Nadarajah v. Holder

Fox, mary lien goal judgment of Foulds’s here is “to to the United States is money seize or attach hands the AFFIRMED. compensation”

Government as for services provided

he non-clients adminis- he proceedings

trative cannot other- directly.

wise collect U.S. at

S.Ct. 687.

Alternatively, argues Foulds that “DOL

implicitly admitted that claims for worker for ‘money damages’ awards are not claims NADARAJAH, Ahilan Petitioner- subject sovereign immunity” in Execu Appellant, 12,988, tive Order which states that Part B likely claimants seek “will review of ad

verse in ... pur decisions district courts Jr., Attorney General; Eric HOLDER ” 78,- suant to Fed.Reg. [APA].... al., Respondents-Appellees. et reject argument 885. We this because No. 05-56759. finding an implicit sovereign waiver of im munity in APA would run afoul of the United of Appeals, States Court holding Court’s a waiver sovereign Ninth Circuit. immunity unequivocally “must be ex pressed in ... statutory text not will June 2009. Lane, implied.” be 518 U.S. at Moreover, finding S.Ct. 2092. an implicit

waiver would be counter to the Court’s

prescription that a waiver be strictly “will

construed, in scope, its terms of favor of

the sovereign.” Id.

Foulds has not demonstrated that

United States its sovereign waived immu-

nity.12 result, jurisdiction As a we lack

over this case.

IV.

The United States has not waived its

sovereign immunity § U.S.C. only

which effects waiver where a claim-

ant seeks money “relief other than dam-

ages.” Foulds’s claim for an equitable lien security

seeks a against interest EEOIC-

PA payments, not other than money “relief Fox,

damages.” See Blue U.S. at 260-

63, 119 Accordingly, S.Ct. 687. the United

States has not its sovereign waived immu-

nity, and grant the district court’s of sum- argument, At oral provides Foulds sovereign abandoned his lien statute a waiver of argument, which he raised for the first time immunity. appeal, Washington that a attorney State DC,

Washington, Respondents-Appel- lees. THOMAS, R.

Before: SIDNEY PAEZ, A. and RICHARD C. RICHARD TALLMAN, Judges. Circuit Order; Partial Partial Concurrence and TALLMAN. Judge Dissent ORDER motion for government’s reconsider- Sep- Appellate ation of the Commissioner’s 29, tember 2008 order is denied. The Appellate Sep- attached Commissioner’s awarding attorneys’ 2008 order tember $156,778.68 in the in favor fees amount Nadarajah appellant against Ahilan Jr., al., H. Holder is appellees Eric et in approved and remains effect. ATTACHMENT September Filed Shaw, Appellate Before: Peter L. Commissioner I

Background Lanka, Nadarajah, Ahilan a native of Sri in upon detained arrival the United was Nadarajah initial- States October to ly granted parole was but was unable $20,000 Nadarajah the bond. filed pay of re- asylum, withholding for applications moval, and relief under Convention (“CAT”), Torture on his Against based Arulanantham, Ahílan Thevanesan membership minority. Tamil ethnic California, Foundation of Southern ACLU (“Us”) Immigration Judges granted Twice CA, Blair-Loy, Angeles, Los John David asylum, Nadarajah ap- but the Director, Founda- Esquire, Legal ACLU Nadarajah remained in deten- pealed, Counties, Imperial Diego tion of San August In counsel tion. CA, Diego, Petitioner-Appellant. for San bond, attempted pay govern- but the Nadarajah refused accord- parole ment Trial, Christopher Duffy, Edward John September Fuller, ing to the 2001 terms. Esquire, Litigation Senior Coun- C. Justice, Nadarajah’s parole de- sel, requests were Department DOJ-U.S. that he met ground longer nied on the no II criteria, Nadarajah filed this the bond Analysis corpus for a writ of habeas petition court. district attorneys’ The amount of fees under must be corpus After court habeas awarded EAJA reasonable. the district year, (2)(A). more pending 2412(d)(1)(A), was than one petition § U.S.C. Nadarajah petition a Ninth Circuit filed starting point “The most useful for deter compel dispo- for a writ of a mandamus mining amount of a reasonable is fee petition The mandamus was as- sition. reasonably expended the number of hours signed docket number 05-75841. After litigation multiplied reasonable filed, petition mandamus the dis- Eckerhart, hourly rate.” Hensley Nadarajah’s petition court trict denied 424, 433-34, S.Ct. U.S. writ corpus, of habeas (1983). Nadarajah requests L.Ed.2d petition the mandamus as moot. withdrew representation fees for all forums $195,959.33. totalling This represents appeal, filed this 05- number by private from the district court’s denial of 861.5 hours of work attorney, petition corpus. a writ of the for habeas Rabinovitz, Judy by Esq., five attor This court the district de- reversed court’s neys, paralegals, three and three law stu cision, determining dent interns from American Civil Lib agency by denying abused its discretion Union erties of Southern California Nadarajah’s request parole. Na- (“ACLU”). requested hourly The rates Gonzales, darajah v. 1082- range from $75 $500. (9th Cir.2006). granted The court also Nadarajah’s counsel, Nadarajah’s ACLU Ahílan T. motion for pending release Arunalantham, appeal and his release Esq. ordered immediate in a states declaration from detention. Id. by percent that he reduced the hours by attorneys billed ACLU and paralegals a motion filed and an amend- by percent by the hours billed attorneys’ ed motion for fees under the (The law student ACLU interns. across- Equal (“EAJA”), Access to Justice Act not applied the-board reduction was to Ra- 2412(d)(1)(A). § government U.S.C. work.) binovitz’s On the compu- ACLU’s motion, opposed the amended Nadara- sheets, however, time percent terized the 5 jah filed a reply. granted The court Na- percent applied and 20 reductions were darajah’s fees, request for attorneys’ rates, hourly not to the hours. Appellate referred to the Commissioner addition, applied of Arulanantham a per- the determination the amount the fee of award. See R. cent, 9th Cir. 39-1.9. percent, not a 5 reduction to his filed motion to correct the of calculation hourly reply. rate for the fee This deter- fees, requested attorneys’ which of mination the reasonable fees uses oppose. Nadarajah’s did not sheets, actually in the hours reflected time grant- motion to correct the calculation is actually requested which are the hours by ed, and the corrected calculation shall be Nadarajah. employed parties subsequently here. Nadarajah has not Ninth submitted Cir-

stipulated to the submission of breakdowns cuit 9. See 9th R. request of Form Cir. 39-1.6. In- fee forum and hourly stead, Nadarajah rates. requests fees as follows: Hourly

A. Rates may award- that fees be provides EAJA market rates for upon prevailing ed based fur- quality of the services the kind and not nished, attorney fees shall except per hour in excess be awarded that an in- court determines unless the living special or a in the cost crease availability of factor, as the limited such in- attorneys proceedings qualified volved, higher fee. See 28 justifies 2412(d)(2)(A). § U.S.C. an rate of

Nadarajah requests $500, special factor of the based on availability qualified limited involved, for 49.7 proceedings at- by private immigration hours of work torney Rabinovitz. hourly rates of

Nadarajah requests $300 2006, for for and $335 for $315 factor of the limited special on the based attorneys for the qualified availability of involved, of for 494 hours proceedings attorneys immigration by ACLU work Natarajan, Ranjana Arulanantham and Esq. statutory maxi-

