Transcript

IN THE SUPREME COURT OF THE UNITED STATES

RAFEH-RAFIE ARDESTANI, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE

No. 90-1141

October 8, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:50 a.m.

APPEARANCES:

DAVID N. SOLOWAY, ESQ., Atlanta, Georgia; on behalf of the Petitioner.

LAWRENCE G. WALLACE, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

11:50 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 90-1141, Rafeh-Rafie Ardestani v. Immigration and Naturalization Service.

Mr. Soloway, you may proceed.

ORAL ARGUMENT OF DAVID N. SOLOWAY ON BEHALF OF THE PETITIONER

MR. SOLOWAY: Mr. Chief Justice, and may it please the Court:

This case addresses the applicability of the Equal Access to Justice Act, or the EAJA, to deportation hearings before an immigration judge. More particularly, this case deals with 5 U.S.C. Section 504, that prong of the EAJA that applies to administrative proceedings. And those proceedings, in order to be eligible for EAJA fees, the Government must be represented by counsel.

In this case, the Government, the Immigration Service, was represented by their trial counsel. In addition, it is required that the statute say that this proceeding be determined. It must be determined on the record. That is the case here. And in addition, the position of the Government must be not even substantially justified. Here the Immigration Service produced no evidence at all in support of its position.

The EAJA was enacted to further specific purposes. One was to aid victims, to help avoid the situation where someone might have to surrender their rights and succumb to unjustified Government action just because of the expense of hiring an attorney. Mrs. Ardestani's petition for asylum was wrongfully denied and she was unjustifiably placed in deportation proceedings, proceedings so complex and with consequences so harsh, that it was necessary for her to engage an attorney.

Another specific purpose of the EAJA statute is to deter unjustified Government action. And that's done by holding the agency itself accountable. The Service did not dispute the Secretary of State's determination that Mrs. Ardestani had a well-founded fear of persecution were she to be returned to Iran under the Khomeini regime. Instead, the Service unwarrantedly asserted that Mrs. Ardestani had firmly resettled in a third country. They asserted that even though she had been in a third country for only 3 days, staying in --

QUESTION: We're really not -- those are really quite peripheral facts, aren't they, Mr. Soloway? What we're talking about here is whether a deportation proceeding is an adjudication under Section 554 for purposes of the EAJA?

MR. SOLOWAY: That's correct, Mr. Chief Justice. The EAJA provides broadly for protection for people who have been subjected to severe agency misconduct. And of all the possible Government agencies, and of all the possible agency proceedings, deportation proceedings are the ones that most specifically meet the EAJA context. They're the ones where the most harsh consequences meted out by any agency are meted out -- consequences that may be tantamount to banishment or exile, or in the words of Justice Brandeis, "the loss of life and property and all that makes life worth living." This is particularly so in the context of asylum where, as here, it had been determined that the refugee would be subjected to persecution.

Moreover, persons in deportation proceedings are the very people for whom the remedial measures of the EAJA most perfectly are met.

QUESTION: Mr. Soloway, I mean, that's all -- yes, I mean, it's very sympathetic, but the fact is even in criminal trials, when someone is wrongly prosecuted, and it turns out there was no basis for the prosecution, EAJA does not reimburse the wrongfully prosecuted criminal defendant. Although he may have spent hundreds of thousands of dollars on his defense, he's not reimbursed, is he?

MR. SOLOWAY: That's correct, Your Honor.

QUESTION: So, we're here to read this statute. Is this one of those instances that's reimbursed or one that isn't? There are some very touching situations that are not reimbursed. This may be one of them. Can we talk about the statute?

MR. SOLOWAY: Yes, Your Honor.

QUESTION: Good. What does it say?

MR. SOLOWAY: This statute says that adversary adjudications, that is the adjudications for which EAJA applies, are those that are under Section 554. "Under Section 554" is a term that has been the focus of the various circuit courts, and it's a term upon which the majority and the dissentient court below focused. It's an ordinary, common preposition. It's a word with perhaps as many as 25 meanings as a preposition.

