Amicus Curiae Brief — Robert Holman, Petitioner v. Brooke L. Rollins, Secretary, Department of Agriculture, et al.

No. 24-1142

In the Supreme Court of the United States

_________

ROBERT H OLMAN,

Petitioner,

v.

BROOKE R OLLINS , IN HER OFFICIAL CAPACITY

AS S ECRETARY OF THE U NITED S TATES

D EPARTMENT OF A GRICULTURE , ET AL .,

Respondents.

_________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

_________

MOTION FOR LEAVE TO FILE

AND BRIEF OF PACIFIC LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

_________

ALISON E. S OMIN

Counsel of Record

G LENN E. ROPER

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

(202) 557-0202

asomin@pacificlegal.org

Counsel for Amicus Curiae

MOTION FOR LEAVE TO FILE

BRIEF AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Pacific Legal Foundation (PLF) respectfully seeks

leave of this Court to file an amicus curiae brief in support of the Petitioner. PLF informed counsel of record

for the parties of its intent to file the brief on May 28,

nine days before the brief was due. Because Supreme

Court Rule 37.2 requires ten days’ notice, this notice

was not timely under this Court’s rules. Counsel regrets and apologizes for the error. After discovering

the mistake, counsel wrote to the parties to explain

what had happened. Petitioner consented to the filing

of the brief, but Respondents did not respond to the

message.

PLF frequently appears before this Court as counsel and amicus curiae in cases involving the Constitution, individual rights, and equal protection. It writes

in support of Petitioner here because the questions

presented raise issues of national importance in terms

of ensuring that the right to equal protection under

the laws is protected. Amicus PLF draws on its experience litigating similar cases to highlight to this

Court the importance of incentives to make sure that

constitutional equal protection is adequately enforced.

Because the delay in notice was modest and not

prejudicial to the parties, and because of the unique

perspective that Amicus would bring regarding the

national importance of this Petition, PLF respectfully

2

asks this Court to grant it leave to file this amicus

brief.

Respectfully submitted,

ALISON E. S OMIN

Counsel of Record

G LENN E. ROPER

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

(202) 557-0202

asomin@pacificlegal.org

Counsel for Amicus Curiae

J UNE 2025

QUESTIONS PRESENTED

1) May the federal government rely on its litigation

conduct to establish that its position is “substantially

justified” under EAJA, when its pre-litigation conduct

was objectively unreasonable?

2) Did the Sixth Circuit err in holding that the government’s position was substantially justified, given

the strict scrutiny standard applicable to race discrimination?

ii

TABLE OF CONTENTS

Interest of Amicus Curiae .......................................... 1

Summary of Argument ............................................... 1

Reasons for granting the Petition .............................. 2

I. This Petition would advance the public

interest in eliminating “all” racial

discrimination .................................................. 2

II. Public interest lawyers play a key role

in promoting equal protection ......................... 7

III. The EAJA provides important incentives

to ensure rights are protected against

federal government intrusion ........................ 10

Conclusion ................................................................. 14

iii

TABLE OF AUTHORITIES

Cases

Bolling v. Sharpe,

347 U.S. 497 (1954) ............................................... 3

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ............................................... 1

Dunlap v. Vilsack,

No. 2:21-cv-942 (D. Or.) ..................................... 1, 5

Faust v. Vilsack,

519 F. Supp. 3d 470 (E.D. Wis. 2021) ................... 4

Fisher v. Univ. of Tex.,

570 U.S. 297 (2013) ............................................. 13

Fisher v. Univ. of Tex.,

579 U.S. 365 (2016) ............................................. 13

Grutter v. Bollinger,

539 U.S. 306 (2003) ............................................... 3

Holman v. Vilsack, No. 21-cv-1085,

2021 WL 2877915 (W.D. Tenn. July 8, 2021) ....... 4

Kent v. Vilsack,

No. 3:21-cv-540 (S.D. Ill.) .................................. 1, 5

Knick v. Township of Scott,

588 U.S. 180 (2019) ............................................... 1

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ............................................... 3

