Initiative & Referendum Institute v. United States Postal Service

181 F. Supp. 3d 3, 2014 U.S. Dist. LEXIS 184489, 2014 WL 11798506
CourtDistrict Court, District of Columbia
DecidedFebruary 24, 2014
DocketCivil Action No. 00-CV-1246 (BJR)
StatusPublished
Cited by3 cases

This text of 181 F. Supp. 3d 3 (Initiative & Referendum Institute v. United States Postal Service) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Initiative & Referendum Institute v. United States Postal Service, 181 F. Supp. 3d 3, 2014 U.S. Dist. LEXIS 184489, 2014 WL 11798506 (D.D.C. 2014).

Opinion

ORDER AFFIRMING REPORT AND RECOMMENDATION

Barbara Jacobs Rothstein, United States District Court Judge

I. INTRODUCTION

Plaintiffs, nonprofit organizations and individuals who are engaged in efforts to place initiatives on state ballots, challenged a United States Postal Service (hereinafter “Postal Service”) regulation that prohibited the solicitation and collection of signatures for petitions, polls, or surveys on all postal-owned property. Plaintiffs sought a determination that the regulation violated the free speech clause of the First Amendment on its face and as it applied to them. The dispute has been through three rounds of summary judgment motions and [5]*5to the D.C. Circuit twice. The current motion—Plaintiffs’ request for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”)—is the last step in this long-running dispute. Dkt. No. 162 (“Pis.’ Mot.”).

The motion was referred to Magistrate Judge Alan Kay for resolution pursuant to Federal Rule of Civil Procedure 72(b) and Local Civil Rule 72.2(a). Dkt. No. 170. Magistrate . Judge Kay determined that Plaintiffs are not a prevailing party for purposes of EAJA and, thus, recommended that Plaintiffs’ motion be denied. Dkt. No. 175 (“R & R”). Plaintiffs timely filed objections to the Report and Recommendation (Dkt. No. 176 (“Pis.’ Objs.”)), which have been fully briefed by the parties and are now ripe for adjudication. Dkt. No. 178 (“Def.’s Resp.”); Dkt. No. 180 (“Pis.’ Reply”). This Court reviews de novo the portion of the Report and Recommendation to which Plaintiffs object. Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify” Magistrate Judge Kay’s recommendation. Id.; Young v. District of Columbia, 893 F.Supp.2d 125,129 (D.D.C.2012).

For the reasons stated below, the Court finds that Magistrate Judge Kay reached the correct conclusion in finding that Plaintiffs are not a prevailing party for purposes of attorney’s fees under EAJA. Therefore, Plaintiffs’ objections are OVERRULED and the Report and Recommendation is AFFIRMED.

II. BACKGROUND

The background of this case is set out in Initiative & Referendum Inst. v. U.S. Postal Service, 297 F.Supp.2d 143 (D.D.C. 2003) (“IRI I”); Initiative & Referendum Inst. v. U.S. Postal Service, 417 F.3d 1299 (D.C.Cir.2005) (“IRI II); Initiative & Referendum Inst. v. U.S. Postal Service, 741 F.Supp.2d 27 (D.D.C.2010). (“IRI III”); Initiative & Referendum Inst. v. U.S. Postal Service, 685 F.3d 1066, 1068-69 (D.C.Cir.2012) (“IRI IV’), and the Report and Recommendation. In brief, the Postal Service has regulations in place that restrict certain activities on certain postal-owned property. Relevant to this case, the postal regulations restrict “expressive activity” on exterior postal property, specifically on the sidewalks surrounding post offices.1 These sidewalks can be divided into two categories: (1) Grace sidewalks— sidewalks comprising the outer boundaries of the [postal] grounds” that are “indistinguishable from any other sidewalk,” and (2) non-Grace sidewalks—sidewalks “constructed solely to provide for the passage of individuals engaged in postal business” that lead “only from the parking area to the front door of the post office.”2

In 1998, the Postal Service banned “soliciting signatures” on “all real property under the charge and control of the Postal Service” (hereinafter known as “the 1998 Regulation”). See 39 C.F.R. § 232.1(h)(1) (1998). In other words, the 1998 Regulation banned “soliciting signatures” on both Grace and non-Grace sidewalks on postal-owned property. Plaintiffs brought a facial challenge to the 1998 Regulation, arguing that it violated the First Amendment by banning expressive activity on postal prop[6]*6erty that constitutes public forums. See IRI II, 417 F.3d 1299 (D.C.Cir.2005).

By Memorandum Opinion and Order dated August 31, 2000, United States District Court Judge Richard W. Roberts denied the parties’ respective cross-motions for summary judgment.3 Dkt. No. 16. Among other conclusions, the court determined that the factual record compiled by the parties was insufficient for it to rule as a matter of law on the First Amendment claims presented because there was insufficient information about the forum status of the property at issue. Id. at 11. Based on this conclusion, Judge Roberts rejected Plaintiffs’ claim that the 1998 Regulation was unconstitutional on its face. Id. at 16-17.

Subsequent to the August 31, 2000 decision, Plaintiffs amended their complaint to add an “as-applied” challenge to the 1998 Regulation. Dkt. No. 25. Following discovery related to Plaintiffs’ claims, the parties renewed their motions for summary judgment. Dkt. Nos. 66 and 67. Thereafter, Judge Roberts held a hearing on the parties’ cross motions for summary judgment. At the hearing, the Postal Service announced that it had “changed its articulated position from the one it took early in this litigation to one more favorable to [P]laintiffs.” Dkt. No. 87 at 1. The change in the Postal Service’s position was twofold. First, the Postal Service stated that it would instruct its postmasters to refrain from enforcing the 1998 Regulation as to activity that occurred on Grace-like sidewalks. IRI II, 417 F.3d at 1304. (citing Motions Hr’g Tr. at 29, 32-34 (Sept. 24, 2002)). Second, the Postal Service stated that it would also instruct its postmasters to enforce the 1998 Regulation only as to the collection of signatures (as distinct from the solicitation of signatures). IRI II, 417 F.3d at 1304. In other words, individuals would be free to stand on postal-owned property and request that postal patrons sign a petition; however, the actual act of signing the petition must occur either on nonpostal-owned property or on a Grace-like sidewalk. Id.

Judge Roberts directed the Postal Service to submit a proposal setting forth its revised position on the 1998 Regulation, and further stated that the court “would be relying on [the Postal Service’s] changed position in deciding [ ] the pending summary judgment motions.” Id. Thereafter, on October 4, 2002, the Postal Service provided the district court with a draft bulletin consistent with what it represented at the hearing. Dkt. Nos. 88 & 89, 168, Ex. A.

On December 31, 2003, Judge Roberts granted the Postal Service’s motion for summary judgment and denied Plaintiffs cross-motion. IRI, 297 F.Supp.2d 143.

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181 F. Supp. 3d 3, 2014 U.S. Dist. LEXIS 184489, 2014 WL 11798506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/initiative-referendum-institute-v-united-states-postal-service-dcd-2014.