Tovar v. Zuchowski
| Decision Date | 21 July 2022 |
| Docket Number | 21-35664 |
| Citation | 41 F.4th 1085 |
| Parties | Maria del Carmen MEDINA TOVAR; Adrian Jovan Alonso Martinez, Plaintiffs-Appellants, v. Laura B. ZUCHOWSKI, Director, Vermont Service Center, United States Citizenship and Immigration Services; Alejandro N. Mayorkas, Secretary, Department of Homeland Security ; Merrick B. Garland, Attorney General, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Philip James Smith (argued), Nelson Smith LLP, Portland, Oregon, for Plaintiffs-Appellants.
Aaron S. Goldsmith (argued), Senior Litigation Counsel; Jeffrey S. Robins, Deputy Director; William C. Peachey, Director; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
Before: David M. Ebel,* William A. Fletcher, and Richard R. Clifton, Circuit Judges.
Plaintiffs Maria Medina Tovar and Adrian Alonso Martinez brought this action challenging the denial of Ms. Medina Tovar's petition seeking derivative U-visa status for her husband. United States Citizenship and Immigration Services ("USCIS") denied the petition based on its regulation limiting derivative U-visa status to spouses married at the time the principal petition is filed. On rehearing en banc, our court invalidated the regulation as inconsistent with the governing statute. Medina Tovar v. Zuchowski , 982 F.3d 631, 633 (9th Cir. 2020).
Having prevailed on the merits, Plaintiffs filed in the district court an application for attorneys' fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The district court denied the application because it determined that the government's position was substantially justified, which precludes a fee award under the EAJA. This appeal followed. Because we conclude that the district court did not abuse its discretion in so concluding, we affirm.
Although Plaintiffs' underlying challenge has been resolved in their favor and is no longer at issue, to put the current question into focus we start by describing that dispute and its progress through the courts.
A "U visa" is a nonimmigrant visa designed to grant legal status to a non-citizen victim of violent crime who assists law enforcement in its investigation. The requirements for a principal applicant to obtain a U visa are set forth in 8 U.S.C. § 1101(a)(15)(U)(i). A qualifying U-visa recipient may also petition for derivative status for a qualifying spouse who is "accompanying or following to join" the U-visa holder. Id. § 1101(a)(15)(U)(ii). USCIS adopted a regulation interpretating and implementing the U-visa statute, providing, in relevant part, that "the relationship between the U-1 principal alien and the qualifying family member must exist at the time [the principal petition] was filed." 8 C.F.R. § 214.14(f)(4).
Plaintiffs are a married couple, both of whom are natives and citizens of Mexico. In 2004, Ms. Medina Tovar was the victim of a serious crime and assisted law enforcement with the investigation. She applied for U-visa status in 2013 by filing a principal petition with USCIS. She married the second plaintiff, Mr. Alonso Martinez, in 2015. Ms. Medina Tovar's U visa was granted soon thereafter. A few months after that, she filed a petition for derivative U-visa status for her husband. USCIS denied the petition on the basis that Plaintiffs were not married at the time the principal petition was filed, as required by the USCIS regulation.
Plaintiffs filed an action in federal court challenging the denial of their derivative petition and seeking to invalidate the regulation as inconsistent with the governing statute. The district court granted summary judgment to the government. It determined that (1) the statute did not directly address the question of when the marital relationship must exist for a derivative spouse to be eligible, and (2) the temporal component of the regulation was a reasonable interpretation and thus entitled to Chevron deference. Medina Tovar v. Zuchowski , No. 3:17-cv-00719-BR, 2017 WL 6453345, at *4–6 (D. Or. Dec. 15, 2017) ; see Chevron U.S.A., Inc. v. Nat'l Res. Def. Council , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
On appeal, a three-judge panel of this court affirmed the district court's judgment in a split decision. Medina Tovar v. Zuchowski , 950 F.3d 581 (9th Cir. 2020). The panel majority agreed that the statute was ambiguous and that the agency's reasonable interpretation was owed Chevron deference. Id. at 587–92. The majority focused its analysis of the statute on the phrase "accompanying, or following to join." Id. at 587. The dissent focused on the same language but concluded that the regulation's temporal requirement was contrary to the statute's plain meaning. See id. at 594 (Watford, J., dissenting).
