1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NASSR A MOHAMED, et al., Case No. 1:19-cv-01345-JLT-SKO 12 Plaintiffs, ORDER GRANTING IN PART MOTION FOR ATTONREYS’ FEES 13 v. (Doc. 41) 14 WILLIAM BARR, et al.,
15 Defendants. 16 17 Before the court is plaintiffs’ motion for attorneys’ fees and costs pursuant to the Equal 18 Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), in the amount of $68,259.49. (Doc. No. 41.) 19 Defendants, who are various federal-government officials, filed an opposition, to which plaintiffs 20 responded. (Doc. Nos. 43 & 44.) The court permitted supplemental briefing by both parties. 21 (Doc. No. 46.) Plaintiffs filed supplemental briefing on November 13, 2021. (Doc. No. 48.) 22 Defendants have not filed supplemental briefing, and the deadline to do so has expired. 23 BACKGROUND 24 On September 25, 2019, plaintiffs initiated this action by filing a complaint for declaratory 25 and injunctive relief against Defendants Michael Pompeo, William Barr, Kevin McAleenan, the 26 United States Department of State, the United States Department of Homeland Security, the 27 United States Department of Justice, Devin Kennington, and the United States Embassy, Djibouti. 28 (Doc. No. 1.) That same day, Plaintiffs filed a motion for an emergency writ of mandamus and 1 preliminary injunction. (Doc. No. 2.) Therein, Plaintiffs alleged that Plaintiff Muhjah 2 Abdoalnasar Mohammed Ahmed had not been issued a diversity visa for the 2019 application 3 cycle after having won the diversity visa lottery and completing all requirements to obtain the 4 diversity visas for her and her family. (Doc. No. 1.) On September 27, 2019, a previously 5 assigned district judge held that defendants unreasonably delayed processing of the plaintiffs’ 6 visa applications in light of the impending statutory deadlines and that all other requirements for 7 mandatory injunctive relief had been satisfied. (Doc. No. 13 at 7.) In so holding, the court 8 mandated the Department of State defendants to issue a decision on the visa applications before 9 the end of the fiscal year: September 30, 2019. (Id.) Over the next two days, Defendants refused 10 to adjudicate the Djibouti plaintiffs’ visa applications. (See, e.g., Doc. Nos. 17, 18, 20.) On 11 September 29, 2019, the Court found Defendants in violation of its September 27, 2019 order and 12 again ordered Defendants to comply with the original court order requiring the government to 13 adjudicate the matter pursuant to proper procedures. (Doc. No. 24.) On September 30, 2019, 14 Defendants submitted a status report informing the court that in the last few hours of the fiscal 15 year, a consular officer in Djibouti had issued visas to plaintiffs. (Doc. No. 25 at 1.) 16 On December 12, 2019, Defendants filed a motion to dismiss Plaintiffs’ complaint for 17 lack of jurisdiction, arguing that Plaintiffs’ mandamus lawsuit had been rendered moot because 18 all the visas have been granted. (Doc. No. 30 at 2.) On January 31, 2020, Plaintiffs filed a reply, 19 indicating that they agree to dismiss this action because the court has granted the relief that they 20 sought. (Doc. No. 35.) Accordingly, the court dismissed the complaint and granted judgment in 21 favor of Defendants. (Doc. Nos. 39 & 40.) 22 In their motion for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 23 § 2412(d)(1)(A), Plaintiffs seek an award of $68,259.49 based on 144 hours of work among three 24 counsel (ranging from $300–$500 per hour), two law clerks ($150 per hour) and three paralegals 25 ($80 per hour). (Doc. No. 41.) After Defendants filed an opposition and Plaintiffs replied, the 26 Court permitted additional briefing about the requested hourly rates. (Doc. 46.) Plaintiffs filed a 27 timely supplemental brief, (Doc. 49), and Defendants did not file a supplemental reply. 28 1 LEGAL STANDARDS 2 EAJA provides: 3 [A] court shall award to a prevailing party other than the United States fees and other expenses ... in any civil action ... including 4 proceedings for judicial review of an agency action, brought by or against the United States in any court having jurisdiction of that 5 action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an 6 award unjust. 7 28 U.S.C. § 2412(d)(1)(A). A “prevailing party” is eligible for attorneys’ fees, costs, and other 8 expenses under EAJA if it incurred costs of litigation against the federal government and meets 9 applicable size or net worth criteria. Id., 28 U.S.C. § 2412(d)(2). 10 To be awarded attorneys’ fees and costs pursuant to EAJA, Plaintiffs must set forth: (1) a 11 showing that they are the prevailing party; (2) a showing that they are eligible to receive an 12 award; (3) a statement of the amount sought together with an itemized account of time expended 13 and rates charged; and (4) an allegation that the position of the United States was not substantially 14 justified. 