[00:00:01] Speaker 00: Case number 14-5089, Initiative and Referendum Institute at L, Appellants, Nebraskans for Limited Terms at L versus United States Postal Service. [00:00:11] Speaker 00: Mr. Spitzer for the Appellants, Ms. [00:00:12] Speaker 00: Broswell for the Appellate. [00:00:55] Speaker 01: May it please the Court, on the principal question of whether plaintiffs are prevailing parties in this litigation, I'd like to begin with the proposition that this Court's 2005 judgment made the plaintiffs prevailing parties. [00:01:09] Speaker 01: Because if that's true, then there's no need for the Court to consider the 2003 district court decision, which we argue made the plaintiffs prevailing parties up to that point. [00:01:20] Speaker 01: When this case was filed, there was a Postal Service Regulation that, in the words of this court in the 2005 opinion, quote, completely denies petition circulators the ability to seek support for their petitioning efforts anywhere on postal premises. [00:01:37] Speaker 01: That's in the Joint Appendix at 95. [00:01:39] Speaker 01: At the end of 2005, after this court's first decision, the same regulation allowed circulators to seek support for their efforts anywhere on outdoor postal premises and allowed them to collect signatures on perimeter sidewalks. [00:01:53] Speaker 01: I don't think the government denies or could deny that this was a change in the legal relationship between the parties. [00:01:59] Speaker 04: But was that change on the basis of this court's order? [00:02:04] Speaker 01: Right. [00:02:04] Speaker 01: Their position is the change was voluntary and not the result of this court's order. [00:02:09] Speaker 01: But I think that's not accurate. [00:02:11] Speaker 01: And I think the best proof of that, at least the shortest proof of that, is from the Postal Service's own mouth when the case got back to the district court on remand. [00:02:21] Speaker 01: And they said in a memorandum to the court, quote, the Court of Appeals held in no uncertain terms that the USPS regulation prior to its recent amendment, by then they had amended it, could not be applied to postal property consisting of gray sidewalks. [00:02:39] Speaker 01: Plaintiffs offer no evidence, this was in response to our request for an injunction, plaintiffs offer no evidence that would suggest that USPS would blatantly ignore the Court of Appeals decision. [00:02:49] Speaker 01: In other words, the Postal Service understood that the amendment to the regulation was compelled because not to have amended it would be blatantly ignoring this court's decision. [00:02:59] Speaker 05: I think they say that as of 2002, they had come to the conclusion that they, if not sooner, they would come to the conclusion they were not going to enforce the regulation on Gray's sidewalks or to bar [00:03:13] Speaker 05: uh... solicit informational only soliciting anywhere and so that there was in essence a policy statements interpretation clarification what whatever you wanna call it they had come to and so uh... that i think is their position we that they had come to that recognizing as a result of your lawsuit uh... perhaps uh... and probably recognizing that they couldn't do that [00:03:41] Speaker 01: I think that is their position, Judge Kavanaugh, and the problem with it is that the change of position was known only to a handful of people. [00:03:49] Speaker 01: It was mentioned to the district judge in a motions hearing, so Postal Service Council knew about it, plaintiff's council knew about it, the district judge knew about it. [00:03:59] Speaker 03: It's not true even after summary judgments entered, and that's part of your continuing claim, was that the notice was just sent internally within the Postal Service and the notices that were posted publicly weren't changed? [00:04:11] Speaker 01: Yes, but that's, I think, a subsequent stage to Judge Kavanaugh's question. [00:04:15] Speaker 01: In 2002, when the Postal Service apparently [00:04:20] Speaker 01: internally made the decision about non-enforcement, they didn't tell the postmasters. [00:04:24] Speaker 01: There are 34,000 postmasters around the country who had no way to know that there was this, quote, new position or new interpretation. [00:04:32] Speaker 01: What they had was the regulation in the Code of Federal Regulation, posted on the bulletin board at every post office next to the 10 most wanted, where postmasters could see it, where people [00:04:43] Speaker 01: who might want a petition, could see it. [00:04:45] Speaker 01: This new position was a secret except to the district judge and counsel. [00:04:51] Speaker 01: Even if we had notified our clients, which I'm sure we did, what the post office said, we're talking about organizations like Term Limits USA and the Humane Society that have thousands of volunteers out around the country. [00:05:06] Speaker 01: There was no way to tell them [00:05:08] Speaker 01: And more important, there was no way to tell the postmasters, just ignore that regulation that's posted in the lobby. [00:05:13] Speaker 01: The Postal Service has a new position. [00:05:15] Speaker 05: And this may not answer much of anything, but I'm just curious whether we know that, whether we know whether the regulation [00:05:24] Speaker 05: was enforced after 2002 against anyone on a grace sidewalk or to bar informational-only solicitation? [00:05:33] Speaker 05: Do we know the answer to that? [00:05:34] Speaker 01: We've cited in our reply brief three instances verified by declarations in the record and two declarations and one reported decision from Massachusetts. [00:05:45] Speaker 01: And I must say I don't remember right now the exact dates of those actions, but I believe they were [00:05:50] Speaker 01: in the relevant time period when Postmasters continued to enforce, and in the Massachusetts case it was long after the bulletin had been published. [00:05:58] Speaker 01: And also important is the fact that the Postal Service explicitly reserved the right in its colloquy with Judge Roberts and in its [00:06:06] Speaker 01: summary judgment memorandum, and even in its brief to this court in 2004, explicitly reserved the right to change its position again. [00:06:15] Speaker 01: In their brief to this court in 2004, they said that they could not commit never to revisit the position. [00:06:26] Speaker 01: That's