Gbotoe v. Jennings et al

Filing 27

ORDER RE 23 MOTION FOR ATTORNEY'S FEES by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 11/14/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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AARON GBOTOE,
No. C 17-06819 WHA

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For the Northern District of California

United States District Court

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Petitioner,
v.
DAVID W. JENNINGS, in his official
capacity, Field Office Director of San
Francisco Field Office, U.S. Immigration and
Customs Enforcement; THOMAS D.
HOMAN, Acting Director of U.S.
Immigration and Customs Enforcement;
KIRSTJEN M. NIELSEN, Secretary of
Department of Homeland Security;
MATTHEW WHITAKER, Acting Attorney
General, U.S. Department of Justice,

ORDER RE MOTION
FOR ATTORNEY’S FEES

Respondents.
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INTRODUCTION
In this habeas action, petitioner moves for an award of attorney’s fees under the Equal

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Access to Justice Act. Respondents oppose. For the reasons herein, petitioner’s motion is

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GRANTED IN PART AND DENIED IN PART.

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STATEMENT
The background of this action is found in a prior order (Dkt. No. 16). In brief, petitioner

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Aaron Gbotoe, a Liberian immigrant, came to the United States as a refugee more than sixteen

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years ago. In 2009, Gbotoe was convicted of stealing a cell phone, after which an immigration
judge denied his application for asylum and ordered him removed from the United States. The

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government, however, released Gbotoe from immigration custody and instructed him to

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periodically report to ICE (Dkt. No. 1 ¶¶ 13–17).

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In June 2017, ICE attempted to deport Gbotoe, but Gbotoe’s pro bono counsel filed a

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four-page emergency motion to reopen his asylum and withholding of removal case based upon

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changed conditions in Liberia. In that same brief, Gbotoe’s counsel moved for a stay of

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removal while the motion to reopen was pending and for leave to supplement the motion to

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reopen with additional evidence. The immigration judge granted Gbotoe’s motion for a stay as

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well as his motion to supplement the motion to reopen. In September 2017, Gbotoe’s attorney

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filed an amended motion to reopen with substantial additional evidence related to increased
danger due to changed conditions in Liberia. Three days later, the immigration judge issued an

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For the Northern District of California

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order denying his motion. That order referred only to Gbotoe’s original motion to reopen, not

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the amended motion to reopen. A little more than a month after rendering his first decision, the

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immigration judge issued a second order denying what the judgment referred to as Gbotoe’s

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“2nd Motion to Reopen,” incorrectly construing the amended petition and supporting evidence

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as a second, successive petition to reopen (Dkt. Nos. 1, 4).

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Gbotoe appealed the immigration judge’s decision to the BIA and requested the BIA

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stay his deportation while the appeal was pending. On November 27, without ruling on his

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motion to reopen, the BIA denied Gbotoe’s motion for a stay. The order stated in full (Dkt.

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No. 4-2 at 89):

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Counsel for the respondent has applied for a stay of removal
pending consideration by the Board of Immigration Appeals of
an appeal of the Immigration Judge’s denial of a motion to
reopen. After consideration of all information, there is little
likelihood that the appeal will be sustained. Accordingly, the
request for a stay of removal is denied.

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On November 28, the day after his stay was denied, ICE informed Gbotoe that he would
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be deported to Liberia that evening. That same day, Gbotoe filed a habeas petition and motion
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for a temporary restraining order. The Court stayed the removal to allow time for briefing. An
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order dated December 6, 2017, granted Gbotoe’s motion for a preliminary injunction and
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enjoined respondents from removing him from the United States until seven calendar days after
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the BIA decided Gbotoe’s appeal of his motion to reopen (Dkt. Nos. 1–2, 7, 16).
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Respondents timely filed a notice of appeal of the December 6 order but sought two

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extensions of time to file their opening brief pending the Office of the Solicitor General’s

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approval to pursue the appeal. Meanwhile, the BIA remanded Gbotoe’s case to the immigration

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judge, agreeing that the immigration judge had failed to consider the materials submitted with

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Gbotoe’s supplemental filing. The BIA accordingly ordered the immigration judge to

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reconsider the motion to reopen based on the merits and the evidence of record, including the

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country conditions documents which had been included in Gbotoe’s supplemental filing. In

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May 2018, the immigration judge granted Gbotoe’s motion to reopen. Gbotoe’s proceedings in

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immigration court remain ongoing (Dkt. Nos. 17, 23-2).
The parties filed a stipulation to dismiss the appeal on May 31, which our court of

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For the Northern District of California

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appeals granted on June 6. Gbotoe now moves to recover attorney’s fees under the Equal

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Access to Justice Act (Dkt. Nos. 22–23). This order follows full briefing and oral argument.

