Berardo v. United States Citizenship and Immigration Services et al

2021 | Cited 0 times | D. Oregon | January 22, 2021






Case No. 3:19-cv-01796-SB OPINION AND ORDER

BECKERMAN, U.S. Magistrate Judge.

28 U.S.C. § 2412(d) costs in the amount of $400, for a total award of $45,072.50. 1

(ECF No. 36.) Defendants United

1 App. at 4-5.) He then amended his original request to eliminate $642 in fees for clerical tasks to which Defendants objected, and he included an additional $3,477.50 in fees incurred to file his reply brief. ( -7; S ); see also Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013) citations omitted).

ska Service Center Director Loren K. . (ECF No. 37 ees and costs in the amount of $45,072.50.

BACKGROUND Berardo is a citizen and national of Belgium. (ECF No. 26-2 at 184.) 2

He is employed by the LAIKA animation studio in Hillsboro, Oregon as a stop-motion animator. (Id.) LAIKA is an animation studio that produces award-winning stop-motion animated feature films. (ECF No. 26- 1 at 285-322; ECF No. 26-2 at 1-5.) Berardo has worked as a stop- films, including ParaNorman, Kubo and the Two Strings, The Boxtrolls, and Missing Link. (ECF

No. 26-1 at 110; ECF No. 26-2 at 107-08.)

On April 4, 2019, Berardo filed an I-140 visa petition seeking classification under section

(ECF No. 26-1 at 271-79.) In support of his petition, Berardo submitted over two hundred pages of evidence documenting his work as a stop-motion animator on award-winning and nominated films and claiming eligibility under six of the ten criteria set forth in 8 C.F.R. § 204.5(h)(3).

On July 11, 2019, Defendants issued a Request for Evidence ( RFE ). (ECF No. 26-2 at 194-99.) The RFE highlighted deficiencies as to the evidence Berardo submitted and stated that he had not satisfied any of the six requirements. (Id.) On August 23, 2019, Berardo responded with additional evidence and legal argument. (ECF No. 26-2 at 200-06.) Two months later, USCIS denied concluding that Berardo failed to satisfy any of the ten criteria

2 USCIS filed the Certified Administrative Record under seal (ECF No. 26), with exhibits docketed in three parts.

set forth at 8 C.F.R. § 204.5(h)(3). On November 7, 2019, Berardo filed this case challenging APA . (ECF No. 1.)

After Berardo filed suit, USCIS sua sponte original decision. (ECF No. 26-1 at 55.) On December 20, 2019, USCIS sent Berardo a Notice of

. (ECF No. 26-1 at 35.) Although Berardo had not submitted any

ten criteria, USCIS concluded in the NOID that Berardo satisfied four of the six claimed criteria, but that he had not demonstrated that he had risen to the very top of his field or had sustained national or international acclaim. (ECF No. 26-1 at 35-44.) In response to the NOID, Berardo submitted additional evidence to satisfy the additional two criteria and to prove his extraordinary ability. (ECF No. 26-1 at 57-249.) petition. (ECF No. 26-1 at 1-17.)

Berardo sought judicial review of the second denial. (ECF No. 13.) On October 20, 2020, was arbitrary and capricious, and remanding the case to USCIS for further administrative proceedings. (ECF No. 35.) On November 3, 2020, USCIS reopened petition and approved it. ( .) On December 9, 2020, Berardo filed this and costs pursuant to the EAJA. (ECF No. 36.)


The EAJA provides for the award of attorneys fees to a party that prevails against the United States in a proceeding for review of an agency action, unless the court finds position of the United States was substantially justified or that special circumstances make an

, 690 F.3d 1132, 1135 (9th Cir. 2012) (quoting

28 U.S.C. § 2412(d)(1)(A)). ; pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within

Ibrahim v. of Homeland Sec., 912 F.3d 1147, 1167 (9th Cir. 2019) (quoting Jean, 496 U.S. 154, 158 (1990)).

Although the EAJA creates a presumption that fees will be awarded to a prevailing party, Congress did not intend fee shifting to be mandatory. League of Wilderness Defs./Blue Mountains Biodiversity Project v. U.S. Forest. Serv., No. 3:10-cv-01397-SI, 2014 WL 3546858, at *1 (D. Or. July 15, 2014) (citing Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995)). The decision to deny EAJA attorneys fees is within the discretion of the court. Id. (citing Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)). II. ANALYSIS

Defendants argue that the Court should deny Berardo because the in to justify enhanced EAJA fees, and the requested fees are excessive.

