Primero Garcia v. Barr et al
Filing
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ORDER GRANTING Petitioner's Motion for Attorneys' Fees. Re: Dkt. No. 36 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 9/8/2020)
Case 5:20-cv-01389-NC Document 39 Filed 09/08/20 Page 1 of 10
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NARCISO PRIMERO GARCIA,
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United States District Court
Northern District of California
Petitioner,
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v.
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WILLIAM P. BARR, et al.,
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Case No. 20-cv-01389-NC
ORDER GRANTING
PETITIONER’S MOTION FOR
ATTORNEYS’ FEES
Re: Dkt. No. 36
Respondents.
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Petitioner Narciso Primero Garcia moves for attorneys’ fees under the Equal Access
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to Justice Act (“EAJA”), 28 U.S.C. § 2412. Respondents William P. Barr, Chad Wolf,
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Matthew Albence, and David W. Jennings contend that Primero Garcia is not entitled to
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attorneys’ fees under the EAJA because he is not a prevailing party, its position in the
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underlying litigation was substantially justified, and the requested fees are unreasonable.
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The Court disagrees with Respondents and GRANTS Primero Garcia’s motion for
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attorneys’ fees. The Court, however, reduces the fees award because counsels’ billing
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records reveals confusingly vague time entries and time not compensable at an enhanced
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billing rate.
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I.
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Background
Primero Garcia is a Guatemalan citizen who came to the United States as an
unaccompanied minor when he was 13 years old. See Dkt. No. 1 ¶¶ 20, 22. In 2018,
Case 5:20-cv-01389-NC Document 39 Filed 09/08/20 Page 2 of 10
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Primero Garcia applied for Special Immigrant Juvenile (“SIJ”) status to obtain
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immigration relief. Id. ¶ 27.
Before Primero Garcia submitted his petition, however, the Court preliminarily
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enjoined the United States Citizenship and Immigration Services (“USCIS”), the
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Department of Homeland Security (“DHS”), and officials in charge of those departments
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from removing individuals with a pending SIJ petition in a related lawsuit, J.L. v. Cissna,
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Case No. 5:18-cv-04914-NC, (N.D. Cal.). See J.L. v. Cissna, 341 F. Supp. 3d 1048 (N.D.
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Cal. 2018). Respondents, however, removed Primero Garica to Guatemala on June 13,
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2019, where he was attacked twice over the next six months by gang members. See Dkt.
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No. 1 ¶¶ 34–35.
United States District Court
Northern District of California
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After J.L. settled, the parties discovered that Primero Garcia had been removed in
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violation of the preliminary injunction. See J.L., No. 5:18-cv-04914-NC, Dkt. Nos. 228,
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223. The Court held the J.L. defendants, including the Respondents in this case, in civil
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contempt and ordered Primero Garcia’s return to the United States. Id., Dkt. Nos. 249,
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252.
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Upon his return, USCIS granted Primero Garcia SIJ status and he sought to reopen
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his immigration proceedings accordingly. See Dkt. No. 1 ¶¶ 37–38. Because ICE
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indicated that it nevertheless still intended to remove him from the United States, Primero
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Garcia sought a temporary restraining order from this Court enjoining his removal,
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ordering his release from ICE custody, or, in the alternative, granting him a bond hearing.
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See Dkt. No. 8.
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The Court granted in part and denied in part Primero Garcia’s motion. See Dkt. No.
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31. The Court denied Primero Garcia’s request for immediate release, but temporarily
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enjoined Respondents from removing Primero Garcia and ordered Respondents to provide
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him with a bond hearing within 60 days of the order. See id.
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Primero Garcia now seeks attorneys’ fees under the EAJA in the amount of
$76,524.89. See Dkt. No. 36.
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II.
Legal Standard
The EAJA requires a court to “award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party in any civil action . . . unless the
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court finds that the position of the United States was substantially justified or that special
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circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Ibrahim v.
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U.S. Dep’t of Homeland Sec., 835 F.3d 1048, 1054 (9th Cir. 2016). The EAJA sets a net
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worth limit of $2,000,000 on prevailing parties who seek fees under the EAJA. 28 U.S.C.
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§ 2412(d)(2)(B)(i). And, subject to various exceptions, awards under the EAJA may not
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exceed rates of $125 per hour. 28 U.S.C. § 2412(d)(2)(A). Finally, even when a party is
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entitled to fees under the EAJA, the court must still determine the reasonableness of the
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United States District Court
Northern District of California
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requested fee. See Ibrahim, 835 F.3d at 1060.
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III. Discussion
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Respondents argue that Primero Garcia’s requested fees should be denied on four
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grounds: (1) Primero Garcia is not a prevailing party; (2) its position was substantially
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justified; (3) Primero Garcia is not warranted to enhanced rates; and (4) the requested fees
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are unreasonable. The Court discusses each argument in turn.
