Soriano v. Sabol et al
MEMORANDUM (Order to follow as separate docket entry) re 16 MOTION for Attorney Fees filed by Sixto Alberto Soriano. Signed by Honorable Malachy E Mannion on 8/1/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SIXTO ALBERTO SORIANO,
CIVIL ACTION NO. 3:16-0271
MARY SABOL, Warden, et al.,
Before the court is petitioner Sixto Alberto Soriano’s motion for
attorney’s fees, expenses and costs pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. §2412 and 5 U.S.C. §504. (Doc. 16). Petitioner
contends that he is entitled to an award under the EAJA because he was the
prevailing party with respect to his petition for a writ of habeas corpus, brought
pursuant to 28 U.S.C. §2241, (Doc. 1), and because the government’s
position was not substantially justified. Petitioner, an alien, who was a lawful
permanent resident of the United States, was taken into custody by ICE and
removal proceedings against him were commenced based on his 15-year old
state conviction for marijuana-related offenses which were found to constitute
aggravated felonies pursuant to 8 U.S.C. §1227(a)(2). After being mandatorily
detained by ICE for almost seven months during the removal proceedings,
petitioner filed his habeas petition claiming that his detention was
unreasonably prolonged, in violation of 8 U.S.C. §1226(c), and in violation of
his procedural and substantive due process rights. He requested that he be
provided with a bond hearing conducted by this court or by an Immigration
Judge. The court granted the habeas corpus petition to the extent that it
ordered the government to provide petitioner with an individualized bond
hearing before an Immigration Judge. For the reasons set forth below, the
court will GRANT petitioner’s motion and award him attorney’s fees.
On May 3, 2016, the court issued a memorandum, (Doc. 8), and order,
(Doc. 9), finding that petitioner was mandatorily detained by ICE for an
unreasonable amount of time, in violation of his constitutional due process
rights. Therefore, the court granted petitioner’s petition for writ of habeas
corpus, (Doc. 1), and ordered that he be provided with an individualized bond
hearing before an Immigration Judge within 30 days. On May 19, 2016, an
Immigration Judge held a bond hearing and granted petitioner’s request for
a change in custody status also ordering that petitioner be released from
custody under a bond of $3,500. Petitioner was then released from ICE
Since the complete background of the underlying habeas case was
detailed in the court’s May 3, 2016 memorandum, (Doc. 8), it shall not be fully
repeated herein. See Soriano v. Sabol, 183 F.Supp.3d 648, 2016 WL
2347904 (M.D.Pa. 2016).
On June 29, 2016, respondents filed a notice of appeal regarding the
court’s May 3, 2016 order. (Doc. 10). Petitioner filed a notice of cross-appeal
on July 13, 2016. (Doc. 11). See C.A. Nos. 16-3008 & 16-3134. On
September 15, 2016, the Third Circuit issued an order, pursuant to an
agreement of the parties, dismissing both appeals under Fed.R.App.P. 42(b),
and directing that each party bear their own costs with respect to the appeals.
On October 14, 2016, petitioner filed his instant motion for attorney’s
fees, expenses and costs pursuant to the EAJA, 28 U.S.C. §2412, since he
was the prevailing party with respect to his underlying habeas petition. (Doc.
16). He simultaneously filed his brief in support of his motion with exhibits.
(Doc. 17). On October 28, 2016, the government2 filed its brief in opposition
to the motion, (Doc. 18), with exhibits, (Doc. 18-1), arguing that the motion
should be denied since their position was substantially justified with respect
to all of the proceedings. Petitioner filed a traverse on November 4, 2016.
Petitioner seeks an award attorney’s fees under the EAJA in the amount
The court refers to all of the respondents herein jointly as the
of $7,541.68. “[T]he specific purpose of the EAJA is to eliminate for the
average person the financial disincentive to challenge unreasonable
governmental actions.” Patel v. Attorney General of the U.S., 426 Fed.Appx.
116, 117 (3d Cir. 2011) (citing Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521,
2530 (2010)). Under the EAJA, “[a] federal court is required to award the
prevailing party its fees and other expenses incurred in any civil action, unless
the court concludes that the Government’s position in all phases of the
litigation ‘was substantially justified or that special circumstances make an
award unjust.’” Id. (citing 28 U.S.C. §2412(d)(1)(A)).
