Ibrahim v. Department of Homeland et al

Filing 811

ORDER RESOLVING REMAINING ISSUES. Signed by Judge Alsup on November 7, 2014. (whalc1, COURT STAFF) (Filed on 11/7/2014)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 RAHINAH IBRAHIM, 10 Plaintiff, 11 For the Northern District of California United States District Court 9 12 No. C 06-00545 WHA v. DEPARTMENT OF HOMELAND SECURITY, et al., ORDER RESOLVING REMAINING ISSUES Defendants. 13 / 14 15 All that remains in this protracted fee litigation are the two issues addressed below. 16 1. 17 The deadline to file a motion for attorney’s fees was in January 2014. A motion was SUPPLEMENTATION. 18 timely filed (although plaintiff’s counsel failed to meet and confer in advance of filing the motion 19 in violation of our local rules). After considerable briefing and oral argument, an April 2014 20 order held that plaintiff’s counsel were entitled to some but not all of the fees requested. 21 Plaintiff’s counsel were allowed to file a revised declaration in accordance with the order, but 22 “[a]bsent any supplementation or hearing allowed by the special master,” that constituted the 23 “entire record” (Dkt. Nos. 739, 740). On August 26, plaintiff’s counsel sought leave from the 24 special master to submit additional fees incurred since May 2014. The special master reviewed 25 that submission but ultimately concluded that the “fees-on-fees-on-fees” were not warranted 26 (Dkt. No. 787 at 12, 115–17). A final award was fixed (Dkt. No. 803). 27 28 More than two weeks later, plaintiff’s counsel then demanded from the government $85,467.50 (or $35,784.49 under the EAJA) for fees “incurred for the remainder of the 1 proceedings before the Special Master and the Court.” The government opposed, arguing that 2 counsel’s effort to supplement was untimely and that no additional fees were warranted. 3 This new demand is overstated and comes after a history of plaintiff’s counsel stubbornly 4 refusing to cooperate in this significantly protracted satellite fee litigation. Now that an award 5 has been entered, counsel seek to augment that award by $85,467.50 for work done objecting to 6 the special master’s report. This grossly overstated sum is not justified, especially considering 7 the outcome of counsel’s objections. All of counsel for plaintiff’s objections were overruled. 8 Indeed, they filed two, ten-page briefs when only one was permitted. Accordingly, one of their 9 briefs was stricken. Counsel’s remaining objections, after careful consideration, were overruled. Nevertheless, counsel now forge ahead to demand an additional large sum. The undersigned 11 For the Northern District of California United States District Court 10 judge will not encourage such behavior by allowing it to be trimmed back to a lesser number. To 12 do so would invite grossly overbroad requests on the strategy that counsel will at least get some 13 lesser amount. Since the amount sought is patently excessive for the work done, the baby will go 14 out with the bath water. 15 16 Accordingly, counsel for plaintiff’s motion for leave to further supplement the record regarding additional fees is DENIED. 17 2. 18 The award stated that “[a]ll payments shall be made by October 30, unless there is a OBLIGATION TO PAY. 19 timely appeal by either side in which the payments shall be made when all appeals are finally 20 ended with no follow up required” (Dkt. No. 803). The government then filed a notice of appeal. 21 There is also a pending appeal regarding costs. 22 The parties dispute whether the government’s obligation to pay should be stayed pending 23 appeal. The answer is yes. Although the Court has issued an entitlement order and fixed the 24 award, our court of appeals may yet disagree. To take one example, they could find that the 25 government’s position was substantially justified, meaning that no fees would be recoverable 26 under the EAJA. 28 U.S.C. 2412(d)(1)(A). There is also no evidence a stay would substantially 27 injure plaintiff’s counsel and it is indeed far better, in an exercise of this Court’s discretion, to 28 stay payment until there is finality on the award, which would come out of the Treasury. 2 1 Accordingly, counsel for plaintiff’s objection to staying the government’s obligation to 2 pay is OVERRULED. Counsel for plaintiff’s extremely belated request for an “interim attorney’s 3 fees” award is DENIED. 4 5 IT IS SO ORDERED. 6 7 Dated: November 7, 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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