De Allende v. Shultz

Citation709 F. Supp. 18
Decision Date13 March 1989
Docket NumberCiv. A. No. 83-3984-C.
CourtU.S. District Court — District of Massachusetts
PartiesHortensia de ALLENDE, et al., Plaintiffs, v. George P. SHULTZ, Secretary of State, et al., Defendants.

Rabinowitz, Boudin, Standard Krinsky & Lieberman, P.C., Leonard B. Boudin, Edward Copeland, New York City, Allan R. Rosenberg, Putnam, Bell & Russell, Boston, Mass., for plaintiffs.

Evan Slavitt, Asst. U.S. Atty., Boston, Mass., Robert L. Bombaugh, Thomas W. Hussey, David V. Bernal, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

CAFFREY, Senior District Judge.

The action currently before the Court, concerning the plaintiffs' timely application for attorneys' fees, has its roots in litigation that began in 1983, when United States Under Secretary of State Lawrence Eagleburger denied a nonimmigrant tourist visa requested by the plaintiff, Hortensia de Allende, widow of slain Chilean President Salvatore Allende. Mrs. Allende applied for the visa after receiving several invitations to address university and community groups in the United States. The Under Secretary of State denied the visa based on section 212(a)(27) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1182(a)(27).

The American plaintiffs, with Mrs. Allende serving as "symbolic plaintiff," filed suit challenging this decision. In a series of decisions over the course of five years, plaintiffs repeatedly prevailed against the defendants. See Allende v. Shultz, 605 F.Supp. 1220 (D.Mass.1985) (defendants' motion for summary judgment denied); Allende v. Shultz, 624 F.Supp. 1063 (D.Mass. 1985) (defendants' motion to dismiss for mootness denied); Allende v. Shultz, Civ. No. 89-3984, 1987 WL 9764 (D.Mass. Mar. 31, 1987) (1987 U.S.Dist. Lexis 2798), aff'd, 845 F.2d 1111 (1st Cir.1988) (defendants' renewed motion for summary judgment denied; plaintiffs' cross motion for summary judgment allowed).

Plaintiffs now seek attorneys' fees and costs against the United States totalling over $150,000 pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). The government opposes the application.

As we consider the plaintiffs' application for fees, we must steer a difficult middle course between the Supreme Court's admonition that a "request for attorney's fees should not result in a second major litigation," Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983) (quoted in Pierce v. Underwood, ___ U.S. ___, 108 S.Ct. 2541, 2549, 101 L.Ed.2d 490 (1988), and Grendel's Den v. Larkin, 749 F.2d 945, 951 (1st Cir.1984)), and the statutory instruction that our decision concerning fee awards under the EAJA "shall be determined on the basis of the record ... which is made in the civil action for which fees and other expenses are sought." 28 U.S.C. § 2412(d)(1)(B). As briefly as possible, therefore, we summarize the law, the record of the case at bar, and our decision that the award of attorneys' fees is appropriate in this case.

1. The Equal Access to Justice Act Standard: "Substantial Justification"

The United States Congress enacted the EAJA in 1980 in order to "encourage relatively impecunious private parties to challenge abusive or unreasonable governmental behavior by relieving such parties of the fear of incurring large litigation expenses." Sierra Club v. Secretary of the Army, 820 F.2d 513, 516 (1st Cir.1987) (quoting United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1315-16 (8th Cir.1986)). Congress intended "to ensure that private parties will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in securing the vindication of their rights." Miles v. Bowen, 632 F.Supp. 282, 283 (M.D. Ala.1986) (quoting H.R.Rep. No. 120, 99th Cong., 1st Sess. 4, reprinted in 1985 U.S. Code Cong. & Admin.News 132, 132-33). The EAJA's purpose is to shift litigation expenses to the United States when the prevailing party has contested "unreasonable government action," Meyers v. Heckler, 625 F.Supp. 228, 231 (S.D.Ohio 1985), and to "permit fee awards against the United States to the same extent they may be awarded against a private party at common law." Sprague v. Heckler, 619 F.Supp. 1289, 1295 (D.Me.1985).

It goes almost without saying that the EAJA modifies the American Rule that each party in litigation bears its own costs, see Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), and creates a limited waiver of the common law doctrine of sovereign immunity. Lane v. United States, 727 F.2d 18, 20-21 (1st Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 57 (1984). It is our duty, therefore, to construe the statutory language narrowly. Id.

