United States v. Remileh

6 OCAHO 864 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER May 21, 1996 v. UNITED STATES OF AMERICA, Complainant, 8 U.S.C. §1324c Proceeding ) OCAHO Case No. 96E00015 MOURAD ABU REMILEH, Respondent. SECOND ORDER DENYING RESPONDENT’S APPLICATION FOR ATTORNEY’S FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT Procedural History On July 27, 1994, complainant filed a two (2)-count Complaint previously at issue in OCAHO Case No. 94C00139. In Count I, com- plainant had averred that after November 29, 1990, respondent had knowingly and falsely made an Employment Eligibility Verification Form (Form I–9) for the purpose of satisfying a requirement of the Immigration and Nationality Act (INA), in violation of the provisions of 8 U.S.C. §1324c(a)(1). Complainant had assessed a civil money penalty of $500 for that alleged violation.

In Count II, complainant had alleged that after November 29, 1990, respondent had knowingly used, attempted to use, and possessed the forged, counterfeited, altered and falsely made document described therein, namely, a Minnesota Department of Health, Section of Vital Statistics, Certificate of Live Birth in the name of Zachary Mohamed Armeli, for the purpose of satisfying a requirement of the INA, in vio- lation of 8 U.S.C. §1324c(a)(2). Complainant had sought a civil money penalty of $500 for that alleged infraction, also. 452 On January 9, 1995, the undersigned granted complainant’s December 6, 1994 Motion for Summary Decision, having determined that there were no genuine issues of material fact with regard to the violations alleged in Counts I and II. That Order further directed the parties to submit concurrent briefs addressing the sole remaining issue of the appropriate civil money penalties to be assessed for those two (2) counts.

On February 7, 1995, the Chief Administrative Hearing Officer (CAHO) issued a Modification of the undersigned’s January 9, 1995 Order Granting Complainant’s Motion for Summary Decision. That Modification dismissed Count I of the Complaint due to the CAHO’s conclusion that “[i]t is the underlying fraudulent document, submit- ted to an employer [by an employee] to establish identity and/or work authorization, which is the proper basis of a section 1324c vio- lation[,]” and that “the attestation of an employee to false informa- tion on a Form I–9 does not constitute . . . [a] violation of 8 U.S.C. §1324c.” United States v. Remileh, 5 OCAHO 724, at 9 (1995) (as modified). As to Count II, the CAHO affirmed the granting of sum- mary decision. On March 9, 1995, respondent’s counsel, Mr. Richard Breitman filed Respondent’s Application for Attorney’s Fees and Costs Under the Equal Access to Justice Act (EAJA).

On April 13, 1995, the undersigned issued an Order Denying Respondent’s Application for Attorney Fees Under the Equal Access to Justice Act. EAJA requires that “[a] party seeking an award of fees and other expenses shall, within thirty days of a final disposi- tion in the adversary adjudication, submit to the agency an applica- tion which shows that the party is a prevailing party and is eligible to receive an award under this section.” 5 U.S.C. §504(a)(2) (empha- sis added). That April 13, 1995 decision was based upon a determi- nation that, because a penalty regarding Count II had not been as- sessed, and because a final decision and order of the Attorney General may be appealed within 45 days to the Court of Appeals for the appropriate circuit, no final decision had been issued. Thus, re- spondent’s application was denied without prejudice on the basis that no final disposition of the case had occurred, and respondent was advised that he could refile once a final disposition had been rendered.

453 On December 5, 1995, a Final Decision and Order was issued, in which respondent was assessed a civil money penalty of $500 for Count II. On January 16, 1996, respondent’s counsel filed with the United States Court of Appeals for the Eighth Circuit a Petition for Review of both the CAHO’s Modification of the January 9, 1995 Order Granting Complainant’s Motion for Summary Decision and the December 5, 1995 Final Decision and Order. That appeal is currently pending. On February 6, 1996, Mr. Breitman resubmitted Respondent’s Application for Attorney’s Fees and Costs Under the Equal Access to Justice Act.

On February 28, 1996, complainant filed a Memorandum in Opposition to Respondent’s Application for Attorney’s Fees and Costs Under the Equal Access to Justice Act, and on March 29, 1996, filed a Supple mental INS Memorandum in Opposition Respondent’s Application for Attorney’s Fees and Costs Under the Equal Access to Justice Act. In the latter memorandum, in addition to making sub- stantive arguments regarding the efficacy of respondent’s request for EAJA fees, complainant argues that respondent’s application is once again prematurely filed in light of his appeal to the Eighth Circuit. Respondent’s Application for EAJA Fees The United States Code provides for the costs and fees of a pre- vailing party, other than the United States, within administrative proceedings: §504. Costs and fees of parties (a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. . . .

(a)(2) A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section. . . . When the United States appeals the underlying merits of an adversary adjudication, no de- 454 cision on an application for fees and other expenses in connection with that adversary adjudication shall be made under this section until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal. . . . . (c)(1). . . . If a court reviews the underlying decision of the adversary adjudica- tion, an award for fees and other expenses may be made only pursuant to section 2412(d)(3) of title 28, United States Code.

5 U.S.C. §504 (emphasis added). The Rules of Practice and Procedure for this Office provide that attorney’s fees may be awarded, pursuant to 5 U.S.C. §504, provided that an application accompanied by an itemized statement of ex- penses and other fees is filed, and provided that the administrative law judge does not determine that “the complainant’s position was substantially justified or [that] special circumstances make the award unjust.” 28 C.F.R. §68.52(c)(3)(iii) (1995). The key issue presented by respondent’s application for EAJA fees and complainant’s opposition to that request is whether or not a final decision and order of this Office in a §1324c proceeding, which has been timely appealed to the appropriate circuit court, consti- tutes a “final disposition” for purposes of a request for EAJA fees. As noted in the undersigned’s April 13, 1995 Order Denying Respondent’s Application for Attorney Fees Under the Equal Access to Justice Act, neither the statute nor the legislative history defines the term “final disposition.” Apr.

