Nadarajah v. Holder

569 F.3d 906

Ahilan NADARAJAH, Petitioner-Appellant, v. Eric HOLDER Jr., Attorney General; et al., Respondents-Appellees.

No. 05-56759.

United States Court of Appeals, Ninth Circuit.

June 9, 2009.

Ahilan Thevanesan Arulanantham, ACLU Foundation of Southern California, Los Angeles, CA, John David Blair-Loy, Esquire, Legal Director, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, for Petitioner-Appellant.

Edward John Duffy, Trial, Christopher C. Fuller, Esquire, Senior Litigation Counsel, DOJ-U.S. Department of Justice, Washington, DC, for Respondents-Appellees.

Before: SIDNEY R. THOMAS, RICHARD A. PAEZ, and RICHARD C. TALLMAN, Circuit Judges.

Order; Partial Concurrence and Partial Dissent by Judge TALLMAN.

ORDER

The government's motion for reconsideration of the Appellate Commissioner's September 29, 2008 order is denied. The attached Appellate Commissioner's September 29, 2008 order awarding attorneys' fees in the amount of $156,778.68 in favor of appellant Ahilan Nadarajah and against appellees Eric H. Holder Jr., et al., is approved and remains in effect.

ATTACHMENT

Filed September 29, 2008

Before: Peter L. Shaw, Appellate Commissioner

I Background

Ahilan Nadarajah, a native of Sri Lanka, was detained upon arrival in the United States in October 2001. Nadarajah initially was granted parole but was unable to pay the $20,000 bond. Nadarajah filed applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), based on his membership in the Tamil ethnic minority. Twice Immigration Judges ("IJs") granted Nadarajah asylum, but the government appealed, and Nadarajah remained in detention. In August 2004, Nadarajah's counsel attempted to pay the bond, but the government refused to parole Nadarajah according to the 2001 terms. In September 2004, Nadarajah's requests for parole were denied on the ground that he no longer met the bond criteria, and Nadarajah filed this petition for a writ of habeas corpus in the district court.

After the district court habeas corpus petition was pending more than one year, Nadarajah filed a Ninth Circuit petition for a writ of mandamus to compel a disposition. The mandamus petition was assigned docket number 05-75841. After the mandamus petition was filed, the district court denied Nadarajah's petition for a writ of habeas corpus, and Nadarajah withdrew the mandamus petition as moot.

Nadarajah filed this appeal, number 05-56759, from the district court's denial of the petition for a writ of habeas corpus. This court reversed the district court's decision, determining that the immigration agency abused its discretion by denying Nadarajah's request for parole. See Nadarajah v. Gonzales, 443 F.3d 1069, 1082-84 (9th Cir.2006). The court also granted Nadarajah's motion for release pending appeal and ordered his immediate release from detention. Id.

Nadarajah filed a motion and an amended motion for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). The government opposed the amended motion, and Nadarajah filed a reply. The court granted Nadarajah's request for attorneys' fees, and referred to the Appellate Commissioner the determination of the amount of the fee award. See 9th Cir. R. 39-1.9. Nadarajah filed a motion to correct the calculation of the requested attorneys' fees, which the government did not oppose. Nadarajah's motion to correct the calculation is granted, and the corrected calculation shall be employed here. The parties subsequently stipulated to the submission of breakdowns of Nadarajah's fee request by forum and hourly rates.

II Analysis

The amount of attorneys' fees awarded under EAJA must be reasonable. See 28 U.S.C. § 2412(d)(1)(A), (2)(A). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Nadarajah requests fees for the representation in all forums totalling $195,959.33. This represents 861.5 hours of work by private attorney, Judy Rabinovitz, Esq., and by five attorneys, three paralegals, and three law student interns from the American Civil Liberties Union of Southern California ("ACLU"). The requested hourly rates range from $75 to $500.

Nadarajah's ACLU counsel, Ahilan T. Arunalantham, Esq. states in a declaration that he reduced by 5 percent the hours billed by ACLU attorneys and paralegals and by 20 percent the hours billed by ACLU law student interns. (The acrossthe-board reduction was not applied to Rabinovitz's work.) On the ACLU's computerized time sheets, however, the 5 percent and 20 percent reductions were applied to the hourly rates, not to the hours. In addition, Arulanantham applied a 20 percent, not a 5 percent, reduction to his hourly rate for the fee reply. This determination of the reasonable fees uses the hours actually reflected in the time sheets, which are the hours actually requested by Nadarajah.

