MARGARET M. MORROW, District Judge.
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 ("IIRRA"), providing for the expedited removal of inadmissible aliens. As respects the intervening change in law, the government argued that the injunction conflicted with
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 government also requested that the court delete paragraph 11 in its entirety on the basis of a purported facial conflict.
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 prior 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.
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 IV"), 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 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:
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...."
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.
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.
28 U.S.C. § 2412(d)(1)(A) provides:
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 (9thCir.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").
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
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.
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.
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 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
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.
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:
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
"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 plaintiff's 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 `[r]espect 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
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.
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
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. "`[S]ubstantially 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) ("`[P]osition 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
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 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
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.
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."
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."
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.
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.
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.
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.
There is no doubt that the government was justified in asserting changed factual circumstances with respect to conditions in El Salvador. As respects changed conditions in its detention facilities, and structural reforms in immigration processes, however, the government lacked substantial justification in fact. Additionally, the court cannot find that the government has met its burden of showing that it had a substantial legal justification for moving to dissolve the injunction. The legal justification it has offered—conflicts between the injunction and the expedited removal statute—simply does not support the scope of litigation the government undertook. Having carefully examined the merits of the government's case and the totality of the circumstances, the court finds that the government's decision to initiate and prosecute dissolution proceedings was not substantially justified.
The court may also decline to award plaintiffs attorneys' fees if it finds that "special circumstances make an award unjust." See 28 U.S.C. § 2412(d)(1)(A). The Ninth Circuit has held that special circumstances are present when the government argues for "a novel but credible extension or interpretation of the law," Hoang Ha v.
The government argues, without citation to authority, that the following three circumstances justify a finding that an attorneys' fee award would be unjust: "(1) the Government [w]as the party bringing an action to dissolve a long-standing injunction; (2) novel arguments requiring analysis of the intersection between the expedited removal statute and the Orantes Injunction [existed], and (3) novel factual circumstances compell[ed] examination of whether the injunction had outlived its usefulness."
"The burden of proving the special circumstances ... exception to the mandatory award of fees under the EAJA rests with the government." Love, 924 F.2d at 1495. "Th[e] [special circumstances] provision, [moreover,] should only be invoked with caution." Lucas v. White, 63 F.Supp.2d 1046, 1056 (N.D.Cal.1999). Considering the "special circumstances" exception to an award of fees under 42 U.S.C. § 1988, the Ninth Circuit has cautioned that a district court "cannot deny a motion for fees solely because the statute grants [it] discretion to do so." Herrington v. County of Sonoma, 883 F.2d 739, 744 (9th Cir.1989). "Instead, [it] must articulate reasons for any departure from the general rule that prevailing parties are to be awarded fees, identifying any special circumstances and explaining why they render an award unjust." Id. The defendant bears the burden of showing special circumstances warranting a denial of fees, "and the defendant's showing must be a strong one." Id.
The gravamen of the second and third circumstances the government cites as justification for the denial of attorneys' fees is that the case raised questions of first impression.
The court has already considered the government's argument regarding the expedited
For the first time at oral argument, the government asserted that under the rule articulated in Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), it had an affirmative duty to seek dissolution of an institutional reform injunction. Having reviewed the Dowell decision once again, the court finds no language in it that supports the government's reading of the case. Dowell did not address obligations of the government, but rather the obligation of the courts under separation of powers principles to dissolve injunctions that have outlived their usefulness. The Court stated:
Dowell in fact supports the proposition that dissolution of an injunction, even one that is highly invasive of the enjoined party and implicates important institutional values, should not be granted until the government has operated in compliance with it for a reasonable period of time. Here, the government failed to adduce evidence of substantial compliance.
At oral argument, the government also raised for the first time the proposed special circumstance that extra burdens attached because it has had to apply different detention standards and give different advisals to Salvadorans than other aliens. This argument is puzzling. Throughout the litigation, the government asserted that it was in compliance with the injunction because it had implemented national detention standards that were more protective of Salvadorans' rights than those mandated by the injunction. The government stressed repeatedly that these standards were applicable to all aliens.
In sum, the government has not met its burden of proving that special circumstances make an award of attorneys' fees unjust.
