Orantes-Hernandez v. Holder (713 F. Supp. 2d 929, 2010)

ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT

MARGARET M. MORROW, District Judge.

I. PROCEDURAL BACKGROUND

Plaintiffs filed this action in 1982, challenging practices and procedures allegedly employed by the Immigration and Naturalization Service (“INS”) to detain, process and remove Salvadoran nationals who had entered the United States. Plaintiffs sued on their own behalf and on behalf of a class of “all citizens and nationals of El Salvador eligible to apply for political asylum ... who ... have been or will be taken into custody ... by agents of the [Department of Homeland Security].” Orantes-Hernandez v. Meese, 685 F.Supp. 1488, 1491 (C.D.Cal.1988), aff'd, 919 F.2d 549 (9th Cir.1990) (“Orantes II”). Judge David Kenyon certified the Orantes class on April 30,1982.

On April 29, 1988, Judge Kenyon entered a permanent injunction mandating that the INS use specific procedures when detaining, processing and removing Salvadoran immigrants. See Orantes II, 685 F.Supp. at 1511-13. On July 2, 1991, he modified the injunction to add four conditions that applied solely to the Port Isabel Service Processing Center in Port Isabel, Texas (“Orantes injunction”). He also approved a settlement of plaintiffs’ application for attorneys’ fees and costs incurred to that point in the litigation. On September 28, 2004, the court entered a stipulated order clarifying the terms of the injunction to eliminate the possibility that the Office of Refugee Settlement could be held to be in violation of its terms.

On November 28, 2005, the government filed a motion to dissolve the injunction. It asserted (1) that there had been a significant change in the factual circumstances that led to issuance of the injunction — i.e., the end of the civil war and attendant human rights abuses in El Salvador, and the adoption of a range of procedures by U.S. immigration authorities that ensured aliens were advised of their right to apply for asylum and not coerced into waiving that right; and (2) that there had been an intervening change in law — i.e., the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”), providing for the expedited removal of inadmissible aliens. As respects the intervening change in law, the government argued that the injunction conflicted with IIRIRA and the regulations governing expedited removal, and also that the injunction made it burdensome for immigration authorities to place Salvadorans in expedited removal.

In response to the government’s motion, plaintiffs requested limited discovery. At a status conference held December 21, 2005, the government opposed the request and asserted that the court had no jurisdiction to review expedited removal procedures. The court granted plaintiffs’ request for discovery and established a briefing schedule for resolving the government’s jurisdictional objections. On August 31, 2006, the court agreed to bifurcate and hear the defendant’s argument that there was a facial conflict between the injunction and the expedited removal statute before addressing the remaining reasons advanced for dissolving the injunction.

The 120-day period for discovery on issues other than expedited removal closed in early May 2006. The government limited production of documents regarding detention standards to those pertaining to seventeen standards it considered relevant to the injunction. Plaintiffs contended they were entitled to additional discovery and the court resolved the parties’ dispute on October 13, 2006 by ordering the production of documents relevant to one additional standard, the Hold Room Standard.

The court held a hearing on defendant’s jurisdictional objection that it lacked jurisdiction to review expedited removal procedures on May 8, 2006. At the hearing, the government raised a new argument, namely, that plaintiffs lacked standing to challenge the regulations implementing expedited removal. As a consequence, the court ordered further briefing on the issue. The court ultimately rejected the government’s characterization that plaintiffs’ opposition to dissolution of the injunction was a challenge to the expedited removal statute and implementing regulations, and found that the jurisdictional restrictions contained in the expedited removal statute did not apply. On August 21, 2006, the court granted plaintiffs’ request for limited discovery on expedited removal.

In response to the court’s ruling, the government asserted that there was a facial conflict between the expedited removal statute and Judge Kenyon’s injunction, and requested that the court order briefing and a hearing on that question before requiring it to produce any expedited removal discovery. The court acceded to this request, and set a schedule for briefs addressing whether paragraph 2 of the injunction, which mandated that the government provide Salvadorans an advisal regarding of their right to apply for asylum, and paragraph 11, which concerned transfer of Salvadorans between facilities, were facially in conflict with the expedited removal statute.

On October 11, 2006, the court issued an order regarding the facial conflict between the expedited removal statute and Judge Kenyon’s injunction. As respects paragraph 2 of the injunction, the court found that the Orantes advisal concerning the right to apply for asylum did not conflict with the expedited removal statute as the notification requirement merely imposed an additional obligation on the government and did not mandate that it take action that was prohibited by the statute. The court agreed with the government that there was a more limited conflict between paragraph 2 and the statute, however. Because “the right to representation by an attorney does not attach until an alien is found to have a credible fear of persecution,” the court concluded that paragraph 2 conflicted with the expedited removal statute to the extent it required the government to advise all Salvadorans — including those without a credible fear of persecution — that they had a right to be represented by an attorney. The court also found that paragraph 2’s requirement that the government advise all Salvadorans of their right to a deportation or removal hearing conflicted with the expedited removal statute because, under that statute, only aliens found to have a credible fear of persecution in their country of origin are entitled to a removal hearing. To remedy these conflicts, the court modified — but did not dissolve paragraph 2 to remove these conflicts.

The government also requested that the court delete paragraph 11 in its entirety on the basis of a purported facial conflict. The court concluded that there was no facial conflict between paragraph 11 and the expedited removal statute. Nonetheless, it modified that paragraph of the injunction to clarify that as used therein, “transfer” meant transfer between detention facilities within the United States, not removal from the country pursuant to a final order of removal.

Because the court declined to eliminate paragraphs 2 and 11 in their entirety, as the government had requested, it concluded that plaintiffs were entitled to limited discovery on expedited removal. It modified its earlier discovery order, however, because the modifications to the injunction that it made mooted the government’s pri- or argument that the injunction placed excessive burdens on its ability to place Salvadorans in expedited removal.