On rehearing en banc, a panel of eleven judges of this court reached a different conclusion. The en banc majority reversed the judgment of the district court and invalidated the regulation insofar as it required the petitioning spouses to be married at the time the principal petition is filed rather than when it is granted. Medina Tovar , 982 F.3d at 633. Like the panel majority, the en banc majority opinion, joined by six judges, viewed the case as turning on the "accompanying, or following to join" language in the statute, but it concluded that the statute "clearly answer[ed] the relevant interpretive question." Id. at 635–37. Three judges dissented, largely adopting the reasoning of the district court and three-judge panel majority. See id. at 644–48 (Callahan, J., dissenting). Two judges concurred in the judgment, but for reasons different from those expressed in the majority opinion.1 See id. at 637–44 (Collins, J., concurring).
The EAJA provides, subject to exceptions not relevant here, that in an action brought by or against the United States, a court must award fees and expenses to a prevailing non-government party "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). The district court here denied Plaintiffs' application for attorneys' fees and costs under the EAJA because it concluded that the government's position at the agency level and in the courts was substantially justified.
We review the district court's denial of fees under EAJA for abuse of discretion. Gonzales v. Free Speech Coal. , 408 F.3d 613, 618 (9th Cir. 2005). "A district court abuses its discretion when it fails to apply the correct legal rule or its application of the correct legal rule is illogical, implausible or without support in inferences that may be drawn from the facts in the record." Meier v. Colvin , 727 F.3d 867, 869–70 (9th Cir. 2013). "Abuse of discretion is a highly deferential standard, under which the appellate court cannot substitute its view of what constitutes substantial justification for that of the district court; rather, the review is limited to assuring that the district court's determination has a basis in reason." Free Speech Coal. , 408 F.3d at 618 (citation and internal quotation marks omitted).
It is undisputed that Plaintiffs here are the prevailing parties in a civil action brought against the United States. The question before us, then, is limited to whether the district court abused its discretion in finding the government's position substantially justified.2 Because this case posed a novel legal question of statutory interpretation, as to which many judges reached conflicting conclusions, and ultimately resulted in this court rehearing the matter en banc, we conclude that the district court did not abuse its discretion.
It is the government's burden to show that its position was substantially justified. Gutierrez v. Barnhart , 274 F.3d 1255, 1258 (9th Cir. 2001). "In this circuit, we apply a reasonableness standard in determining whether the government's position was substantially justified for purposes of the EAJA." Flores v. Shalala , 49 F.3d 562, 569 (9th Cir. 1995). "Substantially justified" means "justified to a degree that could satisfy a reasonable person." Meier , 727 F.3d at 870 (quoting Pierce v. Underwood , 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ). "The government's position is not substantially justified simply because our precedents have not squarely foreclosed the position." Decker v. Berryhill , 856 F.3d 659, 664 (9th Cir. 2017). Rather, "the government's position must have a ‘reasonable basis both in law and fact.’ " Meier , 727 F.3d at 870 (quoting Pierce , 487 U.S. at 565, 108 S.Ct. 2541 ).
For purposes of evaluating the government's position, "[t]he ‘position of the United States’ includes both the government's litigation position and the underlying agency action giving rise to the civil action." Meier , 727 F.3d at 870 ; see also 28 U.S.C. § 2412(d)(2)(D). We examine "the position on the merits" and consider any "extraneous circumstances bearing upon the reasonableness of the government's decision."
Or. Nat. Res. Council v. Madigan , 980 F.2d 1330, 1331–32 (9th Cir. 1992) (quoting Kali v. Bowen , 854 F.2d 329, 332 (9th Cir. 1988) ).
"On the merits, we are bound by the previous panel's holding and rationale ...." Id. at 1332. On rehearing en banc, we held that the temporal limitation imposed by the regulation was inconsistent with the statutory language. The contrary position advocated by the government was that the language of the governing statute permitted it to limit derivative U visas to couples who were married when the principal petition was filed.3 That our court did not adopt the government's argument does not necessarily mean that the argument was unjustified. See United States v. Marolf , 277 F.3d 1156, 1162 (9th Cir. 2002) ...
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