Because plaintiffs prevailed on significant issues in the litigation, and because the government has not shown that its litigation of the motion to dissolve was substantially justified or that special circumstances render an award of attorneys' fees unjust, plaintiffs are entitled to fees. The court thus turns to the amount of the fee award.
In Pierce, 487 U.S. 552, 108 S.Ct. 2541, the Supreme Court observed that
The Pierce Court noted that "the `special factor' formulation suggests Congress thought that [$125] an hour was generally quite enough public reimbursement for lawyers' fees...." Id. at 572, 108 S.Ct. 2541. Thus, special factors cannot be "of broad and general application.... The `novelty and difficulty of issues,' `the undesirability of the case,' the work and ability of counsel,' and `the results obtained' are factors applicable to a broad spectrum of litigation; they are little more than routine reasons why market rates are what they are." Id. at 573, 108 S.Ct. 2541. Similarly, "local or national market" rates, the "general legal competence" of counsel, and customary fees and awards are not special factors. See id. at 572-73 & n. 3, 108 S.Ct. 2541. Instead, the Court stated, the statute's reference to "the limited availability of qualified attorneys for the proceedings involved" means "attorneys having some distinctive knowledge or specialized skill needful for the litigation in question," e.g., attorneys who have "an identifiable practice specialty such as patent law, or knowledge of foreign law or language." Id. at 573, 108 S.Ct. 2541.
Thus, "[e]nhanced hourly rates based on the special factor of the limited availability of qualified attorneys for the proceedings involved may be awarded under EAJA where the attorneys possess `distinctive knowledge' and `specialized skill' that was `needful to the litigation in question' and `not available elsewhere at the statutory rate.'" Nadarajah v. Holder, 569 F.3d 906, 912 (9th Cir.2009) (quoting Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir.2005)). See also Pirus v. Bowen, 869 F.2d 536, 541-42 (9th Cir.1989) ("It is not enough, however, that the attorney possess distinctive knowledge and
The Ninth Circuit has recognized that attorneys may demonstrate "distinctive knowledge and specialized skill in immigration law and, in particular, constitutional immigration law and litigation involving the rights of detained immigrants." Nadarajah, 569 F.3d at 912. See also Fang v. Gonzales, No. 03-71352, 2006 WL 5669901, *3 (9th Cir. Oct. 30, 2006) (Unpub. Disp.) ("Counsel Smith's specialized skills and distinctive `knowledge of ... particular, esoteric nooks and crannies of immigration law,' as established by the affidavit and a review of the case file, enabled her to address effectively in the briefs and at oral argument the application of two complicated state and federal statutory schemes and to succeed in obtaining relief from removal for Fang," quoting Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir.2004)). In Nadarajah, the Ninth Circuit analyzed the qualifications of three of the attorneys who represented plaintiffs in this litigation and awarded them attorneys' fees at market rates.
Attorneys Jennifer Chang Newell, Karen Tumlin, and Monica Ramirez have less experience than Rabinovitz, Arulanantham, Nadarajah and Joaquin. Tumlin is a 2004 graduate of the University of California at Berkeley who has been employed at NILC since October 2005. he is teaching immigration law during the 2009-2010 school year at Loyola School of Law and has served as lead or principal co-counsel in two complex immigration class action suits and several other general immigration suits.
Although Mark Rosenbaum has not specialized in immigration litigation, he has experience in immigration and complex civil litigation. Plaintiffs note that Rosenbaum brings unique experience in that he served as lead counsel for plaintiffs during the 1985-87 trial. Given his role in the original proceedings before Judge Kenyon, Rosenbaum developed extensive knowledge of the processing and detention practices that led to issuance of the permanent injunction.
Immigration law is a practice specialty that requires distinctive knowledge and special skill. Plaintiffs have presented evidence that many of their attorneys specialize in this area, and thus possess special knowledge, skill and expertise. They have also proffered evidence that certain of their attorneys, by virtue of their long involvement in this litigation, possess distinctive knowledge crucial to litigation of this complicated case. The government does not dispute that plaintiffs' counsel possess distinctive knowledge and special skills.
The Ninth Circuit has awarded enhanced attorneys' fees based on specialized knowledge of immigration law in cases which "involved more than established principles of law with which the majority of attorneys are familiar." Nadarajah, 569 F.3d at 914. See also id. at 913 (noting that the Seventh Circuit has enhanced rates where counsel established that "knowledge of foreign cultures or of particular, esoteric nooks and crannies of immigration law ... [was] needed to give the alien a fair shot at prevailing," quoting Muhur, 382 F.3d at 655-56).
