In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3197
F RANCIS G ATIMI, et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General of the
United States,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
Nos. A96-495-092 to -094
On Motion for an Award of Attorneys’ Fees and Costs
M AY 17, 2010
Before P OSNER, R IPPLE, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. In a previous opinion we granted
the petition for review filed by Francis Gatimi and his
wife and daughter and remanded the case to the Board
of Immigration Appeals. Gatimi v. Holder, 578 F.3d 611
(7th Cir. 2009). The Gatimis now seek an award of
2 No. 08-3197
attorneys’ fees and costs under the Equal Access to Justice
Act, 28 U.S.C. § 2412(d)(1)(A), which directs a court to
award a prevailing party in a litigation with the United
States, “including proceedings for judicial review of agency
action,” his attorneys’ fees and other expenses “unless the
court finds that the position of the United States was
substantially justified or that special circumstances make
an award unjust.” Id.; see Potdar v. Holder, 585 F.3d 317,
319 (7th Cir. 2009). “The case must have sufficient merit to
negate an inference that the government was coming
down on its small opponent in a careless and oppressive
fashion.” United States v. Thouvenot, Wade & Moerschen, Inc.,
596 F.3d 378, 381-82 (7th Cir. 2010).
We reversed the Board of Immigration Appeals on both
issues presented by the petition for review: we rejected
the Board’s ruling that the petitioners had to show that
their “social group” was “socially visible” and we held
that Mrs. Gatimi’s fear of female genital mutilation was
supported by the record and relevant to the asylum claim.
The petitioners point to the “strong language” in our
opinion, see Golembiewski v. Barnhart, 382 F.3d 721, 724
(7th Cir. 2004), to our characterization of the immigration
judge’s determination that Mr. Gatimi did not suffer
persecution as “absurd,” and to our statement that the
immigration judge’s position on Mrs. Gatimi’s fear of
female genital mutilation “lapsed into incoherence.”
Until today we’ve found it unnecessary to decide
whether in immigration cases the “position of the United
States” as that phrase is used in the Equal Access to Justice
Act denotes only the position taken by the government
No. 08-3197 3
in judicial review proceedings or whether it also includes
the underlying decision by the agency—namely the Board
of Immigration Appeals—of which judicial review is
sought. Kholyavskiy v. Holder, 561 F.3d 689, 691 n. 3 (7th Cir.
2009); Potdar v. Holder, supra, 585 F.3d at 319 n. 1;
Tchemkou v. Mukasey, 517 F.3d 506, 509 n. 1 (7th Cir. 2008).
The issue is inescapable in this case.
Each of the three courts of appeals to have considered
the question has held that the position of the United States
does include the Board’s decision. Thangaraja v. Gonzales,
428 F.3d 870, 873-74 (9th Cir. 2005); Kiareldeen v. Ashcroft,
273 F.3d 542, 545 (3d Cir. 2001); Barwari v. Mukasey, 282 Fed.
Appx. 896, 897-98 (2d Cir. 2008) (per curiam). (Only the first
two decisions are precedential, however.) The Act itself
says that the “ ’position of the United States’ means,
in addition to the position taken by the United States
in the civil action, the action or failure to act by the agency
upon which the civil action is based.” 28 U.S.C.
§ 2412(d)(2)(D); see Marcus v. Shalala, 17 F.3d 1033, 1036
(7th Cir. 1994); Cummings v. Sullivan, 950 F.2d 492, 497
(7th Cir. 1991); Hardisty v. Astrue, 592 F.3d 1072, 1076-77 (9th
Cir. 2010); Hackett v. Barnhart, 475 F.3d 1166, 1170 (10th Cir.
2007); Role Models America, Inc. v. Brownlee, 353 F.3d 962,
967 (D.C. Cir. 2004); McDonald v. Secretary of HHS, 884
F.2d 1468, 1475-76 (1st Cir. 1989). The Chenery doctrine
binds the government’s lawyers in judicial review
proceedings to the grounds of the agency’s decision,
SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943); Parker v.
Astrue, 597 F.3d 920, 922 (7th Cir. 2010); Benitez Ramos
v. Holder, 589 F.3d 426, 430 (7th Cir. 2009), so that unless
they confess error on the agency any lack of substantial
4 No. 08-3197
justification in the grounds they advance is due to the
agency; the agency, not the appellate lawyers, thus
determines the “position of the United States.” (Nor do the
government lawyers argue otherwise.) Neither in this
regard, nor in any other that occurs to us, is there any
difference between immigration cases and other agency
cases.