Nadarajah has not submitted Ninth Circuit Form 9. See 9th Cir. R. 39-1.6. Instead, Nadarajah requests fees as follows:

Nadarajah Market Rate Totals
Billable Billable
Amount Hours
9th Circuit
Attorneys & Paralegals on
Timeslips: $ 70,167.12 266.40
Clerks/Interns on Timeslips $    204.00 3.40
Judy Rabinovitz $ 18,125.00 36.25
                                       ___________    _______
Total: $ 88,496.12 306.05
BIA
Attorney & Paralegals on
Timeslips: $  9,976.31 40.60
Clerks/Interns on Timeslips: $         0 
                                       ___________    _______
Total: $ 10,132.21 40.60
District Court
Attorneys & Paralegals on
Timeslips: $ 38,045.80 153.50
Clerks/Interns on Timeslips: $         0 
Judy Rabinovitz $  6,725.00 13.45
                                       ___________    _______
Total: $ 44,770.80 166.95
Fees
Attorneys & Paralegals on
Timeslips: $ 13,356.60 56.60
Clerks/Interns on Timeslips: $         0 
                                       ___________     ______
Total: $ 13,356.60 56.60
Immigration Judge
Attorneys & Paralegals on
Timeslips: $ 24,804.34 95.50
Clerks/Interns on Timeslips: $  3,360.00 56
                                       ___________     ______
Total: $ 28,164.34 151.50
Mandamus
Attorneys & Paralegals on
Timeslips: $  4,013.16 20.10
Clerks/Interns on Timeslips: $  7,182.00 119.70
                                       ___________     ______
Total: $ 11,195.16 139.80
Totals
9th Circuit: $ 88,496.12 306.05
BIA $  9,976.31  40.60
District Court $ 44,770.80 166.95
Fees $ 13,356.60  56.60
Immigration Judge $ 28,164.34 151.5
Mandamus $ 11,195.16 139.80
                                       ___________     ______
Grand Total: $195,959.33 861.50

A. Hourly Rates

EAJA provides that fees may be awarded based upon prevailing market rates for the kind and quality of the services furnished, except that attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. See 28 U.S.C. § 2412(d)(2)(A).

Nadarajah requests an hourly rate of $500, based on the special factor of the limited availability of qualified attorneys for the proceedings involved, for 49.7 hours of work by private immigration attorney Rabinovitz.

Nadarajah requests hourly rates of $300 for 2004, $315 for 2005, and $335 for 2006, based on the special factor of the limited availability of qualified attorneys for the proceedings involved, for 494 hours of work by ACLU immigration attorneys Arulanantham and Ranjana Natarajan, Esq.

Nadarajah requests the statutory maximum hourly rate, adjusted for increases in the cost of living, of $162.50 for 9.5 hours of work in 2006, on oral argument preparation, by ACLU non-immigration attorneys Catherine Lhamon, Esq., Clare Pastore, Esq., and Mark Rosenbaum, Esq.

Nadarajah requests hourly rates of $100 for 129.2 hours of work by ACLU paralegals and $75 per hour for 179.1 hours of work by ACLU law student interns.

Nadarajah's requested hourly rates do not reflect the 5 percent and 20 percent reductions in the hourly rates included in the calculation of the total fees requested and in the document entitled Nadarajah's Market Rate Totals.

The government objects to the award of fees at the prevailing market hourly rates requested for Rabinovitz, Arulanantham, and Natarajan, contending that the statutory maximum hourly rate adjusted for cost-of-living increases should be awarded for all attorneys.

1. Special Factor Enhancement

Enhanced hourly rates based on the special factor of the limited availability of qualified attorneys for the proceedings involved may be awarded under EAJA where the attorneys possess "distinctive knowledge" and "specialized skill" that was "needful to the litigation in question" and "not available elsewhere at the statutory rate." Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir.2005); Love v. Reilly, 924 F.2d 1492, 1498 (9th Cir.1991); see also Pierce v. Underwood, 487 U.S. 552, 572, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ("Examples ... would be an identifiable practice specialty such as patent law, or knowledge of foreign law or language.").

a. Distinctive Knowledge and Specialized Skill

Nadarajah demonstrates, and the government does not dispute, that Rabinovitz, Arulanantham, and Natarajan have distinctive knowledge and specialized skill in immigration law and, in particular, constitutional immigration law and litigation involving the rights of detained immigrants.

Rabinovitz's declaration states that she is a 1985 graduate of New York University Law School and, since 1988, a staff attorney at the ACLU Immigration Rights Project in New York. Nadarajah contends that Rabinovitz is "the leading attorney in the nation litigating cases involving the rights of detained...