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American Academy of Religion, et al v. Napolitano

March 25, 2011

AMERICAN ACADEMY OF RELIGION, ET AL.,
v.
NAPOLITANO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY DOCUMENT

OPINION & ORDER

The American Academy of Religion, American Association of University Professors, Pen American Center, and Tariq Ramadan (collectively, "Plaintiffs"), move for attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, owed to counsel, the American Civil Liberties Union ("ACLU"). After negotiating in good faith, the parties were unable to reach an agreement on attorney fees. Plaintiffs submit that, in an effort to reduce the burden on the Court's limited resources, they have submitted a reasonable fee request by (1) diligently reviewing their time sheets for accuracy; (2) excluding time worked by all staff other than the four principal attorneys; (3) excluding all expenses and costs, to which they are entitled; and (4) billing only for time spent on the initial phase of the litigation, that is, pre-litigation research, the complaint, and the preliminary injunction motion decided on June 23, 2006. See Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400 (S.D.N.Y. 2006); (Mot. in Supp. 2). Plaintiffs request $392,103.75 for time spent by the four principal attorneys on the initial phase of the case. Plaintiffs assert that they totaled thousands of hours of work but request compensation for only 859.8 hours.

The Government opposes this request, arguing that the Plaintiffs were not "prevailing parties" entitled to relief; that the Government's position was sufficiently justified; that Plaintiffs' request exceeds the scope of the claims on which they were successful; and that Plaintiffs are not entitled to market rate compensation.

Plaintiffs' application is denied. They were not prevailing parties within the meaning of the controlling statute. The Court did direct the Government to reach a decision on Professor Ramadan's visa application; but that was not the relief sought in bringing the litigation. The Order was merely one step, and a preliminary one, in a process to put the issue in position for an appropriate decision. It was not part of the relief requested. Additionally, the Government's position was substantially justified.

I. Background

The facts were fully set forth in the Court's Opinions of June 23, 2006 and December 20, 2007 opinion. See Am. Acad. of Religion v. Chertoff, No. 06 CV 588 (PAC), 463 F. Supp. 2d 400 (S.D.N.Y. 2006) and 2007 U.S. Dist. LEXIS 93424 (S.D.N.Y. Dec. 20, 2007). They are briefly summarized here and supplemented by the pertinent facts that have since occurred.

Tariq Ramadan,a distinguished and respected Muslim scholar, accepted a position as a tenured professor at the University of Notre Dame ("Notre Dame") in January 2004. Upon Ramadan's acceptance, Notre Dame submitted a temporary work visa petition on his behalf, which was initially approved by the United States Department of State ("State Department") on May 5, 2004. Shortly before Professor Ramadan's scheduled move, however, his visa was revoked without explanation. A spokesman for the Immigration and Customs Enforcement Division of the Department of Homeland Security ("DHS") stated to the media that the basis of the revocation was the Patriot Act's provision permitting the United States to exclude any person who used a "position of prominence within any country to endorse or espouse terrorist activity." Muslim Scheduled to Teach at Notre Dame Has Visa Revoked, L.A. Times, Aug. 25, 2004, at A23. Unable to acquire a visa in time for the academic year, Professor Ramadan was forced to resign his teaching position at Notre Dame on December 13, 2004.

On September 16, 2005, Ramadan applied for a nonimmigrant visa which would allow him to enter the United States for short periods of time to attend academic events. As part of his application, Ramadan appeared for two interviews, during which he revealed that between 1998 and 2002 he made donations totaling 1,670 Swiss francs (approximately $1,336 dollars) to the Association de Secours Palestinien ("ASP"), which the U.S. Department of the Treasury listed as an entity that supports terrorism by providing funding to Hamas and a "Specially Designated Global Terrorist."

No decision was made on the nonimmigrant visa application, and on January 25, 2006, Plaintiffs filed this lawsuit challenging Professor Ramadan's ongoing exclusion from the United States. Almost two months later, with still no decision on the pending application, Plaintiffs filed a motion for a preliminary injunction. The Court rejected the Government's arguments that the plaintiffs lacked standing and that the doctrine of consular non-reviewability barred judicial review, and on June 23, 2006 ordered the Government to decide the pending visa application, one way or the other, within ninety days. Am. Acad. of Religion, 463 F. Supp. 2d 400. On September 19, 2006, the Government officially denied the visa because Professor Ramadan had contributed money to an organization that provided material support to a terrorist organization.

On February 2, 2007, Plaintiffs amended their complaint to challenge the denial of Ramadan's visa on the grounds that the Government's proffered reason for denying the visa was not facially legitimate and bona fide, and to assert a claim that the "endorse or espouse" provision of the Patriot Act was unconstitutional under the First and Fifth Amendments. The Court granted Defendants' motion for summary judgment. The Government provided a facially legitimate and bona fide reason for Professor Ramadan's exclusion, and the Court lacked authority to override the decision. The admissibility of aliens is a political question with limited judicial reviewability. Am. Acad. of Religion, 2007 U.S. Dist. LEXIS 93424, at *50.

On appeal, the Second Circuit vacated and remanded, finding it unclear whether the government had advised Professor Ramadan that ASP provided material support to a terrorist organization and allowed him an opportunity to demonstrate that he did not know. See Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009). On remand, the parties stipulated that the Government would "consider the exercise of discretionary authority relative to the facts underlying the 2006 denial of Ramadan's visa." Professor Ramadan was subsequently granted a 10-year multiple entry visa and the case was dismissed. (Jaffer Decl. ¶ 10 Ex. C).

Plaintiffs filed their first motion for attorney fees and expenses on April 12, 2010, claiming compensation for all aspects of the litigation. This motion was stayed pending settlement negotiations, but the parties were unable to reach an agreement. Subsequently, Plaintiffs filed their Amended Motion, withdrawing ...


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