a quote. [00:06:27] Speaker 01: So in other words, this non-enforcement policy was a matter of grace. [00:06:32] Speaker 01: It was not a matter of recognition of their First Amendment obligations or the First Amendment rights [00:06:36] Speaker 01: of the petitioners. [00:06:38] Speaker 01: And so when this court said, your enforcement position is very nice, but you've got to do more than this informal bulletin which is sitting on a shelf in a back office somewhere at the post office, the court was telling them they had to do something. [00:06:56] Speaker 01: And they recognize that, and they change the regulation. [00:06:59] Speaker 05: Well, I know. [00:06:59] Speaker 05: There's ambiguity, as you're well aware, I think, in the 2005 opinion, because it does formally at least remand for the determination. [00:07:10] Speaker 05: And I think your position, with some force, is it was preordained at that point what was going to happen on the remand. [00:07:18] Speaker 05: And then the court also said, but by the way, Postal Service, wink, wink, you could change the regulation, and this would be over. [00:07:27] Speaker 01: As you know, Judge Kavanaugh, we think the case is quite parallel to the Seventh Circuit's National Rifle Association case, where the Supreme Court remanded for further proceedings, just as this court did in our case. [00:07:40] Speaker 01: And the Supreme Court didn't say, but could have said. [00:07:43] Speaker 01: This court said the Postal Service can pretermit [00:07:47] Speaker 01: further proceedings by amending the regulation. [00:07:49] Speaker 01: And they did. [00:07:50] Speaker 01: The Supreme Court didn't say, but could have said, in the NRA case, well, of course, the city of Chicago could predimit further proceedings by repealing its gun ordinance. [00:07:57] Speaker 01: And had they said it, I don't think it would have changed the result in the Seventh Circuit. [00:08:03] Speaker 01: Whether the Court of Appeals or the Supreme Court gave a hint or didn't give a hint can't matter. [00:08:06] Speaker 01: The defendants in both of those cases got the message and beat the district court to the punch, in effect, by [00:08:16] Speaker 01: obviating the need for an injunction. [00:08:19] Speaker 01: And indeed that's what Judge Roberts held on remand is that our request for injunctive relief had become moot because the Postal Service had amended the regulation. [00:08:29] Speaker 05: Now as of 2005, the bulletin was out, right, out and about, so to speak. [00:08:37] Speaker 05: Right. [00:08:37] Speaker 05: But your point is that [00:08:40] Speaker 05: Our point is that the bulletin was not enough, and this court so held in 2005 that... Well, it held that the regulation, it's interesting, it held that the regulation, as I read it, was not susceptible to such a limiting construction. [00:08:55] Speaker 01: With respect to gray sidewalks, that's exactly right. [00:08:58] Speaker 05: But that's not saying that the limiting construction slash enforcement policy was not in place. [00:09:07] Speaker 01: The enforcement policy was in place, but this court explicitly pointed out in the 2005 decision that neither a member of the public nor a postmaster would know about that enforcement policy when looking at the regulation posted on the bulletin board in the lobby of the post office. [00:09:25] Speaker 03: This is a First Amendment claim, so that's quite significant. [00:09:29] Speaker 03: That's not giving the relief. [00:09:31] Speaker 01: This court agreed that it was quite significant, and I think it was. [00:09:35] Speaker 01: completely inevitable that the Postal Service had to amend the regulation on remand. [00:09:41] Speaker 01: There were two varieties of injunction that might have issued on remand. [00:09:45] Speaker 05: I'm sorry to interrupt. [00:09:46] Speaker 05: I think you're right about that. [00:09:50] Speaker 05: It's just an interesting question about what the significance of a enforcement policy is before the litigation is final, which raises, you know, you can get pretty deep into that question and not come out for a while. [00:10:05] Speaker 05: Anyway, that's my comment on that. [00:10:08] Speaker 01: The Postal Service was certainly free once they, assuming they understood what their First Amendment obligations were going to be, they were certainly free at any time to amend the regulations. [00:10:20] Speaker 05: So suppose the enforcement policy had been posted everywhere. [00:10:25] Speaker 05: Right. [00:10:25] Speaker 05: And so it was clear you're good to go on gray sidewalks and you can do informational only soliciting on anywhere. [00:10:35] Speaker 01: I'm not sure what the panel of this court would have done with that in 2005. [00:10:39] Speaker 01: Perhaps they would have said that's good enough. [00:10:41] Speaker 01: I doubt it, because after all, the Code of Federal Regulations was still the binding law. [00:10:46] Speaker 01: The Postal Service [00:10:50] Speaker 05: I think they would have said that's not good enough in terms of regulation, you still need to change the regulation. [00:10:56] Speaker 05: But the question is the significance, you've relied a lot on when I've asked a couple of these enforcement policy questions that it wasn't really communicated sufficiently, and Judge Pillard raised that too, to the people who would want to take advantage of [00:11:09] Speaker 01: or to the postmasters who are the ones who pick up the telephone and call the police to come and arrest somebody. [00:11:17] Speaker 01: These postal bulletins, it's a little internal brochure that comes out I think bimonthly and they get filed in a loose leaf binder in the office in the back of the post office somewhere and each one consists of, you know, this wasn't a special alert that was sent to postmasters, this was one page of a twenty or thirty page biweekly bulletin [00:11:38] Speaker 01: I don't read every page of every bullet I get. [00:11:42] Speaker 01: And who knows how many Postmasters were even aware of this. [00:11:45] Speaker 03: Why isn't it enough that the Court of Appeals affirmed on the as-applied challenge? [00:11:51] Speaker 03: I mean, there was further faculty [00:11:58] Speaker 03: in 2005. [00:11:59] Speaker 03: And I'm assuming that's why that's the end of the period for which you're requesting fees. [00:12:04] Speaker 01: Well, that's