Public.Resource.org v. United States Internal Revenue Service

Filing 95

MOTION for Leave to File Sur-Reply in Opposition to Plaintiff's Motion for Attorneys' Fees filed by United States Internal Revenue Service. (Attachments: # 1 Declaration of Stephen S. Ho, # 2 Exhibit A - Proposed Sur-Reply, # 3 Proposed Order)(Ho, Stephen) (Filed on 8/26/2015)

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MELINDA L. HAAG
United States Attorney
CAROLINE D. CIRAOLO
Acting Assistant Attorney General
STEPHEN S. HO
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 227
Washington, D.C. 20044
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendant United States
Internal Revenue Service

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IN THE UNITED STATES DISTRICT COURT

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THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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PUBLIC.RESOURCE.ORG., a California non- )
profit organization,
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Plaintiff,
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v.
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UNITED STATES INTERNAL REVENUE
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SERVICE,
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)
Defendant.
)
)

Case No. 13-cv-02789-WHO
DEFENDANT’S ADMINISTRATIVE
MOTION FOR LEAVE TO FILE SURREPLY

Pursuant to Civil L.R. 7-11, Defendant United States Internal Revenue Service (the

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“IRS”) respectfully submits this administrative motion for leave to file a sur-reply to address

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Plaintiff Public.Resource.Org’s (“Public.Resource’s”) request for $24,787.50 in fees on fees,

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which was first substantiated by a supplemental declaration submitted with Public.Resource’s

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reply in further support of its motion for attorneys’ fees and costs.

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Good cause exists to grant the IRS’s administrative motion because the supplemental

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declaration is new evidence to which the IRS has not had a chance to respond. See, e.g., Bautista

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v. Hunt & Henriques, No. C-11-4010 JCS, 2012 WL 160252, at *3 n.1 (N.D. Cal. Jan. 17, 2012)

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CASE NO. 3:13-CV-2789-WHO
DEFENDANT’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY

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(granting leave to file a sur-reply based upon new material submitted in connection with non-

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moving party’s reply); cf. Civil L.R. 7-3(d) (permitting an opposing party to serve an “Objection

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to Reply Evidence”). Public.Resource advised that it would seek fees on fees in its original

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motion, and estimated that it would incur between $15,000 and $25,000 in such fees. But

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Public.Resource did not provide any support for this projection and there were no applicable

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billing entries for the IRS to scrutinize and object to at the time the IRS filed its opposition.
It is only now with their reply that Public.Resource has submitted such evidence

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Accordingly, the IRS should be given an opportunity to respond because the lack of such

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opportunity would “prevent[] a fair adversary process in which [the] defendant[] could challenge

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the fee request.” Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993); see also Lantz v.

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Kreider, No. 3:05-CV-00207-VPC, 2010 WL 2609080, at *1 n.1 (D. Nev. June 25, 2010) (noting

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that court granted party leave to file a sur-reply where opposing party “included an additional

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request for fees in their reply brief”); Gibson v. City of Kirkland, No. C08-0937MJP, 2010 WL

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55855, at *1 (W.D. Wash. Jan. 5, 2010) (granting party leave to file a supplemental response

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because “[an attorneys’ fees] submission that does not allow an opposing party to meaningfully

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challenge the reasonableness of time spent undermines the adversarial process”).

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Pursuant to Civil L.R. 7-11(a), the undersigned counsel sought a stipulation from

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Public.Resource agreeing to the relief requested herein, but opposing counsel did not give their

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consent. (See Declaration of Stephen S. Ho.)
For the foregoing reasons, the IRS respectfully requests that the Court grant it leave to

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file the sur-reply attached hereto as Exhibit A.

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CASE NO. 3:13-CV-2789-WHO
DEFENDANT’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY

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Dated: August 26, 2015
Respectfully submitted,
MELINDA L. HAAG
United States Attorney
CAROLINE D. CIRAOLO
Acting Assistant Attorney General
By: /s/ Stephen S. Ho
STEPHEN S. HO
Trial Attorney, Tax Division
U.S. Department of Justice
Attorneys for Defendant United States
Internal Revenue Service

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CASE NO. 3:13-CV-2789-WHO
DEFENDANT’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY

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CERTIFICATE OF SERVICE

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I certify that I served a true and correct copy of the foregoing Administrative Motion for

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Leave to File Sur-Reply on Plaintiff’s counsel via the Court’s ECF System this 26th day of

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August, 2015.

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/s/ Stephen S. Ho
STEPHEN S. HO

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CASE NO. 3:13-CV-2789-WHO
DEFENDANT’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY