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NADLER v. INS

December 4, 1989

MORTON NADLER, Plaintiff,
v.
IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants



The opinion of the court was delivered by: GASCH

 OLIVER GASCH, UNITED STATES DISTRICT JUDGE.

 This matter is before the Court on plaintiff's motion for attorneys fees under the Equal Access to Justice Act ("EAJA" or "the Act"), 28 U.S.C. § 2412(d). On March 30, 1989, this Court granted plaintiff's motion for summary judgment, ordering the Immigration and Naturalization Service ("INS") to adjudicate plaintiff's application for adjustment of status within thirty days. Although defendants concede that plaintiff is a prevailing party to this litigation, they argue that attorneys fees are not warranted because defendants' position was "substantially justified." For the reasons that follow, the Court grants plaintiff's motion.

 I. BACKGROUND

 This mandamus action was brought by plaintiff Morton Nadler to compel the INS to make a decision on his application for adjustment of status to that of permanent resident alien. On April 24, 1987, the INS District Office in Arlington, Virginia, accepted plaintiff Nadler's application, which in effect had been pending since 1986. *fn1" When the INS failed to take any action on his application or respond to plaintiff's written inquiries by June 9, 1988, plaintiff filed this mandamus proceeding. On October 21, 1988, the INS District Director denied Nadler's application for a change of status to that of permanent resident alien, but certified his case for review to the INS Regional Director.

 On March 30, 1989, this Court rejected defendants' argument that the District Director's decision rendered plaintiff's request for mandamus moot, holding that the District Director's ruling was not a final judgment but merely a proposed decision. The Court also held that defendants' delay in adjudicating plaintiff's application was unreasonable. The Court ordered defendants to make a final adjudication of plaintiff's application for adjustment of status within thirty days. Nadler v. INS, No. 88-1586, slip op. (D.D.C. Mar. 30, 1989).

 On April 25, 1989, in accordance with the Court's Order, the Regional Director issued a final ruling on plaintiff's application, in which he affirmed the decision of the District Director and denied plaintiff's application for adjustment of status to that of permanent resident alien. On June 6, 1989, plaintiff moved the Court for an award under the EAJA, seeking $ 8,597.50 in attorneys fees and $ 120.00 in costs for prevailing in his claim to have this court compel a final adjudication. On that same day plaintiff also filed a new action, Civil Action No. 89-1626, asking the Court to overturn the final decision of the INS as arbitrary, capricious, contrary to law and unsupported by the facts. Cross-motions for summary judgment, recently filed, are now ripe and pending in that separate case.

 II. DISCUSSION

 The EAJA states that a court "shall" award attorneys fees and other expenses to a "prevailing party," other than the United States,

 
in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

 28 U.S.C. § 2412(d)(1)(A). Thus, by the terms of the Act, plaintiff is entitled to attorneys fees in this case provided (1) he is a prevailing party, (2) the INS's position was not substantially justified, and (3) no special circumstances exist which would render an award unjust.

 There is no dispute that plaintiff Nadler, as an individual with a net worth of less than $ 2 million, is financially qualified to seek attorneys fees under the EAJA. See 28 U.S.C. § 2412(d)(2)(B). Further, defendants concede that plaintiff qualifies as a prevailing party under the EAJA, since plaintiff clearly prevailed in his efforts to compel the INS to adjudicate his application for a change of status. Defendants' Opposition Memorandum at 5. Defendants do not argue that special circumstances exist which would make an award unjust. See id. at 4 n. 2. Rather, defendants object to an award of fees and costs on the ground that the position of the INS was "substantially justified." Defendants also insist that the fees and expenses demanded by plaintiff are excessive.

 A. Whether Defendants' Position was Substantially Justified

 In order to defeat an award of fees under the EAJA, the government bears the burden of demonstrating that its position was substantially justified. Cinciarelli v. Reagan, 234 U.S. App. D.C. 315, 729 F.2d 801, 806 (D.C. Cir. 1984); Trahan v. Regan, 262 U.S. App. D.C. 369, 824 F.2d 96, 101 (D.C. Cir. 1987), vacated on other grounds, 275 U.S. App. D.C. 306, 866 F.2d 1424 (1988) (en banc). The term "substantially justified" requires the government to show that its position was "justified to a degree that could satisfy a reasonable person" or, said another way, that its position had a "'reasonable basis both in law and fact.'" Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 2550, 101 L. Ed. 2d 490 (1988) (citing various cases from the Circuit Courts of Appeal). The term "position of the United States" as used in the EAJA is defined by ...


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