McKinney v. Vilsack,

No. 2:21-cv-212 (E.D. Tex.) ............................... 1, 5

MD/DC/DE Broadcasters Ass’n v. FCC,

236 F.3d 13 (D.C. Cir. 2001) ................................. 6

Miller v. Vilsack, No. 4:21-cv-595,

2021 WL 11115194 (N.D. Tex. July 1, 2021) ........ 4

NAACP v. Button,

371 U.S. 415 (1963) ............................................... 7

iv

Nuziard v. Minority Business Dev. Agency,

721 F. Supp. 3d 431 (N.D. Tex. 2024) ................... 5

Palmore v. Sidoti,

466 U.S. 429 (1984) ............................................... 3

Pierce v. Underwood,

487 U.S. 552 (1988) ............................................. 11

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ............................................... 3

theDove Media, Inc. v. FCC,

No. 24-60407 (5th Cir.) .......................................... 6

Tiegs v. Vilsack,

No. 3:21-cv-147 (D.N.D.) ................................... 1, 5

Tyler v. Hennepin County,

598 U.S. 631 (2023) ............................................... 1

Ultima Servs. Corp. v. U.S. Dep’t of Agric.,

No. 2:20-cv-00041, 2023 WL 4633481

(E.D. Tenn. July 19, 2023) .................................... 5

Vitolo v. Guzman,

999 F.3d 353 (6th Cir. 2021) ................................. 5

Wilkins v. United States,

598 U.S. 152 (2023) ............................................... 1

Wynn v. Vilsack,

545 F. Supp. 3d 1271 (M.D. Fla. 2021) ................. 4

Wynn v. Vilsack,

No. 3:21-cv-514 (M.D. Fla.) ............................... 1, 5

Statutes

7 U.S.C. § 2279(a)(5) ................................................ 3-4

7 U.S.C. § 2279(a)(6) ................................................ 3-4

28 U.S.C. § 2412(d)(1)(A) .......................................... 11

Inflation Reduction Act of 2022,

Pub. L. No. 117-169, 136 Stat. 1818 ..................... 4

Pub. L. No. 117-2, 135 Stat. 4 (2021) ...................... 3-4

v

Rules

Sup. Ct. R. 37.2 ........................................................... 1

Sup. Ct. R. 37.6 ........................................................... 1

Other Authorities

Albiston, Catherine R. & Nielsen, Laura Beth,

Funding the Cause: How Public Interest Law

Organizations Fund Their Activities and Why

It Matters for Social Change,

39 Law & Soc. Inquiry 62 (2014) .......................... 8

Comp., Hierholzer v. Guzman,

No. 2:33-cv-00024 (E.D. Va. Jan. 18, 2023) .......... 6

Cong. Globe, 39th Cong., 1st Sess. (1866).................. 2

The Ford Foundation, Public Interest

Law: Five Years Later (1976),

https://files.eric.ed.gov/fulltext/ED12

4473.pdf............................................................. 9-10

Ginsburg, Ruth Bader, In Pursuit of the

Public Good: Lawyers Who Care,

Joseph L. Rauh Lecture, Apr. 9, 2001,

supremecourt.gov/publicinfo/speeches/

sp_04-09-01a.html .............................................. 8-9

In re Review of the Commission’s Broadcast

& Cable Equal Employment Opportunity

Rules and Policies, FCC 24-18,

2024 WL 770889 (rel. Feb. 22, 2024) ................. 5-6

LaNoue, George R., The Demise of Procurement

Disparity Studies? (Oct. 2024),

https://papers.ssrn.com/sol3/papers.cfm?abst

ract_id=4984098 .................................................... 6

vi

Rosman, Michael E., The Language of Race

and Sex Preferences in Government

Contracting and Benefits (Nov. 2024),

https://papers.ssrn.com/sol3/papers.cfm?a

bstract_id=5026705 ............................................... 6

Wisc. Inst. for Law & Liberty, Roadmap

to Equality: Healthcare (2025),

https://will-law.org/wp-content/

uploads/2025/04/NEW_FINAL_WILLs

-Roadmap-to-Equality-–-55-RB-HHSFederal-Funding-Initiatives-Final.pdf .............. 6-7

