Mich. Immigrant Rts. Ctr. v. DHS, No. 16-14192, 2021 WL 855468 (E.D. Mich. Mar. 8, 2021) (Goldsmith, J.)

Mich. Immigrant Rts. Ctr. v. DHS, No. 16-14192, 2021 WL 855468 (E.D. Mich. Mar. 8, 2021) (Goldsmith, J.)

Re:  Request for records concerning policies and practices in performing searches and seizures in Michigan

Disposition:  Granting in part plaintiffs' motion for attorney fees

• Attorney Fees, Eligibility:  The court finds that plaintiff is eligible for attorney fees.  The court finds that "[t]he chain of events illustrates that the present action was the catalyst for Defendants' production of documents, given that Defendants did not begin production in earnest until Plaintiffs filed suit."  "With Defendants failing to make any additional productions [to a limited initial response] or otherwise respond to the pending FOIA requests over the following ten months, Plaintiffs filed suit . . . ."  "Even after Plaintiffs filed suit, Defendants' productions were, at best, lackadaisical."  "From March 2017 through May 2017 – 14 months after the first production and nearly two years after the first FOIA request was made – Defendants produced a limited number of documents . . . ."  "However, Defendants produced no further documents, let alone in any systematic fashion, until the Court entered the order setting an accelerated production schedule . . . over a year later."  "Given the protracted amount of time that passed without receiving a satisfactory response from Defendants, filing suit was reasonably necessary for Plaintiffs to obtain the documents requested."  "Additionally, Plaintiff secured a number of court orders and enforceable stipulated orders requiring timely production and disclosure of information, the very relief sought in the complaint."  "Courts have held that where, as here, parties reach a joint stipulated order requiring the defendant's production of documents by a certain date, the plaintiff has substantially prevailed, as the order changes the legal relationship between the parties and because the plaintiff is 'awarded some relief on the merits of his claim.'"  "Accordingly, Plaintiffs substantially prevailed in the litigation by obtaining the relief provided in the court orders and enforceable stipulated orders."
   
• Attorney Fees, Entitlement:  The court holds that "the equitable factors favor an award of attorney fees."  Regarding the first factor, the court finds that "[t]he information sought in Plaintiffs' FOIA requests plainly serves the public benefit."  "Plaintiffs maintain that they sought the requested information to evaluate how CBP implements its authority, under 8 U.S.C. § 1357(a)(3) and 8 C.F.R. § 287.1(b), to conduct warrantless searches and seizures within 100 air miles from international borders 'to prevent the illegal entry of aliens into the United States.'"  "According to Plaintiffs, they sought this information to encourage law enforcement transparency and to investigate whether CBP is acting beyond the scope of its authority by conducting warrantless searches throughout the entirety of Michigan, far from the Canadian border."  "Such inquiries that call into question the policies and practices of law enforcement agencies and that seek to hold these agencies accountable are considered an important public benefit."  Regarding the second and third factors, the court finds that "[i]t is undisputed here that [two] Plaintiffs . . . are both non-profit organizations committed to protecting civil liberties and civil rights."  "Likewise, [two other] Plaintiffs . . . 'are scholars who have analyzed the records obtained.'"  "Because none of the Plaintiffs has a commercial interest in the information requested, this factor weighs in favor of Plaintiffs."  Regarding the fourth factor, the court finds that "Defendants offer no legal basis establishing that their failure to timely disclose documents had a reasonable basis in law."  "To the extent that Defendants' failure to produce documents in a prompt manner is attributable to administrative backlogs and a lack of adequate staffing, these explanations are unavailing."  "Requiring that courts evaluate an agency's rationale for withholding documents was intended to 'incentiviz[e] the government to promptly turn over – before litigation is required – any documents that it ought not withhold.'"  "Accordingly, 'administrative delay and FOIA backlog do not form a "reasonable basis in law" for withholding documents, because "this purpose would not be served if it were reasonable for agencies to withhold documents for indeterminant periods of time because they have too many FOIA requests and too few FOIA staff members."'"  Additionally, the court finds that "[a]s argued by Plaintiffs, the dearth of merits litigation demonstrates only that the parties resolved their disputes through negotiation rather than through judicial intervention."  "This does not necessarily establish that Defendants had a reasonable basis for withholding documents."
   
• Attorney Fees, Calculations:  First, "the Court finds that the rates set forth . . . represent reasonable reflections of the prevailing market rates in Michigan for attorneys of similar caliber, performing similar services."  "Courts within this district frequently refer to the Michigan Bar Survey to establish the prevailing market rate for attorneys practicing in Michigan."  "Because counsel for Plaintiffs are Michigan attorneys practicing in Michigan, the Michigan Bar Survey is the most appropriate authority by which to measure the prevailing rate in the relevant market."  "Moreover, Plaintiffs' counsel brought their skills to bear on a complex matter."  "They were compelled to review voluminous productions to ensure Defendants' compliance with their FOIA obligations."  The court relates that "Defendants contend that referring to the 95th percentile of billing rates reported in the Michigan Bar Survey is unjustified, arguing instead that the median rates should apply given Plaintiffs' limited success and the lack of complexity inherent in FOIA litigation."  "But . . . the Court does not accept the premise that Plaintiffs' success was 'limited.'"  "Further, awards at higher percentiles of billing rates are justified where, as here, counsel is experienced in a specialized area of law and has obtained favorable results."  "Although there are no recent FOIA fee awards in this district for comparison, the rates awarded here are well below rates awarded in FOIA actions other markets."  Second, "[h]aving reviewed the record in this case, as well as the billing records, [an attorney with extensive experience in complex federal FOIA litigation] opined that Plaintiffs' counsel appropriately staffed the litigation and that the 'hours expended by Plaintiffs' counsel were reasonable and necessary to obtain' the results achieved."  "For each attorney involved in the action, Plaintiffs have submitted detailed billing records describing, in tenth-of-an-hour increments, the work performed on specific dates."  "Additionally, Plaintiffs submit a declaration from . . . an attorney with extensive experience in complex federal FOIA litigation, regarding the reasonableness of the hours spent by Plaintiffs' counsel in achieving the results obtained."  Third, the court finds that "Plaintiffs have ultimately succeeded in obtaining a fee award in connection with their present motion."  "Accordingly, the work performed in connection with the petition for an award of interim attorney fees is compensable."  Fourth, regarding a motion for sanctions, the court finds that "Plaintiffs filed their motion for sanctions at the Court's invitation after Defendants filed their motion seeking an extension of the production timeline."  "In the motion, Plaintiffs sought relief in the form of conditional monetary fines to be imposed if Defendants failed to meet the court-ordered deadlines for producing documents."  "In light of Defendants' documented reluctance to produce the documents at issue, Plaintiffs were reasonably justified in believing this motion was necessary to compel Defendants' compliance."  "Stated differently, the motion was filed in aid of Plaintiffs' successful mission to obtain timely production of the documents."  "The fact that the motion was denied does not mean it did not produce some benefit, and it certainly does not diminish the Plaintiffs' ultimate success."  "Thus, Plaintiffs are entitled to fees incurred in connection with the motion for sanctions."  Fifth, the court rejects certain attempts by defendant to reduce the specific amounts of time spent on certain efforts, but also grants others.  Specifically, the court finds "agrees that time spent reviewing produced documents for FOIA compliance constitutes a compensable litigation cost."  Finally, the court rejects defendant's reading of case law on this issue and finds that "[while] attorneys must keep contemporaneous records of their time – [the case law] does not stand for the proposition that an attorney may not supplement a contemporaneously recorded billing entry after the fact."