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Aarda v. U.S. Citizenship & Immigrations Svcs.: US District Court : IMMIGRATION | FEES - fees for compelling action by USCIS

Jehad Aarda,
Civ. No. 06-1561 (RHK/AJB)
United States Citizenship and Immigration
Services, et al.,
Bruce D. Nestor, De Leon & Nestor, LLC, Minneapolis, Minnesota, for Plaintiff.
Friedrich A.P. Siekert, Assistant United States Attorney, Minneapolis, Minnesota, for
This matter is before the Court on Plaintiff’s Application for Attorney’s Fees
Pursuant to the Equal Access to Justice Act (Doc. No. 45) (the “Fee Application”). For
the reasons set forth below, the Fee Application will be granted in part and denied in part.
Plaintiff is a citizen of Jordan who has been a lawful permanent resident of the
United States since 1999. Plaintiff filed an application for naturalization (the
“Application”) on January 20, 2004. On June 23, 2004, pursuant to 8 C.F.R. § 335.2, the
Bureau of Citizenship and Immigration Services (“CIS”) interviewed Plaintiff concerning
his Application, at which time he passed the required English-language-proficiency
evaluation and a test concerning his knowledge and understanding of United States
government and history. See 8 U.S.C. § 1423(a)(1)-(2); 8 C.F.R. § 335.2. The only
remaining hurdle for the Application to be finally adjudicated, therefore, was a Federal
Bureau of Investigation name check. See 8 C.F.R. § 335.2(b).
When Plaintiff’s name check had not been completed by April 2006, he
commenced the instant action, seeking an Order either (1) granting the Application or
(2) remanding it to CIS with instructions to adjudicate it within 60 days. (See First
Amended Application for Writ of Mandamus (Doc. No. 21) at 10.) Defendants moved to
dismiss the case; alternatively, they sought remand to CIS without any restrictions on the
length of time in which CIS could adjudicate the Application. (See Doc. No. 12 at 1-2.)
On January 19, 2007, Magistrate Judge Boylan issued a Report and Recommendation in
which he recommended that the matter be remanded to CIS with instructions to adjudicate
the Application within 120 days. Plaintiff and Defendants then filed Objections to the
Report and Recommendation.
By Order dated February 8, 2007, the Court overruled the Objections and adopted
the Report and Recommendation in its entirety, “retain[ing] jurisdiction of this matter to
ensure compliance with the directives herein.” Nothing in the Order directed that
judgment be entered, and no separate judgment was entered at that time pursuant to
Federal Rule of Civil Procedure 58.
On remand, CIS complied with the Court’s Order and adjudicated the Application
within 120 days – it denied the Application on June 8, 2007. Plaintiff then
administratively appealed the denial of his Application. However, he also filed a Motion
in the case sub judice seeking immediate de novo review of his Application. Defendants
moved to dismiss, arguing that the lawsuit had been rendered moot by the denial of the
Application and that the Court therefore lacked jurisdiction over the case, including any
de novo review. Plaintiff countered that jurisdiction continued to exist because the Court
had expressly retained jurisdiction over this case in its February 8, 2007 Order.
On December 6, 2007, Magistrate Judge Boylan issued a Report and
Recommendation recommending that the Motion to Dismiss be granted. Judge Boylan
rejected Plaintiff’s argument that jurisdiction continued to exist based on the Court’s
reservation of jurisdiction in its February 8, 2007 Order, stating “[u]pon remand the
district court retained jurisdiction only to the limited extent necessary to assure
compliance with the court’s express directions. . . . [D]istrict court jurisdiction was not
retained for any purpose beyond that which was appropriate to enforce the court’s
directives regarding completion of [the] name check[].” (Doc. No. 41 at 5.) Because de
novo review was not a purpose for which the Court retained jurisdiction, Judge Boylan
recommended dismissing the case for lack of jurisdiction. Plaintiff filed an Objection to
the Report and Recommendation, but the Court overruled it and adopted the Report and
Recommendation in its entirety by Order dated January 3, 2008. That Order expressly
directed the entry of judgment, and a separate Judgment dismissing the case was entered
the same day, pursuant to Federal Rule of Civil Procedure 58.
Plaintiff filed the instant Fee Application on February 8, 2008. Plaintiff argues
that he is entitled to an award of ,563.50 in attorney’s fees and costs incurred in
connection with this case under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the
“EAJA”). In response, Defendants argue that (1) the Fee Application is untimely, (2) fees
are unwarranted under the EAJA, and (3) even if fees are awarded, they should be
reduced from the amount sought by Plaintiff.