Plaintiffs assert that this litigation required counsel with distinctive knowledge and experience of immigration law, immigration processing and enforcement procedures, and immigrants' rights litigation. The case required extensive briefing regarding the Immigration and Nationality Act ("INA"), in that the government asserted that five different provisions of that act precluded the court's consideration of issues related to expedited removal. Plaintiffs also maintain that the case required extensive experience and familiarity with removal processing procedures and detention policies and practices, given that counsel were required to investigate problems in the field, review discovery information, and present evidence to the court to counter the government's claims that its forms, policies, and guidelines had obviated the need for the injunction to remain in effect.
While the government concedes that the action arose in the context of immigration law and concerned immigration detention practices, it contends that none of the issues raised was so complicated that it required distinctive knowledge or specialized skill. In the government's view, the case required briefing regarding jurisdictional issues, discovery matters, and the rules surrounding dissolution of an injunction.
The Ninth Circuit has declined to "award[ ]enhanced hourly rates in immigration cases pursuant to the statutory exception for limited availability of qualified attorneys where the litigation in question required no `distinctive knowledge' or `specialized skill.'" Thangaraja, 428 F.3d at 876. Ramon-Sepulveda, the sole case on which the government relies, noted that plaintiffs "legal claim against the INS involve[d] established principles of res judicata-principles with which the majority of attorneys are, or should be, familiar. Additionally, there is no shortage of attorneys in Los Angeles qualified to assist aliens in deportation proceedings." Ramon-Sepulveda, 863 F.2d at 1463. See Thangaraja, 428 F.3d at 876 (declining to apply an upward adjustment for representation of an alien in connection with the review of a Board of Immigration Appeals decision regarding applications for asylum and withholding of removal); Rueda-Menicucci
Ramon-Sepulveda is not controlling, as it involved straightforward representation of a single alien in a deportation proceeding. While such a representation may prove to be sufficiently complex to warrant enhanced fees, Freeman v. Mukasey, No. 04-35797, 2008 WL 1960838, *4-5 (9th Cir. Feb. 26, 2008) (Unpub.Disp.) (awarding enhanced fees in a case raising matters of first impression in the circuit regarding the interplay between the adjustment of status regime and the visa waiver program, and "present[ing] thorny procedural and jurisdictional questions because [the alien] had left the country and because the proper venue for review of her claims was not clear until passage and interpretation of the REAL ID Act"); Fang v. Gonzales, No. 03-71352, 2006 WL 5669901, *3 (9th Cir. Oct. 30, 2006) (Unpub.Disp.) (holding that specialized skill and distinctive knowledge of immigration law was required to "address effectively in the briefs and at oral argument the application of two complicated state and federal statutory schemes and to succeed in obtaining relief from removal for" alien), there can be no dispute that the issues presented in this action were substantially more complex than representation of a single alien. The case is, in the court's view, more analogous to Nadarajah. There, the government contended that no distinctive knowledge or special skill was required because the litigation "involved the application of the immigration detention statutes, Supreme Court precedent, and an understanding of constitutional law, but turned on statutory interpretation and did not involve the application of complex statutes or regulations." Nadarajah, 569 F.3d at 913-14. The court concluded, however, that the "case involved more than established principles of law with which the majority of attorneys are familiar." Id. at 914 (citing Ramon-Sepulveda, 863 F.2d at 1462-63). It described the litigation as "an unusual and complex case which required a 58page brief and resulted in a significant 15page published decision that is cited thus far in more than 70 other cases and 20 treatises or articles." Litigation of the Orantes injunction before the district court alone involved multiple hearings and hundreds of pages of briefing; five separate written orders were issued which cumulatively totaled more than 140 pages. The case resulted in a published district court opinion that was subsequently affirmed by the Ninth Circuit. The injunction upheld in the opinion affects not just a single alien, as do the cases cited by the government. Rather, it has nationwide significance.
