Los Padres ForestWatch v. U.S. Forest Serv., No. 22-3702, 2025 WL 925376 (D.D.C. Mar. 18, 2025) (Moss, J.)

Los Padres ForestWatch v. U.S. Forest Serv., No. 22-3702, 2025 WL 925376 (D.D.C. Mar. 18, 2025) (Moss, J.)

Re:  Requests for records concerning proposal to clear vegetation and wildlife habitat across more than 235,000 acres in California

Disposition:  Granting in part and denying in part plaintiff’s motion for attorney fees; awarding plaintiff $41,452.06 in fees and $452.22 in costs

• Attorney Fees, Eligibility:  “[T]he Court finds that [plaintiff’s] initiation of this litigation and its subsequent efforts ‘substantially caused . . . [the] release’ of the records contained in the May 25 production.”  “[Plaintiff] is therefore eligible for attorney’s fees.”  The court relates that “[plaintiff] contends that its decision to file suit and to challenge the agency’s responses under the FOIA resulted in ‘three significant productions[]’ . . . .”  “Although the Court is skeptical that [two of the] productions – which released three pages that had previously had portions redacted – were ‘significant productions,’ the Court agrees with [plaintiff] that its lawsuit caused the May 25 production, which resulted in the release of 289 pages and 542.44 MB of GIS data.”  “[T]he Assistant Director of FOIA within the [United States Forest Service (“USFS”)], attests that the May 25 production is attributable to the efforts of a USFS analyst . . . who reviewed the Los Padres staff’s search efforts and discovered that one of the custodians had failed properly to search her email to identify responsive materials.”  “The USFS asserts in response that ‘Plaintiff offers no reason to believe that it obtained any pages through the supplemental search that it would not have received through an administrative appeal of the Forest Service’s initial response.’”  “But in the absence of any evidentiary showing to the contrary (and, notably, the USFS offers no evidence in support of its position), the natural conclusion to draw from the evidence that is before the Court is that it was the litigation that prompted the USFS to assign [the analyst] to the case and that [the analyst’s] litigation-based efforts were the but-for cause of the May 25 production.”      “There is no reason to believe that Plaintiff had the means to identify the omission on its own, nor is there reason to believe that the agency would have discovered the omission in the course of an administrative appeal, without the added scrutiny that comes with litigation.”
   
• Attorney Fees, Entitlement:  The court holds that, “[h]ere, it is undisputed that Factors 2 and 3 weigh in favor of the award of fees, and the Court is persuaded that Factors 1 and 4 weigh modestly in opposing directions.”  “Although perhaps a closer question than presented by many attorney’s fees cases, the Court is persuaded that [plaintiff] is entitled to an award of attorney’s fees.”  “As an initial matter, the USFS does not dispute that Factors 2 and 3 weigh in favor of entitlement.”      “Those factors, which consider ‘the commercial benefit to the plaintiff and the nature of the plaintiff’s interests in the records requested ... [,]“are closely related and often considered together.”’”  “Here, the Court finds – and the USFS does not dispute – that Plaintiff did not seek the records at issue for any commercial or private benefit and that it was acting in the public interest.”  “As explained in the declaration of . . . [plaintiff’s] Executive Director . . . , ‘[plaintiff] is a nonprofit organization[,] dedicated to the protection of wildlife, wilderness, water, and sustained access throughout the Los Padres National Forest and the Carrizo Plain National Monument.’”  “It filed the FOIA requests at issue ‘to obtain information about a project announced by the U.S. Forest Service . . . that would clear vegetation and wildlife habitat across more than 235,000 acres . . . of Los Padres National Forest’ and, thereby, ‘to carry out its public interest mission.’”
  
