Petition for attorney fees under the Equal Access to Justice Act (EAJA); Effect of Congress’s repeal of the program plaintiff challenged before he received the final judgment; A “prevailing party”; Whether the government’s litigating position was “substantially justified”; 28 USC § 2412(d)(1)(A)

Holding that the government’s position during this “litigation was ‘substantially justified’ within the” meaning of the EAJA, the court affirmed the district court’s denial of plaintiff-Holman’s petition for attorney fees under the EAJA. He successfully obtained a preliminary injunction to freeze a government debt-relief program designed to provide emergency assistance due to the COVID-19 pandemic “that used racial categories to remedy prior discrimination against farmers and ranchers.” Congress repealed the program before final judgment in the case. Holman claimed he was entitled to fees as a “prevailing party” under the EAJA. The district court disagreed and denied his motion. On appeal, the court declined to decide the case based on whether Holman was a prevailing party. Instead, it based its holding on “whether the Government’s litigating position was substantially justified.” Even a litigant who is a prevailing party under the EAJA is not entitled to attorney fees if the government’s position was substantially justified. In considering the merits of the government’s litigating position, the court declined to adopt a presumption that the government is substantially justified every time it defends a federal statute. Rather, the court looked to the government’s merits position during the central aspect of the case – “that the district court should not preliminarily enjoin” the statute at issue. Holman had the “burden as the movant to ‘present “a clear showing”’ that the injunctive-relief factors weighed in his favor.” This meant for EAJA purposes that the government’s “position was substantially justified ‘if “a reasonable person could think it correct”’ that Holman had not made the requisite clear showing of likely success necessary to receive injunctive relief.” The court concluded the government “placed before the district court a ‘strong basis in evidence for its conclusion that remedial action’ in the form of [the statute] ‘was necessary.’” While the district court rejected its arguments, “‘a reasonable person could think’ that the Government’s evidence supporting [the statute’s] constitutionality sufficiently undermined Holman’s required showing.” The court added that governing precedent required it “to consider the entirety of the Government’s ‘arguments made during litigation’ in determining whether its ‘whole position’ was substantially justified.” It determined that “other aspects of the litigation . . . reinforce the reasonableness of the Government’s position ‘as a whole.’”