The Nadarajah court distinguished past decisions in this and other circuits that had denied an enhancement on the basis that the action before it "did not involve merely a `straightforward application' of the rules of immigration law and appellate practice." Id. (quoting Thangaraja, 428 F.3d at 876). In assessing the complexity of the litigation, the Ninth Circuit credited the declaration of an immigration law expert, Marc Van Der Hout. Van Der Hout has submitted a declaration in this case as well, which states:
The court finds Van Der Hout's declaration as credible here as the Ninth Circuit did in Nadarajah. His description of the action, moreover, is entirely consistent with the court's knowledge and impressions of litigation surrounding dissolution of the injunction.
In sum, plaintiffs have "demonstrate[d] and a review of the briefs and opinion confirms that here, unlike in Thangaraja, `knowledge of ... particular, esoteric nooks and crannies of immigration law ... [was] needed to give the alien a fair shot at prevailing.'" Nadarajah, 569 F.3d at 915 (quoting Thangaraja, 428 F.3d at 876). This litigation was, if anything, broader in scope and significance and of greater complexity than Nadarajah. Plaintiffs have therefore met their burden of showing that counsel with distinctive knowledge and specialized skill were needed.
Plaintiffs must also show that qualified attorneys were not available to handle this litigation at the statutory maximum hourly rate. See United States v. Real Property Known as 2224 Dolorosa Street, 190 F.3d 977, 984 (9th Cir.1999) ("[W]hile claimants have submitted evidence that the market rates for similarly experienced counsel exceed the statutory rate, they have not demonstrated that no suitable counsel would have taken on claimants' case at the statutory rate"); Love, 924 F.2d at 1496-97 (remanding for further findings as to availability of attorneys in the area with similar skills who would have handled the case at the statutory rate, where the only evidence in the record was the statement of the attorney seeking fees that there were few other lawyers in Oregon with his expertise in pesticide litigation and the district court had made no findings on the issue).
Van Der Hout states:
Plaintiffs also proffer the declaration of Carol A. Sobel, who since 1997 on an annual basis has surveyed firms to obtain relevant
Sobel concludes that, with respect to Rosenbaum, his requested hourly rate of $625-675 for work performed between 2005 and 2008 is "at the very low end of, if not below, market rate for an attorney of [his] skill, reputation and experience."
Finally, plaintiffs have submitted the declaration of Angelo A. Paparelli. Paparelli has practiced immigration and nationality law in Los Angeles since 1981.
Despite this evidence, the government asserts in conclusory fashion that "[t]here simply has been no showing that other practitioners would not have been willing to take this case for the EAJA statutory rate."
In Nadarajah, the only piece of evidence cited by the appellate court on the subject of other attorneys of comparable skill willing to handle the matter at EAJA rates was Van Der Hout's declaration. The government objected to the declaration's sufficiency in that case, and the Ninth Circuit concluded that its objection lacked merit. Nadarajah, 569 F.3d at 915. Here, plaintiffs have presented not only the Van Der Hout declaration, but Sobel's extensive analysis of market rates and attorneys' fees awards in the Los Angeles area. They also offer Paparelli's statement his firm would not have accepted plaintiffs' representation except at market rates, and that plaintiffs' request is in line with such rates.
In Nadarajah, the appeals court quoted a First Circuit opinion concerning the type of "showing that is necessary to establish that qualified counsel was not available." It stated:
Employing this standard, the Ninth Circuit concluded that "Van Der Hout's declaration satisfactorily demonstrate[d] that no other counsel was available to take Nadarajah's case at the adjusted statutory maximum hourly rate." It further found that "the government ha[d] failed to rebut Nadarajah's showing that qualified counsel was not available." Id. Because the Ninth Circuit has explicitly held that, absent rebuttal, even a portion of the voluminous evidence presented in this case suffices to demonstrate that qualified counsel were not available to handle the action at the EAJA statutory rate, the court finds that plaintiffs have made an adequate showing on this point.
The government objects to the time charged for internal communications among counsel where the subject of the communication is not noted in the attorneys' time records. The government cites Tchemkou v. Mukasey, 517 F.3d 506 (7th Cir.2008), in which the Seventh Circuit stated:
The court finds the reasoning of the Seventh Circuit on this point persuasive. The court, however, cannot locate instances in which plaintiffs' lawyers billed for internal communications without identifying the subject matter of the conversation. The only example cited by the government is 3.75 hours purportedly billed by Ramirez for calls with co-counsel on unidentified subjects. The court has reviewed Ramirez's time records and cannot locate such an entry. Each entry concerning conference calls contains a phrase following "re:" that describes the general subject matter of the discussion.
