Public Employees for Environmental Responsibility v. Bromwich ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PUBLIC EMPLOYEES FOR )
ENVIRONMENTAL RESPONSBILITY, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-1067 (RBW) (DAR)
)
DR. WALTER CRUICKSHANK, et al., ) Consolidated with:
)
Defendants, ) Civil Action No. 10-1073
) Civil Action No. 10-1079
CAPE WIND ASSOCIATES, LLC, ) Civil Action No. 10-1238
)
Intervenor. )
____________________________________)
)
ALLIANCE TO PROTECT )
NANTUCKET SOUND, et al., )
)
Plaintiffs, )
)
v. )
)
1
DAVID BERNHARDT, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
)
TOWN OF BARNSTABLE, )
MASSACHUSETTS, )
)
Plaintiff, )
)
v. )
)
1
Individuals sued in their official capacities have been substituted as the proper party defendants pursuant to Federal
Rule of Civil Procedure 25(d).
DAVID BERNHARDT, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
)
THE WAMPANOAG TRIBE OF GAY )
HEAD (AQUINNAH) )
)
Plaintiff, )
)
v. )
)
DR. WALTER CRUICKSHANK, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
MEMORANDUM OPINION
This consolidated case comprises four sets of interrelated claims concerning several
administrative decisions made by federal agencies approving the construction of various aspects
of an offshore wind energy project in Nantucket Sound (the “Cape Wind project”). Currently
pending before the Court is plaintiffs Public Employees for Environmental Responsibility
(“PEER”) and Alliance to Protect Nantucket Sound’s (the “Alliance”) (collectively, the
“plaintiffs”) Motion for an Award of Attorneys’ Fees and Costs by Plaintiffs Public Employees
for Environmental Responsibility and Alliance to Protect Nantucket Sound (“Pls.’ Mot.”). Upon
2
careful consideration of the parties’ submissions, 2 the Court concludes for the following reasons
that it must grant in part and deny in part the plaintiffs’ motion for attorneys’ fees.
I. BACKGROUND
The Court has previously set forth the factual background of this case, see Pub. Emps. for
Envtl. Responsibility v. Beaudreau, 25 F. Supp. 3d 67, 85–93 (D.D.C. 2014) (Walton, J.), and
therefore will not recite it again here. The Court will, however, briefly summarize the procedural
posture of this case relevant to the claims on which the plaintiffs seek attorneys’ fees, which is
pertinent to the resolution of the pending motion.
A. Case Background
The plaintiffs, and others, brought this civil action (“Civil Action No. 10-1067”), against
Walter Cruickshank, the Director of the United States Bureau of Ocean Energy Management
(“BOEM”); David Bernhardt, the Secretary of the United States Department of the Interior (the
“Department of the Interior”); Aurelia Skipwith, the Director of the United States Fish and
Wildlife Service (“FWS”); Wilbur Ross, the Secretary of the United States Department of
Commerce; Chris Oliver, the Assistant Administrator of the National Marine Fisheries Service
(“NMFS”); and Lieutenant General Todd T. Semonite, the United States Army Chief of
Engineers and Commanding General of the United States Army Corps of Engineers (the “Corps
2
In addition to the documents already identified, the Court considered the following submissions in rendering its
decision: (1) the Second Amended Complaint for Declaratory and Injunctive Relief (“Pls.’ Compl.” or the
“Complaint”); (2) the First Amended Complaint for Declaratory and Injunctive Relief (“Alliance Compl.”); (3) the
PEER Plaintiffs’ Supplemental Complaint (“Pls.’ Supp. Compl.” or the Supplemental Complaint”); (4) the Federal
Defendants’ Notice of Completion of Remands (“1st Remand Not.”); (5) the Federal Defendants’ Notice of
Completion of U.S. Fish & Wildlife Service Remand (“2d Remand Not.”); (6) the Federal Defendants’ Notice of
Completion of Bureau of Ocean Energy Management Remand (“3d Remand Not.”); (7) Plaintiffs Public Employees
for Environmental Responsibility’s and Alliance to Protect Nantucket Sound’s Joint Memorandum Supporting Their
Entitlement to Attorneys’ Fees and Costs (“Pls.’ Mem.”); (8) the Federal Defendants’ Response in Opposition to
Plaintiffs’ Motion for Attorneys’ Fees (“Fed. Defs.’ Opp’n”); and (9) the Joint Reply Memorandum in Support of
Plaintiffs Public Employees for Environmental Responsibility and Alliance to Protect Nantucket Sound’s
Entitlement to Attorneys’ Fees and Expenses (“Pls.’ Reply”).
3
of Engineers”),3 alleging violations of the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701–706 (2018); the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–1544 (2018); the
Migratory Bird Treaty Act, 16 U.S.C. § 70; and the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321–4370h (2018). See Pls.’ Compl. ¶¶ 1, 97–111. The Alliance, and
others, separately brought a civil action (“Civil Action No. 10-1079”) against Director
Cruickshank; the Bureau of Ocean Energy Management (“BOEM”); Secretary Bernhardt; the
Department of the Interior; Lieutenant General Semonite; Admiral Karl L. Schulz, the
Commandment of the United States Coast Guard (the “Coast Guard”);4 and the Coast Guard,5
alleging violations of the APA; the NEPA; the Energy Policy Act of 2005, Pub. L. No. 109-58,
§ 388(a), 119 Stat. 594, 744–46 (codified at 43 U.S.C. § 1337(p) (2018)) (amending the Shelf
Lands Act); the Coast Guard and Maritime Transportation Act of 2006, Pub. L. No. 109-241,
120 Stat. 516; the National Historic Preservation Act (the “Preservation Act”), 16 U.S.C. § 470f;
the Clean Water Act, 33 U.S.C. § 1344 (2018); and the Rivers and Harbors Act, 33 U.S.C. § 403(2018). See Alliance Compl. ¶¶ 1, 151–93.
The Court consolidated Civil Action No. 10-1067, Civil Action No. 10-1079, and two
other related cases, Civil Action Nos. 10-1073 and 10-1238, on October 25, 2010. See Min.
Order (Oct. 25, 2010). The parties subsequently cross-moved for summary judgment,6 and on
3
Civil Action No. 10-1067 was brought against the predecessors of the individuals listed. The individuals sued in
their official capacities have been substituted as the proper party defendants pursuant to Federal Rule of Civil
Procedure 25(d).
4
Civil Action No. 10-1079 was brought against the predecessors of the individuals listed. The individuals sued in
their official capacities have been substituted as the proper party defendants pursuant to Federal Rule of Civil
Procedure 25(d).
5
The Court will collectively refer to all of the defendants in Civil Action Nos. 10-1067 and 10-1079 as the “federal
defendants.”
6
Due to the convoluted procedural history in this matter over the course of a nine-year period, the Court will address
the specific procedural history as to each of the claims on which the plaintiffs seek attorneys’ fees in further detail
below. See Part I.B, infra.
