UNITED STATES OF AMERICA v. JOHNSON
Filing
180
MEMORANDUM Order signed by JUDGE THOMAS D. SCHROEDER on 12/8/2015. Government's 164 motion to stay Defendant's petition for fees and costs is DENIED; Clerk's order staying consideration of bill of costs is LIFTED, Defendant's 161 motion for costs is GRANTED, and Defendant awarded $23,297.20 in costs; Defendant's 161 motion for attorney fees is DENIED.(Powell, Gloria)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
Plaintiff,
v.
TERRY S. JOHNSON, in his
official capacity as Alamance
County Sheriff,
Defendant.
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1:12-cv-1349
MEMORANDUM ORDER
THOMAS D. SCHROEDER, District Judge.
The United States (“the Government”) brought this action
against Defendant Terry S. Johnson, in his official capacity as
Sheriff of Alamance County, North Carolina, alleging that the
Alamance County Sheriff’s Office (“ACSO”) had engaged in a pattern
or practice of discriminating against Hispanics, in violation of
the
Fourth
Constitution.
and
Fourteenth
Amendments
to
the
United
States
Following trial, the court denied the Government’s
claims and entered judgment for Sheriff Johnson.
United States v.
Johnson, No. 12cv1349, 2015 WL 4715312, at *1 (M.D.N.C. Aug. 7,
2015).
Before the court now is Sheriff Johnson’s motion for
statutory attorneys’ fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, and costs as a prevailing party (Doc.
161), as well as the Government’s motion to stay consideration of
an award of fees and costs pending appeal of this court’s decision
on the merits (Doc. 164).
The motions have been fully briefed and
are ready for resolution.
For the reasons explained below, the
court finds it in the interest of judicial economy to resolve these
issues now, will award costs, but will deny Sheriff Johnson’s
motion for attorneys’ fees.
I.
BACKGROUND
The Government filed this action on December 20, 2012.
This
court denied Sheriff Johnson’s motion for judgment on the pleadings
(Doc. 19), and, following discovery, granted in part and denied in
part
cross-motions
for
summary
judgment. 1
United
States
Johnson, 28 F. Supp. 3d 499, 502 (M.D.N.C. June 20, 2014).
v.
After
a nearly two-week trial in which the Government presented twentynine fact witnesses and three expert witnesses and Sheriff Johnson
presented sixteen fact witnesses and one expert witness, this court
entered judgment in favor of Sheriff Johnson.
United States v.
Johnson, 2015 WL 4715312, at *1.
Within thirty days of the entry of judgment, Sheriff Johnson
moved for costs and attorneys’ fees under the EAJA.
(Doc. 161.)
The Government subsequently moved to stay Sheriff Johnson’s motion
for fees and costs.
(Doc. 164.)
1
At the time the motion to stay
Summary judgment was granted as to the Government’s Fourth Amendment
claim to the extent the Government sought to show that ACSO used
vehicular checkpoints for general law enforcement purposes for all county
residents, not just Hispanics, because the Government’s complaint and
litigation strategy had not provided Sheriff Johnson with sufficient
notice of that claim. United States v. Johnson, 28 F. Supp. 3d 499,
515-17 (M.D.N.C. June 20, 2014).
2
was filed, the Government had not decided whether to appeal this
court’s decision on the merits.
Accordingly, at the Government’s
request, the court stayed further action on Sheriff Johnson’s
motion for fees and costs until the deadline for the Government to
file its notice of appeal passed.
(Doc. 169.)
The court also
reset the deadlines for the Government to respond to Sheriff
Johnson’s motion for fees and costs.
(Id.)
On October 2, 2015,
the Government filed its notice of appeal (Doc. 170), and the
parties have now fully briefed all of the issues.
II.
ANALYSIS
Even though the Government has filed its notice of appeal,
neither party claims this court lacks jurisdiction to decide the
costs
and
attorneys’
independent
obligation
fees
to
issues.
ensure
But
that
this
jurisdiction
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
notice
of
appeal
transfers
jurisdiction
court
over
has
an
exists.