28 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 408 (2004). If 15 Plaintiffs satisfy the requirements, the burden shifts to Defendants to establish that their position 16 in the underlying action was justified substantially to preclude an award of attorneys’ fees and 17 costs. Oregon Nat. Resources Council v. Marsh, 52 F.3d 1485, 1492 (9th Cir. 1995). If 18 Defendants’ position was not justified substantially in law or fact, then Plaintiffs are entitled a 19 reasonable award of attorneys’ fees and costs. See Pierce v. Underwood, 487 U.S. 552, 565 20 (1988) (position is substantially justified only if it has a reasonable basis in both law and fact). 21 DISCUSSION 22 Plaintiffs seek fees and costs in the amount of $68,259.49 under the EAJA. (Doc. No. 41 23 at 11.) Defendants argue that the motion should be denied because their position was 24 substantially justified and plaintiffs’ application for attorneys’ fees was deficient. (Doc. No. 43 at 25 5–15.) They do not contest, however, that Plaintiffs prevailed. (Id. at 5 (“The United States does 26 not dispute that based on the Court’s orders four days into this case was in active litigation, 27 plaintiffs were the prevailing party.”).) 28 /// 1 A. Substantial Justification 2 Defendants argue that their position in litigation was substantially justified, thus 3 precluding an EAJA award of attorneys’ fees and costs. (Doc. No. 43 at 5–11.) “ ‘Substantial 4 justification’ under the EAJA means that the government’s position must have a ‘reasonable basis 5 both in law and fact,’ i.e., the government need not be ‘justified to a high degree,’ but rather 6 ‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable 7 person.” Wang v. Horio, 45 F.3d 1362, 1364 (9th Cir. 1995) (quoting Bay Area Peace Navy v. 8 United States, 914 F.2d 1224, 1230 (9th Cir.1990)). Thus, the court employs a “reasonableness” 9 standard to determine whether the government’s position was “substantially 10 justified.” Id.; Flores v. Shalala,
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NASSR A MOHAMED, et al., Case No. 1:19-cv-01345-JLT-SKO 12 Plaintiffs, ORDER GRANTING IN PART MOTION FOR ATTONREYS’ FEES 13 v. (Doc. 41) 14 WILLIAM BARR, et al.,
15 Defendants. 16 17 Before the court is plaintiffs’ motion for attorneys’ fees and costs pursuant to the Equal 18 Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), in the amount of $68,259.49. (Doc. No. 41.) 19 Defendants, who are various federal-government officials, filed an opposition, to which plaintiffs 20 responded. (Doc. Nos. 43 & 44.) The court permitted supplemental briefing by both parties. 21 (Doc. No. 46.) Plaintiffs filed supplemental briefing on November 13, 2021. (Doc. No. 48.) 22 Defendants have not filed supplemental briefing, and the deadline to do so has expired. 23 BACKGROUND 24 On September 25, 2019, plaintiffs initiated this action by filing a complaint for declaratory 25 and injunctive relief against Defendants Michael Pompeo, William Barr, Kevin McAleenan, the 26 United States Department of State, the United States Department of Homeland Security, the 27 United States Department of Justice, Devin Kennington, and the United States Embassy, Djibouti. 28 (Doc. No. 1.) That same day, Plaintiffs filed a motion for an emergency writ of mandamus and 1 preliminary injunction. (Doc. No. 2.) Therein, Plaintiffs alleged that Plaintiff Muhjah 2 Abdoalnasar Mohammed Ahmed had not been issued a diversity visa for the 2019 application 3 cycle after having won the diversity visa lottery and completing all requirements to obtain the 4 diversity visas for her and her family. (Doc. No. 1.) On September 27, 2019, a previously 5 assigned district judge held that defendants unreasonably delayed processing of the plaintiffs’ 6 visa applications in light of the impending statutory deadlines and that all other requirements for 7 mandatory injunctive relief had been satisfied. (Doc. No. 13 at 7.) In so holding, the court 8 mandated the Department of State defendants to issue a decision on the visa applications before 9 the end of the fiscal year: September 30, 2019. (Id.) Over the next two days, Defendants refused 10 to adjudicate the Djibouti plaintiffs’ visa applications. (See, e.g., Doc. Nos. 17, 18, 20.) On 11 September 29, 2019, the Court found Defendants in violation of its September 27, 2019 order and 12 again ordered Defendants to comply with the original court order requiring the government to 13 adjudicate the matter pursuant to proper procedures. (Doc. No. 24.) On September 30, 2019, 14 Defendants submitted a status report informing the court that in the last few hours of the fiscal 15 year, a consular officer in Djibouti had issued visas to plaintiffs. (Doc. No. 25 at 1.) 16 On December 12, 2019, Defendants filed a motion to dismiss Plaintiffs’ complaint for 17 lack of jurisdiction, arguing that Plaintiffs’ mandamus lawsuit had been rendered moot because 18 all the visas have been granted. (Doc. No. 30 at 2.) On January 31, 2020, Plaintiffs filed a reply, 19 indicating that they agree to dismiss this action because the court has granted the relief that they 20 sought. (Doc. No. 35.) Accordingly, the court dismissed the complaint and granted judgment in 21 favor of Defendants. (Doc. Nos. 39 & 40.) 