Pollgreen v. Morris
| Decision Date | 07 September 1990 |
| Docket Number | No. 89-5767,89-5767 |
| Parties | Thomas C. POLLGREEN, Floyd Roseman, and Abelardo Vazquez, Plaintiffs-Appellees, v. Raymond A. MORRIS, District Director of United States Immigration & Naturalization Service, Durward E. Powell, Regional Commissioner of United States Immigration & Naturalization Service, Douglas D. Angle, District Director of the United States Customs Service, Robert N. Battard, Regional Commissioner of the United States Customs Service, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert Kendall, Jr., Asst. Director, Office of Immigration Litigation, Michael Robinson, U.S. Dept. of Justice, Civil Div., Appellate Staff, Washington, D.C., for defendants-appellants.
Diane Tolbert Covan, New York City, for plaintiffs-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and COX, Circuit Judges, and DYER, Senior Circuit Judge.
The United States appeals the district court's award of Equal Access to Justice Act (EAJA) attorney's fees in a case involving plaintiffs' successful challenge to the imposition of fines and seizure of their fishing boats for transporting Cuban aliens seeking asylum to the United States. The government contends that the court should not have awarded attorney's fees for work performed during administrative hearings and should not have doubled the statutory hourly rate of $75. We agree with the government that the administrative hearings at issue did not constitute adversarial proceedings within the meaning of section 2412(d)(3) of the EAJA. Nevertheless, we affirm the district court's award of fees because they were warranted under section 2412(d)(1) of the EAJA as being incurred by a party in "any civil action." Because it is unclear to what extent, if any, the district court's doubling of the statutory hourly rate was premised on impermissible criteria, we remand the matter to the district court for further consideration and clarification.
The facts of the underlying action are neither contested nor directly relevant to this fee dispute. An understanding of the interrelationship between the administrative proceedings and the civil actions in this case, however, is essential to determining whether attorney time expended in the administrative actions may be considered in a fee award under the EAJA. Additionally, an appreciation of the protracted nature of this extraordinary litigation 1 provides a useful perspective on the district court's The case involved a well publicized effort by Key West fishermen in 1980 to transport Cuban refugees seeking political sanctuary to Florida. Pollgreen, 579 F.Supp. at 714. Many of the fishermen, including the plaintiffs in this case, 2 intended to transport only a limited number of specified persons, mostly relatives and friends, who they believed had valid visas for entry into the United States. Id. at 715. Due to several statements from President Carter and the vacillating positions of the executive branch, the plaintiffs reasonably believed that they were acting with the approval of the government. Pollgreen, 770 F.2d at 1538-40; Pollgreen, 579 F.Supp. at 717. Once the plaintiffs arrived at Cuba's Mariel Harbor, they were forced by armed soldiers of the Cuban government to take on board scores of other Cuban nationals whose entry into the United States was illegal. Pollgreen, 579 F.Supp. at 715-17. When the plaintiffs returned to the United States, the Customs Service and the Immigration and Naturalization Service (INS) seized their fishing boats and served each plaintiff with a Notice of Intention to Fine Under Immigration and Nationality Act. Pollgreen, 496 F.Supp. at 1048.
determination of the appropriate fee amount.
On June 4, 1980, plaintiffs demanded either the return of their vessels or that they be permitted to avail themselves of administrative mechanisms providing for the expeditious return of improperly seized vessels. Id. at 1048. The government denied both requests, asserting that the defendants were only entitled to challenge the fines under 8 C.F.R. Sec. 280. Id. at 1048. The plaintiffs responded by bringing an action in federal court against the appropriate representatives of the INS and the Customs Service, seeking both a declaration that the vessel seizures were unlawful and an injunction enjoining the defendants from seizing the boats or levying fines. Id. at 1048. On June 25, 1980, as modified on July 7, 1980, the district court found that the defendants' refusal to provide plaintiffs with a prompt post-seizure hearing on the propriety of the boat seizures was an unconstitutional deprivation of due process. Id. at 1052-54. Additionally, the court found that the plaintiffs were likely to prevail, with a defense of duress, on their challenge to the seizure of the boats. Id. at 1054-55. The court, therefore, issued a preliminary injunction that permitted the boats to be used for fishing operations. Id. at 1057-58.
