True the Vote, Inc. v. Internal Revenue Service

• Court: District Court, District of Columbia
• Decided: May 30, 2019
• Docket: Civil Action No. 2013-0734
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) TRUE THE VOTE, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 13-734 (RBW) ) INTERNAL REVENUE SERVICE, et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION

The plaintiff, True the Vote, Inc., brought this civil action against the Internal Revenue

Service (“IRS”), the United States of America, and several IRS officials in their official

capacities,1 alleging violations of the First Amendment to the United States Constitution; the

Internal Revenue Code, 26 U.S.C. § 6103 (2018); and the Administrative Procedure Act, 5

U.S.C. § 706 (2018), and seeking declaratory and injunctive relief, as well as monetary damages.

See First Amended Verified Complaint for Declaratory Judgment, Injunctive Relief, and

Compensatory, Statutory, and Punitive Damages (“Am. Compl.” or the “Amended Complaint”)

¶¶ 139–61, 168–206. Currently before the Court are (1) the Plaintiff’s Application and Motion

for Attorneys’ Fees, Costs, and Expenses Under the Equal Access to Justice Act (“Pl.’s Mot.” or

the “motion for attorneys’ fees”); (2) the Plaintiff’s Supplemental Application and Motion for

Attorneys’ Fees, Costs, and Expenses Under the Equal Access to Justice Act (“Pl.’s Supp. Mot.”

or the “supplemental motion for attorneys’ fees”); and (3) the Plaintiff’s Motion for Oral

1 The plaintiff also sought monetary damages from several IRS officials in their individual capacities, but the Court dismissed that claim, see True the Vote, Inc. v. IRS, 71 F. Supp. 3d 219, 229–33 (D.D.C. 2013) (Walton, J.), affirmed in part, rev’d in part and remanded, 831 F.3d 551, 555 (D.C. Cir. 2016), and therefore, when referring to the “defendants” throughout this Memorandum Opinion, the Court is referencing only the remaining defendants in this case—the IRS, the United States, and the IRS officials named in their official capacities—not the IRS individuals named in their individual capacities. Argument (“Pl.’s Oral Argument Mot.” or the “motion for oral argument”). Upon careful

consideration of the parties’ submissions,2 the Court concludes that it must grant in part and hold

in abeyance in part the plaintiff’s motion for attorneys’ fees and hold in abeyance the plaintiff’s

supplemental motion for attorneys’ fees and motion for oral argument pending further

submission by the plaintiff.

I. BACKGROUND

The Court has previously set forth the factual background of this case, see True the Vote,

Inc. v. IRS, 71 F. Supp. 3d 219, 223–25 (D.D.C. 2014) (Walton J.), aff’d in part, rev’d in part

and remanded, 831 F.3d 551 (D.C. Cir. 2016), and therefore will not recite it again here. The

Court will however, briefly summarize the procedural posture of this case, which is pertinent to

the resolution of the pending motions.

As previously noted by this Court, the plaintiff asserted five claims in this action:

Count one s[ought] declaratory relief that the plaintiff is entitled to enjoy tax- exempt status as a charitable organization described in 26 U.S.C. § 501(c)(3). Count two also s[ought] a declaratory judgment that the IRS [t]argeting [s]cheme violated the plaintiff’s First Amendment rights, and injunctive relief to prevent additional violations. Count three s[ought] monetary damages against certain defendants in their individual capacities for their alleged participation in the IRS [t]argeting [s]cheme. Count four claim[ed] violations of 26 U.S.C. § 6103, which

2 In addition to the filings already identified, the Court considered the following submissions in reaching its decision: (1) the Verified Complaint for Declaratory Judgment, Declaratory and Injunctive Relief and Damages (“Compl.”); (2) the Motion to Dismiss Counts I, II, IV, and V and Statement of Points and Authorities (“Defs.’ Mot. to Dismiss”); (3) the Memorandum of Points and Authorities in Support of Plaintiff’s Application and Motion for Attorneys’ Fees, Costs, and Expenses Under the Equal Access to Justice Act (“Pl.’s Mem.”); (4) the Declaration of James Bopp, Jr. in Support of Plaintiff’s Application and Motion for Attorneys’ Fees, Costs, and Expenses Under the Equal Access to Justice Act (“Bopp Decl.”); (5) the Declaration of John C. Eastman in Support of Plaintiff’s Application and Motion for Attorneys’ Fees, Costs, and Expenses Under the Equal Access to Justice Act (“Eastman Decl.”); (6) the Declaration of Noel H. Johnson in Support of Plaintiff’s Application and Motion for Attorneys’ Fees, Costs, and Expenses Under the Equal Access to Justice Act (“Johnson Decl.”); (7) the Declaration of Cleta Mitchell in Support of Plaintiff’s Application and Motion for Attorneys’ Fees, Costs, and Expenses Under the Equal Access to Justice Act (“Mitchell Decl.”); (8) the United States’ Opposition to Plaintiff’s Application and Motion for Attorneys’ Fees, Costs, and Expenses (“Defs.’ Opp’n”); (9) the Plaintiff’s Reply to United States’ Opposition to Plaintiff’s Application and Motion for Attorneys’ Fees, Costs, and Expenses (“Pl.’s Reply”); (10) the United States’ Opposition to Plaintiff’s Motion for Oral Argument (“Defs.’ Oral Argument Opp’n”); and (11) the Reply in Support of Plaintiff’s Motion for Oral Argument (“Pl.’s Oral Argument Reply”).

2 relate[d] to unauthorized disclosures and inspection of any tax return or tax return information. And count five assert[ed] violations of the Administrative Procedure Act for the alleged IRS [t]argeting [s]cheme.

True the Vote, 71 F. Supp. 3d at 224 (third, fourth, sixth, seventh, tenth, and eleventh alterations

in original) (citations and internal quotation marks omitted). On September 20, 2013, the

“United States, on behalf of itself, the [IRS], and the [IRS] employees named in their official

capacities, [ ] move[d] to dismiss” counts one, two, four, and five of the Amended Complaint.

