Opinion
No. 20-cv-02181
2021-03-31
Aziz PULATOV, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
Margaret Deborah Stock, Pro Hac Vice, Cascadia Cross Border Law Group, Anchorage, AK, Michael R. Jarecki, Jarecki Law Group, LLC, Chicago, IL, for Plaintiff. AUSA, Craig Arthur Oswald, Elizabeth Inez Treacy, United States Attorney's Office, Chicago, IL, for Defendants.
Margaret Deborah Stock, Pro Hac Vice, Cascadia Cross Border Law Group, Anchorage, AK, Michael R. Jarecki, Jarecki Law Group, LLC, Chicago, IL, for Plaintiff.
AUSA, Craig Arthur Oswald, Elizabeth Inez Treacy, United States Attorney's Office, Chicago, IL, for Defendants.
ORDER
Andrea R. Wood, United States District Judge
Plaintiff's motion for attorney's fees [19] is granted. Defendants shall pay Plaintiff $13,370.13 in attorney's fees and costs by April 30, 2021. See the accompanying Statement for details.
STATEMENT
Plaintiff Aziz Pulatov was born and raised in Uzbekistan. After moving to the United States in January 2014, Pulatov enlisted in the United States Army through the Military Accessions Vital to the National Interest program, which qualified him for an expedited path to United States citizenship. On June 20, 2017, Pulatov applied for naturalization as a United States citizen. It took more than two years for Pulatov to be interviewed for naturalization. Once that interview occurred, Defendant U.S. Citizenship and Immigration Services ("USCIS") was required by 8 U.S.C. § 1447(b) to adjudicate his naturalization application within 120 days. When that 120-day period elapsed with no decision from the USCIS, Pulatov filed the present lawsuit requesting that this Court either adjudicate his naturalization application or remand the matter to the USCIS and order it to adjudicate the application promptly by a date certain. (Dkt. No. 1.) Defendants subsequently filed an agreed motion to remand (Dkt. No. 16), which the Court granted (Dkt. No. 18). Ultimately, the USCIS approved Pulatov's naturalization application on June 26, 2020. Now, Pulatov seeks an award of attorney's fees and costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). For the reasons that follow, Pulatov's motion is granted.
In addition to the USCIS, also named as Defendants were Kenneth T. Cuccinelli, serving at the time as Senior Official Performing the Duties of the Director of the USCIS, and Kevin Riddle, the Field Office Director of the USCIS's Chicago Field Office.
The EAJA "directs a court to award ‘fees and other expenses’ to private parties who prevail in litigation against the United States" under certain circumstances. Commissioner, INS v. Jean , 496 U.S. 154, 155, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (quoting 28 U.S.C. § 2412(d)(1)(A) ). Specifically, attorney's fees may be awarded where "1) the claimant is a ‘prevailing party’; 2) the government's position was not substantially justified; 3) no ‘special circumstances make an award unjust’; and 4) the fee application is submitted to the court within 30 days of final judgment and is supported by an itemized statement." United States v. Hallmark Constr. Co. , 200 F.3d 1076, 1078–79 (7th Cir. 2000) (quoting 28 U.S.C. § 2412(d)(1)(A), (B) ). While Defendants assert that Pulatov has failed to satisfy the first three requirements, they do not contend that Pulatov's application was untimely or improperly supported.
Defendants first deny that Pulatov is a "prevailing party." In interpreting the term "prevailing party," the Supreme Court has rejected the "catalyst theory" whereby a plaintiff may be considered a prevailing party "if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 601, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Instead, to be a "prevailing party," there must be a "judicially sanctioned change in the legal relationship of the parties." Id. at 605, 121 S.Ct. 1835. As examples, the Supreme Court cited judgments on the merits and "settlement agreements enforced through a consent decree" as giving rise to prevailing-party status. Id. at 604, 121 S.Ct. 1835. By contrast, private settlement agreements not made enforceable by a consent decree do not suffice. Zessar v. Keith , 536 F.3d 788, 795–96 (7th Cir. 2008). But the label "consent decree" is not determinative; "where a settlement agreement is embodied in a court order such that the obligation to comply with its terms is court-ordered, the court's approval and the attendant judicial oversight (in the form of continuing jurisdiction to enforce the agreement) may be functionally a consent decree." T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003).
