Ardestani v. Immigration and Naturalization Service/Opinion of the Court

by Sandra Day O'Connor

Petitioner Rafeh-Rafie Ardestani prevailed in an administrative deportation proceeding brought by respondent Immigration and Naturalization Service (INS). She sought attorney's fees and costs under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 and 28 U.S.C. § 2412, which provides that prevailing parties in certain adversarial proceedings may recover attorney's fees from the Government. We now consider whether the EAJA authorizes the award of attorney's fees and costs for administrative deportation proceedings before the INS. We conclude that it does not.

* Ardestani is an Iranian woman of the Bahai faith who entered the United States as a visitor in December 1982. She remained in this country lawfully until the end of May 1984 and then sought asylum. The United States Department of State informed the INS that Ardestani's fear of persecution upon return to Iran was well founded. In February 1986, however, the INS denied Ardestani's asylum application on the ground that, before entering the United States, she had reached a "safe haven" in Luxembourg and had established residence there. Ardestani advised the INS that she had been in Luxembourg only three days en route to the United States, that she had stayed in a hotel, and that she had never applied for residency in that country. Nonetheless, the following month, the INS issued an order to show cause why she should not be deported.

At the deportation hearing, Ardestani successfully renewed her application for asylum. She then applied for attorney's fees and costs under the EAJA. The immigration judge awarded attorney's fees in the amount of $1,071.85 based on his determination that Ardestani was the "prevailing party" in the adjudication and that the position of the INS in pursuing her deportation was not "substantially justified." The INS appealed the award of fees to the Board of Immigration Appeals. The Board vacated and denied the award on the ground that the Attorney General has determined that deportation proceedings are not within the scope of the EAJA. See 28 CFR § 24.103 (1991); 46 Fed.Reg. 48921, 48922 (1981) (interim rule). A divided Court of Appeals for the Eleventh Circuit denied Ardestani's petition for review and held that the EAJA does not apply to administrative deportation proceedings. Ardestani v. INS, 904 F.2d 1505 (1990).

We granted certiorari, 499 U.S. ----, 111 S.Ct. 1101, 113 L.Ed.2d 212 (1991), to resolve a conflict among the United States Courts of Appeals ^[1] and now affirm.

The EAJA provides that prevailing parties in certain adversary administrative proceedings may recover attorney's fees and costs from the Government. In pertinent part, 5 U.S.C. § 504(a)(1) provides that "[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." The EAJA 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." 5 U.S.C. § 504(b)(1)(C)(i). Section 554 of Title 5, in turn, delineates the scope of proceedings governed by the formal adjudication requirements of the Administrative Procedure Act (APA), see 5 U.S.C. §§ 556, 557, and sets forth some of those requirements. As both parties agree that the United States was represented by counsel in Ardestani's deportation proceeding, the sole question presented in this case is whether that proceeding was an adversary adjudication "under section 554" within the meaning of the EAJA.

Section 554(a) states that the provisions of that section apply to "every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," with six statutory exceptions not relevant here. Subsections (b) through (e) of § 554 establish the procedures that must be followed in the agency adjudications described in subsection (a). Although immigration proceedings are required by statute to be determined on the record after a hearing, 8 U.S.C. § 1252(b), we previously have decided that they are not governed by the APA. Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955).

In Marcello, we held that Congress intended the provisions of the Immigration and Nationality Act of 1952 (INA), 66 Stat. 163, as amended, 8 U.S.C. 1101 et seq., to supplant the APA in immigration proceedings. Two years before the enactment of the INA, we had concluded that immigration proceedings were subject to the APA. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950). Congress legislatively overruled that decision almost immediately afterward in a rider to the Supplemental Appropriation Act, 1951. 64 Stat. 1044, 1048 (1950). In Marcello, we had to determine whether, in revising the immigration laws in 1952 and repealing the rider, Congress had reversed its previous position and reinstated the holding of the Wong Yang Sung case. We held that the INA "expressly supersedes" the hearing provisions of the APA in light of "the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings." 349 U.S., at 310, 75 S.Ct., at 762.

