Initiative & Referendum Institute v. United States Postal Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 1, 2015 Decided July 17, 2015

No. 14-5089

INITIATIVE AND REFERENDUM INSTITUTE, ET AL.,
APPELLANTS

v.

UNITED STATES POSTAL SERVICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cv-01246)

Arthur B. Spitzer argued the cause for appellants. With
him on the briefs was David F. Klein.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney at the time the brief was filed, and
R. Craig Lawrence, Assistant U.S. Attorney.

Before: BROWN, KAVANAUGH, and PILLARD, Circuit
Judges.

Opinion for the Court filed by Circuit Judge
KAVANAUGH.
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KAVANAUGH, Circuit Judge: In 1998, the U.S. Postal
Service promulgated a regulation that, among other things,
barred the collection of signatures on petitions at post office
sidewalks that run alongside public streets. Those post office
sidewalks are known as perimeter sidewalks, and are
indistinguishable from adjacent public sidewalks. Several
nonprofit organizations that collect signatures in order to
place initiatives or referenda on state ballots challenged the
regulation on First Amendment grounds. In 2005, this Court
held unconstitutional the regulation’s ban on signature
collection on perimeter sidewalks. Shortly thereafter, the
Postal Service amended its regulation to correct the
constitutional defect identified in this Court’s decision.

The plaintiff nonprofit organizations subsequently
applied for attorney’s fees under the Equal Access to Justice
Act. That Act authorizes fees for parties that prevail in
litigation against the United States, unless the Government’s
position was substantially justified. The District Court denied
the fee application on the ground that the plaintiffs were not
prevailing parties under the Act. This appeal followed.
Although the question is close, we conclude that plaintiffs
were prevailing parties. Therefore, we reverse the judgment
of the District Court and remand the case for further
proceedings.

I

A 1998 U.S. Postal Service regulation barred, among
other things, the collection of signatures on petitions at post
office perimeter sidewalks. See 39 C.F.R. § 232.1(a), (h)(1)
(1998). The regulation was “posted at a conspicuous place”
on all Postal Service property. Id. § 232.1(a). Violations
were punishable by fine, imprisonment, or both. Id.
§ 232.1(p).
 3

The plaintiffs here are several nonprofit organizations.
They draft petitions to place initiatives and referenda on state
election ballots. To get an initiative or referendum on the
ballot, it is generally necessary to obtain a certain number of
signatures. To help collect the necessary signatures, members
of the nonprofit organizations stand on the perimeter
sidewalks of post offices.

In 2000, plaintiffs sued to challenge the Postal Service’s
ban on collecting signatures on perimeter sidewalks. Both
sides eventually moved for summary judgment. At a hearing
on those motions in 2002, the Postal Service announced a
change in policy. The Postal Service stated that it would not
enforce the prohibition against collecting signatures on
petitions at post office perimeter sidewalks.

In deciding the summary judgment motions, the District
Court “relied on defendant’s changed position” and granted
summary judgment to the Postal Service. Initiative &
Referendum Institute v. U.S. Postal Service, No. 00-1246, at 1
(D.D.C. Dec. 31, 2003). In addition, the court ordered the
Postal Service to issue a bulletin notifying postmasters of its
new policy permitting the collection of signatures on petitions
at perimeter sidewalks. The Postal Service complied with that
order.

Plaintiffs appealed, and in 2005 we reversed the District
Court’s judgment. See Initiative & Referendum Institute v.
U.S. Postal Service, 417 F.3d 1299, 1318 (D.C. Cir. 2005).
We stated that Section 232.1(h)(1)’s ban on signature
collection on those sidewalks was unconstitutional. Although
the Postal Service had directed postmasters not to enforce the
regulation on perimeter sidewalks, we concluded that the
regulation was not reasonably susceptible to an interpretation
 4
that excluded perimeter sidewalks from its scope. By its own
terms, the regulation applied to “all real property under the
charge and control of the Postal Service.” 39 C.F.R.
§ 232.1(a). Moreover, the regulation as written – not the
Postal Service’s non-enforcement policy – was posted in post
offices. We reasoned that the Postal Service’s policy of not
enforcing the regulation on perimeter sidewalks could not
“alone temper the regulation’s chill of First Amendment
rights.” Initiative & Referendum Institute, 417 F.3d at 1318.
We recognized, however, that the Postal Service could cure
the constitutional defect by amending the regulation to permit
the collection of signatures on petitions at perimeter
sidewalks. We remanded for further proceedings consistent
with our opinion.

After this Court issued its 2005 decision, the Postal
Service amended its regulation to allow the collection of
signatures on petitions at perimeter sidewalks. See 39 C.F.R.
§ 232.1(a)(ii) (2006). In a later challenge, the District Court
and this Court upheld the amended regulation. See Initiative
& Referendum Institute v. U.S. Postal Service, 685 F.3d 1066,
1074 (D.C. Cir. 2012).

