Filed: Jul. 17, 2013
Latest Update: Feb. 12, 2020
Summary: eda, may petition this court for attorneys' fees, even though his, attorneys worked on his case on a pro bono basis. In Finkelstein, the Supreme Court, acknowledged that the issue before us is not the broad question, whether remands to administrative agencies are always immediately, appealable.
United States Court of Appeals
For the First Circuit
No. 09-1847
DAVID EDUARDO CASTAÑEDA-CASTILLO;
CARMEN JULIA DE LA CRUZ-CASTAÑEDA;
PIERA DINA CASTAÑEDA,
Petitioners,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
APPLICATION FOR ATTORNEY'S FEES
UNDER EQUAL ACCESS TO JUSTICE ACT
Before
Torruella, Ripple* and Lipez,
Circuit Judges.
William P. Joyce, with whom Joyce & Associates P.C., was on
brief for petitioners.
Matt A. Crapo, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, with whom Tony West,
Assistant Attorney General, Civil Division, and Michelle Gorden
Latour, Assistant Director, were on brief for respondent.
July 17, 2013
*
Of the Seventh Circuit, sitting by designation.
TORRUELLA, Circuit Judge. This is the sixth (and
hopefully the final) installment of Petitioner David Eduardo
Castañeda's tumultuous voyage through our nation's immigration
system. Castañeda began his journey more than twenty years ago,
when he arrived in the United States seeking political asylum based
on the alleged persecution he suffered at the hands of the Shining
Path, a ruthless guerrilla organization bent on overthrowing the
government of Perú. On February 6, 2012, after his case generated
three court-of-appeals opinions, one district court opinion, and
numerous administrative determinations, an Immigration Judge (IJ)
finally granted asylum to Castañeda and his family members.
Subsequently, on April 12, 2012, we entered final judgment closing
Castañeda's case. See Castañeda-Castillo v. Holder, 676 F.3d 1
(1st Cir. 2012) ("Castañeda V"). In so doing, we cautioned that we
were taking "no position on the deadline for filing, or potential
merit of, an application for attorneys' fees under the Equal Access
to Justice Act." Id. at 3. On July 12, 2012, Castañeda filed such
a petition, seeking to be awarded the attorneys' fees he incurred
while litigating his case in federal court, as well as the
attorneys fees related to the administrative proceedings he
underwent. After careful consideration, we grant his petition in
part and deny it in part.
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I. Background
The full history of this case is chronicled in the four
prior opinions of this court and one opinion of the U.S. District
Court for the District of Massachusetts. See Castañeda-Castillo
v. Gonzales, 464 F.3d 112 (1st Cir. 2006) ("Castañeda I");
Castañeda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir. 2007) (en
banc) ("Castañeda II"); United States v. Castañeda-Castillo, 739 F.
Supp. 2d 49 (D. Mass. 2010) ("Castañeda III"); Castañeda-Castillo
v. Holder, 638 F.3d 354 (1st Cir. 2011) ("Castañeda IV"); and
Castañeda V, 676 F.3d 1. The following relevant facts are culled
from those decisions.
A. The Accomarca Massacre
Castañeda, a former lieutenant in the Peruvian army, was
accused of taking part in the massacre of innocent villagers in
Accomarca, Perú (the "Accomarca Massacre") in 1985, during the
country's bloody struggle with the revolutionary Shining Path
movement. Castañeda II, 488 F.3d at 19. Castañeda led one of the
four patrols involved in the Accomarca operation but was three to
five miles away from the massacre,
id., and was not in any way
involved in, or responsible for, the heinous actions of the larger
force. Castañeda
IV, 638 F.3d at 357; Castañeda
II, 488 F.3d at
19. The Peruvian Senate Human Rights Commission investigated the
events and determined that Castañeda's squad "was not involved in
any confrontations with [the] fugitive civilians" who were killed.
-3-
Castañeda II, 488 F.3d at 19. Despite this finding, Castañeda was
charged with homicide and abuse of authority before a military
tribunal, although said charges were ultimately dismissed.
Castañeda
V, 676 F.3d at 2. The dismissal was affirmed by the
Supreme Council of Military Justice, Perú's highest court with
jurisdiction over military justice matters. See id.; Castañeda
III, 739 F. Supp. 2d at 52.1 Notwithstanding, Castañeda's name
became associated with the Massacre, and he and his family began
receiving death threats from the Shining Path, Castañeda
IV, 638
F.3d at 357-58, a violent group that "is among the world's most
ruthless guerrilla organizations," Castañeda
I, 464 F.3d at 114
n.3. Thereafter, members of the Shining Path sent death threats to
Castañeda, attempted to murder him twice and to kidnap one of his
daughters, and set off explosives in front of his parent's home.
Castañeda
I, 464 F.3d at 120-21. In fact, a bomb that went off
shortly after he left a restaurant with his family killed several
innocent bystanders. Castañeda
IV, 638 F.3d at 358. In 1991,
following the murder of his neighbor, a former military officer who
apparently was also in the Shining Path's cross-hairs, Castañeda
and his family decided to flee Perú, and they arrived in the United
States on tourist visas. Castañeda
I, 464 F.3d at 120-21.
1
In fact, several of the officers in the other patrols were
charged and convicted in Peruvian military tribunals. Castañeda
III, 739 F. Supp. 2d at 52.
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B. The Petition for Asylum; Castañeda I and II
In 1993, Castañeda filed the petition for asylum that
gave rise to the instant saga. Castañeda V, 676 F.3d at 2.2 It
was not until 2004 that the petition was denied by an IJ, who found
that Castañeda was barred from applying for asylum and withholding
of removal because he had participated in the persecution of others
on account of their political opinion, given his presumed role in
the military during the Accomarca Massacre.
Id. The Board of
Immigration Appeals (BIA) affirmed in 2005.
Id. Castañeda was
subsequently incarcerated and spent the next five years in the
Department of Homeland Security's (DHS) custody, until he was
finally released on bail in August 2010.
Id. In the meantime,
Castañeda pursued a petition for review before us challenging the
BIA's denial of his petition for asylum (the "first petition for
review"). Said petition gave rise to our decision in Castañeda I,
where we found that the BIA's determination that Castañeda had
engaged in the persecution of others was not supported by
substantial evidence. Castañeda
I, 464 F.3d at 137. Subsequently,
we granted the government’s request to rehear the case en banc,
which resulted in our decision in Castañeda II. There, we held
that for the persecutor bar to apply to Castañeda, he must have had
prior or contemporaneous knowledge that his actions during the
2
Castañeda listed his wife and two daughters as derivative
beneficiaries.
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Accomarca Massacre had the effect of assisting in the persecution
of others. Castañeda II, 488 F.3d at 21-22. We remanded the case
back to the immigration agencies for them to determine whether
Castañeda was credible when he denied having said knowledge.
Id.
at 24-26.
Following remand, the IJ again denied Castañeda's
application for asylum and withholding of removal, holding that (1)
he had not met his burden of proving that he did not persecute
others; (2) he had not established that he was persecuted on
account of his membership in a particular social group or because
of his political opinion; and (3) he had not established that he
had an objectively reasonable fear of future persecution.
Castañeda
IV, 638 F.3d at 359. In May 2009, the BIA reversed the
IJ as to point (1), concluding that there was insufficient evidence
to support the IJ's finding that Castañeda had prior or
contemporaneous knowledge of the Accomarca Massacre.
Id.
Nevertheless, the BIA upheld the IJ's decision as to points (2) and
(3), reasoning that the Shining Path did not target Castañeda
because he was a member of a particular social group -- members of
the military who were linked to the Accomarca Massacre -- rather,
they targeted him out of revenge for the massacre.
Id. at 362-63.
The BIA then found that Castañeda failed to prove that he had a
genuine fear of future persecution were he to return to Perú and
thus denied his application for asylum.
Id. at 359.
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C. Castañeda IV
In June 2009, Castañeda filed a petition for review of
the BIA's ruling before this court (the "second petition for
review"). Said petition gave rise to our decision in Castañeda IV,
where we held that the BIA committed legal error when it reasoned
that the Shining Path's vindictive motivation precluded a finding
of persecution on account of a statutorily protected ground. Id.
at 363. In light of the "ordinary remand rule," we sent the case
back to the BIA for consideration of whether "Peruvian military
officers whose names became associated with the Accomarca massacre"
constituted a cognizable social group.
Id. We emphasized,
however, that the "unusually prolonged and convoluted history of
this case prompt[ed] us to take the further step of retaining
jurisdiction over Castañeda's appeal while the BIA addresses these
issues on remand."
Id.
On October 11, 2011, the BIA ruled that military officers
linked to the Accomarca Massacre comprised a cognizable social
group and that Castañeda suffered past persecution due to his
membership in such a group. Castañeda
V, 676 F.3d at 3. The case
was remanded to the IJ so that she could determine whether the
government could rebut the presumption that Castañeda harbored a
well-founded fear of persecution if he were to return to Perú.
Id.
On February 6, 2012, an IJ granted asylum to Castañeda and his
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family, effectively laying to rest an application for asylum that
had been pending for almost twenty years. Id.
D. Castañeda V
Castañeda's legal battles, however, were not over. He
returned to this court and filed a motion requesting that we enter
a final judgment in his favor, noting that, in Castañeda IV, this
court had elected to retain jurisdiction over the post-remand
proceedings, and that it was now time to "officially terminate this
[c]ourt's jurisdiction." In response, the government argued that
we had no authority to issue a final judgment, because we "lack[ed]
jurisdiction to pass judgment on the merits of this case." Id. It
maintained that Congress granted courts of appeals jurisdiction to
review only final orders of removal, and that, as the IJ's decision
to grant asylum to Castañeda was not such an order, we lacked
jurisdiction to enter a final judgment effectively sanctioning her
award of asylum as final.
In Castañeda V, we rejected that argument. 676 F.3d at
1. We explained that when we remanded this case to the BIA in
Castañeda IV, we "explicitly retained jurisdiction for the express
purpose of ensuring a speedy resolution of this case."
Id. at 3.
As such, we dismissed as moot the petition for review over which we
had retained jurisdiction in Castañeda IV, and directed the clerk
of the court to issue a final judgment in Castañeda's favor.
Id.
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The clerk of the court entered said judgment on April 12, 2012, the
same date that Castañeda V was decided.
E. The Extradition Proceedings
During the pendency of Castañeda's second petition for
review, on March 9, 2010, the government filed a request for the
extradition of Castañeda to his native Perú. Castañeda III, 739 F.
Supp. 2d at 50. The request stemmed from the government of Perú's
renewed decision to charge Castañeda with the crimes of aggravated
murder, kidnapping and forced disappearance arising from the events
surrounding the Accomarca Massacre. This request was the result of
a change in Perú's government and the revocation of an amnesty law
passed in 1995 which protected members of the military from further
prosecution. Id. at 52. No effort was made to extradite Castañeda
until five years after the new Peruvian government filed charges
against him.
Id. at 53. Nevertheless, the government argued
before the federal district court in Massachusetts that Castañeda
should be held in custody without bail until a determination of
extraditability was made under 18 U.S.C. § 1834.
Id. at 50. On
August 17, 2010, the district court in Castañeda III granted
Castañeda's request to be released on bail, finding that he had
established special circumstances warranting such relief.
Id. at
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63-64. The government ultimately decided to voluntarily dismiss
the extradition proceedings against Castañeda in April 2011.3
F. The Habeas Corpus Proceedings
Castañeda also filed a petition for a writ of habeas
corpus with the district court on February 2010, noting that he had
been detained by DHS for nearly four and a half years while he
waited for his asylum application to be adjudicated, despite having
no criminal history and not being subject to mandatory detention.