Nadarajah requests the in rate, adjusted for increases hourly mum hours of for 9.5 living, the cost of $162.50 argument prepara- in on oral of work tion, by non-immigration ACLU Pastore, Lhamon, Esq., Clare Catherine Rosenbaum, Esq. and Mark Esq., hourly rates of Nadarajah requests by parale- hours of work ACLU for 129.2 179.1 hours of per hour for gals and $75 student interns. by ACLU law work hourly rates do Nadarajah’s requested percent and 20 percent the 5 not reflect in hourly rates included in the reductions requested total fees of the the calculation in the document immigrants throughout and entitled detention of judiciary.” Nadarajah Market Rate federal Totals. cites four significant immigration detention cases government objects to the award of where Rabinovitz was lead counsel and prevailing hourly fees at the market rates achieved favorable outcomes. Rabinovitz, Arulanantham, for requested Arulanantham’s declaration states that Natarajan, contending that the statu- he is a 1999 graduate Yale Law School tory hourly adjusted maximum rate for judge, who clerked for a Ninth Circuit has cost-of-living increases should be awarded specialized rights of immi- detained attorneys. all grants attorney as an staff ACLU Special Factor Enhancement years, more than four represented immigrants proceed- detained in criminal Enhanced rates based on ings public as a federal defender for two special availability factor of the limited years. Nadarajah eight important cites qualified attorneys for the proceedings cases in which represented Arulanantham may involved be. awarded under EAJA immigrant appeared or behalf attorneys possess where the “distinctive amicus curiae. knowledge” “specialized skill” that was litigation question” “needful to the Natarajan contends that has “not available statutory elsewhere represented non-citizens detained under Gonzales, Thangaraja rate.” immigration years, laws for citing four (9th Cir.2005); Reilly, Love v. four Natarajan cases which (9th Cir.1991); F.2d see also appeared. Nadarajah has also contends Underwood, 552, 572, Pierce v. 487 U.S. Natarajan was named one of top (1988) 108 S.Ct. 101 L.Ed.2d 490 lawyers 100 women by California Cali- (“Examples ... an would be identifiable Lawyer magazine fornia in 2005. Accord- practice specialty law, such patent as internet, ing to the Natarajan is a 1999 knowledge foreign or language.”). law graduate of Columbia Law School. Nadarajah’s contentions are corroborat- a. Knowledge Distinctive ed the declarations of a Francisco San Specialized Skill immigration specialist, Marc Van Der Nadarajah demonstrates, gov- and the Hout, Esq., and a Angeles attorney Los Rabinovitz, ernment dispute, does not that Counsel, and former ACLU Senior Staff Arulanantham, Natarajan and have dis- Sobel, Esq. Carol A. Van Der Hout states knowledge tinctive specialized and in skill that he is familiar with experience the and immigration and, law in particular, consti- expertise all attorneys and, of three in his tutional immigration law litigation and in- opinion, they possess all “discrete and volving rights the of immigrants. detained complex knowledge.” He has been aware Rabinovitz’s declaration states that she of nearly years, Rabinovitz’s work for 20 a graduate is 1985 University of New York and she is leading immigrants’ one of the and, 1988, Law School since a staff rights lawyers attor- in country. the He has ney at Immigration the Rights ACLU Pro- been aware Arulanantham’s and Nata- ject in New York. that rajan’s contends work for past years the several and Rabinovitz is “the leading attorney in very is familiar with their work over the litigating nation cases involving rights past years, during they two which have of detained immigrants litigated [and] has successfully litigated several cases involv- numerous involving prolonged ing prolonged immigrants. cases. detention of give ... needed to gration [was] law several has co-counseled Der Hout Van prevailing.” Thangara na- a fair shot at involving alien immigration cases complex (quoting Muhur v. ja, with Arulanantham 428 F.3d security issues tional (7th Ashcroft, familiar 655-56 therefore he is 382 F.3d Cir. Natarajan, and and 2004)). their written Ninth have quality of The Third and Circuits the excellent with immigration a in advocacy. recognized specialty and that work if “distinc law can warrant enhanced rates very familiar that is states she Sobel “specialized is knowledge” tive or skill” skill, Natarajan’s and with Arulanantham’s question,” but litigation “needful for the having worked reputation, and experience, case that the published have not held in a on a number them as co-counsel that such knowl movant had established years. several during past eases necessary litiga to the edge or skill was Nata- Arulanantham and opinion, her both 876; Thangaraja, tion. 428 F.3d at See at- reputations as rajan enjoy exceptional (9th INS, v. F.3d Gwaduri experience display skills torneys Cir.2004); INS, v. Rueda-Menicucci attorneys who of most beyond far those Ramon-Sep (9th Cir.1997); F.3d years. As for seven practicing have been INS, v. 863 F.2d 1462-63 ulveda attorney, Sobel is ACLU staff a former (9th Cir.1988); see also Johnson Gon Rabinovitz. also familiar with (3d Cir.2005). zales, 416 F.3d never worked with Although has Sobel enhanced Ninth Circuit has awarded rates case, is aware on a Sobel Rabinovitz immigration where unpublished cases reputa- “enjoys exceptional an Rabinovitz have that dis the movants demonstrated law.” immigration in the area of tion knowledge specialized or skill was tinctive Nadarajah contends extent that To the necessary. attorneys’ immigration law three that the Here, Nadarajah contends his case re- itself, the award of justifies expertise, Rabinovitz’s, Arulanatham’s, quired rates, showing without enhanced Natarajan’s specialized expertise consti- attorneys possess distinctive litigation in- immigration tutional law and necessary to skill knowledge specialized immigrants. volving rights of detained lacks merit. litigation, that contention this provides also Der Hout’s Van (“We at 876 Thangaraja, 428 F.3d stating that the three attor- declaration per se adopt proposed counsel’s decline complex knowledge neys’ “discrete and law practice immigration rule that ‘the required for the successful resolution specialty similar be classified as should and their “distinctive knowl- of this case” ”); also Pe- patent law.’ see practicing statutory edge exemplary skills Casillas, 1078-79 rales v. law ... were immigration constitutional (5th Cir.1992) (holding that res- absolutely necessary to the successful unlike not a patent practice, is practice, litigation.” olution of this awarding of an specialty purpose that, government contends like rate). The enhanced no Thangaraja, litigation required this Question Litigation b. Needful For skill, therefore special knowledge or justified. are not prevailing market rates has awarded en The Seventh Circuit that this case in- government argues immigration in published rates a hanced immigration of the application that volved the counsel established case where statutes, prece- Supreme Court partic or of detention “knowledge foreign cultures of dent, understanding of constitution- and an ular, crannies of immi nooks and esoteric law, statutory al turned interpreta- background but doctrinal this case re- application tion and did not involve the of quired knowledge large body of a of complex regulations. gov- statutes or historical material concerning immigra- objection ernment’s lacks merit. detention, tion detailed treatment of new relatively statutory provi- obscure Nadarajah’s case more involved sions governing people the detention of principles than established of law with alleged to be threats to national securi- majority which of are fa ty, familiarity growing with the miliar. Ramotu-Sepulveda, body of modern concerning case law at 1462-63. This was an unusual and prolonged immigration detention in the complex required 58-page case which a context. brief significant and resulted a 15- page published decision that is cited thus In particular, existing the court applied far more than 70 other cases and 20 statutory analysis case law and regarding treatises or Nadarajah, articles. See the indefinite detention of admissible fairly F.3d at 1069. The court took the aliens to the indefinite detention of an step ordering unusual the immediate alien, concluding inadmissible Nadarajah, release of who had been de general immigration permit statutes such years tained more than despite four be only detention while removal remains rea- ing granted withholding of removal at the sonably that, pre- foreseeable and after a administrative level. An amicus curiae sumptively reasonable six-month deten- in support Nadarajah, brief addressing tion, if the alien provides good reason to prohibition the international on prolonged believe significant there is no likelihood of detention, arbitrary was filed Yale removal in reasonably fu- foreseeable Law School’s K. Allard Lowenstein Inter ture, government respond must Rights national Human Clinic. The oral evidence showing. to rebut Id. at argument was video-taped for broadcast

by C-SPAN. Nadarajah demonstrates and a review of there,

Like Muhur and the cases cited here, the briefs opinion confirms that Nadarajah’s case did not merely involve unlike in Thangaraja, ... “straightforward “knowledge of application” of the rules particular, esoteric nooks and crannies of immigration appellate law and practice. immigration ... Thangaraja, law needed to give [was] 428 F.3d at (quoting Johnson, 213) a fair the alien shot at prevailing.” 416 F.3d at Than (declining to garaja, Muhur, award 428 F.3d at experienced (quoting enhanced rate to im- 656). migration specialist 382 F.3d at In particular, Nadarajah who successfully con- tended that states that although asylum failed to con- he first won asylum sider the petitioner’s before the testimony April IJ he remained regarding imputed political opinion, detained filing petition be- without a habeas cause the require case did not research year for more than one victory. after that into little-known areas of law present His began represent counsel particular knowledge petitioner’s of the him in June helped prevail him be culture). Liberian As Van Der Hout fore the September IJ second time in states, Nadarajah’s case: ultimately and filed this successful unique

raised statutory corpus issues of and habeas action when still immigration constitutional in granted parole. law the de- was not specialized The tention Understanding context. knowledge particular attorneys of these only very small number would be will- Nadarajah’s release needed to obtain was complexity. of this ing to take on case Id. litigation. of this as result attorneys my qualified There are no distinguishable also is Nadarajah’s case knowledge who would have undertaken Gwaduri, a claim of involved which from litigation statutory at the EAJA such of counsel before assistance ineffective $125, adjusted even for inflation. rate of Gwaduri, 362 agency. See immigration government objects to Van Der Hout’s The 1147, 1149. Although the Gwaduri at F.3d affidavit, authority, citing legal without be- that fees not discuss the reasons court did state wheth- cause Van Der Hout does not statutory cap, the to the were reduced he, gen- in immigration practitioners er or it because no suggested that was dissent eral, normally hourly bill or receive a flat to liti legal expertise required special fee. Here, the other a claim. gate such