The government subsequently sought reconsideration of the court’s order regarding discovery, asserting that no discovery regarding expedited removal was required given it no longer claimed the injunction burdened the expedited removal of Salvadorans from the country. The court denied this motion on October 26, 2006, noting that the government continued to maintain that the injunction should be dissolved in its entirety. The government also sought clarification of modified paragraph 2, noting that, since the inception of the injunction, it had construed the order to apply only between ports of entry, not at ports of entry. The government’s explanation of its interpretation of the injunction flatly contradicted representations the government had made regarding its implementation of the injunction at prior hearings. Because the issue had not been fully briefed, the court declined to provide the clarification sought by the government and noted that it would address the issue at the time of the hearing on the motion to dissolve the injunction.

The parties then met and conferred regarding the form of the modified Orantes advisal to be provided to class members in expedited removal. The parties could not reach agreement and submitted separate briefs on the issue. On November 13, 2006, the court found the government’s assertion that the court had relieved it of the obligation to provide any advisal to Salvadorans in expedited removal contrary to both its October 11 and October 26, 2006 orders. The court explicitly clarified that the advisal had to be given to class members at the time they were processed in secondary inspection at the border or processed after being found within the territorial boundaries of the United States.

On July 24, 2007, the court denied the government’s motion to dissolve Judge Kenyon’s injunction, holding that the government had failed to carry its burden of showing significantly changed factual conditions warranting dissolution. Orantes-Hernandez v. Gonzales (“Orantes TV”), 504 F.Supp.2d 825, 874-76 (C.D.Cal.2007). Noting “that it is appropriate to consider present conditions in El Salvador, and [to] contrast them with the conditions that obtained at the time Judge Kenyon entered a permanent injunction, in evaluating whether all of the circumstances that presently obtain warrant! ] dissolution of the injunction,” id. at 838, the court evaluated and compared not only past and present conditions in El Salvador, but also past and present INS practices, and past and present conditions in detention centers in the United States. Id.

As respects conditions in El Salvador, the court noted that “[n]either party seriously disputes that conditions in El Salvador are drastically different than they were in the 1980s when Judge Kenyon entered the Orantes Injunction. The civil war is over, as is the widespread brutality that led the court to conclude in 1982 and 1988 that a ‘substantial number’ of Salvadorans who fled the country had good faith asylum claims and well-founded fears of persecution.” Id. at 840 (citing Orantes II, 685 F.Supp. at 1491). For this reason, the court found that “the conditions in El Salvador that led Judge Kenyon to conclude that the consequences attending deprivation of Salvadorans’ right to apply for asylum were ‘most serious’ disappeared with the end of the civil war and concomitant improvements in political, economic, and social conditions in the country.” Id.

The government argued that it had made overarching, structural changes in the manner in which it processed immigration detainees. These included, inter alia, forms and procedures designed to ensure that aliens were advised of their right to apply for asylum and the promulgation of detention standards governing conditions at detention facilities. It asserted that these changes showed that there was no longer any need for the injunction to remain in place. Id. at 845-46. Noting that compliance with the terms of an injunction was a factor that courts took into account in assessing whether to dissolve the order, the court observed that all parties conceded there had been no enforcement proceedings in eighteen years. Id. at 846 (“The lack of enforcement proceedings is particularly persuasive in the context of an injunction mandating that the government take specific action with respect to as many as 40,000 individuals each year”). It considered the parties’ competing evidence as to whether 37 Salvadorans recently apprehended and detained by the Border Patrol had, or had not, received Orantes advisals, and found “ “[njeither set of declarations ... entirely credible.” Moreover, it concluded that “the sample size [was] too limited ... to support an inference that there is a widespread pattern of noncompliance.” Id. at 847-48. The court also considered the government’s admission that it had not been giving Orantes advisals to Salvadorans detained at ports of entry as opposed to those detained between ports of entry, and found that the government’s interpretation “cast[] some doubt on [its] assertion that it ha[d] complied with the injunction in good faith and that it [was] committed to ensuring that aliens [were] not removed without adequate notice of their rights.” Id. at 850. In sum, the court found that “evidence of the government’s compliance with the advisal requirement [was] mixed.” Id. at 851.

The court acknowledged that the government had adopted forms and regulations designed to ensure that all aliens, including Salvadorans, were not removed unless they understood their right to apply for asylum. It found no evidence, however, that the forms were used in practice. In fact, the court noted, “evidence regarding use of the form ... raises substantial concerns” about the government’s efforts to advise aliens of their right to apply for asylum, particularly at the San Ysidro port-of-entry. Id. at 854-55.

Similarly, despite the government’s adoption of detention standards, the court noted that, as respects detention centers for which reviews were produced, the American Bar Association, the United Nations High Commissioner for Refugees, and Immigration and Customs Enforcement had “documented a significant number of violations relevant to the provisions of the Orantes injunction and/or the concerns that led to its issuance.” Id. at 872-73. Based on the voluminous evidence presented, the court found a record of government compliance only with respect to paragraphs 10 and 12, which concerned administrative segregation and group legal presentations at the Port Isabel Service Processing Center. Id. at 875.

The court concluded:

“Had the record revealed that maintenance of the injunction was no longer required to fulfill the purposes for which it was entered, the court would not have hesitated to dissolve it. For the reasons stated, however, the court concludes the government has not established that promulgation of the ICE detention standards and the end of the Salvadoran civil war constitute sufficiently changed circumstances that all provisions of the Orantes injunction related to detention conditions should be dissolved. Documented levels of non-compliance with relevant standards indicate that the injunction remains necessary to ensure that Salvadorans are able to exercise their right to apply for asylum freely and intelligently.” Id. at 876.