Given the extradition request, Castañeda was transferred to the
custody of the U.S. Marshal service, and the government moved for
the dismissal of the habeas petition on the grounds that Castañeda
had named the wrong custodian, presumably the DHS. However, as
previously recounted, Castañeda ended up being released on bail on
August 2010, in the context of his extradition proceeding.
II. The Petition for Attorneys' Fees
Having dotted the tortured factual landscape, we now
proceed to discuss Castañeda's petition for attorneys' fees.
3
Since American courts normally give deference to decisions of
foreign tribunals, Casey v. Dep't of State, 980 F.2d 1472, 1477
(D.C. Cir. 1992)(discussing deference given to a determination of
a foreign court in extradition proceeding), this was probably a
recognition that Castañeda's new charges in Perú were likely to be
dismissed under Peruvian double jeopardy principles. See Castañeda
IV, 638 F.3d at 361.
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On July 12, 2012, Castañeda filed the amended petition
for attorneys' fees that is now before us.4 He first seeks an
award for fees he incurred in relation to his first petition for
review of the BIA's September 9, 2005 removal order, which resulted
in this court's decisions in Castañeda I and Castañeda II (en
banc). Second, Castañeda seeks an award of attorneys' fees
incurred in relation to his second petition for review of the BIA's
May 26, 2009 removal order, which resulted in this court's
decisions in Castañeda IV and Castañeda V. In addition to seeking
an award with respect to those four decisions, Castañeda seeks an
award of attorney's fees and expenses incurred during the
post-remand administrative removal proceedings that took place
after the remands ordered in Castañeda II and Castañeda IV.
Castañeda also seeks an award of attorneys' fees and expenses
incurred during the extradition and habeas proceedings that were
4
Castañeda had filed an earlier petition for attorneys' fees on
April 6, 2012. The main difference between the two petitions seems
to be that, in the amended petition, Castañeda argues for a fee
enhancement under the EAJA. See 28 U.S.C. § 2412(d)(2)(A). It is
also worth noting that Castañeda's attorneys worked on this case on
a pro bono basis, and that he maintains that this should not be an
impediment to an award under the EAJA. The government does not
dispute this, and the case law seems to support Castañeda in this
regard. See Blum v. Stenson, 465 U.S. 886, 894-95 (1984) ("It is
also clear from the legislative history [of an analogous fee-
shifting statute, 42 U.S.C. § 1988] that Congress did not intend
the calculation of fee awards to vary depending on whether
plaintiff was represented by private counsel or by a nonprofit
legal services organization."). We therefore hold that Castañeda
may petition this court for attorneys' fees, even though his
attorneys worked on his case on a pro bono basis.
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conducted before the district court, as well as during several
administrative bond proceedings that were conducted before the
Executive Office for Immigration Review ("EOIR"). Finally,
Castañeda also seeks to be awarded the fees incurred during the
preparation of both his original and amended application for
attorneys' fees.
III. The Equal Access to Justice Act
In the United States, each party is usually required to
bear its own attorneys' fees; "the prevailing party is not entitled
to collect them from the loser." Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep't. of Health & Human Res., 532 U.S. 598, 602 (2001).
The Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, is an
exception to that rule. It provides in part that
a court shall award to a prevailing party . .
. fees and other expenses . . . incurred by
that party in any civil action . . . 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). The EAJA aims to "ensure that certain
individuals . . . will not be deterred from seeking review of, or
defending against, unjustified governmental action because of the
expense involved." Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir.
2009) (citing Scarborough v. Principi,
541 U.S. 401, 407 (2004)).
The Act "reduces the disparity in resources between individuals .
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. . and the federal government." Id. (citing H.R. Rep. No. 99-
120(I), at 4 and 1985 U.S.C.C.A.N. at 133). Nevertheless, since it
effectively amounts to a partial waiver of sovereign immunity by
the United States, its scope must be strictly construed in favor of
the government. Ardestani v. I.N.S.,
502 U.S. 129, 137 (1991).
The EAJA also mandates that a party seeking an award of
attorneys' fees must submit his petition "within thirty days of
final judgment in the action." 28 U.S.C. § 2412(d)(1)(B).
Consequently, in order for Castañeda to prove himself eligible for
an award of attorneys' fees under the EAJA, he must establish (1)
that he is the prevailing party in the civil action; (2) that his
petition was timely filed; (3) that the government's position was
not substantially justified; and (4) that no special circumstances
make an award against the government unjust. Comm'r, I.N.S. v.
Jean, 496 U.S. 154, 158 (1990); Norris v. S.E.C.,
695 F.3d 1261,
1264 (Fed. Cir. 2012).
IV. Eligibility Under EAJA
We now proceed to discuss whether Castañeda meets the
four requirements listed above. We do so in turn.
A. Prevailing Party Status
1. Applicable Law
The term "prevailing party," as used in the EAJA and
other fee-shifting statutes, is a "legal term of art." Buckhannon,
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532 U.S. at 603.5 To be considered a prevailing party, a party
must be "awarded some relief by the court."
Id. The party must
also show (1) a "material alteration of the legal relationship of
the parties" and (2) a "judicial imprimatur on the change."
Aronov,
562 F.3d at 89. The Supreme Court has held that there are only two
situations that meet the judicial imprimatur requirement: (1) where
the party has "received a judgment on the merits" or (2) where the
party "obtained a court-ordered consent decree."
Buckhannon, 532
U.S. at 605. A party's mere success in accomplishing its
objectives, however, is insufficient to confer it prevailing party
status. Id. at 606;
Aronov, 562 F.3d at 89.
2. Discussion
The government recognizes that Castañeda is the
prevailing party in Castañeda II and Castañeda IV, but not in
Castañeda V. It argues that our decision to issue a final judgment
in Castañeda V did not confer upon Castañeda the status of
prevailing party, because said decision did not effectively "rule
on the merits" of Castañeda's second petition for review. The
government stresses that this court had already ruled on the merits
of such a petition in Castañeda IV, and that, following the remand
5
The Supreme Court in Buckhannon interpreted the term "prevailing
party" as used in other fee-shifting statutes, namely those present
in the Fair Housing Act Amendments of 1988, 42 U.S.C. § 3613(c)(2)
and the Americans with Disabilities Act, 42 U.S.C. § 12205.
Nevertheless, the Supreme Court's interpretation is "presumed to
apply generally to all fee-shifting statutes that use the
prevailing party terminology." Aronov, 562 F.3d at 89.
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ordered in that case, the immigration agencies had independent
authority to grant Castañeda asylum. Once the decision was made by
an IJ to grant Castañeda asylum, the argument goes, such decision
did not depend on this court's judicial imprimatur or approval in
the form of a final judgment. Therefore, the government argues
that the parties' legal relationship remained the same both before
and after we entered final judgment in Castañeda V, and that such
judgment cannot confer prevailing party status upon Castañeda under
the EAJA.
Castañeda, for his part, argues that he is the prevailing
party in each of the proceedings of Castañeda I, Castañeda II,
Castañeda IV and Castañeda V. He claims that the government has
mistakenly considered Castañeda IV and Castañeda V to be two
separate cases, when in reality they are not, because this court
did not issue a mandate after the Castañeda IV decision; instead,
it decided to retain jurisdiction and refrain from terminating that
proceeding.6 As such, Castañeda argues the decisions in Castañeda
IV and Castañeda V should be construed as forming part of the same
"civil action" under the EAJA, an action which was not terminated
until after Castañeda V. Therefore, Castañeda maintains he became
a prevailing party in Castañeda V, when this court noted its
6
This court did issue a mandate after our decision in Castañeda
IV, but that mandate was later recalled as having been issued in
error.
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previous findings in Castañeda IV, entered a final judgment and
issued a mandate effectively terminating the case.
We agree with Castañeda that he should be accorded
prevailing party status with respect to Castañeda V. In reaching
our conclusion, we have found instructive the Federal Circuit’s
ruling in Former Employees of Motorola Ceramic Products v. United
States, 336 F.3d 1360 (Fed. Cir. 2003). There, a pair of employees
who had been dismissed from their respective employments petitioned
the Department of Labor (DOL) for benefits.
Id. at 1362. The DOL
denied their petitions and the employees sought review before the
Court of International Trade (CIT).
Id. The CIT found the DOL’s
decision to be erroneous and thus remanded the case back to the DOL
for reconsideration, but retained jurisdiction over the proceedings
during remand.
Id. The employees were granted their benefits and
afterwards filed an application for attorneys' fees pursuant to the
EAJA.
Id. at 1363. The CIT denied the petition, holding that its
remand to the DOL did not constitute a judgment on the merits that
afforded prevailing party status to the employees, and the
employees appealed to the Federal Circuit.
Id.
In order to determine whether the CIT’s remand order to
the DOL constituted relief on the merits, the Federal Circuit
relied on the Supreme Court's holdings in Sullivan v. Hudson,
490
U.S. 877 (1989) and Shalala v. Schaefer,
509 U.S. 292 (1993), and
distilled the following rule:
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where the plaintiff secures a remand requiring
further agency proceedings because of alleged
error by the agency, the plaintiff qualifies
as a prevailing party (1) without regard to
the outcome of the agency proceedings where
there has been no retention of jurisdiction by
the court, or (2) when successful in the
remand proceedings where there has been a
retention of jurisdiction.
Former Emps., 336 F.3d at 1366.7 It follows that, under the second
prong of the rule, a court’s remand order to an administrative
agency, with retention of jurisdiction, creates a prevailing party
"if the party obtains the benefits it sought before the agency."
Id. at 1367 (our emphasis); see also Flom v. Holly Corp., 276 F.
App'x 615, 617 (9th Cir. 2008) (citing Former Employees with
approval). The court thus found that the employees qualified as
prevailing parties under this prong, because they obtained relief
at the DOL after the CIT had remanded the case due to the agency’s
error. Former
Emps., 336 F.3d at 1367.
In the case at bar, our remand order in Castañeda IV
explicitly stated that we were to retain jurisdiction during the
agency proceedings, due to the "unusually prolonged and convoluted
history of this case." Castañeda IV, 638 F.3d at 363. There is no
doubt that a material alteration of the relationship between the
parties ocurred when an IJ granted Castañeda his request for
asylum. However, in order to become a prevailing party, there must
have been a "judicial imprimatur" of that change. That imprimatur
7
The cases of Hudson and Schaefer will be discussed infra.
-17-
did not come until our decision in Castañeda V, when we
acknowledged that "all factual and legal issues relating to
Petitioners' eligibility for asylum [had] now been resolved in
their favor by the administrative agency" and directed the clerk of
the court to issue a final judgment. Castañeda V, 676 F.3d at 2.
In essence, the final judgment we entered pursuant to Castañeda V
is the final judgment "on the merits" we would have entered after
deciding Castañeda IV, were it not for our decision to retain
jurisdiction over the ensuing agency proceedings. In requesting
that this court enter such a final judgment, Castañeda correctly
attempted to comply with the strictures of the Buckhannon decision,
which required him to secure a judgment on the merits or a court-
approved settlement in order to be considered a prevailing
party.
532 U.S. at 605-06. He achieved the desired result and thus became
a prevailing party once the final judgment was entered.
As can be seen, in arriving at this conclusion we have
traveled down a similar path to the one followed in Former
Employees, except that we consider that Castañeda only became a
prevailing party when, per his request, we entered a final judgment
pursuant to Castañeda V. We think this was a necessary step, given
Buckhannon's requirement that there be a "judgment on the merits,"
id., and the Supreme Court's holding in Melkonyan v. Sullivan,
501
U.S. 89, 94 (1991), that a "final judgment" under the EAJA "can
only be the judgment of a court of law."
