Johnson v. Gonzales

• Decision Date: 25 July 2005
• Docket Number: No. 03-1931.,03-1931.
• Citation: 416 F.3d 205
• Parties: Jimmy JOHNSON, Petitioner v. * Alberto R. GONZALES, Attorney General of the United States, Respondent. * Substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2).
• Court: U.S. Court of Appeals — Third Circuit

416 F.3d 205

Jimmy JOHNSON, Petitioner v. * Alberto R. GONZALES, Attorney General of the United States, Respondent * Substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2).

No. 03-1931.

United States Court of Appeals, Third Circuit.

Argued October 28, 2004.

Opinion filed July 25, 2005.

COPYRIGHT MATERIAL OMITTED

Visuvanathan Rudrakumaran, (Argued), New York, NY, for Petitioner.

Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Civil Division, Donald Keener, Assistant Director, Alison Marie Igoe, Senior Litigation Counsel, Douglas E. Ginsburg, John M. McAdams, Jr., Janice K. Redfern, Norah A. Schwarz, (Argued), Office of Immigration Litigation, Washington, DC, for Respondent.

Before NYGAARD, AMBRO, and GARTH, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Jimmy Johnson moves for attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). For the reasons that follow, we grant his motion.

I. Background

Johnson petitioned our Court for review of the decision of the Board of Immigration Appeals ("BIA") denying his asylum application. Johnson is a native of Liberia who fled that country after being forcibly recruited into and then deserting the army of the National Patriotic Front of Liberia ("NPFL") — a group associated with Charles Taylor, who later became the President of Liberia (and subsequently abdicated that position). The BIA determined that Johnson "ha[d] failed to show that he was persecuted on account of his political opinion, and that his `persecution' was not solely the result of the guerillas' aim in seeking to fill their ranks in order to carry out the war with the government and pursue their political goal, their political motive being irrelevant."

We granted Johnson's petition for review, holding that the BIA's decision was not supported by substantial evidence when it failed even to consider Johnson's testimony from his second asylum hearing (which the Immigration Judge ("IJ") determined credible in a finding not disturbed by the BIA) in reviewing the IJ's decision resulting from that hearing.¹ See Johnson v. Ashcroft, 117 Fed.Appx. 849, 852 (3d Cir.2004).²

Johnson's motion for attorneys' fees relating to his petition for review is now before us.

II. Jurisdiction

Under the EAJA, a motion for attorneys' fees must be filed "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). In this context, "`final judgment' means a judgment that is final and not appealable. . . ." 28 U.S.C. § 2412(d)(2)(B). We have held that "the thirty day cut-off for EAJA petitions begins when the government's right to appeal the order has lapsed." Taylor v. United States, 749 F.2d 171, 174 (3d Cir. 1984) (per curiam).

The Government's time to petition for a writ of certiorari in this case expired on March 22, 2005. Johnson, however, filed his motion on March 18, 2005. This technicality need not concern us, as we have noted that "[t]he EAJA establishes only a deadline after which . . . petitions may not be filed; earlier filing is possible." Id. at 175 n. 8. Johnson's motion for attorneys' fees thus is properly before us, and we now turn to the merits of that motion.

III. Discussion

"[T]he essential objective of the EAJA [is] to ensure that persons will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in the vindication of their rights. . . ." Clarke v. INS, 904 F.2d 172, 178 (3d Cir. 1990) (internal quotation omitted). The EAJA thus provides, in pertinent part, as follows:

Except as otherwise specifically provided by statute, 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 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. § 2412(d)(1)(A) (emphases added).