right. [00:12:05] Speaker 01: That's the end of the period because proceedings after that eventually led to this court's opinion in 2012, which we did not win. [00:12:12] Speaker 01: Right. [00:12:13] Speaker 03: On the facial side, but you had one in the Court of Appeals. [00:12:16] Speaker 01: Yes. [00:12:16] Speaker 03: And as a quiet child. [00:12:17] Speaker 01: No, I think that's right. [00:12:18] Speaker 01: And this court issued a judgment. [00:12:20] Speaker 01: And following the judgment, issued a mandate. [00:12:22] Speaker 01: that required the district court to act in accordance with this court's opinion, as I think we tried to explain in our brief. [00:12:30] Speaker 01: On remand, had the Postal Service not gone ahead and amended the regulation quickly, an injunction was inevitable, either an injunction striking down the entire regulation on its face [00:12:42] Speaker 01: because race sidewalks were a substantial number of all sidewalks, but at a minimum, a regulation making the change that the post office eventually did make in their regulation. [00:12:52] Speaker 01: And this court has held that even a declaratory judgment is sufficient for Buchanan purposes, consolidated Edison against Bodmin in 2006. [00:13:01] Speaker 01: If a declaratory judgment, which is not an injunction, which could only be enforced in a two-step process of going back to the court and then getting an injunction and then enforcing the injunction, if that's enough, [00:13:12] Speaker 01: I think that's the same here. [00:13:14] Speaker 01: Had the district court ignored this court's decision, we might have had to come back and get this court to tell the district judge to issue an injunction and then enforce it. [00:13:22] Speaker 01: But this court's opinion was, I think, the equivalent of a declaratory judgment. [00:13:26] Speaker 01: It declared what the Constitution required. [00:13:28] Speaker 03: And that was important because in some sense, I guess, I don't know whether you would agree with this, the proceedings in the district court was almost in the nature of a sort [00:13:38] Speaker 03: consent decree as a condition of entering summary judgment for the Postal Service. [00:13:43] Speaker 03: But under Buchanan, that kind of, you know, court imprimatur on an agreement is enough. [00:13:49] Speaker 03: And then you only get the actual holding by court when you come up to the Fifth Circuit in the 2005 opinion that says, yes, in fact, that was what the law compels on the as-applied challenge. [00:14:02] Speaker 05: I think that's right. [00:14:03] Speaker 05: Well, I'm not sure that is. [00:14:05] Speaker 05: I'm not sure it was a consent decree as opposed to a unilateral enforcement policy changed in the wake of the lawsuit. [00:14:11] Speaker 05: I mean, that is a tricky question itself. [00:14:14] Speaker 01: I think we all agree that had they actually changed the regulation, [00:14:18] Speaker 01: They would have mooted the case and we would not have been prevailing. [00:14:22] Speaker 05: Right, if they had publicized and changed to what they said their enforcement policy was circa 2002, that would have ended that part of the case. [00:14:32] Speaker 01: Right, but not only did they not do that, they explicitly reserved the right to change their enforcement policy. [00:14:39] Speaker 01: Would we have had a right case at that point? [00:14:42] Speaker 01: Would we have had to wait until they, in fact, did change the enforcement policy? [00:14:46] Speaker 05: She had a whole other part of the case, obviously, which kicks around until 2012, right? [00:14:50] Speaker 05: You wanted to be able to collect signatures. [00:14:53] Speaker 03: I guess what I'm saying about this consent decree analogy is that to the extent that it's a condition of [00:14:59] Speaker 03: Chief Judge Roberts, entering something different for the Postal Service, he's kind of saying, like, I'm acknowledging and accepting that as binding. [00:15:08] Speaker 03: And it's, and I'm only issuing this because you've undertaken that. [00:15:14] Speaker 01: I think the analogy to consent decree is right. [00:15:16] Speaker 01: A consent decree, after all, is entirely voluntary. [00:15:19] Speaker 01: no one forces a defendant to sign to agree to a consent decree. [00:15:24] Speaker 01: And so it is quite parallel, I think, to what happened here. [00:15:27] Speaker 01: The Postal Service said, we are willing to make these changes. [00:15:30] Speaker 01: The court then ordered them to make those changes by sending out a bulletin. [00:15:35] Speaker 01: We're now shifting to the 2003 [00:15:38] Speaker 01: order, but if a district judge issued an injunction saying to a federal agency, that shall not enforce section 2B of your regulation, I think everyone would agree that that was a Buchanan compliant action. [00:15:55] Speaker 01: It was an order that changed. [00:15:56] Speaker 01: And what the judge did here, so if the injunction said, I'm ordering you to change and I'm ordering you to inform your [00:16:02] Speaker 01: your agents and employees to make that change, that would qualify. [00:16:05] Speaker 01: Here it was the same thing except in the opposite order. [00:16:08] Speaker 01: He said, I'm ordering you to inform your agents and employees to adhere to this change, which you've agreed to make and which I'm now ordering you to make. [00:16:16] Speaker 01: And so I think it is quite analogous to a consent decree. [00:16:20] Speaker 01: But as I said at the beginning, I think the court can [00:16:23] Speaker 01: avoid the need to write about the 2003 order if it agrees with us that the 2005 decision, which encompasses all of our work up until 2005, also made us prevailing party. [00:16:36] Speaker 04: Had the Postal Service refused to publish that bulletin after the court's order in 2003, would you have had any remedy? [00:16:47] Speaker 01: Yes, I think a court order is a court order, and I'm not sure if we would have gone in and moved for contempt. [00:16:56] Speaker 01: I think maybe more likely we would have gone back to Judge Roberts first and said, Your Honor, they're not complying with your order, you know. [00:17:04] Speaker 01: enter an injunction, more clearly requiring them. [00:17:08] Speaker 01: And had they not published it, of course, then we could have gone back and said, well, Your Honor, since they're not