Jean Nken v. Eric Holder, Jr.

Filing 920100624

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1813

JEAN MARC NKEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted:

March 26, 2010

Decided:

June 24, 2010

Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Application for fees granted in unpublished per curiam opinion.

part

and

denied

in

part

by

Jared O. Freedman, Lindsay C. Harrison, JENNER & BLOCK, LLP, Washington, D.C., for Petitioner. Gregory G. Katsas, Assistant General Counsel, Civil Division, David V. Bernal, Assistant Director, Jennifer Paisner Williams, Senior Litigation Counsel, Lindsay E. Williams, Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: After we granted Jean Marc Nken's petition for review of the Board of Immigration Appeals's ("BIA") order denying his motion to reopen his immigration proceedings, Nken submitted an application for attorney's fees and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (2006). The

facts that give rise to this fee dispute are set forth in our previous opinion. 2009). See Nken v. Holder, 585 F.3d 818 (4th Cir.

For the reasons that follow, we grant Nken's application

in part and deny it in part.

I. Nken requests $246,951.70 in attorney's fees and $13,628.45 in other expenses under the EAJA. With regard to the fees,

$200,631.83 (approximately 81 percent of the total fees) relate to litigation over his motion for a stay pending appeal,

$39,517.79 (16 percent) relate to litigation over the petition for review, and $6802.08 (3 percent) relate to the preparation of the application (74.5 for fees. With to regard the to the for expenses, a stay,

$10,150.79

percent)

relate

motion

$3418.79 (25 percent) relate to the merits of the petition, and $58.87 (less than 1 percent) relate to the fee application. Government does not dispute any of these calculations. The

2

II. The EAJA provides, in relevant part, that: [A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States . . . 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). "prevailing party" and It is undisputed that Nken was a he filed a complete, timely

that

application for fees. position was

The Government argues, however, that its justified" and that "special

"substantially

circumstances" would make an award of fees and expenses related to litigation over the stay unjust. We consider these

contentions in turn. A. The Government bears the burden of showing that its

position was "substantially justified." 315 F.3d 239, 244 (4th Cir. 2002).

See Hyatt v. Barnhart,

To do so, the Government

must show that its position was "`justified to a degree that could satisfy a reasonable person,'" i.e., that it had a

"`reasonable basis both in law and fact.'" Cox, 575 F.3d 352, 355 (4th Cir. 2009)

United States v. (quoting Pierce v.

Underwood, 487 U.S. 552, 565 (1988)).

3

The Government argues that both its opposition to Nken's motion for a stay and its position with regard to the merits of his petition for review were substantially justified. The

Supreme Court has held, however, that when determining whether "the position of the United States" was justified, a court does not separately consider every position the Government has taken, but instead makes one determination for the action as a whole. See INS v. Jean, 496 on U.S. 154, 161-62 (1990) may be ("While more or the less --

parties'

postures the

individual -like

matters

justified,

EAJA

other

fee-shifting

statutes

favors treating a case as an inclusive whole, rather than as atomized line-items."). Therefore, we must first identify which

position constitutes "the position of the United States" for EAJA purposes, and then determine whether that position was

substantially justified. Considering the "case as an inclusive whole," the merits of the BIA's denial of Nken's motion to reopen, together with the Government's dominant defense of for fees. 1 that the order, purpose These clearly of represent the the the

"position" of

determining constitute

appropriateness

issues

substantive heart of this case.
1

The motion for a stay, on the

In cases involving judicial review of agency decisions, the Government must justify both the initial agency action (or inaction) and the Government's litigating position in defense of that action (or inaction). See 21 U.S.C. § 2412(d)(2)(D). 4

other

hand,

is

a

procedural

maneuver

that

is

in

every

way

peripheral to the merits. is to hold the matter

Indeed, "[t]he whole idea [of a stay] under review in abeyance because the

appellate court lacks sufficient time to decide the merits." Nken v. Holder, 129 S. Ct. 1749, 1760 (2009) (emphasis added). Having identified "the position of the United States," 2 the next question is whether that position was "substantially

justified." that the

After remand from the Supreme Court, we concluded BIA denied Nken's motion to reopen without even

considering Nken's most important new evidence (his brother's letter). because Nken, 585 F.3d at 822. the agency's decision was We reversed and remanded at odds with clearly

established law, and therefore was not substantially justified.

