Caplash v. Nielsen

• Decision Date: 23 March 2018
• Docket Number: 6:15–CV–06771 EAW
• Citation: 294 F.Supp.3d 123
• Parties: Jolly Manoj CAPLASH, Plaintiff, v. Kirstjen NIELSEN, Secretary, Department of Homeland Security, L. Francis Cissna, Director, U.S. Citizenship & Immigration Service, Mark Hazuda, Director, USCIS Nebraska Service Center, Jefferson Sessions, Attorney General of the United States, Defendants.
• Court: U.S. District Court — Western District of New York

294 F.Supp.3d 123

Jolly Manoj CAPLASH, Plaintiff,

v.Kirstjen NIELSEN, Secretary, Department of Homeland Security, L. Francis Cissna, Director, U.S. Citizenship & Immigration Service, Mark Hazuda, Director, USCIS Nebraska Service Center, Jefferson Sessions, Attorney General of the United States,¹ Defendants.

6:15–CV–06771 EAW

United States District Court, W.D. New York.

Signed March 23, 2018

Jeffrey A. Wadsworth, Harter Secrest & Emery LLP, Rochester, NY, for Plaintiff.

Genevieve M. Kelly, Katherine J. Shinners, U.S. Department of Justice, Washington, DC, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

BACKGROUND

Plaintiff Jolly Manoj Caplash ("Plaintiff") commenced this litigation on December 29, 2015, and requested that this Court set aside the denial and subsequent refusals to reopen Plaintiff's Form I–130 family-based immigration petition (the "Petition") filed on behalf of his brother with the United States Citizenship and Immigration Service (the "USCIS"). (Dkt. I).² Plaintiff brought this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 – 559, 701 – 706, against the Secretary of the Department of Homeland Security, the Director of the USCIS, the Director of the USCIS Nebraska Service Center, and the Attorney General of the United States (collectively, "the Government"). (Id. at ¶¶ 1, 6–9). On March 7, 2016, the Government answered the Complaint. (Dkt. 7). On June 9, 2016, Plaintiff moved for summary judgment. (Dkt. 18). On July 7, 2016, the Government moved for summary judgment (Dkt. 21), and Plaintiff and the Government each responded on July 21, 2016, and July 28, 2016, respectively (Dkt. 22; Dkt. 23). On January 18, 2017, the Court denied the Government's motion, and granted Plaintiff's motion on due process grounds, but otherwise declined to find the USCIS's review of Plaintiff's administrative filings arbitrary and capricious. (Dkt. 29). The Court set aside the USCIS's denial of Plaintiff's Form I–130 petition and remanded the action to the agency, requiring, among other things, that the USCIS re-adjudicate the Petition. (See id. at 31).

On April 10, 2017, Plaintiff filed an application pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA"), seeking an award of attorney's fees. (Dkt. 31). The Government opposes the motion. (Dkt. 33). Oral argument was held before the undersigned on June 12, 2017, at which time the Court reserved decision, and directed the parties to file supplemental papers addressing Plaintiff's request for a supplemental fee award for the hours accrued in litigating the initial EAJA application. (Dkt. 36; Dkt. 37; Dkt. 39 at 34–36). On July 7, 2017, Plaintiff filed a declaration in support of his supplemental fee application (Dkt. 38), and the Government responded in opposition on July 21, 2017 (Dkt. 40).

For the following reasons, Plaintiff's motion is granted in part and denied in part.

DISCUSSION

I. Plaintiff is Entitled to an Attorney's Fee Award Pursuant to the EAJA

A. Legal Principles

The [EAJA] provides that "a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."

Vincent v. Comm'r of Soc. Sec. , 651 F.3d 299, 302–03 (2d Cir. 2011) (quoting 28 U.S.C. § 2412(d)(1)(A) ). "Thus, under the EAJA, ‘eligibility for a fee award in any civil action requires: (1) that the claimant be a "prevailing party"; (2) that the Government's positions was not "substantially justified"; [and] (3) that no "special circumstances make an award unjust.’ " " Gomez–Beleno v. Holder , 644 F.3d 139, 144 (2d Cir. 2011) (quoting Comm'r, INS v. Jean , 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) ).

