United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 2, 2008 Decided February 13, 2009
No. 07-5026
JOYCE M. HILL,
APPELLANT
v.
ROWAN W. GOULD , ACTING DIRECTOR , UNITED STATES FISH
AND WILDLIFE SERVICE , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01926)
John F. Karl Jr. argued the cause and filed the briefs for
appellant.
Ellen J. Durkee, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With her on the brief
was Kathryn E. Kovacs, Attorney. Larry M. Corcoran,
Attorney, entered an appearance.
Before: HENDERSON, RANDOLPH , and GARLAND , Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge RANDOLPH .
RANDOLPH , Circuit Judge: After winning a lawsuit
against the Secretary of the Interior, Joyce M. Hill filed an
application to recover her attorney’s fees and expenses under the
Equal Access to Justice Act, 28 U.S.C. § 2412. The district
court denied the application on the basis that the Secretary’s
position at the merits stage was substantially justified. Hill
appealed. We affirm.
I.
The mute swan, a bird indigenous to Eurasia, was
introduced into the United States for ornamental purposes in the
19th and 20th centuries. Joyce Hill took up the cause of the
mute swan in 1999. She sued nineteen federal, state and private
defendants, complaining of numerous wrongs the mute swan
species had allegedly suffered. Her principal claim was that the
Secretary of the Interior improperly denied the species the
protection of the Migratory Bird Treaty Act, 16 U.S.C.
§§ 703-712. The Treaty Act limits inter alia the pursuit, hunting
and killing of migratory birds covered by four treaties to which
the United States is a party. See Humane Society v. Glickman,
217 F.3d 882, 884–85 (D.C. Cir. 2000). The Secretary of the
Interior wields broad authority to implement the treaties. 16
U.S.C. § 712(2); see also id. § 704. Pursuant to that authority,
the Secretary published a list of protected migratory birds in
1973 and revised it in 1985. List of Migratory Birds, 50 C.F.R.
§ 10.13 (1999). The list did not include the mute swan.
The district court held that the Secretary’s List of
Migratory Birds rested on a permissible construction of the
Treaty Act and granted the Secretary’s motion for summary
judgment. Hill v. Babbitt, No. 99-CV-1926, 2000 WL
33912018 (D.D.C. Sept. 27, 2000). On appeal, this court
3
reversed. In Hill v. Norton, 275 F.3d 98 (D.C. Cir. 2001), the
court held that the Secretary’s exclusion of the mute swan from
the protected bird list was arbitrary and capricious under the
Administrative Procedure Act.
Hill’s winning claim turned on the meaning of a key
statutory term — “migratory bird” — which the Treaty Act did
not define at the time of Hill’s suit.1 The Act stated only that its
protections extend to “any migratory bird . . . included in the
terms of” four bilateral treaties that the United States signed
with Great Britain (on behalf of Canada), Mexico, Japan and the
Soviet Union. 16 U.S.C. § 703(a). Each treaty defines the
protected class of birds differently. See Hill, 275 F.3d at 100–01
(cataloguing the relevant treaty language). By the time Hill
appealed to this court, all parties agreed that the Canada Treaty
should control because it is the broadest of the four treaties. Id.
at 103–04. The introductory Proclamation to the Canada Treaty
refers to birds that “traverse” the signatory nations in their
“annual migrations.” Convention for the Protection of
Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 39 Stat. 1702
(“Canada Treaty”). The Canada Treaty also specifically
identifies “Anatidae, or waterfowl, including brant, wild ducks,
geese and swans” as a protected bird family. Id. art. I, § 1(a).
1
The Hill panel recounted the regulatory history. See 275
F.3d at 101–02. The first regulations implementing the Treaty Act in
1916 appeared to define “migratory bird” to include all swans, but in
1965 the Secretary added the requirement that the birds be
“indigenous to the United States.” See id. at 101 (quoting 30 Fed.
Reg. 5,650 (Apr. 21, 1965)). Two years later, the Secretary again
amended the regulations, adding a new definition that did not include
the indigenous requirement, without striking the old definition. Id. at
102. These dual definitions remained in effect until the Secretary first
published the disputed list in 1973. Id.
4
The Hill panel thought the relevant statutory and treaty
language “strongly indicate[d]” that the mute swan is a protected
migratory bird. 275 F.3d at 99. But the panel declined to hold
that the plain meaning “positively foreclosed” the Secretary’s
interpretation. Id. at 105. The court’s hesitation stemmed from
the unusual regulatory scheme, id. at 99, the novelty of the
question, and the traditional “great weight” that courts give to
the Executive Branch’s treaty interpretations, id. at 104 (quoting
Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)).
The court considered whether, despite the ostensibly
plain text, the Secretary’s interpretation might be permissible.
Id. at 105. The Secretary offered three main reasons for
excluding the species: the mute swan is not native to the United
States; the mute swan is harmful to other protected bird species
and their environments; and extending protection to the mute
swan might conflict with other statutory obligations. See id. As
to the first two points, the court had “no idea whether these
arguments are pertinent, and, if so, whether they are compelling”
because the agency record was “barren” on those issues. Id. at
105. The court therefore held that the Secretary failed to justify
her interpretation and vacated the list insofar as it excluded the
mute swan. Id. at 107.
