Jean v. Nelson

• Decision Date: 27 December 1988
• Docket Number: No. 86-5887,86-5887
• Citation: 863 F.2d 759
• Parties: Marie Lucie JEAN, et al., Plaintiffs-Appellees, v. Alan C. NELSON, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 759

863 F.2d 759

Marie Lucie JEAN, et al., Plaintiffs-Appellees, v. Alan C. NELSON, et al., Defendants-Appellants.

No. 86-5887.

United States Court of Appeals, Eleventh Circuit.

Dec. 27, 1988.

Michael J. Singer, Mary T. Koehmstedt, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, D.C., for defendants-appellants.

Niels W. Frenzen, Ira J. Kurzban, Miami, Fla., Terrence A. Corrigan, Robert E. Juceam, Sandra Lipsman, New York City, Irwin P. Stetzky, Bruce J. Winick, University of Miami School of Law, Coral Gables, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and CLARK, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

CLARK, Circuit Judge:

In another chapter of what has been a long, complex, and bitterly contested lawsuit, the United States has challenged an award of attorney's fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. Supplied with the Supreme Court's first EAJA decision, Pierce v. Underwood, --- U.S. ----, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988), we have concluded that the district court did not abuse its discretion in finding that the plaintiffs are entitled to an award of attorney's fees, expenses and costs. But because the district court's calculation of the award is inconsistent with certain standards set forth in Pierce and other case law, we are vacating its award and remanding the case for a recalculation of the award.

I. BACKGROUND

A. Litigation on the Merits

The facts concerning this case are well known. See Louis v. Nelson, 544 F.Supp. 973 (S.D.Fla.1982) (Jean I ); Jean v. Nelson, 711 F.2d 1455 (11th Cir.1983) (Jean II ), vacated by reh'g in banc, 727 F.2d 957 (11th Cir.1984) (Jean III ), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (Jean IV ). For the purposes of the assessing the plaintiffs' right to attorney's fees and costs under the EAJA, we will detail only the nature and substance of their claims, and the results--both judicial and extrajudicial--that they obtained.

The lawsuit began as a challenge to the practice, instituted by the Immigration and Naturalization Service (INS), of holding mass exclusion hearings for the plaintiff class composed of Haitian refugees. It evolved quickly into a broad-based challenge to INS's policy of detaining the class members, during the pendency of their applications for asylum, without any possibility of parole. The complaint filed on June 16, 1981 contained seven counts, four of which were dismissed by the district court on February 24, 1982. ¹ Three issues remained for trial: (1) whether the defendants' departure from the established policy of paroling undocumented aliens, without formal rulemaking, violated the Administrative Procedure Act (APA), 5 U.S.C. Sec. 553; (2) whether the unique manner in which Haitian refugees were treated violated their right to equal protection under the Fifth Amendment, since it amounted to a classification based on race and national origin; and (3) whether the class members were unlawfully denied their First Amendment rights of access to legal counsel, relatives, and friends in the Miami community.

After a six-week trial, the district court ruled that INS had violated the APA by failing to engage in formal rulemaking before revising its policy of paroling applicants for asylum. Jean I, 544 F.Supp. at 993-97, 1003-04. Ten days later, the court declared by separate order that the detention policy was void, and ordered the release of the plaintiff class pursuant to a plan detailed in the order. Louis v. Nelson, 544 F.Supp. 1004, 1006-09 (S.D.Fla.1982). The court also ruled that there was insufficient evidence to support the plaintiffs' equal protection claim. Jean I, 544 F.Supp. at 997-1002, 1004. The court declined to rule on the access claim, "ostensibly because the issue was mooted by the release order." Jean II, 711 F.2d at 1464.

A panel of this court affirmed the district court's APA ruling, concluding that the policy of detaining undocumented Haitian refugees constituted a new "rule" that had been formulated without following APA rulemaking procedures. Id. at 1474-83. The panel reversed the district court's holding that the plaintiffs had failed to make out a case of intentional discrimination. Id. at 1483-1502. The panel also reached the merits of the claim, dismissed by the district court, that the class members had been denied a right to receive notification that they were entitled to apply for asylum. Id. at 1507-08. Finally, the panel acknowledged that the plaintiffs' access claim was not moot because of the possibility that INS would revoke class members' parole; it ordered a remand to determine whether the government's access restrictions were unlawful. Id. at 1508-09.