Relying on Gatimi v. Holder, __ F.3d __ (7th Cir. 2010), available at 2010 WL 1948351, the Government unpersuasively argues that the "position of the United States" refers to the Government's opposition to Nken's motion for a stay because the fees relating to that issue constitute the majority of the fees that Nken is requesting. But Gatimi does not hold that a peripheral issue like a stay can overtake or somehow become the merits of a dispute simply because the parties spent more time litigating the stay. In Gatimi, the Government attacked the merits of the petitioner's claim on two grounds. The Seventh Circuit found the Government's position substantially justified on the "more prominent" ground and so denied fees. Id. at *5. Here, the Government does not present multiple attacks on the merits of Nken's claim; rather the Government's sole attack on the merits is that Nken failed to present sufficient evidence to support his claim of persecution. The Government's other argument, that Nken did not deserve a stay, does not constitute an attack on the merits, but simply responds to Nken's motion to prevent his removal pending the resolution of the merits. 5

2

See id. at 823.

The Government argued on appeal that the BIA But we found no justification for

was entitled to deference.

that view given our settled precedents holding that unless the agency offers some reason for its action, it provides nothing to which we may defer. See id. at 822 (citing SEC v. Chenery

Corp., 318 U.S. 80 (1943); Li Fang Lin v. Mukasey, 517 F.3d 685 (4th Cir. 2008)). Because the position of the United States had

no reasonable basis in law or in fact, it was not substantially justified. eligibility." Thus, Nken has cleared this "threshold for fee

Jean, 496 U.S. at 160. B.

The above facts establish that Nken is entitled to some attorney's fees and expenses. The Government argues, however,

that "special circumstances" render an award of fees related to the litigation over Nken's motion for a stay "unjust." We

agree. Consistent with the discretion afforded the court by the plain language of the statute, the legislative history of the EAJA recognizes that the "special circumstances" clause can

serve two purposes.

Specifically,

[t]his `safety valve' helps to insure that the Government is not deterred from advancing in good faith the novel but credible extensions and interpretations of law that often underlie vigorous enforcement efforts. It also gives the court discretion to deny awards where equitable considerations dictate an award should not be made. 6

H.R. Rep. No. 96-1418, at 11 (1980). An award of fees related to Nken's motion for a stay would punish the Government for advancing a plausible legal argument in good faith. for a stay When the Government first opposed Nken's motion this court, it did so on the basis of

before

established Fourth Circuit precedent, and it prevailed.

In the

Supreme Court, the Government defended our precedent and lost. See Nken, 129 S. Ct. at 1754, 1762. agreed not to deport Nken before On remand, the Government we issued our mandate,

rendering moot the issue of a stay. The Government thus pressed its

See Nken, 585 F.3d at 821. position only as long as

controlling law clearly supported it, and a fee award relating to that portion of the litigation would therefore not serve the purposes of the EAJA. Exercising our equitable discretion, we

refuse to award Nken fees and expenses related to the litigation over his motion for a stay pending appeal.

III. For relates merits these to of fees his reasons, and we grant Nken's in and application litigation in as on it the the

expenses for

incurred review,

petition

preparing

application for fees.

We deny his application as it relates to

fees and expenses arising out of litigation over the motion for

7

a stay.

Thus, we award Nken a total of $46,319.87 in attorney's

fees, and $3477.66 in expenses.

APPLICATION GRANTED IN PART AND DENIED IN PART

8