II.
With a merits victory secure, Hill petitioned the district
court for an award of attorney’s fees pursuant to the Equal
Access to Justice Act. The Act authorizes an award of fees to a
party prevailing against the government unless the government
establishes that its position was “substantially justified or . . .
special circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A). A position is substantially justified if the
underlying agency action and the legal arguments in defense of
the action had “a reasonable basis both in law and fact.” Pierce
5
v. Underwood, 487 U.S. 552, 565 (1988) (citation omitted); see
also Halverson v. Slater, 206 F.3d 1205, 1208 (D.C. Cir. 2000).
That standard demands more than mere non-frivolousness, but
less than a showing that the government’s “decision to litigate
was based on a substantial probability of prevailing.” Taucher
v. Brown-Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005)
(quoting Spencer v. NLRB, 712 F.2d 539, 557 (D.C. Cir. 1983)).
The district court concluded that the Secretary’s position was
substantially justified and denied Hill’s fee application on that
basis. We review the district court’s decision for abuse of
discretion. Id. at 1172.
The Secretary’s chief argument before the merits panel
was that the Treaty Act did not apply to species of migratory
birds that were not native to North America. The Secretary
mustered ample evidence to support the factual assertion that the
mute swan is an exotic species. According to the Secretary’s
expert testimony and documentary evidence, all feral North
American mute swans are descended from escaped and released
members of ornamental groups introduced into the United
States.
In support of her assertion that the Treaty Act does not
apply to exotic species, the Secretary argued that the taxonomic
listing of bird families in Article I of the Canada Treaty reveals
a latent ambiguity in the otherwise unqualified term “migratory
birds.” The treaty lists protected bird families, and each family
name is followed by the common names of species and species
groups in each family. See Canada Treaty, art. I, § 1(a); see also
Protocol Amending the 1916 Convention for the Protection of
Migratory Birds in Canada and the United States (“Canada
Protocol”) art. I, § 1, U.S.-Can., Dec. 14, 1995, Sen. Treaty Doc.
104-28. According to the Secretary, each enumerated species
and at least some members of each enumerated group were
native to the signatory nations. By contrast, many nonnative
6
species within each family were not listed. From that pattern,
the Secretary argued, the Secretary reasonably understood the
Canada Treaty to distinguish between native species and exotic
species introduced to North America by man. The Secretary
therefore believed it proper to limit the Treaty Act’s protections
to swan species native to North America.2
The Secretary further argued that reading the treaties to
cover the mute swan would be a self-destructive interpretation.
The mute swan is a beautiful bird but it can be nasty. The
Secretary produced evidence that the species is a menace to
other birds protected by federal law. A territorial aggressor and
prolific procreator, the mute swan depletes native birds’ food
sources and occupies their nesting grounds. The Acting Director
2
In response to this court’s decision in Hill, the Migratory
Bird Treaty Reform Act amended the Migratory Bird Treaty Act to
limit its scope “only to migratory bird species that are native to the
United States or its territories.” Pub. L. No. 108-447, Div. E., Title I,
§ 143(b), 118 Stat. 2809, 3071 (codified at 16 U.S.C. § 703(b)(1)); see
also Fund for Animals v. Norton, 472 F.3d 872, 877 (D.C. Cir. 2006)
(noting the amendment was “a correction of what Congress believed
to be an erroneous judicial interpretation of a treaty”). The Secretary
argues that the Reform Act and its accompanying legislative history
show conclusively that the Secretary’s native-only interpretation was
reasonable. It is true that, in other contexts, some courts sometimes
treat an amendment that clarifies disputed statutory language as an
expression of the original act’s meaning. See, e.g., Wesson v. United
States, 48 F.3d 894, 900–01 (5th Cir. 1995); see also 1A N. Singer,
Sutherland Statutes and Statutory Construction § 22:31 (6th ed. 2008).
On the other hand, there is reason to doubt the interpretative value of
an amendment which, like the Reform Act, long postdates the
amended statute. Rainwater v. United States, 356 U.S. 590, 593
(1958); cf. Sullivan v. Finkelstein, 496 U.S. 617, 628 n.8 (1990). But
we need not decide the relevance of the Reform Act because we think
the Secretary’s position was reasonable even without it.
7
of the U.S. Fish and Wildlife Service concluded that “mute
swans pose a serious threat to the ecological integrity of many
areas, including the National Wildlife Refuge System and other
Federal Lands committed to the maintenance of natural wildlife
diversity.”