The filing of a
all
questions
presented in the appeal from the district court to the court of
appeals.
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982); Jankovich v. Bowen, 868 F.2d 867, 871 (6th Cir. 1989).
The purpose of this judicially-created doctrine is to “avoid the
confusion and inefficiency of two courts considering the same
issues simultaneously.”
Jankovich, 868 F.2d at 871.
Accordingly,
notwithstanding the filing of a notice of appeal, district courts
retain jurisdiction to determine collateral and ancillary matters
3
that do not affect the questions presented on appeal.
Langham-
Hill Petroleum, Inc. v. S. Fuels Co., 813 F.2d 1327, 1330—31 (4th
Cir. 1987); Weaver v. Fl. Power & Light Co., 172 F.3d 771, 773
(11th Cir. 1999).
The award of costs and attorneys’ fees have
generally been recognized as collateral issues appropriate for
resolution by the trial court when an appeal has been taken.
See
Buchanan v. Stanships, Inc., 485 U.S. 265, 268 (1988); LanghamHill Petroleum, 813 F.2d at 1331 (“[T]he request for attorney’s
fees
raised
issues
collateral
to
the
main
cause
of
action.
Attorney’s fees are not compensation for the injury giving rise to
the action and thus are not an element of relief.” (citing White
v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 452 (1982))).
Under the EAJA, a prevailing party is entitled to attorneys’
fees “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). Even though the question
of whether the Government’s suit was “substantially justified”
turns upon the same nucleus of facts as the substantive questions
that
have
been
Government’s
appealed,
appeal
does
the
not
legal
issue
place
the
is
issue
distinct.
of
The
substantial
justification before the Fourth Circuit, and, accordingly, this
court retains jurisdiction to determine it.
See United States v.
$12,248.00 in U.S. Currency, No. 86cv6768, 1989 WL 205820, at *1415 (N.D. Cal. Oct. 30, 1989) (“The question of whether claimant is
4
entitled to . . . attorney’s fees was not decided by the Court’s
. . . judgment and [cannot] properly be considered as aspects of
the case involved in plaintiff’s appeal.”).
Finally, neither party has addressed whether consideration of
the fee petition at this time is premature in a jurisdictional
sense.
Under the EAJA, a prevailing party must apply for an award
of attorneys’ fees and other expenses within thirty days of final
judgment.
28 U.S.C. § 2412(d)(1)(B).
The EAJA defines final
judgment as a judgment that “is final and not appealable, and
includes
an
order
of
settlement.”
Id.
§ 2412(d)(2)(G).
Notwithstanding this language, courts have treated fee petitions
made prior to the entry of a non-appealable judgment as timely.
McDonald v. Schweiker, 726 F.2d 311, 314 (7th Cir. 1983) (“[T]he
30-day provision in [the EAJA] was meant to establish a deadline,
not a starting point.”); Cervantez v. Sullivan, 739 F. Supp. 517,
520 (E.D. Cal. 1990) (“[T]he 30-day period was intended to operate
as a statute of limitations rather than as a jurisdictional bar to
consideration of EAJA fee applications.”).
In addition, courts
have held that fee petitions “can be granted before final judgment
is entered.”
Hunter v. Crocetti, No. 00cv2189, 2000 WL 33249939,
at *2 (D. Md. Sept. 28, 2000) (citing Gonzalez v. United States,
44 Fed. Cl. 764, 767-68 (Fed. Cl. 1999)); see, e.g., Cervantez,
739 F. Supp. at 518-520; League for Coastal Prot. v. Kempthorne,
No. 05cv0991, 2006 WL 3797911, at *4-5 (N.D. Cal. Dec. 22, 2006).
5
This approach is consistent with the legislative history of the
EAJA, which contemplates interim fee awards.
H.R. Rep. No. 99-
120(I), at 18 n.26 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 146
n.26 (“A similar analysis applies in direct appeal cases.
petitions may be filed before a ‘final judgment.’
