Zhang v. United States Citizenship and Immigration Services
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HUASHAN ZHANG, et al.,
Plaintiffs,
v. No. 15-995 (EGS) UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al.,
Defendants.
MEMORANDUM OPINION
After prevailing in their lawsuit challenging a decision by
Defendants United States Citizenship and Immigration Services’
(“USCIS”), Kristi Noem, in her official capacity as Secretary of
the U.S. Department of Homeland Security; Kika Scott, in her
official capacity as Director of USCIS; and Alissa Emmel, in her
official capacity as Chief of the Immigrant Investor Program as
USCIS (collectively, “Defendants” or “the government”) 1 related
to investor visa applications, named class Plaintiffs, Huashan
Zhang (“Mr. Zhang”) and Mayasuki Hagiwara’s (“Mr. Hagiwara”)
(collectively, “Plaintiffs”), sought attorneys’ fees and
expenses pursuant to the Equal Access to Justice Act (“EAJA”).
See Pls.’ Mot. for Attorneys’ Fees & Expenses Under the Equal
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current government officials are substituted as Defendant for their predecessors. See Fed. R. Civ. P. 25(d). 1 Access to Justice Act (“Mot.”), ECF No. 51 2; see Huashan Zhang
v. U.S. Citizenship & Immigr. Servs., 344 F. Supp. 3d 32, 41-42
(D.D.C. 2018), aff’d, 978 F.3d 1314 (D.C. Cir. 2020).
On February 17, 2023, this Court denied in part without
prejudice and held in abeyance in part Plaintiffs’ Motion for
Attorney’s Fees and Expenses Under the EAJA (“Motion”) while the
parties provided supplemental briefing on Plaintiffs’ EAJA
eligibility. See Order, ECF No. 59. The supplemental briefing is
complete and the Motion, as well as the supplements, are now
pending before this Court. Upon careful consideration of the
briefs, the applicable law, and the entire record herein, the
Court hereby GRANTS IN PART Plaintiffs’ Motion and awards
Plaintiffs fees in the amount of $207,702.33 and expenses in the
amount of $19,850.00.
I. Background
A. Underlying Litigation
The Court previously described the background of this case.
See Mem. Op., ECF No. 58. To summarize, Plaintiffs brought this
action on behalf of themselves and a class of people who sought
“EB-5 visas.” See Zhang, 344 F. Supp. 3d at 41-42. The EB-5 visa
program is a system through which immigrants who invest a
2 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 2 minimum amount of capital in a new commercial enterprise may
pursue lawful permanent residency in the United States. See
Zhang, 344 F. Supp. 3d at 40 (citing U.S.C. § 1153(b)(5)(A)).
Prior to 2015, USCIS had defined capital to include lawfully
acquired cash and indebtedness. See id. at 41; 8 C.F.R. §
204.6(e). But in 2015, USCIS announced that it would treat loan
proceeds as “indebtedness” instead of “cash” for purposes of EB-
5 visa petitions, unless the loan was secured by personally
owned assets. See Zhang, 344 F. Supp. 3d at 41.
On June 23, 2015, Plaintiffs filed this lawsuit on behalf
of themselves and other similarly situated individuals who were
denied EB-5 visas due to this change in interpretation, seeking
to invalidate USCIS’s loan proceeds rule. See id. at 42–43;
Compl., ECF No. 1. On November 30, 2018, the Court issued a
memorandum opinion and order holding that cash loan proceeds are
unambiguously “cash” under 8 C.F.R. § 204.6(e); that USCIS’s
position contravened the regulation’s plain meaning; and that
USCIS violated the Administrative Procedure Act, 5 U.S.C. § 706,
in issuing the rule without notice and comment. See Zhang, 344
F. Supp. 3d at 46–56. The Court also certified the plaintiff
class pursuant to Federal Rule of Civil Procedure 23(b)(2),
which was the applicable rule for class certification because
“USCIS’ interpretation of its regulation has been or will be
applied generally to the entire class and plaintiffs seek
3 declaratory and injunctive relief that will benefit the class as
a whole.” Id. at 65. Additionally, the Court remanded all EB-5
visa petitions that the agency denied based on its invalid
interpretation of loan proceeds. See id. at 60–66. On October
27, 2020, the U.S. Circuit Court for the District of Columbia
Circuit (“D.C. Circuit”) affirmed the Court’s decision. See
Zhang, 978 F.3d at 1316.
B. Attorneys’ Fees
After the time elapsed for the government to seek
certiorari before the U.S. Supreme Court, Plaintiffs filed this
Motion on April 23, 2021. See Mot. for Attorneys’ Fees, ECF No.
51. In their initial Motion, Plaintiffs provided documentation
and argued that they were entitled to fees for 1,017.85 hours,
under the EAJA, and gave three different calculations: (1)
$429,986.00, applying the regular hourly rates of Plaintiffs’
counsel; (2) $452,411.00, applying the Laffey Matrix hourly
rates; or (3) $198,645.03, applying their calculation of the
relevant statutory hourly rate as adjusted for cost-of-living
increases. See id. at 16-22. Plaintiffs also sought
reimbursement of $3,802.00 in expenses and/or costs. 3 See Ex. B,
ECF No. 51-2.
3 As explained more below, infra Part III.C(2)(b), the parties use both the terms “costs” and “expenses” when referring to the same items. 4 On June 7, 2021, the government filed its brief in
opposition to Plaintiffs’ motion (“Opposition”). See Defs.’
Resp. to Mot. (“Opp’n”), ECF No. 54 at 12–16. Defendants did not
contest that Plaintiffs were the prevailing party, nor assert
that their positions were substantially justified. See id.
Instead, they argued: (1) Mr. Hagiwara, the only Plaintiff
seeking fees, did not meet the statutory net worth requirements
for EAJA relief; (2) Plaintiffs failed to provide notice to
class members pursuant to Federal Rule of Civil Procedure 23(e);
and (3) that if the Court awards relief, Plaintiffs are not
entitled to the full amount requested. See id. Plaintiffs
replied on July 20, 2021. See Pls.’ Reply in Supp. Mot. Atty’s
Fees & Expenses Under Equal Access to Justice Act (“Reply”), ECF
No. 57.
In its February 17, 2023 Memorandum Opinion, the Court
determined that it needed additional information regarding
Plaintiffs’ net worth eligibility before reaching the other
issues in Plaintiffs’ Motion. See Mem. Op., ECF No. 58 at 3, 14.
Specifically, it held that even though a declaration may be
sufficient in some situations, it needed additional information
to substantiate Mr. Hagiwara’s net worth claim given the
government’s arguments that aspects of the Administrative Record
(“AR”) cast doubt on Mr. Hagiwara’s credibility. See id.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HUASHAN ZHANG, et al.,
Plaintiffs,
v. No. 15-995 (EGS) UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al.,
Defendants.
MEMORANDUM OPINION
After prevailing in their lawsuit challenging a decision by
Defendants United States Citizenship and Immigration Services’
(“USCIS”), Kristi Noem, in her official capacity as Secretary of
the U.S. Department of Homeland Security; Kika Scott, in her
official capacity as Director of USCIS; and Alissa Emmel, in her
official capacity as Chief of the Immigrant Investor Program as
USCIS (collectively, “Defendants” or “the government”) 1 related
to investor visa applications, named class Plaintiffs, Huashan
Zhang (“Mr. Zhang”) and Mayasuki Hagiwara’s (“Mr. Hagiwara”)
(collectively, “Plaintiffs”), sought attorneys’ fees and
expenses pursuant to the Equal Access to Justice Act (“EAJA”).
See Pls.’ Mot. for Attorneys’ Fees & Expenses Under the Equal
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current government officials are substituted as Defendant for their predecessors. See Fed. R. Civ. P. 25(d). 1 Access to Justice Act (“Mot.”), ECF No. 51 2; see Huashan Zhang
v. U.S. Citizenship & Immigr. Servs., 344 F. Supp. 3d 32, 41-42
(D.D.C. 2018), aff’d, 978 F.3d 1314 (D.C. Cir. 2020).
On February 17, 2023, this Court denied in part without
prejudice and held in abeyance in part Plaintiffs’ Motion for
Attorney’s Fees and Expenses Under the EAJA (“Motion”) while the
parties provided supplemental briefing on Plaintiffs’ EAJA
eligibility. See Order, ECF No. 59. The supplemental briefing is
complete and the Motion, as well as the supplements, are now
pending before this Court. Upon careful consideration of the
briefs, the applicable law, and the entire record herein, the
Court hereby GRANTS IN PART Plaintiffs’ Motion and awards
Plaintiffs fees in the amount of $207,702.33 and expenses in the
amount of $19,850.00.
I. Background
A. Underlying Litigation
The Court previously described the background of this case.
See Mem. Op., ECF No. 58. To summarize, Plaintiffs brought this
action on behalf of themselves and a class of people who sought
“EB-5 visas.” See Zhang, 344 F. Supp. 3d at 41-42. The EB-5 visa
program is a system through which immigrants who invest a
2 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 2 minimum amount of capital in a new commercial enterprise may
pursue lawful permanent residency in the United States. See
Zhang, 344 F. Supp. 3d at 40 (citing U.S.C. § 1153(b)(5)(A)).
Prior to 2015, USCIS had defined capital to include lawfully
acquired cash and indebtedness. See id. at 41; 8 C.F.R. §
204.6(e). But in 2015, USCIS announced that it would treat loan
proceeds as “indebtedness” instead of “cash” for purposes of EB-
5 visa petitions, unless the loan was secured by personally
owned assets. See Zhang, 344 F. Supp. 3d at 41.
