Ardestani v. Immigration and Naturalization Service/Dissent Blackmun

by Harry Blackmun

Justice BLACKMUN, with whom Justice STEVENS joins, dissenting.

The Immigration and Naturalization Service (INS or the Service) put petitioner Ardestani through the ordeal of a deportation proceeding and attempted to return her to a land in which, the State Department had already determined, she had a well-founded fear of persecution for her religious convictions. The Service has since abandoned its argument that its position in this matter was "substantially justified." Instead, it now argues only that deportation proceedings are not among the class of proceedings for which the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 and 28 U.S.C. § 2412, authorizes awards of attorney's fees. The Court today accepts this contention, relying on the purportedly "plain" meaning of the statute and the canon that waivers of sovereign immunity are to be construed strictly.

I do not find the meaning of the relevant EAJA provisions "plain," nor do I agree that the Court's canon is applicable to the EAJA. In my view, deportation proceedings exemplify the kind of adjudications for which Congress authorized fee awards: The alien's stake in the proceeding is enormous (sometimes life or death in the asylum context); the legal rules surrounding deportation and asylum proceedings are very complex; specialized counsel are necessary but in short supply; and evidence suggests that some conduct on the part of the Government in deportation and asylum proceedings has been abusive. The Court's opinion is all the more troubling for me, because it suggests that the Court has forgotten its recent admonition that the EAJA must be construed "in light of its purpose to diminish the deterrent effect of seeking review of, or defending against, governmental action." Sullivan v. Hudson, 490 U.S. 877, 890, 109 S.Ct. 2248, 2257, 104 L.Ed.2d 941 (1989) (internal quotation omitted). Indeed, notably absent in the Court's opinion is any account of the statutory purpose that could be advanced by excluding deportation proceedings from EAJA coverage.

Proper application of established principles entitles Ardestani to a fee award. Accordingly, I dissent.

* The Court correctly observes that petitioner Ardestani's eligibility for EAJA fees depends upon whether a deportation proceeding qualifies as an "adversary adjudication." The Act defines that key term in § 504(b)(1)(C): " 'adversary adjudication' means . . . an adjudication under [5 U.S.C.] section 554 . . . in which the position of the United States is represented by counsel or otherwise." Because all agree that the position of the United States in fact was represented by counsel, the only issue is whether a deportation proceeding can be construed as "an adjudication under section 554," which is a part of the Administrative Procedure Act (APA).

Respondent INS argues that the phrase "adjudication under section 554" is unambiguous and can refer only to an adjudication "governed by" or "conducted under the authority of" § 554. The Service emphasizes this Court's holding in Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), that deportation proceedings are governed by the provisions of the Immigration and Nationality Act of 1952, rather than by § 554 or other provisions of the APA. Accordingly, the INS contends, a deportation proceeding is not an adjudication "under section 554" and therefore is not an "adversary adjudication" within the meaning of the EAJA.

The Court accepts this conclusion because it accepts the Service's crucial assumption that the statutory words "under section 554" have a single, "plain" meaning-the one that the INS urges. The statutory words might be given the interpretation the INS recommends, at least if those words are considered in isolation. That is not to say, however, that the statutory language is "plain" or "unambiguous."

In my view, the statutory context of the words "adjudication under section 554" suggests a very plausible alternative interpretation. These words appear as part of a definition for the compound term "adversary adjudication," namely, "an adjudication under section 554 . . . in which the position of the United States is represented by counsel or otherwise." This provision establishes a definition for both components of the term "adversary adjudication": The reference to representation of the Government's position "by counsel or otherwise" defines what makes an administrative proceeding adversary; the reference to § 554 defines what makes a procedure an adjudication.

The EAJA could have been drafted to specify explicitly the features that constitute an "adjudication" for fees purposes. The term "adjudication," however, already had an accepted meaning at the time the EAJA was enacted. Rather than reproduce that definition, Congress simply referred the reader, shorthand, to the features described in § 554, the APA section that defines a generic adjudication. The words "adjudication under section 554" plausibly mean "adjudication, as defined in section 554," or "adjudication, within the meaning of section 554," or, more literally, "adjudication, as defined under the heading of section 554."

