Nat’l Pub. Radio, Inc. v. U.S. Cent. Command, No. 21-1079, 2025 WL 2588923 (S.D. Cal. Sept. 8, 2025) (Anello, J.)

Nat’l Pub. Radio, Inc. v. U.S. Cent. Command, No. 21-1079, 2025 WL 2588923 (S.D. Cal. Sept. 8, 2025) (Anello, J.)

Re: Request for documents regarding a suspected friendly fire incident that took place in Fallujah, Iraq on April 12, 2004

Disposition:  Granting in part plaintiff’s motion for attorney fees and costs

• Attorney Fees, Eligibility:  “First, the Court tentatively finds that its order denying Defendants’ motion to dismiss does not render Plaintiffs eligible for attorneys’ fees because it made no determinations that altered the parties’ legal relationship and provided no relief on the merits.”  “Instead, the parties maintained the same legal relationship after the order as they did before:  Plaintiffs continued to prosecute their case against Defendants.”  “As to the Ninth Circuit’s decision in this matter, however, the Court tentatively finds that it renders Plaintiffs eligible for attorneys’ fees.”  “The Ninth Circuit reversed the Court’s determination that Defendants had conducted an adequate search at summary judgment – a ruling that determined whether Defendants violated their statutory duties and afforded Plaintiffs some relief on the merits of their claim, even if incomplete relief.”  “Defendants note case law finding particular orders to conduct a search too procedural to render a plaintiff the prevailing party.” “Having undertaken a thorough review of the case law, other courts examining ‘procedural’ versus ‘substantive’ orders while assessing eligibility lacked opportunity to examine the relevant consideration at play here:  a substantive determination that Defendants had violated the law as to their substantive FOIA duties.”  “Thus, the Court tentatively finds that Plaintiffs are eligible for attorneys’ fees.”
   
• Attorney Fees, Entitlement:  “[T]he Court tentatively determines that Plaintiffs are entitled to attorneys’ fees in this matter.”  “To start, the Court tentatively agrees with Plaintiffs’ argument that the Court should examine this factor from the ex-ante viewpoint, analyzing what public benefit a possible future disclosure of the information sought may bring, rather than the public benefit derived from actual disclosure.”  “Here, the information sought concerned a matter of public interest – a friendly fire incident during the United States’ military operation in Afghanistan – and was sought in a journalistic undertaking.”  “That Plaintiffs sought to (and did) disseminate it to the public through their journalism further persuades the Court that this factor weighs in their favor.”  “Additionally, as Plaintiffs note, various courts have found that a plaintiff’s having enforced a defendant’s FOIA duties, as here, is inherently of some public benefit.” “The Ninth Circuit’s decision in this case fits that mold.”  “Thus, the Court finds that this factor weighs in Plaintiffs’ favor.”
  
  “Plaintiffs address the second and third entitlement factors together, arguing that ‘Plaintiffs’ request – and its subsequent podcast and articles – were . . . not a part of any private, commercial interest’ because ‘Plaintiffs represent a 501(c)(3) nonprofit media organization dedicated to providing investigative reporting that benefits the public’ and were acting in furtherance of that mission.”  “Defendants do not argue these factors.”  “Representing a nonprofit entity, Plaintiffs sought information in a journalistic pursuit, hoping to inform the public and decisionmakers.” “The Court thus tentatively finds that factors 2 and 3 weigh in their favor.”
  
  Regarding the final factor, the court finds that, “[a]s to the initial silence from Defendants between [plaintiff’s] FOIA request and this action’s filing, Defendants claims that they ‘performed a thorough set of searches . . . on [their classified database] in November 2019 both as a courtesy in Plaintiffs’ substantially identical request’ in Westervelt Northern District Action and ‘in response to the present request prior to this lawsuit.’”  “Even ignoring the difference between this action and the Westervelt Northern District Action, this rather vague statement in their opposition does nothing to explain why it took nearly two years to ‘perform a search,’ nor why Defendants failed to provide [plaintiff] the response required until litigation had begun.” “Additionally, though Defendants cite general statistics about FOIA response times, they do not go so far as to assert that this is why [plaintiff’s] FOIA request, in specific, received no response.”  “[T]he Court tentatively finds Defendants’ withholding was unreasonable.”  “As to Defendants’ positions once litigation began, the Court tentatively finds that they were reasonable.”  “Given the nature of this action and the [related] Action, asserting the first-to-file rule applied in a motion to dismiss was a colorable – even if ultimately incorrect – position.”  “As to summary judgment and the subsequent appeal, the Court finds no indication that Defendants arguments, even those ultimately rejected by the Ninth Circuit, were unreasonable.”  “Indeed, even as to those issues on which they were unsuccessful, [the Ninth Circuit] issued a partial dissent agreeing with Defendants’ arguments.”  “As to the specific arguments Plaintiffs challenge concerning Defendants’ asserted ability to search the classified database, the dissent found ‘any search of [the unclassified database] for emails relating to the 2004 incident would have been futile’ due to the timeframe of information available.”  “This interpretation supports – to some extent – counsel’s assertions, and in doing so demonstrates that reasonable minds could differ on the matter.” “Thus, while unsuccessful, Defendants were not unreasonable.”  “Having analyzed the parties’ arguments, the Court tentatively finds that Defendants’ failure to respond as obligated to Plaintiffs’ FOIA request, from the FOIA request’s filing to the instant action’s initiation, was unreasonable and thus weighs in favor of Plaintiffs’ request for attorneys’ fees.”  “Defendants’ conduct after Plaintiffs filed their initial complaint was reasonable even if, at times, unsuccessful.”
  