B. Plaintiff's Status as a "Prevailing Party"

"[S]tatus as a prevailing party is conferred whenever there is a ‘court ordered chang[e] [in] the legal relationship between [the plaintiff] and the defendant’ or a ‘material alteration of the legal relationship of the parties.’ " Vacchio v. Ashcroft , 404 F.3d 663, 674 (2d Cir. 2005) (quoting Pres. Coal. of Erie Cty. v. Fed. Transit Admin. , 356 F.3d 444, 451 (2d Cir. 2004) ). It is well-established that a litigant who has received a district court's decision vacating the decision of the Social Security Commissioner and remanding for further consideration pursuant to sentence four of Section 405(g) of the Social Security Act is a "prevailing party" for purposes of the EAJA. See Shalala v. Schaefer , 509 U.S. 292, 300–02, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) (rejecting the argument that the status of a "prevailing party" may only be conferred once the remanded administrative proceedings are complete, and stating that "[n]o holding of this Court has ever denied prevailing-party status (under § 2412(d)(1)(B) ) to a plaintiff who won a remand order pursuant to sentence four of § 405(g)"); Powers v. Colvin , No. 14-CV-599-JTC, 2016 WL 1165308, at *7 n.5 (W.D.N.Y. Mar. 25, 2016) ("It is noted that a plaintiff who wins remand of a Social Security appeal pursuant to sentence four of 42 U.S.C. § 405(g) is a ‘prevailing party’ for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412(d)...."); Rugless v. Comm'r of Soc. Sec. , No. 6:11-CV-6624 (MAT), 2014 WL 2648772, at *2 (W.D.N.Y. June 13, 2014) ("Plaintiff argues that he is a ‘prevailing party’ because the Second Circuit remanded the case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). The Court agrees." (citations omitted) ).

The Third, Seventh, and Ninth Circuits have all concluded that "a remand to the [Board of Immigration Appeals] in an immigration case is essentially the same as a ‘sentence-four’ remand in a Social Security case" for purposes of conferring "prevailing party" status. Johnson v. Gonzales , 416 F.3d 205, 209 (3d Cir. 2005) ; see Muhur v. Ashcroft , 382 F.3d 653, 655 (7th Cir. 2004) (holding that the court "cannot see any difference between" the reversal of an asylum application and remand "back to the immigration service for further proceedings," and the Social Security remand at issue in Schaefer ); Rueda–Menicucci v. I.N.S. , 132 F.3d 493, 495 (9th Cir. 1997) ("[W]e can perceive no difference between a ‘sentence four’ remand under § 405(g) and a remand to the [Board of Immigration Appeals] for further proceedings." (footnote omitted) ). The Second Circuit, citing Johnson with favor, has also confirmed "that EAJA awards may be given—subject, of course, to the conditions set forth in the statute—in connection with successful petitions for review of decisions of the [Board of Immigration Appeals]." Gomez–Beleno , 644 F.3d at 144–45 (granting the EAJA award where the Second Circuit had previously vacated the underlying immigration decision and remanded for further consideration).

Here, the Government's submissions do not dispute that the Court's January 18, 2017, Decision and Order, which set aside the USCIS's denial of the Petition and remanded to the agency for further consideration, amounted to a "court ordered chang[e] [in] the legal relationship between [Plaintiff] and the [Government] or a material alteration of the legal relationship of the parties." Vacchio , 404 F.3d at 674 (quotation marks and citation omitted); see, e.g., Gomez–Beleno , 644 F.3d at 144–45. Accordingly, the Court easily concludes that Plaintiff is a "prevailing party" for purposes of the EAJA.

C. The Government's Position Was Not "Substantially Justified"

The Government "bears the burden of showing that [its] position was ‘substantially justified,’ which the Supreme Court has construed to mean ‘justified to a degree that could satisfy a reasonable person.’ " Ericksson v. Comm'r of Soc. Sec. , 557 F.3d 79, 81 (2d Cir. 2009) (quoting Pierce v. Underwood , 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ). "[I]t is well-established that the Government's prelitigation conduct or its litigation position could be sufficiently unreasonable by itself to render the entire Government position not ‘substantially justified.’ " Healey v. Leavitt , 485 F.3d 63, 67 (2d Cir. 2007) (quotation marks and citation omitted); see Gomez–Beleno , 644 F.3d at 145 ("[O]ur ‘substantial justification’ inquiry encompasses not only the litigation position of the Office of Immigration Litigation (‘OIL’), but also the underlying administrative decisions...."); Ericksson , 557 F.3d at 82 ("When assessing the ‘position of the United States,’ we review both ‘the position taken by the United States in the civil action, [and] the action or failure to act by the agency upon which the civil action is based.’ " (quoting 28 U.S.C. § 2412(d)(2)(D) ) ); Smith v. Bowen , 867 F.2d 731, 734 (2d Cir. 1989) ("Congress made clear that for EAJA purposes, a court should inquire into both the underlying agency determination affecting the party, as well as the Government's litigation strategy in defense of that determination.").

In his written submissions and at oral argument, Plaintiff cited Healey v. Leavitt , 485 F.3d 63 (2d Cir. 2007) for the proposition that the Government can only meet this burden by making a "strong showing" that its position was "substantially justified." Id. at 67. Although this is a correct recitation of the law, to the extent that Plaintiff claims that this standard is somehow more exacting than that set forth in Pierce , the Second Circuit has rejected such a position in a published decision. Ericksson , 557 F.3d at 82 n.1 ("To the extent our recent decision in Healey v. Leavitt indicates that the government must make a ‘strong showing’ to satisfy its burden under § 2412(d)(1)(A), we do not understand that case to impose a standard higher than that set forth in [ Pierce ]." ...