Tchemkou, Mireille v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2638
MIREILLE TCHEMKOU,
Petitioner,
v.
MICHAEL B. MUKASEY,
Attorney General of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A79 573 118
____________
ON MOTION FOR ATTORNEYS’ FEES AND COSTS
____________
FEBRUARY 22, 2008
____________
Before RIPPLE, ROVNER and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. In a previous opinion, we granted
a petition for review of an order of the Board of Immigra-
tion Appeals (“BIA”) filed by Mireille Tchemkou, a
native and citizen of Cameroon, who had been denied
asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). Tchemkou v. Gonzales,
495 F.3d 785 (7th Cir. 2007). We did so because we deter-
2 No. 06-2638
mined that the record compelled a finding that Ms.
Tchemkou had suffered past persecution and was likely
to suffer further persecution and torture if she were
returned to her native country. Ms. Tchemkou now
seeks an award of attorneys’ fees and costs. Presuming
familiarity with our previous opinion, we now address
the matter of attorneys’ fees.
A.
A petitioner in an immigration case is eligible for attor-
neys’ fees under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, if she can establish the statutory grounds
for an award. See Floroiu v. Gonzales, 498 F.3d 746, 748
(7th Cir. 2007). Specifically, a petitioner must show that:
(1) she was a prevailing party; (2) the Government’s
position was not substantially justified; (3) no special
circumstances existed that would make an award unjust;
and (4) she filed a timely and complete application for
fees. 28 U.S.C. § 2412(d)(1)(A)-(B); Floroiu, 498 F.3d at 748;
Muhur v. Ashcroft, 382 F.3d 653 (7th Cir. 2004). It is undis-
puted that Ms. Tchemkou is the prevailing party and
that she timely filed her motion; the Government con-
tends, however, that its position was substantially justified.
It is the Government’s burden to prove that its posi-
tion1 was “substantially justified.” Floroiu, 498 F.3d at 748;
1
The Government argues that, in determining whether its
“position” was substantially justified, only the arguments
made during litigation, not the underlying agency decision,
should be considered. In other contexts, we have noted that
“[t]he ‘position of the United States’ includes the underlying
(continued...)
No. 06-2638 3
Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004).
To be substantially justified, the Government’s position
must be “’justified in substance or in the main’ or ‘justified
to a degree that could satisfy a reasonable person.’ ”
Floroiu, 498 F.3d at 748 (quoting Pierce v. Underwood,
487 U.S. 552, 565 (1988)). The Government meets this
burden if it shows that (1) it had a reasonable basis in truth
for the facts alleged; (2) it had a reasonable basis in law
for the theory propounded; and (3) there was a reason-
able connection between the facts alleged and the theory
propounded. Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir.
2006).
The Government contends that it has met this burden.
Specifically, it maintains that it was substantially justified
in arguing that Ms. Tchemkou had not suffered past
persecution because: (1) she voluntarily returned to
Cameroon after living in Benin; (2) the three incidents
of abuse that she endured were the result of different
political activities; and (3) she was unable to articulate
with specificity what political opinion she held that
would cause her harm.
1
(...continued)
agency conduct as well as the agency’s litigation position.”
Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994) (considering
underlying validity of regulation as well as Government’s
defense of regulation in litigation). However, as noted by the
Government, unlike the Ninth Circuit, see Thangaraja v. Gonzales,
428 F.3d 870, 873 (9th Cir. 2005), we have not had to address
the question whether this rule applies with equal force to
the immigration context. The present fee petition does not
require that we resolve the issue because both parties agree
that the agency’s litigation position mirrored the approach
taken by the BIA.
4 No. 06-2638
The first rationale proffered by the Government was not
part of its presentation to the court in its brief, nor was it a
part of the agency’s underlying decision. Consequently,
it was not part of the “position” of the Government that
we must evaluate.
With respect to the second of the Government’s argu-
ments, the Government offered no support for the prop-
osition that each of the incidents of abuse should be
considered in isolation. Indeed, as we set forth in our
previous opinion, we have rejected a “compartmenta-
liz[ed]” approach to persecution and repeatedly have held
that the BIA must look at the record “as a whole” in
determining whether persecution has occurred. Tchemkou,
495 F.3d at 790-91 (quoting Gjerazi v. Gonzales, 435 F.3d 800,
807 (7th Cir. 2006)). Indeed, in its response to Ms.
Tchemkou’s fee request, the Government still fails to
cite any support for the proposition that Ms. Tchemkou’s
incidents of abuse should be evaluated separately. Hav-
ing failed to provide any support for this argument,
the Government also has failed to show that its posi-
tion was substantially justified. See Floroiu, 498 F.3d at 749.2
We turn then to the Government’s third argument that,
it claims, rendered its position substantially justified:
Ms. Tchemkou was unable to articulate a precise political
opinion that would subject her to persecution if she were
returned to Cameroon. This argument would be more
compelling if Ms. Tchemkou had not suffered grievous
persecution in the past. However, the question whether
2
Moreover, the Government fails to cite any authority to
support its contention that its other positions were substan-
tially justified.
