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Initiative & Referendum Inst. v. United States Postal Serv.

United States Court of Appeals, District of Columbia Circuit

July 17, 2015

INITIATIVE AND REFERENDUM INSTITUTE, ET AL., APPELLANTS
v.
UNITED STATES POSTAL SERVICE, APPELLEE

Argued, May 1, 2015

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

Page 22

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).

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 & ...


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