Nken v. Holder , 385 F. App'x 299 ( 2010 )

UNPUBLISHED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 part and denied in part by
unpublished per curiam opinion.
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Unpublished opinions are not binding precedent in this circuit.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. See Nken v. Holder, 585 F.3d 818 (4th Cir.
2009). 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 for fees. With regard to the expenses,
$10,150.79 (74.5 percent) relate to the motion for a stay,
$3418.79 (25 percent) relate to the merits of the petition, and
$58.87 (less than 1 percent) relate to the fee application. The
Government does not dispute any of these calculations.
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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). It is undisputed that Nken was a
“prevailing party” and that he filed a complete, timely
application for fees. The Government argues, however, that its
position was “substantially justified” and that “special
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.” See Hyatt v. Barnhart,
315 F.3d 239, 244 (4th Cir. 2002). 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.’” United States v.
Cox, 575 F.3d 352, 355 (4th Cir. 2009) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)).
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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 U.S. 154, 161-62 (1990) (“While the
parties' postures on individual matters may be more or less
justified, the EAJA -- like 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 defense of that order, clearly represent the
dominant “position” for the purpose of determining the
appropriateness of fees. 1 These issues constitute the
substantive heart of this case. The motion for a stay, on the
1
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).
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other hand, is a procedural maneuver that is in every way
peripheral to the merits. Indeed, “[t]he whole idea [of a stay]
is to hold the matter 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.” After remand from the Supreme Court, we concluded
that the BIA denied Nken’s motion to reopen without even
considering Nken’s most important new evidence (his brother’s
letter). Nken, 585 F.3d at 822. We reversed and remanded
because the agency’s decision was at odds with clearly
established law, and therefore was not substantially justified.
2
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
See id. at 823. The Government argued on appeal that the BIA
was entitled to deference. But we found no justification for
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. Thus, Nken has cleared this “threshold for fee
eligibility.” 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.
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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. When the Government first opposed Nken’s motion
for a stay before this court, it did so on the basis of
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. On remand, the Government
agreed not to deport Nken before we issued our mandate,
rendering moot the issue of a stay. See Nken, 585 F.3d at 821.
The Government thus pressed its 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 these reasons, we grant Nken’s application as it
relates to fees and expenses incurred in litigation on the
merits of his petition for review, and in preparing the
application for fees. We deny his application as it relates to
fees and expenses arising out of litigation over the motion for
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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
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