Opinion
NO. CIV. S-07-2415 LKK/KJM.
February 9, 2009
ORDER
Plaintiff is an applicant for naturalization who brought suit in this court against defendants Shelby Harris, Jonathan Scharfen, Michael Chertoff, Michael Mukasey, and Robert Mueller due to the untimely resolution of his naturalization petition. Upon the stipulation of the parties, the case was remanded to the United States Citizenship and Naturalization Services (CIS) for adjudication of plaintiff's petition. Plaintiff now seeks attorneys' fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.
I. BACKGROUND
Plaintiff filed his complaint in this court on November 8, 2007. In it, he alleged that he was a lawful permanent resident of the United States and had applied for naturalization on December 1, 2004. He alleged that at his examination, he was told by the CIS examiner that his application was approved pending the results of the FBI's background check. At the time of filing his complaint, there had not been a final determination on his application.
Plaintiff's complaint alleged that defendants violated 8 C.F.R. § 335.3, which requires CIS to make a decision on a naturalization petition within 120 days of the initial examination. As a result of CIS's delay, plaintiff requested the court to adjudicate his application, pursuant to 8 U.S.C. § 1447(b).
On July 14, 2008, the parties submitted a stipulation to the court to remand the case to CIS. It explained, "This is an immigration case in which plaintiff has filed to challenge [CIS's] failure to timely adjudicate his naturalization application and to seek de novo review of this application. As of the time of this filing, the agency is prepared to adjudicate the application." If CIS failed to make a determination on the petition within sixty days, the parties agreed that the court would have jurisdiction to adjudicate the petition. The court approved the stipulation by order on July 22, 2008, remanding the case to CIS. It is based upon this order that plaintiff asserts that attorneys fees are proper.
II. STANDARD
Under the Equal Access to Justice Act, a court "shall award" attorney fees, costs and other expenses to a "prevailing party" in a civil 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." 28 U.S.C. § 2412(d)(1)(A).In the absence of a statutory definition, a plaintiff is a "prevailing party" for purposes of the EAJA if he or she "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." See United States v. Real Property Known as 22249 Dolorosa Street, 190 F.3d 977, 981 (9th Cir. 1999) (internal citations and quotation marks omitted). A plaintiff is not entitled to attorney fees, costs and other expenses in a civil action against the United States, despite satisfying the "prevailing party" test, if the government, bearing the burden of proof, demonstrates that its position "was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A);see Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir. 1988).
An application for attorneys' fees under the EAJA must be brought within thirty days of the final judgment, although it is tolled during the ninety days thereafter when the plaintiff may seek review by the Supreme Court or if the matter is remanded to an agency. Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007);Al-Harbi v. INS, 284 F.3d 1080, 1082-84 (9th Cir. 2002).
III. ANALYSIS
Plaintiff requests $4,880.45 in attorneys' fees and costs. For the reasons stated herein, the court awards $4,951.20.
A. Prevailing Party
The parties first dispute whether plaintiff was the prevailing party so that an award of attorneys' fees is proper under the EAJA. A party is a prevailing party if it "succeed[ed] on any significant issue in litigation which achiev[ed] some of the benefits" it sought in bringing suit. National Wildlife Federation v. Federal Energy Regulatory Comm'n, 870 F.2d 542, 544 (9th Cir. 1989). Instead, there must be a "judicial imprimatur" that changes the legal relationship of the parties. Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002). An agreement between the parties that is adopted as an order of the court can suffice. Carbonell v. I.N.S., 429 F.3d 894, 900-901 (9th Cir. 2005) (court-ordered stay of deportation, upon the stipulation of the parties, rendered plaintiff a prevailing party). Moreover, a plaintiff can be a prevailing party on an action even if he does not win the underlying relief he seeks from the agency. See, e.g., Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th Cir. 1997). (remand to INS to reconsider a prior decision sufficed to give plaintiff prevailing party status, regardless of whether he ultimately prevailed in the agency action). A plaintiff may also be a prevailing party even if his claim later becomes moot. Watson, 300 F.3d at 1096;Williams v. Alioto, 625 F.2d 845, 847 (9th Cir. 1980);Californians for Alternatives to Toxics v. U. S. Forest Service, No. S-05-1502, 2007 WL 2993132 (E.D. Cal. Oct. 11, 2007) (Karlton, J.).
