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SAI v. Department Of Homeland Security

United States District Court, District of Columbia

April 15, 2016

SAI, Plaintiff,



This is an action brought under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and the Rehabilitation Act, 29 U.S.C. § 794 et seq., to remedy the failure of the Department of Homeland Security to respond in a timely manner to administrative complaints alleging unlawful discrimination. Plaintiff, whose name is Sai, alleges that he was harassed and mistreated on the basis of his disability during two incidents at airport security checkpoints in early 2013-one at Boston Logan International Airport (“BOS”) and the other at San Francisco International Airport (“SFO”). He filed administrative complaints with the Department in early 2013; then, when it failed to respond, filed this action. On December 15, 2015, after lengthy motions practice, the Court granted in part and denied in part Plaintiff partial summary judgment. See Sai v. DHS, No. 14-cv-1876, 2015 WL 8966920 (D.D.C. Dec. 15, 2015). In an order issued that day, the Court directed the Department to respond to Plaintiff’s administrative complaint regarding the incident at SFO. Dkt. 89. In all other respects, the Court granted Defendants’ motions to dismiss. Sai, 2015 WL 8966920. Plaintiff has now moved for attorney’s fees and costs. The Court will grant Plaintiff’s motion for costs but deny his motion for fees.


The extensive procedural history of this case is detailed in the Court’s two prior opinions, see Sai, 2015 WL 8966920, at *2-3; Sai v. DHS, 99 F.Supp. 3d 50, 55-56 (D.D.C. 2015), and so the Court will not belabor it here. Plaintiff sued in November 2014 to compel the Department of Homeland Security (“DHS”) to respond to two administrative complaints he had filed in early 2013 alleging violations of his civil rights. Plaintiff’s complaint alleged causes of action under the Rehabilitation Act; the APA; Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346; and a number of common-law torts, including negligent infliction of emotional distress, intentional infliction of emotional distress, and conspiracy. See Dkt. 1 at 9-14. The centerpiece of the complaint was a claim of unlawful delay, which Plaintiff pled under both the APA and the Rehabilitation Act. Id. at 9-10. But the complaint also pled claims against a number of individual defendants in their personal capacities under Bivens, the FTCA, and other causes of action. Id. at 10-14.

DHS, the Transportation Security Administration (“TSA”), and the individual defendants moved to dismiss the complaint. See Dkts. 23, 63. With respect to Plaintiff’s primary claim, Defendants argued that the Rehabilitation Act did not provide a cause of action to remedy agency delay, but that it nonetheless constituted an alternative “adequate remedy” under Section 704 of the APA, and thus precluded a claim for unreasonable delay under Section 706(1) of that Act. Sai, 2015 WL 8966920, at *6. They further argued that the claims against the individual defendants should be dismissed-the Bivens claim on the merits and the common-law tort claims and FTCA claims for procedural reasons. Id. at *15-16. Plaintiff, for his part, moved for partial summary judgment on his unreasonable-delay claim. Dkt. 7. He argued that DHS had failed to respond to his administrative complaint within the 180-day timeframe prescribed by DHS’s own regulations, see 6 C.F.R. § 15.70(g)(1), and that DHS had offered no reason to justify the delay. While the motions were pending, DHS responded to Plaintiff’s BOS complaint, but not his SFO complaint. See Dkt. 31 at 1.

On December 15, 2015, the Court entered a Memorandum Opinion and Order granting partial summary judgment to Plaintiff on his claim that Defendants had unreasonably delayed in responding to his SFO administrative complaint, but otherwise granting Defendants’ motions to dismiss. Sai, 2015 WL 8966920, at *20; see also Dkt. 89. Although Plaintiff did not assert a claim that Defendants’ actions at the SFO or BOS checkpoints violated his substantive rights under the Rehabilitation Act, because Defendants argued that the potential availability of a substantive remedy under the Rehabilitation Act precluded Plaintiff from pursuing a procedural claim for agency delay under the APA, the Court started by considering whether, and how, Plaintiff might have brought suit to protect his substantive rights under the Rehabilitation Act. Sai, 2015 WL 8966920, at *6. As explained in the Court’s Opinion, it concluded that whatever claim Plaintiff might have with respect to those substantive rights arose under the APA, and not the Rehabilitation Act. Id. at *6-10. As a result, the preclusion of APA review of administrative action (or inaction) “for which there is [an]other adequate remedy in a court, ” 5 U.S.C. § 704, did not prevent Plaintiff from pursuing a claim for agency delay under the APA. Id. The Court therefore concluded that partial summary judgment was warranted on Plaintiff’s claim for agency delay regarding his still-pending SFO complaint, and ordered DHS to respond to that administrative complaint on or before January 22, 2016. Id. at *15. In all other respects, the Court granted Defendants’ motions to dismiss. Id. at *18.

