COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, ET AL., PETITIONERS V. MARIE LUCIE JEAN, ET AL. No. 89-601 In The Supreme Court Of The United States October Term, 1989 The Solicitor General, on behalf of the Commissioner of the Immigration and Naturalization Service, et al., petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit PARTIES TO THE PROCEEDINGS Petitioners, who were defendants in the district court and appellants in the court of appeals, are the Commissioner of the Immigration and Naturalization Service; the District Director of INS, District VI; the Assistant District Director for Deportation, INS, District VI; Officer in Charge, Krome Avenue North Detention Facility; the INS; and the Attorney General of the United States. Respondents, who were plaintiffs in the district court and appellees in the court of appeals, are Lucien Louis, Jean Louis Servebien, Pierre Silien, Wilner Luberisse, Job Dessin, Serge Verdieu, Milfort Vilgard, Joel Casimir, and Prophete Talleyrand, on behalf of themselves and all others similarily situated; and the Haitian Refugee Center, Inc. /*/ TABLE OF CONTENTS Question Presented Parties To The Proceedings Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-45a) is reported at 863 F.2d 759. The opinion of the district court (App., infra, 46a-99a) is reported at 646 F. Supp. 1300. JURISDICTION The judgment of the court of appeals was entered on December 27, 1988 (App., infra, 100a-101a). A petition for rehearing was denied on May 17, 1989 (App., infra, 102a-103a). On August 10, 1989, Justice Kennedy extended the time for filing a petition for a writ of certiorari to and including September 14, 1989, and on September 12, 1989, he further extended it to and including October 14, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Equal Access to Justice Act, 28 U.S.C. 2412(d) (1982 & Supp. V 1987), provides in relevant part: (1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses * * * incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. * * * * * (2) For the purposes of this subsection -- (A) "fees and other expenses" includes * * * reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that * * * (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court 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.)(.) * * * * (D) "position of the United States" means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based(.) QUESTION PRESENTED Whether -- in a case where it is determined that the government was not substantially justified on the merits and is therefore liable for fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d) (1982 & Supp. V 1987) -- the government must automatically pay fees incurred in litigating the fee award without a separate inquiry into whether the government's position in the fee litigation was substantially justified. STATEMENT 1. Congress enacted the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d) (1982 & Supp. V 1987), "to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States." Pub. L. No. 96-481, 202(c)(1), 94 Stat. 2325. The Act does not, however, mandate automatic fee-shifting. Instead, it provides that a court "shall award" fees to any party meeting specified qualifications (see 28 U.S.C. 2412(d)(2)(B) (1982 & Supp. V 1987)) that prevails in a civil nontort action against the United States, "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) (1982 & Supp. V 1987). 2. This attorney's fee dispute arises out of a class action brought in 1981 by respondents, as representatives of certain Haitian aliens detained by the INS, /1/ to challenge a revised parole policy instituted by the Immigration and Naturalization Service in that year. Respondents' complaint, as amended, contained seven counts, each alleging a separate cause of action; Count 2 alleged that the new parole policy constituted a "rule" within the meaning of the Administrative Procedure Act, 5 U.S.C. 551 et seq., and that the government's failure to follow APA rulemaking procedures rendered that policy unenforceable. The other counts alleged a number of other constitutional and procedural violations of respondents' rights. /2/ Before trial, the district court dismissed on jurisdictional grounds all of respondents' claims except those based on the APA and the Fifth and the First Amendments. Louis v. Nelson, 544 F. Supp. 973, 983 n.25 (S.D. Fla. 1982). After a five-week trial, it found respondents' constitutional claims to be without merit. Id. at 1001-1004. The district court ruled in favor of respondents on the APA claim, however, concluding that the revised parole policy should have been promulgated in accordance with notice-and-comment rulemaking procedures. Id. at 993-997. /3/ Petitioners appealed the district court's APA ruling. Respondents cross-appealed, pressing their equal protection and First Amendment claims, as well as the claims that had been dismissed before trial. A panel of the Eleventh Circuit affirmed the district court's judgment with regard to the APA claim, but with a different rationale. /4/ In all other respects, it reversed the district court's post-trial judgment; in addition, it concluded that several of the claims should not have been dismissed before trial and remanded the case for further factual development. Jean v. Nelson, 711 F.2d 1455 (1983). The panel opinion was vacated when rehearing en banc was granted, 714 F.2d 96. The en banc court dismissed in part, reversed in part, and remanded with instructions. Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984). All members of the en banc court agreed that the APA claim was moot because petitioners had, subsequent to the district court's decision, promulgated regulations in accordance with the rulemaking provisions of the APA, and because the only persons remaining in detention in the wake of the district court's order granting parole "either had their parole revoked for failure to comply with the terms of the district court's order * * * or arrived in this country after the government's promulgation of its new regulations." Id. at 962. Accordingly, the en banc court dismissed the government's appeal as to the APA issue and remanded with directions "that the injunctive relief grounded on the claimed APA violation be vacated." Id. at 984. The en banc court held that although the petitioners' parole policy was not subject to a constitutional due process attack, excludable aliens "do have rights * * * to whatever process Congress -- and through its regulations and established policies, the Executive branch -- have extended them" (727 F.2d at 984). It accordingly remanded the case for further review under this standard. Ibid. This Court granted respondents' petition for a writ of certiorari, which addressed only the equal protection issue. The Court found it unnecessary to reach that issue because the new regulations promulgated by the INS provided respondents with nondiscriminatory parole consideration -- "all they seek to obtain by virtue of their constitutional argument." Jean v. Nelson, 472 U.S. 846, 855 (1985). The Court therefore affirmed the en banc court's judgment insofar as it remanded the case to the district court for a determination as to whether INS officials were acting in compliance with the new regulations. On that remand respondents obtained no further relief. 3. On December 6, 1985, after the merits litigation had finally come to a close, the district court found that respondents were entitled to an award of fees, costs and expenses under the Equal Access to Justice Act, 28 U.S.C. 2412(d) (1982 & Supp. V 1987). App., infra, 88a-99a. Although recognizing that respondents did not prevail on their constitutional claims, the district court found that they were "prevailing parties" for purposes of EAJA because petitioners' appeal of the district court's APA finding was dismissed, and respondents obtained the "two primary goals" (id. at 89a-90a) of the litigation -- "(petitioners) stopped the accelerated mass exclusion hearings and class members were released from indefinite incarceration" (id. at 90a-91a). The district court also found that petitioners' position on the APA issue was without substantial justification in law or fact (id. at 92a-95a). After a hearing devoted to the reasonableness of the hours and the rates claimed, the district court issued a further order establishing the amount of the EAJA award to respondents (App., infra, 46a-87a). /5/ In determining the numbers of hours reasonably expended in the litigation, the court considered and applied the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). App., infra, 54a-67a. In addition, it concluded that "some award is in order for counsel's efforts in the Supreme Court," and awarded fees for 25% of the hours spent in that portion of the litigation. Id. at 69a-70a. Turning to consideration of the hourly rates to be awarded, the court held that respondents were entitled to rates in excess of the EAJA statutory cap of $75 an hour because of the cost of living and the limited availability of qualified counsel; it made no attempt to quantify the impact of either of these two factors. App., infra, 72a-74a. It then held that respondents were entitled to a 15% enhancement for four reasons: the pro bono publico nature of the case, the vindication of public rights, the emotional pressure on respondents' counsel and the government's litigious posture. Id. at 74a-77a. Finally, in awarding fees for the fee litigation, the court specifically relied (id. at 84a-85a) on the statement in Haitian Refugee Center, Inc. v. Meese, 791 F.2d 1489, 1500 (11th Cir. 1986) that "we * * * decline to hold that this court may award fees for fees only if the government's position in the fees litigation was not substantially justified." /6/ It accordingly did not consider whether the government's position in the fee litigation was substantially justified. In total, the district court awarded respondents more than $1 million, including more than $101,500 for their work on the fee petition. App., infra, 85a, 86a-87a. The Court of appeals affirmed the district court's determination that the government's position was not substantially (App., infra, 11a-17a), /7/ but vacated and remanded for a recalculation of the award (id. at 41a). The court of appeals found that the district court had erred in awarding fees for respondents' unsuccessful Supreme Court litigation, because "(respondents) did not prevail on any legal issue or obtain any additional relief subsequent to our in banc court's decision." Id. at 18a-20a. The court also disapproved the district court's determination of the appropriate hourly rates. It found, first, that the proper starting point was not with the factors listed in Johnson v. Georgia Highway Express, Inc., supra, but the prevailing market rates for services of the kind and quality provided. Even if the requested hourly rates did reflect prevailing market rates, "the district court must still find that a cost of living increase or a 'special factor' justifies hourly rates of more than $75 before it can award fees at a rate in excess of this figure." App., infra, 25a-26a. Here, the district court had failed to explain the basis for its cost of living adjustment in the fee award. The court of appeals then rejected three of the four factors that the district court had relied on -- the pro bono nature of the case, the fact that public rights were vindicated, and the emotional hardship on respondents' counsel -- to justify enhancement of the fee award. The panel majority did, however, conclude that the government's litigiousness in this case might be a special factor which would justify an increased award. Id. at 30a-33a. Although the court of appeals concluded that Pierce v. Underwood, 108 S. Ct. 2541 (1988), precluded consideration of the general level of competence of counsel or "a mere short supply of qualified lawyers willing to take a case at $75 an hour" (App., infra, at 28a) as a "special factor" justifying an enhanced hourly rate, it directed the district court to consider, upon remand, whether expertise in immigration law or fluency in French and Haitian Creole constituted such "special factors". Id. at 28a-29a. /8/ Finally, the court of appeals concluded that the district court had not erred in awarding more than $100,000 in fees for work on the fee litigation without considering whether the government's position in that litigation was substantially justified. The court recognized the division in the circuits on this issue (App., infra, 38a), but agreed with the approach taken by the Second Circuit in Trichilo v. Secretary of Health and Human Services, 823 F.2d 702, 707 (1987), and concluded that "the government's position in the fee litigation is irrelevant to a determination whether a successful EAJA fee applicant can claim 'fees for fees,'" (App., infra, 39a-40a). The court expressly reserved the question "whether a 'technical defense' exception to this rule should exist" (id. at 41a n.14). /9/ REASONS FOR GRANTING THE PETITION There are several significant errors in the opinion of the court of appeals. /10/ We have nevertheless concluded that only one of those errors -- the adoption of a "per se" rule for the award of fees for the fee litigation -- merits this Court's attention at this time. There is a conflict in the circuits over the correct standard to be applied in determing whether to award such fees. That conflict warrants resolution by this Court because it is a source of continued litigation in the circuits that have not adopted a position on the issue. Moreover, the incorrect approach chosen by the court of appeals encourages unnecessary fee litigation that wastes the resources not only of the parties, but also of the courts. 1. As the Eleventh Circuit recognized in this case, there is a split among the circuits on the "fees for fees" issue. The Ninth, Eighth, Seventh and Fifth Circuits have refused to award EAJA prevailing parties fees for the fee litigation where the court has determined that the government's position in the fee litigation was substantially justified. Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984); Cornella v. Schweiker, 741 F.2d 170 (8th Cir. 1984); Continental Web Press, Inc. v. NLRB, 767 F.2d 321, 324 (th Cir. 1985); Russell v. National Mediation Board, 775 F.2d 1284, 1291 n.8 (5th Cir. 1985). /11/ The Eleventh Circuit in this case, following the lead of the Second Circuit in Trichilo v. Secretary of Health and Human Services, 823 F.2d 702 (1987), disagreed with this approach and adopted a "per se" rule, holding the government automatically liable for fees for the fee litigation whenever an EAJA award is made. The First Circuit has recently also adopted this position. McDonald v. Secretary of Health and Human Services, No. 88-2177 (Sept. 7, 1989). /12/ 2. Nothing in the language or the legislative history of EAJA indicates that "fees for fees" should be awarded automatically whenever the government's position on the merits portion of the case is found to lack substantial justification. The statute simply provides that fees are to be awarded the prevailing party unless the "position of the United States" was substantially justified (28 U.S.C. 2412(d)(1)(A)); "position of the United States" is defined to include the position taken in the civil action and the action or failure to act upon which the civil action is based (28 U.S.C. 2412(d)(2)(D)). Nothing in the statute refers to the government's position in the fee litigation; there is certainly no suggestion that fees are to be paid for such litigation regardless of substantial justification. Nor does the legislative history justify the court of appeals' expansive reading of the statute. /13/ Congress amended the Act in 1985 to add the definition of the "position of the United States" out of concern that: If the government's litigation position was the sole consideration, the government could insulate itself from fee liability simply by conceding error or settling, because such actions will always be deemed "reasonable" litigation positions; thereby having the effect of substantially justifying their position. Interpreting the EAJA so as to restrict its application to mere litigation arguments and not the underlying action which made the suit necessary, would remove the very incentive for careful agency action that Congress hoped to create in 1980. H.R. Rep. No. 120, 99th Cong., 1st Sess. 12 (1985) (citation omitted). That concern does not support a per se "fees for fees" rule. Fee litigation is separate from the merits portion