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Liu v. Chertoff: US District Court : IMMIGRATION - attorney fees for pushing U.S Citizenship and Immigration Services to act on naturalization application

Civil File No. 06‐3851 (MJD/SRN)
U.S. Department of Homeland Security;
U.S. Citizenship and Immigration Services;
U.S. Citizenship and Immigration Services,
Saint Paul District Office; and
Federal Bureau of Investigation;
Herbert Igbanugo, Igbanugo Partners Int’l Law Firm, PLLC, Counsel for Plaintiff.
Friedrich A. P. Siekert, Assistant United States Attorney, Counsel for Defendants.
This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees
and Costs under the Equal Access to Justice Act [Docket No. 30] and on
Defendants’ Motion to Dismiss as Moot [Docket No. 38].
On July 25, 2005, Plaintiff Zheng Liu filed an N‐400 Application for
Naturalization with the U.S. Citizenship and Immigration Services (“USCIS”).
On August 12, 2005, the USCIS requested the FBI name check on Liu. On
December 12, 2005, Liu was interviewed by the USCIS in the Saint Paul District
Office. However, no decision on his application was made.
Liu inquired about his status multiple times, but was informed that no
decision could be made until his FBI name check was completed. On September
27, 2006, Liu filed a pro se Petition for Hearing on Naturalization Application
under 8 U.S.C. § 1447(b) with this Court. Liu requested a Court order
adjudicating his naturalization application or remand to the USCIS requiring
Defendants to immediately adjudicate his naturalization application.
The Government filed a Motion to Dismiss or Alternatively to Remand. It
requested that the Court dismiss Liu’s case for lack of jurisdiction. Alternatively,
the Government asked the Court to remand the matter to the USCIS with no
specific time limit placed on the USCIS and the FBI to complete Liu’s background
check and naturalization application.
Liu filed a timely pro se response to Defendants’ motion to dismiss on
February 22, 2007. On March 8, 2007, Liu’s newly retained counsel, Herbert
Igbanugo, entered his appearance in this matter and filed a supplemental
memorandum in opposition to the motion to dismiss.
On March 28, 2007, the parties appeared for oral argument, but the Court
heard no oral argument and informed the parties that it had reviewed the matter,
had recently issued a ruling in a similar case, and would be remanding the
matter. On April 13, 2007, the Court issued its written order and granted in part
and denied in part Defendants’ Motion to Dismiss or Alternatively, to Remand
and remanded the matter to the USCIS to adjudicate Liu’s application within 6
In its Order, the Court noted that if the USCIS fails to render a decision
within 120 days after the date on which the examination is conducted under
§ 1446, the applicant may seek immediate judicial review. 8 U.S.C. § 1447(b). The
district court “may either determine the matter or remand the matter, with
appropriate instructions, to [the USCIS] to determine the matter.” Id. The Court
noted that USCIS had “a non‐discretionary duty to process the application within
a reasonable time,” and that “[a]t some point, USCIS’s delay becomes
unreasonable.” (Apr. 13, 2007 Order at 7 (citation omitted).) The Court
concluded that neither the USCIS nor the Court had the authority to act on Liu’s
naturalization application while his mandatory background check was pending.
(Id. at 5‐6.) Instead, the Court concluded that remand was appropriate, so that
USCIS could make a final determination on Liu’s naturalization application after
all background checks have been completed. (Id. at 6.)
Defendants requested that the Court impose no time limit on USCIS’s
actions, while, in his supplemental memorandum, Liu asked that the Court order
the USCIS to resolve his application within thirty days. The Court concluded
that, balancing “the heavy workload facing the FBI and the USCIS” with the fact
that Liu had already waited so long and had already undergone Government
background checks, a six‐month time limit was appropriate. Id. at 7. The Court
ordered Liu’s request for adjudication of his application for naturalization be
remanded to the USCIS with instructions that USCIS issue a determination on
Liu’s naturalization application within six months of the date of its Order. (Id. at
7‐8.) Furthermore, the Court ordered that Defendants be ordered to show cause
to this Court for any failure to comply with the substance of the Court’s Order
and to do so within thirty days of the expiration of the six‐month deadline set
forth in the Order. (Id. at 8.) Finally, Liu’s Petition for Hearing on Naturalization
Application was stayed during the pendency of the USCIS’s compliance with the
substance of the Court’s Order. (Id.)