On June 23, 2015, Plaintiffs filed this lawsuit on behalf
of themselves and other similarly situated individuals who were
denied EB-5 visas due to this change in interpretation, seeking
to invalidate USCIS’s loan proceeds rule. See id. at 42–43;
Compl., ECF No. 1. On November 30, 2018, the Court issued a
memorandum opinion and order holding that cash loan proceeds are
unambiguously “cash” under 8 C.F.R. § 204.6(e); that USCIS’s
position contravened the regulation’s plain meaning; and that
USCIS violated the Administrative Procedure Act, 5 U.S.C. § 706,
in issuing the rule without notice and comment. See Zhang, 344
F. Supp. 3d at 46–56. The Court also certified the plaintiff
class pursuant to Federal Rule of Civil Procedure 23(b)(2),
which was the applicable rule for class certification because
“USCIS’ interpretation of its regulation has been or will be
applied generally to the entire class and plaintiffs seek
3 declaratory and injunctive relief that will benefit the class as
a whole.” Id. at 65. Additionally, the Court remanded all EB-5
visa petitions that the agency denied based on its invalid
interpretation of loan proceeds. See id. at 60–66. On October
27, 2020, the U.S. Circuit Court for the District of Columbia
Circuit (“D.C. Circuit”) affirmed the Court’s decision. See
Zhang, 978 F.3d at 1316.
B. Attorneys’ Fees
After the time elapsed for the government to seek
certiorari before the U.S. Supreme Court, Plaintiffs filed this
Motion on April 23, 2021. See Mot. for Attorneys’ Fees, ECF No.
51. In their initial Motion, Plaintiffs provided documentation
and argued that they were entitled to fees for 1,017.85 hours,
under the EAJA, and gave three different calculations: (1)
$429,986.00, applying the regular hourly rates of Plaintiffs’
counsel; (2) $452,411.00, applying the Laffey Matrix hourly
rates; or (3) $198,645.03, applying their calculation of the
relevant statutory hourly rate as adjusted for cost-of-living
increases. See id. at 16-22. Plaintiffs also sought
reimbursement of $3,802.00 in expenses and/or costs. 3 See Ex. B,
ECF No. 51-2.
3 As explained more below, infra Part III.C(2)(b), the parties use both the terms “costs” and “expenses” when referring to the same items. 4 On June 7, 2021, the government filed its brief in
opposition to Plaintiffs’ motion (“Opposition”). See Defs.’
Resp. to Mot. (“Opp’n”), ECF No. 54 at 12–16. Defendants did not
contest that Plaintiffs were the prevailing party, nor assert
that their positions were substantially justified. See id.
Instead, they argued: (1) Mr. Hagiwara, the only Plaintiff
seeking fees, did not meet the statutory net worth requirements
for EAJA relief; (2) Plaintiffs failed to provide notice to
class members pursuant to Federal Rule of Civil Procedure 23(e);
and (3) that if the Court awards relief, Plaintiffs are not
entitled to the full amount requested. See id. Plaintiffs
replied on July 20, 2021. See Pls.’ Reply in Supp. Mot. Atty’s
Fees & Expenses Under Equal Access to Justice Act (“Reply”), ECF
No. 57.
In its February 17, 2023 Memorandum Opinion, the Court
determined that it needed additional information regarding
Plaintiffs’ net worth eligibility before reaching the other
issues in Plaintiffs’ Motion. See Mem. Op., ECF No. 58 at 3, 14.
Specifically, it held that even though a declaration may be
sufficient in some situations, it needed additional information
to substantiate Mr. Hagiwara’s net worth claim given the
government’s arguments that aspects of the Administrative Record
(“AR”) cast doubt on Mr. Hagiwara’s credibility. See id.
Accordingly, the Court denied in part without prejudice and held
5 in abeyance in part Plaintiffs’ Motion and ordered supplemental
briefing on the question of Mr. Hagiwara’s eligibility for EAJA
relief. See id.; Order, ECF No. 59.
On June 30, 2023, Plaintiffs submitted their Supplemental
Memorandum on Mr. Hagiwara’s net worth (“Supplement”). See Pls.’
Suppl. Br. In Support of Mot. for Attorneys’ Fees & Costs Under
the Equal Access to Justice Act (“Suppl.”), ECF No. 62. On
October 30, 2023, Defendants filed their Opposition to the
Supplement (“Opposition to Supplement”). See Defs.’ Br. In Opp’n
to Pls.’ Suppl. Br. (“Opp’n to Suppl.”), ECF No. 66. On November
13, 2023, Plaintiffs submitted their Reply (“Supplement Reply”).
See Pls.’ Suppl. Reply Br. in Support of Mot. for EAJA Fees
(“Suppl. Reply”), ECF No. 67.
In addition to arguing that Mr. Hagiwara is eligible for
EAJA relief, Plaintiffs assert that they are entitled to recover
the additional attorneys’ fees and expenses and/or costs related
to the preparation of their Supplement and accompanying
evidence. See Supp’l, ECF No. 62 at 6. This includes fees for
30.7 hours working on the Supplement; 19.9 hours working on the
Supplement Reply; $16,487 in expenses and/or costs for the
Supplement; and $3,363 in expenses and/or costs for the
Supplement Reply. Id.; Supp’l Reply, ECF No. 67. The government
argues that if the Court concludes that Plaintiffs are entitled
6 to relief, Plaintiffs should not recover additional costs and
fees for preparing their supplement.
II. Legal Standard
Under the so-called “American Rule,” each party is
responsible for its own attorney’s fees and costs unless a
statute expressly authorizes some other form of recovery. See
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240,
245 (1975). The EAJA provides that authorization for “prevailing
parties” to recover their attorney’s fees and costs in actions
against the United States “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). “[T]he specific purpose of the EAJA is to
eliminate for the average person the financial disincentive to
challenge unreasonable government actions.” I.N.S. Comm’r v.
Jean, 496 U.S. 154, 163 (1990).
The party seeking an EAJA fee award must submit an
application showing “(1) that it is a prevailing party, (2) its
statutory eligibility to receive an award, and (3) the amount
sought, including an itemized statement breaking down that claim
for reimbursement.” Wash. All. of Tech. Workers v. U.S. Dep’t of
Homeland Sec., 202 F. Supp. 3d 20, 24 (D.D.C. 2016) (citing 28
U.S.C. § 412(d)(1)(B)), aff’d, 857 F.3d 907 (D.C. Cir. 2017).
The moving party also must “allege that the position of the
7 United States was not substantially justified.” 28 U.S.C. §
412(d)(1)(B). The United States then bears “[t]he burden of
establishing ‘that [its] position . . . was substantially
justified.’” Scarborough v. Principi, 541 U.S. 401, 414 (2004)
(quoting 28 U.S.C. § 2412(d)(1)(A)).
III. Analysis
As noted, several issues are undisputed, including that
Plaintiffs were the prevailing party and that the government’s
position was not substantially justified. See Opp’n, ECF No. 54.
Accordingly, the Court need only analyze the following issues in
this Memorandum Opinion: (1) whether Plaintiffs are eligible for
EAJA relief based on Mr. Hagiwara’s net worth; (2) whether
Plaintiffs’ failure to provide notice to class members requires
the Court to reject their request for relief; and (3) if the
Court rules in favor of Plaintiffs on issues two and three, what
amount they are entitled to recover. The Court will address each
issue in turn.
A. EAJA Eligibility
The one remaining question for this Court to resolve
related to EAJA eligibility is whether Mr. Hagiwara’s net worth
was below the statutory limit at the time this suit began. When
the Court previously considered Plaintiffs’ Motion, it only had
the benefit of Mr. Hagiwara’s declaration on this issue. See
Mem. Op., ECF No. 58; Order, ECF No. 59. Now, Plaintiffs have
8 submitted additional evidence and expert analysis to
substantiate the claims in Mr. Hagiwara’s declaration. Although
the government continues to assert that there are reasons to
doubt Mr. Hagiwara’s credibility, it has not submitted any
evidence nor expert opinion to contradict Plaintiffs’
Supplement. As explained below, the Court concludes that
Plaintiffs have satisfied their burden to show EAJA eligibility.
1. Mr. Hagiwara’s Background and Net Worth
A brief overview of Mr. Hagiwara’s background leading up to
this litigation provides context for his net worth
determination. Mr. Hagiwara married his wife, Eiko Hagiwara
(“Mrs. Hagiwara”), on March 13, 2011. See AR, ECF No. 27-1 at
282; Hagiwara Second Decl., ECF No. 62-2 ¶ 1; Reply to Supp’l,
ECF No. 67 at 4; Opp’n to Supp’l, ECF No. 66 at 4 n.1. Mrs.
Hagiwara is the granddaughter of a famous Japanese painter,
Yukio Kodama (“Mr. Yukio Kodama”). See AR, ECF No. 27-1 at 253;
Hagiwara Second Decl., ECF No. 62-2 ¶ 5. Mr. Hagiwara’s wife and
his father-in-law, Takashi Kodama (“Mr. Kodama”), inherited
wealth from Mr. Yukio Kodama through Mr. Kodama’s deceased wife.
See AR, ECF No. 27-1 at 253; Hagiwara Second Decl., ECF No. 62-2
¶ 5.
Mr. Kodama established J. Kodama, Inc. (“JKI”) on April 5,
2011. See AR, ECF No. 27-1 at 252. On January 1, 2012, Mr.
Kodama gave Mr. Hagiwara 1,300,000 of his 1,600,000 shares of
9 JKI by “deed of gift.” Id. at 259. Subsequently, Mr. Kodama gave
Mr. Hagiwara the title of Vice President of JKI. Id. at 37, 39.
On July 1, 2013, JKI entered into a loan agreement with Mr.
Hagiwara whereby the company lent him $545,000 “for the purpose
of making an investment in order to immigrate to the United
States[.]” Id. at 64. Specifically, the loan was for Mr.
Hagiwara to invest in CMB Export Infrastructure Investment Group
XI, LP, which is a “California limited partnership formed in
August 2012” with plans to develop and construct a solar power-
generating facility in Nevada. Id. at 9, 65. Mr. Hagiwara made
this investment to support his I-526 Petition, which he
submitted to USCIS on March 17, 2014. Id. at 8–9; see also
Zhang, 344 F. Supp. 3d at 40 (explaining how non-citizens
seeking to gain residence through the EB-5 program must file a
I-526 petition showing their eligibility). Mr. Hagiwara outlined
the details of how he was able to make a qualifying investment
in his I-526 petition. See AR, ECF No. 27-1 at 4–14. USCIS
denied Mr. Hagiwara’s I-526 Petition on March 27, 2015. See id.
at 4. Plaintiffs then filed this action on June 23, 2015. See
Compl., ECF No. 1.