The plaintiffs then pursued administrative remedies before the District Director of the INS. The Director imposed a total of nearly five million dollars in fines on the fishermen. See 770 F.2d at 1541 n. 13. A substantial majority of these fines were affirmed by the Board of Immigration Appeals (BIA). Id. at 1542. Both the Director and the BIA refused to recognize duress as a defense to the imposition of the fines, asserting that the fishermen's intent was irrelevant to their liability. Id. at 1542-43.
Returning to federal court, the plaintiffs challenged the imposition of the fines and sought to permanently enjoin the government from seizing their vessels. Pollgreen, 579 F.Supp. at 712. The court granted the vessel owners' motion for summary judgment and issued a permanent injunction returning the boats to the owners free of all claims by the government. Id. at 723-24. The court determined that the owners had conclusively established the defense of duress and that the failure of the INS to consider the defense was "arbitrary, capricious and constituted an abuse of discretion." Id. at 718, 722-23. The district court, therefore, found that the fines were imposed unlawfully. Id. at 724.
The Eleventh Circuit affirmed the court's holding that the duress defense was applicable, but vacated the court's review of the actual merits. Pollgreen, 770 F.2d at 1544. We directed the district court to remand the cases to the INS for "rehearing, reconsideration, and redetermination" of the plaintiffs liability in light of the duress defense. Id. at 1546. Noting that the so that (i) a composite hearing with respect to common issues can be held while allowing (ii) facts peculiar to each vessel owner to be independently ascertained and determined with (iii) a single appeal with appropriate subparts to this Court.
cases were by that point over five years old, we exercised our supervisory power to direct that the agency proceedings be "held without delay and expedited." Id. at 1546 (footnote omitted). To accomplish this end, we instructed the agency to devise a system
On February 13, 1986, the district court entered an order remanding the proceedings to the INS and directing that they be conducted in accordance with the Eleventh Circuit's instructions. In a separate order, the court reserved ruling on a motion for attorney's fees because such an award would be premature until the administrative proceedings had been completed. Subsequently, on February 1, 1988, the INS vacated its prior decisions pertaining to the plaintiffs who had sought redetermination and ruled that no fines should be imposed.
On July 12, 1988, plaintiffs filed a re-amended motion for attorney's fees under the EAJA. Following an evidentiary hearing, the court granted the plaintiffs' motion and awarded their attorney, Diane Tolbert Covan, $181,080 in fees. The court found that Covan had spent 1207.2 hours on this litigation from May 21, 1980, through February 26, 1988. In this calculation, the court included time spent litigating the case before the district court, the INS, and the Eleventh Circuit. 3 The court also found that "exceptional and unusual" circumstances existed to warrant the doubling of the statutory $75 hourly fee to $150 an hour. In this appeal the government contests both the amount of hours eligible for billing under the Act and the doubling of the statutory hourly fee.
The EAJA provides that:
a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ... including 28 U.S.C. Sec. 2412(d)(1)(A). Additionally, the EAJA authorizes fee awards for litigation before an agency that conducts adversary adjudications unless the position of the United States was substantially justified or special circumstances make a fee award unjust. 28 U.S.C. Sec. 2412(d)(3); Sullivan v. Hudson, --- U.S. ----, ----, 109 S.Ct. 2248, 2257-58, 104 L.Ed.2d 941 (1989); see 5 U.S.C. Sec. 504(a) & (b)(1)(C).
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.
A party seeking an award for fees incurred in either a civil action or an adversary agency adjudication is entitled to fees provided that 1) it is the prevailing party; 2) its application for fees is timely; 3) the position of the government was not substantially justified; and 4) no special circumstances make an award unjust. Canady v. Sullivan, 893 F.2d 1241, 1243 (11th Cir.1990) (per curiam); see Hudson, --- U.S. at ----, 109 S.Ct. at 2253, 2255; Jean v. Nelson, 863 F.2d 759, 765 (11th Cir.1988), aff'd, --- U.S. ----, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). The district court found that the plaintiffs satisfied...
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