Plaintiffs then applied for attorney’s fees under the Equal
Access to Justice Act. They sought fees incurred before this
Court’s 2005 decision. The Act authorizes fee awards to
parties that prevail in litigation against the United States,
unless the Government’s position was substantially justified.
See 28 U.S.C. § 2412(d)(1)(A). The magistrate judge
recommended denying the fee application on the ground that
plaintiffs were not prevailing parties under the Act. The
District Court agreed. The District Court concluded that
plaintiffs “did not gain any court-ordered relief from the D.C.
Circuit’s 2005 decision” because that decision “did not
compel the Postal Service to amend the 1998 Regulation.”
 5
Initiative & Referendum Institute v. U.S. Postal Service, No.
00-CV-1246, at 14 (D.D.C. Feb. 24, 2014). Rather, the Postal
Service’s subsequent amendment to the regulation constituted
“a voluntary change.” Id. at 15. Plaintiffs have appealed that
ruling. We review the District Court’s decision de novo.
Thomas v. National Science Foundation, 330 F.3d 486, 491
(D.C. Cir. 2003).

II

The Equal Access to Justice Act provides that “a court
shall award to a prevailing party other than the United States
fees and other expenses” incurred in a civil 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.” 28 U.S.C.
§ 2412(d)(1)(A).

In determining whether a fee applicant is a “prevailing
party,” this Court applies the following 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.” Turner v. National
Transportation Safety Board, 608 F.3d 12, 15 (D.C. Cir.
2010) (internal quotation marks omitted); see also Thomas v.
National Science Foundation, 330 F.3d 486, 492-93 (D.C.
Cir. 2003) (applying three-part test to analysis of “prevailing
party” under 28 U.S.C. § 2412(d)(1)(A)).

The primary question here is whether our 2005 decision
effectuated a court-ordered change in the legal relationship of
the parties. The answer is yes.
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The Supreme Court has explained that “prevailing party”
status requires a “court-ordered change in the legal
relationship” between the parties. Buckhannon Board & Care
Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598, 603-04 (2001) (internal quotation
marks omitted); cf. also Thomas, 330 F.3d at 492 n.1
(“Buckhannon applies to the definition of ‘prevailing party’”
under the Equal Access to Justice Act.). That court-ordered
change may be brought about by, for example, an enforceable
judgment on the merits. Buckhannon, 532 U.S. at 604. A
“defendant’s voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the
change.” Id. at 605. Importantly, a party may achieve
“prevailing party” status when the “terms of a remand [are]
such that a substantive victory will obviously follow.”
Waterman Steamship Corp. v. Maritime Subsidy Board, 901
F.2d 1119, 1123 (D.C. Cir. 1990); see also National Rifle
Association of America, Inc. v. City of Chicago, 646 F.3d 992,
994 (7th Cir. 2011) (awarding fees where, after appellate
decision, “litigation was over except for the entry of an
injunction by the district court”).

Plaintiffs here argue that they obtained a favorable, court-
ordered change – namely, this Court’s 2005 decision holding
the Postal Service’s regulation unconstitutional with respect
to collecting signatures on petitions at perimeter sidewalks.
We agree.

To be sure, by the time of our 2005 decision, the Postal
Service had already directed postmasters not to enforce the
regulation’s prohibition against collecting signatures on
petitions at perimeter sidewalks. But the Postal Service’s
non-enforcement policy alone was not good enough, we said
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in that decision. We held that the challenged regulation still
caused an impermissible “chill” on plaintiffs’ First
Amendment rights, notwithstanding the Postal Service’s non-
enforcement policy. Initiative & Referendum Institute v. U.S.
Postal Service, 417 F.3d 1299, 1318 (D.C. Cir. 2005). The
non-enforcement policy, we explained, “is not published in
the Federal Register, is not contained in the Code of Federal
Regulations, and is not posted for public examination in post
offices.” Id. at 1317-18. And even if the non-enforcement
policy were posted for public examination, citizens “could not
confidently rely on it,” especially given its “facial
inconsistency” with the regulation’s text. Id. at 1318. In
short, we ruled that plaintiffs were entitled to relief from the
regulation regardless of how the Postal Service enforced (or
did not enforce) its regulation in practice.

The Postal Service argues that our 2005 decision
nonetheless resulted in no court-ordered change in the legal
relationship of the parties because this Court did not expressly
require the Postal Service to amend its regulation. That
argument ignores the reality of what we did.

One of two outcomes was necessary and inevitable as a
result of our 2005 decision: Either the Postal Service would
amend its regulation, or the District Court would order it to do
so. Either outcome would exclude perimeter sidewalks from
the regulation’s ban on collecting signatures on petitions. As
we have said before, a party may achieve “prevailing party”
status when the “terms of a remand [are] such that a
substantive victory will obviously follow.” Waterman, 901
F.2d at 1123. That describes this case.

In short, as a result of our 2005 decision, plaintiffs
obtained a favorable, court-ordered change in their legal
relationship with the Postal Service.
 8

Plaintiffs easily satisfy the remaining two prongs of the
“prevailing party” test: They achieved a judgment “in favor
of the party seeking the fees” and a judicial pronouncement
“accompanied by judicial relief.” Turner, 608 F.3d at 15
(internal quotation marks omitted). Our 2005 decision was
“in favor” of plaintiffs – “the party seeking the fees.” Id.
And because we remanded for further proceedings consistent
with our opinion, our “judicial pronouncement” was
“accompanied by judicial relief.” Id.
***
The plaintiff nonprofit organizations are prevailing
parties under 28 U.S.C. § 2412(d)(1)(A). That said, plaintiffs
are not entitled to attorney’s fees if the Postal Service’s
position was substantially justified. We leave it to the District
Court to determine in the first instance whether the Postal
Service’s position was substantially justified. We reverse the
judgment of the District Court and remand for further
proceedings consistent with this opinion.
So ordered.