The relevant portion of the EAJA provides that:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(a)(1)(A). The threshold statutory considerations are therefore three: a) whether the plaintiffs qualify as "prevailing parties"; b) whether the agency action here at issue — the State Department's decision to deny a visa to Mrs. Allende in 1983 — was "substantially justified"; and c) whether "special circumstances" exist in this case that would make an award of attorneys' fees "unjust." We consider each requirement in turn.

A. "The Prevailing Party"

There can be no serious argument that the plaintiffs prevailed at every step of this litigation. In interpreting similar language in 42 U.S.C. § 1988, the Supreme Court has explained that a "typical formulation is that `plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). Although it is true, as defendants argue, that a litigation scorecard would reveal that plaintiffs did not win every point they advanced in this protracted litigation, a scorecard is not the proper method for determining whether a party has prevailed under the EAJA. Instead, "a court should look `to the substance of the litigation' to determine whether an applicant has substantially prevailed in its position." Chapoose v. Hodel, 831 F.2d 931, 936 (10th Cir.1987) (quoting Devine v. Sutermeister, 733 F.2d 892, 898 (Fed.Cir.1984)). This examination should be a "pragmatic factual inquiry" into the record. Id. (quoting Clark v. Los Angeles, 803 F.2d 987, 989 (9th Cir.1986)). As the Devine court so aptly explained, "in effect, substance should prevail over form." 733 F.2d at 898.

In substance, plaintiffs prevailed. While the government argued to the contrary, we first found standing, jurisdiction, no "facially legitimate and bona fide" reason for excluding Mrs. Allende, no factual basis for the government's position that Mrs. Allende's presence in the United States "would have been prejudicial to the conduct of the foreign affairs of the United States," and denied the government's motion to admit classified documents for in camera ex parte inspection. Allende v. Shultz, 605 F.Supp. 1220 (D.Mass.1985). We then found that the government's decision to issue Mrs. Allende a single entry visa in December 1985 did not render the case moot, as the government argued. Allende v. Shultz, 624 F.Supp. 1063 (D.Mass. 1985). And finally, we granted summary judgment for the plaintiffs, a decision affirmed by the First Circuit Court of Appeals. Allende v. Shultz, Civ. No. 83-3984 (D.Mass. Mar. 31, 1987), aff'd, 845 F.2d 1111 (1st Cir.1988). Our pragmatic factual inquiry into the record finds ample support for our conclusion that plaintiffs qualify as prevailing parties within the meaning of section 2412(d)(1)(A) of the EAJA.

B. "Substantially Justified"

The more difficult inquiry focuses on whether the government's position — its decision to deny Mrs. Allende's visa application on the basis of section 212(a)(27) of the Immigration and Nationality Act — was "substantially justified." Not surprisingly, this term has generated a great deal of judicial attention since 1980. More surprisingly, the courts of appeal have spoken with an almost unanimous voice in defining the term:

All of the circuits, except the District of Columbia Circuit, agree that the test for determining whether the government's position was "substantially justified" is one of reasonableness; was the government's position reasonable both in law and fact.

United States v. Yoffe, 775 F.2d 447, 449 (1st Cir.1985) (and cases cited therein). The Supreme Court explained the term in this way:

"Substantially justified" is the test the statute prescribes, and the issue should be framed in those terms ... We are of the view, therefore, that as between the two most commonly used connotations of the word "substantially," the one most naturally conveyed by the phrase before us here is not "justified to a high degree," but rather "justified in substance or in the main" — that is, justified to a degree that could satisfy a reasonable person.

Pierce v. Underwood, 108 S.Ct. at 2549-50. The government bears the burden of proof in this matter, and this burden is described as follows:

The government has the burden of proving substantial justification by a preponderance of the evidence ... In order to carry the devoir of persuasion, the government must show that it had a reasonable basis for the facts alleged, that it had a reasonable basis in law for the theories it
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3 cases
  • De Allende v. Baker, 89-1360
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 13, 1989
    ...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 I. BACKGROUND The u......
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  • In re Robidoux
    • United States
    • U.S. District Court — District of Massachusetts
    • July 30, 1990
    ...fees in excess of the standard $75 per hour rate under the Equal Access to Justice Act. In a civil rights case, de Allende v. Shultz, 709 F.Supp. 18, 25 (D.Mass.1989), Judge Caffrey awarded attorney's fees of $91 per hour, $88 per hour, and $85 per hour. In addition, Judge Caffrey awarded $......

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