Catholic Social Svc, et al v. Orantes, et al
Filing
717
ORDER signed by Judge Lawrence K. Karlton on 11/14/11 ORDERING that Plaintiff's MOTION for Attorneys fees 681 is GRANTED, with $143,625 awarded for attorneys' fees, and $2,033.27 awarded for attorneys' costs. (Mena-Sanchez, L)
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UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
CATHOLIC SOCIAL SERVICES,
INC., - IMMIGRATION PROGRAM,
et al.,
NO. CIV.S-86-1343 LKK/JFM
11
Plaintiffs,
12
v.
O R D E R
13
14
JANET NAPOLITANO, SECRETARY
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
15
Defendants.
16
/
17
18
This class action addressed the Immigration and Naturalization
19
Service’s improper decision to turn away certain applicants for
20
legalization during a one-year period from 1987 to 1988. The court
21
approved the parties’ settlement agreement in January 2004.
22
December 14, 2009, the court issued an order that, inter alia,
23
granted plaintiffs’ motion to enforce the settlement agreement
24
because
25
regulation to deny the legalization applications of some class
26
members, in violation of the settlement.
the
defendants
had
relied
1
upon
a
1991
On
abandonment
1
Now before the court is plaintiffs’ motion for attorney’s fees
2
and costs pursuant to the Equal Access to Justice Act, 28 U.S.C.
3
§ 2412(d), for the fees and costs incurred in prosecuting their
4
motion
5
monitoring and enforcement of the settlement agreement.
to
enforce
and
6
7
8
their
work
related
to
post-judgment
I. BACKGROUND
A.
Initial Class Action Complaint
On
November
12,
1986,
plaintiffs
filed
a
class
action
9
complaint challenging an Immigration and Naturalization Service
10
(“INS”)1 regulation implementing a provision of the Immigration
11
Reform and Control Act of 1986 (“IRCA”), Pub. L. 99-603, 100 Stat.
12
3359, codified at 8 U.S.C. §§ 1255a et seq. (1986), which allowed
13
immigrants who had been in the United States unlawfully since
14
January 1, 1982 to apply for adjustment of status during a
15
specified twelve-month period.
16
IRCA directed the Attorney General to grant a stay of deportation
17
and to issue interim work authorization to immigrants who could
18
establish
19
application for adjustment of status under IRCA.
20
1255a(e)(2).
a
prima
facie
case
See 8 U.S.C. § 1255a(a)(2)(A).
of
eligibility
in
his
or
her
See 8 U.S.C. §
21
While IRCA required immigrants to be able to show that they
22
had been continuously physically present in the United States since
23
November 6, 1986, see 8 U.S.C. § 1255a(3)(A), the statute also
24
stated that “[a]n alien shall not be considered to have failed to
25
1
26
The INS was the predecessor to the U.S. Citizenship and
Immigration Service (“CIS”), among other agencies.
2
1
maintain continuous physical presence in the United States . . .
2
by virtue of brief, casual and innocent absences.”
3
1255a(3)(B).
4
provided that:
5
The
INS
subsequently
issued
a
8 U.S.C. §
regulation
that
Brief, casual, and innocent means a departure
authorized by the Service (advance parole)
subsequent to May 1, 1987 of not more than
thirty days for legitimate emergency or
humanitarian purposes unless a further period
of authorized departure has been granted in
the discretion of the district director or a
departure was beyond the alien’s control.
6
7
8
9
10
8 C.F.R. § 245a.1(g) (emphasis in original).
11
In 1988, this court held that IRCA’s “continuous physical
12
presence” requirement was met for those applicants who had “brief,
13
casual, and innocent” absences from the country without prior INS
14
approval and, thus, the INS’s regulation interpreting the statute
15
was invalid.
16
1149 (E.D. Cal. 1988).
17
on the merits.
18
subsequent
19
application period for the plaintiff class; mandated procedures for
20
determining whether an immigrant was covered by the injunction; and
21
provided that plaintiffs who could show prima facie eligibility for
22
legalization were entitled to stays of deportation, release from
23
custody, and temporary employment authorization.
24
Catholic Soc. Serv., Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.
25
1992); Reno v. Catholic Soc. Serv., Inc., 509 U.S. 43 (1993);
26
Catholic Soc. Serv., Inc. v. Reno, 134 F.3d 921 (9th Cir. 1997);
See Catholic Soc. Serv., Inc. v. Meese, 685 F.Supp.
The government did not appeal the ruling
The government did, however, appeal this court’s
remedial
orders
that,
3
inter
alia,
extended
the
See, e.g.,
1
Catholic Soc. Serv., Inc. v. I.N.S., 182 F.3d 1053 (9th Cir. 1999).
2
B. Settlement of Class Action
3
The parties entered a settlement that was approved on January
4
23, 2004.
Order Approving Settlement Class Action, ECF No. 656
5
(Jan. 23, 2004).2
6
The settlement set forth a process for determining whether an
7
individual was a member of the plaintiff class, under which the
8
individual
was
required
to
submit
an
application
for
class
9
2
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
The settlement defined the plaintiff class entitled to
relief as:
A. All persons who were otherwise prima facie
eligible for legalization under section 245A
of the INA and who tendered completed
applications for legalization under section
245A of the INA and fees to an INS officer or
agent acting on behalf of the INS, including
a QDE, during the period from May 5, 1987 to
May 4, 1988, and whose applications were
rejected for filing because an INS officer or
QDE concluded that they had traveled outside
the United States after November 6, 1986
without advance parole.
B. All persons who filed for class membership
under Catholic Soc. Serv., Inc. v. Reno, No.
Civ. S-86-1343 LKK (E.D. Cal.), and who were
otherwise
prima
facie
eligible
for
legalization under Section 245A of the INA,
who, because an INS officer or QDE concluded
that they had traveled outside the United
States after November 6, 1986 without advance
parole were informed that they were ineligible
for legalization, or were refused by the INS
or its QDEs legalization forms, and for whom
such information, or inability to obtain the
required application forms, was a substantial
cause of their failure to timely file or
complete a written application.
Joint Mot., Doc. 650, Att. 1 (Dec. 1, 2003).
4
1
membership and an application for status as a temporary resident,
2
with supporting documentation, to the defendants within a one-year
3
period.
4
defendants were required to grant class membership applications
5
where “it appear[ed] more probable than not that the applicant
6
[met] the class definition.”
Joint Mot., Doc. 650, Att. 1, at ¶ 4 (Dec. 1, 2003).
The
Id. at ¶ 6.
7
Before denying the application, the defendants were to forward
8
to the applicant or his or her representative “a notice of intended
9
denial explaining the perceived deficiency in” the application for
10
class membership, after which, the applicant had thirty days to
11
submit additional evidence or otherwise remedy the deficiency. Id.
12
at ¶ 7.
13
denied, the defendants were required to send a copy of the notice
14
of denial to the applicant, his or her attorney, and class counsel
15
and inform the applicant of his or her right to appeal the denial
16
to a special master.
If, following the above protocol, the application was
Id. at ¶ 8.
17
If, however, the application was granted, the defendants were
18
required to adjudicate the class member’s application for temporary
19
residence as if it were timely filed between May 5, 1987 and May
20
4, 1988.
