UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY
INFORMATION CENTER
Plaintiff,
v. Civil Action No. 12-0333 (GK}
THE UNITED STATES DEPARTMENT
OF HOMELAND SECURITY
Defendant.
MEMORANDUM OPINION
Plaintiff Electronic Privacy Information Center ("Plaintiff"
or "EPIC") brings this action against Defendant the United States
Department of Homeland Security ("the Government" or "DHS") under
the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff
sought records concerning the Defense Industrial Base Cyber Pilot
("DIB Cyber Pilot"),· a cyber-security pilot program jointly
conducted by the United States Department of Defense ("DoD") and
Defendant DHS. Memorandum in Support of Defendant's Motion for
Summary Judgment ("Def.'s Mot. Summ. J.") at 2 [Dkt. No. 53-1].
The program "aim [ed] to protect U.S. critical
infrastructure[,] [and] furnished classified threat and
technical information to voluntarily participating [] companies or
their Commercial Service Providers[]." Id. EPIC, citing concerns
from the Department of Justice that the,program "[ran] afoul of
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laws forbidding government surveillance of private Internet
traffic [,] /1
filed a FOIA request with DHS seeking records to
determine whether the DIB Cyber Pilot program complied with federal
wiretap laws. Plaintiff's Memorandum of Points and Authorities in
Opposition to Defendant's Motion for Summary Judgment and in
Support of Plaintiff's Cross-Motion for Summary Judgment ("Pl.'s
Mot. Summ. J. 11
) at 2 [Dkt. No. 57-1]. Dissatisfied with DHS's
response, EPIC initiated this lawsuit challenging the sufficiency
of DHS's search and production.
Thereafter, DHS conducted a search for records responsive to
EPIC's request, produced documents to EPIC, and provided a Vaughn
Index for all documents that were withheld in full or in part under
one of FOIA' s several exemptions. 5 U.S. c. § 552 (b) ; . see also
Defendant's Vaughn Index for Challenged Withholdings ("Vaughn
Index") [Dkt. No. 53-4] .
The Court held that DHS's search for records responsive to
EPIC's FOIA request was sufficient and that the Government met its
burden in justifying withholding documents under all but one
relevant FOIA Exemption. Memorandum Opinion on Summary Judgment
(Aug. 4, 2015) ("2015 Mem. Op.") at 16 [Dkt. No. 68]. The Court
ordered DHS to submit a revised Vaughn Index to more fully explain
the basis for withholding documents under FOIA Exemption 7(D), id.
at 38, which it did on September 30, 2015. Notice of Filing of
Supplemental, Revised Vaughn Index ("Supplemental Vaughn Index")
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[Dkt. No. 73]. EPIC now seeks attorneys' fees under 5 U.S.C. §
552(a) (4) (E). Memorandum of Points and Authorities in Support of
Plaintiff's Motion for Attorneys' Fees and Costs ("Pl.' s Mot.")
[Dkt. No. 81-1].
I. BACKGROUND
A. FOIA
The Freedom of Information Act ("FOIA"), 5 U.S.C § 552, was
enacted by Congress "to ensure an informed citizenry, vital to the
functioning of a de~ocratic society." Critical Mass Energy Project
v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992),
cert. denied, 507 U.S. 984 (1993) (citing Fed. Bureau of
Investigations v. Abramson, 456 U.S. 615, 621 (1982)).
When an agency receives a request for records, the agency
must conduct a sufficient search for records within the scope of
the request. 5 U.S.C. § 552(a) (3) (A). The agency then must furnish
the information in a timely manner, unless the information is
precluded from disclosure by one of FOIA' s nine exemptions. §
552(b). FOIA's goal is "broad disclosure," and the exemptions must
be "given a narrow compass." Milner v. Dep't of Navy, 562 U.S.
562, 571 (2011) (citing U.S. Dep't of Justice v. Tax Analysts, 492
U.S. 136, 151 (1989)).
The agency has the burden of justifying its withholding of a
document under a FOIA exemption. Defenders of Wildlife v. U.S.
Border Patrol, 623 F. Supp. 2d 83, 91 (D.D.C. 2009). To enable the
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Court to determine whether the agency has met its burden, the
agency must submit a "Vaughn Index" consisting of affidavits or
declarations that "identif [y] the reasons why a particular
exemption is relevant and correlate [e] those claims with the
particular part of a withheld document to which they apply." Id.
(citing Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141,
146 (D.C. Cir. 2006)); see also Vaughn v. Rosen, 523 F.2d 1136
(D.C. Cir. 1975).
FOIA additionally provides for attorneys' fees in order to
encourage FOIA suits that benefit the public and to compensate a
complainant for enduring an agency's resistance to complying with
FOIA. Barnard v. Dep't of Homeland Sec., 656 F. Supp. 2d 91, 97
(D.D.C. 2009). FOIA provides that a court may award "reasonable
attorney fees and other litigation costs reasonably incurred" in
FOIA litigation in which the complainant has "substantially
prevailed." 5 U.S.C. § 552 (a) (4) (E) (i).
