Salem v. U.S. I.N.S., 00-3053.

• Decision Date: 30 November 2000
• Docket Number: No. 00-3053.,00-3053.
• Citation: 122 F.Supp.2d 980
• Parties: Saed A. SALEM, Plaintiff, v. UNITED STATES of America IMMIGRATION AND NATURALIZATION SERVICE, Janet Reno, Attorney General of the United States, Doris Meissner, Commissioner of the Immigration and Naturalization Service, and Brian Perryman, District Director of the Chicago District Office of the Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Central District of Illinois

122 F.Supp.2d 980

Saed A. SALEM, Plaintiff, v. UNITED STATES of America IMMIGRATION AND NATURALIZATION SERVICE, Janet Reno, Attorney General of the United States, Doris Meissner, Commissioner of the Immigration and Naturalization Service, and Brian Perryman, District Director of the Chicago District Office of the Immigration and Naturalization Service, Defendants.

No. 00-3053.

United States District Court, C.D. Illinois.

November 30, 2000.

Michael R. Lied, Peoria, IL, for plaintiff.

James A. Lewis, Springfield, IL, for defendants.

OPINION

RICHARD MILLS, District Judge.

But it too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice. Law-abiding people can go nowhere else to learn the ever changing and constantly multiplying rules by which they must behave and to obtain redress for their wrongs.

Hickman v. Taylor, 329 U.S. 495, 514-15, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (Jackson, J., concurring).

I. BACKGROUND

On February 25, 2000, Saed A. Salem filed a petition for review asking the Court to order the United States of America's Immigration and Naturalization Service ("INS") to approve his 1996 application for naturalization. In his petition, Salem alleged that he is a citizen of the country of Jordan but that he is a permanent resident of the United States of America who is presently residing in Chatham, Illinois.¹ Salem also alleged that on April 3, 1996, while living and working in Milwaukee, Wisconsin, he filed an application for naturalization seeking to become a citizen of the United States.²

On November 20, 1997, Salem was interviewed for naturalization by the INS in Milwaukee. In addition, he completed all of the testing necessary to become a naturalized citizen. Thereafter, Salem moved to Springfield, Illinois, to begin new employment. Salem's wife, however, did not want to leave Wisconsin and, therefore, did not accompany him in his relocation to Illinois. Accordingly, Salem and his wife obtained a divorce which became final on June 2, 1998.

In May 1998, Salem was notified to come to the INS office in Milwaukee to be fingerprinted. When Salem did so, he informed the INS officers that he had recently moved to Illinois. The INS officers then notified him that his fingerprinting could not be completed at that time and asked him to provide a letter requesting that his file be transferred to the INS office in Chicago for final processing. Salem complied with the INS directive for a letter requesting the transfer of his application and file to Chicago.

Because he had not received any type of notification for some time from the INS regarding his application for naturalization, Salem retained counsel, and in February 1999, his counsel contacted the INS office in Milwaukee to determine the status of Salem's application. After numerous subsequent contacts by Salem and his counsel, his application and file were transferred from the INS Milwaukee office to its Chicago office on April 13, 1999.

On February 7, 2000, Salem was interviewed by INS officer Nelson Larkins. Larkins informed Salem that, although he was fully qualified for citizenship, Larkins was refusing to approve his application because it had initially been filed based upon his marriage to a United States citizen which had now been dissolved. Larkins asked Salem to withdraw his application and to file a new one. In response, Salem asked Larkins if he could simply check a different box on his application because he was qualified for citizenship based upon a different provision of the Immigration and Naturalization Act. Larkins refused and advised Salem of his right to appeal the decision. Larkins then summoned an appeal officer into the interview, and the appeal officer indicated that she would uphold Larkins' denial of Salem's application.

