De Allende v. Baker, No. 89-1360

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtTORRUELLA
Citation891 F.2d 7
PartiesHortensia De ALLENDE, et al., Plaintiffs, Appellees, v. James BAKER, Secretary of State, et al., Defendants, Appellants. . Heard
Decision Date13 September 1989
Docket NumberNo. 89-1360

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.

Page 8

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

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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

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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...

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28 practice notes
  • In re Taylor, No. Civ.A. 00-G-3151-E.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 21 Mayo 2001
    ...Inc. v. United States, 939 F.2d 686, 688 (9th Cir.1990); Trahan v. Brady, 907 F.2d 1215, 1218-20 (D.C.Cir.1990); De Allende v. Baker, 891 F.2d 7, 12-13 (1st Cir.1989). This court agrees with the Fifth Circuit which has held that when the issue of statutory interpretation is one of first imp......
  • Aronov v. Chertoff, No. 07-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 1 Agosto 2008
    ...of the Soviet Union," even though the visa applicant's interpretation of the underlying law ultimately prevailed. Allende v. Baker, 891 F.2d 7, 12, 13 (1st Cir.1989); see also, e.g., Li v. Keisler, 505 F.3d 913, 920 (9th Cir. 2007) ("In the absence of guidance from this court, the......
  • Aronov v. Napolitano, No. 07-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 13 Abril 2009
    ...254 F.3d at 5. The government need only have "a reasonable basis both in law and in fact for its position." De Allende v. Baker, 891 F.2d 7, 12 (1st Cir.1989); see also United States v. Yoffe, 775 F.2d 447, 449 (1st Importantly, for EAJA purposes, the position of a government agen......
  • Tamko Roofing Products v. Ideal Roofing, No. 01-1382.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 7 Marzo 2002
    ...review those for clear error. See Pierce v. Underwood, 487 U.S. 552, 557-58, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); De Allende v. Baker, 891 F.2d 7, 11 (1st Cir.1989); see also People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 370 (4th Cir.2001). As noted in Atlantic F......
  • Request a trial to view additional results
28 cases
  • In re Taylor, No. Civ.A. 00-G-3151-E.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 21 Mayo 2001
    ...Inc. v. United States, 939 F.2d 686, 688 (9th Cir.1990); Trahan v. Brady, 907 F.2d 1215, 1218-20 (D.C.Cir.1990); De Allende v. Baker, 891 F.2d 7, 12-13 (1st Cir.1989). This court agrees with the Fifth Circuit which has held that when the issue of statutory interpretation is one of first imp......
  • Aronov v. Chertoff, No. 07-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 1 Agosto 2008
    ...of the Soviet Union," even though the visa applicant's interpretation of the underlying law ultimately prevailed. Allende v. Baker, 891 F.2d 7, 12, 13 (1st Cir.1989); see also, e.g., Li v. Keisler, 505 F.3d 913, 920 (9th Cir. 2007) ("In the absence of guidance from this court, the......
  • Aronov v. Napolitano, No. 07-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 13 Abril 2009
    ...254 F.3d at 5. The government need only have "a reasonable basis both in law and in fact for its position." De Allende v. Baker, 891 F.2d 7, 12 (1st Cir.1989); see also United States v. Yoffe, 775 F.2d 447, 449 (1st Importantly, for EAJA purposes, the position of a government agen......
  • Tamko Roofing Products v. Ideal Roofing, No. 01-1382.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 7 Marzo 2002
    ...review those for clear error. See Pierce v. Underwood, 487 U.S. 552, 557-58, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); De Allende v. Baker, 891 F.2d 7, 11 (1st Cir.1989); see also People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 370 (4th Cir.2001). As noted in Atlantic F......
  • Request a trial to view additional results

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