De Allende v. Baker, 89-1360

• Decision Date: 13 September 1989
• Docket Number: No. 89-1360,89-1360
• Parties: Hortensia De ALLENDE, et al., Plaintiffs, Appellees, v. James BAKER, Secretary of State, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 7

891 F.2d 7

Hortensia De ALLENDE, et al., Plaintiffs, Appellees, v. James BAKER, Secretary of State, et al., Defendants, Appellants.

No. 89-1360.

United States Court of Appeals, First Circuit.

Heard Sept. 13, 1989.

Decided Dec. 5, 1989.

Gregory C. Sisk, Seattle, Wash., with whom Michael Jay Singer, Attys., Appellate Staff Civ. Div., Dept. of Justice, Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., and Wayne A. Budd, U.S. Atty., Boston, Mass., were on brief for defendants, appellants.

Leonard B. Boudin, with whom Edward Copeland, New York City, and Allan R. Rosenberg, Boston, Mass., were on brief for plaintiffs, appellees.

Before TORRUELLA, SELYA and MAYER, ^* Circuit Judges.

TORRUELLA, Circuit Judge.

This is an appeal from the decision of the United States District Court for the District of Massachusetts awarding attorney's fees under 28 U.S.C. § 2412(d), and from its decision to enhance the hourly rate of plaintiffs' counsel beyond that otherwise permitted by the Act.

The Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), imposes liability upon the government for fees and expenses incurred in litigation, but only if the opposing party prevails within the meaning of the statute, and if the government's position was not substantially justified. ¹ See McDonald v. Sec'y of Health and Human Services, 884 F.2d 1468, 1469 (1st Cir.1989). Thus, to avoid liability under the statute, the government must prove either that the claiming party did not prevail, ² or that the government's position was substantially justified. ³ McDonald at 1475.

At issue on appeal is whether the district court erred in determining that the "position of the United States was substantially justified." The district court determined that the government's position was not substantially justified and awarded attorney's fees to the appellant, Allende. 709 F.Supp. 18. We reverse, finding that although the government ultimately did not prevail, nevertheless its position was substantially justified.

I. BACKGROUND

The underlying action to this appeal arose as a challenge to the denial of a non-immigrant visa to Hortensia de Allende, widow of slain Chilean president, Salvador Allende. At the invitation of several church and scholarly groups, Mrs. Allende sought entry into the United States for an eleven day lecture tour in March, 1983 to speak about matters including the state of human rights in Chile. The State Department denied Mrs. Allende's visa application under the exclusionary provisions of 8 U.S.C. § 1182(a)(27). Under the Department's interpretation, section 27 permitted it to deny entry to any person upon the determination that entry would be prejudicial to the foreign policy interests of the United States.

In 1983, Mrs. Allende was a member and honorary president of the World Peace Council, an organization which the Department of State believed to be used by the Soviet Union as a propaganda tool to advance "the Soviet goal of unilateral Western arms reduction or disarmament." At the time when she applied for a visa, the Undersecretary of State thought that the sensitive nature of ongoing negotiations related to arms limitations and reductions counseled against permitting Mrs. Allende to make speeches in the United States. He reasoned that her speeches would lead to covert manipulation of public opinion by the Soviet Union, which would be contrary to United States' foreign policy interests.

Section 212(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101 et seq., lists the terms and conditions under which aliens may enter the United States as visitors or immigrants. Section 1101(a)(15) places the burden of proof upon the alien to prove that he or she is eligible to receive a visa, and is not subject to exclusion under any provision of the Act. Section 1182(a) lists thirty-three categories of aliens considered ineligible to receive visas, two of which were at issue in this litigation.

The first of these categories, subsection 27, is the exclusion relied upon by the government. Subsection 27 applies to:

Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.

The government, by long practice, had construed this section to permit exclusion of aliens when an alien's entry or presence in the country, rather than only anticipated harmful activities after entry, would be prejudicial to the public interest.

The second category, subsection 28, permits exclusion of aliens who are, or who at any time have been,

members of or affiliated with ... the Communist or any other totalitarian party ... of any foreign state, [or] ... any ... affiliate ... of any such ... party.