Id. at ¶ 11.
The settlement agreement provided:
21
22
23
24
25
26
The
Defendants
shall
adjudicate
each
application for temporary residence filed on
Form I-687 in accordance with the provisions
of section 245A of the Immigration and
Nationality
Act,
8
U.S.C.
§
1255a,
regulations, and administrative and judicial
precedents the INS followed in adjudicating I687 applications timely filed during the IRCA
application period.
5
1
Id.
2
C. Initial Settlement for Attorney’s Fees and Costs
3
In March 2004, the parties agreed to settle plaintiffs’ claims
4
for attorney’s fees and costs incurred in the action. Stipulation,
5
ECF No. 659 (March 5, 2004).
6
inter alia, “Defendants will pay Plaintiffs $3,500,000 in full
7
settlement of all claims they may have for attorneys’ fees, whether
8
under the Equal Access to Justice Act (“EAJA”), or otherwise, and
9
$100,000 in full settlement of all claims they may have for costs.”
This court’s order thereon stated,
10
Id. at 3.
The order also provided, “such payment will release
11
Defendants from all payment obligations to Plaintiffs under EAJA
12
and any other applicable law or regulation.”
13
D. Motion to Enforce the Class Action Settlement Agreement
Id.
14
In October 2009, plaintiffs filed a motion to enforce the
15
settlement, arguing that: (1) defendants had been applying an
16
abandonment regulation that was enacted in 1991 to terminate class
17
members’ applications for temporary residence when applicants had
18
failed to provide supplemental evidence after the government had
19
requested they do so; and (2) defendants had declined to consider
20
applications for class membership by applicants residing abroad and
21
had failed to notify those applicants of their right to appeal a
22
decision denying their applications for class membership to a
23
special master.
Pls’ Mot., ECF No. 671 (Oct. 12, 2009).
24
In their opposition to plaintiff’s first argument, defendants
25
argued, inter alia, that: (1) the settlement agreement was silent
26
as to how CIS should treat abandoned applications for class
6
1
membership or subsequent applications for legalization and it was
2
therefore not unreasonable for current CIS officers to look to the
3
current abandonment regulation in determining how to adjudicate
4
those
5
promulgated, in part, because “some applicants for immigration
6
benefits would file skeletal or unapprovable benefit applications
7
simply to gain interim benefits, or to establish a priority place
8
in line,” “there was rampant fraud by people who prepared class
9
membership applications,” and “many fraudulent applications would
10
later be abandoned”; and (3) the abandonment regulation “provide[d]
11
the skeletal applicant more protection, and more procedural due
12
process, than was available to a legalization applicant in the
13
1980's, not less.”
14
16, 2009).
applications;
(2)
the
abandonment
regulations
were
See Defs.’ Opp’n, ECF No. 674, at 2-18 (Nov.
15
As to the plaintiff’s first argument, this court determined
16
that defendants had “refus[ed] to implement the relief set forth
17
in the settlement agreement” by engaging in a “pattern and practice
18
of
19
legalization
20
settlement had “expressly require[d] that defendants may only use
21
regulations in effect while applications filed during the 1987-1988
22
application period were adjudicated when adjudicating class member
23
applications.”
24
court went on to state that it could not “envision any reasonable
25
interpretation of paragraph 11 [of the settlement agreement] that
26
would allow defendants to apply a regulation not in effect during
applying
the
1991
abandonment
applications
of
.
.
.
plaintiffs,”
regulations
even
to
the
though
the
Order, ECF No. 678, at 7, 9 (Dec. 14, 2009).
7
This
1
the 1987-1988 period.”
Id. at 9.
2
With regard to the plaintiff’s second argument, this court
3
found that plaintiffs had “not identified any claims ripe for
4
judicial review” and, thus, the court could not decide “whether
5
applications of individuals living abroad should be adjudicated by
6
USCIS.”
7
had “identified a pattern and practice of failure to comply with
8
the terms of the settlement” because they had “provided two notices
9
of decision from USCIS declining to consider applications for class
10
membership of individuals residing abroad” and “[n]either notice
11
[had] notifie[d] the applicant of his or her right to seek review
12
of the denial by a special master,” in violation of the settlement
13
agreement.
14
terms of the settlement agreement, during oral argument on the
15
motion to enforce, defendants’ counsel informed the court that
16
defendants had identified all individuals who had applied for class
17
membership from abroad and that defendants were in the process of
18
advising these applicants of their right to appeal to the special
19
master.
20
2009).
Id. at 13.
Id.
However, the court determined that plaintiffs
Recognizing their failure to conform with the
See id.; Tr. Proceedings, ECF No. 679, at 20 (Dec. 15,
21
In May 2010, after a series of negotiations, this court
22
resolved the parties’ conflicting proposals for remedial plans
23
concerning the applications deemed abandoned and those from abroad,
24
and provided that: (1) class members would have ninety days from
25
the date notice was mailed of the amended notice of denial to
26
appeal to the administrative appeals office; (2) the agency, where
8
1
possible, would refund the required fee for unnecessary motions to
2
reopen by virtue of declared abandonment, or credit such fees
3
towards the fee for filing an administrative appeal at the class
4
members’ option; (3) review of the appeals would be on the merits;
5
and (4) the CIS would accept a filing fee as it existed in 2004-
6
2005.
7
E. Motion for Attorney’s Fees
Order, ECF No. 696 (May 18, 2010).3
8
Before the court is Plaintiffs’ motion for attorney’s fees and
9
costs pursuant to the Equal Access to Justice Act, 28 U.S.C. §
10
2412(d), for the fees and costs incurred in prosecuting their
11
motion to enforce and for their work related to the post-judgment
12
enforcement of the settlement agreement.
13
(Jan. 13, 2010).
Pls’ Mot., ECF No. 681
14
Although plaintiffs, in their motion for attorney’s fees,
15
assert that they are “entitled to recover attorney’s fees and costs
16
for all post-settlement monitoring and not only work directly
17
18
19
20
21
22
23
24
25
26
3
In the order resolving the parties’ conflicting proposals
for remedial plans, this court stated:
Two conflicting values are at stake. On the
one hand, is the imperative of due process
which strongly suggests that applicants not be
deprived of the opportunity to apply for the
benefits acquired in the settlement agreement
in the instant case by virtue of the
government’s
conduct,
which
the
court
previously determined was inconsistent with
the decree. On the other hand, in the real
world in which cases must, at some point, end
and allow the government and the people to get
on to other matters. The court must be frank,
in some ways there simply is no “right”
answer.
Order, ECF No. 696, at 1-2.
9
1
associated with the motion to enforce,” id. at 2 n.3, in their
2
reply to the defendant’s opposition, plaintiffs acknowledge that,
3
“Although plaintiffs could have sought fees for general monitoring
4
of the settlement . . . they seek fees only for work specifically
5
related to enforcing the settlement.”
6
1 n.1.
7
request
8
specifically related to enforcing the settlement.
