Court of Appeals Decisions
Mattson v. FBI, No. 10-16112, 2011 WL 2678878 (9th Cir. July 11, 2011) (unpublished disposition). Holding: Affirming district court's determination that plaintiff was not eligible for attorney fees. The Ninth Circuit holds that the district court properly determined that plaintiff was not eligible for attorney's fees, because he failed to demonstrate that his lawsuit "brought about 'a voluntary or unilateral change in position by the agency.'" The Ninth Circuit finds that plaintiff "did not establish that the Government changed its position because, for one thing, [he] never proved the Government ever took the position that it was refusing to produce [the responsive] documents" that were located in FBI field offices or as a result of a cross-reference search.
Judicial Watch, Inc. v. BLM, No. 08-5379, 2010 WL 2651292 (D.C. Cir. July 6, 2010) (Griffith, J.). The D.C. Circuit reverses the decision of the district court and vacates its fee award. The court finds that application of the OPEN Government Act's provision on attorneys' fees "would have impermissible retroactive effects" where BLM "unilaterally disclosed the requested records before the statute's enactment but the parties' formal settlement came afterwards." The court notes that "[t]he disclosure [of the requested records] was last in the chain of events relevant to Judicial Watch's eligibility for attorneys' fees under the new law, and it took place months before the law's enactment." Because the settlement "is without relevance to the Bureau's possible liability for attorney's fees," "the timing of the settlement has no bearing upon the question of retroactivity."
Davis v. DOJ, No. 09-5189, 2010 WL 2651297 (D.C. Cir. July 6, 2010) (Griffith, J.). The D.C. Circuit affirms the decision of the district court denying plaintiff attorneys' fees. The court dismisses plaintiff's argument that Summers v. DOJ, in which a three judge panel of the court determined that the OPEN Government Act does not have a retroactive effect, was wrongly decided. "Because reliance on the 2007 Act would give rise to liability for attorneys' fees where none existed before, Summers precludes its application." The court also rejects plaintiff's reliance on a magistrate's judge's finding that attorneys' fees were appropriate. The court observes that the magistrate "did not rely on any pre-existing authority," which would have allowed for the availability of attorneys' fees, and that his "legal error [that the 2007 Act had retroactive application] has no bearing on our own retroactivity analysis."
Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). The issue of plaintiff's entitlement to fees and costs is not yet ripe for review.
Zarcon, Inc. v. NLRB, No. 08-2330 (8th Cir. Aug. 27, 2009) (Shepherd, J.). The court "agree[s] that Buckhannon's reasoning eliminating the 'catalyst theory' as a basis for recovering attorney's fees extended to FOIA prior to the enactment of the OPEN Government Act." Thus, the only question expressly before the court is whether the Open Government Act (OGA) has retroactive effect. "[T]he [OGA] made recovery of attorney's fees possible in circumstances where they had been previously forbidden. At the time the NLRB settled this case, our cases clearly demonstrated that the 'catalyst theory' would not be an available means of recovering costs under FOIA. Applying the [OGA] to this case would, therefore, increase the NLRB's 'liability for past conduct, [and] impose new duties with respect to transactions already completed.'. . . Given that 'the statute would operate retroactively [if applied to this case], [the] traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.'" Plaintiff has not been able to show evidence of such intent.
Summers v. DOJ, No. 07-5315, 2009 WL 1812760 (D.C. Cir. June 26, 2009) (Ginsburg, J.). The attorney fees provision of the OPEN Government Act (OGA) does not apply retroactively. Though "there is no per se rule against retroactive application of a statute," the general rule is against it, especially where, as here, such application "would impose an 'unforeseeable obligation' upon the defendant by exposing it to liability for attorneys' fees for which it clearly was not liable before the passage of the 2007 Act." The court notes that defendant's "calculus in settling [this] case would have been different" had it known that it might be liable for attorney fees, and that the "decision to settle reflects a calculation that the cost associated with disclosing the disputed information... was less than the cost of further litigation." Plaintiff "argues that the presumption of the general rule against retroactive application of a statute is overcome by the clear intent of Congress in passing the 2007 Act, but the evidence of intent he adduces is neither powerful nor even relevant." Plaintiff's supposed evidence on this issue not only does not speak to overall congressional intent (as opposed to the alleged intent of a single member of Congress or congressional committee), but also does not speak at all to the issue of retroactivity. Additionally, plaintiff is not eligible for a fee award under the pre-OGA Buckhannon standard. The only "relief" he received from the district court was three orders directing the parties to file joint status reports. These orders did not require the FBI to release any documents. "Consequently, the status reports do not affect a 'court-ordered change in the legal relationship between the plaintiff and the defendant.'" Similarly, the settlement agreement the parties entered into does not constitute relief ordered by the court.
Pickering-George v. DEA, No. 08-5227, 2009 U.S. App. LEXIS 12064 (D.C. Cir. June 3, 2009) (unpublished disposition) (summary order). Plaintiff was not eligible for an award of fees, both because he was a pro se litigant and because he did not substantially prevail in his litigation.
Pietrangelo v. U.S. Army, 568 F.3d 341, (2d Cir. 2009) (per curiam). The Second Circuit joins its "sister Circuits" in holding that an attorney appearing pro se in a FOIA suit is not eligible for an award of fees. As the Supreme Court found in Kay v. Ehrler, an analogous fee shifting provision, 42 U.S.C. §1988, was intended to encourage plaintiffs to obtain counsel. By contrast, a rule which allows fee awards to pro se attorneys "'create[s] a disincentive to employ counsel.'" The policies behind the FOIA and 42 U.S.C. § 1988 are "substantially similar."
Or. Natural Desert Ass'n v. Locke, No. 06-35851, 572 F.3d 610 (9th Cir. 2009) (Thompson, J.). The district court appropriately relied on Buckhannon as the basis for judging whether plaintiff was eligible for attorney fees, and it awarded fees on three of plaintiff's four claims after finding plaintiff to be a "substantially prevailing party... [who] obtained an enforceable judgment which materially altered the legal relationship of the parties." Plaintiff incorrectly asserts on appeal that the catalyst theory, instituted into the FOIA by the OPEN Government Act (OGA), should govern its claims for fees. A fee shifting statute is a waiver of sovereign immunity, and as such must be interpreted narrowly based upon the boundaries of the waiver contained in the statute. As the OGA contains a new waiver of sovereign immunity for attorney fees and does not explicitly state that its new fees provision should be applied retroactively, it should not be read that way by the court. In line with this, the district court should not have found plaintiff eligible for fees with regard to two of its claims. Defendant released the documents involved in these claims prior to the court's ruling on them, so their release was not due to a court order. The district court correctly ruled that plaintiff is eligible for fees with regard to its successful challenge to defendant's cut-off regulation, which governs its processing of FOIA requests. "We construe the phrase 'any case under this section' in 5 U.S.C. §552(a)(4)(E) to include a case challenging the validity of a regulation governing the processing of FOIA requests. The relief obtained... therefore meets the Buckhannon standard because [plaintiff] obtained that relief when the district court ruled in its favor on the merits of that claim."
District Court Decisions
Mobley v. DHS, No. 11-2074 (BAH), 2012 WL 6103000 (D.D.C. Dec. 10, 2012) (Howell, J.). Holding: Denying plaintiff's petition for attorney fees. The court first determines that plaintiffs' petition for attorney's fees is untimely. The fourteen-day time period for filing a motion for attorney's fees under Federal Rule of Civil Procedure 54 was intended to "allow a court to decide any claims to attorney's fees 'in time for any appellate review of a dispute over fees to proceed at the same time as review of the merits of the case.'" The court continues, "[t]he time limit was also designed, like a statute of limitations, to promote the finality of closed cases and prevent disputes about stale facts." The court finds that the "Order dismissing the case was not conditional and did not contemplate any further proceedings," therefore the order was "final and appealable, triggering the fourteen-day filing requirement under Rule 54." The plaintiffs filed their motion for attorney fees six months after the case was closed.
Next, the court rejects the plaintiffs' assertion that they "substantially prevailed" because the processing of the request occurred after the filing of plaintiff's preliminary injunction. The court explains that the "D.C. Circuit has interpreted the term 'substantially prevailed' rather narrowly to require that a FOIA plaintiff relying on the catalyst theory must receive records responsive to its request in order for that plaintiff to have 'substantially prevailed.'" However, the court finds that the statutory language "suggests that a broader conception" of the term "is possible." Nevertheless, here the court finds that "even assuming that the defendant processed the plaintiffs' request as a direct result of the filing of the plaintiffs' first motion for a preliminary injunction[,]" the plaintiffs have not substantially prevailed. First, "the fact that the plaintiffs received no documents, despite the fact that the defendant processed their request, militates against a conclusion that the plaintiffs substantially prevailed." The court goes on to explain that "the government did not engage in the sort of dilatory litigation tactics that the [attorney fees] provision was aimed to prevent," rather the "government's compliance with the plaintiffs' request so early in the litigation is not the sort of agency behavior that Congress intended to prevent by awarding attorney's fees." The court concludes by referencing statements made by members of Congress and declaring that it "is cognizant that voluntary compliance very early in a FOIA litigation, like the government's compliance here, should be encouraged rather than punished."
Concepcion v. U.S. Customs and Border Prot., No. 10-0599, 2012 WL 6019299 (D.D.C. Dec. 4, 2012) (Jackson, J.).Holding: Granting Customs and Border Protection's motion for summary judgment.The court rejects plaintiff's request for an award of attorney's fees. The court notes that "[i]t is apparent that plaintiff has not substantially prevailed in this action. He neither identifies a public benefit derived from this case nor explains the nature of his interest in [his deceased brother's] travel information." Additionally, the court finds that the Customs and Border Protection "justifie[d] its decisions to withhold information under the claimed exemptions."
Baker v. DHS, No. 3:11-CV-588, 2012 WL 5876241 (M.D. Pa. Nov. 20, 2012) (Caputo, J.).Holding: Granting plaintiff's motion to recover attorney's fees. The court finds that the plaintiff is eligible for attorney's fees because he has demonstrated "that the prosecution of the action could reasonably be regarded as necessary to obtain the requested information," and thus he has substantially prevailed on his FOIA claim. The court notes that there were "several unexplained gaps in [the Secret Service's] activity that do not appear to be the product of unavoidable delay," and that it was "nearly two years since [plaintiff] filed his FOIA request with the agency" and the commencement of this action. Plaintiff "has shown a causal nexus between this action and the release of the requested information and, accordingly, has proven that he substantially prevailed because of a voluntary or unilateral change in position by the Secret Service."
The court rejects plaintiff's argument that he has also substantially prevailed because the court ordered the Secret Service to submit a Vaughn index. The court finds that "because an order compelling the production of a Vaughn index is not court-ordered relief for [plaintiff], he has not substantially prevailed by obtaining relief through a judicial order and is ineligible to receive attorney's fees" based upon the order. The court cites prior case law "[n]oting that a Vaughn index's main purpose is to facilitate the litigation process."
Having determined that plaintiff is eligible for attorney's fees, the court also concludes that he is entitled to them. The court finds a public benefit to his case. "Although [plaintiff's] FOIA request encompassed information relating to his dispute with the Secret Service, the release of the information in this case, especially when viewed in light of his [Merit Service Protection Board] victory, is likely to assist military personnel working with the federal government." The court also notes that the plaintiff did not have a commercial motive in litigating the case. "Given that [plaintiff] filed this suit even after his case before the MSPB was resolved, his motivation was not to accumulate information that would assist him in litigating that matter and obtaining damages." The court also notes that plaintiff's interest was "investigatory." Plaintiff "sought to uncover information relating to the agency's potentially discriminatory action of requiring certain personnel to change their military designation status – information that was likely to assist military personnel working within the federal government." Finally, the court determines that even though "the Secret Service appears to have a reasonable basis in law for withholding and redacting the documents that it did," its other actions, including a two-year delay and the failure to produce a Vaughn index when releasing documents in April 2011, after the complaint had been filed, were not reasonable. "[T]here is ample evidence that the agency was recalcitrant or obdurate in releasing the requested information."
Finally, "the Court finds the fee submitted reasonable" and "award[s] the full amount."
Rosenfeld v. DOJ, No. 07-3240, 2012 WL 4936047 (N.D. Cal. Oct.17, 2012) (Chen, J.). Holding: Awarding costs and reducing the award of attorney fees to account for duplicative time, unsuccessful claims, and inefficiency. "The record demonstrates both that [plaintiff's] suit against the FBI resulted in his receiving judicial orders granting the relief sought in his complaint, and that the suit acted as a 'catalyst' in prompting the FBI's 'voluntary unilateral changes in position' that resulted in the disclosure of documents he sought." The FBI does not dispute that a public benefit would result from the disclosure of these records and has not "shown that the records sought were otherwise available elsewhere." The court rejects the FBI's assertion that the "'Plaintiff has a financial incentive to pursue his [FOIA] request and litigation,'" relying upon the "unique treatment afforded journalists and scholars" in the entitlement test analysis. The court further notes that it "issued four separate orders in this case on the parties' motions for summary judgment [and t]he content of these orders reveal quite readily the unreasonableness of the government's rationale for withholding the records requested" by the plaintiff. The court concludes that the plaintiff has "demonstrated both eligibility for and entitlement to an award of attorney's fees."
