Lasheen v. Embassy of the Arab Republic of Egypt
625 F. App'x 338
9th Cir.
2015
Check Treatment
Docket

Mohamed E. LASHEEN, Plaintiff-Appellee, v. EMBASSY OF THE ARAB REPUBLIC OF EGYPT; et al., Defendants-Appellants, and The Loomis Company, Defendant.

No. 13-17143

United States Court of Appeals, Ninth Circuit

Dec. 18, 2015

Argued and Submitted Dec. 8, 2015.

without merit. Hernandez clearly invoked paragraph 19 of the ABC agreement in seeking administrative closure from the BIA.

The government also contends that paragraph 19 “contemplates that either the [BIA] or the immigration courts will adjudicate” a request for administrative closure. Therefore, according to the government, the BIA‘s decision that Hernandez “needed to pursue his Election before the immigration judge, in no way violated the plain language of paragraph 19.” This argument fails under paragraph 19‘s plain language, which provides that ABC class members “may ask the Immigration Court or the BIA to administratively close his or her case.” ABC, 760 F.Supp. at 805 (emphasis added). The government‘s interpretation of paragraph 19 reads “or the BIA” out of the agreement and thus is rejected. (refusing to adopt an interpretation of the ABC agreement that would read a clause out of the agreement).

Neither the 30-day time limit for filing a notice of appeal with the BIA under 8 C.F.R. § 1003.38(b) nor the BIA‘s place-of-filing rule under 8 C.F.R. § 1003.2(a) strip the BIA of jurisdiction to decide an ABC class member‘s request for administrative closure. See ; . Moreover, under the ABC agreement, a class member‘s right to seek administrative closure is not qualified by any procedural requirements other than “ask[ing] the BIA.” ABC, 760 F.Supp. at 805. Upon such request to “the BIA . . . the case will be administratively closed unless the class member has been convicted of an aggravated felony or is subject to detention under paragraph 17.” Id.

3. The government appears to concede that Hernandez is neither an aggravated felon nor subject to detention under paragraph 17. We remand for the BIA to determine Hernandez‘s entitlement to administrative closure in the first instance, consistent with our decision. See . As Hernandez is awaiting an asylum interview with the USCIS and hopes to apply for relief under Section 203 of the Nicaraguan Adjustment and Central American Relief Act before the interview occurs, we trust that the BIA‘s decision will be expeditious.

Petition GRANTED and REMANDED.

See also 485 Fed.Appx. 203.

Before: KOZINSKI, BYBEE, and CHRISTEN, Circuit Judges.

MEMORANDUM*

The estate of Mohamed Lasheen filed this action claiming that defendants-appellants improperly denied Lasheen medical benefits under an ERISA plan sponsored by the Egyptian Embassy.1 The defendants appeal the district court‘s entry of default judgment against them, arguing that: (1) the district court erred in entering default judgment against them; (2) the district court erred in declining to grant the defendants a hearing on damages; and (3) the district court erred in awarding attorneys’ fees. We have jurisdiction under 28 U.S.C. § 1291. We AFFIRM.

1. Default judgment

The decision to grant or deny entry of default judgment is reviewed for abuse of discretion. . Under the Foreign Sovereign Immunities Act, “[n]o judgement by default shall be entered against a foreign state . . . unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). “This provision . . . codifies in the FSIA context the long-standing presumption that due process requires plaintiffs seeking default judgments to make out a prima facie case.” .

The district court did not abuse its discretion in entering default judgment against the defendants given their sporadic participation in the litigation, frequent failures to appear, and ultimate failure to appear at a mandatory December 2005 status conference. The district court properly applied the factors discussed in , in determining whether to enter default judgment. Moreover, the defendants cannot demonstrate that their default was due to excusable neglect. See, e.g., (finding that the default resulted from the defendants’ culpable conduct where the Dominican Republic was “aware of relevant federal law . . . [and had been] fully informed of the legal consequences of failing to respond“); see also (noting that a defendant‘s conduct is culpable “where there is no explanation of the default inconsistent with a devious, deliberate, willful, or bad faith failure to respond“), overruled on other grounds by . Finally, the plaintiff‘s complaint alleged sufficient information to make out a prima facie case that he was entitled to recover due benefits under 29 U.S.C. § 1132(a)(1)(B), satisfying the requirements for entry of default judgment against a foreign sovereign.

2. Damages

The district court awarded Lasheen $200,000 in damages, the maximum lifetime benefit amount available under Lasheen‘s benefits plan. The defendants argue that the district court erred because it did not hold an evidentiary hearing on damages, and that Lasheen did not sufficiently demonstrate that he was entitled to the lifetime benefit.

Upon entry of default, a plaintiff is required to prove the amount of his damages, because neither the default nor the allegations in the complaint can establish the amount of damages. See . The district court may determine the amount of damages without an evidentiary hearing where “the amount claimed is a liquidated sum or capable of mathematical calculation.” . Here, the district court properly relied on affidavits and medical records submitted by the plaintiff indicating that the cost of Lasheen‘s needed treatment was over $250,000. No evidentiary hearing was required because the damages were clearly ascertainable based on the records Lasheen submitted. The district court did not abuse its discretion.

3. Attorneys’ fees

Finally, the defendants contest both the district court‘s decision to award attorneys’ fees and the amount of fees awarded. ERISA gives the district court discretion to grant attorneys’ fees and costs to a prevailing party. 29 U.S.C. § 1132(g)(1). We review for abuse of discretion. See ; . The district court considered the appropriate factors articulated in Hummell, , governing the decision to award attorneys’ fees. Moreover, in the absence of special circumstances, it is an abuse of discretion for the district court to deny a prevailing plaintiff attorneys’ fees. . The defendants have demonstrated no such special circumstances here. Nor have the defendants demonstrated that either the hourly rate or the amount of hours worked by Lasheen‘s attorneys in pursuing this case was unreasonable, given the delays the defendants caused in this litigation. The district court did not abuse its discretion.

AFFIRMED.

Yanet PRADO-BACILLO, aka Yanet Bacillo Prado, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. No. 13-70951. United States Court of Appeals, Ninth Circuit. Submitted Nov. 18, 2015.* Filed Dec. 18, 2015.

Yanet Prado-Bacillo, Santa Ana, CA, pro se.

Oil, Jennifer A. Singer, DOJ-U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief

Notes

1
In , we previously determined that the defendants were not entitled to sovereign immunity because Lasheen‘s claims fell within the commercial activity exception to the Foreign Sovereign Immunities Act.
*
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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