Electronic Privacy Information Center v. National Security Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION
CENTER
Civil Action No. 10-196 (BAH)
Plaintiff,
Judge Beryl A. Howell
v.

NATIONAL SECURITY AGENCY,

Defendant.

MEMORANDUM OPINION

Pending before the Court is the plaintiff’s Motion for Attorneys’ Fees and Costs (“Pl.’s

Mot.”), ECF No. 44. The plaintiff, the Electronic Privacy Information Center (“EPIC”), seeks

attorneys’ fees as a prevailing party pursuant to the Freedom of Information Act (“FOIA”). 5

U.S.C. § 552(a)(4)(E). The defendant, the National Security Agency (“NSA”), challenges the

plaintiff’s entitlement to attorneys’ fees and, in the alternative, challenges the reasonableness of

the amount requested by the plaintiff, seeking a reduction in fees as a sanction. See Def.’s Opp’n

to Pl.’s Mot. for Attys. Fees and Costs (“Def.’s Opp’n”) at 5, ECF No. 45. For the reasons set

forth below, the plaintiff’s motion is granted in part and denied in part.

I. BACKGROUND

The facts of this case have been set forth in this Court’s prior Memorandum Opinion and

do not need to be repeated here. See EPIC v. NSA (EPIC I), 988 F. Supp. 2d 1, 4–7 (D.D.C.

2013). In EPIC I, this Court held that a partially classified document requested by the plaintiff

under the FOIA, National Presidential Security Directive (“NPSD”) 54, which sets forth the U.S.

Government’s cybersecurity polices, was not an “agency record” within the meaning of FOIA

1
and, therefore, the Court granted summary judgment to the defendant regarding the withholding

in full of NSPD 54. See id. at 12.

The plaintiff timely appealed that decision in December 2013. Notice of Appeal at 1,

ECF No. 32. While the appeal was pending, on January 27, 2014, the plaintiff “accepted a Rule

68 Offer of Judgment for $3,500 from the [defendant].” Pl.’s Mot. at 4. The Offer of Judgment

reads as follows, in pertinent part:

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Defendant National
Security Agency hereby offers to allow judgment to be taken against it, in the
amount of $3,500.00, in full resolution of all claims of Plaintiff Electronic Privacy
Information Center for all costs, including attorney’s fees, incurred in this action.
This offered amount includes all costs accrued, including all attorney’s fees and
all fees on fees.

Def.’s Offer of Judgment, Jan. 27, 2014 (the “January Judgment”) 1 at 1, ECF No. 36-1.

The plaintiff accepted the Offer of Judgment on February 9, 2014, Def.’s Notice of Acceptance

of Offer of Judgment at 1, ECF No. 36, and the judgment with the above language was entered

by the Clerk of Court on February 11, 2014.

Despite the offer and acceptance of judgment, the plaintiff’s appeal continued in the D.C.

Circuit, with the plaintiff filing its initial appellant brief in March 2014. Def.’s Opp’n at 4. That

appeal effectively ended on June 5, 2014, when the defendant released “an unclassified version

of NSPD 54” to the plaintiff. Id. Four days later, the parties filed a joint motion to vacate the

portion of NSC I holding that NSPD 54 was not an agency record, which motion was

subsequently granted by the D.C. Circuit. Pl.’s Mot. at 4–5.

1
Although the defendant refers to the January Judgment as the “February Judgment,” see, e.g., Def.’s Opp’n at 8,
the Offer of Judgment dated January 27, 2014 will be referred to as the “January Judgment” throughout this
Memorandum Opinion, since the January Judgment encompasses all fees and costs accrued as of January 27, 2014.

2
 Following vacatur, the plaintiff filed the pending motion, seeking $68,354.01 in

attorneys’ fees and $730.28 in costs. Pl.’s Reply Def.’s Opp’n Pl.’s Mot. (“Pl.’s Reply”) at 22,

ECF No. 46 (including $9,786 in “fees on fees for time spent preparing [the plaintiff’s] Reply”).

II. LEGAL STANDARD

A. Settlement Agreements

The D.C. Circuit interprets settlement agreements under the local law of the jurisdiction

where the settlement agreement is to be enforced. See Makins v. District of Columbia, 277 F.3d

544, 548 (D.C. Cir. 2002) (“[W]e adopt local law in determining whether a settlement agreement

should be enforced.”). The District of Columbia treats settlement agreements as contracts. See

Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 188 (D.C. 2009) (“[S]ettlement agreements are

construed under general principles of contract law. Accordingly, we enforce a valid and binding

settlement agreement just like any other contract.”) (internal quotation marks and citations

omitted); see also Pub. Emps. for Envtl. Responsibility v. U.S. EPA, 926 F. Supp. 2d 48, 54

(D.D.C. 2013) (finding that a FOIA plaintiff was precluded from filing more FOIA requests

because “[a] settlement agreement is a contract, and [plaintiff] is bound by the contract he

signed”). District of Columbia contract law is an “objective law of contracts, meaning that the

written language embodying the terms of an agreement will govern the rights and liabilities of

the parties [regardless] of the intent of the parties at the time they entered into the contract,

unless the written language is not susceptible of a clear and definite undertaking, or unless there

is fraud, duress, or mutual mistake.” Abdelrhman v. Ackerman, 76 A.3d 883, 888 (D.C. 2013)

(internal quotation marks and citations omitted; brackets in the original).

