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Mickelsen Farms, LLC v. Animal and Plant Health Inspection Services

United States District Court, D. Idaho

November 14, 2019

MICKELSEN FARMS, LLC, et al., Plaintiffs,


          Honorable Edward J. Lodge United States District Judge.


         Before the Court in the above entitled matter is Plaintiff, Mickelsen Farms, LLC's, Motion for Award of Attorney Fees and Other Expenses Under the Equal Access to Justice Act. (Dkt. 104.) The Motion has been fully briefed and is ripe for the Court's consideration. Having reviewed the record herein, the Court finds the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motion is decided on the record.


         Plaintiffs are a number of entities and individuals who farm potatoes in southeastern Idaho. In April of 2006, Pale Cyst Nematode (PCN), Globodera Pallida, [1] was detected in the soil of a number of fields that raised potato crops in eastern Idaho. As a result, the Animal and Plant Health Inspection Services (APHIS)[2] published an Interim Rule and later adopted a Final Rule which provided regulations for the designation and quarantining of fields in Idaho as well as Deregulation Protocols. The Idaho State Department of Agriculture (ISDA) adopted rules and procedures that parallel APH IS's and assisted APHIS in implementing its Interim and Final Rules.

         The Plaintiffs filed this action against the federal and state Defendants challenging the issuance and implementation of the Interim Rule and Final Rule. (Dkt. 1.)[3] Specifically, Plaintiffs claimed the federal Defendants violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 553, 701-706; the Plant Protection Act (PPA), 7 U.S.C. §§ 7701 and 7786; the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II, §§ 1-16; the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-70; and the Tenth Amendment of the United States Constitution. As to the state Defendants, the Plaintiffs claimed the ISDA failed to comply with its legal obligations under the Idaho Plant Pest Act (Idaho PPA), Idaho Code §§ 22-2001 to 22-2023; the Idaho Administrative Procedures Act (Idaho APA), Idaho Code §§ 67-5101 to 67-5292; and Idaho's Rules Governing the PCN (Idaho PCN Rules), IDAPA 02.06.10. In general, Plaintiffs claimed the state and federal Defendants' actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Plaintiffs requested vacatur of the Final Rule and Deregulation Protocols as well as declaratory and injunctive relief ending the quarantine and regulation of Plaintiffs' potato fields and prohibiting the agency from relying on the working group's recommendations in future agency decisions. (Dkt. 1 and Dkt. 85 at 5, n. 7.)

         The Court granted the state Defendants' Motion to Dismiss. (Dkt. 35.) The parties stipulated to voluntary dismissal of the claims brought by certain of the plaintiffs. (Dkt. 47.) Thereafter, the remaining Plaintiffs and federal Defendants filed cross Motions for Summary Judgment. (Dkt. 75, 84.) The Court granted in part and denied in part each of the parties' Motions. (Dkt. 95.) Specifically, the Court found Plaintiffs waived two of their APA claims at summary judgment, granted Plaintiffs summary judgment on the FACA claim and the remaining APA claim, and granted summary judgment to the federal Defendants on the NEPA and Tenth Amendment claims. (Dkt. 95.) The Court remanded the matter to the agency with instructions directing the agency to make available, at Plaintiffs' request, all past recommendations and/or information produced by the working group; prohibited defendants from relying on any past recommendations or findings of the working group; and directed the agency to comply with FACA's procedural requirements in the future. (Dkt. 95.)

         Defendants filed a Motion for Reconsideration requesting review of a portion of the Court's Order on summary judgment asking to limit or clarify the relief granted to Plaintiffs. (Dkt. 96.) The Court granted the Motion and clarified that the relief afforded to Plaintiffs in its summary judgment ruling is limited to prospective relief on the FACA claim, stating that Plaintiffs “may only challenge future agency decisions, actions, rules, or protocols” but they “cannot retrospectively challenge any agency actions or decisions predating the Court's Order on summary judgments….” (Dkt. 99.) The Court went on to state that “Defendants are prohibited from relying on any past recommendations and/or findings of the TWG in any future agency decisions or actions” and directed Defendants to make past TWG materials available to the Plaintiffs. (Dkt. 99.)

         Judgment was entered on November 28, 2018. (Dkt. 103.) On February 25, 2019, Plaintiffs filed the instant Motion for Attorney Fees and Expenses which the Court now takes up. (Dkt. 104.)


         The Equal Access to Justice Act (EAJA) provides that a court “shall award” attorneys' fees to a “prevailing party other than 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). Fees and other expenses include “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). If the government's position is not substantially justified, it is within the Court's discretion under the EAJA to determine what fees are reasonable. Commissioner, I.N.S. v. Jean, 496 U.S. 154, 160-61 (1990).

         To be entitled to an award of fees, therefore, the EAJA requires that: 1) the claimant be a prevailing party; 2) the claimant be eligible for an award; 3) the Government's position was not substantially justified; 4) no special circumstances make an award unjust; and 5) the fee application must be timely submitted and be supported by an itemized statement. See 28 U.S.C. § 2412; Ibrahim v. United States Dept. of Homeland Security, 912 F.3d 1147, 1167 (9th Cir. 2019) (quoting Jean, 496 U.S. at 158).

         Plaintiffs' Motion for Attorney Fees in this case is timely and complete. 28 U.S.C. §§ 2412(d)(1)(B); (2)(G); (Dkt. 104.) The parties dispute the remaining requirements for ...

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