Schwebel v. Crandall

RONNIT SCHWEBEL, Plaintiff, v. KRISTINE R. CRANDALL, Acting Director,Nebraska Service Center, United States Citizenship And Immigration Services,and CHAD WOLF, Acting Secretary, United States Department ofHomeland Security, Defendants.

17 Civ. 8541 (CM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 3, 2021

ORDER DISPOSING OF MOTION FOR EAJA FEE AWARD

McMahon, J.:

This is a case that arose out of peculiar facts. There is, therefore, no reason why the motion addressed in this opinion should not rest on peculiar facts.

The plaintiff in this lawsuit - an individual brought to this country by her parents at the age of eight - prevailed in her effort to obtain citizenship pursuant to the Child Status Protection Act, 8 U.S.C. § 1153(h). She prevailed both in this court and in the Court of Appeals, albeit on different grounds in each court.

Her attorneys have moved in both courts for a fee award pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). Under that statute, an attorney representing a prevailing alien is entitled to collect attorney's fees unless (i) the Government's position in the underlying litigation was "substantially justified" or (ii) special circumstances make an award of fees unjust. 28 U.S.C.A. § 2412(d)(1)(A) In accordance with well-settled law, the EAJA fee application for fees incurred in connection with the appeal had to be directed to the Court of Appeals. "Applications [under the EAJA] for appellate fees in this Circuit should be filed directly with the Court of Appeals." Smith v. Bowen, 867 F.2d 731, 736 (2d Cir. 1989). And, "An application for appellate fees under EAJA should therefore always be presented to the court of appeals" because only the appellate court can determine whether the United States' position was "substantially justified" on appeal. 28 U.S.C. § 2412(d)(1)(A). McCarthy v. Bowen, 824 F.2d 182, 183 (2d Cir. 1987) (per curiam).

That said, the McCarthy court indicated that, "There may be situations where the court of appeals will find it helpful to enlist the aid of the district court in resolving disputed issues concerning an application for appellate fees," but directed that the application for appellate fees "should always be filed with the court of appeals so that the appellate court may determine whether district court assistance is required." Id.

In this case, as in McCarthy, the plaintiff properly presented her fee application to the Court of Appeals, and this court stood down in deference to the Circuit. However, the Second Circuit has remanded the fee request to me. And while the mandate says that "the district court [should] consider the application for attorney's fees," I must assume, in light of McCarthy - on which the remanding panel relied - that I am limited to considering whether an EAJA fee award was appropriate "in connection with proceedings in the district court." Id.

This places me in a somewhat uncomfortable position. Per McCarthy, the point of this remand is to help the Court of Appeals "resolv[e] disputed issues concerning an application for appellate fees." But in the unusual circumstances of this case, I greatly doubt that my views about what went on in the district court would help the Court of Appeals decide whether the Government's position on appeal was "substantially justified." For while the Court of Appeals affirmed the judgment of this court, it did so on a ground that this court specifically declined to reach. And to complicate matters further, the reviewing panel declined to reach the issue decided by this court and "express[ed] no view on" the correctness of this court's reasoning.

I conclude that what is required of me is to decide the only issue I am permitted to decide under Second Circuit law - whether the Government's position in the district court was "substantially justified" - and to determine the amount of the fee award at the district court level if it was not. It may be that some findings I make in connection with that application will be of assistance to the Court of Appeals when it considers the portion of the fee application that only it can decide.

An EAJA Fee Award for Proceedings in the District Court is Appropriate Because The Government's Position in the District Court Was Not "Substantially Justified" And No Special Circumstances Exist That Would Make A Fee Award Unjust

The Government makes no argument that this is a case in which special circumstances exist that would make a fee award unjust. Its only argument against a fee award is its contention, maintained until the end, that its litigation position before this court was "substantially justified."

A litigation position is "substantially justified" when it is "justified in substance or the main - that is, to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). If "reasonable people could differ as to the appropriateness of the contested actin," then a litigation position is "substantially justified." Id. at 564, see also Comm'r, I.N.S. v. Jean, 496 U.S. 154, 158 n.6 (1990) (a position is "substantially justified" when it has a "reasonable basis both in law and fact").

