Escolar Documentos
Profissional Documentos
Cultura Documentos
1
2
3
4
5
6
7
13
Daniel J. Pochoda
dpochoda@acluaz.org
Brenda Muoz Furnish
bmfurnish@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
14
8
9
10
11
12
15
16
17
18
19
20
21
Plaintiffs,
22
23
24
25
26
27
28
v.
Joseph M. Arpaio, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
CV-07-2513-PHX-GMS
PLAINTIFFS SUPPLEMENTAL
MOTION FOR AWARD OF
ATTORNEYS FEES AND RELATED
NON-TAXABLE EXPENSES
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS
1
2
I.
Introduction ...................................................................................................................... 1
II.
The Court Should Award Supplemental Fees and Costs to Plaintiffs as the
Prevailing Party ................................................................................................................ 2
4
5
6
7
8
9
10
III. The Court Should Award Fees and Costs Incurred in Litigating the Civil
Contempt Proceedings Against All Contemnors and the County. ................................... 2
IV. The Court Should Award Fees and Costs Incurred in Overseeing Compliance
with this Courts Orders, Including the October 2, 2013 Supplemental
Injunction.......................................................................................................................... 7
V.
The Court Should Award Fees and Costs Incurred in Preparing and Litigating
Their Original Fee Application and the Present Fee Application .................................... 8
11
A.
12
B.
C.
14
15
13
16
17
18
19
20
21
22
23
24
25
26
27
28
i
TABLE OF AUTHORITIES
Page(s)
2
3
Cases
5
6
7
8
9
10
11
12
13
14
Bernardi v. Yeutter,
951 F.2d 971 (9th Cir. 1991) ............................................................................................... 9
Clark v. City of Los Angeles,
803 F.2d 987 (9th Cir. 1986) ............................................................................................... 9
Commodity Futures Trading Commn v. Premex, Inc.,
655 F.2d 779 (7th Cir. 1981) ............................................................................................... 3
Cook v. Ochsner Found. Hosp.,
559 F.2d 270 (5th Cir. 1977) ............................................................................................... 3
Dang v. Cross,
422 F.3d 800 (9th Cir. 2005) ............................................................................................. 13
Donovan v. Burlington N., Inc.,
781 F.2d 680 (9th Cir. 1986) ............................................................................................... 3
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gates v. Rowland,
39 F.3d 1439 (9th Cir. 1994) ............................................................................................... 9
Gonzalez v. City of Maywood,
729 F.3d 1196 (9th Cir. 2013) ............................................................................................. 9
Harcourt Brace Jovanovich Legal & Profl Publications, Inc. v. Multistate
Legal Studies, Inc.,
26 F.3d 948 (9th Cir. 1994) ................................................................................................. 3
HarleyDavidson, Inc. v. Morris,
19 F.3d 142 (3d Cir. 1994) .................................................................................................. 3
Inst. of Cetacean Research v. Sea Shepherd Conservation Socy,
774 F.3d 935 (9th Cir. 2014) ............................................................................................... 6
John Zink Co. v. Zink,
241 F.3d 1256 (10th Cir. 2001) ........................................................................................... 3
Jones v. Espy,
10 F.3d 690 (9th Cir. 1993) ................................................................................................. 6
Keith v. Volpe,
833 F.2d 850 (9th Cir. 1987) ........................................................................................... 7, 8
ii
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Statutes
21
22
42 U.S.C. 1988(b)............................................................................................................. 2, 14
23
24
25
26
27
28
iii
2
I.