Plaintiffs have now submitted additional evidence
demonstrating Mr. Hagiwara’s EAJA eligibility. Specifically,
they have submitted evidence and expert opinions demonstrating
that Mr. Hagiwara’s net worth was less than $1,600,000 at the
10 time Plaintiffs filed this action, which is approximately
$400,000 less than the EAJA threshold. See Supp’l, ECF No. 62;
Reply to Supp’l, ECF No. 67. Plaintiffs’ counsel “retained the
forensic accounting firm Kapila Mukamal (“Kapila”) to determine
Mr. Hagiwara’s net worth as of June 23, 2015.” Supp’l, ECF No.
62 at 3 (citing Pls.’ Ex. 1, ECF No. 62-1). Melissa Davis (“Ms.
Davis”), a Kapila partner and Certified Public Accountant,
directed the firm’s analysis. See id. Ms. Davis has “extensive
forensic-accounting experience, including engagements with the
Securities and Exchange Commission, the Federal Trade
Commission, the Commodity Futures Trading Commission, the
[Federal Bureau of Investigation], and U.S. Attorneys’ Offices.”
Id. (citing Pls.’ Ex. 1, ECF No. 62-1 at 19). The government has
not challenged Ms. Davis’s nor Kapila’s qualifications to
conduct such an analysis. See Opp’n to Supp’l, ECF No 66. Based
on its forensic analysis of Mr. Hagiwara’s assets and
liabilities, Kapila concluded that “Mr. Hagiwara’s net worth as
of June 23, 2015, was approximately $1,575,883.” See Pls.’ Ex.
1, ECF No. 62-1 at 6.
To reach this conclusion, Ms. Davis “reviewed the documents
and information listed in” Exhibit 1 to her declaration, which
includes the following appendices: (A) Mr. Hagiwara’s U.S.
Federal Income Tax Returns 2014-2015; (B) U.S. Corporation
Income Tax Returns filed by JKI in 2013, 2014, and 2015; (C) the
11 Settlement Statement for JKI’s purchase of a condo building in
Honolulu; (D) a Deed of Gift from Takashi Kodama to Mr.
Hagiwara; (D.1) JKI’s stock ledger; (E) a Mortgage Security
Agreement and Financing Statement from HawaiiUSA and JKI for the
$1,010,000 loan to JKI; (F) a Loan Agreement between Mr.
Hagiwara and JKI for the $545,000 loan that he used to make his
EB-5 Investment in CMB Export; (G) the CMB Export Offering
Memorandum, Subscription Agreement, and Partnership Agreement;
(H) a Certificate of Japanese Assets and Liabilities issued
Fumitaka Kojama on June 5, 2023; (I) Last Will and Testament of
Junko Kodama-Agreement on Division of Inheritance dated June 21,
2000; (J) Zillow.com and Honolulu Property Appraiser Website;
and (K) Declaration of Mr. Hagiwara. See Pls.’ Ex. 1 to Supp’l,
ECF No. 62-1 at 14. Plaintiffs’ Counsel also retained a
Japanese-licensed accountant to “(1) help Mr. Hagiwara secure
certifications of the value of his Japanese bank accounts as of
June 23, 2015 (as bank statements are no longer available); (2)
determine whether Mr. Hagiwara was required to file Japanese tax
returns; and (3) provide a certification as to Mr. Hagiwara’s
Japan-held assets and liabilities.” Supp’l, ECF No. 62 at 4 n.1.
2. Mr. Hagiwara Satisfies the EAJA’s Eligibility Criteria
As noted, the government provides no evidence or expert
opinion to contradict Plaintiffs’ supplemental submission. See
12 generally Opp’n to Supp’l, ECF No. 66. The entire basis of its
argument against Mr. Hagiwara’s EAJA eligibility remains as it
was when it opposed Plaintiffs’ Motion: purported reasons to
doubt Mr. Hagiwara’s credibility and current statements
regarding his net worth at the time he filed the suit. As
explained below, the government’s arguments are unpersuasive, in
part because some of these arguments are themselves based on
misrepresentations of the record. Plaintiffs have met their
burden to show Mr. Hagiwara’s qualification for EAJA relief.
a. Vice President Title
The first of the inconsistencies alleged by the government
is its assertion that the AR shows Mr. Hagiwara “indicated to
USCIS that he was the Vice President of Takashi Kodama for at
least the five years preceding July 2013 and at the time he
filed his I-526 petition” even though he now claims that his
father-in-law gave him the title of Vice President when he
gifted Mr. Hagiwara the shares in JKI. See Opp’n to Supp’l, ECF
No. 66 at 4–5 (comparing AR, ECF No. 27-1 at 000062 with
Hagiwara Decl., ECF No. 62-1 at 309 ¶ 12). There is no such
inconsistency. Mr. Hagiwara states in his Second Declaration
that “[a]fter [his] father-in-law gifted [him] shares in J.
Kodama Inc., he gave [Mr. Hagiwara] the title of ‘Vice
President.’” Hagiwara Second Decl., ECF No. 62-2 ¶ 12. Because
the AR shows that Mr. Kodama gifted Mr. Hagiwara the shares to
13 JKI on January 1, 2012, it is entirely consistent for Mr.
Hagiwara to write on the form cited by the government, which is
dated July 3, 2013, that his position at the time was Vice
President of JKI. See AR, ECF No. 27-1 at 37, 39.
The government also claims that Mr. Hagiwara “indicated to
USCIS that he was the Vice President of Takashi Kodama for at
least the five years preceding July 2013[.]” Opp’n to Supp’l,
ECF No. 66 at 4–5. But Mr. Hagiwara made no such statement on
this form. See AR, ECF No. 27-1 at 37. After answering question
8 by identifying his current position and employer as Vice
President of Takashi Kodama, Mr. Hagiwara provided no answer to
question 9, which asked him to list “Other occupations or
positions during the past five (5) years.” Id. This answer
indicates that Mr. Hagiwara had no other employment in the five
preceding years; not that he was vice president for JKI during
this time. Id. Upon this closer reading of the record, these
answers provide no reason to doubt Mr. Hagiwara’s statements.
b. Net Worth in 2013
The second alleged inconsistency has to do with Mr.
Hagiwara’s indication on the same 2013 form that his “Net worth,
or joint net worth with spouse” was “Over $1,000,000.” AR, ECF
No. 27-1 at 37. The government raises this in a summary of
information it views as creating inconsistencies, see Opp’n to
Supp’l, ECF No. 66 at 4; but does not expand on the alleged
14 issue as it does the others. Regardless, Mr. Hagiwara’s
statement does not raise an issue based on either an
interpretation of Mr. Hagiwara’s individual net worth or his
joint net worth with his spouse. According to Ms. Davis, Mr.
Hagiwara’s individual net worth was approximately $1.6 million
at the time the lawsuit was filed, which means his answer on the
form would be correct based on his own net worth. See Davis
Decl., ECF No. 62-1 ¶ 11. Additionally, Ms. Davis gave the
expert opinion that “according to SEC guidance, Mr. Hagiwara was
permitted to include his wife’s individual assets in the
calculation, even if those asserts were not joint property.”
Davis Supp’l Decl., ECF No. 67-1 ¶ 14. Therefore, based on
either interpretation, Mr. Hagiwara’s answer here is consistent
with his current representations regarding his EAJA eligibility.
c. Income in 2013
Similarly, the government takes issue with Mr. Hagiwara’s
answer to another question on this same 2013 form that he
“‘individually had income in excess of $200,000 or joint income
with his spouse in excess of $300,000 in each of the two most
recent years, and reasonably expected an income in excess of
$200,000 or joint income with his spouse in excess of $300,000
that year.”’ Opp’n to Supp’l, ECF No. 66 at 4. The government
posits that this is inconsistent with Mr. Hagiwara’s current
statements that he ‘“did not earn any employment income’ from
15 ‘the time of [his] marriage in March 2011 through June 2015’”;
“‘did not receive a salary or any compensation’ for ‘assist[ing]
his father-in-law with some of his business dealings’”; “‘did
not receive any salary or other compensation’ for being the Vice
President of Takashi Kodama”; and that he was “‘supported by
[his] wife and her family and living in [his] wife’s home’ from
‘the time [he] married Eiko [Hagiwara] in 2011 through the time
[he] filed this lawsuit in June 2015.”’ Id. at 5 (quoting
Hagiwara Decl., ECF No. 62-1 at 308–09, ¶¶ 4, 6, 12). However,
Mr. Hagiwara’s current statements are consistent with him
answering the form based on his spouse’s income and Mrs.
Hagiwara’s support of him during their marriage.
The government also points to Mr. Hagiwara’s statement that
“[a]s of June 23, 2015, [he] did not jointly own any property
with [his] wife with more than a de minimis value. Id. (citing
Hagiwara Second Decl., ECF No. 62-1 ¶¶ 15, 16). But as
Plaintiffs’ expert explains, Mr. Hagiwara did not need to have
joint ownership of his wife’s income for him to answer this
question based on income he and his spouse expected to receive.
See Davis Supp’l Decl., ECF No. 67-1 ¶¶ 10, 16. 4 Again, this
4 Not part of the alleged inconsistencies, the government also asserts that the tax returns Plaintiffs provided raise “additional credibility concerns.” Opp’n to Supp’l, ECF No. 66 at 6. Specifically, that Mr. Hagiwara did not file his 2014 and 2015 tax returns until 2021, and that J. Kodoma’s tax returns may be inaccurate because they did not mention the $545,000 loan 16 answer on the 2013 form does not give reason to doubt the
truthfulness of Mr. Hagiwara’s current statements.
d. Securities Brokerage Account
Finally, the government contends that Mr. Hagiwara’s answer
to question 17 on the same 2013 form where he checked “Yes” that
he “‘maintained an active account with a securities brokerage
firm’” instead of “No” contradicts his current statement that
“[a]t no time as of June 2015, or before that date, did [he]
have an account with a securities brokerage firm.” Opp’n to
Supp’l, ECF No. 66 at 6 (comparing AR, ECF No. 27-1 001059,
000062–63, with Hagiwara Decl., ECF No. 62-1 at 309 ¶ 14. This
is the only answer that has any inconsistency. Plaintiffs admit
as much, but they describe it as an error due to his
misunderstanding in the form’s translation. See Reply to Supp’l,
ECF No. 67 at 6–7. The government claims that such a
misunderstanding is implausible because Mr. Hagiwara initialed
to Mr. Hagiwara in the “loans to shareholders” section. See id. Neither allegation is persuasive. First, Plaintiffs explain that Mr. Hagiwara paid his taxes as soon as he became aware of his obligation to do so in 2021. See Reply, ECF No. 67 at 7. Second, Plaintiffs cite to the forensic accountant’s explanation that the loan was indeed reflected on J. Kodama’s tax-return, but listed under a different section, “Additional Paid in Capital,” and that the location of the loan “had no effect on the forensic accountant’s valuation of J. Kodama Inc. or Mr. Hagiwara’s interest in it—and therefore no impact on her calculation of Mr. Hagiwara’s net worth.” Reply to Supp’l, ECF No. 67 at 7 (citing Ex. 1, ECF No. 67-1 ¶¶ 17–21). Therefore, the Court rejects the government’s argument that the Court should infer some sort of nefarious activity or attempt to hide assets from these. 17 at the end of the form to verify that he understood it, or had
it translated, so that he could understand it. See Opp’n, ECF
No. 66 at 6–7; AR at 39. The Court does not view such an
indication as dispositive, especially because it appears that
Mr. Hagiwara had to agree that he understood the form in order
to be able to submit it. 5 Moreover, neither party has pointed to
evidence of any brokerage or securities account existing.
