Nio v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

KUSUMA NIO, et al.,
Plaintiffs,
V.

Civil Action No. 17-0998 (PLF)

UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,

Defendants.

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MEMORANDUM OPINION AND ORDER
Plaintiffs Kusuma Nio, et al., and defendants, the United States Department of
Homeland Security, et al., have filed a Joint Motion for Approval of Settlement Regarding
Plaintiffs’ Claims for Equal Access to Justice Act Attorneys’ Fees and Costs (“Joint Motion for
Attorneys’ Fees”) [Dkt. No. 337]. The Court will grant the parties’ Joint Motion for Attorneys’

Fees, approve the parties’ Settlement Agreement [Dkt. No. 337-1], and award attorneys’ fees and

costs in the amount of $2,750,000.!

I. BACKGROUND
The Court’s prior opinions set out the detailed background of this case. See Nio
v. U.S, Dep’t of Homeland Sec. (“Nio I’’), 

 (D.D.C. 2017) (denying

preliminary injunctive relief); Nio v. U.S. Dep’t of Homeland Sec. (“Nio IV”), 385 F.

 

I The Court has determined that it is unnecessary to hold a hearing to approve the

parties’ Joint Motion for Attorneys’ Fees. See FED. R. CIv. P. 23(h)(3).
Supp. 3d 44 (D.D.C. 2019) (granting in part plaintiffs’ motion for partial summary judgment and
denying defendants’ cross-motion for summary judgment).”

In brief, the Secretary of Defense authorized the creation of the Military
Accessions Vital to the National Interest (““MAVNI”) program in 2008. The MAVNI program
permits non-citizens who are not lawful permanent residents to enlist in the U.S. military if it is
determined to be vital to the national interest. See Nio IV, 385 F. Supp. 3d at 47. Certain
individuals who enlist in the Selected Reserve of the Ready Reserve of the U.S. military
(“Selected Reserve”) through the MAVNI program are eligible for naturalization under 

. See 

 That statute permits non-citizens who have honorably served as members in the
Selected Reserve or in an active-duty status in the military during a designated period of military

hostilities (i.e., “qualifying military service”) to become U.S. citizens. See 

 To determine

 

eligibility for naturalization, U.S. Citizenship and Immigration Services (“USCIS”) requires an
applicant to submit, along with a Form N-400 application for naturalization, a Form N-426
completed by an official within the U.S. Department of Defense (“DOD”) certifying the
applicant’s qualifying military service. See 

. Starting in early 2017, USCIS began to
delay the processing of Form N-400s from MAVNI enlistees who were serving in the Selected
Reserve but, pending the results of the DOD’s enhanced security screening, had not yet been
shipped to basic training. See Nio I, 

; Nio IV, 385 F. Supp. 3d at 51-52.

On May 24, 2017, plaintiffs filed a class action complaint in this Court alleging
that “USCIS and DOD were unlawfully delaying the processing of MAVNI naturalization

applications due to improper interference in the process by DOD.” Nio IV, 385 F. Supp. 3d

 

Judge Ellen Segal Huvelle presided over this case until her retirement, at which

time the case was reassigned to the undersigned,
at 55. Plaintiffs sought declaratory relief, preliminary and permanent injunctive relief, relief
pursuant to the Administrative Procedure Act, and issuance of a writ of mandamus. See
Complaint and Prayer for Declaratory, Preliminary and Permanent Injunctive, Administrative
Procedure Act, and Mandamus Relief [Dkt. No. 1] at 26-30. On September 6, 2017, the Court
denied plaintiffs’ motion for preliminary injunctive relief. See Nio I, 270 F. Supp. 3d. On
October 13, 2017, DOD issued guidance (the “October 13 Guidance”) that would delay the
certification of a Form N-426 until a MAVNI’s applicable screening and suitability requirements
had been completed. See Nio v. U.S. Dep’t of Homeland Sec. (“Nio IT’), 

, 31
(D.D.C. 2017). Following issuance of the October 13 Guidance, the Court granted plaintiffs
leave to file an amended complaint, an amended motion for class certification, and a motion for
preliminary injunctive relief confined to the narrow issue of DOD’s position regarding