Because the meaning of "adjudication under section 554" is ambiguous, we consult the EAJA's legislative history and decide between the two interpretations "in light of [the EAJA's] purpose to diminish the deterrent effect of seeking review of, or defending against, governmental action." Sullivan v. Hudson, 490 U.S., at 890, 109 S.Ct., at 2257 (internal quotation omitted).

The EAJA's purposes are clearly stated. The Report of the House Committee on the Judiciary notes that the high cost of legal assistance and the superior resources and expertise of the Federal Government precluded private parties from challenging or defending against unreasonable governmental action. H.R.Rep. No. 96-1418, pp. 9-10 (1980) (House Report). Fee awards were intended to address this problem: "When there is an opportunity to recover costs," the Committee noted, "a party does not have to choose between acquiescing to an unreasonable Government order or prevailing to his financial detriment." Id., at 12. Nor, the Committee observed, would the availability of attorney's fees vindicate only private interests. Because "a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy," the Committee recognized, adjudication may ensure the "legitimacy and fairness of the law." Id., at 10. Thus, removing disincentives to adjudication when the Government acts unreasonably both vindicates individual rights and curbs governmental excesses. Id., at 12.

Congress' description of the scope of "adversary adjudication" focuses on the "adversariness" requirement-the presence or absence of Government representation-rather than on whether or not § 554 technically governs an adjudication. Two of the three definitions offered in the EAJA Conference Report state only that an adversary adjudication is an adjudication where the agency has taken a position or is represented by counsel; they omit altogether any mention of § 554. See H.R.Rep. No. 96-1434, pp. 21, 23 (1980) (Conference Report). According to the third definition:

"The conference substitute defines adversary adjudication as an agency adjudication defined under the Administrative Procedures [sic ] Act where the agency takes a position through representation by counsel or otherwise. It is intended that this definition precludes an award in a situation where an agency, e.g., the Social Security Administration, does not take a position in the adjudication. If, however, the agency does take a position at some point in the adjudication, the adjudication would then become adversarial" (emphasis added). Id., at 23.

This definition repeats the Report's earlier focus on the presence or absence of counsel as the decisive factor in determining whether an adjudication is adversary. More important, in its use of the words "defined under," the Report suggests that an adjudication need not be governed by the APA, but only-as deportation proceedings surely do-correspond to the definition of an adjudication given in the APA.

Nowhere in the Committee Reports or in the floor debates is there any suggestion that the words "under section 554" were intended to exclude any particular agency's adjudications (let alone the INS's) from EAJA coverage. Nor was it ever discussed whether a particular agency's adjudications were or were not technically governed by § 554 or other provisions of the APA. Indeed, Congress seems to have given no attention whatsoever to whether particular administrative proceedings were adjudications, as opposed to, for example, rulemaking, ratemaking, or licensing proceedings. Instead, Congress' focus was on whether certain proceedings, universally assumed to be adjudications, were adversary that is, whether the Government was represented by counsel or had otherwise staked out a position. In short, the reference to § 554 seems to be nothing but a statutory "hook"-a convenient way to signal, in the statutory text, the essential and uncontroversial characteristics of an "adjudication."

This interpretation is confirmed by the one special case of agency proceedings that Congress examined with any particularity: Social Security Administration proceedings. This Court had refrained from deciding whether such proceedings are governed by § 554. See Richardson v. Perales, 402 U.S. 389, 409, 91 S.Ct. 1420, 1431, 28 L.Ed.2d 842 (1971). The EAJA Conference Report makes clear that, notwithstanding this uncertainty, Congress considered a Social Security Act administrative proceeding to be covered by the EAJA if the adjudication was "adversary," that is, if the United States had staked out a position. See Conference Report, at 23, quoted supra. The Conference Report on the EAJA's 1985 reenactment is to similar but stronger effect:

"As enacted in 1980, the Act covers 'adversary adjudications' i.e., an adjudication under section 554 of [5 U.S.C.] 'in which the position of the United States is represented by counsel or otherwise'. . . . While this language generally excludes Social Security administrative hearings from the Act, Congress made clear in 1980 that 'If . . . the agency does take a position at some point in the adjudication, the adjudication would then become adversarial,' [footnote omitted] and thus be subject to the Act. It is the committee's understanding that the Secretary of Health and Human Services has implemented an experiment in five locations in which the Secretary is represented at the hearing before the administrative law judge. This is precisely the type of situation covered by section 504(b)(1)(C). While, generally, Social Security administrative hearings remain outside the scope of this statute, those in which the Secretary is represented are covered by the Act" (first emphasis in original; others supplied). H.R.Rep. No. 99-120, pp. 10-11 (1985).

