. See Vollmer, 102 F.3d at 595–98. In Vollmer, the defendant had argued that “[a]lthough a brand new semiautomatic receiver may legally be possessed and transferred, . . . a semiautomatic receiver that has been modified into a machinegun receiver and then restored to its original semiautomatic state may not be possessed or transferred, even though its reconfiguration makes it indistinguishable from a brand new semiautomatic.” Id. at 596. Reversing the district court, the Court of Appeals held that there was “no reasonable basis” for that interpretation because of its “inconsistency.” Id. at 598. On top of that, the Court noted that the once-a-machine-gun-always-a-machine-gun interpretation arguably conflicted with Congress’s intent (prior to 1994) to permit the transfer of semiautomatics. Id. at 597.

In some cases, a finding that an area of law is unsettled may lead to a holding that a particular position in that area is substantially justified. See Hill v. Gould, 555 F.3d 1003, 1006– 09 (D.C. Cir. 2009). In Hill, the Court of Appeals affirmed a holding that the defendant’s position on the meaning of “migratory bird” in the Treaty Act—specifically, that it did not apply to birds not native to North America—was substantially justified. Id. at 1006. Finding that there was “nothing unusual or unsound” about the defendant’s interpretation, the Court noted that it also did not “suffer from the defects common to positions that are not substantially justified. It was not flatly at odds with the controlling case law, and ...

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