                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0192n.06
                            Filed: March 23, 2006

                                      Nos. 03-3245, 02-3851

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


MICHAEL DVORKIN,                                  )
                                                  )
       Petitioner-Appellee,                       )
                                                  )         ON APPEAL FROM THE UNITED
               v.                                 )         STATES DISTRICT COURT FOR
                                                  )         THE NORTHERN DISTRICT OF
ALBERTO GONZALES, Attorney General,               )         OHIO
                                                  )
       Respondent-Appellant.                      )
                                                  )
______________________________________



BEFORE: SILER and GRIFFIN, Circuit Judges; and TARNOW, District Judge.*

       PER CURIAM.

       Two consolidated cases are before the Court. In case 02-3851, the Attorney General appeals

the district court’s grant of Michael Dvorkin’s petition for habeas corpus, holding that the mandatory

detention of Dvorkin during the pendency of his removal proceedings pursuant to section 236(c) of

the Immigration and Nationality Act was unconstitutional. In case 03-3245, the Attorney General

appeals the award of attorney fees against the government pursuant to the Equal Access to Justice

Act (“EAJA”), arguing the district court lacked jurisdiction, the award was premature, and the

government’s actions were substantially justified.




       *
       The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

       Recent developments in case 02-3851 render it moot.1               Accordingly, in an order

contemporaneous with this opinion, we sever the two cases and vacate the district court’s judgment

in case 02-3851. With respect to case 03-3245, we conclude that the government was substantially

justified in its actions and, therefore, reverse the award of attorney fees.

                                                  I.

       Petitioner Michael Dvorkin, a native of the former U.S.S.R., has been a lawful permanent

resident of the United States since March 24, 1991. In September 1998, an Ohio jury found Dvorkin

guilty of five felony counts; he was subsequently sentenced concurrently to serve ten months

incarceration for the charges of receiving stolen property, forgery, and obstruction of justice, and

a separate one-year term of imprisonment for tampering with evidence. On December 26, 2000,

while Dvorkin was in the penal custody of Ohio, the Immigration and Naturalization Service (“INS”

or “DHS”)2 issued a Notice to Appear, charging that Dvorkin was subject to removal from the

United States pursuant to § 237(a)(2)(A)(ii) of the Immigration and Nationality Act (“INA”). Upon


       1
         On July 22, 2005, Dvorkin’s application for adjustment of status pursuant to INA § 245,
codified at 8 U.S.C. §§ 1255, 1182(h), was granted, and Dvorkin’s status was adjusted to that of a
legal permanent resident. The Department of Homeland Security (“DHS”) waived its right to appeal
the Court’s decision. As a result, Dvorkin is no longer in removal proceedings nor subject to
detention pursuant to INA § 236, 8 U.S.C. § 1226.

        Pursuant to these events, Dvorkin submitted a notice of final decision and suggested that the
issue contained in case 02-3851–whether pre-hearing detention violates Dvorkin’s due process
rights–is moot. The DHS has moved to sever the two cases and remand case 02-3851 to the district
court with instructions to vacate its previous decision. As discussed below, we agree that the issue
is moot and grant the DHS’s motion in a separate order.
       2
         The Homeland Security Act of 2002 abolished the INS and all responsibility was transferred
to the newly established Department of Homeland Security (“DHS”). Because Dvorkin’s case spans
the period of change, both titles are utilized interchangeably in this opinion.

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No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

his release from state custody on April 3, 2002, Dvorkin was transferred into custody by the INS

pursuant to § 236(c) of the INA. The government refused to hold a bond hearing for Dvorkin, citing

its authority under INA § 236(c)(1)(b).3 In response, Dvorkin filed a petition for writ of habeas

corpus in the district court, challenging the constitutionality of INA § 236(c) as applied and seeking

to enjoin his detention without the opportunity to apply for bond. The district court granted the

petition and held that INA § 236(c) was unconstitutional as applied to Dvorkin and ordered the

government to afford Dvorkin a bond hearing before an immigration judge. After the immigration

court conducted a hearing in accordance with the district court’s order, Dvorkin was released on

bond. The government timely appealed.