Introduction
Plaintiffs respectfully submit this motion to request a supplemental award
4
5
pursuant to 42 U.S.C. 1988 for fees and nontaxable costs incurred by Plaintiffs
counsel from October 3, 2013 through May 31, 2016 in the total amount of
$5,985,727.74.1 The great majority of the fees and costs were incurred during a lengthy
contempt proceeding necessitated by contemnors refusal to admit the fact that they had
intentionally violated the Courts orders. See Doc. 1027 [4/23/15 Tr. 590:3] (Sheriff
10
Arpaio testifying that it wasnt intentional). Plaintiffs were required to prove the
11
intentional nature of the violations and succeeded in doing so. See, e.g., Doc. 1677, 65
12
(Sheriff Arpaio knowingly and intentionally ensured that the MCSO did not comply
13
with the preliminary injunction), 229 (Sheridan was intentionally untruthful to the
14
Monitor about the May 14, 2014 order), 20:27-28 (former Chief Sands [k]nowingly
15
16
([i]t is not possible for the Court to discern how Lieutenant Sousa thought that the HSU
17
practice in this regard was permissible under the injunction). Contemnors, as well as
18
the County (for whom the Sheriff and his subordinates acted) should now be jointly and
19
severally liable to the prevailing parties for attorneys fees and costs. The Court should
20
award the reasonable fees requested by Plaintiffs for the contempt proceeding, for their
21
necessary efforts to secure compliance with the Courts order, and for their attorney fee
22
applications.
23
24
25
26
27
A bill of costs for taxable costs in the amount of $88,662.74 is submitted separately.
28
1
II.
2
3
4
5
6
7
8
9
10
11
12
In its September 11, 2014 Order (the Fees Award) [Doc. 742], this Court
previously awarded attorneys fees and related non-taxable expenses to Plaintiffs
pursuant to 42 U.S.C. 1988. The Court found that, as prevailing parties on their civil
rights claims, Plaintiffs were entitled to an award of attorneys fees under 1988. The
Court awarded fees and costs incurred by Plaintiffs counsel in litigating this case, for
the period ending October 2, 2013. Plaintiffs now respectfully request a supplemental
award of attorneys fees and costs pursuant to 42 U.S.C. 1988(b) for the period
between October 3, 2013 and May 31, 2016. See the accompanying
Declarations of Stanley Young, Cecillia D. Wang, Daniel J. Pochoda, Jorge M. Castillo,
Anne Lai and James B. Chanin, and Exhibits thereto. The following table summarizes
the amounts sought:
13
14
The Court Should Award Supplemental Fees and Costs to Plaintiffs as the
Prevailing Party
ACLU-AZ
ACLU-IRP
Covington
MALDEF
Anne Lai
James B.
Chanin
15
2013
$26,917.50
$27,798.55
$198,017.50
$13,035.00
$10,157.50
$0.00
2014
$85,546.50
$67,135.41
$283,598.50
$21,752.50
$56,559.50
$0.00
16
2015
$371,341.00
$1,099,664.41
$2,458,919.50
$69,480.00
$91,234.81
$84,456.00
17
18
2016
$47,460.50
$150,982.98
$244,259.00
$90,687.50
$10,769.66
$110,263.00
Subtotal
$531,265.50
$1,345,581.35
$3,184,794.50
$194,955.00
$168,721.47
$194,719.00
$13,634.02
$52,632.68
$297,592.68
$1,831.54
$0.00
$0.00
$13,634.02
$52,632.68
$297,592.68
$1,831.54
$0.00
$0.00
21
22
23
$5,620,036.82
COSTS
19
20
TOTAL
Subtotal
Grand Total:
III.
$365,690.92
$5,985,727.74
The Court Should Award Fees and Costs Incurred in Litigating the Civil
Contempt Proceedings Against All Contemnors and the County.
In addition to being prevailing parties in this litigation and entitled to
24
supplemental fees under 42 U.S.C. 1988, Plaintiffs should also receive fees and costs
25
as a remedy for the civil contempt that they proved. See also Doc. 606, 157 and p. 58
26
at lines 18-22 (providing for attorneys fees to be paid by Defendants, which includes
27
the County, for successful litigation to enforce the Supplemental Permanent Injunction,
28
which incorporates the preliminary injunction). An award of attorneys fees for civil
2
contempt is within the discretion of the district court. Harcourt Brace Jovanovich
Legal & Profl Publications, Inc. v. Multistate Legal Studies, Inc., 26 F.3d 948, 953 (9th
Cir. 1994). Civil contempt sanctions may be designed to compensate for actual losses
caused by noncompliance with the underlying order, and may include fees, imposed as a
fine payable to the complainant, based on evidence of the complainants actual loss.