Following entry of the court’s order, plaintiffs requested that the government agree to consolidate all active provisions of the injunction in a single order to facilitate enforcement. The government declined to enter into this stipulation, and plaintiffs filed a motion to consolidate the injunctive provisions. They requested issuance of a consolidated order “to provide clarity, and to promote compliance with the injunctions,” and asserted that consolidation would not “affect[] or prejudice[] [the governments’s appeal] in any manner....” The government countered that the court had been divested of jurisdiction by its filing of a notice of appeal, and argued that consolidation of the injunctions in a single order would constitute a material change that would alter the posture of the case on appeal. The specific change that concerned the government was the inclusion of a sentence in paragraph two of Judge Kenyon’s order that was not included in the court’s modified paragraph 2; plaintiffs wished to have this sentence included in the consolidated injunction.

On September 24, 2007, the court granted plaintiffs’ motion for consolidation. It addressed the government’s concern by clarifying that the sentence at issue remained part of the injunction, because the modified language the court adopted on October 11, 2006 concerned only those portions of paragraph 2 that conflicted with the expedited removal statute. The court concluded, as a result, that consolidating the remaining provisions of the injunction in a single order did not constitute a material change that altered the posture of the case on appeal. The government subsequently appealed this ruling as well.

On April 6, 2009, the Ninth Circuit affirmed the court’s orders in their entirety. Orantes-Hernandez v. Holder (“Orantes V”), 321 Fed.Appx. 625, 629 (9th Cir.2009)(Unpub.Disp.). The government sought and received an enlargement of time to July 6, 2009 to file a petition for rehearing and rehearing en banc. On that date, however, it filed a notice advising the court and plaintiffs that it would not seek rehearing.

On August 4, 2009, plaintiffs filed a motion for attorneys’ fees and costs under the Equal Access to Justice Act (“EAJA”). The government filed opposition on September 17, 2009. Having reviewed the briefs and evidence presented by the parties, the court finds that plaintiffs are entitled to attorneys’ fees and costs incurred in connection with proceedings related to the government’s motion to dissolve the injunction.

II. DISCUSSION

A. Legal Standard For Attorneys’ Fees Under 28 U.S.C. § 2412

28 U.S.C. § 2412(d)(1)(A) provides:

“Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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).

Before fees can be awarded under § 2412(d)(1)(A), (1) the claimant must be a “prevailing party”; (2) the government’s position must not have been “substantially justified”; (3) there must be no “special circumstances [that make] make an award unjust”; and (4) a fee application must be submitted to the court within thirty days of final judgment and be supported by an itemized statement. Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990); Krecioch v. United States, 316 F.3d 684, 687 (7th Cir.2003) (“To be eligible for a fee award under the EAJA, Krecioch must show: (1) that he was a ‘prevailing party’; (2) that the Government’s position was not ‘substantially justified’; (3) that no ‘special circumstances make an award unjust’; and (4) that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement”); Perales v. Casillas, 950 F.2d 1066, 1072 (5th Cir.1992) (“Eligibility for a fee award under the EAJA requires, at a minimum, that the claimant be a ‘prevailing party’; that the Government’s position was not ‘substantially justified’; that no ‘special circumstances make an award unjust’; and that any fee application be submitted to the court within 30 days of final judgment and be supported by an itemized statement”).

“The party seeking fees has the burden of establishing its eligibility.” Love v. Reilly, 924 F.2d 1492, 1494 (9th Cir.1991). A plaintiff satisfies the second and third prongs of the test, however, simply by alleging that the government’s position was not substantially justified and that no special circumstances exist that make an award unjust. The government then has the burden of proving that its actions were substantially justified in law and fact and/or that special circumstances make awarding fees unjust. Id. at 1495 (“The burden of proving the special circumstances or substantial justification exception to the mandatory award of fees under the EAJA rests with the government”); Oregon Environmental Council v. Kunzman, 817 F.2d 484, 498 (9th Cir.1987) (“the government bears the burden of showing that its position was substantially justified”).

B. Whether Plaintiffs Are Entitled to Attorneys’ Fees and Costs under § 2412

1. “Prevailing Party”

A plaintiff is deemed the “prevailing party” if, as a result of a judgment or consent decree entered in the legal action he or she brought, there is a “material alteration of the legal relationship of the parties.” Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); Miles v. State of California, 320 F.3d 986, 989 (9th Cir.2003) (“The Supreme Court has squarely held that there is a ‘prevailing party’ when there has been a ‘material alteration of the legal relationship of the parties,’ ” quoting Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835); id. at 989 n. 3 (“The Court specifically identified two instances in which a plaintiff can be considered a ‘prevailing party’: (1) an enforceable judgment on the merits; or (2) an enforceable court-ordered consent decree”).

Voluntary action by the defendant that is not compelled by a judgment or consent decree does not constitute a “material alteration” in the parties’ legal relationship sufficient to support a fee award under Buckhannon. Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (“A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change”); Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002) (“Buckhannon holds that to be considered a prevailing party, one must have obtained a ‘judicial imprimatur’ that alters the legal relationship of the parties, such as a judgment on the merits or a court-ordered consent decree; it is not enough merely to have been a ‘catalyst’ in causing a voluntary change in the defendant’s conduct”).