4
March 14, 2014, the Court granted partial summary judgment to the plaintiffs and remanded
certain claims to the appropriate agencies (the “initial remand”). After the initial remand
proceedings were completed on July 2, 2014, see 1st Remand Not. at 1, the plaintiffs filed their
Supplemental Complaint alleging new claims regarding inadequacies in the initial remand
proceedings (the “supplemental claims”). The parties again cross-moved for summary judgment,
and, on November 18, 2014, the Court granted summary judgment to the federal defendants on
the plaintiffs’ Supplemental Complaint, see Order at 6 (Nov. 18, 2014), ECF No. 415. The
plaintiffs then appealed that decision to the District of Columbia Circuit, resulting in the
Circuit’s partial reversal of this Court’s judgment with respect to two of the plaintiffs’ claims and
remand of the case to this Court. See Pub. Emps. for Envtl. Responsibility v. Hopper, 827 F.3d
1077, 1090 (D.C. Cir. 2016). In response to the Circuit’s decision, the Court again remanded
certain claims to the applicable agency (the “second remand”). See Order at 2–3 (Oct. 27, 2016),
ECF No. 431. After the second remand proceedings were completed, the Court ordered that
“this case shall be dismissed with prejudice upon the resolution of the plaintiffs’ two previously
filed motions for attorneys’ fees and costs,” Order at 2 (Nov. 2, 2017), ECF No. 446
(capitalization removed), and instructed that the attorneys’ fees briefing should “address[] only
the threshold questions regarding the plaintiffs’ entitlement to attorneys’ fees and litigation
expenses [under the citizen-suit provision of the ESA and the Equal Access to Justice Act
(‘EAJA’)], reserving any arguments pertaining to the reasonableness of the amounts requested
for future briefing, if necessary,” Order at 3 (Mar. 22, 2018), ECF No. 451. In accordance with
the Court’s Order, the plaintiffs submitted their joint motion for attorneys’ fees, see generally
Pls.’ Mot., which is the subject of this Memorandum Opinion.
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B. The Claims on Which the Plaintiffs Seek Attorneys’ Fees
1. The Plaintiffs’ ESA Claims Against the FWS
On March 14, 2014, the Court “grant[ed] summary judgment to the[] plaintiffs on their
claims that the FWS violated the ESA by failing to make an independent determination regarding
whether the feathering operational adjustment was a reasonable and prudent measure” (the “first
ESA claim against the FWS”) and “remanded [the claim] to the FWS for it to issue reasonable
and prudent measures in accordance with this Court’s Memorandum Opinion.” Order at 2 (Mar.
14, 2014), ECF No. 370 (capitalization removed). On remand, the FWS issued an amended
incidental take statement7 “provid[ing] [its] independent evaluation,” and concluding that “[t]he
final [reasonable and prudent measures] have not changed as a result of [its] analysis on
remand.” 1st Remand Not., Exhibit (“Ex.”) 5 (Letter from Paul R. Phifer, Assistant Regional
Director, Ecological Services, FWS, to Michelle Morin, Chief, Environmental Branch for
Renewable Energy, Environmental Division, BOEM (June 27, 2014) (“1st Phifer Ltr.”)) at 2.
After the FWS completed its initial remand proceedings, the plaintiffs filed their
Supplemental Complaint, alleging, inter alia, that the amended incidental take statement
completed by the FWS on remand did not comply with the ESA because it failed to consider an
economic report submitted by the plaintiffs (the “second ESA claim against the FWS”). Pls.’
Supp. Compl. ¶ 19. The Court dismissed the plaintiffs’ second ESA claim against the FWS on
the ground that “the plaintiffs admit[ted] that the Court ha[d] previously considered and rejected
th[is] claim[].” Order at 6 (Nov. 18, 2014), ECF No. 415. The Court thereafter entered a final
7
“An [incidental take statement] is an estimate by the [FWS] of the ‘take’ of a threatened or endangered species that
is likely to result from an action by a federal agency. ‘Take’ means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or attempt to engage in any such conduct. [Incidental take statements] are produced by the
[FWS] as part of a biological opinion resulting from consultations with federal agencies under section 7 of the
[ESA].” ESA Implementation | Incidental Take Statements, U.S. Fish & Wildlife Serv.,
https://www.fws.gov/endangered/improving_ESA/ITS.html (last visited Nov. 27, 2019).
6
Judgment on December 15, 2014, see generally Judgment (Dec. 15, 2014), and the plaintiffs
appealed. On appeal, the Circuit “reverse[d] th[is] [ ] Court’s judgment . . . that the [FWS’s]
[initial remand actions] complied with the [ESA],” concluding that the FWS’s failure to consider
the scientific and economic data submitted by the plaintiffs during the FWS’s initial remand
proceedings in 2014, when it did consider its own economist’s 2014 analysis on remand, was
error, because by relying on its economist’s 2014 analysis, “the [FWS] reopened the record and
was required to consider [the] plaintiffs’ submissions.” Pub. Emps. for Envtl. Responsibility,
827 F.3d at 1090. In response to the Circuit’s decision, this Court remanded the FWS’s amended
incidental take statement “to the FWS to take appropriate actions consistent with the Circuit’s
opinion.” Order at 1 (Oct. 27, 2016), ECF No. 431.
In response to this second remand, the FWS issued a second amended incidental take
statement stating that the FWS’s “further independent examination of the best scientific and
commercial data available, as well as the various submissions received, [ ] confirmed [its] prior
conclusion that the originally proposed feathering measure . . . is not a reasonable and prudent
measure[] . . . necessary or appropriate to minimize the anticipated incidental takes.” 2d Remand
Not., Ex. 1 (Letter from Paul F. Phifer, Assistant Regional Director, Ecological Services, FWS,
to Michelle Morin, Chief, Environmental Branch for Renewable Energy, BOEM (Aug. 31, 2017)
(“2d Phifer Ltr.”)) at 2 (internal quotation marks omitted). The plaintiffs now seek fees on their
first and second ESA claims against the FWS (collectively, the “ESA claims against the FWS”).
See Pls.’ Mem. at 27–28.
2. The Plaintiffs’ ESA Claim Against the NMFS
On March 14, 2014, the Court “grant[ed] summary judgment to the plaintiffs on their
claims that the NMFS violated the ESA by failing to issue an incidental take statement for the
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take of North American right whales” (the “ESA claim against the NMFS”) and “remanded [the
claim] to the NMFS for it to formulate and issue an incidental take statement in accordance with
the Court’s [March 14, 2014] Memorandum Opinion.” Order at 2–3 (Mar. 14, 2014), ECF No.
370 (capitalization removed). On remand, the NMFS prepared an amended incidental take
statement, see generally 1st Remand Not., Ex. 2 (Incidental Take Statement – Amended May 21,
2014), “indicat[ing] that [the NMFS] d[id] not anticipate any incidental take of North Atlantic
right whales, fin whales[,] and humpback whales and that the amount or extent of incidental take
[was] set at zero,” id., Ex. 1 (Letter from John K. Bullard, Regional Administrator, NMFS, to
Michelle Morin, Chief, Environmental Branch for Renewable Energy, BOEM (May 21, 2014)
(“Bullard Ltr.”)) at 1. The plaintiffs now seek fees on their ESA claim against the NMFS. See
Pls.’ Mem. at 25–26.
