Muhammad Ghulamhaider Gwaduri Rahim Muhammad Gwaduri Nadia Muhammad Gwaduri v. Immigration and Naturalization Service

362 F.3d 1144 Muhammad Ghulamhaider GWADURI; Rahim Muhammad Gwaduri; Nadia Muhammad Gwaduri, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 02-70629. Agency No. Aao-ozd-mlb. Agency No. Ard-avk-iks. Agency No. Avb-lvu-kvw. United States Court of Appeals, Ninth Circuit. March 18, 2004. Curtis Pierce, Law Office of Curtis F. Pierce, Los Angeles, CA, for Petitioner. Regional Counsel, Laguna Niguel, CA, Los Angeles District Counsel, Office of the District Counsel, Los Angeles, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, San Francisco, CA, Margaret Perry, Stephen J. Flynn, Jacqueline Dryden, Department of Justice, Washington, DC, for Respondent. Before REINHARDT, O'SCANNLAIN, and FISHER, Circuit Judges. 1 Order; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN. ORDER 2 On November 6, 2003, petitioners' counsel filed a timely application for fees and other expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d)(1)(A). The government's opposition to this motion was due on November 20, 2003. See Ninth Cir. Rule 39-1.7 ("Any party from whom attorney's fees are requested may file an objection to…

ORDER

On November 6, 2003, petitioners’ counsel filed a timely application for fees and other expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (d)(1)(A). The government’s opposition to this motion was due on November 20, 2003. See Ninth Cir. Rule 39-1.7 (“Any party from whom attorney’s fees are requested may file an objection to the request ... within 14 days after, service of the request.”). The government failed to take any action until December 30, 2003, nearly six weeks after the due date, when it filed a response accompanied by a motion to file out of time.

Under this circuit’s practice, had it not been for an error by the Office of the Clerk of the Court, petitioners’ application would have been granted long before the government’s motion and response ever arrived. Ordinarily, after a request for fees under the EAJA is received in the Clerk’s Office, it is held for 21 days pending the possible receipt of an objection from the United States. 1 If during this period the Clerk receives a timely objection from the government, she forwards the application and the response to the panel that decided the underlying appeal. But if the government fails…

concurring in part and dissenting in part:

I join my colleagues in voting to deny the Government’s motion for late filing of an objection to the Gwaduris’ request for fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2003). Although I certainly understand what it is like to have to handle a “high volume of work,” 1 and even to have to “prepare *1148 much of [my] own correspondence,” these excuses offered by the Government’s attorney are simply inadequate to forgive its having missed — by nearly six weeks — our court’s 14-day deadline for filing such a response. See Ninth Cir. R. 39-1.7 (“Any party from whom attorneys fees are requested may file an objection to the request ... within 14 days after service of the request.”).

I must dissent, however, from the court’s grant of attorneys’ fees. I certainly recognize that, absent the peculiar combination of the court’s administrative oversight and the Government’s belated motion for late filing of its objection, the Gwadu-ris’ otherwise unopposed motion for fees apparently long ago would have been granted by a staff attorney. Yet now that this application has come formally before the panel, I believe a fee award…