Applying our precedent in Marcello, it is clear that Ardestani's deportation proceeding was not subject to the APA and thus not governed by the provisions of § 554. It is immaterial that the Attorney General in 1983 promulgated regulations that conform deportation hearings more closely to the procedures required for formal adjudication under the APA. 48 Fed.Reg. 8038-8040 (1983). Marcello does not hold simply that deportation proceedings are subject to the APA except for specific deviations sanctioned by the INA. Rather, Marcello rests in large part on the statute's prescription that the INA "shall be the sole and exclusive procedure for determining the deportability of an alien under this section." INA, § 242(b) (codified at 8 U.S.C. § 1252(b)) (emphasis added); Marcello, supra, 349 U.S., at 309, 75 S.Ct., at 761. Neither the analysis nor the decision in Marcello leaves open the possibility that the APA should displace the INA in the event that the regulations governing immigration proceedings become functionally equivalent to the procedures mandated for adjudications governed by § 554.

Ardestani's principal argument is that, for the purposes of the EAJA, deportation proceedings fall "under section 554" because, like the adjudications described in § 554(a), they are "required by statute to be determined on the record after opportunity for an agency hearing." She thus contends that the phrase "under section 554" encompasses all adjudications "as defined in" § 554(a), even if they are not governed by the procedural provisions established in the remainder of that section. We hold that the meaning of "an adjudication under section 554" is unambiguous in the context of the EAJA and does not permit the reading that Ardestani has urged upon us.

"The starting point in statutory interpretation is 'the language [of the statute] itself.' " United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring)). The word "under" has many dictionary definitions and must draw its meaning from its context. In this case, the most natural reading of the EAJA's applicability to adjudications "under section 554" is that those proceedings must be "subject to" or "governed by" § 554. Indeed, in addition to the court below, six United States Courts of Appeals have determined that the plain and ordinary meaning of "under" as it appears in the EAJA is that proceedings must be governed by the procedures mandated by the APA. See cases cited n. 1, supra. As one court has observed, the word "under" appears several times in the EAJA itself, and "[i]n other locations, no creative reading is possible-'under' means 'subject [or pursuant] to' or 'by reason of the authority of.' " St. Louis Fuel and Supply Co. v. FERC, 281 U.S.App.D.C. 329, 333, 890 F.2d 446, 450 (1989). ^[2]

The "strong presumption" that the plain language of the statute expresses congressional intent is rebutted only in "rare and exceptional circumstances," Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981), when a contrary legislative intent is clearly expressed. INS v. Cardoza-Fonseca, 480 U.S. 421, 432, n. 12, 107 S.Ct. 1207, 1213, n. 12, 94 L.Ed.2d 434 (1987); Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In this case, the legislative history cannot overcome the strong presumption " 'that the legislative purpose is expressed by the ordinary meaning of the words used.' " American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982) (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962)). While it is possible, as Ardestani contends, that Congress' only intent in defining adversary adjudications was to limit EAJA fees to trial-type proceedings in which the Government is represented, Congress chose to refer to adversary adjudications "under section 554." Section 554 does not merely describe a type of agency proceeding; it also prescribes that certain procedures be followed in the adjudications that fall within its scope. We must assume that the EAJA's unqualified reference to a specific statutory provision mandating specific procedural protections is more than a general indication of the types of proceedings that the EAJA was intended to cover.

We are unable to identify any conclusive statement in the legislative history regarding Congress' decision to define adversary adjudications under the EAJA by reference to § 554, much less one that would undermine the ordinary understanding of the phrase "under section 554." It is not enough that the House Conference Committee Report on the EAJA states, without further comment, that adversary adjudications are "defined under" the APA. H.R.Conf.Rep. No. 96-1434, p. 23 (1980). Although it is conceivable that "defined under" means that Congress intended adversary adjudications covered by the EAJA to be those "as defined by" the APA, it could just as easily mean that covered adjudications are "defined as those conducted under" the APA. We are similarly unpersuaded that Congress meant to institute a substantive rather than a semantic change when, without explanation, it changed the draft section of the EAJA defining "adversary adjudication" from "an adjudication subject to section 554," S.Rep. No. 96-253, p. 24 (1979) (emphasis added), to "an adjudication under section 554."

Our conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language is reinforced in this case by the limited nature of waivers of sovereign immunity. The EAJA renders the United States liable for attorney's fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity. Any such waiver must be strictly construed in favor of the United States. Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686, 103 S.Ct. 3274, 3277-3278, 77 L.Ed.2d 938 (1983).