"The Court finds that Plaintiff has offered sufficient evidence to show that the proposed hourly rates for inclusion in the lodestar figure accurately reflect the hourly rates these individuals would likely receive in the San Francisco area legal market." Additionally, "in light of the contested and protracted nature of the suite, the Court finds that the total number of compensable hours incurred by Plaintiff is reasonable." Upon challenge from the defendant, the court subtracts "ten percent of the time claimed by both attorneys" to account for "unnecessarily duplicative and redundant hours spent resulting from multiple counsel performing overlapping work." The court deducts an additional ten percent "to account for time spent on unsuccessful claims" and takes another "ten percent 'haircut' to account for billing judgment." The Court finds "that the requested award for fees-on-fees… [is] excessive" and cuts 20% from the fees-on-fees request to account for "the high degree of duplication and lack of specificity in describing the activity." The plaintiff is awarded $359,548.78 for attorney fees, rather than $442,917.62 as requested, and $3,668.82 representing plaintiff's costs in this matter.
Rosenfeld v. DOJ, No. 90-3576, 2012 WL 4933317 (N.D. Cal. Oct.17, 2012) (Chen, J.). Holding: Awarding costs and reducing the award of attorney fees to account for unrecoverable "monitoring" time, vague billing records, general inefficiency, and inflated requests for fees for this attorney fees and cost motion. First, the court determines that the prior settlement agreements between the parties "expressly preserve Plaintiff's right to seek fees for 'all subsequent phases of the litigation.'" Therefore, the plaintiff may receive an award of attorney fees and costs for post-settlement activity. The plaintiff is eligible for attorney fees because "both parties acknowledge that [the plaintiff] 'substantial prevailed' in the portion of the case concerning Plaintiff's 2006 motion to challenge the FBI's compliance with the settlement agreement." The plaintiff is entitled to attorney fees because the requests "were undertaken for the express purpose of disseminating information about FBI activities during the Cold War via the news media," the plaintiff's "'interest in the information sought was scholarly or journalistic or public-oriented,'" and the defendant "failed to demonstrate that it had 'a colorable basis in law' for declining to produce the records requested by Plaintiff."
However, "the Court finds that the time claimed for litigating this case is higher than what should have been 'reasonably expected.'" Plaintiff will not be awarded fees for "'time and effort to monitor and prod compliance' with the settlement agreement and rulings on the 2006 challenges." The court adjusts "Plaintiff's final fee award downward by ten percent" because the plaintiff "failed to demonstrate and document in the record that he exercised appropriate billing judgment to eliminate inefficiencies." The court finds that the plaintiff's "requested award for 'fees-on-fees' in this case is 'grossly inflated.'" "Given the substantial degree of overlap between this and a second fee motion filed by plaintiff, and the corresponding efficiencies Plaintiff's counsel should have realized in preparing and defending these motions against the same defendant on the same type of legal claim, the Court finds Plaintiff's requested fee award to be unreasonable and inflated." The plaintiff is awarded $105,166.32 for attorney fees, rather than $165,642.49 as requested, and $2,075.83 representing plaintiff's costs in this matter.
Hajro v. USCIS, No. 08-1350-PSG, 2012 WL 4903475 (N.D. Cal. Oct. 15, 2012) (Grewal, Magistrate J.). Holding: Granting in part plaintiff's motion for attorneys' fees. The court finds that although Section 552(a)(4)(E) only applies to Claims One through Six, plaintiffs may also recover for Claims Seven through Nine because they "are related to the eligible claims."
First, the court analyzes whether the fee provision of the statute, 5 U.S.C. §552(a)(4)(E), applies to each of the plaintiff's nine claims. The court divides the claims into three groups. Claims Three through Six are direct causes of action under the FOIA. Accordingly, the court determines that these three claims all fall clearly within the attorney fee provision. Claims One and Two concern violation of the Settlement Agreement obtained by one of the two plaintiffs in a 1992 FOIA suit. The court determines that because the present case was brought to ensure compliance with the agreement and the plaintiff was monitoring the defendant's compliance, the plaintiff "is permitted to recover attorneys' fees under FOIA's provisions." Finally, Claims Seven through Nine concern due process rights and whether the Defendants violated the Administrative Procedure Act or the Equal Protection Clause. "Because [p]laintiffs have provided no case law that supports their broad reading of Section 552(a)(4)(E) and because the legislative history lends no further support to their interpretation, the court declines [plaintiffs'] invitation to read expansively the recovery permissible under Section 552(a)(4)(E)."
After establishing that Section 552(a)(4)(E) applies to Claims One through Six, the court decides that the plaintiff is eligible for attorneys' fees for all six claims. The court reiterates that "monitoring compliance is sufficient to warrant an award of attorneys' fees." Since plaintiffs have substantially prevailed with regard to Claims One and Two, they are eligible for an award of attorneys' fees. Likewise, plaintiff obtained a favorable judicial order with respect to Claims Three and Four. This also satisfies the threshold eligibility requirement for fees. Similarly, the plaintiff prevailed on Claim Five and obtained "injunctive relief requiring [d]efendants to end [a] pattern and practice of violating FOIA." Finally, with regard to Claim Six, the court finds that the plaintiff "significantly altered the relationship between him and [d]efendants." The plaintiff "obtained an injunction requiring [d]efendants to isolate and furnish documents relating to his false testimony, which in turn resulted in [d]efendants' admission that documents with the facts he requested did not exist."
Turning next to the public benefit analysis, the court finds that there is a public benefit from the action brought by plaintiff for all eligible claims but Claim Six. "By obtaining injunctive relief mandating [d]efendants comply with its obligations under the Settlement Agreement and FOIA, [p]laintiffs have benefitted other applicants seeking records to aid in disputes with [d]efendants. [Accordingly,] [t]he public benefit factor weighs in favor of awarding fees for Claims One, Two, and Five. With regard to Claims Three and Four, although plaintiff sought injunctive relief for his own benefit, the court determines that there is still a public benefit because the injunctive relief "also established that in cases where due process concerns arise, such as citizenship status proceedings, [d]efendants must expedite their decisions on FOIA requests." The court finds no public benefit for Claim Six (withholding documents from plaintiff).
Next, the court holds analyzes the commercial interest, if any in the claims as well as the nature of the plaintiffs' interest and decides that for Claims One, Two, and Five, there is no commercial interest and accordingly, for those claims, the analysis leans in favor of an award of fees. The court finds that for one plaintiff, a private citizen, "nothing in the evidence before the court suggests he has any commercial interest in pursuing [his] claims." In addition, although the other plaintiff is an immigration attorney, "by pursuing claims to correct patterns and practices violating FOIA, [he] obtained relief 'not just for himself, but also for other litigants and attorneys.'" However, for Claims Three, Four, and Six, the court notes that even though plaintiff has no commercial interest in the claims, his interest was purely personal and the personal nature of the claims militants against awarding attorney fees.
In the final step of its analysis, the court addresses whether the government's position in withholding the records was reasonable. Weighing all four factors, the court concludes that the plaintiffs are "entitled to attorneys' fees for Claims One, Two, and Five." The court notes that plaintiffs established a "pattern and practice of violations" and that defendants did not assert that they "were in compliance with FOIA's time limits." For Claims Three Four, and Six, the reasonableness factor "weighs in favor of granting attorneys' fees." For Claim Six, even though there is a lack of a public benefit and the plaintiff has a private interest in the claims, the court decides to weigh "[d]efendants' unreasonable stance more heavily in light of the purposes of Section 552(a)(4)(E). Congress intended with the provision to incentivize plaintiffs to ensure open government and vindicate their rights by removing the obstacle of attorneys' fees."
The court holds that the plaintiff can recover fees for the claims arising from the FOIA as well as the claims arising from claims to which the FOIA does not apply. "The due process, Equal Protection, and APA claims arose from Defendants' untimely response to Plaintiffs' requests for documents under FOIA. They share a 'common nucleus of operative facts' with the claims for the direct FOIA violations and for which Plaintiffs can recover attorneys' fees." The court declines to reduce the amount of fees because plaintiffs did not prevail on the Equal Protection claim. "Plaintiffs achieved their goals of enforcing the Settlement Agreement and obtaining an injunction requiring Defendants' compliance with FOIA's mandates despite the fact that they failed to prevail on the Equal Protection claim."
As a final matter, the court analyzes the reasonableness of the attorney fee amounts claimed by the plaintiffs. The court examines the billing records submitted by plaintiffs and subtracts the "hours billed before the request" and "reduce[s] the hours for [certain] block-billed entries by twenty percent, the amount noted by the Ninth Circuit as the middle range for time increases" attributable to block-billing. The court also finds that the hourly rate of the attorneys was reasonable.
Audubon Soc'y of Portland v. U.S. Natural Res. Conservation Serv., No. 10-01205, 2012 WL 4829189 (D. Or. Oct. 8, 2012) (Hernandez, J.). Holding: Awarding costs sought but reducing the amount of attorney fees from that sought to reflect an appropriate locality rate and to deduct for unreasonable and unnecessary work. The court notes that "the fee applicant has the burden of producing satisfactory evidence… that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." In this instance, the court utilizes the Oregon State Bar (OSB) Economic Survey as its benchmark for determining reasonable rates rather than the National Law Journal survey because the OSB Economic Survey "surveys attorneys from across the state and analyzes the data across several variables." After considering the location of the plaintiff's attorneys' offices, the complexity of the case, and the skills and years of experience of the attorneys, the court reduces the hourly rates for the plaintiff's attorneys from $380 to $275 and from $310 to $234.
After carefully analyzing the bills presented by plaintiff's attorneys, the court finds the amount of time spent on specific tasks to be unreasonable given the complexity of the case and the skills of the attorneys. Additionally, the bills demonstrated unnecessary duplication of work. The number of hours calculated in the award of attorney fees is reduced accordingly. The plaintiff is awarded $64,205.20 for attorney fees, rather than $111,214.23 as requested. Because the defendant did not object to the requested costs and the court finds the requested amount reasonable, plaintiff is awarded $531.97 in costs.
Skurow v. DHS, No. 11-1296, 2012 WL 4380895 (D.D.C. Sept. 26, 2012) (Sullivan, J.). Holding: Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment and determining that plaintiff is not entitled to attorney's fees. The plaintiff failed to respond to defendants' arguments concerning why he is not entitled to attorney's fees. The court notes that the plaintiff initially proceeded pro se and only obtained counsel for his cross-motion for summary judgment. "That motion advances substantially all of the same arguments made while plaintiff was pro se …. and plaintiff has not prevailed on any of those arguments."
Ameren Mo. v. EPA, No. 4:11CV02051AGF, 2012 WL 4372518 (E.D. Mo. Sept. 25, 2012) (Fleissig, J.). Holding: Granting defendant's motion for summary judgment and denying plaintiff's request for attorney fees.The court denies plaintiff's request for attorney's fees. The court holds that in the absence of a favorable judgment, the plaintiff must show that that "'(1) the prosecution of the action could reasonably be regarded as necessary to obtain the information and (2) that the existence of the lawsuit had a causative effect on the release of the information.'" The "plaintiff cannot demonstrate either of these elements" and the court finds that the exemptions were properly applied. Accordingly, the court determines that an award of attorney's fees was not appropriate.
Elec. Privacy Info.Ctr. v. DHS, No. 11-945, 2012 WL 4044986 (D.D.C. Sept. 14, 2012) (Rothstein, J.). Holding: Granting defendant's motion for summary judgment but finding plaintiff eligible for and entitled to attorney's fees and costs. Eligibility: The court finds that the plaintiff has substantially prevailed because after the plaintiff filed suit "DHS released five documents that were not scheduled for release for any other reason, such as an already-existing obligation or commitment to disclose the documents." "The sequencing of DHS's disclosures as well as the department's change of position as to the propriety of withholding them suggests that this lawsuit was the catalyst for release."
Entitlement: The court also determines that the plaintiff is entitled to attorney's fees. The court finds that there is a public benefit "arising from the disclosed records," and that the "information 'adds to the fund' of information about body scanners in public places that citizens may use in making "'vital political choices'" about the acceptability of "crowd and pedestrian scanning." It also notes that "the subject matter contained in the records released as a result of the present action is newsworthy, and the disclosures in this case have added to the body of public knowledge on this issue of public importance." The court also finds, and DHS does not contest, that there is no commercial benefit to the plaintiff. Finally, the court concludes that DHS has not demonstrated that its opposition to release was reasonable. The court comments that although DHS argues that it disclosed additional records after the filing of suit, DHS did not provide additional arguments concerning "why the initial withholding had any legal basis."
Valencia v. U.S. Citizenship and Immigration Serv., No. 12-102, 2012 WL 3834938 (D. Utah Sept. 4, 2012) (Kimball, J.).Holding: Granting defendant's motion to dismiss and denying plaintiff's request for attorney fees. "[T]he court concludes that no award of attorney fees should be made because Plaintiff did not substantially prevail and because Plaintiff's purpose for obtaining the FOIA records was for personal benefit."
Judicial Watch, Inc. v. DOJ, No. 10-851, 2012 WL 2989945 (D.D.C. July23, 2012) (Walton,J.). Holding: Granting, in part and denying in part, plaintiff's motion for an award of attorney fees and costs, and reducing plaintiff's fee award for "nonproductive" time, and hours spent issues on which plaintiff did not ultimately prevail, and reducing its "fees on fees" award by a commensurate amount. The court awards plaintiff attorney fees with reductions for "nonproductive" time and hours expended on issues on which it did not ultimately prevail in the amount of $1,216.20, which includes a "fees on fees" award, and $350 in litigation costs. Elgibility: In terms of eligibility for attorney fees and costs, the court concludes that plaintiff "has adequately shown that this lawsuit was the catalyst for the DOJ's release of records," finding that "it was reasonable for [plaintiff] to believe that the records would not be unconditionally released absent a lawsuit, given the DOJ's initial invocation of Exemptions 5 and 7 in response to [its] FOIA request." Additionally, the court finds that the "three productions of documents [that] resulted from a review of the records that the DOJ conducted 'in the course of preparing' litigation documents in response to this FOIA suit . . . indicates that the records would not have been released but for this litigation." Moreover, the court notes that the "sequence of events indicates that the DOJ's disclosures did in fact result from this suit rather than 'delayed administrative processing.'" Although DOJ argues that the some of the disclosures of attorney work-product protected material and "'non-substantive or already public information'" were made as a matter of administrative discretion, the court finds that "[f]or the purposes of determining fee eligibility, [these releases] . . . plainly constitute[ ] 'a voluntary or unilateral change in position by the agency' caused by this litigation." The court notes that "insofar as this contention challenges the substantiality of [plaintiff's] FOIA claim, it is properly considered under the entitlement prong of the fee analysis, and not the eligibility prong."