B. FOIA Fee Awards

The FOIA authorizes the award of attorneys’ fees reasonably incurred by a plaintiff who

is in litigation to obtain “the production of any agency records improperly withheld,” 5 U.S.C. §

3
552(a)(4)(B), when “the complainant has substantially prevailed,” id. at § 552(a)(4)(E)(i). The

D.C. Circuit has construed this statutory provision as “naturally divid[ing] the attorney-fee

inquiry into two prongs, which our case law has long described as fee ‘eligibility’ and fee

‘entitlement.’” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir.

2011) (citing Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 368–69 (D.C. Cir.

2006)). Thus, to obtain attorneys’ fees under the FOIA, the plaintiff must demonstrate both

eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707,

710 (D.C. Cir. 2014); see also Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1495 (D.C. Cir.

1984) (“[E]ligibility alone is not enough. . . . the complainant must [also] show that he or she is

‘entitled’ to an award.”).

1. Eligibility For Fees Award

To satisfy the first requirement of eligibility for attorneys’ fees, a claimant must show

that he “substantially prevailed” in the underlying FOIA litigation. See 5 U.S.C. §

552(a)(4)(E)(i). The statute provides that the claimant “substantially prevail[ed]” by gaining

relief from either: “(I) a judicial order, or an enforceable written agreement or consent decree; or

(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not

insubstantial.” Id. at § 552(a)(4)(E)(ii). 2 This statutory text is a direct Congressional response to

2
The term “not insubstantial,” which was added as part of the FOIA amendments in the OPEN Government Act of
2007, is not defined in the statute. See Pub. L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C. § 552 (Supp. III
2009)) [hereinafter 2007 Act]. The House-passed version of these FOIA amendments did not use this term and,
instead, provided that a claimant qualified for attorneys’ fees upon a “voluntary or unilateral change in position by
the opposing party, in a case in which the complainant’s claim or defense was not frivolous.” H.R. Rep. No. 110-45,
at 15 (2007) (Report by House Committee on Oversight and Government Reform). The Senate-passed version of
the bill, which was ultimately enacted as the 2007 Act, adopted the current language, 153 CONG. REC. S15702
(2007), which the lead sponsor of the legislation, Senator Patrick Leahy, explained “would not allow the requester to
recover attorneys’ fees if the requester’s claim is wholly insubstantial,” Id. at S15704 (statement of Sen. Leahy).
Inquiry as to whether the claim is “not insubstantial” is “properly considered under the entitlement prong of the fee
analysis, not the eligibility prong.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 878 F. Supp. 2d 225, 233 (D.D.C.
2012) (citing Brayton, 641 F.3d at 526).

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the D.C. Circuit’s rejection of the “catalyst theory” 3 in determining whether FOIA plaintiffs

were eligible for attorneys’ fees when an agency voluntarily turned over the records sought. See

Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). After the Supreme Court’s

landmark case of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health

and Human Resources, 532 U.S. 598 (2001), which largely invalidated the catalyst theory, the

D.C. Circuit held that “a FOIA plaintiff has ‘substantially prevailed’ only if he has ‘been

awarded some relief by [a] court, either in a judgment on the merits or in a court-ordered consent

decree.’” Davis, 610 F.3d at 752 (quoting Oil, Chem. & Atomic Workers Int’l Union v. U.S.

Dep’t of Energy, 288 F.3d 452, 456–57 (D.C. Cir. 2002)).

In the FOIA context, Congress restored the catalyst theory with the OPEN Government

Act of 2007 (the “2007 Act”), which inserted the present text of 5 U.S.C. 552(a)(4)(E)(ii). Id.

After the 2007 Act took effect, FOIA applicants were once again eligible for attorneys’ fees,

even if they did not obtain a court order granting the relief sought, so long as the claim was “not

insubstantial.” Id. Thus, whether the parties’ legal relationship changed, the sine qua non of

attorneys’ fees eligibility in most other contexts, is not as significant in FOIA fee disputes. See

id.