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A.
Prevailing Party
A plaintiff must meet two criteria to qualify as a prevailing party. “First, he must
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achieve a ‘material alteration of the legal relationship of the parties.’” Carbonell v. I.N.S.,
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429 F.3d 894, 898 (9th Cir. 2005) (quoting Buckhannon Bd. & Care Home, Inc. v. West
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Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604–05 (2001)). “Second, that
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alteration must be ‘judicially sanctioned.’” Id.
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Respondents argue that Primero Garcia does not qualify as a prevailing party
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because the Court’s temporary restraining order did not materially alter the legal
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relationship between the parties. Respondents point out that, before the Court entered its
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restraining order, the immigration judge overseeing Primero Garcia’s case stayed his
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removal pending consideration of his motion to reopen. Thus, according to Respondents,
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the Court’s restraining order merely maintained the status quo between the parties. See
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Dkt. No. 37.
The Court, however, previously rejected a similar argument when it adjudicated
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Primero Garcia’s motion for a temporary restraining order. See Dkt. No. 31 at 3–4. As the
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Court previously noted, “there are limited procedural protections available to Primero
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Garcia during the administrative process pending his motion to reopen.” Id. (citing Sied v.
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Nielsen, No. 17-cv-06785-LB, 2018 WL 1142202, at *7–9 (N.D. Cal. 2018)). And, most
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crucially, the immigration judge’s grant of a stay would terminate after he adjudicated the
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motion to reopen. Given that ICE had indicated an eagerness to re-remove Primero Garcia
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after violating previous Court orders, the Court found it necessary to enjoin Respondents
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from removing Primero Garcia until he had exhausted his avenues for relief. See id. at 8.
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United States District Court
Northern District of California
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Put differently, the Court expanded the length of the stay imposed by the immigration
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judge.
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Likewise, although the Court denied Primero Garcia’s request for immediate
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release, Primero Garcia obtained a partial victory in the form of a court-ordered bond
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hearing within 60 days of the order. The fact that the Ninth Circuit later imposed a 180-
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day trigger for bond hearings in Aleman Gonzalez v. Barr, 955 F.3d 762 (9th Cir. 2020)
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does not alter Primero Garcia’s prevailing party status. At the time the Court issued its
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order—March 9, 2020—the Ninth Circuit had yet to decide Aleman Gonzalez. A plaintiff
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is a prevailing party eligible for a fee award even when “[he] wins a preliminary injunction
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and the case is rendered moot before final judgment, either by the passage of time or other
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circumstances beyond the parties’ control.” Higher Taste v. City of Tacoma, 717 F.3d 712,
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717 (9th Cir. 2013).
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Accordingly, the Court finds that Primero Garcia is a prevailing party for purposes
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of the EAJA.
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B.
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Substantially Justified or Special Circumstances
“The government’s ‘position’ when considered within the EAJA context includes
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both the government’s litigation position as well as the ‘action or failure to act by the
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agency upon which the civil action is based.’” Ibrahim, 835 F.3d at 1054 (quoting 28
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U.S.C. § 2412(d)(1)(B)). Thus, the “substantial justification” test has “two lines of
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inquiry: one directed towards the government’s original action, and the other towards the
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government’s litigation position defending that action.” Id. Those two lines, considered as
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a whole, must have “a reasonable basis in fact and law.” Id. (quoting Gutierrez v.
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Barnhart, 274 F.3d 1255, 1261 (9th Cir. 2001)).
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Respondents persuasively note that Primero Garcia’s petition raised novel and close
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questions of jurisdiction. But, as the Court explained above, the “substantial justification”
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inquiry is not limited to Respondents’ litigation position and instead also considers the
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reasonableness of their original action. See Ibrahim, 835 F.3d at 1054. And Respondents’
original action—removing Primero Garcia from the United States in violation of the
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United States District Court
Northern District of California
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Court’s preliminary injunction in J.L.—was assuredly not justified. Respondents’ lengthy
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discussion in their brief regarding Primero Garcia’s detention by ICE upon his Court-
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ordered return and ICE authority to remove him pending the adjudication of his motion to
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reopen misses the point. The “original action” giving birth to this case is not Primero
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Garcia’s detention in February 2020, but his removal in 2018. Respondents’ contemptuous
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conduct in violating this Court’s order undermines whatever justification it may otherwise
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have had.
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Respondents’ contention that the parties’ settlement in J.L. precludes EAJA fees
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here is also not well taken. The parties’ settlement in J.L. resolved fees relating to work
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the parties “expended or will expend relating to the Joint Notice of Removals (ECF No.