Here, the court disagrees with defendants' contention that plaintiff was not the prevailing party. He filed his suit in this court because CIS had allegedly failed to timely adjudicate his naturalization petition and he sought review of that petition. By remanding the case to the CIS, the court effectuated that review, albeit by CIS rather than the court. In that sense, plaintiff obtained the relief he sought. It is of no import to the prevailing party analysis that the remand occurred upon the stipulation of the parties or that the timeliness of the petition's adjudication may have become moot if CIS eventually denied it. See Carbonell, 429 F.3d at 900-901; Watson, 300 F.3d at 1096. There was, in this case, a "judicial imprimatur" on the changed relationship between the parties by which CIS was required to review plaintiff's petition within sixty days. This suffices to render him the prevailing party in his action.
B. Substantial Justification of the Government's Position
Defendants argue that the agency's underlying position of untimely disposition of plaintiff's application was substantially justified because CIS has a policy of delaying adjudication of an application until the background check is complete. They rely on the 1998 Appropriations Bill, which provided that CIS may not complete adjudication of an application until the F.B.I. background check is completed. H.R. 2267, PL 105-119, 105th Cong., at 2448 (1997).
Be that as it may, the plaintiff's contention that a delay of several years to complete a background check is well-taken. Defendants have not offered any justification for this delay. In a similar case, another district court has pointed out that the relevant regulations instruct CIS to conduct the examination after completion of the background check, which would facilitate timely adjudication. Castracani v. Chertoff, 377 F. Supp. 2d 71, 74 n. 8 (D.D.C. 2005) citing 8 C.F.R. § 335.2. Here, without any explanation of why that process was not followed here nor why the background check took so long to complete, the court cannot conclude that defendants' position was substantially justified.
C. Amount of Award
The starting point for calculating the amount of a reasonable fee is the number of hours reasonably expended multiplied by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Under the EAJA, attorneys' fees are award at an hourly rate of $125, unless the court determines a cost-of-living increase or "a special factor, such as the limited availability of qualified attorneys for the proceedings involved" warrant a rate increase. 28 U.S.C. § 2412(d)(2)(A). Here, plaintiff seeks attorneys' fees at $125 per hour. See Motion for Award of Attorney's Fees at 5. There is no evidence tendered to the court as to why that fee is not appropriate.
A court may only award attorney fees for those hours reasonably expended, excluding any "excessive, redundant, or otherwise unnecessary" hours. Hensley, 461 U.S. at 434. Time expended on the fee motion can be included in the award. Commissioner, INS v. Jean, 496 U.S. 154, 162 (1990).
Here, plaintiff's counsel has tendered evidence supporting his representation of having spent 35.5 hours on this case. Motion for Award of Attorney's Fees, Ex. 4. A review of his time log indicates that this is a fair representation of the work expended and does not contain redundancies or otherwise reflect inflated figures. The court does note, however, that counsel misadded his time for July 2008; the correct figure for that month appears to have been five, not four, hours. Id. The court therefore awards plaintiff 36.5 hours in attorneys' fees.
Finally, the EAJA provides that the prevailing party can recover litigation expenses and costs in addition to attorneys' fees. 28 U.S.C. § 2412(a)(1); § 2412(d)(1)(A). "Expenses" includes those that are normally billed a client, such as telephone calls, postage, and attorney travel expenses.International Woodowrkers, Local 3-98 v. Donovan, 792 F.2d 762, 767 (9th Cir. 1986). Here, plaintiff's counsel has tendered evidence that he incurred expenses for copying and filing fees, totaling $388.70. Motion for Award of Attorney's Fees, Ex. 4. He also claims an expense of $54.25 in November 2008, with no explanation of what it was. Id. The court therefore declines to award that cost and awards only $388.70 in costs.
IV. CONCLUSION
For the reasons stated herein, plaintiff's motion for attorney's fees is GRANTED. Plaintiff is awarded $4,562.50 in fees and $388.70 in costs, for a total award of $4,951.20.
IT IS SO ORDERED.