Because we conclude that administrative immigration proceedings do not fall "under section 554" and therefore are wholly outside the scope of the EAJA, this case is distinguishable from those cases in which we have recognized that, once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to "assume the authority to narrow the waiver that Congress intended." United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979); see, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. ----, ----, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990) ("Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver."); Sullivan v. Hudson, 490 U.S. 877, 892, 109 S.Ct. 2248, 2258, 104 L.Ed.2d 941 (1989) (holding that Social Security administrative proceedings held on remand from a district court order "are an integral part of the 'civil action' for judicial review," and thus that attorney's fees for representation on remand are available under the civil action provisions of the EAJA, 28 U.S.C. § 2412).

Finally, we consider Ardestani's argument that a functional interpretation of the EAJA is necessary in order to further the legislative goals underlying the statute. The clearly stated objective of the EAJA is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of Government authority. Congressional Findings and Purposes, 94 Stat. 2325, note following 5 U.S.C. § 504; H.R.Rep. No. 96-1418, pp. 10, 12 (1980); S.Rep. No. 96-253, supra, at 5; Commissioner, INS v. Jean, 496 U.S. ----, ----, 110 S.Ct. 2316, ----, 110 L.Ed.2d 134 (1990).

We have no doubt that the broad purposes of the EAJA would be served by making the statute applicable to deportation proceedings. We are mindful that the complexity of immigration procedures, and the enormity of the interests at stake, make legal representation in deportation proceedings especially important. We acknowledge that Ardestani has been forced to shoulder the financial and emotional burdens of a deportation hearing in which the position of the INS was determined not to be substantially justified. But we cannot extend the EAJA to administrative deportation proceedings when the plain language of the statute, coupled with the strict construction of waivers of sovereign immunity, constrain us to do otherwise.

Congress has twice expanded the EAJA's definition of "adversary adjudications" to include proceedings previously considered to be outside the EAJA's coverage. In 1985, Congress legislatively overruled Fidelity Construction Co. v. United States, 700 F.2d 1379 (CA Fed.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983), by amending § 504(b)(1)(C) to add certain proceedings under the Contract Disputes Act of 1978. See Pub.L. No. 99-80, § 1(c)(2)(B), 99 Stat. 184. In 1986, Congress amended the same section to add proceedings under the Program Fraud Civil Remedies Act of 1986. See Pub.L. No. 99-509, § 6103(c), 100 Stat.1948. In this case as well, it is the province of Congress, not this Court, to decide whether to bring administrative deportation proceedings within the scope of the statute.

We hold that administrative deportation proceedings are not adversary adjudications "under section 554" and thus do not fall within the category of proceedings for which the EAJA has waived sovereign immunity and authorized the award of attorney's fees and costs. We thus need not reach the Court of Appeals' alternative holding that the EAJA's fee-shifting provisions are precluded by § 292 of the INA, 8 U.S.C. § 1362, which provides that an individual in an administrative deportation proceeding may be represented by counsel "at no expense to the Government." The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice THOMAS took no part in the consideration or decision of this case.

Justice BLACKMUN, with whom Justice STEVENS joins, dissenting.

Notes

1. Five other Courts of Appeals agree with the court below that the EAJA does not apply to administrative deportation proceedings. Hashim v. INS, 936 F.2d 711 (CA2 1991), cert. pending, No. 91-207; Escobar v. INS, 935 F.2d 650 (CA4 1991); Hodge v. United States Dept. of Justice, 929 F.2d 153 (CA5 1991), cert. pending, No. 91-83; Full Gospel Portland Church v. Thornburgh, 288 U.S.App.D.C. 356, 927 F.2d 628 (1991), cert. pending, No. 91-494; Clarke v. INS, 904 F.2d 172 (CA3 1990); accord Owens v. Brock, 860 F.2d 1363 (CA6 1988) (using similar analysis to hold that Federal Employees Compensation Act benefit determinations are not covered by the EAJA). The Court of Appeals for the Ninth Circuit has determined that administrative deportation proceedings are within the scope of the EAJA. Escobar Ruiz v. INS, 838 F.2d 1020 (1988) (en banc).
2. E.g., 5 U.S.C. § 504(a)(2) ("A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section . . ."); § 504(c)(2) ("If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a) . . ."); § 504(d) ("Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.") (emphases added).