Wisc. Inst. for Law & Liberty, Roadmap

to Equality, https://will-law.org/wpcontent/uploads/2025/02/EqualityAgenda_pdf-2.7.25.pdf (last visited

June 4, 2025) ......................................................... 6

INTEREST OF AMICUS CURIAE 1

Pacific Legal Foundation (PLF) is the leading

public interest legal foundation seeking to vindicate

the principles of individualism, equal protection under

the law, property rights, and separation of powers.

PLF attorneys have participated as lead counsel in

various cases before this Court. See, e.g., Tyler v.

Hennepin County, 598 U.S. 631 (2023); Wilkins v.

United States, 598 U.S. 152 (2023); Cedar Point

Nursery v. Hassid, 594 U.S. 139 (2021); Knick v.

Township of Scott, 588 U.S. 180 (2019). PLF lawyers

also represented plaintiffs around the country in

challenges to Section 1005 of the American Rescue

Plan Act of 2021, the underlying subject of the

litigation in this case. See Wynn v. Vilsack, No. 3:21cv-514 (M.D. Fla.); Kent v. Vilsack, No. 3:21-cv-540

(S.D. Ill.); McKinney v. Vilsack, No. 2:21-cv-212 (E.D.

Tex.); Dunlap v. Vilsack, No. 2:21-cv-942 (D. Or.);

Tiegs v. Vilsack, No. 3:21-cv-147 (D.N.D.). As a

nonprofit legal organization, PLF has an interest in

the standards that are applied to the award of

attorney fees under the Equal Access to Justice Act

(EAJA).

SUMMARY OF ARGUMENT

This Court should grant the Petition to advance

the public interest in ending race discrimination.

This case involves a federal program that denied

loans to farmers solely based on race. The Constitution squarely forbids such discrimination. But

1 Counsel of record for all parties received nine days’ notice of

Amicus’s intent to file this brief. Sup. Ct. R. 37.2. No person or

entity, other than Amicus and its counsel, authored the brief in

whole or in part or made any monetary contribution intended to

fund the preparation or submission of the brief. Sup. Ct. R. 37.6.

2

the constitutional guarantee of equal protection is

not self-executing. If Americans’ rights to equal

treatment are to be protected against governmental incursion, those discriminated against must be

willing to sue, and there must be lawyers willing

to represent them. The EAJA was enacted to make

sure that lawyers who bring meritorious cases

against the government can receive attorney fees

when the government’s position is not substantially justified. Its purpose is thus to align lawyers’ private and clients’ private interests with the

public interest in protecting constitutional

rights—such as ensuring equal protection under

the laws. The decision below is at odds with the

EAJA’s text and history and also undermines incentives for the protection of core constitutional

rights. This Court should grant the Petition to ensure the EAJA is correctly interpreted and enforced.

REASONS FOR GRANTING THE PETITION

I.

This Petition would advance the public interest in eliminating “all” racial discrimination.

The constitutional guarantee that individuals

should be treated as individuals and not on the basis

of their membership in racial groups is a cornerstone

of American law. To its proponents, the Equal

Protection Clause of the Fourteenth Amendment

represented a “foundational principle”—“the absolute

equality of all citizens of the United States politically

and civilly before their own laws.” Cong. Globe, 39th

Cong., 1st Sess., 431 (1866) (statement of Rep.

Bingham). This Court has recognized that the

principle of equality before the law embodied in the

3

Equal Protection Clause also applies against the

federal government and its agencies through the Due

Process Clause of the Fifth Amendment. See Bolling

v. Sharpe, 347 U.S. 497 (1954).

