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Marcus v. Colvin

United States District Court, D. Oregon

October 28, 2014

TOMIKO MARCUS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Merrill Schneider, Schneider Kerr & Gibney Law Offices, Portland, Oregon, Attorney for plaintiff.

S. Amanda Marshall, United States Attorney, Ronald K. Silver, Assistant United States Attorney, Portland, Oregon, Gerald J. Hill, Special Assistant United States Attorney, Social Security Administration, Seattle, Washington, Attorneys for defendant.

OPINION AND ORDER

ANN AIKEN, Chief District Judge.

Plaintiff Tomiko Ernest Marcus seeks attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The Commissioner of Social Security ("Commissioner") opposes plaintiff's motion on the basis that its position was substantially justified. For the reasons set forth below, plaintiff's motion for attorney fees (doc. 17) is granted.

PROCEDURAL BACKGROUND

Plaintiff filed an application for supplemental security income ("SSI")on April 9, 2007. Tr. 25, 64. On March 13, 2009, after a hearing, Administrative Law Judge Marilyn Maurer ("the ALJ") issued a decision finding plaintiff was a U.S. citizen for the purpose of SSI and granted her benefits. Tr. 95-101. The Appeals Council then reviewed the decision on its own motion and remanded it for further development of the record. Tr. 91-92, 103-07, 153-56. On April 19, 2011, ALJ Maurer reversed herself and issued a decision finding plaintiff was not a U.S. citizen for the purpose of receiving benefits. Tr. 14-21.

Plaintiff then sought judicial review from this Court. Pl.'s Opening Br. 1 (doc. 12). She argued that she was a U.S. citizen on the grounds that (1) she had received a Commonwealth of the Northern Mariana Islands ("CNMI") Certificate of Identity card which entitled her to U.S. citizenship; (2) res judicata required a finding of U.S. citizenship; and (3) she met the domicile requirements for CNMI and U.S. citizenship. Id. at 8-9. In response, the Commissioner argued that plaintiff's identity card did not entitle her to citizenship, res judicata was inapplicable, and plaintiff was not domiciled in the CNMI for five years immediately prior to Nov. 3, 1986 and thus was not a CNMI or a U.S. citizen. Def.'s Br. 6-10 (doc. 13). On June 19, 2014, this Court held that plaintiff was a U.S. citizen for the purpose of receiving SSI benefits, finding that she was domiciled in the CNMI for five years immediately prior to Nov. 3, 1986 and met the other citizenship qualifications. Marcus v. Colvin, No. 6:13-CV-1009-AA, 2014 WL 2872234, at * 7 (D. Or. June 19, 2014) (doc. 15). Subsequently, plaintiff moved for attorney's fees in the amount of $5, 258.34. Pl.'s Mot. Att'y Fees (doc. 17, 19).

STATEMENT OF FACTS

Plaintiff was born in 1940 on Moen Island, which now forms part of the Federated States of Micronesia ("the FSM"), an independent, sovereign nation in the South Pacific. Tr. 125, 129. In 1970, plaintiff and her husband moved to Saipan, another South Pacific island now part of the CNMI, a territory of the United States. Tr. 125, 127. At the time of plaintiff's move, both Moen and Saipan were part of the United Nations' Trust Territory of the Pacific Islands ("the TTPI"). Id.

Plaintiff resided in Saipan from 1970 until 1979, during a time of transition for the Northern Mariana Islands. Tr. 125. Plaintiff raised children while her husband worked for the government of the Northern Mariana Islands. Id . Starting in 1972, Saipan and the other Northern Mariana Islands began negotiating to become a U.S. commonwealth. In 1975, the people of the future CNMI approved the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States ("the Covenant") and the U.S. Congress and President subsequently approved it. Pub. L. 94-241, 90 Stat. 263 (1976) (codified at 48 U.S.C. § 1801). The Covenant defined the CNMI's relationship with the United States and included provisions for awarding U.S. citizenship once the commonwealth was formally established. Id. at § 301. That would not occur until November 4, 1986. Proclamation No. 5564, §2 (a), 51 Fed. Reg. 40, 399 (Nov. 3, 1986) (reprinted in 48 U.S.C. § 1801).

In the interim, the future CNMI established a government, approved a constitution, and granted interim U.S. citizenship and Certificate of Identity cards to qualifying individuals. DeMesa v. Castro , 844 F.2d 642, 644-45 (9th Cir. 1988). In 1974, plaintiff registered and began voting in local elections in Saipan. Tr. 125, 136. In 1975, plaintiff renounced her FSM citizenship in order to pursue CNMI citizenship. Tr. 130.

In 1979, plaintiff moved to Oregon along with her husband, Mike Marcus, who was participating in a two-year work training program. Pl.'s Opening Br. 7; Tr. 125, 129, 148. She left behind children, including a mentally challenged and paraplegic daughter. Pl.'s Opening Br. 7; Tr. 125, 148. Plaintiff maintained that she and her husband intended to return to Saipan once her husband could secure employment there. Tr. 125-26. When her husband's work training program ended, he accepted employment in Oregon with Continental Airlines ("CAL") in the hopes he might eventually secure employment in Saipan with CAL subsidiary Air Micronesia. Tr. 125-26. While in Oregon, the Marcuses applied for CNMI Certificate of Identity cards. In 1984, plaintiff and her husband received the cards and, with the cards, interim U.S. citizenship. Tr. 125, 129-32, 143. The Marcuses believed they owned land in Saipan but would later learn that a 1986 change in law extinguished their property rights. Tr. 69, 148, 240.

By 1989, Mike Marcus had lost his job with CAL and the Marcuses began to believe that a return to Saipan was unlikely and sent for their disabled daughter to join them in Oregon. Tr. 125. In 2007, an administrative law judge granted Mike Marcus Medicaid benefits finding that he met domicile requirements for CNMI ...


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