Civil Rights: Ninth Circuit Guidelines For Fee Awards Under EAJA
The Ninth Circuit’s “Attorney Fees and Recoverable Expenses Under the Equal Access to Justice Act (EAJA)” includes interesting guidelines for practitioners seeking fees under EAJA.
It establishes that eligible parties encompass an individual client having a net worth under $2 million. (28 U.S.C. § 2412(d)(2)(B)(i).)
EAJA will apply unless the U.S. can establish that its losing position in proceedings was “substantially justified or that special circumstances make an award unjust.” (Id. § 2412(d)(1)(A).) The fees and other expenses awardable do contain caps: expert witness fees cannot be higher than the highest compensation for U.S. experts, and attorney’s fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or special factors exist (such as the existence of a limited universe of qualified attorneys for the proceedings involved). Id. § 2412(d)(2)(A).
The EAJA filing deadline to file for fees does not run until after the 90-day certiorari period expires or until 90 days after an order remanding an immigration matter of the BIA. To be timely, the application must be received, not mailed, on or before the deadline. (Arulampalam v. Gonzales, 399 F.3d 1087, 1090 (9th Cir. 2005).)
The Guidelines also discuss the tests for a prevailing party (material alteration of the legal relationship between the parties that was judicially sanctioned) and substantial justification (government bears the burden of showing its position had a reasonable basis both in law and fact).
The procedures for seeking EAJA fees is set forth in Ninth Circuit Rule 39-1, which requires detailed billing itemization and justification for claimed hourly rates, plus a declaration attesting to the accuracy of submitted information and timeliness of the application. (The same rule also describes the timing for government’s opposition to any application.) Form AO 291 is an application form available on the Ninth Circuit website. The Ninth Circuit also periodically posts the statutory maximum hourly rates under EAJA, adjusted for cost of living increases, with the rate currently at $183.73 per hour for the first half of 2012. (The rate has been going up gradually from $142.18 in 2001.)