willing now to really make the change that they said they were willing to make, you've got to rule on the merits of the regulation as published. [00:17:23] Speaker 01: And I think Judge Roberts makes it pretty clear in his memorandum opinion of December 31, 2003, that in that case, [00:17:30] Speaker 01: he would have ruled for us and not for them. [00:17:33] Speaker 01: So those were two possible avenues, but I don't think one can reasonably say that his order and opinion of 2003 upheld the regulation that we had challenged, the regulation that was published. [00:17:51] Speaker 01: He upheld it only because these changes were made and he [00:17:54] Speaker 01: incorporated that change in his opinion and in his order requiring them to direct their employees to change their enforcement policy. [00:18:01] Speaker 01: The fact that they were agreeable to doing that is no different from a defendant saying, we're agreeable to a consent decree. [00:18:07] Speaker 05: On 2005 opinion again, your position is that the court's opinion effectively forced the Postal Service to change the regulations. [00:18:21] Speaker 01: effectively and inevitably. [00:18:24] Speaker 05: That's a better word. [00:18:25] Speaker 01: I like it. [00:18:26] Speaker 01: And I think it's exactly the same as NRA. [00:18:30] Speaker 01: And this court [00:18:33] Speaker 01: of course, has itself said that when a litigant achieves a victory in the Court of Appeals, even though there's a remand, if the remand will inevitably lead to relief, that's good enough to be a prevailing party. [00:18:58] Speaker 01: I see my time's up. [00:19:02] Speaker 01: We haven't gotten at all to the question of substantially justified and whether there needs to be a remand. [00:19:07] Speaker 01: I just wanted to provide the court with one citation that's not in my brief that I came across two days ago and alerted Ms. [00:19:14] Speaker 01: Braswell. [00:19:15] Speaker 01: But Jacobs against Schiffer, 204 Fed 3rd, 259 at 264, is a case precisely on point on that issue where there was a remand in an equal access [00:19:26] Speaker 01: there was an appeal in an equal access to justice case, the court decided that the district court had made an error of law in its decision on substantially justified and said, because the question of whether the department's position was substantially justified can be answered as a matter of law, a remand is unnecessary at page 264. [00:19:46] Speaker 01: So there is precedent from this court precisely on that point that a remand is not necessary on substantially justified. [00:19:55] Speaker 01: Thank you very much. [00:19:56] Speaker 04: Thank you. [00:19:56] Speaker 02: May it please the court. [00:20:15] Speaker 02: Judge Kavanaugh, I believe, starts the analysis at the appropriate place, which is not with this Court's 2005 decision, but what happened leading up to that decision. [00:20:26] Speaker 02: And it's important to look at the facts of the Postal Service's position and when it changed its position. [00:20:33] Speaker 02: And the record in this case indicates that the Postal Service took the position that then was reflected throughout the rest of the litigation back in 2002, at the latest in 2002. [00:20:45] Speaker 02: In fact, when we filed our motion for summary judgment in February of 2002, we stated the two points that are at issue here, which is one, that the regulation would not be applied on grace-type sidewalks. [00:21:00] Speaker 02: which again is a small subset of exterior sidewalks outside of postal property. [00:21:06] Speaker 02: And two, that there could be solicitation or request information seeking signatures but not signature gathering. [00:21:14] Speaker 05: But put aside the communication issue because that's a whole separate box. [00:21:19] Speaker 05: But as of 2005 for this court, that wasn't good enough. [00:21:24] Speaker 05: that there was just an enforcement policy in place because the court said the regulation is not susceptible to that limiting construction so inevitably, is the word counsel used, which I think is the correct word there, inevitably the Postal Service had to change the regulation in response to that court decision. [00:21:43] Speaker 05: How do we deal with that? [00:21:44] Speaker 02: I don't think it was inevitable and I think it's important to look at this court's 2005 decision where the court said [00:21:51] Speaker 02: There's a format problem. [00:21:53] Speaker 02: The court recognized that the Postal Service, the court used the word format, the court recognized that the Postal Service had not been applying the regulation on gray sidewalks since 2002 and had not been prohibiting pure solicitation of signatures since 2002. [00:22:11] Speaker 02: But the court said the problem is, it's not in your regular, you announce this change by way of a bulletin instead of in your regulation. [00:22:19] Speaker 02: So there's a format problem because it doesn't. [00:22:22] Speaker 05: It's more than a format though because it has legal impact as counsel said. [00:22:26] Speaker 05: If it's just enforcement discretion, that could be changed by the next. [00:22:32] Speaker 05: administrator, what have you, whereas if the regulations changed, that is a different has a different legal impact. [00:22:42] Speaker 02: Well, the regulation obviously that can be changed as well. [00:22:45] Speaker 02: And actually, the Postal Service is not subject to the APA's requirement of notice and comment rulemaking. [00:22:52] Speaker 02: So [00:22:52] Speaker 02: In essence, a regulation can be changed almost as quickly as a postal bulletin. [00:22:57] Speaker 02: And with respect to postal employees, they are bound just as much by a postal bulletin as they are by a regulation. [00:23:05] Speaker 05: But one thing I want to correct because... But let me try to drill into this a little more. [00:23:10] Speaker 05: They wanted the regulation changed, not just the enforcement policy. [00:23:16] Speaker 05: And the court granted them that relief. [00:23:19] Speaker 05: So there was court ordered relief. [00:23:21] Speaker 05: Let's put aside the inevitable thing for a second. [00:23:24] Speaker 05: We can talk about that separately. [00:23:25] Speaker 05: But there was court ordered relief to change the regulation that just having the limiting construction slash enforcement discretion wasn't