       Dvorkin also filed a Fee Application under the EAJA in district court, contending that the

government’s action in detaining him without an opportunity to apply for bail was not substantially

justified, and no special circumstances existed to render an award of fees and costs unjust. The



       3
        The applicable statute governing the custody and detention of criminal aliens provides, in
pertinent part, as follows:

       The Attorney General shall take into custody any alien who . . .

                                                 ***
       (B) is deportable by reason of having committed any offense covered in section
       1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title . . .

                                               ***
       when the alien is released, without regard to whether the alien is released on parole,
       supervised release, or probation, and without regard to whether the alien may be
       arrested or imprisoned again for the same offense.

8 U.S.C. § 1226.


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No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

government sought a stay of the motion for fees, which the district court denied on September 13,

2002. The district court thereafter granted Dvorkin’s EAJA motion, holding that the government

was not substantially justified and did not have a constitutional duty to defend the statute. The

government filed a notice of appeal of the district court’s award of attorney fees and subsequently

filed an unopposed motion to consolidate the merits and the EAJA appeal. We granted the motion

and held the consolidated cases in abeyance pending the resolution of Ly v. Hansen, 351 F.3d 263

(6th Cir. 2003).

       Meanwhile, during the course of this appeal, Dvorkin’s application for adjustment of status

pursuant to INA § 245, codified at 8 U.S.C. §§ 1255, 1182(h), was granted, and Dvorkin became

a legal permanent resident. On October 7, 2005, the government moved to sever the two cases and

remand case number 02-3851–the merits of the appeal–back to the district court with instructions

to vacate its previous decision, as the case and controversy was moot. Further, the government also

requested that we retain jurisdiction over the EAJA issue in case number 03-3245.

       Now, both cases are ripe for resolution.

                                                  II.

       First, we will address the joint contention of the parties that case number 02-3851 is moot.

“Article III denies federal courts the power to decide questions that cannot affect the rights of

litigants in the case before them.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (internal

quotation marks and citations omitted). This requirement exists “through all stages of federal

judicial proceedings, trial and appellate.” Id. A case is moot when the issue presented is no longer

“live” or the “parties lack a legally cognizable interest in the outcome.” L.A. County v. Davis, 440


                                               -4-
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

U.S. 625, 631 (1979) (citation omitted). Where interim relief or events have completely eradicated

the effects of an alleged violation of law and there is no reasonable expectation that the violation

will recur, a case is moot. Id. Although the removal of an alien does not moot a pending appeal,

Santana-Albarran v. Ashcroft, 393 F.3d 699, 701 n.1 (6th Cir. 2005) (citation omitted), the grant of

an alien’s petition while the petition is in the judicial process may conclusively moot the case and

controversy, Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (holding action was moot after

INS granted petitions of named spouses).

       If a case becomes moot pending appeal, the appellate court lacks the power to address the

merits of the case, but may still enter judgment on matters ancillary thereto and award costs, vacate

the judgment on appeal, and dismiss the appeal. See U.S. Bancorp Mortgage Co. v. Bonner Mill

P’ship, 513 U.S. 18, 21-22 (1994). Accordingly, although the merits of the government’s appeal

have been mooted by Dvorkin’s status change, we will address the district court’s award of EAJA

attorney fees in case 02-3851.

                                                III.

       This court reviews a district court’s decision to award or deny attorney fees pursuant to the

EAJA for abuse of discretion. Townsend v. Comm’r of Soc. Sec., 415 F.3d 578, 581 (6th Cir. 2005).

“A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when

it improperly applies the law or uses an erroneous legal standard.” Deja Vu of Nashville, Inc. v.

Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir. 2001) (quotation marks

and citation omitted).




