Maria Medina Tovar v. Laura Zuchowski

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA DEL CARMEN MEDINA No. 21-35664

TOVAR; ADRIAN JOVAN ALONSO

MARTINEZ, D.C. No.

Plaintiffs-Appellants, 3:17-cv-00719-

BR

v.

LAURA B. ZUCHOWSKI, Director, OPINION

Vermont Service Center, United

States Citizenship and Immigration

Services; ALEJANDRO N.

MAYORKAS, Secretary, Department

of Homeland Security; MERRICK B.

GARLAND, Attorney General,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted June 6, 2022

Portland, Oregon

Filed July 21, 2022

2 MEDINA TOVAR V. ZUCHOWSKI

Before: David M. Ebel, * William A. Fletcher, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

SUMMARY **

Immigration/Attorneys’ Fees

In a case in which Plaintiffs previously prevailed in this

court in their challenge to the denial of a petition seeking

derivative U-visa status, the panel affirmed the district

court’s denial of Plaintiffs’ application for attorneys’ fees

and costs under the Equal Access to Justice Act (“EAJA”).

United States Citizenship and Immigration Services

denied the U-visa petition based on its regulation limiting

derivative U-visa status to spouses married at the time the

principal petition is filed. Plaintiffs challenged that denial in

the district court, which granted summary judgment to the

government, and a three-judge panel of this court affirmed

in a split decision. However, on rehearing en banc, this court

invalidated the regulation as inconsistent with the governing

statute. Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir.

2020) (en banc). Having prevailed on the merits, Plaintiffs

filed an application for attorneys’ fees and costs under the

EAJA, but the district court denied the application because

*

The Honorable David M. Ebel, United States Circuit Judge for the

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MEDINA TOVAR V. ZUCHOWSKI 3

it determined that the government’s position was

substantially justified.

The panel concluded that the district court did not abuse

its discretion, explaining that the factors identified by the

district court provided strong support for its determination

that the government’s position was substantially justified.

Specifically, the panel observed that the government’s

position was found persuasive by no fewer than six federal

judges in the course of the case, and as many judges were

persuaded by the government’s position as were persuaded

by the Plaintiffs’ position. The panel explained that these

circumstances supported the district court’s conclusion that

the government’s position was not unreasonable. In the

same vein, given the evident disagreement on the statutory

question, with many judges agreeing with the government’s

position, the panel could not say the district court was out of

bounds in concluding that the government’s position was

substantially justified. In addition, the panel concluded that

the district court properly considered the fact that this case

involved an issue of first impression.

COUNSEL

Philip James Smith (argued), Nelson Smith LLP, Portland,

Oregon, for Plaintiffs-Appellants.

Aaron S. Goldsmith (argued), Senior Litigation Counsel;

Jeffrey S. Robins, Deputy Director; William C. Peachey,

Director; Brian M. Boynton, Acting Assistant Attorney

General; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Defendants-Appellees.

4 MEDINA TOVAR V. ZUCHOWSKI

OPINION

CLIFTON, Circuit Judge:

Plaintiffs Maria Medina Tovar and Adrian Alonso

Martinez brought this action challenging the denial of

Ms. Medina Tovar’s petition seeking derivative U-visa

status for her husband. United States Citizenship and

Immigration Services (“USCIS”) denied the petition based

on its regulation limiting derivative U-visa status to spouses

married at the time the principal petition is filed. On

rehearing en banc, our court invalidated the regulation as

inconsistent with the governing statute. Medina Tovar v.

Zuchowski, 982 F.3d 631, 633 (9th Cir. 2020).

Having prevailed on the merits, Plaintiffs filed in the

district court an application for attorneys’ fees and costs

under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412. The district court denied the application because it

determined that the government’s position was substantially

justified, which precludes a fee award under the EAJA. This

appeal followed. Because we conclude that the district court

did not abuse its discretion in so concluding, we affirm.

I. The Underlying Dispute

Although Plaintiffs’ underlying challenge has been

resolved in their favor and is no longer at issue, to put the

current question into focus we start by describing that

dispute and its progress through the courts.

