Elec. Privacy Info. Ctr. v. FBI, No. 12-667, 2015 WL 737101 (D.D.C. Feb. 20, 2015) (Kollar-Kotelly, J.)
Re: Request for records concerning cell-site simulator or "'StingRay'" technology
Disposition: Modifying and adopting Magistrate Judge's Report and Recommendation; awarding plaintiff total of $29,635 in attorney fees and costs, $20,109.50 in attorney fees and $350 in costs for litigating underlying FOIA action, and $9,175.50 as fees-on-fees award
- Attorney Fees, Eligibility & Entitlement: First, the court notes that "the FBI did not dispute [plaintiff's] argument that it is eligible for attorney's fees" and "finds the reasoning in the Report and Recommendation on the issue of eligibility to be sound and, accordingly, adopts the recommendation." Second, the court notes that "[t]he FBI does not make any new arguments regarding [plaintiff's] entitlement to attorney's fees," "agrees with the reasoning of the Report and Recommendation as to this issue," and "adopts the reasoning of the Report and Recommendation that the first three entitlement factors weigh in favor of [plaintiff] and the final factor is neutral and finds that [plaintiff] is entitled to attorney's fees and costs."
- Attorney Fees, Calculations: The court holds that "[plaintiff] shall be awarded its requested attorney's fees and costs for litigating the merits of this FOIA action with only a reduction in the fees request attributable to time spent preparing and filing the Complaint and the Joint Proposed Schedule." The court explains that, "[h]aving reviewed the hours [plaintiff] spent preparing and filing the Complaint as set forth in [plaintiff's] case billing record, . . . the Court agrees it is appropriate to reduce the fee award attributable to the preparation and filing of the Complaint." "The Complaint drafted by [plaintiff] is a straightforward . . . complaint . . . [and] the Court . . . finds it unreasonable for [plaintiff] to bill 18.4 hours–more than two full days of work–over three different attorneys for the preparation and filing of this Complaint." "The Court . . . agrees that the time [plaintiff’s] attorneys spent reviewing documents released by the FBI in response to this FOIA litigation should be included in [plaintiff's] attorney's fees award." "The Report and Recommendation is correct that, to the extent an attorney spends time reviewing released documents for a purpose unrelated to the FOIA litigation, for example, to report on the released documents to the media or to assimilate the information contained in the documents and use that information to facilitate a non-litigation related mission, fees should not be awarded for that time." "However, to the extent that the released documents are being reviewed to evaluate the sufficiency of the release or the propriety of a specific withholding so that the attorney can then challenge the release or withholding, such document review time is properly included in a FOIA attorney's fees award." Therefore, "the Court finds that [plaintiff's] attorneys' review of released documents was directly related to the ongoing FOIA litigation, specifically, challenging the sufficiency of the FBI's document release and the propriety of the FBI's withholdings."
Additionally, "[t]he Court agrees with the FBI that [plaintiff's] fees-on-fees request, which is over $1,000 greater than the $20,459.50 in attorney's fees and costs the Court is awarding [plaintiff] for litigating the underlying FOIA action, is excessive." "First, the Court finds that awarding [plaintiff] attorney's fees for preparing its Opposition to the FBI's Objections to the Report and Recommendation would effectively be a 'fees-on-fees-on-fees' award because [plaintiff's] Opposition only addresses its request for a fees-on-fees award." "Such a 'fees-on-fees-on-fees' award is too attenuated from original adjudication to be compensable." "Accordingly, the Court reduces [plaintiff's] requested fees-on-fees award by $3,420–the amount [plaintiff] billed for preparing its Opposition to the FBI's Objections." However, "[t]he Court shall award [plaintiff] fees-on-fees for its fee-related legal work prior to the filing of its Motion for Attorney's Fees, and for its work preparing the initial Motion for Attorney's Fees and its supporting Reply."