Free Mandate of 9th Circuit - District Court of Arizona - Arizona

FILED
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUN 30 2008
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

DIEGO MIGUEL-MIGUEL, Petitioner - Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent - Appellee.

No. 05-15900 D.C. No. CV-04-759-JWS District of Arizona (Phoenix)

ORDER

Before: Peter L. Shaw, Appellate Commissioner I Background Petitioner Diego Miguel-Miguel, a native of Guatemala, applied for withholding of removal. The Immigration Judge ("IJ") denied withholding, finding that Miguel-Miguel's 1999 conviction for selling $20 worth of cocaine was a particularly serious crime, and the Board of Immigration Appeals ("BIA") affirmed. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 944 (9th Cir. 2007). Miguel-Miguel sought review by this court, which determined that the retroactive application of an Attorney General opinion establishing a presumption that drug trafficking is a particularly serious crime was impermissible and remanded to the BIA for further proceedings. Id. at 952-53.

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No. 05-15900 Miguel-Miguel filed a motion for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). The government filed an opposition, and Miguel-Miguel filed a reply. The court granted Miguel-Miguel's application for attorneys' fees and referred to the Appellate Commissioner the determination of the award amount. II Analysis "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 (1983). Miguel-Miguel requests attorneys' fees totalling $15,679.96 for 95.75 hours of work at the EAJA statutory maximum hourly rate adjusted for increases in the cost of living. 1. Number of Hours The government contends that the number of hours requested is excessive. The government objects to 1.5 hours billed in 2005 for a motion to extend the briefing schedule. In response, Miguel-Miguel has reduced the requested time for 2005 by 1 hour. Miguel-Miguel's attorney reasonably expended 0.5 hour on the motion, and the time is awarded.
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No. 05-15900 The government also objects to 35.5 hours of attorney time and 23 hours of paralegal time billed for a moot court to prepare for oral argument. But MiguelMiguel does not request an award of paralegal fees. In addition, the government concedes the reasonableness of 20 hours expended by lead counsel Robert H. Jobe, Esq., who argued the case. Based on the Appellate Commissioner's review of the court of appeals record and fee requests in similar cases, Miguel-Miguel's attorneys reasonably expended 35.5 hours on the moot court. Any oral argument before the Ninth Circuit requires a significant time investment. This case was more complex than most. It had a convoluted procedural history and involved substantial questions of jurisdiction and constitutional, administrative, and immigration law. The case was resolved in a 13-page published opinion that has been cited elsewhere. The 35.5 hours to prepare for the oral argument will be awarded in full. A review of the remaining hours reveals that they were also reasonably expended. All hours claimed will be awarded. 2. Hourly Rates EAJA provides that fees may be awarded at a statutory maximum hourly rate of $125, adjusted for increases in the cost of living. See 28 U.S.C.

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No. 05-15900 § 2412(d)(2)(A). Cost-of-living increases are calculated by multiplying the $125 statutory maximum hourly rate by the annual average consumer price index figure for all urban consumers ("CPI-U") for the years in which the attorneys' work was performed and dividing by the CPI-U figure for March 1996 (155.7), the effective date of the statutory maximum hourly rate. See Thangaraja v. Gonzales, 429 F.3d 870, 876-77 (9th Cir. 2005); see also Dept. of Labor, Bureau of Labor Statistics, Table 1A. CPI-U: U.S. city average at http://data.bls.gov/cgi-bin/surveymost. Miguel-Miguel requests adjusted statutory maximum hourly rates of $151.65 for work performed in 2005, $161.85 for work performed in 2006, and $165.46 for work performed in 2007. The government objects that the hourly rates should be limited to the statutory cap, without cost-of-living adjustments, but does not provide any legal authority in support of this objection. The government's objection is overruled, and the statutory cost-of-living increases are awarded. See Animal Lovers Volunteer Ass'n. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989) (absent unusual circumstances, fees should be awarded at the statutory maximum hourly rate adjusted for increases in the cost of living). Miguel-Miguel requests an incorrect adjusted hourly rate, however, for the work performed in 2007. The correct adjusted statutory maximum rate for 2007 is

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No. 05-15900 $166.46. See Notice Re: Statutory Maximum Rates Under EAJA at www.ca9.uscourts.gov. Accordingly, Miguel-Miguel is awarded the requested 2005 and 2006 hourly rates, and the hourly rate of $166.46 for work performed in 2007. 3. Summary Miguel-Miguel is awarded attorneys' fees as follows: Year 2005 2006 2007 Total Hours .50 41.50 52.75 94.75 III Conclusion Attorneys' fees in the amount of $15,575.95 are awarded in favor of petitioner Diego Miguel-Miguel and against respondent Michael B. Mukasey. This order shall serve to amend this court's mandate. Rate $156.79 161.85 166.46 $ Total 78.40 6,716.78 8,780.77 $15,575.95

MH/Appellate Commissioner

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