Ortega v. Hodgson, et al
Filing
29
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE: PETITIONER'S MOTION FOR ATTORNEY'S FEES, COSTS AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT (DOCKET ENTRY #24) is DENIED.(Feeney, Eileen)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CARMEN ORTEGA,
Petitioner,
CIVIL ACTION NO.
11-10358-MBB
v.
THOMAS HODGSON,
Respondent.
MEMORANDUM AND ORDER RE:
PETITIONER’S MOTION FOR ATTORNEY’S FEES, COSTS AND EXPENSES UNDER
THE EQUAL ACCESS TO JUSTICE ACT
(DOCKET ENTRY # 24)
May 10, 2012
BOWLER, U.S.M.J.
Pending before this court is a motion filed by petitioner
Carmen Ortega (“petitioner”) for attorney’s fees, costs and
expenses under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412.
(Docket Entry # 24).
Respondent Thomas M.
Hodgson (“respondent”) opposes the motion on the grounds that
petitioner is not entitled to attorney’s fees, costs or expenses
because she was not a prevailing party and respondent’s conduct
was substantially justified.
(Docket Entry # 25).
The total fee
request is $16,596.97 and the total request for costs and
expenses is $259.40.
(Docket Entry # 24).
FACTUAL BACKGROUND
The pertinent facts are detailed in this court’s Memorandum
and Order on petitioner’s petition for writ of habeas corpus.
(Docket Entry # 19).
Accordingly, the facts need not be repeated
in depth.
Petitioner was born in the Dominican Republic in 1949 and
admitted to the United States as a lawful permanent resident
(“LPR”) on January 29, 1969.
(Docket Entry # 1, Ex. 4).
In
2008, petitioner pleaded nolo contendere to two separate charges
under Rhode Island General Laws section 21-28-4.01(c)(1).
(Docket Entry # 1, Ex. 5 & 6).
Petitioner completed her sentence
for those crimes on November 17, 2009, at which point the United
States Department of Homeland Security (“DHS”) issued and
executed an arrest warrant.
(Docket Entry # 12, Ex. 6).
Petitioner was in the custody of Immigration and Customs
Enforcement (“ICE”) beginning on November 17, 2009, pursuant to 8
U.S.C. § 1226(c) (“section 1226(c)”) awaiting an administrative
adjudication of deportation proceedings.
(Docket Entry # 19, p.
1).
On December 1, 2009, petitioner had her first appearance
before an immigration judge (“IJ”) who recommended that she
request a continuance to find an attorney.
After requesting and
obtaining a series of continuances to find counsel, petitioner
obtained an attorney from the Roger Williams Law School
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Immigration Clinic.
(Docket Entry # 19, pp. 3-5).
Petitioner’s
first attorney filed petitioner’s pleadings at her sixth
appearance before the IJ on February 16, 2010, which was 12 weeks
after her first appearance.
(Docket Entry # 19, pp. 4-5).
Petitioner also sought continuances to file briefs.
Entry # 19, pp. 4-5).
(Docket
On April 13, 2010, the IJ held a hearing
on the merits on petitioner’s application for cancellation of
removal.
(Docket Entry # 12, Ex. 16, pp. 40-42).
On April 21, 2010, the IJ issued a decision on the merits
that petitioner met her burden of proof and that she “had not
been convicted of an aggravated felony, was credible in her
testimony, and the positive factors outweighed the negative
factors in the case.”
(Docket Entry # 19, p. 5).
On June 29,
2010, DHS appealed the IJ’s decision to the Board of Immigration
Appeals (“BIA”), contending that petitioner had been convicted of
an aggravated felony and her removal should not be canceled.
(Docket Entry # 19, pp. 6-7).
On November 23, 2010, the IJ
issued a decision agreeing with DHS that petitioner had failed to
prove that she had not been convicted of an aggravated felony and
entered an order to remove petitioner to the Dominican Republic.
(Docket Entry # 19, p. 6).
On or about February 1, 2011, petitioner obtained another
attorney (“petitioner’s attorney”), who is petitioner’s present
3
counsel of record.1
(Docket Entry # 19, p. 7).
Petitioner’s
attorney sent respondent a letter requesting her release “while
the merits of her appeal are adjudicated” and argued that
petitioner’s “prolonged detention was unreasonable.”
Entry # 1, Ex. 3).
(Docket
Petitioner maintains that respondent never
replied to that letter.
(Docket Entry # 19, p. 7).
In March
2011, petitioner appealed the IJ’s November 23, 2010 order to the
BIA and also filed this petition for writ of habeas corpus under
28 U.S.C. § 2241 (“section 2241”) alleging that her 15 month
detention under section 1226(c) was unconstitutional.
(Docket
Entry # 1).