Moreover, “[t]he EAJA provides that a prevailing party may recover
‘costs’ as enumerated in 28 U.S.C. §1920.” Id. at 118 (citing 28 U.S.C.
§2412(a). “Additionally, such party may be awarded ‘fees and other
expenses.’” Id. (citing 28 U.S.C. §2412(d)(1)(A)).
immigration-related detention. See Wilks v. U.S. Dept. of Homeland Sec.,
2009 WL 1542771 (M.D.Pa. June 2, 2009); Walker v. Lowe, 2016 WL
6082289 (M.D.Pa. Oct. 17, 2016).
Initially, the court finds that petitioner was the prevailing party in this
case and thus, he qualifies for an award of attorney’s fees, expenses and
costs under the EAJA. Petitioner is a prevailing party since he “has been
awarded some relief by a court.” Buckhannon Bd. and Care Home, Inc. v.
West Va. Dep’t of Health and Human Resources, 532 U.S. 598, 603 (2002);
Gonzales, 416 F.3d at 210 (Third Circuit held that “an alien whose petition for
review of a BIA decision is granted by our Court and whose case is then
remanded to the BIA is a prevailing party under the EAJA”). There is also no
dispute that petitioner falls within the EAJA’s financial limitation that precludes
parties whose net worth exceeds $2,000,000 at the time the action was filed
from recovery of fees. 28 U.S.C. §2412(d)(2)(B). See Doc. 17, Ex. B,
Although the EAJA provides that the court can deny fees where “special
circumstances make an award unjust”, 28 U.S.C. §2412(d)(1)(A), the
government does not contend that “special circumstances” exist in this case.
Nor does the court find any “special circumstances.”
The parties dispute whether the government’s position was substantially
justified. In Patel, 426 Fed.Appx. at 117 n. 4, the Third Circuit noted that “[a]
position is substantially justified if it is ‘justified to a degree that could satisfy
a reasonable person.’” (citing Pierce v. Underwood, 487 U.S. 552, 565, 108
S.Ct. 2541 (1988)). Also, “it is the Government’s burden to demonstrate its
position was grounded in a reasonable basis in fact and law with a reasonable
connection between the two.” Id. (citing Pierce, 487 U.S. at 565). The court
“do[es] not assume that the Government’s position was not substantially
justified simply because it lost on the merits.” Id. (citing Kiareldeen v. Ashcroft,
273 F.3d 542, 554 (3d Cir. 2001)). Additionally, “[t]he Government’s ‘position’
includes both the underlying agency action and its litigation position in the
proceedings arising from that action.” Id. at 117 (citing Johnson v. Gonzales,
416 F.3d 205, 210 (3d Cir. 2005)). “Whether or not the position of the United
States was substantially justified shall be determined on the basis of the
record (including the record with respect to the action or failure to act by the
agency upon which the civil action is based) which is made in the civil action
for which fees and other expenses are sought.” 28 U.S.C. §2412(d)(1)(A).
Thus, “the government must show: (1) a reasonable basis in truth for
the facts alleged; (2) a reasonable basis in law for the theory it propounded;
and (3) a reasonable connection between the facts alleged and the legal
th6eory advanced.” Morgan v. Perry, 142 F.3d 670, 684 (3d Cir. 1998).
Additionally, the “EAJA is a waiver of sovereign immunity, however, so it must
be construed strictly in favor of the United States.” Walker v. Attorney Gen.
U.S., 625 Fed.Appx. 87 (3d Cir. 2015).
Petitioner contends that the government’s position was not substantially
justified with respect to both the removal proceedings and the habeas
proceedings. Specifically, petitioner raises the following grounds to support
1) a fifteen year delay in initiating removal proceedings against
Mr. Soriano, followed by ten-months of arbitrary detention in a
county jail; 2) DHS’s inaccurate assertion that “the record of
proceedings in [Mr. Soriano’s removal] case makes clear that the
court has already sustained the aggravated felony charge of
deportability,” when in fact the IJ had expressed some agreement
with Mr. Soriano on that issue; 3) the disingenuous claim that Mr.