I. The Fee Application was timely filed.
The EAJA provides, in pertinent part, that a court shall award to “a prevailing
party . . . fees and other expenses . . . incurred by that party in any civil action . . . brought
. . . 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). A “prevailing party” seeking fees under the EAJA must file his
application “within thirty days of final judgment in the action,” id. § 2412(d)(1)(B) – in
other words, within 30 days of a judgment that is “final and not appealable,” id.
§ 2412(d)(2)(G). In cases where the United States (or agents thereof) are named as
defendants, the deadline for filing an appeal is 60 days from the date the judgment is
entered. See Fed. R. App. P. 4(a)(1)(B). Hence, a party seeking fees under the EAJA
must file his application within 90 days (60 plus 30) of judgment being entered in the
district court, if no appeal is taken in the case.
Here, Defendants creatively argue that Plaintiff’s application was untimely
because it was filed both too early and too late. They first argue that Plaintiff seeks fees
1 Plaintiff concedes that his Fee Application is premature. (See Reply Mem. at 5.)
only for work performed up to the Court’s February 8, 2007 Order remanding this case to
CIS and, accordingly, that the Fee Application should have been filed within 90 days of
that Order (February 8, 2007), even though no judgment was entered at that time. They
next argue that if the controlling date is January 3, 2008 (the date the Judgment was
entered) and not February 8, 2007 (the date of remand), the Fee Application was filed too
early because the Judgment had not yet become “final” when the Fee Application was
filed on February 8, 2008. Neither argument is persuasive.
Taking the latter argument first, Defendants are correct that several courts
(including the United States Supreme Court) have held that an EAJA application filed
before a judgment becomes “final” under the EAJA – that is, before it becomes
unappealable – is “premature.” E.g., Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991);
Goatcher v. Chater, 57 F.3d 980, 981 (10th Cir. 1995); United States v. 27.09 Acres of
Land, 1 F.3d 107, 111 (2d Cir. 1993).1 That Plaintiff’s Application is premature,
however, does not mean that it must be dismissed, as Defendants argue. Indeed, in
Melkonyan (upon which Goatcher and 27.09 Acres relied), the Supreme Court declined to
address whether a district court must refuse to entertain a premature fee application. 501
U.S. at 102 (“This case is not an appropriate vehicle for resolving the issue.”).
Several other courts have held that “premature” fee applications under the EAJA
may be entertained by district courts, because the EAJA sets forth only a deadline for
filing such applications, not a starting date. See, e.g., Johnson v. Gonzales, 416 F.3d 205,
208 (3rd Cir. 2005) (“[t]he EAJA establishes only a deadline after which . . . petitions
may not be filed; earlier filing is possible”) (quoting Taylor v. United States, 749 F.2d
171, 174 (3rd Cir. 1984)); Auke Bay Concerned Citizen’s Advisory Council v. Marsh,
779 F.2d 1391, 1393 (9th Cir. 1986); James v. Dep’t of Hous. & Urban Dev., 783 F.2d
997, 998 (11th Cir. 1986); Gonzalez v. United States, 44 Fed. Cl. 764, 767-68 (Fed. Cl.
1999). Although the Court’s research has not uncovered any Eighth Circuit cases so
holding, our Court of Appeals has strongly suggested that it would take the same position
if confronted with the question. See Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir. 1991)
(citing Auke Bay with approval and parenthetically describing the holding in that case as
“fee applications filed before final judgments are timely”). Moreover, the legislative
history of the EAJA confirms that Congress intended to authorize district courts to act on
fee applications filed before judgments become “final” under the EAJA. See H.R. Rep.
No. 99-120(I), at 18 n.26 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 146 n.26 (“Fee
petitions may be filed before a ‘final judgment.’”); see also McDonald v. Schweiker, 726
F.2d 311, 314 (7th Cir. 1983) (“The legislative history indicates . . . that the 30-day
provision in the Act was meant to establish a deadline, not a starting point.”).
Accordingly, the Court rejects Defendants’ argument that the Fee Application should be
dismissed as premature.
Defendants’ argument that the Fee Application was filed too late fares no better.
As the foregoing discussion demonstrates, the 30-day clock for filing an EAJA fee
application does not begin ticking until after the district court’s judgment becomes
“final.” The remand Order of February 8, 2007, however, was not a judgment, and
therefore it could not become a “final judgment” for EAJA purposes. This is made
abundantly clear by the fact that the remand Order was not a “separate document” under
Federal Rule of Civil Procedure 58(a), did not direct the entry of judgment on such a
“separate document,” and expressly indicated that the Court would retain jurisdiction over
this case to ensure Defendants’ compliance with the Order’s directives. Cf. Shalala v.
