Citizens for Responsibility and Ethics in Washington v. DOJ, No. 12-1491, 2015 WL 6529371 (D.D.C. Oct. 27, 2015) (Bates, J.)

Citizens for Responsibility and Ethics in Washington v. DOJ, No. 12-1491, 2015 WL 6529371 (D.D.C. Oct. 27, 2015) (Bates, J.)

Re: Request for records concerning criminal investigation of former senator

Disposition: Granting plaintiff's motion for attorney fees; awarding plaintiff $32,865.19 in attorney fees

• Attorney Fees, Entitlement:  The court holds that "all four factors weigh in favor of [plaintiff] as to the second round of briefing, and [plaintiff] is entitled to attorneys’ fees as to those costs."  The court first notes that, "[a]s both parties agree that [plaintiff] is statutorily eligible for attorneys' fees, . . . the Court need only address [plaintiff's] entitlement to fees."  The court then notes that "[t]he government does not attempt to refute [plaintiff's] argument that the first three factors weigh in [plaintiff's] favor–but the Court would agree as to the disposition of those factors in any event."  The court finds that "[plaintiff] is a nonprofit organization 'dedicated to promoting ethics and accountability in government and public life.'"  Additionally, the court finds that "[plaintiff] prevails [when considering the fourth factor] as well."  The court finds that "the agency had no 'reasonable basis in law' for seeking to produce sample indices before processing [plaintiff's] request."
   
• Attorney Fees, Calculations:  "[T]he Court will apply the USAO Laffey Matrix to set the relevant reasonable hourly rates, and will multiply those rates by 82% of the hours [plaintiff] billed in the underlying FOIA litigation."  "The Court will similarly reduce the 'fees on fees' awarded for the litigation of this attorneys’ fees motion, as [plaintiff] 'prevailed' only to that extent."  "Because [plaintiff] prevailed not at all on the portion of its fees motion seeking the LSI matrix the Court will decline to award fees for that part of the briefing."  "This results in a total fee award of $32,865.19."

Specifically, the court finds that, "while the Court is dismayed by [plaintiff's] submission [which makes use of 15 minute increments], it is nonetheless able to 'make an independent determination whether or not the hours claimed are justified.'"  Therefore, "a reduction is not warranted on this basis alone."  The court also takes note of "[plaintiff's] failure to provide contemporaneous timekeeping records."  The court finds that "the very ambiguity in [plaintiff's declarant's] affidavit demonstrates that she has not fully met her burden."  "The problem could be ameliorated, of course, by a clearer explanation of how the daily time sheets work, and whether they are indeed a contemporaneous record–no large burden on the affiant."  "But [plaintiff's declarant's] silence on these topics does not carry [plaintiff's] burden."  Moreover, "[plaintiff's] failure to disclose all of its records is troubling" especially because "the single page [plaintiff] did provide reveals discrepancies between the hours entered on the electronic timesheet and those reported in the billing summary presented to this Court."  "To offset [this] uncertainty–and [plaintiff's] resulting failure to satisfy its burden–a fee reduction is appropriate."  However, "[t]he Court declines the government’s invitation to deny all fees–a sanction 'to be reserved for only the most severe of situations, and appropriately invoked only in very limited circumstances.'"  The court relates that "the government also attacks several line items in [plaintiff's] billing summary as unnecessary expenses."  However, "the Court considers [plaintiff's] review of the Vaughn indices to be a reasonable 'litigation cost' that merits recovery."

Regarding the hourly rate, the court finds that, "[i]n the absence of evidence from [plaintiff] satisfying its burden to establish that the LSI Matrix represents the prevailing rate in the relevant market, the USAO Matrix will be used."  The court explains that "fee seekers are not constrained to seek only those rates reflected by an updated Laffey Matrix where there is sufficient evidence to support a finding that a different fee is the prevailing rate in the D.C. market for attorneys with similar qualifications doing similar work."  "Of course, it would be preferable to avoid such an ad hoc approach in favor of a standardized model–as the Laffey Matrix attempts to provide."  "But its current usefulness is undermined somewhat by the challenge of accurately updating for inflation."  "Given the deficiencies in both the LSI and USAO matrices for such inflation-based updating, this might be an appropriate time for an up-to-date, comprehensive Laffey-inspired survey of the local legal market, one that presumably would not ignore size of firm as a relevant factor."  "Until that happens, however, the best available approach is to employ the original Laffey Matrix updated for inflation–and based on the record here, that means employing the USAO Matrix not the LSI."