Pierre Boucicaut v. Wolf et al

Filing 45

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. Plaintiffs' Motion for Attorney's Fees [Doc. No. 64 ] is GRANTED IN PART and DENIED IN PART. Please see attached. Associated Cases: 4:20-cv-10885-IT et al. (Kelly, Danielle)

Case 1:20-cv-10822-IT Document 45 Filed 05/09/22 Page 1 of 8

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BARBARA MICHEL,

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Plaintiff,
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v.
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ALEJANDRO MAYORKAS, Secretary, U.S.
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Department of Homeland Security ;
DEPARTMENT OF HOMELAND SECURITY; *
U.S. CITIZENSHIP AND IMMIGRATION
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SERVICES; MICHAEL J. MCCLEARY, Field
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Director, U.S. Citizenship and Immigration
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Services,
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Defendants.
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__________________________________________*
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KARINE G. PIERRE BOUCICAUT,
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Plaintiff,
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v.
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ALEJANDRO MAYORKAS, Secretary, U.S.
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Department of Homeland Security, et al.,
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Defendants.
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__________________________________________*
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ANA MARISELA DIAZ SANCHEZ,
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Plaintiff,
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v.
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ALEJANDRO MAYORKAS, Secretary, U.S.
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Department of Homeland Security, et al.,
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Defendants.
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__________________________________________*
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Civil No. 4:20-cv-10885-IT
LEAD CASE

Civil No. 1:20-cv-10822-IT
CONSOLIDATED CASE

Civil No. 1:20-cv-10922-IT
CONSOLIDATED CASE

Pursuant to Fed. R. Civ. P. 25(d), Secretary of the U.S. Department of Homeland Security
Alejandro Mayorkas has been substituted for former Acting Secretary of the U.S. Department of
Homeland Security Chad Wolf in each case.

Case 1:20-cv-10822-IT Document 45 Filed 05/09/22 Page 2 of 8

JOSE ANGEL ANDRADE,

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Plaintiff,
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v.
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ALEJANDRO MAYORKAS, Secretary, U.S.
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Department of Homeland Security, et al.,
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Defendants.
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__________________________________________*
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FREDY FRANCISCO FUENTES,
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Plaintiff,
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v.
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ALEJANDRO MAYORKAS, Secretary, U.S.
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Department of Homeland Security, et al.,
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Defendants.
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__________________________________________*
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OSCAR OSMIN CHAVEZ DERAS,
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Plaintiff,
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v.
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ALEJANDRO MAYORKAS, Secretary, U.S.
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Department of Homeland Security, et al.,
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Defendants.
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__________________________________________*

Civil No. 1:20-cv-10952-IT
CONSOLIDATED CASE

Civil No. 1:20-cv-10978-IT
CONSOLIDATED CASE

Civil No. 1:20-cv-12004-IT
CONSOLIDATED CASE

MEMORANDUM & ORDER
May 9, 2022
TALWANI, D.J.
Pending before the court is Plaintiffs’ Motion for Attorney’s Fees [Doc. No. 64] in the
consolidated, above-captioned cases. For the following reasons, the motion is GRANTED IN
PART and DENIED IN PART.
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Case 1:20-cv-10822-IT Document 45 Filed 05/09/22 Page 3 of 8

I.

Background
Plaintiffs Barbara Michel and Karine Pierre Boucicaut are citizens of Haiti, and Plaintiffs

