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Am. Bird Conservancy v. U.S. Fish and Wildlife Serv., No. 13-723, 2015 WL 3622459 (E.D. Va. June 9, 2015) (Ellis, III, J.)


Am. Bird Conservancy v. U.S. Fish and Wildlife Serv., No. 13-723, 2015 WL 3622459 (E.D. Va. June 9, 2015) (Ellis, III, J.)

Re: Requests for records concerning mortality of certain birds and bats

Disposition: Granting plaintiff's motion for attorney fees and costs; awarding plaintiff $103,491.60 in attorney's fees and $2,579 in costs, for total amount of $106,070.60

  • Attorney Fees, Eligibility:  The court holds that "three sets of document releases render plaintiff eligible to recover attorney's fees in this case."  First, the court notes that "[t]he parties do not dispute that plaintiff is eligible for an attorney's fees award, given that plaintiff obtained relief through a 'judicial order,' . . .[b]ut the parties sharply dispute the extent of that eligibility."  Regarding two releases, the court finds that "defendants have . . . proffered . . . legitimate reason[s] for the timing of [these] document release[s] that [are] unrelated to plaintiff's initiation of this lawsuit."  Specifically, the court points to the conclusion of "defendants' internal review [which] began before the lawsuit was filed," and finds that "the timeline and nature [of] defendants' investigatory process provides a legitimate explanation for the timing of the document release."  However, regarding one additional release, the court finds that "[t]he timing of this document release, in conjunction with the fact that plaintiff's summary judgment response specifically attacked the withholding of documents on Exemption 7(A) grounds, corroborates plaintiff's contention that plaintiff's summary judgment filing was the cause of [this] . . . release."  As to one final "document release, [the court finds that] defendants do not offer any explanation as to why those documents were released, and it is uncontroverted that these documents were released while defendants were complying with the Orders directing them to submit documents for in camera review."  The court finds that "it is [therefore] reasonable to conclude that plaintiff's lawsuit was also a cause of this document release."
  • Attorney Fees, Entitlement:  The court holds that "all four factors in the entitlement calculus point persuasively to the conclusion that plaintiff is entitled to an attorney's fees award."  Regarding the first factor, the court finds that plaintiff "has not only identified general policies implicated by the documents released which bear on matters of public interest, but also has identified specific documents that further those interests, including documents . . . that show that government officials may have been aware of violations of a federal statute—the Federal Advisory Committee Act."  Regarding the second and third factors, the court finds that "[i]t is undisputed that plaintiff is a non-profit organization, as opposed to a corporate entity, and that plaintiff's FOIA requests were submitted solely to further its non-profit goals."  Regarding the fourth factor, the court finds that "[a]bsent further support for defendants' conclusory assertion that Exemption 7(A) applied to the documents at issue, defendants' withholding of [certain] documents cannot be said to have had a reasonable basis in law, especially considering the timing of the release, which occurred a mere three weeks after plaintiff filed its summary judgment memoranda challenging these specific documents that were the subject of plaintiff's FOIA request submitted over two years earlier."
  • Attorney Fees, Calculations:  The court first decides that "plaintiff's attorney's fee petition must be considered in its entirety, and the size of plaintiff's attorney's fee award is not limited to litigation efforts specifically tied to" "the releases that were clearly caused by plaintiff's litigation efforts."  "And this includes time spent preparing the present fee petition, as it is 'well-settled that reasonable time and expenses preparing a fee petition are compensable.'"  The court then applies the "lodestar analysis," first calculating "[t[he prevailing market rate of attorney's fees" in FOIA matters.  The court then reduces plaintiff's claimed hours after finding that "[a] number of plaintiff's submitted time entries in this case contain vague task descriptions that prevent a reliable determination of whether the hours expended on these tasks were reasonable."  "In addition, a number of plaintiff's time entries 'lump' several tasks together under a single entry without adequately documenting the time spent on each task."  The court then finds that, "[a]pplying the relevant reductions to plaintiff's submitted hourly rates and the claimed hours, the adjusted figure of attorney's fees that plaintiff is reasonably entitled to is [$]103,491.60."  Finally, the court finds that "because defendants do not object to any of items that plaintiff is seeking costs for, plaintiff is entitled to recover $2,579 in costs."
Court Decision Topic(s)
District Court opinions
Attorney Fees
Updated January 12, 2022