The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Currently before the Court is the plaintiffs' motion for attorney's fees and costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A) (2006), which the plaintiffs contend were accrued while pursuing their challenge to the defendant's regulation of a chemical compound known as ammonium perchlorate composite propellant ("APCP"), commonly used in hobby rocket motors, as an explosive under 18 U.S.C. § 841(d) (1994). See Tripoli Rocketry Association's and National Association of Rocketry's Motion for Attorney's Fees and Costs Pursuant to the Equal Access to Justice Act. The defendant opposes the motion.*fn1
See Defendant's Opposition to Plaintiffs' Petition for Attorney's Fees and Costs ("Def.'s Opp'n"). For the following reasons, the Court must grant the plaintiffs' motion in part and deny the motion in part.
It took approximately nine years to bring this case to final resolution. In the course of this journey, the Court ruled on the parties' initial cross-motions for summary judgment in 2004. The plaintiffs appealed this Court's rulings and the Circuit Court, reviewing the matter de novo, reversed in part this Court's rulings, holding that the defendant's classification of APCP as an explosive based on its determination that the substance functions by deflagration violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A) (2000), because the defendant's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. Tripoli Rocketry Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 437 F.3d 75, 80-81 (D.C. Cir. 2006). The Circuit therefore remanded the matter to this Court "with instructions to remand the case to the agency for further consideration consistent with [its] decision." Id. at 84. The remand was ordered because the Circuit Court found that "[t]he agency ha[d] never provided a clear and coherent explanation for its classification of APCP." Id. at 81. The Court further found that the agency "ha[d] never articulated the standards that guided its analysis" that would permit a court sitting in review to "determine whether [the defendant's] judgment reflect[ed] reasoned decisionmaking." Id.; see also Apr. 20, 2006 Order. In its subsequent October 13, 2006 memorandum, the agency informed the Court that it had complied with the Circuit's mandate and was affirming its earlier decision to classify APCP as an explosive. Defendant's Notice of Agency Decision (Oct. 13, 2006). The plaintiffs thereafter amended their complaint, the defendant filed its answer to the amended complaint, and both parties crossed-moved again for summary judgment based on the certified administrative record.
On March 13, 2009, this Court held a hearing on those motions. After considering the parties' written submissions, the administrative record presented to the Court, the applicable legal authority, and the oral arguments presented by the parties, the Court denied the defendant's motion and granted the plaintiffs' motion finding that the agency's decision did not satisfy the standard for evaluating agency rulemaking because it was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A); see also Mar. 16, 2009 Order. Specifically, the Court found that the defendant did not adequately explain why it came to the decision it did in light of contrary evidence in the administrative record submitted by the plaintiffs, which tended to show that APCP can burn at a rate lower than the rate designated by the defendant as the threshold for explosives, and therefore would require a change in the proposed rule if the plaintiffs' evidence is correct. See Mar. 16, 2009 Order. The Court concluded that the agency's shortcoming was its failure to articulate any rationale for finding that the relevant and significant evidence in the record that conflicted with its position was unpersuasive, which it seemingly out-of-hand dismissed merely because it was contrary to the agency's ultimate conclusion. Id. The defendant did not appeal the Court's ruling, and the plaintiffs thereafter filed the motion now before Court.
The plaintiffs move for an award of attorney's fees and costs pursuant to the EAJA. The EAJA provides, in relevant part, that:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (emphasis added). Thus, to award attorney's fees under the EAJA, the Court must find that (1) the plaintiffs are "prevailing part[ies];" (2) the government was not "substantially justified" in the position it took; and (3) the attorney's fees and cost requests are reasonable. Sullivan v. Hudson, 490 U.S. 877, 883 (1989). Once the plaintiffs establish that they are prevailing parties under the EAJA, the defendant has the burden of showing that its position was "substantially justified" or that special circumstances make the award unjust. Taucher v. Brown-Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005). Finally, it is incumbent upon the plaintiffs to establish that the fees and costs requested are reasonable. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969-70 (D.C. Cir. 2004) (citing Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984) ("[C]courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates.")).
The defendant concedes that the plaintiffs are "prevailing parties." Def.'s Opp'n at 8. However, the defendant opposes any award of attorney's fees or costs under the EAJA, contending that the government's actions were substantially justified. Id. Additionally, if the Court were to award attorney's fees and costs pursuant to the EAJA, the defendant contends alternatively that the amount requested should be reduced because the number of hours the plaintiffs' attorneys contend they devoted to this case is unreasonably large and they are not entitled to enhanced fee rates as a result of scientific training and specialized knowledge in any science or field of expertise related to rocketry. Id. at 13-22.
In its opposition, the defendant asserts that the plaintiffs' failure to consult with them prior to filing their motion warrants denial pursuant to Local Civil Rule 7(m). Def.'s Opp'n at 6.
In response, the plaintiffs argue that their application for costs and fees is not a nondispositive motion, but a dispositive motion, which is not within ...