Form N-426 outlined in the October 13 Guidance. See 

On October 27, 2017, the Court certified a class consisting of all persons who,
before October 13, 2017, enlisted in the Selected Reserve through the MAVNI program; served
honorably in the Selected Reserve or in an active-duty status, received from the U.S. military
executed Form N-426s certifying their honorable service; submitted N-400 Applications for
Naturalization to USCIS; and had the processing or final adjudication of their naturalization
applications withheld or delayed. See Nio II, 323 F.R.D. at 31. The same day, the Court also
granted plaintiffs’ renewed motion for preliminary injunctive relief and barred defendants from
implementing a portion of the DOD’s October 13, 2017 guidance. See October 27, 2017 Order
[Dkt. No. 74].

On May 22, 2019, the Court granted in part plaintiffs’ motion for summary

judgment and denied defendants’ cross-motion for summary judgment. See Nio IV, 385 F.
Supp. 3d at 69. On August 2.0, 202.0, the Court converted the preliminary injunction issued on
October 27, 2017 into a permanent injunction and entered judgment for plaintiffs. See Nio v.
U.S. Dep’t of Homeland Sec. (“Nio V”), Civ. Action No. 17-0998, 

, at *1
(D.D.C. Aug. 20, 2020). The injunction prohibits defendants from implementing “Section ITI of
DOD’s October 13, 2017 Guidance” and from “decertifying, rescinding, recalling, revoking, or
otherwise invalidating plaintiffs’ or the class’[s] existing and duly issued Form N-426s, except as
related to the conduct of a class member and based on sufficient grounds generally applicable to
members of the military for re-characterization of service.” 

On April 9, 2021, plaintiffs filed a Motion for Attorneys’ Fees, Costs, and
Expenses Pursuant to the Equal Access to Justice Act (“Motion for Attorneys’ Fees”) [Dkt.
No. 319]. Defendants filed a response on May 29, 2021, see Defendants’ Opposition to
Plaintiffs’ Motion for Attomeys’ Fees, Costs, and Expenses Pursuant to the Equal Access to
Justice Act [Dkt. No. 326], and plaintiffs filed a reply on July 1, 2021. See Plaintiffs’ Reply in
Support of Motion for Attorneys’ Fees, Costs, and Expenses Pursuant to the Equal Access to
Justice Act [Dkt. No. 327]. On March 25, 2022, the Court referred the case to mediation, and
thereafter, the parties participated in two mediation session conducted by Magistrate Judge G.
Michael Harvey. On October 18, 2022, the parties jointly filed the motion currently before the
Court for approval of a settlement regarding attorneys’ fees. See Joint Motion for

Attorneys’ Fees.

II. DISCUSSION
A. The Equal Access to Justice Act
Plaintiffs seek an award of attorneys’ fees and costs under the Equal Access to

Justice Act (“EAJA” or the “Act”), 

. Section 2412(d)(1)(A) of the EAJA
provides for the recovery of attorneys’ fees and costs to a prevailing party in non-tort cases
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.” 

 § 2412(d)(1)(A).
There is a cap on the hourly rate that may be charged under this subsection of the statute. See 

(d)(2)(A). Plaintiffs also cite Section 2412(b), which permits a court to award
reasonable attorneys’ fees and costs to the prevailing party in any civil action against the United
States “to the same extent that any other party would be liable under the common law or under
the terms of any statute which specifically provides for such an award.” 

 § 2412(b). Under
that provision, and consistent with the common law, the United States may be liable for
attorneys’ fees and costs if it has “acted in bad faith, vexatiously, wantonly, or for oppressive
reasons.” F.D. Rich Co. v. U.S. ex rel. Indus. Lumber Co., 

 (1974); see Am.
Hosp. Ass’n v. Sullivan, 

 (D.C. Cir. 1991).

Plaintiffs maintain that there is no statutory ceiling on the hourly rate used to
calculate fees under Section 2412(b) if there is a finding of bad faith. See Gray Panthers Project
Fund v. Thompson, 

 (D.D.C. 2004) (“No statutory ceiling on the hourly
rate used to calculate fees under § 2412(b) exists; thus, an award of attorney’s fees for bad faith
can be calculated at market rates.”). Defendants do not address this issue in the Joint Motion for
Attorneys’ Fees. The Settlement Agreement itself references the EAJA and cites 

 without mentioning any particular subsection of the Act. See Settlement Agreement

[Dkt. No. 337-1]. The Court sees no need to address the issue of bad faith.

