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Hall & Assocs. v. EPA, No. 15-1055, 2024 WL 4024551 (D.D.C. Sept. 3, 2024) (Cobb, J.)

Date

Hall & Assocs. v. EPA, No. 15-1055, 2024 WL 4024551 (D.D.C. Sept. 3, 2024) (Cobb, J.)

Re:  Request for records concerning EPA’s position on national applicability of Eighth Circuit decision in Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013)

Disposition:  Granting in part and denying in part plaintiff’s motion for attorney fees and costs; awarding plaintiff $132,566.51 in attorney fees and $18,566.81 in costs

  • Attorney Fees, Eligibility:  The court relates that “[t]he Parties do not dispute that [plaintiff] has substantially prevailed in this litigation and is therefore eligible for fees.”  “The Court agrees that [plaintiff] is eligible, by way of both ‘judicial order’ and the EPA’s ‘voluntary or unilateral change in position.’”  “[The] Court’s March 31, 2018 Order granted relief to [plaintiff] by requiring the disclosure of two documents in full and two other documents in part, which the EPA acknowledges is ‘sufficient to make Plaintiff eligible for attorney’s fees.’” “Additionally, the record reflects, and the EPA does not seem to dispute, that this litigation substantially caused the Agency to release the documents it originally withheld.”
     
  • Attorney Fees, Entitlement:  “[T]he Court finds that [plaintiff] is entitled to recover reasonable expenses it incurred litigating this matter.”  First, “[t]he Court finds that [plaintiff’s] request had potential public value.” “When a federal agency has its policies vacated by a federal court, regulated entities have an interest in understanding how their legal obligations may change.”  “When the regulated entities are local government agencies and the legal obligations relate to essential services for the community, there is public interest in having clear information about how these entities must discharge their public-facing duties.”  “Here, [plaintiff] sought information relevant to EPA’s stance on the ‘national applicability’ of the Eighth Circuit’s ruling in Iowa League, a federal court of appeals decision that invalidated two EPA rules governing how local water treatment facilities can and cannot operate.”  “Because a change in law governing municipalities’ water treatment operations had the potential to cause major sanitary, environmental, and economic consequences for communities nationwide, information about if, how, and where those consequences would indeed be felt was a matter of concern to the public writ large.”  “The EPA argues that the disclosed documents do not ‘shed[ ] light on the working law of the Agency’ nor ‘add to the fund of information that citizens may use in making vital political choices’ either because ‘these documents are drafts,’ they contain ‘merely factual and historical information,’ or they pertain only to ‘highly particularized interactions’ within the EPA.”  “But, as stated above, the public-benefit inquiry focuses on the potential value of the information sought when considering the request ex ante, not whether the disclosed documents in fact revealed what the requester hoped they would.”

    The court next finds that, regarding the second and third factors, “[plaintiff] had a private, commercial interest in its FOIA request and subsequent litigation.” “[Plaintiff] is a private law firm ‘whose primary purpose is to serve as a regulatory consultant and/or special counsel to municipal and private entities regarding environmental matters.’” “By [plaintiff’s] own admission, [plaintiff] submitted its FOIA request to ‘assist [its] clients . . . in the resolution of ongoing regulatory, [the Clean Water Act’s National Pollution Discharge Elimination System (NPDES)][,] and enforcement disputes involving the use of blending,’ including ‘litigation [that] was pending . . . when the instant FOIA request was filed.’”  “That statement alone indicates that [plaintiff’s] FOIA request served to both (1) further its private, pecuniary interests as a for-profit, professional services firm by enhancing its ability to counsel its clients and (2) help [plaintiff] represent its clients in other pending litigation.”  “As a court in this District has found in similar circumstances, the purpose of [plaintiff’s] request was ‘both commercial and private.’”