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B. Timeliness
1. Background
The government's second argument is that Castañeda's
petition for attorneys' fees is untimely under 28 U.S.C. §
2412(d)(1)(B). Said provision states that a proper application for
attorneys' fees must be submitted "within thirty days of final
judgment in the action." Id. A "final judgment" is defined by the
EAJA as a judgment that is final and unappealable.
Id. at §
2412(d)(2)(G). Castañeda notes that this court elected to retain
jurisdiction after its decision to remand in Castañeda IV, which
was decided on March 24, 2011. Following remand, Castañeda was
able to prevail and obtain asylum in the immigration agencies, and
he thus returned to this court requesting that we enter a final
judgment in his favor. We entered such a final judgment, according
to our own terms, on April 12, 2012, pursuant to our order in
Castañeda V. Therefore, Castañeda argues that said judgment became
a "final judgment," within the meaning of the EAJA, on July 11,
2012, when the period for seeking certiorari to the Supreme Court
expired. See Sup. Ct. R. 13.1. The decision to remand in
Castañeda IV, according to him, also became final and unappealable
as of that date, because this court retained jurisdiction over his
petition for review pending the completion of the post-remand
administrative proceedings at the immigration agencies.
Consequently, as he filed his amended petition for attorneys' fees
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the day after, on July 12, 2012, Castañeda claims he is well within
the 30-day time period allowed by the EAJA.
The government, for its part, claims that Castañeda's
petition is untimely. It counters that if Castañeda wanted to
recover attorneys' fees for the proceedings that led to the
decision in Castañeda IV, he should have filed his petition by July
22, 2011, that is, 120 days after this court issued its judgment in
that decision.8 The government claims that the judgment issued
pursuant to Castañeda IV became a "final judgment" under the EAJA
on June 22, 2011, despite this court's decision to retain
jurisdiction on the matter and forgo entering its own final
judgment until Castañeda V was decided. In support of its
contention, it cites to several Supreme Court cases which have
interpreted when a judgment becomes "final" for EAJA purposes, but
those cases deal with judicial review of Social Security
Administration ("SSA") cases under 42 U.S.C. § 405(g) by the
district courts. The government, nevertheless, relies on those
cases to argue that this court was stripped of its ability to
retain jurisdiction over Castañeda's petition for review following
8
On the same date we issued our decision in Castañeda IV, the
clerk's office issued a judgment decreeing that we had vacated the
decision of the BIA and remanded the case for further proceedings
consistent with the opinion. The government arrives at the 120-day
total by adding the 90 days it took for the Castañeda IV judgment
to become final and unappealable, per Sup. Ct. R. 13.1, and the 30
days provided by the EAJA to file a petition for attorneys fees,
per 28 U.S.C. § 2412(d)(1)(B).
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our remand order in Castañeda IV, and that instead we were supposed
to enter a final judgment relinquishing jurisdiction on the matter,
thereby triggering the 120-day time period to file a petition for
attorneys' fees under the EAJA.
2. Supreme Court Jurisprudence on Judicial Review
of SSA Cases
In order to understand the government's argument, it is
necessary to provide a brief summary of the specialized nature of
judicial review of SSA agency determinations. In SSA cases, a
district court reviewing a decision rendered by an SSA agency may
only remand a case back to that agency under either sentence four
or sentence six of section 405(g). See Melkonyan, 501 U.S. at 90.
Under sentence four of section 405(g), the district court must
enter "a judgment, affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding
the cause for a rehearing," 42 U.S.C. § 405(g), whereas under
sentence six, the district court "does not rule in any way as to
the correctness of the administrative determination," but instead
remands the case to the agency for further fact finding,
Melkonyan,
501 U.S. at 98.9 Further, following a sentence six remand, the
agency "must return to the district court to 'file with the court
9
Sentence six of section 405(g) provides that "[t]he court may
. . . remand the case to the Commissioner of Social Security for
further action by the Commissioner of Social Security, and it may
at any time order additional evidence to be taken before the
Commissioner of Social Security . . . ." 42 U.S.C. § 405(g).
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any such additional or modified findings of fact and decision,'"
along with a supplemental record of the post-remand proceedings.
Id. (quoting 42 U.S.C. § 405(g)).
The Supreme Court distinguished between sentence four and
sentence six remand orders for the first time in Sullivan v.
Finkelstein, 496 U.S. 617 (1990). In Finkelstein, a case that did
not concern the EAJA, the SSA agency had denied a widow's
application for disability benefits, and the widow sought review in
the district court under section 405(g). The district court
reversed in part the decision of the SSA agency and remanded the
case so that the agency could determine whether the widow could
engage in any gainful activity. The Secretary of Health and Human
Services appealed to the court of appeals, but said court dismissed
the appeal for lack of jurisdiction, reasoning that the district
court's decision to remand the case to the SSA agency was not an
appealable "final decision" under 28 U.S.C. § 1291. On certiorari,
the Supreme Court differed and held that the district court's
remand was a sentence four remand under section 405(g), and that
said type of remand order is an appealable final decision. The
Court reasoned that the district court's order was "unquestionably"
a judgment because "it terminated the civil action challenging the
Secretary's final determination that [the] respondent was not
entitled to benefits, set aside that determination, and finally
decided that the Secretary could not follow his own regulations in
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considering the disability issue." Id. at 625. The Court ruled
that sentence four of section 405(g) "directs the entry of a final,
appealable judgment even though that judgment may be accompanied by
a remand order."
Id. at 629 (our emphasis). It placed much
emphasis on the fact that sentence eight of section 405(g) provides
that "[t]he judgment of the court shall be final except that it
shall be subject to review in the same manner as a judgment in
other civil actions."
Id. at 625 (emphasis in original).
A year after Finkelstein was decided came the Supreme
Court's decision in Melkonyan, where the Court was faced with the
question of whether an administrative decision rendered following
a remand from a district court could be a "final judgment" within
the meaning of the EAJA. The Court answered in the negative,
holding that the "plain language [of the EAJA] makes clear that a
'final judgment' under § 2412 can only be the judgment of a court
of law." Melknonyan, 501 U.S. at 94 (quoting 28 U.S.C. §
2412(d)(1)(B)). According to the Court, "[i]n sentence four
[remand] cases, the [EAJA] filing period begins after the final
judgment ('affirming, modifying, or reversing') is entered by the
[district] court and the appeal period has run, so that the
judgment is no longer appealable." Id. at 102 (quoting 42 U.S.C.
§ 405(g) and citing 28 U.S.C. § 2412(d)(2)(G)). On the other hand,
the Court clarified that the EAJA filing period in sentence six
remand cases "does not begin until after the post-remand
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proceedings are completed, the Secretary returns to court, the
court enters a final judgment, and the appeal period runs." Id.
The Court then concluded that "in § 405(g) actions, remand orders
must either accompany a final judgment affirming, modifying or
reversing the administrative decision in accordance with sentence
four, or conform with the requirements outlined by Congress in
sentence six."
Id. at 101-02 (emphasis added).10
Two years later, in Schaefer, the Supreme Court reviewed
an EAJA application for attorneys' fees filed after the district
court remanded an SSA case pursuant to sentence four of section
405(g). Schaefer is significant because the district court in that
case clarified that, although it was remanding the case under
sentence four, it retained jurisdiction and planned to enter a
final sentence four judgment after the completion of the post-
remand administrative proceedings. 509 U.S. at 295. The EAJA
applicant in that case thus argued that the "final judgment," for
purposes of the EAJA, would be the final judgment entered by the
district court after all post-remand proceedings were completed at
the agency, and not the district court's order remanding the case
back to the agency.
Id. at 297. The Supreme Court rejected this
argument, stating that it "was inconsistent with the plain language
10
Nevertheless, the Melkonyan Court could not determine whether
the petitioner's EAJA application was timely, as it was unclear
what type of remand the district court had intended to carry out,
so it remanded the case back to the lower courts for clarification.
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of sentence four, which authorizes a district court to enter a
judgment 'with or without' a remand order, not a remand order 'with
or without' a judgment." Id. (quoting Finkelstein, 496 U.S. at
629). It further noted that a sentence four remand order
constitutes a final judgment under the EAJA, as it "terminat[es]
the litigation with victory for the plaintiff."
Id. at 301. Thus,
the Court held that the 30-day time period for filing an EAJA
petition for attorneys' fees, following a sentence four remand,
begins immediately upon expiration of the time to appeal said
remand order.
Id. at 297-98.
3. The Government's Arguments
The government contends that Schaefer, as well as the
other Supreme Court cases mentioned above, compels the conclusion
that remands in the immigration context should be treated the same
way as remands in the social security context. Particularly, the
government posits that our remands to the BIA in Castañeda II and
Castañeda IV are akin to the remands authorized under sentence four
of section 405(g). It emphatically calls our attention to case law
from the Third, Seventh and Ninth Circuits, holding that remands to
the BIA in immigration cases are analogous to the sentence four
remands at issue in the Supreme Court's SSA cases. See Johnson v.
Gonzales, 416 F.3d 205, 209-10 (3d Cir. 2005); Muhur v. Ashcroft,
382 F.3d 653, 654-55 (7th Cir. 2004); Rueda-Menicucci v. I.N.S.,
132 F.3d 493, 495 (9th Cir. 1997). Therefore, the government
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contends that, if Castañeda wanted to recoup the attorneys' fees
and expenses he incurred in Castañeda II and Castañeda IV, he
should have filed his petition for attorneys' fees within 30 days
after the judgments issued in those cases became final and
unappealable, that is, by September 20, 2007, and July 22, 2011,
respectively.11 Instead, Castañeda filed his petition on July 12,
2012 (91 days after we issued our decision in Castañeda V) which is
long after the judgments entered in Castañeda II and Castañeda IV
"became final," according to the government's calculations.
The decision to retain jurisdiction following our remand
in Castañeda IV, the government posits, is inconsistent with the
Supreme Court's definition of a "final judgment" under the EAJA.
According to the government's reading of the Supreme Court's
jurisprudence, this court had to enter a final judgment after
deciding Castañeda IV, because our decision there effectively ruled
"on the merits" of Castañeda's petition for review, vacated the
decision of the administrative agency, and remanded the case for
further proceedings consistent with the opinion. The government
argues that, after this course of action, there was nothing left
for this court to do but to relinquish jurisdiction and enter a
11
In effect, the government is arguing that Castañeda should have
filed two petitions for attorneys' fees, one following our decision
in Castañeda II, and another following our decision in Castañeda
IV.
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judgment on the merits, as commanded by sentence four of section
405(g) and Schaefer.
The government goes on to argue that, despite this
court's decision to retain jurisdiction over the post-remand
proceedings in Castañeda IV, it would have been able to appeal the
judgment in that case as a "final order" under 28 U.S.C. § 1291.
According to the government, the final judgment we entered in
Castañeda V cannot make the Castañeda IV judgment appealable again,
as the former did not purport to reaffirm the latter's ruling on
the merits. Therefore, we are urged to construe the judgment
entered pursuant to Castañeda IV as a "final judgment" for purposes
of the EAJA, once the time period for seeking certiorari before the
Supreme Court expired.
