UNITED STATES DISTRICT COURT TRIPOLI … vs DOJ (Aug 09).pdfUNITED STATES DISTRICT COURT FOR THE...

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TRIPOLI ROCKETRY ) ASSOCIATION, INC., and ) NATIONAL ASSOCIATION ) OF ROCKETRY )

) Plaintiffs, )

) v. ) Civil Action No. 00-0273 (RBW)

) BUREAU OF ALCOHOL, ) TOBACCO, FIREARMS & ) EXPLOSIVES, )

) Defendant. )

PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION

TO PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS Pursuant to Rule 7(d) of the Local Rules, Plaintiffs Tripoli Rocketry Association, Inc. and

the National Association of Rocketry respectfully reply to Defendant Bureau of Alcohol,

Tobacco, Firearms and Explosives’ (“BATFE’s”) Opposition to Plaintiffs’ Motion For

Attorneys’ Fees and Costs Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §

2412.

ARGUMENT

1. Local Rule 7(m) Does Not Apply to this Proceeding Because Applications for Fees Under EAJA are Dispositive Motions.

BATFE argues that the Court should deny Plaintiffs’ Motion for Attorneys’ Fees and

Costs (“Pfs’ Mtn.”) under Rule 7(m) of the Civil Rules (“LCvR”) of this Court because Plaintiffs

did not confer with the agency prior to filing their fee motion. Defendant’s Opposition to

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Plaintiffs’ Petition for Attorneys’ Fees and Costs at 6-8 (“Def.’s Opp.”). This argument is

completely without merit. By its terms, Rule 7(m) requires counsel to confer prior to filing any

“nondispositive motion.” However, a motion for attorneys’ fees under EAJA is a dispositive

motion, i.e., “a motion that, if granted, would result in the determination of a particular claim on

the merits or the elimination of such a claim from the case.” Neidermeier v. Office of Baucus,

153 F. Supp. 2d 23, 26 (D.D.C. 2001) (citing Burkhart v. Washington Metropolitan Area Transit

Authority, 112 F.3d 1207, 1215 (D.C. Cir. 1997)). Thus, Rule 7(m) is inapplicable.

Plaintiffs’ motion is governed instead by LCvR 54.2 and Fed. R. Civ. P. 54(d)(2), which

together treat motions for attorneys’ fees as dispositive motions, for which prior consultation is

not required unless ordered by the Court. Under LCvR 54.2, in any proceeding for attorneys’

fees, the court “may . . . enter an order directing the parties to confer and attempt to reach

agreement on fee issues.” If no such order is issued, “the parties are to proceed with motions for

attorneys fees pursuant to Rule 54(d)(2), Federal Rules of Civil Procedure.” Rule 54(d)(2)(D), in

turn, provides that motions for attorneys’ fees may be referred to magistrate judges “as if they

were dispositive.”1

BATFE erroneously cites this Court’s opinion in Alberts v. HCA Inc., 405 B.R. 498, 501-

02 (D.D.C. 2009), for the proposition that Local Rule 7(m) applies to all motions seeking

attorneys’ fees. Def.’s Opp. at 6. Alberts is completely inapposite, however, because that case

concerned a motion for discovery sanctions in the form of attorneys’ fees, and not a motion for

attorneys’ fees under a fee-shifting statute such as EAJA. This Court has traditionally regarded

1 A federal magistrate may issue only proposed findings of fact and recommendations regarding dispositive motions, which the district court reviews de novo. 28 U.S.C. § 636(b)(1). Although § 636(b)(1) does not specifically list motions for attorneys’ fees as dispositive motions, it has been recognized that the list is “nonexhaustive,” and that “unlisted motions that are functionally equivalent to those listed . . . are also dispositive.” Vogel v. U.S. Office Products Co. 258 F.3d 509, 515 (6th Cir. 2001).

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motions for discovery sanctions to be nondispositive, while treating motions for attorneys’ fees

at the conclusion of a matter as dispositive motions. Compare U.S. ex rel. Tennessee Valley

Marble Holding Co. v. Grunley Construction, 433 F.Supp.2d 104, 111-12 (D.D.C. 2006) (“a

motion for sanctions is a nondispositive motion and is therefore subject to Local Rule 7(m)”) and

Sokos v. Hilton Hotels Corp., 283 F. Supp. 2d 42, 55 (D.D.C. 2003) (finding that plaintiff

seeking sanctions under Fed. R. Civ. P. 37(b)(2) had violated local rule requiring counsel to

confer before filing nondispositive motions), with David v. District of Columbia, 252 F.R.D. 56;

2008 U.S. Dist. LEXIS 68767 (D.D.C. 2008) (holding that magistrate’s memorandum opinion

and order on motion for attorneys’ fees should have been issued as a report and recommendation

pursuant to Fed .R. Civ. P. 54(d)(2)(D), because it was dispositive).

Other jurisdictions have likewise concluded that motions for attorneys’ fees under EAJA

and other fee-shifting statutes are dispositive motions. See, e.g., Rajaratnam v. A.D. Moyer, 47

F.3d 922, 924 (7th Cir. 1995) (finding that EAJA application for attorneys’ fees “cannot be

characterized as nondispositive”); Jenkins v. Secretary of Health and Human Services, 1994 U.S.

App. LEXIS 18333 (9th Cir. 1994) (holding that magistrate lacked authority to issue final order

on EAJA motion for attorneys’ fees because the motion was dispositive); Pettyjohn v. Sullivan,

801 F. Supp. 503, 505 (W.D. Okla. 1992) (concluding that EAJA “attorney fees matters are more

appropriately categorized as analogous to a dispositive motion”), rev’d on other grounds,

Pettyjohn v. Shalala, 23 F.3d 1572 (10th Cir. 1994); Paris v. U.S. Dep’t of Hous. & Urban Dev.,

795 F. Supp. 513, 516 (D.R.I. 1992) (finding that an EAJA fee petition “closely resembles

[dispositive] motions because it requires an adjudication as to whether or not monetary relief

should be awarded,” which “in effect, disposes of that aspect of the litigation and directly affects

the substantive rights of the parties”), rev’d on other grounds, Paris v. U.S. Dep’t of Hous. &

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Urban Dev., 988 F.2d 236 (1st Cir. 1993); Estate of Conners v. O’Connor, 6 F.3d 656, 658-59

(9th Cir. 1993) (motion for attorneys’ fees under 42 U.S.C. § 1988 treated as dispositive); Leyse

v. Corporate Collection Servs., 557 F. Supp. 2d 442, 443 (S.D.N.Y. 2008) (motion for attorneys’

fees under Fair Debt Credit Reporting Act, 15 U.S.C. § 1692k(a)(3), treated as dispositive).

Here, because no order was ever issued by this Court under LCvR 54.2 directing the

parties to confer on the fee issues, Plaintiffs were free to file their dispositive motion without

first consulting with BATFE’s counsel. Accordingly, this Court should not dismiss Plaintiffs’

motion for failing to comply with LCvR 7(m).

2. The Government’s Position Was Not Substantially Justified.

BATFE attempts to shift the burden of proof to Plaintiffs by arguing that its position was

substantially justified because “[P]laintiffs did not undermine successfully” the notion that there

are “at least some circumstances” where ammonium perchlorate composite propellant (“APCP”)

qualifies as an explosive. Def.’s Opp. at 11. The law is clear, however, and BATFE concedes,

that BATFE bears the burden of establishing that its losing position was nevertheless

substantially justified because it had a “reasonable basis both in law and fact.” F.J. Vollmer Co.,

Inc. v. Magaw, 102 F.3d 591, 595 (D.C. Cir. 1996) (quoting Pierce v. Underwood, 487 U.S. 552,

565 (1988). See also Lundin v. Mecham, 980 F.2d 1450, 1459 (D.C. Cir 1992); Def’s Opp. at

10.

BATFE utterly fails to meet its burden because it completely ignores the stated grounds

for the Court’s March 16, 2009 Order, which was based on BATFE’s blatant, inadequately-

explained, and completely unjustified violation of a long-settled principle of administrative law

that an agency must consider and take account of evidence in the administrative record which, if

true, would require a change in its position. Tripoli Rocketry Ass’n, Inc. v. BATFE, No. 00-273,

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slip op. at 2-3 (D.D.C. Mar. 16, 2009) (citing La. Fed. Land Bank Ass’n, FLCA v. Farm Credit

Admin., 336 F.3d 1075, 1080 (D.C. Cir. 2003) and D&F Alfonso Realty Trust v. Garvey, 216

F.3d 1191, 1995 (D.C. Cir. 2000)). Plaintiffs provided scientific data to BATFE that

demonstrated that APCP in hobby rocket motors does not deflagrate and, therefore, could not be

classified as an explosive. Tripoli, No. 00-273, slip op. at 2-3 (D.D.C. Mar. 16, 2009). This data

is in the BATFE administrative record and was provided in a timely fashion. See Plaintiffs’

Motion for Summary Judgment on Count One of Their Third Amended Complaint at 12 (Jan. 31,

2007) and Plaintiffs’ Reply to Defendant’s Opposition to Motion for Summary Judgment at 3-4

(Apr. 10, 2007) (“Plaintiffs’ Reply”). Yet, BATFE did not, because it could not, point the Court

to any indication in the administrative record that it ever considered this data. In fact, BATFE

simply ignored what Plaintiffs’ expert had to say. This deliberate disregard for Plaintiffs’ data

was especially reprehensible because, had BATFE actually considered Plaintiffs’ data, it would

have realized not only that Plaintiffs’ data was correct, but also that BATFE’s own data actually

supported Plaintiffs’ position. 2 See Plaintiffs’ Reply to Defendant’s Opposition to Motion for

Summary Judgment at 10 (Apr. 10, 2007).

BATFE’s reprehensible failure to consider data in the administrative record formed the

basis of both the Court of Appeals’ 2006 decision and this Court’s March 16, 2009 decision. As

the Court of Appeals concluded, “[B]ATFE has provided virtually nothing to allow the court to

2 This case turned on how fast APCP burns in hobby rocket motors (i.e., the APCP “burn rate”). BATFE’s experiments measuring the burn rate of APCP in hobby rocket motors assumed that the APCP burns bottom-to-top (or top-to-bottom), whereas in fact it burns a shorter distance from the inside of the hollow core of the fuel to the outside. Because both sets of experiments measured the same burn durations, application of simple arithmetic would have compelled BATFE to realize that, if it used the correct but shorter burn distances, its measured burn rate (distance divided by time) and Plaintiffs’ measured burn rate were nearly identical. See Plaintiffs’ Reply to Defendant’s Opposition to Motion for Summary Judgment at 10 (Apr. 10, 2007).

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determine whether its judgment reflects reasoned decisionmaking.” Tripoli Rocketry Ass’n, Inc.

v. BATFE, 437 F.3d 75, 81 (D.C. Cir. 2006). On remand, this Court held simply and

convincingly that “[h]ere, the agency’s shortcoming was its failure to articulate any rationale for

finding that the relevant and significant evidence in the record that conflicted with its position

was unpersuasive, which it seemingly out-of-hand dismissed merely because it was contrary to

the agency’s ultimate conclusion.” Tripoli, No. 00-273, slip op. at 3 (D.D.C. Mar. 16, 2009).

See also id. at 2 (BATFE “did not adequately explain why it came to the decision it did in light

of contrary evidence . . . submitted by the plaintiffs”).

The holdings by this Court and the Court of Appeals thus applied long-settled principles

of administrative law. Indeed, the cases cited by this Court date back to 1993. Id. at 3.