2. Entitlement To Fees Award

If the plaintiff has “substantially prevailed and thus may receive fees . . . the court

proceeds to the entitlement prong and considers a variety of factors to determine whether the

plaintiff should receive fees.” Brayton, 641 F.3d at 524 (emphasis in original) (quotation marks

and citations omitted). “This circuit has long applied a multi-factor standard” involving

3
Under the catalyst theory, a party is a prevailing party eligible for attorneys’ fees if the party’s actions were a cause
of the relief sought. See Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010). This situation often
arose in FOIA cases where an agency “voluntarily” released records after a lawsuit was filed but before judicial
relief was granted. See id.

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consideration of “[f]our non-exclusive 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.” McKinley,

739 F.3d at 711 (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir.

1992)), superseded by statute, 5 U.S.C. § 552(a)(4)(E)(i), as recognized in Summers v. U.S.

Dep’t of Justice, 569 F.3d 500, 502 (D.C. Cir. 2009)); see also Cotton v. Heyman, 63 F.3d 1115,

1117 (D.C. Cir. 1995).

In Davy v. CIA, the D.C. Circuit noted that “no one factor is dispositive,” but this

statement comes with the significant caveat that “if the Government’s position is correct as a

matter of law, that will be dispositive.” 550 F.3d 1155, 1159, 1162 (D.C. Cir. 2008). “The

sifting of those criteria over the facts of a case is a matter of district court discretion.” Tax

Analysts, 965 F.2d at 1094 (citing Church of Scientology v. Harris, 653 F.2d 584, 590 (D.C. Cir.

1981)); see also Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C. Cir. 2008) (“Balancing

these factors is a matter for the district court.”).

This four-factor entitlement test is not reflected in the text of the FOIA. See 5 U.S.C. §

552. For this and other reasons, Judge Kavanaugh has stated bluntly that the D.C. Circuit

“should ditch the four-factor standard.” Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013)

(Kavanaugh, J. concurring). Relying in part on Judge Randolph’s dissent in Davy, Judge

Kavanaugh noted that “the four factors have no basis in the statutory text” and, indeed,

“Congress’s decision not to include the four factors in the statutory text appears to have been

deliberate.” Id. Moreover, Judge Kavanaugh described the first three factors as “incompatib[le]

with the FOIA’s structure and purposes” and “so vague and malleable that they provide very

little guidance to district courts.” Id. at 691–92.

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 Regardless of the wisdom in Judge Kavanaugh’s suggestion that the D.C. Circuit “should

jettison the four-factor standard and adopt” a rule that “prevailing plaintiffs should receive

attorney’s fees—with only a very narrow exception for ‘special circumstances’ such as bad faith

by a prevailing plaintiff,” id. at 692 (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400, 402 (1968)), this Court is bound by Davy and its progeny, and must apply the four-factor

test.

3. Computation Of Fee Award

Determining the reasonable attorneys’ fees to which a prevailing party is entitled entails a

three-part analysis: “(1) determination of the number of hours reasonably expanded [sic] in

litigation; (2) determination of a reasonable hourly rate or ‘lodestar’; and (3) the use of

multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel (SOCM), 857 F.2d

1516, 1517 (D.C. Cir. 1988) (citation omitted). The fee applicant bears the burden of justifying

the attorneys’ fees requested. See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.

Cir. 1995) (“a fee applicant bears the burden of establishing an entitlement to an award,

documenting the appropriate hours, and justifying the reasonableness of the rates”) (citing Blum

v. Stenson, 465 U.S. 886, 896 n.11 (1984)). The party seeking fees must submit evidence

regarding “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and

the prevailing market rates in the relevant community.” Id. Upon submission of such

information, a presumption applies that the number of hours billed and the hourly rates are

reasonable. Jackson v. District of Columbia, 696 F. Supp. 2d 97, 100–01 (D.D.C. 2010) (citing

Blackman v. District of Columbia, 677 F. Supp. 2d 169, 172 (D.D.C. 2010)). The burden then

shifts to the defendant to “provide specific contrary evidence tending to show that a lower rate

would be appropriate.” Covington, 57 F. 3d at 1109–10 (quoting Nat’l Ass’n of Concerned

Veterans v. Sec’y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982) (“Concerned Veterans”)).
7
III. DISCUSSION

The defendant contends that the plaintiff was not a prevailing party for the purposes of

the FOIA and is therefore not entitled to attorneys’ fees at all. Def.’s Opp’n at 10–14. In the

alternative, the defendant argues that (1) the plaintiff is foreclosed from seeking additional fees

for any period of time prior to the January Judgment; and (2) the plaintiff is not entitled to all of

the fees it seeks for the period after the January Judgment. Each argument is addressed in turn

below.