22 In their motion for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 23 § 2412(d)(1)(A), Plaintiffs seek an award of $68,259.49 based on 144 hours of work among three 24 counsel (ranging from $300–$500 per hour), two law clerks ($150 per hour) and three paralegals 25 ($80 per hour). (Doc. No. 41.) After Defendants filed an opposition and Plaintiffs replied, the 26 Court permitted additional briefing about the requested hourly rates. (Doc. 46.) Plaintiffs filed a 27 timely supplemental brief, (Doc. 49), and Defendants did not file a supplemental reply. 28 1 LEGAL STANDARDS 2 EAJA provides: 3 [A] court shall award to a prevailing party other than the United States fees and other expenses ... in any civil action ... including 4 proceedings for judicial review of an agency action, brought by or against the United States in any court having jurisdiction of that 5 action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an 6 award unjust. 7 28 U.S.C. § 2412(d)(1)(A). A “prevailing party” is eligible for attorneys’ fees, costs, and other 8 expenses under EAJA if it incurred costs of litigation against the federal government and meets 9 applicable size or net worth criteria. Id., 28 U.S.C. § 2412(d)(2). 10 To be awarded attorneys’ fees and costs pursuant to EAJA, Plaintiffs must set forth: (1) a 11 showing that they are the prevailing party; (2) a showing that they are eligible to receive an 12 award; (3) a statement of the amount sought together with an itemized account of time expended 13 and rates charged; and (4) an allegation that the position of the United States was not substantially 14 justified. 28 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 408 (2004). If 15 Plaintiffs satisfy the requirements, the burden shifts to Defendants to establish that their position 16 in the underlying action was justified substantially to preclude an award of attorneys’ fees and 17 costs. Oregon Nat. Resources Council v. Marsh, 52 F.3d 1485, 1492 (9th Cir. 1995). If 18 Defendants’ position was not justified substantially in law or fact, then Plaintiffs are entitled a 19 reasonable award of attorneys’ fees and costs. See Pierce v. Underwood, 487 U.S. 552, 565 20 (1988) (position is substantially justified only if it has a reasonable basis in both law and fact). 21 DISCUSSION 22 Plaintiffs seek fees and costs in the amount of $68,259.49 under the EAJA. (Doc. No. 41 23 at 11.) Defendants argue that the motion should be denied because their position was 24 substantially justified and plaintiffs’ application for attorneys’ fees was deficient. (Doc. No. 43 at 25 5–15.) They do not contest, however, that Plaintiffs prevailed. (Id. at 5 (“The United States does 26 not dispute that based on the Court’s orders four days into this case was in active litigation, 27 plaintiffs were the prevailing party.”).) 28 /// 1 A. Substantial Justification 2 Defendants argue that their position in litigation was substantially justified, thus 3 precluding an EAJA award of attorneys’ fees and costs. (Doc. No. 43 at 5–11.) “ ‘Substantial 4 justification’ under the EAJA means that the government’s position must have a ‘reasonable basis 5 both in law and fact,’ i.e., the government need not be ‘justified to a high degree,’ but rather 6 ‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable 7 person.” Wang v. Horio, 45 F.3d 1362, 1364 (9th Cir. 1995) (quoting Bay Area Peace Navy v. 8 United States, 914 F.2d 1224, 1230 (9th Cir.1990)). Thus, the court employs a “reasonableness” 9 standard to determine whether the government’s position was “substantially 10 justified.” Id.; Flores v. Shalala, 49 F.3d 562, 569 (9th Cir.1995). “The government’s failure to 11 prevail does not raise a presumption that its position was not substantially justified.” Kali v. 12 Bowen, 854 F.2d 329, 332 (9th Cir.1988). Similarly, “arbitrary and capricious conduct is not per 13 se unreasonable.” Id. at 333. “To be ‘substantially justified’ means, of course, more than merely 14 undeserving of sanctions for frivolousness; that is assuredly not the standard for Government 15 litigation of which a reasonable person would approve.” Pierce, 487 U.S. at 566. 16 The “substantial justification” determination requires a two-step inquiry. The first step 17 considers whether, under the totality of the circumstances, “the government was substantially 18 justified in taking its original action” at the agency level. Kali, 854 F.2d at 332. Next, the Court 19 must determine “whether the government was substantially justified in defending the validity of 20 the action in court.” Id. The government must have been justified at both the agency level and 21 during litigation. Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir. 1991). In determining 22 reasonableness of the government’s position, the court considers the action as “an inclusive 23 whole, rather than as atomized line-items.” INS v. Jean, 496 U.S. 154, 161–62 (1990). 24 First, the Court has already found that the agency’s failure to adjudicate the application 25 was unreasonable when issuing the writ of mandamus. It was the agency’s unreasonable actions 26 which caused the court to issue the writ of mandamus, which is “a drastic and extraordinary” 27 remedy. