Fatty v. Duke et al

Filing 56

ORDER granting Plaintiff's 49 Motion for attorney fees and costs in the amount of $76,795. Signed by Judge Marsha J. Pechman. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BENGALLY FATTY,
Petitioner,

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CASE NO. C17-1535 MJP
ORDER GRANTING
PETITIONER’S MOTION FOR
ATTORNEY FEES

v.
KIRSTJEN M. NIELSEN, et al.,
Respondents.

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THIS MATTER comes before the Court on Petitioner’s Motion for Attorney Fees and

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Costs (Dkt. No. 49). Having reviewed the Motion, the Response (Dkt. No. 54), the Reply (Dkt.

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No. 55) and all related papers, the Court GRANTS the Motion for Attorney Fees.

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Background
Petitioner Bengally Fatty, a native and citizen of the Republic of Gambia, entered the

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United States on a student visa on July 13, 2002. (Dkt. No. 9, ¶ 20.) After Mr. Fatty arrived, he

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discovered the funding he thought he would receive for school was not available. (Id., ¶ 21.)

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Desperate for money, Mr. Fatty agreed to work in a Pennsylvania restaurant, where he became

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the victim of labor trafficking and was held against his will until he was able to escape. (Id.,

ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES - 1

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¶¶ 21-24.) The remainder of Mr. Fatty’s long history with United States Immigration and

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Customs Enforcement (“ICE”) is recounted in detail in his Amended Habeas Petition (Dkt. No.

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9) and in the Report and Recommendation (Dkt. No. 27).

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The instant case began when Mr. Fatty was taken into detention by ICE on September 19,

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2017. (Id. ¶ 1.) On October 13, 2017 Mr. Fatty filed an immigration habeas petition seeking a

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bond hearing and judicial stay of removal pending the adjudication of his T (trafficking victim)

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visa application by U.S. Citizenship and Immigration Services (“USCIS”). (Dkt. No. 9.) Mr.

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Fatty argued that removal before his T visa application was processed would violate his right to

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due process, and he brought an Administrative Procedures Act (“APA”) claim alleging that ICE

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abused its discretion when it denied his administrative request for a stay of removal. (Dkt. No.

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9.)

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In a Report and Recommendation filed April 5, 2018, the Honorable Magistrate Judge

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Brian A. Tsuchida found the Court did not have jurisdiction to stay Mr. Fatty’s removal pending

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adjudication of his T visa because removal fell within the discretionary powers of USCIS. (Dkt.

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No. 27 at 8-12.) Magistrate Judge Tsuchida then concluded removal prior to adjudication of Mr.

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Fatty’s T visa would not deprive Mr. Fatty of a liberty or property interest. (Id. at 12, 14-20.)

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Rejecting the Report and Recommendation, the Court held that Mr. Fatty had a liberty

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interest in preventing his removal and faced a risk of erroneous deportation if he was removed

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before his T visa was adjudicated; the Court granted Mr. Fatty’s request for a stay of removal.

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(Dkt. No. 40 at 4-5.) The Court also found the bona fide determination by USCIS as to Mr.

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Fatty’s T visa application—the initial step in preparing for adjudication—was improperly made

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in support of the litigation, before completion of Mr. Fatty’s background check, and without

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supplemental information supporting his application. (Id. at 7.) The bona fide determination

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ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES - 2

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was therefore “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

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law,” in violation of the APA. (Id. at 7 (citing 5 U.S.C. § 706(2)(A)).) The Court also ordered

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Respondents to provide Mr. Fatty with a bond hearing pursuant to Diouf v. Napolitano, 634 F.3d

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1081 (9th Cir. 2011) (“Diouf II”). (Dkt. Nos. 30, 33-34.) The bond hearing was held on May

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31, 2018. (Dkt. No. 34.)

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Mr. Fatty now seeks attorney fees and costs under the Equal Access to Justice Act

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(“EAJA”), arguing that Respondents’ position in this matter was not substantially justified. (Dkt.

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No. 49 at 5-8.) Mr. Fatty pursues an enhanced rate for his attorney, Christopher Strawn,

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asserting that Mr. Strawn’s distinctive knowledge and specialized skill were necessary to this

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case and unavailable elsewhere at the statutory rate. (Id. at 9-11.)

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Discussion

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I.

Legal Standard

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The Equal Access to Justice Act (EAJA) provides that in any action brought by or against

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the United States, “a court shall award to a prevailing party other than the United States fees and

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other expenses . . . unless the court finds the position the United States was substantially justified

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or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Fee applicants

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may apply for “for fees and other expenses which show[ ] that the party is a prevailing party and

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is eligible to receive an award.” 28 U.S.C. 2412(d)(1)(B).