On September 13, 2011, this court issued the Memorandum and
Order.
Therein, this court posited that petitioner’s detention
“appear[ed] unconstitutional” and that “a bail hearing [was]
warranted if the BIA has not yet rendered a decision.”
Entry # 19, pp. 18-19).
(Docket
Accordingly, this court ordered
respondent to file a status report within one week to determine
whether the BIA had made a decision on petitioner’s appeal of the
IJ’s November 23, 2010 order.
(Docket Entry # 19, pp. 18-19).
This court further stated that if “no action has been taken, this
court will set a bail hearing to determine petitioner’s risk of
flight and dangerousness.”
(Docket Entry # 19, pp. 18-19).
1
On
Petitioner’s attorney is an attorney with the Boston
University Civil Litigation Program. (Docket Entry # 24, Ex. 6).
4
September 21, 2011, respondent filed a status report informing
this court that DHS released petitioner from immigration
detention on September 20, 2011, and that the BIA had yet to
decide petitioner’s appeal.
(Docket Entry # 20).
Respondent’s
voluntary release of petitioner on recognizance obviated the need
for a bond hearing.
(Docket Entry # 24, p. 3).
On October 6, 2011, this court allowed petitioner’s motion
to dismiss the section 2241 petition as moot (Docket Entry # 21)
and entered a final judgment dismissing the case without costs.
(Docket Entry # 23).
On December 9, 2011, petitioner filed the
instant motion requesting attorney’s fees, costs and expenses
pursuant to the EAJA.
(Docket Entry # 24).
DISCUSSION
As an initial matter, respondent contends that the October
6, 2011 dismissal of the case as moot “without costs” bars an
award of attorney’s fees and costs.
(Docket Entry # 23).
Respondent invokes the law of the case doctrine.
The doctrine
“posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent
stages in the same case.”
Remexcel Managerial Consultants, Inc.
v. Arlequin, 583 F.3d 45, 53 (1st Cir. 2009) (internal quotation
omitted).
Thus, respondent submits that because the case was
dismissed “without costs” in the order of dismissal, the law of
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the case precludes an award of attorney’s fees and costs.
(Docket Entry # 25, pp. 2-3).
The dismissal order simply referenced “without costs,”
impliedly referring to costs awarded under Rule 54(d)(1), Fed. R.
Civ. P. (“Rule 54(d)(1)”).
Contrary to respondent’s position,
there was no determination of an award of attorney’s fees and
expenses under Rule 54(d)(2), Fed. R. Civ. P. 54(d)(2) (“Rule
54(d)(2)”).
Hence, the law of the case doctrine does not
preclude a determination of attorney’s fees and expenses under
Rule 54(d)(2).
Petitioner bases the request for attorney’s fees, costs and
expenses on the EAJA.
The relevant provision reads as follows:
[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 2 (other than cases sounding
in tort), including proceedings for judicial review of
agency 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) (emphasis added).
Respondent next argues that petitioner is not a prevailing
party within the meaning of the EAJA.
2
To be a prevailing party,
The EAJA’s “civil action” requirement applies to habeas corpus
petitions in the immigration context and thus applies to the
instant case. See Oscar v. Gillen, 595 F.Supp.2d 166 (D.Mass.
2009).
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there must be both a “material alteration of the legal
relationship of the parties” and a “judicial imprimatur on the
change.”
Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598, 604-05
(2001); see also Aronov v. Napolitano, 562 F.3d 84, 89 (1st Cir.
2009).
If a party “‘succeed[s] on any significant issue in
litigation which achieves some of the benefit [it] sought in
bringing suit,’” there has been a “material alteration of the
legal relationship of the parties.”
Walsh v. Boston University,
661 F.Supp.2d 91, 97 (D.Mass. 2009) (internal quotations and
citations omitted).
Regarding the requirement of a judicial imprimatur, a
“defendant’s voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur.”
Buckhannon,
532 U.S. at 605; see also Smith v. Fitchburg Public Schools, 401
F.3d 16, 22 (1st Cir. 2005).
A party does not prevail simply
because her suit is the “catalyst” for the change.
Buckhannon,
532 U.S. at 605; see also New England Regional Council of
Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir. 2002) (Supreme
Court “recently consigned the catalyst theory to the scrap heap .
. . rul[ing] that a fee-shifting award cannot be made unless
there is a ‘judicially sanctioned change in the legal
relationship of the parties’”) (internal citation omitted).
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Petitioner asserts she is a prevailing party because this
court found her prolonged detention unconstitutional and the
Memorandum and Order prompted respondent to release her from
custody.
Petitioner relies heavily on the decision of the court
in Oscar.