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). Even after the Court 28 ordered the agency to adjudicate the applications, the agency proceeded to deny them on grounds 1 that were “facially inapplicable to the visa applications at issue in this case.” (Doc. 19 (Court’s 2 September 28, 2019 order).) Due to this conduct, which was contrary to the Court’s previous 3 order, the Court was “inclined to find that the bad faith exception to the doctrine of consular 4 nonreviewability applies here in light of the facial inapplicability of the cited basis for the 5 denials.” (Id.) Given the continued noncompliance, the Court found Defendants violated the 6 Court’s order and sanctioned them. (Doc. 24.) Thus, not only did the agency act so unreasonably 7 that the Court issued the drastic and extraordinary remedy of a writ of mandamus, but the agency 8 refused to comply with a court order and inclined the Court to find it was acting in bad faith. 9 Thus, the government’s conduct was not substantially justified. 10 B. Eligibility to Receive Award 11 Defendants argued in their opposition to the motion for attorneys’ fees that Plaintiffs did 12 not submit an application establishing that their net worth is less than $2 million. (Doc. No. 43 at 13 12.) In their reply, Plaintiffs argue that Plaintiff Nassr A. Mohamed has a net worth of less than 14 $2 million and is an owner of a business or other organization worth less than $7 million with less 15 than 500 employees. (Doc. 44 at 7.) The Court found that Plaintiffs’ reply was insufficient and 16 permitted further briefing. (Doc. 46.) Plaintiffs filed further briefing and accompanying 17 declarations (Doc. 49), to which Defendants did not reply. 18 Plaintiffs adequately have established that all Plaintiffs have a net worth of less than $2 19 million and any businesses owned are worth less than $7 million and have fewer than 500 20 employees. See Am. Pac. Concrete Pipe Co. v. N.L.R.B., 788 F.2d 586, 590–91 (9th Cir. 1986) 21 (holding that net worth is determined based on generally accepted accounting principles and is 22 calculated by subtracting total liabilities from total assets); Bolt v. Merrimack Pharms., Inc., 503 23 F.3d 913, 915–17 (9th Cir. 2007) (constructing the term “net worth”); Freeman v. Mukasey, No. 24 04-35797, 2008 WL 1960838, at *2 (9th Cir. Feb. 26, 2008) (unreported) (“An affidavit of the 25 party’s net worth is generally sufficient evidence to prove net worth under EAJA.” (citing 26 Broaddus v. U.S. Army Corps of Eng’rs, 380 F.3d 162, 166–70 (4th Cir. 2004))). 27 /// 28 /// 1 C. Size of Award 2 Fees awarded pursuant to a fee-shifting statute must be reasonable, and the party seeking 3 those fees bears the burden of proving that they are reasonable. See 28 U.S.C. § 2412(d)(2)(A), 4 Hensley, 461 U.S. 424, 437 (1983) (“[T]he fee applicant bears the burden of establishing 5 entitlement to an award and documenting the appropriate hours expended.”). “The Court has an 6 independent duty to review evidence of hours worked and tasks undertaken to determine the 7 reasonableness of the fees requested for the case.” Hill v. Comm’r of Soc. Sec., 428 F. Supp. 3d 8 253, 263 (E.D. Cal. 2019) (citing Hensley, 461 U.S. at 433, 436–47). 9 1. Hourly Rates 10 “EAJA provides that fees may be awarded based upon prevailing market rates for the kind 11 and quality of the services furnished, except that attorney fees shall not be awarded in excess of 12 $125 per hour unless the court determines that an increase in the cost of living or a special factor, 13 such as the limited availability of qualified attorneys for the proceedings involved, justifies a 14 higher fee.” Nadarajah v. Holder, 569 F.3d 906, 911 (9th Cir. 2009) (citing 28 U.S.C. 15 § 2412(d)(2)(A)). That $125 maximum has since increased due to the cost of living; in 2019, it 16 was $205.25. Statutory Maximum Rates Under the Equal Access to Justice, U.S. Courts for the 17 Ninth Circuit https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last accessed 18 Jan. 10, 2022). Rates above the statutory maximum are permissible “based on the special factor 19 of the limited availability of qualified attorneys for the proceedings involved may be awarded 20 under EAJA where the attorneys possess distinctive knowledge and specialized skill that was 21 needful to the litigation in question and not available elsewhere at the statutory rate.” Nadarajah, 22 569 F.3d at 912 (internal quotation marks and citations omitted). Among other requirements, a 23 party seeking an enhanced rate must “show that the requested enhanced rates are in line with 24 those rates prevailing in the community for similar services by lawyers of reasonably comparable 25 skill, experience and reputation.” Id. at 916 (citing Blum v. Stenson, 465 U.S. 886, 895 & n.11 26 (1984)) (internal quotation marks omitted). 27 Plaintiffs seek an award of $68,259.49 based on 144 hours of work among three counsel 28 (ranging from $300–$500 per hour), two law clerks ($150 per hour) and three paralegals ($80 per 1 hour).1 (Doc. 49-1 at 39 ¶ 17.) In their supplemental briefing, Plaintiffs provide a declaration 2 from counsel Julie Goldberg, who states she specializes in immigration law, has been an attorney 3 since 2004, and her “hourly billing rate for 2019 was $500 per hour.” (Doc. 49-1 at 35.) 