Defs.’ Mot. to Dismiss at 1–2. On October 23, 2014, the Court granted the defendants’ motion

to dismiss and dismissed counts one, two, and five as moot, see True the Vote, 71 F. Supp. 3d at

226–29, and dismissed counts three and four for failure to state a claim, see id. at 232–35. On

appeal, the Circuit affirmed the dismissal of counts one, three, and four, see True the Vote, 831

F.3d at 556–58, but reversed the dismissal of counts two and five, see id. at 561–64, and

remanded those claims to this Court for further proceedings, id. at 564.

Thereafter, the parties submitted a proposed Consent Order resolving the claims that had

been reinstated by the Circuit, which the Court signed on January 19, 2018. See Consent Order

at 1 (Jan. 19, 2018), ECF No. 150. The Consent Order contained, inter alia, a declaratory

judgment stating that (1) “it is wrong to apply the United States tax laws . . . to any tax-exempt

application or entity based solely on such entity’s name, any lawful positions it espouses on any

issues, or its associations or perceived associations with a particular political movement, position

or viewpoint”; (2) “any action or inaction taken by the IRS must be applied evenhandedly and

not based solely on a tax-exempt applicant or entity’s name, political viewpoint, or associations

or perceived associations with a particular political movement, position, or viewpoint”; and

(3) “discrimination on the basis of political viewpoint in administering the United States tax code

violates fundamental First Amendment rights.” Id. ¶¶ 48–50. The plaintiff then timely filed its

3 motion for attorneys’ fees, see generally Pl.’s Mot., as well as a supplemental motion for

attorneys’ fees seeking costs incurred during the preparation of its motion for attorneys’ fees, see

generally Pl.’s Supp. Mot., and a motion requesting oral argument on its motion for attorneys’

fees, see generally Pl.’s Oral Argument Mot., which are the subjects of this Memorandum

Opinion.

II. STANDARD OF REVIEW

The Equal Access to Justice Act (“EAJA”) provides, in relevant part:

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 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) (2018).3 Thus, to award attorneys’ fees under the EAJA, the Court

must find that “(1) [the plaintiff] is the prevailing party; (2) [the plaintiff] has incurred

[reasonable] fees or expenses; (3) the position of the United States in the action was not

substantially justified; and (4) no special circumstances make an award of fees unjust.” Brooks

v. Berryhill, Civ. Action No. 15-00436 (CKK/GMH), 2019 WL 120767, at *3 (D.D.C. Jan. 7,

2019). Once the plaintiff establishes that it is the prevailing party under the EAJA, the

government has the burden of showing that its position was “substantially justified” or that

special circumstances make the award unjust. See Taucher v. Brown-Hruska, 396 F.3d 1168,

1173 (D.C. Cir. 2005). Finally, if a court concludes that an award of attorneys’ fees and costs is

warranted, it is incumbent upon the plaintiff to establish that the fees and costs it is seeking are

3 In order to be eligible to receive an award of attorneys’ fees and other expenses under the EAJA, a prevailing party must also file its application seeking an award of attorneys’ fees “within thirty days of a final judgment,” 28 U.S.C. § 2412(d)(1)(B), and must meet the net worth requirements of the EAJA, see id. § 2412(d)(2)(B).

4 reasonable. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969–70 (D.C. Cir. 2004)

(“[C]ourts properly have required prevailing attorneys to justify the reasonableness of the

requested rate or rates.” (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)).

III. ANALYSIS

The plaintiff argues that it is entitled to an award of attorneys’ fees under the EAJA

because

[it] is the prevailing party in this litigation; [ ] the [defendants] cannot carry [their] heavy burden of showing [their] position was substantially justified in either law or fact and will not be able to show special circumstances mak[ing] an award of fees unjust; and [ ] the requested fees are fair and reasonable.

Pl.’s Mot. at 1–2. The defendants respond that this Court should not award attorneys’ fees to the

plaintiff because the plaintiff does not qualify as a prevailing party under the EAJA, the

defendants’ position in this matter was substantially justified, special circumstances exist that

make an award of attorneys’ fees and costs to the plaintiff unjust, and the plaintiff’s requested

fees and costs are not reasonable. See Defs.’ Opp’n at 2–19.4

A. Whether the Plaintiff was the Prevailing Party

In Thomas v. National Science Foundation, the [District of Columbia] Circuit distilled a three-part test . . . for an EAJA prevailing party analysis. First, there must be a “court-ordered change in the legal relationship between the plaintiff and the defendant.” Second, the judgment must be in favor of the party seeking the fees. Third, the judicial pronouncement must be accompanied by “judicial relief.”

Ctr. for Food Safety v. Burwell, 126 F. Supp. 3d 114, 120 (D.D.C. 2015) (citations omitted)

(quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492–93 (D.C. Cir. 2003)).

4 The plaintiff also argues that the EAJA applies to this matter, that it meets the net worth eligibility requirements of the EAJA, and that its motion for attorneys’ fees is timely. See Pl.’s Mot. at 1. The defendants do not contest that these requirements of the EAJA are satisfied, see generally Defs.’ Opp’n, and therefore the Court need not address them.

5 The plaintiff argues that the Consent Order signed by the Court on January 19, 2018, see

generally Consent Order (Jan. 19, 2018), ECF No. 150, and the District of Columbia Circuit’s

decision issued on August 5, 2016, see generally True the Vote, 831 F.3d 551, accord prevailing

party status on the plaintiff, see Pl.’s Mem. at 7–11. The defendants respond that the “[p]laintiff

. . . does not qualify as a ‘prevailing party’ under the EAJA,” Defs.’ Opp’n at 2, because the

“[p]laintiff obtained none of the relief it requested in this suit,” through either the Consent Order

signed by this Court or the Circuit’s August 5, 2016 decision, id. at 3. The Court will first

address whether the plaintiff is a prevailing party under the Consent Order.

As to the first prong of the prevailing party test adopted in Thomas, the plaintiff argues

that under the Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. West

Virginia Department of Health and Human Resources, “enforceable judgments on the merits and

court-ordered consent decrees create the material alteration of the legal relationship of the parties

necessary to permit an award of attorney’s fees.” Pl.’s Reply at 4–5 (quoting Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)).

