# Ardestani v. Immigration and Naturalization Service

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## Dissenting Opinion

    Blackmun
United States Supreme Court
502 U.S. 129
Ardestani v. Immigration and Naturalization Service
No. 90-1141 Argued: Oct. 8, 1991. --- Decided: Dec 10, 1991
Syllabus
After petitioner Ardestani prevailed in an administrative deportation proceeding brought by respondent Immigration and Naturalization Service, an immigration judge awarded her attorney's fees and costs under the Equal Access to Justice Act (EAJA), which permits a prevailing party in an "adversary adjudication" before an administrative agency to recover fees from the Government, 5 U.S.C. § 504(a)(1). The EAJA defines an "adversary adjudication," in relevant part, as "an adjudication under section 554 of [Title 5]," which is part of the Administrative Procedure Act (APA). § 504(b)(1)(C)(i). Section 554, in turn, applies, inter alia, to "every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing." The Board of Immigration Appeals vacated and denied Ardestani's award on the ground that deportation proceedings are not within the EAJA's scope, and the Court of Appeals affirmed.
Held: Administrative deportation proceedings are not adversary adjudications "under section 554" and thus do not fall within the category of proceedings for which the EAJA has waived sovereign immunity and authorized the award of attorney's fees and costs. Pp. 132-139.
(a) Although immigration proceedings are required by the Immigration and Naturalization Act (INA) to be determined on the record after a hearing, 8 U.S.C. § 1252(b), they are not governed by the APA. Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. It is immaterial that regulations have been promulgated conforming deportation hearings more closely to the procedures required for APA adjudications, for Marcello rests in large part on the INA's prescription that it "shall be the sole and exclusive procedure for determining [an alien's] deportability," 8 U.S.C. § 1252(b) (emphasis added), and leaves open no possibility that the INA should be displaced by the APA if the regulations governing immigration proceedings become functionally equivalent to § 554's procedures. Pp. 133-134.
(b) The most natural reading of the EAJA's applicability to adjudications "under section 554," and that adopted by seven Courts of Appeals, is that those proceedings must be "subject to" or "governed by" § 554. The strong presumption that the statute's plain language expresses congressional intent, Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 702, 66 L.Ed.2d 633, is not rebutted by any statements in the EAJA's legislative history. Thus, the meaning of "under section 554" is unambiguous in the context of the EAJA and does not permit Ardestani's reading that, since both deportation and § 554 proceedings are required "to be determined on the record after opportunity for an agency hearing," the phrase "under section 554" encompasses all adjudications "as defined in" § 554(a), even if they are not otherwise governed by that section. This conclusion is reinforced by the limited nature of waivers of sovereign immunity. The EAJA renders the United States liable for attorney's fees and, thus, amounts to a partial waiver of sovereign immunity, which must be strictly construed in the United States' favor, see, e.g., Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250. United States v. Kubrick, 444 U.S. 111, 118, 100 S.Ct. 352, 357, 62 L.Ed.2d 259; Irwin v. Department of Veterans Affairs, 498 U.S. ----, ----, 111 S.Ct. 805, ----, 112 L.Ed.2d 865; Sullivan v. Hudson, 490 U.S. 877, 892, 109 S.Ct. 2248, 2258, 104 L.Ed.2d 941, distinguished. Also rejected is Ardestani's argument that a functional interpretation of the EAJA is needed to further the legislative goals underlying the statute. While making the EAJA applicable to deportation proceedings would serve its broad purposes of eliminating financial disincentives for those who would defend against unjustified governmental action and deterring the unreasonable exercise of Government authority, it is the province of Congress to decide whether to bring such proceedings within the statute's scope. Pp. 134-138.
904 F.2d 1505 (CA11 1990), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J., joined. THOMAS, J., took no part in the consideration or decision of the case.
David N. Soloway, Atlanta, Ga., for petitioner.
Lawrence G. Wallace, Washington, D.C., for respondent.
Justice O'CONNOR delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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