8 U.S.C. § 1182(a)(28)(C). 18 U.S.C. § 1182(d)(3)(A) authorizes a waiver of the provisions of subsection 28, although not of subsection 27, under conditions enumerated in the McGovern Amendment, 22 U.S.C. § 2691. The amendment provides standards for the Secretary of State's determination of whether to recommend a waiver of subsection 28. It essentially requires the granting of a waiver, because such a waiver can only be avoided if the Secretary can certify to the Speaker of the House of Representatives that admission of the alien would be contrary to the security interests of the United States. ⁴

The government's position in the action was that even if a waiver of subsection 28 was required by the McGovern Amendment, one of the other provisions, such as subsection 27, could still apply to deny entry to an alien. Allende contended that the McGovern Amendment required a waiver, and that subsection 27 did not authorize her exclusion, because it could apply only where the State Department expected the alien to engage in prejudicial activities after entry. ⁵ She also argued that if the statute did authorize her exclusion, then it violated the First Amendment.

While Allende, on the merits, was pending, an almost indistinguishable action had been filed in the District of Columbia Circuit by similarly situated plaintiffs. The district court there initially granted the government's summary judgment motion, rejecting the plaintiffs' argument that the government did not have authority under subsection 27 to exclude for foreign policy reasons. Abourezk v. Reagan, 592 F.Supp. 880 (D.D.C.1984). A divided panel of the District of Columbia Circuit vacated, and remanded for consideration of whether administrative practice supported the government's construction of subsection 27 as encompassing concerns of prejudice arising from mere entry or presence of an alien as opposed to anticipated prejudicial activity after entry. Abourezk v. Reagan, 785 F.2d 1043 (D.C.Cir.1986). The court further stated that, under subsection 27, an alien can be excluded only for reasons "independent of," and not merely arising from, membership in, or affiliation with, a proscribed organization. Id. at 1058. The Supreme Court affirmed on an equally divided vote, without opinion. Reagan v. Abourezk, 484 U.S. 1, 108 S.Ct. 252, 98 L.Ed.2d 1 (1987). On remand, the district court granted summary judgment to plaintiffs, and the case is currently pending on appeal.

After the District of Columbia Circuit decision, the Allende district court held that the government may exclude aliens under subsection 27 for foreign policy reasons only if those reasons are "independent of" and not merely "in addition to" the alien's affiliation with a communist organization. The court, in so holding, followed the reasoning of Abourezk v. Reagan, 785 F.2d 1043 (D.C.Cir.1986), aff'd by an equally divided court, 484 U.S. 1, 108 S.Ct. 252, 98 L.Ed.2d 1 (1987). The district court concluded that the government failed to establish that the reason for excluding Mrs. Allende was "separate and independent of her membership in the World Peace Council and the Women's International Democratic Federation."

After the Supreme Court's decision in Abourezk, a divided panel of this court affirmed the district court's decision for Allende, but on different grounds from those relied upon in Abourezk. This court held only that an alien's mere entry or presence in the country cannot be an "activity" prejudicial to the public interest within the meaning of subsection 27, and declined to reach the merits of the rule of independence. Allende v. Shultz, 845 F.2d at 1120, n. 17. The court concluded that the government had excluded Allende on the basis of her proposed activities, and that § 901 of the Foreign Relations Act, P.L. No. 100-204 § 901, prohibited the denial of a visa on speech related grounds. Id. at 1121.

After the decision, plaintiff moved for an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), contending that the government's position had not been substantially justified. The district court granted the motion, concluding that subsection 27 clearly permits denial of visas only where the government anticipates prejudicial activity after entry. Thus, the district court held that the government's position was not substantially justified. Any other interpretation, according to the district court, would render the McGovern Amendment, limiting application of subsection 28, nugatory. Cost of living increases were granted to three attorneys, and the hourly rates of two other lawyers were raised well above the statutory cap. It is from this decision that the government now appeals.

II. STANDARD OF REVIEW

The scope of review of decisions made by district courts depends upon the nature of what is being reviewed. This court will review questions of law de novo, questions of fact for clear error, and matters committed to the district court's discretion only for abuse of that discretion. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (198...