Specifically, it argues that the Consent Order represents a change in the legal relationship

between the parties because “the [defendants] made a wholesale admission [in the Consent

Order] that [their] treatment of [the plaintiff] was wrong,” Pl.’s Mem. at 9, and “[a]s a direct

result [of the Consent Order] . . . , the inappropriate [agency] actions towards [the plaintiff] have

fully, unequivocally, and permanently ceased,” id. at 11. The defendants respond that the

“[p]laintiff points to various parts of the Consent Order as changing the legal relationship

between itself and the [defendants], but none of them actually do.” Defs.’ Opp’n at 4.

Specifically, the defendants argue that “[t]he fact that the United States acknowledges that [the]

[p]laintiff made certain allegations in this action, and the fact that the Court signed the Consent

6 Order containing that acknowledgement, do not constitute a finding by the Court that those

allegations are true,” because “nowhere in the Consent Order is there any conclusion that the

stipulated facts give rise to a violation of law.” Id. at 5.

The Supreme Court has held that

settlements agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees. Although a consent decree does not always include an admission of liability by the defendant, it nonetheless is a court-ordered chang[e] [in] the legal relationship between [the plaintiff] and the defendant . . . . [E]nforceable judgments on the merits and court-ordered consent decrees create the material alteration of the legal relationship of the parties necessary to permit an award of attorney’s fees.

Buckhannon, 532 U.S. at 604 (first, second, and third alterations in original) (citations and

internal quotation marks omitted). “This case does not involve a mere ‘[p]rivate settlemen[t]’

which this [C]ourt has no jurisdiction to enforce. Rather, the ‘terms of the [parties’] agreement

are incorporated’ into the Consent [Order]” signed by the Court. Ctr. for Food Safety, 126 F.

Supp. 3d at 120–21 (D.D.C. 2015) (first and second alterations in original) (quoting

Buckhannon, 532 U.S. at 604 n.7); see Consent Order at 2 (Jan. 19, 2018), ECF No. 150.

Moreover, in the Consent Order, the defendants admitted to conduct, albeit indirectly, which the

Court declared “violates fundamental First Amendment rights.” Compare Consent Order ¶ 40

(Jan. 19, 2018), ECF No. 150 (incorporating admission by the defendants that they “screen[ed]

[the plaintiff’s] application based on its name or policy positions, subject[ed] the application to

heighted scrutiny and inordinate delays, and demand[ed] of [the] [p]laintiff some information

that the [the] [United States Treasury Inspector General for Tax Administration (“TIGTA”)]

determined was unnecessary to the defendants’ determination of [the plaintiff’s] tax-exempt

status”), with id. ¶¶ 48, 50 (declaring that “it is wrong to apply the United States tax laws . . . to

any applicant or entity based solely on such entity’s name, any lawful positions it espouses on

7 any issues, or its associations or perceived associations with a particular political movement,

position, or viewpoint” and that “discrimination on the basis of political review in administering

the United States tax code violates fundamental First Amendment rights”); cf. Buckhannon, 532

U.S. at 604 (noting that a consent decree may constitute a material alteration of the legal

relationship between the parties even when it contains no admission of liability by the

defendant). Accordingly, the Court concludes that the Consent Order in this case “create[d] the

material alteration of the legal relationship of the parties,” Buckhannon, 532 U.S. at 604, and the

first Thomas prong is satisfied.

As to the second prong of the Thomas prevailing party test, the plaintiff argues that the

Consent Order was issued in its favor because “[t]he Consent Order negotiated between the

parties does contain the type of declaratory judgments against viewpoint discrimination sought

by [the plaintiff] in its [Amended] Complaint.” Pl.’s Reply at 3. The defendants respond that the

Consent Order was not favorable to the plaintiff because the “[p]laintiff sought a declaration that

the [defendants] had violated its First Amendment rights . . . [and] also sought injunctive relief,”

but “the Consent Order contains no such declaration . . . [and] includes no injunction.” Defs.’

Opp’n at 5.

In order for a judicial action to have been rendered in the plaintiff’s favor within

the meaning of Thomas, the plaintiff must demonstrate that,

[a]s a result of the judicial action, [ ] the plaintiff [ ] receive[d] a substantial part of what [the] plaintiff asked the [C]ourt for in the first place. At the same time, however, [the] plaintiff need not prevail on the central issue in the litigation to be a prevailing party under the EAJA; it is sufficient for a party to prevail on an important matter in the course of litigation, even when that party does not prevail on all issues.

Ctr. for Food Safety, 126 F. Supp. 3d at 120 (citations and internal quotation marks omitted).

8 Here, the plaintiff sought, inter alia, “[a] declaration that the IRS [t]argeting [s]cheme and

any other similar policies are unconstitutional under the First Amendment.” Am. Compl. at 47.

As previously indicated, the Consent Order includes a declaratory judgment stating that “any

action or inaction taken by the IRS must be applied evenhandedly and not based solely on a tax-

exempt applicant or entity’s name, political viewpoint, or associations or perceived associations

with a particular political movement, position, or viewpoint” and that “discrimination on the

basis of political viewpoint in administering the United States tax code violates fundamental

First Amendment rights.” Consent Order ¶¶ 49–50 (Jan. 19, 2018), ECF No. 150. Thus, the

plaintiff was accorded at least some of the relief sought in the Amended Complaint. And,

“[e]ven [though] the [d]efendants question the ‘degree of the plaintiff’s success,’ this bears on

‘the size of a reasonable fee, not [the] eligibility for a fee award at all.’” Ctr. for Food Safety,

126 F. Supp. 3d at 122 (fourth alteration in original) (quoting Tex. State Teachers Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 790 (1989)); see Farrar v. Hobby, 506 U.S. 103, 114

(1992) (“[T]he prevailing party inquiry does not turn on the magnitude of the relief obtained.”).

The Court therefore concludes that the second prong under Thomas is also satisfied.