  “Defendants ask that the Court weigh Plaintiffs’ conduct during litigation against them, arguing that ‘counsel engaged in unfortunate tactics that significantly increased litigation and failed to reflect a spirit of collaboration and candor.’”  “[T]he Court tentatively finds that the record does not support that Plaintiffs acted unreasonably.”
  
  “Because Plaintiffs also obtained the [requested] report from the [related] Action, Defendants argue that the Court should ‘cut off fees incurred’ after it was produced there.”  “Plaintiffs disagree.”  “The Court tentatively agrees with Plaintiffs.”  “Simply put, even were the requestors identical, the underlying FOIA requests in the two matters were different, and agencies have a responsibility to respond to each FOIA request.”  “To find otherwise would require FOIA requesters to, as Plaintiffs argue, ‘internalize prospective indeterminacy’ wherein they lose the ability to seek attorneys’ fees – despite being otherwise entitled to them – merely because the documents produced overlap with those produced in response to a separate, previous request.”
   
• Attorney Fees, Calculations:  “The Court issues its tentative findings as to rates below.”  “Because the case is ongoing, and due to the volume of Plaintiffs’ billing statements, the Court tentatively defers its final decision as to the hours, costs, and the final amount appropriate in this matter, and instead tentatively directs the parties to attend a settlement conference with [the Magistrate Judge] as to the amount, as further discussed at this order’s conclusion.”  “To the extent there are broader legal findings pertinent to resolution, however, the Court addresses them.”  “[T]he Court tentatively identifies some categories within Plaintiffs’ billing entries that may be excessive or require further explanation:  ‘1. Time billed towards internal meetings or communications between Plaintiffs’ counsel, especially where multiple attorneys recorded time.’”  “‘2. Time spent by non-partner attorneys reviewing other non-partner attorneys’ work, resulting in duplicative entries.’”  “‘3. Time spent mooting summary judgment and appellate oral argument.’” “‘4. . . . significant hours billed towards drafting, editing, and researching Plaintiffs’ appellate briefing, especially considering the large volume of hours and hours spent by other attorneys on related tasks.’”  “‘5. Travel time and appearance times for hearings attended by multiple attorneys.’” “This list is nonexhaustive but identifies those categories that appear most likely duplicative, excessive, and unreasonable.”
  
  “Having reviewed the parties’ submissions, declarations and case law; and considering the practice area, success on the merits, timeframe, and all other relevant factors, the Court tentatively finds [certain] rates appropriate [for certain involved personnel].”  “These rates reflect those in reasonably comparable cases.”
  
  “Plaintiffs seek $7,855 in attorneys’ fees for [two individuals’] work on their reply here.”  “‘[F]ees for work on a motion for attorney’s fees [ ] are typically recoverable, including for a reply brief.’”  “However, counsel includes hours spent working on the fees motion in their initial submission, as well as hours ostensibly spent negotiating fees with Defendants.”  “The parties have been ‘discussing the possibility of settlement over Plaintiffs’ attorneys’ fees’ since at least late March 2025.”  “While Plaintiffs are entitled to seek fees for work [on] the instant motion, allowing them to bill substantial hours to their attorneys’ fees motion risks it consuming the rest of the litigation, and thus the Court identifies Plaintiffs’ request for fees as to its replies, or any work of the matter of attorneys’ fees thereafter, as potentially unreasonable in light of the circumstances.”
  
  “In addition to their attorneys’ fees, Plaintiffs seek recouperation of costs in the amount of $6,566.75.”  “Upon reviewing Plaintiffs’ costs, . . . the Court tentatively identifies the following as potentially excessive or requiring further explanation: 1. June 30, 2023 – Plaintiffs’ $1,223.02 for printing, binding, and delivery to the Ninth Circuit.”