In order for this Court to properly glean the correct meaning of the definition "under Section 554," it's necessary for this Court to look at the entire statutory scheme. This Court has held that interpretation of a statute is not an inert exercise in grammatical or literary composition. Instead, we have to look at what was the EAJA statute about. And, Justice Scalia, I think it's important to understand the way that deportation hearings are precisely those that fit that statutory scheme.

"Under Section 554," those words are merely a cross reference to the definitional provisions in Section 554. It merely means that Congress was cross-referencing and importing into the statute the definition in Section 554. That definition requires -- that definition provides that a statute must require that the hearing be determined on the record. In addition, there are six express exemptions, none of which arguably are involved in this case.

Confronted by a foreign language, confronted by the most harsh consequences meted out, confronted by a strange culture where the necessity of having a lawyer be involved are at its apex, deportation proceedings are most precisely in concert with the EAJA provisions.

QUESTION: I don't know. Maybe they more resemble, in fact, some of our opinions have said that they, and we've accorded some protections that are otherwise accordable in criminal proceedings. I mean, we've analogized them on occasion -- being deported to criminal proceedings. And if they're analogized to that rather than other 554 proceedings, then there'd be no compensation. I don't --

MR. SOLOWAY: Your Honor, of course, if they were tantamount to criminal proceedings, were this Court to so hold, the Sixth Amendment right to counsel may be invoked. The -- that's not something that's being urged in this case. As a matter of fact, here particularly, we're talking about someone who has engaged counsel at their own expense and merely a fee shifting in those adversary adjudications where the Government has been abusive.

QUESTION: Of course the Sixth Amendment right to counsel is not a right to have counsel paid for.

MR. SOLOWAY: Well, I'm talking about appointed counsel, yes, Your Honor.

Your Honor, if I understood your earlier question correctly, you were suggesting that were these to be viewed as criminal proceedings, deportation proceedings, because they mete out consequences that may be as harsh or harsher than many criminal sanctions. What seems to follow is that perhaps a person, an indigent person, is entitled to appointed counsel under the Sixth Amendment, although the Ardestani case doesn't specifically require this Court to address that.

However, in looking at the statutory scheme and in understanding what this statute means, it's helpful to note that in the legislative history there was a change in the Senate bill from "subject to," the language urged by the Service, to "under Section 554," and the joint explanatory statement of the conference committee, which may be particularly probative because it represents the views of both the House and Congress, stated that adversary adjudications were those, and I quote, are defined under the Administrative Procedures Act, where the agency takes a position through representation by counsel.

But it's probably a lot more instructive for this court to note that there were no discussions about whether or not different agencies, different categories of agencies were to be within the scope of EAJA. Instead, EAJA was a broad remedial statute, and the discussions were about categories of proceedings, those that were -- pardon me -- trial like, versus those that are rule making or price fix -- rate fixing.

In addition to that, in order to get -- to understand the meaning of the common preposition under, in this particular instance, the EAJA, on its face, recognizes the Administrative Conference of the United States as an authority on the EAJA implementation. The EAJA -- pardon me -- the ACUS chairman is required to be consulted with in order for --

QUESTION: We will resume there at 1:00, Mr. Soloway.

MR. SOLOWAY: Thank you, Your Honor.

(Whereupon, at 12:00 p.m., oral argument in the above-entitled matter was recessed, to reconvene at 1:00 p.m. this same day.)

AFTERNOON SESSION

12:59 p.m.

CHIEF JUSTICE REHNQUIST: We'll resume argument now in No. 90-1141, Ardestani against INS.

Mr. Soloway.

MR. SOLOWAY: Mr. Chief Justice, and may it please the Court:

More important than the rejection of the Senate language "subject to" that's been urged by the Government, and perhaps more important that the joint explanatory statement of the Conference Committee, that embraced the very use of the term that we urge here, the EAJA recognized the ACUS as an authority on the subject of the EAJA, and there the chairman stated that questions of EAJA's coverage should turn on substance.

