Mickelsen Farms, LLC et al v. Animal and Plant Health Inspection Service (APHIS) et al

Filing 113

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs Motion for Attorney Fees (Dkt. 104 ) is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICKELSEN FARMS, LLC, et al.,
Plaintiffs,

Case No. 1:15-cv-00143-EJL-CWD

v.

MEMORANDUM DECISION AND
ORDER

ANIMAL AND PLANT HEALTH
INSPECTION SERVICES, et al.,
Defendants.

INTRODUCTION
Before the Court in the above entitled matter is Plaintiff, Mickelsen Farms, LLC’s,
Motion for Award of Attorney Fees and Other Expenses Under the Equal Access to Justice
Act. (Dkt. 104.) The Motion has been fully briefed and is ripe for the Court’s consideration.
Having reviewed the record herein, the Court finds the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
delay, and because the Court conclusively finds that the decisional process would not be
significantly aided by oral argument, the Motion is decided on the record.

ORDER - 1

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are a number of entities and individuals who farm potatoes in southeastern
Idaho. In April of 2006, Pale Cyst Nematode (PCN), Globodera Pallida, 1 was detected in
the soil of a number of fields that raised potato crops in eastern Idaho. As a result, the
Animal and Plant Health Inspection Services (APHIS) 2 published an Interim Rule and later
adopted a Final Rule which provided regulations for the designation and quarantining of
fields in Idaho as well as Deregulation Protocols. The Idaho State Department of
Agriculture (ISDA) adopted rules and procedures that parallel APHIS’s and assisted
APHIS in implementing its Interim and Final Rules.
The Plaintiffs filed this action against the federal and state Defendants challenging
the issuance and implementation of the Interim Rule and Final Rule. (Dkt. 1.) 3 Specifically,
Plaintiffs claimed the federal Defendants violated the Administrative Procedure Act
(APA), 5 U.S.C. §§ 553, 701-706; the Plant Protection Act (PPA), 7 U.S.C. §§ 7701 and
7786; the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II, §§ 1-16; the

1

PCN is a pest of potato crops which can reduce the potato yields through root damage but poses
no threat to human health.
2

APHIS is a federal agency within the United States Department of Agriculture responsible for
ensuring compliance with the federal statutes raised in this action.
3

The named federal Defendants include APHIS; Kevin Shea, the Administrator of APHIS; Brian
Marschman, the Idaho Plant Health Director for APHIS; Tina Gresham, Director of PCN Program
for APHIS; and Tom Vilsack, the United States Secretary of Agriculture. The named state
Defendants are ISDA and Celia R. Gould, the Director of ISDA. All of the individually named
persons are being sued in their official capacities.

ORDER - 2

National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-70; and the Tenth
Amendment of the United States Constitution. As to the state Defendants, the Plaintiffs
claimed the ISDA failed to comply with its legal obligations under the Idaho Plant Pest Act
(Idaho PPA), Idaho Code §§ 22-2001 to 22-2023; the Idaho Administrative Procedures Act
(Idaho APA), Idaho Code §§ 67-5101 to 67-5292; and Idaho’s Rules Governing the PCN
(Idaho PCN Rules), IDAPA 02.06.10. In general, Plaintiffs claimed the state and federal
Defendants’ actions were arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. Plaintiffs requested vacatur of the Final Rule and Deregulation
Protocols as well as declaratory and injunctive relief ending the quarantine and regulation
of Plaintiffs’ potato fields and prohibiting the agency from relying on the working group’s
recommendations in future agency decisions. (Dkt. 1 and Dkt. 85 at 5, n. 7.)
The Court granted the state Defendants’ Motion to Dismiss. (Dkt. 35.) The parties
stipulated to voluntary dismissal of the claims brought by certain of the plaintiffs. (Dkt.
47.) Thereafter, the remaining Plaintiffs and federal Defendants filed cross Motions for
Summary Judgment. (Dkt. 75, 84.) The Court granted in part and denied in part each of the
parties’ Motions. (Dkt. 95.) Specifically, the Court found Plaintiffs waived two of their
APA claims at summary judgment, granted Plaintiffs summary judgment on the FACA
claim and the remaining APA claim, and granted summary judgment to the federal
Defendants on the NEPA and Tenth Amendment claims. (Dkt. 95.) The Court remanded
the matter to the agency with instructions directing the agency to make available, at
Plaintiffs’ request, all past recommendations and/or information produced by the working
ORDER - 3

