Gomez Barco v. Witte

Case: 21-30637 Document: 00516720266 Page: 1 Date Filed: 04/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 20, 2023
No. 21-30637
Lyle W. Cayce
Clerk
Brigith Dayana Gomez Barco,
Petitioner—Appellant,
versus
Diane Witte; I. Ramos; Merrick Garland; Alejandro
Mayorkas,
Respondents—Appellees,
consolidated with
_____________
No. 21-30748
_____________
Sybreg Valentina Castro Balza,
Petitioner—Appellant,
versus
Merrick Garland, U.S. Attorney General; Alejandro
Mayorkas, Secretary, U.S. Department of Homeland
Security; Diane Witte, in her official capacity as Field
Office Director, New Orleans District of U.S.
Immigration and Customs Enforcement and Removal
Operations; Indalecio Ramos, in his official capacity
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as Acting Warden of South Louisiana Immigration and
Customs Enforcement Processing Center,
Respondents—Appellees.
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:20-CV-497
USDC No. 6:20-CV-866
Before Jones, Smith, and Graves, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
Appellants Brigith Dayana Gomez Barco and Sybreg Valentina Castro
Balza challenge the denial of attorney’s fees under the Equal Access to
Justice Act (“EAJA”) following their successful habeas corpus actions.
Because habeas corpus petitions are not purely civil in nature, and therefore
do not unequivocally fall under the text of the EAJA, the district court
decisions are AFFIRMED.
Background
Brigith Dayana Gomez Barco and Sybreg Valentina Castro Balza are
both citizens of Venezuela. They were both admitted to the United States as
nonimmigrant visitors and remained in the United States beyond the
expiration of their authorization to remain.
In May of 2018, Gomez Barco was convicted of several crimes and
sentenced to 20 months and 15 days of imprisonment. In June of 2019,
Gomez Barco was charged by the Department of Homeland Security (DHS)
with removability under the Immigration and Nationality Act, and, on July
19, 2019, was taken into DHS custody. On August 9, 2019, an immigration
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judge sustained the charge of removability and ordered Gomez Barco
removed to Venezuela.
In May of 2019, Castro Balza was convicted of conspiracy to defraud
the United States and sentenced to 18 months of imprisonment. After serving
her sentence, Castro Balza was charged by DHS with removability under the
Immigration and Nationality Act. On November 21, 2019, an immigration
judge sustained the charge of removability, denied Castro Balza’s request for
voluntary departure, and ordered her removal to Venezuela.
DHS obtained a travel document for Gomez Barco from the
Venezuelan consulate and informed her that removal to Venezuela was
“likely in the reasonably foreseeable future.” Similarly, on December 31,
2019, DHS submitted a request for travel documents from the Venezuelan
government for Castro Balza. The Government attested that there was a
significant likelihood that Castro Balza would be removed in the foreseeable
future. The Parties dispute whether the Government was substantially
justified in its conduct.
Both Gomez Barco and Castro Balza filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2241. The district courts granted both
Petitions. Following her successful § 2241 petition, Gomez Barco moved for
attorney’s fees pursuant to the EAJA. The magistrate judge recommended
that the motion be denied based on the finding that the EAJA does not apply
to § 2241 actions. The district court agreed, but on “alternate grounds.”
Instead, the district court found that the Government’s position was
substantially justified and denied attorney’s fees under the EAJA. Similarly,
Castro Balza moved for attorney’s fees under the EAJA, which the
magistrate judge recommended be denied because the EAJA does not apply
to Section 2241 actions. The district court again agreed that the motion for
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attorney’s fees should be denied, “but [did] so on alternate grounds,”
specifically that the “Government’s position was substantially justified.”
Standard of Review
A district court’s decision to award (or not to award) attorney’s fees
under the EAJA is reviewed for abuse of discretion. Pierce v. Underwood, 487
U.S. 552, 571 (1988). “A district court abuses its discretion when it makes an
error of law or if it bases its decision on a clearly erroneous assessment of the
evidence.” United States v. Wilcox, 631 F.3d 740, 747 (5th Cir. 2011) (internal
citation and quotation marks omitted).