Accordingly, we must first determine whether Johnson was the "prevailing party" in this action under the EAJA. If we conclude that he is, we must then consider whether the position of the United States in this case was "substantially justified."³

A. Prevailing Party

The question we are faced with here — whether an alien who prevails on his/her petition for review before us but whose case is remanded to the BIA for further proceedings (and who therefore may not ultimately prevail in his/her immigration proceedings) is a "prevailing party" for EAJA purposes — is one of first impression in our Circuit. The Court of Appeals for the Ninth Circuit, in a decision later adopted by the Court of Appeals for the Seventh Circuit, has answered that question in the affirmative. See Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th Cir. 1997) (rejecting Government argument that "petitioners [were] not prevailing parties within the meaning of the EAJA because they merely secured a remand for further agency action, and did not obtain affirmative relief on the merits of their underlying claims for asylum and withholding of deportation"); see also Muhur v. Ashcroft, 382 F.3d 653, 654 (7th Cir. 2004) (agreeing with Rueda-Menicucci and holding that "when a court of appeals, as in this case, reverses a denial of asylum because the denial was erroneous, and sends the case back to the immigration service for further proceedings, the applicant is a prevailing party").

Both Courts held that this result was dictated by the Supreme Court's decision in Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Muhur, 382 F.3d at 654; Rueda-Menicucci, 132 F.3d at 494, 495. In Schaefer, the Court's opinion explained that "[i]n cases reviewing final agency decisions on Social Security benefits, the exclusive methods by which district courts may remand to the Secretary are set forth in sentence four and sentence six of [42 U.S.C.] § 405(g). . . ." 509 U.S. at 296, 113 S.Ct. 2625. The Court ruled that a Social Security claimant who secured a "sentence-four" remand to the agency — as opposed to a "sentence-six" remand — for further proceedings was a prevailing party under the EAJA because such a remand "terminate[d] the litigation with victory for the plaintiff." Id. at 300-02, 113 S.Ct. 2625.

In reaching this conclusion, the Court emphasized that a "sentence-four" remand results in the immediate entry of judgment (and relinquishment of jurisdiction) by the District Court, whereas in the "sentence-six" remand context judgment is not entered (and the District Court retains jurisdiction) until post-remand agency proceedings are complete. Id. at 297, 113 S.Ct. 2625. Thus, a "sentence-four" remand terminates federal court litigation in favor of the plaintiff, but a "sentence-six" remand does not. The Court further reasoned that a person who obtained a "sentence-four" remand reversing the Secretary of Health and Human Services's denial of benefits "certainly" met its description of a prevailing party — someone who has "`succeeded on any significant issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit.'" Id. at 302, 113 S.Ct. 2625 (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)).

The Seventh and Ninth Circuits determined that a remand to the BIA in an immigration case is essentially the same as a "sentence-four" remand in a Social Security case. See Muhur, 382 F.3d at 654 (holding that the Court could not "see any difference" between a remand to the BIA and the "sentence-four" remand at issue in Schaefer); Rueda-Menicucci, 132 F.3d at 495 (holding that both "sentence-four" remands and remands to the BIA "terminate[ ] judicial proceedings and result[ ] in the entry of final judgment").⁴ We agree with this conclusion. As the Seventh Circuit stated, the Social Security claimant in Schaefer

who persuade[d] the court of appeals to set aside the Social Security Administration's denial of benefits [was] a prevailing party in the judicial proceeding because nothing remain[ed] to be done by the court, which having found error ha[d] finished with the case and relinquished jurisdiction.

Muhur, 382 F.3d at 654 (emphasis added).

We have the same situation here. Johnson secured the setting aside of an erroneous BIA decision in his case. We entered judgment in his favor and relinquished jurisdiction. Thus, pursuant to the reasoning of Schaefer, he is the prevailing party in this proceeding for EAJA purposes regardless whether he ultimately prevails in his underlying immigration proceeding.⁵

Accordingly, we join our sister Circuit Courts in holding that an alien whose petition for review of a BIA decision is granted by our Court and whose case is then remanded to the BIA is a prevailing party under the EAJA, and may therefore be entitled to attorneys' fees. Having determined that Johnson is a prevailing party, we turn to whether the Government's position in this litigation was "substantially justified," a second leg of analysis in Johnson's quest for fees.

B. Substantially Justified

The Supreme Court has held that, as used in the EAJA, "substantially justified" does not mean "justified to a high degree" but instead means "justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Put another way, substantially justified means having a "reasonable basis in both law and fact." Id. (internal quotation omitted). Thus, "[a] court must not assume that the government's position was not substantially justified simply because the government lost on the merits." Kiareldeen v. Ashcroft, 273 F.3d 542, 554 (3d...