Entitlement: Considering the public benefit derived by the public from this case, the court notes that it looks to "the potential public value of the information sought" and "the effect of the litigation." The court finds that "[g]iven the national media coverage garnered by this issue, there can be little doubt that the information sought by [plaintiff] had potentially significant public value" and notes that "DOJ does not argue to the contrary." As to the commercial benefit to plaintiff and the nature of its interest in the request, the court finds that because plaintiff, as a non-profit organization, "has no commercial stake in this litigation and because it sought records from the DOJ to further the FOIA's purpose of 'contribut[ing] significantly to public understanding of the operations and activities of the government,... [these factors] weigh in favor of awarding fees to [plaintiff]." With respect to the final entitlement factor, i.e., the reasonableness of the agency's withholding of the requested materials, the Court finds that this factor weighs neither for nor against awarding fees to [plaintiff]; rather it is neutral." However, based on the foregoing, the court holds that plaintiff has demonstrated that it is both eligible and entitled to an award of fees.
Reasonableness of fee award: As a preliminary matter, the court notes that "DOJ does not object to the use of the Laffey Matrix to determine the applicable hourly rate, nor does it appear to dispute the reasonableness of the hours expended by [plaintiff] in this matter." However, the court agrees with defendant that plaintiff's "requested fee should be reduced to reflect its minimal success in this case." The court deducts fees for "'nonproductive time'" and hours spent on issues on which plaintiff did not ultimately prevail, reducing its litigation costs from $19,741.25 to $1,040, which reflected the hours it reasonably expended "on drafting and filing the complaint and effecting service of process on the DOJ." As to plaintiff's argument that it is entitled to fees based on DOJ's failure to initially segregate certain non-exempt material, the court notes that "[i]t was instead the Court that highlighted the need for a more detailed segreability analysis." As such, the court concludes that plaintiff "cannot recover fees for deficiencies in the DOJ's filings that the Court independently identified" even if the litigation "caused the deficiencies to come to light." In terms of plaintiff request for a "fees on fees" award for the time spent litigating the instant fee issue, the court reduces the requested "award commensurate with the Court's reduction of [plaintiff's] award for the litigation of this case." Accordingly, the court reduces plaintiff's "fees of fees" request by 5.3 percent from $3,325 to $176.20. The court also awards $350 in costs to plaintiff, an amount which was not contested by DOJ.
Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2012 U.S. Dist. LEXIS 93977 (E.D. Va. July6, 2012) (Cacheris, J.). Holding: Granting defendant's motion for summary judgment on the basis that its searches were adequate and concluding, without detailed discussion, that defendant's withholdings under Exemptions 3, 4, 5, 6, 7(C), 7(D) and 7(F) were proper; determining that in camera review is not necessary; and denying plaintiff's motion for attorney fees. The court denies plaintiff's motion for attorney fees, holding that although plaintiff is eligible for attorney fees, he does not satisfy the entitlement factors. In terms of eligibility, the court finds that plaintiff has demonstrated that he "obtained relief through a court order" where a plaintiff obtained a representative sampling and additional documents as a result of an earlier court order. The court also finds that "Defendant would not provide the Vaughn index without a Court order, and the additional disclosure of documents resulted from the preparation and then review of the Index." Additionally, the court notes that plaintiff "likely . . . meets the second statutory option for establishing eligibility" because a portion of records were obtained as a result of a "voluntary or unilateral change in position by the agency." In terms of the entitlement factors, the court finds that there is "no basis for Plaintiff's allegations that Defendant has engaged in obdurate behavior." To the contrary, the court observes that "[w]hen Plaintiff filed suit there was an ongoing investigation that provided a legitimate basis for withholding documents pursuant to Exemption 7(A)" "[a]nd, when the investigation was complete, Defendant voluntarily produced over 41,000 pages of documents." As to the public benefit, the court finds unavailing plaintiff's assertion that the records "'shed public light on Defendant's improper investigation methods'" where plaintiff failed "to identify any specific improper investigation methods." Moreover, the court finds that beyond plaintiff's statement that his client "is releasing information to those that review the investigations, there is no other evidence Plaintiff plans to disseminate any information to the public." Further, the court notes that "it not obvious that the public has any general interest about the two investigations" involving plaintiff's clients. With respect to the commercial benefit to plaintiff and his interest in the records, the court determines that "there is sufficient evidence to say that Plaintiff has a commercial interest in documents related to investigations about its use of government funds." Lastly, the court finds that "Defendant asserted a reasonable basis for initially withholding the documents: the existence of an ongoing investigation." Accordingly, the court concludes that plaintiff is not entitled to attorney fees.
Weisner v. Animal & Plant Health Inspection Serv., No. 10-568, 2012 U.S. Dist. LEXIS 90629 (E.D.N.C. June29, 2012) (Daniel, Mag.). Holding: Denying plaintiff's motion for attorney fees. The court denies plaintiff's motion for attorney fees on the basis that she did not substantially prevail in the action. The court finds that, here, defendants properly asserted Exemption 7(A) to withhold the responsive records, which used in an active administrative action. The court finds that "[n]othing that Plaintiff has argued has persuaded the Court that Defendants withheld the records for any reason other than pursuant to a valid exemption and released them [at the conclusion of the administrative proceeding when] . . . that exemption ceased to apply." Moreover, the court concludes that "even if Plaintiff were eligible for fees, she is not entitled to them." For one, the court notes that, in light of its previous findings, the fourth entitlement factor – i.e., the reasonableness of the agency's withholdings – already weighs against plaintiff. Additionally, "though Plaintiff vaguely alludes to an animal-rights agenda, having been presented with no evidence of the progress of such agenda as a result of Plaintiff's receipt of the records, the Court concludes that the primary result of Defendants' release of records has been personal gain to Plaintiff due to the settlement of her suit against United and finds that the first three factors also weigh against Plaintiff."
Yonemoto v. VA, No. 06-378, 2012 U.S. Dist. LEXIS 76311 (D. Haw. June 1, 2012) (Kurren, Mag.). Holding: Granting, in part, plaintiff's motion for attorney fees, but reducing the award based on objections raised by defendant; and awarding plaintiff attorney fees in the amount of $134,512.89 and costs in the amount of $17,668.17.
The court determines that "Plaintiff is entitled to attorneys' fees because the action benefited the public and the VA's basis for withholding the documents was not entirely reasonable." As to the public benefit factor, the court finds that "Plaintiff's FOIA action benefited the public because it shed light on how the VA interacts with personnel." The court notes that "[a]lthough Plaintiff is not eligible for fees for the derogatory comments produced in the EEOC litigation, he has revealed information regarding the working environment of the VA through the comments of its supervisory employees" and concludes that such disclosures "benefit the public by revealing the VA's sometimes tenuous working environment." Additionally, noting that "the VA withheld emails under the triviality exception to FOIA, but later disclosed those emails voluntarily," the court finds that there was "some public benefit from this action by bringing the VA into compliance with FOIA." Furthermore, the court comments that the Ninth Circuit recognized that there was "a strong public interest in some of the other emails produced by Plaintiff," for example, an interest in how expenses related to employee relocation may influence the VA's hiring decisions. With regard to the commercial benefit to plaintiff and nature of his interest in the information, the court finds that "[a]lthough Plaintiff has a personal and commercial interest [based on his employment discrimination claims brought against the VA], . . . these factors are outweighed by the public benefit of the action and the VA's failure to disclose the disputed documents earlier." As to the reasonableness of the VA's determination to initially withhold the records, the court determines that "this factor weighs in favor of awarding attorneys' fees, because the VA's failure to disclose the 157 emails prior to Plaintiff's appeal[, while not in bad faith,] was not completely reasonable."
The court reduces the "hourly rates and the number of hours billed" in connection with plaintiff's award of attorney fees. The court "declines to award attorneys' fees for any litigation prior to the Ninth Circuit's December 8, 2008 opinion," on the basis that plaintiff did not substantially prevail with respect to that portion of the action. The court also reduces by half the hours spent by one attorney "reviewing the EEOC files after the first appeal," finding it "excessive." Further, the court makes reductions to the fee award based on its findings that the number of attorneys involved in the litigation caused an "excessive amount of time spent reviewing [each other's] files and communicating with one another" and that the attorneys spent an "excessive" time researching the FOIA. However, the court declines to reduce the fee award for hours spent for specific filings, determining that the attorneys "did not spend an excessive amount of time on the filings" and they were not frivolous. The court also adjusts the hourly rates claimed by the attorneys downward "[a]fter reviewing the prevailing rates in this community." Using the lodestar amount, the court determines that plaintiff is entitled to a total fee award of $134,512.89 as well as costs in the amount of $17,668.17, which includes the search and duplication fees incurred in the course of the processing of plaintiff's request.
The court awards plaintiff attorney fees with respect to certain emails that the VA produced voluntarily to him following an adverse ruling by the Ninth Circuit with respect to those records. As a preliminary matter, the court finds that plaintiff did not substantially prevail with respect to emails responsive to his request that the VA produced as part of the discovery process of separate EEOC proceedings. The court finds that "[t]his Court did not order the VA to produce the EEOC emails, and the VA did not 'voluntarily' change its position with respect to those emails." However, the court concludes that plaintiff substantially prevailed on the remaining emails where "[t]here is no indication from the record that Plaintiff could have obtained the requested documents without filing the instant action." The court finds that "this lawsuit directly caused the VA to disclose the remaining documents to Plaintiff."
Morales v. Pension Benefit Guar. Corp., No. 10-1167, 2012 U.S. Dist. LEXIS 9101 (D. Md. Jan.26, 2012) (Legg, J.). Holding: Granting defendant's motion to withdraw its earlier motion to dismiss and granting its motion for summary judgment, on the basis that its withholdings under Exemptions 4, 5, and 6 were proper and its search was sufficient; and denying plaintiff's motions for attorney's fees. Although the court notes that "there is a substantial likelihood that [plaintiff's decision to file the instant action] caused PBGC to take his requests more seriously and to devote the time and attention necessary to ensure that they were processed quickly and carefully," the court finds that "[i]n the end . . . it is clear that the overwhelming majority of [plaintiff's] requests were made, not to serve the public interest or inform the public about the action of government agencies, but to substitute for or supplement discovery in [plaintiff's] personal Title VII suit." Ultimately, "[t]he Court declines to award costs and fees because [plaintiff] is using FOIA as a substitute for civil discovery and not to advance the purposes for which FOIA was enacted."
Audubon Soc'y of Portland v. U.S. Nat. Res. Conservation Serv., No. 10-1205, 2012 WL 141496 (D.Or. Jan.18, 2012) (Hernandez, J.) (amended op. & order). Holding: Granting plaintiff's cross-motion for summary judgment finding that the withheld material did not fall within the asserted Exemption 3 statute; issuing a declaratory judgment that the U.S. Natural Resources Conservation Service (NRCS) failed to make a timely determination on plaintiff's administrative appeal, a point which was conceded by defendant; dismissing plaintiff's Administrative Procedure Act claim as moot in light of the court's decision on the FOIA claims; and concluding plaintiff is entitled to reasonable attorney's fees and costs. The court grants plaintiff's request for reasonable attorney's fees and costs because it "prevailed on its claim of unlawful withholding of documents under FOIA."
Moffat v. DOJ, No. 09-12067, 2012 WL 113367 (D. Mass. Jan.12, 2012) (Casper, J.). Holding: Granting plaintiff's petition for attorney's fees for work completed in connection with the Complaint. As an initial matter, the court finds that although it "granted summary judgment to the FBI on [plaintiff's] FOIA claim, [he] has substantially prevailed against the agency for the purposes of §552." The court finds that plaintiff substantially prevailed in this case due to "the FBI's additional searches and release of documents in response to [plaintiff] filing his complaint and not with [plaintiff's] subsequent unavailing litigation with regard to the adequacy of the FBI's searches or the validity of the FBI's redactions within the eventually disclosed documents." The court concludes that the attorney's fee entitlement factors also "cut in [plaintiff's] favor." As to the first factor, i.e., the public benefit derived from the case, the court finds that plaintiff does not have a business interest in the records and notes that "'a successful FOIA plaintiff always acts in some degree for the benefit of the public, both by bringing the government into compliance with the language of the Act and by securing for society the benefits assumed to flow from the disclosure of government information.'" With regard to the second and third factors, the commercial benefit to plaintiff and the nature of his interest in the records sought, the court finds that "although [plaintiff] has an intense personal interest in using the records sought to protest his innocence, 'a prisoner has no conceivable commercial interest in seeking access' to the sort of records pursued by [him], . . . and [plaintiff's] interest here is 'public-interest oriented' and is not 'frivolous or purely commercial.'" The court also notes that "the FBI has not provided a colorable basis in FOIA law for its refusal to perform 'cross-reference' searches in response to [plaintiff's] administrative request until after he filed his lawsuit." As such, the court holds that plaintiff "is thus entitled to an award of attorney's fees." However, the court limits the recoverable amount of attorney's fees to "the time period that 'includes the preparation and filing of the complaint and stops when the FBI released documents to [plaintiff's] counsel.'" The court awards attorney's fees in the amount of $1,600 which reflects the rate of $100 per hour, "the rate at which [plaintiff's] counsel was 'retained' by the Commonwealth," for sixteen hours of work in connection with the Complaint.
