Contender Farms and SHOW Seek Recovery of Fees From USDA
Monday, May 25, 2015

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The Equal Access to Justice Act (EAJA) authorizes district courts to award reasonable attorneys’ fees and expenses to a prevailing party in a lawsuit against a government agency.  Contender Farms and Mike McGartland recently won an appeal in the Fifth Circuit Court of Appeals reversing an earlier decision by Judge Terry Means in United States District Court in July 2013 regarding the USDA’s Minimum Penalty Protocol.

In a unanimous decision in February 2015, the Fifth Circuit Court of Appeals Circuit found that the mandatory penalty regulation is not a valid application of USDA regulatory authority  and accordingly reversed and vacated the judgment.  As a result, in April 2015 Judge Terry Means, in accordance with the Fifth Circuit Court of Appeals, granted summary judgment to SHOW HIO, Contender Farms and Mike McGartland.

The application seeking the fees under EAJA must allege that the “position of the United States was not substantially justified.”  Underlying the lawsuit was one dominant legal issue; by what authority could the USDA create a liability and enforcement scheme different from the one Congress established in the HPA.  In its decision, the Fifth Circuit held that HPA §1823 and §1828 not only do not authorize the USDA to adopt the Regulation, but went further, holding that the clear language of the HPA prohibited the agency from adopting a private-party enforcement scheme different from the enforcement provisions Congress previously adopted.

The motion filed seeks recovery of fees at a minimum level of $349,749 to a maximum level of $489,500 plus expenses of $980.  SHOW HIO, Contender Farms and Mike McGartland requested the court order the government to pay the higher award in the filed motion.

Click here to view the motion filed in the United States District Court Northern District of Texas
Click here to view the brief filed supporting the application for fees

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