Dvorkin v. Gonzales , 173 F. App'x 420 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0192n.06
Filed: March 23, 2006
Nos. 03-3245, 02-3851
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL DVORKIN, )
)
Petitioner-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
ALBERTO GONZALES, Attorney General, ) OHIO
)
Respondent-Appellant. )
)
______________________________________
BEFORE: SILER and GRIFFIN, Circuit Judges; and TARNOW, District Judge.*
PER CURIAM.
Two consolidated cases are before the Court. In case 02-3851, the Attorney General appeals
the district court’s grant of Michael Dvorkin’s petition for habeas corpus, holding that the mandatory
detention of Dvorkin during the pendency of his removal proceedings pursuant to section 236(c) of
the Immigration and Nationality Act was unconstitutional. In case 03-3245, the Attorney General
appeals the award of attorney fees against the government pursuant to the Equal Access to Justice
Act (“EAJA”), arguing the district court lacked jurisdiction, the award was premature, and the
government’s actions were substantially justified.
*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales
Recent developments in case 02-3851 render it moot.1 Accordingly, in an order
contemporaneous with this opinion, we sever the two cases and vacate the district court’s judgment
in case 02-3851. With respect to case 03-3245, we conclude that the government was substantially
justified in its actions and, therefore, reverse the award of attorney fees.
I.
Petitioner Michael Dvorkin, a native of the former U.S.S.R., has been a lawful permanent
resident of the United States since March 24, 1991. In September 1998, an Ohio jury found Dvorkin
guilty of five felony counts; he was subsequently sentenced concurrently to serve ten months
incarceration for the charges of receiving stolen property, forgery, and obstruction of justice, and
a separate one-year term of imprisonment for tampering with evidence. On December 26, 2000,
while Dvorkin was in the penal custody of Ohio, the Immigration and Naturalization Service (“INS”
or “DHS”)2 issued a Notice to Appear, charging that Dvorkin was subject to removal from the
United States pursuant to § 237(a)(2)(A)(ii) of the Immigration and Nationality Act (“INA”). Upon
1
On July 22, 2005, Dvorkin’s application for adjustment of status pursuant to INA § 245,
codified at 8 U.S.C. §§ 1255, 1182(h), was granted, and Dvorkin’s status was adjusted to that of a
legal permanent resident. The Department of Homeland Security (“DHS”) waived its right to appeal
the Court’s decision. As a result, Dvorkin is no longer in removal proceedings nor subject to
detention pursuant to INA § 236, 8 U.S.C. § 1226.
Pursuant to these events, Dvorkin submitted a notice of final decision and suggested that the
issue contained in case 02-3851–whether pre-hearing detention violates Dvorkin’s due process
rights–is moot. The DHS has moved to sever the two cases and remand case 02-3851 to the district
court with instructions to vacate its previous decision. As discussed below, we agree that the issue
is moot and grant the DHS’s motion in a separate order.
2
The Homeland Security Act of 2002 abolished the INS and all responsibility was transferred
to the newly established Department of Homeland Security (“DHS”). Because Dvorkin’s case spans
the period of change, both titles are utilized interchangeably in this opinion.
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his release from state custody on April 3, 2002, Dvorkin was transferred into custody by the INS
pursuant to § 236(c) of the INA. The government refused to hold a bond hearing for Dvorkin, citing
its authority under INA § 236(c)(1)(b).3 In response, Dvorkin filed a petition for writ of habeas
corpus in the district court, challenging the constitutionality of INA § 236(c) as applied and seeking
to enjoin his detention without the opportunity to apply for bond. The district court granted the
petition and held that INA § 236(c) was unconstitutional as applied to Dvorkin and ordered the
government to afford Dvorkin a bond hearing before an immigration judge. After the immigration
court conducted a hearing in accordance with the district court’s order, Dvorkin was released on
bond. The government timely appealed.
Dvorkin also filed a Fee Application under the EAJA in district court, contending that the
government’s action in detaining him without an opportunity to apply for bail was not substantially
justified, and no special circumstances existed to render an award of fees and costs unjust. The
3
The applicable statute governing the custody and detention of criminal aliens provides, in
pertinent part, as follows:
The Attorney General shall take into custody any alien who . . .
***
(B) is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title . . .
***
when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
8 U.S.C. § 1226.
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government sought a stay of the motion for fees, which the district court denied on September 13,
2002. The district court thereafter granted Dvorkin’s EAJA motion, holding that the government
was not substantially justified and did not have a constitutional duty to defend the statute. The
government filed a notice of appeal of the district court’s award of attorney fees and subsequently
filed an unopposed motion to consolidate the merits and the EAJA appeal. We granted the motion
and held the consolidated cases in abeyance pending the resolution of Ly v. Hansen, 351 F.3d 263
(6th Cir. 2003).