The government objects to the fees requested for Rosenbaum's time, which total $11,043.76. The basis for the objection is the following statement in Rosenbaum's declaration: "I maintained time records on a contemporaneous basis. Those records were misplaced, and I reconstructed them based on recollection, references to me in the records of other counsel and other documents we filed with the district court or submitted to the government."
Plaintiffs' fee request is based on an across-the-board five percent reduction in the number of hours reflected in the time records. The court does not wish to penalize plaintiffs for applying this discount, and thus reduces the fee award attributable to Rosenbaum by an additional 20%. The plaintiffs are awarded $9,300.00, a reduction of $2,325.00 in the amount requested for Rosenbaum's time.
The government asserts that plaintiffs should receive no fees for work completed prior to the court's October 11, 2006 order modifying paragraphs 2 and 11 of the injunction.
The government argues similarly that plaintiffs did not prevail on, and thus are not entitled to fees for, work on a motion to compel production of documents regarding detention standards.
As the Ninth Circuit has noted:
The court agrees with plaintiffs that developing evidence of the government's noncompliance with the injunction was a critical component of their ultimate success in defending against the government's request for dissolution. Thus, even had plaintiffs' motion been denied outright, and even had no additional discovery been produced, the court would not have denied all fees associated with the motion. The motion was not completely unsuccessful, however, as plaintiffs obtained additional documents that the court found relevant and persuasive in determining whether it was appropriate to dissolve the injunction. Plaintiffs thus achieved a degree of success in bringing the motion. Considering the significance of the overall relief plaintiffs obtained in relation to the hours their lawyers reasonably expended, and the fact that the motion was not entirely unsuccessful, the court declines to reduce the fee award by the number of hours spent litigating the motion to compel discovery.
Turning to plaintiffs' work on the facial conflict argument, the court considers the Ninth Circuit's holding in O'Neal v. City of Seattle, 66 F.3d 1064 (9th Cir.1995). There, the court concluded that a plaintiff could recover fees for a failed class certification motion because she ultimately prevailed on a claim related to the causes of action on which she sought certification of a class. The Ninth Circuit identified the appropriate two-part inquiry as follows:
Claims are related where they involve "a common core of facts" or are "based on related legal theories." Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1499(9th Cir. 1995). "[T]he test is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury upon
The government's request that the court dissolve paragraphs 2 and 11 of the injunction due to a conflict with the expedited removal statute was "related to" the government's broader request that the court dissolve the injunction altogether, in that both requests involved a common core of facts and related legal theories.
Plaintiffs achieved some success in opposing the government's request that the court dissolve paragraphs 2 and 11. Most fundamentally, the court did not dissolve the paragraphs, but modified them to ensure that they were compatible with the requirements of the expedited removal statute. Plaintiffs' work thus ensured that class members placed in expedited removal would receive the protections of the injunction to the extent appropriate, including an advisal regarding their right to apply for asylum. Additionally, plaintiffs' efforts brought to light the fact that the government took the position that the Orantes injunction did not apply to Salvadorans detained at ports of entry. This led to the court's later clarification that the injunction did apply to such class members. Nonetheless, because plaintiffs were only partially successful in this phase of the proceedings, the court concludes it is appropriate to reduce the fees they seek to some degree. By the court's calculation, plaintiffs seek $140,294.50 in fees for the phase of the litigation related to expedited removal. The court reduces this amount by one-third, or $46,764.83.
The government contends that plaintiffs' fee request for time and travel to Texas to collect declarations from 37 recently detained Salvadorans is excessive and unnecessary.
The government requests that the court decline to award fees for 50.85 hours of work done between October and December 2007 by Joaquin and Ramirez related to the closing of the San Pedro Service Processing Center. Plaintiffs counter that they are entitled to fees for enforcing compliance with consent decrees or injunctions. See, e.g., San Francisco NAACP, 284 F.3d at 1166 ("It is well settled law in this circuit that a district court has discretion to award fees to a prevailing party in consent decree litigation for work reasonably spent to monitor and enforce compliance with the decree, even as to matters in which it did not prevail"). While this is a correct statement of the law, it is inapposite. Plaintiffs' enforcement activities at the San Pedro center are not only not described in their motion for attorneys' fees, but also appear unrelated to the dissolution proceedings pending that were before the court. As a consequence, the court cannot determine the reasonableness of the $19,970.25 in fees sought, and declines to award them.