At some point before May 11, 2007, Liu’s name check was cleared and he
was ready for naturalization. (Pl. Ex. 3.) On May 17, 2007, the USCIS sent Liu a
Notice of Naturalization Oath Ceremony. (Id.; Siekert Decl. ¶ 4.) On June 12,
2007, Liu became a naturalized citizen of the United States. (Pl. Ex. 4.)
Liu now requests attorney fees and costs in the amount of ,087.79.
A. Whether this Matter is Moot
Defendants move to dismiss this action for lack of subject matter
jurisdiction because the action is moot. They claim Liu’s Petition is moot because
he has now been naturalized. Liu does not oppose Defendants’ motion to
dismiss, but notes that dismissing the case will not preclude the Court from
awarding attorney fees and costs. Based on the parties’ agreement, the Court will
grant Defendants’ Motion to Dismiss as Moot. [Docket No. 38]
B. Whether Liu Is Entitled to Fees and Costs
1. Standard
Liu seeks an award of attorney fees and costs of ,087.79 under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). “The EAJA provides that a
prevailing party is entitled to an award of fees and expenses in any action
brought by or 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).” U.S. S.E.C. v. Zahareas, 374 F.3d
624, 626 (8th Cir. 2004).
In order to recover attorney fees under the EAJA, Liu must show that his
net worth did not exceed ,000,000 at the time he filed the action, and that he
was the prevailing party in the action. If Liu meets his burden, the United States
has the burden of showing that its position was substantially justified or that
special circumstances render an award unjust. Huett v. Bowen, 873 F.2d 1153,
1155 (8th Cir. 1989); see also 28 U.S.C. § 2412(d)(1)(A), (d)(2)(B).
2. Whether Liu Is a Prevailing Party
a. Liu’s Net Worth
Liu meets the net worth requirement. He has filed a sworn affidavit
providing that his worth has not exceeded ,000,000 from the time his case was
filed through the present. (Liu Aff. ¶ 4.)
b. Liu’s Initial Pro Se Status
Defendants assert that Liu is not entitled to an EAJA fee award because, at
the time Liu filed his Petition and his memorandum in opposition to the motion
to dismiss, he was proceeding pro se. Pro se litigants are not entitled to EAJA fee
awards. Kooritzky v. Herman, 178 F.3d 1315, 1320‐21 (D.C. Cir. 1999). The Court
concludes that this argument does not affect Liu’s request for attorney fees. Liu
is not seeking fees for work done while he was pro se; he only seeks attorney fees
for work done by the attorneys that he hired during the pendency of the case.
Liu’s initial pro se status does not preclude an attorney fee award.
c. Whether Liu “Prevailed”
“[T]o qualify as a ‘prevailing party,’ a plaintiff must obtain ‘actual relief on
the merits of his claim [that] materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that directly benefits the
plaintiff.’” John T. v. Iowa Dept. of Educ., 258 F.3d 860, 863‐64 (8th Cir. 2001)
(quoting Farrar v. Hobby, 506 U.S. 103, 111‐12 (1992)). In other words, “a
plaintiff must secure a ‘judicially sanctioned change in the legal relationship of
the parties’ to qualify as a prevailing party.” Cody v. Hillard, 304 F.3d 767, 772
(8th Cir. 2002) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 605 (2001)). “Any relief obtained must
directly benefit [the plaintiff] at the time of the judgment or settlement.”
Drennan v. Pulaski County Special Sch. Dist., 458 F.3d 755, 757 (8th Cir. 2006)
(citation omitted). Attorney fees are not warranted when the plaintiffs “prevailed
on only a very small and technical part of their claim.” Id. (citation omitted).
The Court concludes that Liu is a prevailing party because the Court
granted him relief that was substantially the relief Liu requested in his Petition.