3. The Alliance’s NEPA Claim Against the BOEM
On March 14, 2014, the Court rejected the Alliance’s “argu[ment] that the BOEM
violated the Shelf Lands Act by approving Cape Wind’s Construction and Operations Plan
without first receiving certain geotechnical and geophysical studies from Cape Wind” (the
“NEPA claim against the BOEM”) and granted summary judgment to the federal defendants on
this claim. Pub. Emps. for Envtl. Responsibility, 25 F. Supp. 3d at 105–06. Following the
completion of the initial remand proceedings by the FWS and the NMFS, the Court entered a
final judgment against the Alliance on its NEPA claim against the BOEM, cf. Judgment at 3
(Dec. 15, 2014) (denying summary judgment to the plaintiffs on all claims except for the
plaintiffs’ first ESA claim against the FWS and the ESA claim against the NMFS). On appeal,
the Alliance “argue[d] that the [BOEM] violated the [NEPA] by relying on inadequate
geophysical and geotechnical surveys.” Pub. Emps. for Envtl. Responsibility, 827 F.3d at 1081
8
(citation and internal quotation marks omitted). The Circuit concluded that the BOEM violated
the NEPA, see id. at 1083, but explained that “that does not necessary mean that the [Cape
Wind] project must be halted or that Cape Wind must redo the regulatory approval process.” Id.
at 1083–84. The Circuit “vacat[ed] the impact statement and [ ] require[ed] the [BOEM] to
supplement it with geological surveys before Cape Wind may begin construction,” but declined
to “vacate Cape Wind’s release or other regulatory approvals based on this NEPA violation.” Id.
at 1084. On remand to this Court from the Circuit, the Court “remanded [the BOEM’s
environmental impact statement] to [the] BOEM to take appropriate actions consistent with the
Circuit’s [o]pinion.” Order at 3 (Oct. 27, 2016), ECF No. 431 (capitalization removed).
On remand from this Court, the BOEM issued a supplemental environmental impact
statement, which incorporated a “careful and thorough analysis of the seafloor and its ability to
support wind turbine generators,” 3d Remand Not., Ex. 1 (Record of Decision, Cape Wind
Energy Project, Horseshoe Shoal, Nantucket Sound (“BOEM Record of Decision”)) at 1, as well
as a record of decision “affirm[ing] [the] BOEM’s issuance of the existing lease,” based on the
“careful and thorough analysis” contained in the BOEM’s supplemental environmental impact
statement,” id., Ex. 1 (BOEM Record of Decision) at 1. The Alliance now seeks attorneys’ fees
“in connection with its NEPA victory in the [Circuit].” Pls.’ Mem. at 28.
II. STANDARDS OF REVIEW
A. Motion for Attorneys’ Fees Pursuant to the ESA
The ESA provides that the Court may “award costs of litigation (including reasonable
attorney and expert witness fees) to any party, whenever the [C]ourt determines such an award is
appropriate.” 16 U.S.C. § 1540(g)(4). The appropriateness of attorney fee awards in citizen
suits brought under the ESA and other “appropriate” fee-shifting statutes is measured by whether
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a party “achiev[ed] some success, even if not major success.” Ruckelshaus v. Sierra Club, 463
U.S. 680, 688 (1983); see also Sierra Club v. Envtl. Prot. Agency, 322 F.3d 718, 727 (D.C. Cir.
2003) (awarding fees where the “[p]etitioners unquestionably received some of the relief they
sought”). Hours expended on unsuccessful claims are not compensable, to the extent that they
are unrelated to the plaintiff’s successful claims. See Hensley v. Eckerhart, 461 U.S. 424, 435
(1983); Sierra Club v. Envtl. Prot. Agency, 769 F.2d 796, 801 (D.C. Cir. 1985).
B. Motion for Attorneys’ Fees Pursuant to the EAJA
The EAJA provides, in relevant part:
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition
to any costs . . . incurred by that party in any civil action (other than cases
sounding in tort), including proceedings for judicial review of agency action,
brought or against the United States in any court having jurisdiction of that action,
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) (2018).8 Thus, to award attorneys’ fees under the EAJA, the Court
must find that “(1) [the plaintiff] is the prevailing party; (2) [the plaintiff] has incurred
[reasonable] fees or expenses; (3) the position of the United States in the action was not
substantially justified; and (4) no special circumstances make an award of fees unjust.” Brooks
v. Berryhill, Civ. Action No. 15-00436 (CKK/GMH), 2019 WL 120767, at *3 (D.D.C. Jan. 7,
2019). Once the plaintiff establishes that it is the prevailing party under the EAJA, the
government has the burden of showing that its position was “substantially justified” or that
special circumstances make the award unjust. See Taucher v. Brown-Hruska, 396 F.3d 1168,
1173 (D.C. Cir. 2005). Finally, if the Court concludes that an award of attorneys’ fees and costs
is warranted, it is incumbent upon the plaintiff to establish that the fees and costs it is seeking are
8
In order to be eligible to receive an award of attorneys’ fees and other expenses under the EAJA, a prevailing party
must also file its application seeking an award of attorneys’ fees “within thirty days of a final judgment,” 28 U.S.C.
§ 2412(d)(1)(B), and meet the net worth requirements of the EAJA, see id. § 2412(d)(2)(B).
10
reasonable. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969–70 (D.C. Cir. 2004)
(“[C]ourts properly have required prevailing attorneys to justify the reasonableness of the
requested rate or rates.” (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)).
III. ANALYSIS
As stated above, the plaintiffs seek attorneys’ fees on three sets of claims. First, the
plaintiffs seek attorneys’ fees on their ESA claims against the FWS pursuant to the citizen-suit
provision of the ESA, or alternatively, pursuant to the EAJA. See Pls.’ Mem. at 27–28. Second,
they seek attorneys’ fees on their ESA claim against the NMFS pursuant to the citizen-suit
provision of the ESA, or alternatively, pursuant to the EAJA. See id. at 26–28. Finally, the
Alliance seeks attorneys’ fees on its NEPA claim against the BOEM pursuant to the EAJA. See
id. at 28–32. The Court will separately address the plaintiffs’ entitlement to attorneys’ fees on
their ESA claims and the Alliance’s entitlement to attorneys’ fees on its NEPA claim.
A. The Plaintiffs’ ESA Claims
The plaintiffs seek attorneys’ fees on their ESA claims pursuant to the ESA, or
alternatively, pursuant to the EAJA. See id. at 28. Before determining whether the plaintiffs are
in fact entitled to attorneys’ fees on their ESA claims, the Court must first determine whether
their entitlement to fees on these claims should be evaluated under the ESA or EAJA framework.
