Catholic Soc. Servs., Inc. v. Napolitano

• Decision Date: 15 November 2011
• Docket Number: No. CIV.S–86–1343 LKK/JFM.,CIV.S–86–1343 LKK/JFM.
• Citation: 837 F.Supp.2d 1059
• Parties: CATHOLIC SOCIAL SERVICES, INC.,—Immigration Program, et al., Plaintiffs, v. Janet NAPOLITANO, Secretary U.S. Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

837 F.Supp.2d 1059

CATHOLIC SOCIAL SERVICES, INC.,—Immigration Program, et al., Plaintiffs,

v.Janet NAPOLITANO, Secretary U.S. Department of Homeland Security, et al., Defendants.

No. CIV.S–86–1343 LKK/JFM.

United States District Court, E.D. California.

Nov. 15, 2011.

Luis Alfonso Cespedes, Law Offices of Luis Alfonso Cespedes, Sacramento, CA, Michael Rubin, Altshuler Berzon LLP, San Francisco, CA, Robert H. Gibbs, Robert Pauw, Gibbs Houston Pauw, Seattle, WA, Stephen Allen Rosenbaum, Protection and Advocacy Inc., Oakland, CA, for Plaintiffs.

Andrew C. MacLachlan, Earle B. Wilson, Department of Justice, Washington, DC, Glyndell E. Williams, United States Attorney, Sacramento, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

This class action addressed the Immigration and Naturalization Service's improper decision to turn away certain applicants for legalization during a one-year period from 1987 to 1988. The court approved the parties' settlement agreement in January 2004. On December 14, 2009, 2009 WL 4928377, the court issued an order that, inter alia, granted plaintiffs' motion to enforce the settlement agreement because the defendants had relied upon a 1991 abandonment regulation to deny the legalization applications of some class members, in violation of the settlement.

Now before the court is plaintiffs' motion for attorney's fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), for the fees and costs incurred in prosecuting their motion to enforce and their work related to post-judgment monitoring and enforcement of the settlement agreement.

I. BACKGROUND

A. Initial Class Action Complaint

On November 12, 1986, plaintiffs filed a class action complaint challenging an Immigration and Naturalization Service (“INS”) ¹ regulation implementing a provision of the Immigration Reform and Control Act of 1986 (“IRCA”), Pub.L. 99–603, 100 Stat. 3359,codified at 8 U.S.C. §§ 1255a et seq. (1986), which allowed immigrants who had been in the United States unlawfully since January 1, 1982 to apply for adjustment of status during a specified twelve-month period. See8 U.S.C. § 1255a(a)(2)(A). IRCA directed the Attorney General to grant a stay of deportation and to issue interim work authorization to immigrants who could establish a prima facie case of eligibility in his or her application for adjustment of status under IRCA. See8 U.S.C. § 1255a(e)(2).

While IRCA required immigrants to be able to show that they had been continuously physically present in the United States since November 6, 1986, see8 U.S.C. § 1255a(a)(3)(A), the statute also stated that “[a]n alien shall not be considered to have failed to maintain continuous physical presence in the United States ... by virtue of brief, casual and innocent absences.” 8 U.S.C. § 1255a(a)(3)(B). The INS subsequently issued a regulation that provided that:

Brief, casual, and innocent means a departure authorized by the Service (advance parole) subsequent to May 1, 1987 of not more than thirty days for legitimate emergency or humanitarian purposes unless a further period of authorized departure has been granted in the discretion of the district director or a departure was beyond the alien's control.

8 C.F.R. § 245a.1(g) (emphasis in original).

In 1988, this court held that IRCA's “continuous physical presence” requirement was met for those applicants who had “brief, casual, and innocent” absences from the country without prior INS approval and, thus, the INS's regulation interpreting the statute was invalid. See Catholic Soc. Serv., Inc. v. Meese, 685 F.Supp. 1149 (E.D.Cal.1988). The government did not appeal the ruling on the merits. The government did, however, appeal this court's subsequent remedial orders that, inter alia, extended the application period for the plaintiff class; mandated procedures for determining whether an immigrant was covered by the injunction; and provided that plaintiffs who could show prima facie eligibility for legalization were entitled to stays of deportation, release from custody, and temporary employment authorization. See, e.g., Catholic Soc. Serv., Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992); Reno v. Catholic Soc. Serv., Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993); Catholic Soc. Serv., Inc. v. Reno, 134 F.3d 921 (9th Cir.1997); Catholic Soc. Serv., Inc. v. I.N.S., 182 F.3d 1053 (9th Cir.1999).

