United States Court of Appeals, District of Columbia Circuit
Motion for Attorneys' Fees under the Federal Equal Access
to Justice Act
Pelto, Bradley Graveline, and Laura M. Burson were on the
motion for attorneys' fees under the Federal Equal Access
to Justice Act and the supplemental briefs for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Mark B. Stern and John S. Koppel, Attorneys,
U.S. Department of Justice, were on the response in
opposition and the supplemental briefs for respondent.
Before: Henderson and Srinivasan, Circuit Judges, and
Williams, Senior Circuit Judge.
Williams, Senior Circuit Judge.
SecurityPoint Holdings, Inc. v. TSA, 769 F.3d 1184
(D.C. Cir. 2014), we vacated an order of the Transportation
Security Administration for want of reasoned decisionmaking
and remanded the case for further proceedings. SecurityPoint
now seeks an award of attorneys' fees as a prevailing
party under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d)(1)(A) (2012). We
conclude that SecurityPoint is a prevailing party and, in
doing so, overrule Waterman Steamship Corp. v. Maritime
Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990), as
inconsistent with the Supreme Court's later decision in
Shalala v. Schaefer, 509 U.S. 292
(1993).We also conclude that the challenged order
was not substantially justified. But because SecurityPoint
achieved only a partial success in the litigation, we award
only a portion of the fees sought.
* * *
merits decision in SecurityPoint Holdings concerned
an advertising program at airport security checkpoints in
which participating airports, under a Memorandum of
Understanding ("MOU") with TSA, would contract with
private companies like SecurityPoint to obtain bins and other
equipment for use at checkpoints. In exchange, the private
companies would receive a portion of the revenue from
advertisements displayed inside the checkpoint bins.
TSA amended its template for such MOUs to include, among
other things, a provision requiring airports to indemnify TSA
from liability for intellectual property claims.
SecurityPoint opposed these changes and requested that TSA
cease and desist from implementing them. TSA refused,
prompting SecurityPoint to seek review in this court. We
granted SecurityPoint's petition for review, vacated the
denial of the cease-and-desist request as arbitrary and
capricious, and remanded the case to TSA. We didn't reach
SecurityPoint's principal claim-that TSA had amended the
MOU template in retaliation for SecurityPoint's patent
infringement lawsuit against TSA-but held that
"TSA's explanation for persisting in the change, in
the face of SecurityPoint's arguments that the change was
unnecessary and self-defeating for TSA, failed to satisfy the
minimum requirements of reasoned decisionmaking."
SecurityPoint Holdings, 769 F.3d at 1186.
our decision issued, SecurityPoint filed a timely application
for attorneys' fees under the EAJA. We deferred
consideration of the application pending TSA's actions on
remand. After the proceedings on remand were completed, the
parties submitted additional briefs on the fee motion and, at
our request, filed briefs discussing whether the
Waterman case should be overruled.
* * *
EAJA directs a court to award "fees and other
expenses" to a "prevailing party" in a civil
action against the United States unless the government's
position was "substantially justified" or
"special circumstances make an award unjust." 28
U.S.C. § 2412(d)(1)(A). "[F]ees and other
expenses" include "reasonable attorney fees."
Id. § 2412(d)(2)(A). A fee application must be
filed within 30 days from entry of final judgment,
id. § 2412(d)(1)(B), defined under the EAJA as
"a judgment that is final and not appealable, "
id. § 2412(d)(2)(G). (A final judgment is not
appealable within the meaning of this provision if the time
for appeal has expired without one being filed. Melkonyan
v. Sullivan, 501 U.S. 89, 96 (1991); see also
Al-Harbi v. INS, 284 F.3d 1080, 1083-84 (9th Cir.
2002) (considering the opportunity to apply for certiorari).)
determining whether a litigant is a prevailing party, we
apply a three-part test: "(1) there must be a
court-ordered change in the legal relationship of the
parties; (2) the judgment must be in favor of the party
seeking the fees; and (3) the judicial pronouncement must be
accompanied by judicial relief." Initiative &
Referendum Inst. v. USPS, 794 F.3d 21, 23-24 (D.C. Cir.
2015) (citation and internal quotation marks omitted). Our
2014 decision clearly satisfies the second and third
requirements. The question is whether the decision effected
"a court-ordered change in the legal relationship of the
principally on Waterman, TSA argues that
SecurityPoint is not a prevailing party because it achieved a
"purely procedural victory." TSA Original Br. 3.
That appears to be a correct reading of Waterman.
There the Maritime Subsidy Board granted U.S. Lines authority
to conduct unsubsidized around-the-world shipping service
without giving competing companies an opportunity to contest
the grant. The competitors sued the Board in district court,
which found an abuse of discretion in the Board's refusal
to entertain their objections; the district court remanded
the case and thereby afforded the competitors the missed
opportunity to contest the grant. While the remand was
pending before the Board, the district court awarded the
competitors attorneys' fees under the EAJA. This court
reversed, holding that such a procedural victory didn't
make the plaintiffs prevailing parties. We reasoned that
"[f]rom a party's viewpoint . . . correct procedures
and use of correct substantive standards 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." 901 F.2d at 1122. The
remand in Waterman ...