Liu requested that the Court either adjudicate his naturalization application or
remand his application to Defendants for immediate adjudication. Although the
Court did not order “immediate” adjudication, over Defendants’ objections, the
Court ordered remand to USCIS to adjudicate Liu’s naturalization application
within a specific time frame, which was a position Liu did advocate in his
opposition to Defendants’ motion to dismiss. The Court’s ruling altered Liu’s
legal relationship with Defendants by requiring Defendants to adjudicate his
application within a specific time frame. Liu could have moved to enforce the
Court’s Order if Defendants had failed to comply with it, which is the reason the
Court retained jurisdiction over this matter. Although Liu is now naturalized,
the adjudication of his naturalization application did not result from a voluntary
change in Defendants’ conduct. Instead, Defendants acted in compliance with
this Court’s Order. This case can now be dismissed precisely because Liu
prevailed and obtained a sought‐after Court Order, and Defendants obeyed the
Court’s Order. Liu is a prevailing party. See, e.g., Haidari v. Frazier, Civil No.
06‐3215 (DWF/AJB), slip op. at 8 (D. Minn. May 11, 2007) (holding petitioner who
obtained court order remanding application to USCIS for adjudication within 30
days was prevailing party); Aboushaban v. Mueller, 475 F. Supp. 2d 943, 946
(N.D. Cal. 2007) (holding that plaintiff who obtained court order requiring USCIS
to adjudicate plaintiff’s application was prevailing party and gathering cases
holding similarly).
3. Whether the Government’s Position Was Substantially
a. Standard for Substantial Justification
“The government bears the burden of proving that its position was
substantially justified.” U.S. S.E.C. v. Zahareas, 374 F.3d 624, 627 (8th Cir. 2004)
(citation omitted). “Substantially justified” means “having a ‘reasonable basis
both in law and fact,’ or being ‘justified in substance or in the main.’” U.S. S.E.C.
v. Zahareas, 374 F.3d 624, 626 (8th Cir. 2004) (quoting Pierce v. Underwood, 487
U.S. 552, 565 (1988)). “Therefore, the government’s position can be substantially
justified even though ultimately incorrect, as long as a reasonable person could
think it correct.” Id. (citation omitted). “[T]he most powerful indicator of the
reasonableness of an ultimately rejected position is a decision on the merits and
the rationale which supports that decision.” Id. at 627 (citation omitted).
“Moreover, the government must show that it acted reasonably at all stages of
the litigation” – both in the pre‐litigation and litigation stages. Id. (citations
omitted). The “‘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.” 28 U.S.C. § 2412(d)(2)(D).
b. Whether Defendants’ Pre‐litigation Position Was
Substantially Justified
The Court concludes that Defendants’ pre‐litigation position was not
substantially justified. As the Court previously held, the USCIS had a nondiscretionary
duty to adjudicate applications for naturalization within 120 days
of examination. The Court also previously noted that the “USCIS placed itself in
this procedural predicament by failing to complete the background checks before
notifying Liu to appear for his initial examinations.” (Apr. 13, 2007 Order at 6
(citation omitted).) Defendants demonstrated no attempts to comply with this
duty. USCIS did not request that the FBI expedite Liu’s name check, nor did it
attempt to determine the reasons for the FBI’s delay. The USCIS failed to comply
with the statute or attempt to remedy the delay despite Liu’s multiple inquiries.
Defendants fail to explain why Liu’s name check was delayed, apart from
detailing the heavy workload faced by the FBI and the USCIS. Liu is a Professor
of Economics at Emory University, has no criminal history anywhere in the
world, and has previously passed a U.S. Government background check.