It is the Government's burden to establish that its litigation position was "substantially justified." Moreover, as the Second Circuit held in Healey v. Leavitt, 485 F. 3d 63, 67 (2d Cir. 2007), in deciding whether the Government's position was substantially justified a court may look both to "the position taken by the United States in the civil action[][and] the action or failure to act by the agency upon which the civil action is based." (Citing 28 U.S.C. § 2412(d)(2)(D); Jean, 496 U.S. 154; Sotelo-Aquije v. Slattery, 62 F.3d 54, 57 (2d Cir.1995).) It is, therefore, well-established that "the Government's prelitigation conduct . . . could be sufficiently unreasonable by itself to render the entire Government position not 'substantially justified,'" United States v. $19,047.00 in U.S. Currency, 95 F.3d 248, 252 (2d Cir.1996); see also Env't Def. Fund v. Watt, 722 F.2d 1081, 1086 (2d Cir. 1983) ("The government may lack substantial justification for its position even though it does not insist upon an unreasonable stance through to the resolution of a case.").

In its original decision, this court concluded that the Government's position was "unreasonable," in that it both ran counter to the statutory language and contradicted long-standing positions taken by the government in its own interpretive documents. Schwebel v. Crandall, 343 F. Supp. 3d 322, 330 (S.D.N.Y 2018). A position that is found by a court to be "unreasonable" would seem by definition not to have a "reasonable basis in both law and fact." The argument that the Government's position before this court was "substantially justified" flies in the face of this court's findings.

In reaching its conclusion, the court relied heavily on pre-litigation facts - specifically, the fact that the USCIS Operative Guidance in effect around the period in question provided that a CSPA applicant's age calculation pursuant to 8 U.S.C. §1154(h) was to be determined by the age the alien was "on the date the visa number became available" to the petitioner's parent. The Government concedes that a visa number first became available to petitioner's mother on July 1, 2007, see id. at 329 - although, for reasons that are gone into at length in this court's original opinion, the mother was required to make a subsequent application and obtained a visa number for a second time five years later, by which time Ms. Schwebel had turned 21. This court concluded that the relevant visa number date for purposes of the statute was the 2007 date. The Government points now to statutory guidance issued in November 2020 - long after both this court and the court of appeals ruled against it - which interprets the statute in a manner that gets around this court's decision.¹ Guidance propounded after the Government lost the case in not one but two courts is entirely unpersuasive on the question of whether its arguments were "substantially justified" when they were made.

The Government intimates that, by deciding the appeal on grounds other than those on which this court relied, the Court of Appeals effectively ruled that this court's decision was erroneous - thereby making the Government's position on the issues that were decided by this court "substantially justified." I reject the Government's intimation, which rests on the faulty premise that the Court of Appeals concluded that this court's decision was wrong. It did no such thing. To the contrary: The Court of Appeals stated quite clearly that it was expressing no view the reasoning this court used to conclude that the actions of USCIS in denying Ms. Schwebel's application were arbitrary and capricious. I do not interpret the mandate of the Court of Appeals as either directing or inviting me to reconsider the merits of a decision it left untouched, even as it chose another, less trodden path to achieve the same result, which was citizenship for Ms. Schwebel.

Furthermore, in view of the ultimate ruling of the Court of Appeals, the pre-litigation activity of the Government all but compels a finding that the Government's position in connection with Ms. Schwebel's application cannot be deemed substantially justified.

"One cannot estop the King" is an ancient maxim of Anglo-American law. "The doctrine of estoppel is not available against the government except in the most serious of circumstances."Drozd v. INS, 155 F. 3d 81, 90 (2d Cir. 1988). It is, therefore, hardly surprising that this court chose to rest its decision on other grounds.

But the Court of Appeals concluded that the Government's "affirmative misconduct" in this case was severe enough to warrant application of this much disfavored equitable remedy against the sovereign. Under Healey, a finding that the Government's position is not "substantially justified" is thus perfectly...