Fee
If the Court
determines that an award of interim fees is inappropriate the
petition should be treated as if it were filed during the thirtyday period following the final decision.”) Accordingly, this court
has jurisdiction to consider Sheriff Johnson’s fee petition at
this time.
A.
See Cervantez, 739 F. Supp. at 519-20.
The Government’s Motion to Stay
The Government argues that staying consideration of Sheriff
Johnson’s request for costs and fees pending appeal would promote
judicial economy.
However, the opposite appears to be the case
here, as a stay would create a risk of piecemeal litigation.
Langham-Hill Petroleum, 813 F.2d at 1331 (“Piece-meal appeals will
be avoided if district courts promptly hear and decide claims to
attorney’s fees.
Such practice normally will permit appeals from
fee awards to be considered together with any appeal from a final
judgment on the merits.”).
By considering the substantially
justified question at this time, the Fourth Circuit will have the
opportunity to consolidate any appeal from this order with the
pending appeal of this court’s judgment on the merits.
This would
permit a single panel of the Fourth Circuit to rule on the entire
6
matter at once and would greatly promote judicial economy given
that the EAJA’s substantially justified question turns on the
entire
record
under
the
totality
Cervantez, 739 F. Supp. at 520-21.
to
consider
the
cost
and
of
the
circumstances.
See
It will also permit this court
fee
issues
while
circumstances are fresher in the court’s mind.
the
relevant
See Masalosalo by
Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir.
1983).
Accordingly, the Government’s motion to stay Sheriff
Johnson’s petition for fees and costs will be denied.
B.
Sheriff Johnson’s Motion for Costs
The Government does not contest that Sheriff Johnson is
entitled to $23,297.20 in costs under 28 U.S.C. § 2412(a)(1).
Its
lone argument is that Sheriff Johnson may not be the prevailing
party after appeal.
(Doc. 173 at 2.)
But it is true that in every
appeal the prevailing party may change.
Federal Rule of Civil
Procedure 54(d) creates a presumption in favor of taxation of
costs, and “‘a district court deciding not to award costs at the
customary stage must provide a valid reason.’”
Shipman v. United
Parcel Serv., Inc., No. 5:12-cv-589-F, 2013 WL 6622944, at *2
(E.D.N.C. Dec. 16, 2013) (quoting Singleton v. Dep’t of Corr.
Educ., No. 1:03-cv-00004, 2003 WL 22299039, at *1 (W.D. Va. Oct.
3, 2003)).
The Government has not provided any reason why costs
awarded under the EAJA should be treated differently. Accordingly,
Sheriff Johnson will be awarded $23,297.20 in costs.
7
C.
Sheriff Johnson’s Motion for Attorneys’ Fees
As stated above, Sheriff Johnson is entitled to an award of
attorneys’ fees unless “the government can demonstrate that its
position
was
‘substantially
justified,’
circumstances make an award unjust.”
or
that
Hyatt v. Barnhart, 315 F.3d
239, 244 (4th Cir. 2002) (citations omitted).
substantially
justified
has
been
special
“an
issue
The meaning of
of
considerable
conceptual and practical difficulty, given the open-endedness of
the
statutory
question.”
language
and,
no
doubt,
the
delicacy
of
the
United States v. Paisley, 957 F.2d 1161, 1165 (4th
Cir. 1992).
In Pierce v. Underwood, 487 U.S. 552 (1988), the
Supreme Court examined whether, in the context of the EAJA, the
modifier “substantially” means “‘considerable’ (to a high degree)
or ‘in the main’ (to a reasonable degree).”
1165 (quoting Pierce, 487 U.S. at 565).
latter
interpretation,
justified
means
id.,
“justified
and,
to
a
as
Paisley, 957 F.2d at
The Court settled on the
a
degree
result,
that
substantially
could
satisfy
a
reasonable person or having a reasonable basis both in law and
fact.”
