Naumes v. Dep’t of the Army, No. 21-1670, 2023 WL 4350786 (D.D.C. July 5, 2023) (Boasberg, C.J.)

Naumes v. Dep’t of the Army, No. 21-1670, 2023 WL 4350786 (D.D.C. July 5, 2023) (Boasberg, C.J.)

Re:  Request for various iterations of survey that Army administers to assess well-being of employees and soldiers

Disposition:  Granting plaintiff’s motion for attorney fees and costs; awarding plaintiff $111,425.59

• Attorney Fees, Eligibility:  The court “[b]egin[s] with Defendant’s contention that Plaintiff cannot recover any attorney fees on her second Motion for Summary Judgment.”  “The Court agrees with Defendant’s position on this matter.”  “The Court recognizes Plaintiff’s effort to reduce the fees for this Motion in response to the Army’s objections.”  “A reduction, however, is insufficient:  Plaintiff garnered no relief on this Motion and so should not recover any fees.”  “The Court will accordingly reduce Plaintiff’s fees sought for this Motion to zero in its final calculation.”  “The Army next asserts that a 50% cut for attorney fees up until the second Motion for Summary Judgment is warranted.”  “Although Defendant fails to explain the basis for this assertion, it is well established in the caselaw that if [plaintiff] obtained a less-than-complete victory, a reduction in fees follows.”  “[Plaintiff] was successful in obtaining the majority of the documents she originally sought.”  “Her FOIA request asked for three main categories of documents:  the entirety of the GAT questionnaires, their accompanying informed-consent forms, and the ArmyFit recommendations given to soldiers and their families.”  “She substantially prevailed with respect to all three categories.”  “All told, as [plaintiff] obtained the vast majority of what she requests, the Court will implement only a 5% trim on fees incurred up until the second Motion for Summary Judgment when it calculates [plaintiff’s] ultimate fee award.”

• Attorney Fees, Entitlement:  The court finds that “Plaintiff is entitled to fees.”  The court finds that the first factor “leans in Plaintiff’s favor.”  “[Plaintiff] is an academic researcher looking to gain more insight into a tool used by the Army on millions of soldiers and their family members to assess their psychological health and offer recommendations.”  “[T]here is evidently a public interest in research involving the GAT assessment tool.”  Regarding the second and third factors, the court relates that “Defendant claims that the personal benefits she will achieve by completing her Ph.D. disqualify this case from passing the ‘commercial benefit’ and ‘plaintiff's interest’ factors.”  The court finds that “[e]ven if Plaintiff obtained some benefit from the disclosure through educational advancements, that would not render her requests primarily commercial.”  “‘Congress did not intend for scholars . . . to forego[sic] compensation when acting within the scope of their professional roles.’”  Regarding the fourth factor, the court finds that “[t]his factor is a closer call than the others.”  “The Court agrees that the Army’s rationale for withholding the documents – namely, the copyright concerns – was not entirely unfounded . . . .”  “The Court has already declined to award attorney fees for that portion of the litigation.”  “The real question, accordingly, is whether the Army had a reasonable position as to the other GAT questions, informed consents, and GAT recommendations.”  “Defendant is on considerably thinner ice here.”  “In fact, the voluntary disclosures demonstrate that the Army itself does not even take the position that its withholding of documents was reasonable.”  “The Court thus concludes that the fourth factor similarly leans in favor of Plaintiff’s entitlement to attorney fees.”

• Attorney Fees, Calculations:  The court finds that “Defendant does not dispute [plaintiff’s] sought rate under the Fitzpatrick Matrix nor many features of her timekeeping.”  “Its main contention appears to be that her attorney’s hours were excessive in some specific respects given his specialization in FOIA litigation.”  “With all this in mind, the particular hours to which defendant objects – for example, 1.8 hours spent on ‘rudimentary FOIA questions,’ 4.4 hours revising Plaintiff’s declaration, and 3 hours reviewing the intersection of copyright and FOIA as well as prevailing-party status – hardly seem excessive or unreasonable.”  “Following this ‘rough justice’ approach, and considering the earlier trimmings, the Court does not take issue with Plaintiff’s rates or remaining hours.”  “Getting down to business, the Court thus may now calculate Plaintiff’s merits award.”  “Plaintiff sought $81,208.70 in attorney fees prior to her failed Opposition to the second Motion for Summary Judgment; reducing that sum by 5% yields a total of $77,148.27.”  “As the Court will grant no fees for that Opposition, her merits award will be $77,148.27.”  “A postscript before moving on to fees on fees:  Plaintiff also seeks $428.15 in costs, which covers her filing fee and postal fees incurred in serving Defendant.”  “Defendant does not specifically object to this sum, which the Court finds reasonable and will award.”  As to “fees on fees,” “Plaintiff’s success on all of her motions was substantial but incomplete.”  “The Court, accordingly, will follow the lead of other courts in this district and award plaintiff ‘the same percentage of fees for fee litigation as it does for fees on the merits.’”  “This approach ends up being functionally similar to ratably reducing the number of hours Plaintiff’s counsel spent on this Motion then multiplying that sum by the applicable USAO Matrix rates.”  “[Plaintiff] received 82% of the original attorney fees she requested on the merits, totaling an 18% reduction overall.”  “Given that Defendant develops no further substantive challenge here, the Court will concomitantly reduce the fees on fees by 18%.”  “The resulting fees-on-fees recovery will be $34,267.06.”  “Adding that sum to Plaintiff’s merits and costs awards yields a grand total of $111,843.48.”