Finally, as to the third prong of the Thomas prevailing party test, the plaintiff argues that

the Consent Order accords it judicial relief because “this Court [ ] issue[d] declaratory judgments

in the Consent Order.” Pl.’s Mem. at 9. The defendants respond that “[e]ven if this Court had

declared that the[ir] conduct at issue violated [the] [p]laintiff’s constitutional rights, . . . [a]

claimant is not a ‘prevailing party’ merely by virtue of having ‘acquired a judicial

pronouncement that the defendant has violated the Constitution unaccompanied by judicial

relief,’” Defs.’ Opp’n at 5–6 (internal quotation marks omitted) (quoting Thomas, 330 F.3d at

9 493), and “[t]he only specific adjudication in the Consent Order of [the plaintiff’s] claims . . . is

that they are dismissed with prejudice,” id. at 6.

The Supreme Court has explained that

[a] plaintiff “prevails” . . . “when actual relief on the merits of [its] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” And we have repeatedly held that an injunction or declaratory judgment, like a damages award, will usually satisfy that test.

Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (quoting Farrar, 506 U.S. at 111–12); cf. Hewitt v.

Helms, 482 U.S. 755, 760 (1982) (concluding that the plaintiff was not a prevailing party

because “[n]o injunction of declaratory judgment was entered in his favor[,] [n]or did [he] obtain

relief without the benefit of a formal judgment—for example, through a consent decree or

settlement”).

Contrary to the defendants’ assertion, the Consent Order does not merely contain a

“judicial pronouncement that the defendant[s] ha[ve] violated the Constitution unaccompanied

by judicial relief.” Defs.’ Opp’n at 5–6 (internal quotation marks omitted). As previously

indicated, in the Amended Complaint, the plaintiff requested, inter alia, a declaratory judgment

that “the IRS [t]argeting [s]cheme and other similar policies are unconstitutional under the First

Amendment to the United States Constitution.” Am. Compl. at 7. And, the Court issued a

declaratory judgment in the Consent Order that “any action or inaction taken by the IRS must be

applied evenhandedly and not based solely on a tax-exempt applicant or entity’s name, political

viewpoint, or associations or perceived associations with a particular political movement,

position, or viewpoint,” Consent Order ¶ 49 (Jan. 19, 2018), ECF No. 150, and that

“discrimination on the basis of political viewpoint in administering the United States tax code

violates fundamental First Amendment rights,” id. ¶ 50. And, “[b]ecause the [C]ourt issued a

10 declaratory judgment in [the] [p]laintiff’s favor, [the] [p]laintiff obtained a ‘judicial

pronouncement,’ which was ‘accompanied by judicial relief.’” Daniels v. District of Columbia,

Civ. Action No. 14-665 DAR, 2017 WL 1154948, at *4 (D.D.C. Mar. 27, 2017) (quoting District

of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010)); see Infiniti Info. Sols., LLC v.

United States, 94 Fed. Cl. 740, 748 (2010) (“[T]he declaratory judgment in [the plaintiff’s] favor

engendered a ‘material alteration of the legal relationship between [the plaintiff] and the

government.” (quoting Tex. State Teachers Ass’n, 489 U.S. at 792–93)). The Court therefore

concludes that the third Thomas prong is satisfied.

Because the plaintiff has satisfied its burden of demonstrating that the three prongs under

the Thomas prevailing party test are satisfied with respect to the Consent Order issued in this

case, the Court concludes that the plaintiff is a prevailing party within the meaning of the EAJA.5

B. Whether the Defendants’ Position was Substantially Justified

The plaintiff argues that the defendants’ position was not substantially justified because

“[n]either the [defendants’] discriminatory conduct which led to th[is] litigation, nor the

[defendants’] actions during this litigation[,] can be justified, and the [defendants] must justify

both.” Pl.’s Reply at 13. The defendants respond that “[t]he position on mootness that [they]

advanced in [their] motion to dismiss is supported by relevant legal authority and thus is

substantially justified.” Defs.’ Opp’n at 11.

“The government’s 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.’” Taucher, 396 F.3d at 1173 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).

5 Because the Court concludes that the plaintiff is a prevailing party within the meaning of the EAJA under the Consent Order, the Court need not consider the plaintiff’s alterative argument that it is a prevailing party under the Circuit’s August 5, 2016 decision.

11 “The [government] must show ‘both’ that (1) the ‘underlying agency action’ and (2) ‘the

arguments defending that action in court’ satisfy that standard.” Nat’l Venture Capital Ass’n v.

Nielson, 318 F. Supp. 3d 145, 149 (D.D.C. 2018) (quoting Halverson v. Slater, 206 F.3d 1205,

1208 (D.C. Cir. 2000)).

In regards to whether the defendants’ position during the litigation was substantially

justified, despite the Circuit’s conclusion that counts two and five of the Amended Complaint

were not in fact moot, given that the Court itself concurred with the defendants’ position in their

motion to dismiss regarding mootness and this conclusion was supported by case law, see True

the Vote, 71 F. Supp. 3d at 226–29, the Court concludes that the defendants have satisfied their

burden of showing that their position during litigation was “justified to a degree that could

satisfy a reasonable person,” Pierce, 487 U.S. at 565.

However, as to whether the defendants’ underlying action challenged by the plaintiff was

justified, the Court concludes that the defendants have not satisfied their burden of showing that

it was justified. The plaintiff argues, and the Court agrees, that the defendants, in their

opposition, “virtually ignore[] the[ir] [ ] conduct underlying the litigation” and “focus[] primarily

on [their] argument that [their] mootness defense was justified.” Id. As noted earlier, it is the

incumbent upon the defendants to “demonstrate the reasonableness of both its litigation position

and the agency position being challenged,” Animal Legal Def. Fund, Inc. v. Perdue, 292 F. Supp.

