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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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.,

ORDER RESOLVING
REMAINING ISSUES

Defendants.

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All that remains in this protracted fee litigation are the two issues addressed below.

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1.

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The deadline to file a motion for attorney’s fees was in January 2014. A motion was

SUPPLEMENTATION.

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timely filed (although plaintiff’s counsel failed to meet and confer in advance of filing the motion

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in violation of our local rules). After considerable briefing and oral argument, an April 2014

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order held that plaintiff’s counsel were entitled to some but not all of the fees requested.

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Plaintiff’s counsel were allowed to file a revised declaration in accordance with the order, but

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“[a]bsent any supplementation or hearing allowed by the special master,” that constituted the

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“entire record” (Dkt. Nos. 739, 740). On August 26, plaintiff’s counsel sought leave from the

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special master to submit additional fees incurred since May 2014. The special master reviewed

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that submission but ultimately concluded that the “fees-on-fees-on-fees” were not warranted

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(Dkt. No. 787 at 12, 115–17). A final award was fixed (Dkt. No. 803).

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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

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proceedings before the Special Master and the Court.” The government opposed, arguing that

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counsel’s effort to supplement was untimely and that no additional fees were warranted.

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This new demand is overstated and comes after a history of plaintiff’s counsel stubbornly

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refusing to cooperate in this significantly protracted satellite fee litigation. Now that an award

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has been entered, counsel seek to augment that award by $85,467.50 for work done objecting to

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the special master’s report. This grossly overstated sum is not justified, especially considering

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the outcome of counsel’s objections. All of counsel for plaintiff’s objections were overruled.

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Indeed, they filed two, ten-page briefs when only one was permitted. Accordingly, one of their

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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

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For the Northern District of California

United States District Court

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judge will not encourage such behavior by allowing it to be trimmed back to a lesser number. To

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do so would invite grossly overbroad requests on the strategy that counsel will at least get some

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lesser amount. Since the amount sought is patently excessive for the work done, the baby will go

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out with the bath water.

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Accordingly, counsel for plaintiff’s motion for leave to further supplement the record
regarding additional fees is DENIED.

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2.

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The award stated that “[a]ll payments shall be made by October 30, unless there is a

OBLIGATION TO PAY.

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timely appeal by either side in which the payments shall be made when all appeals are finally

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ended with no follow up required” (Dkt. No. 803). The government then filed a notice of appeal.

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There is also a pending appeal regarding costs.

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The parties dispute whether the government’s obligation to pay should be stayed pending

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appeal. The answer is yes. Although the Court has issued an entitlement order and fixed the

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award, our court of appeals may yet disagree. To take one example, they could find that the

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government’s position was substantially justified, meaning that no fees would be recoverable

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under the EAJA. 28 U.S.C. 2412(d)(1)(A). There is also no evidence a stay would substantially

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injure plaintiff’s counsel and it is indeed far better, in an exercise of this Court’s discretion, to

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stay payment until there is finality on the award, which would come out of the Treasury.
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Accordingly, counsel for plaintiff’s objection to staying the government’s obligation to

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pay is OVERRULED. Counsel for plaintiff’s extremely belated request for an “interim attorney’s

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fees” award is DENIED.

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IT IS SO ORDERED.

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Dated: November 7, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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