JM v. Office of Refugee Resettlement (ORR) et al

Filing 67

ORDER: Petitioner's Motion for Attorneys' Fees 49 is granted in part, and petitioner is awarded fees in the amount of $10,963.75. Petitioner's 54(b) Motion for Judgment 64 is denied as moot. Signed on 11/3/10 by Chief Judge Ann L. Aiken. (lae)

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FILHI'W NOV 04 13:44lJSln}ORE

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JM, a minor Petitioner,

Civ. No. 09 707-AA OPINION AND ORDER

v.
KATHLEEN SEBELIUS, Secretary of Health Human Services, et al., spondents. AIKEN, Chief Petitioner moves for an award of attorney's the Re substant petit motion to
1

s pursuant to U.S.C.
§

Access

to

Justice

Act

(EAJA),

28

2412.

s oppose the motion, on grounds ly justified. Alternat ly,

t their position was s argue that

cannot recover fees incu smiss and seeking to reopen

ing respondents' titioner's immigration

s.
EAJA provides for an award of attorneys' fees and expenses to a 1 iling party "unless the court - O P I N I O N AND ORDER 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).

To show substantial justification, respondents must show that their posi t i o n has a "reasonable, basis in law and fact." Pierce v.

Underwood, 487 U.s. 552, 565 (1988). Based on the facts set forth in the court's previous orders, I do not find that respondents' positions were substantially

justified until petitioner's motion to reopen was not opposed. Therefore, petitioner is entitled to fees incurred up to that time, in addition to his fees incurred in seeking an EAJA award. the unique circumstances of this case and my order Given

appointing

.counsel to assist petitioner in moving to reopen his immigration proceedings, I do not find that Nadarajah v. Holder, 569 F.3d 906 (9th Cir. 2009) bars an award of fees incurred in filing the motion to reopen. Id. at 920. Nonetheless, I reduce the fees sought by

twelve hours at~ributed to "conversations," as petitioner provides no explanation or description of the conversations, and by four

hours attributed preparing a reply in support of the EAJA motion. Further, I agree with respondents that petitioner is not entitled to fees incurred in opposing their motion to dismiss, as

respondents' position was substantially justified for the reasons explained in my order granting the motion. Accordingly, petitioner's Motion for Attorneys' Fees (doc. 49) is GRANTED in part, and petitioner is awarded attorney fees based

2

- O P I N I O N AND ORDER

on 87.71 hours at $125.00 per hour,

for a total of $10,963.75.

Petitioner's 54(b) Motion for Judgment (doc. 64) is DENIED as moot. IT IS SO ORDERED. Dated this

3

day of November, 2010.

Ann Aiken
C h i e f United States District Judge

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OPINION AND ORDER