Portland Feminist Womens Health Center v. Advocates for Life, Inc., 877 F.2d 787, 790
(9th Cir. 1989); United States v. United Mine Workers of Am., 330 U.S. 258, 304 (1947).
Sheriff Arpaio and Chief Sheridan have already admitted that a court may assess
attorneys fees as a sanction for the willful disobedience of a court order. Doc. 1687 at
10
11:11-16 (quoting Chambers v. NASCO, Inc., 501 U.S. 32 (1991) and Fleischmann
11
Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967)) (internal quotation marks
12
omitted). But, of course, such remedial sanctions may be awarded even where civil
13
contempt is not willful. Perry v. ODonnell, 759 F.2d 702, 705 (9th Cir. 1985) (citing
14
Cook v. Ochsner Found. Hosp., 559 F.2d 270, 272 (5th Cir. 1977)). 2
15
Plaintiffs have been forced to incur significant legal costs in this matter, due to
16
Sheriff Arpaios and MCSOs failure to comply with this Courts injunctive and other
17
orders and their refusals to admit the willfulness of such violation. A compensatory
18
19
20
21
22
23
24
25
26
27
See also Donovan v. Burlington N., Inc., 781 F.2d 680, 684 (9th Cir. 1986). Most of
the circuits that have addressed the question have found that willfulness is not a
prerequisite for an award of attorneys fees. See HarleyDavidson, Inc. v. Morris, 19
F.3d 142, 148-49 (3d Cir. 1994) (no finding of willful contempt necessary for an award
of fees); Cook v. Ochsner Found. Hosp., 559 F.2d 270 (5th Cir. 1977) (same); TWM
Mfg. Co. v. Dura Corp., 722 F.2d 1261 (6th Cir. 1983) (same); Commodity Futures
Trading Comm'n v. Premex, Inc., 655 F.2d 779 (7th Cir. 1981) (same); John Zink Co. v.
Zink, 241 F.3d 1256 (10th Cir. 2001) (same); Motley v. Yeldell, 664 F. Supp. 557
(D.D.C. 1987) (same).
28
3
Plaintiffs actual fees,3 is reasonable and justified under the circumstances of this case.
Much of the cost resulted directly from Defendants repeated failure to comply
obstructionist tactics and unreasonable delays multiplied the need for status conferences,
massive email archive production days before relevant depositions were to take place.
For instance, by August 2015, Defendants had yet to produce discovery which this Court
10
had ordered produced at least seven months earlier, in February. See Doc. 881 at 3 (Feb.
11
12, 2015 order requiring production of responsive materials by February 27, 2015); Doc.
12
1208 at 2-3 (July 31, 2015 order requiring production of responsive categories of
13
documents by dates certain); Doc. 1271 at 1 (Aug. 26, 2015 order requiring rolling
14
15
Between April and September 2015, fourteen status conferences were held, many of
16
17
September 2, 2015, MCSO produced over 5,000 archived email files, and two days later,
18
produced over 9,000 more. Defendants document dump, just days before the relevant
19
depositions and less than a month before the evidentiary hearing was to resume on
20
September 24, 2015, required Plaintiffs to enlist multiple staff and junior attorneys to
21
22
numerous depositions and maintain the schedule of evidentiary hearing dates subsequent
23
24
25
26
27
Plaintiffs have omitted a number of actual costs and fees from their present fee request,
including fees pertaining to the appeals filed by Mr. Montgomery and by Mr. Zullo, and
other fees and costs omitted in the exercise of billing judgment.
28
4
to the initial dates in April 2015.4 See Young Decl. 6. The Court may award fees and
Perry, 759 F.2d at 705 (award of fees appropriate because the cost of bringing the
violation to the attention of the court is part of the damages suffered by the prevailing
party).