                                                -5-
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

        In case 02-3851, the government argues that this Court should reverse the attorney fees

award pursuant to the EAJA because (1) the decision on the merits of Dvorkin’s petition was not

final, rendering the district court without jurisdiction; (2) other binding cases addressing the merits

of the case were pending before this Court and the Supreme Court, and the district court award was

therefore premature; and (3) the position of the government was substantially justified and special

circumstances made the award unjust. Dvorkin argues that the fee award pursuant to EAJA was not

premature or inconsistent with other cases and, regardless, was not an abuse of the district court’s

discretion. Contrary to Dvorkin’s contention, the position of the government was substantially

justified.4


        4
         Because we reverse the award of EAJA attorney fees on other grounds, we decline to
address the government’s contention that the award was premature. The EAJA provides that a
prevailing party in certain federal court proceedings may recover attorney fees and costs from the
government. 28 U.S.C. § 2412. “A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court” its application for reimbursement.
28 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 408 (2004) (“[Section]
2412(d)(1)(B) sets a deadline of 30 days after final judgment for the filing of a fee application.”).
“Final judgment” is defined by the EAJA as “a judgment that is final and not appealable.”
Townsend v. Comm’r of Soc. Sec., 415 F.3d 578, 581 (6th Cir. 2005) (quoting 28 U.S.C. §
2412(d)(2)(G)).

         Because the thirty-day time period had not yet begun, the government contends that the
district court lacked jurisdiction to address Dvorkin’s EAJA motion. This is incorrect. This Court
recently overruled the “jurisdictional” aspect of final judgments in Townsend, stating:

        [O]ur past precedent characterized the EAJA’s time limitation for fee applications
        as jurisdictional . . . . This precedent, however is overruled by the Supreme Court’s
        recent decision in Scarborough v. Principi, 541 U.S. 401 [ ] (2004), where the
        Supreme Court held that the EAJA’s “30-day deadline for fee applications and its
        application-content specifications are not properly typed ‘jurisdictional.’” Id. at
        1865. Specifically, the Court concluded that 28 U.S.C. § 2412(d)(1)(B) does not
        involve subject matter jurisdiction but instead addresses “a mode of relief (costs
        including legal fees) ancillary to the judgment of a court that has plenary

                                                 -6-
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

        The EAJA provides in pertinent part that a court “shall award to a prevailing party other than

the United States fees and other expenses” in any civil action brought by or against the United

States, “unless the court finds that the position of the United States was substantially justified or that

special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The government’s

position with regard to section 2412(d)(1)(A) is “substantially justified” if it is “‘justified in

substance or in the main’–that is, justified to a degree that could satisfy a reasonable person.” Pierce

v. Underwood, 487 U.S. 552, 565 (1988); see United States v. One 1985 Chevrolet Corvette, 914

F.2d 804, 808 (6th Cir. 1990). The Pierce court further elaborated that “a position can be justified

even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified

if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.”

Pierce, 487 U.S. at 566 n.2. Objective indicia, including “the stage in which the proceedings were

resolved and the legal merits of the government’s position[,] may be relevant in assessing a district

court’s determination of reasonableness.” United States v. Real Property Located at 2323 Charms

Road, Milford Twp., Oakland County, Mich., 946 F.2d 437, 440 (6th Cir. 1991) (citing Pierce, 487

U.S. at 568-70).

        The question therefore becomes whether the government was substantially justified in

defending Dvorkin’s detention pursuant to 8 U.S.C. § 1226. We conclude that it was. The Second




        ‘jurisdiction of [the civil] action’ in which the fee application is made.” (citations
        omitted).

415 F.3d at 581-82; see Harmon v. United States ex rel. Farmers Home Admin., 101 F.3d 574, 587
(8th Cir. 1996) (noting that EAJA attorney fees award may have been premature, but declining to
make it a question of jurisdictional significance).

                                                  -7-
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

Circuit recently dealt with this issue in Vacchio v. Ashcroft, 404 F.3d 663 (2d Cir. 2005). The

Vacchio court held that “there is no doubt that the Government is entitled–if not obligated–to put

forth a good faith effort to defend the constitutionality of federal laws, especially those that have

never been found unconstitutional.” 404 F.3d at 675-76. The court stated that, although “Vacchio

makes an arguable case [regarding alien deportability] . . . the issue is far from settled law, the

Government’s legal argument is far from unreasonable, and it thus cannot be said that the

Government’s position on the question is not substantially justified.” Id. We agree.