group; prohibited defendants from relying on any past recommendations or findings of the
working group; and directed the agency to comply with FACA’s procedural requirements
in the future. (Dkt. 95.)
Defendants filed a Motion for Reconsideration requesting review of a portion of the
Court’s Order on summary judgment asking to limit or clarify the relief granted to
Plaintiffs. (Dkt. 96.) The Court granted the Motion and clarified that the relief afforded to
Plaintiffs in its summary judgment ruling is limited to prospective relief on the FACA
claim, stating that Plaintiffs “may only challenge future agency decisions, actions, rules, or
protocols” but they “cannot retrospectively challenge any agency actions or decisions predating the Court’s Order on summary judgments….” (Dkt. 99.) The Court went on to state
that “Defendants are prohibited from relying on any past recommendations and/or findings
of the TWG in any future agency decisions or actions” and directed Defendants to make
past TWG materials available to the Plaintiffs. (Dkt. 99.)
Judgment was entered on November 28, 2018. (Dkt. 103.) On February 25, 2019,
Plaintiffs filed the instant Motion for Attorney Fees and Expenses which the Court now
takes up. (Dkt. 104.)
STANDARD OF LAW
The Equal Access to Justice Act (EAJA) provides that a court “shall award”
attorneys’ fees to a “prevailing party other than the United States ... 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). Fees and other expenses
ORDER - 4

include “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). If the government’s
position is not substantially justified, it is within the Court's discretion under the EAJA to
determine what fees are reasonable. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 160-61
(1990).
To be entitled to an award of fees, therefore, the EAJA requires that: 1) the claimant
be a prevailing party; 2) the claimant be eligible for an award; 3) the Government’s position
was not substantially justified; 4) no special circumstances make an award unjust; and 5)
the fee application must be timely submitted and be supported by an itemized statement.
See 28 U.S.C. § 2412; Ibrahim v. United States Dept. of Homeland Security, 912 F.3d 1147,
1167 (9th Cir. 2019) (quoting Jean, 496 U.S. at 158).
Plaintiffs’ Motion for Attorney Fees in this case is timely and complete. 28 U.S.C.
§§ 2412(d)(1)(B); (2)(G); (Dkt. 104.) The parties dispute the remaining requirements for
attorney fees and whether the requested fees are reasonable.
DISCUSSION
1.

Prevailing Party
A party is considered a “prevailing party” under the EAJA when: (1) it achieves

relief on the merits of its claim; (2) the relief received materially alters the legal relationship
of the parties by modifying the defendant’s behavior in a way that directly benefits
plaintiff; and (3) the relief is accompanied by “judicial imprimatur on the change.”
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Human Res., 532
U.S. 598, 604-605 (2001); Perez–Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002)
ORDER - 5

(applying Buckhannon definition of “prevailing party” to EAJA). A party need not succeed
on all of its claims; rather, prevailing party status looks to whether the party “succeed[ed]
on any significant issue in litigation which achieve[d] some of the benefit the parties sought
in bringing suit.” United States v. Real Prop. Known as 22249 Dolorosa St., Woodland
Hills, Cal., 190 F.3d 977, 981 (9th Cir. 1999).
“A material alteration of the parties’ legal relationship occurs when ‘the plaintiff
can force the defendant to do something he [or she] otherwise would not have to do.’”
Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 716 (9th Cir. 2013) (quoting Fischer
v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000)). “Judicial imprimatur can come in
the form of an enforceable judgment on the merits or a court-ordered consent decree…, but
those are not the exclusive means of satisfying the requirement.” Higher Taste, 717 F.3d
at 715. “Other court-approved actions will suffice, provided they entail a judicial
determination that the claims on which the plaintiff obtains relief are potentially
meritorious.” Id. (citing Buckhannon, 532 U.S. at 606).
Here, Plaintiffs are the prevailing party on the APA rulemaking requirements claim
and the FACA claim. (Dkt. 95.) While the Court denied much of the relief requested by
Plaintiffs, the Court did award Plaintiffs some relief on these two claims by ordering
Defendants to provide the requisite public notice and commenting on the Deregulation
Protocols and to make available to Plaintiffs all past recommendations and/or information
produced by the working group and prohibiting Defendants from relying on any past
recommendations or findings of the working group in the future. (Dkt. 95.) That relief
ORDER - 6

materially altered the parties’ legal relationship and was accompanied by judicial
imprimatur. Plaintiffs are, therefore, the prevailing party on two of their claims.
2.

