Ninth Circuit Finds No Fee Entitlement to Citizens Group Under Buckhannon.
This next one is for you federal practitioners, determining a very narrow fee entitlement issue under the Equal Access to Justice Act, 28 U.S.C. sec. 2412(d)(1)(A) (EAJA). Do not snooze, anyone out there if this is outside your realm of interest, because we do cater to your area at other times—instances outside the zone of interest for others.
EAJA directs district courts to award attorney’s fees to “a prevailing party” in qualifying civil actions against the United States respecting review of agency actions. The United States Supreme Court, in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 603 (2001), determined that this meant the party must have some formal judgment or consent decree favorably entered in order to prevail—although it did not draw the lines that tightly.
The Ninth Circuit confronted applying Buckhannon in a very peculiar context. The majority found there was no prevailing party, although the dissent disagreed based on the vagaries not addressed in Buckhannon.
In Citizens for Better Forestry v. U.S.D.A., Case No. 07-16077 (9th Cir. June 9, 2009) (for publication), a public interest group sued under various federal environmental statutes alleging that the USDA was wrong in promulgating new rules for the management of the National Forest System lands. USDA announced it would promulgate a new rule shortly after commencement of the litigation, and the Ninth Circuit reversed an adverse standing ruling in summary judgment proceedings brought by the public interest group in the ongoing federal action. USDA then issued a new final rule, and public interest group dismissed its case and moved for EAJA fees. The district court awarded attorney’s fees to the public interest group, with USDA appealing the award.
The Forest Ranger. c1913. Library of Congress.
USDA won a reversal on appeal.
Although both the majority and dissenting opinions are technical and well written, the majority determined that the public interest group did not obtain enough of a formal adjudication, such as a judgment or consent decree settlement. Favorable language or results is not enough, the Ninth Circuit majority held in its interpretation of Buckhannon.
In dissent, Circuit Judge Hug argued that the end result was the “functional equivalent” of a declaratory relief judgment favorable to the public interest group, entitling them to fees.
Although addressing a highly technical fee-shifting statute, this case teaches that, sometimes, the form of relief is determinative on appeal.