The opinion of the court was delivered by: LAMBERTH
This case comes before this court on plaintiff's motion for an award of attorney's fees and costs under 28 U.S.C. § 2412 (the Equal Access to Justice Act ("EAJA")).
Having considered the memoranda and evidence of both parties, this court shall grant plaintiff's motion. A separate order shall issue this date.
Plaintiff first applied for an employment authorization document ("EAD") on May 28, 1990 (Defs.' Opp'n, Ex. A; Pl.'s Reply Ex. 22). The INS terminated his EAD application for failure to prosecute on January 29, 1991 (Defs.' Opp'n, Ex. C).
Plaintiff again applied for an EAD on August 19, 1992 (Defs.' Opp'n, Ex. D). In a letter dated November 3, 1992, plaintiff submitted several documents to the INS, including copies of his driver's license, resident alien card, passport, and birth certificate with translation (Pl.'s Reply, Ex. 3, at PP 14, 26, 27). The letter notified the INS that if plaintiff received no response within fifteen days, he would file an action in federal court (Pl.'s Reply, Ex. 3).
The INS informed him by letter on January 25, 1993, that "in order to process your application, you must provide this office with official supporting documentation in your name only (i.e., utility bills, certified copies of your income tax records, birth, marriage and death certificates, public assistance records, driver's license, hospital records and any other official documents issued by a recognized institution)." (Defs.' Opp'n, Ex. E., emphasis in original.) The letter told plaintiff that failure to respond within thirty days would cause his application to be denied as abandoned (Defs.' Opp'n, Ex. E).
On February 23, 1993, plaintiff filed this lawsuit against the INS, charging it with failing to adjudicate his eligibility for an EAD. Three weeks later, on March 16, 1993, defendants authorized plaintiff's EAD (Defs.' Opp'n, Ex. F). The INS states that on that day, plaintiff finally submitted necessary additional documentation so that the INS could act on his application.
Once plaintiff received his EAD, this court dismissed plaintiff's action as moot, except with respect to the issue of fees and costs (Order of May 11, 1993). Plaintiff filed the motion at issue here on June 15, 1993, requesting $ 1,219.40 in attorney's fees and expenses.
In order to claim fees under EAJA, plaintiff must be a "prevailing party." 28 U.S.C. § 2412(d)(1)(A). A plaintiff may be a "prevailing party" for EAJA purposes even if (as here) the lawsuit is rendered moot by the granting of relief, as long as plaintiff demonstrates that "it is more probable than not that the government would not have performed the desired act absent the lawsuit." Public Citizen Health Research Group v. Young, 285 U.S. App. D.C. 307, 909 F.2d 546, 550 (D.C. Cir. 1990). This is a "but for" causation test. See id.
The issue in the present case is whether the INS issued plaintiff his EAD on March 16, 1993 because of the documents he supposedly submitted that date, or because of the lawsuit he filed against the INS three weeks before. Plaintiff claims that the action he filed against the INS on February 22, 1993, spurred the INS's decision to grant him his EAD.
Defendants counter that plaintiff's lawsuit had nothing to do with their decision to grant his EAD. According to defendants, "plaintiff received his EAD not because of the lawsuit he brought but because he finally provided the documentation required for the INS to issue an EAD on March 16, 1993." (Defs.' Opp'n, at 3.) Defendants state that "it was not until March 16, 1993, several weeks after his complaint was filed, that plaintiff provided the additional documentation and his EAD was issued." (Defs.' Opp'n, at 4.)
Yet defendants' claim is hard to accept at face value. First of all, the claim that defendants have made to this court in their brief and in oral argument is not supported by defendants' documents. Defendants' submissions do not indicate what "additional documentation" plaintiff supposedly submitted on March 16, 1993. Defendants have not submitted any letters or documents sent to them by plaintiff on March 16, 1993. Defendants' declaration of EAD officer Sham Q. Chin-Gee states simply that plaintiff "appeared on March 16, 1993, to inquire as to his pending I-765 application for deferred enforced departure. On March 16, 1993, [plaintiff] was issued an employment authorization document" (Chin-Gee Aff., at P 3, 4). The declaration does not indicate that plaintiff produced any new documents on March 16, 1993. Significantly, nothing in the declaration indicates that the INS officer knew nothing about plaintiff's lawsuit. The undated INS form, stamped "APPROVED" ...