Substantial Justification
Despite being a prevailing party, attorney’s fees are not granted if the government

can show that its positions were substantially justified or special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A). Substantially justified means “‘justified in
substance or in the main’—that is, justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Ninth Circuit and the vast
majority of courts of appeals require a reasonable basis both in law and fact supporting the
government’s position. Id. “Put another way, substantially justified means that there is a
dispute over which reasonable minds could differ.” Gonzales v. Free Speech Coalition,
408 F.3d 613, 618 (9th Cir. 2005) (quoting League of Women Voters of California v. FCC,
798 F.2d 1255, 1260 (9th Cir. 1986)).
“The government has the burden of demonstrating substantial justification.” Oregon
Nat. Res. Council v. Madigan, 980 F.2d 1330, 1331 (9th Cir. 1992). “To establish
substantial justification, the government need not establish that it was correct or ‘justified
to a high degree’…but only that its position is one that ‘a reasonable person could think it
correct, that is, [that the position] has a reasonable basis in law and fact.’” Ibrahim v. U.S.
Dept. of Homeland Security, 912 F.3d 1147, 1167-68 (9th Cir. 2019) (quoting Pierce v.
Underwood, 487 U.S. 552, 565, 566 n.2 (1988)); see also Gonzales, 408 F.3d at 618

ORDER - 7

(Substantially justified means “justified in substance or in the main—that is, justified to a
degree that could satisfy a reasonable person.”).
“That the government lost (on some issues) does not raise a presumption that its
position was not substantially justified.” Ibrahim, 912 F.3d at 1168; Pierce, 487 U.S. at
569 (stating that the government “could take a position that is substantially justified, yet
lose”). The Court must “consider whether the government’s position ‘as a whole’ has ‘a
reasonable basis in both law and fact.’” Id. (citations omitted). In making this
determination, the Ninth Circuit has directed:
When evaluating the government’s “position” under the EAJA, we consider
both the government’s litigation position and the “action or failure to act by
the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(1)(B).
Thus, the substantial justification test is comprised of two inquiries, one
directed toward the government agency’s conduct, and the other toward the
government’s attorneys’ conduct during litigation. See Gutierrez v.
Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001). The test is an inclusive one;
we consider whether the government’s position “as a whole” has “a
reasonable basis in both law and fact.” Id. at 1258, 1261; see also Meier v.
Colvin, 727 F.3d 867, 870 (9th Cir. 2013).
Ibrahim, 912 F.3d at 1168; see also League of Women Voters, 798 F.2d at 1258 (“In
analyzing the reasonableness of the government’s position under the ‘totality of the
circumstances’ test, we must look both to the position asserted by the government in the
trial court as well as the nature of the underlying government action at issue.”). To
determine whether the government’s position was substantially justified, the Court must
take into account the totality of the circumstances. Bullfrog Films, Inc. v. Wick, 959 F.2d
782, 784 (9th Cir. 1992). Not every regulation violation renders an agency’s action
ORDER - 8

unreasonable. Meinhold v. United States Dept. of Defense, 123 F.3d 1275, 1278 (9th
Cir.1997). “The government may avoid EAJA fees if it can prove that the regulation it
violated was ambiguous, complex, or required exceptional analysis.” Id.
Here, Defendants argue their position, on whole, was substantially justified.
Defendants maintain the agency’s actions underlying the lawsuit were done on an
emergency basis to stop the spread of PCN and preserve consumer confidence and that the
agency’s litigation position was reasonable and necessary in order to defend against
Plaintiffs’ attempt to immediately end the quarantine and regulation of the potato fields.
(Dkt. 109.) Plaintiffs assert the agency’s conduct was not substantially justified because it
established and utilized the working group as an advisory committee without satisfying
FACA’s mandatory procedural requirements. (Dkt. 104, 112.)
The Court finds the Defendants’ position, on whole, both as to the underlying
actions and during litigation, had a reasonable basis in law and fact and was substantially
justified. The agency had to respond quickly to the discovery of PCN in the Idaho potato
fields in order to minimize the wide-ranging fallout that could have occurred. The agency’s
actions in doing so were reasonable and necessary to address and minimize the impact of
the PCN discovery. For the same reasons, the agency’s litigation position was also
reasonable and substantially justified. While the emergent nature of the circumstances may
have abated by the time this litigation ensued, the concerns necessitating the agency’s
response remained. (Dkt. 95.) Had Plaintiffs obtained the full relief they sought in this case
– i.e., lifting the quarantine and regulations of the fields – the likely consequences of that
ORDER - 9

