Nat'l Sec. Counselors v. CIA, No. 11-442, 2016 WL 3029942 (D.D.C. May 25, 2016) (Collyer, J.)
Re: Small nonprofit corporation's request for attorney fees
Disposition: Granting in part and denying in part plaintiff's motion for attorney fees and costs; awarding plaintiff $55,050 for attorney fees and $505 in costs
- Attorney Fees, Eligibility: The court holds that plaintiff is eligible for attorney fees. The court finds that "[t]he parties agree that [plaintiff] prevailed on the first FOIA request." "In contrast, [the court finds that plaintiff] did not prevail on the second FOIA request, as CIA searched but found no responsive records." The court notes that "[plaintiff] agrees that ordinarily this would not be considered a 'win,' but argues that the request inured to the public interest because the second FOIA request caused CIA to admit that it had not developed special procedures that it had been required to develop by Executive Order." The court finds that "[t]he alleged public benefit could weigh in favor of [plaintiff] as to its 'entitlement' to fees, but does not demonstrate that [plaintiff] prevailed on Count 2." Finally, "[t]he Court finds that [plaintiff] prevailed on Counts 3 and 4" because, "[i]n light of the timing of the release of the documents, this suit can reasonably be regarded as causing the release of records." The court explains that "[t]he Department of Defense . . . had been processing a previous request for the same records since 1997, and within seven months after this suit was filed, DOD began releasing responsive records[.]"
- Attorney Fees, Entitlement: The court holds that "the factors relevant to [plaintiff's] entitlement to attorney fees balance in favor of [plaintiff]." "[Plaintiff] is entitled to attorney fees with respect to Counts 1, 3, and 4 of the Amended Complaint." The court finds that "[plaintiff] is a nonprofit public interest firm whose mission, in part, is to foster greater public understanding of national security matters." Additionally, "[a]ll of the requests were regarding matters of public interest." The court relates that "[d]efendants argue that the documents released in response to the fourth FOIA request did not actually shed light on why the FOIA processing of the  request took so long because the records were redacted due to the fact they were classified or otherwise exempt under FOIA[,]" but "the Court declines to adopt this reasoning as it could encourage heavy redaction." The court also notes that "[d]efendants do not argue that CIA was reasonable in withholding documents in response to the first FOIA request, and thus this issue is conceded." Finally, the court notes that "DOD had delayed over 13 years in responding to the third FOIA request." "DOD does not advance any explanation for the length of the delay." "Without more from DOD, it is difficult to find it was reasonable in its protracted delay."
- Attorney Fees, Calculations: "The Court will award to NSC attorney fees in the amount of $55,050 (i.e., $91,750 minus $36,700)." The court first finds that "[t]he regular Laffey Matrix provides sufficient compensation for this run-of-the-mill case." "The Court declines to apply the enhanced rates set by the Adjusted Matrix." The court explains that "this was a typical FOIA case that was not complex." "It did not require the skills of a specialist in national security or privacy law." "In fact, the bulk of the work for which fees are requested was not even FOIA litigation, it was uncomplicated fee litigation." The court then finds that "[i]n addition to including hours billed for work on unsuccessful issues, the chart appears to be an after-the-fact summary, not a contemporaneous record, and it lacks detail." However, "[e]ven though the chart is not a contemporaneous record and it lacks specificity in some instances, it is not so deficient as to justify a rejection of fees altogether." "Instead, the Court will reduce the fees." "To sum up, the Court will award fees reduced by a reasonable percentage because (1) the billing chart includes claims for which Plaintiff was not successful; (2) the chart was prepared post hoc, lacks sufficient detail, and includes duplicative work; and (3) [plaintiff] seeks excessive hourly rates instead of those set forth in the Laffey Matrix." "The Court will reduce the fees by 40% (i.e., $36,700)."
Additionally, "the Court will grant in part and deny in part the request for costs, and will award $505 in costs to [plaintiff]." The court relates that "[plaintiff] . . . seeks to recover the following costs: $505 for filing the notice of appeal in district court and $38.08 for binding the Joint Appendix." The court finds that while "the request for the cost of the Joint Appendix was filed too late and in the wrong court[,]" "the petition for costs associated with filing the notice of appeal was filed within a reasonable time after the mandate was issued."
Finally, the court finds that, "[o]f the four claims at issue in this suit, [plaintiff] was successful on one claim against CIA and two claims against DOD." "Thus, CIA will be liable for paying 33.5% of the fees and costs awarded here, and DOD will be liable for paying the remaining 66.5%."