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NONG v. RENO

October 29, 1998

SINH THI NONG, et al., Plaintiffs,
v.
JANET RENO, et al., Defendants.



The opinion of the court was delivered by: URBINA

MEMORANDUM OPINION

 Granting the Plaintiffs' Motion for Award of Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act

 The plaintiffs, Sinh Thi Nong and her daughter Mei Ying Liang, sought mandamus and declaratory judgment relief against the United States Immigration and Nationalization Service ("INS") for agency inaction. Ultimately, the plaintiffs' INS matter received the appropriate attention, and Ms. Liang obtained her immigrant visa seven years after the application was originally approved by the INS. This matter is presently before the court upon the plaintiffs' application for attorney's fees and costs pursuant to the Equal Access to Justice Act ("EAJA"). For the reasons set forth herein, the plaintiffs' motion for attorney's fees and costs is granted in the amount of $ 10,305.38.

 I. Background

 On April 11, 1991, Ms. Nong filed, for the second time, a preference immigrant relative visa petition with the INS so that Ms. Liang, her then sixteen year old daughter, could live with her in the United States. The INS approved the visa application on June 5, 1991 and sent the approved application to the American Consulate at Guangzhou in Guangdong province, China ("Consulate"). The Consulate needed to verify Ms. Liang's status as Ms. Nong's daughter before the visa could be issued to Ms. Liang. Throughout a period of three and a half years, the Consulate made ten requests for a copy of Ms. Nong's A-file, but the INS failed to deliver the file. On November 8, 1996, Ms. Nong filed a complaint against the INS alleging that the agency unduly delayed her petition for an immigrant visa for the daughter by failing to send her INS A-file to the Consulate. On August 28, 1997, the court held a status hearing and inquired as to the status of the A-file. Subsequently, the court wrote a letter to James Kieffer at the INS requesting that he give immediate attention to producing the documents necessary for Ms. Liang to obtain her visa. The court administratively closed the case and granted the plaintiffs leave to reopen the file if Ms. Liang continued to have problems obtaining the visa. Ultimately, the A-file was sent to the Consulate, and Ms. Liang received her visa on May 13, 1998.

 The plaintiffs subsequently filed an application for attorney's fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1994). The plaintiffs argue that but for the aforementioned law suit and the court's intervention, they would not have been able to compel the INS to forward a copy of Ms. Nong's A-file to the Consulate so that the mother/daughter relationship could be verified and Ms. Liang's visa could be issued to her. The defendants oppose the following aspects of the motion: (1) compensating the plaintiffs' attorney for expenses incurred after September 1997; (2) compensating the plaintiffs' attorney at a $ 133 hourly rate; and (3) compensating the plaintiffs' attorney for specific expenditures that they believe are unnecessary and burdensome. Upon consideration of the relevant law as applied to the facts of this case, the court grants the plaintiffs' application for attorney's fees.

 II. Discussion

 A. Prevailing Party

 In order to recover attorney's fees and costs under the EAJA, the plaintiffs must be the "prevailing party." See 28 U.S.C. § 2412(d)(1)(A). According to the EAJA, a plaintiff is a prevailing party as long as it is more probable than not that the government would not have performed the desired act but for the lawsuit. See Chen v. Slattery, 842 F. Supp. 597, 598 (D.D.C. 1994) (citing Public Citizen Health Research Group v. Young, 285 U.S. App. D.C. 307, 909 F.2d 546, 550 (D.C. Cir. 1990)). Here, the defendants acknowledge that the INS's A-file was not provided to the American Consulate until after this litigation was initiated. *fn1" For more than three years, the Consulate's requests for the A-file went unfulfilled. It was only after the court sent a letter to the INS that the State Department finally received on September 16, 1997 Ms. Nong's A-file, which was subsequently sent to the Consulate. Because the court finds that the relief requested in Ms. Nong's lawsuit was more than likely granted only as a direct result of the court's intervention, the court concludes that the plaintiffs are the prevailing party in this case.

 B. Substantial Justification

 Even where the plaintiffs are the prevailing party, the defendants may be relieved from paying the plaintiffs' attorney's fees if they can show that the conduct which led to the lawsuit was "substantially justified." See 28 U.S.C. § 2412(d)(1)(A). Specifically, the defendants must demonstrate that their conduct satisfies a reasonable person standard. See Pierce v. Underwood, 487 U.S. 552, 565, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988). An agency's conduct is not substantially justified (1) if the impetus for agency action is the filing of a lawsuit, (2) if the agency cannot justify its delay in performing the desired action, or (3) if the amount of time needed to perform the specific action is disproportionate to established norms. In Chen, the court held that the INS acted unreasonably when it had all the documentation needed to issue the plaintiff's employment authorization document but failed to do so until three weeks after the plaintiff filed suit charging the agency with failure to adjudicate his employment eligibility application. 842 F. Supp. at 599. Moreover, the INS's failure to provide a reason for the delay further justified the conclusion that the agency acted unreasonably. See id. In another case against the INS, the court determined that the agency's two year delay in processing the plaintiff's application for adjustment of his status to a permanent resident alien was unreasonable given that the average processing time for such applications is 130 days. See Nadler v. INS, 737 F. Supp. 658, 661 (D.D.C. 1989).

 In the present case, the INS's failure to respond to the Consulate's request for Ms. Nong's A-file is not substantially justified. First, the INS had access to Ms. Nong's A-file during the three and a half years that the Consulate repeatedly made request for a copy of the file, but the INS did not fulfill the Consulate's request until the court intervened upon the filing of the lawsuit. Second, the INS has never provided any explanation for its failure to respond to the Consulate's repeated requests. n.2 [FOOTNOTE OMITTED] Third, a representative from the Consulate acknowledged a delay in processing Ms. Nong's visa, given the fact that the Consulate had requested the A-file three years earlier. *fn3" The correspondence between the Consulate and the State Department establishes that three years is an unusual amount of time to process an A-file request. *fn4" In fact, it appears that all the officials involved in requesting or receiving Ms. Nong's A-file recognized that three years was an extraordinary amount of time to wait. *fn5" Finally, while Ms. Nong's application is different in nature, it is noteworthy that her visa application took over seven years to process in comparison to the two year period that the court determined was unreasonable in Nadler. On balance, the government's conduct was neither reasonable nor substantially justified, and the court, therefore, grants an award of attorney's fees and costs to the plaintiffs under the EAJA.

 C. Reasonableness of Request for Fees and Costs

 Under the EAJA, an appropriate attorney's fee is based on a lodestar rate. A lodestar rate is calculated by multiplying a reasonable hourly rate by a reasonable number of hours. See United Church Bd. for World Ministries v. SEC, 649 F. Supp. 492, 498 (D.D.C. 1986). A court has the discretion to adjust the lodestar rate upward or downward by use of a multiplier to reflect various factors. See National Ass'n of ...


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