The fact that a party has endured the burden and expense of a formal hearing, rather than technicalities. This is particularly important because that's precisely what we're faced with here -- a suggestion that a hyper-technical interpretation of the word "under" to defeat the reach of the EAJA statute to those particularly in need of the statute is to be compared to the functional and more appropriate interpretation as "as defined in" -- in other words, just mere importation, a cross-reference of those terms.

And for that reason, the burden should be on the Government to show that the Congress intended not to have merely a cross-reference to import those definitional words, but the Government really should have the burden to show that Congress intended to cover and protect people from all sorts of agency adjudications, but not those particularly in need of it in deportation proceedings.

There's no dispute that the EAJA statute applies to certain Social Security cases, those in which the Government, as represented by counsel --

QUESTION: Have we held that?

MR. SOLOWAY: Your Honor, the practice -- let me answer your question directly. I don't believe that question has ever been presented. It's been so clear on its face that it's never been challenged.

In those instances where Social Security proceedings have counsel representing the Government, the EAJA applies. There have been fees award -- awarded and there's not been a challenge. And the Government in this case hasn't urged a different interpretation.

As a matter of fact, in the legislative history of the 1985 reenactment, there's a specific example used of application of the EAJA statute. In that explicit example, the Congress -- the legislative history states in those instances -- for example, Social Security proceedings -- where the Government is represented by counsel, then in those events -- in those events the EAJA will apply.

QUESTION: But that's in legislative history materials. There's nothing in the statutory language itself that answers the question whether Social Security hearings are covered. Is that correct?

MR. SOLOWAY: Except for the interpretation and the same reasoning that's urged in this case, Your Honor.

QUESTION: In other words, if they are under the APA or whatever it is, then you argue that by a parity of reasoning, the deportation proceeding is also under?

MR. SOLOWAY: Mr. Justice Stevens, that's largely correct, but there's even more to the argument than that. In 1971, this case, in the Richardson v. Perales case, declined to [ILLEGIBLE WORD] the distinction whether or not Social Security proceedings are technically governed by the Administrative Procedure Act, or instead by the more specialized version of the APA, namely the Social Security Act.

That arcane legal distinction has never been resolved. That debate has never been terminated. Yet Congress clearly wasn't interested in whether or not Social Security proceedings were technically governed by that statute. Instead, they simply wished to categorize by types of proceedings, rather than by agencies or by governing statutes.

QUESTION: Well, isn't there a case in this Court that says that INS proceedings are not under the APA? What is that -- Morello?

QUESTION: Marcello.

QUESTION: Or Marcello?

MR. SOLOWAY: Well, Justice White, the Marcello case was not an EAJA case, but there this Court was called to look upon a divergence, a unique divergence that existed 36 years ago between the Immigration Nationality Act and the APA. Only in the immigration act could one person have both adjudicatory and prosecutorial functions. And this Court ruled that in those hearing provisions, that differed from the APA's hearing provisions, that the INA proceed -- INA provisions would prevail.

QUESTION: Well, does a proceeding under the APA have any -- what does it mean to say under the APA?

MR. SOLOWAY: Your Honor, the statute here says under Section 554.

QUESTION: Yes.

MR. SOLOWAY: Do I understand you correctly to be meaning under Section 554 as opposed to under --

QUESTION: Yes.

MR. SOLOWAY: Under Section 554, the definition of an adversary adjudication is defined under Section 554.

QUESTION: And so what does "under" mean in your --

MR. SOLOWAY: It merely means, Your Honor, a cross reference, as defined in that section, in accordance with that section. It merely is a phrase used to transport, if you would, the definitional section with its exceptions into the EAJA statute.

QUESTION: But these hearings are not conducted in accordance with that section.

MR. SOLOWAY: They are, Your Honor. There -- all of the statutes are identical. There's the requirement that determinations be made on the record. There's the entitlement to a personal appearance and reasonable notice. All of the Section 554 elements, all of them, without exception, are in place in deportation hearings.

QUESTION: What about the requirement that was at issue in Marcello?