Morley v. CIA, No. 03-2545, 2011 WL 6257183 (D.D.C. Dec. 14, 2011) (Leon, J.). Holding: Denying plaintiff's request for attorney's fees and costs on the basis that he does not satisfy the entitlement factors. As a preliminary matter, the court indicates that "[t]he CIA does not contest whether [plaintiff] is eligible to receive attorney's fees," but instead focuses on the entitlement factors. The court denies plaintiff's motion for attorney's fees and costs, concluding that he is not entitled to such an award. In terms of the public benefit, the court determines that "[w]hile the Kennedy assassination is surely a matter of public interest, . . . this litigation has yielded little, if any, public benefit – certainly an insufficient amount to support an award of attorney's fees." The court notes that, in response to a remand from the D.C. Circuit, the CIA released the personnel records of the particular CIA officer but finds that, contrary to plaintiff's contention, "[t]his litigation did not . . . lead to the publication of Kennedy-assassination documents." Additionally, "the Kennedy-assassination documents obtained by [plaintiff] through this FOIA litigation are identical to documents which were previously released under the President John F. Kennedy Assassination Records Act of 1992 . . . to NARA and were already in the public domain." Accordingly, the court concludes that plaintiff "cannot claim that any of this information 'add[s] to the fund of information that citizens may use in making vital political choices.'" Moreover, the court discounts plaintiff's argument that his use of the "FOIA to sidestep" the copying costs imposed by NARA and "to compel the CIA to search these records" conferred a benefit to the public. Rather, the court finds that "prior to filing this case, 'the public had the benefit of access to all or most of this information'" and, additionally, plaintiff "has already himself benefited by avoiding the copying costs." The court also concludes that "[e]ven if the majority of the documents [plaintiff] received had not been previously public, [his] claims about the supposed public benefit of the documents produced in this litigation are unconvincing as based on nothing more than his own conclusory opinions and factually inaccurate statements." Moreover, the court notes that plaintiff's contention that he should be awarded "attorney's fees based on the documents withheld by CIA" undercuts his claim because "those documents were properly withheld under FOIA."
As to the commercial benefit and the nature of plaintiff's interest in the documents, the court concludes that plaintiff "has a sufficient private interest in pursuing these records without attorney's fees" where he "had an interest in obtaining the NARA records 'from the CIA at little or no charge under FOIA' to avoid expending his own time and money to obtain the documents from NARA." With respect to the reasonableness of the CIA's original withholding, the court determines that this "factor also weighs against an award of attorney's fees" because "[t]he CIA has not only relied on reasonable legal interpretations but also acted reasonably throughout this case" by directing plaintiff "to the logical repository of such records – NARA," by asserting the Glomar response in connection with a CIA officer's supposed covert activities, and "for initially contesting [plaintiff's] request to search its operational files." Moreover, although the D.C. Circuit ruled against the CIA as to the last point, "[that] court noted that the CIA relied on the 'only opinion by a circuit court of appeals' to address the relevant FOIA exemption under the CIA Act." Furthermore, the court finds that "there is no indication in the record that the CIA has engaged in any recalcitrant or obdurate behavior."
Citizens for Resp. & Ethics in Wash. v. DOJ, No. 10-750 (D.D.C. Dec.8, 2011) (Boasberg, J.). Holding: Granting defendant's motion to enter judgment and reducing plaintiff's fee award to $7,158.13, the amount recovered for work completed before the government's Rule 68 Offer of Judgment. The court grants defendant's motion to enter judgment and reduces plaintiff's attorney fee award on the basis that it "may not recover any attorney fees or costs incurred following its rejection of the Government's Rule 68 Offer of Judgment" where "the amount that [plaintiff] ultimately recovered for its pre-Offer work was less than the amount in the Offer." Rule 68 provides that "'[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.'" First, citing the Supreme Court's decision in Marek v. Chesny, the court finds attorney fees are included in the term "costs" under Rule68. Second, the court determines that the text of the FOIA itself "clearly appears to include 'attorney fees' as one type of 'litigation costs.'" The court observes that "the thrust of Rule 68 [is that] a party who recovers less than it was offered must bear the expense of its erroneous choice." Accordingly, the court reduces the judgment amount to $7,158.13.
Citizens for Resp. & Ethics in Wash. v. DOJ, No. 10-750, 2011 WL 5830746 (D.D.C. Nov.21, 2011) (Boasberg, J.). Holding: Awarding plaintiff costs and fees in the amount of $12,417.50, reducing plaintiff's requested fee award by 37.5 percent to account for any inaccuracies and overbilling that may have been caused by deficient timekeeping practices, and deducting from the award the time spent reviewing the responsive records. The court finds that "[w]hile [plaintiff's] counsel did keep some contemporaneous records, their timekeeping practices fell significantly below what is expected of fee applicants in this Circuit." Although plaintiff "offers no real excuse for its inadequate timekeeping habits," "[t]he Court, nevertheless, does not find a complete disallowance of fees to be warranted – the records here are not so deficient as to prevent opposing counsel or the Court from 'mak[ing] an informed determination as to the merits of the application.'" However, the court reduces plaintiff's fee award "to account for any inaccuracies and overbilling that may have occurred as a result of its unacceptable timekeeping habits." Accordingly, the court concludes that "Defendant's suggestion of a 37.5% reduction is reasonable," which "is based on splitting the 75% difference between billing in quarter-hour versus full-hour increments."
Additionally, the court concludes that plaintiff "should not recover the $3,325 it claims for reviewing" the records received in response to the FOIA request and the draft Vaughn Index. The court comments that "Plaintiff would have had to expend this time had DOJ timely produced the documents without litigation; the cost of reviewing documents produced in response to a FOIA request is simply the price of making such a request." Although the court notes that "courts in this District have concluded that awards of 'fees on fees' should be reduced to exclude the amount of time spent unsuccessfully defending fee requests denied by the court," here,"[b]ecause [plaintiff] prevailed on the major issues raised in the Motion for Attorney Fees–namely, the questions of whether [plaintiff] was eligible for and entitled to fees in the first place –very little of the time expended on fee issues related to the issues on which it did not prevail."
Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 10-750, 2011 WL 5075102 (D.D.C. Oct.26, 2011) (Boasberg,J.). Holding: Granting plaintiff's motion for attorneys' fees and costs. The court grants plaintiff's motion for attorneys' fees and costs. First, the court finds that a scheduling order proposed by DOJ and adopted by the court which "required Defendant to complete processing of and produce all non-referred, non-exempt documents by a specified date" constituted a "'a judicial order, or an enforceable written agreement or consent decree,'" which qualified plaintiff as eligible for fees under the FOIA. The court finds that the fact that defendants proposed the scheduling order, rather than plaintiff, is without consequence. Moreover, the court determines that "[d]espite Defendant's attempt to characterize the order as mere 'housekeeping,' it does not simply 'require the parties to meet and confer and then submit a joint status or scheduling report.'" Rather, "[i]t affirmatively requires the processing and production of documents by a certain date." Additionally, the court rejects DOJ's argument that plaintiff "did not obtain the relief it sought because it desired the 'immediate' release of documents and 'immediate' release was not ordered." The court finds that the FOIA requires that "[a] party must 'substantially prevail,' not 'precisely prevail'; [and] as a result, [plaintiff] need not obtain an ordering granting relief in language identical to that used in its complaint."
Next, applying the four attorney-fee entitlement factors, the court finds that plaintiff is also entitled to receive such an award. The court notes that "[a]s a threshold matter, it is uncontested that factors (2) and (3) – the 'commercial benefit' and 'plaintiff's interest' factors, which 'are closely related and often considered together,' – favor [plaintiff.]" The court concludes that "[b]ecause [plaintiff] derived no commercial benefit from its requests and sought these records in its public-interest capacity, . . . the second and third categories militate strongly in favor of a fee award." The court also determines that the first factor, i.e., "the 'public benefit derived from the case,' – also weighs in [plaintiff's] favor." The court notes that "the first request was intended to 'inform the public about whether and to what extent the destruction of these email[s] may have violated DOJ policy and federal laws,' and the second was intended to determine 'to what extent the destruction of emails was limited to [a former DOJ attorney's] role in drafting the terror memoranda and may have been the result of willful actions.'" Additionally, the court notes that, by granting plaintiff's request for expedited processing of one of its requests, "DOJ acknowledged that the question involved was a 'matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity, which affect public confidence." Furthermore, the court finds that "[t]he requested documents . . . were not available to the public prior to [plaintiff's] requests" but, as a result of plaintiff's requests, "are now publicly available on its various websites." The court also determines that the fact that the released "'emails shed no light on what [the former DOJ attorney] did for the Department of Justice' itself sheds light on the extent to which email may have been purposefully destroyed." Although "[t]he fourth factor– the reasonableness of the agency's withholding – is a closer call," the court concludes that "[i]t is undisputed that OLC failed to meet [the FOIA's statutory] deadlines, and it has not provided any 'reasonable basis in law' for doing so." The court comments "[w]hile OLC was working with [plaintiff] on the first request and the delay does not seem to have resulted from bad faith on its part, the agency's failure even to respond is hardly reasonable." Moreover, "considering this failure in conjunction with the other three factors, the Court finds Plaintiff is entitled to a fee award." The court then provides the parties with an opportunity to attempt to resolve the appropriate amount of fees owed themselves.
Beltranena v. U.S. Dep't of State, No. 09-CV-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) (Rothstein, J.). Holding: Granting defendant's renewed motion for summary judgment based on the adequacy of its search and its claims of exemption; denying plaintiff's requests for discovery, an in camera review, and attorneys' fees. The court denies plaintiff's request for attorneys' fees. Noting that although it "appreciates that the delays encountered by [plaintiff] were frustrating," the court concludes that "[i]n a case such as this one, where the Department has performed adequate searches for documents responsive to [plaintiff's] FOIA request, has properly applied exemptions and has presented evidence of a carefully-conducted segregability analysis, an award of attorneys' fees to [plaintiff] would be inappropriate."
Bryant v. CIA, No. 09-0940, 2011 U.S. Dist. LEXIS 118841 (D.D.C. Oct. 14,2011) (Sullivan,J.) (revisedmem. op. to correct clerical error in Sept. 30, 2011 decision). Holding: Denying plaintiff's motion for reconsideration of the court's denial of his request for attorney's fees. The court denies plaintiff's motion for reconsideration which asked the court to reconsider its denial of his request for attorney's fees. Focusing on the entitlement factors for attorney's fees under FOIA, the court finds that "[t]he crucial defect in plaintiff's request for attorneys' fees is that plaintiff, in both the initial request and again in this motion for reconsideration, fails to provide the Court with any basis for determining that the specific documents he obtained as a consequence of this litigation confer some benefit to the public." The court further notes that where "'there was no public benefit to the litigation, an award of attorneys' fees and costs is unwarranted.'" As such, the court concludes that "[e]ven assuming that the remaining factors – which evaluate whether plaintiff seeks to gain a commercial or personal benefit from the requested materials and whether the agency had a reasonable basis for not disclosing the material – would otherwise weigh in favor of an award of attorneys' fees, such a determination would not overcome the Court's conclusion here." Additionally, the court rejects plaintiff's claim that he was entitled to fees based on the fact that the agency, after first denying him representative of the news media fee status, ultimately granted him that fee status. The court finds this "provide[d] merely a personal benefit to plaintiff."
Negley v. FBI, No. 03-2126, 2011 WL 4793143 (D.D.C. Oct. 11, 2011) (Kessler, J.). Holding: Granting plaintiff's motion for an award of attorney's fees; and directing parties to provide additional information in order for the court to determine the proper amount of attorneys' fees as well as attorneys' fees based on the preparation of the fee petition. The court grants plaintiff's motion for an award of attorneys' fees. At the outset, the court notes that the FBI has conceded that plaintiff has "substantially prevailed" with respect to records produced in response a prior opinion by the court. As to FOIA's entitlement factors for fee awards, the court notes that the "first factor 'requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought.'" Under the first factor, the court finds that "[p]laintiff fails to explain or offer any evidence that the documents that he sought about himself and/or his company would in any way 'add to the fund of information that citizens may use in making vital political choices.'" Indeed, plaintiff "does not even discuss the nature of the documents that he has sought and received." However, the court agrees with plaintiff that the public has benefited from the this case, because "this litigation has produced 'extraordinary information regarding how the FBI maintains its records and the baseline methods by which it will search for and respond to FOIA requests, unless a FOIA requester has information to demand otherwise.'" The court finds that "[t]his information is indeed 'valuable' for future FOIA requesters and litigants." Noting that this is the first FOIA attorneys' fees case to "address this anomaly," the court concludes that "[w]hile the disclosures may not be in the traditional form of a document, the information made public in this case resulting from [plaintiff's] FOIA request and subsequent litigation, will enable citizens to more effectively and knowledgeably use the FOIA to obtain information to which they are entitled," and therefore "the public has derived great benefit from the litigation in this case."