Hyatt, 315 F.3d at 244 (citations and internal quotation
marks omitted).
“There is no ‘presumption that the Government
position was not substantially justified, simply because it lost
the case.’”
Crawford v. Sullivan, 935 F.2d 655, 657 (4th Cir.
1991) (quoting Tyler v. Bus. Servs., Inc. v. NLRB, 695 F.2d 73, 75
(4th Cir. 1982)); Roanoke River Basin Ass’n v. Hudson, 991 F.2d
8
132, 139 (4th Cir. 1993) (“The focus when determining whether a
petitioner is a prevailing party is aimed at the degree of success
obtained by the petitioner.
Whether the government’s ‘position in
the litigation’ is substantially justified, in contrast, focuses,
not
on
the
government’s
success
or
failure,
but
on
the
reasonableness of its position in bringing about or continuing the
litigation.”).
Nevertheless, “[t]o be ‘substantially justified’
means, of course, more than merely undeserving of sanctions for
frivolousness.”
Pierce, 487 U.S. at 566.
“[W]hether the government acted reasonably in causing the
litigation or taking a stance during the litigation,” is to be
determined under the totality of the circumstances and based on
the underlying record in the action.
Hyatt, 315 F.3d at 244—45.
Rather than “atomize” the case, Crawford, 935 F.2d at 660 n.6,
courts look to “the government’s position in the case as a whole,”
Roanoke,
991
objective
F.2d
indicia
at
of
138-39.
In
reasonableness
addition,
courts
and
an
make
consider
“independent
assessment of the merits of the Government’s position.”
Paisley,
957 F.2d at 1166 (discussing the analytical framework from Pierce).
Objective indicia, including the stage at which the merits were
decided, are some evidence of the strength of the Government’s
case.
Id.
For example, a fairly lengthy opinion may at times
“demonstrate[] a perception by the author that the issue was one
whose resolution required significant intellectual effort . . . .”
9
Id. at 1168.
However, the stage at which the government lost its
case “does not conclusively establish the strength or weakness of
the position.”
Nat’l Org. for Marriage, Inc., v. United States,
No. 14-2363, slip op. at 11 (4th Cir. Dec. 2, 2015).
The Government alleged that Sheriff Johnson and the ACSO
violated the Fourth and Fourteenth Amendments to the United States
Constitution by engaging in a pattern or practice of discriminatory
law enforcement activities directed against Hispanics.
2015
WL
4715312,
at
*1.
Sheriff
Johnson
argues
Johnson,
that
the
Government’s action was not substantially justified because the
Government’s legal theories lacked a reasonable basis in fact.
(See Doc. 162 at 4—6 (challenging the factual support offered by
the Government); Doc. 178 at 2—7.)
Beyond a bare conclusion,
Sheriff Johnson does not claim that the Government’s legal theories
lacked a reasonable basis in law.
(See Doc. 162 at 4—6; Doc. 178
at 2—7.)
The
court
consideration.
for
summary
gave
the
Government’s
claims
extensive
It considered and denied Sheriff Johnson’s motion
judgment
in
substantial
part,
finding
that
“the
Government has presented evidence which, if credited, demonstrates
both disparate impact and discriminatory intent, but there are
genuine disputes over material facts.”
(Doc. 118 at 18.)
It also
held a nine-day trial and reviewed the record for almost a year
before issuing a nearly 250-page decision of findings of fact and
10
conclusions of law.
lengthy
and
Johnson, 2015 WL 4715312.
detailed
and
cannot
be
substantially repeating the full opinion.
Those findings are
repeated
here
without
So, the court refers to
them and the analysis of that decision and will highlight below
some of the principal reasons for the resolution of the current
motion.
In doing so, the court does not intend to alter any
conclusion of its merits opinion.
Having
considered
the
record
in
the
totality
of
the
circumstances, the court finds that, while the court was not
persuaded
by
the
Government’s
evidence
and
arguments,
the
Government’s claims under the Fourth and Fourteenth Amendments
were nevertheless substantially justified within the meaning of
the EAJA.
