Asylumworks v. Mayorkas
| Decision Date | 31 March 2023 |
| Docket Number | Civil Action 20-cv-3815 (BAH) |
| Parties | ASYLUMWORKS, et al., Plaintiffs, v. ALEJANDRO N. MAYORKAS, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
On February 7, 2022, this Court held that two rules concerning employment authorization applications of asylum seekers promulgated by the U.S. Department of Homeland Security (“DHS”) were void ab initio having been ratified by an improperly appointed Secretary of Homeland Security. See Asylumworks v. Mayorkas, 590 F.Supp.3d 11 (D.D.C. 2022). As a result, the two DHS rules were vacated and set aside, as requested in a motion for partial summary judgment filed by plaintiffs, including three nonprofit organizations and eighteen individual noncitizen asylum seekers. More than five months later, plaintiffs asserted that defendants had yet to complete full vacatur of those rules because no updates had been made to the online version of the Code of Federal Regulations, known as the eCFR, nor to the relevant application form and accompanying instructions. Plaintiffs also raised that vacatur of the rules and reversion to a prior DHS requirement to process applications within 30 days of their filing caused a significant backlog in application processing exceeding that deadline. Plaintiffs thus requested that this Court intervene in some manner to enforce the February 2022 Order. See Pls.' Mot to Enforce J. or for Additional Injunctive Relief ( ), ECF No. 47. Days later, plaintiffs filed a second motion seeking an award of $762,583.60 in attorneys' fees and expenses paid for by defendants pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C § 2412. See Pls.' Mot. for Award of Attorneys' Fees & Expenses Pursuant to the Equal Access to Justice Act ( ), ECF No. 48.
In the months since plaintiffs submitted both motions, defendants progressed in largely completing plaintiffs' requested relief. The agency revised the form application and instructions on September 6, 2022, see Defs.' Notice of Publication of Revised Form I-765 and Instructions ( ) at 1, ECF No 56; it published a final rule implementing the rules' vacatur on September 22, 2022, see Defs.' Notice ( ) at 1, ECF No. 58 (); and it updated the eCFR accordingly on September 26, 2022, see id. Defendants have yet to resolve the backlog of pending applications.
Separately, defendants agree with plaintiffs that the agency must pay the latter's attorneys' fees and costs, see Defs.' Resp. in Opp'n to Pls.' Mots. to Enforce J. or for Injunctive Relief & for Attorneys' Fees ( ) at 1, 9, 16, ECF No. 54, but raise disputed issues over the hourly payment rate owed and the number of hours worked for which plaintiffs may recover, resulting in an approximate difference of $650,000 between plaintiffs' requested fees and defendants' counteroffer.
For the reasons explained below, plaintiffs' motion to enforce judgment or for additional injunctive relief is denied, and plaintiffs' motion for award of attorneys' fees and expenses under EAJA is granted in part and denied in part.
The factual and procedural background regarding the two vacated rules is set out in the prior opinion granting plaintiffs' motion for summary judgment, see Asylumworks, 590 F.Supp.3d at 13-19, and need not be repeated here. Described below is the factual background and procedural history relevant to the instant motions.
This dispute concerns two DHS rules promulgated in 2020 concerning asylum seekers' access to employment authorization documents. The first, Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applicants (“Timeline Repeal Rule”), 85 Fed.Reg. 37,502, et seq., (June 22, 2020), “eliminated an earlier regulation that imposed a thirty-day time limit for the United States Citizenship and Immigration Services [(“USCIS”)] . . . to process initial EAD applications and became effective August 21, 2020,” Asylumworks, 590 F.Supp. at 17. The second, Asylum Application, Interview, and Employment Authorization for Applicants (“EAD Bar Rule”), 85 Fed.Reg. 38,532, et seq., (June 26, 2020), “modified regulations governing asylum applicants' eligibility for employment authorization and became effective on August 25, 2020,” Asylumworks, 590 F.Supp. at 17.
In their initial complaint filed on December 23, 2020, and in their amended complaint filed on March 23, 2021, plaintiffs alleged that those rules were arbitrary and capricious and contrary to the Immigration and Nationality Act (“INA”) in violation of the Administrative Procedure Act (“APA”) because then-Acting Secretary of Homeland Security Chad Wolf “was not validly serving as Acting DHS Secretary under the Homeland Security Act (“HSA”), Federal Vacancies Reform Act (“FVRA”), and the Appointments Clause when he signed the rules.” Id. at 18. The parties then cross-moved for summary judgment on this claim. Id. at 18-19.
