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BABEL v. U.S. DEPARTMENT OF HOMELAND SECURITY

June 15, 2004.

MICHAEL BABEL, IRINA BABEL, EVELIN BABEL and ROSTISLAV BABEL, Plaintiffs,
v.
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.

LEGAL STANDARDS

  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).

  BACKGROUND

  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.).

  ANALYSIS

  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, ...


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