Ranchers-Cattlemen Action Legal Fund (R-CALF) brought this lawsuit claiming that the beef checkoff assessment program violated the First Amendment by requiring R-CALF members to subsidize speech with which they disagreed. The court granted a preliminary injunction while it determined the amount of control the USDA exerted over state beef councils (SBC). The USDA then entered into Memoranda of Understanding (MOUs) with several SBCs. Because the MOUs gave the USDA a level of control so that the SBCs’ advertising qualified as government speech, the court later granted the USDA’s motion for summary judgment. R-CALF petitioned the court seeking attorney fees and costs for obtaining the preliminary injunction under the Equal Access to Justice Act (EAJA). See 28 U.S.C. §2412.

The EAJA is a fee-shifting statute awarding attorney fees, costs, and other expenses for parties which prevail against the United States. The party must show that it is the prevailing party and that the Government’s position was not substantially justified. Even though the court vacated the injunction after the USDA voluntarily chose to enter into the MOUs, the court found R-CALF was the prevailing party because the injunction caused the USDA’s change of action which directly benefited R-CALF. The court also found that the USDA’s litigation position was not substantially justified. The USDA claimed it had sufficient control over the SBCs for the promotions to be considered government speech not subject to First Amendment protections. However, the court did not grant the USDA’s motion for summary judgment, but instead granted R-CALF’s motion for a preliminary injunction, because the USDA did not establish it had sufficient control. The court awarded $145,428.08 in attorney fees and $5,344.17 in costs.  

Ranchers-Cattlemen Action Legal Fund v. Vilsack, 2021 WL 4611 (D. Mont. Feb. 9, 2021)