Muhammad Ghulamhaider Gwaduri Rahim Muhammad Gwaduri Nadia Muhammad Gwaduri v. Immigration and Naturalization Service

362 F.3d 1144, 2004 U.S. App. LEXIS 5125, 2004 WL 527862

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2004
• Docket: 02-70629; Agency A71-842-149, A71-842-148, A71-842-147
• Status: Published

Opinions

ORDER

On November 6, 2003, petitioners’ counsel filed a timely application for fees and other expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The government’s opposition to this motion was due on November 20, 2003. See Ninth Cir. Rule 39-1.7 (“Any party from whom attorney’s fees are requested may file an objection to the request ... within 14 days after, service of the request.”). The government failed to take any action until December 30, 2003, nearly six weeks after the due date, when it filed a response accompanied by a motion to file out of time.

Under this circuit’s practice, had it not been for an error by the Office of the Clerk of the Court, petitioners’ application would have been granted long before the government’s motion and response ever arrived. Ordinarily, after a request for fees under the EAJA is received in the Clerk’s Office, it is held for 21 days pending the possible receipt of an objection from the United States.¹ If during this period the Clerk receives a timely objection from the government, she forwards the application and the response to the panel that decided the underlying appeal. But if the government fails timely to file an objection to the fee application, the uncontested application is forwarded to a motions attorney, who grants it. See Ninth Cir. Gen. Order 6.3.a. (“The Clerk also may dispose of motions enumerated in Appendix A or may in his or her discretion refer any of those motions to a[n] ... appropriate motions attorney...Ninth Cir. Gen. Order App. A (“Motions attorneys shall have the same authority to act on procedural motions as the Clerk, and shall additionally be authorized to issue ... orders granting unopposed motions for attorney fees.... ”).

Although we would likely have granted an extension of time had one timely been requested, the excuse offered by the government’s attorney, that she was busy with other work and so was unable to file a request for such an extension or a timely motion in opposition, is inadequate. In this regard, we note that government counsel does not assert that the other attorneys in her office were also too busy to file an opposition on the merits, let alone a motion for an extension of time. There is simply nothing in the significantly delinquent motion for filing out of time that justifies the government’s lengthy silence in this matter. Accordingly, the motion to file out of time is denied.

Given the overwhelming volume of work which today confronts our courts, more than 12,500 filings in 2003 in the Ninth Circuit alone,² we do not generally favor requiring judges in fee application proceedings to search out and research arguments that the other side does not make or sua sponte to initiate an opposition to a fee request where none is offered by the party affected, at least in the absence of a showing of injustice or hardship. See Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7-8 (1st Cir.1990). It is well-within our discretion to determine that the government’s lack of timely opposition is tantamount to a concession that its position in the litigation was not substantially justified. See United States v. Eleven Vehicles, Their Equipment, & Accessories, 200 F.3d 203, 207, 214-15 (3d Cir.2000) (stating that in its discretion the district court may grant a motion for attorney’s fees under the EAJA as an uncontested motion where the government fails to timely submit an opposition to such motion under a local rule); see also FDIC v. Bender, 127 F.3d 58, 62, 68 (D.C.Cir.1997) (stating that the district court was justified in granting the FDIC’s motion regarding fees on the ground that the opposition was filed beyond the time limit prescribed by local rule and therefore the FDIC’s motion was “conceded”). Alternatively, the court may treat the government’s non-opposition as constituting a failure to offer a basis for a finding of substantial justification and, thus, a failure to carry its burden of proof. See, e.g., Libas, Ltd. v. United States, 314 F.3d 1362, 1366 (Fed.Cir.2003) (holding that a court may grant the motion for attorney’s fees under the EAJA “by relying on the government’s failure to timely submit any evidence or explanation to carry its burden of proving its position was substantially justified as an admission” that its position was not substantially justified). Here, as a matter of discretion and pursuant to our authority to enforce our procedural rules, we grant Gwaduri’s attorney’s fees motion.

Our dissenting colleague, who has requested publication of this order, does not disagree with us that the court has the authority to grant an unopposed motion; nor could he do so credibly given existing case law and circuit practice, see supra. He does not assert that there is any precedent in this Circuit, or in any other for that matter, that would require us to deny such a motion. Indisputably, there is none. The matter is beyond question within the courts’ discretion.³ We see no reason to deviate in this case from our general practice of granting unopposed motions for attorney’s fees under Gen. Order App. A where, as here, the out-of-time opposition we reject arrived at this court only after an inordinate delay, and the proffered explanation for that delay is one that we all agree is entirely “inadequate.” Dissent, infra, p. 1148. We also note that the dissent’s distinction between our normal practice and the “administrative oversight” here is irrelevant for our analysis. Dissent, infra, p. 1149-50. Even if the ordinary process had occurred, and the government had been able to seek reconsideration of the motions attorney’s decision to grant an unopposed fee request with the Appellate Commissioner or a single judge of this court, the Appellate Commissioner or Circuit Judge would also have had discretion to grant the fee award on the basis of the government’s untimely opposition. Accordingly, we exercise our discretion to grant the motion, although we reduce the fees to the statutory cap and award a total amount of $6,750. See Eleven Vehicles, 200 F.3d at 212-13 (stating that a sua sponte judicial reduction of a fee request is appropriate where predicated on a legal as opposed to a factual challenge).

The government’s motion to file out of time is DENIED as untimely. The petitioners’ motion for attorneys fees is GRANTED as MODIFIED.

1 . The additional seven days is to ensure that an otherwise timely filed petition has not somehow been misplaced in the internal mail system.

2 . See, e.g., Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003: Hearing Before the Subcomm. on the Courts, the Internet, and the Intellectual Property of the House Comm, on the Judiciary, 108th Cong. 14 (October 21, 2003 (statement of Hon. Diarmuid F. O'Scannlain)).

3 . Courts have consistently exercised their discretion to grant motions on collateral issues, on the basis that, in failing to respond, the opposing party has consented to such action by the court. See United States v. Warren, 601 F.2d 471, 473-74 (9th Cir.1979) (district court did not err in basing its decision to dismiss the indictments on a local rule, which stated that the "failure to file a brief or memorandum of points and authorities in support of or in opposition to any motion shall constitute a consent of the party failing to file such a brief or memorandum to the denial or granting of the motion”); Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C.Cir.1989) (appellant who failed to file response to a motion in limine within time prescribed by local rule "is deemed to have waived his opposition” to the motion and "may not now complain on appeal”); United States v. Patten, 826 F.2d 198, 199 (2d Cir.1987) (holding that having failed to oppose the government’s motion to allow dismissal of the original indictment without prejudice, the defendant could not claim error in the district court's decision to grant it); Sayers v. Stewart Sleep Ctr. Inc., 140 F.3d 1351, 1354 (11th Cir.1998) (holding that the district court acted within its discretion in upholding a cost award made by a court clerk on the basis that the opposing parties failed to timely file a memorandum in opposition).

Ironically, much of this burdensome caseload tracks that of the very Government attorney responsible for replying to the Gwaduris’ fee application. See id. at 15 ("Along with a double-digit growth in overall appeals, we have seen a marked upswing in immigration appeals.... For court year 2003, we received around eighty immigration appeals each and every week. Indeed, immigration appeals now make up about a third of the Ninth Circuit’s docket.”).