Meanwhile, during the course of this appeal, Dvorkin’s application for adjustment of status
pursuant to INA § 245, codified at 8 U.S.C. §§ 1255, 1182(h), was granted, and Dvorkin became
a legal permanent resident. On October 7, 2005, the government moved to sever the two cases and
remand case number 02-3851–the merits of the appeal–back to the district court with instructions
to vacate its previous decision, as the case and controversy was moot. Further, the government also
requested that we retain jurisdiction over the EAJA issue in case number 03-3245.
Now, both cases are ripe for resolution.
II.
First, we will address the joint contention of the parties that case number 02-3851 is moot.
“Article III denies federal courts the power to decide questions that cannot affect the rights of
litigants in the case before them.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (internal
quotation marks and citations omitted). This requirement exists “through all stages of federal
judicial proceedings, trial and appellate.” Id. A case is moot when the issue presented is no longer
“live” or the “parties lack a legally cognizable interest in the outcome.” L.A. County v. Davis, 440
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U.S. 625, 631 (1979) (citation omitted). Where interim relief or events have completely eradicated
the effects of an alleged violation of law and there is no reasonable expectation that the violation
will recur, a case is moot. Id. Although the removal of an alien does not moot a pending appeal,
Santana-Albarran v. Ashcroft, 393 F.3d 699, 701 n.1 (6th Cir. 2005) (citation omitted), the grant of
an alien’s petition while the petition is in the judicial process may conclusively moot the case and
controversy, Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (holding action was moot after
INS granted petitions of named spouses).
If a case becomes moot pending appeal, the appellate court lacks the power to address the
merits of the case, but may still enter judgment on matters ancillary thereto and award costs, vacate
the judgment on appeal, and dismiss the appeal. See U.S. Bancorp Mortgage Co. v. Bonner Mill
P’ship, 513 U.S. 18, 21-22 (1994). Accordingly, although the merits of the government’s appeal
have been mooted by Dvorkin’s status change, we will address the district court’s award of EAJA
attorney fees in case 02-3851.
III.
This court reviews a district court’s decision to award or deny attorney fees pursuant to the
EAJA for abuse of discretion. Townsend v. Comm’r of Soc. Sec., 415 F.3d 578, 581 (6th Cir. 2005).
“A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when
it improperly applies the law or uses an erroneous legal standard.” Deja Vu of Nashville, Inc. v.
Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir. 2001) (quotation marks
and citation omitted).
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In case 02-3851, the government argues that this Court should reverse the attorney fees
award pursuant to the EAJA because (1) the decision on the merits of Dvorkin’s petition was not
final, rendering the district court without jurisdiction; (2) other binding cases addressing the merits
of the case were pending before this Court and the Supreme Court, and the district court award was
therefore premature; and (3) the position of the government was substantially justified and special
circumstances made the award unjust. Dvorkin argues that the fee award pursuant to EAJA was not
premature or inconsistent with other cases and, regardless, was not an abuse of the district court’s
discretion. Contrary to Dvorkin’s contention, the position of the government was substantially
justified.4
4
Because we reverse the award of EAJA attorney fees on other grounds, we decline to
address the government’s contention that the award was premature. The EAJA provides that a
prevailing party in certain federal court proceedings may recover attorney fees and costs from the
government. 28 U.S.C. § 2412. “A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court” its application for reimbursement.
28 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 408 (2004) (“[Section]
2412(d)(1)(B) sets a deadline of 30 days after final judgment for the filing of a fee application.”).
“Final judgment” is defined by the EAJA as “a judgment that is final and not appealable.”
Townsend v. Comm’r of Soc. Sec., 415 F.3d 578, 581 (6th Cir. 2005) (quoting 28 U.S.C. §
2412(d)(2)(G)).
Because the thirty-day time period had not yet begun, the government contends that the
district court lacked jurisdiction to address Dvorkin’s EAJA motion. This is incorrect. This Court
recently overruled the “jurisdictional” aspect of final judgments in Townsend, stating:
[O]ur past precedent characterized the EAJA’s time limitation for fee applications
as jurisdictional . . . . This precedent, however is overruled by the Supreme Court’s
recent decision in Scarborough v. Principi, 541 U.S. 401 [ ] (2004), where the
Supreme Court held that the EAJA’s “30-day deadline for fee applications and its
application-content specifications are not properly typed ‘jurisdictional.’” Id. at
1865. Specifically, the Court concluded that 28 U.S.C. § 2412(d)(1)(B) does not
involve subject matter jurisdiction but instead addresses “a mode of relief (costs
including legal fees) ancillary to the judgment of a court that has plenary
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The EAJA provides in pertinent part that a court “shall award to a prevailing party other than
the United States fees and other expenses” in any civil 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). The government’s
position with regard to section 2412(d)(1)(A) is “substantially justified” if it is “‘justified in
substance or in the main’–that is, justified to a degree that could satisfy a reasonable person.” Pierce
v. Underwood, 487 U.S. 552, 565 (1988); see United States v. One 1985 Chevrolet Corvette, 914
F.2d 804, 808 (6th Cir. 1990). The Pierce court further elaborated that “a position can be justified
even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified
if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.”