4. Castañeda's Arguments
Castañeda, for his part, argues that this court's remand
in Castañeda IV should be construed as a sentence six remand, as
opposed to a sentence four remand. He strenuously notes that this
court elected to retain jurisdiction over the post-remand
administrative proceedings following our decision in Castañeda IV,
which according to him, effectively takes that remand outside of
the purview of sentence four of section 405(g). Although he admits
that sentence four requires a remanding court to relinquish
jurisdiction over the matter and terminate the case on the merits,
he points out that there is no similar provision in any of the
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statutes governing judicial review of immigration cases. The
Third, Seventh and Ninth Circuit cases relied upon by the
government, he also claims, are distinguishable from his case,
because in those cases each court plainly relinquished jurisdiction
over the case when it remanded to the BIA.
In addition, following a sentence six remand, the SSA
agency is required to return to the district court and file any
additional or modified findings of fact, as well as its decision
adjudicating the merits of the petitioner's claims, so that the
court may review it and enter a final judgment on it. Castañeda
theorizes that we attempted to do something similar in our
Castañeda IV remand order, because although we did not require the
BIA to make any additional findings of fact, we did direct the
parties to file joint status reports on the progress of the
administrative proceedings every sixty days. Castañeda claims that
he expected to continue filing said reports until a final decision
was reached at the immigration agencies, at which time he would
file said decision with this court so that we could enter a final
judgment on it, as required by sentence eight of section 405(g).
Therefore, Castañeda urges us to treat the remand ordered in
Castañeda IV as a sentence six remand, and the judgment entered
pursuant to Castañeda V as a "final judgment" for EAJA purposes,
once the period for seeking certiorari to the Supreme Court
expired.
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5. Analysis
We have not had the opportunity to consider the issue of
what constitutes a final judgment for EAJA purposes when a court of
appeals remands an immigration case for further administrative
proceedings while retaining jurisdiction over those proceedings.
The government here invites us to equate judicial remand orders in
the immigration context with remand orders in the social security
context. Particularly, the government urges us to apply the
sentence four -- sentence six remand dichotomy to remands
undertaken in the immigration context. We, however, find it
difficult to accept the government's invitation in this regard.
First of all, in Tyler v. Fitzsimmons, we noted that
"[w]hen acting outside the strictures of the Social Security
statute, a reviewing court normally is not confined to two types of
remand, but [rather] possesses the 'inherent' authority to
condition its remand order as it deems appropriate." 990 F.2d 28,
32 n.3 (1st Cir. 1993) (citing
Melknoyan, 501 U.S. at 101). This
is because judicial remand orders in the social security context
are governed by the detailed and inflexible language that Congress
adopted in section 405(g). In contrast, judicial review of final
orders of removal in the immigration context are governed by a
different statute: section 242 of the Immigration and Nationality
Act (INA), as amended by the Illegal Immigration Reform and
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Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. § 1252. In
particular, section 242(a)(1) of the INA states that:
Judicial review of a final order of removal
(other than an order of removal without a
hearing pursuant to [the expedited-removal
provisions for undocumented aliens arriving at
the border found in] section 1225(b)(1) of
this title) is governed only by chapter 158 of
Title 28 [known as the Hobbs Act], except as
provided in subsection (b) of this section and
except that the court may not order the taking
of additional evidence under section 2347(c)
of such title.
8 U.S.C. § 1252(a)(1).
The Hobbs Act, which is incorporated by the provision
above, sets out the jurisdiction of the courts of appeals in
reviewing agency orders. See 28 U.S.C. § 2349(a).12 Needless to
say, both the INA and the Hobbs Act employ starkly different
language when it comes to regulating judicial remands to the
immigration agencies, as compared to that used in section 405(g) to
regulate remands to the SSA agencies. Despite this incongruity,
the government urges us to adopt the sentence four -- sentence six
12
Said provision states the following:
The court of appeals has jurisdiction of the proceeding
on the filing and service of a petition to review. The
court of appeals in which the record on review is filed,
on the filing, has jurisdiction to vacate stay orders or
interlocutory injunctions previously granted by any
court, and has exclusive jurisdiction to make and enter,
on the petition, evidence, and proceedings set forth in
the record on review, a judgment determining the validity
of, and enjoining, setting aside, or suspending, in whole
or in part, the order of the agency.
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remand dichotomy featured in section 405(g), when no such dichotomy
exists in either the INA or the Hobbs Act. In so doing, the
government has not pointed us to any language in the INA nor in the
Hobbs Act which would support its proposition that this court
lacked authority to retain jurisdiction over the post-remand
administrative proceedings that followed our decision in Castañeda
IV, and that we lacked authority to enter a final judgment in
Castañeda V, thereby terminating the proceedings which had
originated with Castañeda IV.
In any event, the parties' assertion that we could, in
theory, remand an immigration case using a sentence-six-style
remand is troublesome. As already discussed, under sentence six of
section 405(g), a district court "may at any time order additional
evidence to be taken before the Commissioner of Social Security."
42 U.S.C. § 405(g). However, remanding a case to an immigration
agency with the purpose of having it collect additional evidence,
at least at the behest of a petitioner, appears to be prohibited
under a plain reading of section 242 of the INA, which states that
"the court may not order the taking of additional evidence under
section 2347(c) of [Title 28]." 8 U.S.C. § 1252(a)(1); see also
I.N.S. v. St. Cyr, 533 U.S. 289, 312 n.36 (2001).13 It follows that
13
Section 2347(c) allows any person that is a party to a petition
for review to obtain permission from the court of appeals to adduce
additional evidence, if that party can establish that: (1) the
additional evidence is material; and (2) there were reasonable
grounds for failure to adduce the evidence before the agency. 28
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courts of appeals lack the authority to approve a party's request
to remand a case back to the BIA so that said party may present
additional evidence. See Najjar v. Ashcroft, 257 F.3d 1262, 1281
(11th Cir. 2001).
This is not to say that the government's argument is
entirely without merit. We must recognize that the Third, Seventh
and Ninth circuits have expressed a willingness to equate remands
to the BIA in the immigration context with the sentence four
remands featured in the social security context. But as Castañeda
correctly points out, the remands at issue in those cases were
ordered with a concomitant relinquishment of jurisdiction by the
court. See, e.g., Johnson, 416 F.3d at 209-10 ("[The court of
appeals] entered judgment in [petitioner's] favor and relinquished
jurisdiction.") (emphasis added). Consequently, those circuits had
no trouble likening those remands to the sentence four remands
existing in the social security context. The fact remains that we
have no way of knowing how those circuits would have ruled had the
courts in those cases decided to retain jurisdiction over the post-
remand proceedings.
Conversely, in our decision in Castañeda IV, we cited to
cases from the Second and Seventh Circuits to support our authority
to retain jurisdiction over the post-remand proceedings. See
Ucelo-Gómez v. Gonzales, 464 F.3d 163, 172 (2d Cir. 2006)
U.S.C. § 2347(c).
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(directing the BIA to issue an opinion responsive to the limited
remand within forty-nine days, and retaining jurisdiction in the
interim), Asani v. I.N.S., 154 F.3d 719, 725 (7th Cir.
1998)(retaining jurisdiction during a limited remand to the BIA to
determine whether, inter alia, changed circumstances in the
petitioner's home country supported a finding of a well-founded
fear of future persecution); and Yang v. McElroy,
277 F.3d 158, 164
(2d Cir. 2002). Therefore, there is countervailing authority, at
least from the Second and Seventh Circuits, that effectively
undermines the government's position that we lacked the authority
to retain jurisdiction in Castañeda IV.14
What's more, the law of the case doctrine governs on this
issue. In Castañeda V, we explicitly rejected the government's
argument that we were without authority to enter a final judgment
14
The government also argues that it could have appealed our
decision in Castañeda IV, despite our retention of jurisdiction.
We note that our decision to retain jurisdiction in Castañeda IV,
although unusual, is reconcilable with the Supreme Court's
decisions in Schaefer, et al. In Finkelstein, the Supreme Court
acknowledged that "the issue before us is not the broad question
whether remands to administrative agencies are always immediately
appealable. There is, of course, a great variety in remands,
reflecting in turn the variety of ways in which agency action may
be challenged in the district courts and the possible outcomes of
such challenges." 496 U.S. at 623. We interpret this language to
mean that not all remands to administrative agencies have to be
immediately appealable, but rather, there seems to be room in "the
great variety of remands" for remands to agencies while retaining
jurisdiction over the underlying petition for review, at least in
exceptional circumstances. As discussed earlier, those
circumstances were clearly present here, because when Castañeda IV
was decided, Castañeda's case had already been pending for almost
two decades.
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terminating the proceedings. Chi. & N.W. Transp. Co. v. United
States, 574 F.2d 926, 929 (7th Cir. 1978) ("Appellate
reconsideration of issues that have already been decided in an
earlier appeal is ordinarily foreclosed by the doctrine of law of
the case.").15 In addition, by retaining jurisdiction over the
post-remand proceedings in Castañeda IV, we instilled in Castañeda
a legitimate expectation that, were he to prevail at the
immigration agencies and obtain asylum, he could return to this
court and seek the entry of a final judgment to effectively
terminate the proceedings surrounding his petition for review.
There is no reason to suppose that Castañeda did not reasonably
believe that this potential final judgment would anchor the filing
period for his EAJA attorneys' fees petition. Adopting the
government's argument to the contrary would effectively force us to
backtrack from our decision to retain jurisdiction in Castañeda IV
and to nullify the final judgment we entered pursuant to Castañeda
V. We reject this argument, primarily because it has no basis in
either the INA or the Hobbs Act, and because adopting it would
eviscerate the legitimate expectation we ourselves created in the
mind of Castañeda. Moreover, we are also mindful that the
15
The government did not immediately object to this court's
decision to retain jurisdiction in Castañeda IV. It was not until
January 2012, almost ten months after the publication of Castañeda
IV, that the government filed a status report where, in a footnote,
it challenged our authority to retain jurisdiction over the post-
remand administrative proceedings.
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legislative intent behind the EAJA counsels against creating
confusion with regards to what constitutes a "final judgment" for
purposes of the statute. See H.R. Rep. 99-120, n. 26 (provision of
the EAJA defining "final judgment," 28 U.S.C. § 2412 (d)(2)(G),
"should not be used as a trap for the unwary resulting in the
unwarranted denial of fees.").
Based on the foregoing, we reject both the government's
argument that we should treat the remand order in Castañeda IV as
a sentence four remand, and Castañeda's argument that we should
treat said remand as a sentence six remand. We agree with
Castañeda, though, that the remand order in Castañeda IV is
entirely distinguishable from the remands at issue in the cases
decided by the Second, Seventh and Ninth Circuits. Accordingly, we
hold that said remand should not be construed as a sentence four
remand, and that the final judgment entered pursuant to Castañeda
V should be treated as a "final judgment" under the EAJA, once the
period for seeking certiorari before the Supreme Court expired.
Since that occurred on July 11, 2012, and Castañeda filed his
petition for attorneys' fees the day after, we deem that said
petition is timely as to the proceedings that led to our decisions
in Castañeda IV and Castañeda V.
6. Castañeda I and II
Castañeda also seeks an award for the attorneys' fees he
incurred during the proceedings that led to our earlier decisions
-35-
in Castañeda I and II, arguing those fees may be included alongside
the ones expended in Castañeda IV and V.16 As recounted earlier,
the government claims that if Castañeda wanted to recover the
attorneys' fees he incurred in Castañeda I and II, he should have
filed an EAJA petition on or before September 20, 2007, that is, 30
days after the judgment in Castañeda II became final and
unappealable. In essence, the government believes that Castañeda
was required to file two EAJA petitions for attorneys' fees, one
for the proceedings that culminated in Castañeda II, and another
for the proceedings that ended in Castañeda V. It claims that both
sets of proceedings should be construed as separate "civil
action[s]" under the EAJA, because they adjudicated different
petitions for review and because this court did not retain
jurisdiction over the post-remand administrative proceedings that
followed Castañeda II. For the reasons that follow, we agree with
the government.