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ANALYSIS
Under the EAJA, prevailing plaintiffs are entitled to recover their attorney’s fees and

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costs unless the government’s position was substantially justified, special circumstances would

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make an award unjust, or the application for fees was not timely filed. 28 U.S.C. § 2412(d).

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Once a court finds that a party is entitled to attorney’s fees, it must then determine a reasonable

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fee. The parties agree that Gbotoe is the prevailing party. They disagree, however, as to (1)

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whether or not his fee application is timely, (2) whether or not the government’s position was

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substantially justified, and (3) the reasonableness of the requested fee.
TIMELINESS.

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1.

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Under Section 2412(d)(1)(B), the prevailing party must submit an application for

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attorney’s fees within 30 days of final judgment. A “final judgment” is a judgment which is

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“final and not appealable.” 28 U.S.C. § 2412(d)(2)(G). Our court of appeals has interpreted

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this to mean “the date on which a party’s case has met its final demise, such that there is no

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longer any possibility that the district court’s judgment is open to attack.” Al-Harbi v. I.N.S.,

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284 F.3d 1080, 1084 (9th Cir. 2002) (citation omitted). “Where there is a potential for either

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party to appeal a particular type of judgment under the relevant statute that designates the time
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to appeal, there is a ‘possibility that the district court’s judgment is open to attack’ during the

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period provided for in the statute.” Hoa Hong Van v. Barnhart, 483 F.3d 600, 610 (9th Cir.

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2007) (citation omitted).

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Our court of appeals has not had occasion to apply the above principles where, as here,

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the government has voluntarily dismissed its appeal. Generally speaking, however, “[t]he

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thirty-day deadline to file an application for attorney’s fees under EAJA does not begin to run

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until after the ninety-day period during which a party may seek a writ of certiorari from the

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United States Supreme Court.” Li v. Keisler, 505 F.3d 913, 916–17 (9th Cir. 2007) (citing 28

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U.S.C. § 2412(d)(1)(B)). This “post-judgment appeal period applies for purposes of EAJA even
if entry of the judgment was made pursuant to the government’s request.” Ibid. (citing Hoa

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Hong Van, 483 F.3d at 612).

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In the undersigned judge’s view, allowing Gbotoe to benefit from the ninety-day post-

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judgment appeal period stretches the EAJA’s timeliness requirement nearly to its breaking

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point. Once the government dismissed its own appeal, it would have been topsy-turvy to expect

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anyone in the case to petition for certiorari. Nevertheless, Li and Hao Hong Van are binding

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authority and, this order concludes, determinative in the instant case. Pursuant to those

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decisions, our court of appeal’s June 6 order granting the parties’ requested dismissal did not

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became “final and not appealable” for purposes of the EAJA until September 4. Petitioner filed

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the instant application twenty-nine days later. The application must therefore be deemed

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timely.
NO SUBSTANTIAL JUSTIFICATION.

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2.

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“For purposes of EAJA, ‘the position of the United States’ includes the decisions of the

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IJ and the BIA, as well as the litigation position of the Department of Homeland Security.’” Li,

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505 F.3d at 918 (quoting 28 U.S.C. § 2412(d)(2)(D)). The government must therefore show

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that all of these positions were substantially justified in order to avoid an award of EAJA fees.

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Ibid. (citation omitted). The “substantially justified” standard is met when “reasonable people

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could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S.

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552, 565 (1988).

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Respondents argue that their litigation position was substantially justified because,

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although the December 6 order concluded that the district court had habeas jurisdiction to

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review the BIA’s denial of Gbotoe’s motion for a stay, courts in this district are split on the

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issue. To be sure, the jurisdictional issue implicated by Gbotoe’s petition was (and remains) far

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from settled. But in order to avoid attorney’s fees under the EAJA, “the government must

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establish that it was substantially justified on the whole.” Gutierrez v. Barnhart, 274 F.3d 1255,

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1259 (9th Cir. 2001). While reasonable people could differ as to the appropriateness of

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respondents’ jurisdictional argument, respondents make no efforts to justify the underlying

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conduct challenged in Gbotoe’s habeas petition — the BIA’s conclusory denial of his motion to

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stay.
As explained in the December 6 order granting provisional relief, it appeared that the

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immigration judge had not considered any of the supplemental evidence submitted with

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Gbotoe’s amended motion to reopen. Even more significantly, little more than a month after

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rendering his decision, the immigration judge issued a second order denying Gbotoe’s motion to

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reopen. That order referred to Gbotoe’s “2nd Motion to Reopen” and denied it on the grounds

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that the immigration judge did not have jurisdiction to hear a second motion. But there was no

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second motion. There was only an amended motion that had a follow-on supplement as had

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been approved by the immigration judge. The immigration judge had construed the materials

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submitted in support of the changed country conditions as a second motion to reopen, and on

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that basis declined to review them. This unfortunate turn of events meant that the majority of

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the evidence Gbotoe submitted had not been reviewed.