       In this case, the district court’s grant of habeas corpus predated the Supreme Court decision

Demore v. Kim, 538 U.S. 510 (2003), which held that § 1226(c) was at least facially constitutional,

and the Sixth Circuit decision Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), which held that detention

pursuant to § 1226 must be reasonable. Although the merits of Dvorkin’s petition are not before us,

the subsequent case law clearly evidences that the constitutionality and application of the statute was

far from settled law. The government’s defense of the statute’s constitutionality had a reasonable

basis and, thus, was substantially justified.

       Dvorkin also contends that the government’s specific actions, namely, utilizing an automatic

stay provision after the immigration judge set bond, necessitated additional legal fees that are

compensable by the EAJA motion. Although the government’s actions were undermined by its

subsequent failure to appeal the immigration judge’s decision and lack of articulable reasons that

Dvorkin constituted a flight risk, we cannot conclude that the government’s position was not

substantially justified. Cf. Vacchio, 404 F.3d at 677 (holding that “despite our doubts over the INS’s




                                                 -8-
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

actions, we are not able to conclude that the Government’s position was not ‘substantially

justified.’”).

                                                IV.

        For these reasons, we reverse the district court’s award of attorney fees and hold that the

government was substantially justified in defending the constitutionality of 8 U.S.C. § 1226(c) in

case 03-3245.




                                               -9-
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

       ARTHUR J. TARNOW, District Judge, concurring in part and dissenting in part. I

concur in the decision to reverse the district court’s award of attorney fees on the ground that the

government was substantially justified in defending the constitutionality of § 236(c). However, I

would remand the case to the district court for a determination of whether or not attorney fees are

appropriate under the EAJA. Remand is appropriate because the district court should determine

whether or not the government was substantially justified in defending § 236(c) as applied to

Dvorkin under the specific facts of the case.

       At the time he was taken into custody, Dvorkin was a lawful permanent resident of the

United States facing the prospect of prolonged pre-hearing detention. The Supreme Court had not

yet issued its decision in Demore v. Kim, 538 U.S. 510 (2003), which held that § 236(c) was facially

constitutional. However, this Court had not yet issued its decision in Ly v. Hansen, (6th Cir. 2003),

which held that even if § 236(c) is constitutional, pre-hearing detention must be reasonable, and that

detainees are entitled to seek habeas relief when facing the prospect of prolonged or indefinite pre-

hearing detention.

       The majority relies on these facts for the proposition that at the time the constitutionality of

Dvorkin’s detention was in question, the constitutionality of the statute was far from settled, and

therefore the government was substantially justified in defending the facial constitutionality of §

236(c). However, that conclusion does not accurately reflect the issue before the Court. The district

court’s decision in this case should be reversed specifically because it based its determination as to

EAJA fees only on the justification for the government’s defense of § 236(c) as a whole. Because




                                                - 10 -
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

it based its decision on the defensibility of the statute, the district court did not analyze the

government’s justification for its defense of Dvorkin’s detention without bond.

        Dvorkin’s petition for writ of habeas corpus challenged the constitutionality of § 236(c) as

applied to his detention without the opportunity for bond. The petition did not pose a facial

challenge to the constitutionality of § 236(c). The district court held that § 236(c) was facially

unconstitutional, but never reached the specific question posed in this appeal, which is: assuming

§ 236(c) to be facially constitutional, was the government substantially justified in vigorously

defending the mandatory detention of Dvorkin for a prolonged and perhaps indefinite period under

the authority of the statute?

