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Court of Appeals Decisions

Von Grabe v. DHS, No. 10-15002, 2011 WL 2565246 (11th Cir. June 29, 2011) (per curiam). Holding: Affirming the district court's decision that plaintiff was not entitled to litigation costs. The Eleventh Circuit affirms the decision of the district court that plaintiff "was not entitled to recover his costs because he had not substantially prevailed in his lawsuit." The Eleventh Circuit notes that plaintiff "failed to contact the proper FOIA office [as required by the agency's regulations] with his request; [and] moreover, DHS had never refused to proved the requested document."

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.

Pietrangelo v. U.S. Army, No. 07-3124, 2009 WL 1580183 (2d Cir. June 4, 2009) (unpublished disposition) (summary order). "[T]he District Court did not abuse its discretion in concluding that Pietrangelo was not entitled to litigation costs."

District Court Decisions

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.

Prater v. DOJ, No. 11-1873, 2012 U.S. Dist. LEXIS 138818 (D.D.C. Sept. 27, 2012) (Collyer, J.). Holding: Holding that DOJ is entitled to judgment after it re-releases a document plaintiff alleges he did not receive; denying plaintiff's request for costs. The court directs DOJ to re-release a copy of a document plaintiff alleges he did not receive, and finds that after that release DOJ will be entitled to summary judgment. With respect to costs, the plaintiff has not made any argument that the release of the records will "likely add to the fund of information that citizens may use in making vital political choices.'" The court notes that "an award of costs is 'usually inappropriate' when, as here, agency records are sought for personal reasons."

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."

Judicial Watch, Inc. v. DOJ, No. 10-851, 2012 WL 2989945 (D.D.C. July 23, 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.

The court awards $350 in costs to plaintiff, an amount which was not contested by DOJ.

Kretchmar v. FBI, No. 11-1181, 2012 U.S. Dist. LEXIS 102962 (D.D.C. July 25, 2012) (Bates,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly asserted Exemptions 6 & 7(C) and that it conducted an adequate search, which was not disputed by plaintiff; declining to conduct an in camera review; and denying plaintiff's request for litigation costs. Despite the fact that defendant only disputes plaintiff's entitlement to costs, the court denies plaintiff's request for litigation costs on the basis that he is neither eligible nor entitled to them "because the balance of [the litigation cost] factors overwhelming favors the government." The court holds that "plaintiff's claim should not succeed because: (1) the requested records pertain only to plaintiff; (2) plaintiff has not asserted, let alone shown how the public would benefit from this case; (3) the government's initial position was at most the result of careless review of plaintiff's FOIA request at the administrative level; and (4) the government's subsequent release of responsive records came reasonably soon after the filing of the instant complaint and without a court order."

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."

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.

Pinson v. Lappin, No. 10-1844, 2011 WL 3806160 (D.D.C. Aug. 30, 2011) (Howell,J.). Holding: Granting defendant's motion for summary judgment on the basis of its withholdings under Exemption 6; denying plaintiff's claim for declaratory relief; and granting plaintiff's motion for an award of costs. The court grants plaintiff's motion for an award of costs incurred in litigating the instant action, consisting of his postage, copying fees, and partial court filing fee. First, the court finds that "[p]laintiff is eligible for an award of costs because the BOP released the requested records after the filing of and in response to plaintiff's civil complaint." Next, the court considers the four entitlement factors. With respect to the first factor, i.e., "'the public benefit derived from the case,'" the court finds that "[r]elease of lists of names and job titles of BOP staff does not obviously accomplish" either of plaintiff's stated goals of demonstrating gender discrimination or corruption in BOP's procurement process. However, the court notes that "it does not appear that an award of fees, or costs in this instance 'would merely subsidize a matter of [plaintiff's] private concern' or curiosity." As to the second and third factors – the commercial benefit and the nature of plaintiff's interest in the records, "[t]he Court accepts plaintiff's representations that he derives no commercial benefit and that his interest is in writing articles based in part on information obtained from the BOP." With regard to the final factor, which looks to the reasonableness of BOP's withholdings, the court finds that "BOP's response to plaintiff was not reasonable under the circumstances" where it "initially denied plaintiff's FOIA request based upon a mistaken belief that there 'was no method to query a BOP data system,'" only released the information subsequent to the filing of the instant lawsuit, and "relied on two FOIA exemptions to redact information, even though plaintiff had not even requested the redacted information so it was not responsive in the first place." Accordingly, the court determines that "[p]laintiff is entitled to an award equal to his monetary expenditures related to this case to date."

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 Laffey matrix 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."

Margolin v. NASA, No. 09-421, 2011 U.S. Dist. LEXIS 59651 (D. Nev. June 3, 2011) (Hicks,J.). Holding: Deferring plaintiff's motion for litigation costs pending submission of additional information showing costs incurred prior to supplemental release by agency; and denying plaintiff's request for litigation costs related to court's summary judgment ruling because plaintiff did not substantially prevail in that context. The court concludes, "to the extent [that plaintiff] seeks costs based on the court's summary judgment ruling, . . [he] did not substantially prevail." The court upheld NASA's determinations with respect to "virtually every document." "The fact that the court ordered release [of one, ultimately, non-responsive document] does not alter this conclusion." The court finds that "even though [plaintiff] obtained an order partially in his favor, the relief he obtained was nominal and had little relation to the relief he sought through this lawsuit – namely, the disclosure of documents related to his administrative claim for patent infringement." Additionally, even if plaintiff were eligible for costs, the court determines that he is not entitled to such relief because "disclosure of the document provides little, if any, public benefit, [because] the document was non-responsive to [plaintiff's] FOIA request and lawsuit, and in retrospect the government had a reasonable and legitimate basis for withholding [it]."