Castañeda argues that requiring him to have filed two
different petitions for attorneys' fees would be "wasteful,
needlessly time consuming for the judicial system" and would
"belie[] the underlying purpose of the EAJA, and def[y] a common
sense approach to litigating EAJA claims." His argument here
16
It is unclear to us whether Castañeda may recover the fees he
incurred during Castañeda I, as that decision was vacated when we
decided to grant the government’s request for an en banc rehearing.
In any case, since we find that Castañeda’s petition is untimely as
to both Castañeda I and II, we need not reach that issue.
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mainly rests on two cases: (1) the Supreme Court's decision in
Jean, 496 U.S. 154, and (2) the Second Circuit's decision in Gómez-
Beleno v. Holder,
644 F.3d 139 (2d Cir. 2011). Specifically,
Castañeda relies on language from Jean, where the Court stated that
"the EAJA--like other fee-shifting statutes--favors treating a case
as an inclusive whole, rather than as atomized
line-items." 496
U.S. at 161-62. He argues that treating a case "as an inclusive
whole" means treating both of his petitions for review as a single
civil action under the EAJA, which in turn warrants finding his
EAJA petition timely with respect to the fees incurred in Castañeda
I and II.
We think Castañeda reads Jean too broadly. Said case did
not involve a petitioner who was seeking a fee award for multiple
petitions for review; rather, the issue at stake in Jean was
whether a prevailing party could be barred from recovering the
attorneys' fees it incurred during the fee litigation stage of the
proceedings, if the government is able to prove that its position
during that specific stage was substantially justified. 496 U.S.
at 156. The Court answered that question in the negative, holding
that the EAJA's "substantial justification" requirement is a
"single finding that . . . operates as a one-time threshold for fee
eligibility."
Id. at 160. Therefore, the decision in Jean, which
went more to the EAJA's "substantial justification" requirement,
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rather than its statute of limitations, does not help Castañeda in
this regard.
Castañeda also relies on Gómez-Beleno, where the Second
Circuit treated two separate petitions for review as a single civil
action for purposes of attorneys' fees under the EAJA. The court
allowed the prevailing party in that case to recover the fees
expended in both proceedings, even though the EAJA filing period
for the first petition for review had already passed. The court in
Gómez-Beleno, however, made it clear that the government did not
argue that the two petitions for review in that case should have
been treated as separate civil actions, and thus the argument was
deemed to have been forfeited. 644 F.3d at 145 n.3.17
Nevertheless, Castañeda points out that the court could have, motu
17
The Second Circuit specifically stated that,
Rather than file an earlier EAJA application following
our disposition of the First Petition for Review, the
Petitioners waited until after disposition of the Second
Petition for Review to request fees and costs incurred in
connection with both Petitions. If one were to construe
the First and Second Petitions as giving rise to separate
civil actions before this Court, then one might challenge
the amount of the requested award, on the basis that it
improperly includes fees and costs from a proceeding
whose EAJA statute-of-limitations period expired well
before this motion was filed . . . . But, “the EAJA—like
other fee-shifting statutes—favors treating a case as an
inclusive whole, rather than as atomized line-items.”
Commissioner, INS v. Jean, 496 U.S. 154, 161–62,
110
S. Ct. 2316,
110 L. Ed. 2d 134 (1990). And the Government
has not asserted that the First and Second Petitions
should in this case be treated separately. We therefore
deem any such argument forfeited. 644 F.3d at 145 n.3.
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proprio, excluded the fees incurred by the petitioner during the
first petition for review, based purely on the language contained
in the EAJA’s statute of limitations provision. The court declined
to travel down that path and instead relied on Jean’s "inclusive
whole" language as an additional basis for upholding the award of
fees in relation to the first petition for review. Id. As such,
Castañeda invites us to follow the Second Circuit’s lead and allow
him to recover the fees incurred in both Castañeda I and II. We do
not accept this invitation.
As previously discussed, we do not agree that Jean should
be read as broadly as Castañeda and the Second Circuit seem to
suggest. In addition, the Second Circuit may have ruled otherwise
had the government decided to take up the issue. Instead, we find
ourselves favoring the approach taken by the Third, Seventh and
Ninth Circuits in Johnson, Muhur and Rueda-Menicucci, respectively,
where those courts held that a judgment remanding a case to the BIA
for further proceedings constitutes a final judgment for purposes
of the EAJA's statute of limitations. The remands featured in
those cases are exactly like the remand we ordered in Castañeda II;
they were all issued after the circuit court reversed the BIA's
erroneous denial of an asylum application and they were entered
without the concomitant retention of jurisdiction that
characterized our remand order in Castañeda IV. As such, we
conclude that the judgment we entered pursuant to Castañeda II
-39-
should be construed as a final judgment for EAJA purposes, once the
period for seeking certiorari before the Supreme Court had expired.
Since Castañeda did not file an EAJA petition to recoup the fees
expended in those proceedings, his current application must be
denied as to those fees.
Our conclusion in this regard is further reinforced by
the statutory language of the EAJA, its legislative history and
common sense. The EAJA states that "[a] party seeking an award of
fees and other expenses shall, within thirty days of final judgment
in the action, submit an application for fees . . . ." 28 U.S.C.
§ 2412(d)(1)(B) (emphasis added). The Supreme Court has noted that
the word "shall" ordinarily connotes an intention by Congress "to
impose discretionless obligations." López v. Davis, 531 U.S. 230,
241 (2001); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26, 35 (1998) ("[T]he mandatory 'shall' . . . normally
creates an obligation impervious to judicial discretion.");
Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (the term "shall" is
"ordinarily [t]he language of command" (internal quotation marks
omitted)). But see Gutiérrez de Martínez v. Lamagno,
515 U.S. 417,
432-33 n.9 (1995) ("Though 'shall' generally means 'must,' legal
writers sometimes use, or misuse, 'shall' to mean 'should,' 'will,'
or even 'may.'"). Given that the EAJA is a partial waiver of the
government's sovereign immunity, and so must be strictly construed
in favor of the government, Ardestani, 502 U.S. at 137, and that we
-40-
have described the EAJA's filing period as jurisdictional, Tyler,
990 F.2d at 30, we find that the word "shall" in this context means
"must." See also
Aronov, 562 F.3d at 88 ("Whatever flexibility
there may be in interpreting fee shifting statutes involving awards
against parties other than the United States, such flexibility does
not exist as to EAJA applications." (citing Lehman v. Nakshian, 453
U.S. 156, 161 (1981))). Therefore, it follows that if Castañeda
wanted to recover the fees he incurred during the proceedings
leading up to Castañeda II, he "must" have filed an EAJA petition
as to those proceedings on or before September 20, 2007, which is
30 days after the judgment in that civil action became final for
EAJA purposes. Since Castañeda failed to do so, this court is
without jurisdiction to entertain his present fee petition as to
those proceedings.
Our holding is also driven by a desire to avoid confusion
for parties and legal counsel engaged in litigating petitions for
review such as the ones at issue here. Suppose that Castañeda had
actually prevailed in the immigration agencies following our remand
in Castañeda II. Most likely, his award of asylum would have been
entered after the EAJA filing period for the Castañeda II judgment
had passed. Castañeda would have thus found himself in a position
where he could not recover the fees expended during the judicial
proceedings leading up to Castañeda II, nor the fees expended
during the subsequent post-remand administrative proceedings. He
-41-
could not have tethered his EAJA petition to the IJ's order
granting him asylum, because said order would not qualify as a
"final judgment" under the EAJA. See Melkonyan, 501 U.S. at 94
(stating that "a 'final judgment' under [the EAJA] can only be the
judgment of a court of law."). Nor could he have relied on 5
U.S.C. § 504, a provision of the EAJA that allows prevailing
parties to recover the fees incurred during administrative
proceedings, because said provision does not apply to proceedings
governed by the INA. See
Ardestani, 502 U.S. at 137 (concluding
that administrative immigration proceedings do not fall under 5
U.S.C. § 504).
One can easily see how adopting Castañeda's argument in
this regard may leave similarly situated litigants at a dead end
with respect to attorneys' fees if they fail to file a fee petition
following a Castañeda II-type judgment and subsequently become
prevailing parties at the agency level. Our holding here is meant
to provide a clear time frame for filing a petition for attorneys'
fees under the EAJA in the immigration context, and to avoid any
confusion among the parties as to that time frame.
In summary, we find that we are without jurisdiction to
award Castañeda the attorneys' fees he seeks with respect to
Castañeda I and II. His petition is thus denied as to those fees.
-42-
C. Other Proceedings
Before delving into the issue of whether the government's
position was substantially justified, we must pause to address
Castañeda's arguments that he is entitled to an award for the fees
he incurred during the administrative proceedings that followed
Castañeda II and Castañeda IV, as well as the ones incurred during
his habeas corpus and extradition proceedings. We begin by
analyzing whether he is eligible to recover the fees he incurred in
the post-remand administrative proceedings that followed Castañeda
IV.
1. The post-Castañeda IV agency proceedings
Castañeda seeks an award for the attorneys' fees he
incurred during the post-remand administrative proceedings that
took place after Castañeda IV. As previously discussed, a party
may not rely on 5 U.S.C. § 504 to recoup fees expended during an
immigration agency proceeding. However, in Hudson, the Supreme
Court held that certain administrative proceedings may be
considered to form part of a "civil action" for which fees may be
awarded under the EAJA. 490 U.S. at 892. Castañeda thus relies on
Hudson to argue that the post-remand administrative proceedings
that followed our decision in Castañeda IV qualify as part of the
civil action for which he is attempting to recover fees. We agree
with him and proceed to explain our reasoning.
-43-
In Hudson, a SSA case decided before Finkelstein,
Melkonyan and Schaefer, the district court carried out a sentence
four remand to the SSA agency, while retaining jurisdiction over
the ensuing administrative proceedings. The petitioner was able to
prevail on remand and subsequently filed an EAJA application for
attorneys' fees with the district court, where, inter alia, he
sought to recover the fees he incurred during the post-remand
administrative proceedings. The Hudson court held that petitioner
could recover such fees, and it established the following rule:
[w]here a court orders a remand to the
[agency] in a benefits litigation and retains
continuing jurisdiction over the case pending
a decision from the Secretary which will
determine the claimant's entitlement to
benefits, the proceedings on remand are an
integral part of the “civil action” for
judicial review, and thus attorney's fees for
representation on remand are available subject
to the other limitations in the EAJA.
490 U.S. at 892. The Court explained that certain qualifying
administrative proceedings are "so intimately connected with
judicial proceedings as to be considered part of the 'civil action'
for purposes of a fee award."
Id. Those qualifying classes of
administrative proceedings were defined by the Court to be those
"where 'a suit has been brought in a court,' and where 'a formal
complaint within the jurisdiction of a court of law' remains
pending and depends for its resolution upon the outcome of the
administrative proceedings."
Id.
-44-
Evidently, the holding in Hudson turned out to be at odds
with later Supreme Court cases regarding sentence four remands, as
Hudson sanctioned a district court's use of a sentence four remand
while retaining jurisdiction over the post-remand agency
proceedings. Recall that in Finkelstein, the Court held that a
district court may not effectuate a sentence four remand while
simultaneously retaining jurisdiction over the post-remand
proceedings. 496 U.S. at 624-25. The Justices recognized this
incongruity in Schaefer and thus decided to narrow the scope of
Hudson, writing that they no longer "consider[ed] the holding of
Hudson binding as to sentence-four remands that are ordered (as
they should be) without retention of jurisdiction, or that are
ordered with retention of jurisdiction that is challenged."