3d 315, 318 (D.D.C. 2018); however, the only argument that the defendants offer in support of

the reasonableness of the underlying conduct is that “[e]ven if the[ir] [ ] administrative conduct

is considered, and because mootness was the[ir] . . . position, the appropriate focus is what the

[defendants] did to change the complained-of conduct,” Defs.’ Opp’n at 13. The fact that by the

time this civil action was instituted in 2013, see Compl. at 1, the defendants purportedly “already

12 had made meaningful strides to correct the conduct at issue and ensure that it never happened

again,” Defs.’ Opp’n at 14, does not convince this Court that a reasonable person would have

found the conduct—which began three years earlier in 2010, see Consent Order ¶ 7 (Jan. 19,

2018), ECF No. 150—to have been justified, particularly given the Circuit’s observation that

“[i]t is plain to the Inspector General, th[is] [ ] [C]ourt, and th[e] [Circuit itself] that the

[defendants] cannot defend [their] discriminatory conduct on the merits,” True the Vote, 831

F.3d at 561. “While it may have been reasonable for the [defendants] to continue defending

the[ir] [ ] position in the case, that position was not itself reasonable,” and “[a]s a result, the

[defendants] ha[ve] not met [their] burden of demonstrating that both [their] position and the

underlying agency action were justified.” Animal Legal Def. Fund, 292 F. Supp. 3d at 318; see

Nat’l Venture Capital Ass’n, 318 F. Supp. 3d at 151 (“[The] [d]efendants [ ] claim that they were

‘substantially justified’ in raising a standing defense, but even were that so, it would speak only

to the [g]overnment’s ‘arguments defending th[e] action in court.’ It would have no bearing on

whether ‘the underlying agency action’ was itself substantially justified.” (quoting Halverson,

206 F.3d at 1208)). Because the defendants have not satisfied their burden of demonstrating that

the underlying agency action was justified, the Court concludes that the defendants’ position was

not substantially justified within the meaning of the EAJA. See Nat’l Venture Capital Ass’n,

318 F. Supp. 3d at 151 (“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.’ If it fails to make either showing, [the] [p]laintiff[] [is] entitled to fees.”

(citation omitted) (quoting 28 U.S.C. § 2412(d)(2)(D)); Animal Legal Def. Fund, 292 F. Supp.

3d at 318 (concluding that “a fee award [wa]s warranted” because “the government ha[d] not met

13 its burden of demonstrating that both its position and the underlying agency action were

justified”).

C. Whether Special Circumstances Make an Award of Fees Unjust

The plaintiff argues that no special circumstances exist that make an award of attorneys’

fees unjust and that “refusing [ ] an award [of attorneys’ fees] would [ ] be manifestly unjust,”

Pl.’s Mem. at 19, because the defendants’ “actions underlying this litigation were more than

‘vigorous enforcement efforts’” and the defendants “admit[ted] multiple instances of

wrongdoing,” id. at 18 (quoting Wilkett v. ICC, 844 F.2d 867, 873 (D.C. Cir. 1988)). The

defendants respond that “[t]he equities do not favor an award of attorneys’ fees and costs here”

because “the award of a large amount of fees claimed by [the] [p]laintiff would be grossly

disproportional in comparison to the limited success it achieved,” and “[a] fee award is

particularly inequitable given the treatment of the similarly situated plaintiffs in Linchpins[ of

Liberty v. United States],” whose “identical claims . . . were dismissed without an award of

attorneys’ fees.” Defs.’ Opp’n at 15 (referencing Linchpins of Liberty v. United States, 71 F.

Supp. 3d 236 (D.D.C. 2014), aff’d in part, rev’d in part and remanded sub nom., True the Vote,

Inc. v. IRS, 831 F.3d 551 (D.C. Cir. 2015)).

The “EAJA does not define the term ‘special circumstances’ or provide examples of the

circumstances that would make a fee award unjust.” Brooks, 2019 WL 120767, at *4.

Courts have generally found that the “statutory language expresses a congressional directive for courts to apply traditional equitable principles in determining whether a party should receive a fee award under [the] EAJA.” In determining the circumstances under which th[e] [special circumstances] exception applies, the scope of a district court’s equitable powers is broad, and the equitable doctrine of “unclean hands pervades the jurisprudence of special circumstances under [the] EAJA.”

14 Id. (citations and internal quotation marks omitted) (quoting Air Transp. Ass’n of Can. v. FAA,

156 F.3d 1329, 1333 (D.C. Cir. 1998)). The Circuit has explained that, “[i]n deciding whether

such special circumstances exist, the [d]istrict [c]ourt can . . . consider the ‘pyrrhic’ nature of

[the] plaintiff[’s] victory.” Miller v. Staats, 706 F.2d 336, 343 (D.C. Cir. 1983) (quoting

Comm’rs Ct. of Medina Cty., Tex. v. United States, 683 F.2d 435, 443 (D.C. Cir. 1982)).

As to the defendants’ argument that an award of attorneys’ fees would be unjust because

such an award “would be grossly disproportional to the limited success [the plaintiff] achieved,”

Defs.’ Opp’n at 15, although the defendants are correct that the plaintiff did not receive all of the

relief it requested, compare Am. Compl. at 47 (requesting (1) a declaratory judgment that the

plaintiff “is exempt from federal income taxation”; (2) a declaratory judgment that “the IRS

[t]argeting [s]cheme and other similar policies are unconstitutional under the First Amendment to

the United States Constitution”; (3) an injunction “to prevent the IRS from further implementing

the IRS [t]argeting [s]cheme”; (4) an injunction “to prevent the IRS from illegally inspecting [the

plaintiff’s] t[ax] return information”; and (5) “[a]n award to [the plaintiff] of $1,000 in damages

for each unauthorized inspection of its return information”), with Consent Order ¶ 50 (Jan. 19,

2018), ECF No. 150 (issuing a declaratory judgment that “discrimination on the basis of political

viewpoint in administering the United States tax code violates fundamental First Amendment

rights”), the Court has already concluded that the plaintiff was accorded at least some of the

relief it sought, see Part III.A, supra, and therefore, it cannot be said that “the net result obtained

. . . [was] so insignificant that it would be unjust to shift [the] plaintiff[’s] counsel fees to the

defendant[s],” Miller, 706 F.2d at 343 n.38. And, as to the defendants’ argument that the

plaintiffs in Linchpins did not receive attorneys’ fees, see Defs.’ Opp’n at 15, the fact that the

plaintiffs in a separate, but related, case purportedly either chose not to request or were not

15 eligible to seek attorneys’ fees under the EAJA has no bearing on this case and this particular

plaintiff’s entitlement to fees. Moreover, the defendants have not alleged, nor can the Court

discern, any unclean hands on the part of the plaintiff. See Defs.’ Opp’n at 14–15. Accordingly,

the Court concludes that the defendants have not satisfied their burden to demonstrate that

special circumstances exist that would render an award of attorneys’ fees unjust.