The Ninth Circuit has applied the Buckhannon rule to applications for fees and costs under the EAJA. United States v. Campbell, 291 F.3d 1169, 1172 (9th Cir. 2002) (“In Perez-Arellano v. Smith, we adopted the Supreme Court’s standard in Buckhannon, ruling that a ‘prevailing party’ under the Equal Access to Justice Act (EAJA) ‘must be one who has gained by judgment or consent decree a ‘material alteration of the legal relationship of the parties,’ ” quoting Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir.2002)) (“It might be argued that the Supreme Court’s Buckhannon decision should be viewed as binding precedent only with respect to the statutes there in issue, the FHAA and the ADA, each of which provides attorney’s fees for a ‘prevailing party’ who makes a claim under it.... However, under the circumstances presented here, we discern no reason to interpret the EAJA inconsistently with the Supreme Court’s interpretation of ‘prevailing party’ in the FHAA and the ADA as explained in Buckhannon. We therefore hold that a ‘prevailing party’ under the EAJA must be one who has gained by judgment or consent decree a ‘material alteration of the legal relationship of the parties’ ”).

The government argues that plaintiffs cannot be deemed “prevailing parties” under Buckhannon because the main purpose of the dissolution motion was to secure modification of two paragraphs of the injunction to comply with the expedited removal statute, and this was successfully achieved. Additionally, the government asserts that the law does not support an award of EAJA fees where the parties seeking fees merely defended against dissolution of an injunction, and the opposing party is not required to do anything it was not already obligated to do as a result of the proceeding.

a. Whether a Party Opposing a Motion to Dissolve an Injunction May Receive EAJA Fees and Costs

The government asserts that plaintiffs are not entitled to attorneys’ fees because there has been no “alteration in the legal relationship of the parties.” It argues that the only form of relief the court awarded was modifications of the injunction sought by the government and opposed by plaintiffs. Further, it contends that the fact that plaintiffs successfully prevented dissolution of the injunction altogether does mean the “prevailed” because there was no alteration of the parties’ legal relationship. Reduced to its essence, the government’s argument is that plaintiffs in whose favor a permanent injunction has been entered can never be deemed “prevailing parties” in later proceedings to dissolve the injunction because if they prevail in such proceedings, the parties’ legal relationship will not be altered. This proposition is not supported by the law.

The court first dispenses with the government’s argument that it should deny plaintiffs’ motion because there is no precedent for awarding fees under the EAJA in circumstances such as those presented here. As already noted, the Ninth Circuit applies Buckhannon and its progeny to applications for fees and costs under the EAJA. Campbell, 291 F.3d at 1172. Accordingly, it is appropriate to look broadly to precedent applying Buckhannon rather than solely to cases awarding fees under the EAJA.

As the Buckhannon Court made clear, to be a prevailing party, one must obtain relief on the merits in the form of a “court-ordered” change or “judicial imprimatur” that alters the parties’ legal relationship. Buckhannon, 532 U.S. at 604-05, 121 S.Ct. 1835 (citing Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). The entry of a permanent injunction “qualifies as an enforceable judgment on the merits of the case that ‘materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiffs.’ ” Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, Tennessee, 421 F.3d 417, 420 (6th Cir.2005) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)).

Although neither the court nor the parties has identified authority applying Buckhannon to subsequent enforcement of a permanent injunction, the parties cite, and the court finds instructive, cases regarding subsequent enforcement of a consent decree.

One court that has considered the government’s argument “that [subsequent enforcement proceedings do not effect a] material alteration in the parties’ legal relationship” has characterized the contention as a “red herring.” Grier v. Goetz, 421 F.Supp.2d 1061, 1072 (M.D.Tenn.2006) (“The crux of this argument lies in the timing of the alteration in the legal relationship”). The government concedes that an alteration in the parties’ legal relationship occurred in the 1980’s when Judge Kenyon issued the permanent injunction. It argues, however, that maintaining the injunction in place does not lead to a new alteration. Finding that successful defense against certain proposed modifications to a consent decree warranted an award of attorneys’ fees, the Grier court stated:

“In the present case, the ‘net result’ of the litigation is the continued enforcement of many aspects of the 2003 Consent Decree. Even though the material alteration in the legal relationship initially occurred in 2003, that alteration is enforced to this day. Moreover, the Court specifically declined to modify or limit modification of certain provisions of the 2003 Consent Decree to prevent Defendants from returning to pre-2003 Consent Decree activity.... Therefore, in this case, not only did the Court maintain the validity of the 2003 Consent Decree, but it did so because it recognized that the conditions that led to the Decree still exist, and the protections of the Decree continue to be ‘essential.’ ” Id.

In this case, it is clear that the government’s conduct would be different if it were no longer required to comply with the permanent injunction. The significance of this fact is underscored by Buckhannon. There, the Supreme Court distinguished a “defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit” from orders that placed a judicial imprimatur on such change. Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835. The distinction between voluntary and involuntary change is reflected here in that, had plaintiffs not prevailed in the dissolution proceedings, the parties’ legal relationship would have been materially altered, as the government would have ceased to provide the substantial protections of the injunction to class members. It was only because plaintiffs successfully defended the injunction that the government is now forced “ ‘to do something directly benefitting the plaintiffs that they otherwise would not have had to do.’ ” Carbonell v. I.N.S., 429 F.3d 894, 900 (9th Cir.2005) (quoting Richard S. v. Department of Developmental Services, 317 F.3d 1080, 1087 (9th Cir.2003)).

