                                          NOT PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                    __________

                    No. 08-1676
                    __________


         NAIMESH DINESHBHAI PATEL,
                            Petitioner

                         v.

 ATTORNEY GENERAL OF THE UNITED STATES,
                          Respondent

                    __________

      On Motion by Petitioner for Reimbursement
      of Attorney’s Fees and Expenses under the
              Equal Access to Justice Act
                     __________

      Submitted Under Third Circuit LAR 34.1(a)
                  January 7, 2011

Before: SLOVITER, BARRY and SMITH, Circuit Judges

                (Filed: May 3, 2011)
                     __________


                     OPINION
SLOVITER, Circuit Judge.

       Naimesh Patel, who was the prevailing party when this matter first came before

this court, moves for an order seeking attorney fees and costs pursuant to the Equal

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A).1 The Government argues

that fees are not warranted because its position was substantially justified.2 Alternatively,

the Government argues that the amount requested is excessive.


                                              I.


       “[T]he specific purpose of the EAJA is to eliminate for the average person the

financial disincentive to challenge unreasonable governmental actions.” Astrue v. Ratliff,

130 S. Ct. 2521, 2530 (2010) (quotation omitted). A federal court is required to award

the prevailing party its fees and other expenses incurred in any civil action, unless the

court concludes that the Government’s position in all phases of the litigation “was

substantially justified or that special circumstances make an award unjust.” 28 U.S.C. §




1
   In the underlying case, Patel v. Att’y Gen., 394 Fed. Appx. 941, 944 n.2 (3d Cir.
2010), this court held that Patel had been deported unlawfully. Following our decision,
the Government accelerated Patel’s return to the United States. Patel entered the United
States on March 10, 2011 as a lawful permanent resident rendering remaining issues on
remand to the BIA moot. The United States Immigration and Customs Enforcement,
within the Department of Homeland Security, held primary responsibility for facilitating
Patel’s return. However, for simplicity, we refer generally to the Government.
2
  Patel’s motion for attorneys’ fees is properly before this court. The motion was filed
within thirty days after the Government’s right to appeal our previous order lapsed. See
Johnson v. Gonzales, 416 F.3d 205, 208 (3d Cir. 2005).

                                              2
2412(d)(1)(A).3 The Government’s “position” includes both the underlying agency

action and its litigation position in the proceedings arising from that action. Johnson v.

Gonzales, 416 F.3d 205, 210 (3d Cir. 2005).4

       We commend the Government for acting swiftly to facilitate Patel’s return to the

United States, but we reject its contention that its position was substantially justified.

During the course of this litigation, the Government delayed proper adjudication of

Patel’s petition for review, requested several continuances, filed a motion to remand that

included a position inconsistent with its previous interpretation that it later withdrew, and

raised new issues for the first time in its response to a request by this court for

supplemental briefing.

       The Government argues that it was justified in arguing that the BIA correctly held

that it lacked jurisdiction to review Patel’s case under 8 C.F.R. § 1003.3(e) as someone

who had “depart[ed]” the United States albeit involuntarily and that this court has not

since held that “§ 1003.3(e), or similar regulations, were invalid.” Response to

Petitioner’s Motion for EAJA Fees at 7. The Government’s position misses the mark.

This court held that the BIA assigned to § 1003.3(e) a clearly erroneous meaning. We

concluded that the BIA’s interpretation that Patel’s deportation acted as a waiver under §

3
  The Government does not contend that “special circumstances” exist in this case, and
therefore we do not discuss this aspect of the statute.
4
  A position is substantially justified if it is “justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In other words, it
is the Government’s burden to demonstrate its position was grounded in a reasonable
basis in fact and law with a reasonable connection between the two. Id. We do not
assume that the Government’s position was not substantially justified simply because it
lost on the merits. Kiareldeen v. Ashcroft, 273 F.3d 542, 554 (3d Cir. 2001).
                                               3
1003.3(e) was in direct tension with the plain meaning of statutory language, especially

when read in context with other parts of the regulatory scheme. Patel, 394 Fed. Appx. at

945 (BIA impermissibly equated the word “departure” with the words “deportation”

and/or “removed”).