Moreover, Plaintiffs incurred even more fees and costs because Defendants
recusal of the Court notwithstanding their earlier waivers of the grounds that they
asserted for recusal. See Doc. 1164 (Order Denying Motion for Recusal or
10
Disqualification); Young Decl. Ex. B, 9th Cir. Case No. 15-72440, Doc. 14 (Order
11
denying Sheriff Arpaio and Chief Deputy Sheridans petition for mandamus relief).
12
Plaintiffs were required to incur these costs in order to obtain relief for the intentional
13
14
15
while under oath (Doc. 1677 at 3:2) during the civil contempt hearing further
16
multiplied the costs that Plaintiffs needed to incur in order to uncover the truth about the
17
18
the concealment of evidence of the same and the manipulation of the MCSOs internal
19
20
executives and employees of MCSO were also less than candid in their communications
21
with the Court and the Courts Monitor. See, e.g., Doc. 1677, 342-348, 654. A fuller
22
list of contemnors intentional, willful and purposeful violations of the Courts orders
23
and of their and MCSOs intentional lies and misstatements to the Court is attached to
24
25
26
27
The first deposition in preparation for the continued contempt hearing took place on
September 3, 2015 (Lt. Seagraves), and depositions continued until September 23, 2015.
28
5
continued through the contempt proceeding, meant that Plaintiffs litigation efforts were
necessary to bring the many MCSO violations to light. Id. at 387-875, 875 (IA
policies and practices were used by the Defendants to avoid appropriate accountability
for their treatment of members of the Plaintiff class); 488-89 (The Court finds that as a
matter of fact, Sheriff Arpaio achieved what he desired in appointing Chief Olson to the
MCSOs 17 month violation for their Courts orders. The assignment of Chief Olson to
make the disciplinary decision in IA #2014-543 in light of his partiality, his failure to
10
acceptably perform that function, and his dismissal of all of the charges without
11
12
practices both violate and threaten continued violations of the rights of the Plaintiff class
13
that this Courts orders have sought to vindicate); 690 and 692 (Sergeant Tennysons
14
investigation ended up being what he and Chief Deputy Sheridan intended it to be: a
15
perfunctory whitewash . . . The Court finds that Defendants engaged in a cursory and
16
bad faith investigation, and therefore IA #2014-295 is void.). The Court should grant
17
Plaintiffs request for the fees and costs that they had to incur as a result.
18
All contemnors should be jointly and severally liable for the attorney fee award,
19
along with the County. Portland Feminist Womens Health Ctr. v. Advocates for Life,
20
Inc., 877 F.2d 787, 790 (9th Cir. 1989) (defendants can be jointly and severally liable for
21
22
fees); Inst. of Cetacean Research v. Sea Shepherd Conservation Socy, 774 F.3d 935,
23
958-59 (9th Cir. 2014) (holding that plaintiffs could recover attorneys fees incurred in
24
litigating contempt proceedings, and suggesting that defendants could be jointly and
25
severally liable for such award); Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 539
26
F.3d 1039, 1041-42 (9th Cir. 2008) (discussing with approval district courts order
27
holding defendants jointly and severally liable for attorneys fees assessed as civil
28
contempt sanction); Jones v. Espy, 10 F.3d 690, 691-92 (9th Cir. 1993).
6
IV.
3
4
their efforts to ensure and secure compliance with the Courts orders, including the
proceeding, their compliance-related fees and costs should also be awarded because 42
activities. Such an award is therefore a proper fee award to Plaintiffs for having
prevailed in this Courts 2013 judgments. Docs. 579, 606. See Prison Legal News v.
10
Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (holding that 1988 authorized
11
recovery of attorneys fees for monitoring state officials compliance with a settlement
12
agreement); Keith v. Volpe, 833 F.2d 850, 860 (9th Cir. 1987) (affirming an award of
13
14
consent decree); see also Pennsylvania v. Delaware Valley Citizens Council, 478 U.S.
15
546, 559 (1986) (Several courts have held that, in the context of the Civil Rights
16
17
18
fee.).
