Gil et al v. Nielsen et al

Filing 39

ORDER denying 32 Motion for Attorney Fees. Signed by Senior Judge Graham Mullen on 9/15/2020. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:18-CV-00070-GCM
ROSA GIL
DANTE GIL
ADA ARGUETA,
Plaintiffs,
v.

ORDER

LEANDER HOLSTON
KIRSTJEN NIELSEN
FRANCIS CISSNA,
Defendants.

THIS MATTER comes before the Court upon Plaintiffs’ Verified Motion for Attorneys’
Fees and Incorporated Memorandum of Law [ECF Doc. 32], which was filed on November 20,
2019. Defendants filed their Response in Opposition to Plaintiffs’ Verified Motion for Attorneys’
Fees [ECF Doc. 34] on December 20, 2019. Plaintiffs filed a Reply [ECF Doc. 36] on January 14,
2020 and, with leave of the Court, Defendants filed a Surreply [ECF Doc. 38] on January 27, 2020.
Having now considered the facts and circumstances of this Motion, the Court finds the following.
I.

BACKGROUND
Plaintiffs were lawful permanent residents of the United States who sought, unsuccessfully,

naturalization over the course of several years. After filing requests for a hearing on their
application for naturalization in 2014, Plaintiffs filed an initial mandamus complaint in August
2017 when negotiations with the United States Citizenship and Immigration Service (“USCIS”)
were no longer fruitful. However, that complaint was voluntarily dismissed after USCIS denied
their applications in December 2017. Next, Plaintiffs filed a complaint seeking de novo review of

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the denial. This Court initially granted relief in April 2019, but both parties filed motions for
reconsideration and the Court issued a new order in August 2019. In the August 2019 order, the
Court permitted Plaintiffs to obtain nunc pro tunc relief. The Government did not appeal pursuant
to Fed. R. App. P. 4(a)(1)(B), and the Court’s order became a final judgment on October 22, 2019.
Plaintiffs timely filed this Motion on November 20, 2019, pursuant to 28 U.S.C. § 2412(d)(1)(B),
which permits plaintiffs to file an application for Equal Access to Justice Act (“EAJA”) fees within
thirty days from a final judgment date.
II.

DISCUSSION
The EAJA provides that:
a court shall award to a prevailing party . . . fees and other expenses . . . incurred
by that party in any civil action (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) (2018). Here, it is undisputed that Plaintiffs qualify as a prevailing
party. See ECF Doc. 34 at 4 (stating “Plaintiffs qualify as a prevailing party”). Therefore, the
burden is upon the Government to show that its position was “substantially justified.” 28 U.S.C.
§ 2412(d)(1)(A); Scarborough v. Principi, 541 U.S. 401, 405, 414 (2004).
The substantial justification test essentially asks if the Government’s position was
“justified to a degree that could satisfy a reasonable person” or had a “reasonable basis both in law
and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). “‘[P]osition of the United States’
means, in addition to the position taken by the United States in the civil action, the action or failure
to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). The
Government need not prevail on an issue to establish that it “acted reasonably in causing the
litigation or in taking a [particular] stance during the litigation.” Meyer v. Colvin, 754 F.3d 251,
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255 (4th Cir. 2014) (alteration in original) (quoting Roanoke River Basin Ass’n v. Hudson, 991
F.2d 132, 139 (4th Cir. 1993)); see also Pierce, 487 U.S. at 569 (noting that loss on the merits does
not mean the Government lacked substantial justification for its position).
The Government’s burden to prove substantial justification for its position stems from
Plaintiffs’ complaint seeking de novo review of the denial of Plaintiffs’ naturalization applications.
Given this burden, the procedural background supports a finding that the Government had a
reasonable basis in both law and fact for its position during the litigation, as is evinced in the
Court’s Order where the Court concluded Plaintiffs were ineligible for naturalization under 8
U.S.C § 1427(a). See ECF Doc. 31 at 5. While the Court’s grant of nunc pro tunc relief makes
Plaintiffs prevailing parties in the litigation, it does not undermine the substantial justification of
the Government’s position that the naturalization applications should be denied.
There was a reasonable basis in law and fact for the Government’s position during this civil
proceeding, but Plaintiffs still argue that the administrative delay leading up to Plaintiffs’ initial
mandamus complaint in Case Number 3:17-cv-00465-GCM is enough for this Court to find
Plaintiffs are entitled to attorneys’ fees and costs. Where appropriate, courts shall award fees and
other expenses to the prevailing party within thirty days of final judgment in an action. 28 U.S.C.
§ 2412(d)(1)(B). Plaintiffs maintain that courts consider unjustified agency delay a sufficient
reason to award attorneys’ fees, but there was no final judgment making it appropriate for the
Court to award fees and costs associated with Plaintiffs’ voluntarily dismissed initial mandamus
complaint. Further, this Motion is filed in an entirely different civil action that does not pertain to
the initial mandamus complaint. See 28 U.S.C. § 2412(d)(1)(B) (explaining that an award of fees
and costs considers agency action “in the civil action for which fees and other expenses are

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sought”). Awarding fees and costs based on the alleged administrative delay is, thus, not
appropriate under the statute.
Even if it was appropriate to consider administrative delay in this case, which the Court
deems it is not, the Court need not find that administrative delay gave grounds for an award of
attorneys’ fees and costs because there is no bright-line rule in how the Government’s prelitigation
position impacts the Court’s finding with regard to substantial justification. See United States v.
515 Granby, LLC, 736 F.3d 309, 316 (4th Cir. 2013); see also, e.g., Cody v. Caterisano, 631 F.3d
136, 139–40 (4th Cir. 2011) (concluding the Government’s position was substantially justified,
despite a year and a half prelitigation delay in making a naturalization determination where the
statutory requirement was to make the determination within one hundred twenty days of the
petitioner’s naturalization exam); Kirkland v. R.R. Ret. Bd., 706 F.2d 99, 101, 104–05 (2d Cir.
1983) (finding the Government’s position was substantially justified even where the administrative
board had procrastinated more than seven years in making its decision). In this civil matter, the
issue was not whether USCIS delayed in considering Plaintiffs’ applications but, rather, whether
USCIS erred in denying the applications. Any administrative delays that may have occurred do
not require this Court to conclude the Government’s position was without substantial justification,
especially where the Government’s reason for denying the applications was in accordance with the
statute.
Plaintiffs further argue that USCIS refused to allow Plaintiffs to cure their applications or
otherwise settle the naturalization matter, which merits an award of fees and costs. As noted above,
an agency’s failure to act is considered when analyzing the reasonableness of the Government’s
position. See 28 U.S.C. § 2412(d)(2)(D). Indeed, Plaintiffs were not provided an opportunity to
cure their applications after the Government granted Plaintiffs lawful permanent resident status

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when Plaintiffs were not in substantive compliance with all applicable immigration laws and
ineligible for the same. Yet, the civil matter for which Plaintiffs seek fees and costs regards the
Government’s denial of Plaintiffs’ naturalization applications, which was substantially justified
because Plaintiffs were ineligible for naturalization under the relevant statute. Plaintiffs ask the
Court to mine deep into the administrative proceedings regarding their applications to find that,
because USCIS did not provide nunc pro tunc relief to Plaintiffs sua sponte, the Government’s
position in this civil matter was not substantially justified. This the Court will not do. The
Government’s position with regard to this civil matter was substantially justified and no
prelitigation agency actions support finding otherwise.
III.

CONCLUSION
For the aforementioned reasons, Plaintiffs’ Verified Motion for Attorneys’ Fees is

DENIED.
SO ORDERED.

Signed: September 15, 2020

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