of a case. If the agency conduct was unreasonable, the government will be liable for fees for the merits portion of the case. Similarly, if the government's position on the fees portion of the case is not substantially justified, the government will be held liable for fees for fees. But the "incentive for careful agency action" is in no way diminished if the government is not required to pay "fees for fees" because its position in that portion of the case is substantially justified. Indeed, the "per se" rule is inconsistent with the plain language and the purposes of EAJA, since it penalizes the government for raising arguments that are not only substantially justified, but are also correct. Cf. Goldhaber v. Foley, 698 F.2d 193, 197 (3d Cir. 1983); Matthews v. United States, 713 F.2d 677, 684 (11th Cir. 1983). EAJA was carefully crafted so that it would not deter the government from taking reasonable positions. H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10-11, 13-14 (1980). It certainly should not be interpreted in a way that would penalize the government for making reasonable -- even prevailing -- arguments in opposition to any and all fee requests. In this case, for example, the government argued that respondents were not entitled to any compensation for their work before the Supreme Court. The court of appeals agreed. The government also pointed out that the district court had failed to quantify what portion of the increased hourly rate was due to an increase in the cost of living. The appellate court agreed with that contention as well. Finally, the court of appeals agreed with the government that the pro bono nature of the case, the fact that public rights were vindicated, and the emotional hardship on respondents' counsel did not constitute "special factors" justifying an enhanced fee award. Notwithstanding the fact that the government prevailed on each of these issues, the court of appeals has required the government to reimburse respondents for the attorney fees they incurred in these losing efforts. 3. The "per se rule" adopted by the court below will also encourage unnecessary fee litigation, thus further burdening the courts with what this Court in Pierce v. Underwood, 108 S. Ct. 2541, 2548 (1988), recognized as litigation unlikely to result in "law-clarifying benefits". Prevailing parties will be encouraged to file unreasonable fee requests, since regardless of the merits of such requests, the government will have to bear all the costs of litigating them. /14/ Indeed, as the dissent observed in McDonald v. Secretary of Health and Human Services, slip op. 40 "(the more esurient the request, the more likely the government will oppose it; the more heroic the opposition, the more time will reasonably be spent litigating the matter; the more protracted the litigation, the greater the number of hours reasonably expended on it; the more hours spent, the higher the fee award (notwithstanding whatever trimming may be done in the name of 'reasonableness')." No reasonable policy supports such an invitation to meritless litigation; yet that is precisely what the court of appeals' rule of automatic fees for fees does. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General STUART E. SCHIFFER Acting Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General MICHAEL JAY SINGER MARY K. DOYLE Attorneys OCTOBER 1989 /*/ Marie Lucie Jean and Herold Jacques were named as petitioners in an earlier habeas corpus petition, but their names were not included in the second amended class action complaint. /1/ The district court certified a class consisting of all Haitian aliens who arrived in the Southern District of Florida on or after May 20, 1981, who were applying for entry into the United States and who were presently in detention pending exclusion proceedings at various INS detention facilities, for whom an order of exclusion had not been entered and who were either: (1) unrepresented by counsel; or (2) represented by counsel pro bono publico assigned by the Haitian Refugee Volunteer Lawyer Task Force of the Dade County Bar Association. In its final judgment, the district court further modified the class certification by enlarging the class to include all detained Haitians for whom a counsel's notice of appearance form had been entered. Louis v. Nelson, 544 F. Supp. 1004, 1005, 1009 (S.D. Fla. 1982). /2/ Count 1 challenged the commencement of preliminary interviews of Haitian aliens without the presence of counsel or notice of the right to counsel; Count 3 challenged the failure to advise class members of their procedural rights at exclusion hearings; Count 4 challenged the denial of counsel; Count 5 challenged the denial of public exclusion hearings; Count 6 challenged the denial of the right to apply for political asylum; and Count 7 challenged the lawfulness of the program in its entirety under the equal protection component of the Fifth Amendment's Due Process Clause. Louis v. Meissner, 532 F. Supp. 881, 883-884 (S.D. Fla. 1982). /3/ The court subsequently declared that the new policy was "null and void" and that the prior policy was restored to "full force and effect". Louis v. Nelson, 544 F. Supp. 1004, 1006 (S.D. Fla. 1982). Accordingly, the court ordered that all class members in detention be released on parole under an interim plan, subject to certain terms and conditions. Id. at 1006-1009. /4/ The district court had relied (544 F. Supp. at 996-997) on criteria enunciated in Brown Express, Inc. v. United States, 607 F.2d 695, 