hand, and the objection has established lacks merit. government’s Rabinovitz, Arulanant Spotters Daley, record shows that In Atlantic Fish Ass’n v. (1st ham, Natarajan Cir.2000), “distinctive possessed 205 F.3d 492-93 that was “specialized skill” that knowledge” showing First Circuit discussed the is litigation question.” necessary qualified “needful to the to establish that coun- at 876. Thangaraja, 428 F.3d was not available: sel say, What the declaration needed to with Qualified Counsel Not Available c. support, at least modest is that as a Statutory At Rate plaintiffs matter the would be practical qualified that Nadarajah also establishes expert to find a fisheries law unable litigation this was not available for counsel arguendo that one was (assuming hourly rate. statutory maximum say support” required). We “modest Prop. v. Real Known as See United States practical because of realities. No one Street, 977, 984 Dolorosa plaintiffs to conduct statisti- expects the (9th Cir.1999) (“while claimants have sub- surveys cal on a collateral matter like that the market rates for fees, mitted evidence attorney’s and the antitrust laws do exceed the similarly experienced counsel encourage spend counsel to much not rate, statutory they have not demonstrated discussing compet- time fee levels taken that no suitable counsel would have lawyers. ing rate”); statutory at the on claimants’ case According at 493. to Atlantic Fish Id. (9th F.2d 1496-97 Reilly, Love v. Der Hout’s declaration satis- Spotters, Van Cir.1991) (remanding findings for further factorily demonstrates that no other coun- attorneys in area with availability as to Nadarajah’s to take case sel was available case at similar skills who would take statu- adjusted statutory maximum at the rate, tory only evidence record where Moreover, government rate. has attorney seeking fees stat- was affidavit of showing to rebut failed lawyers few other ing that there were counsel was not available. qualified expertise pesticide liti- Oregon with his Prevailing Market Rates d. court had made no and the district gation issue). findings on Representation i. Non-Profit Der Hout states that: Van that Nadara- contends prevailing mar- jah not be awarded majority of the bar should the vast matter, rates, any fees at all for that in feder- ket country engage does not this ACLU, do, by represented because he was and of those litigation, al court 916 addition, by response gov- than to the non-profit organization, ship.

a rather contentions, government objects private counsel. The ernment’s coun- Nadarajah that did not submit his retainer stating a declaration that sel submitted ACLU, or evidence of agreement with agreement, there is retainer that salaries, hourly employees’ the ACLU agreed-upon representation charge is at no cannot evaluate the therefore the court Nadarajah, Nadarajah and that has request. of the fee The appropriateness agreed any to remit to the ACLU attor- argues that “there are sub- government that neys’ fees are recovered. The compelling economic reasons stantial and representation Nadarajah at no ACLU’s to obtain allowing private for firms EAJA charge, pursuant agree- to the retainer rates appropri- ment, at market where payments preclude awarding does not reason- ate,” non-profit organizations that “do EAJA, but attorneys’ able fees under including operate princi- not on these same market requested prevailing market rates. ples” pre- and therefore should not obtain government’s argument The that the ex- vailing market rates. penses private representa- associated government’s contentions are not far expended by tion “would exceed those supported by legal authority and lack mer- non-for-profit group,” including the infer- it. Supreme The United States Court ence that the fees awarded should not long ago clarified that the award of attor- salaries, legal exceed the workers’ is una- neys’ rights civil fee-shifting fees under vailing. “Important public policy consider- cost-based, that statutes is not ations dictate should not [the court] prevailing regard- award of market rates — punish ‘undercharging’ rights an civil at- represented less whether the claimant is torney,” but instead must attorneys’ award by private or a non-profit legal counsel (or, prevailing fees based on market rates organization services not be —should EAJA, applicable, adjust- under where unjustified profit viewed as an “windfall” rates). statutory hourly ed maximum Stenson, attorney. to the See Blum v. MTA City Reiter v. New York Transit 886, 892-95, U.S. 104 S.Ct. (2d Auth., Cir.2006). 457 F.3d (1984); Hensley, L.Ed.2d 891 at U.S. (standards 7,n. applica- 103 S.Ct. 1933 ii. Evidence § ble to generally appli- 1988 awards “are cable in all Congress cases where has au- Nadarajah Although has established his thorized an award of a ‘prevailing fees to entitlement to enhanced rates under Jean, party’”); see v. also INS 496 U.S. EAJA, he must also that the request- show 154, 161, 110 S.Ct. 110 L.Ed.2d 134 ed enhanced rates are “in line with those (1990) award). Hensley (applying to EAJA prevailing community in the [rates]

“It by lawyers is well-settled that an award reasonably similar services skill, comparable experience fees is not reputa- [under EAJA] neces Blum, sarily contingent upon obligation pay an n. tion.” 465 U.S. 895 & presence attorney- counsel.... The of an an requests hourly S.Ct. 1541. client relationship pre suffices to entitle rate of for 2004 to by 2006 work $500 vailing litigants Rabinovitz, graduate. Nadarajah to receive fee awards.” a 1985 Wilson, Inc., GSA, A. Ed requests rates of for 2004 $300 (11th Cir.1997). work, work, does for 2005 $335 dispute not Natarajan, and the 2006 work Arulantham and ACLU attorney-client counsel have an graduates. relation- who are 1999 experience, they based on her do not have requested enhanced support of skill, experience, reputation or of Aru- rates, Nadarajah submits the declaration Natarajan. lanantham or Sobel also states Sobel, that: graduate, a 1978 of my experience that “based on over the rate for 2006 is My hourly billing $590 years working of at the and past 28 ACLU I time that During the per hour.... bar, skill, pro experi- with the bono ACLU, at the Counsel was Senior Staff ence, reputation lawyers and of the at the many responsible preparing for I was usually than that greater ACLU is of required I was of the fee motions.... many lawyers large compara- in firms with to establish rea- to obtain information years practice.” ble of market rates for the ACLU sonable that, in Sobel notes Comité de Jornale- lawyers. my practice It was to obtain ros, the district court stated that the hour- lawyers of com- billing rates for current ly rates awarded there were well below at experience skill and several parable market rate. Sobel states that 2005 hour- City Los An- throughout the [of firms ly attorneys rates for at Loeb & Loeb who entering private prac- .... geles] Since 1985, 1998, graduated and 2000 were tice, survey I firms have continued $485, $390, $375, respectively. and Sobel compari- relevant year each to obtain Skadden, Slate, provides Arps, a 2005 also In addition to billing sons for rates.... Meagher & Flom in support declaration of law partners various speaking requested hourly of than rates not less firms, I familiar with have also become pre-1998 graduate $560 $530 by attorneys charged the market rates graduate. a 1998 by reviewing Angeles in the Los area attorney applications fee and decisions Nadarajah also submits Van Der Hout’s fee-shifting stat- awarding fees under that: declaration my knowledge and utes .... Based on I familiar billing practices am with the [sought these for Ra- experience, rates and rates of law firms the San Fran- Arulanantham, binovitz, Natarajan] Bay per cisco Area. The hour rate $500 market rates in comparable are below requested for Ms. Rabinovitz and the Angeles. Los requested for Mr. Arulanantham $335 Natarajan pre- and Ms. are below the copies are Attached to Sobel’s declaration vailing market rate for of their Angeles involving of fee awards Los law respective experience expertise. firms. The district court awarded hourly graduate rates of to a 1997 $340 government objects again that Van graduate. McClure to 1998 he, $320 Der Hout does not state whether Beach, City Long v. No. CV-92-2776 immigration attorneys general, normally of 2005) (Memorandum (C.D.Cal. Sept. and, hourly or a flat fee there- bill receive Regarding And Fees And Opinion Order fore, support the evidence submitted Expenses). Another district court award- requested prevailing market rates is to a 1991 ed 2005 rates $450 inadequate and insufficient. graduate. graduate and to a 2000 objection government’s sup- is not de

