Mohamed v. Pompeo ( 2021 )

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., No. 1:19-cv-01345-DAD-SKO 12 Plaintiffs, 13 v. ORDER PERMITTING SUPPLEMENTAL BRIEFING CONCERNING MOTION FOR 14 WILLIAM BARR, et al., ATTORNEYS’ FEES 15 Defendants. 16 17 Pending before the court is plaintiffs’ motion for attorneys’ fees and costs pursuant to the 18 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), in the amount of $68,259.49. 19 (Doc. No. 41.) Attorneys’ fees may be obtained only by a “prevailing party” under that statute. 20 28 U.S.C. § 2412(d)(1)(A). The relevant portion of the EAJA defines a “party” as 21 (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) any owner of an unincorporated 22 business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed 23 $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed . . . . 24 25 Id. § 2412(d)(1)(D). 26 Here, defendants argue that plaintiffs have not established that their net worth is less than 27 $2 million. (Doc. No. 43 at 12.) In their reply, plaintiffs respond that plaintiff Nassr A Mohamed 28 has a net worth of less than $2 million and is an owner of a business or other organization worth 1 less than $7 million with fewer than 500 employees. (Doc. No. 44 at 7.) Plaintiffs cite to various 2 attached tax returns for plaintiff Mohamed but do not direct the court to where in those 3 documents, if anywhere, the relevant information is revealed. (Doc. Nos. 44-1, 44-2, 44-3.) 4 The court is unable to determine whether or how these tax returns support plaintiffs’ 5 position. See Am. Pac. Concrete Pipe Co. v. N.L.R.B., 788 F.2d 586, 590–91 (9th Cir. 1986) 6 (holding that net worth is determined based on generally accepted accounting principles and is 7 calculated by subtracting total liabilities from total assets); Bolt v. Merrimack Pharms., Inc., 503 8 F.3d 913, 915–17 (9th Cir. 2007) (constructing the term “net worth”); Freeman v. Mukasey, No. 9 04-35797, 2008 WL 1960838, at *2 (9th Cir. Feb. 26, 2008) (“An affidavit of the party’s net 10 worth is generally sufficient evidence to prove net worth under EAJA.” (citing Broaddus v. U.S. 11 Army Corps of Eng’rs, 380 F.3d 162, 166–70 (4th Cir. 2004)));1 Pollinator Stewardship Council 12 v. EPA, No. 13-72346, 2017 WL 3096105, at *15–18 (9th Cir. June 27, 2017) (discussing 13 necessity of apportionment of EAJA fees where there are multiple plaintiffs). 14 In addition, plaintiffs seek an hourly rate for their counsel’s work of up to $500, to which 15 defendants object as being above the statutory maximum rate. (Doc. Nos. 41 & 43.) Plaintiffs 16 cite to the decision in Nadarajah v. Holder, 569 F.3d 906 (9th Cir. 2009), for the proposition that 17 rates above the statutory maximum are at times collectible. (Doc. Nos. 41 at 28–29; 44 at 7–8.) 18 However, the court in Nadarajah also discussed the type of evidence required to establish 19 whether a special factor enhancement is justified. 569 F.3d at 912–18. Plaintiffs have not 20 proffered sufficient evidence in this regard. For instance, plaintiffs argue that their counsel’s 21 hourly rates are reasonable and that qualified counsel were not available at the statutory rate, but 22 they do not provide sufficient evidence establishing those facts. It is possible that relevant 23 records are included in the voluminous documents attached by counsel to plaintiffs’ submission. 24 However, it is not the court’s responsibility to sift through these materials. Counsel must 25 ///// 26 27 1 Citation to this and the other unpublished Ninth Circuit opinion cited herein is appropriate pursuant to Ninth Circuit Rule 36-3(b). 28 1 | specifically identify and discuss the factual material relied upon in support of plaintiffs’ 2 || contentions. 3 Accordingly, 4 1. Within 14 days of the date of entry of this order, plaintiffs may file supplemental 5 briefing or documentation concerning the issues discussed herein; and 6 2. Within 14 days of the date plaintiffs file any supplemental briefing or documentation, 7 defendants may file a reply to such briefing or documentation. 8 | IT IS SOORDERED. a “ 9 ji je Ff; Dated: _ October 13, 2021 Sea 1" S098 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28