Mohamed v. Barr
| Decision Date | 18 January 2022 |
| Docket Number | Case No. 1:19-cv-01345-JLT-SKO |
| Citation | 562 F.Supp.3d 1128 |
| Parties | Nassr A. MOHAMED, et al., Plaintiffs, v. William BARR, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Eric Hisey, PHV, Pro Hac Vice, Goldberg & Associates, PC, Bronx, NY, Julie Ann Goldberg, Goldberg & Associates, Sherman Oaks, CA, Mehgan Anne Gallagher, Pro Hac Vice, Theta Law Firm, LLP, Lawndale, CA, for Plaintiffs.
Audrey Benison Hemesath, United States Attorney's Office, Sacramento, CA, for Defendants.
ORDER GRANTING IN PART MOTION FOR ATTORNEYS' FEES
Before the court is plaintiffs' motion for attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), in the amount of $68,259.49. (Doc. No. 41.) Defendants, who are various federal-government officials, filed an opposition, to which plaintiffs responded. (Doc. Nos. 43 & 44.) The court permitted supplemental briefing by both parties. (Doc. No. 46.) Plaintiffs filed supplemental briefing on November 13, 2021. (Doc. No. 48.) Defendants have not filed supplemental briefing, and the deadline to do so has expired.
On September 25, 2019, plaintiffs initiated this action by filing a complaint for declaratory and injunctive relief against Defendants Michael Pompeo, William Barr, Kevin McAleenan, the United States Department of State, the United States Department of Homeland Security, the United States Department of Justice, Devin Kennington, and the United States Embassy, Djibouti. (Doc. No. 1.) That same day, Plaintiffs filed a motion for an emergency writ of mandamus and preliminary injunction. (Doc. No. 2.) Therein, Plaintiffs alleged that Plaintiff Muhjah Abdoalnasar Mohammed Ahmed had not been issued a diversity visa for the 2019 application cycle after having won the diversity visa lottery and completing all requirements to obtain the diversity visas for her and her family. (Doc. No. 1.) On September 27, 2019, a previously assigned district judge held that defendants unreasonably delayed processing of the plaintiffs' visa applications in light of the impending statutory deadlines and that all other requirements for mandatory injunctive relief had been satisfied. (Doc. No. 13 at 7.) In so holding, the court mandated the Department of State defendants to issue a decision on the visa applications before the end of the fiscal year: September 30, 2019. (Id. ) Over the next two days, Defendants refused to adjudicate the Djibouti plaintiffs' visa applications. (See, e.g. , Doc. Nos. 17, 18, 20.) On September 29, 2019, the Court found Defendants in violation of its September 27, 2019 order and again ordered Defendants to comply with the original court order requiring the government to adjudicate the matter pursuant to proper procedures. (Doc. No. 24.) On September 30, 2019, Defendants submitted a status report informing the court that in the last few hours of the fiscal year, a consular officer in Djibouti had issued visas to plaintiffs. (Doc. No. 25 at 1.)
On December 12, 2019, Defendants filed a motion to dismiss Plaintiffs' complaint for lack of jurisdiction, arguing that Plaintiffs' mandamus lawsuit had been rendered moot because all the visas have been granted. (Doc. No. 30 at 2.) On January 31, 2020, Plaintiffs filed a reply, indicating that they agree to dismiss this action because the court has granted the relief that they sought. (Doc. No. 35.) Accordingly, the court dismissed the complaint and granted judgment in favor of Defendants. (Doc. Nos. 39 & 40.)
In their motion for attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), Plaintiffs seek an award of $68,259.49 based on 144 hours of work among three counsel (ranging from $300–$500 per hour), two law clerks ($150 per hour) and three paralegals ($80 per hour). (Doc. No. 41.) After Defendants filed an opposition and Plaintiffs replied, the Court permitted additional briefing about the requested hourly rates. (Doc. 46.) Plaintiffs filed a timely supplemental brief, (Doc. 49), and Defendants did not file a supplemental reply.
EAJA provides:
[A] court shall award to a prevailing party other than the United States fees and other expenses ... in any civil action ... including proceedings for judicial review of an agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). A "prevailing party" is eligible for attorneys' fees, costs, and other expenses under EAJA if it incurred costs of litigation against the federal government and meets applicable size or net worth criteria. Id. , 28 U.S.C. § 2412(d)(2).