B. Notice and Opportunity for Class Members to Object
Under the Federal Rules of Civil Procedure, a court may award attorneys’ fees

and costs that are authorized by law or by the parties’ agreement. FED. R. CIv. P. 23(h). Notice
of the motion for attorney’ fees must be “directed to class members in a reasonable manner,”
FED. R. CIv. P. 23(h)(1), so that a class member has an opportunity to object to the motion. See
FED. R. Civ. P. 23(h)(2). Upon filing the Joint Motion for Attorneys’ Fees in this case, class
counsel published the joint motion and the Settlement Agreement on the website used to
communicate with class members throughout the litigation:
https://dcfederalcourtmavniclasslitigation.org/. See Joint Motion for Attorneys’ Fees at 4.
Furthermore, plaintiffs filed a supplemental memorandum reporting that, as of

November 7, 2022, no class members had commented on or objected to the motion for attorneys’
fees. See Notice of No Objections to the Settlement Regarding Plaintiffs’ Claims for Equal
Access to Justice Act Attorneys’ Fees and Costs [Dkt. No. 338] at 2. In view of the above, the
Court finds that class counsel has provided notice to class members sufficient to satisfy the
demands of Rule 23(h)(1). See Cobell v. Norton, 

 (D.D.C. 2005)
(finding that providing notice to class members via the website used “as the primary vehicle to
communicate” with class members throughout the litigation, in addition to publishing notice in

several newspapers, met the requirements of Rule 23(h)(1)).

C. Reasonableness of Fees and Costs Requested
“In a certified class action, the court may award reasonable attorneys’ fees and
nontaxable costs that are authorized by law or by the parties’ agreement.” FED. R. Civ. P. 23(h).
Rule 23(h) does not itself “create new grounds for an award of attorney fees,” FED. R. CIv.
P. 23(h) advisory committee’s note to 2003 amendment, “leaving the courts to continue to
develop the standards that will be applied.” 7B CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1803.1 (3d ed. 2021).
When awarding attorneys’ fees, federal courts “have a duty to ensure that claims
for attorneys’ fees are reasonable in light of the results obtained.” In re Black Farmers
Discrimination Litig., 

 (D.D.C. 2013) (internal citations omitted). Where,
as here, the parties have reached an agreement on the award of attorneys’ fees, the court may
give consideration and weight to that agreement, but “the court remains responsible to determine
a reasonable fee.” FED. R. Civ. P. 23(h) advisory committee’s note to 2003 amendment; see In re
Bluetooth Headset Prods. Liab. Litig., 

 (9th Cir. 2011) (“[C]ourts have an
independent obligation to ensure that the award . . . is reasonable, even if the parties have already
agreed to an amount.”); see also, e.g., Alvarez v. Keystone Plus Constr. Corp., 

 (D.D.C. 2014); Wells v. Allstate Ins. Co., 

 (D.D.C. 2008).

The determination of a reasonable fee under the EAJA is governed by the

approach first articulated by the Supreme Court in Hensley v. Eckerhart, 

 (1983).

 

See Comm’r, I.N.S. v. Jean, 

 (1990) (noting that once the threshold
requirements for eligibility of attorneys’ fees under the EAJA are met, “the district court’s task
of determining what fee is reasonable is essentially the same as that described in Hensley”); see
also Anthony v. Sullivan, 

 (D.C. Cir. 1993). Using the lodestar method, the
Court begins by “determining the amount of a reasonable fee,” that is, “the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.
Eckerhart, 

. In plaintiffs’ Motion for Attorneys’ Fees and accompanying
declaration, filed before the parties reached a settlement regarding attorneys’ fees and costs,
plaintiffs represent that class counsel devoted 15,325.5 hours working on this case, not including
the time related to that motion or the parties’ Joint Motion for Attorneys’ Fees. See Declaration

of Jennifer M. Wollenberg (““Wollenberg Decl.”) [Dkt. No. 319-2] 99 5, 40. Given the scope of
plaintiffs’ claims and the duration of this litigation, as detailed in Ms. Wollenberg’s declaration,
the Court finds reasonable the amount of time spent for this representation. See Animal Legal
Def. Fund, Inc. v. Perdue, 

 (D.D.C. 2018).