Defendants point to no special circumstances that would require the FBI to take
longer than usual to complete his background check. Defendants offer no
explanation why Liu’s application, in particular, took so long to process. See,
e.g., Aboushaban v. Mueller, 475 F. Supp. 2d 943, 948‐49 (N.D. Cal. 2007) (stating
that “[d]espite the clear connection between the processing of the name check
and USCIS’s final adjudication, defendants do not explain why the name check
was so delayed” and holding that the processing delay was not “substantially
justified”) (footnote omitted).
c. Whether Defendants’ Litigation Position Was
Substantially Justified
Because Defendants’ pre‐litigation position was not substantially justified,
the Court need not address whether Defendants’ litigation position was
substantially justified. However, the Court also notes that Defendants’ litigation
position was not substantially justified. Defendants ignored their clear statutory
duty to render a decision within 120 days after the date of the examination and
an expanding body of case law recognizing the USCIS’s duty to adjudicate
applications within a reasonable period of time, including this Court’s order in
Khan v. Frazier, Civil No. 06‐1560 (MJD/RLE) (D. Minn. Jan. 29, 2007), remanding
a similar case to the USCIS with a time limit. Instead, Defendants continued to
insist that the Court was required to dismiss the case for lack of jurisdiction or,
alternatively, that the Court should place no time limit on the USCIS to
adjudicate Liu’s application. This position was not substantially justified.
4. Whether an Award of Attorney Fees Would Be Unjust
Defendants assert that special circumstances would make the award of fees
unjust. Special circumstances can exist when the Government “advanc[es] in
good faith . . . novel but credible extensions and interpretations of the law” or
when equitable considerations dictate than an award not be made. U.S. Dept. of
Labor v. Rapid Robert’s, Inc., 130 F.3d 345, 347‐48 (8th Cir. 1997) (citation
Defendants argue that, in this case, the Government did not affirmatively
act to violate the law. Instead, they claim that the agencies worked hard to
complete the mandatory background checks in as timely a fashion as possible
given the FBI and USCIS workload. As the Court has noted, Defendants have
provided no explanation why Liu’s name check, in particular, took so long and
they created this procedural predicament. Additionally, Liu bears no
responsibility for the delay. These equities do not make an award unjust.
Defendants also argue that the work provided by Liu’s counsel was
superfluous because Liu retained counsel after already filing his pro se Petition
and pro se memorandum in opposition to Defendants’ motion to dismiss.
Defendants argue that counsel’s supplemental memorandum and filings did not
add to Liu’s position and they note that the Court cut short oral argument. Thus,
they claim Liu’s counsel did not perform work entitled to reimbursement.
Defendants raised no previous objection to Liu’s counsel’s supplemental
memorandum and the Court accepted and considered it before issuing its ruling.
Although the Court cut short the hearing to inform the parties that it would be
remanding the matter to the USCIS, Liu’s counsel was still required to prepare
for and attend oral argument. The fact that Liu prepared some of the filings in
this case on his own before hiring counsel is a fact taken into consideration in the
amount of attorney fees to be awarded. It is not a reason to foreclose the award
of attorney fees altogether.
The Court concludes that there are no special circumstances that would
make the award of fees unjust.
C. Amount of Attorney Fees
1. Introduction
Under the EAJA,
“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 . . . attorney fees shall not be awarded in
excess of 5 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
28 U.S.C. § 2412 (d)(2)(A).
Liu requests a total of ,087.79 in attorney fees and costs. This consists of
,084.14 in fees for work performed by attorney Dyan Williams; 8.00 in fees
for work performed by law clerk Tim Hart; ,980.00 in fees for work performed
by attorney Herbert Igbanugo; 0.00 for the filing fee for the Petition; and
.65 for costs. The Court concludes that this request is reasonable and grants
the request in its entirety.
2. Attorney Dyan Williams
Liu requests that the Court reimburse attorney Dyan Williams at a rate of
rate of 7 per hour, which is the EAJA statutory rate of 5 per hour, adjusted
for inflation by the Consumer Price Index for All Urban Consumers (“CPI‐U”).
The Court may use the CPI‐U to adjust the EAJA rate for inflation. Johnson v.
Sullivan, 919 F.2d 503, 504‐5 (8th Cir. 1990). Williams has submitted an affidavit
detailing her skills and experience in immigration law. The Court concludes that
7 per hour is the appropriate reimbursement rate for Williams’ work.
Liu submits billing records supporting Williams’ time spent on this matter,
including time spent preparing the EAJA petition and responding to Defendants’
opposition to the EAJA petition and motion to dismiss as moot. In total,
Williams spent 42.42 hours on Liu’s case. Thus, the total fees requests by
Williams are ,084.14. The Court finds that the hours worked by Williams are
reasonable and approves the fee request for her work.
