Truong v. Holder et al
MEMORANDUM DECISION and Order-granting in part and denying in part 27 Motion for Attorney Fees. See order for details. Signed by Judge Clark Waddoups on 3/12/12. (jmr)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
BUU VAN TRUONG,
MEMORANDUM DECISION AND
Case No. 2:10-cv-797 CW
ERIC H. HOLDER, JR. et al.,
Judge Clark Waddoups
Petitioner Buu Van Truong has brought a motion for an award of attorney fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Dkt. No. 27.) In the alternative,
Petitioner seeks appointment of his counsel nunc pro tunc under the Criminal Justice Act
(“CJA”), 18 U.S.C. § 3006A. For the reasons stated below, this court DENIES in part and
GRANTS in part Petitioner’s motion. Specifically, the court DENIES the motion to award
attorney fees pursuant to the EAJA and GRANTS the motion to appoint counsel nunc pro tunc
under the CJA.
This case was initiated when Petitioner filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 on August 13, 2010. At that time, Petitioner was being held at the
Weber County Correctional facility in Ogden, Utah, under custody of the U.S. Immigration and
Customs Enforcement (“ICE”). Following the filing of the petition, ICE granted Petitioner a
conditional release on September 16, 2010. Respondents then moved to dismiss the petition as
moot. On October 27, 2010, Petitioner moved to compel the Respondents to submit a sworn
statement from an appropriate government official clarifying the circumstances required for ICE
to detain Petitioner in the future. The Respondents opposed the motion.
At a hearing held on April 15, 2011, counsel for Respondents represented to the court that
Petitioner could only be re-detained by ICE under two circumstances: (1) if Petitioner violates a
condition of his release or (2) if there is a change in circumstances such that a significant
likelihood exists that Petitioner “may be removed in the foreseeable future.” Based on the
representation of Respondents’ counsel, the court dismissed the petition for a writ of habeas
corpus. The court denied Petitioner’s motion to compel as being moot.
After the time for an appeal of the court’s dismissal order had expired, Petitioner made
the motion which is now before the court.
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, requires courts to award
attorney fees to a plaintiff bringing any civil action (other than cases sounding in tort) against the
United States if (1) plaintiff is a “prevailing party”; (2) the position of the United States was not
“substantially justified”; and (3) there are no special circumstances that make an award of fees
unjust. 28 U.S.C. § 2412(d)(1)(A). See also Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th
The central dispute with regard to an award of attorney fees is whether Petitioner is a
“prevailing party” for purposes of the EAJA. Under the EAJA, a “prevailing party” is a party
who is benefitted by a court order that causes a “material alteration of the legal relationship of the
parties.” Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Services,
532 U.S. 598, 604 (2001) (citation omitted). Such an order must cause a plaintiff to “receive at
least some relief on the merits of his claim before he can be said to prevail.” Id. at 603 (citation
omitted). Settlement agreements enforced through a consent decree may serve as the basis for an
award of attorney fees under the EAJA if they cause a “change in the legal relationship between
the plaintiff and the defendant.” Id. at 604 (citation omitted).
The Tenth Circuit has made clear that a conditional mootness order is not sufficient to
make a plaintiff a “prevailing party.” See Biodiversity Conservation Alliance v. Stem, 519 F.3d
1226, 1229-30 (10th Cir. 2008). See also Al-Maleki v. Holder, 558 F.3d 1200, 1204 (10th Cir.
2009) (“‘[P]revailing party’ is a legal term of art that does not include a party that has failed to
secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved
the desired result because the lawsuit brought about a voluntary change in the defendant’s
conduct.”) (citation and quotation marks omitted). In Biodiversity, the Tenth Circuit considered
whether an order dismissing a suit against the United States Forest Service on mootness grounds
was sufficient to support an award of attorney fees under the EAJA. Biodiversity, 519 F.3d at
1227. The plaintiff had brought suit against the Forest Service seeking to stop a planned timber
sale. Id. When the timber sale project was abandoned as a result of an unexpected forest fire that
burned a significant portion of the timber to be sold, the district court issued a conditional
mootness order dismissing the suit conditioned on “the government’s representation that the
[project] ha[d] been permanently withdrawn and [would] never be revived.” Id. at 1228. The
district court awarded the plaintiff attorney fees, finding it to be the “prevailing party” in the
matter for purposes of the EAJA. Id.