Soriano’s challenges to removal are a “dilatory tactic, likely
designed to prolong the [his] detention,” even though Mr. Soriano
had simply raised good faith arguments based on Third Circuit
precedent, which in turn has been reaffirmed by more recent
unpublished appellate decisions; and 4) the position that
detention under §1226(c) cannot be considered unreasonable
until it has surpassed one year, even though Chavez-Alvarez
adopts a fact-specific framework for determining when detention
becomes unreasonable during the six-month to one-year mark.
(Doc. 17, pp. 10-11).
As mentioned, “[t]he government must justify its position not only in the
litigation but also its position in the agency proceedings leading up to the
litigation.” Wilks, 2009 WL 1542771, *2 (citing Johnson, 416 F.3d at 210).
Based on all of the above stated reasons as detailed by petitioner, the record
in this case, as well as the reasons the court discussed in its May 3, 2016
memorandum, (Doc. 8), the court finds that the government’s position was
substantially justified with respect to the agency removal proceedings. The
court finds that the government’s position was not substantially justified with
respect to its failure to afford petitioner with a bond hearing in his habeas
proceedings, i.e., the fourth above stated claim of petitioner. See Walker v.
Lowe, 2016 WL 6082289, *3 (The court found that since the alien petitioner
had been detained in immigration pre-removal custody for almost two years
when he filed his habeas petition, “[t]he Government’s position ceased to be
substantially justified, either in law or fact, sometime after [petitioner] had
been incarcerated for more than six months” based on Chavez-Alvarez which
was decided on April 9, 2015.).
The backdrop of the removal proceedings initiated against the petitioner
as detailed in the court’s May 3, 2016 memorandum, (Doc. 8), are as follows:
In 1998, the petitioner was arrested for and pled guilty to
possession of a small amount of marijuana in violation of 35 Pa.
Stat. Ann. §780-113(a)(31). (Doc. 1, Ex. G). Later, in 1999,
petitioner pled guilty to one count of possession with intent to
manufacture or deliver marijuana in violation of 35 Pa. Stat. Ann.
§780-113(a)(30), and was sentenced to 12 months of probation.
Id. Then, in 2000, the petitioner again pled guilty to one count of
possession with intent to manufacture or deliver marijuana in
violation of 35 Pa. Stat. Ann. §780-113(a)(30) and one count of
possession with intent to use drug paraphernalia in violation of 35
Pa. Stat. Ann. §780-113(a)(32), and was sentenced to six (6) to
twenty-three (23) months in prison. Id.
Fifteen years later, on July 24, 2015, the petitioner was taken into
custody by the Department of Homeland Security (“DHS”), Bureau
of Immigration and Customs Enforcement (“ICE”) and placed in
removal proceedings at York County Prison. (Doc. 1, Ex. H). The
basis for removal of the petitioner is that he is a non-citizen and
his prior marijuana offenses allegedly constitute aggravated
felonies pursuant to 8 U.S.C. §1227(a)(2). Id. The petitioner
remains in “mandatory custody” at York County Prison pursuant to
8 U.S.C. §1226(c). (Doc. 6, Ex. G).
Petitioner states that he was taken into custody by ICE and removal
proceedings against him were commenced about 15 years after his state
conviction for marijuana-related offenses and, that he was then mandatorily
detained at the York County Prison for over six months without being given
a bond hearing during the removal proceedings. He contends that it was
unreasonable for the government to have delayed 15 years before initiating
removal proceedings against him, and to then detain him without bond during
As the government explains regarding why it commenced removal
proceedings against petitioner despite the 15-year delay, (Doc. 18, p. 7),
“DHS interpreted the legal precedent as to whether Pennsylvania’s criminal
statute qualified as an aggravated felony under the ‘categorical approach’ set
forth by the Supreme Court based on the status of the law at that time. See
Moncrieffe v. Holder, ---U.S.---, 133 S. Ct. 1678, 1684-85 (2013).” Also, as the
government states, (Id., pp. 7-8), “[t]he Immigration Judge noted that the Third
Circuit had not decided in a precedential decision whether the statute under
which Soriano was convicted qualified as an aggravated felony in the court’s
decision dated March 10, 2016.” (See also Doc. 18, Exs. A & B). Thus, in his
March 10, 2016 decision, the Immigration Judge found that DHS was correct
and that petitioner’s Pennsylvania criminal conviction qualified as aggravated
felony. The Immigration Judge then found that petitioner was ineligible for
cancellation of removal under INA §240A(a)(3). (Doc. 18, Ex. B). The
Immigration Judge also issued an order directing that petitioner be removed
to Ecuador. (Doc. 7, Ex. 4).