Sitting in banc, ² this court held that the APA claim as originally presented to the district court had become moot because the class members were no longer subject to detention, unless such detention was pursuant to new regulations promulgated by INS subsequent to the district court's decision in Jean I. These regulations, see 8 C.F.R. Sec. 212.5, require INS to make parole determinations without regard to an alien's race or natural origin; thus, we dismissed the appeal as to the APA claim. Jean III, 727 F.2d at 962. ³ As for the equal protection claim, the court held that excludable aliens have no equal protection rights with regard to the processing of their asylum or admission applications or INS determinations that they should not be paroled. The claim was nonetheless remanded to determine whether low-level INS officials were discriminating against plaintiffs in violation of instructions from their superiors. Id. at 967-79. The court also held that the Refugee Act of 1980 does not create a constitutionally protectable interest in receiving notice of the right to petition for asylum. Id. at 979-80. Finally, the court held that the access claim was not moot and remanded it to the district court for full consideration.

In Jean IV, the Supreme Court affirmed the judgment of our in banc court, but explained that we should not have reached the merits of the constitutional question. In arguing the case before the Court, the Solicitor General conceded that because the statute granting parole authority to the attorney general, 8 U.S.C. Sec. 1182(d)(5)(A), and 8 C.F.R. Sec. 212.5, did not include race or natural origin as factors relevant to a parole determination, INS was prohibited from considering these factors. ⁴ In light of the neutral quality of the criteria contained in the new regulation, the Court affirmed our in banc court's judgment "insofar as it remanded to the District Court for a determination whether the INS officials are observing this limit upon their broad statutory discretion to deny parole to class members in detention." Jean IV, 105 S.Ct. at 2998. The question to be resolved on remand was whether INS was properly following the statutory and regulatory framework in making parole determinations. Id.

B. Attorney's Fee Litigation

The Supreme Court has admonished the courts to ensure that a request for attorney's fees does "not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Contests over EAJA fees and expenses do not typically threaten to upset this ideal. ⁵ Yet a case of this magnitude and complexity, in which approximately 45 lawyers have periodically participated, ⁶ can be expected to place substantial pressure on the norm. After a hearing consuming five days, and a review by the district court of "hundreds of pages of affidavits," the court awarded $950,944.87 in attorney's fees to seven individual attorneys and one law firm, $152,169.33 in costs and expenses to two individual attorneys, one law firm and the Haitian Refugee Center. It also awarded fees, expenses and costs for the attorney's fee litigation itself.

The district court's rulings and award are contained in two deliberate and detailed orders, the first assessing the plaintiff's entitlement to fees, the second explaining the court's calculations. ⁷ Because the government has contested virtually every aspect of the district court's legal rulings and calculations, and because there is merit to some of the government's contentions, we will closely analyze the components of these orders.

II. QUALIFYING FOR EAJA FEES

The EAJA provides that

a court shall award to a prevailing party ... fees and other expenses, ... incurred by that party in any civil action, ... brought by or against the United States 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). As the district court noted, there are three predicate findings to an award of EAJA fees and expenses: (1) the litigant opposing the United States must be a "prevailing party"; (2) the government's position must not have been substantially justified; and (3) there must be no circumstances that make an award against the government unjust. 646 F.Supp. at 1324. Only the first two of these issues concern us because the United States does not maintain that there are special circumstances that make the EAJA award unjust.

A. Are the Plaintiffs Prevailing Parties?

Our circuit employs the same test to determine whether an applicant for EAJA fees is a "prevailing party" as we use to resolve "prevailing party" eligibility for attorney's fees under 42 U.S.C. Sec. 1988:

The prevailing party test is "whether he or she has received substantially the relief requested or has been successful on the central issue," Watkins v. Mobile Housing Board, 632 F.2d 565, 567 (5th Cir. Unit B 1980), or, stated another way, whether "plaintiffs' lawsuit was a catalyst motivating defendants to provide the primary relief sought...