Thus, despite this Court's demurral regarding whether social security proceedings are technically governed by § 554, and without expressing any view whatsoever on this issue, Congress nevertheless stated that EAJA fees were appropriate. This circumstance strongly indicates that Congress did not intend EAJA coverage to depend upon whether § 554, rather than some functionally equivalent provision, technically governs the proceeding.

As noted above, this Court recently held in Sullivan v. Hudson that the EAJA is to be "read in light of its purpose to diminish the deterrent effect of seeking review of, or defending against, governmental action." 490 U.S., at 890, 109 S.Ct., at 2257. In particular, the Court held that while Social Security Administration proceedings on remand from federal district courts were not adversary adjudications, because the Government's position was not represented by counsel or otherwise, id., at 891, 109 S.Ct., at 2257, they were nevertheless "part and parcel" of the civil action, and thus were covered by the "civil action" provisions of the EAJA. Id., at 888, 109 S.Ct., at 2256.

In so holding, the Court rejected a plain meaning argument stronger than the one advanced here. The Government had argued that the term "civil action" unambiguously excluded administrative proceedings, and that the specific exclusion of social security provisions from administrative EAJA coverage precluded, by the principle of expressio unius est exclusio alterius, their coverage under civil action EAJA. ^[1] Id., at 891, 109 S.Ct., at 2257. The Court conceded that this contention was "not without some force," but went on to say that it did not "ris[e] to the level necessary to oust what we think is the most reasonable interpretation of the statute in light of its manifest purpose." Id., at 890, 109 S.Ct., at 2257.

The Court recognizes that there is no question that application of the EAJA to deportation proceedings would advance the Act's manifest purposes of protecting individuals' rights, deterring unjustified governmental action, and "help[ing] assure that administrative decisions reflect informed deliberation." House Report, at 12. Indeed, unjustified INS deportation proceedings are a classic example of a situation in which persons "may be deterred from seeking review of, or defending against unreasonable governmental action because of the expense involved" and the "disparity between the resources and expertise of these individuals and their government." House Report, at 5 and 6. An alien facing deportation generally is unfamiliar with the arcane system of immigration law, is often unskilled in the English language, and sometimes is uneducated; for these reasons, "deportation hearings are difficult for aliens to fully comprehend, let alone conduct, and individuals subject to such proceedings frequently require the assistance of counsel." Escobar Ruiz v. INS, 838 F.2d 1020, 1026 (CA9 1988) (en banc). In many areas, competent counsel is difficult to obtain. See Anker, Determining Asylum Claims in the United States, 2 Int'l J. of Refugee Law 252, 261 (1990). Evidence indicates that the INS has engaged in abusive litigation tactics. See Watson, No More "Independent Operators," Legal Times, May 14, 1990, p. 2 (quoting remark of Dennis Cook, then INS General Counsel, that "I have been told that some of my offices appeal every adverse decision regardless of the merits, . . . [and] that others refuse to have stipulations"); Note, Applying the Equal Access to Justice Act to Asylum Hearings, 97 Yale L.J. 1459, 1471 (1988) (describing an INS pattern of "vigorous opposition to adjudicated asylum claims, often irrespective of the merits").

Finally, the stakes for the alien involved in deportation proceedings-particularly in asylum cases-are enormous. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987). Under these circumstances, application of the EAJA to deportation proceedings clearly would fulfill the statute's purposes.

The Court states two reasons, however, for recanting on its recent recognition in Hudson that EAJA is to be read "in light of its manifest purpose." The first is its argument that "the plain language of the statute" compels the Court to deny fees to Ardestani. This argument, as I already have suggested above, is not persuasive, and is in any event less persuasive than the similar argument rejected in Hudson.

