Webster v. DOJ, No. 02-603, 2021 WL 4243414 (D.D.C. Sept. 17, 2021) (Contreras, J.)

Webster v. DOJ, No. 02-603, 2021 WL 4243414 (D.D.C. Sept. 17, 2021) (Contreras, J.)

Re:  Request for records concerning deceased former plaintiff

Disposition:  Granting in part and denying in part plaintiffs' motion for attorney fees and costs; denying plaintiffs' requests to submit supplementary briefing; awarding plaintiffs $225,714.30 in attorney fees

• Attorney Fees, Eligibility:  The court holds that "Plaintiffs are eligible for attorneys' fees."  The court relates that "Plaintiffs offer multiple arguments for having met the eligibility requirement for an award of fees."  "They first point to the Scheduling Order entered on June 7, 2002."  "The Scheduling Order . . . requires the DOJ to produce documents by a certain date."  The court finds that "the Scheduling Order changed the legal relationship between the parties and Plaintiffs substantially prevailed in this litigation as a result of its issuance."
  
  Additionally, the court finds that "[a] second of Plaintiffs’ theories also meets the requirement for eligibility."  "[An] October 2012 Order required the DOJ to process 16,705 pages it had previously withheld at a rate of at least 500 pages per month."  "[T]he October 2012 Order '(1) contains mandatory language . . . ; (2) is entitled an "ORDER"; and (3) bears the district judge's signature, not those of the parties' counsel.'"  "It thus indicates that Plaintiffs substantially prevailed on the issue."  "The DOJ's response is two-fold:  (1) that the order came after the FOIA request's 'only' public benefit was manifested and is therefore moot, and (2) it is inequitable for the Court to punish the DOJ for using a processing method this Circuit vindicated in later decisions."  "First, public benefit is not a factor in this prong of the analysis."  "Second, the correctness of the DOJ's processing has no effect on the eligibility question either."  "A court order does not need to 'include an admission of liability by the defendant' to signal a court-ordered change in the legal relationship between the plaintiff and the defendant."  "Even if the DOJ's processing practice was later deemed acceptable, this Court, in its October 2012 Order, mandated that the DOJ process for release previously undisclosed documents at a certain pace or else face sanctions."  "That is enough to satisfy the eligibility requirements for an award of attorneys' fees."
   
• Attorney Fees, Entitlement:  "[T]he Court concludes that the factors cumulatively weigh in favor of awarding attorneys' fees."  First, regarding the public benefit factor, the court finds that "[t]hrough his FOIA request, [the deceased plaintiff] sought information from the CIA and the FBI to help write an autobiographical memoir of the 1960s antiwar movement."  "As the President of the leftist protest group Students for a Democratic Society, [the deceased plaintiff] sought government surveillance and intelligence accounts to shape and support the narrative of his memoir."  "Information about the surveillance tactics of the federal government against student dissidents is a matter of public concern, especially as surveillance technologies continue to improve."  "Contemporary investigative journalism has revealed cases of the government tracking political activists at the U.S.-Mexico border and during the George Floyd protests."  "A book covering government surveillance of dissidents leveraging 16,000 pages of original documents appears significant enough to 'have at least a modest probability of generating useful new information' in the public interest."  The court relates that "DOJ . . . argues that Plaintiffs have shown no public benefit for continuing to press this litigation past the book's publishing date and should thus not recover on fees after February 11, 2008."  "But the Department does not point to any caselaw to support the creation of this cutoff."  "No prior court has distinguished an inflection point in FOIA litigation, where the information produced ceases to produce a public benefit."  "The public benefit analysis has not involved a time-sensitive component, and this Court will not create one now."
  
  Additionally, the court "finds that the second and third factors favor awarding attorneys' fees."  "[The deceased plaintiff's] book makes him 'much like a journalist who "gathers information of potential interest to a segment of the public, uses [his] editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."'"  "As such, he is among those whom Congress treats favorably under FOIA's fee provision."
  