19
20
case, as it will lead to relief occurring more speedily and reliably. Keith, 833 F.2d at
21
857; see also Prison Legal News, 608 F.3d at 451-52 (monitoring serves the same
22
purpose: causing defendants to fulfill their obligations more speedily and reliably;
23
the common purpose of both 304(d) and 1988 [is] to promote citizen enforcement
24
of important federal policies). Because of this, the Ninth Circuit has expressly rejected
25
the idea that only monitoring that leads to a court-issued judgment or contempt finding
26
27
28
The existence of a separate Monitor does not preclude an award of attorneys fees
to the prevailing party for monitoring activities where, as here, the monitoring services
7
are not duplicative. Id. at 858. Plaintiffs counsel have spent hundreds of hours in
numerous hearings before the Court on various issues that have arisen post-judgment,
worked closely with the Monitor and provided feedback and input on various topics,
MCSOs lack of candor with this Court, and their demonstrated, repeated and willful
non-compliance with this Courts orders, triggered and prolonged the civil contempt
10
proceeding. Perry, 759 F.2d at 705 (award of fees may be appropriate as a remedial
11
measure because cost of bringing the violation to the attention of the court is part of the
12
damages suffered by the prevailing party) (quoting Cook, 559 F.2d at 272). As the
13
Monitor noted in his Seventh Report, dated April 19, 2016, [Defendants] have stalled . .
14
15
16
enforcing the terms of the Courts Supplemental Permanent Injunction and, indeed,
17
found it necessary to augment the Plaintiffs counsel team by associating new co-
18
19
20
activities in order to prevent Defendants from continuing to defy the Court and violate
21
the rights of Plaintiffs. They should be compensated for that work in order to avoid
22
23
their defiance.
24
25
26
27
28
V.
The Court Should Award Fees and Costs Incurred in Preparing and
Litigating Their Original Fee Application and the Present Fee Application
This Court has already determined that Plaintiffs are prevailing parties on their
civil rights claims and are accordingly entitled to an award of fees pursuant to 42 U.S.C.
1988. Doc. 742. Accordingly, Plaintiffs are also entitled to an award for the time
8
spent in preparing and litigating their fee application. [I]ts now well established that
Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013) (quoting Anderson v.
Director, OWCP, 91 F.3d 1322, 1325 (9th Cir. 1996); Gates v. Rowland, 39 F.3d 1439,
1448-49 & 1451 (9th Cir. 1994) (affirming an award of attorneys fees for preparing and
litigating the fee application); Bernardi v. Yeutter, 951 F.2d 971, 977 (9th Cir. 1991)
(awarding fees and costs incurred in litigating the fee petition); Clark v. City of Los
Angeles, 803 F.2d 987, 992 (9th Cir. 1986) (We, like every other court that has
considered the question, have held that the time spent in establishing entitlement to an
10
amount of fees awardable under section 1988 is compensable.); see also Anderson, 91
11
12
because uncompensated time spent on petitioning for a fee automatically diminishes the
13
value of the fee eventually received.). This is so, even where the district court does
14
not award the applicant the full amount of fees he requests. Gonzalez, 729 F.3d at
15
1210.
16
17
December 20, 2013 fee application (the Original Fee Application), which required
18
accounting for nearly six years of work, across multiple organizations. The application
19
required reviewing and tabulating voluminous detailed time records and invoices,
20
drafting a full set of opening and reply briefs, including numerous declarations and
21
exhibits, and arguing the issue before the Court. See Docs. 639, 655. The time spent on
22
those activities, which occurred after the October 2, 2013 cutoff date for the Original Fee
23
24
25
27
28
(continued)
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
VI.
reasonably expended by reasonable hourly rates, according to the lodestar method. See,
e.g., McGrath v. Co. of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). This fee calculation
method is strongly presumed to be reasonable. See Oviatt v. Pearce, 954 F.2d 1470,
1482 (9th Cir. 1992).
A.