Schaefer, 509 U.S. at 300.
The government argues that Hudson is now binding only as
to sentence six remands where a court "does not rule in any way as
to the correctness of the administrative determination," and
remands the case to the agency for further fact-finding. Since
Castañeda IV was not a sentence six remand, the argument goes,
Castañeda may not rely on Hudson to recover the fees incurred in
the post-remand administrative proceedings that followed that
decision. This narrow reading of Hudson is mistaken.
Although the Court in Schaefer, in a footnote, stated
that "Hudson remains good law as applied to remands ordered
-45-
pursuant to sentence-six," and that it was "limiting Hudson to
sentence-six cases," we believe this language means that, in the
context of a social security case, Hudson will only apply to
sentence-six remand cases. Id. at n.4.18 In short, the Court in
Schaefer did not rule that Hudson no longer applies to other types
of remands outside of the social security sphere, particularly
those remands that are not analogous to sentence four remands. As
we have already concluded that the remand order in Castañeda IV is
not comparable to a sentence four remand, the decision in Schaefer
does not preclude Castañeda from relying on Hudson to reclaim the
fees he incurred at the immigration agencies on remand.
What's left is that we are remitted to apply the factors
enumerated in Hudson to determine whether the administrative
proceedings conducted after Castañeda IV are so "intimately
related" to the judicial proceedings in that case so as to be
considered part of the same "civil action." We conclude that the
remand order in Castañeda IV squares nicely with the "qualifying
administrative proceedings" outlined in Hudson. The qualifying
class of administrative proceedings were defined by the Court to be
those "where 'a suit has been brought in a court,' and where 'a
formal complaint within the jurisdiction of a court of law' remains
18
Moreover, the footnote seems to be inconsistent with the body
of the opinion, which implies that Hudson may still apply to
sentence four remands that are ordered, erroneously but without
objection, with a retention of jurisdiction. See id.
-46-
pending and depends for its resolution upon the outcome of the
administrative
proceedings." 490 U.S. at 892. In Castañeda IV, a
petition for review was brought before the court, and that petition
for review remained pending due to our decision to remand the case
back to the BIA while retaining jurisdiction over the petition.
Had Castañeda failed to obtain relief before the immigration
agencies, his petition for review before this court would have been
reactivated, without the need for Castañeda to file a new petition.
And had Castañeda prevailed at the agencies below, he still would
have had to return to this court to seek a final judgment disposing
of the petition for review. Therefore, the petition for review
depended on the outcome of the administrative proceedings on remand
for its resolution.
Additionally, when Castañeda IV was decided, Castañeda's
application for asylum had been pending for almost twenty years and
had already been addressed by two panels of this court, as well as
an en banc panel. By that point, we had already provided ample
guidance to the immigration agencies so that they could evaluate
Castañeda's asylum claims. This, coupled with our decision to
retain jurisdiction over the post-remand proceedings in Castañeda
IV, as well as our directive ordering the parties to file periodic
status reports on the progress of those proceedings, warrants
finding that they were now "intimately related" with the judicial
proceedings that book-ended them in Castañeda IV and Castañeda V.
-47-
Consequently, we conclude that Castañeda is eligible to recover the
fees incurred during the post-remand agency proceedings that
followed our remand order in Castañeda IV.
2. The post-Castañeda II agency proceedings
In addition to requesting attorneys' fees for the agency
proceedings that followed our decision in Castañeda IV, Castañeda
also seeks fees for the earlier agency proceedings that followed
our decision in Castañeda II. However, since we have determined
that Castañeda's fee application is untimely as to the fees
expended in both Castañeda I and Castañeda II, we must also deem
his application untimely as to the administrative proceedings that
followed those decisions. Even assuming, without deciding, that
those agency proceedings were "intimately related" to the judicial
proceedings that preceded them, the fact remains that, under
Hudson, those agency proceedings would still be part of a civil
action for which recovery of fees is time-barred under the EAJA.
Therefore, we deny Castañeda's fee application as to those fees.
3. Other Proceedings
Castañeda also seeks an award of attorneys' fees with
respect to the habeas corpus and extradition proceedings that took
place in the district court. He argues that the legal
representation he received in those proceedings contributed to his
ultimate victory in the asylum proceedings, and, as such, he should
be able to include them in his fee application. The government,
-48-
for its part, argues that the EAJA precludes us from awarding fees
incurred in proceedings over which we exercised no jurisdiction. In
this regard, the government is correct.
The EAJA states that "a court shall award to a prevailing
party . . . fees and other expenses . . . incurred by that party in
any civil action . . . in any court having jurisdiction over that
action . . . ." 28 U.S.C. § 2412(d)(1)(A). It follows that, "[i]n
order for a court to award fees under the EAJA, it must have
jurisdiction over the underlying action." Zambrano v. I.N.S., 282
F.3d 1145, 1149-50 (9th Cir. 2002); Lundin v. Mecham,
980 F.2d
1450, 1461 (D.C. Cir. 1992) (affirming general rule that "a court
may not award fees under EAJA for work performed in other
jurisdictions"); Lane v. United States,
727 F.2d 18, 20-21 (1st
Cir. 1984). It is therefore clear that we may not award Castañeda
the fees he incurred in the habeas corpus and extradition
proceedings, because we never exercised jurisdiction over them.
The cases cited to by Castañeda, Hensley v. Eckerhart,
461 U.S. 424 (1983) and Pennsylvania v. Delaware Valley Citizens'
Council for Clean Air,
478 U.S. 546 (1986), are immaterial to the
issue at hand, because neither of those two cases dealt with the
EAJA. Additionally, in Hensley, the district court had
jurisdiction over the proceedings at issue, and in Delaware Valley,
the Supreme Court awarded petitioner the fees it incurred in
certain administrative proceedings, because participation in those
-49-
proceedings was necessary to vindicate the petitioner's rights
under a consent decree issued by the district court. Since neither
case assists Castañeda, we must deny his petition as to the fees
incurred in the habeas corpus and extradition proceedings.19
D. Position of the United States
Having determined that Castañeda is eligible to recover
the fees incurred in Castañeda IV, the administrative proceedings
that followed, Castañeda V, and the current fee litigation, our
inquiry now shifts to whether the government's position during
those proceedings was substantially justified. See 28 U.S.C. §
2412(d)(1)(A). According to Jean, this entails making a single
finding that will operate as a clear threshold for determining
Castañeda's fee eligibility. 496 U.S. at 160. The government,
however, failed to include any justification for its positions
during any of the proceedings listed above in its opposition to
Castañeda's fee petition.
It is well-settled that the government bears the burden
of establishing that its position was substantially justified. See
Pierce v. Underwood, 487 U.S. 552, 565 (1988); Dantran, Inc. v.
U.S. Dep't of Labor,
246 F.3d 36, 41 (1st Cir. 2001). The
government needs to satisfy this burden by a preponderance of the
19
To the extent that Castañeda also seeks to be awarded the fees
and expenses incurred with respect to his administrative bond
proceedings, we must reject the request under the same reasoning.
Although he did not specifically argue he was entitled to those
fees, he does seem to include them in his fee schedule.
-50-
evidence, Dantran, 246 F.3d at 41, and it must justify the
positions it took both during the litigation and the agency
proceedings that preceded that litigation, Schock v. United States,
254 F.3d 1, 5 (1st Cir. 2001). These positions must have a
reasonable basis in both law and fact. Jean v. United States,
396
F.3d 449, 455 (1st Cir. 2005).
In its opposition to Castañeda's application for
attorneys' fees, the government only attempts to justify its
position during the proceedings that led up to our decision in
Castañeda II. In contrast, the government makes no attempt to
justify its position during any of the proceedings for which
Castañeda is eligible to recover fees, namely, the litigation that
took place from Castañeda IV to Castañeda V. Given the
government's failure in this regard, we conclude that its arguments
as to the substantial justification issue are waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
In any event, the government would face an uphill battle
arguing that its position in those proceedings was substantially
justified. As previously recounted, in Castañeda IV, the
government did not defend the BIA's decision on the merits; rather,
it only argued that Castañeda's asylum petition should be held in
abeyance pending the outcome of his extradition proceedings.
-51-
Although there are instances where a procedural argument that could
affect our disposition of an appeal may be "substantially
justified," it is clear to us that the procedural arguments raised
by the government during Castañeda IV were not substantially
justified. First, the government claimed that the case should have
been held in abeyance because the BIA had a "policy" –- announced
in Matter of Pérez-Jiménez, 10 I. & N. Dec. 309 (BIA 1963) –- of
holding asylum applications in abeyance where there was a pending
extradition attempt. However, as we pointed out in Castañeda IV,
the BIA itself had explicitly declined to apply the Pérez-Jiménez
rule to Castañeda when the government had previously petitioned the
BIA to hold his petition in abeyance.
Second, the government argued that ruling on the asylum
petition before the extradition proceedings were resolved would
unduly interfere with foreign policy. We concluded, however, that
the government offered little to support this argument beyond
"vague hand-waving about the nature of [] unspecified foreign
policy consequences." Castañeda IV, 638 F.3d at 360. We also
noted that an asylum application had no preclusive effect
whatsoever on an extradition proceeding. Moreover, the government
conceded that, even if Castañeda were granted asylum, it would
still be within the discretion of the Secretary of State to
extradite him to Perú.
-52-
In sum, even if the government had adequately briefed the
issue of whether its position was substantially justified, we would
have no trouble ruling in favor of Castañeda in this regard.
Castañeda thus merits being awarded attorneys' fees for each of the
proceedings listed above.
E. Special Circumstances
The government has not argued that there are any special
circumstances which would make an award of fees against it unjust,
and neither are we able to discern any. In fact, we believe the
circumstances of this case actually militate in favor of granting
Castañeda an award of attorneys' fees.
Consequently, we will now saunter over to the next issue:
how to calculate Castañeda's award of attorneys' fees.
V. Amount of Fees
The parties vigorously joust over how to calculate
Castañeda's fee award, with Castañeda naturally wanting to increase
the hourly rate for his attorneys' work while the government seeks
to reduce it based on several alleged deficiencies in the fee
application. Additionally, the government claims that Castañeda's
fee award should be reduced because he unreasonably protracted the
proceedings that led to his award of asylum. We begin by
addressing Castañeda's argument that he should be awarded an
enhanced fee for his attorneys' performance in this case.
-53-
A. Enhanced Fee
Castañeda seeks to recover fees at a rate of $450 per
hour for the work performed by his lead attorney, Mr. William
Joyce, and $275 per hour for the work of Mr. Joyce's associates.
Castañeda also petitions for fees at a rate of $130 per hour for
paralegals and $100 per hour for law clerks, both of whom worked on
his case. He claims these rates are in line with the prevailing
market rates for immigration attorneys in the Boston area.
The EAJA, however, caps awards of attorneys' fees at a
rate of $125 per hour. 28 U.S.C. § 2412(d)(2)(A). This statutory
ceiling is generally "designed to hold down the government's costs
by providing modest compensation, with exceptions." Atl. Fish
Spotters Ass'n v. Daley, 205 F.3d 488, 491 (1st Cir. 2001). A
court may only award fees beyond the statutory maximum if it
"determines that an increase in the cost of living or a special
factor, such as the limited availability of qualified attorneys for
the proceedings involved, justifies a higher fee." 28 U.S.C. §
2412(d)(2)(A). The Supreme Court has expanded on the "limited
availability of qualified attorneys" exception, writing that
[this] exception . . . must refer to attorneys
'qualified for the proceedings' in some
specialized sense, rather than just in their
general legal competence. We think it refers
to attorneys having some distinctive knowledge
or specialized skill needful for the
litigation in question--as opposed to an
extraordinary level of the general lawyerly
knowledge and ability useful in all
litigation. Examples of the former would be an
-54-
identifiable practice specialty such as patent
law, or knowledge of foreign law or language.
