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Env't Def. Fund v. EPA, No. 17-02220, 2022 WL 136792 (D.D.C. Jan. 13, 2022) (Mehta, J.)


Env't Def. Fund v. EPA, No. 17-02220, 2022 WL 136792 (D.D.C. Jan. 13, 2022) (Mehta, J.)

Re:  Request for records concerning "(1) ethics matters involving then-EPA Administrator Scott Pruitt, (2) the agency's public communications about certain scientific research, and (3) the schedules of the Administrator and senior managers"

Disposition:  Granting plaintiff's motion for attorney's fees and costs

  • Attorney Fees:  The court finds that plaintiff "is both eligible for and entitled to fees—albeit in an adjusted amount."  "The court first considers whether [plaintiff] is eligible for fees because it 'obtained relief' through a 'judicial order.'"  "First, the court's order setting a processing schedule and requiring the agency to conduct searches and make rolling productions gave [plaintiff] some of 'the precise relief [its] complaint sought.'"  "Second, the court's order changed the legal relationship between the parties."  "EPA counters that this does not count as a 'judicial order' in the relevant sense because, unlike the cases [plaintiff] cites in support of its argument, the court here did not establish dates certain by which the agency was required to produce documents."  The court finds that "[its] order may not have formally 'set any deadlines,' . . . yet it functionally required EPA to conduct searches, process all responsive documents, and begin to produce documents on a rolling basis, meeting certain benchmarks."  "Because of the court's order, the completion of production—although admittedly not mandated by a date certain—accelerated, and the agency was obligated to work at a court-designated rate."  The court determined that "[plaintiff] therefore substantially prevailed in obtaining relief."

    "[Plaintiff] argues that it also substantially prevailed under [the catalyst] theory, a position that EPA contests."  "Again, the court agrees with [plaintiff] that, in the alternative, it prevails under the catalyst theory."  "EPA points to an 'unprecedented' increase in FOIA requests and other 'exceptional circumstances' as the cause for its failure to begin processing documents before the litigation started" and that it "[engaged in] due diligence on its part: EPA communicated with [plaintiff] numerous times about its three requests before the suit was filed, requested clarification of its requests, and even produced records responsive to two of the three FOIA requests before the initiation of the lawsuit."  The court finds that "[w]hile EPA may have engaged in some communication with [plaintiff] as to its three requests before the filing of this lawsuit, its communications were nonsubstantive in nature, they were sporadic, and they cut off completely before [plaintiff] filed this action."  The court further notes that "[i]f EPA's pre-lawsuit communications to [plaintiff] here qualified as 'due diligence' for purposes of the catalyst inquiry, then an agency could always avoid paying fees by providing occasional nonsubstantive updates without ever rendering a determination on a FOIA request, offering any indication whether it will process the request, or generating any responsive records."  "It was only after the litigation commenced that EPA finally indicated it would process and produce responsive records."  "That is a change in position by the agency, and it was catalyzed by the commencement of the lawsuit."      

    The court holds that "[plaintiff] is entitled to fees."  "EPA does not contest the first three factors."  "It focuses exclusively on the fourth, which EPA presents as a 'superfactor' of sorts."  "The court acknowledges the administrative burdens EPA faced, but those burdens do not justify the withholding."  The court notes that "EPA's conduct before the start of this litigation evinces listlessness, not reasonableness."  "It is therefore the type of conduct Congress thought warranted an award of attorney's fees."  "The fourth factor therefore does not support EPA's position, and even if it were neutral, the other three factors would outweigh it."  The court relates that "[t]he records obtained by [plaintiff] through this action promote transparency and public oversight of agency matters of public importance" and "[a]s to the second and third factors, [plaintiff] derived little to no commercial benefit, and it had no other private incentive to obtain the records."    

    "[T]he court declines to grant [plaintiff] the full amount it seeks but does not reduce the award by as much as EPA requests."  "The court agrees that [plaintiff] has not met its burden of showing that the LSI Matrix rates are reasonable for this case."  "[Plaintiff] must demonstrate that this particular case qualifies as complex federal litigation."  The court finds that "[i]t has failed to do so."  "The second way a plaintiff can justify application of the LSI Matrix is by providing evidence that 'litigators who brought . . . cases under the same statute received the same fees.'"  "[Plaintiff] has not adequately made this showing."  The court determines that "[it] will instead use the rates set forth in the so-called USAO Matrix."

    "EPA asserts that the fees [plaintiff] seeks are excessive, in part because it 'seeks time spent on unnecessary and nonproductive tasks' and its 'time records reflect excessive amounts of time spent on tasks that should take an attorney little to minimal time.'"  "The court finds that some billing-record entries remain that reflect 'excessive amounts of time spent' or 'unnecessary and nonproductive tasks' and adjusts the hours for which [plaintiff] will receive compensation . . . ."  "EPA also attacks as unreasonable counsel's time spent on summary judgment briefing and mediation."  "The completed summary judgment briefing narrowed the issues for successful resolution in mediation and so contributed to [plaintiff]'s overall success on the merits."  "The court agrees with EPA, however, that the hours spent on summary judgment are excessive."  "As for the hours spent preparing for mediation, EPA casts the approximately 23 hours counsel spent related to mediation that 'did not resolve the fee issues' as excessive."  [The court agrees that] "the time devoted to the mediation appears excessive."

    "Finally, EPA urges denial of [plaintiff]'s request for 'fees on fees.'"  "The court has reviewed counsel for [plaintiff]'s billing records for the fees phase of the litigation and does not find any of the claimed hours unreasonable."                
Court Decision Topic(s)
District Court opinions
Attorney Fees
Updated January 25, 2022