1. The Applicable Framework
“Because the ESA’s citizen[-]suit provision provides an express authorization for
attorney fees in ESA cases, the [C]ourt looks first to the ESA and then to the EAJA in evaluating
[the] plaintiffs’ fee request.” Native Fish Soc’y v. Nat’l Marine Fisheries Serv., No. 3:12-CV-
00431-HA, 2014 WL 7331039, at *1 (D. Or. Dec. 19, 2014). Relying on subsection (A) of 16
U.S.C. § 1540(g)(1), which authorizes citizen suits pursuant to the ESA, the plaintiffs argue that
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“[u]nder the plain terms of the ESA, [ ] the Court has jurisdiction to determine whether an award
of fees and costs is appropriate,” Pls.’ Mem. at 24, because “so long as a plaintiff affords an
alleged violator of the ESA with the requisite [sixty]-days’ advance notice, any person ‘may
commence a civil suit’ against ‘any person . . . who is alleged to be in violation of any provision
of this chapter or regulation issued under the authority thereof,’” id. at 23 (quoting 16 U.S.C.
§ 1540(g)(1)(A)), and the plaintiffs “indisputably gave [the] BOEM [sixty]-days’ notice that
Section 7 consultations on which [the] BOEM was relying for its ESA compliance in approving
the Cape Wind project violated the statute and implementing regulations[,]” id. at 24. Moreover,
the plaintiffs argue that they “also commenced [Civil Action No. 10-1067] against [the] BOEM
by claiming that it was in violation of Section 7 of the ESA, including because the [b]iological
[o]pinions and underlying consultations on which [the] BOEM was relying violated the ESA and
implementing regulations.” Id. (internal quotation marks omitted). The federal defendants
respond that the plaintiffs’ “claims against [the] FWS and [the] NMFS challenging those actions
could only have been APA ‘maladministration claims’[] [and therefore] [ ] could not have been
authorized for judicial review under the ESA’s citizen[-]suit provision.” Fed. Defs.’ Opp’n at
12. The Court agrees with the federal defendants that the plaintiffs’ EJA claims are properly
brought pursuant to the EAJA, rather than the ESA.
Subsection (A) of 16 U.S.C. § 1540(g)(1) provides, in relevant part, that
any person[9] may commence a civil suit on his own behalf . . . to enjoin any
person, including the United States and any other governmental instrumentality or
agency (to the extent permitted by the eleventh amendment to the Constitution),
who is alleged to be in violation of any provision of this chapter or regulation
issued under the authority thereof.
9
The EJA defines “person” as “an individual, corporation, partnership, trust, association, or any other private entity;
or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political
subdivision of a State; or any other entity subject to the jurisdiction of the United States.” 16 U.S.C. § 1532(13).
12
16 U.S.C. § 1540(g)(1)(A) (2018). The Circuit has explained that
[s]ubsection (A) “is a means by which private parties may enforce the substantive
provisions of the ESA against regulated parties—both private entities and
[g]overnment agencies, but is not an alternative avenue for judicial review of the
Secretary’s implementation of the statute[]” . . . . [S]ubsection (A)’s “reference to
any “violation” of the ESA cannot be interpreted to include the Secretary’s
maladministration of the [Act],” and [ ] such maladministration “claims are not
subject to judicial review” under subsection (A).
Conservation Force v. Salazar, 699 F.3d 538, 541 (D.C. Cir. 2012) (fifth alteration in original)
(quoting Bennett v. Spear, 520 U.S. 154, 173 (1997)).
The plaintiffs’ reliance on subsection (A) of 16 U.S.C. § 1540(g)(1) as support for their
claim for attorneys’ fees on their ESA claims pursuant to the citizen-suit provision of the ESA,
see Pls.’ Mem. at 23 (citing 16 U.S.C. § 1540(g)(1)(A)), is misplaced. Their ESA claims against
the federal defendants are brought pursuant to § 1536 of the ESA, see Pls.’ Compl. ¶¶ 97–100,
102 (alleging violations of § 1536(a), (b), and (d)); Pls.’ Supp. Compl. ¶¶ 20–21 (alleging
violations of § 1536(a) and (b)), and the Supreme Court has held that § 1536 claims are
maladministration claims that are not authorized under the ESA’s citizen-suit provision, see
Bennett, 520 U.S. at 174 (“[T]he ESA[] . . . does not support the[] [petitioners’] claims based
upon the Secretary’s alleged failure to comply with § 1536.”); see also Franks v. Salazar, 816 F.
Supp. 2d 49, 58 (D.D.C. 2011) (holding that the plaintiffs’ claims alleging violations of §§ 1536
and 1537 “cannot be enforced via the ESA’s citizen-suit provision because they allege merely a
‘maladministration’ of the ESA”). Accordingly, the plaintiffs’ § 1536 claims are not authorized
under subsection (A) of 16 U.S.C. § 1540(g)(1).10 Therefore, the plaintiffs may not recover
10
Nor are the plaintiffs’ ESA claims authorized under the other subsections of 16 U.S.C. § 1540(g)(1). Subsection
(B) is not applicable because the plaintiffs did not seek to “compel the Secretary to apply, pursuant to section
1535(g)(2)(B)(ii) of th[e] [ESA], the prohibitions set forth in or authorized pursuant to section 1533d(d) or
1538(a)(1)(B) of th[e] [ESA] with respect to the taking of any resident endangered species or threatened species
with any State.” 16 U.S.C. § 1540(g)(1)(B); see Pls.’ Compl. ¶¶ 97–103 (not seeking to compel action by the
federal defendants pursuant to § 1535 of the ESA); Pls.’ Supp. Compl. ¶¶ 19–22 (same); Alliance Compl.
(continued . . . )
13
attorneys’ fees on their ESA claims pursuant to the ESA. See Native Fish Soc’y, 2014 WL
7331039, at *1 (“Because the fee shifting provision[] of the ESA . . . constitute[s] partial waiver
of sovereign immunity, the waiver[] must be construed in favor of federal defendants and against
an award of fees when such an award is not clearly authorized by the statute[].” (citing Ardestani
v. Immigration & Nationality Serv., 502 U.S. 129, 137 (1991)). The plaintiffs’ § 1536 claims
are, however, reviewable under the APA, see Bennett, 520 U.S. at 179 (finding that the
“[p]etitioners’ § 1533 claim is reviewable under the ESA’s citizen-suit provision, and [the]
petitioners’ [ ] [§ 1536] claims are reviewable under the APA”), and therefore the Court will
evaluate whether the plaintiffs are entitled to attorneys’ fees under the EAJA, see Native Fish
Soc’y, 2014 WL 7331039, at *1 (“[The] EAJA’s fee provisions are subordinated to those of the
ESA and only if a fee is not authorized under the ESA does the [C]ourt determine whether the
fee would be authorized pursuant to [the] EAJA.”).
2. The Plaintiffs’ Entitlement to Fees Under the EAJA
Having concluded that the plaintiffs’ request for attorneys’ fees on their ESA claims is
not authorized by the ESA, the Court next turns to whether the plaintiffs are entitled to attorneys’
fees on their ESA claims under the EAJA framework.
(. . . continued)
¶¶ 151–93 (not alleging violations of the ESA). And, subsection (C) is not applicable because“[s]ubsection (C)[] . . .
expressly authorizes suit against the Secretary, but only to compel him to perform a nondiscretionary duty under
§ 1533,” Conservation Force, 699 F.3d at 541, and the plaintiffs did not allege that the federal defendants violated
§ 1533 of the ESA, see Pls.’ Compl. ¶¶ 97–103 (not alleging violations of § 1533 of the ESA); Pls.’ Supp. Compl.
