Aboushaban v. Mueller

• Decision Date: 23 February 2007
• Docket Number: No. C 06-1280 BZ.,C 06-1280 BZ.
• Citation: 475 F.Supp.2d 943
• Parties: Mohamed Nagib Hamada ABOUSHABAN, Plaintiff(s), v. Robert S. MUELLER, et al., Defendant(s).
• Court: U.S. District Court — Northern District of California

475 F.Supp.2d 943

Mohamed Nagib Hamada ABOUSHABAN, Plaintiff(s), v. Robert S. MUELLER, et al., Defendant(s).

No. C 06-1280 BZ.

United States District Court, N.D. California.

February 23, 2007.

COPYRIGHT MATERIAL OMITTED

Kip Evan Steinberg, Law Offices of Kip Evan Steinberg, San Rafael, CA, fro Petitioner.

Edward A. Olsen, United States Attorney's Office, San Francisco, CA, for Respondents.

ORDER AWARDING PLAINTIFF FEES

ZIMMERMAN, United States Magistrate Judge.

On February 22, 2006, plaintiff filed a complaint seeking a writ of mandamus directing the United States Citizenship and Immigration Services (USCIS) and the Federal Bureau of Investigation (FBI) to adjudicate plaintiffs pending I-485 application for adjustment of status to lawful permanent resident.¹ See Aboushaban v. Mueller, 2006 WL 3041086, at *1 (N.D.Cal.). A political asylee since January 22, 1997, plaintiff alleged he filed his application on June 17, 1998.

On October 24, 2006, I granted plaintiffs motion for summary judgment, ordered the USCIS to adjudicate plaintiffs application forthwith, and retained jurisdiction to ensure that my Order was carried out. I also granted the FBI summary judgment because it had finished its limited role in the processing of plaintiffs application. Id. at *2-3. On November 6, 2006, the USCIS reported that it had approved plaintiffs application on October 27. See Civil Docket No. 29. Following agreement by the parties that no further relief was sought, final judgment was entered on February 21, 2007.²

Plaintiff has moved under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), for an award of $46,616.06 in attorney's fees and costs incurred in these proceedings.

To obtain fees under the EAJA, a party must demonstrate: 1) that he attained "prevailing party" status in the underlying action; 2) that the government's position was not "substantially justified"; and 3) that no "special circumstances [make] an award unjust."³ See In re Application of Mgndichian, 312 F.Supp.2d 1250, 1255 (C.D.Cal.2003) (citing I.N.S. v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990)).

To prevail, the party must "succeed on any significant issue in litigation which achieves some of the benefit the pat[y] sought in bringing suit." U.S. v. Real Property Known as 22249 Dolorosa Street, Woodland Hills, Cal., 190 F.3d 977, 981 (9th Cir.1999) (internal quotation marks omitted)). The success must be "gained by judgment or consent decree [affecting] a material alteration of the legal relationship of the parties." See Perez-Arellano v. Smith, 279 F.3d 791, 793-94 (9th Cir. 2002) (internal quotation omitted) (applying Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), which rejected the "catalyst theory," under which a party gained prevailing status if he achieved a desired result through voluntary changes brought on by the party's lawsuit, to EAJA applications).

Defendants argue that plaintiff did not prevail because the USCIS voluntarily agreed to adjudicate plaintiffs application once he submitted a replacement Supplemental Form (Documentation of Immunization) to the Medical Examination Form 1-693 (hereinafter "Supplemental Form"). At that point, defendants assert, plaintiffs claim was moot. Thus, this Court's Order was unnecessary and could not have conveyed prevailing party status to plaintiff. I disagree.

First, my ruling constitutes a binding judgment that altered the legal relationship between the parties in exactly the manner requested by plaintiff. Plaintiff sought and received an order requiring defendants to adjudicate his application in a timely fashion. Plaintiff could have moved to enforce my Order if defendants had failed to act. An order of this kind serves to convey prevailing status. See Carbonell v. I.N.S., 429 F.3d 894, 900-01 (9th Cir.2005) (party who obtained court order incorporating stipulation staying deportation prevailed); Rueda-Menicucci, 132 F.3d 493, 495 (9th Cir.1997) (order remanding asylum application for further consideration conferred prevailing status); Salem v. I.N.S., 122 F.Supp.2d 980, 983-84 (C.D.Ill.2000) (same); Bates v. Nicholson, 20 Vet.App. 185, 188-90 (2006) (issuance of writ of mandamus compelling administrative review conferred prevailing status); see also Dabone v. Thornburgh, 734 F.Supp. 195, 198 (E.D.Pa.1990) (party prevailed in mandamus action resulting in reopening of exclusion proceedings); Jefrey v. I.N.S., 710 F.Supp. 486, 488 (S.D.N.Y. 1989) (party prevailed in mandamus action resulting in swift adjudication of application); Achaval-Bianco v. Gustafson, 736 F.Supp. 214, 215 (C.D.Cal.1989) (same).