With respect to the commercial benefit to plaintiff and the nature of his interest in the records, the court concludes that "given the sparseness of the record and the purely commercial and personal interest of the Plaintiff, factors two and three do not weigh in favor of awarding him attorneys' fees." As to the fourth factor, i.e., the reasonableness of the agency's withholdings, the court notes that it "has made ample findings [in this case] demonstrating Defendant's failure to carry its burden of proving that it had a colorable or reasonable basis for refusing to disclose documents and conduct certain searches." The court concludes that "[t]he FBI's conduct 'was exactly the kind of behavior the fee provision was enacted to combat'" and, accordingly, "the fourth factor weighs in favor of awarding Plaintiff his attorneys' fees and costs." In terms of the amount of attorneys' fees to which plaintiff is entitled, the court orders the parties to make additional submissions to explain their positions and notes that the "[p]arties should be aware that the Court will award attorneys' fees based upon the applicable Laffey Matrix rates for any given year." With respect to plaintiff's supplemental request for attorneys' fees based upon the work related to the instant fee petition, the court reduces the figure for billing that is insufficiently detailed. The court directs plaintiff "to submit an explanation for the amount of time devoted to settlement discussions" and finds that the amount of time must be deducted. The court also reduces the final award figure by twenty percent for excessive time spent on drafting the motion for attorneys' fees.
ACLU v. DHS, No. 08-1100, 2011 WL 4100962 (D.D.C. Sept. 15, 2011) (Walton, J.). Holding: Granting plaintiff an award of attorney fees, but making certain deductions based on a computational error and unreasonable billing entries. The court grants plaintiff an award of attorney's fees, deducting certain billing entries that were not reasonable. Eligibility: In terms of assessing plaintiff's eligibility for attorney fees, the court first notes that "[t]his Court has found that FOIA litigation substantially caused the release of documents when the 'defendant's own affidavits stated that the review of the documents from which [the released] pages were drawn was being done" incidental to the preparation of "one of its Vaugh[n] affidavits.'" Here, the court finds that "defendants' own submissions admit that at least some of the documents were produced as a result of preparing Vaughn indexes" and concludes that since these records would "not have been produced without litigation; accordingly, the litigation substantially caused the defendants to release these documents." In addition, the court determines that litigation caused the defendants to continue to search for and produce records after they had filed a report indicating that their response to plaintiff's request was complete. The court rejects defendants' contention that "some of these records were released as a result of new guidelines implemented by President Obama and Attorney General Eric Holder, and not as a result of this litigation." The court notes that the Attorney General's memoranda "plainly states that the plaintiff's FOIA request was eligible for review [under the new guidelines] because it was already in litigation at the time the policy change was issued." The court concludes that "while the release of some records may have been 'precipitated' by the change in policy, . . . the release of these records was substantially caused by the litigation." Based on the foregoing factors, the court finds that plaintiff is "eligible" for attorney's fees. Entitlement: As to the entitlement factors, the court notes that "defendants do not dispute that the first three factors [i.e., the benefit to the public, commercial benefit to the requester, and nature of the requester's interest in the records] favor the plaintiff's 'entitlement' to attorneys' fees." However, with respect to the fourth entitlement factor, the court concludes that "[p]utting aside the exempt documents [for which the court upheld exemptions asserted by the government], the defendants did not have a reasonable basis for withholding the 8,500 pages of records that were produced after the defendants had 'completed processing and production of all records,' . . . because 'defendant's failure to produce documents due to backlog or administrative issues does not constitute a "reasonable basis in law.'" Moreover, "[c]onsidering the immense public benefit derived from the disclosure of information concerning ten previously undisclosed deaths, and the plaintiff's total lack of any commercial benefit acquired from the disclosure, the Court finds that [ ] even if the 'reasonable basis in law' factor weighs in favor of the defendants, the other factors nonetheless weigh in favor of the plaintiff being 'entitled' to an award of attorneys' fees. Reasonableness: At the outset, the court makes a deduction "from the requested award to account for [a] mathematical error." In response to defendants' objection to plaintiff's entries based on "block billing supported by quarter-hour billing," the court observes that "[t]he problem with the practice is that 'billing by the quarter-hour, not by the tenth is a deficient practice because it does not reasonably reflect the number of hours actually worked.'" However, the court ultimately "adopt[s] the same approach taken by another member of this Court and 'allow [p]laintiff's counsel’s quarter-hour billing increments, but caution[ ] counsel that future time sheets submitted to the Court must reflect billing entries in six-minute increments." With respect to the reasonableness of other billing entries, the court "agrees . . . with defendants that some of the billing entries must be excluded from the award" and deducts the billing entries related to press communications, a retention letter, and excessive time spent by a junior associate in drafting the complaint.
Elec. Priv. Info. Ctr. v. DHS, No. 09-2084, 2011 WL 4014308 (D.D.C. Sept. 12, 2011) (Urbina,J.). Holding: Denying plaintiff's motion for relief upon reconsideration brought under Federal Rules of Civil Procedure 54(b), 60(b)(1), and 60(b)(6); and granting, in part, and denying, in part, plaintiff's award for attorney's fees. The court grants, in part, and denies, in part, plaintiff's motion for attorney's fees. Eligibility: As a preliminary matter, the court notes that "DHS does not reject the plaintiff's claim that it substantially prevailed." Additionally, the court finds that in this case "plaintiff's lawsuit has clearly elicited a 'voluntary or unilateral change in [DHS's] position'" because documents were only produced after litigation was initiated and DHS did not "seek to take advantage of the statutory mechanisms available to extend its response time." Moreover, the court rejects defendant's arguments that "its failure to disclose non-exempt documents was due to 'backlog as well as administrative error,'" concluding that "these generic statements – without any evidence demonstrating that a backlog existed or that the agency performed its due diligence in processing plaintiff's FOIA requests – are insufficient to show that DHS experienced 'unavoidable delay' despite due diligence in the administrative process.'" Accordingly, the court finds plaintiff is eligible for attorney's fees. Entitlement: The court holds that plaintiff is also entitled to an award of attorney's fees. In terms of the public benefit factor, the court finds that "[t]he records disclosed to the plaintiff in the course of this litigation have provided a public benefit in that they were covered extensively in the news and cited frequently as a news source during the public debate surrounding the use of whole body imaging devices in airports." Accordingly, the court concludes that "the records released in the course of this litigation 'further[ed] public understanding,' . . . in that the thrust of the information obtained by the plaintiff is 'likely to add to the fund of information that citizens may use in making vital political choices.'" The court also finds that "the 'commercial benefit' and 'nature of interest' elements weigh in favor of granting the plaintiff's motion for attorney's fees" because "plaintiff is a '501(c)(3) non-profit public interest research center' . . . [that] derived no commercial benefit from its FOIA request or lawsuit" and "[i]ts aims, which include dissemination of information regarding privacy issues to the public . . fall within the scholarly and public-interest oriented goals promoted by FOIA." As to then final entitlement factor, i.e., the reasonable basis in law for withholding the information, "because DHS's administrative delay and a generic claim of a FOIA backlog do not form a 'reasonable basis in law' for withholding in these circumstances, . . . and because DHS has not provided any other reasonable basis in the law for its failure to respond to the plaintiff's two FOIA requests, the court determines that this factor also weighs in favor of granting the plaintiff's motion for attorney's fees." Reasonableness: At the outset, the court notes that "both parties have effectively assented to the use of the Laffey Matrix as an appropriate baseline for any fee award." The court finds that "plaintiff's request for attorney's fees warrants a reduction due to several instances of duplicative or excessive billing." For one, the court concludes that "because both complaints in this case consist largely of boilerplate language and an uncomplicated factual history, . . . the twenty hours spent between them is unreasonable." Next, the court determines that an award of fees is not appropriate for an unsuccessful motion for summary judgment which "can be reasonably separated from the portion of the litigation that catalyzed the release of responsive records" as well as for "unnecessary work" associated with a motion that was never entered. However, the court "awards fees related to the plaintiff's review of DHS's [pre-litigation] disclosures" because "it would seem critical to the prosecution of a FOIA lawsuit for a plaintiff to review an agency's disclosure for sufficiency and proper withholding during the course of its FOIA litigation." With respect to fees incurred in preparing plaintiff's fee petition, the court awards "'fees on fees'" because "upon close scrutiny of the record, . . . the hours spent by plaintiff on these tasks were reasonably expended and do not constitute a 'windfall' for the attorneys." However, the court concludes that plaintiff is not entitled to a fee enhancement based on its experience litigating such matters because the Laffey Matrix formula already "incorporate[s] higher fees for greater experience" and "would therefore compensate the plaintiff sufficiently in this case." The court also finds that plaintiff is not eligible for a fee enhancement based on "its 'unusually exhaustive administrative filings,'" noting that "work performed at the administrative level is not compensable under FOIA." In terms of defendant's arguments that fees should be reduced by 50 percent, the court concludes that "[a]ny deficiencies that [have been] noted in the plaintiff's fee request have not rendered the plaintiff's request 'outrageously unreasonable'" and therefore the fee request "does not approach a level of impropriety that would prompt the court to further reduce the plaintiff's attorney's fee award."
Murray v. Lappin, No. 09-992, 2011 U.S. Dist. LEXIS 86373 (D.D.C. Aug. 5, 2011) (Robinson, Mag.). Holding: Granting summary judgment to BOP based on the adequacy of its search; and denying plaintiff's request for attorney's fees and costs. The court grants summary judgment to BOP "with respect to Plaintiff's claim for reasonable attorney's fees and costs because Plaintiff has failed to allege his legal entitlement to attorney's fees." The court notes that "[t]his Circuit has held that a person who has appeared pro se in a FOIA case, is ineligible for an award of fees and costs" and comments that "[a]warding [plaintiff] attorney's fees would . . . defeat the legislative intent of the fee provision set forth in the FOIA."
Moffat v. DOJ, No. 09-12067, 2011 WL 3475440 (D. Mass. Aug. 5, 2011) (Casper,J.). Holding: Granting summary judgment to defendants based on adequacy of their searches and withholdings; denying plaintiff's request for attorney's fees and costs with respect to DEA and ATF, but permitting him leave to file a memorandum regarding his entitlement to fees with respect to his claim against the FBI. The court denies plaintiff's request for attorney fees and costs with regard to DEA and ATF, but allows him leave to file a memorandum addressing the four entitlement factors for fees with respect to his claim against the FBI. First, the court finds that plaintiff "has not substantially prevailed against the DEA or the ATF" because both components "provided [plaintiff] with no records as a result of his administrative FOIA request and with no records as a result of his complaint." However, the court finds that because "[t]he FBI provided [plaintiff] with no records in response to his administrative FOIA request but did provide him with records after performing a more thorough search in response to his complaint," "[t]his unilateral change in the FBI's position may be sufficient to establish that [plaintiff] has substantially prevailed."
Queen Anne's Conservation Assoc. v. Dep't of State, No. 10-670, 2011 WL 3426038 (D.D.C. Aug. 3, 2011) (Robinson,Mag.). Holding: Granting, in part, plaintiff's petition for attorney fees and costs. At the outset, the court notes that a stipulation between the parties provides that "'Defendants agree that Plaintiff is entitled to an award of reasonable attorney's fees and costs.'" As to the standard governing the award, the court notes that the circumstances of this case "do not present any novel or complex issues of law." As such, the court indicates that it "will award fees at the U.S. Attorney's Office's Laffeymatrix rates." Upon reviewing the billing reports submitted by plaintiff, the court finds that the "description of the tasks are not sufficiently detailed to permit determination of reasonableness of hours claimed" and, accordingly, finds that "Plaintiff has failed to present well-documented claims." The court also concludes that plaintiff is not entitled to an award for work performed at the administrative stage of the FOIA request and also "finds no basis for an award of fees after the voluntary dismissal of the action by Plaintiff." Accordingly, the court orders fees and costs to plaintiff, which "shall be determined by (1) the subtraction of all sums claimed for activity during the administrative phase; (2) the subtraction of all sums claimed for activity following Plaintiff's dismissal of this action unrelated to the fee petition, (3) the application of Laffey matrix rates to the remaining hours, and (4) a 20 percent reduction of that amount."
Terris, Pravlik&Millian, LLP v. Cntrs. for Medicare & Medicaid Servs., No. 10-951, 2011 WL 2579739 (D.D.C. June 29, 2011) (Facciola,Mag.). Holding: Denying plaintiff's request for attorney's fees. The court denies plaintiff's request for attorney's fees, finding that plaintiff is not eligible for such an award because there is no evidence that defendants' changed their position as a result of plaintiff's lawsuit. The court finds that "[i]n this case there is positive proof that the filing of the lawsuit did not expedite [the Centers for Medicare and Medicaid Services' (CMS's)] processing of [plaintiff's] 2005 request," but, rather, "[i]t was the [CMS's FOIA Backlog Reduction] Task Force's actions in reducing the backlog that led to the disclosure of the documents to [plaintiff] that had been collected several years before, and that disclosure had literally nothing to do with the filing of this lawsuit." Entitlement: The court concludes that "even if [plaintiff] were eligible for fees, it has not established that the court should exercise its discretion and award the fees" based on the entitlement factors for awarding attorney's fees under the FOIA. The court finds that although "there is genuine public benefit in the prosecution of [the underlying lawsuit for which plaintiff sought the records], there is none in the disclosures made here." The court observes that "[t]here is nothing about the information that would advance public dialogue about a political, social, or economic issue in which there is likely to be community interest or concern."