See Comité de Jornaleros Glendale by legal authority and lacks merit. ported Glendale, (Aug. City CV-04-3251 Moreover, offers no evi- 2005) (Order Granting Motion For Attor- dence to rebut Sobel’s and Van Der Hout’s Costs). neys’ Fees And accompanying evi- declarations and showing that the rates for requested states that she is familiar with the dence Sobel Arulanantham, and, Rabinovitz, Natarajan graduates work of the 1997 and 1998 surveymost; Statutory at- Notice Re: Maxi prevailing market rates for are below skill, comparable experience, mum Rates Under EAJA at www.ca9. torneys of Bridge- uscourts.gov. Accordingly, Nadarajah is reputation. See Camacho v. and (9th Inc., Fin., requested hourly awarded the rate port $162.50 Cir.2008) Lhamon, Pastore, Rosenbaum, and (quoting Deukmejian, Gates v. (9th Cir.1992) subject percent applied to the 5 reduction F.2d 1397-98 (“The hourly Nadarajah’s opposing application the fee to these rates calcu party requested. of the total fees requires has a burden of rebuttal lation ... challenging submission of evidence Paralegal 3. And Intern Rates ...

accuracy and reasonableness of the by prevailing party in its facts asserted Nadarajah requests hourly rates of affidavits.”)) submitted per hour for and paralegals per $100 $75 govern hour for law student interns. The Nadarajah’s regarding evidence object. Ap ment does not Based on the by prevailing market rates is corroborated pellate experience, the re Commissioner’s Appellate Commissioner’s review of quested paralegal and law student intern many applications. Accordingly, other fee are “in line with pre [rates] rates those Nadarajah requested is awarded the hour vailing community in the for similar ser Rabinovitz, Arulanantham, ly rates for and by [paralegals] reasonably compa vices Natarajan, subject percent to the 5 and skill, experience reputation.” rable and percent applied reductions to Arulanant Blum, at n. U.S. 895 & 104 S.Ct. Natarajan’s hourly ham’s and rates in Na requested hourly 1541. The rates for the darajah’s calculation of the total fees re paralegals awarded, and interns are sub quested.

ject percent percent to the 5 and 20 reduc Adjusted Statutory applied respective hourly tions to the Maximum Hour- rates ly Rate calculation of the total fees requested. See Richlin Sec. v. Serv. Cher- Nadarajah requests compensation - -, toff, U.S. 128 S.Ct. adjusted at statutory hourly maximum (2008) (under 2019, 170 L.Ed.2d 960 by rate of for 2006 work the re $162.50 EAJA, paralegal may fees be at awarded Lhamon, Pastore, maining attorneys, rates; prevailing recovery para- market government Rosenbaum. The does not legal attorney’s is not limited to fees cost object requested adjusted statutory to the services). rate, hourly maximum has correctly. Thanga calculated the rate B. Number Of Hours raja, (cost-of-living 428 F.3d at 876-77 in by multiplying creases are calculated requests 861.5 hours for the statutory by IJ, maximum hourly representation rate before the Board of Im- (“BIA”), court, annual average price migration Appeals consumer index district (“CPI-U”) figure for all urban consumers Ninth discrepan- Circuit. There are years attorney’s in which the among Nadarajah’s govern- work cies and the dividing performed the CPI-U ment’s breakdowns of the number of hours (155.7), figure for March 1996 the effective incurred before each forum. The docu- statutory “Nadarajah date of the maximum ment entitled Market Rate rate); Labor, Totals,” Dept. by stipulation see also Bureau of submitted of the Statistics, above, parties reproduced Labor Table 1A. CPI-U: U.S. is used city average http://data.bls.gov/cgi-bin/ determining the reasonable hours. objects generally government correctly objects The government to Na- darajah’s requested legal request representa- for the ACLU for fees for the horns “excessive, tion before the IJ and the BIA. duplicated are such as See Ardes- workers INS, 129, 136, tani 502 U.S. multiple attorneys time for to conduct the S.Ct. (1991) (administra- 515, 116 L.Ed.2d 496 task or review the same document.” same deportation proceedings tive are not object ad- does not to Rabi- versary adjudications under Administra- requested novitz’s time entries or hours. Procedure Act tive and therefore do not Arulanantham’s declaration states that category proceedings fall within of for billing judgment he to ensure exercised authorized). which EAJA award is requested hours are reasonable. Nadarajah argues may that he recover a number of He eliminated entries he fees for the administrative agency repre- thought duplicative were or not essential sentation because this work was “intimate- litigation. the three lead to Where ly connected” to the habeas corpus litiga- inconsistent, were attorneys’ time entries tion before the district court and this applied he the shorter of times in the court, on which he prevailed, and therefore addition, In different entries. Arulanant- that EAJA fees are authorized. This ar- by ham reduced the rates 5 percent gument fails. 20 as discussed above. percent, This not applied across-the-board reduction was Nadarajah pre-Ardestani relies on cases fees, to Rabinovitz’s but Rabinovitz states holding that may EAJA fees be awarded “I billing in her declaration that exercised for administrative proceedings “intimately by significantly reducing the judgment judicial tied to the resolution of the action I spent consulting number of hours necessary to the attainment of the Although co-counsel. I believe the I fees Congress sought promote by results to compensable, eliminated were I neverthe- Morris, providing for Pollgreen fees.” compensation less chose not to seek for (11th Cir.1990) 527, 911 F.2d (citing 534-36 work, out of an abundance of caution Hudson, 888, 877, Sullivan v. 490 U.S. 109 billing excessively.” to ensure we were not (1989)). S.Ct. 104 L.Ed.2d 941 Since Ardestani, holding Hudson’s has been nar- A review of the record and the ACLU rowly applied post-litigation and limited to and Rabinovitz time sheets no un reveals Pollgreen, situations like where there was duplication reasonable of effort. Except a court-ordered remand for further admin- below, pursuant for the hours disallowed to proceedings agency istrative and the rep- government’s specific objections, necessary carrying resentation was out reasonably were requested expend hours the court’s order. See Friends Bound- Hensley, ed and are awarded. See of Thomas, ary Waters Wilderness v. 433-34, 103 S.Ct. 1933. U.S. (8th Cir.1995) 887-88 (collecting Agency Representation 1. cases).“[P]re-litigation pro- administrative ceedings not have requisite do ancil- Nadarajah requests 151.5 hours and lary judicial action,” relationship with the $28,164.34 representation in fees for the permit an of award fees under Hudson. Arulanantham, by Natarajan, before the IJ Id. at 887. paralegals, Nadarajah and interns. also $9,976.31 contrast, requests 40.6 hours and in fees In claims fees for representation building for the before the Board of counsel’s efforts in the evidentia- (“BIA”) Immigration Appeals by ry Arula- agency record before the administrative nantham, Natarajan, paralegals. during and the BIA proceed- the IJ and removal justify does not an award of fees court action or the rationale the district ings, before pre-litigation were filed. Nadara- administrative remov- appeal to this court here, jah that because counsel submit- not under- proceedings contends al which were proceeding record to the pursuant pre- ted the removal to a court order. The taken court, requesting in lieu of an evi- litigation proceedings district administrative here dentiary hearing, should be requisite degree not involve “the of did EAJA fees for the administrative court awarded direct interaction between federal argument, of this support justify an proceedings. agency and an administrative Nadarajah cites v. Bd. Educ. Webb of under EAJA. Friends award fees” Wilderness, n. County, 471 U.S. Dyer Boundary 53 F.3d at Waters (1985), 85 L.Ed.2d 233 S.Ct. County, F.Supp.2d

Lambert v. Fulton request 192.1 hours and (N.D.Ga.2000) (citing Pennsyl- $38,140.65 in BIA fees for the IJ and Valley v. Del. Citizens Council vania Arulanantham, representation Natara- Air, 546, 561, 106 S.Ct. Clean U.S. jan, paralegals the is denied. and (1986)). 3088, of the 92 L.Ed.2d 439 None administra- cited cases involve EAJA or 2. District Court proceedings. removal Webb and De-

tive pre-Ardestani, and Valley laware are corpus pro- For the district court habeas binding authority Lambert not in the is ceedings, requests 13.45 hours by Circuit. The cases cited Nadar- Ninth $6,725 in and fees for Rabinovitz and 153.5 ajah dispositive are not here. $38,045.80in Arulanant- hours and fees for Nadarajah argues that he submitted the ham, Natarajan, and The paralegals. the administrative record lieu of an eviden- proceedings pending court district were tiary hearing to the resources “conserv[e] 24, 28, September from 2004 to October concerned,” “reading of all that EAJA government object The does not to effectively punish to counsel for this In a requested by the hours Rabinovitz. perverse choice creates a incentive to chart, attached A to govern- as Exhibit judicial ... hope waste resources opposition, government objects ment’s recovering lan- fees.” invokes by specific hours billed the others for guage language regarding from Hudson’s proceedings, district court but does not avoiding frustrating anomalous results and objections. state the reasons for the Na- The purposes of EAJA. Hudson court darajah responded specific has not to the barring EAJA fees for man- reasoned objections, arguing they are without datory, pro- court-ordered administrative Indeed, authority. opposing basis or “[i]f ceedings on remand would “throw the So- up specific counsel cannot come with rea- Security cial claimant a lifeline that was reducing request sons for the fee that the an ... too short” and create “incentive for persuasive, ... court finds [the court] judi- after abandon claimants full, normally grant the award in should Hudson, 890, cial remand.” 490 U.S. at is, than a haircut [that with no more 109 S.Ct. 2248. small, percent 10 Moreno reduction].” Sacramento, 1106, 1112, duplica City Counsel’s efforts to avoid a 534 F.3d (9th Cir.2008). Nevertheless, commendable, the ra- evidentiary hearing tive are they objections of the are are relevant to the determination tionales for some objections apparent, of the reasonable fee for the district court and some of the have Nevertheless, proceedings. the Hudson merit. Davis, billing errors.