Discussion
“[N]o suit may be maintained against the United States unless the suit
is brought in exact compliance with the terms of a statute under which the
sovereign has consented to be sued.” Koehler v. United States, 153 F.3d 263,
265 (5th Cir. 1998) (citation omitted). In order to recover attorney’s fees
against the Government, Gomez Barco and Castro Balza must show that the
Government waived its sovereign immunity in this situation. Any waiver of
the United States’ sovereign immunity must be express, unequivocal, and
any ambiguity therein strictly construed in favor of the sovereign. Lane v.
Pena, 518 U.S. 187, 192 (1996). The EAJA allows a party who prevails in
litigation against the Government to recover attorney’s fees. “A plaintiff may
be considered a ‘prevailing party’ under the EAJA ‘if they succeed on any
significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.’” Sims v. Apfel, 238 F.3d 597, 600 (5th Cir. 2001)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
The EAJA is a limited waiver of sovereign immunity, allowing for the
imposition of attorney’s fees and costs against the United States in specific
civil actions. Ardestani v. I.N.S., 502 U.S. 129, 137 (1991). The relevant EAJA
language provides that
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[e]xcept as otherwise specifically provided by
statute, 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 (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). To meet its burden that “the position of the
United States was substantially justified or that special circumstances make
an award unjust,” the Government must demonstrate that its position was
“justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S.
at 565. The threshold issue presented here, however, is whether the EAJA
expressly and unequivocally waives the United States’ sovereign immunity
regarding attorney’s fees in immigration habeas corpus actions.
In deciding whether Congress waived the government’s sovereign
immunity for an award of attorney’s fees in habeas actions, “[o]ur task is to
discern the ‘unequivocally expressed’ intent of Congress, construing
ambiguities in favor of immunity.” United States v. Williams, 514 U.S. 527,
531 (1995) (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33,
(1992)). We must determine whether a statutory waiver of sovereign
immunity for awards of attorney’s fees in “civil
actions” unambiguously covers habeas corpus proceedings.
This court has recognized the hybrid nature of habeas corpus
petitions. See, e.g., United States v. Johnston, 258 F.3d 361, 365 (5th Cir. 2001)
(noting that courts have found that a Ҥ 2255 motion is a hybrid, with
characteristics indicative of both civil and criminal proceedings.”); In re
Crittenden, 143 F.3d 919, 920 (5th Cir. 1998) (“habeas proceedings, though
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technically civil, are in reality hybrid cases whose nature is not adequately
captured by the phrase ‘civil action’”) (citing United States v. Cole, 101 F.3d
1076, 1077 (5th Cir.1996)). Additionally, the Fourth Circuit held that the
“EAJA’s waiver of sovereign immunity to awards of attorney[’]s fees does
not extend to habeas corpus proceedings” because “courts have routinely
regarded them as ‘hybrid’ actions.” O’Brien v. Moore, 395 F.3d 499, 505, 508
(4th Cir. 2005). We agree that habeas corpus proceedings are hybrid actions. 1
“[A] waiver of the Government’s sovereign immunity will be strictly
construed, in terms of its scope, in favor of the sovereign.” Lane, 518 U.S. at
192. Since “a habeas corpus proceeding is neither a wholly criminal nor a
wholly civil action, but rather a hybrid action that is unique, a category unto
itself[,]” it is not purely a civil action, and the EAJA does not authorize
attorney’s fees for successful 28 U.S.C. § 2241 motions. O’Brien, 395 F.3d
at 505. The court does not need to reach the issue of whether the
Government was substantially justified in its actions. The district courts are
AFFIRMED.
1
We join the Fourth and Tenth Circuit’s reasoning in O’Brien and Ewing v.
Rodgers, 826 F.2d 967 (10th Cir. 1987) and reject the reasoning of the Second Circuit in
Vacchio v. Ashcroft, 404 F.3d 663 (2d Cir. 2005) and the Ninth Circuit in In re Petition of
Hill, 775 F.2d 1037 (9th Cir. 1985). The reason is straightforward: habeas proceedings are
not purely civil actions, and the EAJA is clear that attorney’s fees may be recovered only in
civil actions.
6