There is no other indication that Mr. Hagiwara has
undertaken robust efforts to conceal the existence of such an
account. It is far more likely that Mr. Hagiwara made a mistake
because he misunderstood the translation of question. Indeed,
there are other indications on the same form that Mr. Hagiwara
did not fully understand its contents. For example, when was
asked to respond to the prompt in question 21: “The undersigned
states that his or her investment objectives are as follows”,
Mr. Hagiwara wrote “Kenneth Yamamoto, CPA and N&K CPAs, Inc.”
AR, ECF No. 27-1 at 39. Clearly, writing the names of CPAs does
not answer a question about Mr. Hagiwara’s “investment
objectives.” Id. It is unclear why, but the government offers a
5 The Court does not need to resolve whether Mr. Hagiwara’s possible misunderstanding of questions on this 2013 form might impact the reliability of his answers on that form. The only questions presently before the Court are whether Mr. Hagiwara’s answers on this form are inconsistent with his current statements regarding his net worth at the time such that his current statements are not credible for the purpose of determining his EAJA eligibility. 18 representation of this answer that minimizes Mr. Hagiwara’s
apparent misunderstanding: claiming that “Mr. Hagiwara . . . 4)
retained ‘Kenneth Yamamoto, CPA’ and ‘N&K CPAs, Inc.’ to assist
him with his ‘investment objectives[.]’” Opp’n to Supp’l, ECF
No. 66 at 4. The government gives no elaboration for why this
information is supposedly relevant; but when read in context, it
further shows that Mr. Hagiwara did not fully understand the
form.
e. Additional Evidence
The government takes issues with some of the other
supplemental evidence that Plaintiffs submitted. See Opp’n to
Supp’l, ECF No. 7–8. Specifically, it faults Plaintiffs for not
submitting records from Mr. Hagiwara’s bank accounts over time;
and for not submitting financial information for his wife. See
id. Neither of these arguments is persuasive. As Mr. Hagiwara
has explained, his bank statements were no longer available from
2015, so instead he provided snapshots of his bank accounts on
those dates. See Reply to Supp’l, ECF No. 67 at 8. Plaintiffs
also point out that they had to incur significant effort and
expense to even obtain this information. See id. Additionally,
they explain that a spouse’s net worth has no bearing on an EAJA
applicant’s net worth determination; and therefore, it was
unnecessary to submit information about Mrs. Hagiwara’s net
worth. Id. at 5 n.1; Supp’l, ECF No. 62 at 5. Providing even
19 more information, according to Plaintiffs, would result in
unnecessary additional litigation that should not be necessary
for an attorneys’ fees request. See id. (citing Broaddus v. U.S.
Army Corps of Engineers, 380 F.3d 162, 168 (4th Cir. 2004)
(citations omitted)).
The Court agrees. There is now ample evidence from which
the Court can conclude that Plaintiffs have demonstrated Mr.
Hagiwara’s eligibility for EAJA relief. As explained, the
government’s arguments that Mr. Hagiwara’s statements are
inconsistent or contradictory are either unfounded or, in one
limited instance, sufficiently justified such that there is no
reasonable basis for concluding that Mr. Hagiwara has engaged in
a fraudulent scheme to conceal assets so that he could recover
attorneys’ fees in this litigation. Concluding that Plaintiffs
have shown they are eligible for relief under the EAJA, the
Court will proceed to address the remaining aspects of their
Motion.
B. Federal Rule of Civil Procedure 23(h)(1)
Defendants also argue that the Court must deny Plaintiffs’
Motion because Plaintiffs’ counsel did not direct notice of
their request for fees to all class members, per Federal Rule of
Civil Procedure 23(h)(1). See Opp’n, ECF No. 54 at 16–17.
Plaintiffs respond that: (1) Rule 23(h)(1) does not require
individual notice to the class members in this situation; but
20 that (2) even if it did, their failure to provide it was
harmless and does not defeat their motion. See Reply, ECF No. 57
at 13–17.
Core to Plaintiffs’ arguments are the facts that: (1) their
class was certified pursuant to Rule 23(b)(2) and only
sought/obtained injunctive, as opposed to monetary, relief; (2)
they litigated their case to judgment instead of reaching a
settlement; and (3) the statute under which they seek fees, the
EAJA, requires fees be paid directly by Defendants as opposed to
out of some common fund, which does not exist here. There is
scant precedent on whether or the extent to which Rule 23(h)(1)
requires notice in this situation, but the Court concludes based
on the plain language of the Rule that it requires some kind of
notice to class members. It need not conclusively resolve this
question, however, because the Court holds that even if notice
is required, the failure to provide it in this case is harmless
and therefore does not defeat Plaintiffs’ Motion.
Upon its plain reading, Federal Rule of Civil Procedure
23(h)(1) requires that class counsel provide notice to class
members when they seek attorneys’ fees. In pertinent part, the
Rule provides that “[a] claim for an award must be made by
motion under Rule 54(d)(2), subject to the provisions of this
subdivision (h), at a time the court sets. Notice of the motion
must be served on all parties and, for motions by class counsel,
21 directed to class members in a reasonable manner.” Fed. R. Civ.
P. 23(h)(1). The 2003 Advisory Committee comments to this rule
state that “Because members of the class have an interest in the
arrangements for payment of class counsel whether that payment
comes from the class fund or is made directly by another party,
notice is required in all instances.” See Advisory Comment to
Fed. R. Civ. P. 23(h)(1). Further, “[i]n adjudicated class
actions, the court may calibrate the notice to avoid undue
expenses.” Id. Though not directly in conflict, it is also
notable that elsewhere in Rule 23, notice to class members
certified pursuant to Rule 23(b)(2) is described in optional
terms: “[f]or any class certified under Rule 23(b)(1) or (b)(2),
the court may direct appropriate notice to the class.” Fed. R.
Civ. P. 23(c)(1).
Neither the U.S. Supreme Court nor D.C. Circuit has
squarely considered Rule 23(h)(1)’s applicability in this
context, nor the result of failing to comply with it; and
persuasive authority from other judges on this court is limited.
Though not directly on point, another judge on this court
addressed Rule 23(h)(1) shortly after the provision was added to
the rule in 2003. See Cobell v. Norton, 407 F. Supp. 2d 140,
147-48 (D.D.C. 2005). In that case, the court determined that
individual notice of an interim fee petition did not need to be
provided to all of the approximately 500,000 individual class
22 members and notice on the website for the class action was
sufficient. See id. The court had previously certified the named
plaintiffs under Rules 23(b)(1)(A) and (b)(2). See Cobell v.
Babbitt, 30 F. Supp. 2d 24, 28 (D.D.C. 1998).
More recently, another judge on this court approved a
proposed settlement agreement for plaintiffs who sought
injunctive relief on behalf of a class of “soldiers enlisted in
the U.S. Army . . . through the Military Accessions Vital to the
National Interest . . . program” within a certain timeframe and
who had not been discharged or been discharged under certain
conditions, pursuant to Rule 23(b)(2). Calixto v. Dep’t of the
Army, Civ. Action No. 18-1551, 2022 WL 17976437 (D.D.C. 2022).
The proposed settlement included an agreement to provide
attorneys’ fees to class counsel. See id.; see also Joint Mot.
for Cert. of Class, Appointment of Class Counsel, and Approval
of Settlement Agreement in Calixto v. Dep’t of the Army, ECF No.
253 in Case No. 18-cv-1551 at 4 (“Attorneys’ fees, including the
timing of payment, are described in Paragraph 6 of the
Settlement Agreement and do not impact the amount or timing of
the injunctive-type relief being provided to the named
Plaintiffs and putative class members.”). It appears that the
only notice that the class members received of the attorneys’
fees was as part of the settlement as a whole. See Notice
Confirming Methods By Which Notice of the Proposed Settlement Is
23 Being Provided to Class Members in Calixto v. Dep’t of the Army,
ECF No. 255 in Case No. 18-cv-1551.
There is a similar dearth of persuasive authority outside
of this Circuit. Courts that have considered the question seem
to agree that notice is required, but not individual notice. For
example, the U.S. District Court for the Northern District of
California held that individual notice was not required when a
class was certified under Rule 23(b)(2) and plaintiffs’ counsel
sought fees and costs under the EAJA. See Order, ECF No. 245 in
J.L. v. Cuccinelli, Case No. 18-cv-4914 (N.D. Cal.). In relevant
part, the Court held:
The Parties are not required to give direct notice of the proposed Fees and Costs Settlement Agreement because the class is certified under Rule 23(b)(2) and class members’ rights will not be prejudiced by this Fees and Costs Settlement Agreement. The notice provided to class members through the public filing and the postings of the motion for approval and the Fees and Costs Settlement Agreement on Public Counsel’s website is sufficient.
Id. at 2-3.
