FILED

NOT FOR PUBLICATION

DEC 6 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEIGHBORS AGAINST BISON No. 22-35955

SLAUGHTER; BONNIE LYNN,

D.C. No. 1:19-cv-00128-SPW Plaintiffs-Appellants,

v. MEMORANDUM*

NATIONAL PARK SERVICE; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted November 15, 2023 San Francisco, California

Before: S.R. THOMAS and MENDOZA, Circuit Judges, and OLIVER,** District Judge.

Plaintiffs-Appellants Bonnie Lynn and Neighbors Against Bison Slaughter

(together, “Neighbors”) appeal from the district court’s order denying attorney’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Solomon Oliver, Jr., Senior United States District Judge for the Northern District of Ohio, sitting by designation. fees. We have jurisdiction to review orders denying motions for attorney’s fees

under 28 U.S.C. § 1291, and we affirm the judgment of the district court. Because

the parties are familiar with the facts and procedural history, we need not recount it

here. I

“We review the district court’s denial of fees under [the Equal Access to

Justice Act (“EAJA”)] for abuse of discretion.” Medina Tovar v. Zuchowski, 41

F.4th 1085, 1089 (9th Cir. 2022). A district court’s finding as to whether the

government’s position is substantially justified is reviewed for abuse of discretion.

Pierce v. Underwood, 487 U.S. 552, 557–63 (1988). And the Supreme Court has

instructed that the district court’s conclusion is entitled to deference on appeal. Id.

at 560.

“Under EAJA, a litigant is entitled to attorney’s fees and costs if: (1) he is

the prevailing party; (2) the government fails to show that its position was

substantially justified or that special circumstances make an award unjust; and (3)

the requested fees and costs are reasonable.” Carbonell v. INS, 429 F.3d 894, 898

(9th Cir. 2005); see also 28 U.S.C. § 2412(d)(1)(B). Because we conclude that the

district court did not abuse its discretion in concluding that the government’s

position was substantially justified, “we need not decide whether [Neighbors] was

2 a prevailing party” nor whether their requested fees are reasonable. Meza-Vazquez

v. Garland, 993 F.3d 726, 731 (9th Cir. 2021).

II

The district court did not abuse its discretion in finding the government’s

position substantially justified. “Substantially justified” does not mean “justified

to a high degree.” Pierce, 487 U.S. at 565. Rather, it means “justified in substance

or in the main—that is, justified to a degree that could satisfy a reasonable person.”

Id. (citations omitted); see also Flores v. Shalala, 49 F.3d 562, 569 (9th Cir.1995)

(“In this circuit, we apply a reasonableness standard in determining whether the

government’s position was substantially justified for purposes of the EAJA.”).

In assessing reasonableness, a court can consider its own view of the “actual

merits,” previous decisions in the case, and the views of other courts to determine

if the government’s position has “reasonable basis both in law and fact.” Id. at

568–71. First, the district court relied on its previous decisions, noting that it had

“neither found nor did the Government admit to a violation of clearly established

law that it needed to remedy on remand.” Although the district court did not

resolve the merits of Plaintiffs’ claims, Plaintiffs did not prevail on their motions

for a temporary restraining order and for a preliminary injunction. And although

Plaintiffs supported remand, they requested vacatur of the agency decision, which

3 the district court declined. In issuing the order to remand without vacatur, the

district court was required to assess “how serious the agency's errors [were].”

California Communities Against Toxics v. US EPA, 688 F.3d 989, 992 (9th Cir.

2012). Second, the court analyzed decisions in five other cases upholding the

government’s management of the Yellowstone bison herd. In so doing, the district

court properly considered the government’s “string of successes” defending its

bison management practices. Pierce, 486 U.S. at 569.

That the Park Service moved to voluntarily remand this case does not alter

the analysis. When the government requests a voluntary remand, the court should

assess the “likely reason behind the voluntary remand in question” to determine

whether the government was substantially justified. Li, 505 F.3d at 919. If the

agency seeks a remand to reevaluate its prior actions “due to a misapplication of,

or failure to apply, controlling law,” then the agency’s decision would not be

substantially justified. Id. Because the district court found no legal error to be

remedied, and because the district court found that the government did not admit to

a violation of clearly established law, it did not err in finding the government’s

position substantially justified. Id. We also note that Plaintiffs appealed the

remand order because it did not impose a deadline for completion of the

environmental impact statement, but we affirmed the district court’s remand order.

4 Neighbors Against Bison Slaughter v. National Park Service, 2022 WL 1315302,

at *1 (9th Cir. 2022).

Having concluded that the district court did not abuse its discretion in

concluding that the government’s position was substantially justified, we need

not—and do not—decide whether Plaintiffs were prevailing parties, nor do we

resolve any other issue urged by the parties.

AFFIRMED.

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