The principle of equality before the law resounds

through more recent Supreme Court decisions: Palmore v. Sidoti, for example, holds that the “core purpose” of equal protection is to “do away with all governmentally imposed discrimination based on race.”

466 U.S. 429, 432 (1984) (footnote omitted). “It is a

sordid business, this divvying us up by race.” League

of United Latin Am. Citizens v. Perry, 548 U.S. 399,

511 (2006) (Roberts, C.J., concurring). “Every time

the government places citizens on racial registers and

makes race relevant to the provision of burdens or

benefits, it demeans us all.” Grutter v. Bollinger, 539

U.S. 306, 353 (2003) (Thomas, J., concurring). Most

recently, this Court struck down race preferential admissions schemes at Harvard University and the University of North Carolina, emphasizing that the Constitution’s goal of “[e]liminating racial discrimination

means eliminating all of it.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600

U.S. 181, 206 (2023).

Despite the importance of this “foundational

principle,” this case arose out of the federal

government’s attempt to implement overt race

discrimination.

Petitioner Holman brought a

constitutional challenge to Section 1005 of the

American Rescue Plan Act of 2021, which would have

provided debt relief to “socially disadvantaged”

farmers. Pub. L. No. 117-2, § 1005(a)(2), 135 Stat. 4

(2021). The Act defined “socially disadvantaged”

farmers as those who were members of a group that

has been “subjected to racial and ethnic prejudice.” 7

4

U.S.C. § 2279(a)(5)-(6) (incorporated by Pub. L. No.

117-2, § 1005(b)(3)). The USDA came up with a list of

racial groups that qualified as socially disadvantaged,

which did not include Holman’s group. In other

words, Holman was ineligible for debt relief under this

law solely because of his race, whereas farmers that

fell into preferred racial groups were offered debt

relief.

Such blatant race discrimination is squarely

forbidden by the Constitution, and indeed every court

to consider the merits (under the likelihood-of-success

preliminary injunction standard) recognized that

Section 1005 was likely unconstitutional and involved

obvious racial discrimination without the kind of

justification and narrow tailoring necessary to survive

strict scrutiny. See Holman v. Vilsack, No. 21-cv1085, 2021 WL 2877915 (W.D. Tenn. July 8, 2021);

Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1276 (M.D.

Fla. 2021); Miller v. Vilsack, No. 4:21-cv-595, 2021 WL

11115194 (N.D. Tex. July 1, 2021); Faust v. Vilsack,

519 F. Supp. 3d 470, 478 (E.D. Wis. 2021). Put simply,

Section 1005’s unconstitutionality was not a

particularly close call, and Congress’ eventual repeal

was unsurprising, given the tide of decisions against

it. See Inflation Reduction Act of 2022, § 22008, Pub.

L. No. 117-169, 136 Stat. 1818. Yet that repeal should

not overshadow the lack of any substantial

justification for enacting and defending Section 1005

in the first place.

Unlawful attempts at race discrimination by the

federal

government

are

unfortunately

too

commonplace. In addition to representing many

5

farmers in challenges to Section 1005,2 Amicus PLF

also represents a service-disabled veteran in a

challenge to a race-preferential program administered

by the Small Business Administration. See Compl.,

Hierholzer v. Guzman, No. 2:33-cv-00024 (E.D. Va.

Jan. 18, 2023).3 The American Rescue Plan Act of

2021 not only created the racially discriminatory debt

relief program in Section 1005, but also created the

Restaurant Revitalization Fund, which used racially

discriminatory prioritization for COVID funding

relief. See Vitolo v. Guzman, 999 F.3d 353, 360-66 (6th

Cir. 2021) (granting a preliminary injunction). And

the Inflation Reduction Act of 2022—which repealed

Section 1005—itself created the Minority Business

Development Agency (MBDA), which implemented an

unconstitutional race-based presumption of social

disadvantage. See Nuziard v. Minority Business Dev.

Agency, 721 F. Supp. 3d 431, 509 (N.D. Tex. 2024)

(permanently enjoining MBDA’s use of racial and

ethnic classifications).