Therefore, unlike Hill v. Gould, 555 F.3d 1003 (D.C. Cir. 2009), this case presented no novel

legal issue; nor did it stretch the contours of law in some unanticipated direction. See Def.’s

Opp. at 12-13. There was no legal support whatsoever for the proposition advanced by BATFE

that it was free to ignore contrary evidence in the scientific record. Plaintiffs may have been the

first to challenge BATFE’s classification of APCP as an explosive, but they are hardly the first to

cite and apply the fundamental and long-settled principle of administrative law that an agency

must consider and take account of evidence in the administrative record which, if true, would

require a change in its position. La. Fed. Land Bank Ass’n, 336 F.3d at 1080.

Moreover, BATFE’s argument that it properly classified APCP under at least some

circumstances is not only incorrect, but completely beside the point. Def.’s Opp. at 11. Even

assuming, for the sake of argument, that reasonable persons may disagree over whether APCP is

an explosive, no reasonable person or agency can quarrel with the proposition that an agency

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must consider and take account of evidence in the administrative record which, if true, would

require a change in its position.

BATFE has thus failed to show that its decision had any reasonable basis in law and fact,

and this Court should not find its position to be substantially justified.

3. The Time Spent on This Matter and the Costs Incurred are Reasonable and Sufficiently Documented.

The agency argues that any fees awarded to Plaintiffs should be reduced because the

application allegedly contains “excessive, redundant and unnecessary charges,” and because the

documentation of Plaintiffs’ counsel’s expenses is inadequate. Def.’s Opp. at 19-21. Plaintiffs’

motion clearly demonstrates, however, that they have exercised sufficient care to ensure that the

billing records submitted to the Court reflect only time reasonably spent on this matter.

Although BATFE makes much of the fact that Plaintiffs’ counsel spent a substantial number of

hours on this case, there is nothing to suggest that these hours were not reasonable for the work

performed over ten years of litigation.

First, Plaintiffs’ counsel exercised billing judgment to avoid seeking reimbursement for

unsuccessful claims, duplicative work, and any other time that is not eligible for reimbursement.

Pfs’ Mtn. at 22-23. This resulted in the omission of more than $100,000 in fees and costs from

the amount originally billed by Plaintiffs’ counsel.3 Id. at 24.

3 Plaintiffs recognize that a small number of additional time entries and business costs submitted with their motion and identified by ATFE in its opposition memorandum may not be compensable under EAJA. These were good-faith oversights that resulted from the need for litigation counsel to contract with another law firm to prepare the EAJA application in light of Mr. Egan’s death. Plaintiffs have therefore revisited the application and deducted certain specific entries from the $395,136.99 initially requested. These deductions have omitted a total of $28,697.37 from the initial requested amount, and Plaintiffs now seek a total of $366,439.62 in attorneys’ fees and costs. Amended Time Records (Exhibit 1). Specifically, Plaintiffs have excluded 50.95 total hours and $19,255.75 from the requested fees for the attorneys that conducted the underlying litigation, including all work performed by Mr. Egan and Mr.

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Second, it is hardly unreasonable for Plaintiffs’ counsel to have spent a significant

cumulative amount of time on this matter over the ten-year period in which this case was being

litigated. The parties went through multiple rounds of summary judgment motions and briefs

before this Court, then litigated the matter before the Court of Appeals before returning for a

final round of summary judgment motions before this Court.

BATFE’s argument that this Court should use, as a “yardstick” for judging the

reasonableness of the hours spent in this case, a twenty-year-old decision finding thirty-five total

hours to be sufficient for drafting a summary judgment motion and reply, hardly merits a

response. Def.’s Opp. at 18 (citing Barber v. American Sec. Bank, 1989 WL 7339 (D.D.C.

1989)). That decision was a recommendation issued by a Magistrate and not a binding federal

judicial order. Furthermore, the Magistrate made clear that the legal questions in that case “were

neither novel nor complex and the factual data was readily ascertainable and easily interpreted.”

Id. at *8. The circumstances of this case, conversely, necessitated substantially more time for

preparing the summary judgment motions and replies, particularly given that Plaintiffs’

Complaint consisted of five separate counts and involved highly technical issues. Even if thirty-

five hours were reasonable, moreover, this number reflects only the time needed for the actual

drafting of the motion and reply. Certainly this Court recognizes that an attorney’s duty to his or

Lawrence in connection with BATFE’s 2003 rulemaking (establishing 62.5 grams of APCP as a threshold for is regulation), and all other entries for work not directly related to this litigation. Amended Time Records of Joseph Egan (Exhibit 2) and Amended Time Records of John Lawrence (Exhibit 3). Plaintiffs have also reduced all of paralegal John Kewley’s time by one-half to account for any excessive or duplicative time, and time spent on purely administrative tasks. Amended Time Records of John Kewley (Exhibit 4). This has reduced the requested fees by an additional $7,404.25. Id. Furthermore, Plaintiffs have omitted $4,367.87 worth of out-of-pocket costs, including all transportation, postage, courier and telephone charges. Amended Business Costs (Exhibit 5). The original time records for attorneys Martin Malsch, Matthew Fraser, Ruth Eisenberg and Diane Curran have not been amended and thus the Court should reference the time records for those attorneys that are attached to Plaintiffs’ Motion for Attorneys’ Fees and Costs.

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her client of zealous advocacy typically requires the performance of work beyond the simple

drafting of motions and replies.

Third, the 104.8 hours spent by Mr. Fraser in preparing the fee motion are entirely

consistent with Circuit precedent. See, e.g., Fabi Constr. Co. v. Sec. of Labor, 541 F.3d 407, 414

(D.C. Cir. 2008) (awarding fees for half of the 236.8 hours spent preparing an EAJA fee

application); American Petroleum Inst. v. U.S. E.P.A., 72 F.3d 907, 918 (D.C. Cir. 1996)

(awarding fees for 90 total hours spent preparing an EAJA fee application). Plaintiffs even

reduced by fifteen percent the number of hours Mr. Fraser actually spent in preparing the motion

to account for his inefficiency as an inexperienced lawyer, thus preventing BATFE from having

to “pay a junior attorney to learn the fundamentals of EAJA law.” Def.’s Opp. at 19; Fraser Decl.

at 2, ¶ 4 (attached as Exhibit 9 to Plaintiffs’ Motion for Attorneys’ Fees and Costs).

In addition to being reasonable, the hours spent by Plaintiffs’ counsel are sufficiently

documented such that the Court can readily identify the tasks that were performed. In fact,

BATFE does not point to a single specific instance in its Opposition where a description in

Plaintiffs’ counsel’s time records is overly vague or otherwise too general to allow for

identification and analysis.

Lastly, BATFE suggests that Plaintiffs are improperly seeking reimbursement from the

Government for fees and costs that were never paid (“[I]t seems improbable that two

organizations with a single employee and no apparent way to generate profit ever paid any of the

fees being sought in this petition.” Def.’s Opp. at 21-22), and that Plaintiffs’ counsel allocated

more time to this case than was reasonably necessary simply because they “enjoyed working on

[it].” Def.’s Opp. at 22. Not only are these accusations entirely irrelevant, but they are also

simply incorrect. Plaintiffs have, in fact, paid all of their bills for legal fees and costs in this

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case, with the limited exception of the August 2009 invoice for services rendered in July 2009.

Malsch Supp. Decl. at 2, ¶ 3 (Exhibit 6). Moreover, Plaintiffs’ counsel performed only the work

they deemed necessary to advance their clients’ interests, and that their clients were willing and

able to pay them to perform. The Government’s feigned outrage at the size of the award

Plaintiffs seek is particularly galling in light of the fact that, after a blistering rebuke from the

Court of Appeals, the agency could have remedied its flawed decision-making and ended the

matter. Having failed to do so, it is hardly in a position to complain because Plaintiffs incurred

additional fees.

4. Plaintiffs Are Entitled To Recover The Enhanced Fee Rates.

BATFE argues that the Court should not use Plaintiffs’ counsel’s “previous study of

mathematics and science . . . as a basis for finding an expertise for the lawyers in this case,” and

thus deny Plaintiffs’ recovery of fees at the enhanced rates. Def.’s Opp. at 14. However, this is

precisely the type of situation in which attorneys may recover EAJA enhanced fees in this

Circuit. See, e.g., F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C. Cir. 1996) (“Fee

enhancement is available only for lawyers whose specialty requires technical or other education

outside the field of American law”).

Plaintiffs’ counsel each received advanced degrees in the areas of physics and chemistry:

Martin Malsch received a B.S. degree in Physics and later studied Theoretical Physics, Joseph

Egan received B.S. and M.S. degrees in Nuclear Engineering, and John Lawrence has a B.S.

degree in Nuclear Engineering. Pfs’ Mtn. at 26. Counsel completed their science educations

prior to attending law school and entirely apart from their respective law practices. Their

knowledge and experiences in these areas were critical in reviewing and interpreting over 2,000

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pages of highly-technical scientific studies, manuals, and testing protocols found in the

administrative record, and thus aided counsel in developing their legal strategy. Id. at 26-28.

Contrary to BATFE’s suggestion, Plaintiffs are not alleging that their attorneys possess

significant experience in administrative law, or any other area of law, that qualifies them for the

enhanced fees. Def.’s Opp. at 14. Such expertise, by itself, does not amount to “specialized

knowledge” under the law of this Circuit. Vollmer, 102 F.3d at 598. Nor are Plaintiffs simply

relying on counsel’s personal interests in hobby rocketeering as the basis for the enhanced fees,

although Mr. Egan’s lifetime of experience designing, building and flying model rockets

certainly aided him in providing effective representation. Pfs’ Mtn. at 27. Rather, it is the

attorneys’ unique and sophisticated knowledge of science and rocketry that allowed them to

litigate the issues of this case with greater efficiency and skill than they otherwise could have,

thus justifying the award of an enhanced fee. See In re: Sealed Case No. 00-5116, 254 F.3d 233,

235 (D.C. Cir. 2001) (attorney seeking enhanced fees under EAJA must demonstrate “some

distinctive knowledge or specialized skill needful for the litigation in question.” (quoting Pierce

v. Underwood, 487 U.S. 552, 572 (1988)).

BATFE claims that Plaintiffs “have not demonstrated a single instance where the

supposed ‘specialty’ was essential to advance plaintiffs’ case.” Def’s Opp. at 15. However,

Plaintiffs’ counsel clearly stated that their knowledge of the chemical constituents of APCP and

how they function in hobby rocket motors was necessary to find the burn rate of APCP, which

aided in the formulation of counsel’s legal arguments. Pfs’ Mtn. at 27. Moreover, counsel’s

specialized knowledge in physics was critical to understanding, analyzing and responding to the

technical studies presented by BATFE in support of its position. Id. at 27-28.

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While it is clear that this Circuit sets a high bar for awarding enhanced EAJA rates,

BATFE’s reading of the case law would preclude attorneys from virtually ever qualifying for the

enhanced fees. The requirement for “specialized training” acquired outside of one’s legal

experience is intended to prevent lawyers from recovering the enhanced fees in every EAJA

case, because litigants will usually want to hire lawyers with substantial experience in the

applicable area of law. In re Sealed Case, 254 F.3d at 236. Here, however, counsel’s technical

knowledge and training are unique among their peers and were of great value in formulating and

executing their successful legal strategy. As such, they are entitled to recover their fees at the

enhanced rates. See id. at 235-36.

If, however, the Court determines that Plaintiffs are not entitled to recover their

attorneys’ fees at the enhanced rates, then Plaintiffs should recover $176,775.40, which

comprises $135,303.10 in attorneys’ fees incurred in the underlying litigation at EAJA rates and

adjusted for cost-of-living increases; $7,404.25 in paralegal fees; $10,138.71 in business costs;

and $23,929.34 in attorneys’ fees incurred in preparing the EAJA motion.4 See Plaintiffs’

Requested Attorneys’ Fees at EAJA Rates (Exhibit 7). See also supra note 3.