The Government’s case was based principally on fact witness
testimony and statistical evidence presented by two experts.
As to the fact witnesses, the Government’s evidence included
instances of ethnic slurs by certain ACSO deputies, but this
evidence was limited primarily to the ACSO jail (where employees
did not have any involvement in any decision-making to stop or
detain anyone) and to a handful of inappropriate email jokes.
at *35-38.
Id.
In addition, a few ACSO officers testified that they
had been ordered to arrest or detain Hispanics.
Again, this was disputed.
Id. at *16.
Those very deputies ultimately denied
ever targeting anyone or knowing anyone who did, and there was
11
evidence that these witnesses had reason to hold a grudge against
the sheriff.
the
Id. at *17-18.
statements
attributed
Sheriff Johnson testified and denied
to
him,
and
the
testimony
of
the
Government’s witnesses was rebutted or placed into a lawful context
by Sheriff Johnson’s witnesses.
Further,
the
Government’s
case
testimony on ACSO’s policy for arrest.
also
rested
on
disputed
The Government asserted
that ACSO targeted Hispanics for arrest rather than citation, on
the theory that they could be processed through the Government’s
287(g) program at the ACSO jail for possible Immigration and
Customs Enforcement (“ICE”) detention, and the Government relied
on the testimony referred to above as well as on that of a local
magistrate who testified to seeing more Hispanics at the jail after
ACSO instituted the 287(g) program. 2
But Sheriff’s Johnson’s
witnesses
was
testified
that
the
policy
that
a
deputy
was
authorized (but not directed) to arrest anyone committing an
arrestable offense who could not otherwise be identified, id. at
*15, and the persuasive evidence showed that the vast majority of
those the magistrate saw at the jail were likely from ICE arrests
as well as from the eleven other “contributing” law enforcement
agencies who used the ACSO jail for booking arrestees, id. at *12.
2
The 287(g) program refers to the Government’s use, through ICE, of the
ACSO jail as a facility to book and house ICE detainees under 8 U.S.C.
§ 1357(g). Under the program, ACSO provided a certain number of deputies
to be cross-certified as ICE agents to work in, and to be supervised by
ICE employees at, the ACSO jail. Id. at *4-*5.
12
The Government relied on evidence that ACSO discharged its
statutory obligation to check gun permit applicants’ backgrounds
in a fashion suggesting that only Hispanics were cleared by ACSO
through the ICE database.
This was weak, however, because there
was no evidence as to whether or not other applicants had been
cleared because they provided valid evidence of citizenship, nor
did the Government claim that confirming citizenship through the
ICE database was in itself wrong (only the claim that ACSO did
this for Hispanics and that ICE, not the ACSO deputies assigned to
the ICE unit, should have actually accessed the ICE database). 3
As to checkpoint siting, the Government provided evidence of
ACSO checkpoints in or near predominantly Hispanic areas.
But the
testimony of Sheriff Johnson’s expert supported the conclusion
that ACSO distributed its checkpoints equally across the county.
Id. at *18-19, *58.
Government
relied
on
And, as to the Fourth Amendment claim, the
evidence,
by
ACSO’s
Deputy
Conklin
and
Lieutenant Hoover, who described their use of traffic checkpoints
as being for “general law enforcement” purposes. 4
However,
other
evidence
showed
that,
by
that,
Id. at *19.
they
meant
3
In any event, there was evidence that while ICE had initially approved
the practice, the practice nevertheless ceased in 2011, well before the
287(g) program was discontinued. Id. at *9-*10.
4
As noted above, given the notice problems in its complaint, the
Government was required to link its Fourth Amendment claim to Hispanics.
Johnson, 28 F. Supp. 3d at 515-17. Consequently, the Government sought
to tie the officers’ “general law enforcement” statements to its claims
relating to checkpoints near predominantly Hispanic areas.
13
permissible
license
checks,
and
considered fully in context.
