Kholyavskiy v. Schlecht
| Decision Date | 09 February 2007 |
| Docket Number | No. 05C0671.,05C0671. |
| Citation | 479 F.Supp.2d 897 |
| Parties | Arkadiy L. KHOLYAVSKIY, Petitioner, v. Lieutenant Mark SCHLECHT, et al., Respondents. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Maria T. Baldini-Potermin, Scott D. Pollock, Anne G. Relias, Scott D. Pollock & Associates PC, Chicago, IL, for Petitioner.
Christian R. Larsen, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, Bernard R. Vash, Kenosha County Corporation Counsel, Kenosha, WI, for Respondents.
DECISION AND ORDER
Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, petitioner Arkadiy Kholyaysldy seeks reimbursement for fees and costs incurred in connection with a habeas corpus action in which he challenged the legality of his detention by Immigration and Customs Enforcement ("ICE"), a subagency of the U.S. Department of Homeland Security.
In 1992, petitioner, then fifteen, entered the United States with his family as a Jewish refugee from the former Soviet Union. Subsequently he became a lawful permanent resident of this country. Petitioner presently suffers from mental illness (social anxiety disorder and depression), and the Social Security Administration has determined that he is disabled. Petitioner has also been, convicted of several criminal offenses. As a result of such convictions, ICE decided to deport him to Russia, and in August 2004, detained him pending removal.1 However, in January 2005, Russian officials advised ICE that Russia did not regard petitioner as a Russian citizen and would not admit him. Nevertheless, ICE continued to detain petitioner.
Petitioner pursued relief through administrative channels unsuccessfully, and on June 22, 2005, pursuant to 28 U.S.C. § 2241, filed a petition for habeas corpus in this court.2 Petitioner named as respondents his immediate custodian, Lieutenant Mark Schlecht; Kenosha County Sheriff David Beth; and Chicago ICE Field Office Director Deborah Achim.
To facilitate discussion of some of the issues presented by petitioner's EAJA application, I will briefly summarize the law relating to petitioner's detention and its intersection with the facts of the present case. Generally speaking, ICE may detain a deportable alien while removal proceed`tip are pending. Demore v. Kim, 538 U.S. 510, 531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). After a removal order becomes final, ICE must detain the alien until -he is removed, for up to ninety days (the "removal period"). 8 U.S.C. § 1231(a)(2); see also Zadvydas v. Davis, 533 U.S. 678, 682, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Although § 1231(a)(6) appears to authorize discretionary indefinite detention of a removable alien beyond such period, the Supreme Court has indicated that indefinite detention would raise serious constitutional issues. Thus, the Court found that the statute permits ICE to detain an alien beyond the removal period only as long as reasonably necessary to bring about his removal and that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized." Id. at 689, 699, 121 S.Ct. 2491, The Court further stated that detention beyond six months after the issuance of a final removal order is presumed unconstitutional but that the government can rebut the, presumption by establishing that removal is reasonably foreseeable. Id. at 701, 121 S.Ct. 2491.
In the present case, petitioner argued in his habeas petition that ICE had `detained him for an excessive length of time and that because Russia had refused to admit him, his removal was not reasonably foreseeable. Accordingly, he contended his detention was distinguishable from that in Kim, and under Zadvydas, it violated his right to due process. Respondents countered that I lacked jurisdiction to hear the petition because petitioner's appeal from the Northern District of Illinois's dismissal of his previous petition was pending in the Seventh Circuit3 and that because removal proceedings were pending, Zadvydas did not apply.
On September 7, 2005, the Board of Immigration Appeals ("BIA") issued a final order of removal. Thus, the removal period, expired on December 7, 2005. ICE did not remove petitioner by that date, and thus, under Zadvydas, could continue to detain him only if his removal was reasonably foreseeable. On December 28, respondents advised me that ICE had made a second request to Russia to admit petitioner and that they planned to detain petitioner at least until March 2006, when they would review his status. The record suggests that Russia declined ICE's second request to admit petitioner at the latest by January 16, 2006, (Mot. for Att'y Fees Ex. 4 at 14), although neither party brought this to my attention at the time.