The Board affirmed the immigration judge’s holding that
defectors from Mungiki, the group in which Mr. Gatimi
claimed membership, were not a “particular social group”
for asylum purposes, because of the group’s lack of “social
visibility.” The immigration judge had further held that
Mr. Gatimi had not proved persecution—that his
kidnapping and torture were merely mistreatment. That
was the ruling we had called “absurd.” But the Board had
not affirmed it and the government’s lawyer did not rely on
it in this court; and the mistake of a subordinate agency
official is not automatically the “position of the United
States.” Of course “fees may be awarded in cases where the
government’s prelitigation conduct was not substantially
justified even though its litigating position may have been
substantially justified and vice versa.” Marcus v. Shalala, 17
F.3d 1033, 1036 (7th Cir. 1994). The fact that the government
has a substantially justified basis for arguing that the
agency’s decision was substantially justified doesn’t make
the agency’s decision substantially justified. Hackett
v. Barnhart, supra, 475 F.3d at 1174; Thangaraja v. Gonzales,
supra, 428 F.3d at 875-76 n. 1 (9th Cir. 2005). (This result is
implicit in the Supreme Court’s decision in Commissioner
v. Jean, discussed later in this opinion.)
No. 08-3197 5
But that is not this case. The Board wasn’t defending an
untenable ruling by the immigration judge, but rejecting
it. The immigration judge’s ruling was only an element of
the overall position of the United States—more precisely
perhaps, a stumble on the way to the formulation of that
position—because the Board and the government’s lawyer
rejected it. It is not an adequate basis for an award of fees.
We rejected the Board’s use of “social visibility” to
determine membership in a social group because it was
inconsistent with the Board’s basic test for a social group,
and with our decisions. But although we thus rejected the
government’s position on that issue, it was, we think,
substantially justified. “[U]ncertainty in the law arising
from conflicting authority or the novelty of the question
weighs in the government’s favor when analyzing the
reasonableness of the government’s litigation position.”
Kholyavskiy v. Holder, supra, 561 F.3d at 691, quoting Marcus
v. Shalala, supra, 17 F.3d at 1037. We hadn’t previously
addressed the Board’s use of the social-visibility criterion
for membership in a social group. And our opinion
acknowledged that five other circuits had approved that
use. That brings this case within the scope of cases
such as Krecioch v. United States, 316 F.3d 684, 689 (7th Cir.
2003), which found the government’s position substantially
justified in part because it was “supported by precedent
from other federal circuits.” See Holland v. Williams
Mountain Coal Co., 496 F.3d 670, 676-77 (D.C. Cir. 2007);
Taucher v. Brown-Hruska, 396 F.3d 1168, 1178, (D.C. Cir.
2005); Koch v. Dept. of Interior, 47 F.3d 1015, 1021 (10th Cir.
1995); Younger v. Secretary of HHS, 910 F.2d 319, 321 (6th
Cir. 1990) (per curiam).
6 No. 08-3197
But the qualification “in part” needs to be underscored.
Gutierrez v. Barnhart, 274 F.3d 1255, 1261 (9th Cir. 2001),
holds sensibly that if the government’s position is
unreasonable, an award of fees cannot be withheld even
if the case is novel. The fact that a legal question has
never arisen before doesn’t mean that it must be a
question to which reasonable people could give different
answers. Maybe the question didn’t arise because the
answer was obvious.
The immigration judge dismissed as lacking an objective
basis Mrs. Gatimi’s fears of being subjected to
female genital mutilation if returned to Kenya. The
government’s lawyer in this court went further, arguing
that because Mrs. Gatimi had not applied for asylum
herself the only basis on which she could obtain
asylum was persecution of her husband. We rejected each
variant of the government’s position. The immigration
judge’s discussion of the claim had “lapsed into
incoherence.” 578 F.3d at 614. And contrary to the Board’s
statement in affirming the immigration judge that there
was no evidence to support the claim, we cited evidence
that the “Mungiki will track Mrs. Gatimi down and
subject her to the procedure and that the Kenyan police
will not interfere.” Id. at 618.
We explained that persecution of Mrs. Gatimi can
constitute persecution of Mr. Gatimi, and so her fear of
persecution is relevant to his (and therefore their) claim for
asylum. “Genital mutilation of one’s wife, unless one
happens to be a supporter of the practice, is a way to punish
one, and so the menace to Mrs. Gatimi is a legitimate
No. 08-3197 7
component of Mr. Gatimi’s case.” Id. at 617. The
government relied on cases holding that a petitioner is not
eligible for asylum because of fear of her child’s being
subjected to female genital mutilation upon removal. Olowo
v. Ashcroft, 368 F.3d 692, 701 (7th Cir. 2004); Oforji v.
Ashcroft, 354 F.3d 609, 616 (7th Cir. 2003); In re A-K-, 24 I. &
N. Dec. 275, 277 (BIA 2007). But in those cases the children
had one parent with legal status and so were not subject to
removal. Mrs. Gatimi was subject to removal with Mr.
Gatimi, so there was no possibility of her remaining in the
United States and thus avoiding the risk of being subjected
to female genital mutilation. The government had no
legal or factual support for its position at any level of
the proceedings.
Thus of the two issues in this case the government’s
position was substantially justified with respect to only
one. Although we can imagine trying to allocate fees across
issues in such a case, we can’t find a case in which that’s
been done. The cases just ask whether the government’s
position was substantially justified as a whole, Potdar v.