As was the case for the Original Fee Application, and consistent with their
general practice, each member of Plaintiffs counsel kept and maintained detailed daily
records showing the time he or she worked on this case and a brief description of that
work. Those records are included in the present application. Plaintiffs counsel have
carefully scrutinized their records and reduced the number of hours for each lawyer to
exclude time entries that are redundant, excessive or otherwise unnecessary, including
time spent by, for example, paralegals, summer associates and interns, as well as
attorneys new to the litigation in coming up to speed on the status and background of the
case, and other time that was duplicative. While counsel have represented Plaintiffs
throughout this litigation on a pro bono basis, the billing records submitted to the Court
reflect the same exercise of billing judgment and discretion accorded to typical billable
matters. Young Decl. 36; Pochoda Decl. 8; Wang Decl. 12; Castillo Decl. 12;
Chanin Decl. 18-19. In the exercise of billing judgment, Plaintiffs also have omitted
time spent in traveling for this litigation, a significant compensable cost. See Young
Decl. 36; Wang Decl. 12; Chanin Decl. 19.
23
24
25
26
27
contempt proceeding to file their next fee application, so the material prepared in 2014
and early 2015 relating to the time spent on the Original Fee Application was saved for
use in the present application. The time spent in 2014-15 in preparing that material is
included in the present application. (Plaintiffs time spent after May 31, 2016 in
preparing and briefing the present application will be included in a future fee
application.)
28
10
Plaintiffs counsel at the Covington & Burling firm have further reduced their
requested hours by completely omitting the time of more than 30 attorneys and staff
members, totaling more than 600 hours, who assisted with various projects when
needed, including several attorneys and staff who were called upon to assist as a result
of Defendants delays in document production until the eve of depositions and the
resumed contempt hearing dates in September. Young Decl. 36. Plaintiffs counsel at
the ACLU Immigrants Rights Project have further reduced their requested hours by
excluding all time spent on this litigation by paralegals, junior attorneys who were added
to the case during the contempt proceeding, and legal interns. Wang Decl. 12. The
10
remaining hours in the fee request are reasonable because they represent the work of a
11
core team of attorneys, assisted by a small number of additional staff attorneys retained
12
13
B.
14
Plaintiffs counsels hourly rates are fully consistent with, if not lower than, the
15
billing rates of other attorneys of similar experience, within their particular markets. See
16
Docs. 639, 639-3, 639-4, 639-5, 639-6, 639-7; Chanin Decl. 15-16. Although the
17
lodestar calculation is typically based upon the reasonable hourly rates of the forum
18
district, the Court based its prior Fees Award on Plaintiffs counsels higher outside
19
forum rates because no local law firm was able or willing to undertake representation of
20
Plaintiffs. Doc. 742. Counsel for Plaintiffs have mostly based their requested hourly
21
rates in the present application on the rates already awarded by the Court in the Fees
22
Award and deemed to be reasonable, and not on their otherwise standard billing rates,
23
which are in many cases substantially higher. The rates previously awarded by the
24
Court for 2013 have been adjusted slightly upward for 2014, 2015 and 2016 and/or are
25
applied as appropriate. Young Decl. 13-35; Pochoda Decl. 9-13; Wang Decl.
26
16-19; Castillo Decl. 5-7, 13; Chanin Decl. 16. In several instances, however, the
27
rates found by the Court in the September 11, 2014 Fees Award are not appropriate
28
11
starting points for the fees to be awarded now, and are therefore not used in the present
application.
Dan Pochoda:
In the Courts earlier fee award, Mr. Pochoda was awarded a rate of $350 in this
case for work from 2008 to 2013. Since the time of that decision, Mr. Pochoda has had
two determinations of his Phoenix market rate given his senior status and over forty
years of litigation experience. As set out in his attached Pochoda Declaration, the
Honorable Susan R. Bolton, U.S. District Court Judge for the District of Arizona, and
Peter L. Shaw, Appellate Commissioner for the Ninth Circuit Court of Appeals, found a
10
rate of $525 for Dan Pochoda to be reasonable. See Pochoda Decl. 17-18 (citing
11
Lopez-Valenzuela v. Maricopa County, No. 08-660, Doc. 289 (D. Ariz. June 25, 2015)
12
13
124 (9th Cir. Dec. 3, 2015) (attached as Ex. B to Pochoda Decl.). Mr. Pochoda is
14
seeking that same rate for the work in this case from late 2013 through the first half of
15
16
17
Plaintiffs request a rate of $425 for 2013 for Mr. Segura and Ms. Lai, and
18
reasonable projected rates of $445 for 2014, $465 for 2015, and $485 for 2016. See
19
Wang Decl. 18-19; Lai Decl. 8-13. Plaintiffs request that the rates for Mr. Segura
20
and Ms. Lai for 2013 be the same as that which the Court already awarded to Lesli
21
Gallagher of the Covington & Burling firm, i.e., $425. Doc. 742 at 3. Like Mr. Segura
22
and Ms. Lai, Ms. Gallagher graduated from law school in 2006. During the relevant
23
time period, Ms. Gallagher was based in San Diego, California. The Court earlier
24
granted Andre Segura, a 2006 law school graduate, a rate of $350 for 2013. Doc. 742.
