III. Analysis
The 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 Gupta).
The 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.
A. Substantial Justification
Once an applicants status as a prevailing party is established, the government has the burden of showing that its legal position was substantially justified or that special circumstances make an award unjust. Taucher v. Brown-Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005) (citation omitted). The governments position is substantially justified if it is justified to a degree that could satisfy a reasonable person or, in other words, has a reasonable basis both in law and fact. Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ). The agency must show both that (1) the underlying agency action and (2) the arguments defending that action in court satisfy that standard. See Halverson v. Slater, 206 F.3d 1205, 1208 (D.C. Cir. 2000) (emphasis added).
The Court begins with the underlying agency action: the Delay Rule. Defendants promulgated that Rule without adhering to the APAs most basic requirements: that they provide [g]eneral notice of [its] proposed rule making in the Federal Register, as well as an opportunity for the public to comment before promulgating a rule. 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 APAs notice-and-comment rule is to be narrowly construed and only reluctantly countenanced. Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (quoting Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) ). The APA excuses notice and comment, it has stressed, only in emergency situations, or where delay could result in serious harm. Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004) (citations omitted).
What was the emergency justifying the Delay Rule here? In a total of three paragraphs in the Federal Register, DHS offered two rationales for invoking the good-cause exception: (1) expense to the agency; and (2) potential confusion if the IE Final Rule were to take effect. See 82 Fed. Reg. at 31,888. Neither position substantially justified jettisoning the APAs notice-and-comment requirements.
First, the expense of implementing the new parole system. NVCA, 291 F.Supp.3d at 17. The Court dismissed that concern, and although the government can lose on the merits and nevertheless be found to have taken a substantially justified position, Taucher, 396 F.3d at 1173, this was not a close call. First, Defendants cited no cases (and still have marshaled none) for the proposition that an agency can 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 that a fiscal calamity could conceivably justify bypassing the notice-and-comment requirement. Sorenson Commns Inc. v. FCC, 755 F.3d 702, 707 (D.C. Cir. 2014) (emphasis added). Far from establishing fiscal peril, DHS made no factual findings supporting the reality of the threat. Id. at 706. Indeed, it had previously found that the rule would notgenerate additional processing costs to the government to process applications. 82 Fed. Reg. at 5,274. The agency thus lacked a reasonable basis in law and fact to skip notice and comment on that basis.
Nor does its justification fare better in hindsight. During litigation, DHS pitched the IE Final Rule as an extraordinary change, which would require significant resources to implement. See NVCA, 291 F.Supp.3d at 18. The Court was skeptical of that argument at the time, noting the agency expected it might receive and process 2,940 applications related to the Rule-hardly a change of tectonic proportions. Id. (quoting 82 Fed. Reg. at 5,273 ). As it turns out, the agency now says it has received only 13 applications since implementing the IE Rule. See ECF No. 41-1 (Declaration of Daniel Renaud), ¶ 4. Of this bakers dozen, it has processed none to completion. Id., ¶ 8-10. The Court can hardly believe that the agency has expended many (if any) resources to hir[e] and train[ ] additional adjudicators during this process, see NVCA, 291 F.Supp.3d at 17, making the agencys cost justification all the weaker.
Second, Defendants insisted that implementing the IE Final Rule would sow confusion and would likely cause the waste of resources by multiple stakeholders with interests in th[e] rulemaking. 82 Fed. Reg. at 31,888. Most concretely, the agency worrie[d] that if the IE Final Rule were left in place, foreign entrepreneurs might misguidedly rely on it. NVCA, 291 F.Supp.3d at 19 (citing 82 Fed. Reg. at 31,888 ). In such case, it feared that applicants could be caught betwixt and between if it subsequently rescinded the rule. Id. As the Court explained, however, there was a simple solution to any such problem, and one in line with the APA: [A] notice of proposed rulemaking would, by definition, alert the public 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 alternatively claim that they were substantially justified in raising a standing defense, but even were that so, it would speak only to the Governments arguments defending th[e] action in court. Halverson, 206 F.3d at 1208. It would have no bearing on whether the underlying agency action was itself substantially justified. Id. The EAJA, of course, requires that the agency justify both the action upon which the civil action is based in addition to the position taken by the United States in the civil action. 28 U.S.C. § 2412(d)(2)(D) (emphasis added). If it fails to make either showing, Plaintiffs are entitled to fees. See SecurityPoint Holdings, Inc. v. Transp. Sec. Admin., 836 F.3d 32, 40 (D.C. Cir. 2016). Such is the case here.