Ana Marisela Diaz Sanchez, Jose Angel Andrade, Fredy Francisco Fuentes, and Oscar Osmin
Chavez Deras are citizens of El Salvador. Each Plaintiff has been granted Temporary Protected
Status in the United States. After being granted Temporary Protected Status, each Plaintiff left
the country with authorization from the Secretary of the Department of Homeland Security
(“DHS”) and was subsequently paroled back into the United States. Each thereafter applied to
the United States Citizenship and Immigration Services (“USCIS”), a sub-agency of DHS, to
adjust immigration status from Temporary Protected Status to Lawful Permanent Resident.
However, USCIS administratively closed each application on the basis that it lacked jurisdiction
over the cases.
Plaintiffs filed individual actions pursuant the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 701, et seq., challenging USCIS’s closing of their applications to adjust status for
lack of jurisdiction. Each action named the same Defendants and presented the same legal issues:
(1) whether travel on advance parole rendered Plaintiffs “arriving aliens” such that USCIS would
have jurisdiction over the applications to adjust status and (2) whether the court had jurisdiction
over Plaintiffs’ claims. The court, with the consent of all parties, consolidated the cases for
motion practice based on the filings (and supplemental filings) in Michel v. Mayorkas et al.,
4:20-cv-10885-IT. See Elec. Order, Michel v. Mayorkas et al., 4:20-cv-10885-IT (D. Mass. Oct.
6, 2020) ECF No. 31; Elec. Order, Chavez Deras v. Mayorkas et al., No. 1:20-cv-12004-IT (D.
Mass. Dec. 3, 2020) ECF No. 10. 1

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All further citations to the docket are to Michel v. Mayorkas et al., No. 4:20-cv-10885-IT (D.
Mass.).
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On March 2, 2021, the court denied Defendants’ Motion to Dismiss [Doc. No. 24] and
granted Michel’s Cross Motion for Judgment on the Pleadings [Doc. No. 33] insofar as it sought
a declaration that USCIS had jurisdiction over her application to adjust status and an order
directing USCIS to reopen her application and adjudicate it on the merits. Mem. & Order [Doc.
No. 52]. That decision governed the outcome in the remaining cases. Id. The court entered a
Judgment [Doc. No. 58] consistent with that order on May 18, 2021.
Defendants filed timely appeals in each of the cases on April 30, 2021, see e.g., Notice of
Appeal [Doc. No. 54], and the cases were consolidated for appeal on Plaintiffs’ motion, see
Order, Michel v. Mayorkas, et al, No. 21-1356 (1st Cir. Jul. 8, 2021). On October 18, 2021, with
Plaintiffs’ assent, Defendants filed a motion to voluntarily dismiss the appeal, before any
briefing had occurred. See Assented-to Mot. to Dismiss, Michel v. Mayorkas, et al, No. 21-1356
(1st Cir. Oct. 18. 2021). Plaintiffs reserved the right to seek attorney’s fees and costs. Id. The
First Circuit granted the motion and entered judgment. See USCA Judgment [Doc. No. 61].
Plaintiffs thereafter filed the pending Motion for Attorney’s Fees [Doc. No. 64].
Defendants contend that an award of fees and costs is not justified, and alternatively, that the
amount of fees sought is not reasonable.
II.

Discussion
Absent action by Congress, the federal government is not liable for an opposing party’s

attorney’s fees for two reasons. First, the so-called “American rule” provides that the prevailing
party in litigation “is not entitled to collect [attorney’s fees] from the loser” absent exceptional
circumstances. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,
532 U.S. 598, 602 (2001). Second, the doctrine of sovereign immunity shields the federal
government from suit—and the requirement that it pay an opposing party’s attorney’s fees—

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unless it expressly waives that immunity. See United States v. Mitchell, 445 U.S. 535, 538
(1980).
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, is a “partial waiver” of
sovereign immunity that permits awards of attorney’s fees against the federal government in a
variety of judicial and administrative proceedings. 28 U.S.C. § 2412(d)(1)(A). “The EAJA aims
to ‘ensure that certain individuals . . . will not be deterred from seeking review of, or defending
against, unjustified governmental action because of the expense involved.’” Castaneda-Castillo
v. Holder, 723 F.3d 48, 56 (1st Cir. 2013) (quoting Aronov v. Napolitano, 562 F.3d 84, 88 (1st
Cir. 2009)). Accordingly, in a civil action against the United States, a court “shall award”
attorney’s fees to a prevailing party (other than 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). See also Castaneda-Castillo, 723 F.3d at 68-69. 2
A.

