Noem

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JOSE DE JESUS LEDEZMA

HERNANDEZ,

Petitioner,

v. Case No: 2:26-cv-00386-JES-DNF

MARKWAYNE MULLIN, SECRETARY

of the DEPARTMENT OF

HOMELAND SECURITY; TODD

BLANCHE, ACTING ATTORNEY

GENERAL OF THE U.S.; TODD M.

LYONS, ACTING DIRETOR U.S.

IMMIGRATION AND CUSTOMS

ENFORCEMENT; KELEI B.

WALKER, ICE ERO MIAMI FIELD

OFFICE DIRECTOR; Kevin

Guthrie, EXECUTIVE DIRECTOR

OF THE FLORIDA DIVISION OF

EMERGENCY MANAGEMENT,

Respondents.1

OPINION AND ORDER

This matter comes before the Court on Petitioner’s Motion for

Attorneys’ Fees Pursuant to the Equal Access to Justice Act, 28

U.S.C. § 2412 (Doc. #15) filed on May 12, 2026. Respondents filed

a Response in Opposition to Motion for Fees Under the Equal Access

1 Pursuant to Federal Rule of Civil Procedure 25, Markwayne Mullin, Todd

Blanche, and Kelei B. Walker are automatically substituted in the place

of the previously named respondents.

to Justice Act (Doc. #16) on May 26, 2026. For the reasons stated

below, the motion is denied.

On February 16, 2026, petitioner filed an Emergency Petition

for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and for

Immediate Release or, in the Alternative, a Prompt Individualized

Custody Determination Hearing (Doc. #1). Respondents were

directed to show cause why the petition should not be granted, and

on March 5, 2026, the Federal Government filed an Opposition.

(Docs. ## 7, 8.) On March 9, 2026, the Court issued an Opinion

and Order (Doc. #10) finding that petitioner was entitled to

statutory process under 8 U.S.C. § 1226(a). Judgment (Doc. #11)

was issued on March 10, 2026, in favor of petitioner.

“In 1980, Congress passed the [Equal Access to Justice Act]

in response to its concern that persons ‘may be deterred from

seeking review of, or defending against, unreasonable governmental

action because of the expense involved in securing the vindication

of their rights.’” Sullivan v. Hudson, 490 U.S. 877, 883

(1989)(citing Equal Access to Justice Act, Pub. L. No. 96-481, 94

Stat. 2325). Under the Equal Access to Justice Act (“EAJA”),

“[e]xcept as otherwise specifically provided by statute, a court

shall award to a prevailing party other than the United States

fees and other expenses . . . incurred by that party in any civil

action . . . 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 party

seeking the award of fees is required to submit their motion

“within thirty days of final judgment in the action.” Id. §

2412(d)(1)(B).

The Government agrees that Petitioner was the prevailing

party for EAJA purposes, however, contends both that Petitioner

did not timely file its motion and the Government’s position was

substantially justified. (Doc. # 16, pp. 2-14.) Alternatively,

the Government argues that the request should be reduced since the

Petitioner’s counsel’s hourly rate “has not been proved by

sufficient evidence and the request includes clerical tasks not

compensable under the EAJA.” (Id. at p. 1.)

A. The Petitioner’s EAJA Motion Is Untimely

The 30-day requirement of § 2412(d)(1)(B) “is jurisdictional

in nature” and where the claimant fails “to file an EAJA

application within this time constraint” the district court is

precluding from considering the merits of the fee application.

See Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990); see

also Singleton v. Apfel, 231 F.3d 853, 857 (11th Cir. 2000)(holding

that an untimely EAJA application precludes a district court from

considering the merits of the application).

Here, the Petitioner’s motion is untimely. Judgment (Doc.

#11) was entered on March 10, 2026, but Petitioner only filed this

motion on May 12, 2026. This is 63 days after the order which

clearly exceeds the 30 days permitted by the EAJA. See 28 U.S.C.