MR. SOLOWAY: That's no longer a distinction. That distinction has evaporated. No longer do deportation adjudicative officers have prosecutorial functions. It no longer exists. Were Marcello to be --

QUESTION: But the requirement, the issue is whether the requirement exists. You're just saying that voluntarily the Government may be complying with it, but the fact is that the requirement that Marcello addressed does not exist. And if the requirement does not exist, then these things are not really under 554.

MR. SOLOWAY: Justice Scalia, I respectfully disagree with you. If the analysis is going to look at what takes place, what are the rights of people in deportation proceedings, and are they different, can they rely upon, are they in some functional and meaningful way different than those hearings conducted under the technical governance of the APA, the answer has to be no. And the fact that the Marcello distinction has long since evaporated is an important fact.

QUESTION: How did the distinction -- what -- as I remember, and I am very vague on it, but this distinction only lasted for a couple of years, 1950 or '52, when they allowed the INS Hearing Officer to have investigative functions. What is it that terminated the INS Hearing Officer's ability to have this dual function? Is it statute or a practice?

MR. SOLOWAY: It was not a statute, Your Honor. It was a regulation.

QUESTION: I see.

MR. SOLOWAY: And there's been no need for a statute since that's been the long-standing practice for -- in deportation proceedings.

QUESTION: Well, speaking of regulations, Congress has never taken issue with the Department of Justice regulation on this matter, has it?

MR. SOLOWAY: Your Honor, if you're specifically referring to the 1985 reenactment, which has been raised by the Service in this case, it's important to note that in 1984, before that reenactment, there were two circuit court of opinion decisions that looked at the terms "under Section 554" and interpreted those to be -- to mean simply as defined in that section -- namely, requiring that a hearing be determined on the record and that Government be represented by counsel. And while neither of those were deportation --

QUESTION: Yeah, but who is the officer -- is the fee statute administered by the Department of Justice?

MR. SOLOWAY: Yes, Your Honor -- well, in the setting of deportation proceedings --

QUESTION: You don't say that the Attorney General doesn't have authority to issue regulations under the fee statute?

MR. SOLOWAY: The fee statute itself states that the agencies may promulgate their rules after consultation with the ACUS chairman. And in fact, the ACUS chairman has taken a position that's completely at odds with the interpretation reached by the Attorney General.

QUESTION: Well, that may -- that may be so, but do you say that any regulation of the Attorney General under this statute is invalid?

MR. SOLOWAY: No.

QUESTION: Just any?

MR. SOLOWAY: No.

QUESTION: Well, so he does have a regulatory authority?

MR. SOLOWAY: Your Honor --

QUESTION: But you say he's quite mistaken in this case, but Congress has never taken issue with the regulation.

MR. SOLOWAY: Your Honor, while that's true, that the Congress has not focused upon the Attorney General's regulation --

QUESTION: And if you think they focused on the two cases you mentioned, I would think they focused on the issue and at the same time didn't disturb the Attorney General's regulation.

MR. SOLOWAY: I suggest that it's just as plausible that Congress didn't look at either the Seventh Circuit or the Eighth Circuit's interpretation, or this regulation. It had -- the issue of EAJA fees being within the scope of deportation hearings had simply never been adjudicated, had never come up through the courts. The Escobar Ruiz case in the Ninth Circuit came after the 1985 reenactment.

QUESTION: Do I understand your position correctly that -- it seems to me what you're saying is that if an agency is conducting its proceedings -- happens to be -- in accordance with the requirements of Section 554, even though it's not obligated to, and even though it doesn't say I am trying to conduct it pursuant to 554. If it just happens to be doing that, EAJA applies.

MR. SOLOWAY: No, Your Honor. The reason for that is that Section 554 requires, it states that the Statute must mandate that a hearing be required on the record and the mere fact that an agency might in its discretion allow hearings to be determined on the record, would not place it within the ambit of the EAJA.

QUESTION: No, but carrying Justice Scalia's question a bit further, if there were some statute, not part of APA, just some -- one statute at large in some isolated part of the U.S. Code that said proceedings X shall be conducted in accordance with the procedural requirements of the APA. Then you would say there was an entitlement to fees. Because then you would say that proceeding is an adjudicatory proceeding as defined in Section 554 of the Title V.

