Perales v. Casillas

• Decision Date: 07 January 1992
• Docket Number: No. 90-5590,90-5590
• Citation: 950 F.2d 1066
• Parties: Zulema De La Garza PERALES, et al., Plaintiffs-Appellees Cross-Appellants, v. Richard CASILLAS, et al., Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1066

950 F.2d 1066

119 A.L.R.Fed. 609

Zulema De La Garza PERALES, et al., Plaintiffs-Appellees Cross-Appellants, v. Richard CASILLAS, et al., Defendants-Appellants Cross-Appellees.

No. 90-5590.

United States Court of Appeals, Fifth Circuit.

Jan. 7, 1992.

Ronald F. Ederer, U.S. Atty., San Antonio, Tex., Richard M. Evans, Asst. Dir. Dept. of Justice, Mary K. Doyle, Michael J. Singer, Civ. Div., Appellate Staff, Dept. of Justice, Washington D.C., for defendants-appellants cross-appellees.

Lee J. Teran, San Antonio, Tex., Barbara Hines, Austin, Tex., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GOLDBERG, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from the second round of litigation initiated by several individual plaintiffs and a class of illegal aliens (hereinafter collectively referred to as plaintiffs). Plaintiffs brought a class-action lawsuit against the Immigration and Naturalization Service (INS) and several individual officials (defendants) requesting declaratory, injunctive and mandamus relief requiring the INS to change its method of considering petitions for voluntary departure and employment authorization for certain categories of illegal aliens. Plaintiffs were successful in the district court; however, on appeal to this Court, the challenged portions of the injunction were vacated. Perales v. Casillas, 903 F.2d 1043, 1053 (5th Cir.1990) (Perales I ). While the appeal was pending, plaintiffs were awarded attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Defendants have appealed the award of fees in light of their successful appeal of the merits portion of this case. We vacate and remand the fee award for recalculation in light of our decision in Perales I.

Facts And Proceedings Below

All plaintiffs are married to United States citizens who filed initial immigration petitions on their behalf. Approval of these petitions does not entitle the aliens to visas, however. Because the aliens entered the United States illegally, additional approval from the United States Consulates abroad is required, 8 U.S.C. § 1255a(c), which can take many months. One key requirement for consular approval is a showing that the aliens are not likely to become "public charges." 8 U.S.C. § 1182(a)(4). While awaiting permanent residence status, the aliens are placed in limbo for as long as three years during which time they are subject to deportation by the INS.

The INS has historically followed a general pattern of allowing qualified aliens to remain in the United States under a grant of voluntary departure. In keeping with that policy, the San Antonio INS office (officials of which are defendants herein) routinely granted requests prior to 1984 for voluntary departure and employment authorization. At times, employment authorization was issued automatically even if the alien did not request it. For reasons undisclosed, however, between August 1984 and May 1987 the office failed to adjudicate requests for voluntary departure, and thus effectively also denied all requests for employment authorization, for which voluntary departure status is a prerequisite. Compounding the aliens' distress was the passage in 1986 of the Immigration Reform and Control Act, which makes it unlawful for employers to hire undocumented workers. 8 U.S.C. § 1324a. In the wake of this legislation, plaintiffs faced something of a legal "Catch-22": without documentation, plaintiffs found it difficult to lawfully support their families until visa applications were approved; moreover, without employment, plaintiffs faced denial of their visa applications and exclusion from the United States because of their inability to prove that they were not likely to become public charges.

Plaintiffs filed suit in 1986, seeking declaratory, injunctive and mandamus relief against the INS and several officials. The thrust of plaintiffs' claims was that the INS's failure to act on their requests for voluntary departure and employment authorization violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the Fifth Amendment. Class certification was granted on January 6, 1988. ¹

On November 14, 1988, after a two-day bench trial, the district court issued a lengthy order granting permanent injunctive relief. After first rejecting several jurisdictional arguments raised by the INS (mootness, sovereign immunity and standing), the court announced that it was awarding relief under the APA rather than the Fifth Amendment. The court then issued a four-part permanent injunction providing: (1) All requests for voluntary departure shall be adjudicated within 60 days, as required by 8 C.F.R. § 274a.13(d), ² and applications for voluntary departure and employment authorization shall be considered jointly; (2) all denials of voluntary departure shall be made in writing, in compliance with 8 C.F.R. § 274a.13(c); ³ (3) defendants shall be prohibited from denying requests for employment authorization and voluntary departure on certain enumerated grounds; ⁴ and (4) the INS shall be prohibited from initiating deportation proceedings against class members in retaliation for their requests for relief. ⁵ The court then concluded that the defendants' position in the lawsuit was not "substantially justified," and thus the plaintiffs were accordingly entitled to attorneys' fees under the EAJA. Plaintiffs correspondingly filed a motion for attorneys' fees on December 5, 1988.