A. The Plaintiff Is A “Prevailing Party” Eligible For Attorneys’ Fees

The defendant contends that the plaintiff did not “substantially prevail” because

“withholding [] NSPD 54 was correct as a matter of law,” based on this Court’s holding in EPIC

I. Def.’s Opp’n at 11. The defendant is incorrect for two reasons. First, the portion of EPIC I

setting out the legal basis for the defendant’s withholding of NSPD 54—i.e., that NSPD 54 was

not an agency record subject to FOIA—was vacated at the joint request of the plaintiff and

defendant. See D.C. Cir. Order at 1, ECF No. 38. Thus, the defendant’s contention that “[t]his

Court’s legal determination that FOIA does not require the release of NSPD 54 stands,” Def.’s

Opp’n at 11, is incorrect: that determination has been vacated. Second, even if the defendant

were correct and EPIC I did show that the agency was correct to withhold NSPD 54 as a matter

of law, such a finding would not affect the plaintiff’s eligibility for a fee award; it would affect

the plaintiff’s entitlement for such an award. See Brayton, 641 F.3d at 525–26. The language of

the statute is clear and reflects a generally practical consideration regarding whether a FOIA

plaintiff obtained the relief it wanted, in the form of the release of the requested information: “a

voluntary or unilateral change in position by the agency, if the complainant’s claim is not

insubstantial,” qualifies a FOIA plaintiff as a prevailing party eligible for attorneys’ fees. See 5

U.S.C. § 552(a)(4)(E)(ii)(II); see also Petersen v. Gibson, 372 F.3d 862, 865 (7th Cir. 2004)
8
(holding that courts “must examine the practical impact of the judgment” to determine prevailing

party status). This is precisely the situation in which the plaintiff finds itself: following the

plaintiff’s appeal, the defendant voluntarily released NSPD 54 and agreed to request vacatur of

the portion of this Court’s opinion that found the defendant to have acted in accordance with the

law. See Def.’s Opp’n at 11. Thus, the plaintiff is a prevailing party eligible for attorneys’ fees.

The defendant’s arguments regarding the whether the agency was “correct as a matter of law” in

withholding NSPD 54 is more properly addressed in the Court’s review of the plaintiff’s

entitlement to fees. See infra Part III.C.

B. The January Judgment Forecloses All Fees Prior To January 27, 2014

Although FOIA fees are generally governed by the four non-exclusive factors set forth in

Tax Analysts, the plaintiff seeks $21,987.01 for fees and costs incurred in the pursuit of NSPD 54

on or before January 27, 2014, the date on which the defendant extended the Offer of Judgment

that the plaintiff ultimately accepted. See Pl.’s Mot. Ex. 1 at 1–2, ECF No. 44-2 (“Bill of Fees

and Costs” noting $15,777.01 in “District Court fees” not including “Fees on fees”); id. Ex. 3 at

1, ECF No. 44-4 (“D.C. Circuit Billing Records” noting $6,210.00 in fees on or before January

22, 2014). Therefore, the plaintiff’s request for any fees and costs incurred prior to the January

Judgment are more properly considered under District of Columbia contract law, as part of a

legal settlement. See Tsintolas Realty Co., 984 A.2d at 188.

The plaintiff contends that the fees it requests now—those pertaining to NSPD 54 and

incurred before the January Judgment—should not be considered part of the January Judgment

because “this Court had ruled that the request for NSPD-54 was not properly before the Court.”

Pl.’s Reply at 3. While the plaintiff adequately summarizes the Court’s holding in EPIC I

regarding NSPD 54, as previously noted, that portion of the opinion was vacated. See D.C. Circ.

Order at 1; Pl.’s Reply at 3 (citing D.C. Circuit Order). Whether NSPD 54 was an “agency
9
record” for the purposes of FOIA was still “a live controversy” up to and until the defendant

agency released the document. See D.C. Circuit Order at 1 (“As the agency has now released the

document appellant sought, the appeal no longer presents a live controversy.”). Thus, the

plaintiff’s contention that its litigation regarding the disclosure of NSPD 54 was “not properly

before the Court” is incorrect as a matter of law. The fact that the Court concluded that this part

of the plaintiff’s suit was not subject to a FOIA request does not mean litigation did not occur or

that there was no live controversy.

In any event, even if the claim were not “live” as of the January Judgment, the January

Judgment made no delineation between costs for live and rejected claims. The January

Judgment, offered pursuant to Federal Rule of Civil Procedure 68, allowed judgment to be taken

against the defendant “in full resolution of all claims of” the plaintiff “for all costs, including

attorney’s fees, incurred in this action. This offered amount includes all costs accrued, including

all attorney’s fees and all fees on fees.” Whether pertaining to a live claim or not, all costs and

fees “incurred” by the plaintiff prior to January 27, 2014, including “all attorney’s fees and all

fees on fees,” were expressly considered part of the January Judgment. Using the District of

Columbia’s objective method of reading contracts, where the Court looks to the written language

of the contract regardless of the actual intent of the parties, Abdelrhman, 76 A.3d at 888, this

Court finds that the plaintiff settled “all claims . . . for all costs, including attorney’s fees,

incurred in this action,” January Judgment at 1, and the plaintiff cannot, therefore, recover

attorneys’ fees beyond the amount contemplated in the January Judgment for the period prior to

January 27, 2014.

