1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL VENTURE CAPITAL ASSOCIATION, et al. , Plaintiffs, v. Civil Action No. 17-1912 (JEB) KIRSTJEN M. NIELSON, Secretary, U.S. DEPARTMENT OF HOMELAND SECURITY, et al. , Defendants.

MEMORANDUM OPINION This case involves the Departme nt of Homeland Security’s decisi on to delay implementing an Obama-era immigra tion rule, the In ternational E ntrepreneur Rule, 82 Fed. Reg. 5,238 (Jan. 17, 2017). The Rule would ha ve allowed certain for eign entrepreneurs to obtain immigration “parole” — that is, t o temporarily enter the United States despite lacking a visa or green card. It was finalized i n the waning hours of the Obama administration and was set to take effect 180 days later — on Jul y 17, 2017. On the eve of that d ate, however, the Department issued a new rule (“the Delay Rul e”) delaying the effective dat e for another eight months, until March 14, 2018. Plaintiffs brought suit last Septe mber, alleging that the agenc y had violated the Administrative Procedure Act i n promulgating the l ater rule. T his Court agreed and granted summary judgment in their favor , vacating the Delay Rule in the process. Plaintiffs’ counsel now move for an award of attorney fees pursuant to the Equal Ac cess to Justice Act (EAJA), which “directs a court to awar d ‘fees and other expenses’ to pr ivate parties who prevail in2 [certain types of] litigation aga inst the United States if, amo ng other conditions, the position of the United States was not ‘substa ntially justifie d.’” Commissi oner, INS v. Jean, 496 U.S. 154, 155 (1990) (quoting 28 U.S.C. § 24 12(d)(1)(A)). Although there is no dispute that Plaintiffs have prevailed here, both sides con test whether the Government’ s position was s ubstantially justified. Defendants also decry the amount of fees sought. F inding that Plaintiffs have the better of both arguments, the Cour t will grant their Motion and award them $102,316.67.
I. Background The Court previously provided a detailed factual background of the “two competing rules” in this case: (1) the International Entrepreneur Rule (I E Final Rule) and (2) the Delay Rule. See Nat’l Venture Capital Ass’n v. Duke, 291 F. Supp. 3d 5, 9-10 (D.D.C. 2017). For now, it suffices to briefly outline the suit’s procedural histo ry. Plaintiffs include two forei gn nationals (Atma and Anand Krishn a), two U.S. businesses (Omni Labs and Occasion), and the National Venture Capital Asso ciation (NVCA). Two months after the Delay Rule’s issuance, they brought this suit seeking to invali date it, see Compl., ¶ 11, and moved for a prelim inary injunction ten days l ater. See ECF No. 12. The Court heard oral argumen ts on the Motion on October 20, 2017, a nd, after discussion with the parties, decided that the case co uld be resolved expeditiously on summary judgment. See Minute Order of October 25, 2017. Follo wing an expedited round of bri efing, the Court granted judgment in Plaintiffs’ favor. See NVCA, 291 F. Supp. 3d at 21 . Consistent with that decision, it also vacated the Delay Rule. At all times, Plaintiffs were re presented by the law firm of Ma yer Brown, LLC, including principally one partner, Paul Hughes, and one associate, John L ewis. See ECF No. 31-6 (Declaration of Paul Hughes) , ¶¶ 1-3, 11. They also enlisted t wo attorneys from the American3 Immigration Council — Melissa Cro w and Leslie Dellon — for thei r expertise in immigration laws. Id., ¶ 9. With the litig ation largely wrapped up, the p arties have file d dueling briefs on attorney fees, which are now ripe for review.
