O Centro Espirita Beneficente União Do Vegs v. Duke

• Decision Date: 25 October 2018
• Docket Number: No. CIV 17-1137 JB\KK,CIV 17-1137 JB\KK
• Parties: O CENTRO ESPIRITA BENEFICENTE UNIÃO DO VEGETAL IN THE U.S.; JOSE CARLOS GARCIA; DANIELLE HOUNSELL SILVA GARCIA, and J.H.S.G., a minor, Plaintiffs, v. ELAINE DUKE, Acting U.S. Secretary of Homeland Security; L. FRANCIS CISSNA, Director of U.S. Citizenship and Immigration Services; KATHY BARAN, Director of U.S. Citizenship and Immigration Services California Service Center; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, an agency of the United States, in their official capacity, and UNITED STATES OF AMERICA, Defendants.
• Court: U.S. District Court — District of New Mexico

O CENTRO ESPIRITA BENEFICENTE UNIÃO DO VEGETAL IN THE U.S.; JOSE CARLOS GARCIA;
DANIELLE HOUNSELL SILVA GARCIA, and J.H.S.G., a minor, Plaintiffs,
v.
ELAINE DUKE, Acting U.S. Secretary of Homeland Security;
L. FRANCIS CISSNA, Director of U.S. Citizenship and Immigration Services;
KATHY BARAN, Director of U.S. Citizenship and Immigration Services California Service Center;
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,
an agency of the United States, in their official capacity,
and UNITED STATES OF AMERICA, Defendants.

No. CIV 17-1137 JB\KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 25, 2018

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Plaintiffs' Motion for Attorneys' Fees, Tax, and Costs, filed April 24, 2018 (Doc. 29)("Motion"). The Court held a hearing on August 8, 2018. The primary issues are: (i) whether time that the Plaintiffs' counsel Mr. Olsi Vrapi spent in connection with the administrative adjudication of the immigration petitions underlying the case is compensable; (ii) whether to approve the proposed hourly fee rates of the Plaintiffs' counsel, which are higher than the hourly rates the Plaintiffs' counsel billed to the Plaintiffs, and are higher than the prevailing market rate, because the Plaintiffs did not provide evidence that the hourly rates of the Plaintiffs' counsel are reasonable as 42 U.S.C. § 1988 requires; (iii) whether to discount the paralegal fees to $55.00 an hour; (iv) whether certain alleged costs are

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compensable, such as clerical tasks; (v) whether to award fees for hours that would not ordinarily be billed to the client; (vi) whether to award fees for hours billed by Mr. John Boyd and Ms. Nancy Hollander, counsel from the Freedman Boyd Hollander Goldberg Urias & Ward P.A. firm, with whom the Defendants' counsel never had any interactions; (vii) whether to award fees for the Plaintiffs' counsel Ms. Sarah Thomas, whose hourly rate, role in the case, and years of experience are not discussed in the Motion; and (viii) whether fees and costs related to the Plaintiffs' preparation of the Motion are compensable. The Court will award fees as the Motion requests but will reduce the award by: (i) lowering the paralegal fees by $1,230.00; and (ii) lowering the costs by $510.63. The Court will also adjust the total award request by applying the current gross receipts tax rate. Accordingly, the Court will grant in part and deny in part the Motion, and the Court will award fees and costs in the amount of $50,577.48. Gross receipts tax on this amount is $3,982.98. The total award is $54,560.46, and the Defendants shall pay that amount to the Plaintiffs.

FACTUAL BACKGROUND

Plaintiff O Centro Espirita Beneficiente União Do Vegetal in the United States (called "UDV" by its members and the Court) is a Christian spiritualist religious organization. See Complaint for Declaratory Judgment, Injunctive Relief, and Writ of Mandamus ¶ 15, at 7, filed November 14, 2017 (Doc. 1)("Complaint"). Plaintiff Jose Carlos Garcia holds a high-level clerical position in UDV, "akin to a Cardinal of the Catholic Church," and "has been a member and leader in the organization for decades." Complaint ¶ 16, at 7. Plaintiff Danielle Hounsell

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Silvia Garcia is his wife. See Complaint ¶ 17, at 7. Plaintiff J.H.S.G. is his minor child. See Complaint ¶ 18, at 8. Collectively, they are the Plaintiffs.

PROCEDURAL BACKGROUND

This case is about the Defendants' denial of the Plaintiffs' request, in a petition for a religious visa for Plaintiff Jose Carlos Garcia ("Garcia"), for an exemption under the Religious Freedom and Restoration Act of 1993 § 3, 42 U.S.C. § 2000bb-1 (2006) ("RFRA"). See Complaint ¶¶ 1-2, at 1-2. UDV had twice successfully petitioned for Garcia to obtain a religious visa ("R-1 visa")¹ and status with the Defendants. See Motion at 1. Both petitions were

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approved with an implicit grant of an RFRA exemption, because United States Citizenship and Immigration Services ("USCIS") regulations require that ministers be compensated, whereas a central tenet of UDV's faith is the non-compensation of ministers. See Motion at 1. When the Plaintiffs filed a third petition for an R-1 visa on behalf of Garcia, the Defendant USCIS issued a request for evidence challenging the compensation issue, as well as issues that had been foreclosed by the Supreme Court of the United States of America precedent concerning UDV. See Motion at 1. The Plaintiffs responded requesting an RFRA exemption, and the Defendants denied the third R-1 petition. See Motion at 1. On July 1, 2016, UDV also filed an I-360² immigrant religious worker visa petition ("I-360 petition") on behalf of Garcia. See Response to Plaintiffs' Motion for Attorney's Fees at 2, filed May 8, 2018 (Doc. 30)("Response"). USCIS issued UDV a notice of intent to deny the I-360 petition because of "inconsistencies in UDV's