Due to certain factual disputes (Defendants do not totally agree with the facts alleged in Salem's petition and which are set forth supra), the Court denied Defendants' motion to dismiss on July 6, 2000, and, likewise, denied Salem's motion for judgment on the pleadings on September 1, 2000. Rather than conduct an evidentiary hearing to resolve these factual disputes itself, the Court remanded this case on September 1, 2000, to the Commissioner of the INS. In its Order remanding the case, the Court directed the INS to determine (1) whether Salem's application for naturalization was complete at the time of his initial interview in Milwaukee in 1997 or 120 days thereafter when he was still eligible for naturalization based upon his marital status; (2) why it took such an inordinate amount of time for his application and file to be transferred from the Milwaukee to the Chicago INS office and what, if any, bearing this delay had upon his application; (3) why, if Salem's February 7, 2000, interview constituted the INS's final determination regarding his eligibility for naturalization, it took nearly four years for his application to be processed, and what, if any, bearing this fact had upon his application; and (4) whether Salem's 1996 application can be modified and approved on the alternative basis of his five years of residence in the United States (which was due in part to the INS's inordinate delay in processing his application for naturalization) without having to begin the application process anew.

Salem has now asked the Court to award him attorney's fees and costs, pursuant to the Equal Access to Justice Act, as a result of the Court's September 1, 2000 Order remanding this case to the Commissioner of the INS. 28 U.S.C. § 2412. Defendants object to Salem's motion, asserting that, although he is entitled to costs, Salem is not entitled to attorney's fees because he is not yet a "prevailing party" and because their position was "substantially justified."

II. ANALYSIS

The Equal Access to Justice Act allows a district court to award costs to a prevailing party against the United States. 28 U.S.C. § 2412(a). These costs include:

(1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920. In addition, the Equal Access to Justice Act makes the United States liable for a prevailing party's attorney's fees. 28 U.S.C. § 2412(d). In order for a district court to award attorney's fees pursuant to the Equal Access to Justice Act, the litigant must establish:

(1) that the claimant [is] a "prevailing party"; (2) that the Government's position was not "substantially justified"; (3) that no "special circumstances make an award unjust"; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.

Commissioner, INS v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (citations and footnote omitted). Finally, 28 U.S.C. § 2412(d)(2)(B) defines a "party" as an individual whose net worth did not exceed $2,000.00 at the time the action was filed.

In the instant case, the Court finds that Salem has established all five factors necessary to receive his costs and attorney's fees under the Equal Access to Justice Act. First, Salem's attorney has represented to the Court that Salem has a net worth of less that $2,000.00.³ Second, Salem submitted his application to the Court within 30 days of final judgment in the action and supported his application with an itemized statement. Third, the Court is unaware of—and Defendants have not alleged—any special circumstances which would make an award of attorney's fees and costs to Salem unjust.

Fourth, the Court finds that, contrary to Defendants' assertions, Salem is a "prevailing party" as that term is used in the Equal Access to Justice Act. The United States Supreme Court has explained that "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Texas State Teachers Ass'n v. Garland Independent Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see Shepard v. Sullivan, 898 F.2d 1267, 1271 (7th Cir.1990) (same); see also Maduka v. Meissner, 114 F.3d 1240, 1241 (D.C.Cir. 1997) (explaining that "[a] party has `prevailed' if: (1) the party received a significant part of the relief it sought; and (2) the lawsuit was a catalytic, necessary or substantial factor, see Tucson Medical Center v. Sullivan, 947 F.2d 971, 982 (D.C.Cir.1991), in obtaining that result. `[T]he claimant must show that it is more probable than not that the government would not have performed the desired act absent the lawsuit.' Public Citizen Health Research Group v. Young, 909 F.2d 546 550 (D.C.Cir.1990)."). Furthermore, the United States Supreme Court has held that a Social Security claimant who obtains a "sentence-four" remand from a district court is considered a "prevailing party" for purposes of the Equal Access to Justice Act regardless of what happens on remand. Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); Perlman v. Swiss Bank Corp. Comprehensive Disability Prot. Plan, 195 F.3d 975, 980 (7th Cir.1999) (concluding that ERISA remands are functionally equivalent to Social Security remands and noting that "obtaining a sentence-four remand makes the claimant a `prevailing party' without regard to what happens on the...