No. 06-2638 5
Ms. Tchemkou will suffer further persecution cannot be
separated from the question whether Ms. Tchemkou
has suffered past persecution. As we already have noted,
there was no justification for considering her previous
persecution as discrete incidents. Ms. Tchemkou’s prior
political activities, and the violence of her government’s
response, not only established Ms. Tchemkou’s past
persecution, but they also revealed that the Cameroonian
government had identified Ms. Tchemkou as a trouble-
maker and someone whose voice it needed to quell. In
light of these events, we cannot conclude that the Gov-
ernment’s view of Ms. Tchemkou’s political opinion as
imprecise, and therefore unlikely to subject her to
future persecution, was substantially justified.
B.
In addition to objecting to the petition on the ground
that its position was substantially justified, the Govern-
ment also submits that, even if we decide that an award is
in order, the amount requested by Ms. Tchemkou is
exorbitant. When calculating an EAJA award, we must
exclude “hours that were not ‘reasonably expended,’ ”
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983), and we may
reduce the amount of the award accordingly, see 28 U.S.C.
§ 2412(d)(1)(C).
If Ms. Tchemkou were seeking reimbursement for the
568 hours recorded by her attorneys, we would agree
with the Government that, given the issues raised by
the appeal, such a request would be difficult to justify.
However, Ms. Tchemkou’s counsel reduced this amount
by half based on the efficiency, skill and experience of
the professionals involved. See Hensley, 461 U.S. at 434
6 No. 06-2638
(noting that “[c]ases may be overstaffed, and the skill and
experience of lawyers vary widely,” therefore
“[c]ounsel . . . should make a good-faith effort to exclude
from a fee request hours that are excessive, redundant, or
otherwise unnecessary”). Ms. Tchemkou now seeks
reimbursement for, among other entries, approximately 150
hours for the opening brief, 40 hours for the reply brief and
20 hours of internal and external communication time.
The Government takes issue with these categories, and
we shall evaluate its arguments in the discussion that
follows.
The Government first urges us to compare the fee
sought here with the amounts awarded in other asylum
cases. The disparity, the Government claims, should “cause
the Court pause in this matter.” Respondent’s Opposition
at 11 (citing Floroiu, 498 F.3d at 750 (awarding $5,937.50
in fees and $324 in costs), and Muhur v. Ashcroft, 382 F.3d
653, 656 (7th Cir. 2004) (awarding $7,053.50 in fees and
$459.52 in costs)). We do not believe that a comparison of
raw numbers of hours is helpful in determining whether
the hours here were “reasonably expended.” If the Gov-
ernment could show that the cases cited were similar to
the present case with respect to volume of the back-
ground materials, the procedural nature of the case, and
the number and complexity of the issues presented, its
argument would carry more weight. The Government,
however, has offered no such comparison. Moreover,
we did not suggest in either Floroiu or Muhur that we
were establishing a baseline according to which all other
asylum fee awards should be compared; indeed, at least
with respect to the petition in Muhur, we characterized
the fee request as “modest,” 382 F.3d at 656.
In addition to objecting to the total number of hours
spent by Ms. Tchemkou’s attorneys, the Government
No. 06-2638 7
specifically takes issue with the number of hours spent
on the opening brief. The Government claims that “[e]ven
the least experienced attorney should be able to prepare
a fact-based asylum brief from an unfamiliar record in
one work week.” Respondent’s Opposition at 13. We
respectfully disagree. The administrative record for this
matter is approximately 600 pages long; contained in
this record are numerous fact-laden documents pro-
duced by the State Department, by the United Nations
and by Amnesty International. Given the nature of the
administrative record, it would be a herculean feat, in-
deed, to be able to master such a record and incorporate
it into an intelligible appellate brief in the time proposed
by the Government.
The Government also criticizes Ms. Tchemkou’s coun-
sel for the “glacial preparation of briefs on reply.” Id.
Again, we believe that a conscientious counsel reasonably
could expend a week’s time reviewing the Government’s
submission, familiarizing herself with the Government’s
authorities (twenty-six of which were not cited in the
opening brief) and drafting a responsive brief that com-
plies with all of our court’s requirements.
Finally, the Government questions the time spent by
Ms. Tchemkou’s counsel on internal communications.
Specifically, the Government believes it is “wholly unrea-
sonable” for it to “pay for three hours of work for each one-
hour conversation among three attorneys.” Id. The Gov-
ernment appears to argue for a blanket rule according
to which internal communication time never would be
reimbursed under the EAJA. Such a rule would be totally
unrealistic. The practice of law often, indeed usually,
involves significant periods of consultation among coun-
sel. Talking through a set of authorities or seeking ad-
8 No. 06-2638
vice on a vexing problem is often significantly more
efficient than one attorney’s trying to wade through the
issue alone. To be sure, internal meetings are not always
the model of efficiency, and discussions of one case or
client easily can bleed over into other matters. Conse-
quently, attorneys seeking reimbursement for internal
meetings should identify explicitly the subject matter of
their discussions so that we may assess whether the
amount of time recorded was “reasonably expended.” In
the present case, few details are provided with respect
to the internal communications of Ms. Tchemkou’s coun-
sel. Although we do not doubt that some internal com-
munication was necessary to coordinate the successful
effort on behalf of Ms. Tchemkou, without the benefit
of greater explanation from counsel, we cannot say that
all of the internal communication time was “reasonably
expended.” Consequently, we shall reduce counsel’s
internal communication time to ten attorney hours.