II. Legal Standard Under the “American Rule,” eac h party ordinarily bears its own attorney fees unless there is express statutory authorizati on to the contrary. See Alyesk a Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 245 (1975). One such statute is the EAJA, which “renders the United States liable for attorney’s f ees for which it would not otherw ise be liable, and thus amounts to a partial waiver of sovereign i mmunity.” Ardestani v. INS, 502 U .S. 129, 137 (1991) (citations omitted). Pursuant to those provisions, the Court must award attorney fee s to a “prevailing party” in an action against the United S tates “unless [it] finds that the position of the U nited States was substantially justified or that sp ecial circumstances make an a ward unjust.” 28 U.S.C. § 2412(d)(1)(A). To qualify as a pr evailing party, a plaintiff must achieve “a resolution of the dispute which changes the legal relationship between” the parti es. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dis t., 489 U.S. 782, 792 (1989). An indivi dual is eligible for an EAJA award, furthermore, only if her “net worth did not exceed $2,00 0,000 at the time the civil action was filed.” 28 U.S.C. § 2412(d)(2)( B). Likewise, a corporatio n (such as NVCA) must have a net worth below $7,000,000 and fewer than 500 employees. Id. The motion for an EAJA award, with an accompanying itemized statement of time expended and bi lling rates, must be filed “within thirty days of final judgment in the action.” Id. § 24 12(d)(1)(B).4 III. Analysis The Government, wisely, does not con test that Plaintiffs were t he prevailing parties in this case. After all, the Court awarded them complete relief, vacating the challenged Delay Rule in the process. Nor do Defendants dispute that Plaintiffs are financially eligible to receive an EAJA award. The Court, too, agrees that each Plaintiff has pro vided sufficient documentation in that respect. See ECF Nos . 31-1 (Declaration of Bobby Franklin ); 31-2 (Declaration of Atma Krishna); 31-3 (Declaration of Ana nd Krishna); 31-4 (Declaratio n of Alex Modon); 31-5 (Declaration of A ksh Gupta). The Government instead maintains that its actions were substant ially justified, thereby precluding any award. Alternativ ely, it argues that the fees r equested by Plaintiffs are unreasonable and asks the Court to reduce any award accordingly . The Court takes each position in turn.
A. Substantial Justification “Once an applicant’s status as a prevailing party is establishe d, the government has the burden of showing that its legal position was substantially jus tified or that special circumstances make an award unjust.” Taucher v. Brown-Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005) (citation omimtted). “The governme nt’s position is substantial ly justified if it is ‘justified to a degree that could satisfy a reas onable person’ or, in other wor ds, has ‘a reasonable basis both in law and fact.’” Id. (quoting P ierce v. Underwood, 487 U.S. 552 , 565 (1988)). The agency must show “both” that (1) the “underlying agenc y action” and (2) “th e arguments defending that action in court” satisfy that standard. See Halverson v. Slate r, 206 F.3d 1205, 1208 (D.C. Cir. 2000) (emphasis added).5 The Court begins with the “underl ying agency action”: the DelayRule. Defendants promulgated that Rule without a dhering to the APA’s most basic requirements: that they provide “[g]eneral notice of [its] propos ed rule making” in the Federal Register, as well as “an opportunity” for the public to com ment before promulgating a ru le. See 5 U.S.C. § 553(b), (c). While an agency may waive those prerequisites for “good cause,” the D.C. Circuit has repeatedly warned that the “the good cause exception” to the APA’s notice- and-comment rule “is to be narrowly construed and only reluc tantly countenanced.” Mack Tr ucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (quoting Util. S olid Waste Ac tivities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001)). The APA “excuses notice and comment,” it has stre ssed, only in “emergency situations, or where delay could r esult in serious harm.” Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004) (citations omitted). What was the “emergency” justify ing the Delay Rule here? In a total of three paragraphs in the Federal Register, DHS offe red two rationales for invokin g the good-cause exception: (1) expense to the agency; and (2) pot ential confusion if the IE Fi nal Rule were to take effect. See 82 Fed. Reg. at 31,888. Neither posi tion “substantially justified” jettisoning the APA’s noticeand-comment requirements. First, “the expense of implemen ting the new parole system.” NV CA, 291 F. Supp. 3d at 17. The Court dismissed that co ncern, and although “the govern ment can lose on the merits and nevertheless be found to have tak en a substantially justified p osition,” Taucher, 396 F.3d at 437, this was not a close call. Fir st, Defendants cited no cases ( and still have marshaled none) for the proposition that an agency ca n invoke the good-cause exception simply to protect its own bottom line. See NVCA, 291 F. Supp. 3d at 17. Even assuming it could , the Court of Appeals has reserved only the “possibility t hat a fiscal calamity could con ceivably justify bypassing the6 notice-and-comment requirement .” Sorenson Comm’ns Inc. v. FCC, 755 F.3d 702, 707 (D.C. Cir. 2014) (emphasis added). Far from establishing “fiscal pe ril,” DHS made no “factual findings supporting the realit y of the threat.” Id. at 706. I ndeed, it had previous ly found that the rule would not “generate additi onal processing costs to the gov ernment to process applications.” 82 Fed. Reg. at 5,274. The agency thus lacked a “reasonable ba sis in law and fact” to skip notice and comment on that basis. Nor does its justification fare better in hindsight. During li tigation, DHS pitched the IE Final Rule as an “extraordinary change,” which would require si gnificant resources to implement. See NVCA, 291 F. Supp. 3d at 18. The Court was ske ptical of that argument at the time, noting the agency expected it might “rece ive and process 2,940 applications related to the Rule — hardly a change of ‘tect onic’ proportions.” Id. (quotin g 82 Fed. Reg. at 5,273). As it turns out, the agency now says it has received only 13 applicat ions since implementing the IE Rule. See ECF No. 41-1 (Declarat ion of Daniel Renaud), ¶ 4. O f this baker’s dozen, it has processed none to completion. Id., ¶ 8-10. The Court can hard ly believe that the agency has expended many (if any) resources to “hir[e] and train[] additio nal adjudicators” during this process, see NVCA, 291 F. Supp. 3d a t 17, making the agency’s c ost justification a ll the weaker. Second, Defendants insisted that implementing the IE Final Rule “would sow confusion and would likely cause the waste of resources by multiple stake holders with interests in th[e] rulemaking.” 82 Fed. Reg. at 31,88 8. “Most concretely, the ag ency worrie[d] that if the IE Final Rule were left in place, foreign entrepreneurs might misguidedl y rely on it.” NVCA, 291 F. Supp. 3d at 19 (citing 82 Fed. Reg. at 31,888). In such case, it feared that a pplicants could be “caught betwixt and between” if it subsequently rescinded the r ule. Id. As the Court explained, however, there was a simple s olution to any such problem, and o ne in line with the APA: “[A]7 notice of proposed rulemaki ng would, by definition, alert the p ublic that the agency was considering delaying or rescinding the Rule.” Id. Faced with that straightforward alternative to the Delay Rule, the Government was not substantially justified in plowing ahead without notice and comment. That alone entitles Plaintiffs to fees. Defendants alternative ly claim that they were “substantially justified” in r aising a standing defense, but ev en were that so, it would speak only to the Government’s “arguments defending th[e] action in court. ” Halverson, 206 F.3d at 1208. It would have no bearing on whether “the underlying agency acti on” was itself substantially justified. Id. The EAJA, of cour se, requires that the agency justify both the action “upon which the civil action is based” “i n addition to the position taken b y the United States in the civil action.” 28 U.S.C. § 2412(d)(2)(D ) (emphasis added). If it fa ils to make either showing, Plaintiffs are entitled to fees . See SecurityPoint Holdings, I nc. v. Transp. Sec. Admin., 836 F.3d 32, 40 (D.C. Cir. 2016). Such is the case here.
