Elec. Privacy Info. Ctr. v. NSA, No. 10-196, 2015 WL 1570060 (D.D.C. Apr. 8, 2015) (Howell, J.)

Elec. Privacy Info. Ctr. v. NSA, No. 10-196, 2015 WL 1570060 (D.D.C. Apr. 8, 2015) (Howell, J.)

Re: Request for National Presidential Security Directive (“NPSD”) 54, which sets forth government's cybersecurity polices

Disposition: Granting in part and denying in part plaintiff's motion for attorney fees and costs; awarding plaintiff $31,180.00 in attorney fees and costs

• Attorney Fees, Eligibility:  The court holds that "plaintiff is a prevailing party eligible for attorneys' fees."  The court finds that "the portion of [a previous case] setting out the legal basis for the defendant's withholding of NSPD 54—i.e., that NSPD 54 was not an agency record subject to FOIA—was vacated at the joint request of the plaintiff and defendant."  Also, the court finds that "even if the defendant were correct and [the previous case] did show that the agency was correct to withhold NSPD 54 as a matter of law, such a finding would not affect the plaintiff's eligibility for a fee award; it would affect the plaintiff's entitlement for such an award."
   
• Attorney Fees, Entitlement:  First, the court notes that "plaintiff seeks $21,987.01 for fees and costs incurred in the pursuit of NSPD 54 on or before January 27, 2014, the date on which the defendant extended the Offer of Judgment that the plaintiff ultimately accepted."  The court finds that "plaintiff's request for any fees and costs incurred prior to the January Judgment are more properly considered under District of Columbia contract law, as part of a legal settlement."  "[The] Court finds that the plaintiff settled 'all claims ... for all costs, including attorney's fees, incurred in this action,' . . . and the plaintiff cannot, therefore, recover attorneys' fees beyond the amount contemplated in the January Judgment for the period prior to January 27, 2014."

Regarding the period after January 27, 2014, the court holds that "[s]ince all four Tax Analyst factors favor the plaintiff, the plaintiff is entitled to a fee award."  Regarding the first factor, the court finds that "NPSD 54, and its information regarding national cybersecurity procedures, is 'likely to add to the fund of public information' by providing additional information to citizens regarding their government's activities, which is the fundamental purpose of FOIA."  Regarding the second and third factors, the court finds that "defendant cites to no authority for the proposition that a non-profit organization's success at obtaining the release of documents should be held against it when that same organization mentions such success indirectly in its fundraising appeals."  Regarding the fourth factor, the court finds that defendant's position was "not correct as a matter of law."  The court explains that "in vacating [the previous case] prior to a decision from the D.C. Circuit, the defendant and plaintiff agreed to erase any determination as to the propriety of the defendant's withholding."  "In effect, the parties returned to the status quo ante, when no Court had considered whether the defendant's grounds for withholding NSPD 54 were justified."  Also, "the plaintiff correctly points out that the defendant did not assert the rationale on which [the previous case] found that NSPD 54 need not be released: that it was not an agency record subject to the FOIA."  "In other words, the basis for the withholding in [the previous case] as to NSPD 54 was never asserted as the 'Government's position' at all and, consequently, the 'Government's position' was never found to be correct as a matter of law."  Additionally, the court explains that "the position the defendant did assert was not correct as a matter of law."  Despite not addressing this in the previous case, the court notes that, "[f]ortunately, in the intervening period between [the previous case] and today, another Judge in this District did address the position raised by the defendant in this matter—that presidential directives are exempt from disclosure under the FOIA's Exemption 5—on the merits" and "set forth detailed reasons why the defendant's position that presidential directives were protected by the presidential communications privilege was not correct as a matter of law and such directives were not subject to FOIA's Exemption 5." 

• Attorney Fees, Calculations:  The court first rejects "defendant['s] alleg[ation] that the plaintiff's compilation of its billing records into a single document violates the requirement that the plaintiff submit 'contemporaneous time records'" and finds that "plaintiff has met its burden, through the submission of affidavits, declarations, and billing records, of establishing the reasonableness of the fees requested."  Second, the court declines to review defendant's allegation concerning staffing levels.  Last, the court takes issue with plaintiff's "practice of extending and then withdrawing settlement offers" and finds that this practice "subverts the purpose of Rule 68 and the local rules, which are designed to encourage settlement."  "Moreover, it would appear that the plaintiff's actions were designed to give the appearance of progress in negotiations to the Court, thereby forestalling the setting of a briefing schedule and prolonging this litigation."  "Consequently, the Court will disallow all fees sought after the abrupt withdrawal of the plaintiff's first settlement offer."