The principal case on which the government relies is Alliance to End Repression v. City of Chicago, 356 F.3d 767 (7th Cir. 2004). Alliance raised a procedural issue not present here: whether the wholly unsuccessful defense of a consent decree justified an award of attorneys’ fees. The Seventh Circuit did not hold that Buckhannon precluded attorneys’ fees for a partially successful defense of a consent decree. Rather, as the Grier court noted, “the Seventh Circuit took pains to note other cases in which a partially successful defense of a consent decree formed the basis for an award of attorneys’ fees.” Grier, 421 F.Supp.2d at 1073 (citing Alliance, 356 F.3d at 769 (in turn citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 557-61, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), and Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.1988)). The Seventh Circuit distinguished these cases from the situation with which it was confronted, i.e., a case in which plaintiffs’ efforts to defend a consent decree had not succeeded in any respect, but had utterly failed. Alliance, 356 F.3d at 769 (“But those postjudgment proceedings were at least partly successful. These plaintiffs’ postjudgment proceedings were not”). See also id. at 770 (“[I]n postdecree litigation there may be inevitable setbacks en route to victory, partial or complete. But in the present case there has for a decade now been nothing but loss- — a million dollars’ worth of legal services poured down the drain. There was not even a disappointing partial success, as there would have been if the City had moved to dissolve the decree and the plaintiffs had fended off dissolution yet had not averted a substantial modification”); id. at 773-74 (“In the present case, the circumstances out of which the class action suit had arisen had changed dramatically when modification was sought. The decree in its original form had accomplished its purpose and had become obsolete. There would have been no ignominy in the plaintiffs[] acceding to the modification. They might have breathed a sigh of relief, since if the City had asked that the decree be dissolved, it probably would have been. The plaintiffs’ opposition to modification gained the class nothing. Section 1988 does not reward failure”). Because this case does not involve the completely unsuccessful defense of an earlier injunctive order, the government’s citation of Alliance is unavailing.

The Ninth Circuit has held that “a district court has ... discretion to award fees to an original prevailing party who later defends a decree against a collateral attack in a separate action.” San Francisco National Association for the Advancement of Colored People v. San Francisco Unified School District, 284 F.3d 1163, 1166 (9th Cir.2002). Citing the Supreme Court’s decision in Delaware Valley, the court held that “work done defending the consent decree” from collateral attack was “ ‘useful and of a type ordinarily necessary to secure the final result obtained from the litigation.’ ” Id. (quoting Delaware Valley, 478 U.S. at 561, 106 S.Ct. 3088). Other circuits concur.

In Cody v. Hillard, 304 F.3d 767 (8th Cir.2002), the Eighth Circuit awarded attorneys’ fees to a plaintiff who was partially successful defending a consent decree. Id. at 775. The court held that the entry of the decree twelve years earlier was “clearly a ‘judicially sanctioned’ change in the parties’ relationship that conferred prevailing party status on the class under Buckhannon.” Id. at 773 (citations omitted). It acknowledged, however, that merely because the class had “established prevailing party status immediately after entry of a consent decree did ‘not make all later work compensable.’ ” Id. Rather, it stated:

“First, the award of fees should take into account the degree of a plaintiffs success in the case as a whole.... Second, an earlier established prevailing party status extends to postjudgment work only if it is a ‘necessary adjunc[t] to the initial litigation.’ ... Work that is more ‘like a new, separate lawsuit’ requires a fresh determination of entitlement to fees. The test is whether the later issues litigated were ‘inextricably intertwined with those on which the plaintiff prevailed in the underlying suit.’... Third, plaintiffs cannot over-litigate. Postjudgment litigation, like all work under the fee-shifting statutes, must be reasonable in degree ‘[Sjervices that were redundant, inefficient, or simply unnecessary are not compensable.’ ” Id. at 773 (quoting Jenkins by Jenkins v. State of Missouri, 127 F.3d 709, 716-18 (8th Cir.1997)) (citations omitted).

See also id. at 775 (“When a remedial consent decree is threatened, ‘plaintiffs’ counsel [are] under clear obligation to make the defensive effort,” quoting Jenkins, 127 F.3d at 717-18).

In a case decided prior to Buckhannon, the Fourth Circuit concluded that once a party had achieved “prevailing party” status by obtaining a consent decree, extending that status to postjudgment litigation turned on the relatedness of the later proceeding to the initial action. Plyler v. Evatt, 902 F.2d 273, 280-81 (4th Cir.1990). Where plaintiffs position was “essential to the preservation of the integrity of the consent decree as a whole,” and plaintiff was acting “not ... to cure [the decree’s] revealed deficiencies, but to preserve its fruits,” plaintiff was entitled to “prevailing party” status whether “successful in detail or not.” Id.

All of the various standards that have been articulated — whether the litigation was “useful and of a type ordinarily necessary to secure the final result obtained ...,” San Francisco NAACP, 284 F.3d at 1166; whether the issues are “inextricably intertwined with those on which the plaintiff prevailed in the underlying suit,” Cody, 304 F.3d at 773; and whether the subsequent litigation was “essential to the preservation of the integrity of the consent decree as a whole,” Plyler, 902 F.2d at 280-81 — indicate that plaintiffs are entitled to fees in this case. The government sought to dissolve the Orantes injunction in its entirety and made no offer to comply voluntarily with any of its provisions. Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (“A defendant’s voluntary-change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change”). Where a defendant moves to dissolve a consent decree or permanent injunction, defending against such a motion is sufficiently related to plaintiffs’ original success that a successful defense will confer prevailing party status.

b. Which Party Prevailed in These Proceedings

“The key to recovery of attorney’s fees is whether the party seeking fees is a ‘prevailing’ party.” Grier, 421 F.Supp.2d at 1068. The Supreme Court has held that a prevailing party need not win with respect to each and every issue; rather, prevailing party status can be accorded “when a party has prevailed on the merits of at least some of his claims.” Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam). “A typical formulation is that ‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978)). Thus, a plaintiff must “receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987).