With regard to a “reasonable hourly rate,” plaintiffs request fees based on the
hourly rates set out in the Legal Services Index Laffey Matrix (“Laffey Matrix”). See Laffey
Matrix, http://www.laffeymatrix.com/see.html (last visited Dec. 21, 2022); see also DL v.

D.C., 

 (D.C. Cir. 2019) (explaining the history of the Laffey Matrix and
noting the D.C. Circuit’s previous endorsement of the matrix); Salazar v. D.C., 

(D.C. Cir. 2015) (“[T}he district court’s point that the [Legal Services Index]-adjusted matrix is
probably a conservative estimate of the actual cost of legal services in [the Washington, D.C.]
area, does not appear illogical.” (internal quotations omitted)).? In view of the complexity of this
multi-year litigation — which has involved extensive motions practice, including motions for
preliminary injunction, class certification, and summary judgment, as well as mediation and
settlement negotiations — and the experience and skill of counsel, the Laffey Matrix reflects a
reasonable hourly rate for plaintiffs’ counsel. See Hensley v. Eckerhart, 

; see
also, e.g., Alvarez v. Keystone Plus Constr. Corp., 

.

Applying the Laffey Matrix to the number of hours reasonably expended on the
litigation by plaintiffs’ counsel yields a lodestar amount of $9,757,453 in attorneys’ fees. See
Wollenberg Decl. ff 5, 40; Motion for Attorneys’ Fees, Costs, and Expenses Pursuant to the

Equal Access to Justice Act, Ex. 23 [Dkt. No. 319-28] (calculating fees based on class counsel’s

 

: The EAJA allows a maximum rate of $125 per hour plus an upward cost-of-living

adjustment for claims for attorneys’ fees brought under Section 2412(d)(1)(A). See 

(d)(2)(A). This is substantially lower than counsel’s standard hourly rate. See

Wollenberg Decl. { 14 (noting that at class counsel’s standard hourly rate, their time would be
valued at more than $13 million).
hours and the hourly rates listed in the Laffey Matrix). The Court finds that the proposed
settlement amount of $2,750,000 in attorneys’ fees and costs agreed upon by the parties
adequately reflects plaintiffs’ sterling success and is a reasonable and fair award. See Little v.
Wash. Metro. Area Transit Auth., 

 (D.D.C. 2018) (awarding attorneys’
fees where class counsel “demonstrated exceptional skill in litigating an extremely difficult case
and obtaining class certification for liability purposes,” the case lasted several years and was

complex, and the effort ultimately resulted in substantial relief to class members).*

III. CONCLUSION

For the foregoing reasons, the Court will grant the parties’ Joint Motion for
Attorneys’ Fees and award $2,750,000 in attorneys’ fees and costs to plaintiffs. Accordingly, it
is hereby

ORDERED that the parties’ Joint Motion for Approval of Settlement Regarding
Plaintiffs’ Claims for Equal Access to Justice Act Attorneys’ Fees and Costs [Dkt. No. 337] is
GRANTED; it is

FURTHER ORDERED that the parties’ Settlement Agreement [Dkt. No. 337-1]
is APPROVED; it is

FURTHER ORDERED that the United States shall pay counsel for

plaintiffs $2,750,000 in attorneys’ fees and costs; and it is

 

4 Included within this decision, the Court finds reasonable the $34,147.22 in costs

incurred by plaintiffs in litigating this action. See Wollenberg Decl. { 51; see also, e.g., In re Fed.
Nat’l Mortg. Ass’n Sec., Derivative, & “ERISA” Litig., 

 (D.D.C. 2013).
FURTHER ORDERED that plaintiffs’ Motion for Attorneys’ Fees, Costs, and

Expenses Pursuant to the Equal Access to Justice Act [Dkt. No. 319] is DENIED as moot.

Ona ZX fio ane

PAUL L. FRIEDMAN
United States District Judge

SO ORDERED.

 

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