Our Children's Earth Foundation v. National Marine Fisheries Service, No. 14-01130, 2017 WL 783490 (N.D. Cal. Mar. 1, 2017) (Orrick, J.)

Our Children's Earth Foundation v. National Marine Fisheries Service, No. 14-01130, 2017 WL 783490 (N.D. Cal. Mar. 1, 2017) (Orrick, J.)

Re: Request for records concerning oversight of activities by Stanford University and impact of those activities on Central California Coast steelhead

Disposition: Granting plaintiffs' motion for attorney fees and costs; awarding plaintiffs $3,190.39 in costs; ordering parties to submit joint supplemental brief and proposed judgment containing revised request for attorney fees

• Attorney Fees, Eligibility: The court holds that "plaintiffs were the prevailing parties on significant portions of both [of their cases] and are eligible for an award of attorney's fees and costs." The court finds that "plaintiffs secured additional documents from NMFS after [their second case] was filed and after NMFS took a closer look at its searches and withholdings and, more importantly, secured another declaratory judgment recognizing that the agency failed to provide timely responses, had engaged in a pattern and practice of tardy responses, and secured limited injunctive relief as to then-pending but not sued upon FOIA requests, is success significant enough to establish plaintiffs' eligibility for fees."
   

• Attorney Fees, Entitlement: The court holds that "plaintiffs are entitled to an award of attorney's fees." First, the court finds that "plaintiffs have shown that this litigation – through the information released and the legal principles established – conferred a significant benefit on the public." The court explains that "[plaintiff's] declaration, while not specifically focused on documents produced as a result of this litigation, persuasively explains how the documents [plaintiff] received through its FOIA requests and its litigation play a significant role in [plaintiff's] mission to inform the public about the activities of Stanford and the Central California Coast steelhead." "In addition, this lawsuit effectively and publicly disclosed NMFS's history of untimely responses and significant backlog – as well as the steps NMFS was undertaking to cure those issues." Second, the court finds that "[the second and third] factors weigh in favor of plaintiffs' entitlement to fees." The court explains that here a "non-profit environmental advocacy organization[] [brought] suit under FOIA as part of their ongoing efforts to shed light on how an agency is (or is not) protecting the environment, albeit with respect to a specific project." "Moreover, while plaintiffs were undoubtedly motivated in some part to secure documents from NMFS in order to assist their litigation against Stanford, there was a significant and separate public benefit sought and secured by plaintiffs – shedding light on the actions of NMFS (as opposed to the actions of Stanford) in carrying out its agency duties and on its handling of plaintiffs' and others' FOIA requests." Last, the court "conclude[s] that neither NMFS's general responses to the FOIA requests nor its litigation position before this Court had a reasonable basis in law." The court explains that "[the previous judge] repeatedly found in no uncertain terms that NMFS failed to provide timely responses under FOIA." "[The previous judge] also found that in litigating this case, NMFS repeatedly failed to explain with sufficient detail the adequacy of its searches and the reasons for its withholdings – thereby necessitating additional rounds of briefing by the parties and orders by the court."
   

• Attorney Fees, Calculations: First, "[the court] find[s] that the hourly rates plaintiffs request here are not adequately supported and are not reasonable." "Plaintiffs have not demonstrated that the rates they seek here are reasonable for FOIA litigation (or environmental fee-shifting litigation)." "They seek to downplay the fact that in cases from 2014 and 2015 these same attorneys requested significantly lower attorney's fee rates." "[The court] do[es] not believe the case law supports limiting plaintiffs to their prior requested rates, but [the court] do[es] believe that any significant upward departure should be justified." Second, regarding issues lost by plaintiff, the court finds that plaintiffs can recover costs for a "pleading [which] was helpful and relied on by [the court] in determining whether any live issues remained in the litigation, even though [the court] denied plaintiffs' request for further injunctive relief as to the backlog." The court also finds that recovery is possible for unsuccessful claims which were "part and parcel" of successful claims, unsuccessful claims which "forced NMFS to submit supplemental briefing explaining the adequacy of its searches[,]"unsuccessful claims which lead to "NMFS agree[ing] to produce more documents and . . . explain[ing] its actions in greater detail due to deficiencies in their initial briefing and declarations[,]" and unsuccessful pattern and practice claims which lead "NMFS [to] implement[] a new or clarified policy." Third, the court finds that "the time spent on [an] unfiled motion for reconsideration . . . was created voluntarily by plaintiffs and used for 'leverage' but was never necessary or useful for any contested decision made by [the court]." Fourth, the court "find[s] that the [plaintiff] time spent on the two identified FOIA requests is compensable, given the overlap in subject matter between requests and this litigation as well as the proximity in time between those requests and the filing of pleadings in this case." "The time spent reviewing the documents produced is not compensable." Fifth, the court reduces the fees for some of plaintiffs' filings and activities because "Plaintiffs purport to be experienced FOIA and environmental litigators[.]" Sixth, the court finds that, "[h]aving concluded that plaintiffs are substantially prevailing and that the agency's defenses were without a reasonable basis in law, an award of costs is appropriate." "Plaintiffs are awarded $3,190.39 in costs."