Ortega v. Hodgson

CARMEN ORTEGA, Petitioner,

v.THOMAS HODGSON, Respondent.

CIVIL ACTION NO. 11-10358-MBB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

May 10, 2012

MEMORANDUM AND ORDER RE:

PETITIONER'S MOTION FOR ATTORNEY'S FEES, COSTS AND EXPENSES UNDER

THE EQUAL ACCESS TO JUSTICE ACT

(DOCKET ENTRY # 24)

BOWLER, U.S.M.J.

Pending before this court is a motion filed by petitioner Carmen Ortega ("petitioner") for attorney's fees, costs and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Docket Entry # 24). Respondent Thomas M. Hodgson ("respondent") opposes the motion on the grounds that petitioner is not entitled to attorney's fees, costs or expenses because she was not a prevailing party and respondent's conduct was substantially justified. (Docket Entry # 25). The total fee request is $16,596.97 and the total request for costs and expenses is $259.40. (Docket Entry # 24).

FACTUAL BACKGROUND

The pertinent facts are detailed in this court's Memorandum and Order on petitioner's petition for writ of habeas corpus. (Docket Entry # 19). Accordingly, the facts need not be repeated in depth.

Petitioner was born in the Dominican Republic in 1949 and admitted to the United States as a lawful permanent resident ("LPR") on January 29, 1969. (Docket Entry # 1, Ex. 4). In 2008, petitioner pleaded nolo contendere to two separate charges under Rhode Island General Laws section 21-28-4.01(c)(1). (Docket Entry # 1, Ex. 5 & 6). Petitioner completed her sentence for those crimes on November 17, 2009, at which point the United States Department of Homeland Security ("DHS") issued and executed an arrest warrant. (Docket Entry # 12, Ex. 6). Petitioner was in the custody of Immigration and Customs Enforcement ("ICE") beginning on November 17, 2009, pursuant to 8 U.S.C. § 1226(c) ("section 1226(c)") awaiting an administrative adjudication of deportation proceedings. (Docket Entry # 19, p. 1).

On December 1, 2009, petitioner had her first appearance before an immigration judge ("IJ") who recommended that she request a continuance to find an attorney. After requesting and obtaining a series of continuances to find counsel, petitioner obtained an attorney from the Roger Williams Law SchoolImmigration Clinic. (Docket Entry # 19, pp. 3-5). Petitioner's first attorney filed petitioner's pleadings at her sixth appearance before the IJ on February 16, 2010, which was 12 weeks after her first appearance. (Docket Entry # 19, pp. 4-5). Petitioner also sought continuances to file briefs. (Docket Entry # 19, pp. 4-5). On April 13, 2010, the IJ held a hearing on the merits on petitioner's application for cancellation of removal. (Docket Entry # 12, Ex. 16, pp. 40-42).

On April 21, 2010, the IJ issued a decision on the merits that petitioner met her burden of proof and that she "had not been convicted of an aggravated felony, was credible in her testimony, and the positive factors outweighed the negative factors in the case." (Docket Entry # 19, p. 5). On June 29, 2010, DHS appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), contending that petitioner had been convicted of an aggravated felony and her removal should not be canceled. (Docket Entry # 19, pp. 6-7). On November 23, 2010, the IJ issued a decision agreeing with DHS that petitioner had failed to prove that she had not been convicted of an aggravated felony and entered an order to remove petitioner to the Dominican Republic. (Docket Entry # 19, p. 6).

On or about February 1, 2011, petitioner obtained another attorney ("petitioner's attorney"), who is petitioner's presentcounsel of record.¹ (Docket Entry # 19, p. 7). Petitioner's attorney sent respondent a letter requesting her release "while the merits of her appeal are adjudicated" and argued that petitioner's "prolonged detention was unreasonable." (Docket Entry # 1, Ex. 3). Petitioner maintains that respondent never replied to that letter. (Docket Entry # 19, p. 7). In March 2011, petitioner appealed the IJ's November 23, 2010 order to the BIA and also filed this petition for writ of habeas corpus under 28 U.S.C. § 2241 ("section 2241") alleging that her 15 month detention under section 1226(c) was unconstitutional. (Docket Entry # 1).