B. Fees
The Courts job is not yet done. Having concluded that the Governments position was not substantially justified, it must calculate an appropriate fee award. In doing so, it notes that Plaintiffs bear the burden of demonstrating the reasonableness of ... their fee request. Am. Petroleum Inst. v. EPA, 72 F.3d 907, 912 (D.C. Cir. 1996). Here, they have complied with the EAJA directive to submit an itemized statement ... [with] the 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 entries, they report spending a total of 602.75 hours on this case, including 159.25 hours litigating this fees Motion. See ECF No. 39 (Reply) at 16. They then request a range of amounts topping out at $382,063.75. Id.
To determine whether that request is reasonable, the Court must focus on two questions: (1) whether the attorneys charged 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, attack Plaintiffs at each step.
1. Hourly Rate
Ordinarily, the EAJA allows for reimbursement up to $125 per hour, see 28 U.S.C. § 2412(d)(2)(A), which the Court may then adjust upwards-based on annual, regional consumer-price-index data-to account for cost-of-living increases. See Porter v. Astrue, 999 F.Supp.2d 35, at 38-39 (D.D.C. 2013) (explaining CPI adjustments 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 (including for both attorneys and paralegals). See Reply at 15. In 2018, the rate ticks up slightly to $198.99. Id. Multiplying Plaintiffs hours worked by these CPI-adjusted statutory rates, Defendants would owe $118,961.09. Id. at 16.
Plaintiffs acknowledge the EAJA rate applies to the garden variety case, but argue for a departure from that general rule, asking the Court to instead compensate them at their standard billing rate. See ECF No. 31 (Mot. for Attorney Fees) at 14-16. This is no trivial difference. Using their market rate, counsel request $382,063.75-an amount over 300% larger than the EAJA rate. At minimum, they ask the Court to adopt the LSI-adjusted Laffey matrix, which is a version of the rate table that judges in this district frequently use to calculate prevailing hourly rates for complex federal litigation services, as adjusted for inflation. Citizens for Responsibility & Ethics in Wash. v. DOJ, 2016 WL 554772, at *1 (D.D.C. Feb. 11, 2016) (citation omitted). Applying that formula, they calculate their total tab as $317,523.25, still a bump of nearly $200,000 over the base amount. See Reply at 16.
The Court declines to depart from the EAJA rate. To do so, it would need to find a special factor, such as the limited 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 show that their counsel possess some specialized skill that is necessary in the litigation and can be obtained only at rates in excess of the cap. See Underwood, 487 U.S. at 572, 108 S.Ct. 2541. Here, counsel cite their specialized expertise in immigration law, see Mot. at 15, but they have not argued (much less demonstrated) that immigration lawyers can be obtained in the District only 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. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). [A] complex statutory and regulatory framework alone, however, does not qualify as a special factor under the EAJA. See In re Sealed Case 00-5116, 254 F.3d 233, 236 (D.C. Cir. 2001) (finding expertise in federal election law did not warrant departure). To hold otherwise would swallow the rule, as EAJA cases frequently involve intricate federal statutory schemes. Perales v. Casillas, 950 F.2d 1066, 1078 (5th Cir. 1992) (declining to treat specialty in immigration law as a special factor). The Supreme Court has counseled against allowing exceptions of such broad and general application. Underwood, 487 U.S. at 573, 108 S.Ct. 2541.
In any event, Plaintiffs have not shown that their counsels immigration expertise was needful for the litigation in question. Id. This case did not require knowledge of ... esoteric nooks and crannies of immigration law. Mot. at 15 (quoting Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004) ). Rather, it boiled down to whether the agency had followed the APAs notice-and-comment requirements, a recurring question in administrative law. The Court therefore believes the EAJA provides 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 intended to entitle all lawyers practicing 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 instructed courts to exclude from [the] fee calculation hours that were not reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting S. Rep. No. 94-1011, at 6 (1976) ). District courts have wide discretion to reduce individual fee entries. Baldridge v. Nicholson, 19 Vet.App. 227, 241 (2005) ; see also Jean, 496 U.S. at 163, 110 S.Ct. 2316 ([A] district court will always retain substantial discretion in fixing the amount of an EAJA award.). Here, the Government asks the Court to reduce Plaintiffs award by a fixed rate of fifty percent, arguing that their hours are (1) insufficiently detailed and (2) excessive. See Opp. at 23.