§ 2412(d)(1)(B). Accordingly, the Petitioner’s motion must be

denied as untimely.2

B. The Government’s Position Was Substantially Justified

Even if Petitioner had timely filed the Court finds the

Government’s position was substantially justified. The term

“substantially justified” means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988). The “position can

be justified even though it is not correct;” “it can be

substantially . . . justified if a reasonable person could think

it correct, that is, if it has a reasonable basis in law and fact.”

Id. at 566 n.2. “The government bears the burden of showing that

its position was substantially justified.” U.S. Commodities

Futures Trading Comm’n v. Escobio, Case Nos. 20-12991 & 20-13363,

2 The Government also contends the motion should be denied for violating

the local rules, since the motion was not filed within 14 days of entry

of judgment nor did it follow the bifurcated process. See M.D. Fla. R.

7.01. While correct, the Court will not enforce the shorter timeline

of the local rules where a statute on point permits 30 days to file the

motion.

2021 WL 3878251, at *2 (11th Cir. Aug. 31, 2021)(quoting Stratton

v. Bowen, 827 F.2d 1447, 1450 (11th Cir. 1987)).

Factors considered include: “(1) the state at which the

litigation was resolved; (2) views expressed by other courts on

the merits; and (3) the legal merits of the government's position.”

Jean v. Nelson, 863 F.2d 759, 767 (11th Cir. 1988), aff'd sub nom.

Comm'r, I.N.S. v. Jean, 496 U.S. 154 (1990). Additional factors

that may be considered are: “(1) the clarity of the governing law;

(2) the foreseeable length and complexity of the litigation; and

(3) the consistency of the government's position.” Id. Even if

the Government’s position “ultimately prove[s] to be incorrect,”

the issue is whether “the position was reasonable” at the time.

Kurapati v. U.S. Citizenship & Immigr. Servs., 700 F. App'x 974,

976 (11th Cir. 2017).

The Government first argues the binding Board of Immigration

Appeals decision in Yajure Hurtado, 29 I. & N. Dec. 216, 216 (BIA

2025), “supported the Government’s administrative position in this

case, and supports denying EAJA fees here” because it found that

the Department of Homeland Security policy of mandatory detention

under 8 U.S.C. § 1225 was lawful. (Doc. 16, p. 8). As this Court

previously stated, it is not convinced this decision provides

substantial justification for the Government’s position. See

Giron Bautista v. Noem, Case No. 2:26-cv-75-JES-DNF, 2026 WL

709778, at *2 (M.D. Fla. Mar. 13, 2026)(Steele, J.).

While the Eleventh Circuit has since confirmed the

Government’s position was incorrect, it seems apparent that the

position was nonetheless substantially justified. See Alvarez v.

Warden, Federal Detention Center Miami, --F. 4th --, 2026 WL

1243395 (11th Cir. May 6, 2026); see also Castañon-Nava v. U.S

Dep’t of Homeland Sec., -- F.4th --, 2026 WL 1223250 (7th Cir. May

5, 2026)(reaching same conclusion as the Eleventh Circuit);

Barbosa da Cunha v. Freden, -- F.4th --, 2026 WL 1146044 (2d Cir.

Apr. 28, 2026)(same). Before the Court’s order in this case, the

Fifth Circuit agreed with the Government’s position in this case

that most noncitizens apprehended anywhere in the United States

are never eligible for release on bond since they are “seeking

admission.” See Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th

Cir. 2026). Further, the Eighth Circuit reached a similar

conclusion as the Fifth Circuit. See Avila v. Bondi, 170 F.4th

1128 (8th Cir. 2026). Such disagreement amongst the circuit

courts confirms the issue was sufficiently unsettled at the time

the Government presented its position which had been adopted by

two circuits. Kurapati, 700 F. App’x at 976. Therefore, though

the Government’s position was ultimately incorrect in this

circuit, it was substantially justified.

Accordingly, it is hereby

ORDERED :

Petitioner’s Motion for Attorneys’ Fees Pursuant to the Equal

Access to Justice Act, 28 U.S.C. § 2412 (Doc. #15) is DENIED.

DONE and ORDERED at Fort Myers, Florida, this 27th day

of May 2026.

AA) WD

JOHN E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record