Full Gospel Portland Church v. Thornburgh, 90-5061

• Decision Date: 12 March 1991
• Docket Number: No. 90-5061,90-5061
• Citation: 288 U.S.App.D.C. 356,927 F.2d 628
• Parties: FULL GOSPEL PORTLAND CHURCH, et al. v. Richard THORNBURGH, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 628

927 F.2d 628

288 U.S.App.D.C. 356

FULL GOSPEL PORTLAND CHURCH, et al. v. Richard THORNBURGH, et al., Appellants.

No. 90-5061.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 19, 1990.

Decided March 12, 1991.

Appeal from the United States District Court for the District of Columbia.

William Kanter, Attorney, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Michael Jay Singer and John S. Koppel, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellants.

James H. Lesar, with whom Susan Au Allen and Paul Shearman Allen, Washington, D.C., were on the brief, for appellees.

Before RUTH BADER GINSBURG, SILBERMAN, and SENTELLE, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in principal part, but dissenting as to fees for INS processing following the district court's decision, filed by Circuit Judge RUTH BADER GINSBURG.

PER CURIAM:

This appeal concerns an application for attorney fees, expenses, and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412. Plaintiffs-appellees Full Gospel Portland Church and Hae-Sook Kim (collectively, "Full Gospel"), through proceedings in the district court, gained an injunction preventing deportation of Kim and established her eligibility to remain in this country. After entering judgment in favor of Full Gospel on the merits, the district court granted Full Gospel's application for fees covering both administrative and court proceedings. The government on appeal contests the fees award to the extent that it compensates counsel for administrative proceedings before the Immigration and Naturalization Service ("INS") (119 hours). We hold that Full Gospel may not recover fees for the administrative proceedings.

I.

Hae-Sook Kim worked as a choir director, piano teacher, and accompanist at Full Gospel Portland Church. In late 1986 and early 1987, INS revoked Kim's "third preference" immigration status, withdrew her authorization to work, and ordered her to leave the country or face deportation proceedings. Full Gospel, represented by its Washington, D.C. counsel, Susan Au Allen, moved INS to reconsider its decision and filed a "sixth preference" petition with the Service. ¹ INS nonetheless commenced deportation proceedings in November 1987. In the ensuing weeks, Full Gospel repeatedly requested a response from INS to its motion and petition. At the end of February 1988, when it became apparent that Full Gospel would receive no INS response prior to the time set for Kim's deportation hearing, Full Gospel commenced its litigation in the district court.

The court entered summary judgment for Full Gospel, ruling that the revocation of Kim's third preference petition and a denial of her sixth preference petition were arbitrary and capricious. The court ordered INS to abide by the court's determinations of Kim's qualification for third and sixth preference visas "in any matter relating to adjustment of Ms. Kim's status." Memorandum and Order, Full Gospel Portland Church v. Thornburgh, 730 F.Supp. 441, 450 (D.D.C. Oct. 17, 1988) ("Merits Op."). Full Gospel promptly moved for attorney fees under EAJA, both for the district court litigation and for all INS proceedings. See 28 U.S.C. Secs. 2412(d)(1)(A) (called, in this opinion, "civil action EAJA") and 2412(d)(3) (herein called "judicial review EAJA").

In May 1989, after further efforts by Full Gospel's attorney, INS approved Kim's application for adjustment of status and gave her permission to work. In October 1989, upon determining that the government's decision to deport was not "substantially justified," the district court awarded Full Gospel fees for both the litigation and the administrative proceedings. Memorandum and Order, Full Gospel Portland Church v. Thornburgh, 730 F.Supp. 441, (D.D.C. Oct. 4, 1989) ("Fees Op.").

The government appeals the fees covering the pre- and post-litigation administrative proceedings ($12,334.79). In considering whether a fee award for the administrative proceedings is proper we distinguish between the pre-litigation visa proceedings and the deportation hearing (106 hours), and the post-litigation efforts to adjust Kim's status to that of a permanent resident (13 hours). We conclude, however, that neither judicial review EAJA nor civil action EAJA entitles Full Gospel to any fees in either the pre- or post-litigation proceedings.

II.