Where such qualifications are necessary and
can be obtained only at rates in excess of the
[$125] cap, reimbursement above that limit is
allowed.
Pierce, 487 U.S. at 572. The question thus becomes whether
Castañeda's attorneys possessed some "distinctive knowledge" or
"specialized skill" that was necessary to litigate the claims at
stake during Castañeda IV, the administrative proceedings that
followed, and Castañeda V. If we answer this question in the
affirmative, then we must examine whether, in the case at hand,
Castañeda could have found similarly qualified lawyers elsewhere in
the market for $125 or less. See Atl. Fish
Spotters, 205 F.3d at
492. To begin with, Castañeda argues that his attorneys deserve an
enhanced award because they have been mired in particularly
"lengthy and complex litigation" which required them to raise
"precedential" arguments while litigating his case across a wide
variety of legal fora. He highlights his attorneys' extensive
experience in immigration law and their "resilient pursuit of a
just result in the face of, and despite, a series of nearly a dozen
discouraging events over the course of the nineteen years of [his]
litigation." Their work product, he claims, could not have been
obtained from other attorneys at or below the statutory rate.
In support of these assertions, Castañeda has included
with his fee application several affidavits subscribed by his
counsel, where they describe their ample experience in deportation
-55-
defense and the convoluted nature of this case. Castañeda also
attached the affidavit of Mr. Harvey Kaplan, an experienced
immigration attorney who is a partner at a Boston immigration firm,
and who attests to Mr. Joyce's ample experience and the complicated
nature of this case. He also asserts that the rates requested for
Mr. Joyce and his associates are "at or below the prevailing market
rate for the period of 2005-2012 for attorneys of their respective
experience levels involved in highly specialized litigation."
Having reviewed Castañeda's submissions, we find that he
has failed to establish that his attorneys possessed some
"specialized skill" or "distinctive knowledge" needful for the
litigation in question. Although Castañeda does convince us that
representing him required a herculean effort from his counsel in
staying the course and persevering until the end -- given the two-
decades' long proceedings, his years of imprisonment, and the
adverse determinations that were repeatedly made against him -- he
does not explain how "distinctive knowledge" or "specialized skill"
was necessary to represent him during the specific proceedings at
issue here. Instead, Castañeda stresses the complexity and
interdependence of all of the proceedings he underwent as a whole,
emphasizing that very few attorneys in the immigration bar are
equipped to litigate an immigration case at the administrative
level while also "competently handling multi-faceted federal
litigation," including the habeas corpus and extradition
-56-
proceedings he faced. We, however, cannot avow Castañeda's
holistic approach because the EAJA requires us to focus on whether
Castañeda's attorneys possessed some "specialized skill needful for
the litigation in question." Pierce, 487 U.S. at 572 (emphasis
added). In this case, we have already determined that "the
litigation in question" must be confined to the proceedings that
sprouted from his second petition for review, i.e., the proceedings
that led to our decision in Castañeda IV, the "intimately related"
administrative proceedings that followed, and the Castañeda V
proceedings.
As to those proceedings, particularly the litigation in
Castañeda IV, Castañeda argues his attorneys made the
"unprecedented" argument that, "contrary to the application of
established BIA case law, there should be no per se bar on asylum
claims for refugees simply because of their employment in the
military or police forces in their country of origin." He claims
this argument "was not straightforward" and "required a highly
nuanced application of statutory, regulatory and case law." But
the Supreme Court has determined that factors such as the "novelty
and difficulty of issues, the undesirability of the case [and] the
work and ability of counsel" do not, by themselves, merit awarding
fees beyond the statutory cap. Pierce, 487 U.S. at 573 (internal
quotation marks omitted).
-57-
Furthermore, in Castañeda IV, the main issues were
whether Castañeda's petition for review should be held in abeyance
pending the resolution of the extradition proceedings against him,
and whether Castañeda had established the requisite nexus between
his past persecution and his membership in a cognizable particular
social group. As to the first issue, we have already pointed out
that the government offered very little in support of its argument
for a stay and that it even conceded that asylum and extradition
proceedings are "separate and distinct," such that a decision on
the former has no preclusive effect on the latter. Castañeda IV,
638 F.3d at 360-62. As to the second issue, although it was
difficult, the government is correct in characterizing it as one
that is routinely litigated in our circuit by a diverse cast of
immigration attorneys. Therefore, we are not convinced that the
proceedings in Castañeda IV "require[d] for competent counsel
someone from among a small class of specialists who are available
only for [$450] per hour." Atl. Fish
Spotters, 205 F.3d at 492.
We also do not see how any "special skill" or
"distinctive knowledge," apart from that obtained by immigration
lawyers pursuant to their general experience, was necessary to
prevail in Castañeda IV. As Castañeda does not set forth any
similar arguments with respect to the administrative proceedings
that followed Castañeda IV or the proceedings in Castañeda V, we
-58-
find that he is not entitled to an award of enhanced fees under the
EAJA's "special factor" provision.
B. Cost-of-Living Allowance
The above is not the end of the matter, however, as the
EAJA also provides for enhanced fees based on an increase in the
cost of living. 28 U.S.C. § 2412(d)(2)(A). Castañeda thus makes
the alternative argument that the $125-per-hour cap established by
Congress in March of 1996 should be adjusted to reflect the
increase in the cost of living that has occurred since then,
particularly in the Boston area. He relies on the Consumer Price
Index (CPI) data compiled by the U.S. Bureau of Labor Statistics.
Given that the government does not oppose Castañeda's
request for a cost-of-living adjustment, or that said adjustment be
computed based on the regional, as opposed to national, CPI, we
find that Castañeda is eligible for the requested enhancement. See
Sierra Club v. Sec'y of Army, 820 F.2d 513, 523 (1st Cir. 1987)
("[F]ederal courts remain able to augment hourly rates by
considering changes in the cost of living . . . ."). We therefore
adjust the $125 statutory cap to reflect the increase in the cost
of living experienced in the Boston - Brockton - Nashua geographic
area since March of 1996, as established by the Bureau of Labor
Statistics. The Annual Consumer Price Index for all Urban
Consumers (CPI-U) in this area, for the month of March in 1996, was
-59-
162.8.20 Castañeda's attorneys worked on the proceedings for which
he is eligible to recover attorneys' fees during 2009, 2010, 2011
and 2012. The CPI-U for those years is 233.778, 237.446, 243.881
and 247.733, respectively. We therefore divide each of these
numbers by 163.3 and multiply the results by $125, to arrive at the
EAJA's statutory cap for each of the relevant years, adjusted for
inflation. Having completed this exercise, we determine that
Castañeda is eligible to recover fees at the following rates:
$179.50 per hour for work completed in 2009; $182.31 per hour for
work completed in 2010; $187.26 per hour for work completed in
2011; and $190.21 per hour for work completed in 2012. These rates
will apply equally to Mr. Joyce and his associates' work.
C. Paralegals and Law Clerks
Moving on, Castañeda requests hourly rates of $130 for
paralegals and $100 for law clerks. He relies on Mr. Kaplan's
affidavit in claiming that such rates are in accordance with the
prevailing market rates for immigration firms in the Boston area.
The government opposes the request, arguing that Castañeda has not
advanced sufficient evidence to prove that those rates are in fact
comparable to the prevailing market rates. It notes that Mr.
20
This data may be obtained by visiting the Bureau of Labor
Statistics' website for the New England Information Office. See
http://www.bls.gov/ro1/. There, one may use the Data Search Tool
and select the "(CPI-U) Boston-Brockton-Nashua, MA-NH-ME-CT, All
items 1982-84=100 - CUURA103SA0" database to access historical CPI-
U values for the Boston-Brockton-Nashua geographic area. See
http://www.bls.gov/ro1/data.htm.
-60-
Joyce's affidavit does not attest to the rates charged by the
paralegals and law clerks who worked on the case and that the case
law cited by Castañeda in the alternative instead supports rates of
$90 and $60 per hour, respectively, in the Boston area. The
government seems to have the better argument in this regard.
In Richlin Security Services Co. v. Chertoff, 553 U.S.
571 (2008), the Supreme Court held that the EAJA allows a
prevailing party to recover fees incurred for paralegal services at
the market rate for such services.21 The Court has also determined,
while analyzing a similar fee-shifting statute, that fees expended
on law clerks and other individuals who contribute to the
attorney's work product are recoverable at market rates. See
Missouri v. Jenkins,
491 U.S. 274, 285 (1989) (holding that
"reasonable attorney's fee" under 42 U.S.C. § 1988 "must take into
account the work not only of attorneys, but also of secretaries,
messengers, librarians, janitors, and others whose labor
contributes to the work product for which an attorney bills her
client"); Nadarajah v. Holder,
569 F.3d 906, 918 (9th Cir. 2009).
21
The Supreme Court based its decision on the language of 5 U.S.C.
§ 504(a)(1), which is the operative provision of the EAJA that
allows prevailing parties to recover fees expended during
administrative proceedings. The Supreme Court stated that it
"assume[d] without deciding" that the reasoning of its opinion
would extend equally to 28 U.S.C. § 2412, the provision at issue in
this case. The government does not seem to dispute that this is
the case, and we can discern no reason for not construing Richlin's
holding to be applicable to EAJA petitions filed under § 2412.
-61-
The government is correct in pointing out that none of
Castañeda's attorneys attest to the rates charged by Mr. Joyce's
firm for paralegal and law clerk services in their affidavits.
Although Mr. Kaplan states that "the rates requested for paralegals
($130) and law clerks ($100), are also in accord with prevailing
market rates for immigration litigation firms in Boston," some
recent district court cases from Massachusetts suggest that rates
of $100 for paralegals and $75 for law clerks are more in line with
current market trends. See Rogers v. Cofield, --- F. Supp. 2d ---,
2013 WL 1325034 at *21 (D. Mass. March 31, 2013) (finding a $100
hourly rate for paralegal work reasonable); Ferraro v. Kelley,
2011
WL 576074 at *6 (D. Mass. Feb. 8, 2011) (finding a $90 rate for
paralegals to be "in the ball park of rates approved recently for
paralegals in this District."); Walsh v. Boston Univ.,
661 F. Supp.
2d 91, 113 (D. Mass. 2009) (finding that a $75 hourly rate is "in
line with rates approved for legal interns"); Hudson v. Dennehy,
568 F. Supp. 2d 125, 133 (D. Mass. 2008) (finding prevailing market
rates for paralegals during 2007-2008 to be $100 per hour).
Accordingly, we find that Castañeda should be awarded fees for
paralegals and law clerks at the hourly rates of $100 and $75,
respectively.
D. Government's Arguments for a Fee Award Reduction
We now consider whether the government is correct in
claiming that Castañeda's fee award must be reduced because (1) he
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unreasonably protracted the proceedings; (2) his fee application
does not appear to consist of contemporaneous time records; (3) his
fee application contains excessive or duplicative time entries; (4)
he did not prevail in his claim for an enhanced fee award; and (5)
his statement of costs is defective. We discuss these arguments in
turn.