CONCLUSION

BATFE has not carried its burden of showing that its position in this case, including both

the agency’s underlying actions and the arguments put forth in court to defend those actions, was

substantially justified. Plaintiffs are therefore entitled to an award of $366,439.62 in attorneys’

fees and costs or, in the alternative, $176,775.40. Because Plaintiffs (1) have sufficiently

4 Plaintiffs are submitting with this reply their Motion for Leave to File a Supplemental Motion for Attorneys’ Fees and Costs, which, if granted, will seek reimbursement for those additional attorneys’ fees and costs incurred in preparing this reply memorandum. Plaintiffs’ counsel attempted unsuccessfully to contact counsel for BATFE on August 10, 2009 concerning this Motion for Leave, pursuant to LCvR 7(m).

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established that both the number of hours spent on this case by Plaintiffs’ counsel and the costs

incurred are reasonable; (2) have adequately documented the nature of the work performed; and

(3) have exercised good-faith billing judgment to exclude all noncompensable fees and costs

from their request, no further discretionary reduction of the award by this Court is appropriate.

Respectfully submitted,

/s/ Martin G. Malsch John W. Lawrence Egan, Fitzpatrick, Malsch & Lawrence, PLLC 1750 K St. NW, Suite 350 Washington, D.C. 20006 Tel: (202) 466-3106 Fax: (202) 496-5011 [email protected] [email protected]

Dated: August 10, 2009

mailto:[email protected]

mailto:[email protected]


_______________________________ ) TRIPOLI ROCKETRY ) ASSOCIATION, INC., and ) NATIONAL ASSOCIATION ) OF ROCKETRY ) ) Plaintiffs, ) ) v. ) Civil Action No. 00-0273 ) BUREAU OF ALCOHOL, ) TOBACCO, FIREARMS & ) EXPLOSIVES, ) ) Defendant. ) _______________________________)

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Tripoli Rocketry Association’s and National Association of Rocketry’s Reply to Defendant’s Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs Pursuant to the Equal Access to Justice Act was served on the following attorneys of record by electronically filing the document on the CM-ECF document filing system for the United States District Court for the District of Columbia on this 10th day of August, 2009: Jane Lyons, Esq. Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20001

/s/ Martin G. Malsch


_______________________________ ) TRIPOLI ROCKETRY ) ASSOCIATION, INC., and ) NATIONAL ASSOCIATION ) OF ROCKETRY ) ) Plaintiffs, ) ) v. ) Civil Action No. 00-0273 ) BUREAU OF ALCOHOL, ) TOBACCO, FIREAREMS & ) EXPLOSIVES, ) ) Defendant. ) _______________________________)

ORDER

Currently before the Court is the Plaintiffs’ Motion for Attorneys’ Fees and

Costs Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, filed June 15,

2009. Because the Court finds that (a) Plaintiffs were the “prevailing party” in the

underlying litigation; (b) the position of defendant Bureau of Alcohol, Tobacco,

Firearms & Explosives (“BATFE”) was not substantially justified; and (3) the

requested fees are reasonable, it is hereby ORDERED this ____ day of _______,

2009 that Plaintiffs’ motion is GRANTED. BATFE shall compensate Plaintiffs

for the full requested amount of $366,439.62.

SO ORDERED.

______________________________

REGGIE B. WALTON United States District Judge Martin G. Malsch John W. Lawrence Egan, Fitzpatrick, Malsch & Lawrence, P.L.L.C. 1750 K St. NW, Suite 350 Washington, D.C. 20006 Tel: (202) 466-3106 Fax: (202) 496-5011 [email protected] [email protected] Counsel for Plaintiffs Jane Lyons, Esq. Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20001 Counsel for Defendant

Amended Time RecordsTripoli Rocketry Ass'n v. BATFE (No. 00-0273)

Original Hours Amended Hours Original Fees Amended FeesJoseph Egan 210.34 193.44 $84,473.90 $77,782.40

Martin Malsch 382.53 382.53 $164,609.35 $164,609.35John Lawrence 334.83 300.78 $92,809.32 $82,575.57

John Kewley 135.40 67.70 $14,808.50 $7,404.25Business Costs $14,506.58 $10,138.71Ruth Eisenberg 25.90 25.90 $4,567.21 $4,567.21

Diane Curran 5.00 5.00 $881.70 $881.70Matthew Fraser 104.80 104.80 $18,480.43 $18,480.43

1198.80 1080.15 $395,136.99 $366,439.62

Amended Time Records

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Exhibit 1

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Amended Time Records of Joseph R. EganTripoli Rocketry Ass'n v. ATFE (No. 00-0273)

2000

Date Description Time1/11/2000 Met with J. Lawrence and M Malsch re: draft complaint,

choice of court, standing, exhaustion, and other legal issues for lawsuit; reviewed first draft complaint and drafted additional factual sections and comments for J Lawrence.

2.00

1/22/2000 Made revisions to draft complaint per J Lawrence and reviewed/edited same

1.28

1/28/2000 Conference call w/ J Lawrence and M Malsch re: input on 0.56

1/31/2000 Meeting with J. Lawrence re: draft complaint 0.24Total: 4.08

Rate Amount355 $1,448.40

2001

Date Description Time9/25/2001 Tel/call to FAA (DC) re shutdown of waivers; discussion

w/ Bruce Kelly re same0.80

Total: 0.80Adjusted Total: 0.00

Rate Amount395 $316.00

Adjusted Amount

$0.00

2002

Date Description Time11/27/2001 Tel/call from B Kelly to discuss new ATF action; tel/call to

Marty Malsch (LeBoeuf-Lamb) re same0.24

1/22/2002 Tel/call from B Kelly re ATF letter; Reviewed same; Tel/call to John Larence (LeBoeuf-Lamb) re same and to discuss strategy and proposed course of action

0.24

1/23/2002 Participated in conference call w/ J Lawrence, M. Malsch, B Kelly and M Bundick re new legal action and next steps; follow-up tel/call from B Kelly re same

0.80

2/22/2002 Reviewed email messages from J Lawrence, B Kelly & M Bundick re legal strategy; Tel/call from J Lawrence re ATF progress

0.40

2/27/2002 Tel/call from J Lawrence to discuss status and next steps 0.24

2/28/2002 Reviewed legal documents from J Lawrence 0.32

Amended Time Records of Joseph R. Egan

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3/14/2002 Reviewed our draft response pleading to ATF; Tel/call to J. Lawrence re same.

0.33

3/25/2002 Continued review of and revisions to J. Lawrence court pleading.

0.24

4/4/2002 Met M. Bundick, John Lawrence and Marty Malsch (LeBoeuf Lamb) for strategy meeting while Bundick was in area.

1.68

6/27/2002 Reviewed judge's order on the dismissal motion; Tel/call to John Lawrence (LeBoeuf-Lamb) to discuss same

1.20

6/28/2002 Participated in conference call re judge's order w/ Mark Bundick, John Lawrence and Marty Malsch

0.80

7/1/2002 Reviewed email correspondence from J Lawrence, M Bundick & B Kelly; tel/call from M Bundick re same and Pat Miller (client contact)

0.80

7/12/2002 Reviewed email correspondence on press issues and scheduling status re ATF

0.20

7/23/2002 Reviewed Joint Status Report 0.308/24/2002 Reviewed and edited summary judgment documents 1.108/26/2002 Tel/call to J Lawrence (LeBeouf-Lamb) to discuss

comments on summary judgment documents0.60

8/29/2002 Followup tel/call to J Lawrence (LeBoeuf-Lamb) re finalize motion for summary judgment; reveiwed email correspondence from M Bundick re ATF storage

0.50

9/14/2002 Reviewed Department of Justice's response to our motion for summary judgment

1.00

9/27/2002 Reviewed and edited final brief; Tel/call to J Lawrence (LeBoeuf-Lamb) to discuss same; Reviewed email correspondence from M Bundick re same

1.00

10/2/2002 Reviewed BATF’s responsive pleading on summary judgment motion

0.60

10/15/2002 Reviewed and edited reply brief to BATF’s response; Follow-up tel/call to J Lawrence re same

1.50

10/22/2002 Reviewed request for enlargement of time; Reviewed and responded to J Lawrence's email correspondence re same

0.20

11/5/2002 Reviewed BATEs Reply Brief. 0.50Total: 14.79


2003

Date Description Time2/4/2003 Tel/call w/ John Lawrence (LLGM) and M. Malsch re

meeting w/ TRA-NAR delegation to discuss status of current litigation.

0.70

2/5/2003 Tel/call from J. Lawrence re agenda for TRA-NAR meeting (FEB 8); Commented on same.

0.40

Page 2 of 13


2/7/2003 Prepared for presentation on FEB 8 to TRA-NAR representatives; Follow-up tel/call to J. Lawrence re same.

1.00

2/8/2003 Traveled to Crystal City (Arlington),Virginia for meeting w/ TRA-NAR representatives to discuss status of litigation and next steps

3.60

2/10/2003 Reviewed proposed joint statement from M. Bundick and B. Kelly; Reviewed emailed correspondence from M Bundick and Dick Embry (new pres., Tripoli Rocketry Association) and responded to same

0.50

2/11/2003 Reviewed follow-up e-mailed correspondence from M Bundick and responded to same

0.20

2/28/2003 Reviewed various e-mailed correspondence from M Bundick, J Lawrence and responded to same; reviewed ATF's proposal on court filing re rulemaking petition; follow up tel/call to J Lawrence re filing our own pleading

0.60

3/3/2003 Reviewed draft pleading from J. Lawrence; Follow-up tel/call to J Lawrence to furnish comments re same

0.30

3/9/2003 Reviewed numerous e-mail messages re status and new issues

1.00

3/10/2003 Reviewed ATF rulemaking petition and our response to it filed w/ the Court

0.80

3/11/2003 Reviewed draft instructions to Tripoli/NAR comments on response to ATF rulemaking petition

0.40

3/12/2003 Reviewed e-mail correspondence from J. Lawrence, and edits from M Bundick

0.20

4/25/2003 Tel/call from J. Lawrence re drafting letter to ATF 0.105/20/2003 Reviewed and responded to numerous e-mail

correspondence on the Enzi plan0.40

5/27/2003 Reviewed and made comments on petition to ATF; furnished comments to J Lawrence

0.20

6/4/2003 Reviewed and responded to draft rulemaking comments from J Lawrence

0.80

7/2/2003 Reviewed and edited new comments for ATF prepared by M Bundick; Met w/ M Malsch to discuss same; Follow-up tel/call from M Bundick to discuss same

0.80

7/17/2003 Reviewed and responded to email correspondence from J Lawrence re adding participants to lawsuit

0.20

7/25/2003 Reviewed draft pleading on new rule for the court and submitted comments to J Lawrence re same

0.80

10/31/2003 Tel/calls from B kelly and to /from J Lawrence A. Cesaroni (Pres., Cesaroni Tech) re BATF ballistics testing of Tripoli rockets and motors; tel/call to T Ficaretta (BATFE senior counsel) re same; follow-up tel/calls to J Lawrence and B Kelly to discuss same; Follow-up tel/calls to J Lawrence and B kelly to discuss same; Reviewed and responded to various email correspondence on same

3.30

11/1/2003 Reviewed responded to numerous email correspondence on BATFE situation

0.60

Page 3 of 13


11/3/2003 Reviewed and responded to additional email correspondence on ballistics testing dispute

0.50

11/4/2003 Reviewed and responded to additional email correspondence re testing

0.80

11/5/2003 Continued reviewing and responding to latest round of email correspondence re testing

0.50

11/14/2003 Reviewed email correspondence from M Bundick re BATFE issues

0.30



Adjusted Amount

$5,174.50

2004

Date Description Time5/1/2004 Reviewed draft joint statement and emailed response 0.105/5/2004 Participated in conference call w/ M Malsch and B kelly

re enforcement action by BATFE in Florida; Follow-up discussion w/ M Malsch re same; Tel/call to Florida re same

1.50

5/6/2004 Tel/call to Ross Dunton (Ohio) re magazine lock issue; drafted letter to BATFE re same; tel/call to M Bundick re same

2.10

5/7/2004 Tel/call from M Bundick re new counter-action; reviewed K Good's (President, Tripoli Rocketry Ass'n) email on same; Reviewed BATFE letter from Jane Lyons, Esq ( US Attorney's Office)

1.20

5/10/2004 Reviewed and responded to email from M Bundick and J Dennis on magazine locks; redrafted joint statement per BATFE letter; tel/call to m Bundick re same, and court strategy

1.00

5/21/2004 Reviewed settlement options proposal by K Good 0.206/1/2004 Reviewed and responded to email requests from M

Bundick0.20

7/14/2004 Reviewed email messages on magazine rule; Participated in a conference call w/ M Malsch and M Bundick re BATFE meeting strategy; reviewed email messages from K Good re same

1.40

7/16/2004 Tel/call w/ Jane Lyons, Esq (US Attorney's Office) re BATFE frequently asked questions.

