- - Sunday, October 23, 2016


Lawyers are expensive, especially when citizens fight the federal government. That is why, in 1980, Congress passed the Equal Access to Justice Act (EAJA), which authorizes those who prevail in litigation against the federal government to collect attorney’s fees and expenses, that is, unless federal lawyers were “substantially justified,” in bringing and litigating the case. Sadly, a Wyoming federal district court recently turned the EAJA on its head.

Decades ago, fearful of the growing federal regulatory burden, small business owners urged Congress to provide a mechanism to defend themselves. One co-sponsor, U.S. Senator Dennis DeConcini, Arizona Democrat, proclaimed the EAJA sought to “encourage [citizens] to vindicate their rights and not to acquiesce in a ruling or sanction which they believe arbitrary, misguided or unfair.” Without the EAJA, said U.S. Sen. Pete Domenici, New Mexico Republican, “[I]ndividuals and small businesses are … forced to knuckle under” to the federal government’s demands.

Over the years, the EAJA became an essential tool for social security and veterans claimants, indigents, and marginalized individuals. Unfortunately, in the last 20 years, more and larger EAJA awards are being made to environmental groups that win procedural victories, while fewer EAJA awards are being made to individual and businesses that vindicate their rights, in court, against federal lawyers. The Wyoming ruling has made matters worse.

The General Railroad Right-of-Way Act of 1875 granted railroads easements across federal land for as long as the land is used for a railroad. In southeastern Wyoming, the federal government granted such an easement in 1908. Later, the federal government transferred some of the underlying land to private parties without reserving surface or subsurface rights, including small business owners Melvin and Lulu Brandt who exchanged 220 acres they purchased for 83 acres beneath their mill and home in Fox Park.

After the railroad abandoned service and removed the tracks and ties along its 66-mile corridor, the federal government sought a court order that it owned the former railroad right-of-way. Thirty one landowners conceded or settled out of court, but the Brandts’ son Marvin, represented by Mountain States Legal Foundation, fought back. In 2014, the United States Supreme Court ruled 8-1 that the land belonged to Mr. Brandt because of a 1942 ruling on the same issue won by the federal government.

Incredibly, the solicitor general did not argue the 1942 ruling was wrong but, as Justice Scalia put it, the land “will be an easement when that suits the government [as it did in 1942], but it will be something else when that suits the government [as it does against Brandt].” Justice Alito lacerated the solicitor general by quoting from the government’s 1942 brief. Justice Breyer opined that “a property lawyer worth his salt” knows Mr. Brandt owns the land. Justice Kagan wondered aloud “[W]hy anybody would [argue as does the federal government] is a mystery.” The Court ruled, “We decline to endorse such a stark change in position [because] nothing in the text of the 1875 Act supports such an improbable (and self-serving) reading.”

The case returned to Wyoming where Mr. Brandt got his land back and filed his EAJA application. Bizarrely, the district court ruled the government’s position reasonable: a Supreme Court justice dissented in support of the holdings of three appellate judges and the district court. That showed, held the district court, there was “room for debate” in the case.

The district court’s decision was doomed given its premise that the EAJA “is to be strictly construed in favor of the sovereign.” Furthermore, the district court mischaracterized legal precedent that demands “a fair reading of the [law],” claiming it requires “strict construction,” and relied on this mischaracterization to support its opinion. The fact is the EAJA places the burden of proving that its case was justified from the beginning on the federal government. In light of the 1942 ruling that was the federal government’s eventual undoing, its position was never justified.

An argument can be reasonable without being correct, but that a judge finds it persuasive does not make it reasonable. Under the EAJA, reasonableness must be evaluated contextually “both in law and fact.” The Supreme Court held the government’s argument had no basis in law; thus, it is neither reasonable nor “substantially justified.” The district court sought to evade this decision by ruling that reasonableness may be defined in the context of either “law or fact.”

Marvin Brandt did not knuckle under to the government’s illegal demand and, at great expense, was vindicated. Given the Supreme Court’s ruling, if anyone deserves an EAJA award, it is him. The district court not only does him great injustice, it jeopardizes the ability of any citizen to receive what Congress intended, and eviscerates the EAJA. We only hope that Mr. Brandt will appeal, win his attorneys’ fees and expenses, and thereby save the EAJA.

Lowell Baier and Christopher Segal are the authors of “Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America’s Lands, Endangered Species, and Critical Habitats” (Rowman &Littlefield, 2016).

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