701-702 (5th Cir. 1979), and Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974), in rejecting petitioners' argument that the INS policy fit within the "general statement of policy" exception to the APA notice and comment requirement for rulemaking. The panel disagreed with those cases, and enunciated its own basis for affirming the district court's conclusion that no "general statement of policy" was involved here. It also stated, however, that "(i)n all fairness to the district court, analyzing a rule within the general statement of policy exception is akin to wandering lost in a Serbonian Bog. The term itself * * * offers little guidance. * * * The legislative history offers little guidance. * * * The Supreme Court has yet to offer a definitive test." 711 F.2d at 1480 (citations omitted). /5/ The appended opinion is a revision of the one originally entered by the court on August 29, 1986. App., infra, 46a n.1. /6/ That portion of the Haitian Refugee Center opinion was subsequently vacated (Haitian Refugee Center v. Meese, 804 F.2d 1573, 1574 (11th Cir. 1986). See App., infra, 38a. /7/ Like the district court, the court of appeals reached this conclusion by focusing solely on the government's position on the APA issue. Despite its earlier recognition of the difficulty of this issue (see note 4, supra), the court of appeals refused to overturn the district court's finding that the government lacked substantial justification in taking the position that the statement of the new parole policy was not a "rule" subject to APA notice and comment requirements. App., infra, 13a-17a. /8/ The dissent disagreed with the basis for the calculation of the cost of living adjustment, with the conclusion that the government's litigating posture might be a "special factor", and also with the conclusion that competence in immigration law might be such a factor. App., infra, 41a-45a. /9/ This reservation apparently referred to the court's prior discussion (App., infra, 39a) of American Academy of Pediatrics v. Bowen, 795 F.2d 211, 214 (1986), noting that in that case, the D.C. Circuit expressly permitted the government to "raise certain technical defenses, such as an untimely filing by the fee applicant, and defend against an application for 'fees for fees' on the ground that the technical defense is substantially justified." /10/ In addition to the "fees for fees" issue presented in this petition, we submit that the court misinterpreted EAJA's provision that no fee award should be made if "the position of the United States was substantially justified" (28 U.S.C. 2412(d)(1)(A) (1982 & Supp. V 1987). Although the United States prevailed on all the issues that were fully litigated in this case, the court below determined that the government's position was not "substantially justified" by focusing solely on the APA issue, which was dismissed as moot by the en banc court of appeals. Instead of giving determinative weight to this single issue, the court should have considered whether the government's overall position was reasonable -- whether the government was "substantially (i.e., for the most part) justified" (Pierce v. Underwood, 108 S. Ct. at 2550 n.2). We also disagree with the court's suggestion that expertise in immigration law might be a "special factor" justifying an award at an hourly rate in excess of the statutory fee cap (cf. Pierce v. Underwood, 108 S. Ct. at 2554), and that the government's alleged litigiousness in this case might also be such a factor. /11/ The Third Circuit suggested a different approach in Russell v. Heckler, 814 F.2d 148, 155 (1987), vacated on other grounds, 108 S. Ct. 2891 (1988). It stated that where the government's sole argument in the fee litigation is that it was substantially justified on the merits, and the court disagrees, the government will ordinarily be liable for fees for the fee litigation; but if the government's opposition is based on other contentions, the court should not award fees for the fee litigation if the government's position with respect to those issues is substantially justified. The Third Circuit has not had the occasion to adopt this rule in a subsequent opinion. /12/ In American Academy of Pediatrics v. Bowen, 795 F.2d 211, 213 (1986), the District of Columbia Circuit noted that in a previous decision (Cinciarelli v. Reagan, 729 F.2d 801 (1984)), it had "indicated a preference for the per se fee-shifting rule." The American Academy of Pediatrics court found it unnecessary to "definitively accept the per se rule suggested by Cinciarelli," stating that "(we) hold only that a technical defense exception, including at least the defense of untimely filing, should limit any fee-shifting rule." 795 F.2d at 213. /13/ Instead, EAJA must be narrowly construed because it is a limited waiver of sovereign immunity. /14/ Similarly, the settlement of fee requests will be discouraged. For this reason, the "per se" rule will in fact tend to encourage the sort of "infinite regression of EAJA litigation" that concerned the court below (App., infra, 38a, quoting Cinciarelli v. Reagan, 729 F.2d 801, 810 (D.C. Cir. 1984)). In any event, the requirement that the reasonableness of the government's position on the fee request must be independently evaluated is unlikely to result in repeated appeals, since it is scarcely likely that such repeated appeals would be substantially justified. Moreover, the risks of litigation under that standard will encourage the parties to settle their fee disputes on a reasonable basis. APPENDIX