  Finally, regarding the fourth factor, the court finds that "Plaintiffs are effectively silent on this point."  "Their only briefed argument is the supposed impropriety of the FBI's initial conversation with [the deceased plaintiff]."  "That contention is irrelevant to the question of whether the government had a colorable reason for withholding the requested documents."  "Though the FBI made partial disclosures, it asked for and received extensions for its document release due to an internal backlog of requests."  "The DOJ argues that it has acted in a fair and expeditious manner."  "That appears true."  "This Court has said that the DOJ's search efforts represented a 'good-faith effort to conduct a search for the requested records.'"  "But its observation amounts to an agreement that the Department has not been 'recalcitrant' or 'obdurate.'"  "That alone does not decide whether the government had a reasonable basis in law for withholding documents."  "Courts in this district have held that administrative delay and FOIA backlog do not form a reasonable basis in law because FOIA's purpose 'would not be served if it were reasonable for agencies to withhold documents for indeterminant periods of time because they have too many FOIA requests and too few FOIA staff members.'"  "The DOJ argues that because the Court ultimately ruled that its withholdings under certain exemptions were appropriate in its March 2020 decision, that means its basis for withholding documents was reasonable."  "But the DOJ was delayed in releasing thousands of documents as part of this litigation and its only excuse for those delays was administrative backlog, not the propriety of their withholdings."  "That rationale does not constitute a reasonable basis in law."  "Given the agency's incomplete response to [the deceased plaintiff's] request and the fact that the only reason provided for the delay was lack of resources, the Court cannot find that the DOJ has asserted a 'colorable basis in law' for withholding documents."  "At the same time, Plaintiffs have not effectively argued for this factor."  "Thus, the Court finds that this factor neither weighs in favor or against awarding attorneys' fees."
   
• Attorney Fees, Calculations:  The court relates that plaintiff's "arrive at a figure of $692,925.18."  "Upon review, the Court finds numerous faults with Plaintiffs' supporting documentation."  "These shortcomings are pervasive and serious enough for the Court to use its discretion to order a reduced award."  "First, the Court identifies errors in Plaintiffs' accounting of the hours their attorney worked."  The court explains that "Plaintiffs incorrectly totaled the hours they claim [plaintiff's counsel] worked."  "Plaintiffs request fees for work performed on their motions that the Court denied."  "Many of the descriptions in the Plaintiffs' time entries are too vague to connect them to a specific motion or filing."  "Additionally, some of Plaintiffs' time entries appear to document time spent opposing Defendant's motions that the Court ultimately granted."  "Furthermore, certain time entries are clearly erroneous."  "The DOJ points out at least three entries in the log that refer to plaintiffs whom [plaintiff's counsel] represented in separate lawsuits."  "Finally, the Court considers unnecessary fees on fees."  "Because parsing Plaintiffs' timekeeping records proves difficult, the Court cannot discount all entries that may constitute unjustifiable fees on fees."  "But it does discount the clearest example of excess:  the entries from 2020 that corresponded with Plaintiffs' requests for extensions to file their motion for attorneys' fees."
  
  "Second, the Court applies the rates in the USAO Matrix in determining its lodestar, rather than the higher rates of the LSI Matrix that Plaintiffs request, because Plaintiffs did not provide the requisite supporting evidence to justify the latter matrix's use."  The court finds that "Plaintiffs do not provide evidence that this case fell within the bounds of complex federal litigation."  "Though [plaintiff's attorney's] experience is relevant for determining the appropriate fee under either the LSI or USAO Matrix, it does nothing to inform this Court's decision on which of the matrices to use."  Additionally, the court finds that "there is no presumption that FOIA cases qualify as complex federal litigation."  The court attaches a "chart [which] summarizes the Court's hours adjustments discussed above – first correcting Plaintiffs' addition mistakes, then deducting hours for motions lost, clear recordkeeping errors, and unnecessary fees on fees – before applying the USAO Matrix rates."  "The result of the Court's adjustments and calculations is a lodestar figure of $376,190.50."
  
  "Finally, the Court adjusts the lodestar downward due to [plaintiffs'' attorney's] poor, non-contemporaneous bookkeeping and lack of supporting proof."  "Seeing as any examination of [plaintiff's] hours log reveals more errors, the Court cannot be certain that it accurately captures the time Plaintiffs' counsel spent on the case."  "The vagueness cuts both ways – the Court cannot corroborate what [plaintiff's counsel] worked on and give the Plaintiffs credit for it, but neither can it connect hours to motions where Plaintiffs did not prevail and discount them accordingly."  "[Plaintiffs' counsel's] barebones descriptions do not give the Court enough information to evaluate whether the reported hours are reasonable."  "And given [plaintiff's counsel's] noted errors in logging time spent on other plaintiffs' cases, the Court has no confidence that all of these vaguely described entries even pertain to this case."  "Moreover, due to the number of errors, lack of corroboration, and size of the requested award, the Court had to embark on the sort of nitpicking expedition that this Circuit discourages."  "In a comparable case involving work on unsuccessful motions, non-contemporaneous timekeeping, and undetailed records, the district court reduced the plaintiff’s award by 40%."  "The Court believes that figure is appropriate here too."  "It thus uses its discretion to reduce the lodestar award amount by 40%."  "Plaintiffs are entitled to $225,714.30 in fees."