The government correctly cites Garland for the proposition that the “touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties.” Garland, 489 U.S. at 792-93, 109 S.Ct. 1486. It overlooks, however, the sentence that follows in the Garland opinion: “Where such a change has occurred, the degree of the plaintiffs overall success goes to the reasonableness of the award ..., not to the availability of a fee award vel non.” Id. at 793, 109 S.Ct. 1486. Notably, in articulating this standard, the Supreme Court rejected the standard adopted by several circuits that plaintiffs must succeed on the “central issue” of the case and obtain the “primary relief sought.” Id. at 790, 109 S.Ct. 1486. Thus, the government’s assertion that it is the prevailing party because it achieved its “principal purpose” in the dissolution proceedings appears to be inapposite. See Buckhannon, 532 U.S. at 603-04, 121 S.Ct. 1835 (“ ‘Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.’ Our ‘[rjespect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail,’ ” quoting Hanrahan, 446 U.S. at 758, 100 S.Ct. 1987, and Hewitt, 482 U.S. at 760, 107 S.Ct. 2672).

The government argues that plaintiffs cannot be considered prevailing parties because the court modified paragraphs 2 and 11 of the injunction, and dissolved two other paragraphs. The government appears to assert that because plaintiffs did not succeed in preventing any modification, they achieved no benefit from their opposition to the government’s motion to dissolve. To be deemed the prevailing parties, however, plaintiffs need not succeed in preventing all modifications; they must only succeed in preventing some modifications. Buckhannon, 532 U.S. at 603-04, 121 S.Ct. 1835.

As the court’s recitation of the procedural background of the dissolution litigation demonstrates, it made certain modifications sought by the government, declined to make others, and ultimately denied the government’s request that it dissolve the injunction in its entirety. There is no doubt that plaintiffs succeeded on various significant issues, and achieved some of the benefit they sought in opposing defendants’ motion to dissolve. Moreover, the litigation clarified that the injunction applies to Salvadorans detained at ports of entry and that Orantes advisals must be provided to these individuals as well as to class members placed in expedited removal between ports of entry.

The government asked that the court bifurcate its request for dissolution of paragraphs 2 and 11 from its request that the remainder of the injunction be dissolved. The court agreed to do so, and on October 11, 2006, issued an order addressing the alleged facial conflict between these paragraphs of the injunction and the expedited removal statute. Although the government now contends that obtaining relief to remedy this conflict was its primary purpose in filing the motion to dissolve, the government persisted in seeking dissolution of all aspects of the injunction once the court had made modifications to address application of the injunction to class members placed in expedited removal. More than eight months after the order regarding the alleged facial conflict was entered, the court denied the government’s request to dissolve the injunction. The court did dissolve two paragraphs— one concerning the procedures to be followed before placing a detainee in solitary confinement and one concerning group legal presentations at a detention facility in Texas. The government does not cite the dissolution of these paragraphs as a basis for concluding that it is the prevailing party. Indeed, in maintaining the balance of the injunction, and for the reasons stated in the preceding section, it is clear that plaintiffs prevailed, as they succeeded not only in preventing dissolution of the injunction but in preventing major modifications as well. Buckhannon, 532 U.S. at 603-04, 121 S.Ct. 1835. For purposes of awarding attorneys’ fees, therefore, plaintiffs are the prevailing parties, despite the fact that they did not prevail on all issues.

2. “Substantially Justified”

The court must thus examine whether the government’s position was substantially justified to determine whether a fee award under the EAJA is appropriate. In making this determination, the court must consider the totality of circumstances both prior to and during litigation. Abela v. Gustafson, 888 F.2d 1258, 1264 (9th Cir.1989). See also United States v. Marolf 277 F.3d 1156, 1161 (9th Cir.2002) (“ ‘Thus we must focus on two questions: first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court.’ ... To prevail here, the government must establish that it was substantially justified on the whole, considering, first, the taking of the Asmara through administrative forfeiture without notice, and, second, continuing to pursue the forfeiture notwithstanding defective notice and expiration of the limitations period”); Kali v. Bowen, 854 F.2d 329, 332 (9th Cir.1988) (“ ‘In analyzing the reasonableness of the government’s position under the “totality of the circumstances” test, we must look both to the position asserted by the government in the trial court as well as the nature of the underlying government action at issue,’ ” quoting League of Women Voters of California v. FCC, 798 F.2d 1255, 1258 (9th Cir.1986)). In Kali the court noted that “[t]he inquiry into the nature of the underlying government action will by definition concern only the merits of that action,” while “[t]he inquiry into the government’s position at trial will encompass” the merits of the underlying action “to the extent ... the government chooses to defend” it, as well as “extraneous circumstances bearing upon the reasonableness of the government’s decision to” litigate. Kali, 854 F.2d at 332.

To be substantially justified, “the government’s position must have a reasonable basis in law and fact.” Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir.1998) (citing Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). “[A] position can be justified even though it is not correct, and ... 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, 108 S.Ct. 2541. “ ‘The government’s position must be “substantially justified” at “each stage of the proceedings.’ ” ” Corbin, 149 F.3d at 1052 (quoting Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir.1991)).

“That the government lost does not raise a presumption that its position was not substantially justified.” Kunzman, 817 F.2d at 498. Additionally, that an agency acted contrary to law does not necessarily mean that it lacked substantial justification for the position it took. Kali, 854 F.2d at 333.

The government bears the burden under the EAJA of establishing that both its conduct giving rise to the litigation and its litigation position were substantially justified. Li v. Keisler, 505 F.3d 913, 918 (9th Cir.2007). This burden is met when the government shows that its position “had reasonable basis in both law and fact.” Pierce, 487 U.S. at 566, 108 S.Ct. 2541; Ramon-Sepulveda v. INS, 863 F.2d 1458, 1459 (9th Cir.1988) (“Substantial justification is equated with reasonableness,” quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.C.C.A.N. 4953, 4989); Al-Harbi v. INS, 284 F.3d 1080, 1085 (9th Cir.2002) (“Substantial justification in.this context means justification to a degree that could satisfy a reasonable person”).