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223) and the Court’s Order to Show Cause (ECF No. 224) regarding individuals N.P.G.,
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E.A., and R.M.N. (see ECF No. 227), in connection with the October 24, 2018 Preliminary
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Injunction (ECF No. 49) . . . .” Case No. 5:18-cv-04914-NC, Dkt. No 237-1, Ex. A ¶ 7.
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The settlement clarifies that it only covers fees expended for work done in J.L. See id.
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¶¶ 8, 9. Primero Garcia seeks fees for work conducted in this case, which do not address
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the Joint Notice of Removals (J.L., Dkt. No. 223) or the Order to Show Cause (J.L., Dkt.
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No. 224).
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Accordingly, the Court finds that Respondents’ position was not substantially
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justified and an award of fees would not be unjust.
C.
Enhanced Rates
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The EAJA permits fee awards “based upon the prevailing market rates for the kind
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and quality of the services furnished.” 28 U.S.C. § 2412(d)(1)(D)(2)(A). Rates, however,
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are usually capped at $125 per hour, “unless the court determines that an increase in the
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cost of living or a special factor, such as the limited availability of qualified attorneys for
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the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(1)(D)(2)(A). In the
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Ninth Circuit, courts may authorize enhanced EAJA rates (i.e., above inflation-adjusted
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rates) where there was a “limited availability of qualified attorneys for the proceedings
involved” and the attorneys had “distinctive knowledge” and “specialized skill” that was
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United States District Court
Northern District of California
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“needful to the litigation in question” and “not available elsewhere at the statutory rate.”
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Nadarajah v. Holder, 569 F.3d 906, 912 (9th Cir. 2009) (citations omitted).
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Here, Primero Garcia requests enhanced rates for three of attorneys. He seeks $600
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per hour for attorney Bree Bernwanger, $590 per hour for attorney Mary Tanagho Ross,
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and $625 per hour for attorney Sara Van Hofwegen. Respondents do not oppose the
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inflation- and cost-of-living-adjusted rates of $206.77 for Primero Garcia’s remaining
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attorneys.
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Respondents argue that enhanced rates are not warranted because Primero Garcia
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failed to establish that his attorneys had knowledge and skills needful to the litigation and
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that his counsel’s expertise was unavailable at the statutory rate. The Court disagrees.
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Although the J.L. lawsuit primarily concerned different subject areas, this case was
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factually intertwined with J.L. Bernwanger, Tanagho Ross, and Van Hofwegen’s
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participation in J.L. provided them with knowledge of the background and context leading
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to Primero Garcia’s initial removal that was critical in this case. Moreover, Primero
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Garcia does not only rely on his attorneys’ participation in J.L. to justify enhanced rates;
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he points to their extensive experience litigating immigration cases, as well. Bernwanger,
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for example, has experience representing detained asylum seekers in expedited removal
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proceedings and litigating cases involving the jurisdiction-stripping statutes at issue in this
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case. See Dkt. No. 36-2 (“Bernwanger Decl.”) ¶¶ 9, 14. Primero Garcia’s attorneys’ prior
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experiences in similar litigation also justify enhanced rates. See Nat’l Res. Def. Council v.
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Winter, 543 F.3d 1152, 1160–61 (9th Cir. 2008).
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Likewise, the Court is not convinced that Primero Garcia’s attorneys’ expertise was
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available elsewhere at the statutory rate. Primero Garcia submitted multiple declarations
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from other attorneys attesting to Bernwanger, Tanagho Ross, and Van Hofwegen’s
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invaluable assistance in their respective cases. See Dkt. Nos. 36-7, 35-8. Respondents
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disagree with the statements in those declarations, but offer no evidence rebutting those
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assertions. Moreover, Primero Garcia’s petition was especially time sensitive; he had as
little as eight days between his return to the United States and his re-removal. Finding
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United States District Court
Northern District of California
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other counsel with the requisite expertise and understanding of his procedural history in so
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short a time is impractical.
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Finally, Respondents contend that Primero Garcia fails to adequately support the
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specific rates for Bernwanger, Tanagho Ross, and Van Hofwegen. Primero Garcia,
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however, provided an ample overview of market rates for attorneys of similar experience.
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See Dkt. No. 36-3 (“Tanagho Ross Decl.”) ¶ 12.
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Accordingly, the Court finds that enhanced rates of $600, $590, and $625 are
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justified for attorneys Bernwanger, Tanagho Ross, and Van Hofwegen, respectively.
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D.
Reasonableness of Fees
Respondents first argue that Primero Garcia’s counsel overstaffed this case. They
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contend that that this case was nothing more than a routine habeas petition on a short
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timeline. The Court is not persuaded. As Respondents acknowledge, the jurisdictional
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issues in this case presented close questions.