Substantial Justification

The test of substantial justification is one of reasonableness: the government bears the
burden of showing that its case has “a reasonable basis in both law and fact” by a preponderance
of the evidence. Castaneda-Castillo, 723 F.3d at 73. The court’s decision to award fees under the
EAJA is independent from its review of the merits of the case and requires that the court
examine (1) whether the agency decision that gave rise to the litigation was substantially justified
and (2) whether the government’s litigation positions also were substantially justified. See
Dantran, Inc. v. United States DOL, 246 F.3d 36, 41 (1st Cir. 2001) (“To satisfy its burden, the

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The application for fees must also be filed within thirty days of final judgment in the action and
must include an itemized statement as to the actual time expended and the rate at which fees and
other expenses were computed. 28 U.S.C. § 2412(d)(1)(B).
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government must justify not only its pre-litigation conduct but also its position throughout
litigation”).
Defendants contend that their administrative decisions and litigation position defending
those decisions were substantially justified. The court so finds, through the entry of judgment by
this court. First, the legal arguments raised in this case were novel and had not been addressed by
the First Circuit. Second, while this court ultimately disagreed with Defendants’ position, that
position was supported by other district courts, including another session in this district. Under
those circumstances, it cannot be said that Defendants’ administrative decisions and legal
arguments were unreasonable; to the contrary, they presented a substantial question of law.
However, Defendants offer no justification for their litigation before the First Circuit,
which they ultimately abandoned. While Defendants note that Plaintiffs assented to the dismissal
and agreed to bear their own costs, Plaintiffs reserved the right to file for attorney’s fees under
the EAJA on the appeal.
B.

Reasonable Fees

Having concluded that Plaintiffs are entitled to an award of attorneys’ fees and costs for
work undertaken on appeal, the court now considers whether the fees requested are 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). Adjusting for inflation according to the
Consumer Price Index for Urban Consumers, Plaintiffs calculates that they are eligible to recover
fees at the following rates: $218.27 per hour for work completed in 2020, and $226.34 per hour
for work completed in 2021. However, they request an enhanced rate of $500 per hour based on

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the prevailing market rates for specialized and highly experienced immigration attorneys
specializing in complex litigation.
Where the court is awarding fees only as to the appeal—which was dismissed prior to
any briefing—the enhanced rate is not justified: no distinctive knowledge or specialized skills
were required. The court accordingly awards fees at the adjusted rate of $226.34 per hour for
Plaintiff’s counsel. 3 And where the EAJA does not specify a statutory rate for paralegals, the
court adopts the First Circuit’s presumptive maximum rate of $50 per hour for compensation of
paralegals under the Criminal Justice Act. See First Circuit CJA Reference Manual (Jan. 12,
2022), https://www.ca1.uscourts.gov/sites/ca1/files/CJA%20Reference%20Manual.pdf.
The court additionally finds that the number of hours for which compensation is sought is
unreasonable where counsel duplicated work across the six appeals. Although some tasks needed
to be performed separately in each case, such as separate phone calls to each client to discuss the
appeal, other line items, such as printing the First Circuit’s mandate and order, make no sense
when multiplied across six cases: it is unreasonable to charge almost two hours over the six cases
for printing the same documents. Where the court cannot distinguish these unreasonably
duplicated fees from others that may have been reasonably incurred in each case, the court
awards only those fees incurred in the lead case and the separate phone calls to the individual
clients.
Accordingly, the court awards fees and costs as follows:
17.8 attorney hours incurred in 2021 at $226.34 per hour: $4,028.85
2 paralegal hours at $50 per hour: $200

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While the government opposes the enhanced rate of $500 per hour, it does not object to an
adjustment to the statutory rate based on cost of living.
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TOTAL: $4,228.85
III.

Conclusion
For the reasons set forth above, the court GRANTS Plaintiffs’ Motion for Attorney’s

Fees [Doc. No. 64] in the amount of $4,228.85. The motion is otherwise DENIED.
IT IS SO ORDERED.
May 9, 2022

/s/ Indira Talwani
United States District Judge

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