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McMichael v. DOJ, No. 18-997, 2022 WL 4597885 (D. Del. Sept. 30, 2022) (Burke, Mag. J.)


McMichael v. DOJ, No. 18-997, 2022 WL 4597885 (D. Del. Sept. 30, 2022) (Burke, Mag. J.)

Re:  Granting in part and denying in part plaintiff’s motion for attorney fees and costs; awarding plaintiff’s $58,823.28 in attorney fees and $509.56 in costs

Disposition:  Request for records concerning the theft of jewels belonging to Royal Family of Hesse at end of World War II

  • Attorney Fees, Eligibility:  The court relates that “this prong is not at issue, as Defendant does not dispute Plaintiff’s eligibility for a fee award.”
  • Attorney Fees, Entitlement:  The court holds that “it is clear that Plaintiff is ‘entitled’ to . . . an award.”  First, the court holds that “the public benefit factor favors an award of attorney’s fees and costs.”  The court explains that “[t]here seems to be no dispute that the Hesse jewel theft was a significant historical event.”  “Thus, this subject matter is surely not simply of ‘private concern.’”  “And although the Court need only assess the potential public value of the information Plaintiff sought via the FOIA, here the information he actually received seems as if it will be of real public benefit.”  “Those materials will help shed new light (thanks to Plaintiff’s forthcoming book) on, inter alia, how the FBI investigated a very high-profile theft event.”  “This will in turn inform the public about:  (1) the investigatory steps the FBI did (and did not) take; (2) the methods the FBI used to gather information; and (3) whether or not the FBI’s efforts were ultimately successful (and why).”  “Nor is it disqualifying that the Hesse jewel theft and the FBI’s investigation occurred a long time ago.”

    Next, “[i]n the Court’s view, factors two and three should favor Plaintiff’s request for fees and costs, at least to some degree.”  “Here, the record (including the evidence of Plaintiff’s lengthy history of reporting on this type of subject matter) suggests that the FOIA requests were primarily motivated by a scholarly interest in uncovering facts of significant public interest – and not by a desire for pecuniary gain.”  “As such, any financial interest that Plaintiff has in the future book should not dominate the Court’s consideration as to these two factors.”

    Finally, the court notes that, “[i]n this case, there is no record indicating that the FBI ultimately withheld any of the requested records on legal grounds (such as via an argument that the documents were exempt from disclosure).”  “Instead, Plaintiff asserts that after he filed his requests at issue, he ‘suffered delays by the FBI in making an agency determination on his FOIA request’ – and that it is these delays that ‘favor a fee award under [this] factor.’”  “[T]he Court concludes that:  (1) Plaintiff was the victim of a lengthy delay in the processing of his original FOIA request; and (2) Defendant has not credibly invoked any statutory basis to justify that delay.”  “Thus, the government has not met its burden to set out a reasonable or colorable basis in law for withholding the requested records for as long as they did.”
  • Attorney Fees, Calculations:  The court holds that “[h]ere, Plaintiff has provided the Court with detailed billing records that describe the tasks performed by each attorney, the date on which the task was performed and the amount of hours spent performing the task.”  “The records are well organized and sufficiently detailed, such that the Court is able to assess the reasonableness question.”  “Plaintiff’s hourly rates for each of its six attorneys in question are based on the prevailing market rates in the Philadelphia area for counsel with corresponding years of experience.”  “Defendant has not objected to these hourly rates.”  “The Court has also reviewed the descriptions of the work performed by each of the attorneys at issue.”  “On an initial review, the records all appear to demonstrate that the hours billed were for work performed on this matter, and that the nature of that work was reasonable for litigation of this type.”  “[T]he Court will reduce the amount requested” to account for “internal correspondence between co-counsel.”  The court explains that “all of the time [at issue] relates to communications that would not have been needed if only one attorney from the firm were performing the particular task at hand.”  “And so it seems likely that at least some of these charges could have been avoided, without any loss of efficiency, if only one attorney (not two) had been involved in the task.”  However, the court rejects defendant’s argument that “it was unreasonable for Plaintiff to bill . . . for ‘reviewing releases’” because “Plaintiff's counsel has asserted that the review of disclosed documents was necessary for them to know whether Defendant fully complied with their requests and whether further litigation was necessary.”  Finally, the court finds that “Defendant makes no specific argument as to why any of the ‘fees on fees’-related expenses that Plaintiff seeks are excessive or unwarranted.”
Court Decision Topic(s)
District Court opinions
Attorney Fees
Updated November 14, 2022