Ibrahim v. Department of Homeland et al

Filing 758

ORDER RE NON-COMPLIANT DECLARATIONS. Responses due June 9 at noon.. Signed by Judge Alsup on June 2, 2014. (whalc1, COURT STAFF) (Filed on 6/2/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RAHINAH IBRAHIM,

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Plaintiff,

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For the Northern District of California

United States District Court

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No. C 06-00545 WHA

v.
DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
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ORDER RE NON-COMPLIANT
DECLARATIONS

In this satellite litigation over attorney’s fees and expenses, plaintiff’s counsel have failed

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to make a good-faith effort at complying with the procedure for determining the proper amount

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of attorney’s fees and expenses and defense counsel have failed to file their own time records.

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Both sides have until NOON ON JUNE 9 to please comply.

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On January 28, plaintiff’s counsel filed a motion for attorney’s fees and expenses in

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violation of the meet-and-confer requirement set forth in the local rules of our district court for

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such matters. See Civil Local Rule 54-5. In plaintiff’s reply, counsel then violated our district’s

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rules by referring to what happened during a prior confidential settlement conference. See ADR

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Local Rule 7-5(a). After full briefing and supplemental submissions, oral argument was held.

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On April 16, an extensive order resolved the entitlement issue. The order stated:

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“Plaintiff’s counsel must revise their submissions (for the special master) to account for the rules

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discussed in this order, including to account for good billing judgment.” The order further stated

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that “plaintiff’s counsel should review their time-sheets and reduce or remove any entries
involving non-prevailing claims in accordance with this order.” Plaintiff’s counsel were

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informed that they were not entitled to the whopping $3.67 million of fees and $294,000 in

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expenses sought. Counsel were entitled to recover reasonable attorney’s fees and expenses

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incurred on the procedural due process, substantive due process, Administrative Procedure Act

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claims, and post-2012 standing issues. That order determined entitlement. A companion order

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set forth a special-master procedure to determine the amount of fees to be awarded pursuant to

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the entitlement order. In addition, the order stated that the government’s opposition must

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“provide a declaration setting forth completely all time expended by the opposing party on the

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same project, in the same format” (Dkt. Nos. 718, 739, 740).

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After plaintiff’s counsel filed a motion for reconsideration, an April 25 order stated that
the “special master cannot overturn the April 2014 order. Rather, the special master works with

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For the Northern District of California

United States District Court

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the parties to calculate the amount of fees and expenses to be awarded pursuant to the

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[entitlement] order.” Plaintiff’s counsel were asked to do the best they could to comply with the

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entitlement order, reserving, of course, their right to appeal on entitlement issues. The

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government was ordered to “submit the time records it does have” and “try to match the same

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level of detail provided by plaintiff’s counsel.”

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An April 29 order granted “plaintiff’s unopposed administrative motion for extension of

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time to file declaration re: motion for attorney’s fees and expenses in compliance with April 16,

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2014 order” (Dkt. No. 752).

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On May 13, plaintiff’s counsel filed a declaration. Counsel failed to reduce fees and

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expenses in accordance with the entitlement order. Instead, plaintiff’s counsel merely separated

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out 185 “projects” and continued to seek $3.88 million in fees (or $1.75 million in fees under the

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EAJA) and $327,826.47 in expenses (Dkt. No. 756). This was not a sincere effort to follow the

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procedure.

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On May 29, the government filed an opposition. It stated: “Plaintiff makes no attempt to

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restrict her request to the limited issues the Court found to be awardable in its April 16 Order.”

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Exhibit 1 to the Freeborne Declaration was the government’s effort at reducing plaintiff’s

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petition according to the entitlement order. The government argued that the maximum amount

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recoverable was $156,844 in fees. The government, however, failed to submit its own time

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records (Dkt. No. 757).

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Both sides have not done what they were supposed to do. Plaintiff’s counsel have failed

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to reduce fees for non-recoverable issues and to account for improper block-billing, overstaffing,

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and inefficiencies. They should have fully complied with the April 2014 orders, reserving their

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rights to appeal amounts removed because of the entitlement order. It is hard to believe there has

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been any kind of sincere misunderstanding. On the other hand, even though the government has

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made an effort at complying with the entitlement order, it has failed to include its own time

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For the Northern District of California

United States District Court

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records.
Accordingly, this order gives both sides one more chance to comply. The government

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shall submit its own time records. Plaintiff’s counsel shall trim back the fees requested, limiting

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the submissions to those earlier found to be recoverable. Counsel for plaintiff’s submission

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should also critique the government’s counter-submission of $156,844. (Of course, plaintiff’s

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counsel are free to reserve their rights on appeal.) If plaintiff’s counsel fail to do this, the Court

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is likely to adopt the government’s calculation and allocation to avoid the further expense of

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additional satellite litigation before the special master. These submissions are due by

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NOON ON JUNE 9. All existing deadlines remain in place.

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IT IS SO ORDERED.

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Dated: June 2, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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