The dilemma here, however, is that Plaintiffs do not claim
to have provided any notice to the other class members of the
Motion, even on a non-individual basis. Therefore, even if the
Court agrees with its colleagues and concludes that it has
latitude to determine what is appropriate notice, it would still
not mean that Plaintiffs have satisfied this requirement. But
24 this is not the end of the inquiry. Plaintiffs also argue that
if they failed to provide notice to class members when required
to do so, such an error was harmless. The Court agrees with this
argument.
The circumstances in which Plaintiffs’ Motion arises are
significant. First, the relief that Plaintiffs seek has no
impact on the relief they obtained as a result of this
litigation. Plaintiffs were certified pursuant to Federal Rule
of Civil Procedure 23(b)(2), meaning that they only sought and
obtained non-monetary relief. See Fed. R. Civ. P. 23(b)(2)
(“[T]he party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.”). Second,
Plaintiffs litigated their case to judgment, meaning that the
pending request for fees and expenses and/or costs does not
arise in the context of a proposed settlement agreement. See
Zhang, 344 F. Supp. 3d at 66. Third, Plaintiffs request fees
under the EAJA, only on behalf of Mr. Hagiwara, which if they
prevail would be paid by Defendants instead of being taken out
of any common fund, which does not exist here.
Additionally, the Court agrees with Plaintiffs’ concerns
about wasting resources. The 2003 comments to Rule 23(h)(1)
recognize that “in adjudicated class actions, the court may
25 calibrate notice to avoid undue expenses.” Advisory Committee
Comment to Fed. R. Civ. P. 23(h)(1) (2003). This is not in the
context of 23(b)(2) cases alone; only class actions that have
been litigated to judgment. Taken in combination with a Rule
23(b)(2) class action where the only relief obtained by the
judgment is injunctive and non-monetary, the Court agrees that
this concern is especially compelling.
The most significant reason the Court finds this error
harmless is that there is no injury to the class members besides
the failure to follow the letter of Rule 23(h)(1). Simply put,
Plaintiffs’ counsel and the class members are not adversarial;
if counsel recovers the full amount of fees it requests, that
decision would do nothing to diminish or even impact the relief
that the class members have obtained.
Still, the Court does not gloss over or condone Plaintiffs’
failure to comply with Rule 23(h)(1)’s technical requirements;
clearly, the safer course of action would have been for counsel
to provide notice to the class regarding its request for fees,
even if not individual notice. But this is also not a situation
where the failure to do so was so grave an issue that it
requires rejecting, or if the Court were to consider Plaintiffs’
request to permit them to effect notice if required, further
delaying consideration of the Motion when all other technical
26 and eligibility requirements are now satisfied. 6 See also Fed.
R. Civ. P. 61 (“Unless justice requires otherwise, no error in
admitting or excluding evidence—or any other error by the court
or a party—is ground for granting a new trial, for setting aside
a verdict, or for vacating, modifying, or otherwise disturbing a
judgment or order. At every stage of the proceeding, the court
must disregard all errors and defects that do not affect any
party's substantial rights.”); Athey v. United States, 149 Fed.
Cl. 497 (2020) (holding that under Rule of U.S. Court of Federal
Claims 23(h)(1), which is phrased identically and interpreted
similarly to Federal Rule of Civil Procedure 23(h)(1), see
Greenwood v. United States, 131 Fed. Cl. 231, 243–44 (2017);
that the failure to provide notice was harmless in similar
circumstances).
C. Attorneys’ Fees, Expenses, and Costs
Because Plaintiffs have successfully shown that Mr.
Hagiwara qualifies for relief and that their motion should not
be denied for failure to provide notice pursuant to Rule
6 Plaintiffs request that “[i]f the Court disagrees and holds that actual notice of this EAJA motion must be served on all absent class members, the Court should provide Plaintiffs’ counsel an opportunity to comply with the notice requirement before deciding the EAJA motion.” Reply to Mot. for Attorneys’ Fees, ECF No. 57 at 17 n.5. Further, Plaintiffs say that “to provide direct notice of the motion, the Government would need to provide Plaintiffs’ counsel with current addresses of class members—information which, to date, the Government has not furnished.” Id. 27 23(h)(1), the Court now addresses the merits of their request
for fees and expenses and/or costs. The remaining disputes are
related to: (1) the hourly rate to be used for fees; and (2) the
work for which Plaintiffs’ may recover, which includes (A) the
work for which fees and expenses and/or costs were claimed in
the initial motion, and (B) those incurred by providing the
Supplement and Supplemental Reply.
1. Hourly Rate for Fees
In this category, the only issue to resolve is whether
Plaintiffs have shown that there is a special factor justifying
an upward departure from the statutory EAJA cap. The parties
agree that if the Court only orders Defendants to pay the lower
EAJA rate, it should be adjusted for cost of living. See Mot.
for Attorneys’ Fees, ECF No. 51 at 19; Opp’n, ECF No. 54 at 24.
The Court concludes that Plaintiffs have failed to show that a
special factor exists.
In their Motion, Plaintiffs provided calculations for their
fees based on three hourly rates: (1) their actual rate; (2) a
rate based on the Laffey matrix; and (3) the statutory maximum
under the EAJA adjusted for cost-of-living. See generally Mot.
for Attorneys’ Fees, ECF No. 51. They ask the Court to use their
actual rate and argue that a “special factor” exists such that
the EAJA cap should not apply. Id. at 18. Defendants argue that
no special factor exists, and therefore, the Court should
28 enforce the statutory EAJA cap. See Opp’n to Mot. for Attorneys’
Fees, ECF No. 54 at 18.
The EAJA provides, in relevant part, that “(ii) 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 limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee.”
28 U.S.C. § 2412(d)(2)(A). The Supreme Court has held that the
“special factor . . . refers to attorneys having some
distinctive knowledge or specialized skill needful for the
litigation in question—as opposed to an extraordinary level of
the general lawyerly knowledge and ability useful in all
litigation. Examples of the former include an identifiable
practice specialty such as patent law, or knowledge of foreign
law or language.” Pierce v. Underwood, 487 U.S. 552, 572 (1988).
To determine whether to grant fees that exceed the standard
EAJA rate, the Court must determine whether: (1) the attorney
has “distinctive knowledge or specialized skill”; (2) the
knowledge and skills were “needful for the litigation in
question—as opposed to an extraordinary level of general
lawyerly knowledge and ability useful in all litigation”; and
(3) there was a “limited availability of qualified attorneys for
the proceedings involved” meaning that the party seeking fees
29 could not have obtained the knowledge and skills at the EAJA
rate. See id. at 571–74.
Plaintiffs appear to raise two arguments for why a special
factor exists. 7 First, they argue that “[t]his case presents the
‘special factor’ that counsel is among a select few in the
country with experience and expertise in three distinct practice
areas—(1) class-action litigation; (2) administrative law[;] and
(3) employment-based immigration law—the ‘rare’ combination of
which was necessary to achieve Plaintiffs’ success.” Mot., ECF
No. 51 at 22 (citation omitted). Second, they argue that the EB-
5 visa issue involved in this case required knowledge beyond
basic immigration law and was the sort of ‘“esoteric nook[] and
crann[y] of immigration law’ . . . that satisfies the first
factor of the Pierce analysis.” Reply, ECF No. 57 at 20–21
(quoting Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004)).
In support, Plaintiffs submit two declarations to describe their
counsel’s “experience and expertise in these areas” of law. Id.
at 20. First, they submit a declaration from Ahilan
Arulanantham, “a recipient of a MacArthur Foundation Fellowship
(“Genius Grant”) for work in immigration-related litigation.”
Id. (citing Decl. of Ahilant T. Arulanantham (“Arulantham
7 The second argument regarding the niche immigration law issues involved may fall more properly under the second prong of the Pierce analysis. 30 Decl.”), ECF No. 51-7). The second is a declaration from Stacy
Tolchin, “a leader of the immigration litigation-bar.” Id.
(citing Dec. of Stacy Tolchin, ECF No. 51-6). The government
argues that Plaintiffs’ claimed expertise is not sufficient
reason to find a special factor to go above the statutory rate.
See Opp’n, ECF No. 54 at 21-22.
The Court agrees that Plaintiffs have not shown a special
factor. 8 Plaintiffs predominately rely on non-binding authority,
either cases from another United States Court of Appeals or
district court opinions. But they fail to address D.C. Circuit
precedent that this Court is bound to follow. The D.C. Circuit
has repeatedly applied Pierce’s interpretation of the EAJA to
mean that expertise in various areas of law gained through
practice, even in complex subjects, is not sufficient to show a
“special factor.” See e.g., F.J. Vollmer Co. v. Magaw, 102 F.3d
591, 598 (D.C. Cir. 1996) (“To be sure, lawyers practicing
administrative law typically develop expertise in a particular
regulated industry, whether energy, communications, railroads,
8 Plaintiffs assert that Defendants “imply that knowledge of immigration law can never constitute a ‘distinctive knowledge or specialized skill[.]”’ Reply, ECF No. 57 at 18 (quoting Opp’n, ECF No. 56 at 20-21). Putting aside the Court’s doubt as to whether Defendants actually make such an implication, this Court need not decide whether knowledge of the immigration system or topics can ever be the basis of a special factor. All that matters here is whether Plaintiffs have shown that their attorneys qualify for a special factor based on their claimed expertise, which, as discussed, they have not. 31 or firearms. But they usually gain this expertise from
experience, not from the specialized training justifying fee
enhancement. If expertise acquired through practice justified
higher reimbursement rates, then all lawyers practicing
administrative law in technical fields would be entitled to fee
enhancements.”); Select Milk Producers, Inc. v. Johanns, 400
F.3d 939, 944, 950-52 (D.C. Cir. 2005) (reversing district court
finding of a “special expertise in the federal milk marketing
regime” even when the counsel had experience in the dairy
industry because the district court based its decision on the
attorneys’ expertise gained through experience practicing law;
not in the dairy industry); In re Sealed Case 00-5116, 254 F.3d
233, 235-36 (D.C. Cir. 2001) (reaching the same conclusion in a
case involving a complex election law scheme).
