IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 149

Robert Martinie Goff, Appellant

v.

William Panos, Director, 

Department of Transportation, Appellee

No. 20230115

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Steven E. McCullough, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and 

Justices Tufte and Bahr joined. Justice McEvers filed a dissenting opinion.

Drew J. Hushka (argued) and Mark A. Friese (on brief), Fargo, ND, for

appellant.

Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 2, 2023 

STATE OF NORTH DAKOTA
1

Goff v. NDDOT

No. 20230115

Crothers, Justice.

[¶1] Robert Goff appeals from an order denying his request for costs and 

attorney’s fees relating to the Department of Transportation’s suspension of 

Goff’s driving privileges. We reverse and remand, concluding the district court 

abused its discretion in deciding the Department’s proceeding against Goff was

substantially justified.

I

[¶2] In December 2021, Fargo police officers arrested Goff in an apartment 

parking lot for being in actual physical control of a vehicle while under the 

influence of intoxicating liquor. A driveway used to access the parking lot

included a sign reading “private property, private drive.”

[¶3] Goff requested an administrative hearing, arguing an ordinance, Fargo 

Municipal Code § 8-1011, limited the public’s right to access property marked 

as private without written permission from the owner. The owner of the 

property, John Goff, testified the parking lot is for tenant parking only. John 

Goff testified that deliverers and visitors are prohibited from going past the 

sign to access the parking lot.

[¶4] The hearing officer concluded the ordinance prohibited the public from 

parking in the private parking lot, but did not limit the public’s right to access 

the lot. The hearing officer found the public had a right of access to the private 

lot for vehicular use. The Department suspended Goff’s driving privileges for 

91 days, and the district court affirmed.

[¶5] This Court reversed, concluding the hearing officer misinterpreted the 

ordinance. Goff v. Panos, 2022 ND 186, ¶ 12, 981 N.W.2d 909. We concluded 

the ordinance provides that without written permission one may not drive or 

park upon property marked as “private property.” Id. at ¶ 15. We concluded the 

hearing officer’s finding that the public had a right of access to the private 

parking lot for vehicular use was not supported by a preponderance of the 
2

evidence. Id. We remanded for a determination of whether the Department 

acted without substantial justification requiring an award of costs and 

attorney’s fees to Goff under N.D.C.C. § 28-32-50(1). Goff, at ¶ 16.

[¶6] On remand, Goff argued he was entitled to costs and attorney’s fees 

because the Department’s action against him was not substantially justified.

Goff claimed a reasonable person would not believe the public had a right to 

access the private parking lot in light of signage on the property and Fargo 

Municipal Code § 8-1011. The district court decided the Department acted with 

substantial justification, and denied Goff’s request for costs and attorney’s fees. 

II

[¶7] Goff argues the district court abused its discretion in denying his request 

for attorney’s fees under N.D.C.C. § 28-32-50(1). Goff asserts the Department 

lacked substantial justification for its decision suspending his driving 

privileges because no reasonable person could have concluded the hearing 

officer’s findings were supported by the record.

[¶8] Section 28-32-50(1), N.D.C.C., provides:

“In any civil judicial proceeding involving as adverse parties an 

administrative agency and a party not an administrative agency 

or an agent of an administrative agency, the court must award the 

party not an administrative agency reasonable attorney’s fees and 

costs if the court finds in favor of that party and, in the case of a 

final agency order, determines that the administrative agency 

acted without substantial justification.”

Whether the agency acted with substantial justification is discretionary with 

the district court, and this Court applies an abuse of discretion standard on 

appeal. Goff, 2022 ND 186, ¶ 16. A court abuses its discretion if it acts in an 

arbitrary, unreasonable, or unconscionable manner, if it misinterprets or 

misapplies the law, or if its decision is not the product of a rational mental 

process leading to a reasoned determination. N. Dakota Dep’t of Transp. v. 

Schmitz, 2018 ND 113, ¶ 5, 910 N.W.2d 874.
3

[¶9] “[S]ubstantially justified means justified in substance or in the main—

that is, justified to a degree that could satisfy a reasonable person.” 

Lamplighter Lounge, Inc. v. State ex rel. Heitkamp, 523 N.W.2d 73, 75 (N.D. 

1994) (cleaned up). An incorrect position may be justified if a reasonable person 

could think that it has a reasonable basis in law and fact. Id. “Substantial 

justification represents a middle ground between the automatic award of fees 

to the prevailing party on one side, and awarding fees only when a position is 

frivolous or completely without merit on the other.” Id.

[¶10] If a district court agrees an agency’s legal position was correct, it is a 

strong indicator that “a reasonable person could think the position is correct, 

and the position has a reasonable basis in law and fact.” Tedford v. Workforce 

Safety and Ins., 2007 ND 142, ¶ 27, 738 N.W.2d 29. Acceptance of an agency’s 

position at earlier stages is some evidence of substantial justification, but it is 

not dispositive and a separate analysis of the reasonableness of the agency’s 

position is required. Id.