good enough. [00:23:33] Speaker 02: Your Honor, I don't think we can really say that they wanted regulation change. [00:23:36] Speaker 02: What they wanted was to be able to gather signatures on all exterior postal property. [00:23:42] Speaker 02: That's what appellants wanted from the very beginning. [00:23:44] Speaker 05: But they already knew they could do that. [00:23:46] Speaker 05: They knew that as of 2002. [00:23:47] Speaker 05: So unless you're saying they were engaged in senseless litigation. [00:23:50] Speaker 02: No, Your Honor, they didn't. [00:23:52] Speaker 02: It's important to understand that gray sidewalks are only a subset of the exterior postal property on which they were seeking to be able to gather signatures. [00:24:02] Speaker 05: They lost that issue. [00:24:06] Speaker 02: They lost that issue. [00:24:07] Speaker 05: But as of 2002, they knew that Gray's sidewalks were open and they knew that they could do informational only soliciting on the interior parts. [00:24:22] Speaker 05: which is the relief they ultimately get in 2005 by the court decision. [00:24:28] Speaker 05: What's different about the 2005 court decision is that it's not just a statement by the Postal Service, it's an actual court order that you change the regulation. [00:24:37] Speaker 02: Well, I don't think that this court's 2005 decision required us to change the regulation. [00:24:42] Speaker 05: That may be what it comes down to. [00:24:45] Speaker 05: But that's a problem for you. [00:24:47] Speaker 02: We believe that one course of action the Postal Service could have done [00:24:52] Speaker 02: was to post its bulletin right next to the regulation in all the post offices and to put it up on the web. [00:24:58] Speaker 02: Well, just to confuse people, that would be... No, it doesn't. [00:25:01] Speaker 03: That's the problem. [00:25:02] Speaker 03: This is a First Amendment case, and there's a concern about chill. [00:25:08] Speaker 03: And you may have been willing to change the policy, but in terms of the interest that the First Amendment protects, the free speech interest, [00:25:14] Speaker 03: you had not changed it until that old overly restrictive regulation was corrected. [00:25:22] Speaker 03: And certainly, putting in the federal regulations at least allows a member of the public to say, this is now the law. [00:25:32] Speaker 03: And it seems to me that's a very important difference between the situation in which the postal commission is saying, trust us, we're not going after any of these people. [00:25:42] Speaker 03: And the public in advance actually has a basis to know that. [00:25:46] Speaker 03: Isn't that quite significant? [00:25:48] Speaker 02: But I don't think, but it's all about the post, the public knowing. [00:25:52] Speaker 02: And I, and I don't think that you had to change, we had to change the regulation to put the public on notice because the postal bullet specifically says the regulations do not apply. [00:26:03] Speaker 05: But do you agree that the, I'm sorry to interrupt, do you agree that the regulation was still posted in many post offices around the country? [00:26:11] Speaker 02: It was. [00:26:12] Speaker 05: Yeah, well, that's a problem for Judge Pillard's line of inquiry, I think. [00:26:16] Speaker 02: No, what I'm saying is that as a result of this court's decision in 2005, which was concerned with notice to the public, the Postal Service didn't have to change its regulation. [00:26:27] Speaker 02: We believe it could have simply posted its bulletin next to the regulation in all the post offices. [00:26:33] Speaker 05: And if I disagree with you on that, [00:26:37] Speaker 02: If you disagree with me on that, I don't think this still makes appellants a prevailing party. [00:26:42] Speaker 03: But even that is binding injunctive relief that was part of what they wanted. [00:26:46] Speaker 03: I don't understand why even had you been able to do that, you think that would disentitle the plaintiffs to fees based on the 2005 decision. [00:26:53] Speaker 03: It seems like you've just conceded a fact that entitles them to fees. [00:26:57] Speaker 02: Absolutely not, Your Honor. [00:26:58] Speaker 02: If you go back to the law on what constitutes a prevailing party, [00:27:02] Speaker 02: But Cannon said, there has to be court-ordered relief. [00:27:06] Speaker 02: Exactly. [00:27:06] Speaker 02: There was no court-ordered relief. [00:27:08] Speaker 03: If the court said to you, that bulletin in public, whether it's a regulation change or a posting of the bulletin, they're telling you to make that clear. [00:27:17] Speaker 02: Or they, by their opinion, are making it clear. [00:27:20] Speaker 02: They did not tell, what they said was they remanded the case to the district court to have the district court engage in a factual determination as to whether because on the face of the regulation it applied to gray sidewalks, whether or not a substantial number, that meant that a substantial number of postal properties were public forum [00:27:41] Speaker 02: and had prohibited speech that shouldn't have been prohibited. [00:27:45] Speaker 02: So if this court had concluded in 2005 that the as-applied challenge was only to gray sidewalks, it could have ordered the district court to enter an injunction prohibiting the Postal Service from applying its regulation to gray sidewalks, which would have been problematic because the Postal Service wasn't doing that. [00:28:05] Speaker 02: So really, what the court could have done was to order the Postal Service to change its regulation. [00:28:12] Speaker 02: But again, the Postal Service could have put the public on notice in different ways. [00:28:17] Speaker 02: What's important in the cases when they're looking at prevailing party status is [00:28:21] Speaker 02: What did the party want and what did the party achieve? [00:28:25] Speaker 02: And here, the plaintiffs all along wanted to be able to gather signatures on all exterior postal property. [00:28:33] Speaker 02: They did not achieve that. [00:28:33] Speaker 05: They wanted more than that, though. [00:28:34] Speaker 05: They wanted more than that, it appears, from looking at the whole record, and you know it well. [00:28:42] Speaker 05: But it seems like the key now for me, as I think about it, is the sign or the posting in the post office that tells people something that