Bloomgarden v. DOJ, No. 12-0843, 2017 WL 2303503 (D.D.C. May 25, 2017) (Huvelle, J.)

Bloomgarden v. DOJ, No. 12-0843, 2017 WL 2303503 (D.D.C. May 25, 2017) (Huvelle, J.)

Re:  Request for disciplinary file of former Assistant United States Attorney in United States Attorney's Office for the Eastern District of New York

Disposition:  Granting in part and denying in part plaintiff's motion for attorney fees and costs; awarding plaintiff $45,518.23 in fees and costs

• Attorney Fees, Entitlement:  "[E]ven though the first three factors do not favor an award of fees, the Court finds that plaintiff is entitled to recover a portion of his attorney's fees, given the government's obdurate behavior that unnecessarily prolonged this litigation."  First, the court notes that "plaintiff contends, and the government agrees, that he is eligible for fees under the first prong of the attorney-fee inquiry."  Turning to the entitlement analysis, regarding the first factor, the court first finds that "plaintiff's success is not 'likely to add to the fund of public information that citizens may use in making vital political choices[]'" because "the records here implicated a single, low-level prosecutor, not widespread or high-level corruption in the government."  Regarding the second and third factors, the court finds that "[w]hile it is true that plaintiff did not seek to gain a commercial benefit through his FOIA suit, he sought to further his personal interest by trying to use the requested documents to collaterally attack his conviction in California state court."  However, regarding the fourth factor, the court holds that "[w]hile the government was correct in its withholding of a number of documents, this litigation was plagued by the government's obdurate and recalcitrant behavior."  The court explains that "[t]he government initially refused to release any documents, including public documents[,]" "the government['s] first attempt[] to create a Vaughn index . . . was 'woefully inadequate,'" and "the government neglected its duty to produce any reasonably segregable materials from documents otherwise protected from disclosure, requiring the Court to order it to do so."
   
• Attorney Fees, Calculations:  The court awards plaintiff "$43,617.00 in fees and $1,901.23 in costs, for a total recovery of $45,518.23."  First, the court agrees with defendant that "because [the] Court found that the government's initial search for the documents was reasonable and therefore granted the government's motion for summary judgment, plaintiff is not entitled to any fees until he began litigating the release of the file."  Second, "while the government's proposal of awarding 20% of plaintiff's fees during this time period would understate the degree of plaintiff's success and would almost amount to a free pass for the government's obdurate behavior, plaintiff's proposed award significantly overstates his success, especially given the fact that the documents that were properly withheld were of far greater importance than the thousands of pages that were produced."  "For the aforementioned reasons, after reducing the award by 70% (33% for limited success, 33% for duplicative efforts, and 4% for improper billing techniques), the Court will award 30% of plaintiff's attorney's fees incurred [during the first part of the litigation of the release of the file]."  Third, "the Court will not award fees for legal work performed after ["the Court found that [defendant] had properly withheld the remaining documents"], except for time spent preparing the present Motion for Attorney's Fees."  Finally, "the Court will award 30% of plaintiff's 'fees on fees[]'" request because "[t]he Court notes that the hours expended on the fee petition are overstated by the duplication of efforts that justified a uniform reduction of plaintiff's other fees."