0.30

7/17/2004 Tel/call to M Bundick re BATFE Frequently Asked Questions, and my tel/call w/ Jane Lyons, Esq.; Reviewed and responded to emails from M Bundick and K Good re same

1.00

7/20/2004 Reviewed and responded to several email messages re magazine issues

0.50

Page 4 of 13


8/10/2004 Reviewed and responded to email messages from M Bundick

0.20

8/12/2004 Reviewed BATFE's Frequently Asked Questions on Web site; tel/calls from M Bundick re same

0.75

8/13/2004 Tel/call to Jane Lyons, Esq (Assistant US Attorney) re Frequently Asked Questions (FAQs) posted on BATFE Web site

0.20

8/27/2004 Reviewed and responded to K Good emails re magazines

0.10

9/2/2004 Reviewed e-mails fromM. Bundick on storage restrictions.

0.20

9/3/2004 Tel/call from B. Kelly re “Al’s Hobby Shop “emergency; Met wI M. Malsch re same.

0.30

9/7/2004 Reviewed and responded to e-mails on the situation wI “Al’s Hobby Shop” from K. Good and M. Bundick; Met w/ M. Malsch re same.

0.60

9/8/2004 Tel/call from Jane Lyons, Esq. (US Attorney's Office/BATFE) re "Al's Hobby Shop" situation; sent email to clietns re same; reviewed and dispositioned numerous emails from clients

0.90

9/10/2004 Reviewed and responded to c-mails on the latest developments re "Al's Hobby Shop"; met w/ M Malsch re innovative pleading

0.50

9/16/2004 Reviewed K. Herrick material for affidavit; Reviewed affidavit and emails from K Good re same; emailed J Lyons re same

0.60

9/17/2004 Tel/call from M. Bundick re J. Lyons’ email; Reviewed emails re same from M Bundick and K Good Met w/ M Malsch re same; Worked on affidavit for Al's Hobby Shop and Motion for Early Status Conference

2.00

9/23/2004 Tel/call to M. Malsch re affidavit for hearing request. 0.209/27/2004 Reviewed and sent affidavit for K. Herrick; Met w/ M.

Malsch re same.0.80

9/28/2004 Worked on Herrick affidavit; Amended pleading seeking early status conference; emailed clients re same and respond to their inquiries

3.00

9/29/2004 Reviewed/dispositioned emails from client. 0.309/30/2004 Completed and filed Motion for Early Status Conference. 1.00

10/7/2004 Reviewed emails from M. Bundick and K. Good on ISEE, strategy for hearing and AIF issues

0.40

10/13/2004 Reviewed strategy memo from K. Good; Tel/call from M. Bundick re explosives issue

0.30

10/14/2004 Meeting with M. Malsch re preparation for hearing; Prepared exhibits for hearing; meeting w/ K Good and M Bundick re same

4.80

10/15/2004 Outlined motion for oral argument; Traveled to court for oral argument.

4.70

10/19/2004 Reviewed court order; tel/call from K Good re same; meeting w/ M Malsch re same; email to client re same; reviewed rules on amending complaint

1.00

Page 5 of 13


10/21/2004 Reviewed and edit 54(b) motion on count 1; Meeting w/ M Malsch re same, and court; Begin drafting new lawsuit on PADs; Email client re alternative strategy

3.20

10/25/2004 Meeting with M. Malsch re revised strategy. 0.5010/26/2004 Meeting with M. Malsch re amended complaint. 0.2010/27/2004 Reviewed, amend and file motion to amend complaint;

Responded to emails from K Good and M Bundick re same; Meeting w/ M Malsch re same

1.10

11/23/2004 Reviewed response to our motion to amend; Met w/M. Malsch re same.

0.60

11/23/2004 Outlined motion for oral argument; Traveled to court for oral argument.

1.50

11/24/2004 Drafted replies on motion to supplement; drafted reply on 54(b) appeal motion

8.80

11/26/2004 Tel/call from B. Bundick re filings; Continued working on proposed 54(b) order.

2.00

11/29/2004 Drafted and filed proposed Rule 54(b) order; Met w/M. Malsch re same; Incorporated M Malsch's comments; Reviewed emails from M Bundick

4.80

12/1/2004 Responded to questions from K. Good on pleadings and next steps.

0.40

12/16/2004 Prepared for Tripoli hearing. 1.5012/17/2004 Attended and argued motions at status meeting; Emailed

client re victory on both; met w/ M Malsch re same4.00

12/21/2004 Reviewed orders by court on 54(b) motion and on motion to supplement; Emailed clients re same; met w/ M Malsch re same

0.40

12/23/2004 Reviewed emails from M. Bundick and K. Good. 0.20Total: 61.55

Adjusted Total: 59.25Rate Amount

395 $24,312.25Adjusted Amount

$23,403.75

2005

Date Description Time1/14/2005 Reviewed emails from M. Bundick re LEUP’s. 0.101/25/2005 Responded to emails from M. Bundick; Reviewed Court’s

order and administrative filings; met w/ M Malsch re same

0.30

1/28/2005 Responded to client email inquiries; Reviewed administrative filing requirements from DC Circuit Order; Reviewed DOJ's answer to new complaint; status hearing w/ Judge Walton and ATF' Emailed report of hearing to client; met w/ M Malsch re same

3.20

Page 6 of 13


2/17/2005 Tel/call from District Court re administrative filings for apeal; Reviewed, edited administrative filins w/ M Malsch

0.60

2/25/2005 Reviewed ATF administrative filings. 0.103/23/2005 Reviewed petition for summary affirmance from DOJ;

Tel/call to M Malsch re same0.70

3/28/2005 Reviewed/edit response to ATF's summary affirmance motion; met w/ M Malsch re same

0.50

3/31/2005 Tel/call from M Bundick; Tel/call to his contact re blasting agents

0.40

5/25/2005 Responded to M Bundick inquiry 0.206/10/2005 Disscussed status conference and DC Circuit decisions

w/ M Malsch0.20

7/22/2005 Tel/call to court re mediation; discussed same w/ M Malsch

0.40

7/25/2005 Drafted email to clients on mediation issue 0.108/3/2005 Reviewed/edit brief; met w/ M Malsch re same 2.709/16/2005 Reviewed/edited draft reply brief; Met w/ M Malsch re

same1.20

9/20/2005 Reviewed/edited reply brief; Incorporated comments from B Cynkar and M Bundick

2.00

9/22/2005 Finalized Reply Brief w/ M Malsch 0.5010/12/2005 Proofed final briefs; Edited errors; Tel/call to M. Bundick

re same.1.00

12/29/2005 Prepared for oral argument by reviewing all briefs and Administrative Record

3.30

Total: 17.5Rate Amount

395 $6,912.50

2006

Date Description Time1/6/2006 Prepared for oral argument; Met w/M. Malsch and B.

Cynkar re same.7.20

1/8/2006 Prepared for oral argument. 3.101/9/2006 Prepared for oral argument; Moot Court w/M. Malsch and

B. Cynkar; Met w/ clients in DC re strategy8.00

1/10/2006 Attended oral argument and argued case; Post meeting debriefing w/ clients

4.00

2/10/2006 Tel/con wIM. Malsch re D.C. Circuit decision. 0.202/23/2006 Reviewed in detail oral argument decision from D.C.

Circuit; Tel/call to M Malsch re same; Sent email to team re same; Edited instructions to members on same

2.00

2/25/2006 Reviewed ATF response to our court victory, and client emails on same

0.40

3/21/2006 Reviewed emails on Tripoli/ATF status. 0.204/20/2006 Tel/call from M. Malsch re results of Judge Walton status

hearing and strategy for next steps0.40

Page 7 of 13


5/12/2006 Reviewed/responded to emails from K. Good on joint statement and from M Bundick on LEUP battles

0.30

6/22/2006 Reviewed and responded to emails on burn test results from clients.

0.30

7/11/2006 Reviewed client bum rate data on paper. 0.107/13/2006 Reviewed Tripoli/NAR burn rate report from K. Good. 0.207/17/2006 Reviewed emails from client and M. Malsch on July 26

hearing preparation0.20

7/19/2006 Reviewed BATFE status report to court on burn rates; Reviewed M Malsch and client emails re same.

0.40

7/24/2006 Con/call w/ K Good, M Bundick, and M Malsch re startegy for status hearing

0.50

7/25/2006 Reviewed numerous emails from client reps on hearing issues.

0.20

7/26/2006 Attended pre-hearing meeting w/client and M. Malsch re status hearing; Attended status hearing w/ Judge Walton and BATFE; Discussed results of hearing w/ client; Reviewed numerous client emails on hearing issues

4.00

8/2/2006 Tel/call from M. Malsch re BATFE filing. 0.208/11/2006 Reviewed ATF’s final rule in Fed. Register on 62.5 gram

regulation.1.10

8/21/2006 Re-reviewed notice of final rulemaking; Reviewed notice of proposed rulemaking on PAD issue; Tel/call to M. Malsch, K Good and M Bundick re same

2.90

9/18/2006 Reviewed emails from K. Good and M. Bundick on “Quickburst’ inspection issue; Discussed same w/ M Malsch

0.30

9/29/2006 Reviewed draft comments on PADs NPRM from M. Bundick; Discussed same w/ M Malsch, and emailed M Bundick in response

0.80

10/3/2006 Reviewed emails from client on FBI inquiries of members; Discussed participation in FBI inquiry w/ M Malsch and B Cynkar; Emailed K Good re same

0.80

10/4/2006 Reviewed/responded to numerous ernails from clients on FBI inquiry of Tripoli member; Conference w/ B Cynkar and M Malsch re same, and lawyer participation

1.00

10/5/2006 Reviewed/responded to additional email on FBI inquiry re high-power rocketry

0.40

10/7/2006 Reviewed email from P. Gordzelik (Vice President, Tripoli Rocketry Association) on potential legal issue w/ACPC explosives classification

0.10

10/11/2006 Reviewed Defendant’s Status Report filed with Judge Walton; Reviewed client report of FBI call; Tel/call to M Malsch re same, and his call with J Lyons on next steps; Emailed clients on proposed new rates

1.00

Page 8 of 13


10/16/2006 Reviewed report from David Schatzer (BATFE) re his conclusion that ACPC is an explosive; Reviewed Defendants Notice of Agency Decision re same; Reviewed extensive comments from clients, members, and legal team re same; Tel/call to M Malsch re strategy for response; Tel/call from M Malsch re his call to Jane Lyons re hearing and schedule; Discussion w/ M Malsch re safety fuses

4.40

10/17/2006 Reviewed Court’s scheduling order; Discussed today’s hearing results and scheduling issues w/ M Malsch; Reviewed additional emails from clients and members on BATFE ACPC report

2.20

10/25/2006 Reviewed new ACPC burn rate data from K. Good. 0.2010/30/2006 Tel/call to M. Malsch re assignments, and schedule. 0.2010/31/2006 Reviewed/responded to K. Good’s analysis for G.

