362 F.3d 1144 | 9th Cir. | 2004
Lead Opinion
ORDER
On November 6, 2003, petitioners’ counsel filed a timely application for fees and other expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The government’s opposition to this motion was due on November 20, 2003. See Ninth Cir. Rule 39-1.7 (“Any party from whom attorney’s fees are requested may file an objection to the request ... within 14 days after, service of the request.”). The government failed to take any action until December 30, 2003, nearly six weeks after the due date, when it filed a response accompanied by a motion to file out of time.
Under this circuit’s practice, had it not been for an error by the Office of the Clerk of the Court, petitioners’ application would have been granted long before the government’s motion and response ever arrived. Ordinarily, after a request for fees under the EAJA is received in the Clerk’s Office, it is held for 21 days pending the possible receipt of an objection from the United States.
Although we would likely have granted an extension of time had one timely been requested, the excuse offered by the government’s attorney, that she was busy with other work and so was unable to file a request for such an extension or a timely motion in opposition, is inadequate. In this regard, we note that government counsel does not assert that the other attorneys in her office were also too busy to file an opposition on the merits, let alone a motion for an extension of time. There is simply nothing in the significantly delinquent motion for filing out of time that justifies the government’s lengthy silence in this matter. Accordingly, the motion to file out of time is denied.
Given the overwhelming volume of work which today confronts our courts, more than 12,500 filings in 2003 in the Ninth Circuit alone,
Our dissenting colleague, who has requested publication of this order, does not disagree with us that the court has the authority to grant an unopposed motion; nor could he do so credibly given existing case law and circuit practice, see supra. He does not assert that there is any precedent in this Circuit, or in any other for that matter, that would require us to deny such a motion. Indisputably, there is none. The matter is beyond question within the courts’ discretion.
The government’s motion to file out of time is DENIED as untimely. The petitioners’ motion for attorneys fees is GRANTED as MODIFIED.
. The additional seven days is to ensure that an otherwise timely filed petition has not somehow been misplaced in the internal mail system.
. See, e.g., Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003: Hearing Before the Subcomm. on the Courts, the Internet, and the Intellectual Property of the House Comm, on the Judiciary, 108th Cong. 14 (October 21, 2003 (statement of Hon. Diarmuid F. O'Scannlain)).
. Courts have consistently exercised their discretion to grant motions on collateral issues, on the basis that, in failing to respond, the
Ironically, much of this burdensome caseload tracks that of the very Government attorney responsible for replying to the Gwaduris’ fee application. See id. at 15 ("Along with a double-digit growth in overall appeals, we have seen a marked upswing in immigration appeals.... For court year 2003, we received around eighty immigration appeals each and every week. Indeed, immigration appeals now make up about a third of the Ninth Circuit’s docket.”).
Concurrence in Part
concurring in part and dissenting in part:
I join my colleagues in voting to deny the Government’s motion for late filing of an objection to the Gwaduris’ request for fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2003). Although I certainly understand what it is like to have to handle a “high volume of work,”
I must dissent, however, from the court’s grant of attorneys’ fees. I certainly recognize that, absent the peculiar combination of the court’s administrative oversight and the Government’s belated motion for late filing of its objection, the Gwadu-ris’ otherwise unopposed motion for fees apparently long ago would have been granted by a staff attorney. Yet now that this application has come formally before the panel, I believe a fee award in this case to be statutorily unauthorized.
I
It is well-settled that fees under the EAJA may be awarded against the Government only if its litigating position in the case from which the prevailing party’s request arises lacked “a reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also 28 U.S.C. § 2412(d)(1)(A). That simply cannot be said of the position taken by the Government in response to the Gwaduris’ assertion that their due process rights were violated by having received ineffective assistance of counsel before the INS. Cf. Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985) (“Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”).
In its disposition awarding relief, the majority conceded that the Gwaduris had not complied with the BIA’s procedural requirements for the presentation of an ineffectiveness claim, as established in Matter of Lozada, 19 I & N Dec. 637, 639, 1988 WL 235454 (BIA 1988). See Gwaduri v. INS, 69 Fed.Appx. 878, 880 (2003) (unpublished disposition).
Notably, the court’s decision to grant fees does not suggest otherwise. Instead,
But while I do not think it impermissible, I also do not believe it to be required. Therefore, I must disagree with my colleagues’ apparent suggestion that, in these circumstances, the court has but two alternatives. See id. (“[The court may] determine that the government’s lack of timely opposition is tantamount to a concession that its position ... was not substantially justified. Alternatively, we may treat the government’s non-opposition as ... a failure to carry its burden of proof.”) (citations omitted). Indeed, there is an obvious but overlooked third alternative: At least two of our sister circuits have recognized that a court properly may reach the merits of, and in the end may even deny, an unopposed fee request under the EAJA. See Libas, Ltd. v. U.S., 314 F.3d 1362, 1366 (Fed.Cir.2003) (holding that a court may deny an unopposed request for fees pursuant to the EAJA so long as it provides a reasoned explanation for its decision); United States v. Eleven Vehicles, Their Equipment, and Accessories, 200 F.3d 203, 212 (3rd Cir.2000) (explaining that, although a court generally may not reduce EAJA fees in the absence of a Government objection, that limitation on sua sponte court action applies only to the amount of fees — not to whether those fees are available in the first instance).