The court in Oscar found “an alien’s detention to be
unlawful and ordered a bond hearing . . . and found that a
material change and judicial imprimatur on that change existed
even though the case was subsequently dismissed as moot and the
bond hearing was never held.”
Oscar, 595 F.Supp.2d at 168-69;
(Docket Entry # 28, p. 2).
Respondent, however, correctly points out that Oscar is
distinguishable because the court in Oscar actually did order a
bond hearing, id., whereas this court only ordered respondent to
submit a status report.
(Docket Entry # 25).
In particular,
this court stated that it would order a bond hearing if the
status report revealed the BIA had not yet decided on
petitioner’s appeal.
(Docket Entry # 19, pp. 18-19).
did not, however, issue an order for a bond hearing.
This court
The
Memorandum and Order (Docket Entry # 19), which stated that
petitioner’s detention “appear[ed] unconstitutional,” prompted
respondent to voluntarily release petitioner from custody, thus
mooting the section 2241 petition seeking her release on bail.
Despite the fact that petitioner achieved the desired outcome
from the litigation, she only achieved that result through
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respondent’s voluntary conduct.
This is the type of “catalyst”
conduct that lacks the requisite judicial imprimatur.
Buckhannon, 532 U.S. at 605.
See
Accordingly, petitioner is not a
prevailing party for the purposes of the EAJA.
In the alternative, even if petitioner were a prevailing
party, the motion still fails because respondent’s position was
substantially justified.
To obtain attorney’s fees, costs and
expenses under the EAJA, petitioner must be a prevailing party
and respondent’s position cannot be “substantially justified.”
28 U.S.C. § 2412(d)(1)(B).
It is the government’s burden to
establish “both that ‘the agency action giving rise to the
litigation was substantially justified’ and that ‘its litigation
positions were substantially justified.’”
Tang v. Chertoff, 689
F.Supp.2d 206, 214 (D.Mass. 2010) (quoting Kiareldeen v.
Ashcroft, 273 F.3d 542, 545 (3rd Cir. 2001)) (emphasis in
original); see also Schock v. United States, 254 F.3d 1, 5 (1st
Cir. 2001) (courts “examine both prelitigation actions or
inaction of the agency on which the litigation is based and the
litigation position of the United States”).
The term “substantially justified” means “justified to a
degree that could satisfy a reasonable person.”
Pierce v.
Underwood, 487 U.S. 552, 565 (1988); see also Tang, 689 F.Supp.2d
at 214-15 (“it is not enough for the government to have been
wrong . . . [t]he government has to have been very, very wrong,
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or so wrong that a ‘reasonable person’ would agree that its
actions were not justified”) (emphasis in original).
In
addition, the court may find that the government’s position “can
be substantially justified even if a court ultimately determines
the agency’s reading of the law was not correct.”
F.3d at 94 (citing Pierce, 487 U.S. at 565).
Aronov, 562
“When the issue is
a novel one on which there is little precedent, courts have been
reluctant to find the government’s position was not substantially
justified.”
Schock, 254 F.3d at 6.
To show that its position
was substantially justified, respondent must show that it was
reasonable in law and in fact for ICE to detain petitioner for a
total of approximately 20 months.
See Geegbae v. McDonald, 2011
WL 841237, at *2 (D.Mass. March 8, 2011); Schock, 254 F.3d at 5
(1st Cir. 2001).
The court must examine “the actual merits of the
government’s litigation position as to both the facts and the
law.”
69.
Schock, 254 F.3d at 5; see also Pierce, 487 U.S. at 568Turning to the underlying merits, courts construe section
1226(c) “to implicitly require that removal proceedings and the
corresponding detention be completed within a reasonable period
of time, beyond which detention may not continue without an
individualized determination of risk of flight and
dangerousness.”
Flores-Powell v. Chadbourne, 677 F.Supp.2d 455,
471 (D.Mass. 2010) (citing Ly v. Hansen, 351 F.3d 263, 270 (6th
10
Cir. 2003)); accord Demore v. Kim, 538 U.S. 510, 529-530 (2003).
The court in Flores-Powell relied on Ly to set out the following
five factors to consider in assessing the reasonableness of
prolonged detention under section 1226(c):
(1) the overall length of detention; (2) whether the civil
detention is for a longer period than the criminal sentence
for the crimes resulting in the deportable status; (3)
whether actual removal is reasonably foreseeable; (4)
whether the immigration authority acted promptly to advance
its interests; and (5) whether the petitioner engaged in
dilatory tactics in the Immigration Court.
Flores-Powell, 677 F.Supp.2d at 471.
The facts in this case evidence that the government’s
position was substantially justified.
This court analyzed the
five factors in the Memorandum and Order and concluded that the
prolonged detention of petitioner “appears unconstitutional.”
(Docket Entry # 19, p. 18).3
That said, however, the issue was
close.