Pls’ Reply, ECF No. 705, at
This court therefore interprets plaintiffs’ motion as a
for
fees
and
costs
confined
to
plaintiffs’
work
9
Plaintiffs have calculated their fees under the EAJA by
10
multiplying their assessment of the inflation-adjusted EAJA hourly
11
rate by the hours they spent both prosecuting the motion to enforce
12
CIS’s compliance with the settlement and preparing the instant EAJA
13
motion (but deducting hours that were poorly documented, excessive,
14
the result of overstaffing, or not directly related to prosecution
15
of the enforcement motion), yielding an initial request by the
16
plaintiffs for $51,187.93 under the statute.
17
No. 713, at Ex. B.
18
calculated at $500 per hour, based on their particular “distinctive
19
knowledge and specialized skill,” yielding an enhanced request for
20
$143,625.
21
Additionally, plaintiffs seek the award of costs for “fees and
22
other expenses” under the EAJA, in accordance with plaintiffs’ bill
23
of costs, in the amount of $2,033.27.
24
Decl. Counsel, ECF
Plaintiffs also seek an enhanced fee award,
Consolidated
Index,
ECF
No.
707,
at
Ex.
P.
Id. at Ex. O.
II. STANDARD FOR MOTION FOR ATTORNEY’S FEES AND COSTS
25
Under the Equal Access to Justice Act (“EAJA”), a court “shall
26
award” attorney fees, costs and other expenses to a “prevailing
10
1
party” in “any civil action (other than cases sounding in tort),
2
including proceedings for judicial review of agency action, brought
3
by or against the United States in any court having jurisdiction
4
of that action, unless the court finds that the position of the
5
United
6
circumstances make an award unjust.”
7
(2011).
States
was
substantially
justified
or
that
special
28 U.S.C. § 2412(d)(1)(A)
8
Because the EAJA partially waives the sovereign immunity of
9
the United States and created a limited, precisely-defined class
10
of adjudications in which an award of attorney’s fees is allowed,
11
the EAJA’s waiver must be strictly construed.
12
Project v. Interior Bd. of Land Appeals, 624 F.3d 983, 989 (9th
13
Cir. 2010).
W. Watersheds
14
For the court to award attorney’s fees and costs under the
15
EAJA, it must be shown that (1) the party seeking fees is the
16
prevailing party; (2) the government has not met its burden of
17
showing that its positions were substantially justified or that
18
special circumstances make an award unjust; and (3) the requested
19
fees and costs are reasonable.
20
1174, 1196 (9th Cir. 2009) (citing Perez-Arellano v. Smith, 279
21
F.3d 791, 793 (9th Cir. 2002)).
22
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25
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26
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United States v. Milner, 583 F.3d
11
1
III. ANALYSIS
2
A.
Prevailing Party
3
1.
Availability of EAJA Fee Awards for Monitoring and
4
Enforcement of a Settlement Agreement
5
As a preliminary matter, defendants argue that plaintiffs are
6
not eligible for attorney’s fees and costs because “Plaintiffs’
7
class counsel already received fees for the earlier phases of this
8
litigation . . . . [and they] are not entitled to a double dip of
9
fees under the EAJA.”
10
Defs’ Opp’n, ECF No. 703, at 2 (Aug. 15,
2011).
11
It
is
firmly
within
the
district
court’s
discretion
to
12
determine whether a party’s attorney’s fees for post-judgment
13
proceedings should be compensable under the EAJA.
14
Films, Inc. v. Wick, 959 F.2d 782, 786 (9th Cir. 1992).
See Bullfrog
15
In Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S.
16
546, 106 S.Ct 3088, 92 L.Ed.2d 439 (1986), the plaintiff first
17
obtained
18
participated in administrative proceedings and substantial further
19
litigation to protect that relief.
20
“participation in these administrative proceedings was crucial to
21
the vindication of Delaware Valley's rights under the consent
22
decree and [found] that compensation for these activities was
23
entirely proper and well within the ‘zone of discretion’ afforded
24
the District Court.”
25
at 3096 (internal citation omitted).
26
////
relief
in
the
form
of
a
consent
decree
and
later
The Supreme Court held that
Delaware Valley, 478 U.S. at 561, 106 S.Ct.
12
1
Similarly, in Keith v. Volpe, 833 F.2d 850 (9th Cir. 1987),
2
the
plaintiff
3
compliance with a consent decree, even though the parties had
4
previously stipulated to a fee award for the plaintiff’s counsel’s
5
work leading up to, and implementing, the consent decree.
6
Ninth Circuit held that “the district court here ‘was entitled to
7
believe that relief [for the plaintiffs under the consent decree]
8
would occur more speedily and reliably’ if the [plaintiffs] engaged
9
in these monitoring activities, and this post-judgment monitoring
the
applied
[plaintiffs]
for
was,
supplemental
therefore,
‘a
fees
for
monitoring
necessary
The
10
by
aspect
of
11
plaintiffs' ‘prevailing’ in the case.’”
12
quoting Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984).4
Keith, 833 F.2d at 857,
13
In this case, under the terms of the settlement agreement, the
14
defendants were prescribed a set of conditions and procedures for
15
CIS’s future acceptance, evaluation, and denial of claims for class
16
membership.
17
ongoing future activities to comply with the settlement agreement,
18
by
19
contemplated further activity by the plaintiffs in monitoring the
20
defendants’
21
defendants were acting in compliance with the settlement terms.5
22
23
24
25
26
The fact that defendants were required to engage in
necessity,
meant
that
activities,
to
both
some
4
the
parties
extent,
to
and
this
ensure
court
that
the
Although Delaware Valley and Keith both addressed whether
or not attorney fee awards were available for post-judgment
proceedings under the Civil Rights Attorney’s Fees Awards Act of
1976 (“CRAFA”), the Ninth Circuit has stated that it “cannot
distinguish [CRAFA] from the [EAJA] for the purposes of defining
‘prevailing party,’” Bullfrog Films, 959 F.2d at 786 n.5 (citing
United States v. Buel, 765 F.2d 766, 767 (9th Cir. 1985)).
5
If the defendants had, in actuality, complied with the
explicit terms of the settlement agreement, the plaintiffs may have
13
1
The defendants failed to abide by the letter of the settlement
2
agreement when they impermissibly applied their 1991 abandonment
3
regulations in the adjudication of class members’ claims and
4
declined
5
individuals residing abroad and failed to notify those applicants
6
of their right to appeal, which required the plaintiffs to take
7
active and affirmative steps to enforce the settlement agreement.
8
The defendants’ failure to adhere to the terms of the settlement
9
requirements continued until the resolution of the plaintiffs’
10
to
consider
applications
for
class
membership
of
motion to enforce.
11
It is therefore clear that the plaintiffs’ litigation of their
12
motion to enforce was “crucial to the vindication of [their]
13
rights” under the settlement agreement, see 478 U.S. at 561, 106
14
S.Ct. at 3096, and their affirmative enforcement activities were
15
a “necessary aspect” of their prevailing in the case, see 833 F.2d
16
at 857.