In yet other instances, the federal government

unlawfully pressures others into engaging in race

discrimination.

In February 2024, the Federal

Communications Commission revived a rule that

requires broadcasters with five or more employees to

annually collect and publicly report information about

their employees’ race. See In re Review of the

See Wynn v. Vilsack, No. 3:21-cv-514 (M.D. Fla.); Kent v.

Vilsack, No. 3:21-cv-540 (S.D. Ill.); McKinney v. Vilsack, No. 2:21cv-212 (E.D. Tex.); Dunlap v. Vilsack, No. 2:21-cv-942 (D. Or.);

Tiegs v. Vilsack, No. 3:21-cv-147 (D.N.D.)

2

Another district court has already concluded that SBA’s

program violates equal protection. See Ultima Servs. Corp. v.

U.S. Dep’t of Agric., No. 2:20-cv-00041, 2023 WL 4633481 (E.D.

Tenn. July 19, 2023).

3

6

Commission’s Broadcast & Cable Equal Employment

Opportunity Rules and Policies, FCC 24-18, 2024 WL

770889 (rel. Feb. 22, 2024). This rule is a thinly veiled

attempt to do indirectly what the FCC cannot do

directly: pressure stations into race-based hiring

practices. See, e.g., MD/DC/DE Broadcasters Ass’n v.

FCC, 236 F.3d 13, 19 (D.C. Cir. 2001) (holding that

FCC racial diversity/balancing mandate violated

equal protection). PLF represents a media company

in a challenge to that rule. See theDove Media, Inc. v.

FCC, No. 24-60407 (5th Cir.).

Scholars have documented the ubiquity of racepreferential programs at the federal level. Michael

Rosman has identified race preferential programs in

the Small Business Administration, the Department

of Agriculture, the Minority Business Development

Agency, the Environmental Protection Agency, and

the Department of Transportation.4 Professor George

LaNoue has documented racial discrimination in

federal programs at the Departments of Agriculture

and Transportation.5 And reports prepared by the

Wisconsin Institute for Law and Liberty have

identified numerous federal programs and initiatives

that provide benefits or preferences based on race.6

4 Michael E. Rosman, The Language of Race and Sex

Preferences in Government Contracting and Benefits (Nov. 2024),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5026705.

George R. LaNoue, The Demise of Procurement Disparity

Studies? (Oct. 2024), https://papers.ssrn.com/sol3/papers.cfm?ab

stract_id=4984098.

5

Wisc. Inst. for Law & Liberty, Roadmap to Equality,

https://will-law.org/wp-content/uploads/2025/02/EqualityAgenda_pdf-2.7.25.pdf (last visited June 4, 2025); Wisc. Inst. for

Law & Liberty, Roadmap to Equality: Healthcare (2025),

6

7

While the current presidential administration has

taken executive actions to halt some instances of race

discrimination, any president with a different policy

agenda could easily undo those actions. Given the

unfortunate prevalence of racially discriminatory

actions by the federal government, the public interest

in granting this case to deter the federal government

from enacting and enforcing discriminatory laws

remains significant.

II. Public interest lawyers play a key role in

promoting equal protection

The Constitution’s guarantee of equal protection is

not self-executing. Realizing its full promise requires

the effort of lawyers and the clients they represent.

Groups which find themselves unable to achieve

their objectives through the ballot frequently

turn to the courts. . . . And under the conditions

of modern government, litigation may well be

the sole practicable avenue open to a minority to

petition for redress of grievances. . . . For such

a group, association for litigation may be the

most effective form of political association.

NAACP v. Button, 371 U.S. 415, 429-31 (1963).

As a practical matter, a would-be plaintiff or defendant will often take action to vindicate or defend

those rights only if he does not have to bear the full

cost himself. As early as 1920, the American Civil Liberties Union took pro bono clients to defend and preserve constitutional rights such as due process, equal

protection, and free speech. Twenty years later, the

https://will-law.org/wp-content/uploads/2025/04/NEW_FINAL_

WILLs-Roadmap-to-Equality-–-55-RB-HHS-Federal-FundingInitiatives-Final.pdf.