a. Clerical 976 F.2d at 1543; Smoking see also Action on & objects following to the CAB, Health v. 222-23 by paralegal: entries (D.C. Cir.1984). (of hours) hours a total 3.7 1.85 (ID 23630) for re- August No. To account the paralegal’s for bill Natarajan regard- an search and email to work, ing of clerical the district court fee petitions, filing proce- ing corpus habeas by request is reduced 6.05 hours at the dures, admission, attorney and for rate, paralegal’s reduced 5 requesting filing checks for the and attor- by Nadarajah’s percent counsel to $95. fees; ney admission Accordingly, the district court fees are re by duced a total of August Septem- ground. 2.7 hours from 19 to on this $574.50 (ID 23633, 23635, 23722, ber Nos. b. Unnecessary/Staffing 24012) obtaining transcripts of

23750 & immigration proceedings court government objects to the following court, in- submission to the district which entries Arulanantham: follow-up calls and telephone volved corre- (ID September 1.1 hours on court, mem- spondence immigration to the 27078) petition No. for “PC on habeas Natarajan, os to Arulanantham and Ranjana Judy, research on other ha- tapes to purchase sending of and blank petitions challenge denials”; beas parole court; (ID September 2.35 hours on (ID 0.5 hour on March No. 27082) Ranjana No. for “discussion and w/ 24747) ltr “prepare cover for return of brief’; Judy on check”; cashiers (ID January 26, hours on 1.8 2005 No. (ID 25, 0.2 hour on March 2005 No. 27100) for to get help “Calls amicus on 24748) “track package”; arguments”; confrontation (ID 16, February 0.8 hour on 2005 No. (ID 27, January 0.7 hour on 2005 No. 24557) organize docu- for “Assemble and 27101) for “Letter to client with docu- evidence; to pertaining ments exclusion of ments, pictures, opposing etc. Also call to correspondence to J. Silk and H. Forden of Lanka”; regarding trip counsel to Sri Rights the Lowenstein Human for- Clinic (ID 11, warding April same.” 1.1 hours on 2005 No. 27274) for “Review of Lowenstein Clinic Apparently, government con the secrecy materials on process”; and due filing, transcript, tends that the and docu (ID 1.7 hours on April 2005 No. organization ment time was clerical in na 27274) for “Review of Lowenstein materi- ture and should have been subsumed in secrecy als on process”; and due firm rather than at parale overhead billed gal rates. This contention has merit. See (ID 2,May 1.1 hours on 2005 No. Francisco, City County Davis v. & San 27277) for “Confrontation Clause re- (9th Cir.1992) (citing search”; and Jenkins, Missouri v. n. U.S. (ID August 0.7 hour on No. 10, 109 2463,105 (1989)); L.Ed.2d 229 S.Ct. 27288) for of legislative history “review Volpe, F.Supp. see also Keith v. memo.” (C.D.Cal.1986). clerical tasks When rates, are The apparently billed court should overstaffed, requested reduce the hours to account for contends that the case was entries not discussed ing Arulanantham’s include uncoded unnecessary objects to as attorneys, objects conferencing government apparently with two other above. The and, curiae, amicus they consultation with while involve time these entries because pending, was corpus petition spent agency the habeas before administrative develop certain continuing to research peti- and on the Ninth Circuit mandamus recently addressed This court issues. objections government’s tion. The to time attorney’s time was rights a civil whether agency administrative spent before the unnecessary: peti- and on the Ninth Circuit mandamus likely spend unnec-

Lawyers elsewhere, are not and the tion are addressed contingency fee cases essary time on requested pro- for the district court hours inflating their fees. hope ceedings further on this are not reduced uncertain, to the result payoff is too as ground. It amount of the fee. would and the duplicative to avoid a Counsel’s efforts highly atypical civil therefore be court, evidentiary in the district hearing plaintiffs lawyer case where en- rights submitting transcripts of the adminis- gages churning. By large, hearings, trative are taken into account winning law- court should defer to the awarding fee for the district reasonable judgment to how

yer’s professional as court proceedings. required spend much time he was on case; all, won, might after he 3. Ninth Circuit Mandamus Petition have, had he been more of a slacker. not (No. 05-75841) Moreno, Moreover, 534 F.3d at 1112. “the peti- For the Ninth Mandamus Circuit may ... court not set the fee based tion, Nadarajah requests 20.1 hours and speculation as to how other firms would $4,013.16 Arulanantham, Nata- fees for have staffed the case.” Id. at 1114. rajan, paralegals, and the and 119.7 hours “Modeling law firm economics drifts far $7,182 in fees for the law student Hensley afield of the calculus and stat- petition interns. mandamus utory goal sufficiently compensating pending from 11 to October December qualified counsel in order to attract attor- 2005. neys rights to do civil work.” Id. at 1115. Appellate Based on the Commissioner’s a. Entitlement cases, applications review of fee in similar government objects Nadarajah’s The reasonably expended Arulanantham the request filing for EAJA fees for the Ninth hours, contested and the hours are award- mandamus, petition Circuit for a writ of ed. sought compel which the district court Nadarajah’s pending to decide habeas cor- c. Other pus petition. argues that government support The time sheets submitted in government party the not a to the was Nadarajah’s request by fee are coded fo- Nadarajah petition mandamus and that did rum, some time entries do not have a but Af- prevail petition. not on the mandamus government’s objection forum code. The ter the district court decided the habeas chart, A opposi- attached as Exhibit to its corpus petition, Nadarajah withdrew the tion, employs timesheet’s cod- petition mandamus and this court did not objections chart, ing. Some of the on the opportunity have an to address its merits. therefore, Thus, are not coded forum. objection government’s objections period government’s the is not authority proceedings pend- supported by legal the district court were and lacks government party petition merit. The was real mandamus is filed to compel dis- petition, in interest to the mandamus trict court Nadarajah action. filed the step which was a reasonable the petition habeas mandamus on October corpus litigation against government in and the district court issued its decision on Nadarajah ultimately prevailed. which corpus petition habeas on October County Angeles, Cabrales v. Los 935 2005. Once obtained the dis- (1991) (Hensley F.2d trict ruling estab court’s corpus the habeas general allowing attorneys’ petition, lishes rule he prevailed filed and in his Ninth fees for services that contribute to appeal, securing the Circuit all the relief he lawsuit); victory ultimate Del. sought against Val in the ha- .(attor ley, 478 U.S. at corpus litigation S.Ct. 3088 beas immediate re- —his neys’ may March, 2006, fees be awarded for work that is lease in after years five type ordinarily necessary useful and of a detention.

to secure the final result from obtained Therefore, this court determined that litigation); also H. see Moore Jas. Mat Nadarajah a prevailing party entitled Co., (9th thews & Cir. to an award of EAJA fees for the habeas (standard 1982) is whether work “would corpus litigation. Because Nadarajah’s by a have been undertaken reasonable and petition mandamus was a step reasonable prudent lawyer to protect advance or [the] in the corpus litigation, habeas in which pursuit client’s interest of a success Nadarajah ultimately prevailed, Nadarajah recovery”). ful is entitled to EAJA fees for his attorneys’ work on the petition. the district mandamus

When filed court See Cab- rales, 935 F.2d at corpus petition, habeas he had been in years, detention for four since October b. Reasonableness

