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Kats v. Frazier: US District Court : IMMIGRATION | FEES - Citizenship and Immigration Services argues people wanting 120-day limit met are hasty; Equal Access fees awarded

Boris Kats, et al.,
Civ. No. 07-479 (RHK/AJB)
Denise Frazier, et al.,
Marc Prokosch, Karam & Associates, Bloomington, Minnesota, for Plaintiffs.
D. Gerald Wilhelm, Assistant United States Attorney, Minneapolis, Minnesota, for
This matter is before the Court on Plaintiff Boris Katss Motion for Attorneys
Fees and Costs Pursuant to the Equal Access to Justice Act (Doc. No. 25) (the Fee
Application). For the reasons set forth below, the Court will grant the Fee Application
in part and deny it in part.
Kats is a citizen of the former Soviet Union who filed an application for
naturalization (the Application) on March 21, 2006. On July 24, 2006, pursuant to 8
C.F.R. 335.2, the Bureau of Citizenship and Immigration Services (CIS) interviewed
Kats concerning his Application, at which time he passed the required English-languageproficiency
evaluation and a test concerning his knowledge and understanding of United
States government and history. 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 Katss name check had not been completed by January 2007, he (along with
three others in the same situation) commenced the instant action, seeking an Order
compelling CIS to complete his name check and adjudicate the Application. Defendants
moved to dismiss; on November 29, 2007, Magistrate Judge Boylan recommended that
Defendants Motion be denied and that the matter be remanded to CIS with instructions to
adjudicate the Application within 180 days. No objections to that recommendation were
filed, and the Court adopted it on December 26, 2007. On remand, CIS granted the
Application, and Kats was naturalized on April 16, 2008.
Kats now seeks an award of attorneys fees and costs pursuant to the Equal Access
to Justice Act, 28 U.S.C. 2412 (the EAJA).
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). Defendants argue that an award of fees and costs should not be
made here because (1) Kats is not a prevailing party, (2) their position was
substantially justified, and (3) the Fee Application is premature. (Mem. in Oppn at 6-
11.) The Court rejects these arguments.
Prevailing party. Defendants argue that Kats is not a prevailing party because he
merely achieved remand to CIS with instructions to adjudicate the Application within 180
days. According to Defendants, Katss naturalization application was still pending after
the remand, in exactly the position it was before and, hence, Kats did not prevail.
(Mem. in Oppn at 9-10.) The Court recently rejected a similar argument in Aarda v.
United States Citizenship & Immigration Services, Civ. No. 06-1561, 2008 WL 974916,
at *4-5 (D. Minn. Apr. 8, 2008) (Kyle, J.). As the Court noted in Aarda, by remanding
this matter to CIS with instructions to adjudicate the Application within a specified period
of time, the legal relationship between Kats and Defendants was altered. Id. at *4.
Indeed, as Defendants own brief indicates, many aliens like Kats have been required to
wait for several years before their naturalization applications were finally adjudicated by
CIS. There is no reason to suspect anything less would have happened here absent Court
intervention. Simply put, the Court sped up the process by remanding the Application to
CIS with a deadline for its adjudication. Kats, therefore, achieved real relief in this case
and is a prevailing party. Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).
Substantial justification. Defendants argue that their position was substantially
justified because the delay in adjudicating Katss Application was reasonable. In
support, they note that Kats filed this action only 69 days after the expiration of the 120-
day period prescribed in 8 U.S.C. 1447(b) for adjudicating naturalization applications.
(See Def. Mem. at 7.) In other words, Defendants argue that Katss rapid commencement
of this lawsuit retroactively rendered their inaction substantially justified and that Kats
should be penalized (by denying him fees) simply because he chose to act quickly to
vindicate his statutory rights. The Court finds no support for that argument in the EAJA
or in the case law, and the Court does not believe that Defendants should be rewarded
simply because Kats opted to litigate more quickly than other aliens in the same
predicament as him. Moreover, accepting Defendants argument would mean that an
aliens naturalization application would have to linger without adjudication for many
months, if not years, before fees could be awarded. Such a result would be inconsistent
with 8 U.S.C. 1447(b), which mandates the completion of background checks within
120 days of an aliens interview.
Defendants also argue that an award of fees here will encourage more frequent use
of mandamus actions like case sub judice. Defendants may well be correct, but the Court
perceives no reason why that result should not be encouraged. The law is clear:
Defendants must complete the requisite background checks within 120 days of the
applicants interview. If Defendants choose to flout this statutory mandate, they run the
risk of a lawsuit like this one and the potential for an award of fees under the EAJA that
comes with it.
Timeliness. Finally, Defendants argue that Katss Fee Application is premature
because there has been no final judgment entered in this action. Assuming arguendo that
Defendants are correct, an award of fees under the EAJA may still be properly made. See
Aarda, 2008 WL 974916, at *2-3. For the reasons stated in Aarda, which the Court will
not repeat here, Defendants argument fails.
Defendants raise no other arguments why Kats should not be awarded fees and
costs under the EAJA, and the Court concludes that such an award is warranted. All that
remains, therefore, is to determine the appropriate amount of such an award. Defendants
have not objected to the hourly rate Katss counsel seeks, the number of hours counsel
expended, or the costs incurred in connection with Katss case. While the Court believes
that the hours expended and the costs incurred were reasonable and should be fully
compensated, it believes that a reduction in the hourly rate sought by Katss counsel
(5) is appropriate.
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). As the Court noted in Aarda, when adjusted upward for
1 Katss counsel expended 20.4 hours on this case when it involved four Plaintiffs;
accordingly, counsel has requested reimbursement for only one-quarter of those 20.4 hours, i.e.,
5.1 hours. Counsel also expended an additional 8.2 hours solely in connection with Katss case.
The amount of the fee award, therefore, is calculated as 13.3 hours (5.1 + 8.2) x 9 per hour =
2 These costs are set forth on page 12 of Plaintiffs Memorandum and in paragraphs 8-10
of the Declaration of Marc Prokosch.
inflation using the Consumer Price Index, the statutory hourly rate of 5 becomes 9
per hour. See 2008 WL 974916, at *7. And, like in Aarda, the Court believes that such
an enhancement is appropriate here to reflect cost-of-living increases.
Kats, however, requests an upward adjustment to 5 per hour, arguing that such
a rate is warranted because of the intricacies of immigration law and because 5 is less
than the rate awarded in similar cases. (See Pl. Mem. at 9-11.) For the reasons set forth
in Aarda, the Court rejects that request. See 2008 WL 974916, at *8. Accordingly, the
Court will award fees at an hourly rate of 9.
As a result of the foregoing, the Court concludes that Kats is entitled to recover
attorneys fees in the amount of ,247.70.1 Plaintiff also is entitled to recover costs in
the amount of 0.10.2 In total, therefore, Plaintiff shall be awarded ,527.80 in
attorneys fees and costs.
Finally, the Court notes that judgment has not been entered on Katss claims,
which are now moot. Accordingly, the Court will direct the entry of judgment dismissing
those claims.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiff Boris Katss Motion for Attorneys Fees and Costs Pursuant to
the Equal Access to Justice Act (Doc. No. 25) is GRANTED IN PART and DENIED IN
PART, and Plaintiff is entitled to judgment in the amount of ,527.80 in attorneys fees
and costs. It is furthered ORDERED that the remaining claims in the Complaint (Doc.
Dated: May 30, 2008 s/Richard H. Kyle
United States District Judge


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