The third Flores-Powell factor weighed in respondent’s
favor.
Notably, petitioner conceded removability.4
In contrast,
the petitioners in Flores-Powell and in Vongsa Sengkeo both
vigorously contested removability.
Flores-Powell, 677 F.Supp.2d
at 472 (issue of whether the petitioner was deportable was
3
The analysis of the foregoing five factors need not be
repeated.
4
On October 18, 2010, petitioner conceded removability before
the BIA under 8 U.S.C. § 1227(a)(2)(B)(i). (Docket Entry # 12,
p. 4).
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undecided and that “added complexity is likely to extend the
removal proceedings”); Vongsa Sengkeo, 670 F.Supp.2d at 128-29
(the petitioner’s pending challenge to deportation was
“colorable” and thus mandatory detention was unreasonable).
That
“added complexity,” Flores-Powell, 677 F.Supp.2d at 472, is not
present in the instant case due to petitioner’s concession of
removability.
The court found in those cases that resolution of
the removal proceedings was not reasonably foreseeable and that
“there is no end in sight” to them, due partly to the outstanding
issue of removability.
See Bourguignon v. MacDonald, 667
F.Supp.2d 175, 183-84 (D.Mass. 2009).
In this case, however, the
endpoint of petitioner’s detention was reasonably foreseeable.
As to the remaining factors in Flores-Powell, the first and
second factors decidedly weighed in petitioner’s favor, as
explained in the Memorandum and Order.
(Docket Entry # 19).
is also true, however, that a large part of the delay at the
It
outset resulted from petitioner seeking continuances to obtain
counsel and thereafter to file briefs.
The fourth and fifth
factors slightly favored petitioner’s position as opposed to
providing justification for the government’s position.
On
balance and although close, making an individualized
reasonableness determination of petitioner’s detention lends
itself in this instance to finding substantial justification
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under the facts.
Respondent therefore meets his burden of
showing substantial justification under the facts.
As to substantial justification under the law, the five
factor test in Flores-Powell does not easily lend itself to a
clear cut legal decision in favor of a particular party.
Rather,
it requires balancing and assessing the factors for an
individualized determination of reasonableness.
Flores-Powell,
677 F.Supp.2d at 471; see also Vongsa Sengkeo, 670 F.Supp.2d at
123 (that case “centers on that bit of unfinished business in
Demore -- whether indefinite pre-removal detention is lawful, or
whether due process or § 1226(c) itself imposes some time
limitation”).
Notably, “No court has developed a bright-line
rule for when detention under [section 1226(c)] becomes
unconstitutional; rather, courts examine a number of factors . .
. [which] are not always the same.”
Detention:
Note:
Challenging
Why Immigrant Detainees Receive Less Process Than
“Enemy Combatants” and Why They Deserve More, 11 Colum. L. Rev.
1833, 1877 (2011); see also Ramirez v. Watkins, 2010 WL 6269226,
at *13 (S.D.Tex. Nov. 3, 2010) (“[l]ess [sic] there be any
confusion, let it be clear, merely because a particular alien has
been held pursuant to [section] 1226(c) longer than the five
months specifically sanctioned in Demore does not make otherwise
constitutional detention, unconstitutional”).
In other words,
“The legal analysis here does not involve simple arithmetic.
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A
qualitative assessment must also be made of the reasons for the
delay in removal, and who bears responsibility for that delay.”
Tkochenko v. Sabol, 792 F.Supp.2d 733, 740-41 (M.D.Pa. 2011).
Moreover, the issue of whether it is lawful to subject an
alien to continued detention under section 1226(c) is unsettled
in the First Circuit.
Indeed, the First Circuit has yet to opine
on the Flores-Powell factor test or whether it is appropriate for
courts to use a factor test to determine whether continued
detention is reasonable.
This is a novel issue “on which there
is little precedent [and] courts have been reluctant to find the
government’s position was not substantially justified” in such a
situation.
Schock, 254 F.3d at 6.
Accordingly, although this
court in the Memorandum and Order found the Flores-Powell factors
weighed in petitioner’s favor, respondent satisfied his burden to
show substantial justification.
(Docket Entry # 25, p. 9).
Finally, despite the fact that respondent’s detention of
petitioner “appear[ed] unconstitutional,” the court still can
find that respondent’s position is substantially justified.
Pierce, 487 U.S. at 565.
Thus, even if petitioner was a
See
prevailing party, the instant motion would fail because
respondent’s position was substantially justified.
Here,
respondent satisfied his burden to show that his position was
substantially justified under the facts and the law.
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CONCLUSION
In accordance with the foregoing discussion, the motion for
attorney’s fees, costs and expenses pursuant to the EAJA (Docket
Entry # 24) is DENIED.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
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