Floroiu, Danut v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1333
DANUT FLOROIU, ALINA FLOROIU,
and DANIA FLOROIU,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A95-920-814, A95-920-813, and A95-920-815
____________
ON MOTION FOR ATTORNEY’S FEES AND COSTS
____________
AUGUST 22, 2007
____________
Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.
PER CURIAM. In a previous opinion, we granted the
petition for review filed by Mr. and Mrs. Floroiu, Seventh-
day Adventists from Romania who, along with their
daughter Dania, had been denied asylum, withholding
of removal and relief under the Convention Against
Torture. Floroiu v. Gonzales, 481 F.3d 970, 971 (7th Cir.
2007). We remanded the case and recommended that it
2 No. 06-1333
be assigned to a different immigration judge (“IJ”); we
did so because we concluded that the original IJ in the
Floroius’ case had manifested a clear bias against them that
had denied them due process of law. Id. at 971, 973. The
petitioners have now moved for an award of attorney’s fees
and costs. They seek reimbursement of $7,600 in attorney’s
fees, which represents 47.50 hours at a rate of $160 per
hour. They also request $324 in costs, which includes the
filing fee and the cost of making copies. The total award
sought is $7,924. For purposes of this opinion, we presume
familiarity with our previous opinion.
Private litigants in immigration cases are eligible for
attorneys’ fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”), if they can establish the statutory
grounds for an award. See Muhur v. Ashcroft, 382 F.3d 653
(7th Cir. 2004). To prevail on a motion for fees under
the EAJA, a party must show that: (1) he was a prevailing
party; (2) the Government’s position was not substan-
tially justified; (3) there existed no special circumstances
that would make an award unjust; and (4) he filed a
timely and complete application for fees. 28 U.S.C.
§ 2412(d)(1)(A)-(B); Cunningham v. Barnhart, 440 F.3d 862,
863 (7th Cir. 2006). It is undisputed that the Floroius are
prevailing parties, but the Government contends that its
position was substantially justified and that the applica-
tion for attorney’s fees is incomplete.
The Government bears the burden of establishing that its
position on appeal was “substantially justified.”
Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004).
A position that is substantially justified is one that is
“justified in substance or in the main” or “justified to a
degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
No. 06-1333 3
In its memorandum in opposition to the fee request, the
Government does not attempt to justify in the slightest its
prior position to this court that the IJ may have been “rude
and impatient,” Respondent’s Br. at 41, but remained
“impartial[],” id. at 42. Indeed, the Government concedes
that the IJ’s characterization of the petitioners as “religious
zealots” was “inappropriate.” Respondent’s Mem. at 5.
Instead, the Government argues that it was substantially
justified in defending the IJ’s decision on the ground that
the petitioners had not established past persecution or a
well-founded fear of future persecution. In short, despite
the due process violation, the Government contends that
it was substantially justified in defending the agency
action on the basis of what it contends is the Floroius’
ultimate failure to establish statutory eligibility for the
relief sought.
The Government’s position on this matter rests on a
fundamental misunderstanding of the decision of this
court. The reason that we were required to remand this
case was not that the IJ had made an “inappropriate”
comment. Id. at 5. Instead, the comment, alongside the
other improprieties in the conduct of the hearing that
we discussed in our opinion, were evidence of the clear
bias of the IJ. That bias “taint[ed] the proceedings, erode[d]
the appearance of fairness and create[d] substantial uncer-
tainty as to whether the record below was fairly and reliably
developed,” consequences so severe that they amounted to
a deprivation of due process of law. Floroiu, 481 F.3d at 974
(emphasis added). The Government’s contention that the
Floroius’ claim fails on the merits does not recognize that,
until the taint of bias is removed, there is no basis for any
conclusion whatsoever about the merits of the Floroius’ claim.
Therefore, not only was the position of the United States
4 No. 06-1333
regarding the due process issue itself not substantially
justified, so too is any position that argues from the record
developed in those proceedings—before a biased decision-
maker—lacking in substantial justification. The Govern-
ment’s position, therefore, was not simply incorrect; it
was unreasonable. See Marcus v. Shalala, 17 F.3d 1033, 1036
(7th Cir. 1994) (stating that a position is substantially
justified if a reasonable person could believe it correct and
citing Pierce, 487 U.S. at 566 n.2); see also Golembiewski, 382
F.3d at 725 (noting that our recommended reassignment of
a case to a different Administrative Law Judge and firm
condemnation of the agency’s position, as occurred in this
case, both support the conclusion that the Government’s
position lacks substantial justification).
Moreover, as we have noted, it is the Government’s
burden to establish that its position was substantially
justified. In its response, the Government does not cite a
single authority in support of its position. As outlined
above, our independent review of this case, in light of the
EAJA standards, confirms to us that this is an appropriate
circumstance for an award of fees.
The Government also argues that, if fees are awarded,
the petitioners should not recover their fees at the $160
per hour rate requested because that rate exceeds the
statutory maximum. The maximum statutory rate for a
fee award under the EAJA is $125 per hour, 28 U.S.C.
§ 2412(d)(2)(A)(ii), but the statute does permit a court to
award higher rates; a higher rate may be appropriate
only when “the court determines that an increase in the
cost of living or a special factor, such as the limited avail-
ability of qualified attorneys for the proceedings involved,
justifies a higher fee.” Id.; see also Raines v. Shalala, 44 F.3d
1355, 1360-61 (7th Cir. 1995).
No. 06-1333 5
In support of his request for a higher fee, the petitioners’
attorney states that he has twenty years of experience in
immigration law and is a member of an association of
immigration lawyers. Petitioners’ Mtn. at 4. We have
endorsed the view that attorneys with specialized immigra-
tion experience may be entitled, in certain cases, to an
award in excess of the statutory maximum. We have
suggested such an award may be appropriate when a
petitioner demonstrates that his attorney brought “relevant
expertise to a case, such as knowledge of foreign cultures
or of particular, esoteric nooks and crannies of immigra-
tion law, in which such expertise is needed to give the
alien a fair shot at prevailing.” Muhur, 382 F.3d at 656.
Here, we have only counsel’s statement of his years of
experience in immigration law and a conclusory state-
ment that this case involved “complexities” and extensive
“research [of] procedural rules, substantive and constitu-
tional law.” Aff’t. at 1. We do not consider this blanket
statement of the difficulty of the issues presented and the
years of experience of the practitioner involved sufficient
to justify piercing the statutory ceiling. See Johnson v.
Gonzales, 416 F.3d 205, 213 (3d Cir. 2005) (noting that a
case involving straightforward application of established
standards, rather than “little-known areas of immigration
law or particular knowledge of [the petitioner’s] culture-
factors” did not justify a fee enhancement). As in Muhur
v. Ashcroft, 382 F.3d 653 (7th Cir. 2004), this request is
unaccompanied by sufficient information regarding the
particular qualifications of the attorney involved, the
manner in which those qualifications were brought to
bear on this litigation or information regarding the avail-
ability of attorneys with qualifications that would permit
them to pursue adequately this case. Id. at 214 (denying a
fee enhancement to one of the petitioner’s attorneys
6 No. 06-1333
who had not supported the request with relevant informa-
tion regarding her qualifications). We therefore recalcu-
late the award at a rate of $125 per hour, which, multiplied
by 47.50 hours—a block of time the Government does not
challenge and we think reasonable—yields $5,937.50.
Adding in the uncontested bill of costs of $324, we award
petitioners $6,261.50.
IT IS SO ORDERED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-07