Apart from the amount of time requested for internal
communications, we believe the hours for which reim-
bursement is sought were “reasonably expended.” Accord-
ingly, Ms. Tchemkou’s counsel shall be reimbursed for
247.75 hours of preparation time.
Ms. Tchemkou’s attorneys also seek a cost-of-living
adjustment to the statutory hourly rate of $125 per
hour; such an increase is permitted by statute in the
discretion of the awarding court. See 28 U.S.C.
§ 2412(d)(2)(A) (setting the attorney-fee rate at “$125 per
hour unless the court determines that an increase in the
cost of living . . . justifies a higher fee”). A cost-of-living
adjustment must be indexed to the year in which the
fees are incurred, not to the year in which an award is
made. See Marcus v. Shalala, 17 F.3d 1033, 1040 (7th Cir.
No. 06-2638 9
1994). Here, Ms. Tchemkou’s “fees” were incurred in
2006 and 2007. For ease of calculation, Ms. Tchemkou’s
counsel employed the multiplier for 2006 for all of the
fees, which yielded a rate of $161.85 per hour. We believe
that, given the passage of time since the establishment
of the hourly rate, a cost-of-living adjustment is war-
ranted. The Government does not object either to the
increase in general or to the specific calculation proposed
by Ms. Tchemkou’s counsel. Consequently, we approve
the proposed $161.85 per hour rate. Cf. Role Models Am.,
Inc. v. Brownlee, 353 F.3d 962, 969 (D.C. Cir. 2004) (approv-
ing an increase in hourly rate to reflect the increase in
cost of living between 1996, when rate last was adjusted,
and 2003, when costs were incurred).
C.
In addition to attorneys’ fees, Ms. Tchemkou’s counsel
seek reimbursement for various costs associated with her
appeal. Specifically, counsel request reimbursement for
$1,179.94 in fees for computerized research, courier
service, Federal Express deliveries, long distance phone
calls, postage, printing charges and research fees.3 The
Government objects to this total, noting that, although the
EAJA contemplates the award of costs, those costs are
limited to the costs enumerated in 28 U.S.C. § 1920. See
28 U.S.C. § 2412(a)(1). However, this court has construed
section 1920 to include amounts spent on filing fees,
postage, telephone calls and delivery charges, see Burda v.
3
In its reply, counsel concede that a $99 fee for “LITWATCH”
was erroneously charged and state that they will subtract that
charge from the total request for costs.
10 No. 06-2638
M. Ecker Co., 2 F.3d 769, 778 (7th Cir. 1993); see also 28
U.S.C. § 1920(3) (including fees for printing among reim-
bursable costs), and has held that costs of computerized
legal research are recoverable as part of an attorney-fee
award, see Haroco v. American Nat’l Bank & Trust of
Chicago, 38 F.3d 1429, 1440-41 (7th Cir. 2004).
Ms. Tchemkou’s attorneys also seek reimbursement of
$2,347 in document reproduction charges. Section 1920
does allow reimbursement for document reproduction;
however, such fees are limited to “papers necessarily
obtained for use in the case.” 28 U.S.C. § 1920(4). As
well, Seventh Circuit Rule 39 provides that the costs “shall
not exceed the maximum rate per page as established
by the clerk of the court of appeals,” currently $.10 per
page. The request for over $2,347 in reproduction costs
suggests that counsel did not adhere to these limits, and
counsel do not contend otherwise in either their motion
for fees or their reply. The motion’s itemized accounting
lists only weekly “duplication charges,” without fur-
ther explanation. Although some copying charges un-
doubtedly were warranted, it is difficult to fathom that
there were over 23,000 pages of documents “necessarily
obtained” for this appeal. Consequently, in the absence
of adequate explanation by counsel, we shall deny these
costs.
Lastly, Ms. Tchemkou’s counsel seek $32.58 in “supplies
expenses.” The itemized records are unclear as to what
was purchased on the six different occasions that sup-
plies were charged to the client. Furthermore, counsel
have failed to explain why they are entitled to recover
money spent on office supplies. This amount, as well,
shall not be allowed.
No. 06-2638 11
Conclusion
For the reasons set forth above, we grant Ms. Tchemkou’s
petition for fees and costs. The Government shall reimburse
Ms. Tchemkou for $41,716.84 in attorneys’ fees and
$1,179.94 in costs.
IT IS SO ORDERED.
USCA-02-C-0072—2-22-08