For the reasons that follow, the Court grants Berardo .

A. Substantial Justification Defendants argue that the Court should not award EAJA fees to Berardo because position, with respect to both the original agency action and this lawsuit, was substantially justified. (Defs at 6-7.) The Court disagrees.

Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Gonzales v. Free Speech

Coal., 408 F.3d 613, 618 (9th Cir. 2005) To establish substantial justification, the government indeed, since the movant is established as a prevailing party it could never do so reasonable person could think it correct, that is, [that the position] has a reasonable basis in law

and fact. Ibrahim, 912 F.3d at 1167 (quoting Pierce v. Underwood, 487 U.S. 552, 565, 566 n.2 (1988)); see also Al-Harbi v. I.N.S., 284 F.3d 1080, 1084 (9th Cir. 2002) reasonable Pierce, 487 U.S. at 565). under the EAJA, [ Ibrahim, 912 F.3d at 1168

(quoting 28 U.S.C. § 2412(d)(1)(B)). 3 Ibrahim, 912 F.3d at 1168 (citing Gutierrez

v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001)).

failure to prevail in its position on the underlying issues is not dispositive of whether the government See, e.g., Pierce,

3 Within the immigration context, the Ninth Circuit has expressly held that, pursuant to the EAJA, courts are required to consider the reasonableness of the underlying agency action at issue in the litigation. See Thangaraja, 428 F.3d at 873 decisions we review are as mu see also Singh v. Gonzales, 502 F.3d 1128, 1129 (9th Cir. 2007) (rejecting the

Al-Harbi, 284 F.3d at 1084 substantial justification, the court must consider the reasonableness of both the underlying government action at issue and the position asserted by the government in defending the validity

487 U.S. at 569 justified, yet win; even more likely, it could take a position that is substantially justified, yet

However, a courts finding that an agency decision was unsupported by substantial evidence is substantially justified. See Thangaraja, 428 F.3d at 874

i . decidedly unusual case in which there is substantial justification under the EAJA

even though the agencys decision was reversed as lacking in reasonable, substantial and probative evidence in the Id. (quoting Al-Harbi, 284 F.3d at 1085).

In this case, the underlying agency action was not substantially justified. In its initial denial -140 petition, USCIS determined that Berardo had satisfied none of the six claimed criteria. (ECF No. 26-2 at 194-99.) It was only after Berardo filed the instant lawsuit that USCIS sua sponte reopened its denial, and, despite Berardo having not submitted any additional evidence, USCIS issued a new NOID concluding that Berardo satisfied four of the six criteria but that he had failed to demonstrate that he had risen to the very top of his field or had sustained national or international acclaim. (ECF No. 26-1 at 35-44.) Thus, th decision based on the same evidence. It should not require the filing of a lawsuit for USCIS to

conduct a serious review of I-140 petitions. 4

4 In recent years, it has apparently become a common practice by USCIS to sua sponte See, e.g., Whitewater Distrib., Inc. v. Cuccinelli, No. 3:20-cv- 970-K-BN, 2020 WL 6120470, at *1 (N.D. Tex. Sept. 29, 2020) I-140 petition and issued an NOID two months after the plaintiff sought judicial review under the

This Court concluded that USCIS misapplied the law with respect to the high salary criterion, abused its discretion by

adequately to explain why these facts were insufficient to satisfy the [leading and critical role] its evaluation of the totality of the evidence was arbitrary and capricious. Berardo v. U.S. Citizenship & Immigr. Servs., No. 3:19-cv-01796-SB, 2020 WL 6161459, at *8- 12 (D. Or. Oct. 20, 2020). The [f]rom the initial denial to the final denial, the

- motion animation. Id. at *12. Thus, th agencys decision was reversed as lacking in reasonable, substantial and probative evidence in

the reco Thangaraja, 428 F.3d at 874 (quotation marks and citation omitted).

Because the Court has found that the government was not substantially justified in its original agency action, the Court need not determine whether the government was substantially justified in its litigation position. See Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013) was not substantially justified, we need not address whether the Accordingly, Berardo is entitled to an EAJA fee award.