2001, despite winning asylum. twice Na- darajah parole was denied gov- while the objecting generally Besides awarding appealed ernment the IJ decisions. When fees for petition, the mandamus gov- Nadarajah filed the Ninth Circuit manda- ernment does not state other reasons for petition, corpus petition mus the habeas objecting to the time entries regarding the seeking pending his release had been one mandamus petition. Notably, Nadarajah’s year without decision. these circum- counsel does appear not to have billed for stances, Nadarajah’s reasonably counsel filing the motion to withdraw the manda- believed that relief mandamus was neces- petition, mus after the district court issued sary Nadarajah’s timely to secure release a decision. The use of law student interns petition or obtain denial of the so that majority for the of the work was cost- Nadarajah could appeal to the Ninth Cir- effective. But a review the time entries According petition, to the cuit. mandamus paralegal shows that some time spent Nadarajah’s already counsel had tele- activities, on impermissible clerical as fol- phoned the district court regarding the lows: request

status of the case and a filed for a (ID 4.5 September hours on decision or status conference. 25765) No. for organize “Assemble and petition may Mandamus; mandamus exhibits to Petition for Writ of catalyst Petition; well have been for prepare the the district revisions to certificate of decision, cases; court’s habeas corpus although compliance and statement of related unnecessary. procedure this court’s intervention was court clerk re for manda- t/c w/ mus; is not an atypical prepare request filing fee”; This occurrence when check for concerning situation Sri 25779) review (ID for his on October No. 0.2 hour Lanka”; and receipt confirm docket to for “Check AA re email to petition; of mandamus (ID 12, 2005 hours on November 4.35 same”; and 27303) client, long discus- No. for “Visit its with habeas and of case status sion 25829) (ID on October No. 0.2 hour proceedings. removal interaction with briefing sched- for “Check docket Otay Mesa.” Travel to and from of Man- re: Petition Writ ule or order the detention AA, Nadarajah responds that damus; RN re: same.” email to cumbersome location and center’s distant bill paralegal’s To account justified procedures visitation telephone work, peti mandamus the ing of clerical visiting many hours for client spending so by 4.9 hours at is reduced request tion fee Moreover, during appeal. the briefing and rate, reduced 5 paralegal’s the $100 English fluent in is not Nadarajah’s counsel to percent $95. in Tamil. Un Arulanantham is not fluent are re court fees Accordingly, the district circumstances, requested all hours der the ground. on this by a total of duced $465.50 reasonably communication were for client 433-34, Hensley, 461 expended. See U.S. 05-56759) (No. Appeal 4. Ninth Circuit 1933. S.Ct. other than appeal, the Ninth Circuit For Argument b. Oral Nadarajah requests 36.25 litigation, fee Rabinovitz, $18,125 in fees for hours and contends, without government The $70,167.12in for Aru- fees 266.4 hours legal authori citing specific time entries lanantham, Natarajan, paralegals, and the that Arulanantham should not have re ty, for law student and 3.4 hours argu for oral prepare 40 hours to quired appeal was filed interns. The notice ment, already had Arulanantham because does government November briefing than 40 hours spent more hours re- object not to the Ninth Circuit contention lacks merit. As appeal. This quested for Rabinovitz. above, significant this was a case discussed Nadarajah, importance of its

because a. Communication Client more than four had been detained for who regarding the law years, impact and its contends, without The case also was indefinite detention. legal authori citing specific time entries or unique statutory and complex, presenting not have that Arulanantham should ty, questions required constitutional briefing Nadar visiting 17 hours spent brief, curiae 58-page warranted an amicus appeal the client needs no ajah, because on brief, 15-page opinion. in a and resulted attorney needs little preparation and Arula- prepare argument, To for oral input. In Exhibit A to or no client however, nantham states that he reviewed volu- gov government’s opposition, record, opinions researched the objects following time en minous ernment two moot court panel judges, organized client by Arulanantham that relate to tries experienced ACLU communication, arguments reasons providing without counsel, several and researched of total 1 hour outside objections: for the 0.5 hour 27295) (ID issues, arose at one of which 2, No. for unbriefed on November 2005 request not does opinion argument. and review of strategy “Work on participat- who fees for the outside counsel court denied habeas. Also after district client, preparation. Based argument articles ed in oral along with drafted letter

925 review of certification Appellate papers, strategic thought on the Commissioner’s AG litigation.” about next move for similarly complex habeas applications ap- fee reasonably 40 spent Arulanantham peals, The government’s reasons for the argument. for oral prepare

hours to objections clear, they are not but appear to 433-34, at Hensley, 461 U.S. 103 S.Ct. be based on concerns about staffing and

necessity above regarding discussed litigation. district court A fair amount of c. Other conferencing among was rea appeal sonable for an complexity, this government objects also to the fol- and none of the cited time appears entries lowing Ninth Circuit time entries Aru- Hensley, unreasonable. See 461 U.S. at lanantham, explaining without the reasons 433-34, 103 S.Ct. 1933. Nadarajah’s Given objections: detention, lengthy counsel (ID 4, 0.5 hour on November 2005 No. reasonably sought interim relief or an ex 27296) w/Judy regarding Njdjh for “talk pedited appeal, which the granted. court habeas”; Valley, 561, See Del 478 U.S. at 106 S.Ct. 3088; Moore, 682 F.2d at 839. The re (ID

5 hours on November No. quested appellate hours are awarded.. 27299) for “case law research on various reliefs, concerning drafting issues interim 5. Fees expedite pending

motion release appeal”; For the fee litigation,. Nadarajah re- $13,356.60 quests 56.6 hours in fees for (ID 1.8 hours on November Arulanantham paralegals. and the Al- 27300) “long No. for conversation though Pastore reply, assisted the fee concerning attempt email with AUSA request does not fees for her settlement”; applied percent work. Arulanantham a 20 reduction, rather than a pércent reduc- (ID 2.3 hours on November tion, to his rate for the reply. 27301) “long w/Judy No. conversation release”; about edits to mtn for interim object does not (ID 5.5 hours on November specific time concerning entries the fee 27302) No. for “final work on motion to litigation. A review of the fee submissions expedite researching Lan- gaps (e.g. Sri requested reveals that the time was rea — cases), sonably w/Judy expended, kan CAT talk Rabinovitz and the time is awarded in full. strategy, inputting changes about to statu- section”;

tory and constitutional ' Summary C. (ID 2.1 hours on December No. 26991) changes (reply for “editorial to brief above, As discussed 203.05 hours and release) on mtn for interim discussed $39,180.65 in fees are disallowed for the Judy, research standard w/Adam proceedings administrative and for clerical stays”; work on the district court and mandamus proceedings. (ID January 2.6 hour on No.

27000) BIA for “Review of Decision and Fees and hours are as follows: awarded Gonzales, Nadarajah § 2241. 28 U.S.C.

III Cir.2006). (9th We Conclusion wrongfully the alien was de- found that Immigration by the United States tained in the amount of Attorneys’ fees during pen- and Naturalization Service $156,778.68 appel- in favor of are awarded asylum, withholding of remov- dency of his against appel- lant Ahílan al, protection under the Convention Mukasey. This order sent Michael B. lee immigration proceedings. Torture Against serve to amend the agency shall Id. court’s mandate. issued, Nadarajah After our decision TALLMAN, Judge Concurring Circuit sought attorney’s fees under EAJA. dissenting part: part; and we referred parties briefed the issue Appellate claim to our Commissioner fees well

Today approves the court “Commissioner”) (the for further consider- Congress deemed excess of the amount merits and his recommenda- ation on the Equal Ac- enacting when appropriate award. Once appropriate tion on an fee (“EAJA”), to Justice Act 28 U.S.C. cess negotiate agreed- an parties failed to agree § I is 2412. While award, entered upon fee the Commissioner award, I in the to a fee and concur entitled $156,778.68 legal fees granting an order to each at- approved of hours as number Nadarajah’s immigration team of attor- should follow torney, I believe the court neys. imposed compensation legislatively public legal counsel. While guidelines filed a motion to reconsid- Appellee immigra- undoubtedly complex this recommendation, er the Commissioner’s case, I think it warrants fees tion do not modification, which, the court slight with only congressionally that dwarf not only I with the upholds today. disagree fees, EAJA but also those authorized fee recommended Commissioner’s lawyers public from the fisc to awarded Nadarajah’s three regard award in the handling complicated the most cases Rabinovitz, Ahílan attorneys Judy main — i.e., capital corpus appeals. habeas circuit — Arulanantham, Ranjana Natarajan— I respectfully dissent. recommends, for whom Commissioner grants, enhanced majority and the now Background I. hourly rates at rates in excess of fees well or habe- charged typically granted we Ahílan attorneys. as corpus a writ of habeas under petition for