B. Settlement of Class Action

The parties entered a settlement that was approved on January 23, 2004, 2004 WL 5716141. Order Approving Settlement Class Action, ECF No. 656 (Jan. 23, 2004).²

The settlement set forth a process for determining whether an individual was a member of the plaintiff class, under which the individual was required to submit an application for class membership and an application for status as a temporary resident, with supporting documentation, to the defendants within a one-year period. Joint Mot., Doc. 650, Att. 1, at ¶ 4 (Dec. 1, 2003). The defendants were required to grant class membership applications where “it appear[ed] more probable than not that the applicant [met] the class definition.” Id. at ¶ 6.

Before denying the application, the defendants were to forward to the applicant or his or her representative “a notice of intended denial explaining the perceived deficiency in” the application for class membership, after which, the applicant had thirty days to submit additional evidence or otherwise remedy the deficiency. Id. at ¶ 7. If, following the above protocol, the application was denied, the defendants were required to send a copy of the notice of denial to the applicant, his or her attorney, and class counsel and inform the applicant of his or her right to appeal the denial to a special master. Id. at ¶ 8.

If, however, the application was granted, the defendants were required to adjudicate the class member's application for temporary residence as if it were timely filed between May 5, 1987 and May 4, 1988. Id. at ¶ 11. The settlement agreement provided:

The Defendants shall adjudicate each application for temporary residence filed on Form I–687 in accordance with the provisions of section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a, regulations, and administrative and judicial precedents the INS followed in adjudicating I687 applications timely filed during the IRCA application period.

Id.

C. Initial Settlement for Attorney's Fees and Costs

In March 2004, the parties agreed to settle plaintiffs' claims for attorney's fees and costs incurred in the action. Stipulation, ECF No. 659 (March 5, 2004). This court's order thereon stated, inter alia, “Defendants will pay Plaintiffs $3,500,000 in full settlement of all claims they may have for attorneys' fees, whether under the Equal Access to Justice Act (“EAJA”), or otherwise, and $100,000 in full settlement of all claims they may have for costs.” Id. at 3. The order also provided, “such payment will release Defendants from all payment obligations to Plaintiffs under EAJA and any other applicable law or regulation.” Id.

D. Motion to Enforce the Class Action Settlement Agreement

In October 2009, plaintiffs filed a motion to enforce the settlement, arguing that: (1) defendants had been applying an abandonment regulation that was enacted in 1991 to terminate class members' applications for temporary residence when applicants had failed to provide supplemental evidence after the government had requested they do so; and (2) defendants had declined to consider applications for class membership by applicants residing abroad and had failed to notify those applicants of their right to appeal a decision denying their applications for class membership to a special master. Pls' Mot., ECF No. 671 (Oct. 12, 2009).

In their opposition to plaintiff's first argument, defendants argued, inter alia, that: (1) the settlement agreement was silent as to how CIS should treat abandoned applications for class membership or subsequent applications for legalization and it was therefore not unreasonable for current CIS officers to look to the current abandonment regulation in determining how to adjudicate those applications; (2) the abandonment regulations were promulgated, in part, because “some applicants for immigration benefits would file skeletal or unapprovable benefit applications simply to gain interim benefits, or to establish a priority place in line,” “there was rampant fraud by people who prepared class membership applications,” and “many fraudulent applications would later be abandoned”; and (3) the abandonment regulation “provide[d] the skeletal applicant more protection, and more procedural due process, than was available to a legalization applicant in the 1980's, not less.” See Defs.' Opp'n, ECF No. 674, at 2–18 (Nov. 16, 2009).

As to the plaintiff's first argument, this court determined that defendants had “refus[ed] to implement the relief set forth in the settlement agreement” by engaging in a “pattern and practice of applying the 1991 abandonment ... regulations to the legalization applications of plaintiffs,” even though the settlement had “expressly require[d] that defendants may only use regulations in effect while applications filed during the 1987–1988 application period were adjudicated when adjudicating class member applications.” Order, ECF No. 678, at 7, 9 (Dec. 14, 2009). This court went on to state that it could not “envision any reasonable interpretation of paragraph 11 [of the settlement agreement] that would allow defendants to apply a regulation not in effect during the 1987–1988 period.” Id. at 9.

With regard to the plaintiff's second argument, this court found that plaintiffs had “not identified any claims ripe for judicial review” and, thus, the court could not decide “whether applications of individuals living abroad should be adjudicated by USCIS.” Id. at 13. However, the court determined that plaintiffs had “identified a pattern and practice of failure to comply...