II
One further observation might be appropriate. Had an administrative oversight not resulted in the Gwaduris’ fee request coming before this panel in such peculiar fashion, and had a motions attorney simply granted the Gwaduris’ request for fees pursuant to what appears to be the pre
By contrast, today’s order denies the Government that critical opportunity, leaving as its only possible path to redress the filing of a petition for rehearing en banc. Now, to garner what otherwise would be an automatic reconsideration of this award in response to an objection, the Government will have to obtain the votes of some 14 of our present complement of 26 active judges. Thus, even though today’s award of fees appears merely to achieve the same result that our administrative practice otherwise would have reached, the panel’s decision to mimic that custom here sets the Gwaduris’ motion on a distinct procedural course — and one that appears far more likely to result in the needless expenditure of taxpayer dollars.
Ill
For the foregoing reasons, I respectfully dissent from the court’s discretionary decision to award attorneys’ fees.
. See, e.g., Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003: Hearing Before the Suhcomm. on the Courts, the Internet, and Intellectual Property of the House Comm, on the Judiciary, 108th Cong. 14 (October 21, 2003) (statement of Hon. Diarmuid F. O’Scannlain, U.S. Circuit Judge) ("Even with the lumbering number of judges on our Circuit, we can hardly keep up with the immense breadth and scope of our Circuit's caseload. In the 2002 court year, we handled 11,271 appeals — over double the average of other circuits, and almost twenty-five hundred more cases than the next busiest court (the Fifth). Unfortunately, these numbers will only increase, and indeed have: as of three weeks ago, the end of the 2003 court year, that volume climbed to 12,632 filings.”).
. Although I usually am loathe to call attention to an unpublished disposition for the reasons well-stated in Hart v. Massanari, 266 F.3d 1155, 1176-80 (9th Cir.2001); see also Alex Kozinski & Stephen Reinhardt, Please Don’t Cite This! Why We Don’t Allow Citation to Unpublished Opinions, Cal. Lawyer, June 2000, at 43-44 & 81, I pause to observe that this is one of the veiy few instances in which doing so may be appropriate. See Ninth Circuit Rule 36 — 3(b)(ii) ("[Unpublished dispositions] may be cited to this Court or by other courts of this circuit for factual purposes, such as to show ... entitlement to attorneys’ fees.”).
. Although these two cases address the authority of the lower federal courts, they are equally applicable in this context — where we are not reviewing a district court’s decision, but in the first instance determining the propriety of awarding fees for legal work rendered on appeal.
. Cf. Order at 1146 ("[W]e do not generally favor requiring judges in fee application proceedings . . . sua sponte to initiate an opposition to a fee request where none is offered by the party affected, at least in the absence of a showing of injustice or hardship.”).
. The majority somewhat curiously suggests that, in the event the Government had moved for such reconsideration, the Appellate Commissioner or Circuit Judge responsible for addressing that motion could have denied it and granted the requested fees solely on the basis of the Government’s earlier failure to respond to the request. See Order at 1147. This proposition, however, seems at odds with the framework within which it assertedly operates.
Pursuant to this court's Rules, and subject to the court's approval, the Chief Judge may “delegate to the Clerk or a designated deputy clerk [the] authority to decide motions that are subject to reconsideration by a single judge or appellate commissioner.” Ninth Cir. R. 27-7. For present purposes, the relevant delegation provides only that circuit court mediators and motions attorneys may "issue ... orders granting unopposed motions for attorney fees.” Ninth Cir. Gen. Order App. A(50) (emphasis added). If the judicial actor required by the Government's filing of a reasoned "motion for ... reconsideration! 1 or rehearing,” Cir. Advisory Comm. Note to Ninth Cir. R. 27-7(l)(c), to appraise the propriety of the motions attorney's fee order could dispose of such responsibility simply by pointing to the Government's earlier lack of opposition, then such mandatory rehearing would be little more than an empty formality. After all, because motions attorneys are empowered to enter the kind of order which would initiate that process only when the issuance of such an order is formally unopposed in the first instance, see Ninth Cir. Gen. Order App. A(50), dispensing of a subsequently arising responsibility to reconsider the award of fees on grounds that they earlier were uncontested would be purely circular; it simply could serve no meaningful purpose (unless one sees a particular value in requiring an Article III adjudicator merely to count the days between the filing of a party’s request for fees and the issuance of the motions attorney's order, while simultaneously dis