17
been precluded from receiving post-settlement fees for general
monitoring of the settlement agreement by the terms of this court’s
March 2004 order, which stated that the plaintiffs’ agreed-upon fee
at that time was “in full settlement of all claims they may have
for attorneys’ fees, whether under the Equal Access to Justice Act
(“EAJA”), or otherwise.” See Alliance to End Repression v. City
of Chicago, 356 F.3d 767, 770-71 (7th Cir. 2004) (noting that
Keith, among other cases, is “best explained on a deterrence
rationale: careful monitoring reduces the likelihood that the
decree will be violated,” but that, following the Supreme Court’s
ruling in Buckhannon Board & Care Home, Inc. v. West Virginia Dep’t
of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149
L.Ed.2d 855 (2001), “[m]onitoring may reduce the incidence of
violations of a decree, but if it does not produce a judgment or
order, then . . . it is not compensable.”) However, because the
defendants did not comply with the explicit terms of the
settlement, and the plaintiffs are not seeking fees for general
monitoring of the settlement agreement, Buckhannon's limitation
does not apply to this case.
18
19
20
21
22
23
24
25
26
14
1
The plaintiffs are therefore not precluded from recovering
2
attorney’s fees and costs for work performed subsequent to the
3
settlement agreement.
4
however, that they have met the requirements for a fee award under
5
the EAJA.
6
2. Prevailing Party
Plaintiffs are still required to show,
7
A plaintiff is a “prevailing party” for purposes of the EAJA
8
if he or she “succeed[s] on any significant issue in litigation
9
which achieves some of the benefit the parties sought in bringing
See United States v. Real Property Known as 22249 Dolorosa
10
suit.”
11
Street, 190 F.3d 977, 981 (9th Cir. 1999) (internal citations and
12
quotation marks omitted). The plaintiff’s success must not solely
13
derive from the defendant’s voluntary cessation of its conduct.
14
Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of
15
Health, 532 U.S. 598, 121 S.Ct 1835, 149 L.Ed.2d 855 (2001).
16
Instead, there must be a “judicial imprimatur” that changes the
17
legal relationship of the parties.
18
300 F.3d 1092, 1096 (9th Cir. 2002).
Watson v. County of Riverside,
19
The Supreme Court has provided two examples of forms of relief
20
that justify a fee award: enforceable judgments on the merits and
21
settlement
22
Buckhannon, 532 U.S. at 604-05.
23
a legally enforceable settlement agreement between the plaintiff
24
and defendant to qualify the plaintiff as a prevailing party.
25
Richard S. v. Dep’t of Developmental Services of Cal., 317 F.3d
26
1080, 1086 (9th Cir. 2003).
agreements
enforced
through
a
consent
decree.
The Ninth Circuit has also found
15
See
1
In the class action at hand, when this court approved the
2
parties’ settlement agreement in January 2004, the plaintiffs were
3
a
4
enforceable settlement agreement required the defendants to revisit
5
applications for legalization that had previously been discouraged,
6
refused, or denied. The plaintiffs, by both invalidating the INS’s
7
interpretation of “brief, casual and innocent absences” under IRCA,
8
and
9
therefore succeeded on a significant issue in litigation which
“prevailing
requiring
party”
the
for
agency
EAJA
to
purposes
because
re-evaluate
the
individual
legally
claims,
10
achieved the benefit they sought in bringing suit.
11
defendants were required by the court-approved settlement to take
12
remedial steps that they would not have otherwise taken, there was
13
a “judicial imprimatur” that changed the legal relationship and
14
obligations of the parties and the plaintiffs’ success in the suit
15
did not derive from the defendants’ voluntary cessation of the
16
conduct.
17
status
18
eligibility for fee awards under the EAJA when they stipulated, in
19
March 2004, to a settlement of the plaintiffs’ claims under the
20
EAJA.
21
as
Because the
Indeed, both parties likely recognized the plaintiffs’
a
Because
prevailing
plaintiffs
agreement,
party,
were
and
a
and
the
plaintiffs’
“prevailing
their
party”
post-settlement
potential
as
of
the
22
settlement
enforcement
23
activities were a “necessary aspect” of their prevailing in the
24
case, see Keith, 833 F.2d at 857, this court need not consider
25
whether plaintiffs were a “prevailing party” in their motion to
26
enforce.
See Gates v. Gomez, 60 F.3d 525, 534 (9th Cir. 1995)
16
1
(defendants “urge us to apply a prevailing party standard under 42
2
U.S.C. § 1988 to post-judgment monitoring and compliance work under
3
the consent decree.
4
1988 prevailing party standard with the entry of the consent
5
decree.”).
6
contend that Plaintiffs did not prevail upon their Motion to
7
Enforce.”
8
9
10
But plaintiffs have already met the section
Regardless, defendants have stated that they “do not
Defs’ Opp’n, ECF No. 703, at 6.
This court therefore finds that plaintiffs have satisfied the
“prevailing party” requirement of the EAJA.
3.
Net Worth Requirements
11
An eligible “party” for a fee award under the Equal Access to
12
Justice Act (“EAJA”), must be, inter alia, an individual whose net
13
worth did not exceed $2,000,000 at the time the civil action was
14
filed.
28 U.S.C. § 2412(d)(1)(D)(2)(B)(i).
15
Plaintiffs have submitted evidence demonstrating that the
16
movant plaintiff class members are indigent and therefore fall
17
under the maximum net worth requirements under the EAJA.
18
Mot., ECF No. 681, at 11-12; Pls’ Decl. Ruben Sandoval, Ex. A;
19
Decl.
20
Defendants do not contest the assertion that plaintiff class
21
members are indigent, nor do they contest the evidence submitted
22
thereon.
23
of
Mohani
Singh,
Ex.
B;
Decl.
Lucilda
Knox,
Ex.
Pls’
C.
This court therefore finds that plaintiffs have met the net
24
worth requirements under the EAJA.
25
////
26
////
17
1
2
B. Substantial Justification for Defendants’ Position
Under the EAJA, the government bears the burden of showing
3
that its position was substantially justified in law and in fact.
4
Oregon Environmental Council v. Kunzman, 817 F.2d 484, 498 (9th
5
Cir. 1987).
6
reasonable basis in law and fact.”
7
1067, 1071 (9th Cir. 2008) (internal citations omitted).
8
another way, “substantially justified” means there is a dispute
9
over which reasonable minds could differ.
That is, “the government’s position must have a
Shafer v. Astrue, 518 F.3d
Put
Gonzales v. Free Speech
10
Coalition, 408 F.3d 613, 618 (9th Cir. 2005).
For example, an
11
agency’s position is not substantially justified when it is based
12
on violations of the Constitution, a federal statute, or the
13
agency’s own regulations.
14
Bd., 92 F.3d 871, 874 (9th Cir. 1996).
Mendenhall v. National Transp. Safety
15
There is conflicting guidance within the Ninth Circuit as to
16
whether a district court should evaluate the government’s position
17
as a whole, or its position at each discrete stage of litigation
18
in question, when deciding if the government has met its burden of
19
showing that its position was substantially justified.
20
On the one hand, the Ninth Circuit has provided that in
21
determining fee eligibility under the EAJA, a court should treat
22
a case as an inclusive whole, rather than as atomized line-items.
23
In re Southern California Sunbelt Developers, Inc., 608 F.3d 456,
24
463 (9th Cir. 2010) (citing Commissioner, I.N.S. v. Jean, 496 U.S.
