Carbonell v. Ins , 429 F.3d 894 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABRAHAM MOVIDA CARBONELL; 
NENA CARBONELL; QUENIE
CARBONELL,
Plaintiffs-Appellants,
v.
IMMIGRATION AND NATURALIZATION
SERVICE; LORI SCIALABBA,
Chairman of the BIA in her No. 03-56809
official capacity; JANE ARELLANO,
Acting District Director of the Los  D.C. No.
CV-02-09862-RGK
Angeles Office of the INS in her
OPINION
official capacity; KEVIN R.
ROONEY, Director of the Executive
Office of Immigration Review in
his official capacity; MICHAEL
GARCIA, Commissioner of the INS;
ALBERTO R. GONZALES, Attorney
General, in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
June 7, 2005—Pasadena, California
Filed November 18, 2005
Before: Donald P. Lay,* Stephen Reinhardt, and
Sidney R. Thomas, Circuit Judges.
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
15427
15428 CARBONELL v. INS
Opinion by Judge Reinhardt
15430 CARBONELL v. INS
COUNSEL
Peter R. Afrasiabi, Esq., Turner Green Afrasiabi & Arledge,
Attorney for the appellants.
Frank Travieso, Assistant United States Attorney, Los Ange-
les, California, for the appellees.
CARBONELL v. INS 15431
OPINION
REINHARDT, Circuit Judge:
Abraham Carbonell appeals the district court’s denial of his
petition for attorney’s fees and costs under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A) (2005).
Carbonell contends that he qualifies as a “prevailing party”
under EAJA because he obtained a court order incorporating
a voluntary stipulation which awarded him a substantial por-
tion of the relief he sought. We conclude that the court order
materially altered the relationship between Carbonell and the
government and that this alteration was judicially sanctioned.
We therefore hold that Carbonell is a prevailing party and
remand the case to the district court for further proceedings.
I. Background
Carbonell, a native and citizen of the Philippines, entered
the United States in 1990 on a visitor’s visa. In 1994, after
being served with an Order to Show Cause and after several
continuances that allowed him time to find counsel, Carbonell
appeared in immigration court with an attorney, at which
point he conceded removability and applied for asylum. The
immigration judge (“IJ”) set a hearing date, which was subse-
quently rescheduled. According to Carbonell, his attorney was
notified of the change in date but never informed him. Neither
Carbonell nor his attorney attended the rescheduled hearing,
and the IJ consequently issued an in absentia order of depor-
tation, of which Carbonell was unaware. Soon thereafter, Car-
bonell applied for and secured an H1B visa. When the visa
expired in 1998, he attempted to renew it, under the mistaken
belief that he was still lawfully in the United States. It was
then that he was informed of the in absentia order of deporta-
tion.
In June 1998, Carbonell hired a new attorney and filed a
motion to reopen based on a claim of ineffective assistance of
15432 CARBONELL v. INS
counsel. Three months later, the motion to reopen was denied
and Carbonell appealed to the Board of Immigration Appeals
(“BIA”). While the appeal was pending, Carbonell applied for
adjustment of status as a derivative beneficiary of his wife and
daughter’s approved petition for residency. On June 24, 2002,
Carbonell attended the hearing regarding his adjustment of
status application, at which point the Immigration and Natu-
ralization Service (“INS”)1 arrested him and denied him
adjustment of status because of the in absentia deportation
order. He was detained in a federal facility, where he
remained for the next 10-and-a-half months. On June 28,
2002, after his appeal had been pending for over three years,
the BIA affirmed the IJ’s denial of Carbonell’s motion to
reopen. Carbonell then filed a motion to reconsider and a
request for a stay of deportation with the BIA. Without ruling
on the motion to reconsider, the BIA denied Carbonell’s
request for a stay in a cursory, boilerplate decision.
Held in detention and faced with an enforceable order of
deportation, Carbonell appealed to this court. Under 8 C.F.R.
