United States District Court, N.D. Illinois, Eastern Division
June 15, 2004.
MICHAEL BABEL, IRINA BABEL, EVELIN BABEL and ROSTISLAV BABEL, Plaintiffs,
U.S. DEPARTMENT OF HOMELAND SECURITY, Secretary TOM RIDGE; UNITED STATES CITIZENSHIP and IMMIGRATION SERVICES, DONALD J. MONICA, Interim District Director, and JOHN ASHCROFT, United States Attorney General, Defendants.
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Michael Babel, Irina Babel, Evelin Babel, and
Rostislav Babel, immigrants of Russia, filed a Complaint for Writ
of Mandamus against John Ashcroft, United States Attorney
General, and Brian Perryman, District Director of Chicago of
Chicago Immigration and Nationalization Service ("INS")*fn1
to compel action on their applications for lawful permanent
resident status ("I-485") properly filed with the INS in Chicago.
(R. 1-1, Pl.'s Comp. ¶ 1.). Defendants ultimately denied
Plaintiffs' applications for permanent resident status. (R. 17-1,
Pl.'s App. for Fees and Costs ¶ 4.). Plaintiffs subsequently
orally moved the court to dismiss their case on December 15,
2003, and the court granted their motion. (Id. at ¶ 8.). On
January 15, 2004, Plaintiffs filed this application for fees and
costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412 ("E.A.J.A.").
For the reasons stated below, the Court denies Plaintiffs'
application for fees and costs pursuant to the E.A.J.A.
The E.A.J.A. permits courts to award costs, attorney's fees,
and other expenses to a "prevailing party" in any civil action
against the United States or one of its agencies, unless the
court finds that the United States' position was substantially
justified or that special circumstances existed that would make
an award unjust. 28 U.S.C. § 2412(d)(1)(A). A party must meet the
following four requirements before the party can recover under
the E.A.J.A.: (1) if the party is an individual, his net worth
must not exceed $2,000,000 at the time the civil action is filed;
(2) the party "prevailed" in the action; (3) the position of the
United States was not substantially justified; and (4) there are
no special circumstances that would make an award unjust. United
States v. Eighty-Eight Designated Accounts, 786 F. Supp. 1578,
1579 (S.D. Fla. 1992). The E.A.J.A. mandates that a party seeking
relief satisfy each of the statute's enumerated requirements. The
E.A.J.A. provides that a court must base attorney's fees upon the
current market rates for the type of services provided and that
it may not award fees in excess of $125.00 per hour unless the
court decides that certain factors, such as an increase in the
cost of living, justify an increase in the statutory limit.
28 U.S.C. § 2412(d)(2)(A).
Plaintiffs filed a complaint on July 22, 2002, to compel the
District Director of the USCIS to adjudicate their applications
for lawful permanent resident status which had been pending since
February 5, 1999. (R. 17-1, Pl.'s App. for Fees and Costs ¶ 4.).
Subsequent to the filing of the complaint, Defendants voluntarily
scheduled Plaintiffs for interviews on their applications, but
continued to delay final adjudication of them. Id. After a
second interview on December 3, 2003, Defendants denied Michael Babel's application
for permanent resident status, stating that because he was a
fugitive of Russia, the United States Department of Homeland
Security ("DHS") could not grant him lawful residency. (Id. at
¶ 8-9.). The DHS denied the remaining Plaintiffs' applications
given that the approval of their applications was contingent upon
the principal applicant's acceptance for lawful permanent
resident status. (Id. at ¶ 9.).
Because they received a final adjudication on their
applications, Plaintiffs orally dismissed their case on December
15, 2003. (Id. at ¶ 9.). The Court did not enter a final
judgment or decree for Plaintiffs. On March 12, 2004, the DHS
approved Plaintiffs' applications for adjustment of status,
granting Plaintiffs lawful permanent resident status pursuant to
their I-485 applications. (R 20-1, Pl.'s Mtn. to Supp. App. for
E.A.J.A. Fees and Costs, ¶ 1.).
Plaintiffs assert that they are entitled to compensation of
attorney's fees and costs pursuant to the E.A.J.A. because they
are the prevailing party in the litigation and because
Defendants' action in delaying the adjudication of their
applications for resident status was not substantially justified.