maybe was wrong, or not just maybe, was wrong, because it suggested that they couldn't do the informational-only soliciting and couldn't do the gray sidewalk. [00:29:06] Speaker 05: Now, if they were really astute, they would realize, oh, it's not being enforced. [00:29:11] Speaker 05: But if they just looked at the regulation in the post office and followed that, they would not be aware of that, and they would not be able to do the information only soliciting. [00:29:23] Speaker 05: Well, Your Honor, this case... And then after the court decision, this is the big part, the kicker, after the court decision, that's changed. [00:29:31] Speaker 05: And it's because of the court decision. [00:29:33] Speaker 02: but that's a catalyst theory, which under Buchanan, the Supreme Court said, is not a viable theory. [00:29:38] Speaker 02: In other words, the fact that the Postal Service took this court's suggestion in 2005. [00:29:42] Speaker 05: So that's what comes down to the inevitable results, looking at the National Rifle Association analog that was cited for the Seventh Circuit. [00:29:53] Speaker 02: But the Seventh Circuit case, the whole case ended. [00:29:55] Speaker 02: I mean, after the Supreme Court decision, that completely ended. [00:29:58] Speaker 05: Right, but this case only continued because there were different chunks of this case. [00:30:01] Speaker 05: In other words, the collection part. [00:30:03] Speaker 05: So obviously, the case continued in that. [00:30:05] Speaker 02: No, this case continued on the forum basis. [00:30:07] Speaker 02: And this case continued with a declaration from this court saying to look at how many gray sidewalks are out there to see whether or not it's a substantial number such that the regulation would be set aside. [00:30:18] Speaker 02: So there was no order by this court that required the Postal Service to change its position. [00:30:25] Speaker 02: And this has really been recast, Your Honor. [00:30:27] Speaker 02: with Appellant's motion for fees. [00:30:31] Speaker 02: Somehow now it's become, oh, we wanted a change in the regulation. [00:30:34] Speaker 02: That's not what they sought with this case. [00:30:36] Speaker 02: They wanted a change in conduct. [00:30:38] Speaker 02: And if you look at decisions by courts looking at prevailing party and what constitutes prevailing party status, it's a change in conduct by the defendant. [00:30:49] Speaker 02: It's not a format change in how they're putting out notice, but to get the defendant to change something that it's doing. [00:30:56] Speaker 02: And here, by 2002, the Postal Service was not enforcing its regulation on gray sidewalks. [00:31:03] Speaker 02: And by the way, appellants are incorrect. [00:31:06] Speaker 02: when they say this had not been transmitted to postal employees because with our motion for summary judgment, we filed a declaration from Fred Hintonock, who is the manager of customer relations with the Postal Service, who said they were advising postal managers not to apply the prohibition to gray sidewalks. [00:31:27] Speaker 02: So that information verbally had gone out to postmasters, and in fact, the district court cited that declaration. [00:31:34] Speaker 05: There were a couple of instances, or at least one, where it was still miscommunicated, right? [00:31:38] Speaker 05: There's a case. [00:31:39] Speaker 02: Well, those actually, I can respond to those three, Your Honor, because two of them occurred in 2002. [00:31:43] Speaker 02: Those were declarations that were done in 2002. [00:31:47] Speaker 02: And the citation to Delgado is completely wide of the mark because that was a campaigning issue. [00:31:53] Speaker 02: And that the individual there was trying to pass out leaflets as part of campaigning, which is prohibited by a separate part of the regulation. [00:32:00] Speaker 02: So that's completely beside the case in terms of showing that there was any [00:32:05] Speaker 02: miscommunication with Postmasters. [00:32:09] Speaker 02: I was just going to finish the thought that the record is clear that as of 2002, before there was any court order or court decision, the Postal Service was no longer enforcing its regulation on gray sidewalks [00:32:24] Speaker 02: And it all along had allowed leafletting and verbal solicitation. [00:32:30] Speaker 04: Do you distinguish here between the Plaintiff's Spatial Challenge and the As Applied Challenge? [00:32:36] Speaker 02: We do. [00:32:37] Speaker 02: And actually, their As Applied Challenge was not a challenge to the regulation as applied to Gray's sidewalks. [00:32:45] Speaker 02: Their As Applied Challenge was a challenge to the regulation as it applied to 12 different named postal facilities. [00:32:53] Speaker 02: So they never, in the course of this litigation, said that we want the regulation set aside just as it applies to gray sidewalks. [00:33:01] Speaker 02: They always had a global view of the regulation and a global view of the exterior postal property. [00:33:08] Speaker 03: Does that matter if you win but only win part? [00:33:13] Speaker 02: No, you can still be considered a prevailing party if you win in such a way that the defendant is required to change its conduct. [00:33:21] Speaker 02: And we go back to the issue of having to change conduct as opposed to how you publicize what your conduct is. [00:33:29] Speaker 02: And our position is that by changing the regulation, you are only dealing with what this court found to be a format issue in how we publicize what our position is. [00:33:38] Speaker 03: I just, I mean, I'm just repeating myself, but I still don't understand how you can characterize that as only a format issue and not a change in conduct because in the First Amendment context, [00:33:50] Speaker 03: Given chill, the communication of your change in policy is a vitally, constitutionally important part of your compliance. [00:34:02] Speaker 03: You are not in compliance with the First Amendment. [00:34:06] Speaker 03: If you have only said as a matter of our enforcement discretion, we will not enforce. [00:34:11] Speaker 03: That isn't in compliance with the First Amendment, as I understand it. [00:34:14] Speaker 03: And so maybe I'm missing something about the distinction that you're trying to make, but I'm still stuck on that. [00:34:21] Speaker 02: And I understand that, Your Honor. [00:34:23] Speaker 