25
154, 161-62, 110 S.Ct. 2316, 2320 (1990)); see also Al-Harbi v.
26
I.N.S.,
284
F.3d
1080,
1084
(9th
18
Cir.
2002)
(“In
making
a
1
determination of substantial justification, the court must consider
2
the reasonableness of both the underlying government action at
3
issue and the position asserted by the government in defending the
4
validity of the action in court.” (internal quotation marks and
5
citations omitted)); Gutierrez v. Barnhart, 274 F.3d 1255, 1259
6
(9th Cir. 2001) (“The district court erred in not addressing the
7
reasonableness of the underlying [agency] conduct and basing its
8
denial of fees solely on the government’s litigation position.”).
9
Bolstering this interpretation of the “substantial justification”
10
requirement is the Supreme Court’s holding that “[t]he single
11
finding
12
justification,
13
‘prevailing party,’ thus operates as a one-time threshold for fee
14
eligibility,” even “[w]hile the parties’ postures on individual
15
matters” within any given civil action “may be more or less
16
justified.”
17
at 2320.
18
that
the
like
20
justification.6
23
24
25
26
determination
that
lacks
a
substantial
claimant
is
a
Evaluating this class action as an inclusive whole, this court
finds
22
the
position
Commissioner, I.N.S., 496 U.S. at 160-61, 110 S.Ct.
19
21
Government’s
that
the
government’s
position
lacks
substantial
In this court’s 1988 opinion invalidating the
6
Defendants make no arguments that their position in the case
as a whole was substantially justified.
Instead, defendants
provide:
This Court should not look at Defendants’ prelitigation position to determine substantial
justification for proceedings under the
Settlement Agreement.
That dispute was
settled, and class counsel received fees for
the litigation leading to the Settlement
Agreement. . . .
This Court should . . .
19
1
original INS regulation at issue, this court concluded that the
2
INS’s regulation “simply finds no support in the text of [IRCA]”;
3
that “[a]ny possible reading of the Attorney General’s final
4
regulation
5
Congressional purpose”; that, of two possible interpretations of
6
the regulations, “[n]either . . . is consistent with the plain
7
language of the statute”; that “the Attorney General’s regulation
8
is
9
understanding of the [“brief, casual, and innocent”] language, it
10
in effect sought to limit the meaning of the phrase, a result which
11
Congress had rejected”; and that “the INS has not interpreted the
12
phrase consistently throughout the statutory scheme.”
13
Soc. Serv., Inc. v. Meese, 685 F.Supp. 1149, 1155-57 (1988).
14
Because the INS’s interpretation of “brief, casual, and innocent”
15
was contrary to the text, intent, and plain language of a federal
16
statute, in addition to being contrary to the agency’s own previous
17
understanding and alternative usage of the phrase, reasonable minds
18
could
19
underlying conduct in this case was not substantially justified.
not
leads
only
not
to
a
result
inconsistent
differ
in
their
that
with
is
the
assessment
inconsistent
department’s
that
the
with
the
previous
Catholic
government’s
20
21
22
23
24
25
26
evaluate whether defendants’ opposition to
Plaintiffs’
Motion
to
Enforce
was
substantially justified.
Defs’ Opp’n to Pls’ Mot. for Att’y Fees, ECF No. 703, at 5. If
this court is to treat the class action as an inclusive whole in
determining whether the government’s position was substantially
justified, the defendants’ failure to make arguments regarding
their position prior to plaintiffs’ motion to enforce indicates
that defendants have failed to meet their burden of showing that
the government’s position throughout the class action as a whole
has been substantially justified.
20
1
Thus, under this theory, defendant’s conduct in the case as an
2
inclusive whole was not substantially justified. See Commissioner,
3
I.N.S., 496 U.S. at 160-61, 110 S.Ct. at 2320.
4
On the other hand, however, the Ninth Circuit has also noted
5
that after the Supreme Court’s decision in Shalala v. Schaefer, 509
6
U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), when it “became
7
possible for a claimant to be deemed a ‘prevailing party’ for EAJA
8
purposes prior to the ultimate disposition of his disability
9
claim,” a “shift occurred within the circuit to considering the
10
justification of the government’s position at the discrete stage
11
in question.”
12
1998). That is, after Shalala v. Schaefer, the Ninth Circuit began
13
requiring that the “government’s position at each stage . . . be
14
‘substantially justified.’” Id.; see also Shafer, 518 F.3d at 1071
15
(finding that where an ALJ’s decision was reversed on the basis of
16
procedural
17
government’s decision to defend on appeal the procedural errors
18
committed by the ALJ was substantially justified).
Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir.
errors,
the
relevant
question
was
whether
the
19
Evaluating whether defendants’ position after the settlement
20
agreement and through the litigation of the plaintiffs’ motion to
21
enforce was substantially justified, the court finds that the
22
defendants’ position lacks substantial justification.
23
settlement agreement, this court found that defendants had engaged
24
in a “pattern and practice of applying their 1991 abandonment . .
25
. regulations to the legalization applications of plaintiffs,” in
26
direct contravention of the explicit requirements of the settlement
21
After the
1
agreement.
See Order, ECF No. 678, at 7, 9 (Dec. 14, 2009).
2
Indeed, the court explained that it could not “envision any
3
reasonable interpretation of paragraph 11 [of the settlement
4
agreement] that would allow defendants to apply a regulation not
5
in effect during the 1987-1988 period.”
6
also failed to comply with the terms of the settlement agreement
7
by “declining to consider applications for class membership of
8
individuals residing abroad” and by failing to notify the foreign
9
applicant of his or her right to appeal.
Id. at 9.
Defendants had
Id. at 13.
The court
10
continues to find the government’s contravention of the express
11
terms of their agreed-upon settlement patently unreasonable, and
12
thus, defendants’ conduct following the settlement agreement was
13
not substantially justified.7,8
14
15
16
17
18
19
20
21
22
23
24
25
26
Because it was unreasonable for
7
Defendants argue that, because plaintiffs failed to assert
that the government’s position as to foreign filers lacked
substantial justification, plaintiffs waive that argument in the
motion before the court. This argument fails. Under the EAJA, the
government bears the burden of showing that its position was
substantially justified. Oregon Environmental Council v. Kunzman,
817 F.2d 484, 498 (9th Cir. 1987).
8
To support their claim that defendants’ post-settlement position
was substantially justified, defendants point to the language of
this court’s May 2010 order resolving the parties’ conflicting
proposals for remedial plans. Defs’ Opp’n to Pls’ Mot. for Att’y
Fees, ECF No. 703, at 7. In the order, this court noted that:
Two conflicting values are at stake. On the
one hand, is the imperative of due process
which strongly suggests that applicants not be
deprived of the opportunity to apply for the
benefits acquired in the settlement agreement
in the instant case by virtue of the
government’s
conduct,
which
the
court
previously determined was inconsistent with
the decree. On the other hand, in the real
world in which cases must, at some point, end
and allow the government and the people to get
on to other matters. The court must be frank,
22
1
defendants to apply regulations and policies in contravention of
2
the terms of the settlement agreement, this court cannot find that
3
the position asserted by the government in defending the validity
4
of those post-settlement actions in court was reasonable.