Rosenfield on current status of PAD exemption, and client emails on same; Reviewed emails on ATF's filing of administrative record, and review of hard copy

0.30

11/1/2006 Reviewed Defendants’ Notice of Filing of Administrative Record; Tel/calls to M Malsch re same, and to N Toliver re distribution; Reviewed draft NAR response on PAD NPRM

0.60

11/2/2006 Reviewed M. Malschs mark-up of NARs draft NPRM comments.

0.30

11/3/2006 Reviewed email from M. Bundick on review of Administrative Record; Responded to same

0.10

11/7/2006 Reviewed K. Good’s summary of administrative record and ACPC testing protocol; Reviewed M Bundick's summary of same; Reviewed email from K Good on ATF Videos; Emailed office re production of same

0.50

11/8/2006 Reviewed M. Malsch comments to T. McCreary (Board of Directors, Tripoli Rocketry Association) on his presentation about ATF suit; Reviewed McCreary presentation outline; Reviewed email from K Good on ATF Videos; Emailed office re production of same

0.30

11/14/2006 Reviewed comments by client and M. Malsch re ATF’s burn rate analysis; Contacted office re ATF videos

0.20

12/7/2006 Reviewed M. Bundick summary of Administrative Record; Reviewed Lyngdale comments on ATF developments; Reviewed further comments from M Bundick on NAR v ATF

1.10

12/11/2006 Completed preivew of Bundick record summary; tel/con w/ M Marlsch, M Bundick, and K Good re use of record summary and preparation for motion for summary judgment

1.30

12/14/2006 Reviewed/edited and commented on Plaintiff's Third Amended Complaint

1.50

Page 9 of 13


12/18/2006 Reviewed memo from M Bundick on Fireworks industry litigation and possible ramifications for NAR and Tripoli; Reviewed M Malsch comments on same; Tel/call to N Tolivar re filing amended complaint

0.30



Adjusted Amount

$18,288.50

2007

Date Description Time1/3/2007 Reviewed Answer filed by BATFE to our amended

complaint.0.20

1/4/2007 Reviewed M. Bundicks synopsis of original administrative record and respond

0.60

1/9/2007 Reviewed memo from M. Bundick on ATF enforcement action against a member; Emailed M Malsch re same

0.20

1/10/2007 Reviewed email from M. Malsch re Bundick’s ATF enforcement description

0.10

1/17/2007 Reviewed client comments on use of administrative record for our motion; Discussed assignments w/ M Malsch and his concerns on safety fuse; Reviewed emails on same

0.60

1/18/2007 Tel/con w/ clients and M. Malsch re strategy for Motion for Summary Judgement, Administrative Record, and evidentiary needs

1.00

1/19/2007 Reviewed/edited revised statement of facts from M Malsch; Reviewed core burning animation video for possible exhibits; Emailed M Malsch with suggestions for statment of facts

1.32

1/22/2007 Reviewed M. Malsch’s revised statements of fact and questions on barium sulfate in paper

0.20

1/24/2007 Reviewed/edited/rcdlined draft motion for summary judgment; emailed comments to M Malsch re same; reviewed client comments on other explosive facts

2.10

1/25/2007 Tel/call from M. Malsch re questions re affidavits and motion; Reviewed revised motion; Reviewed reports from clients on Gary Rosenfield inspection by ATF; Discussed same w/ M Malsch

0.70

1/26/2007 Reviewed/edited revised motion for summary judgment 2.00

1/29/2007 Tel/call to M. Malsch to discuss Friday’s client call and next steps on filings; reviewed M Bundick suggestions for motion; emailed M Malsch re use of same

0.60

Page 10 of 13


1/30/2007 Reviewed propellant grain graphics from K. Good and respond; Reviewed client comments on motion and affidavits

0.20

1/31/2007 Reviewed final filings with District Court; Emailed M. Malsch re same.

0.20

2/4/2007 Reviewed Defendant’s motion for summary judgment and made notes on key objections; reviewed Defendants' Statement of Facts; Reviewed emails from client on correction; Emailed M Malsch re filing an errata on diameter v radius

1.60

2/5/2007 Reviewed emails on error in our filing on diameter v radius; Emailed M Malsch on need to file an errata with court; Responded to M Malsch emails re same; Reviewed ATF motion for summary judgment and responded

1.60

2/6/2007 Reviewed Bundick response to ATF motion; Emailed M Malsch re key issue in our response

0.40

2/12/2007 Reviewed M Bundick response to ATF summary judgment motion

0.30

2/16/2007 Reviewed/commented on M Bundick comments on ATF filing

0.40

2/26/2007 Reviewed/edited M Malsch's draft opposition to BATFE's motion for summary judgement; Discussed same w/ M Malsch including BATFE's request for extension of time; Reviewed client emails on draft opposition; Reviewed/responded to client proposal to change safety code or render formal interpretations on dealing w/ the ATF

2.70

3/8/2007 Reviewed M. Malsch’s email on my comments. 0.103/15/2007 Reviewed final draft of our reply brief for filing; Emailed J.

Bromfield re same; Discussed same w/ M Malsch0.70

3/19/2007 Reviewed ATF’s reply brief and their response to our statement of facts; Emailed M Malsch re same

0.80

3/20/2007 Reviewed ATF’s opposition and their affidavit on igniters and safety fuses; Discussed same with M Malsch; Reviewed client views on ATF's opposition and their questions; Responded to same

0.80

3/22/2007 Reviewed additional client comments on strategy for Walton hearing and M Malsch's comments on same; Reviewed M Bundick confidential analysis of ATF's opposition and case citations

0.50

3/23/2007 Reviewed numerous client emails on responding to ATF opposition and M Malsch comments on same; Responded to same

0.30

3/26/2007 Reviewed numerous client emails on review of and suggestions for response to aTF affidavit and pleading; Discussed same w/ M Malsch

0.60

3/28/2007 Reviewed T. Barber’s critique of Schatzer affidavit; Reviewed M Bundick's outline for conference call

0.30

4/2/2007 Review numerous emails from clients on Shatzer affidavit and Q&A for Rosenfield affidavit

0.50

Page 11 of 13


4/6/2007 Extensive work on G Rosenfield affidavit from emails and input from client and experts; Complete first draft of affidavit; review/edit/redline first draft of our reply brief; email M Malsch re same

6.60

4/9/2007 Tel/calls to and from M Malsch re finalization of affidavit and reply brief; Edit/redline and comment on same; review client emails on administrative record cites; review M Malsch's redrafted version of Rosenfield affidavit; tel/call from G Rosenfield re his affidavit; review late-drafted McCreary affidavit; email M Malsch re same; review/edit final reply brief; email J Bromfield re filing of same

5.50

4/10/2007 Work w/ M Malsch and clients to complete and file final reply brief and Rosenfield affidavit; discuss McCreary affidavit w/ M Malsch; review same; review ATF's Reply Brief; review/respond to emails from K Good, M Malsch and M Bundick re same

2.00

4/11/2007 Respond to client requests for feedback on ATF's Reply Brief ; discuss same w/ M Malsch

0.50

4/24/2007 Discuss w/ M. Malsch response to J. Lyons on deletion of her footnote No. 1; review text of letter re same

0.20

4/26/2007 Review/comment on letter to Jane Lyons on footnote 1; discuss same w/ M Malsch

0.20

4/30/2007 Discuss resolution of Footnote I issue with M. Malsch and review filing on same

0.10

5/1/2007 Review J. Lyons filing of errata to court on Footnote No. 1; tel/call from M Malsch re same

0.30

5/2/2007 Review M. Malsch memo to client on success of ATF errata filing.

0.10

6/18/2007 Respond to email re hearing schedule 0.107/3/2007 Review/respond to emails from M. Bundick and K. Goode

re attendance at July 27 hearing before Judge Walton and possibility this will convert to oral argument on summary judgment

0.30

7/5/2007 Respond to client questions on 7/27 hearing. 0.207/18/2007 Email clients re 7/27 hearing. 0.107/26/2007 Tel/call from M. Malsch re cancellation of hearing. 0.108/10/2007 Respond to client inquiry on Judge Walton’s activities. 0.10

8/24/2007 Review/comment on draft joint statement from clients concerning status of litigation

0.30

8/31/2007 Respond to K. Good’s questions about Walton hearing and whether to release statement to members

0.10

9/18/2007 Review objection from M. Bundick on late-filed comment by former ATF staffer Aherne; review K Good, P Gordzelik and M Malsch comments on same; respond to same

0.40


Page 12 of 13



Adjusted Amount

$16,712.70

Grand Total: 210.34 $84,473.90Adjusted Grand Total: 193.44 $77,782.40

Page 13 of 13

Amended Time Records of John W. LawrenceTripoli Rocketry Ass'n v. ATFE (No. 00-0273)

2000

Date Description Time1/5/2000 Review ATF statutory/regulatory provisions re judicial

challenges to agency action; research and review case law re same; research legislative and regulatory history

4.40

1/6/2000 Begin drafting original complaint; additional research re standing and jurisdictional issues; incorporate same into complaint

3.20

1/7/2000 Finish initial draft of complaint; additional research re same; forward draft to J Egan for review

4.20

1/10/2000 Conference with J. Egan and M. Malsch re draft complaint, various jurisdictional and pleadings issues and expected ATF defenses

0.80

1/11/2000 Review J. Egan's comments re draft complaint; conference w/ M Malsch re same

0.60

1/18/2000 Review J Egan's comments; conference w/ M Malsch re same; obtain and review historical files and recent client emails; begin revising draft complaint

2.60

1/19/2000 Revise draft complaint re J Egan's comments; add details re high powered rocekts; research re Tripoli and NAR web sites re same; add details re aerotech letters; begin review of historic correspondence files with ATF to ensure consistent arguments; review emails from members re injury; conference w/ M Malsch re final agency action issues

6.20

1/20/2000 Continue revisions to draft complaint; emails with B Kelly re same and specific injuries to members; incorporate injury due to regulators into complaint; conference w/ M Malsch re same

5.80

1/21/2000 complete second draft of complaint; conference w/ M Malsch re numerous issues, theories and juridictional defenses re same

5.20

1/24/2000 Conference w/ M Malsch re second draft complaint; revise complaint re additional commetns from J Egan and M Malsch; telephone conversation with B Kelly re same

5.00

1/27/2000 Tel call with J Egan re draft complaint; conference w/ M Malsch re causes of action; incorporate comments into draft complaint

2.40

1/28/2000 Complete complaint; forward to M Bundick (client contact) and B Kelly (client contact) for review; telephone conversation with B Kelly re same; review emails re same

2.80

Amended Time Records of John W. Lawrence

Page 1 of 11

rjacobs

Typewritten Text

Exhibit 3


1/31/2000 Meeting with J Egan re litigation issues and planned telephone conference, conference w/ M Malsch re client comments

0.60

2/1/2000 Conference with M Malsch re complaint issues 0.402/2/2000 Conference with M Malsch re telephone conference

with client; telephone conference re litigation strategy issue and public relations issues

1.80

2/8/2000 Review email from B. Kelly re strategy re aeotech; prepare fax to all re changes and comments

1.40

2/9/2000 Tel conversation with B Kelly re administrative issues re filing; telephone conversation w/ M Bundick re same; review rules re filing requirements