As such, the court finds that the government was substantially justified
at the agency level in commencing removal proceedings against petitioner
based on its contention that his marijuana-related convictions qualified as
aggravated felonies subjecting him to removal. See Kiareldeen, 273 F.3d at
554 (“Substantial justification is measured on the basis of whether the
government was justified in initiating the proceeding and going forward with
the hearing before the immigration judge.”).
Thus, the court finds no merit regarding two of the stated reasons upon
which petitioner relies to support his request for fees, namely, his arguments
with respect to the 15-year delay in commencing removal proceedings and
the government’s assertion that petitioner’s challenges to removal are a
“dilatory tactic, likely designed to prolong the [his] detention.” As the
government states, (Doc. 18, p. 14):
First, the Third Circuit has observed that removal proceedings on
prior convictions subjecting the alien to pre-final order mandatory
detention, even years after such convictions, are permissible.
Sylvain v. Attorney General, 714 F.3d 150, 161 (3d Cir. 2013).
Thus, DHS was permitted to initiate removal proceedings and
detain Soriano based on his previous convictions.
Second, Respondent did not oppose the [habeas] petition based
on an argument that Soriano was dilatory during his [removal]
proceedings. At no time did Respondent seek to have any time in
detention excluded based upon dilatory motions or arguments.
Rather, Respondent noted in the recitation of the procedural
history of removal proceedings that Soriano’s claim to derivative
citizenship was seen by DHS as lacking merit and likely to
prolong his detention. (Doc. 6 at 7-8.) However, Respondent did
not oppose the petition or Soriano’s time in detention based on
any dilatory argument. Therefore, neither of these remaining
arguments renders Respondent’s opposition to the petition as not
With respect to the habeas proceedings, the court finds that the
government was not substantially justified in arguing that under
Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 473 (3d Cir.
2015), petitioner was not entitled to a bond hearing. See Walker, supra.
Initially, the court notes that while the government argued that “[petitioner]
filed his petition prematurely because he had only been detained for less than
six months at the time he filed his habeas petition on February 17, 2016”
however, since “[he] was taken into ICE custody on July 24, 2015”, (Doc. 18,
p. 9), at the time petitioner filed his habeas petition, he was mandatorily
detained by ICE for six months and 25 days. Petitioner also argues “[the
government’s] position that mandatory detention under §1226(c) cannot be
considered unreasonable until it has surpassed one year, is contrary to
Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 473 (3d Cir.
2015).” (Doc. 19, p. 2). As petitioner points out, (Doc. 19, pp. 3-4), “[he] had
been detained for 209 days (or 6 months and 25 days) when he filed his
habeas petition, and 223 days (or 7 months and 8 days) when the
government filed its response—both of which fall within the six-month window
Moreover, insofar as the government argued in its opposition to the
habeas petition that petitioner had “been in pre-removal detention for less
than one year” and was thus “within the acceptable six-month to one-year
time frame”, (Doc. 6, p. 11), as this court stated in its May 3, 2016
memorandum, (Doc. 8), the Third Circuit has not established a bright line for
bond hearings in mandatory detention cases.
In reviewing the government’s response to petitioner’s habeas petition,
the court also finds merit to petitioner’s following claim:
[B]y focusing on the fact that Mr. Soriano was subject to 1226(c),
the government fails to recognize the unreasonableness of DHS’s
Motion for Immediate Removal Order, which the government
relied on in opposing Mr. Soriano’s habeas petition. In that
motion, DHS claimed that the “record … makes clear [the
immigration court] has already sustained the aggravated felony
charge of deportability.” (Doc. 6-1, p.3) This assertion gave the
impression that Mr. Soriano was belaboring an already decided
issue, when in fact the IJ who first handled the case had
expressed agreement with Mr. Soriano’s position. (Doc. 17-3, p.