To be awarded attorneys' fees and costs pursuant to EAJA, Plaintiffs must set forth: (1) a showing that they are the prevailing party; (2) a showing that they are eligible to receive an award; (3) a statement of the amount sought together with an itemized account of time expended and rates charged; and (4) an allegation that the position of the United States was not substantially justified. 28 U.S.C. § 2412(d)(1)(B) ; Scarborough v. Principi , 541 U.S. 401, 408, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004). If Plaintiffs satisfy the requirements, the burden shifts to Defendants to establish that their position in the underlying action was justified substantially to preclude an award of attorneys' fees and costs. Oregon Nat. Resources Council v. Marsh , 52 F.3d 1485, 1492 (9th Cir. 1995). If Defendants' position was not justified substantially in law or fact, then Plaintiffs are entitled a reasonable award of attorneys' fees and costs. See Pierce v. Underwood , 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ().
Plaintiffs seek fees and costs in the amount of $68,259.49 under the EAJA. (Doc. No. 41 at 11.) Defendants argue that the motion should be denied because their position was substantially justified and plaintiffs' application for attorneys' fees was deficient. (Doc. No. 43 at 5–15.) They do not contest, however, that Plaintiffs prevailed. (Id. at 5 ().)
Defendants argue that their position in litigation was substantially justified, thus precluding an EAJA award of attorneys' fees and costs. (Doc. No. 43 at 5–11.) " ‘Substantial justification’ under the EAJA means that the government's position must have a ‘reasonable basis both in law and fact,’ i.e., the government need not be ‘justified to a high degree,’ but rather ‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable person." Wang v. Horio , 45 F.3d 1362, 1364 (9th Cir. 1995) (quoting Bay Area Peace Navy v. United States , 914 F.2d 1224, 1230 (9th Cir. 1990) ). Thus, the court employs a "reasonableness" standard to determine whether the government's position was "substantially justified." Id. ; Flores v. Shalala , 49 F.3d 562, 569 (9th Cir. 1995). "The government's failure to prevail does not raise a presumption that its position was not substantially justified." Kali v. Bowen , 854 F.2d 329, 332 (9th Cir. 1988). Similarly, "arbitrary and capricious conduct is not per se unreasonable." Id. at 333. "To be ‘substantially justified’ means, of course, more than merely undeserving of sanctions for frivolousness; that is assuredly not the standard for Government litigation of which a reasonable person would approve." Pierce , 487 U.S. at 566, 108 S.Ct. 2541.
The "substantial justification" determination requires a two-step inquiry. The first step considers whether, under the totality of the circumstances, "the government was substantially justified in taking its original action" at the agency level. Kali , 854 F.2d at 332. Next, the Court must determine "whether the government was substantially justified in defending the validity of the action in court." Id. The government must have been justified at both the agency level and during litigation. Williams v. Bowen , 966 F.2d 1259, 1261 (9th Cir. 1991). In determining reasonableness of the government's position, the court considers the action as "an inclusive whole, rather than as atomized line-items." INS v. Jean , 496 U.S. 154, 161–62, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).
First, the Court has already found that the agency's failure to adjudicate the application was unreasonable when issuing the writ of mandamus. It was the agency's unreasonable actions which caused the court to issue the writ of mandamus, which is "a drastic and extraordinary" remedy. Cheney v. U.S. Dist. Court for D.C. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Even after the Court ordered the agency to adjudicate the applications, the agency proceeded to deny them on grounds that were "facially inapplicable to the visa applications at issue in this case." (Doc. 19 (Court's September 28, 2019 order).) Due to this conduct, which was contrary to the Court's previous order, the Court was "inclined to find that the bad faith exception to the doctrine of consular nonreviewability applies here in light of the facial inapplicability of the cited basis for the denials." (Id. ) Given the continued noncompliance, the Court found Defendants violated the Court's order and sanctioned them. (Doc. 24.) Thus, not only did the agency act so unreasonably that the Court issued the drastic and extraordinary remedy of a writ of mandamus, but the agency refused to comply with a court order and inclined the Court to find it was acting in bad faith. Thus, the government's conduct was not substantially justified.
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