¶¶ 19–22 (same); Alliance Compl. ¶¶ 151–93 (not alleging violations of the ESA); see also Franks, 816 F. Supp. 2d
at 58 (“Because [the] plaintiffs do not allege that the [FWS] [ ] failed to perform any non-discretionary duty under
section 1533, they are not eligible for judicial review under subsection (C).”).
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a. Whether the Plaintiffs Were the Prevailing Parties
In determining whether the plaintiffs are entitled to attorneys’ fees on their ESA claims,
the Court must first determine whether they were prevailing parties within the meaning of the
EAJA. See Brooks, 2019 WL 120767, at *3.
In Thomas v. National Science Foundation, the [District of Columbia] Circuit
distilled a three-part test . . . for an EAJA prevailing party analysis. First, there
must be a “court-ordered change in the legal relationship between the plaintiff and
the defendant.” Second, the judgment must be in favor of the party seeking the
fees. Third, the judicial pronouncement must be accompanied by “judicial relief.”
Ctr. for Food Safety v. Burwell, 126 F. Supp. 3d 114, 120 (D.D.C. 2015) (citations omitted)
(quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492–93 (D.C. Cir. 2003)).
Here, the first and second prongs of the prevailing party test adopted in Thomas are
clearly satisfied with respect to the plaintiffs’ ESA claims. As to the first prong of the Thomas
prevailing party test, the Court’s initial remand of the plaintiffs’ first ESA claim against the FWS
and their ESA claim against the NMFS, and the Court’s second remand of the plaintiffs’ second
ESA claim against the FWS again in response to the Circuit’s decision, represent a “court-
ordered change in the legal relationship between [the parties],” id., because “the Court’s remand
[Order[s] required action[s] by the [FWS and the NMFS] that [the agencies] otherwise believed
that [they] had no duty to perform,” Nw. Coal. for Alternatives to Pesticides v. Envtl. Prot.
Agency, 421 F. Supp. 2d 123, 128 (D.D.C. 2006); see Kean for Congress Comm. v. Fed.
Election Comm’n, No. Civ. A. 04-0007 JDB, 2006 WL 89830, at *2 (D.D.C. Jan. 13, 2006)
(“[T]he Court’s remand order caused a change in the legal relationship between the parties
because it required [the] [agency] to do something it otherwise would not have been under an
obligation to do—reconsider the plaintiff’s administrative complaint . . . within [sixty] days of
the Court’s order.”). And, as to the second prong of the Thomas prevailing party test, the
15
Court’s entry of partial summary judgment for the plaintiffs on their first ESA claim against the
FWS and their ESA claim against the NMFS and the Circuit’s reversal of this Court’s dismissal
of the plaintiffs’ second ESA claim against the FWS were judgments “in favor of the party
seeking the fees.” Ctr. for Food Safety, 126 F. Supp. 3d at 120.
However, the third prong of the Thomas prevailing party test is not so easily resolved in
the plaintiffs’ favor. The Circuit has explained that
[w]hen a court retains jurisdiction, the civil action remains ongoing, and any fee
motion must await final judgment. In such a case, the remand order is only an
interim victory; final judgment will not be entered until proceedings on remand
conclude, and the determination of prevailing-party status properly awaits the
sequel (e.g., an outcome at the agency favorable to the plaintiff, as in Sullivan[v.
Hudson], or continued dispute in court. By contrast, when a court remands a case
based on agency error without retaining jurisdiction, the case is terminated and
the petitioner becomes a prevailing party without regard to the outcome on
remand (which can be challenged by way of a new petition . . . ).
SecurityPoint Holdings, Inc. v. Transp. Sec. Admin., 836 F.3d 32, 38 (D.C. Cir. 2016) (citation
omitted) (citing Sullivan v. Hudson, 490 U.S. 877, 881–82 (1989)). If a plaintiff does not obtain
a favorable result at the agency level,
[t]he relevant case law indicates that a plaintiff can be considered a prevailing
party regardless of the outcome on remand in two situations . . . . First, a remand
order may be sufficient where the terms of remand are such that a substantive
victory will obviously follow. Second, a remand order may be sufficient and the
end results immaterial where the complaint only sought to correct some
procedural error in the agency’s decision making process.
New Life Evangelistic Ctr., Inc. v. Sebelius, 847 F. Supp. 2d 50, 55 (D.D.C. 2012).
Here, the Court retained jurisdiction pending completion of the initial remand
proceedings, see Judgment at 1 (Dec. 15, 2014) (entering judgment after the initial remand
proceedings conducted by the FWS and the NMFS were completed), and also of the second
remand proceedings, see Order at 3 (Oct. 14, 2016), ECF No. 426 (“retain[ing] jurisdiction over
this case pending the action of [the FWS,] to whom the case [was] remanded”), and therefore the
16
Court’s “remand [O]rder[s] [were] only [ ] interim victor[ies]” for the plaintiffs on their ESA
claims against FWS and the NMFS, SecurityPoint Holdings, Inc., 836 F.3d at 38. And, the
plaintiffs did not achieve “outcome[s] . . . favorable to the[m]” on their ESA claims during either
the initial or second remand proceedings. Id. Regarding the initial remand, “[a]lthough the
Court’s [ ] summary judgment ruling found [two] substantive errors in [the FWS’s and the
NMFS’s] reasoning, the [initial] remand ultimately failed to supply any material relief to [the
plaintiffs]” because the agencies “w[ere] free to ‘reach the exact same conclusion on remand, so
long as [they] [sufficiently] articulate[d] [their] reasons for doing so.’” New Life Evangelistic
Ctr., Inc, 847 F. Supp. 2d at 55 (quoting Roberts v. Harvey, 468 F. Supp. 2d 147, 150 (D.D.C.
2007)); see Order at 3 (Nov. 18, 2014), ECF No. 415 (“instruct[ing] the FWS on remand to make
an independent determination about whether the feathering operational adjustment was a
reasonable and prudent measure, because [w]ithout any indication [in the administrative record]
that the FWS in fact made an independent determination about whether the adjustment was
appropriate, the Court c[ould ]not infer that such a determination ultimately factored into the
FWS’s decision” (second and third alterations in original) (citation and internal quotation marks
omitted)); id. at 3–4 (“instruct[ing] the NMFS on remand to issue an incidental take statement for
the take of right whales along with its [2010] biological opinion, despite the fact that the
biological opinion stated that the Cape Wind project was not likely to adversely affect right
whales, as the NMFS did not state that the incidental take would not occur or was not
anticipated” (citation and internal quotation marks omitted)). Indeed, both the FWS and the
NMFS reached the same conclusions they had earlier reached on remand. See 1st Remand Not.,
Ex. 1 (Bullard Ltr.) at 1 (NMFS setting the incidental take of right whales at zero); id., Ex. 5 (1st
Phifer Ltr.) at 2 (FWS not changing its conclusion on remand). And, regarding the second
17
remand, although the Circuit reversed this Court’s dismissal of the plaintiffs’ second ESA claim
against the FWS, this Court’s second remand to the FWS in response to the Circuit’s decision,
like the Court’s initial remand to the FWS and the NMFS, “ultimately failed to supply any
material relief to [the plaintiffs],” New Life Evangelistic Ctr., Inc., 847 F. Supp. 2d at 55, as the
FWS reached the same conclusion on remand, see 2d Remand Not., Ex. 1 (2d Phifer Ltr.) at 2
(FWS not changing its conclusion).