Plaintiffs further assert that the approval for adjustment of
their resident status indicates that they are the prevailing
party because they received a favorable ruling on their claims
for relief. Plaintiffs argue that the term "prevailing party"
must be liberally construed under the Supreme Court's ruling in
Hensley v. Eckerhart, 461 U.S. 424 (1983), which stated that
"[P]laintiffs 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 the suit." Id. at 433.
Plaintiffs also contend that the United States was not
substantially justified in delaying adjudication of their applications because Defendants did not
provide a reasonable basis in law or fact for the delay.
Specifically, Plaintiffs claim that Defendants never requested
any further documentation relating to Plaintiff Michael Babel's
alleged fugitive status in Russia and that Defendants' assertion
that Babel was a fugitive was merely conclusory.
Defendants counter that Plaintiffs are not eligible for
recovery under the E.A.J.A. because they are not the prevailing
party for purposes of the E.A.J.A. and because Plaintiffs have
not offered any evidence to indicate that their net worth is less
than $2,000,000. Defendants further argue that they were
substantially justified in requiring a complete background check
before granting Plaintiffs permanent resident status. They
contend that the delay in the adjudication of the applications
fell within the discretion of the United States Attorney General
and his delegates.
I. Plaintiffs are not a "Prevailing Party" in the Litigation
The main issue in this case is whether Plaintiffs obtained
prevailing party status in this litigation in order to recover
under the E.A.J.A. If Plaintiffs are not considered a prevailing
party in the litigation, then they cannot recover fees and costs
under the E.A.J.A.
The standards used in defining the term "prevailing party" are
generally applicable to all fee-shifting statutes that authorize
an award of fees and costs to a prevailing party. Buckhannon v.
W. Virginia Dept. of Health and Human Res., 532 U.S. 602, 604
(2001). Generally, a "prevailing party" is one who is granted
some relief by the court, concerning a significant issue in the
litigation, by either a judgment on the merits or a court ordered
consent decree. Buckhannon, 532 U.S. 598 at 602.
Plaintiffs rely primarily on two cases, Hensley and Texas
State Teachers' Ass'n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 790 (1989), to support their claim that they are the prevailing party in the litigation because the final adjudication
on their applications for residency "represents a significant
achievement of the benefits sought in bringing the suit." See
Hensley, 461 U.S. at 433. The Hensley and Texas Courts,
however, did not address whether a party may obtain prevailing
party status in the litigation when that party was not provided
judicial relief subsequent to the filing of their complaint.
Rather, in those cases, the issue was whether a party that
prevails on some, but not all issues in the litigation, may be
deemed a prevailing party for purposes of a fee-shifting statute.
Neither court determined whether a party may obtain prevailing
party status through a voluntary change in the defendant's
Plaintiffs also fail to address the more recent outcome in
Buckhannon in which the Supreme Court stressed that a court
cannot deem a party "prevailing" unless that party is granted
some sort of relief by the court through either a judgment on the
merits or by a court ordered consent decree that alters the legal
relationship of the party. Buckhannon, 532 U.S. 598 at 602.
Although the application for fees and costs in Buckhannon was
filed under the fee shifting provisions of the Americans with
Disabilities Act of 1990, ("ADA") and the Fair Housing Amendments
Act of 1988 ("FHAA"), the Buckhannon court acknowledged that
the term "prevailing party" should be interpreted consistently
among the numerous fee shifting statues authorized by Congress.
Id. Thus, the Buckhannon Court's interpretation of what
constitutes a prevailing party is applicable to the prevailing
party provision of the E.A.J.A.
Although Defendants eventually adjudicated Plaintiffs'
applications for permanent resident status, such adjudication did
not result from any judicial judgment. Rather, Defendants
voluntarily adjudicated petitioners' applications subsequent to
the filing of the complaint. Thus, in accordance with
Buckhannon, although the initiation of Plaintiffs' lawsuit
ultimately brought about the desired outcome in their claims for
relief, Plaintiffs cannot be deemed the prevailing party because Defendants' voluntary change in conduct "lacks the
necessary judicial imprimatur on the change," required under
Plaintiffs reliance on Illinois Migrant Council v. Pilliod,
672 F. Supp. 1072, 1075 (N.D. Ill. 1987), for the proposition that
a party may be considered a prevailing party in the litigation
even when the case is voluntarily dismissed fails in light of
Buckhannon and T.D. v. Lagrange Sch. Dist., 349 F.3d 469, 478
(7th Cir. 2003). In T.D., for example, the Seventh Circuit
interpreted the prevailing party requirement of a fee-shifting
statute to mean that the litigant must obtain some sort of
judicially sanctioned relief and that even private settlement
agreements lack the judicial approval and oversight required for
prevailing party status. 349 F.3d at 478. See also Kolman v.