8

NAACP Legal Defense Fund was founded to fight for

civil rights. Indeed, it led the litigation campaign that

culminated in Brown v. Board of Education. See Catherine R. Albiston & Laura Beth Nielsen, Funding the

Cause: How Public Interest Law Organizations Fund

Their Activities and Why It Matters for Social Change,

39 Law & Soc. Inquiry 62, 64 (2014). These two organizations’ successes inspired others to found similar

organizations, like PLF, to litigate for causes important to them and their donors. Id.

Despite their differing views on law and policy, all

these organizations recognize the problem of people

who have suffered violations of their constitutional

rights being unable to afford to pay for legal representation. Nonprofit public interest law firms address

this problem by providing free counsel to persons with

meritorious constitutional claims.

Justice Ruth Bader Ginsburg, a well-known progressive, hailed the rise of conservative and libertarian public interest firms: “Competition can be a

healthy thing in the pro bono sphere,” she said in a

2001 speech at the University of the District of Columbia.7 She acknowledged that organizations of different ideological orientations prioritize enforcement of

constitutional rights differently: “If an ACLU lawyer

thinks first of the privilege against self-incrimination

when one mentions the Fifth Amendment, so the Pacific Legal Foundation lawyer may think first of that

Amendment’s declaration that private property shall

Ruth Bader Ginsburg, In Pursuit of the Public Good:

Lawyers Who Care, Joseph L. Rauh Lecture, Apr. 9, 2001,

supremecourt.gov/publicinfo/speeches/sp_04-09-01a.html.

7

9

not be taken for public use without just compensation.”8 Ginsburg praised this diversity within the public interest world as vital for ensuring the full range of

constitutional rights are protected: “Our system of

justice works best when opposing positions are well

represented and fully aired. I therefore greet the expansion of responsible public-interest lawyering on

the conservative side as something good for the system, and hardly a development to be deplored.”9

Ginsburg’s predecessor on the Court, Justice Thurgood Marshall, similarly recognized the social importance of public interest lawyering but saw lack of

funding as a major obstacle to its ultimate success. He

observed:

Although public interest law has grown and has

gained wider acceptance, it still faces an uncertain future. The major problem is funding.

Even though public interest lawyers usually will

accept far lower salaries than they could earn

representing well-to-do clients, substantial

funds are necessary to make a highly professional public interest practice possible. Yet almost by definition, public interest lawyers represent persons or groups who cannot easily compete in the ordinary market for legal services.

. . . If our society believes, as I believe, that all

viewpoints should have access to the legal process, then we must search for ways to assure

8

Id.

9

Id.

10

that public interest law develops a secure financial base.10

III. The EAJA provides important incentives

to ensure rights are protected against

federal government intrusion.

The Equal Access to Justice Act was enacted to “diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in

specified situations an award of attorney fees.” App.

124a-125a. As Senator Dennis DeConcini (D-Arizona)

said when introducing the Act:

The bill rests on the premise that certain individuals, partnerships, corporations and labor

and other organizations may be deterred from

seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of

their rights. The economic deterrents to contesting governmental action are magnified in these

cases by the disparity between the resources and

expertise of these individuals and their government. The purpose of the bill is to reduce the

deterrents and the disparity by entitling certain

prevailing parties to recover an award of attorney fees, expert witness fees and other costs

against the United States.

App. 150a-151a.

The first version of the EAJA had a sunset provision, requiring Congress to repromulgate the same

statute three years later. During the 1984 hearings

10 Foreword in The Ford Foundation, Public Interest Law:

Five

Years Later 7-8 (1976), https://files.eric.ed.gov/fulltext/ED124

473.pdf.