MR. SOLOWAY: I think there could be no dispute that if the statute on its face used the more restrictive language than is even necessary, then, yes, it would be within the ambit of EAJA.

QUESTION: And it wouldn't matter whether it was some third statute or if the INS statute itself required an adjudication to fit the definition of 554. You would still say it's an adjudication as defined in 554, and therefore, under 554, as you read the word "under."

MR. SOLOWAY: That's correct. Yes.

QUESTION: May I? In response to my question, I gather then, what you would say is if the statute requires a hearing to be on the record, any statute requires that there be an on-the-record hearing, and if the agency chooses, although it is not obliged, to conduct that on-the-record hearing pursuant to 554, then EAJA applies.

MR. SOLOWAY: No, Your Honor. I don't believe -- if I understand you correctly --

QUESTION: Well, then I don't know how you reconcile Marcello, because that is exactly the situation we have here. We have a requirement of an on-the-record hearing. We have the Supreme Court holding that the agency is not obliged to comply with all the requirements of 554. But nonetheless, you tell us, it is complying with all the requirements of 554, and therefore, it's under 554. Isn't that what you're telling us?

MR. SOLOWAY: Justice Scalia, no, that's not what I'm urging upon this Court. What -- I'd like to try to make this more clear, if I may. The EAJA statute says that the hearing -- must be required by statute to be determined on the record. That is the one that has to be specified in the statute because that's what EAJA says.

However, the other aspects about whether the adjudicative officer can be the same person as the prosecutorial officer is simply not something that -- upon which EAJA pivots.

QUESTION: The reason being that the Hearing Officer's capacity is not defined in 554. Isn't that right?

MR. SOLOWAY: That's correct, Your Honor. That's exactly right.

QUESTION: Which is entirely different from Marcello.

MR. SOLOWAY: Yes, Your Honor.

In addition to the parallel between Social Security Act proceedings which are -- where it has not been determined to be under the APA --

QUESTION: You're saying the Marcello requirement is not in 554 itself?

MR. SOLOWAY: That -- that's correct.

QUESTION: What about (d) that says the employee presides at the reception of evidence, shall make the recommended decision, blah, blah, blah, blah, except to the extent required for the disposition of ex parte matters. Such an employee may not -- that is the employee who presides at the reception of evidence -- may not be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.

MR. SOLOWAY: Yes, sir.

QUESTION: Isn't that the type of thing that was involved in Marcello?

MR. SOLOWAY: It is related to Marcello in that way.

QUESTION: It is indeed. It is exactly what was involved in Marcello. And it is exactly within 554, isn't it.

MR. SOLOWAY: But, Your Honor, it's not within the definitional part of Section 554. In other words, 554 also deals with the type of notice, the method of notice, things like that. Instead, the importance of 554 and the reference to 554 is merely to import the definition.

QUESTION: But the statute doesn't say under the definitional part of Section 554. It says under Section 554.

MR. SOLOWAY: Well, yes, it does, Your Honor, that's correct. On the other hand, the statute -- the EAJA statute is using Section 554 only for a definition. There's no reason either from the context of the statute or the legislative history, or any other plausible reason to view those additional requirements. But even if you did, they're all met here. All of them are met. Marcello doesn't stand in the way here because the difference that had existed 36 years ago no longer exists, and didn't exist in Mrs. Ardestani's case.

The entire panoply, the full -- all of Section 554, if you will, has been met in the deportation proceedings.

QUESTION: Not by the force of statute.

MR. SOLOWAY: The one that's been pointed out by Justice Scalia is by regulation. That's correct.

QUESTION: The regulation might change and go back to the Marcello situation.

MR. SOLOWAY: Even if that were the case, Justice White, you'd still have the requirements of Section 554, the definition that's in 554, the requirement of a hearing on the record. That would still be met.

In addition, the interpretation that's urged, a meaningful, functional definition that includes those most in need of the EAJA, the ones that -- for which the EAJA goals are most precisely in concert, that interpretation provides a bright line, an easy application for the courts rather than require the courts to look to Richardson v. Perales analyses or Marcello analyses, as has been discussed this afternoon.