  “The USFS does, however, dispute Factor 1.”  “Under that factor, the Court must assess public benefit by determining whether the lawsuit ‘is likely to add to the fund of information that citizens may use in making vital political choices.’”  “[B]oth parties make the mistake of focusing their arguments ex-post on the benefits or lack thereof of the records released.”  “The central question . . . is whether – at the time [plaintiff] filed suit . . . – its efforts were likely to yield information that was of interest to the public.”  “[T]he organization sought the documents to assist the public in weighing in on the proposed program.”  “But the organization’s complaint acknowledges that the comment period for the project closed on September 27, 2022, . . . two days before the organization submitted its second FOIA request.”  “And by the time the organization filed suit on December 12, 2022 – which is the point in time that matters the most for this inquiry - the comment period on the project had closed.”  “Any documents released as a result of this suit therefore could not help the public weigh in on the Los Padres National Park project.”  “Although the timing of the litigation undercuts any suggestion that [plaintiff’s] efforts furthered the public interest by facilitating participation in the initial comment period, it is a mistake to treat the public interest as coterminous with that administrative process.” “As further explained in [its] declaration, [plaintiff] is engaged in a long-term effort to ‘carry out informed campaigns to protect the Los Padres National Forest,’ . . . and to engage in ‘outreach and public education efforts,’ . . . and ‘to foster public oversight of government agencies that manage public lands and wildlife[]’ . . . .” “Obtaining the type of information sought in [plaintiff’s] FOIA requests serves that broader public interest.” “Nor is the Court persuaded that [plaintiff] had already received the information of public interest before it filed suit.”  “To be sure, by the time that [plaintiff] filed suit, it had already received thousands of other pages responsive to its request in full . . . .”  “But missing were the contractual records that it had requested, along with almost 300 documents and 542.55 MB of GIS data.” However, the court finds that “[a]lthough the [plaintiff’s] lawsuit furthered the public interest in these respects, it is important not to overstate that benefit.” “As noted above, the public comment period closed just two days after [plaintiff] brought suit, and the public interest served by obtaining technical contracting materials is arguably ‘limited given the particularized nature of the released information’ sought.” “For these reasons, the Court finds that the first factor weighs in [plaintiff’s] favor, but only modestly so.”
  
  “[T]he Court finds that Factor 4 tips modestly against [plaintiff].”  “To be sure, the USFS did not meet the statutory deadline, and [defendant’s] initial search was inadequate.”  “But the agency, nonetheless, moved with reasonable dispatch, released thousands of pages of responsive records, and found and corrected [plaintiff’s] error promptly and on the agency’s own accord.”  “Overall, the USFS’s efforts, although imperfect, were not unreasonable.”
   
• Attorney Fees, Calculations:  The court relates that “[plaintiff] seeks attorney’s fees and costs in the amount of $148,401.98.”  “[Defendant] does not dispute that the adjusted Fitzpatrick Matrix provides a reasonable benchmark for billing rates in FOIA cases, like this one.”  “But it does challenge [defendant’s] application of the matrix, arguing that the organization used the wrong billing rates under the matrix . . . .”  The court finds that “the agency . . . is mistaken.”  “Although the USFS offers little insight regarding its reasoning, as far as the Court can discern, the agency simply miscounted and applied the rates for lawyers with one year less experience than [the attorneys here] actually had.”
  
  Further, “[a]s an initial matter, the Court notes that the USFS understates the extent of [plaintiff’s] success.”  “For the reasons explained above, it is inaccurate to assert that, ‘[a]t most,’ ‘[plaintiff] [succeeded] in lift[ing] redactions on two of the 3,724 pages produced in this case.’”  “Nor is it fair to assert that [plaintiff] ‘did not succeed on any of the three counts listed in its Complaint,’ . . . since – among other things – the litigation promoted the USFS to take a harder look at its pre-litigation efforts and to locate almost 300 additional documents and 542.55 MBs of GIS data.”  “That result constitutes at least partial success on Count Two of [plaintiff’s] complaint, which challenged the adequacy of the search.” “The Court agrees, however, that [plaintiff’s] victory was limited and that, in any event, [plaintiff’s] request for $11,258.20 (representing 24 hours of attorney time) for preparing and filing the complaint is excessive.”  “Preparing a FOIA complaint is not a complicated or labor-intensive process; a typical complaint need allege only that the plaintiff filed a FOIA request, exhausted administrative remedies or waited the required period of time, and did not receive a satisfactory response from the agency.”  “Nor does the preparation of a FOIA complaint require the experience of a senior lawyer.”  “And, here, there is no reason to believe that [plaintiff’s] decision to prepare a ‘speaking complaint’ that was 26-pages long contributed in any way to the organization’s success.”  “[T]he Court concludes that a twenty-five-percent reduction is warranted (in addition to [plaintiff’s] voluntary reduction).”  “[Plaintiff] also seeks $3,131.40 for work related to a letter sent on April 23, 2023 regarding the adequacy of Defendant’s searches and withholdings.”  “Here, the USFS’s arguments are not without force.”  “To be sure, the letter did prompt the agency to reconsider its position with respect to ‘a single page from a record previously released in part.’” “But the agency rejected most of [plaintiff’s] arguments in the letter.”  “In light of this limited victory, the Court concludes that a twenty-five-percent reduction is warranted and will, accordingly, reduce the amount at issue.”
  