The policy underlying Rule 68 also militates against the plaintiff’s position. The

plaintiff’s logic is that since the plaintiff had lost its claim regarding NSPD 54 on jurisdictional

10
grounds, the plaintiff was not entitled to fees pertaining to its pursuit of the document and the

defendant’s Offer could not have encompassed that claim. See Pl.’s Reply at 7–8. By seeking

nearly $22,000 in additional fees for the period covered by the January Judgment, the defendant

correctly points out that the plaintiff is seeking now to “undo the Judgment already entered.”

Def.’s Opp’n at 8. Thus, in addition to being contrary to the plain terms of the agreement, the

plaintiff’s argument is contrary to the purpose of Rule 68 to “encourag[e] settlement . . . [by]

enhanc[ing] both defendants’ incentive to extend Rule 68 offers and plaintiffs’ incentive to

accept them.” Tunison v. Cont’l Airlines Corp., 162 F.3d 1187, 1193 (D.C. Cir. 1998).

Consequently, the plaintiff’s Motion for Fees prior to the date of the defendant’s Offer of

Judgment, January 27, 2014, is denied. 4

C. The Plaintiff Is Entitled To Attorneys’ Fees For The Period After January
27, 2014

This determination does not end the inquiry, however, since the bulk of the fees and costs

the plaintiff seeks were incurred between February 2014 and December 2014. See Pl.’s Mot. Ex.

1 at 1–2; Pl.’s Reply at 22. The Court first determines if the plaintiff is entitled to attorneys’ fees

under the Tax Analysts factors before turning to a determination of the amount of those fees.

1. The Agency’s Rationale For Withholding NSPD 54 Was Not “Correct
As A Matter Of Law”

As stated previously, see supra Part III.A, the defendant contends that the plaintiff is not

entitled to attorneys’ fees because the defendant’s “withholding of NSPD 54 was correct as a

matter of law” because “this Court has already held that, granting NSA summary judgment ‘as it

pertains to NSPD 54.’” Def.’s Opp’n at 11. If the defendant were correct, this finding would

4
The defendant argues that the plaintiff’s mere attempt to seek these costs warrants dismissal of its entire fee
petition as a sanction. See Def.’s Opp’n at 9–10. While the plaintiff’s argument is erroneous, it is not frivolous, nor
does it appear to be an attempt to “egregiously overbill the Government,” id. at 10, for costs incurred in what was,
ultimately, a successful quest for the release of NSPD-54. Thus, the Court declines to impose the sanction of
dismissing the plaintiff’s fee petition.

11
end any further consideration of the plaintiff’s fee petition, since “[i]f the Government’s position

is correct as a matter of law, that will be dispositive.” Davy, 550 F.3d at 1162. The defendant,

however, is not correct, for at least three reasons.

First, in vacating EPIC I prior to a decision from the D.C. Circuit, the defendant and

plaintiff agreed to erase any determination as to the propriety of the defendant’s withholding. In

effect, the parties returned to the status quo ante, when no Court had considered whether the

defendant’s grounds for withholding NSPD 54 were justified. At least at this stage in the

proceedings, then, no Court has determined that the defendant’s position was “correct as a matter

of law.”

Second, the plaintiff correctly points out that the defendant did not assert the rationale on

which EPIC I found that NSPD 54 need not be released: that it was not an agency record subject

to the FOIA. See Pl.’s Reply at 7. Indeed, when the parties were ordered to submit a

supplemental briefing schedule to account for this jurisdictional problem, as clarified by the D.C.

Circuit’s opinion in Judicial Watch v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir 2013), the

defendant “conferred” with the plaintiff and “agree[d] that no supplemental briefing [was]

necessary.” Joint Status Report at 1, ECF No. 26. In other words, the basis for the withholding

in EPIC I as to NSPD 54 was never asserted as the “Government’s position” at all and,

consequently, the “Government’s position” was never found to be correct as a matter of law. See

Davy, 550 F.3d at 1162.

Third, the position the defendant did assert was not correct as a matter of law. The

defendant asserted that NSPD 54 was protected by Exemption 5 to the FOIA, which privilege

exempts records from release that are “inter-agency, or intra-agency memorandums or letters

which would not be available by law to a party other than an agency in litigation with the

12
agency.” 5 U.S.C. § 552(b)(5). The defendant expressly invoked “the presidential

communication privilege” for exempting NSPD 54 under Exemption 5, on which EPIC I did not

opine. See Def.’s Mem. Supp. Def.’s Mot. Summ. J. (“Def.’s Summ. J. Mem.”) at 1–2, ECF No.