[¶11] Here, the district court concluded the Department acted with substantial 

justification in suspending Goff’s driving privileges:

“Neither party here disputes that this case presented a close 

question on an unsettled area of law. More importantly, the 

hearing officer did not believe that the law was clear, given the 

North Dakota Supreme Court’s recent decision in Suelzle v. North 

Dakota Dep’t of Transp., 2020 ND 206, ¶ 14, 949 N.W.2d 862. In 

the end, however, the hearing officer found that Goff’s vehicle was 

in a place where the public had a right of access for vehicular use 

and believed a reasonable basis in law and fact existed to uphold 

the arrest. The Court having been similarly convinced by the

reasonableness of the Department’s position upheld the decision. 

See Tedford, 2007 ND 142, ¶ 28, 738 N.W.2d 29 (explaining that a 

‘strong indicator’ that an agency’s position was substantially 

justified is that it convinced a district court that its legal position 

was correct). Although the Department was ultimately incorrect, 

it nonetheless made good faith and facially reasonable arguments 

based on facts that were supported by case law and, therefore, it 

acted with substantial justification.” 
4

[¶12] In Goff, 2022 ND 186, ¶¶ 11-15, the hearing officer erred in fact and in 

law in deciding to suspend Goff’s driving privileges. “The hearing officer 

misinterpreted this ordinance as prohibiting the public only from parking in 

the parking lot.” Id. at ¶ 12. We held the unambiguous ordinance, along with 

the private property sign, “establishes that the public has no right of access to 

this particular parking lot for vehicular use” without written permission. Id.

at ¶ 15. We also concluded John Goff’s “uncontradicted testimony does not 

support a finding that there is routine use of the parking lot by the public not 

specifically invited to use the property.” Id. at ¶ 14.

[¶13] The district court concluded the Department acted with substantial 

justification because it made reasonable arguments supporting the suspension 

of Goff’s driving privileges. However, the Department did not defend the 

hearing officer’s factual findings or interpretation of Fargo Municipal Code § 

8-1011. Instead, it argued the ordinance may not apply to the private parking

lot because the sign marking the property was not sufficiently displayed. 

[¶14] On the basis of the sign, the ordinance, and John Goff’s testimony, a 

reasonable person could only conclude the public did not have access to the 

parking lot. Because a reasonable person could not find a reasonable basis for 

the Department’s decision, the district court abused its discretion in concluding

the Department acted with substantial justification. Upon a determination the 

Department acted without substantial justification, “the court must award the 

party not an administrative agency reasonable attorney’s fees and costs.”

N.D.C.C. § 28-32-50(1). We reverse the court’s order and remand for a

determination of Goff’s reasonable attorney’s fees and costs.

III

[¶15] We have considered the parties’ remaining arguments and conclude they 

are either without merit or not necessary to our decision. The order is reversed 

and remanded.

[¶16] Jon J. Jensen, C.J. 

Daniel J. Crothers 

Jerod E. Tufte

Douglas A. Bahr
5

McEvers, Justice, dissenting.

[¶17] I respectfully dissent. As noted by the majority, the district court 

concluded the Department acted with substantial justification. Majority, at ¶ 

11. The court noted in its decision that neither party disputed the case

presented a close question on an unsettled area of law, and the application of 

a recent case. I disagree the court abused its discretion in concluding the 

Department acted with substantial justification based on its reliance on 

Tedford v. Workforce Safety & Ins., 2007 ND 142, 738 N.W.2d 29.

[¶18] In Tedford, we noted in determining substantial justification:

The fact that WSI convinced one district judge that its legal 

position was correct is a strong indicator that “a reasonable person 

could think the position is correct, and the position has a 

reasonable basis in law and fact.” Rojas [v. Workforce Safety &

Ins.], 2006 ND 221, ¶ 17, 723 N.W.2d 403. Federal courts 

construing the EAJA have recognized that acceptance of the 

government’s position by another federal judge, even if the position 

is ultimately found to be incorrect, is persuasive evidence that the 

position was substantially justified. See, e.g., Herman v. Schwent,

177 F.3d 1063, 1065 (8th Cir. 1999); Friends of Boundary Waters

Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995); Sierra Club

v. Secretary of Army, 820 F.2d 513, 519 (1st Cir. 1987). The court

in Herman noted that “the Government’s ability to convince federal

judges of the reasonableness of its position, even if the judges’ and

Government’s position is ultimately rejected in a final decision on

the merits, is ‘the most powerful indicator of the reasonableness of

an ultimately rejected position.’” Herman, 177 F.3d at 1065

(quoting Friends of Boundary Waters, 53 F.3d at 885).

2007 ND 142, ¶ 27. The district court completed the necessary analysis and 

found the Department made good faith and facially reasonable arguments that 

were supported by case law before concluding the Department acted with 

substantial justification. I do not agree the court abused its discretion.

[¶19] Lisa Fair McEvers