       Based on our review of the record, the Government has not provided a persuasive

reason that justifies the agency’s position and its defense thereof. Indeed, in its twenty-

two page response to the instant motion, the Government devotes a mere paragraph to

justifying its specific position in this case without so much as a reference to the unique

facts and procedural history. We thus conclude that Patel is entitled to recover his fees

and costs.

                                             II.

       The EAJA provides that a prevailing party may recover “costs” as enumerated in

28 U.S.C. § 1920. 28 U.S.C. § 2412(a).5 Additionally, such party may be awarded “fees

and other expenses.” 28 U.S.C. § 2412(d)(1)(A).6 Patel seeks attorneys’ fees for 174.32

hours billed by four attorneys totaling $37,797.50 and an additional $5,600 in costs.



5
 Section 1920 limits “costs” to such items as docket fees, fees for the clerk and marshal,
and fees for photocopies.
6
  The Act does not provide an exhaustive definition of expenses, but states that “fees and
other expenses” includes “the reasonable expenses of expert witnesses, the reasonable
cost of any study, analysis, engineering report, test, or project which is found by the court
to be necessary for the preparation of the party’s case, and reasonable attorney fees,”
which has been interpreted by some courts to include costs such as internet research fees,
postage, and long distance telephone calls. See, e.g., Jean v. Nelson, 863 F.2d 759, 778
(11th Cir. 1988) (telephone, postage, and computerized research expenses are
compensable under the EAJA); Int’l Woodworkers of America v. Donovan, 792 F.2d 762,
                                              4
       Patel’s counsel argues that he is entitled to reimbursement for attorney’s fees at a

rate of $250 per hour because immigration cases require specialized expertise. That is

inconsistent with the EAJA provision that “attorney fees shall not be awarded in excess

of $125 per hour unless the court determines that an increase in the cost of living or a

special factor, such as the limited availability of qualified attorneys for the proceedings

involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii).

       Although Patel’s counsel is an experienced attorney who specializes in

immigration, and this case did involve issues beyond straight forward application of

established standards, the “novelty and difficulty” of the issues involved and the “work

and ability of counsel” do not adequately justify piercing the statutory ceiling in this case.

See Pierce v. Underwood, 487 U.S. 552, 573 (1988). Patel’s counsel offers no

evidentiary support that there were only a limited number of qualified attorneys available

who would take on this case at the statutory rate. See Johnson, 416 F.3d at 213. Indeed,

there is evidence demonstrating there is no shortage of attorneys qualified to practice

immigration law in Pennsylvania. We therefore award attorneys’ fees to Patel’s counsel,

including associate counsel, at the statutorily prescribed rate of $125 per hour.7




767 (9th Cir. 1985) (expenses routinely billed to a client such as telephone calls, postage,
and air courier are recoverable under the EAJA).
7
  The Government argues that the hours billed by associate counsel should be
uncompensated or, if compensated, billed at the statutory rate. Work conducted by
associate attorneys, like that of experts, paralegals and other support staff, is recoverable
under the EAJA. See Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 581 (2008); Cook
v. Brown, 68 F.3d 447, 453 (Fed. Cir. 1995) (citing cases approving inclusion of fees for
paralegals, law clerks, and law students, in fee awards under EAJA or analogous fee-
                                              5
       The Government raises several arguments challenging the number of hours

claimed, including that the billing records are insufficiently detailed and that Patel

includes hours that are duplicative, excessive, and not compensable.

       We believe that these details, as well as the parties’ differences with respect to

costs, should be resolved by negotiation between the parties with the assistance of our

mediator, Joseph Torregrossa. We will therefore grant Patel’s motion for attorney’s fees

under the EAJA in the amount of $125 per hour. We will appoint Mr. Torregrossa as a

master to provide a recommendation as to the number of hours, costs and expenses to be

awarded.




shifting statutes). Therefore, at the Government’s suggestion, we will award fees at the
statutory rate for all attorney work.
                                              6