Thus,
credibility
witnesses’ testimony.
that
the
testimony
was
not
Id.
and
context
were
critical
to
these
Ultimately, when considered in the context
of all the evidence, the court was not persuaded by key parts of
the
Government’s
witnesses’
testimony
or
the
inferences
the
Government drew from what those witnesses claim to have been told
or instructed.
Government
See id. at *94.
could
not
have
This does not mean that the
reasonably
believed
its
witnesses,
however.
The Government also relied heavily on vehicle stop data and
statistical analysis from two expert witnesses, Dr. John Lamberth
and
Dr.
John
MacDonald,
to
demonstrate
that
enforcement discriminated against Hispanics.
experts
conducted
extensive
analysis.
ACSO’s
traffic
Id. at *22-29.
However,
upon
Both
closer
examination, both suffered from various flaws.
Dr. Lamberth provided testimony of an estimated “benchmark”
for Hispanic drivers who violate traffic laws in Alamance County,
based on his method of having assistants attempt to observe the
ethnicity of drivers and traffic violations of moving vehicles
from the roadside at a distance.
Dr. Lamberth’s study was based
on a modified version of the methodology he used in prior instances
studying principally African Americans.
His qualifications were
not challenged, but the court found his method and results as
14
applied in this case unreliable under Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1999).
2015 WL 4715312, at *47.
The
Government was aware that at least one court had admitted a study
by Dr. Lamberth.
Id.
But, as this court noted in its opinion,
the Government was also aware that Dr. Lamberth’s testimony was
subject to challenge because some courts have excluded his studies
as “suspect” and unreliable; in fact, the Government itself had
challenged his testimony in many of those cases.
Id. at *53.
Nevertheless, while this court was not persuaded by his method and
evidence,
even
novel
opinions
and
techniques
may
provide
a
sufficient factual basis for reliable expert opinions, especially
where the expert has been permitted to testify in other cases.
See Shock v. United States, 254 F.3d 1, 5 (1st Cir. 2001) (“When
the issue is a novel one on which there is little precedent, courts
have been reluctant to find the government’s position was not
substantially justified.”).
In addition to finding Dr. Lamberth’s study unreliable, this
court also did not find Dr. Lamberth to be a credible witness.
2015 WL 4715312, at *53-54. He relied on the work of two assistants
whom he directed to observe drivers on active roadways from a
distance and record their ethnicity and traffic violations.
Dr.
Lamberth had performed such a study before, but it is a difficult
task at best - one Dr. Lamberth, himself, and others criticized
previously, but one that was essential to his conclusions.
15
Id.
The Government’s proof was weakened by its failure to offer either
assistant at trial to provide any indication of the standard they
used to identify Hispanics so that they could be cross-examined
and their conclusions probed and tested.
Instead, Dr. Lamberth
testified that his assistants classified anyone as “Hispanic” if
the assistant thought the person looked Hispanic – an undertaking
as to which another Government expert, Margo Frasier, cast serious
doubt.
Id. at *54 (“I don’t think you can assume that you can
recognize
an
Hispanic.”).
Had
Dr.
Lamberth’s
assistants
testified, however, it is possible that they might have provided
the court with additional information about their methods and
ability to observe to render Dr. Lamberth’s study more credible.
In any event, the presence of credibility determinations does not
render the Government’s case unreasonable.
Finally, Dr. MacDonald was presented to address ACSO’s law
enforcement practices after traffic stops and opined that ACSO
disparately
outcomes.
treated
Hispanics
in
stop
outcomes
MacDonald
to
be
credible
but
declined
inferences urged by the Government.
analysis
search
His statistics did show that in certain categories,
Hispanics were disproportionately represented.
Dr.
and
relied
on
statistical
The court found
to
accept
certain
Notably, Dr. MacDonald’s
analysis
that
failed
to
sufficiently compare the treatment of Hispanics to others who were
similarly situated.
Id. at *27.
16
One problem was not marshalling
enough of the right evidence and not ruling out obvious nondiscriminatory explanations for the ACSO’s actions.
