# Rafeh-Rafie Ardestani v. United States Department of Justice, Immigration and Naturalization Service > Court of Appeals for the Eleventh Circuit · July 6, 1990 · 904 F.2d 1505 URL: https://www.frixlaw.com/law-library/cases/9480417 ## Case - **Full name:** Rafeh-Rafie ARDESTANI, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** July 6, 1990 - **Citations:** 904 F.2d 1505; 1990 U.S. App. LEXIS 11234; 1990 WL 82267 - **Precedential status:** Published - **Opinion:** Dissent by Pittman - **Judges:** Fay, Roney, Pittman - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480417 ## How later opinions describe it (automated extraction) - stating that a statute that "waives sovereign immunity in allowing attorney fees against the United States ... must be construed strictly" - finding no conflict between a provision to remove common law and sovereign immunity barriers and earlier provisions barring fee shifting - noting that district courts must dismiss claims when it lacks subject matter jurisdiction ## Opinion text PITTMAN, Senior District Judge, dissenting: I dissent from the majority’s holding and would adopt the holding and rationale of Escobar Ruiz v. I.N.S., 838 F.2d 1020 (9th Cir.1988) (en banc), aff'g, 813 F.2d 283 (9th Cir.1987). In my opinion, the majority’s decision overlooks Congress’ basic purpose in enacting the Equal Access to Justice Act (EAJA). EAJA provides for the payment of attorney fees arising out of an adversary adjudication before a government agency unless the government’s position was substantially justified. See 5 U.S.C. § 504 (a)(1). In 1980, Congress enacted EAJA and, in 1985, reaffirmed and made permanent the provisions of the Act. The legislative history of the Act demonstrates that the basic purpose of the Act was “to reduce the deterrents and disparity by entitling certain prevailing parties to recover an award of attorney fees, ... against the United States, unless the Government action was substantially justified.” H.R.Rep. No. 1418, 96th Cong., 2d Sess. 6 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 4984. See H.R. No. 120, 99th Cong., 1st Sess. 4 (1985), reprinted in 1985 U.S.Code Cong. & Admin.News 132-33. This language evidences Congress’ intent that a private party who prevails against unwarranted government action such as that exhibited in this case would be allowed to recover the funds expended to vindicate her rights. The facts of this case demonstrate the type of totally unjustified actions on the part of a government agency that Congress envisioned would be covered by EAJA. The Appellee, INS, denied the Appellant’s request for political asylum and began deportation proceedings against the Appellant even though the INS knew that the State Department had determined that the Appellant had a well founded fear of persecution. This circuit in Jean v. Nelson, 863 F.2d 759 (11th Cir.1988), awarded attorney fees following challenged INS hearings under the EAJA. The three predicate findings necessary to award fees and expenses under the EAJA set out in that case have been met in this case. Section 504(a)(1) applies to “adversary adjudications” before a government agency. The statute defines an “adversary adjudication” as “an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license,_” 5 U.S.C. § 504 (b)(1)(C). The legislative history of this section indicates that Congress intended an “adversary adjudication” to be defined as “an agency adjudication defined under the Administrative Procedures Act [section 554] where the agency takes a position through representation by counsel or otherwise.” H.R.Conf.Rep. No. 1434, 96th Cong., 2d Sess. 23 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 5003, 5012. 1 An adversary adjudication “defined *1516 under” section 554 is an adjudication “required by statute to be determined on the record after opportunity for an agency hearing, ...” 5 U.S.C. § 554 (a). See Smedberg Machine & Tool, Inc. v. Donovan, 730 F.2d 1089, 1092 (7th Cir.1984); Cornelia v. Schweiker, 728 F.2d 978, 988 (8th Cir.1984). The deportation proceedings instituted by the Appellee were required by statute and “made only upon a record in a proceeding before a special inquiry officer, at which the alien shall have reasonable opportunity to be present, ...” 8 U.S.C. § 1252 (b). The deportation proceedings fall squarely within the definition of an “adversary adjudication” defined under section 554 and are therefore covered by EAJA. This construction of EAJA is consistent with the recommendations of the Administrative Conference of the United States (ACUS). In drafting model rules to be used by administrative agencies in implementing EAJA, ACUS stated that “considering the purposes of the Equal Access to Justice Act, questions of its coverage should turn on substance — the fact that a party has endured the burden and expense of a formal hearing — rather than technicalities.” 46 Fed.Reg. 32,901 (1981). The position taken by the majority contradicts this language because the decision focuses on the technicality of “under section 554” instead of examining the substance of the deportation proceedings which clearly fall within the definition of an “adversary adjudication” contained within section 554. The majority’s opinion relies heavily on Marcello v. Bonds, 349 U.S. 302 , 75 S.Ct. 757 , 99 L.Ed. 1107 (1955). I disagree with the majority’s application of Marcello to this case. Marcello states, “[exemptions from the terms of the Administrative Procedure Act are not lightly to be presumed. ...” and then restricted its decision and departure to the procedure for deportation hearings. Marcello, 349 U.S. at 310 , 75 S.Ct. at 726 (emphasis added). The court then stated, “the present statute expressly supercedes the hearing provisions of that Act.” Id. (emphasis added). Nevertheless, the deportation proceedings are agency adjudications of the type defined under section 554. Therefore, the Supreme Court’s decision in Marcello is not inconsistent with the Ninth Circuit’s decision in Escobar Ruiz. Escobar addressed Marcello’s treatment of the issue of whether deportation proceedings were subject to the hearing provisions of the APA. Finally, the recovery of attorney fees pursuant to EAJA is not in conflict with nor precluded by section 292 of the Immigration and Nationality Act. 2 Section 292 is designed to prevent the appointment of counsel for indigent aliens in the process of exclusion or deportation proceedings. See generally, Perez-Perez v. Hanberry, 781 F.2d 1477 (11th Cir.1986). This provision does not conflict with EAJA which only allows recovery by a prevailing party when the government’s actions are without substantial justification. The legislative history of section 292 does not clearly demonstrate that the section was intended as a complete and total bar to the collection of fees in deportation proceedings. See H.R. Rep. No. 1365, 82nd Cong., 2d Sess. (1952), reprinted in 1952 U.S.Code Cong. & Admin.News 1653, 1712. *1517 Where the legislative history is such, as here, that it can be persuasively construed to support two conflicting views between persons of good faith, it appears to me that the court should look to the broad purposes and intent of the statute to grant attorney fees and expenses rather than strangle the law’s purpose by a hypercritical interpretation and application of the law. For these reasons, I dissent from the majority’s holding. . The majority’s decision relies upon St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446, 449-51 *1516 (D.C.Cir.1989). In St. Louis Fuel & Supply Co., the court examined the language of section 504(b)(1)(C) and determined that the above quoted legislative history did not support the proposition that adversary adjudications not governed by the APA were subject to the provisions of EAJA. St. Louis Fuel & Supply Co., 890 F.2d at 450 . The court's rationale was that the version of the Act passed by the Senate contained the language "subject to” instead of "under" and that the House Judiciary Committee’s Report indicated that "under” meant "subject to.” Id. This conclusion ignores the plain language "defined under the Administrative Procedure Act” contained in the legislative history of section 504(b)(1)(C). . Section 292 provides that: [i]n any exclusion or deportation proceedings before- a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings. 8 U.S.C. § 1362 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480417. Public record. Not legal advice.