4 Goldberg also provides evidence that her firm has English and Arabic speakers and provides the 5 only American lawyers with “a law office in Djibouti catering to the specific needs of Yemen 6 nationals who require embassy services at the Djibouti embassy in light of the closure of the Sana 7 Embassy in Yemen.” (Id. at 44.) She also avers, and provides reasoning for, the need for 8 specialization in this matter. She also provides argument for why attorneys were not available at 9 the statutory rate: not only did the matter require specialization and Arabic speakers, but it also 10 required very tight deadlines and weekend work. (Doc. 41 at 30–31.) 11 After Defendants argued that Plaintiffs failed to establish their hourly rates, (Doc. 43 at 12 12–15), the Court provided Plaintiffs another opportunity to establish that they are entitled to an 13 enhanced fee, (Doc. 46). Although Plaintiffs might be able to receive enhanced hourly rates, they 14 have failed to establish what those rates should be. Plaintiffs do not provide any evidence of 15 “rates prevailing in the community for similar services by lawyers of reasonably comparable skill, 16 experience and reputation.” Nadarajah, 569 F.3d at 916. Plaintiffs provide no evidence about 17 two of their attorneys’ qualifications, other than they began to practice law in New York in 2015 18 and 2016. (Doc. 41 at 29 n. 17) This does not establish their skill, experience, and reputation. 19 Accordingly, the Court will award hourly rates for these attorneys at 2019’s statutory maximum 20 rate of $205.25. 21 Next, Plaintiffs seek rates of $80 for paralegals and $150 for law clerks.2 Plaintiffs do not 22 argue or provide any evidence for why these rates are reasonable. Defendants contest only the 23 rate of $150 per hour for law clerks, arguing that this should be reduced to $125 because they are
24 1 The office manager’s billing was included on the time sheet also, but Plaintiff makes no claim 25 for reimbursement for this time. 2 See Greenpeace, Inc. v. Stewart, 2020 WL 2465321, at *8 (9th Cir. May 12, 2020) 26 (unpublished) (awarding fees for certified student law clerks); Patel v. Att’y Gen. of the U.S., 426 F. App'x 116, 119 n.7 (3d Cir. 2011) (“Work conducted by associate attorneys, like that of 27 experts, paralegals and other support staff, is recoverable under the EAJA.” (citing Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 581 (2008)); Armstrong v. Brown, 805 F. Supp. 2d 918, 921– 28 1 not admitted to practice law. The Court agrees and will reduce their hourly rate to $125. See also 2 Ingram v. Oroudijan, 647 F.3d 925, 928 (9th Cir.2011) (finding district court had not abused its 3 discretion by relying in part on its own knowledge and experience regarding customary rates in 4 the legal market); Tate v. Colvin, No. 1:11-CV-01643-SKO, 2013 WL 5773047, at *9 (E.D. Cal. 5 Oct. 24, 2013) (granting award to law clerk time prior to passing the bar at $150/hour). 6 With respect to Plaintiffs’ requested rate of $80/hour for paralegals, paralegal’s rates 7 within the Eastern District range between $75 to approximately $150.00, depending on 8 experience. Schmidt v. City of Modesto, 2018 WL 6593362, at *6 (E.D. Cal. Dec. 14, 2018) (“the 9 reasonable rate of compensation for a paralegal would be between $75.00 to $150.00 per hour 10 depending on experience”); see also Phillips 66 Co. v. Cal. Pride, 2017 WL 2875736, at *15 11 (E.D. Cal. July 6, 2017) (identifying the same range of hourly rates); Trujillo v. Singh, 2017 WL 12 1831941 at *3 (E.D. Cal. May 8, 2017) (finding requested hourly rates of $95-115 were 13 reasonable within the Eastern District). The requested rate of $80 per hour is at the low end of 14 the range. However, given the overall inadequacy of the support in this motion, the Court awards 15 $75 per hour. 16 2. Hours Reasonably Expended 17 A fee applicant must provide records documenting the tasks completed and the amount of 18 time spent. Hensley, 461 U.S. at 424 (1983). There are several relevant reasons that courts 19 reduce the number of requested hours. 20 First, a court may reduce a fee award when “documentation of hours is inadequate.” 21 Hensley, 461 U.S. at 433. Counsel has a burden to document the hours expended and do so in “in 22 a manner that will enable a reviewing court to identify distinct claims.” Hensley, 461 U.S. at 437. 23 The Court may reduce hours to offset the “poorly documented” billing. Fischer v. SJB-P.D. Inc., 24 214 F.3d 1115, 1121 (9th Cir. 2000); see also Mendez v. County of San Bernardino, 540 F.3d 25 1109 (9th Cir. 2008) (finding district courts have broad discretion to reduce the number of hours 26 included in the fee award where the billing records are vague, insufficiently descriptive, or 27 inflated). This Court and others in the Ninth Circuit have reduced fee awards where the billing 28 entries were too vague to conduct “a meaningful review” or determine whether the time expended 1 was reasonable. See, e.g., McCarthy v. R.J. Reynolds Tobacco Co., 2011 WL 4928623, at *4 2 (E.D. Cal. Oct. 17, 2011) (reducing time for a fee award where “most of the entries refer only 3 generally to ‘legal research’ and ‘conversations with [co-counsel]’ without identifying the subject 4 of the research or conversations”); Nolan v. City of Los Angeles, 2014 WL 12564127, at *7 (C.D. 5 Cal. Feb. 10, 2014) (criticizing “entries that merely indicate that an email was sent or that a phone 6 call was made without describing in any way the reason for or topic of the particular 7 correspondence” and reducing the lodestar). 