APA); Ahlijah v. Nielsen, No. PX-17-1710, 2018 WL 3363875, at *2 (D. Md. July 10, 2018) filed his complaint alleging an APA violation in federal court); Shihuan Cheng v. Baran, CV 17- 2001-RSWL-KSX, 2017 WL 3326451, at *1 (C.D. Cal. Aug. 3, 2017) (USCIS issued an RFE two months after the plaintiff filed suit in federal court).

B. Fee Calculation

1. Enhanced Hourly Rate The EAJA quality of the services 28 U.S.C. § 2412(d)(1)(D)(2)(A). Rates are usually capped at

factor, such as the limited availability of qualified attorneys for the proceedings involved, Id. The cost of living adjustments for work performed in 2019 and 2020, respectively, is $205.25 per hour and $207.78 per hour. 5

Courts award enhanced hourly rates where the attorney possesses

Nadarajah v. Holder, 569 F.3d 906, 912 (9th Cir. 2009).

Berardo requests that the Court approve the usual billing rate of his attorney, Brent Renison , of $525 per hour. (See .) Defendants object, arguing that the proposed hourly rate is excessive, and that attorney time should be compensable at the EAJA statutory rate ($125), adjusted only for the cost of living ($205.25 for 2019, and $207.78 for 2020). (Defs .) The Court finds that an enhanced billing rate is appropriate here.

Berardo demonstrates, and Defendants do not dispute, that Renison has distinctive knowledge and specialized skill in immigration law and litigation. (See Renison Decl. ¶¶ 4-7; ; 5 (last visited on Jan. 22, 2021).

7; ; ) Nor do Defendants dispute that specialized skills were not available elsewhere at the statutory rate. (See Butte Decl. ¶ 11; Morrissey Decl. ¶ 5; Owren Decl. ¶¶ 5-8; Smith Decl. ¶ 11.) Rather, Defendants argue that distinctive knowledge and skills were not needed in this litigation. (Defs -8.) Berardo responds that this litigation required counsel with distinctive knowledge and experience in immigration law and federal litigation, particularly the subspecialty of employment-based immigration law and the niche area of extraordinary ability petitions. Mot. at 2-3; -6.)

The Ninth Circuit has found that immigration law could be a special factor Rueda-Menicucci v. I.N.S., 132 F.3d 493, 496 (9th Cir. 1992) (citing Pirus v. Bowen, 869 F.2d 536, 542 (9th Cir. 1989)). In addition, the Circuit has described immigration Escobar-Grijalva v. I.N.S., 206 F.3d 1331, 1335 (9th Cir. 2000). Courts have n specialized knowledge of immigration law in cases Nadarajah, 569 F.3d at 914 (noting that enhanced rates may be warranted where

counsel has . . . particular, esoteric nooks and crannies of immigration law . . . [was] needed to give the alien a fair shot at prevailing Thangaraja, 428 F.3d at 876 (citation omitted)). The Ninth Circuit, however, has declined to enhanced hourly rates in immigration cases pursuant to the statutory exception for

Id. (declining to award a special factor enhancement for an appeal involving applications for asylum and withholding of removal); see Ramon-Sepulveda v.

I.N.S., 863 F.2d 1458, 1463 (9th Cir. 1998) -Sepulved s legal claim against the INS involves established principles of res judicata principles with which the majority of attorneys Rueda-Menicucci, 132 F.3d at 496 (holding that no specialized skill or distinctive knowledge was necessary to represent the plaintiff at asylum and deportation hearings); see also Johnson v. Gonzales, 416 F.3d 205, 213 (3d Cir. 2005) counsel is an experienced attorney who specializes in immigration, he was here faced with a case of straightforward application of the substantial evidence and asylum standards. .

The Court finds that distinctive knowledge and specialized skill was necessary to achieve success in this case. This of the rules of immigration law. Thangaraja, 428 F.3d at 876 (quoting Johnson, 416 F.3d at 213). Counsel here was required to be -versed in various complicated provisions of immigration law and the ways in which Sedighi v. Holder, No. 07-CV-1881-BR, 2009 WL 1974508, at *6 (D. Or. July 2, 2009) (awarding enhanced EAJA fees). Specialized expertise and knowledge of sub-regulatory guidance in the area of employment-based immigration was also necessary. Such guidance is contained in internal USCIS memoranda and various versions of USCIS policy manuals, the contents of which impact the interpretation of statutes and regulations governing EB-1 petitions. particular esoteric nooks and crannies of immigration law . . . [was] needed to give the alien a

Thangaraja, 428 F.3d at 876 (quoting Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004)).