29) Under Chavez-Alvarez, the bona fides of an alien’s removal
defense are a factor in assessing whether mandatory detention
has passed the “tipping point”; thus, it was unreasonable for DHS
to mischaracterize the removal proceedings in this manner
(particularly when contemporaneous decisions issued by the BIA
put the agency on notice of the merits of Mr. Soriano’s position
(see Doc. 7-1)).
(Doc. 19, p. 3).
As this court found in its May 3, 2016 memorandum, (Doc. 8),
petitioner’s challenges and appeal to his removal order were “based upon
bona fide claims and were not frivolous or made in bad faith.”
The court finds merit to these stated contentions as well as petitioner’s
contention that “the relevant question [with respect to his habeas petition] was
whether his detention had passed the ‘tipping point’ of reasonableness.” (Id.,
In deciding the merits of petitioner’s habeas petition, the court framed
that issue as whether, under the facts of this case, the petitioner’s mandatory
detention has become unreasonably prolonged such that he is entitled to an
individualized bond hearing. (Doc. 8). The court then discussed ChavezAlvarez and stated:
In Chavez-Alvarez, the Court applied the balancing framework
and ultimately found that “beginning sometime after the six-month
timeframe considered by Demore, and certainly by the time
Chavez-Alvarez had been detained for one year, the burdens to
Chavez-Alvarez’s liberties outweighed any justification for using
presumptions to detain him without bond to further the goals of
the statute.” Chavez-Alvarez, 783 F.3d at 478. The respondent
cites to this language in support of its opposition to the instant
petition. However, the respondent appears to interpret this
language as stating that a detention between six (6) months and
one (1) year is “acceptable” and a habeas petition commenced in
such time-frame is “premature.” (Doc. 6, p. 11). As is clearly
evident in the previous discussion of applicable law, this is not
what Chavez-Alvarez stands for. Instead, the Circuit Court in
Chavez-Alvarez found that at some point in time after six (6)
months of detention, the facts related to petitioner ChavezAlvarez’s detainment tipped such that due process required the
government provide Chavez-Alvarez with a bond hearing. The
Court arrived at this conclusion after conducting a fact-intensive
investigation of the circumstances, and did not arrive at this
conclusion solely after counting the number of days that ChavezAlvarez had been detained–as the respondent seems to infer.3
Thus, the court rejects the respondent’s argument that the petition
is premature solely because the petitioner has not yet been
detained for a full year.
Instead, the court must follow the balancing framework
established in Chavez-Alvarez and conduct a factual inquiry to
determine whether the petitioner’s mandatory detention is no
longer reasonable. The petitioner, here, was taken into ICE
custody on July 24, 2015, and has remained in custody since that
date. He has not been provided a bond hearing. As of today, the
petitioner has been detained for nine (9) months. This is longer
than the six-month time-frame outlined in Demore and also
comports with Third Circuit precedent that finds any detention
beyond the five month threshold to be suspect. Diop v.
ICE/Homeland Sec., 656 F.3d 221, 233-34 (3d Cir. 2011).
Further, nine months is within the six to twelve month time-frame
contemplated in Chavez-Alvarez. Given the suspect nature of the
length of detention, the court must carefully examine the
petitioner’s circumstances to determine whether this length is
reasonable and comports with due process or whether it reaches
the “tipping point” and requires a bond hearing.
See Soriano, 183 F.Supp.3d at 652.
The court concluded that petitioner’s detention reached the “tipping
In Chavez-Alvarez, the Court found that one (1) year of detention was
presumptively unreasonable; however, this court interprets Chavez-Alvarez
as also concluding that detention between six (6) months and one (1) year
may well be unreasonable depending upon the factual circumstances.
Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 478 (3d Cir. 2015)
(citing Diop v. ICE/Homeland Sec., 656 F.3d 221, 233-34 (3d Cir. 2011);
Demore v. Kim, 538 U.S. 510, 531 (2003)).
point,” and continued for an unreasonable amount of time in violation of due
process. Therefore, the court found that petitioner was entitled to an
individualized bond hearing.