12-1. 5

The defendant appears to be asking for a de novo merits determination of the type

expressly contemplated in Brayton. The D.C. Circuit held in Brayton that “[i]t is undeniable that

considering the merits of an agency’s nondisclosure decision will frequently complicate the

adjudication of motions for attorney fees.” 641 F.3d at 528. In evaluating the inconvenience and

waste of judicial resources that would accompany these “mini-trial[s] on the merits of the

underlying FOIA claim,” id., the D.C. Circuit held that the “concern that courts should not dole

out fee awards to plaintiffs who bring FOIA lawsuits that cannot survive a motion for summary

judgment” outweighs any such considerations. Id. The concerns weighed in Brayton are

especially acute here, since the Court has already ruled on the defendant’s summary judgment

motion, only to see its ruling vacated at the request of the parties, with the same parties now

raising the same contentions in the context of a fee petition.

Fortunately, in the intervening period between EPIC I and today, another Judge in this

District did address the position raised by the defendant in this matter—that presidential

directives are exempt from disclosure under the FOIA’s Exemption 5—on the merits. In Center

for Effective Government v. U.S. Department of State, 7 F. Supp. 3d 16 (D.D.C. 2013), Judge

Huvelle set forth detailed reasons why the defendant’s position that presidential directives were

5
The defendant also invoked Exemption 1 and Exemption 3 to the FOIA, which exemptions allow the withholding
of classified information and information exempted by other statutes, respectively, 5 U.S.C. §§ 552(b)(1), (3), to
withhold portions of NSPD 54. Def.’s Summ. J. Mem. at 2. Since the defendant released an “unclassified version
of NSPD 54,” Def.’s Opp’n at 4, and neither party raises the issue, the Court assumes without deciding that all
portions of NSPD 54 withheld solely under Exemption 5 were released voluntarily to the plaintiff.

13
protected by the presidential communications privilege was not correct as a matter of law and

such directives were not subject to FOIA’s Exemption 5. To the extent that the parties look to

have their dispute addressed anew in the context of this fee petition, despite the fact that the

plaintiff has already received the document it requested, the Court sees no reason to disagree

with the reasoning set out in Center for Effective Government. Thus, far from asserting a

position that was “correct as a matter of law,” the defendant, in light of Center for Effective

Government, asserted a position that was incorrect as a matter of law. Since the fourth factor in

the Tax Analysts test is only dispositive if the government’s position is “correct as a matter of

law,” Davy, 550 F.3d at 1162, and Center for Effective Government found that the defendant’s

position was incorrect as a matter of law, no one factor of the Tax Analysts test is dispositive and

the Court must examine all four of them to determine whether the plaintiff is entitled to a fee

award.

2. The Tax Analysts Factors Weigh In Favor Of The Plaintiff

The four non-exclusive factors to be examined in awarding FOIA attorneys’ fees are (1)

the public benefit of the information sought; (2) the commercial benefit to the plaintiff; (3) the

nature of the plaintiff’s interest; and (4) the defendant’s reasonable basis for withholding

information. See Tax Analysts, 965 F.2d at 1093. As for the first factor, the defendant asserts

that the release of the information sought by the plaintiff provides only minimal public benefits

because the plaintiff “identifies only one public news account that makes any reference to the

release of NSPD 54 whatsoever.” Def.’s Opp’n at 12. This media coverage-based argument was

advanced and rejected in EPIC v. FBI, No. 13-442, 2014 WL 5713859, at *5 (D.D.C. Nov. 5,

2014). In that case, the court found that the release of records related to an FBI facial

recognition database was “fairly within the public interest,” “expand[ed] public knowledge”

about the FBI’s system, and “inform[ed] debate regarding how the system and its data [were]
14
used.” Id. at *4. The defendant argued that the presence of few media articles in the record

discussing “the specific records obtained in” the case militated against finding that the public

was benefitted by the release of records. Id. at *5. The court rejected that contention, stating

that the “argument focuses the public benefit factor too narrowly,” noting that “[t]he relevant

inquiry is whether [the plaintiff’s] success is likely to add to the fund of public information that

citizens may use in making vital political choices.” Id. (emphasis in original; internal quotation

marks omitted).

In the instant matter, NPSD 54, and its information regarding national cybersecurity

procedures, is “likely to add to the fund of public information” by providing additional

information to citizens regarding their government’s activities, which is the fundamental purpose

of FOIA. See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1177 (D.C. Cir. 2011). The

defendant’s focus on the number of news articles mentioning the released records fails to take

into account the likelihood that this information will continue to inform public discourse for

years to come. See Morley, 719 F.3d at 690 (“[T]he standard for entitlement to attorney’s fees

does not ‘disqualify plaintiffs who obtain information that, while arguably not of immediate

public interest, nevertheless enables further research ultimately of great value and interest’”

(quoting Davy, 550 F.3d at 1162 n.3)). Thus, the first Tax Analysts factor favors the plaintiff.