A “U visa” is a nonimmigrant visa designed to grant

legal status to a non-citizen victim of violent crime who

assists law enforcement in its investigation. The

requirements for a principal applicant to obtain a U visa are

set forth in 8 U.S.C. § 1101(a)(15)(U)(i). A qualifying U-

MEDINA TOVAR V. ZUCHOWSKI 5

visa recipient may also petition for derivative status for a

qualifying spouse who is “accompanying or following to

join” the U-visa holder. Id. § 1101(a)(15)(U)(ii). USCIS

adopted a regulation interpretating and implementing the U-

visa statute, providing, in relevant part, that “the relationship

between the U-1 principal alien and the qualifying family

member must exist at the time [the principal petition] was

filed.” 8 C.F.R. § 214.14(f)(4).

Plaintiffs are a married couple, both of whom are natives

and citizens of Mexico. In 2004, Ms. Medina Tovar was the

victim of a serious crime and assisted law enforcement with

the investigation. She applied for U-visa status in 2013 by

filing a principal petition with USCIS. She married the

second plaintiff, Mr. Alonso Martinez, in 2015. Ms. Medina

Tovar’s U visa was granted soon thereafter. A few months

after that, she filed a petition for derivative U-visa status for

her husband. USCIS denied the petition on the basis that

Plaintiffs were not married at the time the principal petition

was filed, as required by the USCIS regulation.

Plaintiffs filed an action in federal court challenging the

denial of their derivative petition and seeking to invalidate

the regulation as inconsistent with the governing statute. The

district court granted summary judgment to the government.

It determined that (1) the statute did not directly address the

question of when the marital relationship must exist for a

derivative spouse to be eligible, and (2) the temporal

component of the regulation was a reasonable interpretation

and thus entitled to Chevron deference. Medina Tovar v.

Zuchowski, No. 3:17-cv-00719-BR, 2017 WL 6453345,

at *4–6 (D. Or. Dec. 15, 2017); see Chevron U.S.A., Inc. v.

Nat’l Res. Def. Council, 467 U.S. 837, 842–43 (1984).

On appeal, a three-judge panel of this court affirmed the

district court’s judgment in a split decision. Medina Tovar v.

6 MEDINA TOVAR V. ZUCHOWSKI

Zuchowski, 950 F.3d 581 (9th Cir. 2020). The panel majority

agreed that the statute was ambiguous and that the agency’s

reasonable interpretation was owed Chevron deference. Id.

at 587–92. The majority focused its analysis of the statute on

the phrase “accompanying, or following to join.” Id. at 587.

The dissent focused on the same language but concluded that

the regulation’s temporal requirement was contrary to the

statute’s plain meaning. See id. at 594 (Watford, J.,

dissenting).

On rehearing en banc, a panel of eleven judges of this

court reached a different conclusion. The en banc majority

reversed the judgment of the district court and invalidated

the regulation insofar as it required the petitioning spouses

to be married at the time the principal petition is filed rather

than when it is granted. Medina Tovar, 982 F.3d at 633. Like

the panel majority, the en banc majority opinion, joined by

six judges, viewed the case as turning on the

“accompanying, or following to join” language in the statute,

but it concluded that the statute “clearly answer[ed] the

relevant interpretive question.” Id. at 635–37. Three judges

dissented, largely adopting the reasoning of the district court

and three-judge panel majority. See id. at 644–48 (Callahan,

J., dissenting). Two judges concurred in the judgment, but

for reasons different from those expressed in the majority

opinion. 1 See id. at 637–44 (Collins, J., concurring).

1

The concurrence rested its analysis not on the “accompanying, or

following to join” language, but instead on other “unique wording of

§ 101(a)(15)(U).” Medina Tovar, 982 F.3d at 639 (Collins, J.,

concurring).

MEDINA TOVAR V. ZUCHOWSKI 7

II. The Current Claim for Attorneys’ Fees

The EAJA provides, subject to exceptions not relevant

here, that in an action brought by or against the United

States, a court must award fees and expenses to a prevailing

non-government party “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 district court here denied Plaintiffs’

application for attorneys’ fees and costs under the EAJA

because it concluded that the government’s position at the

agency level and in the courts was substantially justified.

We review the district court’s denial of fees under EAJA

for abuse of discretion. Gonzales v. Free Speech Coal., 408

F.3d 613, 618 (9th Cir. 2005). “A district court abuses its

discretion when it fails to apply the correct legal rule or its

application of the correct legal rule is illogical, implausible

or without support in inferences that may be drawn from the

facts in the record.” Meier v. Colvin, 727 F.3d 867, 869–70

(9th Cir. 2013). “Abuse of discretion is a highly deferential

standard, under which the appellate court cannot substitute

its view of what constitutes substantial justification for that

of the district court; rather, the review is limited to assuring

that the district court’s determination has a basis in reason.”