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Likewise, the Court disagrees that Primero Garcia’s counsel conducted duplicative
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or excessive work. Although counsel spent a significant number of hours drafting several
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filings in this case, those filings were complex and necessarily lengthy. Similarly, the
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Court is not convinced that time spent by counsel addressing Judge Chhabria’s order to
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show cause why this case should not be related to J.L. constitutes an unsuccessful task,
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Case 5:20-cv-01389-NC Document 39 Filed 09/08/20 Page 8 of 10
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given that the briefing was ordered by the Court.
Next, Respondents contend that Primero Garcia’s counsel’s billing records reflect
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vague entries and clerical tasks. Respondents also argue that time spent preparing this fees
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motion do not warrant enhanced rates. The Court agrees that some entries are too vague
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for the Court to assess its reasonableness. In particular, counsel billed time for emailing or
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calling co-counsel. Some of those entries noted that the email or call was related to this
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case; other entries fail to do so. This discrepancy is confusing and leaves the Court
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wondering whether the latter entries reflect time spent wholly on this case. Likewise, the
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Court also agrees that time spent preparing the fees motion and conducting clerical tasks
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do not warrant enhanced rates. See Lucas v. White, 63 F. Supp. 2d 1046, 1063 (N.D. Cal.
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United States District Court
Northern District of California
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1999).
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The Court also agrees that time spent by counsel preparing their second, unfiled
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motion for a temporary restraining order for release from detention in late March is not
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compensable given that the Court had already denied such relief over two weeks prior.
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Accordingly, reviewing counsel’s records, the Court reduces fees for the following
entries:
Date
Timekeeper
Hours
Reduced
Amount
Reduced
Reason for Reduction
2/10/2020
Beier, Genna
0.5
102.63
Unreasonably vague entry
2/18/2020
Beier, Genna
0.7
143.68
Unreasonably vague entry
2/16/2020
Beier, Genna
0.5
102.63
Unreasonably vague entry
3/27/2020
Beier, Genna
0.6
123.15
Unfiled motion
3/27/2020
Bernwanger, Bree
0.5
300.00
Unfiled motion
7/28/2020
Bernwanger, Bree
1.0
394.75
Not entitled to enhanced rate
7/29/2020
Bernwanger, Bree
2.5
986.87
Not entitled to enhanced rate
7/29/2020
Bernwanger, Bree
1.5
592.12
Not entitled to enhanced rate
7/29/2020
Bernwanger, Bree
1.7
671.07
Not entitled to enhanced rate
7/30/2020
Bernwanger, Bree
1.4
552.65
Not entitled to enhanced rate
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7/30/2020
Bernwanger, Bree
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2/10/2020
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Not entitled to enhanced rate
Ross, Mary Tanagho 0.5
295.00
Unreasonably vague entry
2/18/2020
Ross, Mary Tanagho 0.7
413.00
Unreasonably vague entry
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2/19/2020
Ross, Mary Tanagho 0.5
295.00
Unreasonably vague entry
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2/25/2020
Ross, Mary Tanagho 0.6
230.85
Not entitled to enhanced rate
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3/27/2020
Ross, Mary Tanagho 0.6
354.00
Unfiled motion
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4/21/2020
Ross, Mary Tanagho 0.2
118.00
Unreasonably vague entry
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4/29/2020
Ross, Mary Tanagho 0.2
118.00
Unreasonably vague entry
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5/1/2020
Ross, Mary Tanagho 1.5
577.12
Not entitled to enhanced rate
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7/29/2020
Ross, Mary Tanagho 2.0
769.50
Not entitled to enhanced rate
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United States District Court
Northern District of California
2,013.22
2/11–2/181
Vega, Hector
1.0
205.30
Unreasonably vague entry
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2/21/2020
Vega, Hector
0.6
123.18
Unreasonably vague entry
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2/24/2020
Vega, Hector
0.2
41.06
Unreasonably vague entry
2/25–3/4
Vega, Hector
1.6
328.48
Unreasonably vague entry
3/5/2020
Vega, Hector
0.5
102.65
Unreasonably vague entry
3/9/2020
Vega, Hector
0.1
20.53
Unreasonably vague entry
3/26–4/1
Vega, Hector
0.5
102.65
Unreasonably vague entry
4/10–5/3
Vega, Hector
1.2
246.36
Unreasonably vague entry
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Total Amount Reduced
$10,323.45
IV. Conclusion
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The Court GRANTS Primero Garcia’s motion for attorneys’ fees and awards EAJA
fees in the amount of $66,201.44.
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The vast majority of time entries for Hector Vega are confusingly vague and the Court
will not award fees for those entries. See, e.g., Dkt. No. 36-1 at 6 (numerous entries for
“Email to Mary/Bree”). For the sake of simplicity, the Court groups those entries together.
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IT IS SO ORDERED.
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Dated: September 8, 2020
_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
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United States District Court
Northern District of California
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