A different fee-shifting statute was at issue in Buckhannon , but the Supreme Court noted that the term "prevailing party" is found in numerous federal fee-shifting statutes and it has interpreted those provisions consistently. Buckhannon , 532 U.S. at 602–03 & n.4, 121 S.Ct. 1835. The Supreme Court has since applied Buckhannon's interpretation of "prevailing party" in the EAJA context. Astrue v. Ratliff , 560 U.S. 586, 591, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010).
According to Defendants, Pulatov is not a prevailing party because this Court's remand order simply effectuated the parties’ voluntary settlement of the matter and did not materially alter the legal relationship of the parties as required by Buckhannon. The Court disagrees. The remand order stated in full:
Defendant's agreed motion to remand [16] is granted. Plaintiff's application for
naturalization is remanded to the United States Citizenship and Immigration Services (USCIS). USCIS is instructed to issue an adjudicative action on Plaintiff's naturalization application within 30 days. The case may be reinstated within 60 days of this order if USCIS does not act on the application within 30 days of this order. Civil case terminated.
(Order to Remand, Dkt. No. 18.) One of the two forms of relief available to Pulatov under 8 U.S.C. § 1447(b) was a "remand [of] the matter, with appropriate instructions." Accordingly, Pulatov's complaint requested a writ of mandamus affording him such relief. (See Compl. ¶ 70, Dkt. No. 1 ("Should the Court decline de novo review of Plaintiff's naturalization application, the Court should grant relief in the form of a Writ of Mandamus compelling Defendants to ... promptly adjudicate Plaintiff's application on or before a date certain ...."). Thus, by remanding the matter with an instruction to the USCIS to adjudicate Pulatov's naturalization application within 30 days, the Court effectively granted Pulatov his requested mandamus relief. That such relief was granted by way of an agreed motion does not diminish the resulting remand order's status as a concrete judgment that altered the parties’ legal relationship and could be appropriately enforced by the Court.
Numerous district courts have found that a remand to the USCIS with instructions is sufficient to confer prevailing-party status upon the plaintiff. E.g. , Shalash v. Mukasey , 576 F. Supp. 2d 902, 908–10 (N.D. Ill. 2008) ; Cortes v. Swacina , 627 F. Supp. 2d 1328, 1331–32 (S.D. Fla. 2008) ; Aarda v. U.S. Citizenship & Immigr. Servs. , No. 06-1561 (RHK/AJB), 2008 WL 974916, at *4–5 (D. Minn. Apr. 8, 2008). Defendants counter those cases by citing Aronov v. Napolitano , 562 F.3d 84 (1st Cir. 2009) and Iqbal v. Holder , 693 F.3d 1189 (10th Cir. 2012), as supporting their claim that a plaintiff does not prevail by obtaining a remand order instructing the USCIS to determine the merits of his naturalization application. However, the circumstances in both cases are distinguishable because each involved a remand to the USCIS with no accompanying concrete instruction. In Holder , 693 F.3d at 1192, the district court remanded the matter but expressly stated that "[t]he USCIS may determine how to best proceed on remand." And in Aronov , 562 F.3d at 87, the district court simply granted remand but provided no other instruction. As the First Circuit explained, this order "merely returned jurisdiction to the agency to allow the parties to carry out their agreement." Id. at 92. By contrast, here, the Court issued an order instructing the USCIS to adjudicate Pulatov's naturalization application within 30 days and giving Pulatov the right to reinstate the matter if the USCIS failed to comply. The order imposed an obligation upon the USCIS that previously did not exist, thereby changing the legal relationship between it and Pulatov, and it could be enforced by Pulatov before this Court. It was therefore sufficient to make Pulatov a prevailing party.