02: And there's no question that chill is a part of the First Amendment. [00:34:28] Speaker 02: We recognize that. [00:34:29] Speaker 02: But I go back to, I guess, two points. [00:34:32] Speaker 02: One, there had been no factual development [00:34:36] Speaker 02: up to the time of the 2005 decision that individuals are being chilled with respect to this grace type of sidewalks. [00:34:45] Speaker 02: Is there any First Amendment case that requires such a showing? [00:34:49] Speaker 02: Well, there has to be something that would reasonably allow the court to believe that chill was occurring. [00:34:55] Speaker 05: How about the signs in all the post offices? [00:34:58] Speaker 02: Well, but here's my point about these grace sidewalks. [00:35:02] Speaker 02: The way the gray sidewalks look is that... They look like the public sidewalk. [00:35:06] Speaker 02: Well, they look like a piece of the public sidewalk. [00:35:08] Speaker 02: In other words, you're walking along, you have a public sidewalk here, a public sidewalk here. [00:35:12] Speaker 02: To the visual eye, it continues without any break. [00:35:16] Speaker 02: The post office is located right here, and in some cases, and not all, the post office, the Postal Service happens to own that little chunk of sidewalk. [00:35:27] Speaker 02: I think there's a question as to whether or not any member of the public would think that that little piece of sidewalk was owned by the Postal Service. [00:35:34] Speaker 02: Because frankly, many people in the Postal Service didn't know that when this case started. [00:35:38] Speaker 02: And it wasn't until we got surveys and started looking at it, which frankly is partly how this evolved into a change of position, is that the Postal Service looked at the surveys, noted, you know, realized, oh, we actually own some of this sidewalk that looks like a city sidewalk. [00:35:55] Speaker 02: And that's how its position evolved into, all right, we're not going to enforce the regulation there because nobody would be able to know that that's owned by the Postal Service as opposed to the city sidewalk. [00:36:06] Speaker 02: So I think, again, on remand, [00:36:08] Speaker 02: all of this was still in flux. [00:36:11] Speaker 02: I think there was a legitimate argument that we could have made that they weren't being chilled because nobody would have known that these sidewalks were owned by the Postal Service. [00:36:20] Speaker 02: So to say that inevitably we had to change the regulation I think is not consistent with the record in this case. [00:36:28] Speaker 02: It's not consistent with this court's decision because if this court thought we had to change the regulation then the court [00:36:34] Speaker 02: it would seem would issue an order directing the district court to enter an injunction telling the Postal Service that it had to change its regulation. [00:36:43] Speaker 02: The court didn't do that. [00:36:45] Speaker 02: The court made a suggestion. [00:36:47] Speaker 02: So to say that there inevitably the regulation had to be changed does not follow from this court's 2005 decision. [00:36:55] Speaker 02: And again, I go back to the issue of [00:36:57] Speaker 02: change in conduct. [00:36:59] Speaker 02: Prevailing party, you must achieve some sort of change in conduct and something more than changing a regulation which we could have, as I said, done in another manner by either posting the bulletin or exploring whether or not there was any chill to begin with from the regulation. [00:37:21] Speaker 02: this position is sort of morphed as plaintiffs have sought attorney's fees. [00:37:26] Speaker 05: The change in conduct, based on today's argument, the change in conduct would be taking down what was in the post offices and putting up a replacement [00:37:37] Speaker 05: with a newly amended regulation that makes clear that that is conduct, right? [00:37:43] Speaker 02: That is conduct, but it's not the conduct they sought in bringing this case. [00:37:47] Speaker 02: They did not seek a change in a regulation in bringing this case. [00:37:50] Speaker 03: It was certainly part of what they sought. [00:37:51] Speaker 03: I'm sorry? [00:37:51] Speaker 03: It was certainly part of what they sought. [00:37:53] Speaker 03: I don't know how the Court of Appeals could have granted that if it wasn't what they sought. [00:37:56] Speaker 03: It was an included portion. [00:37:58] Speaker 03: It wasn't everything they sought, to be sure. [00:38:00] Speaker 03: But they're not seeking fees for the unsuccessful [00:38:03] Speaker 03: later litigation on the broader question of whether a substantial portion of what remained covered was rendered even more of the regulation invalid. [00:38:14] Speaker 02: They're not seeking those fees. [00:38:17] Speaker 02: Well, they're seeking fees on a lot they lost up to the 2005 decision, Your Honor. [00:38:22] Speaker 02: But nonetheless, they [00:38:26] Speaker 02: That's not the way this case was framed and litigated, Your Honor. [00:38:29] Speaker 02: Up through 2005 was that we're seeking to have this regulation changed. [00:38:34] Speaker 04: He seemed to be saying that basically there was no, the postal service had already changed everything and so there was nothing really to argue about in 05. [00:38:49] Speaker 04: But obviously this court believed [00:38:52] Speaker 04: that there was an issue with regard to gray sidewalks. [00:38:56] Speaker 04: Otherwise, there would have been no point in the remand. [00:38:59] Speaker 04: Correct? [00:39:00] Speaker 02: I see my time is up. [00:39:00] Speaker 02: Can I continue, Your Honor? [00:39:02] Speaker 02: Of course. [00:39:02] Speaker 02: We're not by any means suggesting that there was nothing left of the case in 2005. [00:39:07] Speaker 02: There absolutely was because, again, the regulation was being looked at as to how it applied to all exterior postal property. [00:39:15] Speaker 02: the plaintiffs that were trying to get it set aside with respect to all exterior postal property. [00:39:20] Speaker 02: So this court remanded the case to the district court to determine whether or not there was a substantial number [00:39:26] Speaker 02: of postal property that constituted a public forum such that the regulation would be set aside. [00:39:32] Speaker 02: All of that was still very much in controversy. [00:39:36] Speaker 