Schaefer, 509 U.S. 292, 296-301 (1993) (“sentence four” remand in a Social-Security
case is a final judgment because the Social Security Act specifies that such remands are
final judgments and does not permit retention of jurisdiction by the district court). In fact,
Defendants concede that the remand Order was not a judgment. (See Mem. in Opp’n at
12-13.) Only once the Court rejected Plaintiff’s request for de novo review and dismissed
this case on January 3, 2008, was the Clerk directed to enter judgment; the Judgment was
then entered on the docket on a “separate document” pursuant to Rule 58. Plaintiff,
therefore, had 90 days – 60 days for the expiration of the appeal period, plus 30 more
days under the EAJA – from January 3, 2008, to file his Fee Application. Because that
application was filed on February 8, 2008, it was timely under the EAJA.
II. Plaintiff is entitled to fees and costs.
A. Plaintiff is a “prevailing party”
A prerequisite to an award of fees under the EAJA is that the claimant be a
“prevailing party.” “[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. ex rel. Robert T. v. Iowa Dep’t of Educ., 258 F.3d 860, 863-64 (8th
Cir. 2001) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)); accord Cody v.
Hillard, 304 F.3d 767, 772 (8th Cir. 2002) (“a plaintiff must secure a ‘judicially
sanctioned change in the legal relationship of the parties’ to qualify as a prevailing party”)
(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). On the other hand, attorney’s fees are
not warranted when a plaintiff “prevailed on only a very small and technical part of [his]
claim.” Id. (citation omitted).
On facts similar to those here, two decisions of this Court recently concluded that
the plaintiffs were “prevailing parties” for purposes of the EAJA. In Liu v. Chertoff, Civ.
No. 06-3851, 2008 WL 706594 (D. Minn. Mar. 14, 2008) (Davis, J.), the Court held that
the plaintiff was a prevailing party
because the Court granted him relief that was substantially the relief [he]
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).
Id. at *3. As noted in Liu, the same conclusion was reached in Haidari v. Frazier, Civ.
No. 06-3215, slip op. at 7-8 (D. Minn. May 11, 2007) (Frank, J.), which held that the
plaintiffs were prevailing parties under the EAJA because their applications for
naturalization were remanded to CIS for adjudication within a specific time frame. The
Court fully agrees with these decisions and adopts their reasoning. Accordingly, it
concludes that, by virtue of the Court’s remand of the Application to CIS with
instructions to adjudicate it within 120 days, Plaintiff is a prevailing party in this action.
One additional point bears mentioning. In Liu and Haidari, the naturalization
applications at issue were granted by CIS on remand, whereas the Application here was
denied on remand. Defendants argue that Plaintiff cannot be a prevailing party when his
Application was denied (see Mem. in Opp’n at 12), but the Court does not agree. The
nature of the relief sought in the Petition was to compel action on the Application;
prevailing-party status, therefore, is not tied to whether the Application ultimately was
2 Another prerequisite to the recovery of fees under the EAJA is that an individual
seeking such fees have a net worth of million or less. See 28 U.S.C. § 2412(d)(2)(B).
Plaintiff has submitted an Affidavit confirming that fact, and Defendants do not argue otherwise.
adjudicated in Plaintiff’s favor. Stated differently, whether Plaintiff is a prevailing party
is a separate issue from “USCIS ultimately grant[ing] h[is] application for naturalization;
instead, h[is] success stems from the fact that USCIS adjudicated h[is] naturalization
application at all.” Osman v. Mukasey, No. C07-588MJP, 2008 WL 618635, at *3
(W.D. Wash. Mar. 3, 2008) (emphasis added); accord Alghamdi v. Ridge, No.
3:05cv344-RS, 2006 U.S. Dist. LEXIS 68498, at *17 (N.D. Fla. Sept. 25, 2006)
(“whether USCIS ultimately grants or denies the application [is] irrelevant for
determining whether a plaintiff” is a prevailing party).
For these reasons, the Court concludes that Plaintiff is a “prevailing party” in this
B. Defendants’ position was not substantially justified
A litigant may not recover fees under the EAJA if the Government’s position was
“substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The burden rests with the
Government to show that its position was substantially justified; to do so, it must
demonstrate that its position had “a reasonable basis both in law and fact” or was
“justified in substance or in the main.” SEC v. Zahareas, 374 F.3d 624, 626-27 (8th Cir.
2004). “Position” means both the Government’s litigation position and the underlying
action or failure to act by the agency that led to litigation in the first place. 28 U.S.C.
§ 2412(d)(2)(D). Here, the Court concludes that Defendants’ position was not
substantially justified, both pre-litigation and during litigation.