The Supreme Court has clarified that “substantial justification” for purposes of the EAJA does not mean “justified to a high degree,” but rather “justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person.” Pierce, 487 U.S. at 565, 108 S.Ct. 2541. This formulation “is no different from the ‘reasonable basis both in law and fact’ formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue.” Id. “ ‘[Substantially justified’ means, [however,] more than merely undeserving of sanctions for frivolousness; that is assuredly not the standard for Government litigation of which a reasonable person would approve.” Id.

“In making a determination of substantial justification, the court must consider the reasonableness of both the underlying government action at issue and the position asserted by the government in defending the validity of the action in court.” Bay Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th Cir.1990); 28 U.S.C. § 2412(d)(2)(D) (“ ‘[Position of the United States’ means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based”).

Applying these standards, the government will be liable for attorneys’ fees to plaintiffs as prevailing parties unless its underlying'conduct and litigation position were substantially justified, i.e., had a reasonable basis in law and fact. A finding that either the government’s underlying conduct or its litigation position was not substantially justified is sufficient to support a fee award under the EAJA. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir.1988) (“Since we held that the Secretary’s underlying action was not substantially justified, it is not dispositive whether or not the Secretary’s litigation position is substantially justified. Thus we decline to reach this issue”). See also Corbin, 149 F.3d at 1052 (“The government’s position must be ‘substantially justified’ at ‘each stage of the proceedings,’ ” quoting Williams, 966 F.2d at 1261).

Given the Ninth Circuit’s mandate that the court consider each stage of proceedings, the court considers separately each phase of the bifurcated dissolution proceedings' — first, that stage of the proceedings that addressed the facial conflict between the injunction and the expedited removal statute, and second, the stage during which the government sought dissolution of the injunction in its entirety.

The government argues that it had a reasonable legal basis to seek dissolution of the injunction once Congress enacted the expedited removal statute in 1996. It asserts that the “overlap between the injunction and the statute presented a collage of novel legal questions for the [ejourt’s consideration.” Furthermore, it contends, the conflict was so great that “[i]n order to proceed with the full implementation of its [congressional mandate, it was reasonable for the [gjovernment to seek to dissolve the Orantes Injunction.”

It is true that enactment of the expedited removal statute warranted review of the injunction. Indeed, the court ultimately found, after bifurcating the proceedings to address this narrow issue, that modification of paragraphs 2 and 11 was necessary to remedy the conflict that existed. The government fails to appreciate, however, that the conflict that existed between the injunction and the expedited removal statute warranted only a limited review of the injunction. Passage of the expedited removal statute did not provide a reasonable basis for asking that the court modify provisions that did not conflict with it. Thus, the government’s motion to dissolve the entire injunction was not substantially justified by enactment of the expedited removal statute.

The government’s present contention that remedying the conflict between the injunction and the expedited removal statute was its “principal purpose in bringing the action” is belied by the manner in which it prosecuted the litigation. After the court modified paragraphs 2 and 11 to remedy the conflict with the expedited removal statute, the government sought to avoid providing discovery on the expedited removal statute and withdrew arguments that “there [was] a facial conflict, that the injunction burden[ed] expedited removal, [and] that expedited removal presented] any other reason for dissolving the injunction.” If the government’s principal purpose in seeking dissolution of the injunction was to remedy conflicts with the expedited removal statute, then once the court modified paragraphs 2 and 11, and the government withdrew its arguments regarding expedited removal, the litigation should have ended. It did not, however, and the government’s admission now that it had achieved at that point all it sought to achieve in seeking dissolution of the injunction amounts to a concession that all litigation following those modifications, including the appeal, and all litigation prior to the modifications that concerned other aspects of the injunction or the broader motion to dissolve was not substantially justified. Stated differently, if the government’s primary concern was the expedited removal statute, it was not substantially justified in seeking dissolution of the entire injunction, as opposed to modification of those provisions it believed conflicted with the statute. By seeking dissolution, the government burdened plaintiffs and the court with discovery proceedings, briefing, evidence and argument that was unnecessary to achieve its “principal” or “main” purpose, i.e., resolution of conflicts between the injunction and the statute.

Moreover, as plaintiffs note in their reply, the government lacked substantial justification for bringing a motion premised on conflicts between the expedited removal statute and the injunction because this issue was not raised when the parties held their pre-filing conference under Local Rule 7-3. Plaintiffs contend that “[h]ad the government raised these claims with plaintiffs, rather than concealing them to gain tactical advantage, it is possible the parties could have resolved them without the need for litigation. This is especially true [if,] ... as defendants now assert, ... the government’s primary goal in bringing the motion was to obtain the relatively minor modifications to paragraphs 2 and 11 of the injunction.”

As the Supreme Court stated in Jean, “[w]hile the parties’ postures on individual matters may be more or less justified, the EAJA ... favors treating a case as an inclusive whole, rather than as atomized line-items.” 496 U.S. at 161-62, 110 S.Ct. 2316. See also, e.g., Al-Harbi, 284 F.3d at 1085; Bay Area Peace Navy, 914 F.2d at 1230. Here, reviewing the totality of the litigation in light of the government’s explanation of its motivation for filing the motion to dissolve reveals the following: Motivated by a desire to secure modification of two paragraphs of the injunction, the government did not discuss the issue with plaintiffs in required meet and confer sessions, did not apprise the court that it sought limited relief, instead moved to dissolve the entire injunction, and upon achieving its “principal purpose,” proceeded to litigate whether dissolution of the entire injunction was appropriate, through and including a multi-year appeal.

It is the government’s burden to show that it had “a reasonable basis in law and fact” for filing the motion to dissolve. Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541. As the government’s only argument is that the motion to dissolve was necessary to remedy conflicts between the injunction and the expedited removal statute, and as it is clear that much of the litigation was not necessary to achieve this objective, the court concludes that the government has failed to meet its burden.

