Dabone v. Thornburgh, Civ. A. No. 89-6337.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtCAHN
Citation734 F. Supp. 195
PartiesHaruna DABONE, Plaintiff, v. Richard THORNBURGH and David Milholland, Defendants.
Docket NumberCiv. A. No. 89-6337.
Decision Date19 March 1990

734 F. Supp. 195

Haruna DABONE, Plaintiff,
Richard THORNBURGH and David Milholland, Defendants.

Civ. A. No. 89-6337.

United States District Court, E.D. Pennsylvania.

March 19, 1990.

734 F. Supp. 196

Lawrence Rudnick, Steel, Rubin & Rudnick, Philadelphia, Pa., for plaintiff.

Michael M. Baylson, U.S. Atty., James G. Sheehan, David F. McComb, Asst. U.S. Attys., Philadelphia, Pa. (Gerald S. Hurwitz, Executive Office for Immigration Review, Falls Church, Va., of counsel), for defendants.


CAHN, District Judge.

The plaintiff, a citizen of Ghana residing in the United States, was convicted of possession of marijuana with intent to distribute on June 11, 1980. He was then found excludable by an immigration judge under 8 U.S.C. § 1182(a)(23) and, on June 8, 1982, was ordered excluded and deported. His appeal to the Board of Immigration Appeals ("BIA") was dismissed on April 11, 1984. Dabone then moved to stay deportation and reopen exclusion proceedings. The stay motion was denied. While the motion to reopen was under consideration, Dabone petitioned for a writ of habeas corpus, a petition ultimately denied by the Court of Appeals. Dabone v. Karn, 763 F.2d 593 (3d Cir.1985). The BIA denied the motion to reopen on December 26, 1985.

Dabone filed another motion to reopen on January 19, 1988, arguing that, since his conviction for drug possession had been set aside, the exclusion proceedings should be reopened. The Immigration and Naturalization Service ("INS") did not oppose this motion. In spite of this lack of opposition, the BIA failed to act. Letters sent by Dabone's counsel to the BIA also did not induce action. Indeed, a May 25, 1989, letter from W. Wayne Stogner, Deputy Chief Attorney Examiner in the BIA, states that Dabone's case "is not among the older cases now being before the Board." After almost twenty months of inaction, Dabone sued Richard Thornburgh, the Attorney General, and David Milholland, the Chairperson of the BIA, moving for a writ of mandamus pursuant to 28 U.S.C. § 1361 or, in the alternative, an order directing agency action under 5 U.S.C. § 706(1), on September 1, 1989.1 On October 5, 1989, the

734 F. Supp. 197
BIA granted the motion to reopen; the complaint seeking mandamus was hence voluntarily dismissed by the plaintiff. The plaintiff now applies for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). This application is granted

The EAJA provides that "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, 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." 28 U.S.C. § 2412(d)(1)(A) (emphasis added). This requires that this court begin by determining whether Dabone was the prevailing party in the mandamus action. If so, this court must examine the government's contentions that its actions were substantially justified within the terms of the EAJA. Finally, should the government's position not be substantially justified, this court must determine the proper fee.2 These will be discussed in turn.

I. Prevailing Party

Dabone argues that he is the prevailing party for the purposes of this action because he received the relief he requested shortly after he filed the suit. The government, in contrast, maintains that he did not prevail, both because he received no final judgment in his favor and because he has not shown that the mandamus action induced the BIA to reopen his case.3

This court must begin its analysis with the principles outlined in Texas State Teachers Ass'n v. Garland Indep. School Dist., ___ U.S. ___, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). There the Court held that "the touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties ..." 109 S.Ct. at 1493. Thus, under 42 U.S.C. § 1988, the fee statute at issue, the Court required that, as a minimum, "the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." 109 S.Ct. at 1493. The Court has adopted this standard for the EAJA. Sullivan v. Hudson, ___ U.S. ___, 109 S.Ct. 2248, 2255, 104 L.Ed.2d 941 (1989).

734 F. Supp. 198

The resolution of the dispute mentioned above need not be judicial; rather, settlements, consent decrees, or changes in conduct that redress the grievances at issue are enough to allow a court to deem the plaintiff the prevailing party. Hewitt v. Helms, 482 U.S. 755, 760-61, 107 S.Ct. 2672, 2675-76, 96 L.Ed.2d 654 (1987); Maher v. Gagne, 448 U.S. 122, 129-30, 100 S.Ct. 2570, 2574-75, 65 L.Ed.2d 653 (1980); see also H.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4990 (EAJA; "the phrase `prevailing party' should not be limited to a victor only after entry of a final judgment following a full trial on the merits"). However, merely interlocutory rulings that do not afford the relief requested do not make the party that benefits into the prevailing party until or unless that party actually receives some of the relief requested. Hudson, 109 S.Ct. at 2254-55; Hewitt, 482 U.S. at 760-63, 107 S.Ct. at 2675-77; Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980); Brown v. Secretary of Health and Human Servs., 747 F.2d 878, 883 (3d Cir.1984) (remand granted when relief sought was reversal of administrative ruling not adequate for prevailing party status).