Second, the defendants' eleventh-hour promise to adjudicate plaintiffs application did not serve to negate the necessity of my Order or somehow remove the judicial imprimatur thereof. Defendants did inform plaintiff on September 18, 2006, that his application would be processed upon submission of a completed Supplemental Form.⁴ See Defs.' Sur-Reply to Pl's Mot. for Att'y Fees, Decl. of Mark Johnson ¶ 3. By that time, however, plaintiff had waited eight years for his application to be processed. Inasmuch as plaintiff had already submitted one such completed form, and in light of defendants' extended delay, it is not surprising that plaintiff wanted to press forward. Since the motion culminated in a hearing and an order in plaintiffs favor, for purposes of EAJA, plaintiff is a prevailing party in the underlying proceeding.

Once the movant demonstrates prevailing party status, the government bears the burden of proving that its positions were "substantially justified." See Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.2005). Whether a position is substantially justified depends on whether it has a "`reasonable basis in both law and fact.'" Abela v. Gustafson, 888 F.2d 1258, 1264 (9th Cir.1989) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). "`Substantial justification in this context means justification to a degree that could satisfy a reasonable person.'" Thangaraja, 428 F.3d at 874 (quoting Al-Harbi v. I.N.S., 284 F.3d 1080, 1085 (9th Cir.2002)). A position can be justified even if it is not correct. See In re Application of Mgndichian, 312 F.Supp.2d at 1261 (quotation marks and citations omitted). In making this determination, however, the court must examine "both the government's litigation position and the action or failure to act by the agency upon which the civil action is based.'" Abela v. Gustafson, 888 F.2d at 1264 (citing 28 U.S.C. § 2412(d)(2)(D)); see also Thangaraja, 428 F.3d at 873.

I find that several aspects of defendants' pre-litigation conduct lacked substantial justification. In attempting to explain the years of delay experienced by plaintiff, defendants rely primarily on the fact that the law prior to May 11, 2005 forbade the Attorney General from making more than 10,000 permanent resident visas available in a given fiscal year.⁵ See 8 U.S.C. § 1159(b) (2005). They claim that the number of asylees seeking permanent status ballooned in the years in question, leading to a backlog of over 150,000 by September 1, 2003, and of over 160,000 by March 1, 2004. See Keller Decl. ¶¶ 4, 2. Because the asylum-based adjustment backlog was considered in date-received order according to a list kept by the USCIS, see 8 C.F.R. § 209.2(a)(1), defendants assert that plaintiffs application was processed in due time.

Accepting defendants' claims about the backlog, it is still not clear why plaintiffs application, filed in mid-1998, remained pending for as long as it did. For example, defendants do not discuss how extensive the backlog was in 1998, 1999, 2000, 2001, or 2002. Nor do they explain where plaintiffs application fit into the USCIS's processing queue. Given that applications were to be processed in the order received, knowing that by 2003 there was a large backlog does not explain why plaintiffs application was not processed until 2006. Moreover, just because the Attorney General could make no more than 10,000 visa number available in a given fiscal year does not mean that the USCIS could not process more than 10,000 applications in a year. The restriction on processing seems to have been an internal decision. Keller Decl. ¶ 3. Finally, the continued delay after the visa number restraint was lifted May 11, 2005, is never explained.

A more fundamental problem for defendants is that it appears that plaintiffs application was delayed by defendants' practice of "hiring" the FBI to perform a background or name check on applicants. See Pl.'s Reply to Defs.' Opp. to EAJA Mot., Exh. 7 (Annual Report to Congress, Citizenship and Immigration Services Ombudsman, June 2006), at 24 ("the name checks are a fee-for-service that the FBI provides the USCIS at its request."). The USCIS requested an FBI name check on December 3, 2002. Keller Decl. ¶ 6. Over the ensuing four years, processing of plaintiff's application was largely confined to transferring it from one office to another.⁶ It was not until the FBI finished its name check in April 2006 — two months after plaintiff filed the underlying action — that the USCIS took decisive action to finally adjudicate the application. See Keller Decl. ¶¶ 9-10; Johnson Decl. ¶ 2. Despite the clear connection between the processing of the name check and USCIS's final adjudication, defendants do not explain why the name check was so delayed.⁷

Defendants also seek to blame plaintiff for the delay. Defendants claim that plaintiff filed a deficient Supplemental Form with his application, precluding processing of the application. And while defendants admit that they subsequently misfiled a later-filed corrected form, they opine that plaintiff compounded the problem by failing to inform them in September 2006 that a more recent and complete Supplemental Form existed.

Plaintiff's...