Plaintiff, who is proceeding pro se, has moved for a declaratory judgment that he would be entitled to attorney’s fees had he obtained counsel, as well as costs in an unspecified amount of no less than the $400 filing fee. Dkt. 90. Defendants oppose the motion. Dkt. 91.


Defendants oppose Plaintiff’s motion for costs and attorney’s fees on multiple grounds. They argue that (1) Plaintiff is not entitled to costs or fees because he is not a “prevailing party” under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412; (2) Plaintiff’s motion for costs should be denied because he has failed to specify the costs to which he believes he is entitled, as required by Local Civil Rule 54.1(a), see D.D.C. Civ. R. 54.1(a); and (3) Plaintiff’s motion for fees is “moot” because, as a pro se litigant, he is not entitled to attorney’s fees. See Dkt. 91 at 4-12. Specifically, Defendants argue that Plaintiff is not a prevailing party because “Plaintiff lost on virtually all of his claims, ” id. at 12, and with respect to his claim for agency delay, obtained no more than an “‘interim’ victory in the form of an order directing the agency to respond to the [administrative] complaint, ” id. at 9. Defendants represent that they “reserve” a position on whether, were the Court to reach the question, their position in this litigation was “substantially justified” (as would bar an award of fees). Id. at 8 n.3; 28 U.S.C. § 2412(d)(1)(A).

As a threshold matter, the Court agrees with Defendants that EAJA is “the only . . . fee-shifting statute available to Plaintiff.” Dkt. 91 at 5. Plaintiff brought a variety of common-law and statutory claims, but the only claim on which he obtained relief was Count I. See Sai, 2015 WL 8966920, at *6-15. Although Plaintiff purported to bring that claim under the APA and the Rehabilitation Act, the Court concluded that the claim was properly brought only under the APA. Id. at *10. Because EAJA applies to APA claims, see 28 U.S.C. § 2412(d)(1)(A) (providing for awards of fees and costs in “proceedings for judicial review of agency action”), the Court will evaluate Plaintiff’s motion for costs and fees under the standards set forth in that statute.[1]

A. Costs

EAJA provides that “a judgment for costs . . . may be awarded to the prevailing party in any civil action brought . . . against the United States” or a federal agency or officer. 28 U.S.C. § 2412(a)(1). Defendants’ primary argument as to why Plaintiff is not eligible for costs is that he is not a “prevailing party” under the Act. Defendants argue that Plaintiff “lost on virtually all of his claims”; that, with respect to his claim seeking to compel the Agency Defendants to respond to his complaints, “the [A]gency Defendants and Plaintiff each prevailed as to aspects of that count, ” because the Court dismissed a portion of it as moot; and that, with respect to the portion of that claim on which Plaintiff prevailed, Plaintiff obtained only “limited relief . . . equivalent to a remand to the agency . . . [that] did not materially alter the legal relationship of the parties.” Dkt. 91 at 12. Plaintiff, for his part, maintains that because the Court “ordered the TSA to obey the law and respond to [his] complaints, ” he should be deemed a “prevailing party” under EAJA. Dkt. 92 at 10.

The Court agrees with Plaintiff that he is a “prevailing party.” In determining whether a party is a “prevailing party” under EAJA, the D.C. Circuit applies a three-part test: “(1) there must be a court-ordered change in the legal relationship of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Initiative & Referendum Inst. v. U.S. Postal Serv., 794 F.3d 21, 23-24 (D.C. Cir. 2015) (quoting Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C. Cir. 2010)). All three prongs of that test are satisfied here. The Court held that Plaintiff was entitled to a timely response to his SFO administrative complaint (a court-ordered change in the parties’ legal relationship); it entered partial judgment for Plaintiff (the party seeking the fees); and it directed Defendants to provide that response within a certain timeframe (the requested relief). Nothing more is required under the law in this circuit. Accord Ctr. for Food Safety v. Burwell, 126 F.Supp. 3d 114, 120-22 (D.D.C. 2015).

Defendants’ arguments to the contrary are unpersuasive. Defendants first argue that the Court’s opinion and order did not render Plaintiff a “prevailing party” because Plaintiff did not obtain relief on all of the claims he originally brought. But the Supreme Court has directly and repeatedly repudiated this understanding of the term “prevailing party.” It stated in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), for instance, that “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” And it emphasized in Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S. 782, 790 (1989), that the “degree of the plaintiff’s success in relation to the other goals of the lawsuit is a factor critical to the determination of the size of a reasonable fee, not to eligibility for a fee award at all.” Here, it is clear that Plaintiff received “a substantial part of what [he] asked for in the first place.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 966 (D.C. Cir. 2004). The centerpiece of Plaintiff’s complaint was his allegation that Defendants had “knowing[ly] and ...

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