25
As with Mr. Pochoda, the Ninth Circuit Appellate Commissioner and U.S. District Court
26
awarded Mr. Segura a higher rate, $405, for work performed in years prior to 2013. See
27
Wang Decl. 18; Pochoda Decl. Ex. B at 12 (Appellate Commissioner awarding rate of
28
$405 for work performed in 2011-12); Pochoda Decl. Ex. A at 6-7 (District Court
12
awarding rate of $405 for work performed in 2009-11). Mr. Segura remains based in
New York City at the National Legal Department of the American Civil Liberties Union.
Ms. Lai, a 2006 law school graduate, was earlier awarded a variety of rates, including
$275 for 2011, $300 for 2012 and $310 for 2013, based on the Maricopa County market.
Doc. 742. For a majority of the time covered by Plaintiffs previous fee application, Ms.
Lai had been employed by the ACLU of Arizona in Maricopa County. Lai Decl. 2,
12. For the entire time period covered by the current application, by contrast, Ms. Lai
has been based in Irvine, California; she therefore requests hourly rates that are within
the range of reasonable market rates for lawyers of comparable experience in Southern
10
California. Lai Decl. 5, 8-13. The requested rate for Mr. Segura and Ms. Lai of $425
11
for 2013 and projected rates for subsequent years are thus reasonable based on prior fee
12
13
14
15
16
17
18
19
20
21
22
C.
Non-taxable costs are also recoverable under 1988, as part of the reasonable
attorneys fee. Missouri v. Jenkins, 491 U.S.274, 285 (1989). Such costs include
Plaintiffs out of pocket expenses which would normally be charged to a fee paying
client. Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005) (quotations omitted) (citing
Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994)).
Plaintiffs have calculated their non-taxable costs and provided supporting
documentation for them. Young Decl. 37 and Ex. L; Pochoda Decl. 20-21 and Ex.
D; Wang Decl. 15 and Exs. C and D; Castillo Decl. 15 and Ex. 2. The amount
requested by Plaintiffs for non-taxable expenses is therefore reasonable.
23
24
25
26
27
28
13
1
2
3
4
5
6
7
8
VII.
Conclusion
Based on the foregoing, Plaintiffs respectfully request an award of $5,985,727.74
pursuant to 42 U.S.C. 1988(b) and the Courts power to compensate Plaintiffs for the
contempt, allocated as set forth in the table at page 2, supra.