3. Law Clerk Tim Hart
Liu also requests fees of 0 per hour for work done by law clerk Tim
Hart based on the market rate. Hart obtained his J.D. from the University of St.
Thomas in May 2007 and, before joining Igbanugo Partners, Hart was a judicial
clerk at the Executive Office for Immigration Review. Hart brought significant
immigration law experience for a law clerk and the Court finds that a market rate
of 0 per hour is reasonable.
Hart spent 5.8 hours under attorney Herbert Igbanugo’s supervision
working on Liu’s case. Liu requests 8 for the total hours Hart spent on Liu’s
case. The Court has reviewed Hart’s billing records and finds that the amount of
time he spent on this matter was reasonable.
4. Attorney Herbert Igbanugo
Finally, Liu requests fees for work done by Igbanugo. He requests
reimbursement at the rate of 5 per hour, based on the statutory rate of 5
per hour, adjusted for inflation to a rate of 7 per hour, plus an added fee
because he has “some distinctive knowledge or specialized skill needful for the
litigation in question.” Pierce v. Underwood, 487 U.S. 552, 572 (1998). An
increased statutory fee is justified if 1) “the attorney possess[es] distinctive
knowledge and skills;” 2) the knowledge and skills “are in some way needed in
the litigation;” and 3) they “cannot be obtained elsewhere at the statutory rate.”
Pirus v. Bowen, 869 F.2d 536, 541‐42 (9th Cir. 1989).
Specialized knowledge of immigration law can warrant enhanced attorney
fee rates. See, e.g., Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004)
(upholding 5 per hour EAJA fee for Igbanugo because the fee “is modest by
current standards of attorney compensation” and he had extensive experience
and qualifications). It is clear that Igbanugo has specialized knowledge and
extensive experience in the immigration field. The Court also concludes that
Igbanugo’s special skills were needed for this litigation. Liu retained Igbanugo at
a point in the litigation after Defendants had already filed a motion to dismiss.
Igbanugo was required to quickly come up to speed on Liu’s case, including his
history dealing with the immigration system, Liu’s pro se Petition, Defendants’
motion to dismiss, and the pro se response that Liu had already filed. Igbanugo’s
skills and experience enabled him to quickly file a supplemental brief and
understand the law and facts in a short amount of time. There are a limited
number of such qualified immigration attorneys who would have represented
Liu under the short time constraint. The Court concludes that a rate of 5 per
hour is warranted. Cf. Haidari v. Frazier, Civil No. 06‐3215 (DWF/AJB), slip op.
at 13‐15 (D. Minn. May 11, 2007) (awarding Igbanugo EAJA fees of 5 per hour
in similar case).
Igbanugo requests reimbursement for 28 hours of work, for a total of
,980 in attorney fees. The Court has reviewed Igbanugo’s billing records and
concludes that the amount of time spent is reasonable. The Court notes that,
although it cut short oral argument to inform the parties that it would be
remanding the matter, Igbanugo and his associates still had to prepare for oral
argument. Additionally, although Liu did file a memorandum in opposition
before he retained counsel, counsel’s supplemental memorandum was not
objected to and was accepted, considered, and found helpful by the Court.
5. Total Fees and Costs
Overall, Liu requests ,087.79, consisting of ,084.14 in attorney fees for
Williams; 8.00 in law clerk fees for Hart; ,980.00 in attorney fees for
Igbanugo; 0.00 in filing fees; and .65 for costs. All of these fees and costs
are reasonable and supported by the record. The Court grants Liu’s motion.
1. Plaintiff’s Motion for Attorney’s Fees and Costs under the Equal
Access to Justice Act [Docket No. 30] is GRANTED and Plaintiff is
entitled to judgment in the amount of ,087.79 in attorney fees
and costs.
2. Defendants’ Motion to Dismiss as Moot [Docket No. 38] is
Dated: March 14, 2008 s/Michael J. Davis
Judge Michael J. Davis
United States District Court


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