04: Didn't this court at least make a finding as to the Georgetown Post Office? [00:39:43] Speaker 02: The Georgetown Post Office was noted as an example, Your Honor, of where there is some gray sidewalk in front of the Georgetown. [00:39:52] Speaker 02: You don't consider that to be a finding, though? [00:39:55] Speaker 02: Well, Your Honor, even if a finding, I mean, this court in Thomas versus National Science Foundation specifically held that a finding that there has been unconstitutional conduct is not enough to accord prevailing party status. [00:40:10] Speaker 02: And Buchanan held, the Supreme Court in Buchanan held the exact same thing. [00:40:14] Speaker 02: There has to be judicial relief. [00:40:16] Speaker 02: It's not enough simply to have a judicial finding that there is unconstitutional conduct. [00:40:22] Speaker 02: And so really what appellants are trying to argue is that this court's decision is tantamount to a court order ordering us to change. [00:40:31] Speaker 02: But under the canon, there is no tantamount to a court order as part of the standard. [00:40:36] Speaker 04: Well, let me ask you about 03, because there, the court did order the publication. [00:40:43] Speaker 04: I'm sorry, in which case? [00:40:45] Speaker 00: In 03. [00:40:45] Speaker 00: Oh, in 03, sorry. [00:40:46] Speaker 04: Yes. [00:40:46] Speaker 04: But earlier. [00:40:48] Speaker 04: The court there, though, did order the publication of that bulletin. [00:40:52] Speaker 04: Is that not the court imprimatur that we need for finding their prevailing party? [00:41:00] Speaker 02: That's a court order ordering the Postal Service to disseminate a document reflecting a position that the Postal Service had taken previously. [00:41:09] Speaker 02: That's not a change in the legal relationship between the parties. [00:41:12] Speaker 02: And in fact, in their reply brief, they said the legal bulletin has no legal effect whatsoever. [00:41:18] Speaker 02: So how could the court ordering it to be disseminated in 2003 be really meaningful if appellants themselves say it had no legal effect? [00:41:29] Speaker 02: And the reason the court asked us to disseminate that, as you can see in the transcript, was the court wanted a comfort level that we were reiterating in writing to the postmasters. [00:41:39] Speaker 02: What we had already represented was our position. [00:41:41] Speaker 02: And what we told the court, we had been advising postal managers in 2002 in terms of an application. [00:41:49] Speaker 02: But again, Your Honor, we go back to the standards for prevailing party here. [00:41:54] Speaker 02: And the Supreme Court could not be clearer that there must be judicial relief order. [00:42:00] Speaker 02: And there simply was no, in this case, judicial relief order that required the Postal Service to change its conduct with respect to the merits of the claims that appellants brought before in this case. [00:42:14] Speaker 02: If there are no further questions, we urge the Court [00:42:16] Speaker 02: to affirm the district court's decision. [00:42:19] Speaker 02: Alright, thank you. [00:42:22] Speaker 04: Well, as usual, Mr Spitzer, we used up all of your time. [00:42:25] Speaker 04: We'll give you two minutes. [00:42:26] Speaker 01: Thank you very much. [00:42:28] Speaker 01: I have a few very quick points. [00:42:29] Speaker 01: In terms of what we asked for, here's what we said in our amended complaint filed in December 2000. [00:42:36] Speaker 01: In the prayer for relief, we asked the court to declare that portion of 39 CFR 232.1 H1, which prohibits soliciting signatures on petitions, polls, or surveys on USPS property, [00:42:50] Speaker 01: to be unconstitutional on its face and wholly void. [00:42:53] Speaker 01: So we certainly did ask for relief with respect to the regulation, not just with respect to enforcement. [00:42:59] Speaker 01: We asked that the regulation be declared unconstitutional on its face. [00:43:03] Speaker 01: Now as applied challenge, [00:43:05] Speaker 01: on the next page, in the alternative, declaring that 39 CFR 232.1 H1 is unconstitutional as enforced against plaintiffs. [00:43:13] Speaker 01: And in 2005, this court characterized our as applied challenge in the opinion. [00:43:19] Speaker 01: It's on JA 89. [00:43:21] Speaker 01: They argued that the regulation, the plaintiffs argued, the regulation is unconstitutional on its face and as applied to their specific petitioning activities. [00:43:29] Speaker 01: So that's how this court characterized our as applied challenge. [00:43:33] Speaker 01: Number two, it's not at all clear that the Postal Service was not enforcing the regulation as published from 2002 until 2005. [00:43:45] Speaker 01: I don't recall Mr. Hintonack's declaration saying that they were advising postal managers not to enforce it. [00:43:52] Speaker 01: I take Ms. [00:43:52] Speaker 01: Braswell's word for it that he said so. [00:43:55] Speaker 01: But some kind of oral advice going out to postmasters is hardly going to be as effective as a change in the regulation which is required by its own terms to be posted in a public place, a prominent place in every postal facility. [00:44:08] Speaker 01: I don't know what sort of oral advice Mr. Hintonack may have given to who, but there's no reason to believe that 34,000 postmasters knew and understood this change in enforcement policy. [00:44:21] Speaker 01: And finally, in terms of the standards for a prevailing party, this court said in Massachusetts' fair share against law enforcement assistance administration, which is cited in our brief, [00:44:34] Speaker 01: Quote, a party who establishes an entitlement to relief on the merits of a claim is entitled to fees even if the case is remanded to the agency for further action. [00:44:45] Speaker 01: That's just what we have here. [00:44:46] Speaker 01: That was a pre-Buckhannon case from 1985, but it's exactly the same thing that the Seventh Circuit articulated and enforced in the NRA case, that when the party has an entitlement to relief based on an appellate court's decision, the fact that there's a remand for further proceedings, which inevitably will result in that relief, is enough to make a party prevail. [00:45:11] Speaker 01: Thank you very much. [00:45:14] Speaker 04: Thank you counsel. [00:45:15] Speaker 04: The court case will be submitted.