By: /s/ Stanley Young
Cecillia D. Wang (Pro Hac Vice)
Andre I. Segura (Pro Hac Vice)
Nida Vidutis*
ACLU Foundation
Immigrants Rights Project
Daniel Pochoda
Brenda Muoz Furnish
ACLU Foundation of Arizona
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
1
2
CERTIFICATE OF SERVICE
I hereby certify that on July 20, 2016, I electronically transmitted the attached
document to the Clerks office using the CM/ECF System for filing. Notice of this filing
will be sent by e-mail to all parties by operation of the Courts electronic filing system
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Appendix A (all citations are to the Courts May 13, 2016 Findings of Facts, Doc. 1677)
Intentional, Willful, Purposeful Violations of Court Orders
Sheriff Arpaios failure to implement the preliminary injunction was both knowing and
intentional. 11
Sheriff Arpaios insistence that the MCSO retained the authority to detain unauthorized
persons without any state grounds for detention, does not indicate a failure to understand
the preliminary injunction, but rather a refusal to abide by it. 31
Sheriff Arpaio knowingly ignored the Courts order because he believed his popularity
resulted, at least in part, from his enforcement of immigration laws. 58
Sherrif Arpaios press releases indicate an awareness that the injunction was entered
and that Arpaio nevertheless continued to enforce all federal immigration laws. 62
The Court finds that Sheriff Arpaio knowingly and intentionally ensured that the
MCSO did not comply with the preliminary injunction. 65
The Court thus finds that Chief Deputy Sheridan was fully apprised of the terms of the
preliminary injunction and fully informed of Sherrif Arpaios decision to ignore it. He
was responsible for implementing its terms, and he did nothing to do so. 92
Instead of directing the HSU to cease such operations, or at least to conduct them
within the bounds of the preliminary injunction, Chief Sands, together with Sheriff
Arpaio, pressured the HSU to increase the number of unauthorized aliens they arrested
in their operations. 108
Chief Sands misled at least counsel for Arpaio, if not his own subordinates, about the
actual nature and effect of the injunction on the MCSOs operations. As such, he was
aware of the Courts order and did not take reasonable steps to implement it. 117.
Chief Deputy Sheridan was intentionally untruthful to the Monitor 229
Sheridan again intentionally and untruthfully stated that neither he nor Chief Trombi
remembered who directed Trombi to send the email, and that Trombi stated it was a
collective decision of all parties. 230
[T]he Court finds that in the July 20 meeting between the PSB staff and the Monitor
Team, the Monitor Team asked if any further IDs had been found. The MCSO thus
violated the Courts orders when Captain Bailey responded that no further IDs had been
found and no member of the MCSO disclosed the existence of the Knapp IDs during the
meeting. The MCSO did so with the intention of concealing the existence of the IDs
from the Monitor, the Parties, and the Court. 330
The Court therefore finds that when Chief Deputy Sheridan suspended the IA
investigation, he did so in a knowing and bad faith attempt to avoid the Courts order
requiring the MCSO to disclose the newly found IDs to the Monitor. 341
When Captain Bailey answered no to the Monitors question pertaining to
identifications, regardless of the phrasing of the question, he knowingly violated the
orders of the Court. Chief Deputy Sheridan, Captain Bailey, and Ms. Iafrate violated the
specific and direct orders of this Court without a justifiable basis for doing so. 348
16
1
2
3
Sheriff Arpaio personally did nothing to implement the Courts order, and the MCSO
did not produce the 50 hard drives that Mr. Montgomery had given to the MCSO. 355
Sheriff Arpaio did not follow the order of the Court that he personally direct the
preservation and disclosure of all the Montgomery documents. By failing to do so, he
violated the Courts direct order. 364
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
1
2
3
4
5
6
7
8
9
10
11
On the night the Court ordered the U.S. Marshalls to take custody of the IDs, Chief
Deputy Sheridan told the press that the IDs had never been disclosed by the MCSO
because nobody had ever asked for those IDs. In his testimony during the evidentiary
hearing, he was confronted with this statement and he indicated that he stands by it.
Chief Deputy Sheridans statement to the press was a knowing misstatement of fact. His
reassertion of that statement during the evidentiary hearing was also a knowing
misstatement of fact. 325-26 (Citations omitted)
In his September testimony, Chief Deputy Sheridan testified that Mr. Montgomery
suggested investigating the Court only after the MCSO threatened to stop paying him to
investigate other matters, and that the MCSO rejected Montgomerys invitation to
investigate the Court. . . The Court finds that Chief Deputy Sheridans testimony, made
under oath, constitutes deliberate misstatements of fact made in bad faith. 383, 385
In his April 24, 2015 testimony, Chief Deputy Sheridan testified that he did not believe
there were any matters referred to the PSB for investigation related to the Seattle
investigation. . . the Court finds that he had intentionally concealed in his April 24
testimony the existence of such investigation. 814
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18