Plaintiffs challenge the reasonableness of several of the government’s litigation decisions during the dissolution proceedings. They assert, for example, that “by raising new arguments at late stages of the litigation, the government repeatedly caused new rounds of litigation.” Plaintiffs also question the reasonableness of the government’s opposition to consolidation of the injunctive provisions in a single order, and maintain that its appeal was not substantially justified.

As the government correctly notes, Jean directs the court to refrain from this type of “atomized line-item” analysis. The fact that the government made one — or several — unreasonable strategic decisions during the course of the litigation is not determinative of the reasonableness of the government’s overall litigation position. The latter is the proper inquiry for EAJA purposes.

The government contends that it had a reasonable factual basis for seeking dissolution of the Orantes injunction because in the years following entry of the injunction there had been “sweeping changes in El Salvador and the United States.” In particular, the government cites the “overarching structural reforms” in its immigration processes, and the “eighteen-year lack of enforcement proceedings,” and notes that the court found this evidence “compelling” and “persuasive.” The government also contends that the court carefully examined evidence of changed conditions in El Salvador and found the changes “highly persuasive.” Finally, the government asserts the fact that “detention conditions ha[ve] changed substantially as well” provides a further reasonable basis in fact for filing the motion to dissolve. Taken as a whole, the government argues it demonstrated that there had been “significant changes in fact,” and that the court “weighted those changes in assessing] the extent to which the[y] ... warranted dissolution or modification of the injunction” on the basis that “it had outlived its usefulness.”

Plaintiffs counter that the court's order granting in part and denying part the government’s motion to dissolve the injunction catalogues a history of non-compliance with the terms of the injunction. Plaintiffs note that the court found “a significant number of violations of critical provisions of the injunction,” Orantes IV, 504 F.Supp.2d at 875, and that it gave “considerable weight to evidence suggesting that the facility reviews ha[d] understated— perhaps severely — violations of the standards at the various detention centers.” Id. at 873. With respect to advisals at the ports of entry, the court found:

“The government’s interpretation of the injunction was not so unreasonable, however, as to have justified contempt sanctions, had plaintiffs sought them. Rather, the fact that the injunction used terms that related only to proceedings between ports of entry compels the conclusion that, at least initially, the government did not violate the letter of the order by failing to give advisals to Salvadorans at ports of entry. Once IIRIRA passed, however, the injunction used terms that no longer had legal meaning, and the government should have sought clarification from the court. The government’s narrow interpretation of the injunction in the first instance, and its failure to obtain clarification once the distinction between deportation and exclusion proceedings was eliminated, cast doubt on the government’s assertion that it has complied with the injunction in good faith and reformed its practices to ensure that all aliens receive notice of their rights.” Id. at 851.

Moreover, the court noted that the government had failed to adduce any evidence that Form 1-826, which advises aliens of their right to apply for asylum and upon which the government relied as evidence of changed factual circumstances, was ever given to aliens. Id. at 853.

The government either knew that it was not complying with many provisions of the Orantes injunction when it brought the motion to dissolve, or failed to investigate its record of compliance or non-compliance. Detailed factual investigation is a prerequisite to bringing a motion based on changed factual circumstances. Cf. United States v. $12,248 U.S. Currency, 957 F.2d 1513, 1518 (9th Cir.1991) (affirming an EAJA fee award because, despite an earlier finding of probable cause, the government unreasonably delayed in pursuing a forfeiture action and conduct no investigation of claimant’s case during the period of delay, demonstrating that its position was not substantially justified). When the government moves to dissolve an injunction, which requires an affirmative showing of changed factual circumstances, substantial justification requires more than just a good faith belief in the merit of its position; it requires that the government examine the evidence within its control to determine whether it is or is not in compliance with the terms of the injunction. See, e.g., Taylor v. United States, 815 F.2d 249, 254 (3d Cir.1987) (Becker, J., concurring) (“... we are not denying attorney’s fees because of the government’s good faith. Good faith or laudatory motives are not a defense to an EAJA claim”); Truckers United for Safety v. Mead, 201 F.Supp.2d 52, 56 (D.D.C.2002) (“... the Government’s arguments that its ‘good faith belief equates to substantial justification of its actions and that the decisions of other courts provide substantial justification are without merit’ ”), rev’d on other grounds, 329 F.3d 891 (D.C.Cir.2003). Cf. Pierce, 487 U.S. at 563, 108 S.Ct. 2541 (“to be ‘substantially justified’ means, of course, more than merely undeserving of sanctions for frivolousness”). Given the evidence of noncompliance that was revealed through discovery of information within the government’s control, the court cannot find that the government was substantially justified in asserting compliance as a changed circumstance.

At oral argument, the government asserted that it was substantially justified in moving the dissolve the injunction because many years had passed since the end of the civil war in El Salvador in 1991, the passage of the expedited removal statute in 1996, and the promulgation of national detention standards in 2000. It argued that it had delayed filing the motion to allow the situation to “coalesce” and to ensure that it was in compliance with the injunction. The government also represented that it had engaged in a six month investigation prior to filing a motion to dissolve the injunction. Despite its purported investigation, however, the government did not adduce sufficient evidence of compliance to support its motion. This suggests either that the government’s investigation was inadequate, or that the government was on notice prior to filing the motion to dissolve that it would be unable to demonstrate substantial compliance with the terms of the injunction. Whichever may be the case, the record does not support a finding of substantial justification.

The government also urged at oral argument that the court consider the Seventh Circuit’s recent decision in Potdar v. Holder, 585 F.3d 317 (7th Cir.2009). There, the Seventh Circuit noted that to be substantially justified, “the Government’s position must be ‘justified in substance or in the main’ or ‘justified to a degre