Tchefuncta Club Estates v. U.S. Army Corps of Eng'nrs, No. 10-1637, 2011 WL 2037667 (E.D. La. May 24, 2011) (Africk, J.). Holding: Denying plaintiff's motion for attorney fees and litigation costs. The court denies plaintiff's request for attorney fees and litigation costs, concluding that plaintiff is not eligible for such an award because it "is unable to show a change in position by the agency." The court finds that "the fact that plaintiff received some of its requested documents following a change in circumstances does not evidence a change in position by the agency." Rather, the court notes that "[f]rom the outset, [defendant] has maintained that pursuant to FOIA Exemption 4, prior to the issuance of a permit, it will not release the needs analysis sections which, according to the applicants' objections, contain trade secrets and/or proprietary confidential information," but that upon "issuing of a permit, the application, including the needs analysis section, becomes a public record and FOIA Exemption 4 becomes moot." The court observes that defendant, in fact, followed this procedure – releasing the one company's application once the permit issued, and withholding another company's application where the permit had not been issued.
Judicial Watch, Inc. v. DOJ, No. 06-406, 2011 WL 1195789 (D.D.C. Mar. 31, 2011) (Kennedy, J.). Holding: Granting plaintiff an award of attorney fees. Attorney fees/legal standard: As an initial matter, the court determines that it need not determine whether to apply "the catalyst test (which took effect while this case was pending) or the stricter Buckhannnon test (which was in effect when the case was filed),""because even under the stricter Buckhannon test, [plaintiff] has substantially prevailed." Attorney fees/eligibility: Under Buckhannon, the court finds plaintiff "substantially prevailed by virtue of the Court's August 2006 acceptance of the parties' joint stipulation." Citing the D.C. Circuit's decisions in Judicial Watch, Inc. v. FBI and Davy v. CIA, which found that FOIA plaintiffs "prevailed" on the basis of joint stipulations approved by district courts that required the production of documents, the court concludes that its minute order in this case "fits squarely within the holdings of these cases" because it "'require[ed] the [defendant] to produce all responsive documents by the specified dates.'" Additionally, the court finds that "DOJ's response – that the Court's order was merely procedural because it did not rule on the merits of [plaintiff's] claim – is an argument that the D.C. Circuit has repeatedly rejected" in Judicial Watch, Davy, and Campaign for Responsible Transplantation v. FDA.
Judicial Watch, Inc. v. DOJ, No. 06-406, 2011 WL 1195789 (D.D.C. Mar. 31, 2011) (Kennedy, J.). Holding: Granting plaintiff an award of attorney fees. Attorney fees/entitlement: Examining the four entitlement factors, the court concludes that plaintiff is also entitled to attorney fees. In terms of the public benefit factor, the court concludes "dissemination of the information at issue is clearly in the public interest," noting that "the Terrorist Surveillance Program has been the subject of legislative inquiry... and significant litigation." The court rejects DOJ's argument that "any benefit the public has received from [plaintiff's] suit is largely negated by the fact that many of the requested documents were subject of an earlier filed FOIA claim" which was part of different litigation. The court finds that DOJ has not provided any evidence to the extent to which this material has been publicly disseminated and concludes that "this factor weighs in favor of [plaintiff], albeit with somewhat less force than if none of the documents requested had been released before."
With respect to the second and third entitlement factors, any commercial benefit and the nature of plaintiff's interest in the records at issue, the court points to plaintiff's uncontested statement that "its purpose – to obtain and disseminate information of interest to the public – is entirely non-commercial and public-oriented." The court finds this argument persuasive and, as such, finds that these factors weigh in favor of an award of fees. Lastly, as to the fourth entitlement factor, the reasonable-basis-in-law, the court determines that "[e]ven though DOJ's conduct after the suit was filed was generally reasonable, [its] initial failure to respond still weighs in favor of a fee award."
Judicial Watch, Inc. v. DOJ, No. 06-406, 2011 WL 1195789 (D.D.C. Mar. 31, 2011) (Kennedy, J.). Holding: Granting plaintiff an award of attorney fees. Attorney fees/reasonableness of hours: With regard to DOJ's challenge to the number of hours for which plaintiff seeks compensation, the court finds that DOJ has "failed to provide 'specific countervailing evidence' that establishes the unreasonableness of any specific portion of [plaintiff's] request" for fees. As to DOJ's request that the lodestar amount "be adjusted downward by fifty percent to reflect the fact that [plaintiff] ultimately obtained less than one quarter of the documents it initially sought," the court finds that DOJ provides no basis for that figure and notes that its "argument appears to neglect the fact that FOIA cases routinely result in the disclosure of a relatively small portion of the documents originally requested."
Bigwood v. Def. Intelligence Agency, No. 08-1431, 2011 WL 988883 (D.D.C. Mar.22, 2011) (Urbina, J.). Holding: Denying plaintiff's motion for relief upon reconsideration and his motion for attorney's fees. The court denies plaintiff's motion for attorney's fees because he "has not established a causal nexus between the filing of his complaint and the defendant's release of documents as necessary to establish his eligibility for attorney's fees." The court notes that "[f]rom [the] timeline [provided by plaintiff] it is clear that the agency expended a considerable amount of time and effort processing the plaintiff's request prior to the filing of his lawsuit." Moreover, "plaintiff does not dispute that his request was broad or that the agency experienced a backlog of FOIA requests." As such, the court concludes that "[a]lthough the defendant's processing of the plaintiff's FOIA request was extraordinarily delayed, [he] has provided no evidence to suggest that the filing of his lawsuit was the catalyst that caused the defendant to release the documents."
United Am. Fin., Inc. v. Potter, No. 06-1023, 2011 WL 939014 (D.D.C. Mar. 18, 2011) (Bates, J.). Holding: Denying plaintiff's motion for attorney fees. The court holds that "[a]lthough plaintiff is eligible for an award of attorney fees and costs, he is not entitled to one." "Here, defendant has conceded eligibility because 'this litigation rendered a decision granting, in part, and denying, in part, USPS's Final Motion for Summary Judgment.'" The court then examines the four entitlement factors to evaluate whether plaintiff is entitled to an award. In terms of public benefit, the court concludes that "although plaintiff claims that this litigation has produced public benefits [in the form of disclosing how USPS uses its resources to "label insurance salesmen"], there is little evidence that there is a large interested group or even that plaintiff is able to disseminate the disclosed information to the allegedly interested public." Accordingly, the court finds that the public benefit is "minimal" because "to 'the extent that this information is of any interest to the public, it is likely of interest to a relatively small segment of the population.'"
With respect to the second and third prongs regarding the commercial benefit to the plaintiff and the nature of his interest in the disclosed records, the court determines these factors "do not support an award for attorney fees and costs." The court finds that although the plaintiff "may not have plans [to use the records disclosed] for a lawsuit that would produce a commercial benefit, the motive 'need not be strictly commercial' to weigh against a fee award." In this case, "the limited focus of the disclosed documents illustrate that this FOIA request reflected a private interest on the part of plaintiff and was not for public information purposes."
Regarding the fourth factor, the reasonableness of the government's position, the court finds that even though the "this litigation stretched on for a period of almost four years, . . . that is not evidence of 'obdurate behavior.'" In addition, the court determines that "[a]lthough [USPS] ultimately failed to make the required specific and particularized showing that disclosing the identities of these employees would result in harm or harassment [in connection with its assertion of Exemption 7(C)], that failure does not support a finding that USPS was unreasonable." Rather, "[t]he claim was based on sound legal theory but ultimately failed because USPS was not able to make the required showing of harm." "Because the Postal Service articulated a reasonable legal position and did not exhibit the kind of stubborn opposition to valid claims that FOIA seeks to discourage, the Court concludes that the fourth factor in the entitlement analysis weighs against an award of attorney fees."
Beltranena v. Clinton, No. 09-1457, 2011 WL 923938 (D.D.C. Mar. 17, 2011) (Friedman, J.). Holding: Denying without prejudice defendant's motion for summary judgment and granting protective order. "[A]t this stage, final judgment is not appropriate, and because [plaintiff] has not articulated any need for an interim award of fees, [his] request for attorneys' fees is premature."
Strunk v. U.S. Dep't of the Interior, No. 10-0066, 2010 WL 4780845 (D.D.C. Nov. 24, 2010) (Leon, J.). The court denies plaintiff's request for an award of attorney's fees because "[a] pro se plaintiff who is not an attorney is not eligible for an award of fees" under the FOIA. "More importantly," the court finds that "plaintiff has not prevailed, substantially or otherwise in this action" and that "[t]he lawsuit does not result in the release of records plaintiff has requested from the USDA, and therefore, plaintiff is entitled to neither attorney's fees nor costs of this action."
Riser v. Dep't of State, No. 09-3273, 2010 U.S. Dist. LEXIS 112743 (S.D. Tex. Oct. 22. 2010) (Ellison, J.) . With respect to plaintiff's request for damages, the court notes that "[n]othing in the FOIA statute  authorizes damages awards to requesters for agency non-compliance or misconduct." The court also denies plaintiff's request for attorney's fees, noting that "[p]ro se litigants are not entitled to attorney fees under either the FOIA or the Privacy Act unless the litigant is also an attorney."
Poett v. DOJ, No. 08-622, 2010 WL 3892249 (D.D.C. Sept. 30, 2010) (Robinson, Mag.). Since the FBI "conceded eligibility," the court "assumes, without deciding, that Plaintiff is eligible for an award." However, the court determines that "Plaintiff is not entitled to attorney's fees and costs" because the weight of the four factors considered with respect to entitlement "leans so heavily in favor of the Defendant." The court finds that plaintiff has not shown that the FBI "'has improperly withheld extant agency records'" or that the requested records pertaining to plaintiff "is likely to add to the fund of public information or result in considerable public dissemination or benefit." Although the court notes that plaintiff does not appear to seek the records for a commercial benefit, "the lack of a public benefit inherently illuminates the fact that Plaintiff's relationship to the disclosed document is of a private and personal nature."
Bryant v. CIA, No. 09-940, 2010 WL 3833949 (D.D.C. Sept. 30, 2010) (Sullivan, J.). With respect to plaintiff's eligibility for attorney's fees, the court notes that "even assuming granting the plaintiff [representative of the news media] status [after initially denying it] is a 'voluntary or unilateral change in position by the agency' within the meaning of 5 U.S.C. § 552(a)(4)(E), the statute also requires that the change in position by the agency be 'not insubstantial.'" The court finds that "[a]pplying the standard laid in out in Davy [by the D.C. Circuit], the plaintiff has failed to show he is entitled to attorney's fees.'"
Knittel v. IRS, No. 07-1213 (W.D. Ten. Aug. 27, 2010) (Breen, J.). Attorney fees/costs: Plaintiff's request for costs is denied on the basis that he "has not substantially prevailed" in this action.
Prison Legal News v. EOUSA, No. 08-1055, 2010 WL 3170824 (D. Col. Aug. 10, 2010) (Krieger, J.). As an initial matter, the court notes that "the parties do not dispute that Prison Legal News is eligible for an award of attorney fees because they obtained relief through a court order." Based on the four-factor analysis, the court determines that plaintiff is also entitled to attorney fees "[b]ecause three of the four factors weigh in favor of an award." In terms of the public benefit, the court find that, despite the fact that "the population to which this information is likely to be disseminated is relatively small," "information about how the BOP responded to the murder may inform the public as to its effectiveness in maintaining security and order inside [a] prison." Regarding the commercial benefit to the plaintiff and its interest in the requested records, the court concludes that "Prison Legal News is a non-profit organization that does not seek to profit or benefit from the disclosure nor to use the information for its own advancement other than to pursue its mission of providing information about the prison system." However, the court notes that "[t]he fourth factor, whether the government had a reasonable basis in law for withholding the records, weighs against an award of attorney fees" where EOUSA "withheld the entirety of [a] video and  photographs from disclosure based on two FOIA exemptions dealing with privacy considerations."
The court grants plaintiff's request for forty percent of the total fees incurred in litigating this action – a figure that it represented as commensurate with amount of time it spent litigating the claims on which it prevailed. The court dismisses EOUSA's argument that "Prison Legal News's success was not qualitatively large enough to justify an award based on the hours expended on the case." Instead, the court observes that "the disclosure ordered did not result from the wholesale adoption of either party's position" and, accordingly, grants the award requested by plaintiff because there is "no reasoned way to correlate the fees and costs incurred . . . to the particular information disclosed or not disclosed."
The court significantly reduces plaintiff's award with respect to its request for fees associated with litigating the attorney fee issue. The court reasons that "no substantial time was needed compile or review [plaintiff's work] records," "the legal issues associated with a request for legal fees are neither novel or complicated," and "the attorney fee award request is disproportionate to the entire amount of attorney fees incurred for the entire matter."
Kemmerly v. U.S. Dep't of the Interior, No. 07-9794, 2010 U.S. Dist. LEXIS 75622 (E.D. La. July 26, 2010) (Berrigan, J.). The court determines that "the OPEN Government Act of 2007 does not apply retroactively for the purposes of this case and the awarding of the plaintiff's attorney's fees is controlled by the Buckhannon and OCAW decisions." Applying the pre-OPEN Government Act standard, the court finds that since plaintiff "has not received a judgment on the merits in his favor, he is not entitled to an award of attorney's fees." The court observes that even assuming, arguendo, that the attorney fee provision of the OPEN Government Act applies to plaintiff's action and that he "substantially prevailed" with respect to one of his requests, he would not be entitled to such an award because the "benefit to the public . . . is negligible" and "there would be a substantial commercial benefit to the plaintiff." Moreover, DOI "had a reasonable basis for its withholding of the documents." Lastly, the court "finds persuasive" a D.C. Circuit case holding that "pro se attorney-litigants are not entitled to attorney's fees under FOIA's fee-shifting provisions."