§ 1003.4, had the INS deported Carbonell prior to deciding
the motion to reconsider, the BIA would have dismissed his
case and he would have had no further recourse. We granted
the INS’s motion to dismiss for lack of jurisdiction, on the
ground that the BIA’s denial of a request for stay of deporta-
tion was not a final, appealable order. However, we issued a
temporary stay of deportation to remain in effect until the
issuance of the mandate. While Carbonell’s petition was still
pending before this court, the INS informed him that “as soon
as the stay issued by the Ninth Circuit [was] dismissed, [he]
would be placed on the next available flight to the Philippines
regardless of the pending motion before the BIA.” The INS
secured a travel document from the Philippines Consulate
General for deportation, although the BIA had still not ruled
1
We refer to the agency as the INS because that was its name at the time
of the litigation.
CARBONELL v. INS 15433
on the motion to reconsider the denial of the motion to
reopen.
In December 2002, Carbonell filed a complaint and petition
for writ of habeas corpus in the district court. He sought to
compel the BIA to rule on his motion to reconsider, and to
stay deportation until it did so. Carbonell’s counsel attempted
to reach an agreement with the government, but it refused to
stipulate to a stay of deportation. Carbonell then requested a
temporary restraining order from the district court. In
response, the INS stated that it would not attempt to deport
Carbonell until the mandate in Carbonell’s initial appeal
issued from this court. The district court denied Carbonell’s
request for a temporary restraining order on that basis, reason-
ing that Carbonell could file for a temporary restraining order
once the mandate issued or seven days before the deportation,
whichever came first.
Carbonell then asked the INS to give him seven days notice
before the date on which the INS intended to deport him, so
that he could file for a temporary restraining order once this
court’s mandate had issued, but the INS refused to do so.
Consequently, Carbonell requested a temporary restraining
order for a second time. The INS explained in response that
it would take a minimum of thirty days from the date that the
mandate issued for the INS to deport Carbonell. The district
court denied Carbonell’s second request for a temporary
restraining order on that basis, but stated that Carbonell could
renew his request once the mandate issued.
The INS subsequently moved to dismiss Carbonell’s claims
before the district court. The district court denied the motion,
explaining that it had jurisdiction to hear Carbonell’s habeas
claim and that based on the alleged facts, Carbonell had stated
claims under the Administrative Procedure Act, the Manda-
mus Act, and Bivens. The court noted that it was “completely
disingenuous” for the INS to assert that Carbonell had no
15434 CARBONELL v. INS
habeas claim when it was holding him in custody while the
BIA failed to rule on his motion to reconsider.
Nearly a week after the district court denied the govern-
ment’s motion to dismiss, the mandate in Carbonell’s appeal
to this court issued. About one week later, Carbonell
requested a temporary restraining order for the third time.
Within two weeks, the INS and Carbonell stipulated to a stay
of deportation until the BIA ruled on his motion to reconsider,
and the court incorporated the stipulation into an order. Less
than a month afterwards, the BIA granted Carbonell’s motion
to reconsider and allowed him to reopen his case on the basis
of ineffective assistance of counsel in order to pursue adjust-
ment of status. He was then released from jail. Soon after-
wards, Carbonell gave notice to the district court of the BIA’s
ruling. He subsequently requested that the district court dis-
miss the action, and the court did so.
Carbonell then moved for attorney’s fees and costs under
the Equal Access to Justice Act (“EAJA”). The district court
denied the motion, on the ground that Carbonell was not a
“prevailing party” under EAJA. Carbonell appeals.
II. Standard of Review
We review a district court’s denial of attorney’s fees and
costs under EAJA for an abuse of discretion. Akopyan v.