5
Flores v. Shalala, 49 F.3d 562, 570 n.11 (9th Cir. 1995) (“It is
6
difficult to imagine any circumstance in which the government’s
7
decision to defend its actions in court would be substantially
8
justified, but the underlying administrative decision would not.”).
9
Thus, the government has failed to meet its burden of showing
10
that its positions were substantially justified.
11
See
C. Injustice of Awarding Fees
12
A prevailing plaintiff should ordinarily recover attorneys’
13
fees unless special circumstances would render such an award
14
unjust.
15
that, due to special circumstances, an award of attorney’s fees in
16
this case would be unjust.
17
This
28 U.S.C. § 2412(d)(1)(A).
court,
therefore,
does
Defendants make no argument
not
find
that
any
special
18
circumstances exist that would make an EAJA award in this case
19
unjust.
20
D. Calculation of a Reasonable Fee
21
Although eligibility for fees is established upon meeting the
22
conditions set out by the EAJA, the district court has substantial
23
24
25
26
in some
answer.
ways
there
simply
is
no
“right”
Order, ECF No. 696, at 1-2. However, in acknowledging the realworld constraints faced by the government, this court was not
stating that it was reasonable for CIS to fail to comply with the
express terms of the settlement agreement.
23
1
discretion in fixing the amount of an EAJA award.
2
Commissioner,
I.N.S., 496 U.S. at 163.
3
Under the EAJA, a district court’s award of attorney fees must
4
be “reasonable” and the most useful starting point for determining
5
the amount of a reasonable fee is the number of hours reasonably
6
expended on the litigation multiplied by a reasonable hourly rate.
7
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d
8
40 (1983); Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001).
9
Attorney fees under the EAJA are capped by Congress.
Until
10
March 29, 1996, the statute provided that “attorney fees shall not
11
be awarded in excess of $75 per hour unless the court determines
12
that an increase in the cost of living or a special factor . . .
13
justifies a higher fee.”
14
Although, on March 29, 1996, the statute was amended to increase
15
the maximum fee to $125 per hour, plus any “cost of living” and
16
“special factor” adjustments, the $125 per hour cap only applies
17
to cases commenced on or after March 29, 1996.
18
at 1145 (citing Contract with America Advancement Act of 1996,
19
Pub.L. 104-121, 110 Stat. 847, 863, §§ 232(b)(1), 233 (1996)).
28 U.S.C. § 2412(d)(2)(A) (1994).
Sorenson, 239 F.3d
20
Because this class action commenced in November of 1986, the
21
applicable hourly fee under the EAJA is $75 per hour. However, the
22
EAJA provides that the hourly rate should be increased where “an
23
increase in the cost of living . . . justifies a higher fee.”
24
U.S.C. § 2412(d)(2)(A)(ii).
25
except in unusual circumstances, a cost of living increase should
26
be granted to adjust for inflation.
28
The Ninth Circuit has provided that,
24
See Animal Lovers Vol. Assn.
1
v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989).
2
identify
3
inflation adjustment inappropriate in this case.
This court will
4
therefore
fees
5
inflation adjustment.
no
such
“unusual
calculate
the
circumstances”
plaintiffs’
that
attorneys
Defendants
would
make
with
an
the
6
Cost-of-living increases are calculated by multiplying the
7
statutory maximum hourly rate by the annual average consumer price
8
index figure for all urban consumers (“CPI-U”) for the years in
9
which the attorney’s work was performed and dividing by the CPI-U
10
figure for the effective date of the statutory maximum hourly rate
11
(using the CPI-U rate from October 1981 for pre-amendment cases).
12
Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009); Ramon-
13
Sepulveda v. I.N.S., 863 F.2d 1458, 1463 (9th Cir. 1988).
14
According to the given formula, the court calculates the cost-
15
of-living increase as follows: pre-1996 EAJA statutory maximum
16
hourly rate ($75/hour); multiplied by the CPI-U for the years in
17
which the attorneys’ work was performed, see United States Dep’t
18
of
19
http://www.bls.gov/cpi/tables.htm (last visited Sept. 22, 2011);
20
divided by the CPI-U rate from October 1981.9
21
annual CPI-U figure is not yet available for 2011, the attorney
22
hours submitted to this court for 2011 are computed at the CPI-U
23
rate for the month in which those hours were performed.
24
25
26
Labor,
Bureau
of
Labor
Statistics,
9
Consumer
Price
Index,
Because the average
Thus,
Defendants are correct in arguing that plaintiffs may not
calculate all of their hours at 2009 rates. The court, instead,
calculates the cost-of-living adjustment according to the CPI-U for
the year in which the fees were earned. See Sorenson v. Mink, 239
F.3d 1140, 1149 (2001).
25
1
under
2
plaintiffs’
3
performed
4
$175.66/hour for work performed in 2010; $180.56/hour for work
5
performed in April 2011; $181.22/hour for work performed in June
6
2011; and $181.88/hour for work performed in August 2011.
7
Decl. Carlos Holguin re: Updated EAJA Loadstar Calculation, ECF No.
8
713, at Ex. B.
9
the
EAJA
hourly
attorneys
in
2008;
rate
are
plus
the
entitled
$172.24/hour
to
for
inflation
adjustment,
$172.85/hour
work
for
work
in
2009;
performed
See
Defendants argue that plaintiffs’ calculation of hours for
10
attorney
fees
should
be
“reduced
by
at
least
half”
11
plaintiffs “have not made any argument that Defendants’ position
12
was not substantially justified as to foreign filers.”
13
Opp’n, ECF No. 703, at 13.
14
defendants’ burden to show that their position was substantially
15
justified, see Oregon Environmental Council v. Kunzman, 817 F.2d
16
484, 498 (9th Cir. 1987); the plaintiffs were not required to make
17
such an argument in order to prove their eligibility for a fee
18
award under the EAJA.
19
to reduce plaintiffs’ calculation of hours.
This argument fails.
because
Defs’
It was the
This court, therefore, finds it unnecessary
20
Multiplying the above inflation-adjusted EAJA hourly rates by
21
the 295.55 work hours performed by plaintiffs’ counsel yields a
22
total attorney fee award of $51,187.93.
23
ECF No. 713, at 8.
24
////
25
////
26
////
26
See Decl. Carlos Holguin,
1
2
1.
Special Factor Enhancement:
Plaintiffs seek an enhanced fee award, calculated at $500 per
3
hour,
based
on
their
4
specialized skill.”
particular
“distinctive
knowledge
and
Pls’ Mot., ECF No. 681, at 11-12.
5
Enhanced hourly rates based on the special factor of the
6
limited availability of qualified attorneys for the proceedings
7
involved may be awarded under EAJA where the attorneys possess
8
“distinctive knowledge” and “specialized skill” that was “needful
9
to the litigation in question” and “not available elsewhere at the
See Nadarajah v. Holder, 569 F.3d 906, 912 (9th
10
statutory rate.”
11
Cir. 2009); Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir.