Defendants’ sole argument to justify their pre-litigation position – more than 22
months of delay between Plaintiff’s interview with CIS and the commencement of this
action – is that they were extremely backlogged with name-check requests and, as a
result, it took a significant amount of time to complete the background check necessary to
process the Application. (See Mem. in Opp’n at 15-18.) This argument parrots those
raised, and rejected, in Liu and Haidari. See Liu, 2008 WL 706594, at *4 (pre-litigation
position was not substantially justified due to the “heavy workload faced by the FBI and
the USCIS” in processing name checks); Haidari, slip op. at 9 (“Defendants’ assertion
that the USCIS is overworked does not justify the delay.”); see also Alghamdi, 2006 U.S.
Dist. LEXIS 68498, at *43 (“that background checks were necessary and had to be
completed before the plaintiff could be naturalized . . . merely restates, in a conclusory
manner, the necessity of completing the background check; it does not justify the delay”)
(emphasis in original). The Court agrees with and adopts that conclusion.
As for Defendants’ litigation position, the Court need do nothing more than repeat
Haidari’s succinct (and, in its view, correct) conclusion:
[A]lthough the Court need not address whether Defendants’
litigation positions were substantially justified in light of finding
that the underlying actions were not substantially justified, the
Court finds that certain litigation positions that the Defendants’
took were not substantially justified. Specifically, in light of the
relevant statutes and regulations and the existing case law
indicating a trend to recognize that the government has a duty to
3 The Court finds particularly disingenuous Defendants’ assertion that they “worked hard
to complete the mandatory background checks in as timely a fashion as possible.” (Mem. in
Opp’n at 21.) Plaintiff’s name check had been pending for almost two years before this action
was commenced in April 2006, and still had not been completed nearly a year later when, in
February 2007, the Court ordered adjudication of the Application within 120 days. Only after
remand with a Court-imposed deadline for adjudicating the Application did Defendants “spring
into action” and rapidly adjudicate the Application.
process these and similar applications within a reasonable period
of time, at a minimum, Defendants’ failure to recognize that the
USCIS has a duty to adjudicate the Plaintiffs’ applications
within a reasonable time was not substantially justified.
Slip op. at 10-11; accord Liu, 2008 WL 706594, at *5; Osman, 2008 WL 618635, at *4.
C. No “special circumstances” require the Court to deny fees
Defendants argue that “special circumstances” here make an award of fees unjust.
It is true that, in “special circumstances,” the Court may deny an award of fees under the
EAJA. See 28 U.S.C. § 2412(d)(1)(A). Such circumstances 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. Dep’t of Labor v.
Rapid Robert’s, Inc., 130 F.3d 345, 347-48 (8th Cir. 1997) (citation omitted).
Defendants argue that no fee award is warranted here because “this is not a case in
which the government affirmatively acted in violation of the law” (Mem. in Opp’n at 21),
but the Court is not persuaded. Indeed, the Court has already determined that Defendants
were required to adjudicate the Application within a reasonable period of time; their
failure to do so, in the Court’s view, belies the contention that they did not “affirmatively
act in violation of the law.” (Id.)3 The Court further notes that Liu rejected this same
argument, stating “Defendants have provided no explanation why Liu’s name check . . .
took so long . . . . Additionally, Liu bears no responsibility for the delay. These equities
do not make an award unjust.” 2008 WL 706594, at *5. The Court agrees and concludes
that it need not decline to award fees here due to “special circumstances.”
III. The amount of fees and costs requested will be reduced.
The EAJA permits a prevailing party to recover “fees and other expenses” incurred
in the litigation. 28 U.S.C. § 2412(d)(1)(A). The term “fees and other expenses” includes
“reasonable attorney fees,” with a caveat: “The amount of fees awarded . . . 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
fee.” Id. § 2412(d)(2)(A).
Here, Plaintiff seeks fees for 24.8 hours of work performed in this case by attorney
Bruce D. Nestor. Attorney Nestor has submitted an affidavit detailing his work on this
case and contemporaneous time records documenting the 24.8 hours expended.
Defendants raise only two objections to attorney Nestor’s time entries.
First, Defendants argue that 2.7 hours expended preparing a Motion to Amend the
Complaint (and the Amended Complaint itself) were unnecessary, since (1) leave to
amend was not required because Defendants had not filed an Answer at that time and
(2) the Amended Complaint added only “superfluous factual allegations.” (Mem. in
Opp’n at 23.) While Defendants are correct that leave to amend was not required,
Plaintiff’s counsel appears to have spent nearly all of these 2.7 hours preparing the
Amended Complaint and not the Motion to Amend, which is a mere two pages long and
does little more than recite the standard for leave to amend under Federal Rule of Civil
Procedure 15. Moreover, the Court does not agree with Defendants’ assertion that the
amendments to the Complaint were superfluous and added little to the original Complaint.