    Regarding the fourth factor, the court relates that “[t]he EPA, both in its initial FOIA response and throughout this litigation, invoked FOIA Exemption 5 to justify its full or partial withholding of nine documents.”  The court finds that “[t]he EPA had at least a reasonable basis in law to assert the attorney–client privilege over the information it withheld under that exemption.” “[The] Court previously stated, without directly ruling on the issue, that it ‘believe[d] that the attorney–client privilege clearly applies to’ [certain documents].”  “The Court is inclined to reaffirm its prior statement since these documents include some communications between EPA employees and EPA attorneys discussing legal issues in a context that suggests an expectation of confidentiality.”  “However, because the EPA asserted the attorney-client privilege over only a subset of the documents withheld, the inquiry cannot end there.”  “Turning to the central dispute in this case, the Court will now assess whether the EPA was reasonable in asserting the deliberative-process privilege over all disputed documents.”  “The Court acknowledges that the EPA acted reasonably insofar as the documents appear ‘deliberative’ in nature.”  “These intra-agency communications arguably reflect ‘draft documents’ consisting of the ‘personal opinions of the writer,’ . . . intended ‘to facilitate or assist development of the agency’s final position,’ . . . .” “But this does not resolve the ‘crucial’ question of whether these documents were generated before the EPA made its nonacquiescence decision, . . . and thus whether it was reasonable for the EPA to withhold all of them as ‘predecisional.’”  “In its initial FOIA response, and through several years of litigation, the EPA argued that no nonacquiescence decision had ever been made, which rendered every document regarding the agency’s national approach to Iowa League predecisional.”  “The EPA’s claims were found to be ‘bald contention[s]’ that ‘d[id] not follow from the record.’”  “Indeed, the D.C. Circuit’s basis for the vacatur of [the] Court’s prior decision was that ‘the summary judgment record le[ft] materially disputed and unanswered when exactly th[e] [nonacquiescence] decision was made.’”  “So, if the documents at issue appear deliberative, and the question of whether the documents are predecisional remains ‘materially disputed,’ then it would seem unfair to say that the EPA did not have even a ‘colorable basis in law’ to assert the deliberative-process privilege.”  “In other words, the lack of clarity in the record favors the EPA by leaving open the possibility (without allowing for a definitive ruling) that its assertion of the deliberative-process privilege was ‘correct as a matter of law.’”  “At the same time, the Court is not convinced that the EPA should fully benefit from the fact that this timing issue remains ‘materially disputed and unanswered,’ . . . in large part because it was the EPA’s persistent use of an overbroad and unsupported legal defense that helped create this obscurity in the record.” “While the Court (still) does not believe that the EPA acted in bad faith, . . . the Court does believe that the EPA’s insistence on its ‘no decision rendered’ defense ‘needlessly complicated and prolonged this litigation[]’ . . . .”  “Without a doubt, the question of when the EPA ‘made’ or ‘adopted’ its nonacquiescence decision is complicated.”  “Yet no one – not this Court, the Court of Appeals, [plaintiff], nor (eventually) the EPA – believed that ‘never’ was on the menu.”  “And although the equivocal record of this case could support a finding that most of the documents withheld really were ‘predecisional,’ it would be unjust to afford the EPA the full benefit of an ambiguity to which the Agency’s own erroneous legal position contributed, especially given the ‘asymmetrical distribution of knowledge’ in FOIA cases whereby ‘the agency alone possesses, reviews, discloses, and withholds the subject matter of the request.’” “Cognizant of the possibility that the EPA was correct to withhold all but one of its documents under Exemption 5, but also mindful that part of the reason this cannot be confirmed is due to the EPA’s years of clinging to an erroneous legal defense, the Court finds that factor four weighs in favor of awarding fees, even if only slightly.”

    “On balance, [plaintiff] is entitled to fees.” “First, factors one through three tend to nullify each other.”  “Regarding factor four, the EPA was reasonable in a subset of its withholdings, but its reliance on a somewhat inscrutable defense that unnecessarily complicated this litigation slightly tips this factor in favor of [plaintiff].” “Considering the four entitlement factors and the circumstances of this case holistically, the Court finds that fees are warranted.”
     
  • Attorney Fees, Calculations: The court awards plaintiff $132,531.51 in attorney fees and $18,566.81 in costs.  First, “[t]he Court concludes that the appropriate rates for purposes of calculating [plaintiff’s] award are those in the United States Attorney’s Office (USAO) Matrix, which reflects the market rates for legal services in the District of Columbia according to ‘data for all types of lawyers . . . from the entire metropolitan area.’”  “The Court declines to adopt the EPA’s suggestion to ‘use Plaintiff’s purported actual billing rate.’”  “To be sure, [plaintiff] requests rates higher than those it typically charges its clients, . . . but the firm also asserts that it charges lower-than-market rates because it ‘predominately represents not-for-profit municipalities across the country, many of which have limited fiscal resources.’”  “The EPA does not respond to [plaintiff’s] contention that its lower rates are ‘public spirited,’ and this Court finds no reason to discredit [plaintiff] on this point.”  “The Court also will not, despite [plaintiff’s] request, apply the LSI Laffey Matrix.”  “Even if the Court agreed with [plaintiff] that this federal litigation was complex, which would suggest that the LSI Laffey Matrix should apply, . . . the Court finds that [plaintiff] has not provided sufficient evidence to establish that its attorneys possess the ‘comparable skill, experience, and reputation’ of the specialists who command higher rates for such matters in Washington, D.C. . . . .”

    Second, regarding the reasonableness of the hours expended, the court finds that “[t]his litigation suffered from more than ‘some small forms of inefficiencies.’”  “First, while the Court is sympathetic to the notion that even unsuccessful motions may contribute to a litigant’s ultimate victory, the number of denied or withdrawn motions filed by [plaintiff] throughout this litigation is relevant to the Court’s consideration.”  “The Court is unwilling to compensate [plaintiff] for these activities.” “Second, the Court agrees with the EPA that [plaintiff’s] billing sheet reflects a large degree of overstaffing and questionable resource allocation.”  “Finally, the Court finds that [plaintiff] has not demonstrated that the thousands of hours spent on this litigation were all reasonably necessary.” “[Plaintiff] proposes, without elaboration or supporting evidence, that a 10% reduction may be reasonable, . . . but the Court finds that a far greater reduction is warranted given the extent of [plaintiff’s] overreach.”  “Given the remarkable number of hours [plaintiff] expended, the Court will exclude from consideration the hours [plaintiff] spent on its ‘Attorney Fee Reply.’” “The Court will then reduce the remaining hours proportionate to the pre-fees reduction of hours (i.e., by 85%).”  Additionally, “the Court finds that a 60% reduction across the board reasonably and proportionally accounts for any inefficiencies, unsuccessful motions, or excessive hours billed, among the other factors articulated above, and that an additional 25% reduction is sufficient to remind [plaintiff] (and other fee requesters) to file fee requests more thoughtfully.”
Court Decision Topic(s)
District Court opinions
Attorney Fees
Updated October 16, 2024