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A. EAJA Factors

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For this Court to award attorney fees and costs under the EAJA, it must find that (1) the

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party seeking fees qualifies as the “prevailing party;” (2) the government has failed to meet its

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burden of showing that its positions were substantially justified, or that special circumstances

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make an award of fees unjust; and (3) the requested fees and costs are reasonable.

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ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES - 3

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Abdur-Rahman v. Napolitano, 868 F. Supp. 2d 1158, 1160 (W.D. Wash. 2012) (citing United

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States v. Milner, 583 F.3d 1174, 1196 (9th Cir. 2009).)

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As an initial matter, Respondents do not challenge Mr. Fatty’s status as an eligible

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prevailing party. (Dkt. No. 54.) Mr. Fatty has satisfied the prevailing party standard because the

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Court granted his motion to stay removal pending adjudication of his T visa, a “judicially

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sanctioned,” “material alteration of the legal relationship of the parties.” Buckhannon Bd. and

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Care Home, Inc. v. W. Va. Dep’t. of Health and Human Res., 532 U.S. 598, 604-05 (2001);

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Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) (the Buckhannon rule governs EAJA

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fee applications).

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a. Substantial Justification
Once the petitioner demonstrates he was the prevailing party, the burden then shifts to the

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government, which may avoid paying an EAJA award if its position was substantially justified.

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28 U.S.C. § 2412(d)(1)(B). To meet the “substantially justified” standard, the government must

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advance a position justified to a degree that could satisfy a reasonable person. Pierce v.

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Underwood, 487 U.S. 552, 565 (1988). The “position of the United States” includes both the

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government’s litigation position and the underlying agency action giving rise to the civil action.

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Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

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In this case, neither the underlying agency action nor Respondents’ litigation position

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were substantially justified. The Agency’s refusal to grant Mr. Fatty a mandated bond hearing

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after he was in re-detention for more than 180 days was unreasonable. (Dkt. No. 36, Ex. 1 at 4).

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And the bona fide determination by USCIS, the Agency’s initial step in adjudicating T visas, was

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“arbitrary and capricious” and violated the Administrative Procedures Act (APA). ((Dkt. No. 40

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at 7-8 (citing 5 U.S.C. § 706(2)(A)).) USCIS then took 17 months to adjudicate Mr. Fatty’s T

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ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES - 4

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visa application, well beyond average processing times for 2019. (Dkt. No. 49 (citing Ex. B at

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3).)

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Respondents contend they were justified in denying Mr. Fatty a bond hearing because he

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first made the request before he was detained for six months. (Dkt. No. 54 at 4-9.) Although

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Mr. Fatty sought a bond hearing before he was in custody for six months, on May 22, 2018 after

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he had been in custody for 180 days, Respondents argued Mr. Fatty was not entitled to a bond

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hearing, in direct contravention of Ninth Circuit precedent. (Dkt. No. 31 at 2-6); See Diouf v.

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Napolitano, 634 F.3d 1081 (9th Cir. 2011) (“Diouf II”).

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Respondents also assert that even if the USCIS acted in an arbitrary and capricious

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manner, those actions are not per se unreasonable. (Id. at 8-9.) It is true that “this circuit has

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recognized that arbitrary and capricious conduct is not per se unreasonable,” but Respondents

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fail to explain why in this case USCIS’s premature bona fide determination—created without

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necessary supporting information—was justified. Kali v. Bowen, 854 F.2d 329, 333 (9th Cir.

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1988). And while Respondents may be correct that the Government was not required to expedite

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adjudication of Mr. Fatty’s T visa ahead of others, it was unreasonable to adjudicate Mr. Fatty’s

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T visa several months beyond the average wait times while Respondents continued to

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aggressively pursue removal in Court. (Id. at 9)

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Respondents’ attempt to justify their litigation position also fails. They contend their

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primary argument against Mr. Fatty’s habeas petition was jurisdictional, which was reasonable

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because numerous district courts have found Section 1252(g) precludes jurisdiction over removal

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orders. (Dkt. No. 54 at 4-7.) But Mr. Fatty’s claims for relief—claims based on Due Process

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and violations of the APA—were constitutional and legal challenges collateral to the underlying

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removal order and not barred by 42 U.S.C. § 1252(g), the jurisdictional provision upon which

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ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES - 5

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Respondents based their arguments. (Dkt. No. 55 at 3; See Dkt. No. 40 at 3 (quoting United

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States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004)).) Respondents have failed to

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demonstrate their position was substantially justified at any stage.