I'd like to reserve my time if there are no questions.

QUESTION: Very well, Mr. Soloway.

Mr. Wallace, we'll hear now from you.

ORAL ARGUMENT OF LAWRENCE G. WALLACE ON BEHALF OF THE RESPONDENT

MR. WALLACE: Thank you, Mr. Chief Justice, and may it please the Court:

This is not a case in which the question presented is left unresolved by the statutory text that Congress enacted. The very purpose of a definition section in a statute is to delimit the scope of the operative terms that the definition section undertakes to define. Here the operative term on which petitioner must rely in Section 504(a) is "adversary adjudication by the agency." And subsection (b) of the same section, 504, defines that term as an adjudication under Section 554 of the Administrative Procedure Act.

QUESTION: Mr. Wallace, can I ask you right there, if one were to agree, and I understand you don't agree with this, but the word "under" should be given the meaning "as defined in, then would you win or lose?

MR. WALLACE: I think that's a close question, the -- but I -- only because procedures adopted by regulation now have brought the administrative deportation proceedings closer, and very close, to what is described in Section 554. But there has been no pertinent statutory change since Marcello against Bonds was decided in 1955. So as far as statutory requirements are concerned, the same discrepancies occur in the statutory obligations between what the Immigration and Nationality Act provide and what Section 554 provides.

And our position is that EAJA should not be interpreted, and there is not indication that EAJA was intended to deter agencies from voluntarily adopting procedures that more closely conform to Section 554 of the Administrative Procedure Act by imposing a cost on that kind of agency procedural reform by making EAJA fees kick in.

And indeed, the very authority that petitioner cites, the Administrative Conference of the United States, came to that same conclusion after receiving comments on their proposed model rule. And in issuing the final model rule at the page of the Federal Register we cite in our brief, volume 46, page 32901, they say quite specifically after discussing this problem of the possibility of deterrence of voluntary adoption of the improved procedures, we have decided, therefore, to drop the provision of the draft rules suggesting that awards will be available and agencies voluntarily use the procedures described in Section 554.

QUESTION: That seems like a good answer. What do you do about the Social Security cases?

MR. WALLACE: The -- in the 1985 reenactment of EAJA, there was a reference in the legislative history, in the reports to a procedure under the Social Security Act, which was a pilot program that has now been entirely discontinued as of 1987. We describe that in some detail in a footnote in our brief in Sullivan against Hudson in this Court. That's No. 88-616.

Footnote 25 in that brief explains that after a district court decision called Solling against Bowen, criticizing the adoption of this pilot program as unauthorized by statute and saying that the statue requires proceedings in which the Secretary is not represented, and therefore, wholly outside of the EAJA context. The Secretary, as we explained at 52 Federal Register 17286, discontinued in 1987 that pilot program all together.

Now, apparently the committee thought that adjudications under that pilot program were governed by 554. That is not definitively resolved what the rationale was for the committee saying that it thought that such Social Security hearings would be covered, but that has become a moot point in light of the discontinued use of that program.

QUESTION: I'm not really troubled with the legislative history part of it. I'm asking for your opinion on whether -- and other Social Security proceedings are not at all covered.

MR. WALLACE: They are not at all covered.

QUESTION: In the case we had last term, Melconian, was a court action, I take it, which is different.

MR. WALLACE: That is correct. The question in this case is only the question of the scope of the authorization of the award of fees for administrative adversary adjudications, defined as adjudications under Section 554.

So we have explained in detail in footnote 12 of our brief that throughout Section 504, the indisputable, repeated usage of the word "under" in conjunction with another section of the United States code, or another provision of law, the indisputable usage is that it means governed by that provision or subject to that provision.

QUESTION: Well, if it means that, the Social Security Act, there should be no fees under the Social Security.

MR. WALLACE: Well, that was a question left open in this Court's decision.

QUESTION: But I mean if your argument is consistent, that's the result it would lead to, wouldn't it?