Because the plaintiffs did not achieve favorable outcomes at the agency level, the Court
must therefore assess whether either of the “two situations” that can render a plaintiff
“a prevailing party regardless of the outcome on remand” applies to either of the remands in this
case. New Life Evangelistic Ctr., 847 F. Supp. 2d at 55. The Court first addresses whether
either of the “two situations” apply to its initial remand of the plaintiffs’ first ESA claim against
the FWS and their ESA claim against the to the NMFS. “First, th[is] Court’s remand [O]rder
reached only [two] discrete issues, and a victory for [the plaintiffs] was neither obvious nor
required by the Court’s remand Order,” id., as evidenced by the remand’s “ultimate[] fail[ure] to
supply any material relief” to the plaintiffs, id. at 54. “Second, the Complaint [containing the
first ESA claim against the FWS and the ESA claim against the NMFS] does not seek relief from
some purely procedural flaw in the agenc[ies’] review process which could be remedied entirely
by remand itself.” Id. at 55. Indeed, the “[initial] remand [O]rder [did not] provide the entirety
of the relief sought” by the plaintiffs, id., because, rather than specifically requesting remand to
the agencies to cure any procedural deficiencies, the plaintiffs requested “a declar[ation] that the
[federal] defendants violated the ESA . . . [,]” and that the Court “vacate and enjoin [the]
[federal] [d]efendants’ authorization of Cape Wind Associates’ proposal to construct and operate
a wind power facility in federal waters[,]” Pls.’ Compl. ¶ 111; cf. Envtl. Def. Fund, Inc. v.
18
Reilly, 1 F.3d 1254, 1258 (D.C. Cir. 1993) (concluding that the plaintiff was a prevailing party
upon obtaining a remand order to the agency, where the complaint only sought a remand order
requiring the agency to participate in the notice and comment process, because “no further
proceedings were necessary in order for the plaintiff to have obtained all the relief that it sought
or that was available to it” (emphasis added)). Accordingly, because the plaintiffs did not
achieve a favorable outcome on remand at the agency level with respect to their first ESA claim
against the FWS and their ESA claim against the NMFS, and neither of the “two situations” that
render a plaintiff a prevailing party “regardless of the outcome on remand” applies to the initial
remand, the Court concludes that the plaintiffs are not prevailing parties with respect to their first
ESA claim against the FWS or their ESA claim against the NMFS. New Life Evangelistic Ctr.,
Inc., 847 F. Supp. 2d at 55,
The Court next turns to whether either of these “two situations” apply to the Court’s
second remand of the plaintiffs’ second ESA claim against the FWS. As with the Court’s initial
remand to the FWS and the NMFS, the Court’s second remand of the plaintiffs’ second ESA
claim against the FWS “reached only [one] discrete issue[], and a victory for [the plaintiffs] was
neither obvious nor required by the Court’s remand Order,” id., as evidenced by the remand’s
“ultimate[] fail[ure] to supply any material relief” to the plaintiffs, id. at 54; see 2d Remand Not.,
Ex. 1 (2d Phifer Ltr.) at 2 (FWS confirming its prior conclusion). However, unlike the
Complaint containing the plaintiffs’ first ESA claim against the FWS and their ESA claim
against the NMFS, the Supplemental Complaint containing the plaintiffs’ second ESA claim
against the FWS “only sought to correct some procedural error in the agency’s decision making
process,” New Life Evangelistic Ctr., Inc., 847 F. Supp. 2d at 55; see Pls.’ Supp. Compl. at 8
(“request[ing] that the Court enter an Order[] (1) declaring that the FWS and NMFS have
19
violated the . . . ESA; [and] (2) remanding and vacating the actions on remand”) and thus, with
respect to the plaintiffs’ second EJA claim, “[the] remand [O]rder was sufficient and the end
results immaterial,” New Life Evangelistic Ctr., Inc., 847 F. Supp. 2d at 55, because the
plaintiffs did, in effect “obtain[] all of the relief that [they] sought or that was available to
[them]” with respect to this claim, Reilly, 1 F.3d at 1258. Accordingly, as to their second ESA
claim, although the plaintiffs did not achieve a favorable outcome at the agency level, because
the Supplemental Complaint “only sought to correct some procedural error in the agency’s
decision making process,” the Court concludes that the plaintiffs are prevailing parties with
respect to their second ESA claim against the FWS. New Life Evangelistic Ctr., Inc., 847 F.
Supp. 2d at 55.
Accordingly, the Court concludes that the plaintiffs are not prevailing parties with respect
to their first ESA claim against the FWS or their ESA claim against the NMFS, but are
prevailing parties with respect to their second ESA claim against the FWS.
b. Whether the FWS’s Position was Substantially Justified
As to their second ESA claim against the FWS,11 the plaintiffs argue that the “[federal]
[d]efendants have not met their burden to demonstrate substantial justification” because
[t]he [District of Columbia] Circuit plainly did not regard it as a reasonable course
of action for the FWS to reopen the decision making record by considering new
information bearing on the practicability of a measure for minimizing the take of
endangered and threatened species, and without any explanation, ignor[ing] [the]
[plaintiffs’] submissions that argued feathering would have, at most, a miniscule
economic impact on the [Cape Wind] project, and that the government has
previously required other wind projects to make comparable operational
adjustments to minimize [harm to] protected species.
11
Because the Court concludes that the plaintiffs are not prevailing parties as to their first ESA claim against the
FWS or their ESA claim against the NMFS, the Court need not address whether the agencies’ actions as to those
claims were substantially justified.
20
Pls.’ Reply at 24 (fifth and ninth alterations in original) (internal quotation marks omitted).12
The federal defendants respond that “[t]he fact that FWS conducted the remand ordered by this
Court without considering [the plaintiffs’] submission [ ] does not disprove [the] FWS’[s]
substantial justification” because “the remand to [the] FWS was not based on a finding that the
[incidental take statement] lacked substantial evidence or was substantially invalid” and the
“FWS’[s] action did not suffer from the defects common to positions that are not substantially
justified.” Fed. Defs.’ Opp’n at 26 (internal quotation marks omitted).
The EAJA instructs a court to award attorneys’ fees unless the court finds the
position of the United States was substantially justified or that special
circumstances make an award unjust. The [g]overnment has the burden of
proving that its position, including both the underlying agency action and the
arguments defending that action in court, was substantially justified within the
meaning of the [EAJA].
Calloway v. Brownlee, 400 F. Supp. 2d 52, 55 (D.D.C. 2005) (Walton, J.) (citation and internal
quotation marks omitted). “A position is ‘substantially justified’ if it has ‘a reasonable basis in
law and fact.’” Animal Legal Def. Fund v. Perdue, 292 F. Supp. 3d 315, 318 (D.D.C. 2018)
(quoting Pierce v. Underwood, 487 U.S. 552, 555 n.2 (1988)).