  Next, “[t]he USFS first urges the Court to reduce [plaintiff’s] fees for time ‘related to work on status reports.’” “The Court agrees.”  “Most of the status reports were less than a page in length and followed a similar script.”  “The USFS also argues that the Court should eliminate all fees attributed to ‘time spent . . . conferring,’ . . . which amounts to $12,225.”  “The Court is mindful that its role is not to ‘scrutinize every billing entry,’ . . . but the Court must, nonetheless, ensure that the fees requested are not excessive.”  “With that in mind, the Court agrees that $12,225 in fees for these conferences – in a relatively straightforward FOIA case that did not require any substantive motions practice – is excessive.”  “Finally, the USFS targets the $798.60 fee demand for ‘[u]pdat[ing] FOIA research,’ as vague, generic, and unclear as to its relevance to the litigation.”  “The Court agrees that this entry is vague and provides no meaningful information regarding the time.”
  
  “The USFS also challenges [plaintiff’s] fee demand of $3,652.20 for time spent reviewing documents and records, which the agency contends seeks compensation for time spent on an activity that counsel would have undertaken even if the agency had ‘released the responsive records prior to’ the filing of the complaint.”  “Although decisions from this Court have disagreed as to whether a party should be able to recover for time spent reviewing records released in the case . . . here, the Court is convinced that Plaintiff’s review of the relevant records was reasonably related to the cost of litigation and, accordingly, will not reduce the fee demand.”
  
  Additionally, “and most significantly, the USFS urges the Court to ‘eliminate entirely the $44,693 that Plaintiff seeks to recover for fees on fees related to preparing its motion for attorneys’ fees,’ . . . or, at the very least to discount that fee award by ‘at least half, to align the “fees on fees” with the same proportion that Plaintiff’s fee demand allocates to its litigation of the merits of this case[]’ . . . .”  “Because [plaintiff] also seeks fees of $45,467.76 for preparing its reply brief and fees of $23,396.60 for time spent in the unsuccessful settlement negotiations regarding the fee request, the amount at issue is enormous.”  “[Plaintiff] seeks $113,557.36 in fees-on-fees – in a case in which the organization’s entire fee request amounts to $147,949.79.”  “In other words, over seventy-five percent of the fees sought are fees-on-fees.”  “Here, the request for fees-on-fees is many times greater than the fees sought for the merits portion of the litigation.”  “As the Supreme Court has stressed, ‘[a] request for attorney’s fees should not result in a second major litigation,’ . . . yet that is what has happened here.”  “Or perhaps more accurately put, this is a case in which a minor litigation on the merits has turned into a major litigation on fees.”  “That, of course, is not entirely [plaintiff’s] fault.” “The USFS, for its part, filed a 34-page opposition, accompanied by a declaration, multiple exhibits, and a line-by-line ‘Fee Index,’ most of which required some response by [plaintiff].” “But the need to address the USFS’s opposition brief does not fully justify [plaintiff’s] extraordinarily large fees-on-fees request or, more importantly, the gross disproportionality between the time spent litigating the merits of the case and the time spent on the follow-on fee litigation.”  “Indeed, although the most substantial deficiencies raised in the USFS’s opposition brief relate to the reasonableness of [plaintiff’s] fee request, the organization barely touches on those issues in its reply brief.”  “The Court, accordingly, agrees with the USFS that [plaintiff’s] fees-on-fees demand must be substantially reduced.”  “Although the Court might in the ordinary course reduce a fees-on-fees request, like this one, to fifty or seventy-five percent of the plaintiff’s fees-on-the-merits request, the Court will limit its reduction in this case, given the agency’s own decision to treat the fees litigation as an entirely new and wide-ranging battleground.”  “The Court will, accordingly, reduce [plaintiff’s] request for fees-on-fees to an amount equal to the amount the Court will award for the merits . . . .”
  
  “Finally, the USFS argues that the Court should ‘eliminate entirely the $23,396.60 in fees’ sought for ‘unsuccessful settlement negotiations[]’ . . . .”  “To be sure, the parties’ settlement discussions did not bear fruit.”  “But Plaintiff has prevailed, to some extent, by ‘obtaining fees here,’ and ‘courts should not discourage parties from attempting to settle fees issues before requiring their intervention.’”  “Moreover, to the extent the time spent on the settlement discussions helped boost [plaintiff’s] fees-on-fees request to over $113,000, the Court has already addressed that concern by reducing the fees-on-fees award to be proportional to the merits award.”
  
  “Combining the merits award and the fees-on-fees award, the total fees award amounts to $41,452.06.”  “Adding in $452.22 in costs, the total award is $41,904.28.”