Plaintiffs’ arguments fail under D.C. Circuit precedent. As
this Court has previously noted, the existence of multiple areas
of law in one case does not in and of itself constitute a
special factor. See Doe v. Rumsfeld, 501 F. Supp. 2d 186, 191-92
(D.D.C. 2007) (citing, inter alia, F.J. Vollmer Co., 102 F.3d at
598-99) (rejecting argument that specialty in a particular area
of administrative law is a special factor). Plaintiffs’
counsel’s experience at the intersection of various areas of law
is laudable and evidently contributed to their success in this
litigation. But Plaintiffs fail to show how this expertise,
32 gained through litigation, rises to the level of a special
factor. See e.g., F.J. Vollmer Co., 102 F.3d at 598.
Nor have Plaintiffs shown that counsel’s knowledge of
intricate immigration issues in this case is a special factor
consistent with D.C. Circuit precedent. Cf. Select Milk
Producers, Inc. v. Johanns, 400 F.3d 939, 944, 950-52. Whether
the immigration issues that exist in this case are among those
that other United States Courts of Appeal, but not the D.C.
Circuit, have found to make expertise in a specific area of
immigration law needed for the litigation is a different
question from whether Plaintiffs get past step one of the Pierce
analysis here. 9 To the extent Plaintiffs argue that the Court
should recognize complex immigration issues in this case as a
special factor, 10 this argument is premised on Plaintiffs’
counsel’s expertise in the relevant immigration law topics
9 The Courts of Appeal cases on which Plaintiffs rely are not only non-binding on this Court and in at least some cases distinguishable based on the court’s actual holding being based on the attorney’s knowledge of foreign countries and cultures in the asylum context, but they also appear to consider this issue of whether there was a niche issue of immigration law at the second step of the Pierce analysis; whether the expertise or special factor was needful for the litigation. See Ashcroft v. Muhur, 382 F.3d 653, 656 (7th Cir. 2004). Those United States Courts of Appeal cases also acknowledged that the Circuits differ as to when or whether immigration specialization can be sufficient for a special factor. See Nadarajah v. Holder, 569 F.3d 906, 914 (9th Cir. 2009). 10 Plaintiffs assert that the issues involved were intricate and
complex, see Reply, ECF No. 57 at 20-21; while Defendants disagree, see Opp’n, ECF No. 56 at 22. 33 gained through practice. Plaintiffs make no attempt to square
such a theory with the D.C. Circuit’s precedent holding that
such claimed expertise is generally not a special factor. The
Court therefore rejects Plaintiffs’ arguments regarding Pierce
step one and need not reach the other steps of this analysis. 11
Accordingly, the Court concludes that Plaintiffs will recover
fees at the statutory rate, adjusted for cost-of-living in the
year for which the services were performed. 12
2. Fees, Expenses, and Costs to be Recovered
Plaintiffs have satisfied their obligation to submit an
“itemized statement from any attorney . . . representing . . .
the party stating the actual time expended and the rate at which
fees and other expenses were computed.” 28 U.S.C. §
2412(d)(1)(B). To show that their request is reasonable under §
2412 (d)(2)(A), a plaintiff's “supporting documentation must be
of sufficient detail and probative value to enable a court to
determine with a high degree of certainty that such hours were
actually and reasonably expended.” Role Models Am., Inc. v.
11 Because the Court holds that Plaintiffs shall receive fees at the statutory rate, it need not determine whether their counsels’ billing rates were reasonable. 12 Courts regularly approve cost-of-living adjustments to the
base EAJA rate. See Role Models Am., Inc., 353 F.3d at 969 (“We have granted such adjustments in other cases, see, e.g., Cooper v. United States R.R. Ret. Bd., 24 F.3d 1414, 1417 (D.C.Cir.1994) (per curiam); Jones v. Lujan, 887 F.2d 1096, 1101 (D.C.Cir.1989) (per curiam), and have found no case where we denied one.”).) 34 Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004) (internal quotation
marks and alterations omitted) (quoting In re Olson, 884 F.2d
1415, 1428 (D.C. Cir. 1989) (per curiam)). Satisfactory
documentation consists of “contemporaneous time records of hours
worked ... plus a detailed description of the subject matter of
the work with supporting documents, if any.” Ashraf–Hassan, 189
F. Supp. 3d at 58 (quoting In re Donovan, 877 F.2d 982, 994
(D.C. Cir. 1989) (per curiam)). “Where the documentation of
hours is inadequate, the district court may reduce the award
accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1933). A
fixed, percentage reduction may be warranted when a large number
of billing entries suffer from one or more deficiencies. Role
Models Am., Inc., 353 F.3d at 973. District Courts have
“substantial discretion in fixing the amount of an EAJA award.”
Jean, 496 U.S. at 163.
Plaintiffs have submitted several exhibits relevant to
their fee, expense, and cost determinations: (1) original chart
of fees through the filing of their Motion (“Original Fee
Chart”), see Original Fees Chart, ECF No. 51-1; (2) original
chart of expenses and/or costs through the filing of their
Motion (“Original Expenses/Costs Chart”), see Original Costs
Chart, ECF No. 51-2; (3) supplemental chart of fees expended on
their Attorneys’ fees Reply (“Reply Fees Chart”), see Reply Fees
Chart, ECF No. 57-1; (4) supplemental chart of fees expended in
35 preparation of the Court-ordered Supplement, see Supp’l Fees
Chart (“Supplement Fees Chart”), ECF No. 62-4; (5) supplemental
chart of expenses and/or costs expended in preparation of the
Supplement (“Supplement Expenses/Costs Chart”), see Supp’l Costs
Chart, ECF No. 62-5; (6) supplemental chart of expenses and/or
costs expended for Reply to Supplement (“Supplemental Reply
Expenses/Costs Chart”), see Supp’l Reply Costs Chart, ECF No.
67-2; and (7) supplemental chart of fees expended for Reply to
Supplement (“Supplemental Reply Fees Chart”), see Supp’l Reply
Fees Chart, ECF No. 67-3. The fee requests total $218,104.00,
broken down as follows:
Document Hours Fees (CPI-Adjusted EAJA) Original, ECF No. 51-1 1017.85 $198,645.00 Reply, ECF No. 57-1 36.8 $7,618.00 Supp'l, ECF No. 62-4 30.7 $7,184.00 Supp'l Reply, ECF No. 67-3 19.9 $4,657.00 TOTAL 1105.25 $218,104.00
See Original Fees Chart, ECF No. 51-1; Reply Fees Chart, ECF No.
57-1; Supp’l Fees Chart, ECF No. 62-4; Supp’l Reply Fees Chart,
ECF No. 67-3.
Plaintiffs did not distinguish “expenses” from “costs” in
their submissions; and the government refers to the entries as
“costs.” See 28 U.S.C. § 2412 (distinguishing costs from
expenses); 8.D CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC.
§ 2666 (4th ed.). The Court will address which expenses or costs
36 are reimbursable below, but the total of all relevant charts
submitted is $23,652.00, broken down as follows:
Document Costs Original, ECF No. 51-2 $3,802.00 Supp'l, ECF No. 62-5 $16,487.00 Supp'l Reply, ECF No. 67-2 $3,363.00 TOTAL $23,652.00
See Original Expenses and/or Costs Chart, ECF No. 51-2; Supp’l
Expenses and/or Costs Chart, ECF No. 62-5; Supp’l Reply Expenses
and/or Costs Chart, ECF No. 67-2.
As explained below, the billing entries that Plaintiffs
provide are generally non-duplicative, not excessive, and
contain sufficient detail for the Court to assess counsels’
activities. See generally Ex. A, ECF No. 51-1. The Court
therefore declines to impose the across-the-board reduction of
fifty percent that the government seeks and instead will make a
handful of reductions in certain instances explained below.
a. Attorneys’ Fees
Plaintiffs argue that the amount of fees requested in their
Motion are reasonable because of their high degree of success in
obtaining full relief on two causes of action; that the total
number of hours is reasonable compared to similar cases; and
that none of the hours are duplicative, unnecessary, unrelated,
or manufactured. See Mot., ECF No. 51 at 17-18. The government
“opposes the amount of work hours Mr. Hagiwara’s counsel claim”
37 and asserts that “many hours are: (a) excessive and duplicative,
and (b) lack adequate support because they are lumped together.”
Opp’n, ECF No. 54 at 25. The government asks the Court to impose
an across the board fifty-percent reduction in Plaintiffs’ fees
due to these issues. See id. at 31. Additionally, it asks the
Court to deny Plaintiffs’ request for costs entirely. Id. In
reply, Plaintiffs argue that an across the board fifty-percent
cut is not warranted; that it is common for plaintiffs to have
multiple attorneys involved in litigation when senior attorneys
delegate tasks to and supervise junior attorneys; and that their
billing entries are reasonable, sufficiently detailed, and non-
duplicative. See Reply, ECF No. 57 at 24-26.
Defendants do not argue that Plaintiffs should be unable to
recover fees for the preparation of their Reply brief, but they
do assert that Plaintiffs should not recover fees and expenses
and/or costs for preparation of their Supplemental briefing. See
Opp’n to Supp’l, ECF No. 56 at 8–9. Plaintiffs disagree and
argue that they can recover fees and expenses and/or costs for
this work because the EAJA covers all phases of successful civil
litigation. See Reply to Supp’l, ECF No. 57 at 9–10. 13
13The Court includes Plaintiffs requests for supplemental fees in its analysis of the specific issues the government raises about billing practices because it concludes that Plaintiffs may recover those fees. 38 i. Administrative Work and Filings
Plaintiffs do not dispute that they are unable to recover
administrative and filing expenses; and therefore, this issue is
conceded. See e.g., Hopkins v. Women’s Div., General Bd. of
Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003). The
Court therefore deducts 23.2 hours for billing entries related
to filings and an administrative entry (testing equipment in
courtroom) in Plaintiffs’ Original Fees Chart. See Original Fees
Chart, ECF No. 51-1. at 5 (two filing entries), 6 (one filing
entry), 10 (two filing entries), 12 (two filing entries), 16
(one filing entry), 17 (one filing entry), and 19
(administrative entry). 14 Additionally, the Court deducts 1.75
hours from the Supplemental Reply Fees Chart for a filing entry.
See Supp’l Reply Fees Chart, ECF No. 67-3 at 5. from subsequent
charts. In total, this is a reduction of 24.95 hours, which,
accounting for CPI adjustments, is $5,020.38.