927 Hourly and these few previously rendered deci- II. Enhanced Fees sions have eluded publication. See Free- provides may that The EAJA fees be Mukasey, 04-35797, man v. No. 2008 WL upon prevailing awarded “based market (9th 1960838, at *4 26, 2008); Cir. Feb. quality rates for the kind and of the ser- Gonzales, Fang 03-71352, v. No. 2006 WL long vices furnished” so as those fees do (9th 5669901, 2006). at *3 Cir. Oct. per not exceed hour. 28 U.S.C. $125 2412(d)(2)(A). § A may court decide that Specialty A. Practice

this amount should be modified if a cost-of- factor, living increase or some “special prong The first of the three-part test is availability qualified such as the limited attorney determine whether “the ... involved, attorneys proceedings possesses] distinctive knowledge justifies higher a fee.” Id. developed through skills a practice special- Love, ty.” (9th 924 F.2d at 1496. On this Reilly,

In Love v. 924 F.2d 1492 point, contemplates the statute Cir.1991), that attor- three-part we delineated a test neys “qualified be ... in specialized some what a governs petitioner must show sense, just than general rather their in order to receive an award of enhanced legal competence.” Underwood, Pierce v. statutory fees above the maxi (1) 552, 572, 487 U.S. attorney possess mum: “the 108 must dis S.Ct. 101 (1988). L.Ed.2d knowledge tinctive and skills 490 developed Distinctive knowl- (2) turn, through practice specialty”; edge, may “those be “an prac- identifiable specialty patent law, distinctive skills must be needed in the tice such as or knowl- (3) litigation”; and edge foreign “those skills must not law language.” or Id. statutory be available elsewhere at “Although may a court find that other at recently rate.” Id. 1496. We most ‘special factors’ counsel favor of an en- three-pronged reaffirmed the inquiry award, hanced fee these special factors Council, Natural Resources Inc. may not be ‘of broad general applica- Defense ” Winter, (9th v. 543 F.3d Winter, Cir. tion.’ at 543 F.3d 1158 (quoting 2008). Pierce, 2541). 487 U.S. at 108 S.Ct.

While neither Love nor Winter dealt I could find no cases in which one of our specialization with a in immigration, we panels definitively ruled that attorney recognized attorney have that an can spe possessed requisite specialization in cialize in that field. In Rueda-Menicucci immigration, though cases have noted that INS, (9th Cir.1997), v. 132 F.3d 493 we such a specialization could exist. See speciality found that “a in immigration law Gonzales, Thangaraja 428 F.3d special could be a warranting factor an (9th Cir.2005); Rueda-Menicucci, statutory enhancement of the at rate.” Id. F.3d at In Thangaraja, 496. the panel Bowen, (citing Pirus v. adopt counsel’s proposed per “decline[d] (9th Cir.1989)). However, the Rueda- se practice rule that ‘the of immigration panel Menicucci grant did not an enhance law should specialty be classified as a simi- ” ment based on attorneys’ specializa practicing patent lar to law.’ F.3d Instead, tion. we found that there was It generalized found that experience adjust statutory need to maximum in the area of law did not “ amount —at time per hour—to evidence knowledge’ some ‘distinctive account for inflation. Id. ‘specialized necessary skill’ litigating rarely grant We have decided to special Thangaraja’s case.” (quoting Id. Rueda- cases, Menicucci, 496). factor in immigration enhancements 132 F.3d at “practiced had affidavit stated she law Smith’s immigration said that we have While Immigration law in Montana of aspects we have all specializations, its own may have be, adjunct “an years,” and was might past or those what explained never on,] of,[and immigration lecturer possess professor one must prerequisites what based The Commissioner in the field.1 law.” Id. at *3. specialize of the on the location most of his decision determined orders non-published Two Montana, special- case, and not on Smith’s requisite spe the attorneys had that the However, ization. See discussion infra. analysis those within cialization. least believed that Smith’s very at the he premised on a Sev orders is Ninth Circuit of prong she met the first affidavit showed one indicating when case enth Circuit request- the because she received the test knowledge” or “distinctive might have in fees. enhancement ed immigration law. in “specialized skill” (7th Cir. Ashcroft, F.3d 653 Muhur Freeman, Also, in the Commissioner concluded, 2004), as Circuit the Seventh “[l]ike an increase because recommended have, attorneys are immigration that we there, Free- the cases cited Muhur and to fees above entitled “ipso not facto merely involve a case did not man’s But, it Id. at 656. statutory ceiling.” application’ of well-known ‘straightforward ceiling for added, pierce the “the cases prac- or federal immigration of law rules bring relevant lawyers who immigration 1960838, at *5. Sworn tice.” 2008 WL case, of knowledge as to a such expertise that convinced the Commissioner affidavits particular, of esoteric foreign cultures or statutory maximum from the an increase law, in immigration crannies of nooks and per hour was hour to per of $250 give needed to expertise such is which These affidavits stated warranted. Id. Our prevailing.” a fair shot at alien than had “more attorney question in these “eso non-published orders find two distinctive, exper- years specialized of nine immigration crannies of teric nooks and study, practice, and immigration in law tise law.” focus on district teaching, particular with a adjust- corpus petitions habeas court First, rec- Fang, the Commissioner untimely involving an death ment of status attorney in the that the lead ommended immediate relative.” Id. petitioning of the Smith, case, receive an en- Ms. should to the then moved on The Commissioner statutory maximum hancement above the of the test. prongs other hour. 2006 WL 5669901. per of $125 ("NRDC”) requisite to have the attorney might were found when an 1. We have stated specialization Re- "specialized in another field. experience have them to have gave guidance when cently, Winter some attorney liti- had "a broad skill.” The senior might possess specialized skill in an envi- one gation practice.” Id. at 1156. There attorneys junior case. ronmental experi- [had] that he "evidence in the record they specialized had skill in claimed dispute and arbi- in alternate resolution ence they had worked on the com- case because tration, litigation, entertainment appellate case, pressures, panion under time worked transactions, litigation, property intellectual against gaggle govern- and were matched litigation,” had been co- general and he Winter, attorneys. at 1160. ment multiple law environmental lead council these indicated that the We found that none of spe- attorneys NRDC worked cases. Id. The in, pos- attorneys specialized were more protection and cifically on marine mammal of, knowledge distinctive environmen- sessed wildlife, marine issues effect of sonar on hand, the senior tal law. Id. On the other Id.; litigation. also id. see both central to attorney attorneys from the on the case and Council at 1161. Resources Defense Natural (9th case, Cir.1988). majority adopts In the instant However, 1462-63 again, that these special- the view have unpublished orders have found that spe- knowledge ized the field of constitution- cialized skill was immigration needed an al immigration litigation involving law and Freeman, case. See 2008 WL “ rights immigrants, detained (where *4 the case involved ‘matters of years experi- then concludes that their impression’ first ... involving ‘the inter- ence in law and the number of play adjustment between the of status re- they cases have dealt with concerning de- gime and the program,’ visa waiver partic- tention special knowledge. constitutes ularly regard surviving to spouses, though Even does not and ‘the text purpose and complex [a] challenge Nadarajah’s argument that his ”) statute’ (quoting Gonzales, Freeman v. attorneys possess “specialized skill” or (9th 444 Cir.2006)); F.3d Fang, I knowledge,” proble- “distinctive find it 2006 WL 5669901.2 majority matic that attorneys holds Rabinovitz, Arulanantham, Natarajan case, In the instant the majority finds have knowledge specialized distinctive in a that the attorneys’ specialized knowl- immigration area of warranting law such edge assuming, arguendo, they possess — extraordinary hourly rates. some extraordinarily specialized skill in majority implicitly relies on the at- immigration law—was necessary for this torneys’ own declarations and two sworn litigation because it typical was not a im- counsel, by affidavits additional finding migration case. The government objects these three attorneys possess “distinc- finding, to this arguing that “[n]ot unlike knowledge” “specialized tive skill.” Thangaraja, this case applica- involved the However, explained we have never what immigration tion of the statutes, detention evidence is needed to show that one’s at- Supreme precedent, Court and an under- torneys have a specialized skill which war- law, standing of Constitutional but it rants enhancement of fees. Nor have we statutory turned on interpretation. It did said which areas of law can be not involve the application complex stat- specialization considered a require some regulations.” utes or I agree with the type “specialized only skill.” It has heart, government. At this was a habeas generalized “immigration been found that case, corpus complex no more than most of specialty. law” is not such a our penalty death corpus habeas cases. Litigation B. Needful in this Our decision in Nadarajah required an Though we have embraced this second understanding of Tigers, the Tamil test, prong of the we have never held in a statutes and constitutional provisions gov- published immigration case that the mov erning detention. unconvinced, I remain ant had that knowledge established such however, that required this case such necessary or skill was litigation. to the specialized acute and knowledge of deten- 876; Thangaraja, 428 F.3d at Gwadu Cir.2004); corpus tion and habeas it (9th could be INS, v. ri a-Menicucci, done few other than 496; these three attor- 132 F.3d at Rued INS, Ramon-Sepulveda v. F.2d neys. However, CIS, 680-BR,