NulankeyutmonenNkihtaqmikon v. BIA, No. 05-188, 2010 WL 2720961 (D. Me. July 9, 2010) (Woodcock, J.). In a previous order, the court held that plaintiff had substantially prevailed and authorized an award of attorney fees. In the instant decision, the court dismisses the Bureau of Indian Affairs' argument that the attorney fees should be denied or reduced on the basis that its withholdings were reasonable. The court finds that BIA's initial position that it maintained only one document '"which Plaintiff already possessed, . . . "was manifestly unreasonable" "in light of the cascade of subsequent released documents." Moreover, the court notes "[i]t is difficult to characterize the BIA's shifting and contradictory rationales [before the district and appellate courts] as 'reasonable.'" "The court expressly finds that the BIA's 'withholding of [certain] reports to have been unreasonable'" and that to the extent that it had upheld BIA's redactions, plaintiff "has excluded work on those issues from its bill."
Additionally, the court concludes that plaintiff "substantially prevailed in this FOIA case and to the extent that it did not, [it] has excised the fees attributable to the unsuccessful parts of the case: with one exception." Plaintiff is not entitled to attorney fees with respect to billing entries related to its motion for sanctions which, although raised before the First Circuit, was not "refiled, renewed, or granted." The court permits plaintiff to recover fees incurred at the appellate level despite its failure to comply with Circuit court rules on the issue. The court finds that the appellate work was "fairly confined," comments that it "has a basic understanding" of the appellate arguments and the wins and losses, notes that denying attorney fees for the successful portion of the appeal "seems contrary to FOIA's fee shifting directive," and observes that "BIA has not specifically objected to [plaintiff's] itemization of appellate work."
After the court determines that "law students who while working under the supervision of a clinic attorney . . . may be eligible for attorney fees," it ultimately denies the request for student legal fees because "the student work is superfluous and, to the extent it is not, [plaintiff] has not provided the Court with [a] sufficiently detailed justification" for its reimbursement.
The court rejects "BIA claims that two lawyers should have been sufficient" and does not consider the use of three or, at times, four attorneys "to amount to overstaffing." After scrutinizing fee entries related to the FOIA case and companion litigation, the court disallowed several items that it deemed duplicative, including multiple billing for a single event, intra-clinic conferences and purely supervisory activity. The court also reduces plaintiff's fee request in order to subtract "'unproductive, excessive, or otherwise unnecessary time.'" Lastly, the court reduces plaintiff's attorney fee award for a "notable lack of proper documentation" in its billing records.
Calvert v. U.S., No. 08-1659, 2010 WL 2198224 (D.D.C. June 3, 2010) (Urbina, J.). The court holds that "plaintiff, a pro se litigant who is not an attorney, cannot recover attorney's fees." Additionally, the court finds that although plaintiff is eligible for costs given that the defendant released the records pursuant to the court's order, he is not entitled to costs because plaintiff sought the records for personal reasons – namely, for "'the specific purpose'" of comparing the agent's signature "'with the signature that appears on [the criminal complaint]' sworn against him."
Reunion, Inc. v. FAA, No. 09-269, 2010 WL 1759562 (S.D. Miss. May 3, 2010) (Lee, J.). Plaintiff has made no showing that it is entitled to an award of attorney fees, thus its motion for an award of fees is denied.
Mattson v. FBI, No. 08-04331, 2010 U.S. Dist. Lexis 45350 (N.D. Cal. Apr. 12, 2010) (Walker, C.J.). The court finds that plaintiff is ineligible for an award of attorney fees because he has not satisfied the two threshold standards established by the Ninth Circuit. He "does not present convincing evidence that the filing of this action was reasonably necessary to recover the documents he requested," and "[b]ased on the FBI's responses to his broad FOIA requests, [plaintiff] fails to establish that filing this action was reasonably necessary to recover the additional information he sought."
Furthermore, plaintiff "also fails to present convincing evidence that the filing of this action had a substantial causative effect on the FBI's release of additional documents. [Plaintiff] contends that the mere fact that the FBI released thirty-seven additional responsive pages... after this action was filed... establishes that he has substantially prevailed.... The court finds that the timing of these two events, without more, is insufficient to establish causation." The additional release of documents "could have been the final result of [a partial remand on the FBI's action at the administrative appeal stage] rather than a change in position in response to [plaintiff's] September 2008 lawsuit." Indeed, the "record paints a picture of an agency with a severe backlog of FOIA requests attempting in good faith to respond, albeit belatedly, to [plaintiff's] multiple requests in the order in which they were received." As the ninth circuit has ruled, "'the mere fact that the information sought was not released until after the lawsuit was instituted is insufficient to establish that a complainant has "substantially prevailed."'" Because plaintiff is not eligible for an award of fees, the court need not address his entitlement to an award.
Coven v. OPM, No. 07-01831, 2010 WL 1417314 (D. Ariz. Apr. 5, 2010) (Broomfield, J.). As to attorney fees, the court adheres to its prior ruling that, as a pro se litigant, plaintiff is not eligible for an award of fees. As to plaintiff's motion for costs, "[t]here is a complete lack of supporting documentation for plaintiff's cost request. Plaintiff's motion does not include an affidavit or declaration specifying the nature of the litigation costs which he purportedly incurred, and when he incurred those costs. Without such supporting proof, there is no way to determine whether plaintiff's claimed litigation costs were 'reasonably incurred' within the meaning of the relevant statute."
Though the two sides disagree about whether the 2007 FOIA amendments should apply retroactively, this issue is moot because even were the court to accept plaintiff's position that the 2007 FOIA amendments should have retroactive effect, OPM's declaration described that its release to plaintiff was "'due to a change in [its] policy,'" and that "substantially undermines any theory plaintiff might have that the filing of this lawsuit had a substantial causative effect on his ultimate receipt of the requested information." Because the court finds that plaintiff is ineligible for an award of costs, it need not consider his entitlement to such an award.
Shannahan v. IRS, No. 08-0452 (W.D. Wash. Feb. 11, 2010) (Robart, J.). "[T]he court finds that [plaintiff] has not submitted 'convincing evidence' that this FOIA action caused 'a voluntary or unilateral change in position by the agency.' Notably, [plaintiff] has not shown that the IRS changed its position regarding the Original Documents [i.e. original accounting and ledger records] in the course of this litigation, nor that the IRS released the Original Documents to [plaintiff]. Although the IRS may have cooperated with [plaintiff] in contacting the U.S. Attorney's Office regarding the Original Documents, it does not follow that the IRS's assistance in helping [plaintiff] request and obtain the Original Documents from another agency satisfies the catalyst theory of entitlement." Furthermore, even were he eligible, the court finds that plaintiff would not be entitled to an award of fees. Plaintiff "has shown no meaningful public benefit from disclosure. The Original Documents, in and of themselves, appear to have no public use. These documents are not intended for public dissemination, nor does [plaintiff] suggest that they will have any public effect if disclosed. The court is also not persuaded that this FOIA action vindicates the alleged public interest in promoting cooperation with governmental investigations." Additionally, "the court finds that disclosure of the Original Documents is reasonably likely to result in a commercial benefit to the Entities and that they hold a commercial interest in the documents." This assessment is based upon plaintiff's own declaration submitted to the court. Finally, "the court finds that the IRS's withholding of the records was reasonable." Defendant's "position that the Original Documents were not agency records is colorable in light of its contention that the Original Documents were not under its control at the time of [plaintiff's] FOIA request."
Harrison v. BOP, No. 07-1543, 2010 WL 374529 (D.D.C. Feb. 3, 2010) (Friedman, J.). Plaintiff is not entitled to attorney fees because he is not a prevailing party.
Sterrett v. Dep't of the Navy, No. 09-2083, 2010 U.S. Dist. LEXIS 4046 (S.D. Cal. Jan. 20, 2010) (Gonzalez, C.J.). "Plaintiff is not eligible for a fee award under the FOIA because she cannot show there was a voluntary or unilateral 'change in position' by Defendant." Plaintiff was initially provided with a redacted version of the investigative report, and she does not allege that defendant's redactions were improper. She was then later provided with an unredacted version of the report, and "it appears the decision to release the unredacted report to Plaintiff was not motivated by the filing of the lawsuit. Rather, as far back as June 2009, [defendant] indicated its willingness to release the report as soon as it was completed." Thus, plaintiff's "filing of the action was not 'a substantial causative effect on the delivery of the information,' and Plaintiff is not eligible for a fee award." Because plaintiff is not eligible for an award, the court "need not address whether Plaintiff is entitled to such an award."
Or. Natural Desert Ass'n v. Locke, No. 05-210, 2010 U.S. Dist. LEXIS 323 (D. Or. Jan. 5, 2010) (King, J.). It is not disputed that plaintiff is eligible for fees for work performed on Claim Four of its suit. However, the court finds that interpreting the Ninth Circuit's recent ruling in this case "compels a conclusion that when calculating attorney fees, the hours [plaintiff] spent on any claim other than successful Claim Four were not reasonable." Since plaintiff was only successful on one of its four claims, the court awards it one-fourth of the fees it seeks for time spent on its initial claims. As to plaintiff's appeal, plaintiff was successful in one aspect of its appeal, so it is eligible for an award of fees, though the amount suggest by plaintiff is hereby reduced by 60 percent. As to plaintiff's claim for a fee award for time spent on the remand of the instant case from the Ninth Circuit (on what is called "fees-on-fees work"), the court "did not accept [plaintiff's] argument in the litigation on remand, but... also refused defendants' request to award no fees." Plaintiff will be awarded one-fourth of the fees it seeks for work on this part of the case.
Hart v. HHS, No. 09-076, 2009 WL 5128872 (D. Ariz. Dec. 18, 2009) (Jorgenson, J.) (adoption of magistrate's recommendation). The court agrees with the magistrate’s finding that plaintiffs are not eligible for attorney fees under the FOIA. The court concludes that CMS’s "untimely response to Plaintiffs' request [was] due to administrative delay rather than in response to pending litigation" and that "Plaintiffs have failed to show that their lawsuit had a substantial causative effect on the production of the material."
Hussain v. DHS, No. 07-1633, 2009 WL 4884019 (D.D.C. Dec. 18, 2009) (Friedman, J.). "In light of the Court's conclusion that, at this stage, final judgment is not appropriate for either party, and because plaintiff has not articulated any need for an interim award of fees, the Court concludes that plaintiff's attorneys' fee motion is premature."
Potomac Navigation, Inc. v. U.S. Maritime Administration, No. 09-217, 2009 U.S. Dist. LEXIS 116673 (D. Md. Dec. 15, 2009) (Nickerson, J.). The issue of plaintiff's request for attorneys fees "is not ripe and will be addressed at a later stage in these proceedings."
Nkihtaqmikon v. Bureau of Indian Affairs, No. 05-188, 2009 WL 4441262 (D. Me. Dec. 2, 2009) (Woodcock, C.J.). The court grants NN's request for authorization to file a claim for attorney fees, but only for time spent on its efforts to force BIA "to unearth undisclosed documents buried within the agency." If BIA wishes to seek attorney fees with regard to other claims, it will need to "demonstrat[e] that it prevailed in this case on those additional legal services."
Thomas v. USDA, No. 08-534, 2009 WL 3839463 (N.D. Okla. Nov. 12, 2009) (Payne, J.). The court finds that plaintiff is not eligible for an award of fees because he did not obtain relief through the agreement he entered into with the defendants. Before plaintiff brought the instant suit, defendants had already offered to provide him with all of the documents at issue in the case, except for one document withheld pursuant to a FOIA exemption. Thus, plaintiff's suit did not cause any substantive change in the defendants' position. Furthermore, plaintiff failed to exhaust his administrative remedies prior to filing suit; awarding him fees would "reward Plaintiff's failure to comply with the required, statutory scheme set forth in the FOIA." Plaintiff can also not show that he is entitled to an award of fees. "There is no evidence presented that suggests the Plaintiff's retention of the documents at issue provided a benefit to the public or a commercial benefit to the Plaintiff. Further, there is no evidence to suggest that the Defendants improperly withheld any documents."
Coven v. OPM, No. 07-1831, 2009 WL 3174423 (D. Ariz. Sept. 29, 2009) (Broomfield, J.). As a pro se litigant, plaintiff is ineligible for an award of attorney fees. His motion for costs is denied without prejudice as premature because the court has yet to enter final judgment in this case.
Brayton v. Office of the U.S. Trade Representative, No. 08-0855, 2009 WL 3069668 (D.D.C. Sept. 28, 2009) (Urbina, J.). Plaintiff is not entitled to an award of fees because the agency's initial decision to withhold the responsive records had a sound legal basis. The agreement plaintiff requested was properly classified pursuant to Executive Order and was therefore properly withheld under Exemption 1. Despite plaintiff's claims to the contrary, the document constituted "foreign government information" inasmuch as international agreements provide that member states not release compensation agreements while negotiations were ongoing. Furthermore, defendant's classification authority "has sufficiently identified and articulated the harm that could have resulted from" disclosure of the proposed compensation agreement while it was being negotiated. Thus, defendant's eventual decision to disclose the agreement after negotiations were completed did not entitle plaintiff to a fees award.
Dasta v. Lappin, No. 08-1034, 2009 WL 3069681 (D.D.C. Sept.25, 2009) (Sullivan, J.). The court concludes that an award of costs is not merited in this case. BOP's disclosure of the requested information was delayed and BOP "does not explain the delay" thereby precluding the Court from determining whether "its actions were reasonable." The release of records appears to have been made "only after plaintiff filed this action" and plaintiff therefore has demonstrated that he "'obtained relief through... a voluntary or unilateral change in position by the agency." He fails, however, to establish that "his 'claim is not insubstantial.'" Plaintiff's "interest in and intended use of the information appears to be personal" and "[t]his is not a case where the public derives some benefit from plaintiff's claim or the BOP's release of the information plaintiff requested."