Shalala, 39 F.3d 173, 175 (7th Cir. 1994) (stating, "basis
for award of attorney's fees under E.A.J.A. . . . [is] success in
court."); see also Fed'n of Adver. Indus. Representatives, Inc.,
v. City of Chicago, 326 F.3d 924 (7th Cir. 2003) (holding
that plaintiffs did not achieve "prevailing party," status
because the defendants voluntarily repealed the city ordinance
challenged in the litigation).
Thus, although Plaintiffs' applications for residency were
voluntarily adjudicated by the Defendants, because Plaintiffs did
not receive a judgment on the merits, a court ordered consent
decree, or any other form of judicial sanction, they cannot be
considered a prevailing party for purposes of the E.A.J.A.
Therefore, their application for fees and costs fails.
II. Defendants were Substantially Justified in Delaying the
Adjudication of the Plaintiffs' Applications
Assuming arguendo that Plaintiffs achieved prevailing party
status, the E.A.J.A. nonetheless bars their recovery because
Defendants had a substantial justification for the lengthy
adjudication of Plaintiffs' applications for permanent resident
status. The DHS, CIS denied Plaintiff Michael Babel's application for permanent resident
status, indicating that he was a fugitive of Russia. (R. 17-1,
Pl.'s App. for Fees and Costs ¶ 9.). Plaintiffs argue that
because the Defendants did not have concrete evidence regarding
Michael Babel's alleged fugitive status, and that because Michael
Babel's ability to enter and leave Russia suggested that he was
not a fugitive, Defendants' delay in adjudicating their
applications was not substantially justified.
The E.A.J.A. requires the party seeking compensation to allege
that the government's actions were not substantially justified
and places the burden on the government to prove that its actions
were in fact substantially justified. 28 U.S.C. § 2412(d)(2)(D).
The term "substantially justified" simply means that the
government must have a reasonable basis in both law and fact for
its challenged actions. Pierce v. Underwood, 487 U.S. 552, 565
(1988). Whether the government's position was substantially
justified is within the discretion of the court. Pierce,
487 U.S. 552 at 559.
The FBI provided the DHS with letters informing it that Michael
Babel was the subject of an ongoing criminal investigation in
Russia. (R. 11, FBI Motion, Ex. A & B.) Further, Russian
authorities questioned Babel during a trip to Russia. (R. 17-1,
Pl.'s App. for Fees and Costs ¶ 12.). These facts provided
Defendants a reasonable basis for concern regarding Michael
Babel's application for resident status. Thus, it was properly
within the discretion of the Attorney General to complete a
thorough background check before adjudicating Plaintiff's
application. Defendants did not receive proof that Michael Babel
was not a fugitive until after they denied his application for
residency. Furthermore, under the E.A.J.A., although Defendants'
allegations eventually proved untrue, it does not follow that the
delay in the adjudication was unjustified. See Pierce,
487 U.S. 552 at 566. Rather, Defendants need only prove that they had a
rational basis for delaying the final adjudication of Plaintiffs'
applications, regardless of whether their conclusion that Babel was a fugitive
was incorrect. See id. Accordingly, because it was within the
discretion of the Attorney General to complete a thorough
background check concerning Plaintiff Michael Babel, the lengthy
adjudication of Plaintiffs' applications for permanent resident
status was substantially justified. CONCLUSION
Plaintiffs' application for fees and costs pursuant to the
E.A.J.A. is denied. The E.A.J.A. only allows recovery of
attorney's fees and costs to a prevailing party in the
litigation. Plaintiffs did not achieve prevailing party status
because, although they ultimately achieved the desired outcome in
their claim for relief, they did not receive the judicial relief
required to be deemed a prevailing party. Furthermore, even if
Plaintiffs had obtained prevailing party status, they would still
be barred from recovery under the E.A.J.A. because Defendants'
lengthy adjudication of Plaintiffs' Applications for lawful
permanent resident status was substantially justified.