However, the court finds that plaintiff is eligible for some litigation costs as a result of supplemental releases made by NASA in litigation. The court finds that plaintiff "did substantially prevail to the extent that the filing of this lawsuit prompted a voluntary or unilateral change in position by the agency." The court notes that "[i]f not for [plaintiff's] lawsuit, NASA would have rested upon its final decision denying [plaintiff's] administrative appeal of the agency's initial FOIA response." Moreover, "[t]he court further finds that [plaintiff] is entitled to at least some portion of costs incurred prior to November 5, 2009, when NASA made its supplemental disclosures." In terms of the entitlement factors, the court finds that although "[t]he public benefit from disclosure may be small," plaintiff "seems to have had little, if any, commercial benefit resulting from disclosure." Instead, plaintiff's interest "was predominantly personal, and that interest was substantial." Lastly, the court notes that "NASA's initial withholding of the records it later voluntarily disclosed was not based on any asserted reasonable basis in law," but rather its "failure to conduct a thorough search for records responsive to [plaintiff's] request." The court rules that plaintiff "is not entitled to costs of litigation after November 5, 2009, when NASA made its supplemental disclosures."

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.

Von Grabe v. DHS, No. 09-2162, 2010 WL 3516491 (M.D. Fla. Sept. 3, 2010) (Presnell, J.). Litigation costs: Plaintiff cannot recover medical expenses allegedly incurred as a result of the delayed release of the requested document because the "FOIA does not provide for an award of 'damages.'" With respect to plaintiff's request for litigation costs, the court concludes that his "claim is not substantial" because "he never sent a request to the proper office, as identified in DHS's regulations" and so failed to exhaust his administrative remedies. Additionally, the court notes that "[t]here is no evidence of DHS declaring that it would not provide the document."

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.

Uhuru v. U.S. Parole Comm'n, No. 09-0566, 2010 WL 3377710 (D.D.C. Aug. 24, 2010) (Leon, J.). Litigation considerations/award of costs: The court concludes that plaintiff is not entitled to costs from USPC because he has not substantially prevailed under the FOIA. The court reasons that "[b]ecause the USPC released the requested records after plaintiff filed his lawsuit, its actions reasonably can be considered 'a voluntary or unilateral change in position by the agency.'" The court then considered whether plaintiff's claim was "insubstantial." The court first determines that since the requested records pertain to plaintiff's parole hearing, "it appears that the public derives no benefit from this case and that the plaintiff derives no commercial benefit." However, the court finds that notwithstanding its delay in responding, "USPC did not withhold records in this case." Based on the foregoing factors, "[t]he Court concludes that plaintiff's claim is insubstantial." Lastly, the court further notes that "to the extent that plaintiff demands an award of costs as a sanction for the USPC's delay in responding to this FOIA request, the FOIA does not recognize such a claim, . . . and plaintiff is not entitled to costs as a remedy for the USPC's untimeliness."

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."

White v. Lappin, No. 08-1376, 2010 WL 2947355 (D.D.C. July 29, 2010) (Roberts, J.). Litigation considerations/award of costs: The court concludes that plaintiff is not eligible for or entitled to an award for costs "to cover the portion of the filing fee he has paid, and typewriter ribbon and copy fees" where he "cannot show that the BOP voluntarily or unilaterally changed its position because of the lawsuit." Here, BOP demonstrated that it had "no record" of receiving a request from plaintiff at the time that he filed his complaint and, accordingly, it would have had "no reason to search or produce records [or] . . . to [otherwise] respond." Moreover, the court determines that an award of costs is not warranted by the factors enumerated by the D.C. Circuit in Davy v. CIA. "Although plaintiff derives no commercial benefit from these records, it does not appear that the public benefits in any way from their release." The court also notes that once BOP received notice of the request, it "acted promptly" to release certain records to him at no charge and also "promptly provided him 'the opportunity to view all of [his] medical x-ray films'" and "made arrangements for copying the films and sending them to the physician of plaintiff's choice."

Nulankeyutmonen Nkihtaqmikon 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."

Robinson v. BOP, No. 09-1443, 2010 WL 1558683 (N.D. Ohio Apr. 19, 2010) (Adams, J.). Plaintiff's request for costs is denied, as it is clear that his lawsuit "did not have a causative effect upon the release of information," since all responsive records were provided to him before he filed his complaint.

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."

Elkins v. FAA, No. 08-1073, 2010 WL 23319 (D. Or. Jan 4, 2010) (King, J.) (adoption of magistrate's Findings and Recommendation). Plaintiff has not challenged defendant's claim that he is not a prevailing party. Therefore, plaintiff is not entitled to costs.

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.

Dasta v. Lappin, No. 08-1034, 2009 WL 3069681 (D.D.C. Sept. 25, 2009) (Sullivan, J.). Planitiff is not entitled to an award of costs incurred in pursuing his case because he has not shown that “his ‘claim is not insubstantial.’ . . . Plaintiff’s interest in and intended use of the information appears to be personal. This is not a case where the public derives some benefit from plaintiff’s claim or the BOP’s release of the information plaintiff requested.”

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."

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."

Sliney v. BOP, No. 07-1425, 2009 WL 1703234 (D.D.C. June 18, 2009) (Friedman, J.). Plaintiff is not entitled to an award of costs because his claim is insubstantial. BOP's initial refusal to release the tapes to plaintiff was reasonable because BOP had not received advance payment from plaintiff.

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.

Browder v. Fairchild, No. 08-P15, 2009 WL 1158669 (W.D. Ky. Apr. 28, 2009) (Heyburn, J.). Plaintiff is ordered to file a brief with the court setting out his costs and an argument for why the court should order reimbursement of these costs. Defendant will then be ordered to file a response, either agreeing to reimbursement or detailing its reasons for objecting.

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