To the extent that the government argues, in the alternative, (Doc. 18,
pp. 12-13), that its “[o]pposition to Soriano’s requested forum [i.e., this court
as opposed to a hearing before the IJ] for a bond hearing alone made
responding to the petition substantially justified”, as petitioner points out,
(Doc. 19, p. 4), “substantial justification on the part of the Government in
opposing one of the [prevailing party’s] claims does not render its position
substantially justified as to all of its other claims.” (citing Hanover Potato
Products, Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993) (The Third Circuit
stated, “[w]e have already held that substantial justification on the part of the
Government in opposing one of the plaintiff’s claims does not render its
position substantially justified as to all of its other claims.”)).
The court thus finds that petitioner is entitled to recover his fees and
costs, and it will grant his motion for attorney’s fees under the EAJA, Doc. 16.
The court now considers whether the fees sought by petitioner are
reasonable. At first, petitioner requested fees in the amount of $7,541.68.
However, in his reply brief, (Doc. 19, pp. 6-7), he has recalculated this amount
by reducing his fee request regarding his Third Circuit appeal in the amount
of $541.67 (for 2.17 hours of appeal work) since each party was directed to
bear their own costs. However, he adds the fee in the amount of $780 for his
attorney’s work performed in preparing his reply brief in this case, i.e., 3.12
hours @ $250/hour rate. The court will include Conklin’s additional 3.12
hours. See Walker v. Lowe, 2016 WL 608228, *5 (The court granted
“Conklin[‘s] request [for] an additional 5.3 hours for time that he spent
preparing the traverse to the Government’s opposing brief, which is a ‘fees on
fees’ request.”). Thus, the revised number of total hours then becomes 31.13,
i.e., 30.18 – 2.17 hours= 28.01; 28.01 + 3.12 = 31.13. After he offsets the
stated amounts, petitioner’s recalculated lodestar is $7,782.50. The
government does not address the issue regarding the reasonableness of the
amount of petitioner’s fee request in its brief, but it notes that each party was
to bear their own costs in the appeal. (Doc. 18). Petitioner has now eliminated
his appeal cost from his request. Nonetheless, the court must still address the
reasonableness of petitioner’s fee request under the EAJA.
In support of his fee request, petitioner has submitted the Declaration
of his counsel, Daniel Conklin, (Doc. 17-4), with an itemization attached
detailing the work he performed on petitioner’s habeas petition, the hours
expended for the work and the total amount for the work billed at the hourly
rate of $250. Conklin graduated from law school in 2010 and he avers that
“[s]ince graduating from law school [his] practice has focused almost
exclusively on [immigration] removal defense.” Conklin, in “exercis[ing] billing
judgment to ensure that the amount ultimately claimed was reasonable” does
not seek any amount for costs, fees and other expenses despite his
entitlement to reimbursement for these expenditures. See Patel, 426
Fed.Appx. at 118. Petitioner also submitted the Declaration of Joseph C.
Hohenstein, (Doc. 17-5), an immigration lawyer with over 20 years of
experience “specializing in complex litigation in the federal and immigration
court systems” attesting to the reasonableness of the fee amount petitioner
seeks, including the work Conklin performed on petitioner’s habeas case as
well as the hours he spent on the case and the amount of his hourly rate.
The EAJA statutory rate is $125 per hour and petitioner’s counsel seeks
a $250 per hour rate in this case. Hohenstein justifies this discrepancy by
averring that “no attorneys to [his] knowledge would have undertaken [this
complex case] at the EAJA statutory rate of $125 per hour, even adjusted for
inflation.” Conklin avers that his hourly rate is justified since he “possess[es]
specialized expertise in the immigration and detention issues raised by this
case.” He also avers that “[t]he $250.00 rate [he has] requested here is the
prevailing market rate for an attorney of [his] experience and expertise.” (Doc.
17-4). As such, Conklin argues that he is entitled to reimbursement for
attorney’s fees at a rate of $250 per hour because this immigration case
required specialized expertise. In fact, in another case in this district, Walker
v. Lowe, Conklin, who was petitioner’s counsel, was awarded an hourly rate
of $250 by Judge Brann.