B. Fees The Court’s job is not yet done. H aving concluded that the Gov ernment’s position was not substantially justified, it mu st calculate an appropriate f ee award. In doing so, it notes that Plaintiffs “bear the burden of demo nstrating the reasonableness of . . . their fee request.” Am. Petroleum Inst. v. EPA, 72 F.3d 907, 912 (D.C. Cir. 1996). Her e, they have complied with the EAJA directive to submit an “itemized statement . . . [with] t he actual time expended and the rate at which fees and other expenses were computed.” 28 U.S.C . § 2412(d)(1)(B); see Hughes Decl., Exhs. A-G. Summing up those e ntries, they report spendi ng a total of 602.75 hours on this case, including 159.25 hours li tigating this fees Motion. See ECF No. 39 (Reply) at 16. They then request a range of amounts topping out at $382,063.75 . Id.8 To determine whether that reque st is reasonable, the Court must “focus on two questions: (1) whether the attorneys charge d a reasonable hourly rate and (2) whether the time attorneys logged on the case was reasonable — i.e. , did the attorneys waste or otherwise unnecessarily spend time on the matter.” In re Donovan, 877 F.2d 982, 990 (D .C. Cir. 1989) ( per curiam ). Defendants, not surprisingly, att ack Plaintiffs at each step.
1. Hourly Rate Ordinarily, the EAJA allows for reimbursement up to $125 per h our, see 28 U.S.C. § 2412(d)(2)(A), which the Court may then adjust upwards — base d on annual, regional consumer-price-index data — to acco unt for cost-of-living incre ases. See Porter v. Astrue, 999 F. Supp. 2d 35, at 38-39 (D.D.C. 2013) ( explaining CPI adjustme nts to attorney fees). In this case, the Government agrees that a cost-of-living adjustment is appropriate, see Opp. 10 n.7, and the parties peg the EAJA hourly rate at $196.78 in 2017 (includ ing for both attorneys and paralegals). See Reply a t 15. In 2018, the rate ticks up slig htly to $198.99. Id. Multiplying Plaintiffs’ hours worked by these C PI-adjusted statutory rates, Defendants would owe $118,961.09. Id. at 16. Plaintiffs acknowledge the EAJA rate applies to the “garden var iety case,” but argue for a departure from that general rule , asking the Cou rt to instead c ompensate them at their standard billing rate. See ECF No. 31 (Mo t. for Attorney Fees) at 14-16 . This is no trivial difference. Using their market rate, counsel request $382,063.75 — an amoun t over 300% larger than the EAJA rate. At minimum, they as k the Court to adopt the LSI-adj usted Laffey matrix, which is “a version of the rate table tha t judges in this district frequ ently use to calculate prevailing hourly rates for ‘complex federal litigation’ services, as adjusted fo r inflation.” Citizens for Responsibility & Ethics in Wash. v. DOJ, 2016 WL 554772, at *1 (D.D.C. Feb. 11, 2016)9 (citation omitted). Applying that formula, they calculate thei r total tab as $317,523.25, still a bump of nearly $200,000 over the ba se amount. See Reply at 16. The Court declines to depart f rom the EAJA rate. To do so, it would need to find a “special factor, such as the lim ited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U. S.C. § 2412(d)(2)(A). To establish a “limited availability of qualified attorneys, ” Plaintiffs must s how that their counse l possess some “specialized skill” that is “necessary” in the litigation and “can be obtained only at rates in exce ss” of the cap. See Underwood, 487 U.S. at 572. Here, couns el cite their “special ized expertise” in immigration law, see Mot. at 15, but they have not argued (much less demons trated) that immigration lawyers can be obtained in the District onl y at their market rates. Plaintiffs instead seem to argue that their expertise, even if not in short supply, necessarily merits a departure from the EAJA rate. To be sure, “[i]mmigration law can be complex, and it is a legal specialty of its own.” Padilla v. K entucky, 559 U.S. 356, 369 (2010). “[A] complex statutory and regul atory framework” alone, however , does not qualify as a special factor under the EAJA. See I n re Sealed Case 00-5116, 254 F.3d 233, 236 (D.C. Cir. 2001) (finding expertise in federal ele ction law did not warrant depa rture). To hold otherwise would swallow the rule, as EAJA cases frequently involve “intricate f ederal statutory schemes.” Perales v. Casillas, 950 F.2d 1066, 1078 (5th Cir. 1992) (decli ning to treat specialty in immigration law as a special fact or). The Supreme Court has co unseled against allowing exceptions of such “broad and gene ral application.” Underwood, 487 U.S. at 573. In any event, Plaintiffs have not s hown that their counsel’s im migration expertise was “needful for the litigation in question.” Id. This case did n ot require “knowledge of . . . esoteric nooks and crannies of immigrati on law.” Mot. at 15 (quoting Mu hur v. Ashcroft, 382 F.3d 653,10 656 (7th Cir. 2004)). Rather, it boiled down to whether the ag ency had followed the APA’s notice-and-comment requirements , a recurring question in admini strative law. The Court therefore believes the EAJA pr ovides the appropriate rate. See Truckers United for Safety v. Mead, 329 F.3d 891, 895 (D.C. Cir. 2003) (“[N]othing in EAJA or its legislative history indicates that the Congress inte nded to entitle ‘all lawyers pr acticing administrative law in technical fields’ to a fee enhancement.’”) (citation omitted).