1. Protraction of Proceedings
The government argues that Castañeda's fee award must be
reduced because he "unreasonably protracted the litigation in
Castañeda [IV] by opposing the government's request for a voluntary
remand." It relies on 28 U.S.C. § 2412(d)(1)(C), which allows
courts to reduce or deny an award of attorneys' fees if the
prevailing party, during the course of the proceedings, "engaged in
conduct which unduly and unreasonably protracted the final
resolution of the matter in controversy." Following Castañeda's
second petition for review of the BIA's May 2009 decision, the
government notes it filed a motion to voluntarily remand the case
to the BIA so that the Board could further evaluate whether
Castañeda had established the requisite nexus component of his
asylum claim. This court provisionally denied the motion on May
20, 2010 and ordered the parties to brief the merits of Castañeda's
petition for review. Notwithstanding, the government faults
Castañeda for opposing the motion, arguing that he delayed the
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resolution of his claims and as a result incurred unnecessary fees
and expenses. We strenuously disagree.
The government's three-page motion to remand was based
almost exclusively on the case of Sompotan v. Mukasey, 533 F.3d 63
(1st Cir. 2008), which dealt with the nexus requirement in a pre-
REAL ID Act case. However, as we explained in Castañeda V,
Sompotan "simply re-stated well-settled law and pre-dated the BIA's
[May 2009]
decision" 676 F.3d at 3. Moreover, when the government
sought remand, Castañeda's petition for asylum had been pending for
approximately seventeen years, the last four and a half of which he
had spent in the DHS' custody, despite an administrative
determination that he was not a danger to the community nor a
flight risk. It is therefore perplexing for us to think that
Castañeda would voluntarily choose to delay the resolution of his
own claims, given the precarious situation in which he found
himself. Instead, we find that the immigration agencies' repeatedly
erroneous determinations, as well as the government's initiation of
the extradition proceedings against Castañeda and its repeated
opposition to his release on bail are what caused the delay
inherent in these proceedings and the substantial petition for
attorneys' fees that is now before this court.
We therefore reject the government's contention that
Castañeda unduly protracted the proceedings in this case.
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2. Contemporaneous Time Records
The government also attacks the fee schedule submitted by
Castañeda, arguing that it does not appear to consist of
contemporaneously-kept time records. Instead, the government
suggests that "the summaries of the hours expended appear to be a
reconstruction of the time records in this case." It relies on the
case of Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.
1984), where we held that, "in cases involving fee applications for
services rendered after the date of this opinion, the absence of
detailed contemporaneous time records, except in extraordinary
circumstances, will call for a substantial reduction in any award
or, in egregious cases, disallowance." We thus proceed to discuss
the adequacy of the submitted time records.
Pursuant to the EAJA, an application for fees must
include "the amount sought, including an itemized statement from
any attorney . . . stating the actual time expended and the rate at
which fees and other expenses were computed." 28 U.S.C. §
2412(d)(1)(B); see also Local Rule 39.1. This itemized statement
must be a "full and specific accounting" of the tasks performed,
including "the dates of performance, and the number of hours spent
on each task" as well as a description of the nature of the tasks.
Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.
1991. The statement must also consist of "detailed contemporaneous
time records" explaining how time was spent on each claim in the
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case. Grendel's Den, 749 F.2d at 952;
Hensley, 461 U.S. at 437.
Contemporaneous time records serve not only as evidence that the
"time claimed was indeed so spent, but [also] provide details about
the work . . . . [t]his allows the paying party to dispute the
accuracy of the record as well as the reasonableness of the time
spent." Calhoun v. Acme Cleveland Corp.,
801 F.2d 558, 560 (1st
Cir. 1986). Records that include the different tasks each attorney
performed, the total number of hours billed, the billing rate for
those hours, the date on which each tasks was performed, and the
amount of time spent on each task generally fulfill this
requirement.
Id. at 560.
Having reviewed the time records submitted by Castañeda,
we are confident that they satisfy the strictures set forth above.
The records are divided according to the attorney, paralegal or law
clerk that worked on the case, and their time entries are
classified according to the year in which they were performed.
Further, each time entry lists a general description of the task,
such as "Prepared for oral argument before the First Circuit" or
"Drafted motion for expedited bond hearing," as well as the date on
which each was performed. Each task also lists the hours that were
allotted to it, and the rate at which those hours were billed.
Therefore, we find that the records in this case are sufficiently
detailed to allow the government to "dispute the accuracy of the
records as well as the reasonableness of the time spent." See
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Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992);
Hensley, 461
U.S. at 437 ("[C]ounsel . . . is not required to record in great
detail how each minute of his time was expended [but] at least
counsel should identify the general subject matter of his time
expenditures."); Gay Officers Action League v. Puerto Rico, 247
F.3d 288, 297 (1st Cir. 2001) (stating that while it is required to
keep detailed contemporaneous records, compilations that accurately
reflect the records and simplify the presentation of data may be
accepted by the courts instead of the original records). In fact,
the government has launched challenges to the reasonableness of the
hours allotted to certain tasks, and we proceed to analyze these
objections in the following section.
3. Duplicative or Excessive Time Entries
The government objects to the reasonableness of several
of the time entries made by Castañeda's attorneys, claiming that
they are either excessive or duplicative. However, most of these
challenges relate to hours expended on proceedings for which we
have already held that Castañeda is ineligible to recover fees. In
light of our holding that Castañeda's petition for attorneys' fees
must be circumscribed to the proceedings in Castañeda IV, the
"intimately related" post-remand administrative proceedings that
followed, and Castañeda V, we determine that only the following two
objections are relevant:
1. Four hours on September 13, 2010 for Mr.
Joyce to present oral argument before this
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court; two hours for Ms. Endy to attend the
same oral argument (for six hours total).
2. Four and a half hours on December 20, 2011
for Mr. Joyce and Ms. Endy to attend an
"[i]ndividual hearing before IJ Feder." (for
nine hours total).
The government contends that two attorneys were not
necessary to adequately represent Castañeda at these hearings. It
also claims that four hours is an excessive amount of time to argue
a case before this court "inasmuch as the arguments did not take up
more than a small fraction of that time." The government thus
suggests that these hours include travel time, which should not be
billed at the full attorney rate. We disagree with the government
and find the time entries above to be reasonable.
Fee awards are not intended "to serve as full employment
or continuing education programs for lawyers and paralegals."
Lipsett, 975 F.2d at 938 (1st Cir. 1992). We have already
emphasized that the assignment of multiple attorneys to a single
set of tasks should be regarded with "healthy skepticism," and that
"staffing issues are often best resolved by the [] court's
application of its intimate, first-hand knowledge of a particular
case's nuances and idiosyncracies."
Id. We have added that
"[t]ime spent by two attorneys on the same general task is not . .
. per se duplicative" since "[c]areful preparation often requires
collaboration and rehearsal," especially in response to complex
legal issues that are fiercely defended. Rodríguez-Hernández v.
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Miranda-Vélez, 132 F.3d 848, 860 (1st Cir. 1998); Hutchinson ex
rel. Julien v. Patrick,
636 F.3d 1, 14 (1st Cir. 2011) (“[P]arties
sometimes are justified in making a strategic choice to use teams
of lawyers in various phases of complex litigation”).
We hold that Ms. Endy's presence at oral argument and at
the hearing before IJ Feder was not unnecessarily duplicative,
given the complicated nature of the case and the serious
ramifications the outcome of the hearings had on Castañeda's
future. On September 13, 2010, for example, Castañeda not only
faced the impeding threat of deportation, but he was also the
target of the government's efforts to extradite him to Perú, where
he would again be charged for his role in the Accomarca Massacre.
Moreover, it is understandable that both Mr. Joyce and Ms. Endy
attended the hearing; Ms. Endy clocked almost twice the number of
hours on the case compared to Mr. Joyce, and no doubt she was more
familiarized with the case and thus could have provided valuable
assistance to Mr. Joyce during the hearings.
We also hold that billing four hours to attend oral
argument before this court is reasonable, even though the actual
argument time was considerably less. Oral arguments scheduled
before this court usually begin at 9:30 am and can sometimes last
until after noon. Mr. Joyce's allotment of four hours seems to be
in the ballpark for attorneys who sit in for the full duration of
their argument, usually waiting for their case to be called. We
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agree with Castañeda that such time is "necessary and unavoidable
in litigation." See Brewster v. Dukakis, 3 F.3d 488, 492 n.4 (1st
Cir. 1993) (identifying court appearances as a "core work" that is
worthy of full reimbursement).
Therefore, we find that the government's challenges to
the time entries listed above are without merit.
4. Reduction of Hours Expended on Amended Petition
As previously noted, Castaneda filed an amended
application for attorneys' fees after he had filed his original
petition. The main difference between the two petitions is that,
on the amended petition, Castañeda sought a fee enhancement based
on the EAJA's "limited availability of qualified attorneys"
exception to the $125 statutory cap.22 Since Castañeda was not
successful in obtaining the requested fee enhancement, the
government now argues that we should deny Castañeda the specific
fees incurred in the drafting of the amended petition. The
government cites to Cooper v. United States Railroad Retirement
Board, 24 F.3d 1414, 1418 (D.C. Cir. 1994), where the D.C. Circuit
reduced the amount of hours billed on an amended application for
attorneys' fees, from 21 hours to 7 hours, because said application
mainly requested fees for proceedings in which the petitioner did
not qualify as a prevailing party.
22
In addition, Castañeda's amended petition seemed to include a
significantly longer "procedural history" section.
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Examining the records, it seems that Ms. Endy devoted 2.5
hours to working on the amended petition, while law clerk Brian
Doyle devoted 16 hours to it. We therefore find it reasonable to
reduce Mr. Doyle's hours by eight hours, but we decline to reduce
the hours billed by Ms. Endy, due to the minimal amount of time she
devoted to the amended petition. Accordingly, Mr. Doyle's total
hours for 2012 are reduced by eight.
5. Costs
This brings us to the government's final challenge. It
notes that Castañeda has requested almost $5,000 in "costs and
fees," but that none of the itemized statements are supported with
any documentation or are explained in sufficient detail to indicate
for what purpose they were incurred. We agree with the government
that this is the case, and that the costs, as presented, are
invalid. Nevertheless, Castañeda has represented that
Petitioner is prepared to submit actual time
records and documentation in support of
expenses in discovery or upon a court order.
For the sake of efficiency and due to the
length of litigation, the breadth of the
Petitioner’s itemized statements, and the
varying administrative and judicial phases of
this litigation, Petitioner’s counsel deemed
it more efficient to first allow the Court to
decide, as a threshold issue, the portions of
the Castañeda litigation where Petitioner may
recover fees before litigating recordkeeping
and fee disputes. As such, Respondent’s
argument that Petitioner’s itemized statement
is not supported by contemporaneous time
records and other supporting documentation is
premature at best.
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We therefore order Castañeda to submit a new itemized statement of
attorneys' fees and expenses which conforms to the strictures of
this opinion. His new statement of fees shall only include the
attorneys' fees that were expended representing him in the
proceedings that led to our decision in Castañeda IV, the
"intimately related" post-remand administrative proceedings that
followed, the proceedings in Castañeda V and the current fee
litigation. If Castañeda wishes to also recover costs, he shall
file an itemized statement of costs that includes supporting
documentation and an appropriate description of those costs. The
government shall have an opportunity to impeach any costs it deems
improvident.
VI. Conclusion
For the reasons set forth above, Castañeda's petition is
granted in part and denied in part. Castañeda shall have twenty
(20) days following the publication of this opinion to comply with
the order contained herein.
So ordered.
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