On March 7, 2006, the date on which Zadvydas's presumption of unconstitutionality took effect, respondents advised me that petitioner's mental condition and prior record justified his continued detention for at least a brief period of time and that they would not make a final decision concerning detention until the following week. On March 14, petitioner demanded that I order ICE to release him immediately, and on March 15, I conducted a telephone conference with counsel and ordered ICE to make a final decision within forty-eight hours. On March 17, respondents notified me that ICE had released petitioner.
Under the "American Rule," parties generally bear their own litigation costs unless Congress specifically provides otherwise. Alyeska Pipeline Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). And prior to the EAJA's passage, even if a statute specifically authorized the recovery of costs, the federal government retained its common law immunity from suit unless the statute explicitly allowed recovery from the United States. EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 881 (7th Cir.1994) (citing Alyeska, 421 U.S. at 265-67, 95 S.Ct. 1612).
The EAJA, first enacted in 1980 and made permanent in 1985, changed this scheme radically. The EAJA waives the United States's immunity from suit and makes it liable for fees and costs to the same extent as any other party. § 2412(b); O & G Spring & Wire Forms, 38 F.3d at 881. Further, the EAJA provides that a prevailing party other than the United States can recover fees and costs in any suit by or against the United States not covered by a more specific fee-shifting statute. Such provision states:
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 (other than cases sounding in tort) ... 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.
§ 2412(d)(1)(A). The EAJA further states that the "position of the United States" "means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." § 2412(d)(2)(D). The Seventh Circuit has found that the purpose of the EAJA is three-fold: (1) to encourage private litigants to pursue challenges to government actions notwithstanding the cost of attorneys' fees; (2) to compensate parties for the cost of defending against unreasonable government action; and (3) to deter the government from prosecuting or defending cases in which its position is not substantially justified. Berman v. Schweiker, 713 F.2d 1290, 1297 (7th Cir.1983).
In the, present case, petitioner seeks to recover fees and costs under § 2412(d). Respondents argue that petitioner does not qualify for an award because the present action is not a "civil action," because petitioner is not a "prevailing party" and because the United States's position was "substantially justified." I address each of these arguments below.
I ask first whether the phrase civil action encompasses a habeas corpus action and conclude that it does. The phrase, civil action is unambiguous, and an action for habeas corpus is without question a civil action. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 14, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (O'Connor, J., dissenting) (); Cross v. Burke, 146 U.S. 82, 88, 13 S.Ct. 22, 36 L.Ed. 896 (1892) ().
Contrary to O'Brien v. Moore, 395 F.3d 499, 504 (4th Cir.2005), and Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th Cir. 1987), the fact that a habeas action is not a typical civil action does not make the phrase civil action ambiguous. Courts should not read into statutes exceptions that are not there. United States v. Wright, 48 F.3d 254, 256 (7th Cir.1995). If Congress had intended to exclude habeas actions from the EAJA, it would have done so as it excluded tort actions. See § 2412(d)(1)(A). Further, excluding habeas actions from the EAJA would thwart at least two of the statute's purposes — deterring unjustified government action and compensating private parties who resist such action. See Berman, 713 F.2d at 1297. The unjustified detention of an individual is probably the most serious type of unjustified government action, and the EAJA contemplates that an individual subject to such action should be compensated for having to defend against it.4
Finally, even if the EAJA could be reasonably read as excluding habeas actions challenging criminal convictions, the same is not true of habeas actions challenging administrative detention. See Vacchio Ashcroft, 404 F.3d 663, 672 (2d Cir.2005) (...
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...given of one's own free will"). EAJA's purpose is to "discourage the federal government from using its superior resources unreasonably." Kholyavskiy v. Schlecht, 479 F. Supp. 2d 897, 903 (E.D. Wis. 2007). It is essentially an "anti-bully" law. Id. If the Court were to adopt respondents' vie......