        One of the government’s positions, that § 236(c) is constitutional, was ultimately proven to

be justified by the Supreme Court’s decision in Demore. However, the government’s second

position, that it could subject Dvorkin to the prospect of indefinite detention, was perhaps never

substantially justified, as this Court concluded in Ly. In other words, even if § 236(c) is generally

constitutional, the district court may still conclude that its application in this particular case was not

substantially justified, and that Dvorkin’s counsel is entitled to EAJA fees.

        The remedy chosen by the majority, reversal without remand, produces an anomalous result.

Specifically, under the majority’s holding, by successfully challenging the terms of his detention

during the early stages of his detention, Dvorkin forfeited counsel’s ability to recover attorney fees

under the EAJA. On the other hand, a pre-hearing detainee who waits longer to challenge the terms

of their detention may be allowed to recover fees because it would be easier to show that the length

of the wrongful detention rendered it unreasonable under Ly. Attorneys for detainees such as


                                                  - 11 -
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

Dvorkin would be confronted with the difficulty of choosing to wait longer to file a habeas petition

under Demore and Ly, so as to be assured a fee, at the expense of their client remaining in custody.

          This problem is magnified by the fact that the average length of pre-hearing detention under

§ 236(c) is approximately 47 days. In Demore, the Supreme Court observed:

          Under § 1226(c), not only does detention have a definite termination point, in the
          majority of cases it lasts for less than the 90 days we considered presumptively valid
          in Zadvydas. The Executive Office for Immigration Review has calculated that, in
          85% of the cases in which aliens are detained pursuant to § 1226(c), removal
          proceedings are completed in an average time of 47 days and a median of 30 days.
          In the remaining 15% of cases, in which the alien appeals the decision of the
          Immigration Judge to the Board of Immigration Appeals, appeal takes an average of
          four months, with a median time that is slightly shorter.

Demore, 538 U.S. at 529 (internal citations omitted).

          In this case, Dvorkin was taken into custody on April 3, 2002. Twenty-three days later, on

April 26, 2002, he filed his petition for habeas corpus. Fifty-nine days after he was taken into

custody, on May 31, 2002, the district court granted his petition. Approximately 62 days after his

detention began, on June 5, 2002, Dvorkin was released on bond. Therefore, the length of Dvorkin’s

detention appears to have fallen within the “average” range for pre-hearing detainment under §

236(c).

          Under the majority’s holding, attorneys for detainees such as Dvorkin, who face potentially

wrongful indefinite detention, would never be entitled to EAJA fees. Unless the inquiry as to EAJA

fees asks whether or not the government was substantially justified in defending the application of

§ 236(c) under specific circumstances and as to specific detainees, counsel would never be able to

prove that the government was not substantially justified in defending its position. The government



                                                  - 12 -
No. 03-3245, 02-3851
Michael Dvorkin v. Gonzales

would only have to rest on its facial defense of the statute, rather than its application, in order to

avoid an EAJA fees award.

       In Scarborough v. Principi, 541 U.S. 401, 406 (2004), the Supreme Court described the

purposes of the EAJA as follows:

       Congress enacted the EAJA to eliminate the barriers that prohibit small businesses
       and individuals from securing vindication of their rights in civil actions and
       administrative proceedings brought by or against the Federal Government. [The
       purpose of the Act is] to diminish the deterrent effect of seeking review of, or
       defending against, governmental action.

Scarborough, 541 U.S. at 406 (internal quotation marks and citations omitted).

       Under the majority’s holding, the impossibility of obtaining EAJA fees would deter attorneys

from taking cases on behalf of individuals whose rights were violated by the Federal Government.

This outcome is inconsistent with the purposes of the EAJA.

       On remand, the district court should address the anomalous situation created by the timing

of the Demore and Ly decisions in relation to this case. Dvorkin, whose detention was lawful under

Demore, but potentially unreasonable under Ly, should have the opportunity to convince the district

court that he is entitled to EAJA fees.

       I agree with the Court’s conclusion that the district court erred by holding that the

government’s defense of § 236(c) was not substantially justified. However, I would remand this

case to the district court to address the question of whether or not the government’s defense § 236(c)

as applied to Appellee was substantially justified.




                                                - 13 -
