1 

# In the United States Court of Federal Claims

SCIENCE APPLICATIONS INTERNATIONAL CORP., Plaintiff,

v. THE UNITED STATES, Defendant, and MICROSOFT CORPORATION, Intervenor

- Defendant, and L3 TECHNOLOGIES, INC., Third

- Party Defendant. No. 17

- cv - 00825 C Filed Under Seal : July 26, 2021 Publication: August 1 1 , 2021 1

ORDER On April 21, 2021, this Court awar d ed Plaintiff the reasonable costs and expenses , including attorneys ’ fees, associated with filing its Motion to Strike

. April 21, 2021 Mem. and Order (ECF No. 172) at 21. The Court also ordered Plaintiff to submit a certified accounting of reasonable costs and expenses associated with filing its Motion to Strike , including actual invoices , with descriptions, discounted for any redundancies , and explanation s regarding the reasonableness

1 This Order was filed under seal with instruction to the parties to propose appropriate redactions in accordance with this Court’s Protective Order (ECF No. 34). On August 9, 2021, the parties filed a “Joint Notice of Proposed Public Version of Court’s Sealed Order (D.I. No. 189)” with proposed redactions. (ECF No. 193.) Th is public version of the O rder incorporates the parties ’ proposed redactions.2 of the requested hourly rates and how the Government’s untimely disclosure caused Plaintiff to incur extra costs. Id. at 22. In its Accounting of Reasonable Costs and Expenses (ECF No. 176) , SAIC seeks to recover $87,292.08 in fee s for work performed by seven Cooley LLP employees: two partners, four associates, and one paralegal. Plaintiff’s Accounting (ECF No. 176) (Pl. Acct.) at 3; Declaration of DeAnna D. Allen (ECF No. 176

- 1) (Allen Decl.) ¶ 4. Plaintiff explains that the Gover nment’s untimely disclosure of its indefiniteness defense s primarily impacted SAIC in fo ur ways: (1) SAIC was forced to move to strike the Government’s indefiniteness theories ( ). (2) SAIC prepared for an d attended the hearing regarding its motion to strike ( ). (3) Following the hearing, SAIC provided the Court with supplemental briefing in support of it s motion to strike ( ). (4) When providing substantive responses to the Government’s indefiniteness theories, S A IC had to expend additional time and effort because those defenses were not timely disclosed ( ). Pl. Acct. at 2-4. However, Plaintiff is seeking costs and fees in association with only the first three
cat egori es and has not included at least in costs and fees incurred in connection with developing and disclosing definiteness theories resulting from the untimeliness of the Government’s disclosures. 2 Id. at 2. SAIC argues its requested attorneys’ fees are reasonable

2 Specifically, Plaintiff is not seeking “(1) the increase in costs and fees associated with the preparation of Dr. Welch’s rebuttal expert report resulting from the untimely nature of the Government’s disclosure of its indefiniteness positions; (2) the increase in costs and fees associated with the preparation and attendance of expert depositions, resulting from the untimely nature of the Government’s indefiniteness positions; (3) fees from Cooley associates Jim Hughes and Stephen Scaife pertaining to the Motion to Strike; (4) fees deemed redundant and removed by SAIC; (5) co

- counsel Troutman Pepper’s fees related to the [M] otion to [S] t rike; (6)

. . . a request for fees associated with preparation of this Accounting; and (7) all costs associated with preparation of the Motion to Str i ke, for the hearing regarding the Motion to Strike, and supplemental briefing related thereto. SAIC is fur ther reduc [ed] th e amount requested by [its] Accounting by reducing the fees for the second round of briefing (i.e., supplemental briefing on the Court’s authority to award costs and fees) by 30%.” Allen Decl. ¶ 20.4 Dawn Renee Roelofs Paralegal
Subtotal after : SAIC: Subtotal after 30% discount: SAIC:
Pl. Acct. Ex. 2 (ECF No. 176-3). Plaintiff support s its accounting with a sworn declaration by Ms. Allen and a copy of the relevant invoices and accounting records. Plaintiff also relies on (1) the American Intellectual Property Association’s (AIPLA ’s ) biannual survey published in 2019 pertaining to the year 2018 and (2) the National Law Journal Report from 2017 to corroborate the reasonableness of its rates