Barnhart, 296 F.3d 852, 856 (9th Cir. 2002). A district court
abuses its discretion if its ruling on a fee motion is based on
an inaccurate view of the law or a clearly erroneous finding
of fact. Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128,
1133 (9th Cir. 2002). Any elements of legal analysis and stat-
utory interpretation underlying the district court’s attorney’s
fees decision are reviewed de novo. Id. Factual findings
underlying the district court’s decision are reviewed for clear
error. Id.CARBONELL v. INS 15435
III. Discussion
[1] Under the “American rule,” litigants ordinarily are
required to bear the expenses of their litigation unless a statute
or private agreement provides otherwise. Congress has autho-
rized fee recovery by prevailing parties in EAJA. Under
EAJA, a litigant is entitled to attorney’s fees and costs if: (1)
he is the prevailing party; (2) the government fails to show
that its position was substantially justified or that special cir-
cumstances make an award unjust; and (3) the requested fees
and costs are reasonable. Perez-Arellano v. Smith, 279 F.3d
791, 793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)
(2005)).
[2] The first question that must be resolved, therefore, is
whether Carbonell is a “prevailing party.” In Buckhannon Bd.
& Care Home, Inc. v. West Virginia Dep’t of Health &
Human Res., 532 U.S. 598 (2001), the Supreme Court clari-
fied who constitutes a prevailing party for the purpose of
awarding attorney’s fees. According to Buckhannon, a litigant
must meet two criteria to qualify as a prevailing party. First,
he must achieve a “material alteration of the legal relationship
of the parties.” Second, that alteration must be “judicially
sanctioned.” Id. at 604-05; Labotest, Inc. v. Bonta, 297 F.3d
892, 895 (9th Cir. 2002) (“[T]he Buckhannon Court
announced that recovery of attorney’s fees requires a ‘court-
ordered change in the legal relationship between’ the parties,
in which the legal change that the plaintiff claims to have
caused is ‘judicially sanctioned.’ ” (internal alterations omit-
ted)); see also Shapiro v. Paradise Valley Unified Sch. Dist.
No. 69, 374 F.3d 857, 865 (9th Cir. 2004) (“[E]ssentially, in
order to be considered a ‘prevailing party’ after Buckhannon,
a plaintiff must not only achieve some material alteration of
the legal relationship of the parties, but that change must also
be judicially sanctioned.” (internal quotations and citations
omitted)). On the basis of these criteria, the Court rejected the
“catalyst theory” for the recovery of attorney’s fees, holding
that relief achieved through voluntary change prompted by a
15436 CARBONELL v. INS
lawsuit “lacks the necessary judicial imprimatur” for a plain-
tiff to qualify as a prevailing party. Buckhannon, 532 U.S. at
605.2
[3] The district court held that Buckhannon imposes an
additional requirement on plaintiffs seeking attorney’s fees,
stating that in order to be considered a prevailing party, a liti-
gant must achieve an “enforceable judgment[ ] on the merits”
or a “court-ordered consent decree[ ].” Although the Supreme
Court did mention these two types of relief as illustrative of
the “material alteration of the legal relationship of the parties
necessary to permit an award of attorney’s fees,” Buckhan-
non, 532 U.S. at 604, it did so simply by way of offering “ex-
amples” of the forms of judicial action that could render a
litigant a prevailing party and, thereby, made it clear that liti-
gants could also qualify for prevailing party status if they
achieved other types of relief. Id. (“We think, however, the
‘catalyst theory’ falls on the other side of the line from these
examples [of judgments on the merits and consent decrees].”
(emphasis added)). Applying the standard articulated by the
Supreme Court, we have rejected overly narrow interpreta-
tions of Buckhannon and held on a number of occasions that
“[j]udgments and consent decrees are examples . . . but they
are not the only examples” of judicial action sufficient to con-
vey prevailing party status. Watson v. County of Riverside,
300 F.3d 1092, 1096 (9th Cir. 2002); see also Tipton-
Whittingham v. City of L.A., 316 F.3d 1058, 1062 (9th Cir.