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Gbotoe raised this snafu to the BIA, specifically explaining that “the Immigration Judge

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treated the supplemental motion to reopen, which he granted leave to file, as a new and separate

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motion,” and further explaining that Gbotoe had submitted substantial evidence of changed

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conditions in Liberia which made it likely that he would be imprisoned, persecuted and tortured

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were he to return. Nothing in the BIA’s decision on Gbotoe’s motion to stay showed that the

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BIA considered this argument, and respondents here make no attempt to argue that the BIA, as

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opposed to the immigration judge, was substantially justified in its decision. Rather, all

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acknowledge that the immigration judge mistakenly treated Gbotoe’s supplemental submission

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as a second motion, therefore failing to consider his timely-submitted evidence. To be sure, the

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hard-working immigration judge’s error may have been reasonable given ambiguously-titled

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supplemental submission. Even with respect to the BIA’s decisions, however, “[t]he

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government has the burden of demonstrating that its position was substantially justified.” Kali

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v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). Viewed as a whole, respondents have not shown a

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reasonable basis for their position.

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3.

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In establishing the reasonableness of fees and expenses under the EAJA, it is Gbotoe’s

REASONABLE ATTORNEY’S FEES.

burden to document “the appropriate hours expended in the litigation by submitting evidence in

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support of those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).

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The appropriate number of hours includes all time “reasonably expended in pursuit of the

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ultimate result achieved, in the same manner that an attorney traditionally is compensated by a

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fee-paying client for all time reasonably expended on a matter.” Hensley v. Eckerhart, 461 U.S.

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424, 431 (1983).

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Gbotoe seeks compensation of $196.79 per hour for 50.4 hours of work by his attorneys,

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Etan Newman, Jehan Laner, and Juan Camilo Mendez Guzman in the district court proceedings,

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in addition to compensation for hours spent on the instant fee application. He also seeks

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$200.78 per hour for 75.8 hours of work by these same attorneys and two additional counsel —

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Micah Chavin and Benjamin Farkas — who joined the litigation to assist in the appeal.

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First, the fees requested in connection with the appellate proceedings are excessive.

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Given that the government never filed an opening brief because it had yet to receive approval

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from the Office of the Solicitor General to pursue the appeal, it was not reasonable for counsel

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to expend 75.8 hours of work. 67.7 of these hours were expended by pro bono counsel from

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O’Melveny & Myers, which included time spent reviewing background material and documents

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from the district court proceedings. This work is not compensable. As to the work by

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Attorneys Newman, Laner, and Mendez Guzman, this order agrees with respondents that a

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reduction of 20%, or $325.26, is appropriate.

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Second, with respect to work performed in the district court, the government argues that

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a 30% reduction is appropriate on the grounds that work by multiple attorneys was duplicative.

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Specifically, the government notes that counsel billed 15.6 hours on November 28, followed by

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20 hours on November 29. But this argument ignores that on November 28 counsel learned for

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the first time that Gbotoe would be deported that very day, prompting counsel to draft and file a

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habeas petition and TRO application by that same evening. Moreover, a hearing on Gbotoe’s

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TRO occurred the following day, followed by requests for supplemental briefing on an

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extremely short deadline. In light of these events, the hours spent by counsel during this period

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were reasonable. Nevertheless, the undersigned judge shares respondents’ concern regarding
the inevitable duplication of efforts caused by the involvement of three attorneys. A 10%

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reduction of fees is appropriate to ameliorate this concern.

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Based on the foregoing discussion, this order finds that Gbotoe is entitled to

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reimbursement for 71.37 hours in fees. A prevailing party may recover his or her reasonable

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fees and expenses, but cannot claim attorney’s fees “in excess of $125 per hour unless the court

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determines an increase in the cost of living or a special factor . . . justifies a higher fee.” 28

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U.S.C. § 2412(d)(2)(A). Here, Gbotoe seeks an award of attorney’s fees calculated at a rate

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adjusted to account for an increase in the cost-of-living. The 2017 EAJA adjusted rate is

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$196.79 per hour and the 2018 rate is $200.78 per hour. Respondents do not dispute this

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adjustment. Multiplying the hourly rate ($196.76 and $200.78) by the total number of hours

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reasonably billed (45.36 hours in 2017 and 26.01 hours in 2018), Gbotoe is entitled to

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$14,147.32 in attorney’s fees, amounting to 48% of his requested fee.

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CONCLUSION

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For the foregoing reasons, Gbotoe’s request for attorney’s fees under EAJA is

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GRANTED IN PART AND DENIED IN PART. Gbotoe is entitled to recover reasonable attorney’s

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fees in the amount of $14,147.32.

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IT IS SO ORDERED.

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Dated: November 14, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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