MR. WALLACE: Well, we don't know whether this now discontinued procedure was subject to Section 554 or not. This Court's decision in Richardson against Perales left that question open, and it had never been definitively determined. And there will not be an occasion now to determine it, because the program is discontinued. So we don't know whether that was correct.

QUESTION: But you're saying if a statute enacts the precisely identical procedures to those set forth in the Administrative Procedure Act, that then EAJA fees would not apply -- say you enact a new statute -- Nuclear Regulatory Agency, or something or another -- that that would not apply unless the statute, its only word said that these procedures -- these proceedings are governed by the APA. Their enacting parallel procedures would not be --

MR. WALLACE: Parallel procedures would not do it, but they would not preclude the possibility that Section 554 would also apply. They might by implication be construed to exclude the separate application of Section 554, but that would be a question to be litigated.

QUESTION: You have precisely that problem in the National Labor Relations Act, don't you? I think the board proceedings are governed by the NLRA, which predated the APA and tracks it to some extent. And you would say that they are under -- are those proceedings under or not?

MR. WALLACE: I can't say that I've looked into that precise question in connection with this case. But I think the statutory criterion for the award of fees is very clear. They are available for adjudications that are governed by Section 554 of the Administrative Procedure Act.

QUESTION: Well, it's very clear if you read the word "under" to mean governed by. It's very fuzzy if you read the word "under" to be as defined in.

MR. WALLACE: Well, that -- there are barriers to reading it that way, Mr. Justice. And we think they are insuperable barriers. I mentioned one of them to you already, that throughout that section, 554, the word "under" when used in conjunction with a statutory provision -- and we collected these in note 12 of our brief, page 14. We collected all -- many examples of this. Indisputably, they have to mean governed by, subject to. And the contention would be that this one, and this one alone, is different.

And indeed --

QUESTION: But if -- couldn't one counter with the argument that why would Congress single out this small category of agency proceedings for different treatment from all others when the equities would seem to be the same and the purpose of the statute would seem to apply?

MR. WALLACE: Well, the equities may --

QUESTION: And without saying a word about it?

MR. WALLACE: The equities may not be the same. If Congress were to give specific attention to the question of administrative deportation proceedings, and I don't want to belittle the utility of counsel in such proceedings, but Congress might well come to the conclusion that applying EAJA to these proceedings would not be the best way to address this problem. There are more than 100,000 such proceedings conducted each year by the 92 immigration judges of the INS. And the vast majority of these proceedings -- everyone I've talked with there estimates that it's upwards of 90 percent -- the question of deportability is either conceded by the alien or very quickly resolved against the alien, and the whole issue becomes a claim by the alien for political asylum or for suspension of deportation.

QUESTION: It seems to me what you're saying is that the cases in which the Government's position would not be substantially justified are a very small number of the total universe.

MR. WALLACE: The Congress might conclude that because these all are a matter that involve discretion on the part of the Government, and they're all matters on which the burden of proof has shifted to the alien, that there would be very few cases in which the Government's position could fairly be said not to be substantially justified. That doesn't mean that there wouldn't be a lot of litigation about that and a lot of courts awarding fees. But Congress could conclude that this isn't really the tool.

And it might also be concerned that the exercise of that discretion in favor of aliens in these proceedings might be deterred if it could become a drain on the agency's budget through the award of attorney's fees.

QUESTION: Well, didn't they budget about 100 times as much money for this statute as they've actually spent?

MR. WALLACE: Well, it's true that the costs have not reached the initial estimates that were made when it was --

QUESTION: They've failed by about 99 percent.

MR. WALLACE: That is correct. But there are reasons why, if Congress gave attention to this question it might conclude that there are better and more effective ways of meeting a need for the provision of counsel in this proceedings than by applying EAJA, and that EAJA might not be well suited to it. That is a matter that Congress simply has not addressed.

And I have not yet mentioned another barrier which we think is a very strong barrier to the alternative interpretation that petitioner espouses and that you have queried about. And that is that we are dealing here with a waiver of sovereign immunity. And those must be strictly construed in the first place. And that, in this context, really fairly precludes departure from the ordinary meaning of the word "under Section 554," to a more expansive, unusual meaning of the words "under Section 554." And they must -- in waivers of sovereign immunity must be express rather than applied, which it seems to us, fairly precludes analogy.