The Secretary’s concern about the impact of destructive
exotic species like the mute swan had some basis in three of the
migratory bird treaties. Provisions in the treaty with Japan, the
treaty with the former Soviet Union, and the Canada Protocol
required the signatory countries to control the importation of
live animals that may be harmful to migratory birds or their
environments. See Convention for the Protection of Migratory
Birds and Birds in Danger of Extinction, and Their
Environment, art. VI, U.S.-Japan, Mar. 4, 1972, 25 U.S.T. 3331;
Convention Concerning the Conservation of Migratory Birds
and their Environment, art. IV § 2(b), U.S.-U.S.S.R., Nov. 19,
1976, 29 U.S.T. 4649; Canada Protocol, art. IV. The Secretary
also pointed out that some mute swans in North America were
introduced only after the signing of the first migratory bird
treaty in 1916.3
Of course the Secretary’s position did not prevail. But
the question is not whether the Secretary had the better
arguments. It is enough that the Secretary’s interpretation and
legal arguments had a reasonable basis in fact and in the text and
purpose of the controlling statute and treaties. There was
nothing unusual or unsound about the Secretary’s basic premise
that an enactment’s context and underlying policies can cast
doubt on “‘the most natural reading’ of a statutory phrase.”
3
For example, the Secretary presented evidence that the entire
mute swan population of the Chesapeake Bay — where Hill alleged
aesthetic injury — descends from 5 ornamental swans that escaped
from waterfront estates in 1962.
8
Tataranowicz v. Sullivan, 959 F.2d 268, 276 (D.C. Cir. 1992)
(quoting McCarthy v. Bronson, 500 U.S. 136, 139 (1991)). Nor
did the Secretary’s justification suffer from the defects common
to positions that are not substantially justified. It was not “flatly
at odds with the controlling case law,” Am. Wrecking Corp. v.
Sec’y of Labor, 364 F.3d 321, 326–27 (D.C. Cir. 2004) (internal
quotation marks omitted), and the Secretary certainly did not
press her position in “the face of an unbroken line of authority,”
Precision Concrete v. NLRB, 362 F.3d 847, 851–52 (D.C. Cir.
2004), or against a “string of losses,” Contractor’s Sand &
Gravel, Inc. v. Fed. Mine Safety & Health Review Comm’n, 199
F.3d 1335, 1341 (D.C. Cir. 2000) (internal quotation marks
omitted). We are satisfied that the district court acted within its
discretion in concluding that the Secretary’s position was, on the
whole, “justified to a degree that could satisfy a reasonable
person.” Underwood, 487 U.S. at 565.
That assessment is consistent with the merits panel’s
reasoning. See Taucher, 396 F.3d at 1174. The panel did not
resolve the Secretary’s arguments concerning the
native–nonnative distinction or the bird’s ecological impact
either way. Instead the panel stated that these arguments
amounted to “post hoc rationalizations” which could not save
the regulation. Hill, 275 F.3d at 105 (quoting Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The
Secretary lost because the agency record was “utterly silent on
any basis, let alone any reasonable basis, to support exclusion of
the mute swan from the List of Migratory Birds.” Id.
At the fee stage, however, an inadequate agency record
is not necessarily fatal. See F.J. Vollmer Co., Inc. v. Magaw,
102 F.3d 591, 595 (D.C. Cir. 1996). We explained in FEC v.
Rose, 806 F.2d 1081 (D.C. Cir. 1986), that the “adequacy of an
agency’s explanation” is in some cases “logically unrelated to
whether the underlying agency action is justified under the
9
organic statute,” id. at 1088. In this case, the Secretary took a
reasoned position on a novel issue, and the sparse agency record
did not “obviously defy the requirements of the [Administrative
Procedure Act].” Id. at 1089. The void in the record did not
result from the Secretary’s failure to respond to “relevant and
significant” comments. Grand Canyon Air Tour Coal. v. FAA,
154 F.3d 455, 468 (D.C. Cir. 1998). To the contrary, Hill
identified no comment by any party concerning the exclusion of
nonnative birds in response to the agency’s notices of proposed
rulemaking in 1973 and in 1984. 38 Fed. Reg. 10,208 (Apr. 25,
1973); 49 Fed. Reg. 23,197 (June 5, 1984).
Nor can we fault the Secretary for thinking the court
might accept counsel’s elaboration of the Secretary’s
interpretation. At least until the Supreme Court’s decision in
United States v. Mead Corp., 533 U.S. 218 (2001), this court in
some circumstances deferred to agency interpretations of
statutes and regulations articulated for the first time in legal
briefs.4 See, e.g., Ass’n of Bituminous Contractors, Inc. v. Apfel,
156 F.3d 1246, 1252 (D.C. Cir. 1998) (deferring to an agency’s
litigation position interpreting a statute where it appeared simply
to articulate an explanation of longstanding agency practice);
Nat’l Wildlife Fed’n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir.
1997). The Secretary took a reasonable approach to that
relatively unsettled area of administrative law. See Lundin v.
Mecham, 980 F.2d 1450, 1460 (D.C. Cir. 1992).
In sum, the thinness of the agency record at the merits
stage does not alter our conclusion that the Secretary’s
4
The fee stage analysis focuses on the reasonableness of the
government’s position at the “time the government took this position.”
Trahan v. Brady, 907 F.2d 1215, 1219 (D.C. Cir. 1990). The
government first took its litigation position before Mead was decided.
10
interpretation and arguments had a reasonable basis in fact and
law. The district court did not abuse its discretion in so finding.5
Affirmed.
5
We also deny Hill’s request to increase her award of costs
under Federal Rule of Civil Procedure 54(d) because she has not
shown that the district court abused its discretion in calculating the
costs.