The Tenth Circuit reversed the district court’s award of attorney fees, holding that the
plaintiff could not be a “prevailing party” as a result of a conditional mootness order. Id. at
1230-31. The Court held that in order to be a prevailing party for purposes of the EAJA, a
plaintiff must “receive some form of judicial imprimatur.” Id. at 1230 (citation omitted). In
other words, in order for a party to prevail, a court order must “lend judicial teeth to the merits of
the case” such that a party can “obtain a court order to enforce the merits of some portion of the
claim it made in its suit.” Id. Because a conditional mootness order could at most give plaintiffs
“hope for another chance to present their case on the merits,” it did not have the judicial
imprimatur that was required in order to make the plaintiff a “prevailing party” for purposes of
the EAJA. Id.
In this case, the Respondents moved to dismiss the petition as being moot. The court
granted that motion. The court also denied Petitioner’s motion to compel as moot, relying upon
the representations made by the Respondents. Like the conditional mootness order in the
Biodiversity case, the dismissal order in this case does not purport to resolve Petitioner’s claim
on the merits. Instead, the case was dismissed because Petitioner was no longer in custody. The
Petitioner’s motion to compel was denied based on Respondents’ representation that Petitioner
would not be re-detained except under certain acceptable conditions. Should Petitioner be
detained in the future, whether that detention is legally permissible must be judged on the facts
precipitating that detention. In such a case, the representations made to the court will become an
issue only should the government act contrary to those representations. The representations were
not imposed as a condition of the court’s order, but accepted as a statement of government
practice and policy. Thus, as in the Biodiversity case, Petitioner does not have the judicial
imprimatur that is required to make him a “prevailing party.” For this reason, the court is not
permitted to award him attorney fees under the EAJA.
Petitioner has alternatively sought appointment of his counsel nunc pro tunc under the
Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A. The CJA allows courts to appoint counsel for
indigent petitioners who seek relief by filing a petition for a writ of habeas corpus if the interests
of justice so require. 18 U.S.C. § 3006A(a)(2)(B). The Respondents do not oppose the
appointment of counsel nunc pro tunc under the CJA, but condition their position on the court
concluding such an appointment is proper. (Dkt No. 33, 10-11). The courts, including this court,
have previously found that appointment of a CJA attorney under similar circumstances is
appropriate. See, e.g., Insixiegnmy v. Kirkpatrick, No. 2:99CV17 C, 2000 WL 33710837 (D.
Utah Sept. 21, 2000) (unpublished). Cf. United States v. Alexander, 742 F. Supp. 54 (N.D.N.Y.
1990) (holding that there was no authority under the CJA for a court to grant a motion brought by
an attorney, rather than by a defendant, for appointment of counsel nunc pro tunc). Ordinarily,
appointment of counsel pursuant to the CJA is and should be made near the commencement of
litigation; the act, however, permits courts to make appointments “retroactive to include any
representation furnished pursuant to the plan prior to appointment.” 18 U.S.C. § 3006A(b).
Also, when a district judge in the District of Utah determines that appointment of an attorney
who is not a member of the CJA panel is in the interest of justice, the attorney may be admitted
to the CJA panel pro hac vice. See United States District Court for the District of Utah,
Amended Criminal Justice Plan ¶ VI.H.4 (approved Nov. 14, 2011).
The court finds that the interests of justice are advanced in this case by appointing
counsel for Petitioner nunc pro tunc under the CJA. This finding, however, is conditioned on
Petitioner demonstrating that he was a financially eligible person under the act. Petitioner is an
alien subject to an order of removal issued by a federal immigration judge. Following the order
of removal, Petitioner was held in the custody of ICE for more than 15 months. The Supreme
Court has made clear that indefinite detention of aliens present in the United States, without due
process of law, is unconstitutional. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Any
detention longer than six months is presumptively a violation. Immigration law can often be
complex, and issues of alien detention often require a level of experience in the law that cannot
be reasonably expected of an alien appearing before the court pro se. The unique circumstance
of this case, the representations of ICE that Petitioner would soon be removed from the country,
and the difficulty in arranging travel plans all contributed to the complexity. Nevertheless, ICE
failed to release Petitioner long after its own policies should have required it to do so. For this
reason, the interests of justice are served in this unique case by the appointment of counsel to
represent Petitioner who was detained well beyond the six-month presumption of reasonableness
established by the Supreme Court. See Zadvydas, 533 U.S. at 701. Such an appointment must be
rare and supported by the unusual circumstances evident in this case.