For example,
Dr. MacDonald’s statistical analysis claimed to control for the
“stop reason” but critically failed to control for either the stop
outcome or search outcome, even though those were the very things
he claimed to be measuring.
Id. at *76-83.
Dr. MacDonald’s
conclusions were also rebutted in part by one of Sheriff Johnson’s
fact witnesses, Officer Mark Dockery, who provided ACSO data that
further indicated that the inferences the Government wished to
draw from the statistical data were not persuasive.
Id. at *20-
30.
a
Finally,
Dr.
Lamberth’s
failure
to
provide
reliable
benchmark of Hispanic drivers further undermined Dr. MacDonald’s
ability to testify as to alleged discriminatory checkpoint stops.
Id. at *76.
To
be
sure,
the
court
was
troubled
by
aspects
of
the
Government’s attempt to urge characterizations of the evidence
that were not supported.
For example, the Government attributed
much of the impetus for Sheriff Johnson’s alleged misconduct to
the Government’s own 287(g) immigration program.
But at trial, it
became apparent that, assuming the Government’s witnesses were to
be believed, the Government nevertheless overstated the role of
the 287(g) program in its case, and ICE officials in charge of
that program who testified at trial took personal responsibility
for conduct that the Government wished to place at the feet of
17
ACSO (e.g., the authority to permit an ACSO officer to work as a
287(g) Task Force Officer for ICE outside the jail).
In the end, resolution of this case required significant
effort and careful analysis.
See Paisley, 957 F.2d at 1168.
The
Government survived summary judgment in substantial part, and this
court spent one year and 250 pages resolving the complex issues
presented.
testimony
The persuasiveness of the Government’s fact witness
ultimately
depended
upon
inferences
drawn
from
credibility determinations and other contextual evidence.
See
Mortensen v. Astrue, 428 Fed. App’x 248, 250-51 (4th Cir. 2011). 5
Although this court was not persuaded by the Government’s evidence
to
establish
a
pattern
or
practice
of
unlawful
conduct,
it
concludes that there was nevertheless a sufficient factual and
legal basis for the Government to have made the decision to bring
the action.
This conclusion is bolstered by the fact that this
appears to have been the first such pattern or practice case to
actually reach trial.
See Abramson v. United States, 45 Fed. Cl.
149, 152 (Fed. Cl. 1999) (noting that courts are hesitant to find
the Government’s position to not be substantially justified where
a question is presented for the first time); cf. Hyatt v. Shalala,
6 F.3d 250, 256 (4th Cir. 1993) (finding Government justified in
litigating unsettled issue on appeal).
5
Non-binding unpublished decisions are cited only for the persuasive
value of their reasoning.
18
For all these reasons, and those stated in this court’s
opinion on the merits, although the Government failed to prevail
in its case, its claims had a reasonable basis in law and fact.
Sheriff Johnson’s motion for an award of attorneys’ fees under the
EAJA will therefore be denied.
III. CONCLUSION
For the reasons stated, the Government’s motion to stay
Sheriff Johnson’s petition for fees and costs under the EAJA is
denied, as a stay would not promote judicial economy.
Johnson’s
However,
entitlement
because
to
the
$23,297.20
Government’s
in
costs
claims
is
were
Sheriff
undisputed.
substantially
justified, Sheriff Johnson is not entitled to attorneys’ fees and
expenses under the EAJA.
IT IS THEREFORE ORDERED as follows:
1.
The Government’s motion to stay Defendant’s petition for
fees and costs (Doc. 164) is DENIED;
2.
The Clerk’s order staying consideration of bill of costs
is LIFTED, Defendant’s motion for costs (Doc. 161) is GRANTED, and
Defendant shall be awarded $23,297.20 in costs; and
3.
Defendant’s motion for attorneys’ fees (Doc. 161) is
DENIED.
/s/
Thomas D. Schroeder
United States District Judge
December 8, 2015
19
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