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B. Calculation of Fees

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Mr. Fatty seeks an award of $76,795 in fees and expenses based upon an hourly rate of

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$450 per hour for 166.7 hours of Mr. Strawn’s own work and an additional $1,780 in expenses

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for the time spent by declarants Robert H. Gibbs and Devin T. Theriot-Orr who submitted

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declarations supporting the prevailing rate request. (Dkt. 49 at 9-11; Ex. C “Theriot-Orr Decl.”,

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Ex. D “Gibbs Decl”; Dkt. No. 55 at 6.) Mr. Fatty is not seeking fees for the hours Mr. Strawn

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spent on the Motion to Compel, worked on issues before the Ninth Circuit, worked with students

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on this case, or for any student time spent on this matter. (Dkt. No. 49, Ex. E “Strawn Decl.”

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¶ 4.)

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The Court is authorized to award fees above the statutory rate of $125 per hour, adjusted

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for inflation, when “a special factor, such as the limited availability of qualified attorneys for the

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proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). Courts have

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determined these enhanced hourly rates may be awarded where the attorneys possess (1)

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“distinctive knowledge” and (2) “specialized skill” that was (3) “needful to the litigation in

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question” and “not available elsewhere at the statutory rate.” Nadarajah v. Holder, 569 F.3d 906,

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912 (9th Cir. 2009).

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Mr. Fatty demonstrates, and Respondents do not dispute, that his counsel has distinctive

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knowledge and specialized skill in both immigration law and litigation. (Dkt. No. 49, Ex. E,

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Strawn Decl. ¶ 2.) Mr. Strawn has practiced immigration law since 2003, serving as the director

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of the Northwest Immigrant Rights Project, and now directing the Immigration Law Clinic at the

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ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES - 6

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University of Washington School of Law. (Id. ¶¶ 1-2.) Mr. Strawn has also been a faculty

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member and presenter for both national and regional American Immigration Lawyer Association

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(“AILA”) conferences since 2004. (Id.)

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Respondents argue that Mr. Strawn’s specialized knowledge and skills were not

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necessary for this case, which “involved a single petitioner seeking a stay of his removal and a

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bond hearing.” (Dkt. No. 54 at 10.) The Court does not find this matter as simple as

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Respondents suggest. Two immigration specialists describe this case as presenting novel issues

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that required a highly experienced immigration attorney. (See Theriot-Orr Decl., ¶ 13 (“[T]his

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was a very atypical case.”); Gibbs Decl. at 2 (“[B]ecause Mr. Fatty was facing imminent

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removal, this case required a litigator who could prepare and file all necessary documents on an

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extremely short time frame.”).) In fact, Mr. Strawn’s experience settling a similar case, where an

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applicant challenged her removal prior to adjudication of a U visa, allowed him to quickly draft

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the habeas and stay motions for Mr. Fatty. (Id.) And Mr. Strawn was able to identify Mr.

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Fatty’s potential eligibility for a T visa when several previous attorneys and adjudicators missed

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the issue. (Strawn Decl. ¶ 3.) Mr. Fatty has also demonstrated that Mr. Strawn’s knowledge and

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skill were not available elsewhere at the statutory rate. (See Strawn Decl. ¶ 3; Theriot-Orr Decl.

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¶¶ 11-12; Gibbs Decl. at 2.)

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The Court also finds Mr. Fatty’s requested fees and costs reasonable. Respondents object

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that Mr. Strawn spent an unreasonable amount of time conferencing with Mr. Fatty (18.7 hours)

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and drafting the amended habeas petition (11 hours). (Dkt. No. 54 at 11.) The Court disagrees.

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Because Mr. Fatty was detained throughout the litigation, requiring counsel to travel from North

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Seattle to the Northwest Detention Center in Tacoma to speak confidentially with his client, 18.7

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hours is a reasonable time expenditure. (Dkt. No. 55 at 5.) It was also reasonable for Mr. Strawn

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ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES - 7

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to spend 11 hours drafting Mr. Fatty’s amended habeas petition, given the new issues raised by

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Mr. Fatty’s T visa application, submitted after his first petition. (See Dkt. No. 9.) Having

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reviewed Mr. Strawn’s time sheets and finding that Mr. Strawn’s efforts and the overall relief

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obtained in this matter were significant, the Court concludes that Mr. Strawn is entitled to an

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enhanced fee of $450.

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Conclusion
The Court therefore GRANTS Mr. Fatty’s Motion and awards him attorney fees and
costs in the amount of $76,795.

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The clerk is ordered to provide copies of this order to all counsel.

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Dated May 3, 2019.

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A

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Marsha J. Pechman
United States District Judge

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