14As noted, the Court declines to make across the board cuts for block billing entries because the nature of the work completed can be sufficiently understood from the entries, despite the fact that this method of billing is disfavored. See Role Models, 353 F.3d at 971. But, because some of the filing and/or administrative task entries appear as part of block billing, the Court is unable to ascertain the amount of time spent doing this work compared to the other tasks listed. Therefore, the Court has applied a fifty percent reduction to those specific entries. The Court does so despite the fact that the majority of the work listed in those entries is substantive legal work because Plaintiffs’ Counsel chose to bill in this disfavored way. See also id. at 973. For the three filing entries that were not part of block billing, the Court reduced the full amount of time. 39 ii. Staffing and Alleged Duplication
Even though multiple lawyers worked on Plaintiffs’ case,
the record shows that aside from three limited instances, they
do not seek fees for duplicative work. Two attorneys performed
most of the work throughout the litigation, Edward Ramos (“Mr.
Ramos”) and Ira Kurzban (“Mr. Kurzban”). See generally id. The
five other individuals listed on the billing entries appear to
have performed discrete tasks and only appear in a handful of
entries. See generally Original Fees Chart, ECF No. 51-1
(listing 12 entries for John Pratt; 12 entries for Ian Shaw; 6
entries for Ross Militello; 5 entries for Celso Perez; and 2
entries for Elizabeth Montano); Reply Fees Chart, ECF No. 57-1;
Supp’l Fees Chart, ECF No. 62-4; Supp’l Reply Fees Chart, ECF
No. 67-3. The record does not show that the work these other
attorneys conducted duplicated that of Mr. Ramos or Mr.
Kurzban. 15
Moreover, the record shows that Plaintiffs often delegated
work from a lead attorney with a higher billing rate to a more
junior attorney with a lower billing rate; a method of
15The government attempts to describe the total amount of hours each attorney spent on various phases of litigation as evidence of duplication, see Opp’n, ECF No. 54 at 26–27, but the record shows in greater detail how these attorneys spent their time during these litigation phases in non-duplicative ways, see Original Fees Chart, ECF No. 51-1. The question of whether the amount of time spent is reasonable is discussed later. 40 responsible representation that the government implies they
failed to do. See Opp’n, ECF No. 54 at 25 (citations omitted)
(“This includes reducing hours claimed when a senior attorney
spends time on tasks that are easily delegable or billed at
lower rates.”). Specifically, Mr. Ramos “provided successful
representation at a lower billable rate [than] and received
oversight, supervision, review, and collaboration from” Mr.
Kurzban, a more senior attorney. Reply, ECF No. 57 at 25. Mr.
Ramos in turn delegated some tasks to even more junior
attorneys. See id. Therefore, the fact that multiple attorneys
generally performed distinct work on Plaintiffs’ case does not
make this work unreasonable or duplicative. Cf Opp’n, ECF No. 54
at 25–26.
The Court makes a relatively small reduction, however, of
29.7 hours for what appear to be six entries of duplicative work
out of the more than 300 entries total. See id. at 3 (two
entries describing similar work by Mr. Shaw on May 6 and 21,
2015), 4 (an entry describing similar work to another entry by
Mr. Shaw on June 2, 2015), 5 (two descriptions of similar work
from Mr. Kurzban on June 10, 2015), 18 (two entries for the same
phone call), 19 (two entries for oral argument). Notably, some
of the entries, especially those of Mr. Pratt, that appear
duplicative occurred on two separate days, meaning that Mr.
Pratt could have continued doing the research he started the
41 prior day. But, because Plaintiffs do not address these entries,
the Court errs on the side of caution and deducts the apparently
duplicative entry for the same research work with the greater
number of hours. These limited instances fall far short,
however, of being a pervasive issue warranting across the board
cuts. Indeed, it appears throughout the records that Plaintiffs’
counsel also made efforts to ensure that they only billed one
entry for conversations that included multiple attorneys. See
Ex. A, ECF No. 51-1 at 4 (only listing one billing entry on May
25, 2015 for a conference call with multiple attorneys). For
that reason, the Court makes a reduction of 29.7 hours, which is
$5,381.29.
iii. Sufficiently Justified and Non-Excessive
The government asserts that Plaintiffs seek fees for
excessive hours that lack sufficient justification. Courts often
address these considerations simultaneously because whether the
number of hours is justified can depend on the amount of detail
given for the description of work. Therefore, the Court follows
that approach here and concludes that the number of hours that
Plaintiffs seek are reasonable, not excessive, and sufficiently
justified.
First, Plaintiffs’ counsel achieved a high degree of
success in their litigation. As Plaintiffs describe it, they
“prevailed on the merits of two causes of action which
42 independently entitled them to complete relief: full
invalidation of the loan proceeds rule for both pending and
future-filed EB-5 petitions.” Mot., ECF No. 51 at 12 (citing
Zhang, 344 F. Supp. 3d at 43). In order to achieve this result,
Plaintiffs’ counsel: (1) succeeded in obtaining summary judgment
on two of the counts brought in their complaint that challenged
the government’s interpretation of the EB-5 visa regulation and
the Administrative Procedure Act’s requirements for promulgating
such rules, which were the only causes that this Court reached
because they disposed of the case, see Zhang, 344 F. Supp. 3d at
43; (2) successfully obtained class certification; and (3)
successfully defended against the government’s appeal. See id.;
Zhang, 978 F.3d at 1325. As this Court previously recognized,
“[b]ased on the briefing in this case, counsel clearly devoted
substantial time and efforts to this litigation.” Zhang, 344 F.
Supp. 3d at 65.
Indeed, as Plaintiffs point out, courts have approved a
greater number of hours than those sought here in cases with
similar litigation history. For example, in Loving v. Internal
Revenue Serv., Civ. Action No. 12-385, 2014 WL 12778284, *6
(D.D.C. Sept. 19, 2014), the plaintiffs sought compensation for
over 1,700 hours (including 1601.25 hours of attorney time in
addition to paralegal time). Id. The court “decline[d] the IRS’s
request for across-the-board cuts” by more than 40% to 1,000
43 hours because and remarked that “[t]he choice of a hatchet is
particularly inappropriately here for several reasons.” Id.
These included: “[f]irst and foremost, [that] Plaintiffs
prevailed at every stage of th[e] litigation and achieved the
entirety of their requested relief.” Id. As the Court noted, the
Supreme Court has held that “[d]egree of success is “the most
critical factor” in evaluating the reasonableness of a fee
award.” Id. (citing Hensley, 461 U.S. at 436). After explaining
its specific reductions, the court ultimately awarded the
plaintiffs fees for 1,296.25 hours, a reduced amount that still
exceeds the total 1,105.25 hours that Plaintiffs seek here.
Notably, Mr. Kurzban explains in his declaration that “[i]n
preparing this EAJA motion, [he] exercised billing judgment . .
. and eliminat[ed] billing entries corresponding to dozens of
hours of work . . . although these entries and hours are
compensable under EAJA.” Kurzban Decl., ECF No. 51-3 ¶ 18. The
Court agrees that the overall number of hours, and the hours
spent on certain phases of litigation, are reasonable in light
of the procedural history of this case and counsel’s high degree
of success.
Second, the cases on which the government relies to argue
that the hours Plaintiffs request are excessive are
distinguishable from the record here. For example, in New Jersey
v. EPA, 703 F.3d 110, 113-14 (D.C. Cir. 2012), the movants
44 sought 121 hours for preparing for an oral argument that they
ended up not delivering; leading the Court to reduce the hours
to 25% of the requested amount, 30.25 hours. See New Jersey, 703
F.3d at 116. Here, Plaintiffs requested less than 40 hours to
prepare for the oral argument per the government’s calculation,
see Opp’n, ECF No. 54 at 29; which Mr. Kurzban ultimately
delivered. 16 Compare also Loving, 2014 WL 12778284, at *8
(finding 230.75 hours preparing for oral argument to be
excessive and reducing the amount of time to 70 attorney hours
and 10 paralegal hours). Similarly, the D.C. Circuit found the
plaintiffs’ request for 227.5 hours in preparing their motion
for attorneys’ fees and responding to the defendants’ opposition
“grossly excessive” and reduced the compensation to 91 hours.
New Jersey, 703 F.3d at 116. Here, Plaintiffs seek only
approximately 50 hours, which includes 24 hours for compiling
their EAJA fee petition and 36.8 hours for their Reply. Original
Fees Chart, ECF No. 51-1 at 20; Reply Fees Chart, ECF No. 57-1;
compare Loving, 2014 WL 12778284, at *8 (reducing sought 190.25
hours to 80 hours).
16This does not account for the deductions that this Court has already made to exclude Mr. Ramos’s time for “oral argument” that Mr. Kurzban delivered, and Mr. Kurzban’s time testing equipment at the Court, putting the total number of hours related to oral argument at approximately 30 hours. 45 Third and finally, the descriptions that Plaintiffs provide
for their work are generally adequate. Defendants are correct
that courts have held that generic descriptions do not give the
court enough information to evaluate the work for which a
plaintiff seeks reimbursement. See Opp’n, ECF No. 54 at 29
(quoting Doe, 501 F. Supp. 2d at 193) (referencing this Court’s
prior admonition that sparse entries simply listing “research”,
“writing”, or “participating in teleconference” are inadequate).
The Court concludes, however, that even the sparser descriptions
in the record here give the Court sufficient information by
which to assess Plaintiffs’ counsel’s work. For example, the
government takes issue with the fact that several billing
entries in a row state that an attorney was working on a certain
brief. See id. at 30. While additional details about what
specific aspect of the brief the attorney worked on could have
been helpful, these entries still give the court enough
information to assess the work for which Plaintiffs request
fees. Cf Doe, 501 F. Supp. 2d at 193. Under these circumstances,
more detail is not needed to determine whether this work was
reasonable. 17
17For example, one of the series of entries with which the government takes issue relates to Mr. Ramos’s work on the appeal briefs. See Opp’n, ECF No. 54 at 30. Even in those cases where he did not provide more details, Mr. Ramos still specified the brief on which he was researching, writing, and working so that 46 Further, many of the entries that Plaintiffs include
contain far more detail than the descriptions that have been
found insufficient by other courts. For example, in New Jersey,
703 F.3d at 113-14, the D.C. Circuit held that descriptions such
as “reviewing case materials” and “review of key strategy issues
and mercury materials” are too generic and lack required
specificity to justify the amount of time spent on initial case
preparations. Id. (internal quotations & alterations omitted).