The second and third factors, the plaintiff’s commercial benefit and interest in the

information, can be evaluated together. Davy, 550 F.3d at 1160 (“The second and third factors . .

. are often considered together”). The defendant makes a cursory attempt to show that these

factors do not favor the plaintiff by noting that the plaintiff, a non-profit advocacy organization,

is seeking donations through its website and newsletters, which also publicize the plaintiff’s

success in obtaining NSPD 54’s release. See Def.’s Opp’n at 13–14. The defendant cites to no

15
authority for the proposition that a non-profit organization’s success at obtaining the release of

documents should be held against it when that same organization mentions such success

indirectly in its fundraising appeals. See id. Moreover, as the defendant concedes, other Judges

in this District have determined that these two factors distinctly favor this plaintiff, since it is a

“non-profit public interest research center . . . [that] derived no commercial benefit from its

FOIA request or lawsuit,” and its stated aims are the public dissemination of information. EPIC

v. U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 235 (D.D.C. 2011) (alteration in original).

Thus, the second and third factors favor the plaintiff.

As to the fourth factor, as explained above, the defendant’s withholding of NSPD 54 was

not “correct as a matter of law” and was rejected in Center for Effective Government. See supra

Part III.C.1. Thus, this fourth factor favors the plaintiff. Since all four Tax Analyst factors favor

the plaintiff, the plaintiff is entitled to a fee award. The amount of that award is reviewed for

reasonableness next.

3. Portions Of The Plaintiff’s Fee Request Are Disallowed

In awarding attorneys’ fees, courts generally must follow the “lodestar” method, whereby

an attorney’s reasonable hourly rate is multiplied by the number of hours expended on the

litigation. See SOCM, 857 F.2d at 1517. The defendant challenges the plaintiff’s method of

recordkeeping and the reasonableness of the hours expended in litigation. 6

The defendant alleges that the plaintiff’s compilation of its billing records into a single

document violates the requirement that the plaintiff submit “contemporaneous time records.”

Def.’s Opp’n at 14–15. The plaintiff has submitted a consolidated summary of the records and a

6
The defendant also challenged the plaintiff’s documentation for its attorneys’ status as licensed to practice law.
Def.’s Opp’n at 18–21. The plaintiff’s declaration of Alan Butler, submitted with the plaintiff’s reply resolves those
issues and shows that the plaintiff’s attorneys were, indeed, licensed attorneys with the claimed years of experience
as first submitted by the plaintiff. See Decl. of Alan Butler (Dec. 8, 2014) ¶ 7, ECF No. 46-1.

16
record of the hours spent on the individual dates by each attorney who worked on the matter,

along with their billing rate. See Pl.’s Mot. Exs. 2–4. These records are, contrary to the

defendant’s view, exactly the type of recordkeeping required for fee awards. See Concerned

Veterans, 675 F.2d at 1327. Each attorney involved stated in a sworn affidavit that they

calculated the number of hours spent on the matter based on the “contemporaneously-generated

time records that [they] recorded throughout the litigation” of this matter. Aff. of Alan Butler ¶

7, ECF No. 44-6; see also Aff. of Amie Stepanovich ¶ 7, ECF No. 44-7 (same); Aff. of David

Husband ¶ 7, ECF No. 44-8 (same); Aff. of Ginger McCall ¶ 7, ECF No. 44-9 (same); Aff. of

Julia Horwitz ¶ 7, ECF No. 44-10 (same); Aff. of Marc Rotenberg ¶ 9, ECF No. 44-11 (same);

Aff. of T. John Tran ¶ 7, ECF No. 44-12 (same). These contemporaneous billing records are

reflected in the entries on the consolidated documents submitted by the plaintiff. See Pl.’s Mot.

Exs. 2–4. Thus, the plaintiff has met its burden, through the submission of affidavits,

declarations, and billing records, of establishing the reasonableness of the fees requested. See

SOCM, 857 F.2d at 1517.

The burden therefore shifts to the defendant to come forward with “specific contrary

evidence” to rebut the presumption of reasonableness that inheres in the plaintiff’s fee request.

Covington, 57 F.3d at 1109–10. The only “evidence” the defendant presents is a challenge to the

reasonableness of staffing levels on certain “conferences” held by the plaintiff’s attorneys.

Def.’s Opp’n at 22. It is axiomatic that “trial courts need not, and indeed should not, become

green-eyeshade accountants” in examining fee requests since “[t]he essential goal in shifting fees

(to either party) is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 131 S.