In addition, Berardo submitted four expert declarations attesting to the fact that distinctive and specialized skill was necessary here. Two immigration specialists describe this

case as presenting complex issues that required a highly experienced immigration attorney. For example, Dagmar Butte, an immigration specialist for twenty-eight years and adjunct professor of international law at Lewis & Clark Law School, declared that knowledge of the shifting adjudicatory trends and often contradictory case law involving EB-1 cases is necessary when challenging an EB-1 denial in federal court:

Distinctive knowledge and skills in immigration law and the subspecialities of business immigration law and extraordinary ability petitions is necessary when challenging an EB-1 denial. EB-1 cases are some of the most complex to prepare because they involve many, many moving parts and require an understanding of how each item of evidence ultimate [sic] drives the case to the goal of establishing the applicant is among the very top in his field. When such a case is denied, the lawyer representing the applicant must not only master the complexities of the underlying application but must also understand the adjudicatory trends many of which are not reflected in the statute and regulations but are a matter of agency practice. These trends are often contrary to statute and regulations but only someone who has a grasp of how the trends and the law interconnect will be able to make this determination and effectively present it to a Federal Judge. In addition, the limited applicable case law that is precedential is contradictory and complex and requires someone with a deep understanding of the law to harmonize the case law in a way that complies with the law and make sense in light of the facts of each case. This is not something that can be done by someone who does not have distinctive knowledge and skills in relation to EB-1 petitions. (Butte Decl. ¶ 10.) Similarly, Phillip Smith, a partner at a Portland immigration firm with over twenty years of experience, asserts that ea of

Very few attorneys have the specialized experience and skill necessary to highlight the erroneous application of the statutes, regulations, rules and memoranda to the facts of these evidence intensive cases. It was absolutely necessary for the success in this case for Mr. Berardo to have an experienced immigration practitioner who was well versed in the employment based first preference extraordinary ability category and who also could adequately present the APA claim through federal court filings. This is particularly true of this case, because the agency did not back down after the initial denial was reopened and a NOID issued. . . . [I]t is there in the summary judgment battle that Mr. experience came to bear.

(Smith Decl. ¶¶ 9-10.) In contrast, Defendants offer no evidence to support their argument that Re skill level was not necessary here. See Castillo v. Nielsen, No. 5:18-cv-01317-ODW (KESx), 2020 WL 2840065, at *6 (C.D. Cal. June 1, 2020) Plaintiffs cite extensive evidence Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir.

2008) of evidence . . . challenging the accuracy and reasonableness of the . . . facts asserted by the

For these reasons, the Court finds that an enhanced rate is justified in light of the expertise necessary to litigate this case. 6

See Fatty v. Nielsen, No. CC17-1535 MJP, 2019 WL 1979321, at *3 (W.D. Wash. May 3, 2019) knowledge and skills were necessary see also

Primero Garcia v. Barr, No. 20-cv-01389-NC, 2020 WL 5366567, at *3 (N.D. Cal. Sept. 8, 2020) (finding that enhanced rates were justified wh

; Xiaosi Hu v. Munita, No. 2:19-cv-01302-RAJ, 2020 WL 2199473, at *2 (W.D. Wash. May 6, 2020) (awarding an enhanced rate where specialized skill and knowledge was required for a case involving adjudication on the merits of the plaintiffs naturalization application).

6 , D.C. represented Defendants, as opposed to the U.S. Attorney for the District of Oregon. Defendants were able to draw upon the immigration expertise of OIL attorneys, which further supports the law was necessary to litigate this case.

Having found that a rate enhancement is appropriate, the Court must also determine whether the requested rate is reasonable. See id. Although the Court concludes that enhanced fees are appropriate, Plaintiff still must show that the requested enhanced rates are in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. (quoting Nadarajah, 569 F.3d at 916)). The Court looks to the prevailing market rate to determine a reasonable hourly rate. See Gonzalez, 729 F.3d at 1205 Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005)).

Id. (quoting Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) League of Wilderness Defs., 2014 WL 3546858, at *13. Courts may also consider factors such as the quality of an attorney performance, the results obtained, the novelty and complexity of a case, and the special skill and experience of counsel. Id. at *6 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553-54 (2010)).