relief would have resulted in the same far-reaching negative impacts on Idaho’s potato
industry that the agency was attempting to thwart by acting quickly to confine prior to this
case being filed. (Dkt. 95.) Notably, the federal Defendants also had sufficient facts and
supportable legal arguments to prevail on the NEPA and Tenth Amendment claims. On
those claims where the agency did not prevail, the violations were procedural. The Court
does not minimize those violations but does find that, given the circumstances, the agency’s
actions, on whole, were substantially justified and their position with regard to the
procedural requirements of the APA and FACA were reasonable in both law and fact.
In sum, the Defendants’ position, on whole, was reasonable and legally and factually
supported. (Dkt. 95.) Although the Court ultimately concluded the Defendants had violated
particular procedural requirements, that conclusion required exceptional analysis as
evidenced by the Court’s forty-three page decision on the motions for summary judgment.
Meinhold, 123 F.3d at 1278 (The government may avoid EAJA fees if it can prove that the
regulation it violated was ambiguous, complex, or required exceptional analysis.) Having
conducted that lengthy analysis and being intimately familiar with the record in this case,
and based on the entire record, the Court finds Defendants’ underlying actions and
litigation positions both had a reasonable basis in law and fact and were substantially
justified. Accordingly, Plaintiffs’ motion for attorneys’ fees and expenses under the EAJA
is denied.
3.

Special Circumstances

ORDER - 10

Even if substantial justification did not exist, the Court would deny the motion
because the special circumstances of this case make an award of attorney fees unjust.
A Court may not award attorney’s fees under the Equal Access to Justice Access
where “special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The
government bears the burden of showing that special circumstances exist to make an award
unjust. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
The “special circumstances” exception to the mandatory award of attorney fees
when the government’s position was not substantially justified was developed to ensure
that the government is not deterred from advancing good faith but novel legal arguments
and to protect the court’s discretion to rely on equitable factors in denying a fee award.
Abela v. Gustafson, 888 F.2d 1258, 1266 (9th Cir. 1989) (citing H.R. Rep. No. 96–1418 at
11 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4953, 4990).4 The EAJA thus explicitly
directs a court to apply traditional equitable principles in ruling upon an application for
counsel fees by a prevailing party. The exception “should only be invoked with caution”
Lucas v. White, 63 F. Supp. 2d 1046, 1056 (N.D. Cal. 1999).

4

The House Report accompanying the EAJA states:
Furthermore, the Government should not be held liable where special
circumstances would make an award unjust. This “safety valve” helps to insure that
the Government is not deterred from advancing in good faith the novel but credible
extensions and interpretations of the law that often underlie vigorous enforcement
efforts. It also gives the court discretion to deny awards where equitable
considerations dictate an award should not be made.
H.R.Rep. No. 1418, 96th Cong., 2d Sess. at 11, reprinted in 1980 U.S. Code Cong. & Ad. News,
4953, 4984, 4990.

ORDER - 11

This case is one of the exceptions where special circumstances exist. Here, the
agency was required to act quickly to address the discovery of PCN in the potato fields in
eastern Idaho and minimize the potential ramifications from that discovery. As discussed
in the Court’s order on summary judgment, which is incorporated herein, the consequences
of discovering PCN in Idaho potato fields were real, far-reaching, and wide-ranging. (Dkt.
95.) The agencies, both state and federal, acted reasonably and expeditiously to address
and minimize those impacts. Those actions benefited the entire potato industry in Idaho,
including Plaintiffs. While the agency violated certain procedural processes, the
overarching thrust of the agency’s actions both prior to and during this litigation were
reasonable and necessary to address the special circumstances presented by the discovery
of PCN in certain potato fields. The motion for attorney fees and costs under the EAJA is
denied.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs’ Motion for
Attorney Fees (Dkt. 104) is DENIED.

November 14, 2019

ORDER - 12