Free Speech Coal., 408 F.3d at 618 (citation and internal

quotation marks omitted).

It is undisputed that Plaintiffs here are the prevailing

parties in a civil action brought against the United States.

The question before us, then, is limited to whether the district

court abused its discretion in finding the government’s

8 MEDINA TOVAR V. ZUCHOWSKI

position substantially justified. 2 Because this case posed a

novel legal question of statutory interpretation, as to which

many judges reached conflicting conclusions, and ultimately

resulted in this court rehearing the matter en banc, we

conclude that the district court did not abuse its discretion.

It is the government’s burden to show that its position

was substantially justified. Gutierrez v. Barnhart, 274 F.3d

1255, 1258 (9th Cir. 2001). “In this circuit, we apply a

reasonableness standard in determining whether the

government’s position was substantially justified for

purposes of the EAJA.” Flores v. Shalala, 49 F.3d 562, 569

(9th Cir. 1995). “Substantially justified” means “justified to

a degree that could satisfy a reasonable person.” Meier,

727 F.3d at 870 (quoting Pierce v. Underwood, 487 U.S.

552, 565 (1988)). “The government’s position is not

substantially justified simply because our precedents have

not squarely foreclosed the position.” Decker v. Berryhill,

856 F.3d 659, 664 (9th Cir. 2017). Rather, “the

government’s position must have a ‘reasonable basis both in

law and fact.’” Meier, 727 F.3d at 870 (quoting Pierce,

487 U.S. at 565).

For purposes of evaluating the government’s position,

“[t]he ‘position of the United States’ includes both the

government’s litigation position and the underlying agency

action giving rise to the civil action.” Meier, 727 F.3d at 870;

see also 28 U.S.C. § 2412(d)(2)(D). We examine “the

position on the merits” and consider any “extraneous

2

On appeal, Plaintiffs also argue that special circumstances would

not make an EAJA award unjust. Because we ultimately conclude that

the district court did not abuse its discretion in finding that the

government’s position was substantially justified, we need not decide

whether special circumstances exist.

MEDINA TOVAR V. ZUCHOWSKI 9

circumstances bearing upon the reasonableness of the

government’s decision.” Or. Nat. Res. Council v. Madigan,

980 F.2d 1330, 1331–32 (9th Cir. 1992) (quoting Kali v.

Bowen, 854 F.2d 329, 332 (9th Cir. 1988)).

“On the merits, we are bound by the previous panel’s

holding and rationale . . . .” Id. at 1332. On rehearing en

banc, we held that the temporal limitation imposed by the

regulation was inconsistent with the statutory language. The

contrary position advocated by the government was that the

language of the governing statute permitted it to limit

derivative U visas to couples who were married when the

principal petition was filed. 3 That our court did not adopt the

government’s argument does not necessarily mean that the

argument was unjustified. See United States v. Marolf,

277 F.3d 1156, 1162 (9th Cir. 2002) (“[T]he government’s

failure to prevail does not raise a presumption that its

position was not substantially justified.” (citation and

3

The parties have dedicated much of their briefs and oral arguments

to squabbling over what particular agency “action” is subject to review.

Plaintiffs contend that we must review the government’s rationale in

promulgating the regulation, while the government argues that it is the

specific denial of Plaintiffs’ derivative U-visa petition that matters. This

disagreement is a red herring. Either way, the government’s position has

been the same “at each stage” of the proceedings, see Corbin v. Apfel,

149 F.3d 1051, 1053 (9th Cir. 1998)—that the statutory language

authorized it to impose the temporal requirement.

We are not persuaded by Plaintiffs’ argument that, to meet its

burden, the government must provide evidence establishing the agency’s

rationale for promulgating the regulation. Plaintiffs did not frame their

case as a challenge to the agency’s rulemaking process; they chose

instead to frame their case as a challenge to the substance of the

regulation. See United States v. Marolf, 277 F.3d 1156, 1159 (9th Cir.

2002) (“[T]he scope of the underlying action that the court is to review

in assessing substantial justification extends only as far as the prevailing

party’s challenge itself.”).

10 MEDINA TOVAR V. ZUCHOWSKI

internal quotation marks omitted)); e.g., Kali, 854 F.2d at

334–35 (affirming district court’s finding of substantial

justification even though the government “lost the case on

the merits”).