1.40

2/10/2000 Prepare civil cover sheet, summons, transmittal letters and disclosure statements; final revisions to complaint per comments from J Egan and M Malsch; review FRCP and local rules to verify filing requirements and recent changes

3.40

2/10/2000 Conference with M Malsch re complaint issues 0.402/11/2000 Finalize documents to be filed; final review, comment

and print of complaint; conference with M Malsch re signatures and filing procedures; telephone conversations w/ M Bundick and B Kelly re filing approval; conference with paralegal re filing; revise filing to reflect street addresses

2.80

2/14/2000 Letters to Bundick and Kelly transmitting lawsuit and commenting on district court judge; emailed as filed pleading for Tripoli/NAR websites

1.80

57.20Rate Amount

245 $14,014.00

2001

Date Description Time2/26/2001 Tel call from B Kelly re ATF's December 2000 letter

review; discussion w/ M Malsch re time for appealing letter to courts

0.60

2/27/2001 Followup conversation with B Kelly re ATF's December 2000 letter

0.40

12/4/2001 Discussion with M Malsch and J Egan re new 62.5 gram enforcement policy; telephone conference call w/ clients and attorneys regarding same as well as possible letter to ATF on issues

0.60

12/5/2001 Initial Review of new enforecement policy against prior ATF positions; legal research on ATF ability to revise enforcement policy and need for public notice

1.60

Total: 3.20Rate Amount

260 $832.00

Page 2 of 11


2002

Date Description Time1/22/2002 Tel/call with J Egan regarding current ATF regional

activites and need for conference call w/ clients; emails to and from clients regarding phone call tomorrow

1.82

1/23/2002 Phone call w/ B Kelly and M Bundick regarding response to current ATF regional activities; discussion of need for filing w/ court and assignments re same

1.98

2/22/2002 Discussion w/ M Malsch regarding ATF's recent filing; initial review of ATF's motion for summary judgment; phone call w/ J Egan re same; emails to clients w/ regard to same

1.32

2/25/2002 Phone calls w/ J Lyons regarding ATF's Jan 2002 positions and reqeuest to stay hand; conference call w/ litigation team to discuss same and various strategic issues regarding litigation

2.00

2/26/2002 Phone call w/ J Lyons regarding ATF's unwillingness to stay Jan 2002 positions; emails and calls w/ clients regarding same; conference w/ M Malsch regarding need for amended complaint

0.99

2/28/2002 Prepared motion to extend time for response to ATF's summary judgment motion; phone call w/ J Lyons regarding same; emails to court of pleadings from yesterday; finalized and filed motion w/ court; discussion w/ M Malsch regarding administrative records

1.65

3/5/2002 Began drafting response to ATF's summary judgment pleading in case a time extension was not granted; phone calls w/ court re time extension and order re same

2.31

3/6/2002 Continued work on response to summary judgment pleading for eventual filing; focus on statutory issues regarding Chevron and standard of review; discussions w/ M Malsch re same

4.95

3/7/2002 Continued drafting response to ATF's summary judment pleading focusing on statutory requirements for explosives and on listing of APCP

2.64

3/8/2002 Continued drafting response to ATF's summary judgment pleading focusing on propellant actuated device exemption; Discussion w/ M Malsch on Chevron argument

2.81

Page 3 of 11


3/14/2002 Phone calls w/ ATF counsel J Lyons to discuss joint status report; prepared draft of same; conference w/ M Malsch re same and schedule for future pleadings; revised joing status report to incorporate J Lyons requested changes; filed joint status report; incorporated comments received on reply pleading; discussion w/ J Lyons re ATF's supplement to opposition pleading

6.79

3/18/2002 Reviewed ATF's supplement to opposition pleading and declaration of waller; prepared supplemental reply pleading and filed; discussion w/ B Kelly and M Bundick re same

5.25

3/20/2002 Reviewed all pending pleadings in anticipation of tomorrow's hearing

1.60

3/21/2002 Prepared for hearing w/ Judge Walton; attended hearing and addressed status issues; follow-up discussion w/ J Lyons (ATF) and M Malsch; prepared memorandum to clietns regarding hearing results; phone call w/ law clerk for Judge Walton regarding amended complaint; discussion w/ J Lyons and M Malsch regarding same; legal research w/ regard to FRCP 7, 12 and 15; follow-up phone call w/ law clerk

4.40

3/22/2002 Phone call w/ M Bundick regarding yesterday's hearing and future schedule; phone call w/ B Kelly re same

0.80

4/3/2002 Phone call w/ M Bundick re meeting this week to discuss case; follow-up emails to litigation team

0.20

5/8/2002 Emails t/from M Bundick re administrative record distribution; collected materials for sending via letter to T Barber (client contact) and J Jones (client contact) per M Bundick request

1.20

5/9/2002 Phone call w/ J Lyons regarding summary judgment pleading schedule delay to await ruling on dismissal; follow-up discussion w/ M Malsch.

0.83

5/29/2002 Phone call w/ J Lyons re court's docket sheet and discussion of pending decision on dismissal

0.40

6/26/2002 Received and reviewed court order denying ATF's motion for dismissal; conference w/ M Malsch regarding implications of same; emails/faxes to clients of opinion and initial thoughts; phone call w/ M Bundick re same

2.25

6/27/2002 Read court's opinion and order; pphone call w/ J Egan regarding same; discussion w/ M Malsch regarding implications and enxt steps

1.50

7/1/2002 Phone call w/ B Kelly to discuss court opinions, order and next steps; phone call w/ Jane Lyons on responding to court's scheduling order; phone call w/ G Rosenfield (President of rocketing manufacturing company) regarding deflagration v. burning of APCP; discussion w/ M Malsch regarding scheduling order

2.50

Page 4 of 11


7/2/2002 Phone call w/ J Lyons re summary judment pleading schedules; follow-up discussion w/ M Malsch; phone call w/ M Bundick re public statement; reviewed draft of same; phone call w/ G Rosenfeld re APCP burn rates

2.00

7/3/2002 Disccusion w/ M Malsch re ATF's pleading schedule and availability

0.75

7/8/2002 Phone call w/ M Bundick; reviewed NAR site posting; phone call w/ B Kelly; phone call w/ potential explosives expert

2.00

7/10/2002 Reviewed order of June 25, reviewed LCVR v.3 and FRCP on discovery issues; prepared joint status report pleading and discussed same w/ M Malsch; forwarded to J Lyons for review and comment

2.75

7/11/2002 Incorporated J Lyon's comments into joint status report pleading; finalized same and forwarded to J Lyon's for signature and filing

2.00

7/12/2002 Phone call w/ J Lyons regarding joint status report; faxed details to clients

1.00

7/22/2002 Began reading treatise on rocket propulsion for use in summary judgement motion; discussion w/ M Malsch re hearing last Wednesday

1.50

7/23/2002 Discussion w/ M Malsch w/ regard to summary order; read treatise on rocket propulsion w/ regard to APCP burn rates

3.00

7/24/2002 Phone call w/ M Bundick regarding strategy and schedule for summary judgment motion; discussion w/ M Malsch regarding same

0.75

8/20/2002 Drafting of summary judgment papers; phone calls and email w/ J Egan and J Kyte re ATF FOIA paperwork

1.50

8/21/2002 Cont. drafting motion for summary judgment, supporting memo, and G Rosenfield affidavit; communication w/ J Kyte re FOIA documents from 1999

1.75

8/22/2002 Completed first draft of summary judgment motion; completed first draft of statement of material facts; assembled supporting exhibits; finalized G Rosenfield affidavit; email to J Egan, M Bundick, B Kelly and G Rosenfield draft documents; phone call w/ M Bundick re pleading and schedule for review

7.50

8/23/2002 Phone call w/ G Rosenfield re affidavit to support summary judgment pleading

1.00

8/26/2002 Phone call w/ G Rosenfield re affidavit; worked on summary judgment pleading by incorporating commetns and recommendations; reworked pleadings to better reference and utilize statement of material facts

7.00

8/27/2002 Continued working on summary judgment pleading. 3.008/28/2002 Phone call w/ J Egan re comments on draft pleading;

incorporated M Malsch and J egan comments in summary judgment pleading

2.75

Page 5 of 11


8/29/2002 Continued effort to finalize motion for summary judgment; discussion w/ m Malsch re his comments on earlier version of same; cross checked references for accuracy and consistency

4.50

8/30/2002 Phone call w/ M Bundick re final pleading; phone call w/ B Kelly re final pleading; conference w/ J Egan re motion for summary judgment; finalize pleading, signed and coordinated filing; phone call w/ J Lyons re ATF's extension for filing; conference w/ M Malsch re all of the above

4.00

9/3/2002 Checked summary judgment pleading as filed and updated docket; reviewed ATF's unopposed motion to enlargement of time

1.50

9/4/2002 Reviewed first half of ATF's summary judgment pleading; conference w/ M Malsch re same

1.50

9/5/2002 Received and reviewed second half of ATF's summary judgment motion and statement of material facts; office conference w/ M Malsch re same

2.00

9/11/2002 Telcons and emails w/ M Bundick and B Kelly re ATF summary judgment pleadings and next steps

0.50

9/16/2002 Began drafting response in opposition to ATF's motion for summary judgment; reviewed ATF cases and researched possible response

3.00

9/17/2002 Continued working on responsive pleading; researched issues (Cases in support); reviewed administrative record to verify positions on both sides

5.50

9/18/2002 Continued working on response pleading; discussion w/ M Malsch re same

7.00

9/19/2002 Cont. working on response to ATF's summary Judgment motion; discussion w/ M Malsch re same

6.50

9/20/2002 Continued working on response to ATF's summary judgment motion; discussion w/ M Malsch re same

6.75

9/23/2002 Drafted statement of genuine issues responding to ATF's statement of material facts; worked on response pleading to ATF's summary judgment pleading; office conference w/ M Malsch re same

3.50

9/24/2002 Continued work on pleading responding to ATF's motion for summary judgment; office conference w/ M Malsch re same

4.25

9/25/2002 Prepared last argument in pleading; office conference w/ M Malsch regarding same; forwarded to clients and J Egan for review and comment

3.00

9/26/2002 Incorporated comments on pleading from M Bundick; telecons w/ B Kelly regarding comments and incorporated same into pleadings; office conference w/ M Malsch re pleading; incorporated changes to pleadings recommended by M Malsch; finalized pleading and re-issued for last review

6.50

Page 6 of 11


9/27/2002 Final review and edit of pleading; incorporated last minute comments; prepared documents for filing and coordinated same; telecon w/ J Lyons re receipt of ATF's pleading

4.75

8/13/2002 Began drafting motion for summary judgment and memorandum in support; re-reviewed administrative record w/ regards to deflagration issues; review current treatise on APCP burn rates

5.00

8/14/2002 Continued drafting motion for summary judgment and memorandum in support; reviewed and incorporated materials received via emails; began drafting statement of material facts not in dispute; cross-checked arguments against ATF's previous summary judgment pleadings

5.25

8/15/2002 Further work on summary judgment pleadings, including memorandum in support and statement of materials facts

7.00

8/16/2002 Continued working on summary judgment pleadings, memorandum in support; statemetn of material facts; Rosenfield affidavit

5.50

8/19/2002 Additional work on memorandum in support of summary judgment motion; refined statement of material facts by reviewing ATF letters and pleadings for admissions; work on Rosenfield affidavit

7.25

9/30/2002 Office conference with M. Malsch 0.5010/1/2002 Reviewed ATF’s opposition to our summary judgment

motion; reviewed response to our statement of facts; reviewed Conkling's affidavit; discussion of same w/ M Malsch