Ct. 2205, 2216 (2011). It is, quite simply, unnecessary and a waste of judicial resources to

17
engage in such a picayune review of the subjective reasonableness of the number of attorneys

who participated in a conference call.

Nevertheless, the defendant’s allegation that the plaintiff negotiated in bad faith by

submitting “exploding” settlement offers on the eve of the deadlines for the submission of status

reports to the Court is troubling. See Def.’s Opp’n at 24–25. Specifically, the defendant alleges

that the plaintiff submitted to the defendant settlement offers that were “placed on the table for

less than twenty-four hours, and withdrawn over the objection of [defense] counsel, and before

[defense counsel] had had a reasonable opportunity to consider it.” Id. at 24. These “exploding

offers” do not appear to have been submitted with a deadline for consideration, alerting the

defendant that it would be required to respond within a set period of time. See id. at 5.

Disturbingly, both offers of judgment from the plaintiff were extended within 24 hours of a

deadline for a submission to the Court regarding the status of settlement discussions. See id.

Thus, it would appear that these offers were extended for the express purpose of allowing the

parties to make representations to the Court that were true at the time the required submissions

were made, and were then withdrawn almost immediately after the submission was filed. See

id. 7

The plaintiff may, as the defendant admits, place any time limits on negotiations and

offers that it wishes. See id. at 24 (“EPIC is free, of course, to negotiate however it sees fit.”).

Nevertheless, such sharp practice of extending and then withdrawing settlement offers subverts

the purpose of Rule 68 and the local rules, which are designed to encourage settlement. See, e.g.,

7
The plaintiff contends that the defendant’s submission of such information violates Federal Rule of Evidence 408,
Pl.’s Reply at 21, Pl.’s Sur-Surreply in Response Def.’s Surreply on Pl.’s Mot. at 2–3, ECF No. 50, but the
defendant is not submitting such evidence “either to prove or disprove the validity or amount of a disputed claim,”
FED. R. EVID. 408(a). Rather, the defendant is submitting a general description of the plaintiff’s conduct, which the
plaintiff does not dispute, see Pl.’s Reply at 20–21, to bolster its contention that the plaintiff failed to negotiate in
good faith, as required by this Court’s Local Civil Rule 7(m), Def.’s Opp’n at 24.

18
Marek v. Chesny, 473 U.S. 1, 11 (1985); Gordon v. Gouline, 81 F.3d 235, 238 (D.C. Cir. 1996).

Moreover, it would appear that the plaintiff’s actions were designed to give the appearance of

progress in negotiations to the Court, thereby forestalling the setting of a briefing schedule and

prolonging this litigation. See Joint Status Report at 1, ECF No. 42 (“Fee negotiations are

ongoing . . . . Accordingly, the Parties propose that the Court allow two weeks for discussion of

fees and costs.”); see also Def.’s Opp’n at 5 (noting unilateral withdrawal of settlement offers

immediately after filing of joint status reports with the Court). Such practices may hinder fee

negotiations by increasing the costs to all parties involved and discouraging negotiation in favor

of submitting disputes for judicial resolution. The defendant is correct that such tactics should

not be countenanced to maintain the letter and spirit of the rules. Def.’s Opp’n at 24–25.

Consequently, the Court will disallow all fees sought after the abrupt withdrawal of the

plaintiff’s first settlement offer on October 1, 2014. Those disallowed fees total $15,187. 8

* * *

To sum up, the plaintiff is eligible for and entitled to attorneys’ fees as a prevailing party

under 5 U.S.C. 552(a)(4)(E)(ii)(II). All fees and costs incurred prior to January 27, 2014 are

covered by the January Judgment and therefore disallowed. The Court also disallows all fees

incurred on and after October 1, 2014, when the plaintiff engaged in what can be charitably

described as “sharp practice” in its submission of offers to the defendant that “exploded” after

the submission of status reports to the Court indicating potential progress in negotiations. These

deductions total $37,174.01.

8
The sum total of bills submitted between October 1, 2014 and the date of this Memorandum Opinion is derived
from the plaintiff’s Ex. 4 and the total requested in the plaintiff’s reply.

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IV. CONCLUSION

For the foregoing reasons, the plaintiff’s Motion for Attorney’s Fees and Costs is granted

in part and denied in part. The defendant shall pay $31,180.00 in eligible attorneys’ fees and

costs, which amount constitutes the reasonable fees and costs incurred between January 27, 2014

and October 1, 2014.

An Order consistent with this Memorandum Opinion will issue contemporaneously.

Digitally signed by Judge Beryl A.
Howell
DN: cn=Judge Beryl A. Howell,
Date: April 8, 2015 o=United States District Court,
ou=District of Columbia,
email=Howell_Chambers@dcd.usc
ourts.gov, c=US
__________________________
Date: 2015.04.08 17:36:00 -04'00'

BERYL A. HOWELL
United States District Judge

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