12
2005); Love v. Reilly, 924 F.2d 1492, 1498 (9th Cir. 1991); see
13
also Pierce v. Underwood, 487 U.S. 552, 572, 108 S.Ct. 2541, 101
14
L.Ed.2d 490 (1988) ("Examples . . . would be an identifiable
15
practice specialty such as patent law, or knowledge of foreign law
16
or language.").
17
Plaintiffs argue that they should be compensated at the rate
18
of $500 per hour–-the same rate that a specialized immigration
19
attorney received in Nadarajah.
20
a. Distinctive Knowledge and Specialized Skill Needful to the
21
Litigation in Question:
22
Expertise in immigration law, by itself, is not sufficient to
23
justify the award of enhanced hourly rates.
24
at 913 (citing Thangaraja, 428 F.3d at 876; Perales v. Casillas,
25
950 F.2d 1066, 1078-79 (5th Cir. 1992)).
26
have been awarded in immigration cases where counsel established
27
Nadarajah, 569 F.3d
However, enhanced rates
1
that "knowledge of foreign cultures or of particular esoteric nooks
2
and crannies of immigration law . . . [was] needed to give the
3
alien a fair shot at prevailing."
Thangaraja, 428 F.3d at 876.
4
Plaintiffs submit declarations in support of their assertion
5
that they possess expertise in the particularly specialized areas
6
of immigration law that were required to give the plaintiff class
7
a fair shot at prevailing in the litigation at hand.
8
In the declaration of Judy London, Directing Attorney of
9
Public Counsel's Immigrants' Rights Project, London asserts that
10
"Messrs. Schey and Holguin are among the leading immigrants' rights
11
lawyers in the country and are recognized as the experts on the
12
rights of legalization applicants." Decl. Judy London, ECF No. 715
13
(Oct. 4, 2011), at 4.
14
and Schey possess specialized knowledge of immigration law, as well
15
as even more rarified knowledge of the law affecting immigrants
16
under the 1986 legalization program."
London also provides that "Messrs. Holguin
Id.
17
Similarly, in the declaration of Bernard P. Wolfsdorf, an
18
immigration law specialist and the past President of American
19
Immigration Lawyers Association, Wolfsdorf asserts that "a thorough
20
understanding of complex federal litigation, as well as knowledge
21
of a highly specialized area of substantive law--law affecting
22
legalization applicants [and] the rights of class members under the
23
settlement in this action--was required were plaintiffs to prevail
24
in their effort to enforce the CSS settlement on behalf of class
25
members whose applications CIS rejected from abroad or declared
26
////
28
1
abandoned."
2
2011), at 3-4.
3
Wolfsdorf also provides:
[S]uccessfully enforcing the settlement in
Catholic Social Services on behalf of class
members whose legalization applications CIS
declared abandoned or rejected because they
were tendered from abroad required esoteric
knowledge of [a] largely forgotten area of
immigration law: the legalization program
enacted as part of the 1986 Immigration Reform
and Control Act (IRCA). The IRCA established
a one-time program that, with few exceptions,
ended over 23 years ago.
The IRCA
legalization program comprised provisions
nowhere else existing in immigration law.
Messrs. Schey and Holguin are among a very
small number of lawyers who continue to
represent legalization applicants; by far the
vast majority of my colleagues in the
immigration
bar
have
not
represented
legalization applicants in many, many years,
if they have ever represented any such clients
at all.
Recognizing that the practices
plaintiffs' challenged in their motion to
enforce the settlement--that those practices
were different from those the INS pursued
during the 1987-88 legalization application
year and violated the CSS settlement--required
recondite knowledge of an obscure area of the
law few, if any, other lawyers anywhere in the
country now have.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Decl. Bernard P. Wolfsdorf, ECF No. 714 (Oct. 4,
Id. at 4.
19
The government contends that “enforcement of the Settlement
20
Agreement did not involve constitutional law or the rights of
21
detained aliens”; “Plaintiff’s Motion to Enforce involved a simple
22
interpretation
23
essentially adopted Defendants’ proposal for the resolution of the
24
dispute”;
25
proceedings under the Settlement Agreement involve[d] little more
26
than opening and reading their mail.”
and
of
the
Settlement
“Counsel’s
Agreement,
monitoring
29
of
the
and
the
Special
Court
Master
Defs’ Opp’n, ECF No. 703,
1
at 8-9.
2
lack expertise on the law affecting legalization applicants, but
3
instead, argue that Plaintiffs gained their knowledge of the
4
legalization
5
enhancement of fees unwarranted.
6
Resources Defense Council, Inc. v. Winter, 543 F.3d 1152, 1159 (9th
7
Cir. 2008)).
8
Defendants make no argument that counsel for Plaintiffs
program
through
this
very
litigation,
making
Id. at 8 (relying upon Natural
Defendants’ arguments fail.
Defendants' application of the reasoning in Natural Resources
9
Defense Council to the circumstances of this case is inapposite.
10
In Natural Resources Defense Council, the Ninth Circuit found that
11
junior associates who had no prior experience in environmental
12
litigation and no publications or outside research on environmental
13
topics,
14
environmental law based upon their work over the course of three
15
years in litigating "a concurrent companion case before the same
16
court, involving similar factual and legal issues, on behalf of
17
nearly identical clients, and against the same agency, including
18
some of the same opposing counsel" were not entitled to enhanced
19
fees under EAJA because "all attorneys" are expected "to be experts
20
of their own cases and their clients' litigation goals."
21
1152, 1159.
but
who
were
claiming
a
distinctive
knowledge
of
543 F.3d
22
In contrast, Peter Schey has, among other qualifications,
23
founded and served as Executive Director of what is currently the
24
National Immigration Law Center; founded and served as Executive
25
Director of the Center for Human Rights and Constitutional Law,
26
Inc.; served as an adjunct professor at University of Southern
30
1
California Law Center and as a lecturer at University of California
2
at
3
immigration law; served as lead or co-lead counsel in a number of
4
class action lawsuits on behalf of immigrants, one of which
5
specifically involved provisions of IRCA's legalization program,
6
see
7
Federation of Labor (AFL-CIO) v. INS, 306 F.3d 842 (9th Cir. 2002);
8
and was appointed by President Jimmy Carter as a legal consultant
9
for a Commission on Immigration and Refugee Policy. See Decl. Peter
Los
Angeles
Immigrant
School
of
Assistance
Law,
where
Project
of
he
the
10
Schey, ECF No. 681, Attach. 4, at 4-13.
11
school in 1973.
taught
Los
courses
Angeles
on
County
Schey graduated from law
Id. at 3.
12
According to the resume and declaration of Carlos Holguin, Mr.
13
Holguin has worked on legal issues involving immigration since
14
1977,
15
concerning the legal rights of immigrants and refugees, and has
16
argued cases before the en banc Ninth Circuit Court of Appeals and
17
the United States Supreme Court. See Decl. Carlos Holguin, ECF No.
18
681, Attach. 3, at 2, 4-6 (Jan. 13, 2010).
19
law school in 1979.
is
the
author
of
numerous
articles
and
publications
Holguin graduated from
Id. at 4.
20
According to his firm website, Robert H. Gibbs graduated in
21
law school in 1974, has specialized in immigration law since 1977,
22
and is a founder of the Northwest Immigrant Rights Project. See
23
GIBBS HOUSTON PAUW, http://www.ghp-law.net/gibbs.html (last visited
24
Nov. 8, 2011).