QUESTION: How about the Erwin decision last year?

MR. WALLACE: Well, the Erwin decision was one in which Congress had clearly subjected the category of cases to a waiver of sovereign immunity and the only question was whether the ordinary rules of the road for waivers of sovereign immunity, the usual tolling rules of the road, would apply.

QUESTION: So you think the narrow reading of waivers is -- that rule is still in place?

MR. WALLACE: Well, this Court has repeatedly referred to it, and has referred to it approvingly in an analogous contexts because ultimately it is a rule that assures against intrusion by the courts into the legislative function of determining what claims on the public fisk should be honored and what claims should not.

Of course an argument can be made that this would be a worthwhile use of public funds. But there are many requests for arguably worthwhile uses of public funds and Congress has to determine how to apportion the limited resources that are available. And in at least two decisions of last term that come to mind, the United States against Dolm, and OPM against Richmond, the Court emphasized that this is the essence of the legislative function under our constitutional system.

And in any event, it was the well-established principal at the time Congress was drafting EAJA and that established the rules of statutory draftsmanship under which Congress put together this text, with its definition section specifying the proceedings for which fee-shifting would be available.

So that is the proper way to read the statutory text, and it was equally well established at the time this statute was drafted by this Court's 1955 decision in Marcello against Bonds, that administrative deportation proceedings are not proceedings governed by Section 554 of the Administrative Procedure Act.

We have also collected in our brief, in footnote 26 on pages 28 and 29, some examples of the many uncertainties that would be opened up if, instead of the terms of the waiver of sovereign immunity, the Congress used being the criterion, a more elastic criterion of procedures functionally similar to Section 554 procedures were to be adopted. This would --

QUESTION: I'm going to have to start reading your footnotes, if they're important enough to bring up in oral argument.

(Laughter.)

MR. WALLACE: Well, we have not yet refrained from writing footnotes, although I don't take issue with those who have.

So that is --

QUESTION: Who is that?

MR. WALLACE: Well, some opinions of this Court are now coming out without footnotes, and they're a pleasure to read.

(Laughter.)

MR. WALLACE: In any event --

QUESTION: Thanks very much.

(Laughter.)

MR. WALLACE: Some of the footnotes are also a pleasure to read.

(Laughter.)

MR. WALLACE: So, in essence, our position is that the terms of EAJA's waiver of sovereign immunity govern here.

It happens that there's also another barrier to recovery in administrative deportation proceedings. And that is that a holding to that effect would require construing EAJA to repeal by implication Section 1362 of Title VIII. This is to us illustrative of the difficulties that are encountered by straying beyond the terms of the waiver of sovereign immunity that Congress utilized.

If there are no further questions, we're submitting our case.

QUESTION: Thank you, Mr. Wallace.

Mr. Soloway, you have a minute remaining.

REBUTTAL ARGUMENT BY DAVID N. SOLOWAY ON BEHALF OF THE PETITIONER

MR. SOLOWAY: Thank you. I respectfully disagree with the interpretation of the ACUS exemption or discussion about voluntary compliance. I read from the Federal Register, "Congress has provided that private parties in disputes with the Federal Government are entitled to hearings as a right, and others, for whatever reasons, it has been determined that hearings may be provided at the discretion of the Government.

"On reflection we have concluded that it is more consistent with the purposes of the legislation not to cover proceedings of the latter type than to include them. We have decided, therefore, to drop the provision of the draft rules suggesting that awards be available when agencies voluntarily comply with the procedures described in Section 554."

That reference to voluntary acceptance of procedures precisely deals with the requirement of hearings being required to be on the record.

In addition to that, I wish to bring to this Court's attention that there's been no suggestion of why an agency adjudication --

CHIEF JUSTICE REHNQUIST: Mr. -- your time has expired, Mr. Soloway.

The case is submitted.

(Whereupon, at 1:37 p.m., the case in the above-entitled matter was submitted.)