In Patel,426 Fed.Appx. at 118-119, the Third Circuit stated “[a
contention that the case required specialized expertise] is inconsistent with
the EAJA provision that ‘attorney fees shall not be awarded in excess of $125
per hour unless the court determines that an increase in the cost of living or
a special factor, such as the limited availability of qualified attorneys for the
The EAJA, §2412(d)(2)(A)(ii), permits the court to award fees in excess
of $125 per hour if it determines that an increase in the cost of living justifies
a higher fee, the court makes such a finding in this case. The court concurs
with the cost of living analysis recently performed by the court in Walker v.
Lowe, 2016 WL 6082289, *3 (footnoted omitted), as follows:
The late Honorable James F. McClure Jr., writing for this Court in
2010, found that with a habeas corpus matter, under the EAJA,
“the statutory rate for attorney fees, adjusted for the cost of living,
is $170.76 for work performed in 2009 and $174.72 for work
performed in 2010.” The Honorable David G. Larimer of the
Western District of New York found that, in a request for fees in
a social security matter under the EAJA, “$179.57 per hour for
work performed in 2010, $185.04 per hour for 2011 and $193.15
per hour for 2014... adjusted for inflation, are reasonable.”
It is not clear what the cost of living increase should be per year.
However, looking to these cases, it appears to be around 3%.
Accordingly, if I extrapolate the statutory rate adjusted for cost of
living set by Judge Larimer for 2014 by 3%, for 2015 the rate is
$198.95 and for 2016 the rate is $204.92.
This court will adopt the Walker Court’s rational and finds that the
statutory rate adjusted for cost of living for 2016 is about $205. All of the work
for which attorney’s fees are sought in this case was performed in 2016.
Additionally, based on reasoning of Walker v. Lowe, as well as this
court’s own determination, it finds that special factors exist in this case
justifying awarding Conklin fees at the $250/hour rate. Thus, the court will not
reduce the lodestar hourly rate which is sought in this case.
The Walker Court, 2016 WL 6082289, *4, found that the case raised
“complex jurisdictional, ‘crimmigation’ law, and detention issues”, and that
special factors, namely, Conklin’s “specialized knowledge of immigration law,
and the limited availability of attorneys who would have taken [Walker’s] case
at the statutory rate”, justified his requested hourly rate of $250.00. In
particular, the court in Walker, 2016 WL 6082289, *4, stated:
The vast majority of the immigration bar in the United States does
not engage in federal court litigation, and of those that do, only a
small number would be willing to take on a case of this
complexity. Moreover, there are no attorneys to my knowledge
who would have undertaken such litigation at the EAJA statutory
rate of $125 per hour, even adjusted for inflation.
I am also familiar with the billing practices and rates of law firms
in Pennsylvania. The $250 rate requested for Mr. Conklin is the
prevailing market rate for attorneys of his experience and
expertise. [ ]. Mr. Conklin is unique in that he as a high level of
expertise even at an early stage of his career.
This court finds in the present case the same special factors identified
by the court in Walker justify awarding Conklin an hourly rate of $250.00.
Thus, the court finds that a rate of $250 per hour is reasonable. The court
also recognizes that Conklin has very good credentials in immigration cases,
he worked on Soriano’s habeas case pro bono, and provided Soriano with
Next, the court considers the reasonableness of the number of hours
worked by Conklin in this case. As the court is well aware of the facts of this
case, it finds that Conklin's unopposed total number of hours for which he
seeks reimbursement of 31.13, for work all related to the habeas case, is
reasonable and fully supported by the record, including Conklin's Declaration
and his detailed billing record. (Doc. 17-4, p. 4). Indeed, Conklin does not
seeks fees for the immigration proceedings and, he states that he did not bill
for certain other work in order to ensure the reasonableness of his fees
despite the fact that he could have billed for this work. Thus, the court will not
reduce the numbers of hours for which Conklin seeks to be reimbursed.
Therefore, the court will award attorney’s fees in the amount $7,782.50, i.e.,
$250/hour times the revised number of hours of 31.13.
In light of the foregoing, the court finds that petitioner is entitled to
recover his attorney’s fees, and it will grant his motion for attorney’s fees
under the EAJA. (Doc. 16). The court will award attorney’s fees in the
amount.$7,782.50. An appropriate order shall follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: August 1, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0271-02.wpd
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