Mamadou Samba TOUNKARA v. Jeremy CASEY, et al.

Opinion

3 Mamadou Samba TOUNKARA, Case No.: 26-cv-1306-AGS-DDL 4 Petitioner, ORDER GRANTING IN PART MOTION FOR ATTORNEYS’ FEES 5 v. (ECF 8) 6 Jeremy CASEY, et al., 7 Respondents. 8 9 Petitioner seeks attorneys’ fees under the Equal Access to Justice Act. The EAJA 10 mandates that courts “award to a prevailing party” “fees and expenses incurred in a civil 11 action brought by or against the United States, unless the government shows that its 12 position was substantially justified or that special circumstances make an award unjust.” 13 28 U.S.C. § 2412(d)(1)(A). Respondents filed no opposition. It is within the court’s 14 “discretion to determine that the government’s lack of timely opposition is tantamount to 15 a concession that its position in the litigation was not substantially justified.” Gwaduri v. 16 I.N.S., 362 F.3d 1144, 1146 (9th Cir. 2004). The Court concludes that a fee award is 17 appropriate. 18 Nonetheless, the Court finds that neither the requested total number of hours nor the 19 requested rate are reasonable. Take the claimed time. Petitioner seeks fees for “72.0 hours,” 20 “consisting of 67.0 attorney hours and 5.0 legal-assistant hours.” (ECF 8, at 15.) At first 21 blush, this seems like an unusually high number of hours for a case in which the 22 government conceded at the first opportunity (see ECF 5), and petitioner filed only three 23 documents: the habeas petition (ECF 1), a related temporary-restraining-order motion 24 (ECF 2), and the fee motion (ECF 8). After all, large swaths of the habeas petition and 25 TRO motion are identical to—or nearly identical to—pleadings petitioner’s counsel 26 previously filed in this District. (Compare ECF 1 & 2 (habeas petition and TRO motion in 27 this case); with Mohamed v. LaRose, No. 26-cv-0955-DMS, ECF 1 & 2 (petition and 28 motion) and Galan v. LaRose, No. 26-cv-1042-DMS, ECF 1 & 2 (petition and motion).) 1 Lead counsel claims to have worked “5.0 hours” drafting the “habeas petition and 2 supporting briefing regarding 8 U.S.C. §§ 1225 and 1226 and due-process violations” 3 (ECF 8, at 18), though those legal arguments are nearly verbatim reproductions of the 4 language from prior petitions filed by the same counsel. And the asserted work on the 5 habeas petition did not end there. Counsel also seeks compensation for up to 18 additional 6 hours related to the petition. (See id. at 18 (“2.0 hours” of lead attorney time spent drafting 7 the “factual chronology, habeas claims, and requested relief” and developing “litigation 8 strategy”); id. at 19 (5 more hours of claimed lead-attorney time reviewing and revising the 9 habeas petition and other filings); id. at 20 (7 hours of associate-counsel time spent 10 researching “habeas jurisdiction, detention authority under 8 U.S.C. §§ 1225 and 1226, and 11 relevant Ninth Circuit authority,” as well as “due-process claims and emergency injunctive 12 relief standards”); id. (associate counsel’s “2.0 hours” drafting “supporting legal argument 13 sections, prepar[ing] supporting authorities, and assist[ing] with petition briefing”); id. 14 at 21 (legal assistant’s “2.0 hours” of “[f]iling support and organization of exhibits and 15 supporting materials”).) 16 Another troubling aspect of the fee petition is that the time entries smack of rough 17 estimates—and high estimates, at that. Of the 26 listed tasks, 24 took exactly a whole 18 number of hours (e.g., “5.0 hours,” “3.0 hours,” “6.0 hours,” and so on), while the 19 remaining two tasks took “4.5 hours” and “3.5 hours.” (ECF 8, at 18–21.) Perhaps 20 counsel’s entire firm operates only in hour-long or half-hour-long increments. But, in light 21 of all the circumstances, the Court is concerned that these entries reflect imprecise 22 timekeeping. 23 In any event, the requested hours seem out of proportion to many other habeas- 24 concession cases. See, e.g., Batista de Miranda v. LaRose, No. 25-cv-3019-AGS-MSB, 25 2026 WL 1480797 (S.D. Cal. May 27, 2026) (finding “30 [hours] for all staff” “reasonable” 26 because “the case was fully briefed prior to respondents’ concession”); cf. Cong v. Noem, 27 No. 25-cv-3730-GPC-DEB, 2026 WL 1075236, at *2 (S.D. Cal. Apr. 20, 2026) (awarding 28 “13 [attorney] hours” and “13.5 [paralegal] hours” for a fully briefed, non-conceded habeas 1 petition). Of course, each fee request must be evaluated on its own facts. But nothing in 2 counsel’s fee petition explains why this case should have taken so much time. In fact, since 3 counsel was retreading familiar legal ground, a court might be justified in concluding that 4 the case should have taken less time than the average habeas concession. For all these 5 reasons, the Court reduces the hours award to a total of 20 hours, divided as follows: 6 (1) lead counsel, 12 hours; (2) associate counsel, 5 hours; and (3) legal assistant, 3 hours. 7 Turning to the requested rates, petitioner suggests two alternatives: the presumptive 8 “$258.45” EAJA attorney rate or an “enhanced hourly rate[]” “based on the limited 9 availability of qualified attorneys” for this “specialized immigration habeas matter.” 10 (ECF 8, at 16–17); see also Statutory Maximum Rates Under the EAJA, U.S. Courts for 11 the Ninth Circuit, https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last 12 visited June 26, 2026). The enhanced rate is available only when a plaintiff shows that 13 (1) “the attorney [] possess[ed] distinctive knowledge and skills developed through a 14 practice specialty,” (2) “those distinctive skills [were] needed in the litigation, and 15 (3) “those skills [were not] available elsewhere at the statutory rate.” Love v. Reilly, 16 924 F.2d 1492, 1499 (9th Cir.1991). Though lead counsel submitted a declaration to 17 demonstrate specialized skill (see ECF 8-1, at 1), petitioner makes no showing as to the 18 limited-availability prong. The enhanced-rate request fails without it. See United States v. 19 Real Property Known as 2224 Dolorosa Street, 190 F.3d 977, 984–85 (9th Cir. 1999) 20 (holding that, even “assuming” “expertise,” an enhanced rate was not justified because the 21 specific case did “not need[] specialized skills” and plaintiffs did “not demonstrate[] that 22 no suitable counsel would have taken on [the] case at the statutory rate”). In short, 23 petitioner has not met his burden to overcome the presumptive statutory cap. 24 Thus, the fee motion is GRANTED in part. The Court awards petitioner a total of 25 $4,543.65 in fees. That sum includes 17 attorney hours at a rate of $258.45 per hour, plus 26 3 legal-assistant hours at a rate of $50 per hour (see ECF 8-3, at 1). The pending motion 27 hearing is vacated. 28 1 ||Dated: June 29, 2026

3 Hon. rew G. Schopler 4 United States District Judge

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