13, 1995 Order at 3. However, it is instructive to examine the case law construing the term “final dispo- sition” under EAJA. The Supreme Court, while analyzing the nearly identical EAJA provision applicable to courts of law, 28 U.S.C. §2412, has observed that “[t]raditionally, a ‘final judgment’ is one that is final and ap- pealable. . . . Under §2412 as amended, however, a ‘final judgment’ is one that is ‘final and not appealable.’ ” Melkonyan v. Sullivan, 501 U.S. 89, 95 (1991) (indicating that Congress added the definition of “final judgment” in 1985 in response to a split in the federal courts as to when the EAJA 30-day time period began to run).

In trying to determine the timeliness of petitioner’s EAJA application, the Court contrasts the EAJA provisions applicable to administrative proceed- ings, 5 U.S.C. §504, with those applicable to proceedings in courts of 455 law, 28 U.S.C. §2412, noting that a “final disposition in [an] adver- sary adjudication” under §504 “includes adjudication by an adminis- trative agency,” but that a “final judgment in [an] action” under §2412 “is rendered by a court,” and not by an administrative agency. Melkonyan, 501 U.S. at 94–95. Factually, petitioner’s case in Melkonyan had been remanded for fur- ther administrative proceedings, but no final decision had been entered by the district court. Id. at 97.

Further, it was unclear whether either party was entitled to return to district court for a final judgment. Id. at 97, 102–103. While the Court remanded the case without deciding on the timeliness of petitioner’s application, it did “hold that a ‘final judg- ment’ for purposes of 28 U.S.C. §2412(d)(1)(B) means a judgment ren- dered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins to run after the time to appeal that ‘final judgment’ has expired.” Id. at 96; see also Sheely v. Wisconsin Dep’t of Health & Social Servs., 442 N.W.2d 1, 6 (1989) (stat- ing that “[t]he majority of federal courts . . . hold a party is eligible to receive fees and costs pursuant to EAJA only after the matter is dis- posed of in favor of them on remand.”) By the same token, a “final dis- position” for purposes of 5 U.S.C. §504(a)(2) should mean a judgment rendered by an administrative agency that terminates the proceeding for which EAJA fees may be received.

Thus, the 30-day EAJA clock for adversary adjudications, like that for civil actions, begins to run after the time to appeal that “final disposition” has expired. Further support for that definition of “final disposition” occurs in Dole v. Phoenix Roofing, Inc.. 922 F.2d 1202 (5th Cir. 1991).

In Phoenix Roofing, the Fifth Circuit expressly addressed what consti- tutes a “final disposition” under §504 when Phoenix appealed only one (1) part of a two (2)-part citation. Id. at 1206. Because Phoenix did not appeal the first citation, Dole, the Secretary of Labor, had ar- gued that “final disposition” of that citation occurred 30 days after it was docketed. Id. Thus, if Dole’s reasoning were adopted, Phoenix’s EAJA application, which was filed over a year later, would have been untimely.

Id. The Fifth Circuit, however, rejected that reasoning: For the reasons we outline below, we hold that when a party appeals only part of an ALJ’s decision, the entire decision is on review; the failure to appeal the decision on a particular citation item does not make the ALJ’s disposition of that item a “final disposition” of that item for EAJA purposes. . . . . . . . . . . . Congress prohibits an agency from making an award of fees and expenses “in connection with” an adversary adjudication when an appeal is pending. 456 Id. In support of its reasoning, the court notes: Our view that there is no “final disposition” until the entire decision is final and unappealable preserves the policy of avoiding piecemeal adjudication. . . . . . . . . Holding that there is no “final disposition” until the entire decision is final and unappealable avoids both the unnecessary fragmentation of the fee peti- tions and the waste of judicial resources that would result from filing multiple petitions in different courts for fees incurred in one case.

Id. at 1207. Although Phoenix Roofing is not controlling authority, its analysis of the term “final disposition” is persuasive. Finally, §504 itself dictates that “[i]f a court reviews the underlying decision of the adversary adjudication, an award for fees and other expenses may be made only pursuant to section 2412(d)(3) of title 28, United States Code.” 5 U.S.C. §504(c)(1). While it appears that that phrase contradicts earlier language in the statute stating that “no de- cision on an application for fees . . . shall be made under this section until a final and unreviewable decision is rendered . . . on the appeal,” 5 U.S.C. §504(a)(2), it is not necessary to dovetail those two (2) seem- ingly contradictory statements at this time.

Rather it is sufficient that the undersigned adopt the Fifth Circuit’s persuasive analysis of the term “final disposition” for purposes of an EAJA fee application. Because respondent has filed with the United States Court of Appeals for the Eighth Circuit a Petition for Review of both the CAHO’s Modification of the January 9, 1995 Order Granting Complainant’s Motion for Summary Decision and the December 5, 1995 Final Decision and Order, no “final disposition” of this case has occurred. Thus, Respondent’s Application for Attorney’s Fees and Costs Under the Equal Access to Justice Act is not timely. Accordingly, respondent’s application for fees and costs is hereby denied, without prejudice.

Once a final disposition of this case oc- curs, and if respondent emerges as the prevailing party, his applica- tion for EAJA fees may be refiled. SO ORDERED: JOSEPH E. MCGUIRE Administrative Law Judge 457