Under these principles, Dabone has prevailed. He specifically sought to have this court compel the BIA to reopen his case, which it did within a month of the mandamus action. Unlike the plaintiffs in Hanrahan and Brown, Dabone did not request substantive relief and, receiving only procedural benefits, seek attorneys' fees for those. See also Bernal-Garcia v. INS, 852 F.2d 144, 147 (remand for reconsideration not enough for prevailing party status where plaintiff sought reversal of denial of request for asylum); Escobar Ruiz v. INS, 787 F.2d 1294, 1297-98 (9th Cir.1986) (same; deportation proceeding), aff'd on reh'g en banc, 838 F.2d 1020 (9th Cir.1988). While this relief is procedural and, in a sense, interlocutory, it is also exactly what he requested. See Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 911 (3d Cir.1985) ("Usually a common-sense comparison between relief sought and relief obtained will be sufficient to indicate whether a party has prevailed."). Other courts that have faced a similar question—whether parties that succeed in having the INS process their petitions in a timely manner are prevailing parties—have held that the plaintiffs did prevail. Abela v. Gustafson, 888 F.2d 1258, 1266 (9th Cir.1989) (judgment granted for plaintiff); Nadler v. INS, No. 88-1586-OG (D.D.C. Dec. 6, 1989) (judgment granted for plaintiff); Achaval-Bianco v. Gustafson, 736 F.Supp. 214 (C.D.Cal.1989) (case settled); Jefrey v. INS, 710 F.Supp. 486, 488 (S.D.N.Y.1989) (case settled).4

The BIA insists that Dabone nevertheless cannot be considered a prevailing party because the BIA reopened Dabone's case before this court was able to rule on the matter; since the action for which Dabone seeks attorneys' fees was dismissed, it argues, Dabone could not have prevailed on it. This argument fails to take into account the line of cases cited above in which the Court held that relief need not be granted through judicial action, as well as the clear sense of the legislative history of the EAJA. Both Jefrey and Achaval-Bianco were resolved before judgment; in both, the courts had no difficulty finding the plaintiffs prevailing parties. See also Jean v. Nelson, 863 F.2d 759, 766 (11th Cir.1988) (EAJA recovery appropriate when case mooted because plaintiffs received the relief sought in immigration proceedings), cert. granted, ___ U.S. ___, 110 S.Ct. 862, 107 L.Ed.2d 947 (1990).

The government also argues that Dabone has failed to establish that the relief he sought came as a result of his suit. If the BIA would have acted as it did when it did even in the absence of a lawsuit, says the government, the plaintiff may not recover. The evidence before this court does not support this contention. Dabone has supplied this court with evidence that shows that the BIA failed to act in the face of letters requesting action. This inaction

734 F. Supp. 199
continued for almost twenty months. Significantly, as noted above, the Deputy Chief Attorney Examiner stated on May 25, 1989—more than sixteen months after the second motion to reopen was filed—that the case "is not among the older cases now being before the Board." Plaintiff's Reply, Exh. B

The government has produced no affidavits in rebuttal. Its statement in its brief that "a decision in this matter was being drafted prior to the initiation of the lawsuit" is not competent; though it is sworn under Fed.R.Civ.P. 11, it is not sworn to by anyone with direct knowledge of the BIA's activities. The Court of Appeals has made clear that assertions in briefs are not competent evidence unless agreed to by the adverse parties. Braden v. University of Pittsburgh, 477 F.2d 1, 6 (3d Cir.1973); Delco Wire & Cable, Inc. v. Weinberger, 109 F.R.D. 680, 688 (E.D.Pa.1986) (Lord, J.). Though the case may not be as clear-cut as Jean or Achaval-Bianco, the uncontroverted evidence here shows that the suit was the catalyst that provoked the favorable ruling and thus that Dabone must prevail. Jean, 863 F.2d at 766; Achaval-Bianco, 736 F.Supp. at 215; see also Abela, 888 F.2d at 1266.5

Finally, the defendants argue that a writ of mandamus could not issue as a matter of law, and thus that the BIA's action following the filing of this suit could not have been caused by the suit. There...

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