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Illinois District Court Notes Supreme Court Has Ruled Out “Catalyst” Theory in EAJA Awards
by Carl R. Baldwin

On August 21, 2001, in Sileikis v. Perryman, the US District Court for the Northern District of Illinois dismissed a petition for attorney’s fees and costs under the Equal Access to Justice Act (EAJA). The court’s discussion of a recent Supreme Court decision shows that the “catalyst” theory in EAJA awards is now defunct.

On February 12, 2001, Victoras Sileikis filed a mandamus complaint demanding the adjudication of two applications before the INS that had been awaiting decision for over two years. One was an application to reapply for admission to the US after deportation and for a waiver of the grounds of excludability, the other was for adjustment of status. On May 22, 2001, the INS denied permission to reapply for admission, and for a waiver of excludability. The court then dismissed the case as moot, and gave the alien an opportunity to file objections. His objection was that the INS had only partially adjudicated the claim since it had not decided the adjustment application. On June 5, 2001, the INS denied the applications. Sileikis then requested attorney fees and costs incurred in proceedings before the court, on the theory that he was the “prevailing party” because the INS had finally decided the applications, albeit against him.

It appears at first glance that the INS action, after several years of inaction, may indeed have been prompted by the fact that the alien went into court. In that sense, he “prevailed.” Shouldn’t he be entitled to attorney’s fees and costs?

The court begins by noting that the circuit has recognized the “catalyst” theory for the award of attorney’s fees and costs where the plaintiff “received the desired result because the lawsuit brought about a voluntary change in government conduct,” and that the “catalyst” theory has been applied to EAJA cases.

This no longer holds true. The court tells us that “the Supreme Court recently changed the landscape of fee awards under the catalyst theory.” The Supreme Court case is Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 121 S. Ct. 1835 (2001). The Court there holds that the “catalyst” theory wrongly allows an award “where there is no judicially sanctioned legal relationship of the parties,” and holds that henceforth there must be a “judicial imprimatur” for the government change of policy. The Supreme Court was well aware that its decision overturned “long-prevailing circuit precedent” and that, indeed, most circuits had regularly applied the “catalyst” theory to determine the prevailing party in a petition for attorney’s fees and costs.

This will be sobering news for immigration attorneys who have successfully used mandamus actions to prompt the INS to decide long-delayed pending cases, and have then sought, and obtained, an award under the EAJA.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from