The government alleges a number of instances of excessive billing during the proceedings in district court. First, it asserts that it was unreasonable for Joaquin to spend 29 hours preparing for oral argument. The court agrees and finds that no more than 21 hours was required. Similarly, the court finds that the 68.1 hours spent drafting plaintiffs' opposition brief was excessive. It will award a total of 40 hours for this activity. Tumlin charged 45.7 hours preparing for two depositions. The court concludes that only 24 hours were reasonably expended. A law clerk charged 53 hours preparing a memorandum that evaluated the testimony of two witnesses. The court believes only 20 hours were reasonably incurred.
Cumulatively, these changes result in a $28,860.00 reduction in the amount of fees awarded.
The government asserts that plaintiffs' request that the court award $203,233.43 to write one appellate brief is excessive. The government identifies three line items that it asserts should be reduced or eliminated. It cites the fact that Joaquin billed 42 hours, or $26,274.63, to draft the procedural background section of the appellate brief.
The court concludes that a paying client would not have paid $650 an hour for 42 hours of lead counsel's time to prepare the procedural background section of the appellate brief, when the task could have been performed by a less senior, less expensive associate.
In addition, Joaquin expended 56.9 hours, at a cost of $35,135.75, preparing for a twenty-minute appellate argument.
Plaintiffs also claim 180.1 hours for revision of their appellate brief, including 126.1 hours charged by five attorneys and 54 hours charged by law clerks, for a total cost in excess of $50,000. Joaquin, billing at $650 per hour, spent 38.1 hours revising the brief, while four other attorneys, billing $300 to $385 per hour, expended 88 hours on revisions. Law clerks, billing at $75 per hour, revised the brief for an additional 54 hours. Such extensive revision, equivalent to more than 2.5 hours and almost $1,000 per page, is excessive. As noted, in formulating their fee request, plaintiffs applied an across-the-board five percent reduction in the number of hours billed by attorneys and a twenty percent reduction in the number of hours billed by law clerks. The court finds a further reduction of forty-five percent in the number of hours billed by attorneys and of thirty percent in the number of hours bill by law clerks for revision of the appellate brief is appropriate. Consequently, the court reduces the fee award for this task by $16,643.25, and awards $18,492.50 for revision of the appellate brief.
As respects the appellate phase of the proceedings, therefore, the court reduces the fees plaintiffs seek by $61,113.28.
Plaintiffs also request that the court tax certain costs to the government. As noted, the EAJA allows for the recovery of both fees and costs. The statute states, in relevant part, that "a court shall award to a prevailing party other than the United States fees and other expenses...." 28 U.S.C. § 2412(d)(1)(A). Plaintiffs seek $37,290.83 in district court costs, and $236.75 in appellate costs; they include such items as telephone calls, photocopying, postage, and attorney travel expenses. The amounts claimed are reasonable and recoverable. Jean v. Nelson, 863 F.2d 759, 778 (11th Cir.1988) ("[W]e reject the government's argument that telephone, reasonable travel, postage, and computerized research expenses are not compensable under the EAJA"); Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986) (affirming an award of telephone, postage, travel and photocopying expenses); International Woodworkers of America v. Donovan, 792 F.2d 762, 767 (9th Cir.1985) (expenses routinely billed to a client—telephone, air courier,
For the reasons stated, the court grants in part plaintiffs' motion for attorneys' fees under the EAJA. The court's reductions in the fees requested total $158,360.37. After subtracting this amount, the court awards plaintiffs attorneys' fees of $1,306,360.44 and costs of $37,527.58, for a total award of $1,343,888.02. The government is directed to pay this sum to petitioner on or before
This is not to endorse the government's underlying conduct. Particularly given its dubious interpretation that the injunction applied only to class members detained between ports of entry and not at points of entry, the court has doubts regarding the reasonableness of the government's pre-litigation conduct. Because it finds that the government's litigation position was not reasonable, however, the court need not consider its pre-litigation conduct further.
