United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
case involves the Department of Homeland Security's
decision to delay implementing an Obama-era immigration rule,
the International Entrepreneur Rule, 82 Fed. Reg. 5, 238
(Jan. 17, 2017). The Rule would have allowed certain foreign
entrepreneurs to obtain immigration “parole” -
that is, to temporarily enter the United States despite
lacking a visa or green card. It was finalized in the waning
hours of the Obama administration and was set to take effect
180 days later - on July 17, 2017. On the eve of that date,
however, the Department issued a new rule (“the Delay
Rule”) delaying the effective date for another eight
months, until March 14, 2018.
brought suit last September, alleging that the agency had
violated the Administrative Procedure Act in promulgating the
later rule. This 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 Access to Justice Act (EAJA),
which “directs a court to award ‘fees and other
expenses' to private parties who prevail in [certain
types of] litigation against the United States if, among
other conditions, the position of the United States was not
‘substantially justified.'” Commissioner,
INS v. Jean, 496 U.S. 154, 155 (1990) (quoting 28 U.S.C.
§ 2412(d)(1)(A)). Although there is no dispute that
Plaintiffs have prevailed here, both sides contest
whether the Government's position was substantially
justified. Defendants also decry the amount of fees
sought. Finding that Plaintiffs have the better of both
arguments, the Court will grant their Motion and award them
Court previously provided a detailed factual background of
the “two competing rules” in this case: (1) the
International Entrepreneur Rule (IE 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
include two foreign nationals (Atma and Anand Krishna), two
U.S. businesses (Omni Labs and Occasion), and the National
Venture Capital Association (NVCA). Two months after the
Delay Rule's issuance, they brought this suit seeking to
invalidate it, see Compl., ¶ 11, and moved for
a preliminary injunction ten days later. See ECF No.
12. The Court heard oral arguments on the Motion on October
20, 2017, and, after discussion with the parties, decided
that the case could be resolved expeditiously on summary
judgment. See Minute Order of October 25, 2017.
Following an expedited round of briefing, 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.
times, Plaintiffs were represented by the law firm of Mayer
Brown, LLC, including principally one partner, Paul Hughes,
and one associate, John Lewis. See ECF No. 31-6
(Declaration of Paul Hughes), ¶¶ 1-3, 11. They also
enlisted two attorneys from the American Immigration Council
- Melissa Crow and Leslie Dellon - for their expertise in
immigration laws. Id., ¶ 9. With the litigation
largely wrapped up, the parties have filed dueling briefs on
attorney fees, which are now ripe for review.
the “American Rule, ” each party ordinarily bears
its own attorney fees unless there is express statutory
authorization to the contrary. See Alyeska 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 fees for which it would not
otherwise be liable, and thus amounts to a partial waiver of
sovereign immunity.” Ardestani v. INS, 502
U.S. 129, 137 (1991) (citations omitted).
to those provisions, the Court must award attorney fees to a
“prevailing party” in an action against the
United States “unless [it] 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). To qualify as a prevailing party, a plaintiff
must achieve “a resolution of the dispute which changes
the legal relationship between” the parties. Tex.
State Teachers Ass'n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 792 (1989). An individual is eligible for an
EAJA award, furthermore, only if her “net worth did not
exceed $2, 000, 000 at the time the civil action was
filed.” 28 U.S.C. § 2412(d)(2)(B). Likewise, a
corporation (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 billing rates, must be filed
“within thirty days of final judgment in the
action.” Id. § 2412(d)(1)(B).
Government, wisely, does not contest that Plaintiffs were the
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 provided sufficient
documentation in that respect. See ECF Nos. 31-1
(Declaration of Bobby Franklin); 31-2 (Declaration of Atma
Krishna); 31-3 (Declaration of Anand Krishna); 31-4
(Declaration of Alex Modon); 31-5 (Declaration of Aksh
Government instead maintains that its actions were
substantially justified, thereby precluding any award.
Alternatively, it argues that the fees requested by
Plaintiffs are unreasonable and asks the Court to reduce any
award accordingly. The Court takes each position in turn.