Subsequently, on January 13, 1989, defendants appealed parts 3 and 4 of the injunction to this Court. Vacating the challenged portions, this Court held that courts may not circumscribe the discretion granted to the INS in setting factors for reviewing requests for employment authorization and voluntary departure; further, the injunction prohibiting retaliation against all class members was determined to be overbroad. See Perales I, 903 F.2d at 1050-51, 1053.

Meanwhile, pending the appeal on the merits, the district court referred the application for attorneys' fees to a United States Magistrate, pursuant to 28 U.S.C. § 636(b)(1). On March 14, 1990, the magistrate issued a lengthy order focusing primarily on the amount of the award, stating, "[T]hat the government's position was not substantially justified, is clear from the District Court's findings." Addressing an award of fees under the EAJA, the magistrate first observed the two-pronged aspect of the statute. Where the plaintiff prevails and the government's position was not "substantially justified," an award of fees of $75 per hour is permitted; this rate is intended to be a maximum, and may be increased only for cost of living changes or special factors. 28 U.S.C. §§ 2412(a), (d)(1)(A), (d)(2)(B). However, if the government acted in bad faith, "reasonable fees" (i.e., fees not limited by a specified maximum rate) may be awarded. 28 U.S.C. § 2412(b). The magistrate determined that an award of fees under section 2412(b) was warranted because defendants had acted in bad faith by: continuing to refuse to adjudicate requests for voluntary departure for over a year into the litigation; agreeing to change the policy, and then reneging; and attempting to deport class members in retaliation for the lawsuit. Consequently, the magistrate concluded that an award of fees at the market rate of $125 per hour was appropriate. The magistrate alternatively addressed fees under section 2412(d), and concluded that an enhancement to the statutory base rate of $75 per hour for cost of living increase was appropriate, and further, that the adjustment should be made as of the date of the award, and not historically (i.e., per year as the services were rendered). An overall rate of $95 per hour was determined to be appropriate under section 2412(d). Additional enhancements based on special expertise and limited availability of attorneys were rejected, however. After resolving the issues of which hours were to be compensated and which expenses were to be reimbursed, the magistrate ordered an award of $111,631.25 in attorneys' fees (893.05 hours at $125 per hour), $12,180.10 in costs, and $2,745.45 in expenses.

On April 2, 1990 (outside the March 30 deadline), ⁶ defendants filed objections to the magistrate's order. Plaintiffs filed both a motion to extend and their objections on the same day. In attempting to select a standard for reviewing the magistrate's order, the district court raised the question of under which section of the Federal Magistrates Act, 28 U.S.C. § 631 et seq., the magistrate had proceeded. Section 636(b)(1)(A) allows a judge to designate a magistrate to hear and determine any nondispositive pretrial matter. An order issued by a magistrate acting under this provision is reviewed by the district court under the clearly erroneous standard. 28 U.S.C. § 636(b)(1)(A). On the other hand, section 636(b)(1)(B) allows a judge to designate a magistrate to issue recommendations on dispositive matters, which are to be reviewed de novo by the district court. Section 636, however, is silent on which standard should be applied to magistrate rulings on requests for attorneys' fees. After noting a split among the various courts that have considered the issue, the district court finally settled on the clearly erroneous standard. See, e.g., Johnson v. Old World Craftsmen, Ltd., 638 F.Supp. 289, 291 (N.D.Ill.1986) (concluding that the clearly erroneous standard should apply). But see West v. Redman, 530 F.Supp. 546, 548 (D.Del.1982) (finding attorneys' fee issue to require de novo review). Turning to the merits of defendants' objections, the court first noted that the objections were untimely, but then considered them anyway. Despite the court's detailed analysis on the appropriate standard of review, the court ultimately concluded that the magistrate's order "should be affirmed in all...