3.00

10/2/2002 Emails with G. Rosenfield regarding ATF position on re-loads prior to Jan 2002; reviewed documents w/ regard to same; outlined reply pleading

2.00

10/3/2002 Telecon with M. Bundick regarding ATF’s opposition pleading; telecon w/ B Kelly re same; began drafting reply pleadings; office conerence w/ M Malsch re same

4.00

10/4/2002 Continued drafting reply pleading; office conference w/ M Malsch re same

5.75

10/7/2002 Continued drafting reply pleading 6.0010/8/2002 Continued drafting reply pleading 1.5010/10/2002 Updated reply pleading to address comments, issues

and suggestions by M Malsch; conference w/ M Malsch2.50

10/14/2002 Finalized reply pleading by incorporating comments from M Malsch, M Bundick, and B Kelly; telecons w/ M Bundick and B Kelly; conference w/ M Malsch re pleading

5.50

Page 7 of 11


10/15/2002 Telecon w/ J Egan re comments on reply pleading; incorporated final comments; discussion w/ M Malsch re inclusion of Nov 2001 ATF letter on reloads, revised pleading accordingly; prepared documents for filing, service and mail

7.00

10/18/2002 Discuss ATF extension with M. Malsch 0.2510/21/2002 Telecons with J. Lyons regarding extension of time to

file ATF's reply pleading; reviewed ATF's motion for additional time w/ regards to same; discussion w/ M Malsch regarding response to motion; prepared and filed response to ATF's motion

4.25

10/29/2002 Discussion w/ M Malsch regarding ATF's reply pleading; briefly review same, including new pages produced from legislative history

1.75



Adjusted Amount$61,084.57

2003

Date Description Time1/7/2003 Telecon with B. Kelly re status of lawsuit and new BATF

legislation0.25

2/6/2003 Collected and reviewed materials for meeting with clietns; prepared agenda for same

1.00

2/7/2003 Reviewed materials and prepared for upcoming meeting w/ clients

0.75

2/8/2003 Attended meeting with Boards of Tripoli and NAR to discuss litigation, rulemaking and new statute

1.00

2/25/2003 Telecons with J. Lyons regarding ATF filing on proposed rulemaking; emails to clients regarding same

0.50

2/26/2003 Reviewed J. Lyons’ proposed filing; emails to clients; review of client responses

1.00

2/27/2003 Emails and telecons with client regarding ATF's proposed filing; reviewed pleading as filed; researched caselaw on proposed rulemaking; began drafting responsive pleading

2.50

2/28/2003 Worked on pleading to respond to ATF’s notice regarding pending rulemaking

1.00

3/3/2003 Complete draft pleading responding to ATF’s notice of rulemaking and forwarded to litigation team and clients for review and comment

2.00

3/5/2003 Additional research on rulemaking requirements in support of response to ATF notice

0.50

3/6/2003 Finalized response to ATF’s notice of rulemaking, teleconference w/ M Malsch to discuss same; signed and filed pleading

1.75

Page 8 of 11


2/12/2003 Prepared memorandum to clients providing guidance for responding to ATF's 62.5 gram notice of proposed rulemaking; telecon w/ M Malsch to discuss same; emails w/ clients re same; finalized and issued memorandum

2.75

4/4/2003 Telecon with M. Bundick regarding draft comments on NPRM Response

0.25

4/10/2003 Began drafting comments in response to NPRM using M Bundick's input

1.00

4/11/2003 Continued drafting NAR comments to 62.5 rulemaking; researched prior litigation filings to incorporate into comments

4.00

4/15/2003 Telecon with M. Bundick regarding pending notice; telecon w/ B Kelly regarding additional support from explosives industry; reviewed website on background information

0.75

4/22/2003 Telecon with ATF regarding lack of an NPRM Notice in Federal Register regarding comments extension; emails and telecons to client re same

1.00

4/25/2003 Telecon with M. Bundick regarding place holder letter to ATF re NPRM; drafted letter and distributed to clients for review; conference call w/ J Egan re same

1.75

4/28/2003 Conference call clients to discuss legislative and legal strategies; telecon w/ J Egan regarding NPRM letter to ATFE

0.50

4/29/2003 Checked Federal Register Notices regarding NPRM comment extensions; emails to clients re same; issued letter to ATFE re comment filing deadline

0.75

5/22/2003 Worked on comments for NAR to aTF's 62.5 NPRM; reviewed M Bundick's input re same; finalized and issued to M Bundick, J Egan for review

4.50

5/30/2003 Reviewed emails from M. Bundick, G. Rosenfield, B Kelly and others re pending NPRM comment letter

0.75

6/2/2003 Reviewed emails from M Bundick and checked issues in NPRM comments; began revising comments to address M Bundick's concerns; identified open issues remaining and emailed same to M Bundick for resolution

1.50

6/3/2003 Incorporated final input from M Bundick into NPRM comment letter; finalized and issued same; telecon w/ B Kelly re same

2.75

6/13/2003 Telecon w/ M Bundick re filing of NAR Comments on NPRM

0.25

7/6/2003 Prepared notice pleading re NAR comments on ATF's 62.5 rulemaking and distributed for comment

1.00

7/24/2003 Revised Notice pleading regarding NAR comments on ATF's 62.5 rulemaking and distributed for comment

1.00

7/28/2003 Forwarded final version of notice pleading to clients for review and approval

0.50

Page 9 of 11


7/29/2003 Finalized and filed Notice pelading re ATF's 62.5 rulemaking

0.50

10/31/2003 Phone calls w/ J Egan re ATF plans to test rockets as weapons; attempted to contact ATF re same

0.50



Adjusted Amount

$3,675.00

2008

Date Description Time8/6/2008 Review and respond to email messages from T. Barber

and K. Good with respect to BATFE Denver field office effort to require firearms license for sale of motor reloads; check DC Circuit docket for activity in pending appellate proceeding

1.00

9/22/2008 Review email messages from M. Malsch with respect to drafting motion for an oral hearing; phone call with M Malsch w/ respect to same; review FRCP 56 and research same on Lexis fro standards to support motion for hearing; review Tripoli/NAR v ATF case sheet for status and key dates; prepare Motion for Hearing on Plaintiff's Motion for Summary Judgment on Count One of Their Third Amended Complaint

2.90

9/23/2008 Review motion for summary judgment filed in January 2007; finalize motion for hearing pleading by incorporating background information from motion for summary judgment; review and incorporate proposed changes from M Malsch

1.40

9/24/2008 Email messages with M. Malsch with respect to reasons for requesting hearing; finalize hearing motion for review and approval by clients

0.70

9/26/2008 Tel/call w/ J. Lyons (Assistant U.S. Attorney) to discuss government’s on motion for hearing; finalize hearing motion and provide to M Malsch for filing; prepare notice of appearance for J Lawrence and withdrawal of appearance for J Egan after checking DC Court local rules with respect to same

1.00



Adjusted Amount

$2,970.00

Page 10 of 11



Page 11 of 11

Amended Time Records of John W. KewleyTripoli Rocketry Ass'n v. ATFE (No. 00-0273)

2004

DateDescription

TimeAdjusted

Time5/16/2004 Scan and forward letter 0.10 0.059/30/2004 Prepared the Urgent Motion for Early Status

Conference and the Affidavit Herrick for electronic filing with the US District Court for the District of Columbia; confirm the attorney registration for electronic filing; multiple telephone calls w/ the court to determine registration and filing guidelines; submit same and confirm execution of filing; creat and forward Motion and Affidavit to J Lyons

4.80 2.40

10/5/2004 Prepare facsimile to Jane Lyons with K. Herrick affidavit; PACER research to locate and download filed motion, affidavit and service certificate

0.90 0.45

10/13/2004 Westlaw research to locate and download CFR text; forward information to M Malsch; download Defendants Response to Plaintiffs Urgent Motion For An Early Status Conference and attached Declaration of Judith Bender

0.70 0.35

10/14/2004 Download filing report from the U.S. District Court for the District of Columbia; download and print all documents related to the filing; photocopy same; telephone conference w/ J Egan to inform of filing; forward all documents to J Egan via facsimile

0.80 0.40

10/19/2004 Downloaded 10/19/04 court order from docket; print and forward to J Egan

0.20 0.10

10/21/2004 Electronic submission of the Tripoli Motion For Final Judgment Under Rule 54(b)

0.80 0.40

10/28/2004 Accomplish electronic filing of Second Amended Complaint with the District Court for the District of

0.70 0.35

11/24/2004 Prepared for filing: Plaintiffs' Proposed Order, Plaintiffs' 2.20 1.10

11/29/2004 Filed proposed Order in the Tripoli matter in the D.D.C. for J. Egan.

0.40 0.20

11/30/2004 Refiled the proposed order in the D.D.C. 0.70 0.3512/16/2004 Download case docket index; print seven most recent

pleadings for J Egan0.90 0.45

12/21/2004 Download two court orders and forward to M. Malsch. 0.30 0.15

12/22/2004 Prepare the Notice of Appeal to be submitted to the U.S. District Court for DC for filing w/ the US Cour for Appeals for the DC Circuit; forward electronic version to M Bundick and K Good

2.90 1.45

Amended Time Records of John W. Kewley

Page 1 of 4

rjacobs

Typewritten Text

Exhibit 4


12/29/2004 Electronically receive confirmation of transfer of the Supplemental Record on Appeal to the US Court of Appeals for the DC circuit; receive electronic confirmation of receipt of filing fee for submitting appeal to the US Court of Apeeals for the DC circuit; download both for file

0.70 0.35

Total: 17.10 8.55Rate Amount

105 $1,795.50Adjusted Amount

$897.75

2005

Date Description TimeAdjusted

Time1/24/2005 Searched and downloaded the 1/19/05 Order from the

U.S. Court of Appeals for the DC Circuit; printed and distributed to M. Malsch and J. Egan

0.20 0.10

1/25/2005 Entered all items from 1/19/05 Order into docket tracking record.

0.30 0.15

1/27/2005 Received electronic confirmation of the filing of the Amended Complaint

0.20 0.10

1/28/2005 Received electronic filing of court Order scheduling date for future status conference; downloaded same

0.20 0.10

2/14/2005 Worked on administrative filings. 2.30 1.152/16/2005 Continued preparation of the administrative forms for

the Clerk, U.S. Court of Appeals for the District of Columbia Circuit.

2.80 1.40

2/17/2005 Completed the administrative filings for the U.S. Court of Appeals; Tel/call from District Court re administrative filings for appeal;Reviewed, edited administrative filings w/M. Malsch. Assembled the Corporate Disclosure statement for execution and fili

3.20 1.60

2/22/2005 Assembled the Corporate Disclosure statement for execution and filing;Prepared filing and service packages; Forwarded same.

2.20 1.10

3/24/2005 Cite checked the Appellant's Response in Opposition to Motion for Summary Affirmance.

0.40 0.20

3/28/2005 Reviewed the Appellant's Response in Opposition to Motion for Summary Affirmance; Traveled to the US Court of Appeals for the DC Circuit and filed the Appellant's Response in Opposition to Motion for Summary Affirmance; Filed case-related documents and made required revisions to the case file index

6.70 3.35

3/29/2005 Filed case-related documents; made required revisions to the case file index.

5.20 2.60

Page 2 of 4


3/30/2005 Filed documents and pleadings related to the case; made required revisions to the case file index

5.30 2.65

3/31/2005 Filed documents that are a part of the record; made revisions to the file index as necessary

5.50 2.75

4/5/2005 File case related materials; revise index as needed 3.80 1.904/8/2005 Continue review and filing of case related documents 2.20 1.10

4/14/2005 Continue review and entry of case related documents into case file; Revise case file index to reflect changes

6.20 3.10

4/15/2005 Continue filing documents related to the case and revise case index

3.30 1.65

4/18/2005 Download and forward the Appellees Reply in Support of Motion for Summary Affirmance to J Egan

0.20 0.10

4/22/2005 Continue to assemble pleading for case file index; Make required revisions to case file index

5.30 2.65

4/28/2005 Review docket online; Download and file case related documents

2.70 1.35

4/29/2005 Continue creation of complete pleading docket; Enter documents into file index

2.20 1.10

5/18/2005 Located and downladed court pleadings; Organized for filing and revised case file index.