8 Second and relatedly, matters can be improperly recorded. One form of improper 9 recording is “[b]lock billing, which bundles tasks in a block of time, [and thus] makes it 10 extremely difficult for a court to evaluate the reasonableness of the number of hours expended.” 11 Aranda v. Astrue, 2011 U.S. Dist. LEXIS 63667, at *13 (D. Ore. June 8, 2011); see also Welch v. 12 Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (“block billing makes it more difficult to 13 determine how much time was spent on particular activities”). Accordingly, the Ninth Circuit has 14 explained that, where time is billed in “blocks,” the Court may “simply reduce[] the fee to a 15 reasonable amount.” Fischer, 214 F.3d at 1121; see also Welch, 480 F.3d at 948 (“We do not 16 quarrel with the district court’s authority to reduce hours that are billed in block format.”). 17 Third, “purely clerical or secretarial tasks should not be billed at a paralegal or [lawyer’s] rate, 18 regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). As a 19 result, courts have approved of elimination of clerical tasks from fee awards. See, e.g., 20 Nadarajah, 569 F.3d at 921; see also Harris v. L & L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 21 1997) (approving the deduction of hours spent on secretarial tasks from the lodestar calculation). 22 Such tasks may include: “creating indexes for a binder; filing emails, memoranda, and other 23 correspondence; updating the case calendar with new dates; copying, scanning, and faxing 24 documents; and filing or serving documents.” Moore v. Chase, Inc., 2016 (E.D. Cal. July 7, 25 2016) (citing Prison Legal News v. Schwarzenegger, 561 F.Supp.2d 1095, 1102 (N.D. Cal. 26 2008)). 27 Defendants argue that the number of hours should be reduced by (1) pre-litigation work, 28 other than time researching matters for the complaint and drafting the complaint itself (the first 1 | eight entries) and (2) work conducted after the visas were awarded on September 30, 2019. (Doc. 2 | 43 at 12 & 15.) In addition, Defendants object to the $3,567 travel expenses awarded because 3 | “the litigation in this case was entirely telephonic over the five days of active litigation” and 4 | therefore there is no support for travel expenditures. (Ud. at 15.) Plaintiffs did not address these 5 | arguments, nor did they adequately detail their expenditures. Accordingly, the Court will reduce 6 | the hours and fee request accordingly. 7 Finally, it appears that some matters were excessively or double billed. For instance, on 8 || September 20 and 23, a law clerk spent a total of 14 hours on researching and drafting the 9 | summons complaint. On September 23 and 24, Goldberg spent two hours supervising the 10 || preliminary research and eight hours reviewing and signing off on the draft summons and 11 | complaint. This total of 24 hours appears to be excessive, and the Court will reduce the hours to a 12 | reasonable level. Additionally, on September 28, there are two entries by counsel Mehgan 13 | Gallagher for “research and drafting.” These amounts are either too vague or are double-billed, 14 | and the Court will therefore reduce the amount billed. 15 At the appendix to this order, the Court has included a table showing Plaintiffs’ request 16 | and the amounts awarded through September 29, 2019 and any reasons for reduction in the hours 17 | billed. The Court has chosen that date because on September 30, Defendants filed a status report 18 | indicating that they were granting the requested relief. 19 CONCLUSION 20 Accordingly, Plaintiffs’ motion for attorneys’ fees (Doc. 41) is granted in part, in the 21 | amount of $25,952.18. 22 | IT IS SO ORDERED. 23 Dated: _ January 18, 2022 ( Youu | lw In 24 TED STATES DISTRICT JUDGE 25 26 27 28 10
1 APPENDIX Rate Hours Final Final 2 Date Action sought sought rate hours Reason Award Paralegal Ali Abdo e- 3 8/26/2019 mail correspondence $80 0.5 $75.00 0 Pre-litigation $0.00 with U.S. Embassy 4 Paralegal Ali Abdo e- 5 8/27/2019 mail correspondence $80 0.33 $75.00 0 Pre-litigation $0.00 with U.S. Embassy 6 Paralegal Ali Abdo e- 8/29/2019 mail correspondence $80 0.33 $75.00 0 Pre-litigation $0.00 7 with U.S. Embassy Paralegal Ali Abdo e- 8 9/3/2019 mail correspondence $80 0.25 $75.00 0 Pre-litigation $0.00 with U.S. Embassy 9 Paralegal Ali Abdo 9/3/2019 $80 4 $75.00 0 Pre-litigation $0.00 10 DS-260 preparation Paralegal Ali Abdo e- 11 9/4/2019 mail correspondence $80 0.25 $75.00 0 Pre-litigation $0.00 with U.S. Embassy 12 Law Clerk Melani Di Meglio email 13 9/16/2019 correspondence with $150 0.33 $125.00 0 Pre-litigation $0.00 U.S. Embassy 14 Law Clerk Melani Di Meglio email 15 9/18/2019 correspondence with $150 0.33 $125.00 0 Pre-litigation $0.00 U.S. Embassy 16 Federal Litigation 9/20/2019 department strategy $500 1 $0.00 0 Vague $0.00 17 meeting Law Clerk Robert Excessive 18 9/20/2019 Ruano initial $150 6 $125.00 3 $375.00 complaint research 19 Paralegal Amir Ali Excessive 9/23/2019 evidence preparation $80 