On Appellant's Application for Attorneys' Fees
Before: Ginsburg, Chief Judge, and Rogers and Tatel,
The opinion of the court was delivered by: Tatel, Circuit Judge
In an earlier decision in this case, we ordered the Secretary of the Army to correct procedural errors he committed in disposing of excess military property, errors that deprived appellant, a non-profit organization, of an opportunity to compete for the property. For its work in securing that decision, appellant now seeks an award of attorneys' fees pursuant to the Equal Access to Justice Act. Because appellant has satisfied the statutory requirements for an award, we grant its application for fees. But because it has failed to justify the amount it seeks, we award significantly less than requested.
Our previous opinion fully describes the background of this case, see Role Models Am., Inc. v. White, 317 F.3d 327, 328-31 (D.C. Cir. 2003), so we only summarize it here. Appellant Role Models America, Inc., a non-profit educational organization, seeks to establish a military-style magnet high school for troubled youth. In the mid-1990s, as part of its plan to locate the high school on a former military installation, Role Models attempted to acquire Fort Ritchie, a closed U.S. Army base in Maryland. When its efforts proved unsuccessful, Role Models filed suit in the United States District Court for the District of Columbia, claiming that the Secretary of the Army, one of the officials responsible for disposing of Fort Ritchie, had violated federal regulations by failing to provide adequate notice of the fort's availability. In its complaint, Role Models asked the district court to declare that the Secretary's failure to provide adequate notice was unlawful; to direct the Secretary to comply with regulatory requirements, thus giving Role Models an opportunity to compete for the property; and to enjoin any conveyance of Fort Ritchie until the Secretary did so -- or, alternatively, to require the Secretary to transfer the base to Role Models.
The district court denied Role Models's motion for a preliminary injunction, Role Models Am., Inc. v. White, 193 F. Supp. 2d 76, 87 (D.D.C. 2002), but we reversed, see 317 F.3d 327 (D.C. Cir. 2003). Concluding that the Secretary had violated the clear text of the relevant regulations by failing to provide adequate notice that surplus military property was available, we remanded the case to the district court "with instructions to enter a permanent injunction against conveyance of the Fort Ritchie property until the Government remedies the procedural errors" it had committed. Role Models, 317 F.3d at 333-34.
Having secured the relief it sought, Role Models now requests, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (2000) (EAJA), reimbursement for the attorneys' fees that it incurred in bringing the appeal. The EAJA provides that:
[A] court shall award to a prevailing party other than the United States fees and other expenses - incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against 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.
Id. § 2412(d)(1)(A). The government opposes any award of fees, contending that notwithstanding our merits opinion, Role Models is not a "prevailing party." In any event, the government argues, its position was "substantially justified." Even if a fee award is warranted, the government insists, the amount that Role Models requests is excessive. We address each argument in turn.
The government contends that Role Models is not entitled to a fee award at this point because it has yet to obtain Fort Ritchie. In support, the government relies primarily on Waterman Steamship Corp. v. Maritime Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990), in which we denied EAJA fees to plaintiffs who, although they won a remand directing an agency to correct procedural errors it had made in awarding a contract, failed to obtain an order enjoining the provision of services under the contract. "From a party's viewpoint," we explained, "correct procedures - are largely (if not entirely) instruments to a desired end -- a change in someone's primary conduct in the real world: relief from a restriction, grant of a benefit, imposition of a restriction on others, etc." Id. at 1122. We therefore concluded that an "award of EAJA fees for corrective efforts that yield no real-world benefit would reduce the normal deterrent to litigative nit-picking." Id.
Waterman is very different from this case. Role Models obtained not only a remand to correct procedural errors, but also an injunction barring the Secretary from transferring Fort Ritchie until he complied with applicable regulations. In other words, Role Models obtained exactly what Waterman found missing: "a change in someone's primary conduct in the real world - [such as by the] imposition of a restriction on others." Id.
This case is much more like Environmental Defense Fund, Inc. v. Reilly, 1 F.3d 1254 (D.C. Cir. 1993), a post- Waterman case in which we held that the EDF was a prevailing party because it had obtained an order vacating a rule that the EPA promulgated after inadequate notice and comment. We rejected the EPA's argument that because the agency reissued the same rule after proper notice and comment, the EDF did not qualify as a prevailing party. "In the real world of the APA," we said, "an opportunity for comment -- which the EDF did get -- is not to be denigrated." Id. at 1257. That statement applies here as well. Whether or not Role Models eventually acquires Fort Ritchie, the opportunity to compete for it, which Role Models successfully achieved through the injunction -- an injunction that was the functional equivalent of vacating the rule in Reilly -- "is not to be denigrated."
Similarly, in Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986), we held that a plaintiff had "prevailed" by convincing the district court to enjoin the demolition of an historic building until a referendum on the demolition had occurred. Although the building was ultimately demolished, that had no effect on our view of the prevailing-party issue because the injunction "had the distinct external effect of postponing the razing of the tavern until the election could be held," and hence "the victory represented a substantial part of what plaintiffs asked the court for in the first place." Id. at 1110. The injunction here had a comparable "external effect" --postponing conveyance of Fort Ritchie until the Secretary complies with the relevant regulations -- that likewise represents "a substantial part of what plaintiff[ ] asked the court for in the first place."
Nothing in Thomas v. National Science Foundation, 330 F.3d 486 (D.C. Cir. 2003), requires a different result. There we held that plaintiffs who had obtained a preliminary injunction were not prevailing parties because they had "filed a lawsuit in order to obtain a refund from NSF, [and] the preliminary injunction did nothing to vindicate that claim." Id. at 493. In adopting this reasoning, we distinguished Grano, in which the injunction "gave the plaintiffs the ...