Next, Defendants claim that there is no basis to find that their position in this litigation was not substantially justified because they never opposed Pulatov's request for relief. For the government's position to be substantially justified, "it must have reasonable factual and legal bases, and there must exist a reasonable connection between the facts and [its] legal theory." Cunningham v. Barnhart , 440 F.3d 862, 864 (7th Cir. 2006). Further, "EAJA fees may be awarded if the government's pre-litigation conduct ... or its litigation position are not substantially justified." Conrad v. Barnhart , 434 F.3d 987, 990 (7th Cir. 2006) (emphasis added). Thus, Defendants’ reliance on their lack of opposition to Pulatov's lawsuit is unavailing. Nor can they show their pre-litigation conduct was substantially justified simply because of the USCIS's need to conduct necessary background checks and the complexity of the determinations involved. "[G]eneral justifications for the delay, including the agency's policy of requiring name checks for security purposes ... do not justify the agency's disregard of the clear statutory mandate of Section 1447 that naturalization applications be processed within 120 days of the examination." Shalash , 576 F. Supp. 2d at 910–11. Therefore, the Court concludes that Defendants have failed to demonstrate that their conduct was substantially justified.
Finally, Defendants insist that special circumstances make an award unjust. In particular, they claim that awarding attorney's fees would disincentivize the government from seeking to reach prompt and agreeable resolutions like it did here. But the parties are also free to negotiate a resolution of the fee issue in connection with an agreed remand. Defendants could also avoid attorney's fees awards by complying with their statutory mandate to process naturalization applications within 120 days of examination. Moreover, Defendants’ assertion that they would incur the additional time and expense of litigating § 1447(b) cases to trial to avoid an award of attorney's fees is perplexing, especially given that here, the USCIS ultimately approved Pulatov's naturalization application.
In sum, the Court concludes that Pulatov is entitled to an award of attorney's fees and costs under the EAJA, and therefore his motion for attorney's fees is granted. Altogether, he requests an award of $13,370.13. As the prevailing party, it is Pulatov's burden to prove that his fee request is reasonable and to support it with documentation. Banks v. Barnhart , No. 01 C 382, 2003 WL 22019796, at *5 (N.D. Ill. Aug. 26, 2003). In support of his EAJA fee application, Pulatov has submitted affidavits from two of his attorneys and detailed timesheets of his attorneys’ work on the matter. Defendants do not contest the reasonableness of any of the requested fees or costs. And the Court satisfied from its review of Pulatov's methodology and calculations that the final award amount is reasonable.
Under the EAJA, the amount of fees shall be awarded at the prevailing market rates for the type and quality of services performed "except that ... attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor ... justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). The Seventh Circuit has allowed that $125 cap to be adjusted for inflation according to the Consumer Price Index at the time the legal services were performed. Sprinkle v. Colvin , 777 F.3d 421, 428 (7th Cir. 2015). Accordingly, Pulatov requests that the maximum rate be set at $205.84. The Court is satisfied that this inflation-adjusted rate was properly calculated and reasonable.
In total, four attorneys worked on this matter, three of whom are based in Alaska. Two of the attorneys contend that their market rates exceed the statutory maximum and therefore request that their rate be set at $205.84. The other two attorneys on the matter seek to charge their market rate of $200. Each attorney's requested rate is supported by a declaration affirming that the rate is in line with the prevailing rates in the relevant community for similar services by attorneys of comparable skill and experience. The declaration evidence satisfies the Court that the requested rates are reasonable. See id. at 429 ("[A] district court might find, in its discretion, a single sworn statement from a claimant's attorney, setting forth the prevailing market rate, to be sufficient in some cases."). Pulatov also seeks fees for work performed by paralegals, requesting a rates of either $100 or $125, depending on the paralegal. The Court finds those rates to be reasonable as well. See Krecioch v. United States , 316 F.3d 684, 687 (7th Cir. 2003) ("Fees for work done by paralegals can be awarded under the fee-shifting provision of the EAJA."). Finally, the Court has reviewed the submitted timesheets and finds that all the hours billed by the attorneys and paralegals in connection with this matter were reasonable. Therefore, Pulatov is entitled to the full amount of his requested fees.