Accordingly, the Court will not reduce the compensable time devoted to the Amended
Second, Defendants argue that 1.5 hours expended in connection with Plaintiff’s
Motion to Expedite a Ruling on Defendants’ Motion to Dismiss should be excluded,
because “[s]uch a motion is not contemplated by the rules and the motion added nothing
substantive to the record in the case.” (Id.) When Plaintiff filed the Motion to Expedite,
however, the Motion to Dismiss had been pending for more than 5 months. In the
meantime, Plaintiff was living in immigration limbo; seeking an expedited ruling on
Defendants’ Motion under these circumstances was certainly reasonable. Moreover,
while the Federal Rules of Civil Procedure and the Court’s Local Rules do not expressly
provide for a motion to expedite a ruling, they also do not specifically preclude such a
motion. Accordingly, the Court will not disallow the 1.5 hours expended in connection
with the Motion to Expedite.
The Court has reviewed the remaining time entries submitted by Plaintiff’s counsel
(which Defendants have not challenged) and concludes that they are reasonable and
4 Fees incurred in litigating an EAJA fee application are compensable. Comm’r v. Jean,
496 U.S. 154, 164-65 (1990).
5 Defendants argue that the Court should utilize only the 5 hourly rate set forth in the
statute, but the Court believes than an enhancement for cost of living is appropriate.
appropriate. Accordingly, Plaintiff is entitled to fees for the full 24.8 hours expended by
his counsel. In addition, the Court notes that Plaintiff’s counsel spent 2.5 hours preparing
a Court-ordered Reply brief in connection with the Fee Application. The Court believes
that 2.5 hours is reasonable and will therefore add those hours to Plaintiff’s Fee
Application.4 Accordingly, Plaintiff is entitled to recover for 27.3 hours of attorney work
on this case.
As for the hourly rate, Plaintiff and Defendants agree that the 5 hourly rate set
forth in the EAJA, when adjusted upward using the Consumer Price Index, results in an
hourly rate of 9. See Johnson v. Sullivan, 919 F.2d 503, 504-05 (8th Cir. 1990)
(EAJA’s 5 hourly rate may be increased to account for cost-of-living increases, and
approving use of Consumer Price Index to do so); Liu, 2008 WL 706594, at *6 (adjusting
statutory hourly rate based on Consumer Price Index).5 Plaintiff, however, requests a
further upward adjustment of the hourly rate to 0, arguing that such a rate is warranted
because of the intricacies of immigration law and because 0 is less than the market
rate of 5 per hour for skilled immigration lawyers. (Pl. Mem. at 11-12.) Not
surprisingly, Defendants oppose any further enhancement of the hourly rate, arguing that
“[t]his case did not present any unique or complex immigration issue requiring special
expertise.” (Mem. in Opp’n at 22-23.)
Although counsel’s performance in this matter has been commendable, the Court
agrees with Defendants that no further upward adjustment is warranted. As the Court
noted in Aboushaban v. Mueller, 475 F. Supp. 2d 943, 950 (N.D. Cal. 2007):
Although plaintiff’s counsel possesses substantial experience in immigration
matters, and although such matters may indeed be complex, defendants are
correct that this matter did not demand specialized or distinctive knowledge
or skill. The underlying dispute was a relatively straight-forward mandamus
action requiring no discovery or evidentiary hearings. . . . And while the
defendants mounted a spirited defense, plaintiff’s filings were relatively
concise and did not involve unusually difficult questions of law. The [CPI]
adjusted statutory rate . . . provides adequate compensation.
(internal citation omitted). The Court agrees with Aboushaban’s reasoning and declines
to further upwardly adjust the hourly rate.
Accordingly, the Court concludes that Plaintiff is entitled to recover attorney’s fees
in the amount of ,613.70 (27.3 hours at 9 per hour). Plaintiff also is entitled to
recover costs in the amount of 3.50 (for the filing fee and photocopies), to which
Defendants have not objected. All told, therefore, Plaintiff shall be awarded ,977.20 in
attorney’s fees and costs.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiff’s Application for Attorney’s Fees Pursuant to the Equal Access
to Justice Act (Doc. No. 45) is GRANTED IN PART and DENIED IN PART, and
Plaintiff is entitled to judgment in the amount of ,977.20 in attorney’s fees and costs.
Dated: April 8, 2008 s/Richard H. Kyle
United States District Judge


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