Here, in contrast, the entries related to initial case
preparations those for researching or reviewing “USCIS/LEGACY
INS MEMORANDA ON INDEBTEDNESS AND/OR LOAN PROCEEDS AS CAPITAL”
and “REVIEWING POTENTIAL PLAINTIFF'S I-526 AND RFE AND DENIAL
NOTICES.” Original Fee Chart, ECF No. 51-1 at 2-3.
The Court therefore concludes that the amount of time that
Plaintiffs’ counsel spent on this litigation is reasonable in
light of their high degree of success, as compared to other
similar litigation, and adequately supported in their records. 18
the Court could assess whether the time spent was reasonable. See Original Fee Chart, ECF No. 51-1 at 18. 18 The government correctly notes that this Court has previously
observed that the practice of block-billing is disfavored. See Opp’n, ECF No. 54 at 30. Here, the record shows that attorneys engaged in this practice somewhat regularly throughout entries. But even in the situations where Plaintiffs’ counsel engaged in this practice, many of the entries often could have naturally fallen under the same category of conducting research for a certain brief, for example, and actually provide more information about the work performed than such a short description. See e.g. Original Fee Chart, ECF No. 51-1 at 2–4. 47 The Court will not make any further deductions to the fees than
those previously listed, meaning that Plaintiffs shall recover
for 1050.6 hours which, adjusted for CPI rates, is
$207,702.33. 19
b. Supplements
Plaintiffs seek to recover fees and costs for their
counsel’s work on the supplemental briefing on Mr. Hagiwara’s
net worth that this Court ordered. See Supp’l, ECF No. 62 at 6.
Defendants argue that Plaintiffs cannot recover such fees and
costs because parties can only recover fees for successful
litigation. See Opp’n to Supp’l, ECF No. 66 at 8-9. According to
Defendants, the Court ordered supplemental briefing on
Plaintiffs’ EAJA eligibility because they were not successful in
showing this previously. See id. The Court disagrees with
Defendants’ interpretation.
First, it is widely accepted that a prevailing party under
the EAJA may recover fees for all stages of litigation,
including their request for attorneys’ fees itself. Jean, 496
U.S. at 161–66. Indeed, “Congress intended the EAJA to cover the
Although block billing is disfavored, the Court does not hold that any additional reductions, let alone an across-the-board drastic cut of 50%, is warranted because, as noted, Plaintiffs provided sufficient detail for the Court to ascertain what work was performed and the amount of time spent on the work. 19 This accounts for the total combined deductions of 54.65 hours
and $10,401.67. 48 cost of all phases of successful civil litigation addressed by
the statute.” Id. at 166 (emphasis added).
Second, it is incorrect to say that Plaintiffs were
unsuccessful in their attempt to show EAJA eligibility. Rather
than outright denying Plaintiffs’ Motion, the Court denied it
without prejudice to the extent that it ordered supplemental
briefing on the eligibility question and held the remainder of
the motion in abeyance. See Mem. Op., ECF No. 58; Order, ECF No.
59. In so doing, the Court recognized that a declaration alone
can be sufficient to show a plaintiffs’ eligibility for EAJA
relief but held that in light of the government’s arguments
about purported credibility issues and inconsistencies between
Mr. Hagiwara’s statements and the AR, additional information was
necessary to make such a determination. See Mem. Op., ECF No. 58
at 6–14. The Court did not conclude that Mr. Hagiwara was
ineligible for fees based on the briefing that accompanied
Plaintiffs’ initial Motion. Indeed, it remarked that
“Defendants’ evidence does not establish that Mr. Hagiwara’s net
worth exceeded $2,000,000.” Mem. Op., ECF No. 58 at 13. The
Court’s prior ruling merely held that it needed additional
information to make its determination.
Third, Plaintiffs have now prevailed on this issue. It is
therefore incorrect to say that Plaintiffs have not prevailed on
their Supplement.
49 Fourth and finally, the government cites no authority for
the proposition that in cases in which courts have required
supplemental briefing, such briefing is construed as
unsuccessful litigation for which a fee-seeking party cannot
recover. See Opp’n to Supp’l, ECF No. 66 at 8-9. Instead, the
government rests only on its own interpretation of Jean which
this Court finds unpersuasive.
Accordingly, the Court will grant Plaintiffs’ request for
most of the fees requested in their charts submitted with their
Supplement and Reply Supplement. Even though the government did
not raise any specific issues regarding the fee chart that
Plaintiffs submitted with their Supplement and Reply Supplement,
the Court made minor deductions when considering the issues
related to filing expenses discussed above.
c. Expenses and Costs
As noted, Plaintiffs have submitted various charts and
documents supporting their requests for expenses and/or costs.
See Original Expenses and/or Costs Chart, ECF No. 51-2; Supp’l
Expenses and/or Costs Chart, ECF No. 62-5; Reply to Supp’l
Expenses and/or Costs Chart, ECF No. 67-2. The Court will
briefly summarize each submission.
The Court first addresses the original expenses/costs
chart. Even though many, if not all, of the items listed on this
original chart appear to be more properly classified as “costs”,
50 Plaintiffs refer to them as expenses. See Mot., ECF No. 51 at
16. But Plaintiffs did not discuss their request for “expenses”
in detail in their Motion, see id.; and argue in Reply that “the
expenses included in Exhibit B of Plaintiffs’ Motion are self-
explanatory and routinely recoverable.” Reply, ECF No. 57 at 26.
The government argues that “[r]ecovery for costs and expenses
must be limited to the itemized list in 28 U.S.C. § 1920 and
those necessary to the litigation.” Opp’n, ECF No. 54 at 31. In
so doing, it conflates what are recoverable “expenses” and
“costs,” see id. (“Title 28, United States Code, Section 1920,
permits a judge to tax six enumerated categories of expenses,
none of which are appropriately requested.”), as § 2412 limits
recoverable “costs” to those six categories enumerated in §
1920, but not “expenses.” 28 U.S.C. § 2412(a)(1).
With respect to Plaintiffs’ original request, the Court
agrees that there is not enough detail about the claimed costs
and/or expenses by which it can assess whether these are
reasonable and appropriate for this case. Although Mr. Ramos’s
declaration claims that the “expenses” attached are for work in
this litigation, see Ramos Decl., ECF No. 51-4 ¶ 10; the only
information included in Exhibit B is the “Date” “Expense” “Cost
per page” and “Total Cost”. Original Expenses and/or Fees Chart,
ECF No. 51-2. Nearly every “Expense” listed is for “DOCUMENT
REPRODUCTION”, which seems to fall within the definition of 28
51 U.S.C. § 1920(3), a cost. The other entries are for Westlaw,
Pacer Service Center, or FedEx. Id. But there is no information
in either the chart or the Motion to explain how these costs
relate to this case. See id. Therefore, the Court is unable to
assess whether the costs were reasonable or how they were
related to this litigation. Plaintiffs will therefore not
recover the costs or expenses sought in their original motion.
The expenses and costs information that Plaintiffs
submitted related to their supplements are, however, much more
detailed. See Supp’l Expenses and/or Costs Chart, ECF No. 62-5;
Supp’l Reply Expenses and/or Costs Chart, ECF No. 67-2. Notably,
the government makes no specific argument with respect to the
adequacy of justification or documentation for these costs and
expenses other than its general argument that Plaintiffs should
recover no fees, costs, or expenses for anything related to the
supplements, see Opp’n to Supp’l, ECF No. 66 at 8-9; an argument
this Court has rejected. The expenses for which Plaintiffs seek
to recover related to the Supplement and Reply to Supplement
are: (1) translation of Japanese Language Documents; (2) Fees
for Japanese CPA Fumitaka Kojima; (3) Fees for Japanese Attorney
Rie Tohyama; (4) Fees for Forensic Accountant (Kapila Mukamal);
and (5) additional Fees from Kapila Mukamal related to the Reply
to Supplement. See Supp’l Expenses and/or Costs Chart, ECF No.
62-5; Reply to Supp’l Expenses and/or Costs Chart, ECF No. 67-2.
52 These items are documented in detail as Plaintiffs submitted
invoices showing the costs for the relevant services. See Supp’l
Expenses and/or Costs Chart, ECF No. 67-2. The only question
that remains, therefore, is whether these are the types of
expenses for which Plaintiffs can recover.
A prevailing party may recover “the reasonable expenses of
expert witnesses, the reasonable cost of any study, analysis,
engineering report, test, or project which is found by the court
to be necessary for the preparation of the party's case . . . .”
28 U.S.C. § 2412(d)(2)(A). Here, the services that Plaintiffs
obtained and for which they seek to recover expenses fit these
categories. After the Court ordered that more information was
needed to substantiate Mr. Hagiwara’s representations about his
net worth, and ergo his EAJA eligibility, at the time the suit
began, Plaintiffs obtained and submitted expert analyses to
verify Mr. Hagiwara’s representations. See generally Supp’l, ECF
No. 62 (explaining additional evidence submitted). This includes
the forensic accounting report and supplemental declaration from
Kapila and the expert report from Japanese Attorney Rie Tohyama
about asset ownership determination under Japanese law. As
discussed above, Defendants submitted no contrary evidence or
expert reports, and the Court found Plaintiffs’ supplemental
materials persuasive and sufficient to reject Defendants’
53 arguments that Mr. Hagiwara’s testimony is not credible.
Therefore, these expenses were necessary for Plaintiffs to
prevail. Moreover, as noted, the government does not make any
specific challenges to Plaintiffs’ ability to recover these
expenses if they can indeed recover for their supplemental work.
Plaintiffs shall therefore recover the full amount of expenses
in their Supplement and Reply to Supplement, $19,850.00.
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART
Plaintiffs’ Motion for Attorney’s Fees, ECF No. 51. Plaintiffs
shall recover $207,702.33 in fees and $19,850.00 in expenses. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge September 29, 2025
Related
Cite This Page — Counsel Stack
Zhang v. United States Citizenship and Immigration Services, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zhang-v-united-states-citizenship-and-immigration-services-dcd-2025.