Afzal v. Pompeo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 IQRA AFZAL and MUZAMMAL ASLAM, No. 2:19-cv-01856 WBS AC 13 Plaintiffs, 14 v. ORDER 15 MICHAEL POMPEO, Secretary of State of the United States; CARL 16 RISCH, Assistant Secretary for Consular Affairs; EDWARD J. 17 RAMOTOWSKI, Administrative Deputy Assistant Secretary for 18 Visa Services; ANTJE WEYGANDT, Acting Director, National Visa 19 Center; PAUL W. JONES, Ambassador, United States 20 Embassy, Islamabad, Pakistan; JOHN HOOVER, Deputy Chief of 21 Mission, United States Embassy, Pakistan; KEVIN McALEENAN, 22 Acting Secretary, United States Citizenship and Immigration 23 Services; KENNETH CUCCINELLI, Acting Director, United States 24 Citizenship and Immigration Services; CHRISTOPHER WRAY, 25 Director, Federal Bureau Of Investigations; 26 Defendants. 27 28 1 ----oo0oo---- 2 Plaintiffs Iqra Afzal and her husband, Muzammal Aslam, 3 filed a petition for writ of mandamus before this court to compel 4 various government officials to adjudicate Mr. Aslam’s I-130 5 immigrant visa application. (Compl. (Docket No. 1).) Defendants 6 adjudicated the application and issued the visa while the 7 petition was pending. (Mot. for Attorney’s Fees (“Mot.”) at 4 8 (Docket No. 15).) Plaintiffs now move for an award of attorney’s 9 fees and costs pursuant to the Equal Access to Justice Act 10 (“EAJA”), 28 U.S.C. § 2412(d). (Id.) 11 Ms. Afzal is a United States citizen. (Compl., Ex. A.) 12 She married Mr. Aslam, a citizen of Pakistan, on July 5, 2017. 13 (Id.) Shortly thereafter, Ms. Afzal filed a Form I-130 visa 14 application for her husband to join her in the United States. 15 (Compl. at 2.) United States Citizenship and Immigration 16 Services approved the petition and forwarded it to the National 17 Visa Center, where it was then sent to the United States Embassy 18 in Pakistan. (Id.) Despite completing his visa interview, Mr. 19 Aslam’s visa was delayed due to “administrative processing.” 20 (Compl. at 3.) Plaintiffs filed a writ of mandamus seeking to 21 compel adjudication of the application. (Id.) The parties then 22 stipulated to two extensions of time for the defendants to answer 23 the complaint. (Docket Nos. 7, 10.) However, after defendants 24 voluntarily adjudicated the application, the parties stipulated 25 to dismiss the matter on January 27, 2020. (Docket No. 13.) 26 This motion for attorney’s fees and costs followed. 27 EAJA was designed to reduce the disparity in resources 28 between individuals and the government “by entitling certain 1 prevailing parties to recover an award of attorney fees, expert 2 witness fees and other expenses against the United States unless 3 the government action was substantially justified.” H.R. Rep. 4 No. 1418, 96th Cong., 2d Sess. 6, reprinted in, 1980 U.S. Code 5 Cong. & Admin. News 4984, 4984. Under the statute, plaintiffs 6 are entitled to attorney’s fees and costs if: (1) they are the 7 prevailing party; (2) the government fails to show that its 8 position was substantially justified; (3) the government fails to 9 show special circumstances make an award unjust; and (4) the 10 requested fees and costs are reasonable. Carbonell v. I.N.S., 11 429 F.3d 894, 898 (9th Cir. 2005) (internal citations omitted). 12 The parties dispute whether plaintiffs are a 13 “prevailing party.” (Compare Mot. at 7 with Opp. at 2 (Docket 14 No. 16).) In order to be a prevailing party, plaintiffs must (1) 15 achieve a “‘material alteration of the legal relationship of the 16 parties’” and (2) the “alteration must be ‘judicially 17 sanctioned’.” Carbonell, 429 F.3d at 898 (quoting Buckhannon Bd. 18 & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 19 532 U.S. 598, 604-05 (2001)). A “material alteration” requires 20 achieving “actual relief, not merely a determination of legal 21 merit.” Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land 22 Mgmt., 589 F.3d 1027, 1030 (9th Cir. 2009). The relief “must be 23 relief that the would-be prevailing party sought.” Id. 24 Furthermore, it must be obtained through “judicial imprimatur.” 25 Id. at 1031. “[A] plaintiff is not a prevailing party if it only 26 achieves the desired result because the lawsuit brought about a 27 voluntary change in the defendant’s conduct.” Id. (quoting 28 Buckhannon, 532 U.S. at 601) (internal modifications omitted). 1 Judicial imprimatur empowers “one party to require the other 2 party to do something it otherwise would not be required to do.” 3 Id. (internal citations and modifications omitted). 4 Plaintiffs argue they are a prevailing party because 5 Mr. Aslam’s application was adjudicated after this court gave 6 defendants a deadline to file an answer to plaintiffs’ complaint. 7 (Mot. at 9.) Defendants argue granting the parties’ stipulation 8 to extend time did not set a deadline or amount to a material 9 alteration in the legal status between the parties. (Opp. at 3.) 10 The court agrees with defendants. 11 Here, the court did not order the agency to adjudicate 12 the visa application by a particular date, or at all. Defendants 13 voluntarily adjudicated Mr. Aslam’s visa application without the 14 court’s intervention. Indeed, the court did not even consider 15 the complaint’s merits -- it simply agreed to allow the 16 defendants’ additional time to respond to the complaint. While 17 the adjudication of the application is the relief the plaintiffs 18 sought, the court is not responsible for the “voluntary change in 19 the defendant’s conduct.” See Klamath, 589 F.3d at 1030 (9th 20 Cir. 2009) (quoting Buckhannon, 532 U.S. at 601). Accordingly, 21 because plaintiffs are not a prevailing party in this action 22 their motion for attorney’s fees and their bill of costs to 23 recover the $350 filing fee and $50 administrative fee will be 24 denied.1 25 IT IS THEREFORE ORDERED that plaintiffs’ motion for 26 27 1 Because the court finds the plaintiffs are not a prevailing party, the court expresses no opinion as to whether 28 the government’s actions were substantially justified. WAU 2.49 VALOR OVO ee OI ee AYO VI 1 attorney’s fees (Docket No. 15) and accompanying bill of costs 2 (Docket No. 14) be, and the same thereby are, DENIED. 3 Dated: April 15, 2020 - ak. ‘ SLLLME Subs 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28