. Pl. Acct. at 6 -7. Appropriate fees are calculated u sing the lodestar method by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. See Large Audience Display Sys., LLC v. Tennman Prods., LLC , 660 F. App’x 966, 972-73 (Fed. Cir. 2016). The Government does not contest the hours alleged and accepts the amount of time billed by Plaintiff. Defendant’s Response (ECF No. 178) (Def. Res p.) at 4. The Court also finds that the alleged hours billed appear to be r easonable. The only item in dispute is whether SAIC’s hourly rates for attorneys and its paralegal are reasonable. This C ourt has broad discretion in determining whether attorneys ’ fees are reasonable.
See Hensley v. Eckerhart , 461 U.S. 424, 433 (1983) (“It remains for the district court to determine what fee is ‘reasonable.’”); Bywaters v. United States , 670 F.3d 1221, 1228 (Fed. Cir. 2012) ; Blum
v. Stenson , 465 U.S. 886, 888 (1984). The fee applicant bears the burden of proving a reasonable hou rly rate “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum , 465 U.S. at 895 n.11 ; see also Avera v. Sec’y of Health & Hum. Servs. , 515 F.3d 1343, 1348 (Fed. Cir . 2008) . For purposes of5 this action , the rate should be based on the forum of the District of Columbia , one of the most expensive legal markets in the country. “Although a court may look to other factors to determine a reasonable rate, a firm’s normal

an d customary rates are the best evidence that ‘the rate is comparable to the market rate.’” Plaintiff’s Reply (ECF No. 184) (Pl. Reply) at 2 (citing Perfect 10, Inc. v. Giganews, Inc ., No.

cv - 11

- 07098, 2015 WL 1746484, at *5 (C.D. Cal. Mar. 24, 2015); VR Optics, LLC v. Peloton Interactive, Inc. , No. 16

- cv - 6392, 2021 WL 1198930, at *5 (S.D.N.Y. Mar. 30, 2021)). “Where, as here, attorney and client have agreed on the time to be spent and the rates to be charged, the market has spoken and there is no reason for the court to reverse engineer the process.” Fla. Rock Indus., Inc. v. United States , 9 Cl. Ct. 285, 290 (1985). Plaintiff provided a sworn declaration from Ms. Allen averring that the requested costs and fees are reasonable and are in line with the cu stomary rates charged by Cooley LLP to its clients. See generally Allen Decl. Moreover, Plaintiff has provided its actual bills. Allen Decl. ¶¶ 25

- 26; Allen Decl. Ex. 4 (ECF No. 176

- 5) at 11, 1 3 , 16, 21

- 23, 30

- 35, 38

- 39, 43

- 46. 3 Plaintiff has taken a conservative approach when calculating costs and attorneys’ fees ; it excluded all costs not directly related to the Motion to Strike, hearing, and supplemental briefing , and additionally reduced potentially duplicative entries

. Pl. Acct. at 7

- 9 ; Allen Decl. ¶ 20

. Defendant takes issue with the requested rates because they exceed those listed in the AIPLA economic survey data for similarly situated private intellectual property attorneys in Washington, D

. C. Def. Res p
. at 3

- 4

. The Government argues that although Plaintiff is correct that intellectual property is a specialized area, the AIPLA itself reflects intellectual property

specific hourly rates and therefore already take s this into account. Id. at 4.

3 T hese citations refer to the CM/ ECF page n umber s located in the heading of each page

.8 Government agr eed to pay $21.9 billion in exchange for 120,000 IVAS HUD devices); Pl. Opening Claim C onstruction B rief (ECF No 90) at 5

- 6 (referencing “ contract awards to BAE Systems and DRS Technologies for not to exceed values of $444.8 million and $367 million, respe ctively,” and “a May 16, 2018 contract award to L3 Technologies, Inc. worth up to nearly $400 million, and a November 20, 2018 other transaction agreement with Microsoft worth up to nearly $500 million”) ; see also Defendant’s Objections and Second Supplemental Responses to Plaintiff’s Second Set of Interrogatories (7

- 9) (ECF 179

- 2) (SEALED) at 17

- 29 (listing agreements, sums paid, and units purchased)

. A gain, SAIC’s requested rates are supported by actual invoices demonstrating that these amounts are SAIC’s counsel’s normal and customary rates. For these same reasons , the
Court also finds Ms. Roelofs’s hourly rate as a paralegal to be reasonable. Lastly, Defendant’s reliance on Fast S

hip to request a reduction of the fee award is inapposite

. While the Court opted not to take the drastic action of striking Defendant’s defenses, Plaintiff prevailed on the merits of its Motion to Strike by successfully demonstrating the Government’s discovery violation. See April 21, 2021 Mem. and Order at 22

. Accordingly, consistent with this Court’s April 21, 2021 Memorandum and Order, this
Court finds Plaintiff’s $87,292.08 in requested fees to be reasonable and so awards t h at amount to SAIC. The Government shall ma ke payment to SAIC by September 8, 2021

. I f additional time is needed to comply with this Order , Defendant may request an extension.

IT IS SO ORDERED.

s/Eleni M. Roumel ELENI M. ROUMEL Judge