The additional reason the Court gives for departing from Hudson is the canon of statutory interpretation that waivers of sovereign immunity must be strictly construed. For good reason, this argument has not been accepted in any other EAJA case decided by this Court. The purposes of the canon are to protect the public fisc and to provide breathing space for legitimate Government action that might be deterred by litigation. But these purposes are already fulfilled by the EAJA's requirement that even prevailing parties may not be awarded fees unless the Government's position lacked substantial justification. The Report of the Senate Committee on the Judiciary makes clear that this provision was adopted precisely in order to reduce the bill's cost and to prevent "a 'chilling effect' on proper Government enforcement efforts." S.Rep. No. 96-253, p. 2 (1979). Congress therefore, in effect, already has applied the maxim on which the Court relies. The Court's reapplication of that maxim to restrict EAJA's scope still further is not merely superfluous, but is inconsistent with congressional intent. ^[2]

Because the Court accepts the INS's "plain meaning" and sovereign immunity arguments, it has no cause to address the Government's two remaining arguments. Both are easily resolved against the Government.

The INS suggests, first, that the Court owes deference to the Attorney General's determination that the EAJA does not apply to deportation proceedings. This Court has indicated, however, that reviewing courts do not owe deference to an agency's interpretation of statutes outside its particular expertise and special charge to administer. See Adams Fruit Co. v. Barrett, 494 U.S. 638, ---- - ----, 110 S.Ct. 1384, 1390-1391, 108 L.Ed.2d 585 (1990); see also Professional Reactor Operator Soc. v. NRC, 291 U.S.App.D.C. 219, 223, 939 F.2d 1047, 1051 (1991) (no deference to agency interpretation of APA, because agency not assigned special role by Congress in construing that statute). Because the EAJA, like the APA, applies to all agencies and is not administered by any one in particular, deference to the interpretation by any particular agency is inappropriate.

The INS argues, second, that a fee award in this case is proscribed by § 292 of the Immigration and Naturalization Act of 1952, which provides that a person involved in a deportation proceeding "shall have the privilege of being represented (at no expense to the Government) by such counsel . . . as he shall choose." 66 Stat. 235, 8 U.S.C. § 1362. The INS argues that this provision is a specific bar on fee shifting in deportation proceedings that necessarily overrides the EAJA's general fee-shifting policy. The legislative history of the EAJA clearly states, however, that the statute "applies to all civil actions except . . . those already covered by existing fee-shifting statutes." House Report, at 18. There is no reason to think that Congress would have held a different view regarding the EAJA's administrative provisions. Because the Immigration and Naturalization Act of 1952 contains no fee-shifting provisions, it cannot bar the EAJA's application.

Nor is the Government correct that this interpretation would effectively repeal § 292. The purpose of § 292 is to relieve the Government of any general obligation to appoint and pay counsel for indigent aliens. See Escobar Ruiz v. INS, 838 F.2d, at 1028. The purpose of the EAJA, on the other hand, is to reimburse persons who prevail in those cases where the Government's action was not substantially justified. By virtue of their different purposes, the two statutes may coexist. No alien has an automatic right to Government-appointed and Government-paid counsel. And in all cases where the Government's action is substantially justified the vast majority of cases, one would hope-the alien has no claim against the Government for attorney's fees.

In sum, EAJA's ambiguous definition of the term "adversary adjudication" can be read to support Ardestani's position; the legislative history confirms her interpretation; and the purposes of the EAJA, in whose light the Court heretofore has interpreted the statute, strongly favor the availability of attorney's fees in deportation proceedings. I can only

permanent change in its EAJA jurisprudence. I would hold that Ardestani is entitled to a fee award and would reverse the judgment of the Court of Appeals.

Notes

1. The argument was stronger in Hudson because the legislative history of administrative EAJA explicitly precluded its application to the social security proceedings involved in that case, and because the Court's argument against application of expressio unius was weaker than the argument made here against application of the sovereign immunity canon.
2. The 1985 House Report on EAJA's reenactment observed that the actual cost of awards in administrative adjudications was only a tiny fraction of what had originally been estimated. The 1980 House Report had projected $19.4 million in fiscal year (FY) 1982, $21.3 million in FY 1983, and $22.4 million in FY 1984, for a total of $63.1 million. See House Report, at 23. The actual outlays totaled only about $158,000-roughly one-quarter of one percent of the original estimate. See H.R.Rep. No. 99-120, pp. 8-9 (1985). The 1985 Report describes this situation as a "problem in implementing the Act" caused by overly narrow judicial and agency interpretations.