“[W]hether agency action invalidated as arbitrary and capricious might nevertheless have
been substantially justified depends on what precisely the court meant by “arbitrary and
capricious.” F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 595 (D.C. Cir. 1996). Indeed, “a
determination that an agency acted arbitrarily and capriciously because it failed to provide an
adequate explanation or failed to consider some relevant factor in reaching a decision ‘may not
warrant a finding that [the] agency’s action lacked substantial justification[,]’” id. (alteration in
original) (quoting Wilkett v. Interstate Comm. Comm’n, 844 F.2d 867, 871 (D.C. Cir. 1988));
12
The plaintiffs’ argument regarding substantial justification is confined to their assertion that the FWS’s underlying
action was not substantially justified; they do not argue that the federal defendants’ litigation position was not
substantially justified. See generally Pls.’ Mem.
21
see Fed. Election Comm’n v. Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986) (“Concluding that a
factor is ‘relevant,’ like finding an explanation ‘inadequate,’ sometimes may reflect a judgment
call about which reasonable grounds for disagreement exist. Thus, in a particular setting, an
agency’s failure to consider a relevant factor may be understandable, even though the failure
contravenes the APA standard of avoiding ‘arbitrary and capricious conduct.’”), and “agency
neglect of a relevant factor in reaching its decision does not invariably doom the decision to the
ranks of unreasonableness, as is clear from the oft-stated principle that an agency may lawfully
reach the same conclusion after taking the omitted factor into account[,]” Rose, 806 F.2d at
1088. In determining whether the agency was substantially justified, “[t]he judgment is whether
the [g]overnment’s actions were slightly more than reasonable.” Id. at 1090.
Here, although the Circuit did conclude that “the [FWS’s] decision to disregard [the]
plaintiffs’ submission was arbitrary and capricious,” Pub. Emps. for Envtl. Responsibility, 827
F.3d at 1090, this Court concludes that the FWS’s failure to consider the plaintiffs’ scientific and
economic data was “understandable, even though the failure contravene[d] the APA standard of
avoiding ‘arbitrary and capricious conduct,’” Rose, 806 F.2d at 1088, because the Court’s initial
remand Order did not clearly reopen the record, see Pub. Emps. for Envtl. Responsibility, 827
F.3d at 1090 (“[The] [p]laintiffs may be correct that the that the district court’s remand order
required the [FWS] to ‘make’ a new independent determination, and therefore reopened the
record. On the other hand, the [FWS] may be correct that the [C]ourt’s remand order required
the [FWS] to only ‘clarify’ that it made an independent determination in 2008. We need not
decide who is right.”), see also Order at 2 (Oct. 27, 2016), ECF No. 431 (“order[ing] that the
November 21, 2008 [i]ncidental [t]ake [s]tatement is remanded to [the] FWS to take appropriate
actions consistent with the Circuit’s opinion” (capitalization removed)), and was not the type of
22
arbitrary and capricious conduct that “the [g]overnment in fees litigation may well suffer
considerably greater difficulty in demonstrating . . . [was] nonetheless ‘substantially justified,”
Rose, 806 F.2d at 1089 (providing, as examples, “an agency’s unjustifiably disparate treatment
of two similarly situated parties” and “an agency’s failure to apply a rule in a situation to which
the rule obviously pertains”). “In fact, [consistent with what this Court noted in another fee
dispute case under the EAJA,] even this Court had sided with the agency prior to the Circuit’s
remand.” Tripoli Rocketry Ass’n v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 698 F.
Supp. 2d 168, 176 (D.D.C. 2010) (Walton, J.); see Order at 6 (Nov. 18, 2014), ECF No. 415
(dismissing the plaintiffs’ Supplemental Complaint). Accordingly, the Court concludes that
“[a]lthough the [FWS’s] position was determined by the Circuit not to be in compliance with the
APA, . . . the [federal defendants] had a good-faith basis for maintaining [their] position prior to
the Circuit[’s] [ ] ruling,” Tripoli Rocketry Ass’n, 698 F. Supp. 2d at 176, and “[t]herefore, the
Court finds the pre-remand actions of the [FWS] [prior to the Circuit’s remand] to be
substantially justified and will not award attorney[s’] fees or costs to the plaintiffs under the
EAJA” with respect to the plaintiffs’ second ESA claim against the FWS, id. at 177.
Accordingly, because the plaintiffs are not the prevailing parties as to their first ESA
claim against the FWS and their ESA claim against the NMFS, the Court concludes that the
plaintiffs are not entitled to attorneys’ fees on their first ESA claim against the FWS and their
ESA claim against the NMFS pursuant to the EAJA. And, because the federal defendants have
demonstrated that the FWS’s position was substantially justified as to the plaintiffs’ second ESA
claim against the FWS, the Court concludes that the plaintiffs are not entitled to attorneys’ fees
on their second ESA claim against the FWS pursuant to the EAJA.
23
B. The Alliance’s Entitlement to Fees
The plaintiffs argue that the Alliance is entitled to attorneys’ fees on its NEPA claim
against the BOEM pursuant to the EAJA. See Pls.’ Mem. at 28–33. The federal defendants
respond that the Alliance is not entitled to attorney’s fees on this claim because “[a]t every level,
[the] BOEM’s conduct and litigating position were reasonable, as evidenced by this Court’s
Order upholding the agency’s actions entirely.” Fed. Defs.’ Opp’n at 36. As a preliminary
matter, the Court notes that the defendants do not respond to the plaintiffs’ argument that “there
can be no serious dispute that the Alliance is a ‘prevailing party’ for EAJA purposes[,]” Pls.’
Mem. at 29; see Fed. Defs’ Opp’n at 36–45. Therefore, the Court will treat the plaintiffs’
argument that they are the prevailing parties with respect to the Alliance’s NEPA claim against
the BOEM as conceded, see Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 892
F.3d 332, 345 (D.C. Cir. 2018) (“In the context of non-dispositive motions, we have affirmed
district court decisions that treated as conceded an issue left entirely unaddressed by the [non-
movant] in a timely filed response.”), and proceed to the second step of its analysis of whether
the Alliance is entitled to attorneys’ fees under the EAJA.
1. Whether the BOEM’s Position was Substantially Justified
The Court first considers whether the BOEM’s position was substantially justified, the
second step of the entitlement to fees analysis under the EAJA. See Brooks, 2019 WL 120767,
at *3. The plaintiffs argue that the “BOEM’s [p]osition [w]as [n]ot [s]ubstantially [j]ustified.”
Pls.’ Mem. at 32. The federal defendants respond that the “BOEM’s underlying action and
litigation position . . . w[ere] substantially justified” because the plaintiffs’ “failure on every
claim but one [ ] [on their appeal to] the Circuit . . . evidences the reasonableness of [the]
BOEM’s overall position” and that “even on the single of all the many issues [the plaintiffs] . . .
24
[prevailed on in the Circuit]—[the] BOEM’s consideration of impacts to the subsurface
environment—[the] BOEM’s underlying conduct and litigation position was supported by both
fact and law.” Fed. Defs.’ Opp’n at 36.