25
Counsels’
26
depth
of
expertise
in
immigration
law,
and
specifically the legal issues related to legalization applicants,
31
1
is thus highly distinguishable from the junior associates, with no
2
prior or outside environmental law experience, who sought enhanced
3
fees in Natural Resources Defense Council.
4
Even if, as Defendants argue, Plaintiffs’ counsel gained their
5
knowledge relating to legalization applicants primarily through the
6
course of this litigation, the 25-year duration of this class
7
action and its numerous iterations at all levels of the federal
8
judicial system only strengthen Counsels' argument that they
9
possess expertise in this particular esoteric area of immigration
10
law and that they are currently of the few attorneys in the country
11
qualified to adequately enforce the post-settlement proceedings in
12
this case.
13
The court is satisfied that Plaintiffs have sufficiently
14
established that their counsel has particular legal expertise on
15
the
16
program.
17
and, instead, provides a prime example of an "esoteric nook[] and
18
crann[y] of immigration law." Counsels’ nuanced understanding of
19
the practical effects and implications of the INS’s interpretation
20
of the IRCA legalization provision and the agency’s application of
21
the 1991 abandonment regulation to class members, in addition to
22
Counsels’ understanding of the difficulties and roadblocks faced
23
by legalization applicants, was necessary to give the Plaintiff
24
class "a fair shot at prevailing" in both the underlying litigation
25
at issue, as well as Plaintiffs’ post-settlement proceedings.
26
////
issues
presented
by
IRCA’s
largely-defunct
legalization
Such knowledge goes beyond basic immigration expertise
32
1
Accordingly, the court determines that counsel for Plaintiffs
2
possess “distinctive knowledge” and “specialized skill” that was
3
“needful to the litigation in question.”
4
b. Not Available Elsewhere at the Statutory Rate:
5
6
Plaintiffs assert that qualified counsel was not available for
this litigation at the statutory maximum rate.
7
8
In support of Plaintiffs’ assertion, Bernard P. Wolfsdorf
attests:
9
Developing expertise in the law affecting
plaintiff class members would be
prohibitively time-consuming and, retaining
qualified counsel at the inflation-adjusted
EAJA rate all but impossible. When
immigration practitioners [] do undertake
federal litigation, they typically charge
three to four times the inflation-adjusted
EAJA statutory rate. I do not believe any
qualified lawyer could have been found to
litigation this case for less than perhaps
$500 per hour.
10
11
12
13
14
15
16
Decl. Bernard P. Wolfsdorf, ECF No. 714, at 5.
17
Similarly, in Judy London’s declaration, London provides that
18
“[e]ven were lawyers qualified to vindicate class members’ rights
19
under the CSS to be found, I firmly believe none would have
20
prosecuted an enforcement motion on behalf of the CSS plaintiff
21
class at the inflation-adjusted EAJA rate.” Decl. Judy London, ECF
22
No. 715, at 3.
23
In response, Defendants quote Ramon-Sepulveda v. INS, 863 F.2d
24
1458 (9th Cir. 1988) for its provision that “there is no shortage
25
of
26
deportation proceedings.”
attorneys
in
Los
Angeles
qualified
to
863 F.2d at 1463.
33
assist
aliens
in
This argument fails.
1
Because specialized immigration expertise was necessary to
2
give plaintiff class a fair shot at prevailing in their motion to
3
enforce the settlement agreement, and because the court credits the
4
declarations of Judy London and Bernard P. Wolfsdorf, the court
5
finds that qualified counsel was not available for this litigation
6
at the maximum rate provided under EAJA.
7
c. Prevailing Market Rates:
8
In addition to establishing their entitlement to enhanced
9
rates under EAJA, Plaintiffs must also show that the requested
10
enhanced rates are "in line with those [rates] prevailing in the
11
community for similar services by lawyers of reasonably comparable
12
skill, experience, and reputation."
13
(citing Blum v. Stenson, 465 U.S. 886, 895 & n.11, 104 S.Ct. 1541,
14
79 L.Ed.2d 891 (1984)).
Nadarajah, 569 F.3d at 916
15
Counsel has provided the declaration of Carol Sobel, a private
16
civil rights attorney based in Southern California, who graduated
17
from law school in 1978 and asserts that her “billing rate for 2011
18
is $750 an hour.”
19
5.
20
billing
21
litigation,” she found that “Brad Seligman of the Impact Fund . .
22
. averred that his rate in 2008 was $695 an hour.”
Decl. Carol Sobel, ECF No. 707, Attach. 1, at
Sobel also declares that, in a “survey of market rates on the
rates
of
attorneys
who
do
other
types
of
complex
Id. at 11.
23
In a declaration submitted by Angelo A. Paparelli, a partner
24
in the Business Immigration Practice Group of Seyfarth Shaw LLP,
25
and a founder and past president of the Alliance of Business
26
Immigration Lawyers, Paparelli declared, "I am aware that Mr. Schey
34
1
has a small complex litigation private practice in addition to his
2
work at the Center for Human Rights and Constitutional Law (CHRCL),
3
and routinely charges approximately $750 per hour." Decl. Angelo
4
A. Paparelli, ECF No. 716 (Oct. 5, 2011), at 4.
5
Given the prevailing market rates for specialized and highly
6
experienced
7
specializing in complex litigation, the court determines that the
8
$500 per hour fee sought by Plaintiffs is "in line with those
9
[rates] prevailing in the community for similar services by lawyers
10
private
civil
rights
and
immigration
attorneys
of reasonably comparable skill, experience, and reputation."
11
This court therefore determines that the plaintiffs have
12
established that an enhanced fee award under the EAJA of $500 per
13
hour
14
therefore awarded attorney’s fees against Defendants in the amount
15
of $143,625.
16
2. Costs
17
is
warranted
in
this
particular
case.
Plaintiffs
are
The EAJA provides that the prevailing party can recover
18
litigation expenses and costs in addition to attorneys’ fees.
28
19
U.S.C. § 2412(a)(1); § 2412(d)(1)(A).
20
that are normally billed a client, such as telephone calls,
21
postage, and attorney travel expenses. International Woodworkers,
22
Local 3-98 v. Donovan, 792 F.2d 762, 767 (9th Cir. 1986).
23
Plaintiffs seek the award of costs for “fees and other expenses”
24
under the EAJA, in accordance with plaintiffs’ bill of costs. Pls’
25
Mot., ECF No. 681, at 12-13.
26
their eligibility for an award of fees and costs under the EAJA,
“Expenses” includes those
Because plaintiffs have established
35
1
and defendants do not contest the award of such costs, this court
2
finds that the plaintiffs are entitled to their sought costs, in
3
the amount of $2,033.27, under the EAJA.
4
IV. CONCLUSION
5
For the foregoing reasons, the court ORDERED that plaintiff’s
6
motion for attorneys’ fees and costs is GRANTED, with $143,625
7
awarded for attorneys’ fees, and $2,033.27 awarded for attorneys’
8
costs.
9
10
IT IS SO ORDERED.
DATED:
November 14, 2011.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
36
]]>
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