Holder, supra, 585 F.3d at 325-26; Al-Harbi v. INS, 284 F.3d
1080, 1085 (9th Cir. 2002) (per curiam); Roanoke River Basin
Ass’n v. Hudson, 991 F.2d 132, 139-40 (4th Cir. 1993), and if
it is they deny any award of fees. The provision authorizing
the district court, “in its discretion,” to “reduce the amount
to be awarded pursuant to this subsection, or deny an
award, to the extent that the prevailing party during the
course of the proceedings engaged in conduct which
unduly and unreasonably protracted the final resolution of
the matter in controversy,” 28 U.S.C. § 2412(d)(1)(C),
8 No. 08-3197
presupposes an entitlement to some award of fees under the
Act, and the question in this case is whether there is such an
entitlement.
The Supreme Court said in Commissioner v. Jean, 496 U.S.
154, 161-62 (1990), that “while the parties’ postures on
individual matters may be more or less justified,
the EAJA—like other fee-shifting statutes—favors treating
a case as an inclusive whole, rather than as atomized line-
items.” This statement has persuaded a number of courts
that “substantial justification” (except in cases in which
the party seeking fees “engaged in conduct which
unduly and unreasonably protracted the final resolution
of the matter in controversy”) is all or nothing: no fee can be
awarded even though the government imposed needless
expense on its opponent by making meritless arguments,
p r o v id e d t ha t it s p o s it io n as a w h o le w a s
substantially justified. United States v. Heavrin, 330 F.3d 723,
730 (6th Cir. 2003); Gutierrez v. Barnhart, supra, 274 F.3d
at 1258-59; Roanoke River Basin Ass’n v. Hudson, supra,
991 F.2d at 139. Yet the issue in Commissioner v. Jean was
not allocation; it was whether the government could resist
an award on the ground that although its position in the
underlying case had not been substantially justified,
its opposition to the application for fees had been
substantially justified; the Court rejected this defense. As
we said earlier, the fact that there is a substantial
justification for arguing that the government’s position
was substantially justified doesn’t make that position
substantially justified. A criminal lawyer may be
substantially justified in pressing an appeal for his client,
No. 08-3197 9
rather than filing an Anders brief and by doing so
acknowledging that there is no nonfrivolous ground for
appeal; but that doesn’t mean his client is innocent.
United States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996), says
that in cases under the Equal Access to Justice Act
“there may well be situations in which the government is
justified initially but its subsequent unjustified actions
merit an award of attorney’s fees for the unjustified portion
of the conduct” (emphasis added). Such adjustments are of
course the norm under other fee-shifting statutes, e.g.,
Hensley v. Eckerhart, 461 U.S. 424, 436 (1933), and the
Supreme Court in Commissioner v. Jean relied on Hensley
and other cases under fee-shifting statutes other than the
Equal Access to Justice Act for help in interpreting that Act.
496 U.S. at 161-62.
It is perilous to take judicial language out of context.
Commissioner v. Jean does not address the question whether
allocation is permissible under the Equal Access to Justice
Act, thus allowing an award of fees for the part of
the government’s case that was not substantially justified.
The question merits further consideration. It is not obvious
that if the government loses after advancing two good
grounds and one bad one its opponent should get nothing
but if the government loses after advancing one good
ground and two bad ones its opponent should get 100
percent of the fees he incurred (provided they were
reasonable in amount and he hadn’t unduly protracted
the litigation). Against this it can be argued that to attempt
such an allocation would be cutting things too fine
and would be in tension with the rule that waivers of
10 No. 08-3197
sovereign immunity should be narrowly construed. E.g.,
McMahon v. United States, 342 U.S. 25, 27 (1951).
This is not the case in which to try to resolve the issue.
The Gatimis are not asking for an allocation. They want all
or nothing. The social-divisibility issue was the more
prominent issue and the government’s position on that
issue was justified, and we therefore conclude that the
government’s position was substantially justified as a
whole, and on that basis we deny the motion for attorneys’
fees.
The petitioners’ request for an award of costs, to which
we now turn, was untimely. Rule 39(d)(1) of the Federal
Rules of Appellate Procedure provides that “a party who
wants costs taxed must—within 14 days after entry of
judgment—file with the circuit clerk, with proof of service,
an itemized and verified bill of costs.” The petitioners ask
us to treat “entry of judgment” in Rule 39 as the Equal
Access to Justice Act treats “final judgment”: a motion for
attorney’s fees must be filed “within thirty days of final
judgment,” defined as a judgment “that is final and not
appealable.” 28 U.S.C. § 2412(d)(1)(B), (d)(2)(G). But “entry
of judgment” is not the same thing as “final judgment.”
Rule 36 says that “a judgment is entered when it is noted
on the docket.” Fed. R. App. P. 36(a). The judgment in
this appeal was entered on August 20; the petitioners’
motion for costs was filed 92 days later.
Nor have the petitioners shown “good cause” for our
extending the deadline. Fed. R. App. P. 26(b). They say
their tardiness was due not to dilatory conduct but to a
reasonable belief that judgment had not been entered.
No. 08-3197 11
The belief was not reasonable. Rule 36 is explicit that
“judgment is entered when it is noted on the docket.”
The motion for attorneys’ fees and costs is D ENIED.
5-17-10