On September 13, 2011, this court issued the Memorandum and Order. Therein, this court posited that petitioner's detention "appear[ed] unconstitutional" and that "a bail hearing [was] warranted if the BIA has not yet rendered a decision." (Docket Entry # 19, pp. 18-19). Accordingly, this court ordered respondent to file a status report within one week to determine whether the BIA had made a decision on petitioner's appeal of the IJ's November 23, 2010 order. (Docket Entry # 19, pp. 18-19). This court further stated that if "no action has been taken, this court will set a bail hearing to determine petitioner's risk of flight and dangerousness." (Docket Entry # 19, pp. 18-19). OnSeptember 21, 2011, respondent filed a status report informing this court that DHS released petitioner from immigration detention on September 20, 2011, and that the BIA had yet to decide petitioner's appeal. (Docket Entry # 20). Respondent's voluntary release of petitioner on recognizance obviated the need for a bond hearing. (Docket Entry # 24, p. 3).

On October 6, 2011, this court allowed petitioner's motion to dismiss the section 2241 petition as moot (Docket Entry # 21) and entered a final judgment dismissing the case without costs. (Docket Entry # 23). On December 9, 2011, petitioner filed the instant motion requesting attorney's fees, costs and expenses pursuant to the EAJA. (Docket Entry # 24).

DISCUSSION

As an initial matter, respondent contends that the October 6, 2011 dismissal of the case as moot "without costs" bars an award of attorney's fees and costs. (Docket Entry # 23). Respondent invokes the law of the case doctrine. The doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 53 (1st Cir. 2009) (internal quotation omitted). Thus, respondent submits that because the case was dismissed "without costs" in the order of dismissal, the law ofthe case precludes an award of attorney's fees and costs. (Docket Entry # 25, pp. 2-3).

The dismissal order simply referenced "without costs," impliedly referring to costs awarded under Rule 54(d)(1), Fed. R. Civ. P. ("Rule 54(d)(1)"). Contrary to respondent's position, there was no determination of an award of attorney's fees and expenses under Rule 54(d)(2), Fed. R. Civ. P. 54(d)(2) ("Rule 54(d)(2)"). Hence, the law of the case doctrine does not preclude a determination of attorney's fees and expenses under Rule 54(d)(2).

Petitioner bases the request for attorney's fees, costs and expenses on the EAJA. The relevant provision reads as follows:

[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 ² (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) (emphasis added).

Respondent next argues that petitioner is not a prevailing party within the meaning of the EAJA. To be a prevailing party,there must be both a "material alteration of the legal relationship of the parties" and a "judicial imprimatur on the change." Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 604-05 (2001); see also Aronov v. Napolitano, 562 F.3d 84, 89 (1st Cir. 2009). If a party "'succeed[s] on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit,'" there has been a "material alteration of the legal relationship of the parties." Walsh v. Boston University, 661 F.Supp.2d 91, 97 (D.Mass. 2009) (internal quotations and citations omitted).

Regarding the requirement of a judicial imprimatur, a "defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur." Buckhannon, 532 U.S. at 605; see also Smith v. Fitchburg Public Schools, 401 F.3d 16, 22 (1st Cir. 2005). A party does not prevail simply because her suit is the "catalyst" for the change. Buckhannon, 532 U.S. at 605; see also New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir. 2002) (Supreme Court "recently consigned the catalyst theory to the scrap heap . . . rul[ing] that a fee-shifting award cannot be made unless there is a 'judicially sanctioned change in the legal relationship of the parties'") (internal citation omitted).

Petitioner asserts she is a prevailing party because this court found her prolonged detention unconstitutional and the Memorandum and Order prompted respondent to release her from custody. Petitioner relies heavily on the decision of the court in Oscar. The court in Oscar found "an alien's detention to be unlawful and ordered a bond hearing . . . and found that a material change and judicial imprimatur on that change existed even though the case was subsequently dismissed as moot and the bond hearing was never held." Oscar, 595 F.Supp.2d at 168-69; (Docket Entry # 28, p. 2).

Respondent, however, correctly points out that Oscar is distinguishable because the court in Oscar actually did order a bond hearing, id., whereas this court only ordered respondent to submit a status report. (Docket Entry # 25). In particular, this court stated that it would order a bond hearing if the status report revealed the BIA had not yet decided on petitioner's appeal. (Docket Entry # 19, pp. 18-19). This court did not, however, issue an order...