Vollmann v. DOJ, No. 12-0939, 2022 WL 1124814 (D.D.C. Apr. 14, 2022) (Pan, J.)

Vollmann v. DOJ, No. 12-0939, 2022 WL 1124814 (D.D.C. Apr. 14, 2022) (Pan, J.)   

Re:  Request for all records concerning plaintiff

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

• Attorney's Fees:  "The Court finds that Plaintiff is eligible for and entitled to a fee award, but that the full amount requested is not reasonable."  Regarding eligibility for fees, "the Court never ordered the DOJ to produce records, but rather ordered the agency to 'update the Court on the status of the remediation of the documents at issue in this case, including an estimate of when the contractors will complete remediation of those documents.'"  "Thus, the DOJ's compliance remained 'voluntary;' and [plaintiff] is not entitled to fees because he obtained a judicial order that granted him relief."
  
  However, "[t]he Court agrees that [plaintiff's] suit caused a 'voluntary or unilateral change in position by the agency.'"  "There is no reason to suppose that [DOJ's] additional searches would have occurred if [plaintiff] had not filed suit."  "Contrary to the DOJ's contention 'that [the] FBI's supplemental search . . . was already in process pending the administrative appeal,' . . . the record reflects that after the FBI completed the supplemental search in August 2012, it undertook further action in March 2016 as a result of this litigation."  "The same logic also defeats the DOJ's argument that [plaintiff] waived his right to attorney's fees on January 16, 2013, when he moved for a 'partial dismissal with prejudice . . . the parties to pay their own fees, costs and expenses.'"  "[T]he DOJ focuses on the wrong time period and fails to grapple with the 'additional search of a database' and re-processing of '[a]dditional material [that] was inadvertently deemed non-responsive in previous releases' in March 2016."  "Accordingly, [plaintiff] is eligible for attorney's fees because he has substantially prevailed under Section 552(a)(4)(E)(ii)(II) by causing a unilateral change in position by the agency that resulted in the further release of records in March 2016."
  
  "Once a plaintiff is deemed eligible for a fee award, the court must next determine whether the plaintiff is also entitled to such an award."  "In analyzing entitlement, the court weighs four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding of the requested documents."  "The DOJ does not dispute that the second, third, and fourth factors weigh in favor of [plaintiff]."  "The DOJ also does not dispute that [plaintiff's] publication of an article in Harper's Magazine based on documents he obtained under the FOIA, and the resulting coverage of his story in major newspapers and on National Public Radio, 'meets the public benefits requirement.'"  However, "[i]n the DOJ's view, because the FBI's later releases 'did not reveal any significant new information concerning [the agency's] interaction' with [plaintiff], [plaintiff] is ineligible for attorney's fees associated with obtaining the later-released information."  "The Court disagrees with the DOJ's analysis."  "[Plaintiff] need not prove that the documents he received after 2013 actually advanced the public interest; rather, the Court must consider the 'potential public value' of the information sought."  "And there was 'at least a modest probability' that the documents released by the FBI after 2013 would encompass 'useful new information' about that topic."  The court holds that plaintiff has "therefore met the public-benefit requirement and is entitled to fees because the information that he received after 2013 had 'potential public value.'"    
  
  The court also finds that "the full amount requested is not reasonable."  "Courts have broad discretion to determine an appropriate fee award and may modify the request based on the reasonableness of the desired amount and the facts of the case."  "The DOJ first contends that [plaintiff] may not recover fees for all 19.9 hours he claims because [plaintiff] waived recovery of the 3.8 hours his attorney spent on the preparation, filing, and service of the complaint when he moved for partial dismissal on January 16, 2013."  "The Court agrees."  "The Court, therefore, will reduce [plaintiff's] compensable hours by 3.8 hours."  "The Court next considers the second component: the reasonableness of [plaintiff's] requested hourly rate."  "[Plaintiff] argues that his attorney should be compensated for all of his work at the current Fitzpatrick [Matrix] rate, instead of the rate that prevailed at the time that the work was performed."  "The Court declines to apply the current maximum Fitzpatrick Matrix rate to all the hours worked by [plaintiff's] attorney between 2013 and 2016."  "Here, [plaintiff] does not argue or cite any evidence that the DOJ delayed litigation in this matter . . . and he therefore fails to overcome the 'strong presumption' in favor of using historical rates."  The court finds that the "lodestar amount will be calculated by multiplying 'the [16.1] hours reasonably expended' by [plaintiff's] attorney by the annual rates laid out in the Fitzpatrick Matrix."