Because the plaintiff has demonstrated that it was a prevailing party in this litigation, and

because the defendants have not demonstrated that their challenged conduct was substantially

justified or that special circumstances exist that would make a fee award unjust, the Court

concludes that the plaintiff is entitled to attorneys’ fees under the EAJA.

D. Whether the Requested Attorneys’ Fees and Costs are Reasonable

Having concluded that the plaintiff is entitled to attorneys’ fees under the EAJA, the

Court must now determine whether the amount of the requested fees and costs are reasonable.

“Fee applicants ‘bear the burden of demonstrating the reasonableness of each element of

their fee request.’” Loving v. IRS, Civ. Action No. 12-385 (JEB), 2014 WL 12778284, at *7

(D.D.C. Sept. 19, 2014) (quoting Am. Petroleum Inst. v. EPA, 72 F.3d 907, 912 (D.C. Cir.

1996)). “In determining whether fees are reasonable, courts ordinarily 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.” Id. (quoting In re Donovan, 877 F.2d 982, 990 (D.C. Cir. 1989) (per

curiam)). “[A] district court [has] . . . substantial discretion in fixing the amount of an EAJA

award.” Comm’r, INS v. Jean, 496 U.S. 154, 163 (1990).

The EAJA provides that “attorney fees shall not be awarded in excess of $125 per hour

unless the court determines that an increase in the cost of living or a special factor, such as the

16 limited availability of qualified attorneys for the proceedings involved, justifies a higher fee” (the

“special factor enhancement”). 28 U.S.C. § 2412(d)(2)(A)(ii). “There is[] [also] a lesser used

waiver of sovereign immunity against attorneys’ fees in 28 U.S.C. § 2412(b)[,] . . . [which]

makes “[t]he United States . . . liable for [attorneys’] fees and expenses to the same extent that

any other party would be liable under the common law,” Am. Hosp. Ass’n v. Sullivan, 938 F.2d

216, 219 (D.C. Cir. 1991) (quoting Pierce, 487 U.S. at 575) (sixth, seventh, and eighth alterations

in original), which “precludes the award of attorneys’ fees from the losing party to the prevailing

party . . . [unless] the losing party has acted in ‘bad faith’” (the “bad faith enhancement”), id.

(quoting F.D. Rich Co. v. United States, 417 U.S. 116, 129 (1974)).

Here, the plaintiff requests “attorneys’ fees of $1,982,207.06, pursuant to a ‘bad faith’

enhancement under 28 U.S.C. § 2412(b), based upon the [defendants’] actions, or a ‘special

factor’ enhancement under § 2412(d)(2)(A), based upon the [defendants’] unusually litigious

position,” or in the alternative, $761,550.77, pursuant to the EAJA statutory rate, adjusted for

inflation.” Pl.’s Supp. Mot. at 2. The defendants respond that “[b]oth of [the] [p]laintiff’s

requests are excessive, and it has not carried its burden to show that either is reasonable.” Defs.’

Opp’n at 16. The Court will address separately the parties’ arguments regarding whether the

plaintiff is entitled to either enhancement under the EAJA.

1. The Special Factor Enhancement

The plaintiff first argues that “this Court should award an enhancement under the ‘special

factor’ analysis of § 2412(d)(2)(A) because the [defendants’] litigation strategy was

unnecessarily aggressive.” Pl.’s Mem. at 22. Specifically, the plaintiff argues that “[t]he

government’s ‘unusually litigious position’ [ ] constitute[s] [ ] a special factor if it c[an] be

shown that its aggressive strategy was adopted in order to deter attorneys subject to a statutory

17 cap to operate at a loss,” id. (citing Jean v. Nelson, 863 F.2d 759, 776 n.13 (11th Cir. 1988)), and

that the defendants’ choice to “continu[e] to litigate a case when very little factual dispute

exist[ed] and in the face of the TIGTA report [was] unnecessarily litigious,” id.

The Supreme Court has “interpret[ed] [§ 2412(d)(2)(A)(ii)] narrowly” and “has held that

it refers to ‘attorneys having some distinctive knowledge or specialized skill.’” F.J. Vollmer Co.

v. Magaw, 102 F.3d 591, 598 (D.C. Cir. 1996) (quoting Pierce, 487 U.S. at 572). This Circuit

“ha[s] interpreted [the Supreme Court’s decision in Pierce] to mean that [ ] [the special factor]

enhancement is available only for lawyers whose specialty ‘requir[es] technical or other

education outside the field of American law.’” Id. (second alteration in original) (emphasis

added) (quoting Waterman Steamship Corp. v. Maritime Subsidy Bd., 901 F.2d 1119, 1124

(D.C. Cir. 1990)); see Role Models Am., 353 F.3d at 969 (“Pierce made clear that an increase in

the cap is justified only by work requiring specialized skills or knowledge beyond what lawyers

use on a regular basis.” (emphasis added)).

Although the plaintiff is correct that the Eleventh Circuit in Jean held that “if the

government . . . advance[s] litigation for any improper purpose such as harassment, unnecessary

delay[,] or increase in the plaintiff[’s] expense, then consistent with Pierce, its action warrants

the imposition of a special factor,” 863 F.2d at 776 n.13, its reliance on Jean is misplaced

because that is not the standard in this Circuit, see Role Models Am., 353 F.3d at 969; F.J.

Vollmer Co., 102 F.3d at 598. As previously discussed, this Circuit will only apply a special

factor enhancement to “work requiring specialized skills or knowledge beyond what lawyers use

on a regular basis.” Role Models Am., 353 F.3d at 969. Here, the plaintiff has not alleged that

its counsel engaged in such work. Accordingly, the Court concludes that the plaintiff is not

entitled to a special factor enhancement.

18 2. The Bad Faith Enhancement

The plaintiff next argues that “[b]ecause the [defendants] abrogated the public trust in

[their] treatment of [the plaintiff], [the plaintiff] is entitled to a ‘bad faith’ enhanced attorney fee

rate over the EAJA statutory cap under § 2412(b).” Pl.’s Mem. at 22. The defendants respond

that a bad faith enhancement is not appropriate because “there is no evidence that the

[defendants] acted in bad faith during this litigation.” Defs.’ Opp’n at 17.