11

about whether to renew the EAJA, members of Congress spoke about the statute’s purpose in similar

terms. Senator Chuck Grassley (R-Iowa) said that

“the primary purpose of the EAJA” was to create

proper incentives:

[to] provide an incentive for parties, aggrieved

by unreasonable governmental action, to

undertake litigation to vindicate their rights, as

well as to deter arbitrary or unjustified agency

action. The legislative history of the EAJA is

replete with references to administrative abuses

which Congress sought to limit through

enactment of an attorney fee-shifting device.

App. 155a. Further, in enacting the EAJA, “Congress

expressly recognized that the expense of correcting error on the part of the Government should not rest

wholly on the party whose willingness to litigate or

adjudicate has helped to define the limits of Federal

authority.” App. 156a (cleaned up).

The Petition addresses the EAJA’s substantial justification exception, under which a court may not

award fees to a prevailing party in a civil action

against the United States if it “finds that the position

of the United States was substantially justified.” 28

U.S.C. § 2412(d)(1)(A). This Court has held that the

government is substantially justified only when its

“position” is “justified to a degree that could satisfy a

reasonable person.” Pierce v. Underwood, 487 U.S.

552, 565 (1988). Correctly interpreting and applying

that exception is exceptionally important, since

whether attorney fees are available in a case affects

the incentives of government agencies, affected parties, and their lawyers.

12

As discussed in the Petition, the Courts of Appeals

are split on the question of whether the federal government may rely on its litigation conduct to establish

that its position is substantially justified under the

EAJA, when its pre-litigation conduct was objectively

unreasonable. Petition at 14-22.

Not only are the circuits split on the issue, but the

decision below likely took the wrong side of the split.

Senator Grassley addressed this very issue during

congressional hearings on the 1984 EAJA enactment,

interpreting EAJA much as Petitioner does. In his

view,

to follow an interpretation that “position of the

United States” refers only to the government’s

litigation stance is to imply that no matter how

outrageously improper the agency action, and no

matter how intransigently a wrong position has

been maintained by the agency prior to the

litigation, and no matter how many times the

agency repeats the same offense, the statute has

no application as long as employees of the

Department of Justice act reasonably when they

appear in court.

App. 156a. As Senator Grassley noted, there are “numerous gross examples of the results that obtain from

consideration of only the government’s ‘litigation’ position.” App. 156a.

Likewise, as the dissenting Sixth Circuit judges below recognized, establishing proper incentives is important to deter federal agencies from discriminating

in the future. “[I]f an agency knows that its failed

gambits can be recast in court as ‘substantially justified,’ it will be more apt to try its hand at playing racial favorites; the costs would be low.” App. 12a-13a

13

(Thapar, J., dissenting). “Shaping federal agencies’

incentive structures when they consider whether to

racially discriminate is exceptionally important.” Id.

Equally important, an overbroad interpretation of

“substantial justification” will deter victims of government discrimination from attempting to vindicate

their rights. As attorneys for Amicus PLF have

learned through our own work, being a client in an

equal protection case can be challenging. Our clients

can face anxiety-provoking uncertainty about how

their case will be resolved. Many lack the funds to pay

for private counsel to litigate a discrimination claim,

which can take years to resolve as it wends its way

through the trial and appellate courts. Some face adverse publicity. The gratuitous and frequently personal hostility directed at Abigail Fisher, the plaintiff

in one of the most prominent discrimination cases of

the last quarter century, would give anyone pause

about filing a similar claim. See Fisher v. Univ. of

Tex., 579 U.S. 365 (2016); Fisher v. Univ. of Tex., 570

U.S. 297 (2013). A robust interpretation of the EAJA’s

substantial justification exception may not ultimately

solve these problems. But it does make bringing an

equal protection case against the federal government

more of a realistic possibility and thus mitigates these

challenges.

14

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

ALISON E. S OMIN

Counsel of Record

G LENN E. ROPER

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

(202) 557-0202

asomin@pacificlegal.org

Counsel for Amicus Curiae

J UNE 2025