2.10 1.05

5/25/2005 Continued to assemble documents to complete case files; made revisions to case file index as required

5.20 2.60

5/31/2005 Gathered case pleadings and continued to assemble into case files

2.10 1.05

6/7/2005 Downloaded the Defendants' Status Report from the DC District Court PACER; Filed Electronically and prepared for hard copy filing; Forwarded same to clients; Filed papers related to case; Revised file index regarding same

3.50 1.75

6/10/2005 Calendared activity into firm docket calandar 0.20 0.107/22/2005 Organized recent case pleadings and case related

documents into the filing system4.70 2.35

7/25/2005 Reviewed online docket for the US Court of Appeals for the District of Columbia to located possible mediation order

0.20 0.10

7/26/2005 Reviewed online docket for the US Court of Appeals for the District of Columbia to locate possible mediation order

0.20 0.10

7/29/2005 Reviewed online docket for the US Court of Appeals for the District of Columbia to locate possible mediation order; Located and downloaded pleadings not in current files; Stored same for electronic retrieval

3.40 1.70

8/1/2005 Reviewed online docket for the US Court of Appeals for the District of Columbia to locate possible mediation order

0.20 0.10

Page 3 of 4


8/2/2005 Cite checked the Opening Brief fro the Appellants to be filed in US Court of Appeals for the District of Columbia; Reviewed online docket for the US Court of Appeals for the District of Columbia to locate possible mediation order

4.70 2.35

8/4/2005 Worked on preparation of Opening Brief for filing 3.20 1.608/5/2005 Travleed to the US Court of Appeals for the DC Circuit

and filed the Appellants' Opening Brief2.70 1.35

9/12/2005 Forwarded brief to M Malsch for distribution 0.20 0.109/21/2005 Began cite checking of the Reply Brief of the

Appellants for the US Court of Appeals for the DC Circuit

2.80 1.40

9/22/2005 Completed cite checking the Reply Brief of Appellants; Reviewed filing rules for the US Court of Appeals for the DC Circuit and filed the Reply Brief of Appellants

1.40 0.70

9/23/2005 Traveled to the US Court of Appeals and filed the Reply Brief of Appellants

1.30 0.65

9/26/2005 Coordinate with J Lyons regarding content of the Joint Appendix; Began assembling materials for Joint Appendix

3.30 1.65

9/28/2005 Continued work on the assembly of the Joint Appendix; Tel/con w/ photocopy vendor to arrange duplication; met w/ same

2.10 1.05

9/29/2005 Reviewed the duplicated sets of the Joint Appendix for Tripoli; Prepared to file same with the US Court of Appeals for the DC circuit

0.50 0.25

9/30/2005 Traveled to the US Court of Appeals for the DC circuit to file the Joint Appendix

1.40 0.70

10/11/2005 Proofread Joint Appendix revisions in the Appellants Final Opening Brief against the Joint Appendix references

0.80 0.40

10/12/2005 Proofread the revisions made to the Appellants Final Reply brief based upon Joint Appendix revisions

3.20 1.60

10/13/2005 Cite checked the Appellants Final Opening Brief and the Appellants Final Brief

5.80 2.90

10/26/2005 Filed case related materials. 2.70 1.35Total: 118.30 59.15


Adjusted Amount

$6,506.50


Page 4 of 4

Amended Business CostsTripoli Rocketry Ass'n v. ATFE (No. 00-0273)

Invoice Date Itemized Expenses Amount2/9/2000 Fax $63.252/9/2000 Telephone $21.082/9/2000 Document Production $4.682/9/2000 Copy $26.041/31/2002 Telephone $0.553/26/2002 Reproduction $217.80

Telephone $30.17Fax $150.00Postage $1.14Lexis $151.86

4/12/2002 Reproduction $74.80Telephone $29.02Fax $514.00Local Transportation $89.00Lexis $133.88

5/13/2002 Reproduction $67.60Local Transportation $28.80Binding $5.50Business Expenses $77.62

6/14/2002 Reproduction $155.80Postage $12.90Local Transportation $41.40

8/12/2002 Reproduction $4.60Telephone $4.08Fax $30.00

9/24/2002 Reproduction $115.80Telephone $7.89Postage $23.70

10/11/2002 Reproduction $188.00Fax $76.00Local Transportation $16.00

11/14/2002 Postage $7.60Local Transportation $56.00Reproduction $91.60Fax $72.00

11/12/2002 Photocopies $33.804/11/2003 Reproduction $149.20

Telephone $7.33Fax $8.00Postage $16.59Lexis $42.73

5/9/2003 Reproduction $4.40Telephone $0.52Fax $4.00

6/6/2003 Postage $1.487/10/2003 Reproduction $46.80

Telephone $1.52Fax $6.00

Amended Business Costs

Page 1 of 3

rjacobs

Typewritten Text

Exhibit 5


8/29/2003 Postage $6.089/15/2004 Photocopies $26.40

Fax $12.00Conference Call $94.08

10/5/2004 Copies $26.4011/9/2004 Copies $27.00

Fax $55.0012/6/2004 Fax $22.00

Copies $10.80Fedex $1,462.00Travel Expense 10/15 $50.82Travel Expense 10/14 $50.82

1/7/2005 Copies $1.002/3/2005 PACER Online $9.10

Copies $2.60Fax $34.00Fedex $15.09

3/4/2005 Copies $72.604/7/2005 Copies $35.80

Fax $10.00Fedex $14.51Westlaw $230.86

5/5/2005 PACER Online Case Information $4.16Copies $68.00

8/9/2005 Copies $5.80PACER $9.68

9/6/2005 Copies $5.60Long Distance $0.45Travel Expense $75.87Reproduction Costs $76.44Westlaw $354.22

10/10/2005 Reproduction Cost--LEXSOLUTIO $122.33Reproduction Cost--LEXSOLUTIO $604.07Copies $158.40Reproduction Cost--LEXSOLUTIO $95.11Westlaw $50.96

11/8/2005 Fedex $19.09Reproduction Cost--LEXSOLUTIO $194.40Travel Expense $81.30Reproduction Cost--LEXSOLUTIO $288.11Copies $86.80Long Distance Charges $0.28

1/11/2006 Copies $8.60Westlaw $631.90Travel Expense $524.89

3/7/2006 Westlaw $501.81Copies $17.20

4/12/2006 Copies $8.607/7/2006 Long Distance $3.338/3/2006 Long Distance $3.039/11/2006 Delivery Charges Leadership $77.84

Contact Conference Service $23.76

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Fax $23.00Westlaw $190.87

10/5/2006 Conference Call $42.4811/5/2006 Copies $6.4012/4/2006 Reproduction-Encore $437.84

Reproduction-Encore $45.00Fedex $84.78

1/9/2007 Copying Cost $19.20Long Distance Charges $0.72Westlaw $452.78

2/5/2007 Service Fee - Contact Conference Svc. (12/1 1/06 con/call)

$44.16

Copying cost $2.40Westlaw (Legal Research) $1,098.17

4/11/2007 Service Fee - Soundpath Legal Conferencing (3/1/2007)

$8.49

Westlaw (Legal Research) (Feb 2007) $873.29Westlaw (Legal Research) (Mar 2007) $870.21Service Fee (Capitol District Information) (“Explosives Control” Hearings)

$92.00

5/17/2007 Westlaw (Legal Research) $437.697/2/2007 Delivery Cost $7.9310/10/2007 Service Fee - Soundpath Conferencing

(3/29/2007)$20.53

4/8/2009 Lexis $465.12

Total: $14,506.58Adjusted Total: $10,138.71

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_______________________________ )

TRIPOLI ROCKETRY ) ASSOCIATION, INC., and ) NATIONAL ASSOCIATION ) OF ROCKETRY )

) Plaintiffs, )

) v. ) Civil Action No. 00-0273 (RBW)

) BUREAU OF ALCOHOL, ) TOBACCO, FIREAREMS & ) EXPLOSIVES, )

) Defendant. )

_______________________________)

SUPPLEMENTAL DECLARATION OF MARTIN G. MALSCH IN SUPPORT OF PLAINTIFFS’ REPLY TO DEFENDANT’S OPPOSITION

Under penalty of perjury, I, Martin G. Malsch, state as follows: 1. My name is Martin G. Malsch. My purpose in submitting this Declaration is to establish

that Plaintiffs Tripoli Rocketry Association and National Association of Rocketry have paid in

full all fees and costs incurred in litigating the above-captioned matter, except the latest August,

2009 invoice for services rendered in July, 2009.

2. I am a Partner in the Washington, D.C. office of the law firm of Egan, Fitzpatrick,

Malsch and Lawrence, PLLC, previously named Egan & Fitzpatrick, PLLC; Egan, Fitzpatrick &

Malsch, PLLC; and Egan, Fitzpatrick, Malsch, and Cynkar, PLLC. I have been with the firm

since January 1, 2003. Before then, I was employed as Senior Counsel with LeBoeuf, Lamb,

1

rjacobs

Typewritten Text

Exhibit 6

Greene & MacRae between January 1, 2000 and December 31, 2002, and as Senior Counsel with

Egan & Associates from May 1997 to December 31, 1999.

3. Plaintiffs were billed at market rates for all time spent on the above-captioned matter by

each of the attorneys and paralegals referenced in my Declaration in support of Plaintiffs motion

for fees (attached as Exhibit 5 to Plaintiffs Motion for Attorneys’ Fees and Costs). This resulted

in a total of $498,087.91 in fees and costs incurred from January 2000 through June 2009. As of

the date of this Declaration, Plaintiffs have paid to my law firm the full amount of the fees and

costs incurred in litigating this matter, with the limited exception of our latest August, 2009

invoice for services rendered in July, 2009.

I declare under penalty of perjury that the foregoing s~ ~re true and correct to the

best of my knowledge.

Martin G. Malsch

Date: August 10, 2009

Amended Attorneys' Fees at EAJA RatesTripoli Rocketry Ass'n v. BATFE, No. 00-0273

YearCPI-U

(Annual)%

ChangeAdjusted

RateTot. Hours (Original)

Year Total (Original)

Tot. Hours (Adjusted)

Year Total (Adjusted)

1996 (Nov.) 100 $127.21 2000 107.6 7.6 $136.88 76.48 $10,468.58 76.48 $10,468.582001 110.4 10.4 $140.44 5.4 $758.38 4.6 $646.022002 113 13 $143.75 315.69 $45,380.44 308.64 $44,367.002003 116.2 16.2 $147.82 62.25 $9,201.80 30.35 $4,486.342004 119.5 19.5 $152.02 89.65 $13,628.59 87.35 $13,278.952005 124.4 24.4 $158.12 98.4 $15,559.01 98.4 $15,559.012006 128.8 28.8 $163.85 96.6 $15,827.91 89.1 $14,599.042007 133.464 33.464 $169.78 161.22 $27,371.93 160.82 $27,304.022008 139.499 39.499 $177.46 9.3 $1,650.38 8.3 $1,472.92

2009 (Mar.) 138.62 38.62 $176.34 17.7 $3,121.22 17.7 $3,121.22TOTAL 932.69 $142,968.24 881.74 $135,303.10

Amended Attorneys' Fees at EAJA Rates

rjacobs

Typewritten Text

Exhibit 7

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