A prevailing party may be entitled to receive a bad faith enhancement to an award of

attorneys’ fees

based on conduct occurring during the litigation or conduct that gave rise to the litigation itself. A court can find pre-litigation bad faith “where a party confronted a clear statutory duty or judicially-imposed duty toward another, is so recalcitrant in performing that duty that the injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal rights.”

Gray Panthers Project Fund v. Thompson, 304 F. Supp. 2d 36, 39 (D.D.C. 2004) (citation

omitted) (quoting Am. Hosp. Ass’n, 938 F.2d at 219). “[T]he substantive standard for a finding

of bad faith is stringent and attorney’s fees will be awarded only when extraordinary

circumstances or dominating reasons of fairness demand.” Id. (internal quotation marks omitted)

(quoting Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 187 F.3d 655, 660 (D.C. Cir.

1999)). “[T]he finding of bad faith must be supported by clear and convincing evidence, which

generally requires the trier of fact, in viewing each party’s pile of evidence, to reach a firm

conviction of the truth on the evidence about which he or she is searching.” Ass’n of Am.

Physicians & Surgeons, 187 F.3d at 660 (citations and internal quotation marks omitted). “No

statutory ceiling on the hourly rate used to calculate fees under § 2412(b) exists; thus, an award

of attorney[s’] fees for bad faith can be calculated at market rates.” Gray Panthers Project Fund,

304 F. Supp. 2d at 38.

19 As a preliminary matter, the Court agrees with the plaintiff that “the [defendants]

virtually ignore[] any substantial justification analysis of [their] conduct underlying this litigation

and instead focus[] [their] analysis o[n] whether the [defendants’] mootness argument during the

litigation was justified.” Pl.’s Reply at 14. However, as previously explained, “[a]n award of

attorney[s’] fees under § 2412(b) can be based on conduct occurring during the litigation or

conduct that gave rise to the litigation itself.” Gray Panthers Project Fund, 304 F. Supp. 2d at 39

(emphasis added). As to the defendants’ conduct during this litigation, the Court has already

concluded that the defendants’ position regarding mootness was substantially justified, see Part

III.B, supra, and therefore similarly concludes that the defendants’ advancement of the mootness

argument during the course of this litigation was not in bad faith. However, as to the defendants’

underlying conduct, the Court concludes that this conduct does in fact rise to the level of pre-

litigation bad faith sufficient to justify an award of attorneys’ fees above the EAJA statutory cap

pursuant to the bad faith enhancement. The Court reaches this conclusion because the

defendants “were confronted with a clear . . . judicially-imposed duty,” Am. Hosp. Ass’n, 938

F.2d at 220, not to engage in viewpoint discrimination as required by the First Amendment. As

explained by the Circuit in the context of this litigation:

[U]nder the First Amendment, the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. A more blatant and egregious form of content discrimination is viewpoint discrimination, which occurs when a government regulation targets not subject matter, but particular views taken by speakers on a subject . . . . [I]n administering the tax code, the IRS may not discriminate on the basis of viewpoint . . . . [T]o process exemption applications pursuant to different standards and at different rates depending upon the viewpoint of the applicants is a blatant violation of the First Amendment. The tax code may not discriminate invidiously . . . in such a way as to aim at the suppression of dangerous ideas.

20 True the Vote, 831 F.3d at 560–61 (fifth alteration in original) (citations and internal quotation

marks omitted). Collectively, the First Amendment’s well-recognized prohibition of viewpoint-

based discrimination, see id.; the admissions of wrongdoing by the defendants in the Consent

Order, see, e.g., Consent Order ¶¶ 40 (Jan. 19, 2018), ECF No. 150 (incorporating admission by

the defendants that, during the tax-exempt determinations process, they “screen[ed] [the

plaintiff’s] application based on its name or policy positions, subject[ed] the application to

heightened scrutiny and inordinate delays, and demand[ed] of [the] [p]laintiff some information

that [the] TIGTA determined was unnecessary to the [defendants’] determination of [the

plaintiff’s] tax-exempt status”); and the Circuit’s observation that “the IRS cannot defend its

discriminatory conduct on the merits,” True the Vote, 831 F.3d at 561, coupled with the

defendants’ failure to offer any justification that their conduct was “narrowly tailored to serve

compelling state interests,” id. at 560 (quoting Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218,

2226 (2015)), provide the Court with the “clear and convincing” evidence necessary for a finding

of bad faith on the part of the defendants. Ass’n of Am. Physicians & Surgeons, 187 F.3d at

660; see Gray Panthers Project Fund, 304 F. Supp. 2d at 41 (concluding that “[t]he Secretary’s

actions in direct contradiction of congressional directives coupled with his failure to consult with

or notify beneficiaries were ‘extraordinary circumstances’ warranting an award of bad faith

attorney’s fees” (quoting Ass’n of Am. Physicians & Surgeons, 187 F.3d at 660)); cf. GasPlus,

L.L.C. v. U.S. Dep’t of Interior, 593 F. Supp. 2d 80, 88 (D.D.C. 2009) (denying the plaintiff

enhanced attorneys’ fees under § 2412(b) because “[t]he fact that [the statute] had only recently

been adopted; that no precedent existed to guide [the Interior Board of Indian Appeals (“BIA”)]

or [the] [Department of the Interior (“DOI”)]; and that [the] BIA and [the] DOI acted on the

suddenly-outdated presumption that it should err, if at all, in the Tribe’s favor, sap the record of

21 clear and convincing evidence that the government acted in bad faith”). Accordingly, the Court

concludes that the plaintiff is entitled to an award of attorneys’ fees calculated at prevailing

market rates pursuant to the bad faith enhancement to the EAJA.

3. The Prevailing Market Rates

The plaintiff argues that an award of attorneys’ fees should be calculated using the rates

set forth in the LSI Laffey matrix because “[t]he LSI Laffey rates [a]re the [p]revailing [m]arket

[r]ates in the [r]elevant [c]ommunity.” Pl.’s Mem. at 25.