In assessing whether the government’s position was

substantially justified, we also consider any “extraneous

circumstances bearing upon the reasonableness of the

government’s decision.” Madigan, 980 F.2d at 1331–32

(quoting Kali, 854 F.2d at 332). Extraneous circumstances

can include “relevant legal or factual precedents.” Id. A

“string of losses” or a “string of successes” can also be an

objective indicator of reasonableness. Pierce, 487 U.S. at

569; see also Free Speech Coal., 408 F.3d at 619. That said,

“that the district court initially agreed with the government’s

position is not ‘conclusive as to whether or not the

government was reasonable.’” Marolf, 277 F.3d at 1162

(quoting United States v. Real Prop. Known as 22249

Dolorosa St., 190 F.3d 977, 982 (9th Cir. 1999)). Similarly,

disagreement between judges on the merits of a case is not

dispositive. Madigan, 980 F.2d at 1332.

The district court here identified several reasons for

concluding that the government’s position was substantially

justified. It noted that the government prevailed at the district

court and initially on appeal; highlighted the disagreement

among the district, three-judge panel, and en banc panel

judges; and observed that this case “involved a novel legal

issue that had not been addressed specifically by any other

court.” These factors provide strong support for the district

court’s determination that the government’s position was

substantially justified and lead us to conclude that the district

court did not abuse its discretion.

The government’s position persuaded both the district

court and a majority of the three-judge panel of this court

MEDINA TOVAR V. ZUCHOWSKI 11

that first heard the case on appeal. It was also adopted by

three more of our judges who dissented from the en banc

majority decision. In other words, the government’s position

was found persuasive by no fewer than six federal judges:

the district court, two judges on the majority panel, and three

dissenting judges on the en banc panel. See Perez v. Jaddou,

31 F.4th 267, 271–72 (4th Cir. 2022) (“[I]t is certainly more

likely in these circumstances—where no fewer than seven

federal judges agreed with the government—that the

position of the United States was substantially justified.”).

Indeed, as many judges were persuaded by the government’s

position as were persuaded by Plaintiffs’ position. 4 These

circumstances support the district court’s conclusion that the

government’s position was not unreasonable.

In the same vein, judges disagreed about the proper

reading of the statute. The district judge held for the

government. The initial appellate panel decision was split,

two to one. The en banc decision resulted in three separate

opinions. Given the evident disagreement on the statutory

question, with many judges agreeing with the government’s

position, we cannot say the district court was out of bounds

in concluding that the government’s position was justified.

See Bay Area Peace Navy v. United States, 914 F.2d 1224,

1231 (9th Cir. 1990) (disagreement within a panel regarding

the merits of the government’s appeal suggests a finding of

substantial justification); Free Speech Coal., 408 F.3d at 619

(a split decision can serve “as an indicator of the

reasonableness of the government’s position”).

4

Six judges joined the majority en banc opinion. This includes

Judge Watford, who sat on both the three-judge panel, where he

dissented, and the en banc panel, where he joined the majority.

12 MEDINA TOVAR V. ZUCHOWSKI

In addition, the district court properly considered the fact

that this case involved an issue of first impression. See Perez,

31 F.4th at 271 (“[I]t matters that [the movant]’s case

presented a novel question.”); see Stebco, Inc. v. United

States, 939 F.2d 686, 687–88 (9th Cir. 1990) (denying EAJA

fees for litigation of a statutory-interpretation question of

first impression). It is true, as we observed in Gutierrez,

274 F.3d at 1261, that “there is no per se rule that EAJA fees

cannot be awarded where the government’s litigation

position contains an issue of first impression,” but the district

court appropriately gave weight to that context. Because the

interpretive question was one of first impression and

appeared close, the district court did not abuse its discretion

in concluding that the government’s position was

reasonable. Compare TKB Int’l., Inc. v. United States,

995 F.2d 1460, 1468 (9th Cir. 1993) (position was

substantially justified in part because the case presented “a

close question of law”), with Madigan, 980 F.2d at 1332

(position was not substantially justified because government

“lost on an issue of statutory interpretation that the previous

[unanimous] panel did not consider close”).

III. Conclusion

Because we conclude that the district court did not abuse

its discretion in denying Plaintiffs’ application for attorneys’

fees under the EAJA, we affirm the district court’s decision.

AFFIRMED.