Except in “extremely difficult case[s] where the court finds it in the interest of justice to
appoint [more than one] attorney,” the CJA only provides for the appointment of one attorney per
eligible party. United States v. Romero-Gallardo, 245 F.3d 1159, 1160 (10th Cir. 2001). In this
case, Petitioner was represented by and compensation is being sought for the legal work of three
attorneys. Petitioner has not shown that his habeas petition presents “extremely difficult” issues
that justify the appointment of three separate attorneys under the CJA. However, because of the
difficulty of determining which of Petitioner’s three attorneys was most essential to his
representation, the court will appoint each of them nunc pro tunc. Nevertheless, in evaluating
whether the compensation being requested is reasonable, the court will proceed under the
assumption that only one attorney was entitled to be appointed under the CJA.
Petitioner has also sought a special factor increase above the statutory maximum
compensation for attorneys appointed under the CJA. The maximum rate for legal work
performed under the CJA is $125 per hour, and the maximum total compensation for attorneys
appointed pursuant to the CJA is $7,000 for non-capital habeas cases. See 18 U.S.C. §
3006A(d)(2). If a case requires complex or extended representation, these statutory maximums
may be waived upon a determination that excess payment is necessary to provide fair
compensation and approval by the chief judge of the circuit. See 18 U.S.C. § 3006A(d)(3).
Petitioner’s case was neither “complex” or “extended,” and therefore, his appointed
counsel is not entitled to fees above the statutory maximum. The term “extended,” for purposes
of the CJA, refers simply to the amount of time it took to litigate the case. See United States v.
Bailey, 581 F.2d 984, 988 (D.C. Cir. 1978) (“‘Extended’ representation is of a piece with
‘protracted’ representation under the old standard, each connoting a temporal element a
substantial investment of time.”); United States v. Diaz, 802 F. Supp. 304, 308 (C.D. Cal. 1992);
United States v. Cook, 628 F. Supp. 38, 41 (D. Colo. 1985) (“[‘Extended’] simply refers to a
temporal gauge.”). Petitioner filed his petition for a writ of habeas corpus on August 13, 2010.
He was released from the custody of ICE on September 17, 2010. Even assuming preparation of
the petition reasonably began a month before it was filed, the fees incurred during this period
were $2,095. Counsel began working on the case in April 2010 and by the time Petitioner was
released had incurred fees in excess of $8,900. The bulk of all fees requested were incurred in
pursuing the motion to compel on which the Petitioner did not prevail.
After a single hearing to consider Petitioner’s motion to compel Respondents to
supplement the record and Respondents’ motion to dismiss, the court issued an order dismissing
the case and denying the motion to compel as moot on April 18, 2011. This case was not
protracted or extended, and its temporal length does not provide grounds for waiving the
maximum fee allowed for appointed counsel under the CJA.
A case is “complex” for the purposes of waiving the maximum fees allowed under the
CJA if “legal problems encountered in the case . . . are significantly greater than those
encountered in the ideal of an average case.” Cook, 628 F. Supp. at 41 (citing Bailey, 581 F.2d at
989) (quotation marks removed). While the court recognizes the unique issues that arise when a
habeas petition is filed on behalf of an alien subject to an order of removal, such petitions are not
so rare as to make such cases per se “complex.” Petitioner has failed to show why his particular
case raises legal problems that are significantly more difficult and taxing on his attorneys than
would arise in an average habeas case. For that reason, the court finds no justification for
waiving the maximum fee allowed for appointed counsel under the CJA. The award of fees will
be limited to the $7,000 allowed by the CJA.
For the reasons stated above, the court hereby DENIES in part and GRANTS in part
Petitioner’s motion for attorney fees under the Equal Access to Justice Act, or in the alternative,
for appointment of counsel nunc pro tunc under the Criminal Justice Act. (Dkt. No. 27.)
Specifically, the court DENIES Petitioner’s motion with respect to an award of attorney fees
pursuant to the Equal Access to Justice Act and GRANTS Petitioner’s motion with respect to the
appointment of counsel nunc pro tunc under the Criminal Justice Act. The court hereby
ADMITS Aaron Tarin, Hakeem Ishola, and Kimberly Herrera pro hac vice to the Criminal
Justice Act panel for the District of Utah and APPOINTS them counsel nunc pro tunc to
represent Petitioner Buu Van Truong, conditional on submission of proof that Petitioner is a
financially eligible person under the Criminal Justice Act. Such proof must be submitted to the
court within fourteen (14) days of the date of this order.
The court also denies Petitioner’s request to waive the maximum rate and fee allowed for
compensation of appointed counsel by the Criminal Justice Act. Petitioner’s counsel will be
compensated as if they were a single attorney appointed under the act, subject to the statutory
limits on rates and fees imposed by the Criminal Justice Act.
DATED this 12th day of March, 2012.
BY THE COURT:
United States District Judge
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