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.,

(D.D.C. 2018), aff’d,

(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,

. 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,

(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;

(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,

.

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

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

(e); that USCIS’s

position contravened the regulation’s plain meaning; and that

USCIS violated the Administrative Procedure Act,

,

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.”

. Additionally, the Court remanded all EB-5

visa petitions that the agency denied based on its invalid

interpretation of loan proceeds. See

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,

.

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,

(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.”

(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,

(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.,

(D.D.C. 2016) (citing

(d)(1)(B)), aff’d,

(D.C. Cir. 2017).

The moving party also must “allege that the position of the

7 United States was not substantially justified.”

(d)(1)(B). The United States then bears “[t]he burden of

establishing ‘that [its] position . . . was substantially

justified.’” Scarborough v. Principi,

(2004)

(quoting

(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.”

. Subsequently, Mr. Kodama gave

Mr. Hagiwara the title of Vice President of JKI.

.

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[.]”

. 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.

. Mr. Hagiwara made

this investment to support his I-526 Petition, which he

submitted to USCIS on March 17, 2014.

at 8–9; see also

Zhang,

(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,

(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.”

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,

(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

The court had previously certified the named

plaintiffs under Rules 23(b)(1)(A) and (b)(2). See Cobell v.

Babbitt,

(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,

(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.

.

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,

. 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,

(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,

, 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.”

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.”

(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,

(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

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,

(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,

(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,

(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,

(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,

(D.D.C. 2007) (citing, inter alia, F.J. Vollmer Co.,

) (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.,

.

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,

. 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,

(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,

(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.”

(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.,

(D.C.Cir. 1994) (per curiam); Jones v. Lujan,

(D.C.Cir. 1989) (per curiam), and have found no case where we denied one.”).) 34 Brownlee,

(D.C. Cir. 2004) (internal quotation

marks and alterations omitted) (quoting In re Olson,

(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,

(D.C. Cir. 1989) (per curiam)). “Where the documentation of

hours is inadequate, the district court may reduce the award

accordingly.” Hensley v. Eckerhart,

(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.,

. District Courts have

“substantial discretion in fixing the amount of an EAJA award.”

Jean,

.

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

(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,

(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,

. 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

. 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

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

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,

). 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,

; (2) successfully obtained class certification; and (3)

successfully defended against the government’s appeal. See id.;

Zhang,

. As this Court previously recognized,

“[b]ased on the briefing in this case, counsel clearly devoted

substantial time and efforts to this litigation.” Zhang,

.

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,

, *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).

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.”

These included: “[f]irst and foremost, [that] Plaintiffs

prevailed at every stage of th[e] litigation and achieved the

entirety of their requested relief.”

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.”

(citing Hensley,

). 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,

(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,

. 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,

, 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,

. 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,

, 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,

) (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,

. 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,

, 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.

(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

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.”

(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

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

(“Title

,

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.”

(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

(3), a cost. The other entries are for Westlaw,

Pacer Service Center, or FedEx.

But there is no information

in either the chart or the Motion to explain how these costs

relate to this case. See

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. 62-5; Reply to 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 . . . .”

(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

54