Pierce, 487 U.S. at 566 n.2. Objective indicia, including “the stage in which the proceedings were
resolved and the legal merits of the government’s position[,] may be relevant in assessing a district
court’s determination of reasonableness.” United States v. Real Property Located at 2323 Charms
Road, Milford Twp., Oakland County, Mich., 946 F.2d 437, 440 (6th Cir. 1991) (citing Pierce, 487
U.S. at 568-70).
The question therefore becomes whether the government was substantially justified in
defending Dvorkin’s detention pursuant to 8 U.S.C. § 1226. We conclude that it was. The Second
‘jurisdiction of [the civil] action’ in which the fee application is made.” (citations
omitted).
415 F.3d at 581-82; see Harmon v. United States ex rel. Farmers Home Admin., 101 F.3d 574, 587
(8th Cir. 1996) (noting that EAJA attorney fees award may have been premature, but declining to
make it a question of jurisdictional significance).
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Circuit recently dealt with this issue in Vacchio v. Ashcroft, 404 F.3d 663 (2d Cir. 2005). The
Vacchio court held that “there is no doubt that the Government is entitled–if not obligated–to put
forth a good faith effort to defend the constitutionality of federal laws, especially those that have
never been found unconstitutional.” 404 F.3d at 675-76. The court stated that, although “Vacchio
makes an arguable case [regarding alien deportability] . . . the issue is far from settled law, the
Government’s legal argument is far from unreasonable, and it thus cannot be said that the
Government’s position on the question is not substantially justified.” Id. We agree.
In this case, the district court’s grant of habeas corpus predated the Supreme Court decision
Demore v. Kim, 538 U.S. 510 (2003), which held that § 1226(c) was at least facially constitutional,
and the Sixth Circuit decision Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), which held that detention
pursuant to § 1226 must be reasonable. Although the merits of Dvorkin’s petition are not before us,
the subsequent case law clearly evidences that the constitutionality and application of the statute was
far from settled law. The government’s defense of the statute’s constitutionality had a reasonable
basis and, thus, was substantially justified.
Dvorkin also contends that the government’s specific actions, namely, utilizing an automatic
stay provision after the immigration judge set bond, necessitated additional legal fees that are
compensable by the EAJA motion. Although the government’s actions were undermined by its
subsequent failure to appeal the immigration judge’s decision and lack of articulable reasons that
Dvorkin constituted a flight risk, we cannot conclude that the government’s position was not
substantially justified. Cf. Vacchio, 404 F.3d at 677 (holding that “despite our doubts over the INS’s
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actions, we are not able to conclude that the Government’s position was not ‘substantially
justified.’”).
IV.
For these reasons, we reverse the district court’s award of attorney fees and hold that the
government was substantially justified in defending the constitutionality of 8 U.S.C. § 1226(c) in
case 03-3245.
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ARTHUR J. TARNOW, District Judge, concurring in part and dissenting in part. I
concur in the decision to reverse the district court’s award of attorney fees on the ground that the
government was substantially justified in defending the constitutionality of § 236(c). However, I
would remand the case to the district court for a determination of whether or not attorney fees are
appropriate under the EAJA. Remand is appropriate because the district court should determine
whether or not the government was substantially justified in defending § 236(c) as applied to
Dvorkin under the specific facts of the case.
At the time he was taken into custody, Dvorkin was a lawful permanent resident of the
United States facing the prospect of prolonged pre-hearing detention. The Supreme Court had not
yet issued its decision in Demore v. Kim, 538 U.S. 510 (2003), which held that § 236(c) was facially
constitutional. However, this Court had not yet issued its decision in Ly v. Hansen, (6th Cir. 2003),
which held that even if § 236(c) is constitutional, pre-hearing detention must be reasonable, and that
detainees are entitled to seek habeas relief when facing the prospect of prolonged or indefinite pre-
hearing detention.
The majority relies on these facts for the proposition that at the time the constitutionality of
Dvorkin’s detention was in question, the constitutionality of the statute was far from settled, and
therefore the government was substantially justified in defending the facial constitutionality of §
236(c). However, that conclusion does not accurately reflect the issue before the Court. The district
court’s decision in this case should be reversed specifically because it based its determination as to
EAJA fees only on the justification for the government’s defense of § 236(c) as a whole. Because
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it based its decision on the defensibility of the statute, the district court did not analyze the
government’s justification for its defense of Dvorkin’s detention without bond.
