Schwebel v. Richardson

Background

Ronnit Schwebel was brought to the United States by her parents at age eight. She ultimately prevailed in obtaining citizenship under the Child Status Protection Act, 8 U.S.C. § 1153(h), both in the district court and in the Court of Appeals, although the two courts relied on different grounds.

Schwebel’s attorneys sought attorney’s fees under the Equal Access to Justice Act, which generally permits a prevailing party to recover fees from the government unless the government’s position was substantially justified or special circumstances would make an award unjust. The attorneys submitted fee applications in both courts. The Court of Appeals remanded the fee request to the district court, but Judge McMahon concluded that Second Circuit law limited her ruling to fees for work performed in the district-court proceedings. The Court of Appeals would decide whether fees for the appeal should be awarded.

Why the Court Awarded District-Court Fees

The government argued that its position in the district court had been substantially justified. Judge McMahon rejected that argument. She relied on the district court’s earlier finding that the government’s position was unreasonable because it conflicted with the statutory language and with the government’s own interpretive materials.

The court also considered the government’s conduct before the lawsuit. Schwebel’s application arrived two days before the relevant date and was rejected without being processed. Under the regulation and policy in effect at the time, the government was required to issue a receipt for a processed application or send a rejection letter explaining the defect. The government did neither. Schwebel’s attorney was not told that the application had not been processed until 2010, nearly three years after filing, even though the government had received a supplement and multiple status inquiries.

Judge McMahon concluded that the absence of any notice was unreasonable and that the government’s arguments were not substantially justified. She also noted that the government had not argued that special circumstances would make a fee award unjust.

Amount and Scope of the Award

The attorneys kept daily time records, later transferring the work descriptions and total hours into a Microsoft Word file. Although the underlying handwritten notes were not preserved, the court credited the attorney’s sworn explanation and found no rule requiring use of specialized timekeeping software. The court therefore agreed to evaluate the claimed hours for reasonableness.

Schwebel sought payment for 178.25 hours of district-court work, including preparing the complaint, litigating a preliminary-injunction motion, and briefing summary judgment. Judge McMahon found the claimed time reasonable and described the total as unusually low rather than inflated. The opinion does not state the final dollar amount of the award. It directs Schwebel’s attorneys to submit a revised fee order limited to district-court fees, calculated using the applicable cost-of-living adjustment table, after which the Clerk would enter judgment.

No Special-Factor Enhancement

The Equal Access to Justice Act generally caps fees at $125 per hour, subject to a cost-of-living adjustment, unless a special factor—such as the limited availability of qualified attorneys—justifies a higher rate. Judge McMahon found that immigration law could qualify as an identifiable specialty in some circumstances and described the case as unusually complex.

Nevertheless, she concluded that Second Circuit precedent required limiting the award to the statutory rate with the applicable cost-of-living adjustment. The attorneys’ experience and skill, and the complexity of the litigation, did not establish the distinctive knowledge or specialized skill required for a special-factor enhancement. The court therefore ruled that Schwebel was not entitled to an enhanced fee.

Disposition

The court granted the application for attorney’s fees incurred in the district-court proceedings. It left the question of fees for the appeal to the Court of Appeals and directed submission of a revised district-court fee order. The court did not award a special-factor enhancement.