2. Reasonable Hours Now that it has the rate, the Court needs the other multiplier — i.e. , the number of hours. The Supreme Court has instructe d courts to “exclude from [the] fee calculation hours that were not ‘reasonably expended.’” H ensley v. Eckerhart, 461 U.S. 424 , 434 (1983) (quoting S. Rep. No. 94-1011, at 6 (1976)). District courts have “wide discreti on to reduce individual fee entries.” Baldridge v. Nicholson, 19 Vet. App. 227, 241 (2005) ; see also Jean, 496 U.S. at 163 (“[A] district court will always retain substantial discretion in fixing the amount of an EAJA award.”). Here, the Government a sks the Court to reduce Plaint iffs’ award “by a fixed rate of fifty percent,” arguing that the ir hours are (1) insufficientlydetailed and (2) excessive. See Opp.
at 23. The Court cannot agree on either score. On the first, the Gove rnment largely criticizes counsel’s entries related to “[p ]reparing for oral argument” or “[p]artcipat[ing] in moot court for PI oral argument” as too va gue. Id. at 22-23. It is not clear , however, what more Defendants would have Plaintiffs say. For t his Court to award fees, “it i s not necessary to know . . . the precise activity to which eac h hour was devoted.” Jordan v. DO J, 691 F.2d 514, 520 (D.C. Cir. 1982) (quoting Nat’l Ass’n of Con cerned Veterans v. Sec’y of De f., 675 F.2d 1319, 1326 (D.C. Cir. 1982)). Rather, “no more is necessary than ‘fairly defini te information as to the hours11 devoted to various general activities, e.g. , pretrial discovery, sett lement negotiation, and the hours spent by various classes of attorneys, e.g. , senior partners, jun ior partners, (and) associates.’” Id. Preparing for “oral argument” — like conduc ting “pretrial discovery” or “settlement negotiations” — meets that standard. Id. Beyond that, the Government challe nges entries such as the 0.5 hours counsel spent on “[c]ase management” or the hour on a “litigation team call.” S ee ECF No. 37 (Opp.) at 22-23. The Court “declines . . . to engage in the kind of ‘nitpicking’ invited by [such] smaller-scale objections.” Am. Immigra tion Cncl. v. DHS, 82 F. Supp. 3d 396, 411 (D.D.C. 2015) (CREW v. DOJ, 826 F. Supp. 2d 226, 229 (D.D.C. 2011)). Instead, its “su rvey of Plaintiff[s’] billing entries reflects . . . that the va st majority are appropriatelydetailed.” Id. at 412. “ No reduction is warranted to account for a handful of entries that could have p erhaps benefitted from slightly more detail.” Id. Nor were Plaintiffs’ hours so exc essive as to merit an across-t he-board reduction. While the Court will, as explained be low, strike limited entries, it believes a scalpel more appropriate than a hatchet for several reas ons. First and foremost, Plaint iffs fully prevailed during the litigation, achieving th e entirety of their r equested relief. Degree of success is “the most critical factor” in evaluating the reas onableness of a fee award. See H ensley, 461 U.S. at 436. Second, they achieved that result effi ciently. Throughout this case, c ounsel (1) filed a Complaint (which required interviews with five di fferent clients); (2) fully bri efed a preliminary- injunction motion; (3) presented oral argument; a nd (4) fully briefed summary judg ment on an expedited basis. They did all this in 450 hours, r elying principally on two lawy ers and one paralegal. That number clocks in far below analogous cases. See, e.g., Am. Pet roleum Inst., 72 F.3d at 916 (allowing 560 hours for briefi ng a stay petition and oral argum ent); Loving v. IRS, 2014 WL12 12778284, at *9 (D.D.C. Sept. 19, 2014) (allowing 1300 hours fo r litigation challenging IRS rule). Third, Plaintiffs have c omplied with the Supreme Court’ s admonition to exercise “‘billing judgment’ with respect to hours worked.” Hensley, 461 U.S. at 437; see also Mot. at 13 (noting voluntary exclusion of over 125 hours). The Court thus generally finds r easonable the total number of h ours for which Plaintiffs seek reimbursement, subject to t hree exceptions. First, Defend ants point out that counsel clocked four hours to “[p]repare fo r oral argument” after the a ctual oral-argument date. See Opp. at 22 (citing Hughes Decl., Ex h A). Plaintiffs admit that they listed those hours inadvertently and omit them from their final tabulations. See Reply at 11 n.5, 15. The Court, of course, will exclude them as well. Second, Plaintiffs report spe nding 9.5 hours on “press strategy ” and “coordination with clients regarding media inquiri es and outreach.” Mot. at 6-7. “In this circuit,” however, “the [G]overnment cannot be charged f or time [Plaintiffs] spen[d] in discussions with the press.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004); API, 72 F.3d at 913 (holding courts “cannot authori ze . . . reimbursement” for “[c] osts associated with media relations”); Harvey v. Mohammed, 951 F. Supp. 2d 47, 65 (D.D.C. 2013) (“In the EAJA context, the D.C. Circuit has stated tha t discussions with press are not compensable.”). Other circuits, too, have disallowed costs for effo rts to “sway public opinion. ” See, e.g., Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994); Hald erman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 ( 3d Cir. 1995); Greater Lo s Angeles Council on Deafness v. Cmty. Television of S. Cal., 813 F.2d 217, 221 (9th Cir. 198 7). Following their lead, the Court will disallow the 9.5 logge d for press-related activities13 Third, Defendants challenge Plain tiffs’ fees for the instant Mo tion. The Court generally finds that such “fees on fees” ar e appropriate, as Plaintiffs p revailed on the “major issue[]” in this case: whether they were “entitled to fees in the first pla ce.” AIC, 82 F. Supp. 3d at 414. That said, the 159.25 hours spent on the Motion were excessive. Counsel provide no justification for the time e xpended, and their hours are out of step with those regularly allowed on such motions. See New Jersey v. EPA, 703 F.3d 110, 116 (D.C . Cir. 2012) (allowing 91 of the requested 227.5 hours spent on a m otion for fees); Am. Wrec king Corp. v. Sec’y of Labor, 364 F.3d 321, 331 (D.C. Cir. 2004) ( per curiam ) (calling 118 hours billed for an EAJA petition “an excessive amount” and allo wing recovery of 59 hours); see a lso Loving, 2014 WL 12778284, at *8 (allowing 80 of the requested 190.25 hours for requested fees motion). In keeping with those cases, the Cour t will allow Plaintiffs to re cover 85 hours of attorney time dedicated to th is application. It will thus reduce Plaintiffs ’ hours and award fees as follows :

Year Attorney Hours Requested Reduction Attorney Hours Final Rate Total 2017 447.50 (13.5) 434 $196.78 $85,402.52 2018 159.25 (74.25) 85 $198.99 $16,914.15

All 606.75 (87.75) 519 $102,316.67

IV. Conclusion For the foregoing reasons, the Court finds that Plaintiffs were prevailing parties and that the position taken by the Governme nt was not substantially just ified. It also finds that Plaintiffs are entitled to $102,316.67 in attorne y fees. A separate Order so stating will issue this day.14 /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 13, 2018