Dvorkin’s petition for writ of habeas corpus challenged the constitutionality of § 236(c) as
applied to his detention without the opportunity for bond. The petition did not pose a facial
challenge to the constitutionality of § 236(c). The district court held that § 236(c) was facially
unconstitutional, but never reached the specific question posed in this appeal, which is: assuming
§ 236(c) to be facially constitutional, was the government substantially justified in vigorously
defending the mandatory detention of Dvorkin for a prolonged and perhaps indefinite period under
the authority of the statute?
One of the government’s positions, that § 236(c) is constitutional, was ultimately proven to
be justified by the Supreme Court’s decision in Demore. However, the government’s second
position, that it could subject Dvorkin to the prospect of indefinite detention, was perhaps never
substantially justified, as this Court concluded in Ly. In other words, even if § 236(c) is generally
constitutional, the district court may still conclude that its application in this particular case was not
substantially justified, and that Dvorkin’s counsel is entitled to EAJA fees.
The remedy chosen by the majority, reversal without remand, produces an anomalous result.
Specifically, under the majority’s holding, by successfully challenging the terms of his detention
during the early stages of his detention, Dvorkin forfeited counsel’s ability to recover attorney fees
under the EAJA. On the other hand, a pre-hearing detainee who waits longer to challenge the terms
of their detention may be allowed to recover fees because it would be easier to show that the length
of the wrongful detention rendered it unreasonable under Ly. Attorneys for detainees such as
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Dvorkin would be confronted with the difficulty of choosing to wait longer to file a habeas petition
under Demore and Ly, so as to be assured a fee, at the expense of their client remaining in custody.
This problem is magnified by the fact that the average length of pre-hearing detention under
§ 236(c) is approximately 47 days. In Demore, the Supreme Court observed:
Under § 1226(c), not only does detention have a definite termination point, in the
majority of cases it lasts for less than the 90 days we considered presumptively valid
in Zadvydas. The Executive Office for Immigration Review has calculated that, in
85% of the cases in which aliens are detained pursuant to § 1226(c), removal
proceedings are completed in an average time of 47 days and a median of 30 days.
In the remaining 15% of cases, in which the alien appeals the decision of the
Immigration Judge to the Board of Immigration Appeals, appeal takes an average of
four months, with a median time that is slightly shorter.
Demore, 538 U.S. at 529 (internal citations omitted).
In this case, Dvorkin was taken into custody on April 3, 2002. Twenty-three days later, on
April 26, 2002, he filed his petition for habeas corpus. Fifty-nine days after he was taken into
custody, on May 31, 2002, the district court granted his petition. Approximately 62 days after his
detention began, on June 5, 2002, Dvorkin was released on bond. Therefore, the length of Dvorkin’s
detention appears to have fallen within the “average” range for pre-hearing detainment under §
236(c).
Under the majority’s holding, attorneys for detainees such as Dvorkin, who face potentially
wrongful indefinite detention, would never be entitled to EAJA fees. Unless the inquiry as to EAJA
fees asks whether or not the government was substantially justified in defending the application of
§ 236(c) under specific circumstances and as to specific detainees, counsel would never be able to
prove that the government was not substantially justified in defending its position. The government
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would only have to rest on its facial defense of the statute, rather than its application, in order to
avoid an EAJA fees award.
In Scarborough v. Principi, 541 U.S. 401, 406 (2004), the Supreme Court described the
purposes of the EAJA as follows:
Congress enacted the EAJA to eliminate the barriers that prohibit small businesses
and individuals from securing vindication of their rights in civil actions and
administrative proceedings brought by or against the Federal Government. [The
purpose of the Act is] to diminish the deterrent effect of seeking review of, or
defending against, governmental action.
Scarborough, 541 U.S. at 406 (internal quotation marks and citations omitted).
Under the majority’s holding, the impossibility of obtaining EAJA fees would deter attorneys
from taking cases on behalf of individuals whose rights were violated by the Federal Government.
This outcome is inconsistent with the purposes of the EAJA.
On remand, the district court should address the anomalous situation created by the timing
of the Demore and Ly decisions in relation to this case. Dvorkin, whose detention was lawful under
Demore, but potentially unreasonable under Ly, should have the opportunity to convince the district
court that he is entitled to EAJA fees.
I agree with the Court’s conclusion that the district court erred by holding that the
government’s defense of § 236(c) was not substantially justified. However, I would remand this
case to the district court to address the question of whether or not the government’s defense § 236(c)
as applied to Appellee was substantially justified.
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