2003) (characterizing the examples of judgments on the mer-
its and consent decrees as “illustrative, not exhaustive” of the
types of relief that give rise to prevailing party status). As a
result, we have recognized that litigants who achieve relief
other than a judgment on the merits or a consent decree are
prevailing parties. For instance, we have held that a litigant
“prevailed” and awarded him attorney’s fees when he won a
2
Although Buckhannon concerned different fee-shifting provisions from
those in this case, we applied its interpretation of the term “prevailing
party” to the EAJA in Perez-Arellano, 279 F.3d at 794-95.
CARBONELL v. INS 15437
preliminary injunction. See Watson, 300 F.3d at 1096. We
have also found that a litigant prevailed when he entered into
a legally enforceable settlement agreement. See Richard S. v.
Dep’t of Developmental Servs., 317 F.3d 1080, 1086 (9th Cir.
2003); see also Barrios, 277 F.3d at 1134.3
In recognizing that a litigant can “prevail” for the purposes
of awarding attorney’s fees as a result of judicial action other
than a judgment on the merits or a consent decree (provided
that such action has sufficient “judicial imprimatur”), this
court is in agreement with the vast majority of other circuits
that have considered this issue since Buckhannon. See, e.g.,
Pres. Coal. v. Fed. Transit Admin., 356 F.3d 444, 452 (2d Cir.
2004) (“Buckhannon does not limit fee awards to enforceable
judgments on the merits or to consent decrees.”); T.D. v.
LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir.
2003) (“Buckhannon held that to be a ‘prevailing party’ a liti-
gant must have obtained a judgment on the merits, a consent
decree, or some similar form of judicially sanctioned relief.”);
Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 165 (3d Cir.
2002) (“We do not agree with the District Court’s conclusion
that the parties’ settlement was an inappropriate basis for an
award of attorney’s fees.”); Am. Disability Ass’n, Inc. v.
Chmielarz, 289 F.3d 1315, 1319 (11th Cir. 2002) (“[T]he dis-
trict court interpreted Buckhannon to stand for the proposition
that a plaintiff could be a ‘prevailing party’ only if it achieved
one of those two results. That reading of Buckhannon, how-
ever, is overly narrow.”); Smyth v. Rivero, 282 F.3d 268, 281
(4th Cir. 2002) (“We doubt that the Supreme Court’s guid-
ance in Buckhannon was intended to be interpreted so restric-
3
In Perez-Arellano, the first case in this court to apply Buckhannon to
EAJA, there was no settlement agreement to be enforced. As a result, we
did not fully consider in that case the different types of relief in addition
to judgments on the merits and consent decrees that, if obtained, would
qualify a litigant as a prevailing party under the Buckhannon Court’s
criteria. Perez-Arellano, 279 F.3d at 795 n.5 (citing Barrios, 277 F.3d
1128).
15438 CARBONELL v. INS
tively as to require that the words ‘consent decree’ be used
explicitly.”).
[4] Therefore, although Carbonell obtained relief that was
not an enforceable judgment on the merits or a consent
decree, he nonetheless can qualify as a prevailing party —
and he does so under the two-part test set forth by the
Supreme Court in Buckhannon as elaborated on by this court
in subsequent cases.
[5] Carbonell satisfies the first prong of the prevailing party
test, which requires a material alteration in the legal relation-
ship between the parties, as a result of the parties’ stipulation
to a stay of departure. The case before the district court pri-
marily concerned whether Carbonell was entitled to a stay of
deportation until the BIA reconsidered the question whether
his due process rights had been violated, thus requiring that
his case be reopened. Before the district court issued its order
which incorporated the stay of deportation, the INS had the
authority to deport Carbonell immediately. Had the INS done
so prior to the BIA’s deciding his motion to reopen his case,
the BIA would have dismissed his case and Carbonell would
have had no further recourse.4 Under the stipulation, however,
the government was required to refrain from deporting Carbo-
nell for 45 days pending the BIA’s decision on his motion to
reopen. The stipulation for the stay of deportation thus “mate-
rially altered the legal relationship between the parties,
because the defendants were required to do something directly
benefitting the plaintiff[ ] that they otherwise would not have
had to do.” Richard S., 317 F.3d at 1087; see also Fischer v.
SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) (“[T]he
legal relationship is altered because the plaintiff can force the
4
Under 8 C.F.R. § 1003.4, when “a person who is the subject of depor-
tation proceedings” departs “subsequent to the taking of an appeal, but
prior to a decision thereon,” his departure “shall constitute a withdrawal
of the appeal, and the initial decision in the case shall be final to the same
extent as though no appeal had been taken.”
CARBONELL v. INS 15439
defendant to do something he otherwise would not have to
do.”).
[6] For the purposes of the material alteration inquiry, it is
of no significance that Carbonell was, as the district court
pointed out, “still under [a] final order of deportation.” We
have held that a litigant can be a prevailing party even if he
has not obtained affirmative relief in his underlying action. In
Rueda-Menicucci v. INS, for instance, we rejected the INS’s
argument that petitioners cannot be prevailing parties within
the meaning of EAJA until they obtain affirmative relief on
the merits of their underlying claims. 132 F.3d 493, 495 (9th
Cir. 1997) (holding that a petitioner who wins a remand can
prevail even if he does not ultimately succeed with his claim
before the agency). Similarly, in Williams v. Alioto, we held
that a plaintiff who obtains a preliminary injunction is a pre-
vailing party even if the underlying case becomes moot
because that development “does not affect the fact that for the
pertinent time period appellees obtained the desired relief.”
625 F.2d 845, 847-48 (9th Cir. 1980), cited with approval in
Richard S., 317 F.3d at 1089. Here, too, for the pertinent
period of time, the petitioner obtained the desired relief. In the
instant case, it is irrelevant that Carbonell’s underlying inef-
fective assistance claim was not resolved, and that he, there-
fore, remained under a final order of deportation. Under the
stipulation for a stay, Carbonell received much of the relief he
sought in the district court and thus met the first requirement
to be deemed a prevailing party.5
5
It is also irrelevant that Carbonell did not receive all the relief he
sought from the district court. A party need not succeed on every claim
in order to prevail. Rather, a plaintiff prevails if he “has succeeded on any
significant issue in litigation which achieved some of the benefit [he]
sought in bringing suit.” Tex. State Teachers Ass’n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 791-92 (1989) (internal quotations omitted); see also
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Hanrahan v. Hampton,
446 U.S. 754, 757-58 (1980); Me. Sch. Admin. Dist. No. 35 v. R., 321 F.3d
9, 15 (1st Cir. 2003) (citing Buckhannon, 532 U.S. at 603 (“[A] party may
be considered ‘prevailing’ even without obtaining a favorable final judg-
15440 CARBONELL v. INS
[7] Carbonell also satisfies the second prong of the test for
determining whether a litigant is a prevailing party, which
requires that the material alteration in the relationship
between the parties be stamped with some “judicial imprima-
tur.” Although the stay of deportation was obtained through
a voluntary stipulation between Carbonell and the govern-
ment, the district court subsequently incorporated the stipula-
tion into an order that it issued. As we held in Labotest, when
“the district court [has] placed its stamp of approval on the
relief obtained,” that relief has “the necessary judicial impri-
matur to qualify a plaintiff as a prevailing party.” 297 F.3d at
895. In Labotest, as here, the district court incorporated a vol-
untary stipulation agreed to by the parties into an order. We
held that “[t]he degree of judicial involvement . . . [was] suffi-
cient to satisfy the requisite quantum envisioned by Buckhan-
non.” Id. Rejecting the argument that Labotest was “a mere
catalyst,” we concluded that “a plaintiff who succeeds in
obtaining a court order incorporating an agreement that
includes relief the plaintiff sought in the lawsuit . . . is a pre-
vailing party for attorney’s fees purposes.” Id. at 893.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375(1994), cited with approval in Buckhannon, 532 U.S. at 604
n.7, is instructive on how a court order incorporating a volun-
tary stipulation differs from a purely private settlement for the
purposes of determining whether a litigant is a prevailing
party. In Kokkonen, the parties reached a settlement agree-
ment and then prepared a Stipulation and Order of Dismissal
with Prejudice, which the judge signed. The Stipulation and
Order did not refer to the settlement agreement at all. One of
the parties subsequently sought to have the district court
ment on all (or even the most crucial) of her claims.”)). Although the order
that Carbonell obtained did not address all of his claims (including his
demand that the agency expeditiously decide his motion or that the agency
reopen his case), achieving a stay of deportation was the primary purpose
of his petition before the district court. His success in achieving that objec-
tive was sufficient to confer prevailing party status on him.