The district court awarded fees for the pre-litigation visa proceedings, and for the deportation hearing, under judicial review EAJA. Section 2412(d)(3) instructs the court to award fees against the government "to a prevailing party in any action for judicial review of an adversary adjudication, as defined in [5 U.S.C. Sec. 504(b)(1)(C) ]." (Emphasis added.) Full Gospel is not entitled to fees under judicial review EAJA. Our decision in St. Louis Fuel and Supply Co. v. FERC, 890 F.2d 446 (D.C.Cir.1989)--issued about six weeks after the district court's fees opinion--interpreted strictly section 504(b)(1)(C)'s stipulation that fees may be recovered only if the challenged administrative action constituted "an adjudication under [5 U.S.C.] section 554." The words "under section 554," we held, mean "governed by APA section 554," 890 F.2d at 451 (emphasis added), and thus fees are not available in "adjudications that Congress did not subject to [APA section 554]." Id. ² The Supreme Court has held that Congress specifically exempted INS proceedings from the APA's hearing provisions (including section 554). See Marcello v. Bonds, 349 U.S. 302, 310, 75 S.Ct. 757, 761, 99 L.Ed. 1107 (1955). Accordingly, fees may not be awarded for representation in deportation proceedings before the agency or on judicial review if the underlying action is governed by the procedural requirements of the Immigra tion and Nationality Act ("INA"). Accord Ardestani v. United States Dep't of Justice, INS, 904 F.2d 1505, 1509-13 (11th Cir.1990), cert. granted, --- U.S. ----, 111 S.Ct. 1101, 113 L.Ed.2d 212 (1991); Clarke v. INS, 904 F.2d 172, 174-78 (3d Cir.1990).

III.

Full Gospel contends, alternatively, that, even if the government is right about judicial review EAJA, Full Gospel remains eligible for fees for the administrative proceedings under civil action EAJA which contains no "adversary adjudication" limitation. Except as otherwise specifically provided by statute, this provision authorizes a fee award to a party prevailing against the United States "in any civil action (other than cases sounding in tort), ... in any court having jurisdiction of that action, 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. Sec. 2412(d)(1)(A).

It seems rather obvious that Full Gospel's claim, if accepted, would nullify the limitations Congress placed on fee awards for administrative proceedings. These proceedings were "part of" the subsequent civil action only in the sense that they were reviewed by the district court at one point--but just as much (or as little) could be said of any judicially-reviewed agency action. On Full Gospel's theory, prevailing parties in any civil action reviewing an administrative matter in which the government's position was not substantially justified would be entitled to fees for the administrative proceeding, whether or not the proceeding qualified as an "adversary adjudication." This interpretation of civil action EAJA would thus override 28 U.S.C. Sec. 2412(d)(3), the judicial review EAJA provision allowing fees only for adversary agency adjudications to parties who eventually prevail in court. We have no reason to believe that Congress intended such a result.

Finally, Full Gospel asserts that even if the prelitigation fees for administrative proceedings cannot be recovered, the post-litigation expenses fall into a different category and are authorized under Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). Post-litigation proceedings, the argument goes, were necessary to secure the relief sought in the civil action, because the district court could neither declare that Kim was entitled to permanent resident status nor stay the deportation proceedings.

In Hudson, the Supreme Court did construe the civil action EAJA provision to permit a fee award for administrative proceedings carried out on remand after the plaintiff had prevailed in court. The Court, however, emphasized the uncommon statutory scheme before it--the judicial review provisions of the Social Security Act ("SSA"), 42 U.S.C. Sec. 405(g)--and distinguished that statute from the standard provisions for judicial review of agency action. 109 S.Ct. at 2254. The Court noted that

[t]he detailed provisions for the transfer of proceedings to the Secretary and for the filing of the Secretary's subsequent findings with the court suggest a degree of direct interaction between a federal court and an administrative agency alien to traditional review of agency action under the Administrative Procedure Act.

Id. The Court stressed, moreover, that the plaintiff would not have been a "prevailing party" until the proceedings on remand were completed, nor would the district court's order remanding the case to the Secretary (and retaining jurisdiction) have constituted a final determination of the civil action. Id. at 2254-55. The administrative proceedings on remand, the Court concluded, were therefore so "intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees" that they "should be considered part and parcel of the action for which fees may be awarded." Id. at 2255. Proceedings under the INA lack the specific features of the SSA proceedings that, in Hudson, demonstrated the "intimate tie" between administrative and judicial proceedings--the visa revocation...