Davila-Bardales v. INS, 47 F.3d 1156, 1st Cir. (1995)
Davila-Bardales v. INS, 47 F.3d 1156, 1st Cir. (1995)
Davila-Bardales v. INS, 47 F.3d 1156, 1st Cir. (1995)
3d 1156
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be
cited only in related cases.
In re Ricardo DAVILA-BARDALES.
Ricardo DAVILA-BARDALES, Movant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
No. 93-2124
Ricardo Davila-Bardales seeks attorneys' fees under the Equal Access to Justice
Act (EAJA), 28 U.S.C. Sec. 2412 (1988). He bases his motion on appellate
proceedings in which he successfully persuaded this court to vacate an order of
deportation and remand for further consideration. See Davila-Bardales v. INS,
27 F.3d 1 (1st Cir. 1994). Because we find that the government's position in this
court was substantially justified, we deny the motion.
II
7
The EAJA permits a prevailing party to recover reasonable counsel fees and
The EAJA permits a prevailing party to recover reasonable counsel fees and
expenses incurred in civil litigation with the government, but only if the
government has taken a position that is not "substantially justified" and no
special circumstance renders a fee award unjust. See De Allende v. Baker, 891
F.2d 7, 8 (1st Cir. 1989); Sierra Club v. Secretary of the Army, 820 F.2d 513,
516-17 (1st Cir. 1987).
The threshold requirement for access to EAJA benefits is that a party prevail in
his litigation with the federal sovereign. It is unclear whether petitioner satisfies
this benchmark: it is problematic whether one is a "prevailing party" within the
meaning of the EAJA merely because he secures a remand for further agency
action. Several cases have held or implied that prevailing party status is only
conferred upon a party who wins at least part of the ultimate relief sought. See,
e.g., Hanrahan v. Hampton, 446 U.S. 754, 758-59 (1980) (rejecting prevailing
party status under 42 U.S.C. Sec. 1988 for one who merely obtains vacation of
a directed verdict on appeal); Escobar Ruiz v. INS, 787 F.2d 1294, 1297 (9th
Cir. 1986), aff'd, 838 F.2d 1020, 1029 (9th Cir. 1988) (en banc); see also Texas
State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989).
Here, petitioner has not yet obtained any ultimate relief as the issue of his
deportability remains unsettled.
We are hesitant to decide the matter on this basis, however, as the status of
these cases has been drawn into some question by the Court's recent opinion in
Shalala v. Schaefer, 113 S. Ct. 2625, 2631-32 (1993), which held that
procurement of a "sentence four" remand in the context of social security
litigation qualifies the putative benefit-recipient as a prevailing party. And,
moreover, the record reveals an independent basis on which the motion can be
decided. Because we find the government's position in the present case was
substantially justified, see infra, we skirt the challenging legal question of
whether petitioner can at this stage be considered a prevailing party.
10
11
III
12
Applying the standard we have described, we find that the government has met
its burden of showing that its position was substantially justified. The law
concerning the status of a minor's admissions during interrogation at the border
was tenebrous before our decision in the instant case, and remains somewhat
murky. There was no precedent in this court regarding admissions of
deportability by minors, and the only BIA discussions of the issue were in
unpublished opinions, which have no precedential value. This lack of clarity in
the law strongly suggests substantial justification for the government's position.
See De Allende, 891 F.2d at 12-13; Mattson v. Bowen, 824 F.2d 655, 657 (8th
Cir. 1987); Martinez v. Secretary of HHS, 815 F.2d 1381, 1383 (10th Cir.
1987). Put another way, since the petitioner's statements seemingly fell outside
the reach of the only applicable regulation, there was a significant lack of
guidance in the law, and the government was substantially justified in adhering
to its position that the IJ and the BIA properly relied upon the disputed
statements.
13
This was especially true in the situation at hand. After all, the INS had good
reason to believe that the circumstances surrounding the petitioner's statements
supported the veracity and reliablility of the admissions; the transcript of the
hearings reveals that petitioner was able to understand and articulate answers to
the relatively simple factual questions he was asked. Although the BIA
displayed regrettable inconsistency in its decisions, the INS could realistically
hope that petitioner's statements would prove admissible in the end, even if the
statements became subject to a consistent rule governing unaccompanied
admissions made during custodial interrogation.
14
We think, too, that the posture of the case argues cogently in favor of a finding
of substantial justification. The INS prevailed initially, both before the IJ and
before the BIA. It did not seek judicial review, but came to this court as a
respondent. While we are not prepared to say that the government, qua
respondent, may never be held responsible for fees under the EAJA if the
petitioner prevails, cf. Sierra Club, 820 F.2d at 519-20 (affirming EAJA award
of reasonable attorneys' fees in non-administrative adjudication, despite
"evanescent" government victory in the district court, because the government's
legal position was so obviously contrary to existing law), we are very reluctant
to criticize the INS for opposing the petition for review in this court, given that
the BIA already had decided the case in its favor. Thus, we conclude that the
INS's position, though ultimately unsuccessful, was reasonable under the
circumstances.
IV
15
16
Denied.