CARBONELL v. INS 15441
enforce the agreement. The Supreme Court held that the dis-
trict court did not have the power to do so, but noted that the
situation would have been different had the agreement been
made part of the order dismissing the case. In that situation,
the Court stated, a breach of the agreement would have also
been a breach of the order, and the court could then have
properly exercised its power to enforce the order. Id. at 381.
[8] In considering whether a particular judicial action is
stamped with the necessary judicial imprimatur to convey pre-
vailing party status on its beneficiary, the Fourth Circuit,
reaching the same result we reached in Labotest, drew upon
the reasoning of Kokkonen. It borrowed Kokkonen’s rationale
in distinguishing between purely private settlements and vol-
untary settlements which are incorporated into court orders.
The Fourth Circuit noted that “[a] court’s responsibility to
ensure that its orders are fair and lawful stamps an agreement
that is made part of an order with judicial imprimatur.” Smyth,
282 F.3d at 282, cited with approval in Roberson v. Giuliani,
346 F.3d 75, 83 (2d Cir. 2003). Similarly, the Eleventh Cir-
cuit, also drawing on the lessons of Kokkonen, stated that
when a court incorporates the terms of a voluntary settlement
into an order, “it may thereafter enforce the terms of the par-
ties’ agreement. Its authority to do so clearly establishes a
‘judicially sanctioned change in the legal relationship of the
parties,’ as required by Buckhannon, because the plaintiff
thereafter may return to court to have the settlement
enforced.” Am. Disability Ass’n, 289 F.3d at 1320. We agree
with the Second, Fourth, and Eleventh Circuits’ application of
Kokkonen to this context and, as in Labotest, hold that when
a court incorporates the terms of a voluntary agreement into
an order, that order is stamped with sufficient “judicial impri-
matur” for the litigant to qualify as a prevailing party for the
purpose of awarding attorney’s fees.
[9] Here, the district court’s order incorporating the volun-
tary stipulation to a stay of departure clearly meets the “judi-
cial sanction” prong of the prevailing party test. As in
15442 CARBONELL v. INS
Labotest, the district court incorporated an agreement reached
by the parties into an order. Thus, had the government vio-
lated the agreement and attempted to deport Carbonell during
the relevant time period, he could have returned to the district
court to enforce the agreement. The order fundamentally dif-
fered from a private settlement agreement, such as the one at
issue in Kokkonen which the Court in Buckhannon cited as
lacking the necessary judicial sanction to support an award of
attorney’s fees. Here, by incorporating the voluntary stipula-
tion into its order, the district court stamped it with the requi-
site “judicial imprimatur.”
IV. Conclusion
[10] For the reasons stated above, we conclude that the dis-
trict court’s order incorporating the voluntary stipulation to a
stay of departure materially altered the relationship between
Carbonell and the government and that this alteration was
judicially sanctioned. As a result, we hold that Carbonell is a
prevailing party for the purpose of awarding attorney’s fees
under EAJA. Because the district court erroneously concluded
that Carbonell was not a prevailing party, it did not consider
the parties’ other arguments regarding whether the govern-
ment’s position was substantially justified. We therefore
remand the case to the district court to consider those and any
other remaining issues.
Vacated and Remanded.