Barnard v. DHS, No. 06-1393, 2009 WL 2986443 (D.D.C. Sept.18, 2009) (Memorandum Opinion and Order) (Robinson, Mag.J.). Plaintiff was "not eligible for an award of attorneys' fees and costs because he did not 'substantially prevail'" under the terms of the attorney fee provision of the FOIA that antedated the OPEN Government amendments. The court finds that the "judicial order" which plaintiff cited as the basis for an award "was procedural in nature and did not change the relationship between the parties." Moreover, the court observes that "assuming, arguendo, that Plaintiff is eligible for an attorneys' fee award, Plaintiff is not entitled" to such an award due to the lack of public benefit derived from the release of the records, plaintiff's primarily personal interest in the documents, and the government's "colorable basis in the law for withholding the records" despite agency delays. The court further opines that even if plaintiff were eligible and entitled to fees and costs, the amount requested was unreasonable. "Plaintiff offer[ed] no authority in support of his application of a 'production factor to calculate his request'" and he "appear[ed] to include hours for legal work as to which he was not successful."
Talbot v. CIA, No. 07-277, 2009 WL 2970331 (D.D.C. Sept. 16, 2009) (Leon, J.). Plaintiff's motion for costs was denied. The court concludes that this case is governed by the older, more restrictive attorney fees standard that applied before the OPEN Government Act went into effect. Here, plaintiffs were not entitled to recover costs because one plaintiff "actually lost a judgement on the merits" and the other "filed the instant motion for voluntary dismissal without ever obtaining a judgment, or a consent decree, in his favor."
Jordan v. DOJ, No. 07-02303, 2009 WL 2913223 (D. Colo. Sept.8, 2009) (Blackburn, J.) (adopting magistrate's recommendation). The court denies plaintiff's request for litigation costs and fees. "As a preliminary matter, nonattorneypro se litigants are not entitled to receive an award of attorneys fees pursuant to 5 U.S.C. § 552(a)(4)(E)." Moreover, as to litigation costs, which may be awarded to such plaintiffs, "BOP's voluntary disclosures do not provide any significant public benefit," and there was no evidence of bad faith on the part of the agency. The court finds, "[o]n balance, . . . that the voluntary disclosure [made by the agency] was insubstantial and Plaintiff is not entitled to recover any litigation costs."
Browder v. Fairchild, No. 08-15, 2009 WL 2240388 (W.D. Ky. July 24, 2009) (Heyburn, J.). Plaintiff is not eligible for an award of fees because he has not shown that his claim was not insubstantial. "[T]he Court does not believe the lawsuit was necessary for Plaintiff to receive his requested information.... Nothing indicates that Plaintiff could not have achieved the same production of documents by explaining the situation via letter or other communication short of filing a lawsuit." Furthermore, pro se litigants such as plaintiff are generally not entitled to attorney fees. Additionally, "[t]he benefit to the public from this case is minimal. Plaintiff was not providing a service to anyone other than himself." Plaintiff had a personal interest in release of the documents, and was not motivated by the possibility of obtaining a fees award. "Finally, although Defendant does not seem to have any legal basis for withholding the information... [defendant's] "ministerial errors [in the processing of plaintiff's request] do not shift the balance of equities to justify awarding costs and fees."
Deininger&Wingfield, P.A. v. IRS, No. 08-00500, 2009 WL 2241569 (E.D. Ark. July 24, 2009) (Holmes, J.). This suit, which was filed in 2008, is governed by the "current version of the fee-shifting provision" of the FOIA. Utilizing the "catalyst theory" the court finds that "[t]he months of unexplained delays in fulfilling the request for documents followed by the IRS's relatively quick production of documents after [plaintiff] filed suit shows a causal connection between the filing of the complaint and the release of documents." Thus, plaintiff is eligible for attorney fees. "[H]owever, it is undisputed that when the documents were released, there was no information that directly and substantially benefitted the public." Plaintiff's interest in the documents is "mixed; it is partly commercial... partly scholarly, and partly for the public good that can be achieved by improving the IRS. As it turned out no good was accomplished when the documents were obtained," and so the second and third entitlement factors "do not weigh in favor of or against an award of attorneys' fees." The IRS did not establish a reasonable basis for its withholding of documents. It "never provided an explanation for the delays to its own self-imposed deadlines that lasted almost a year, and its excuse of administrative ineptitude falls short of a meaningful justification." In this case, "[c]onsideration of the four factors... does not yield a clear result." However, "[c]onsidering each factor independently, the Court concludes that the fourth factor justifies an award of fees here." Plaintiffs are ordered to submit an itemized request for the claimed fees.
Waage v. IRS, No. 08-2065 (S.D. Cal. July 15, 2009) (Huff, J.). Plaintiff did not obtain relief from the magistrate judge's order documenting the settlement of his FOIA claim. "While a judge may designate a magistrate judge to determine pretrial matters, conduct hearings and submit recommendations, magistrate judges may not rule on motions for injunctive relief or render summary judgment." However, plaintiff can claim to be a prevailing party under the catalyst theory because plaintiff's "initial request for information and administrative appeal were unsuccessful," but documents were released after litigation commenced. Plaintiff is not entitled to an attorney fee award. The documents he requested "are of personal concern only to Plaintiff and his law firm." Furthermore, plaintiff had a private, commercial interest in release of the records. Finally, plaintiff has not demonstrated that the IRS's initial decision to withhold records "lacked a reasonable legal basis." The fact that the IRS decided to release "previously withheld information in a voluntary settlement cannot establish that the initial withholding was baseless."
Judicial Watch, Inc. v. DHS, No. 08-2133, 2009 WL 1743757 (D.D.C. June 15, 2009) (magistrate's report and recommendation) (Robinson, Mag. J.). "Plaintiff is clearly eligible for an award of attorney's fees," as "[it] easily satisfies the requisite showing" under the OPEN Government Act. Defendant did not respond to -- or even acknowledge -- plaintiff's FOIA request until after plaintiff filed the instant claim, nor did it notify plaintiff that it sought an extension of time with which to respond. The court "finds Defendant's attempt to justify its delay in responding to Plaintiff's FOIA request wholly insufficient and inapposite to the mandates of the FOIA." As a result, "Plaintiff has met its requisite showing that 'the prosecution of the action [was] reasonably... regarded as necessary to obtain the [requested] information[.]" Plaintiff is also entitled to an award of fees. It has clearly shown a strong public interest in matters related to control of American borders, and that release of the requested records will "contribut[e] to the public forum and fund of information from which citizens may make political choices." Defendant has not challenged plaintiff's assertion that it has no commercial interest in the requested records, or that its interest in the records is in gathering and disseminating government information. Finally, defendant has not shown that its withholding of records was reasonable. The court does find, however, that plaintiff's claim for fees is excessive and must be reduced by twenty percent. Plaintiff is granted the $350.00 in litigation costs it seeks.
Ith v. U.S. Forest Serv., No. 08-0235, 2009 WL 1664495 (D. Alaska June 12, 2009) (Sedwick, J.). The Forest Service's failure to oppose plaintiff's motion for attorney fees is taken as an admission "'that the motion is well taken.'" Thus, the parties are ordered to confer on a fee award.
N.Y.C. Apparel F.Z.E. v. U.S. Customs & Border Prot. Bureau, No. 04-2105, 2009 WL 1464962 (D.D.C. May 27, 2009) (Walton, J.). The court reaffirms its prior ruling denying plaintiff's motion for attorney fees and holding that the new standard for fee awards established by the OPEN Government Act does not apply retroactively. The court is not persuaded by two rulings to the contrary, including one from this District. "[T]here is no equity in compelling the defendant to suffer the unforeseeable penalty of attorney's fees based on its voluntary decision to reinitiate its search for documents responsive to the plaintiff's original request." In order for the attorney fees provision to apply retroactively, "there must be 'clear congressional intent'" that it be read this way in light of the general rule that statutory provisions that operate as waivers of sovereign immunity must be read narrowly.
Short v. U.S. Army Corps of Eng'rs, No. 07-2260, 2009 WL 1315984 (D.D.C. May 13, 2009) (Collyer, J.). Regardless of whether the OPEN Government Act (OGA) amendments to the FOIA apply retroactively, plaintiff is not eligible for an award of attorney fees. Prior to the filing of his suit, defendant had indicated that it would grant plaintiff's request. "Thus, because the Corps had already decided to release the requested records prior to [plaintiff's] filing of this lawsuit, the suit was not the cause of the disclosure." Plaintiff's suit cannot be said to have caused defendant to "'change its position,'" as required by the OGA. Furthermore, "[plaintiff's] request . . . was for his own commercial benefit," thus "[e]ven if [plaintiff] were deemed to have substantially prevailed in this action, his request for fees and costs would be denied because the equitable factors weigh against such an award."
Information Network For Responsible Mining (INFORM) v. Bureau of Land Mgmt., No. 06-02269, 2009 WL 1162551 (D. Colo. Apr. 28, 2009) (Kane, J.). Plaintiff may submit a separate request for fees and costs after BLM has complied with the court's orders on further searches and a revised Vaughn index.
Hernandez v. U.S. Customs & Border Protect. Agency, No. 10-4602, 2012 U.S. Dist. LEXIS 14290 (E.D. La. Feb. 7, 2012) (Barbier,J.). Holding: Awarding attorneys' fees and costs to plaintiff in the amount of $51,526.60; and declining to refer the matter to the Office of Special Counsel where CBP's conduct in responding to plaintiff's FOIA request did not rise to the level of arbitrary and capricious. The court awards plaintiff attorneys' fees and litigation costs in the amount of $51,526.60. Elgibility: In terms of plaintiff's eligibility for attorneys' fees, the court finds that "even accepting [CBP's argument] that Plaintiff has not 'substantially prevailed' on the basis of the catalyst theory," plaintiff's is eligible for attorneys' fees based on the court's order which granted his motion for partial summary judgment. Moreover, the court comments that "even if it is true that [CBP's] decision to perform the searches that uncovered the[ ] records was voluntary [as defendant asserts], the same cannot be said for its decision to disclose them." The court finds that many of the documents identified by plaintiff were withheld in full and "[o]nly after the Court granted Plaintiff's motion for partial summary judgment, over Defendant's objections, were any of these documents released to Plaintiff." The court determines that "[t]his order altered the legal relationship of the parties in Plaintiff's favor, which is all that is required to establish his eligibility for a fee award under FOIA" and it is on this basis that the court finds that plaintiff demonstrated that he has "substantially prevailed."
Entitlement: In terms of the entitlement factors, the court finds that the public benefit derived from this litigation weighs in favor of a fee award where "Plaintiff has used the records disclosed as a result of this case to increase public awareness of [immigration enforcement issues and the plight of immigrant workers], as well as to facilitate public oversight of CBP's enforcement of federal immigration law in the New Orleans area, both as it related to his own [deportation] case and in general." As to the commercial benefit to plaintiff, the court finds that as "an immigrant day laborer with essentially no monetary resources," who is "represented by a public interest organization that performs substantial advocacy work in the day laborer community," "[a]n award of fees in this case would appear to enhance Congress's goal that agency decisions should receive judicial review even when the requestor cannot afford to pay the costs of bringing a lawsuit." The court also finds that nature of the plaintiff's interest in the records sought favors an award, noting that while plaintiff's interest in the records as they relate to his deportation case is personal, it "also implicates the strong public interest in preserving the administration of justice in our nation's immigration courts." Moreover, the court finds that "Plaintiff's request was not solely self-motivated; he also sought information in order to raise awareness of issues of public import from which other individuals could benefit." The court notes that although "it is true, as Defendant suggests, that some courts have recognized that an award of attorneys' fees is generally inappropriate when a litigant utilizes FOIA as a means of obtaining earlier access to information for use in other pending litigation," this case involves a deportation proceeding for which "no formal discovery [is] available to a respondent" and "FOIA is essentially the only means available for an individual to obtain information for use in a deportation proceeding." As to the fourth factor, i.e., the government's basis for withholding the records sought, the court finds that while "the Court agrees that Defendant's conduct after the commencement of this action was not particularly unreasonable," "this fails to account for Defendant's wholesale disregard of Plaintiff's FOIA request prior to the time that suit was filed." The court notes that "[h]ere, Defendant offers no explanation for its failure to respond to Plaintiff's initial request or to his follow-up communications," and concludes that this factor also "weighs in favor of a fee award."
Reasonableness of requested attorney's fees: The court uses the lodestar method to calculate the fee award. In terms of the reasonableness of the hours spent by plaintiff's attorneys, the court determines that "the billing records kept by counsel in this case are sufficiently clear and detailed in order to allow for adequate review, and that the hours expended are reasonable" and finds that there is "no basis to conclude that any of the work for which compensation is requested was excessive, duplicative, or otherwise unnecessary." In terms of the hourly rates of each participating attorney, the court reduces the rates based on its review of recent case law within the district from $350 an hour for one attorney to $300 and from $200 to $180 per hour for another. The court notes that using the revised figures yields "an aggregate total of $48,909.00," which is presumptively reasonable. The court then considers the factors enumerated by the Fifth Circuit in Johnson v. Georgia Highway Express in order to determine whether adjustment of the lodestar amount is warranted. Reviewing fee awards in FOIA litigation outside the district, the court "is sufficiently satisfied that the fee award in this case is not disproportionate to those awarded in other similar cases." Lastly, the court awards plaintiff litigation costs consisting of deposition transcription costs, and filing fees.