Achaval-Bianco v. Gustafson

• Decision Date: 02 May 1989
• Docket Number: No. CV 88-5620 JGD.,CV 88-5620 JGD.
• Court: U.S. District Court — Central District of California
• Parties: Cesar Juan ACHAVAL-BIANCO, et al., Plaintiffs, v. Ernest E. GUSTAFSON, Jr., et al., Defendants.

736 F. Supp. 214

Cesar Juan ACHAVAL-BIANCO, et al., Plaintiffs, v. Ernest E. GUSTAFSON, Jr., et al., Defendants.

No. CV 88-5620 JGD.

United States District Court, C.D. California.

May 2, 1989.

Robert L. Reeves, Reeves, Kurrasch & Ramos, Los Angeles, Cal., for plaintiffs.

Gregg L. Cunningham, Asst. U.S. Atty., Los Angeles, Cal., for defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS

DAVIES, District Judge.

Having considered the papers filed by the parties and the oral argument heard on April 17, 1989, the Court hereby GRANTS plaintiff's motion for an award of attorney's fees and costs.

UNDERLYING FACTS

Plaintiffs' complaint for mandamus and injunctive relief was filed on September 19, 1988. Plaintiffs are fourteen aliens who allege that the INS has failed to process their petitions in a timely manner. The complaint seeks the following relief: adjudication of the plaintiffs' petitions; an order requiring the INS to communicate with applicants' attorneys and establish a rational, non-preferential system for tracking and adjudicating cases; and attorney's fees and costs.

The defendants' answer, denying the majority of plaintiffs' allegations and raising affirmative defenses, was filed on November 22, 1988. On January 17, 1989, plaintiffs filed a motion for summary judgment. On February 3, 1989, the parties filed a stipulated dismissal of plaintiffs Teresita de Jesus Butterfield, Carlos Jun Guinto, and Chun Yi Wang. A stipulated dismissal, based on settlement of the entire action, was filed on February 16, 1989.

DISCUSSION

The availability of attorney's fees is governed by the Equal Access to Justice Act ("EAJA") which provides that, in an action against the United States a prevailing party, other than the United States, is entitled to recover attorney's fees "unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).

In Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983), the Supreme Court noted that the determination of prevailing party status is essentially the same in all cases in which Congress has authorized an award of fees to a "prevailing party." Under Hensley, plaintiffs may be considered prevailing parties "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Id. at 433, 103 S.Ct. at 1939. This test was recently reaffirmed in Texas State Teachers Association v. Garland Independent School District, ___ U.S. ___, ___, 109 S.Ct. 1486, 1492-93, 103 L.Ed.2d 866 (1989). In Garland, the Supreme Court held that "the touchstone of the prevailing party inquiry must be the alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Id. at ___, 109 S.Ct. at 1493.

Under the Hensley and Garland standards it is clear that plaintiffs are prevailing parties. They have succeeded on a significant issue: the adjudication of their outstanding immigration petitions. The fact that settlement of the case resulted in no determination of the other relief sought by plaintiffs is unimportant. The plaintiffs achieved at least "some of the benefits" they sought. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Moreover, the nature of the legal relationship between almost all of the plaintiffs and the Immigration and Naturalization Service ("INS") has changed: plaintiffs are no longer aliens with immigration applications pending, they are permanent residents with complete documentation of their status. Therefore, under the Hensley and Garland tests, plaintiffs are prevailing parties.

Defendants' claim that plaintiffs have not shown a causal connection between this litigation and the resolution of their cases is disingenuous. All of the applications had been pending with the INS for substantial periods of time. Definitive action was taken on all of the applications during the months of January through March 1989, in connection with the settlement of this case. Moreover, in the cases of plaintiffs Edita Yeo and Cynthia Salvanta, defendants have admitted that expeditious processing was undertaken because of this suit. Plaintiffs' reply brief, exhibit A. Clearly plaintiffs' complaint and motion for summary judgment filed on January 17, 1989, were the catalyst for the adjudication of their immigration petitions.

As to the determination of whether or not the government's position was substantially justified, the Ninth Circuit has adopted a test of reasonableness. League of Women Voters of California v. F.C.C., 798 F.2d 1255, 1257 (9th Cir.1986). The government's position must have a reasonable basis in both law and fact. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). The "position" includes the underlying action being challenged, and prelitigation and litigation conduct. League of Women Voters, 798 F.2d at 1257.

Although defendants are correct in stating that the INS did not take an identifiable position as to the plaintiffs' claims, the failure to take a position and the willingness to allow the applications to remain in limbo for long periods of time is arguably more egregious than a specific ruling by the INS, which the plaintiffs could have challenged. Although the Court is not insensitive to the difficulties inherent in adjudicating a vast number of immigration applications, defendants have provided no explanation for the lengthy delay in processing the following applications.

1) Cesar Juan Achaval-Bianco's application for a replacement of his permanent resident card was filed on March 23, 1988. On or about March 9, 1989, a duplicate application was approved by the INS. According to the declaration of Rosemary Melville, the Deputy Assistant District Director for Examinations at the Los Angeles District Office of the INS, the average processing time for this type of application is 120 days. Melville declaration, pg. 3. Defendants provide no explanation for why plaintiff's application took almost one year to process.

2) Victoria Santos Alcober applied for adjustment of status on June 27, 1986 and was interviewed on September 18, 1986. A second interview was conducted on November 3, 1986. Defendants provide no explanation for why her case was not referred to the Investigations Branch until July 13, 1988, more than one and a half years after her interview. The petition was ultimately approved on January 31, 1989.

3) Mabini Narvaez Beltran applied for adjustment of status on September 17, 1986, and was interviewed on December 7, 1986. There is no indication that any further action was taken on plaintiff's petition until almost two years later, in October of 1988. Plaintiff's application was granted on February 2, 1989.

4) Consejo A. Gubatina applied for adjustment of status on December 23, 1987. She was not interviewed until almost eight months later, a delay substantially in excess of the defendants' average processing times. Her case was then continued so that a search for her file could be conducted. The first request for the file was made in May of 1988. No further action was taken until January 23, 1989, when a request for expeditious handling was made. The application was approved on January 31, 1989.

5) Yvonee Levaillant applied for replacement of her alien registration card on March 29, 1988. Her application was apparently lost by the INS. On January 31, 1989, the INS arranged for the issuance of a letter so that plaintiff could reenter the United States.

6) Jose and Victor Pinzon applied for adjustment of status on August 5, 1987. They were interviewed on February 16, 1988. The cases were continued for investigation in the Philippines. No further action was taken until approximately one year later, in January 1989, when a telephone...