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record" and UDV's failure to satisfy the regulatory compensation requirement³ pursuant to 8 C.F.R. § 204.5(m)(10). See Response at 2. The I-360 petition was still under consideration when the Plaintiffs brought suit in federal court. See Response at 2. The Plaintiffs asked the Court to: (i) "declare the decision denying the [R-1] petition illegal and order Defendants to vacate the denial and grant the petition"; and (ii) "order Defendants to immediately adjudicate the delayed [I-360] petition." Complaint ¶ 2, at 2.

The Plaintiffs filed their case in the United States District Court for the District of New Mexico on November 14, 2017. See Complaint at 1. On the same day, the Plaintiffs filed the Plaintiffs' Motion for Temporary Restraining Order And/Or Preliminary Injunctive Relief and

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Request for Emergency Ex Parte Hearing, filed November 14, 2017 (Doc. 2)("TRO Motion"). In the TRO Motion, the Plaintiffs ask the Court to grant a temporary restraining order ("TRO") and/or a preliminary injunction ordering the Defendants to grant the most recent R-1 petition filed on Garcia's behalf, and to adjudicate Garcia's I-360 petition within fourteen days of the Court's order. See Motion at 15. The Court held a hearing on the TRO Motion on November 21, 2017. See Transcript of Hearing (taken November 21, 2017), filed December 21, 2017 (Doc. 19). Elaine Duke, L. Francis Cissna, Kathy Baran, USCIS, and the United States of America (collectively "the Defendants") filed a response in opposition. See Defendants' Response to Plaintiffs' Motion for Temporary Restraining Order And/Or Preliminary Injunctive Relief, filed November 30, 2017 (Doc. 12)("Response to TRO Motion"). The Court held a second hearing on the motion on December 1, 2017. See Transcript of Hearing (taken December 1, 2017), filed December 15, 2017 (Doc. 17). The Plaintiffs replied. See Plaintiffs' Reply to Defendants' Response in Opposition to Plaintiffs' Motion for Temporary Restraining Order And/Or Preliminary Injunctive Relief, filed December 7, 2017 (Doc. 14)("Reply to TRO Motion"). On December 15, 2017, the Court issued a Memorandum Opinion and Order granting in part and denying in part the Plaintiffs' TRO Motion. See Memorandum Opinion and Order, filed December 15, 2017 (Doc. 18)("TRO MOO").

In the TRO MOO, the Court considers the following issues: (i) whether the procedural requirements of the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"), apply to the TRO Motion; (ii) whether the Plaintiffs' RFRA claim has a substantial likelihood of success on the

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merits; (iii) whether the Plaintiffs are likely to suffer irreparable injury absent a preliminary injunction; (iv) whether the threatened injury to the Plaintiffs outweighs the injury an injunction can cause the Defendants; (v) whether the injunction is adverse to the public interest; and (vi) whether the Plaintiffs have met a disfavored preliminary injunction's heightened requirements. See TRO MOO at 1-2. The Court concluded that: (i) the APA's procedural requirements do not apply to the Plaintiffs' TRO Motion, because the TRO Motion seeks injunctive relief under the RFRA and not under the APA; (ii) the Plaintiffs' RFRA claim has a substantial likelihood of success on the merits; (iii) the Plaintiffs are likely to suffer irreparable injury absent a preliminary injunction; (iv) the threatened injury to the Plaintiffs outweighs the injury an injunction can cause the Defendants; (v) the injunction will not be adverse to the public interest; and (vi) the Plaintiffs meet a disfavored preliminary injunction's heightened requirements. See TRO MOO at 2. Ultimately, the Court granted an injunction, requiring the Defendants to reconsider the Plaintiffs' R-1 petition without applying 8 C.F.R. § 204.5(m)(10) -- the compensation requirement which the Defendants applied to the petition when first considered -- because the Court determined that applying that requirement to the Plaintiffs' R-1 petition likely violates RFRA. See TRO MOO at 45. The Court did not order the Defendants to make any particular decision on either the R-1 petition or the I-360 petition, because "it is not willing to impose upon federal agencies its judgment regarding discretionary decisions[.]" TRO MOO at 46. Finally, the Court required the Plaintiffs to post a bond of $250.00 pursuant to rule 65(c) of the Federal Rules of Civil Procedure. See TRO MOO at 46.

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Because of the Court's TRO MOO, the Plaintiffs continued to pursue their immigration applications, now exempt from the regulatory compensation requirement that USCIS previously applied. See Response at 3. On November 30, 2017, USCIS issued a notice of intent to deny for UDV's I-360 petition. See Response at 3. On December 20, 2017, USCIS reopened and issued a request for evidence for the Plaintiffs' petition to extend Garcia's R-1 status. See Response at 3. The Plaintiffs responded to the request for evidence and to the notice of intent to deny. See Response at 4. After the Plaintiffs responded to the request for evidence and the notice of...