Urban Air Initiative, Inc. v. EPA, No. 15-1333, 2020 WL 956587 (D.D.C. Feb. 27, 2020) (Jackson, J.)

Urban Air Initiative, Inc. v. EPA, No. 15-1333, 2020 WL 956587 (D.D.C. Feb. 27, 2020) (Jackson, J.)

Re:  Request for records concerning EPAct/V2/E–89 Tier 2 Gasoline Fuel Effects Study ("EPAct study")

Disposition:  Granting plaintiffs' motion for attorney fees and costs; awarding plaintiffs' $75,400.00

• Attorney Fees, Eligibility:  "[T]he Court finds that plaintiffs are eligible for a fee award since they substantially prevailed through judicial order and by causing a voluntary change in defendant's position."  "The Court finds that plaintiffs have substantially prevailed by securing judicial relief and by causing a unilateral change in position by the agency that was not insubstantial."  "The Court ordered production according to a specific schedule . . . ."  "And, of more significance, . . . the Court granted in part and denied in part defendant's motion for summary judgment and denied plaintiffs' cross-motion for summary judgment."  "The Court ruled in plaintiffs' favor by finding the search to be inadequate, and plaintiff obtained relief when . . . the Court ordered defendant to produce responsive, non-exempt, non-CBI records on a rolling basis . . . ."  "Both [orders] imposed enforceable legal obligations on the defendant."
   
• Attorney Fees, Entitlement:  "The Court finds that the applicable factors weigh in favor of plaintiffs, and they are entitled to an award of attorneys' fees."  First, "the Court finds that [the first] factor weighs in favor of plaintiffs" because the records "added to the public knowledge."  The court finds that "[t]he EPAct study was incorporated into the Congressionally mandated updated vehicle emissions model, . . . which has national implications for emissions and air quality and is used, in part, to implement the Clean Air Act nationally."  "Plaintiffs sought to uncover errors or 'influence' in the study's design, and such information would be of interest to the multiple stakeholders involved in and affected by matters of national environmental policy and public health."  Regarding the second and third factors, the court finds that "plaintiffs' motives were not purely 'personal' or 'commercial' within the meaning of the statute, although there may have been, as noted above, some potential commercial benefit to the ethanol industry backers of [plaintiffs'] work."  "[Plaintiffs'] pending judicial challenge [involving the vehicle emissions model that is the subject of the requested study] did not supply a financial incentive to litigate the FOIA request without the possibility for a fee award."  "But, because plaintiffs made it clear that they requested the documents to aid their judicial challenge, the Court finds that these factors do weigh in some small measure against plaintiffs, and all of these circumstances will bear on the Court’s discretion in fashioning an award."  Regarding the fourth factor, the court relates that "by the time the lawsuit was filed, only three documents had been produced, and defendant had told plaintiff that it had yet to determine whether other records would be released and what records were exempt from disclosure."  The court finds that "[w]hile defendant did not ignore plaintiffs, and its behavior cannot fairly be described as 'recalcitrant' or 'obdurate,' it was not especially responsive either."  "Given the time that elapsed between plaintiffs' FOIA request and the agency's response, and the fact that the only reason provided for the delay was lack of resources, the Court cannot find that the agency has asserted a 'colorable basis in law' for withholding documents."
   
• Attorney Fees, Calculations:  First, "the Court finds that the evidence presented is insufficient to establish that the market rate for FOIA practitioners in Washington, D.C. comports with the LSI Matrix, and that plaintiffs have not met their burden to show that it would be reasonable to apply the higher LSI adjusted Laffey Matrix rates in this case."  "Thus, the Court will apply the lower USAO Matrix rates."  Second, the court relates that "plaintiff seeks fees for document review that occurred after production was ordered by this Court . . . ."  "Given that thereafter, plaintiffs filed an opposition and cross-motion for summary judgment challenging the adequacy of EPA's search, as well as certain redactions and withheld documents, it is apparent that document review was, in part, a necessary aspect of the litigation, and therefore, some fees are warranted given the ultimate outcome of those issues."  Third, "[t]he Court finds that the request to be compensated for more than 260 hours of work related to summary judgment is excessive in this case[]" and "the Court will reduce the total award."  Fourth, "[t]he Court does not find that tasks such as emailing clients or opposing counsel need to be isolated and struck from plaintiffs' requested award as they are necessary parts of litigating a claim."  Finally, "considering all of the facts set forth above, the Court concludes, in its discretion, that the requested award would be excessive when one considers such factors as the number of issues involved, the fact that plaintiffs prevailed on some issues but not others, the fact that plaintiffs were ultimately unsuccessful on portions of their cross-motion for summary judgment and cross-reply, the complexity of the matters raised, the fact that plaintiffs pursued this action to advance their own pending civil case . . . ."  "Therefore, the Court will award litigation fees in the amount of $65,000.00."  Regarding plaintiff's request for fees-on-fees, the court finds that "Defendant's objection to this portion of the fees in its entirety, though, is not well-taken given that it briefed an objection to every single aspect of plaintiffs' eligibility for and entitlement to fees, as well as the reasonableness of the rates and the time expended."  "Thus, in an exercise of its discretion, the Court will award $10,000.00 in fees-on-fees."