“[E]vidence of the prevailing market rate can take many forms, but courts have found

evidence such as affidavits reciting the precise fees that attorneys with similar qualifications

have received . . . in comparable cases, and evidence of fee awards in similar cases, valuable in

assessing fee requests.” Swanson v. Martins, 232 F. Supp. 3d 23, 28 (D.D.C. 2017) (alterations

in original) (citations and internal quotation marks omitted). “[T]he Laffey rate is intended to

assist in setting reasonable rates in fee-shifting cases brought against the government.” Cobell v.

Jewell, 234 F. Supp. 3d 126, 168 (D.D.C. 2017). The “LSI[] Laffey matrix[] [ ] 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.’” Nat’l Venture Capital Ass’n,

318 F. Supp. 3d at 151–52 (quoting Citizens for Responsibility & Ethics in Wash. v. DOJ, Case

No. 1:11-cv-00374 (CRC), 2016 WL 554772, at *1 (D.D.C. Feb. 11, 2016)).

In support of its request for attorneys’ fees calculated at the billing rates set forth in the

LSI Laffey matrix, the plaintiff submitted (1) a chart of the applicable LSI Laffey rates, see Pl.’s

Mot., Exhibit (“Ex.”) 6 (LSI Laffey Rates); (2) resumes or sworn declarations from each of the

plaintiff’s law firms describing the credentials of the attorneys who provided services in this

case, see id., Ex. 3 (Bopp Law Firm Members of the Firm); Eastman Decl. ¶¶ 3–8; Johnson Decl.

22 ¶¶ 2–5; Mitchell Decl. ¶¶ 2–5; and (3) the billing records in the case, see generally Pl.’s Mot.,

Ex. 1 (Foley Billing Records); id., Ex. 2 (PILF Billing Records); id., Ex. 3 (CCJ Billing

Records); id., Ex. 5 (Bopp Billing Records). The plaintiff also points to the decision in Cobell v.

Norton, which “validated the use of the [USAO] Laffey [m]atrix when enhanced fees apply to an

EAJA award,” Pl.’s Mem. at 25 (citing Cobell v. Norton, 407 F. Supp. 2d 140, 170 (D.D.C.

2005)), and the decision in Salazar ex rel. Salazar v. District of Columbia, which “upheld the use

of a more recently updated matrix, the LSI Laffey [m]atrix,” in a case involving “a claim for

attorneys’ fees based on 42 U.S.C. § 1983,” id. (citing Salazar ex rel. Salazar v. District of

Columbia, 809 F.3d 58, 65 (D.C. Cir. 2015)), as support for its argument that the LSI Laffey

matrix is the appropriate method for calculating billing rates in EAJA cases.

However, what the plaintiff has submitted “is not enough[,] as ‘a court may not rely by

default on a version of the Laffey [m]atrix without additional evidence from the party seeking

attorneys’ fees to determine whether the rates charged are in line with those prevailing in the

community for similar legal services.’” Swanson, 232 F. Supp. 3d at 28 (quoting Ventura v.

L.A. Howard Constr. Co., 134 F. Supp. 3d 99, 105–06 (D.D.C. 2015)). Specifically, regarding

the requested attorney billing rates, the plaintiff has neither provided the Court with its counsel’s

regular billing rates or the rates charged by other lawyers for similar services, nor has it cited to

any case applying the LSI Laffey rates to an award of attorneys’ fees pursuant to the EAJA.

And, regarding the requested non-attorney billing rates, the plaintiff has done even less, having

failed to “even take[] the basic step of submitting an affidavit detailing the non-attorneys’

experience and education.” Role Models Am., 353 F.3d at 970; see Eastman Decl. ¶ 6

(providing only the names and no additional details about the non-attorneys who provided

services in this case); Johnson Decl. ¶ 12 (same); Mitchell Decl. ¶ 10 (same); see also Role

23 Models Am., 353 F.3d at 970 (reducing the requested law clerk and legal assistant rates by

twenty-five percent based on the plaintiff’s “fail[ure] to carry its burden”). Thus, it would not be

appropriate for the Court to conclude, based on the evidence submitted by the plaintiff, that the

LSI Laffey rates represent the prevailing market rates for attorneys and non-attorneys in the type

of litigation involved in this case. See Eley v. District of Columbia, 793 F.3d 97, 105 (D.C. Cir.

2015) (“By concluding that some version of the Laffey [m]atrix is presumptively reasonable,

settling on the LSI Laffey [m]atrix[,] and applying it because no evidence was producing

disproving that [Individuals with Disabilities Education Act] litigation is sufficiently complex,

the district court erred in not requiring [the moving party] to demonstrate that her suggested rate

was in line with those prevailing in the community.” (citations and internal quotation marks

omitted)). The Court therefore finds that the plaintiff has not satisfied its burden of

demonstrating the reasonableness of its requested billing rates for attorneys and non-attorneys

and, before ruling on the reasonableness of the plaintiff’s requested billing rates, will require the

plaintiff to submit additional evidence on the rates prevailing in the community for similar

services by comparable attorneys and non-attorneys and the qualifications of the non-attorneys

who provided services in this case. Accordingly, the Court will grant in part and hold in

abeyance in part the plaintiff’s motion for attorneys’ fees and hold in abeyance the plaintiff’s

supplemental motion for attorneys’ fees and motion for oral argument pending further

submission by the plaintiff supporting the reasonableness of the rates it is requesting for the

services of attorneys and non-attorneys who performed services in this case.6

6 Because the Court has not reached a conclusion regarding whether the hourly rates charged in this matter are reasonable, the Court will reserve its ruling as to whether the number of hours expended and costs incurred in this matter are reasonable until after the plaintiff has provided additional information supporting the reasonableness of its requested attorney and non-attorney billing rates.

24 IV. CONCLUSION

For the foregoing reasons, the Court grants the plaintiff’s motion for attorneys’ fees to the

extent that it seeks a finding by this Court that the plaintiff is entitled to an award of attorneys’

fees and costs under the EAJA and holds in abeyance the motion in all other respects pending

further submission by the plaintiff supporting the reasonableness of its requested attorney and

non-attorney billing rates. The Court also holds in abeyance in the plaintiff’s supplement motion

for attorneys’ fees and motion for oral argument for the same reason.7

SO ORDERED this 30th day of May, 2019.

REGGIE B. WALTON United States District Judge

7 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.