8.25 $75.00 5 $375.00 20 and compilation Law Clerk Robert Block billing 21 Ruano prepared or excessive Summons and 22 Complaint research, 9/23/2019 outline, and initial $150 8 $125.00 5 $625.00 23 draft under the supervision of 24 Attorney Julie Goldberg 25 Managing Partner Julie Goldberg 9/23/2019 $500 2 $205.25 2 $410.50 26 supervised preliminary research 27 Federal Litigation Vague / 9/24/2019 department strategy $500 2 $0.00 0 $0.00 Duplicative meeting 28 1 Date Action Rate Hours Final Final Reason Award sought sought rate hours 2 Senior Attorney Eric Hisey drafting motion 3 9/24/2019 for TRO and memo in $450 10 $205.25 10 $2,052.50 support. Supervising 4 evidence prep Paralegal Amir Ali 5 affidavit Clerical / 9/24/2019 $80 9 $75.00 4 $300.00 taking/preparation and Block billing 6 evidence tabbing Law Clerk Robert 7 9/24/2019 Ruano communication $150 2 $125.00 0.5 Vague $62.50 with opposing Counsel 8 Law Clerk Robert 9/24/2019 Ruano drafting Ex $150 1 $125.00 1 $125.00 9 Parte Proposed Order 10 Law Clerk Robert 9/24/2019 Ruano drafted Atty $150 1 $125.00 1 $125.00 11 Goldberg Affidavit Law Clerk Robert Excessive 12 9/24/2019 Ruano legal research $150 1.5 $125.00 0.5 $62.50 re:local rules 13 Law Clerk Robert 9/24/2019 Ruano drafted Civil $150 0.33 $125.00 0 Clerical $0.00 14 Case Cover Sheet Managing Julie 15 Goldberg reviewed 9/24/2019 $500 3 $205.25 1 Excessive $615.00 and revised initial 16 draft of complaint Attorney Julie 3 Clerical / 17 Goldbreg final draft Block billing 9/24/2019 $500 5 $205.25 $615.75 complaint and signed / Excessive 18 off on summons. Paralegal Chris Lewis 19 evidence, converting Clerical / 9/24/2019 $80 2.5 $75.00 1 $75.00 to pdf and e-filing Block billing 20 prep Law Clerk Robert 21 9/24/2019 Ruano e-filing $150 1.25 $125.00 0 Clerical $0.00 Office Manager Karla 22 Anzora printing 9/24/2019 $150 3 0 0 Vague $0.00 remotely for hard 23 copies in Fresno. Paralegal Amir Ali 24 9/25/2019 client contact $80 2 $75.00 2 $150.00 25 9/25/2019 Paralegal Amir Ali $80 0.5 $75.00 0 Court contact $0.00 Court contact 26 Paralegal Amir Ali Clerical / 9/25/2019 finalized and scanned $80 1 $75.00 0.5 $37.50 Block billing 27 evidence Law Clerk Robert 28 9/25/2019 Ruano reformatting Ex $150 1.75 $125.00 0 Clerical $0.00 1 Date Action Rate Hours Final Final Reason Award sought sought rate hours 2 Paralegal Chris Lewis caption corrections 3 9/25/2019 and e-filing $80 2 $75.00 0 Clerical $0.00 Complaint, TRO 4 motion, Summons Managing Partner 5 Julie Goldberg 9/25/2019 supervising $500 0.33 $205.25 0 Clerical $0.00 6 corrections and e- filing. 7 Law Cerk Robert Ruano phone call with 9/25/2019 $150 0.33 $125.00 0 Court contact $0.00 8 Fresno Court Clerk Tim 9 Law Cerk Robert Ruano phone call with 9/25/2019 $150 0.1 $125.00 0 Court contact $0.00 10 Fresno Court Clerk Tim 11 Law Clerk Robert Ruano phone call with 9/25/2019 $150 0.1 $125.00 0 Court contact $0.00 12 Judicial Assistant Astoosa Esmail 13 Law Clerk Robert 9/25/2019 Ruano email $150 0.5 $125.00 0 Vague $0.00 14 correspondence Managing Partner 15 9/25/2019 Julie Goldberg review $500 0.25 $205.25 0.25 $51.31 of Scheduling Conference Order 16 Managing Partner 17 9/25/2019 Julie Goldberg review $500 0.1 $205.25 0.1 $20.53 of Docket Entry 18 Managing Partner 9/25/2019 Julie Goldberg review $500 0.1 $205.25 0 Duplicative $0.00 19 of Docket Entry Managing Partner 20 9/25/2019 Julie Goldberg review $500 0.33 $205.25 0 Duplicative $0.00 of minute order 21 Managing Partner 22 Julie Goldberg and 9/26/2019 Office Manager Karla $650 3.5 $205.25 3.5 $718.38 23 Anzora Travel from Los Angeles to Fresno 24 Managing Partner Julie Goldberg and 25 9/26/2019 Office Manager Karla $650 1 $205.25 1 $205.25 Anzora trial prep 26 Managing Partner 27 9/26/2019 Julie Goldberg and $650 1.5 $205.25 1.5 $307.88 Karla Anzora attended Federal Court hearing 28 1 Date Action Rate Hours Final Final Reason Award sought sought rate hours 2 Attorney Mehgan Block 9/25/2019 Gallagher research and $300 4 $205.25 3.6 $738.90 3 paralegal supervision billing/Vague 4 Paralegal Chris Lewis Clerical / 9/26/2019 preparation and e- $80 2 $75.00 1.8 $135.00 Block billing 5 filing of Exhibit QQ Managing Partner 6 Julie Goldberg Clerical / 9/26/2019 supervising $500 0.5 $205.25 0.4 $82.10 Block billing 7 preparations and e- filing. 8 Managing Partner Julie Goldberg review 9 9/26/2019 of docket entry, $500 0.33 $205.25 0.33 $67.73 opposition to Motion for TRO 10 Federal Litigation 9/26/2019 department strategy $500 0.5 0 Vague $0.00 11 meeting 12 Law Clerk Robert 9/26/2019 Ruano communication $150 1 $125.00 0.5 Excessive $62.50 13 with opposing Counsel Law Clerk Robert 14 9/26/2019 Ruano CA Lottery $150 3 $125.00 3 $375.00 Research 15 Law Clerk Robert 9/26/2019 Ruano drafting oral $150 2 $125.00 2 $250.00 16 argument memo Law Clerk Robert 17 9/26/2019 Ruano 3rd party $150 1 $125.00 1 $125.00 research 18 9/26/2019 Law Clerk Robert $150 1.5 $125.00 1.5 $187.50 Ruano venue research 19 Law Clerk Robert 9/26/2019 Ruano drafted memo $150 1 $125.00 1 $125.00 20 re: venue Attorney Mehgan 21 9/26/2019 Gallagher research on $300 1 $205.25 1 $205.25 COA strategy 22 Managing partner 9/26/2019 Julie Goldberg review, $500 0.75 $205.25 0.75 $153.94 23 edit and drafting Senior Attorney Eric 24 Hisey research and 9/26/2019 $450 14 $205.25 14 $2,873.50 drafting for 25 supplemental briefing Plaintiff's reply to 26 9/26/2019 response to TRO 0 $0.00 Law Clerk Robert 27 9/27/2019 Ruano review of $150 0.5 $125.00 0.5 $62.50 docket entry 28 1 Date Action Rate Hours Final Final Reason Award sought sought rate hours 2 Managing Partner 9/27/2019 Julie Goldberg review $500 0.1 $205.25 0.1 $20.53 3 of docket entry Law Clerk Robert 4 Ruano Djibouti 9/27/2019 $150 0.5 $125.00 0.5 $62.50 Embassy hours 5 evidence exhibit Law Clerk Robert 6 9/27/2019 Ruano drafted reply to $150 2 $125.00 2 $250.00 EOT Motion 7 Managing Partner 8 Julie Goldberg and 9/27/2019 Office Manager Karla $650 3.5 $205.25 3.5 $718.38 Anzora Travel from 9 Fresno to Los Angeles 10 Law Clerk Robert 9/27/2019 Ruano legal research $150 0.5 $125.00 0.5 $62.50 11 re:Fam Code Law Clerk Robert 12 9/27/2019 Ruano drafted $150 0.25 $125.00 0 Clerical $0.00 certificate of service 13 Managing Partner Julie Goldberg review 14 9/27/2019 and edit of EOT $500 1 $205.25 0.9 Block billing $184.73 motion final draft. 15 Approval of Certificate of Service 16 Law Clerk Robert 9/27/2019 Ruano filed respone to $150 0.5 $125.00 0 Clerical $0.00 EOT motion 17 Law Clerk Robert Ruano reviewed 18 9/27/2019 $150 0.25 $125.00 0.25 $31.25 court's order on EOT motion 19 Managing Partner 20 9/27/2019 Julie Goldberg $500 0.2 $205.25 0.2 $41.05 reviewed court order
21 Paralegal Amir Ali 9/27/2019 $80 5 $75.00 3 $225.00 case law research 22 Paralegal Amir Ali 9/27/2019 venue/standing $80 2 $75.00 1 $75.00 23 research Attorney Mehgan 24 9/27/2019 Gallagher research and $300 4 $205.25 4 $821.00 drafting 25 Senior Attorney Eric Hisey research and 9/27/2019 $450 8.5 $205.25 8.5 $1,744.63 26 drafting for supplemental briefing 27 Law Clerk Robert Duplicative 9/28/2019 Ruano reviewed $150 0.2 $125.00 0.2 $0.00 or Excessive 28 docket entry 1 Date Action Rate Hours Final Final Reason Award sought sought rate hours 2 Managing Partner 9/28/2019 Julie Goldberg $500 0.2 $205.25 0.2 $41.05 3 reviewed docket entry Law Clerk Robert 4 Duplicative 9/28/2019 Ruano reviewed $150 0.2 $125.00 0 $0.00 or Excessive docket entry 5 Managing Partner 6 9/28/2019 Julie Goldberg $500 0.2 $205.25 0.2 $100.00 reviewed docket entry 7 Law Clerk Robert 9/28/2019 Ruano legal research $150 2 $125.00 2 $250.00 8 MTC Law Clerk Robert 9 9/28/2019 Ruano drafting Motion $150 2 $125.00 2 $25.00 to Compel 10 Law Clerk Robert Ruano reviewed 9/28/2019 $150 1 $125.00 0 Duplicative $0.00 11 Przhebelskaya Court Order 12 Law Clerk Robert 9/28/2019 Ruano authority $150 0.5 $125.00 0 Duplicative $0.00 research 13 Law Clerk Robert 9/28/2019 Ruano formatted $150 0.25 $125.00 0 Clerical $0.00 14 Motion to Compel Attorney Mehgan 15 Duplicative 9/28/2019 Gallagher research and $300 4 $205.25 0 $0.00 or Excessive drafting 16 Attorney Mehgan 9/28/2019 Gallagher research and $300 6 $205.25 6 $1,231.50 17 drafting Paralegal Chris Lewis 18 9/28/2019 e-filing Motion to $80 1 $75.00 0 Clerical $0.00 Compel 19 Law Clerk Robert 9/28/2019 Ruano reviewed $150 0.25 $125.00 0 Duplicative $0.00 20 Minute Order Managing Partner 21 Julie Goldberg 9/28/2019 $500 0.25 $205.25 0.25 $51.31 reviewed Minute 22 Order Senior Attorney Eric 23 Hisey legal research 9/28/2019 $450 11 $205.25 11 $2,257.75 and drafting regarding 24 sanctions Paralegal Amir Ali 25 9/29/2019 Diversity Lottery $80 4 $75.00 4 $300.00 research 26 Paralegal Amir Ali 9/29/2019 affidavit $80 2 $75.00 2 $150.00 27 taking/preparation 28 1 Date Action Rate Hours Final Final Reason Award sought sought rate hours 2 Attorney Mehgan 9/29/2019 Gallagher research and $300 8 $205.25 8 $1,640.00 3 drafting Law Clerk Robert 4 9/29/2019 Ruano reviewed $150 0.33 $125.00 0 Duplicative $0.00 or Excessive docket entry 5 Managing Partner 9/29/2019 Julie Goldberg $500 0.33 $205.25 0.33 $67.73 6 reviewed docket entry 7 Managing Partner 9/29/2019 Julie Goldberg review, $500 2 $205.25 2 $410.50 edit and finalize Brief 8 Law Clerk Robert 9 9/29/2019 Ruano filed Brief in $150 0.5 $125.00 0 Clerical $0.00 support of Sanctions 10 Law Clerk Robert Duplicative 9/29/2019 Ruano reviewed $150 0.33 $125.00 0 $0.00 or Excessive 11 docket entry Managing Partner 12 9/29/2019 Julie Goldberg $500 0.33 $205.25 0.33 $165.00 reviewed docket entry 13 Paralegal Amir Ali research for response 9/29/2019 $80 4 $75.00 4 $300.00 14 to Defendant's affidavit 15 Senior Attorney Eric Hisey research and 16 9/29/2019 drafting response to $450 7 $205.25 7 $1,436.75 OC non- compliance 17 Managing Partner Julie Goldberg 18 9/29/2019 drafting Response to $500 2 $205.25 2 $410.50 Defense Declaration 19 Law Clerk Robert 9/29/2019 Ruano filed Response $150 $125.00 0 Clerical $0.00 20 to Declaration Law Clerk Robert 21 9/29/2019 Ruano reviewed court $150 0.25 $125.00 0 Duplicative $0.00 or Excessive order 22 Managing Partner 23 9/29/2019 J reu vli ie e wG eo dld Mbe ir ng u te $500 0.25 $205.25 0.25 $125.00 Order 24 Printing and Copying $1,600 n/a $0.00 Vague $0.00 costs 25 Travel Expenses (gas, $3,567 n/a $0.00 Vague $0.00 flights, hotels, etc.) 26 Total $25,952.18 27
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