On February 7, 2022, plaintiffs' partial motion for summary judgment was granted and defendants' cross-motion was denied following a finding that the plain text of the FVRA and the lawful order of succession authorized under the HSA required certain procedures that defendants failed to follow in allowing Wolf to become Acting Secretary and thus voided ab initio his ratification of the Timeline Repeal Rule and the EAD Bar Rule. Id. at 19-20. The Memorandum Opinion's corresponding Order stated that “judgment is entered in favor of the plaintiffs” and that both the Timeline Repeal Rule and the EAD Bar Rule “are hereby VACATED and SET ASIDE.” Order (“February 2022 Order”), Asylumworks v. Mayorkas, No. 20-cv-3815 (BAH), ECF No. 41 (emphasis in original).[1]
Approximately five months after issuance of the Order, on July 22, 2022, plaintiffs filed the instant Motion to Enforce Judgment or for Additional Injunctive Relief, ECF No. 47, see Pls.' Mot. to Enforce, arguing that defendants had yet to comply with the February 2022 Order. Specifically, plaintiffs identified three actions, which they posit are necessary to effectuate full vacatur of the rules, that defendants had not taken to: (1) “update the online Code of Federal Regulations website known as eCFR;” (2) “amend the Form I-765 Application for Employment Authorization (‘Form') and the accompanying Instructions For Application of Employment Authorization (‘Form Instructions') that appear on the United States Citizenship and Immigration Services (‘USCIS') website;” and (3) “process Employment Authorization Document (‘EAD') applications according to the previously existing regulations, which required, among other things, adjudication within thirty days.” Id. at 1-2. Plaintiffs thus sought an order enforcing the February 2022 vacatur of the rules by directing defendants to perform the three aforementioned actions by a specific date-updating the eCFR, Form, and Form Instructions “immediately” and processing all pending applications “within thirty days of their filing date or within fifteen days of this Court's order for any applications that have been pending for longer than thirty days.” Id. at 3. In the alternative, plaintiffs argue that, if this Court deems them incapable of obtaining relief through a motion to enforce, a permanent injunction is “appropriate and necessary.” Id. at 20.
Plaintiffs subsequently filed, on August 1, 2022, a Motion for Award of Attorneys' Fees and Expenses Pursuant to EAJA, ECF No. 48, see Pls.' Mot. for Fees, arguing that, as the prevailing party in the prior dispute, plaintiffs were owed an award of attorneys' fees and expenses paid for by defendants, id. at 1-2. Plaintiffs submitted over 80 pages of declarations and exhibits of timesheets describing each hour billed to this matter to support their request for $762,583.60 in fees. Id. at 2.[2]
As the parties briefed both motions and during the pendency of this case, defendants took specific actions that plaintiffs requested. First, on September 7, 2022, defendants notified the Court that, the day prior, DHS published the revised Form and Form Instructions on its website. See Defs.' Sept. 6, 2022 Notice. Then, on September 27, 2022, defendants further notified the Court that, on September 22, 2022, USCIS “published a final rule implementing this Court's vacatur order,” Defs.' Sept. 27, 2022 Notice at 1; see Asylum Application, and Employment Authorization for Applicants; Implementation of Vacatur, 87 Fed.Reg 57,795 (Sept. 22, 2022), and on September 26, 2022, the eCFR “was updated to reflect the final rule's publication,” Defs.' Sept. 27, 2022 Notice at 1. Finally, on September 28, 2022, defendants provided a third notice informing the Court that a district court in the Western District of Washington, in a case titled Rosario v. USCIS, No. 15-cv-813 (JLR), denied a motion to hold USCIS in civil contempt for failing to adjudicate asylum seekers' applications for employment authorization within 30 days of their filing. See Defs.' Notice of Supplemental Authority ( ) at 1, ECF No. 59. The plaintiffs in the Rosario case-who are different from the plaintiffs in the case before this Court-alleged that, since this Court's vacatur of the two DHS rules, USCIS had failed to comply with a permanent injunction issued by the Rosario court enjoining USCIS “from further failing to adhere” to the 30-day deadline to adjudicate asylum seekers' applications for employment authorization and thus...
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