To determine a reasonable hourly rate, attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs attorney, are satisfactory evidence of the United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Courts in this district rely on the most recent Oregon State Bar Economic Survey See U.S. Dist. Ct., Dist. of Or., Message from the Court Regarding Fee Petitions,

notices/notices/fee-petitions (last visited on Jan. 22, 2021); see also League of Wilderness Defs. v. Turner, 305 F. Supp. 3d 1156, 1165 (D. Or. Mar. 30, 2018) (relying on OSB Survey data to calculate an hourly rate under the EAJA). The OSB Survey contains data on attorney billing rates based on type of practice, geographic area of practice, and years of practice. 7 rate requested exceeds the average rate reported in the OSB Survey, the burden is on the prevailing party to justify that higher rate. Even when such justification is present, the court usually limits the hourly rate to the 75th percentile of the O Turner, 305 F. Supp. 3d at 1169 (citation omitted).

Defendants argue that requested hourly rate is too high and does not reflect the prevailing market rate. The Court disagrees. Renison has been practicing law for twenty-three years, specializing in immigration law, employment-based visas, and federal litigation. (See Renison Decl. ¶ 2; Butte Decl. ¶ 12; Smith Decl. ¶ 13; Morrissey Decl. ¶ 4; Owren Decl. ¶ 7.) Based on the most recent 2017 OSB Survey, the 2016 mean hourly billing rate for attorneys in Portland, Oregon possessing between twenty-one and thirty years of experience was $394, the 75th percentile was $475, and the 95th percentile was $525. (See 2017 OSB Survey at 39.) The EAJA statutory rate has increased by seven percent since 2016, 8

and adjusting the OSB survey rates by the same amount results in a current mean rate of $422, a 75th percentile of $508, and a 95th percentile of $562. Based on these calculations, 75th and 95th percentiles. Renison submitted four expert affidavits attesting that the requested

7 A copy of the 2017 OSB Survey is available at (last visited on Jan. 22, 2021)

8 See and Cost of Living Adjustments, (last visited on Jan. 22, 2021).

skills, and extensive experience. (See Butte Decl. ¶ 13; Owren Decl. ¶ 8; Smith Decl. ¶¶ 13-14;

Morrissey Decl. ¶ 7.) Considering the expert affidavits, and his highly specialized skill demonstrated here, the Court finds that the requested hourly rate is reasonable. Cf. Xiaosi Hu, 2020 WL 2199473, at *2 ( Given the prevailing market rates for specialized and highly experienced immigration attorneys specializing in complex litigation, the Court determines that an hourly rate of $650 immigration attorney).

2. Number of Hours Billed In litigating fee applications, th appropriate hours expended in the litigation and must submit evidence in support of those hours a requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992) (citing Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984)).

the , primarily, the briefing of timesheets include 1.2 hours of clerical tasks, which are not compensable under the EAJA. (Defs 11.) Defendants ask the Court to apply a five percent across-the-board reduction. (Id. at 12.)

The Court finds that Berardo has met his burden of rebuttal by submitting time sheets and billing records (Renison Decl. at 7), declaration (Renison Decl.), and declarations by four experts opining that the requested hours were necessary and reasonable. (See Butte Decl. ¶ 13; Owren Decl. ¶ 8; Smith Decl. ¶¶ 13-14; Morrissey Decl. ¶ 7.) Defendants submit no evidence

in support of their opposition. With regard to the entries for arguably clerical tasks, Berardo withdrew his request for compensation for those entries. (See -7.) Given that Berardo reduced his request by the 1.2 hours in clerical tasks, this Court finds that any further reduction of fees and costs is unnecessary here. Accordingly, the Court accepts Berardo calculation.

C. Costs Berardo seeks $400 in costs for his district court filing fee. Defendants do not object. Accordingly, the Court awards Berardo his costs in the amount of $400. See Homeland Sec., No. 2:14-2109-JAM-KJN, 2017 WL 4959430, at *7 (E.D. Cal. Nov. 1, 2017) see also Freeman v. Mukasey, No. 04-35797, 2008 WL 1960838, at

*7 (9th Cir. 2008)

CONCLUSION For the reasons stated, the Court GRANTS costs (ECF No. 36), and AWARDS Berardo a total award of $45,072.50.

DATED this 22nd day of January, 2021.

HON. STACIE F. BECKERMAN United States Magistrate Judge

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