2. district courts within our circuit No. 05-cv-1 2007 WL Lazli specialized have found that skill or dis (D.Or. 25, 2007). July See, knowledge e.g., tinctive was needful. reasonably Availability proximity Counsel should be in close of Other

C. case, attor- the client. In this of the one that, a fee requires The EAJA also Rabinovitz, neys, actually practices in New factor, special this enhancement based miles from the ACLU York—some 2800 availability of must be a “limited there California, Angeles, Los even further in proceedings attorneys qualified from location of southern 2412(d)(1)(D)(2)(A). § volved.” U.S.C. It is hard to California detention. a bit on Plaintiffs to demon burden rests “[T]he no attor- qualified believe that there was higher fees” strate their entitlement ney anywhere the Pacific and At- between unavailability of qualified on the based Also, lantic while Aru- Oceans. Winter, F.3d counsel. Natarajan practice lanantham both Love, the proper to decide we declined is still distance Angeles, Los some until attorneys’ amount of fees “the district actually from de- where finding a further as to the court [made] Mesa, Otay tained in California —located attorneys of in the area with availability the about miles from States five United take the case at skills who would similar border with Mexico. at statutory 924 F.2d 1496-97. the rate.” shortage attorneys There being “no of Nadarajah, majority the relies on an For immigration in qualified practice to law” in immigration attorney from an affidavit California, fact that juxtaposed the California, there swearing that are few of attorneys none are located country in lawyers the who could and him, question majority’s close to I this; on a case such as would work at- qualified conclusion that there was no statutory it for the none who would do torney represent Nadarajah at the able maximum of hour. While the per $125 statutorily imposed fee ceiling. a government meaningful to make fails statements,3 I objection to these find the Prevailing D. Rate Market reasoning defective. prong not a the test we While this is of First, orders, in previous one our we Love, prevailing in market delineated overwhelming stated that has an California applied rate is amount to be if that test attorneys. of immigration number Free- is satisfied. The EAJA states that “[t]he (“The man, 1960838, 2008 WL at *6 gov- amount awarded of fees under this subsec prac- ernment’s contention Renison tion market upon prevailing shall be based California, in tices where this court has quality rates for the kind and of the ser shortage stated that there is no attor- ...,” vices furnished 28 U.S.C. neys qualified in practice immigration 2412(d)(1)(D)(2)(A), § if a there has been law, practices is Renison in Or- incorrect. to a special fee enhancement due factor. added). egon.”) (emphasis Stenson, 104 Blum v. U.S. (1984). Second, and Fang both Freeman focus S.Ct. 79 L.Ed.2d 891 in on the fact that there were not Court qualified “prevailing Blum stated Oregon in market immigration attorneys “governed by and Mon- rate” is the same tana, adjustment in respectively, prevail types so the was standards which other cases, equally reasonable. and is sig- complex litigation,” As I read these Federal qualified attorney customary nificant factor is that based “the fee for similar he, objects simply 3. The Affi- does whether not state or whole, citing legal general, practitioners normally davit as a without authori- in bill affiant, Hout, ty, charge Van because the Marc Der or a flat fee. 893-94, community.” Loeb, in the at working work Id. in public interest, and (internal quota- Skadden, citation and S.Ct. Arps, Slate, Meagher Flom, & omitted). tion marks It does not matter large, private firm. attorneys typically private

whether are However, after study, this the majority or public-interest counsel. See Sorenson concludes that Rabinovitz should be Mink, (9th Cir.2001) hour, awarded a staggering per four $500 Blum, (quoting 465 U.S. at 104 S.Ct. statutory times the maximum to be award- (“fees are based on the ‘prevailing ed EAJA cases. It also awards both community, market rates the relevant Arulanantham Natarajan per $300 regardless of plaintiff repre- whether is hour for work per hour for $315 ”)). by private nonprofit sented counsel’ 2005, and per hour for 2006. While that, Supreme regarding Court stated the award to the latter two ACLU, “[i]t is the interest of the percent, reduced five these amounts are public that such law firms be awarded still inwell excess of pay what we attor- attorneys’ reasonable computed fees to be neys in complex the most cases before this in the traditional manner when its counsel i.e., death penalty litiga- habeas circuit — perform legal entitling services otherwise tion. them to the of attorneys’ award fees.”

Blum, U.S. 104 S.Ct. 1541 During years Nadarajah the repre- was (quoting County Davis v. Angeles, Los Rabinovitz, by sented Arulanantham, and 73-63-WPG, (C.D.Cal. No. 1974 WL 180 Natarajan, our complicated most cases 5,1974)). June paid far in hourly less rates than these attorneys three are now awarded.4 The though

Even it makes no difference maximum permitted fee capital whether represented by the client is pri- attorneys habeas per was hour in public counsel, $125 vate interest a fee award 2004, 2005, per hour in $160 per $163 under the EAJA should not result amounts, hour in 2006. These high- while windfall attorneys. majority er than those permitted by EAJA, the still determined the market by considering rate pale in comparison to generous affidavits from both fees Rabinovitz and Arula- nantham, today by awarded majority. I as well as cannot supplemental affida- join majority support by opinion vits attorneys approving other this —Marc Hout, Sobel, Der amount Van Carol attorneys and Michael when equally Lawson. It also compared requested competent attorneys working on hourly rates to those of associates our most difficult corpus appeals habeas partners private at firms like paid Loeb & were so much less for work which ("CJA”) 4. The Criminal provides power Justice Act guidelines to determine the for the fee attorney's appointed fees for federal criminal 3599(g)(1); § schedule. 18 U.S.C. see also 28 penalty 2254(h), defense ap- §§ counsel in death 2255(g). habeas U.S.C. The Judicial 3006A, peals. §§ See 18 U.S.C. may 3599. Under Conference increase the maximum hour- Penalty ly Antiterrorism and Death payment adjustments Act based on the to rates ("AEDPA”), may 110 Stat. pay court within the General Schedule. See 5 appoint attorneys penalty § in death § habeas U.S.C. 3599(g). 18 U.S.C. The Ju- §§ cases. See 28 U.S.C. 2255. These dicial Council of the Ninth Circuit then re- paid through are funds allotted policy incorporating leases an annual those CJA, capital and the Judicial Conference has the habeas rates in our circuit. between means the difference sometimes USA, INC., PHILIP MORRIS death.

life and Plaintiff-Appellant, III. Conclusion “level The EAJA enacted KING COMPA- MOUNTAIN TOBACCO private field” individual

playing when NY, INC.; Tobacco; Del- Mountain successfully governmental action. disputes Wheeler, Sr.; Kip bert Richard L. Feingold, 151 Testimony of Russ Sen. Defendants-Appellees. Ramsey, S12950-02, 2005 WL Cong. Rec. 2005). (Nov. 16, The “EAJA at *S12951 06-36066. No. the resources available

acknowledges that of Appeals, States Court United in a legal Federal dis- to the Government Ninth Circuit. available to most pute outweigh far those However, when it enact- Americans.” Id. Argued May 2007. Submitted EAJA, Congress capped rate ed legislative per hour as the determina- Filed June properly of the which com- tion amount legal pensates attorneys provide who such

assistance, some “special unless there is I leading

factor” a fee enhancement. “special we find these fac-

believe should instance, they

tors” in the where are rare material, by complex spe-

warranted case skill, attorney

cialized or where there is a inability to find coun- willing

documented statutory at the rate.

sel Because substantially are

amounts awarded here

excess reasonable rates Con- says comparable

gress may pay we habeas

corpus complex penalty counsel in death I

litigation, dissent from the respectfully today

excessive rates for Nadar- approved

ajah’s immigration attorneys.

Case Details

Case Name: Nadarajah v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 9, 2009

Citation: 569 F.3d 906

Docket Number: 05-56759

Court Abbreviation: 9th Cir.