The Court cannot agree on either score. On the first, the Government largely criticizes counsels entries related to [p]reparing for oral argument or [p]artcipat[ing] in moot court for PI oral argument as too vague. Id. at 22-23. It is not clear, however, what more Defendants would have Plaintiffs say. For this Court to award fees, it is not necessary to know ... the precise activity to which each hour was devoted. Jordan v. DOJ, 691 F.2d 514, 520 (D.C. Cir. 1982) (quoting Natl Assn of Concerned Veterans v. Secy of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982) ). Rather, no more is necessary than fairly definite information as to the hours devoted to various general activities, e.g. , pretrial discovery, settlement negotiation, and the hours spent by various classes of attorneys, e.g. , senior partners, junior partners, (and) associates. Id. Preparing for oral argument-like conducting pretrial discovery or settlement negotiations-meets that standard. Id.
Beyond that, the Government challenges entries such as the 0.5 hours counsel spent on [c]ase management or the hour on a litigation team call. See ECF No. 37 (Opp.) at 22-23. The Court declines ... to engage in the kind of nitpicking invited by [such] smaller-scale objections. Am. Immigration Cncl. v. DHS, 82 F.Supp.3d 396, 411 (D.D.C. 2015) ( CREW v. DOJ, 825 F.Supp.2d 226, 229 (D.D.C. 2011) ). Instead, its survey of Plaintiff[s] billing entries reflects ... that the vast majority are appropriately detailed. Id. at 412. No reduction is warranted to account for a handful of entries that could have perhaps benefitted from slightly more detail. Id.
Nor were Plaintiffs hours so excessive as to merit an across-the-board reduction. While the Court will, as explained below, strike limited entries, it believes a scalpel more appropriate than a hatchet for several reasons. First and foremost, Plaintiffs fully prevailed during the litigation, achieving the entirety of their requested relief. Degree of success is the most critical factor in evaluating the reasonableness of a fee award. See Hensley, 461 U.S. at 436, 103 S.Ct. 1933. Second, they achieved that result efficiently. Throughout this case, counsel (1) filed a Complaint (which required interviews with five different clients); (2) fully briefed a preliminary-injunction motion; (3) presented oral argument; and (4) fully briefed summary judgment on an expedited basis. They did all this in 450 hours, relying principally on two lawyers and one paralegal. That number clocks in far below analogous cases. See, e.g., Am. Petroleum Inst., 72 F.3d at 916 (allowing 560 hours for briefing a stay petition and oral argument); Loving v. IRS, 2014 WL 12778284, at *9 (D.D.C. Sept. 19, 2014) (allowing 1300 hours for litigation challenging IRS rule). Third, Plaintiffs have complied with the Supreme Courts admonition to exercise billing judgment with respect to hours worked. Hensley, 461 U.S. at 437, 103 S.Ct. 1933 ; see also Mot. at 13 (noting voluntary exclusion of over 125 hours).
The Court thus generally finds reasonable the total number of hours for which Plaintiffs seek reimbursement, subject to three exceptions. First, Defendants point out that counsel clocked four hours to [p]repare for oral argument after the actual oral-argument date. See Opp. at 22 (citing Hughes Decl., Exh 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 spending 9.5 hours on press strategy and coordination with clients regarding media inquiries and outreach. Mot. at 6-7. In this circuit, however, the [G]overnment cannot be charged for 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 authorize ... 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 that discussions with press are not compensable.). Other circuits, too, have disallowed costs for efforts to sway public opinion. See, e.g., Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994) ; Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995) ; Greater Los Angeles Council on Deafness v. Cmty. Television of S. Cal., 813 F.2d 217, 221 (9th Cir. 1987). Following their lead, the Court will disallow the 9.5 logged for press-related activities
Third, Defendants challenge Plaintiffs fees for the instant Motion. The Court generally finds that such fees on fees are appropriate, as Plaintiffs prevailed on the major issue[ ] in this case: whether they were entitled to fees in the first place. 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 expended, 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 motion for fees); Am. Wrecking Corp. v. Secy 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 allowing recovery of 59 hours); see also Loving, 2014 WL 12778284, at *8 (allowing 80 of the requested 190.25 hours for requested fees motion). In keeping with those cases, the Court will allow Plaintiffs to recover 85 hours of attorney time dedicated to this application.
It will thus reduce Plaintiffs hours and award fees as follows:
Attorney Hours Attorney Hours Year Requested Reduction 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 Government was not substantially justified. It also finds that Plaintiffs are entitled to $102,316.67 in attorney fees. A separate Order so stating will issue this day.