As a preliminary matter, the Court agrees with the plaintiffs that the federal defendants’
“refer[ence] to [the] BOEM’s position on the [Cape Wind] project ‘as a whole’ or to [the] NEPA
issues other than the adequacy of [the] BOEM’s analysis of the seafloor gets [the federal]
[d]efendants nowhere.” Pls.’ Reply at 13 (citation omitted). Regarding whether the
government’s position was substantially justified, the Circuit has explained that “such a ‘holistic’
approach to the government’s position is contrary to [the] EAJA, and [ ] the relevant ‘position’
of the government is that which corresponds to the claim or aspect of the case on which the
private party prevailed.” Jacobs v. Shiffer, 204 F.3d 259, 264 (D.C. Cir. 2000) (citation omitted)
(citing Air Transp. Ass’n of Can. v. Fed. Aviation Admin., 156 F.3d 1329, 1332 (D.C. Cir.
1998)). Accordingly, the relevant inquiry is whether the BOEM’s underlying actions and
litigation position with respect to the Alliance’s NEPA claim against the BOEM were
substantially justified, not whether the BOEM’s underlying actions and litigation position as a
whole were substantially justified.
As to the Alliance’s NEPA claim against the BOEM, the federal defendants argue that
the “BOEM was both factually and legally ‘substantially justified’ to argue that it indeed had
considered the subsurface environment and taken a ‘hard look’ at the geological and geophysical
environment in Nantucket Sound,” Fed. Defs.’ Opp’n at 39, because “extensive seabed surveys
were completed between 2001 and 2005 and disclosed in the [environmental impact statement],”
and that
Richard Clingan, a BOEM geologist who called for more detailed data before
[the] BOEM should consider “issuing a permit” for the [Cape Wind] [p]roject . . .
25
acknowledged that the data sets available for the [environmental impact
statement] constituted “an informative reconnaissance-level survey of the project
area . . . [,]”
id. at 39–40 (internal quotation marks omitted) (emphasis added).
The Court cannot conclude, based on this argument, that the federal defendants have
sustained their burden to demonstrate that the BOEM’s underlying actions with respect to the
Alliance’s NEPA claim against the BOEM was substantially justified. At the outset, the Court is
troubled by the “[federal] [d]efendants’ “highly selective exegesis of [ ] [Clingan’s] full
quotation.” Pls.’ Reply at 16. As the plaintiffs correctly point out, the federal defendants made
this exact argument—indeed, using the very same excerpted quotation—on appeal, and the
Circuit squarely rejected it, noting that “[t]he [BOEM’s] quotation [was] a bit misleading”
because “Clingan’s full email sa[id] that ‘[a]t first impression, [Cape Wind] conducted an
informative reconnaissance-level of the project area, but ‘[u]nfortunately, [Cape Wind] has not
acquired sufficient geophysical data’ on Nantucket Sound.” Pub. Emps. for Envtl.
Responsibility, 827 F.3d at 1083 n.4 (second emphasis added) (third, fourth, and fifth alterations
in original). Moreover, it was the BOEM’s very “rel[iance] on data so roundly criticized by its
own experts,” including Clingan, that caused the Circuit to conclude that the BOEM had not
fulfilled its NEPA obligations. Id. at 1083. Accordingly, the Court concludes that the BOEM’s
underlying actions in regard to the Alliance’s NEPA claim against the BOEM were not
substantially justified.13
2. Whether Special Circumstances Make an Award of Fees Unjust
Having concluded that the BOEM’s underlying actions were not substantially justified,
the Court next turns to whether the federal defendants have identified special circumstances that
13
Because the Court concludes that the BOEM’s underlying actions in regard to the Alliance’s NEPA claim against
the BOEM were not substantially justified, the Court need not address whether the BOEM’s litigation position in
regard to the Alliance’s NEPA claim against the BOEM was also not substantially justified.
26
would render an award of attorneys’ fees unjust. The plaintiffs argue that “[t]here is no basis in
law or fact for denying the[] [Alliance] a fee award to which [it] [is] otherwise entitled.” Pls.’
Reply at 25 n.14. The federal defendants respond that “the Alliance . . . used a litany of claims
to beset the [Cape Wind] [p]roject with some eight years of litigation that was contentious,
protracted—and ultimately fruitless,” and that “[g]iven that [the Alliance] ha[s] alluded to a
strategy of delay to this Court and claimed victory regardless of the merits of [its] claims, a fee
award is unjust.” Fed. Defs.’ Opp’n at 45.
Although the “EAJA does not define the term ‘special circumstances’ or provide
examples of the circumstances that would make a fee award unjust[,]” Brooks, 2019 WL
120767, at *4,
[c]ourts have generally found that the statutory language expresses a
congressional directive for courts to apply traditional equitable principles in
determining whether a party should receive a fee award under [the] EAJA. In
determining the circumstances under which th[e] [special circumstances]
exception applies, the scope of a district court’s equitable powers is broad, and the
equitable doctrine of unclean hands pervades the jurisprudence of special
circumstances under [the] EAJA.
Id. (citations and internal quotation marks omitted).
The federal defendants appear to allege, although not explicitly, unclean hands on the
part of the Alliance, based on the Alliance’s purported attempt to “delay” the Cape Wind project
by suing to impede construction of the Cape Wind project. See Fed. Defs.’ Opp’n at 44. Even if
this assessment is accurate, an
unclean hands claim requires of a plaintiff fair dealing and righteous conduct with
references to matters concerning which they seek relief. While bringing a lawsuit
brings the contested issues before the [C]ourt, the act of bringing suit is not, itself,
the matter concerning which a plaintiff seeks relief. Thus, the Court must focus
on the alleged inequitable conduct in the gaining or the use of the right being
contested, not alleged inequitable conduct in the bringing of the lawsuit.
27
Sears, Roebuck & Co. v. Sears plc, 744 F. Supp. 1297, 1310 (D. Del. 1990) (holding that the
defendant “c[ould ]not maintain a claim of unclean hands based on [the plaintiff’s] alleged intent
in bringing th[e] action as based on [the plaintiff’s] alleged litigation strategy”). Therefore, the
Court concludes that the federal defendants have not satisfied their burden to demonstrate that
special circumstances would render an award of attorneys’ fees unjust.
Accordingly, because the plaintiffs have demonstrated that the Alliance was a prevailing
party in this litigation as to its NEPA claim against the BOEM, and because the federal
defendants have not demonstrated that their challenged conduct as to this claim was substantially
justified or that special circumstances exist that would make a fee award unjust, the Court
concludes that the Alliance is entitled to attorneys’ fees as to its NEPA claim against the BOEM
under the EAJA.
IV. CONCLUSION
For the foregoing reasons, the Court grants in part and denies the plaintiffs’ motion for
attorneys’ fees. Specifically, the Court grants the motion to the extent that it seeks a finding that
the Alliance is entitled to an award of attorneys’ fees under the EAJA regarding its NEPA claim
against the BOEM. The Court denies the motion in all other respects.14
SO ORDERED this 2nd day of December, 2019.
REGGIE B. WALTON
United States District Judge
14
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
28