B. Factual Background
1. EPIC'S FOIA Request and Appeal
On July 26, 2011, EPIC submitted a FOIA request for documents
to DHS, as well as requests for news media fee status and a fee
waiver. Pl.'s Mot. Summ. J. at 2. EPIC requested records related
to the DIB Cyber Pilot program "to monitor Internet traffic flowing
through certain Internet Service Providers ("ISPs") from Internet
users to a select number of defense contractors." Id. Specifically,
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EPIC requested five categories of documents, with the fifth
category described as, "[a]ny privacy impact assessment performed
as part of the development" of the DIB Cyber Pilot program. Id. at
3.
After receiving a FOIA request, an agency must make a
"determination" within 20 working days as to whether to comply
with the request. 5 U.S.C. § 552 (a) (6) (A) (i). A "determination"
must include the scope of the documents that the agency will
produce and withhold under FOIA exemptions. Citizens for
Responsibility and Ethics in Washington v. Fed. Election Comm'n,
711 F.3d 180, 186 (D.C. Cir. 2013).
The following week, on August 3, 2011, DHS sent a letter to
EPIC acknowledging receipt of its FOIA request. Def.'s Mot. Summ.
J. at 2. DHS also indicated that it had referred the request to
the DHS National Protection and Programs Directorate ("NPPD"). DHS
Response at 1-2 [Dkt. No. 58-3]. DHS notified EPIC that no
responsive documents had been found for the fifth category and
informed EPIC of its right to appeal that determination.
After receiving no further communication regarding its FOIA
request, EPIC faxed an administrative appeal approximately 100
days later on January 5, 2012, to the attention of NPPD FOIA
Officer Lizzy Gary. EPIC Facsimile at 1-2 [Dkt. No. 57-4]. Under
DHS' s FOIA regulations, an appeal must be made in writing and
received by the Associate General Counsel of DHS within 60 days of
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the date of the agency's "adverse determination." 6 C.F.R. §
5.9(a) (1). EPIC appealed NPPD's failure to respond to categories
1-4 of EPIC's FOIA request, but did not appeal DHS's determination
that it lacked records for category 5 of the request. EPIC
Facsimile at 2. In its Answer, DHS denied that the January 5,
2012 facsimile constituted a FOIA appeal, Answer ' 26-28 [Dkt. No.
7], and its timeliness. Defendant's Statement of Undisputed
Material Facts in Support of its Motion for Summary Judgment
("Def.'s Statement") '9-10 [Dkt. No. 62-4].
As already noted, the agency must make a determination as to
any appeal within twenty days. 5 u.s.c. § 552 (a) (6) (A) (ii). An
adverse determination by the Associate General Counsel will be the
final action, 6 C.F.R. § 5.9(a) (2), and the decision "will be made
in writing," 6 C.F.R. § 5.9(b). On January 23, 2012, a FOIA
Specialist from NPPD contacted EPIC by telephone requesting
additional information with respect to category one of EPIC'S FOIA
request. Declaration of Amie Stepanovich ("First Stepanovich
Deel.") ' 12 [Dkt. No. 18-1]. EPIC was unable to provide the agency
with further information, and DHS informed EPIC that "DHS was
processing the request," Id.; Def.'s Mot. Summ. J. at 3.
Under FOIA, a person making a request for any records will be
deemed to have exhausted administrative remedies if the agency
fails to comply with the applicable time limit provisions under
FOIA. 5 U.S.C. § 552 (a) (6) (C) (i). Arguing that NPPD failed to
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comply with FOIA by neither responding to nor producing records
for EPIC's FOIA request within the statutory timelines, EPIC filed
its Complaint for Injunctive Relief on March 1, 2012. Complaint
for Injunctive Relief ( "Compl.") ~ 4 [Dkt. No. l] . EPIC sought,
inter alia, a court order compelling DHS to conduct a search for
responsive records within five days and to produce documents within
ten days, and attorneys' fees and other relief as "just and
proper." Compl. ~ A-E. DHS filed its Answer on May 1, 2012.
2. FOIA Litigation
After DHS filed its Answer, the parties submitted a Joint
Meet and Confer Statement, where they agreed that categories 1-4
of EPIC's FOIA request served as the basis of the FOIA litigation,
and that EPIC did not appeal DHS's determination that it lacked
records responsive to category 5. Joint Meet and Confer Statement
("Joint Statement") ~ 3 [Dkt. No. 11] . The parties also stated
that DHS was conducting a "new search for records" responsive to
categories 1-4 of EPIC' s FOIA request. Id. ~ 4. Although the
parties agreed that the post-production issues would likely be the
sufficiency of DHS's search, the appropriateness of the agency's
withholdings, and attorneys' fees, they disagreed as to the
appropriate production schedule. Id. ~ 5, 8.
DHS proposed a two-stage search for responsive records, with
stage one focused on gathering responsive records and stage two
focused on reviewing the documents for relevance and potential
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FOIA Exemptions. Id. ~ 6. While DHS proposed a June 27, 2012
deadline for stage one, the agency was unable to propose a stage
two deadline due to the need for inter-agency collaboration and
the uncertainty as to timing. Id. Nonetheless, DHS stated it could
complete its "first production" of responsive records on July 18,
2012. Id. Plaintiff's proposed schedule consisted of "concrete
deadlines," with DHS to complete production of documents and the
Vaughn Index by August 24, 2012. Id. ~7. On May 24, 2012, the
Court adopted the Plaintiff's proposed time line and issued a
scheduling order for DHS to complete production of documents and
the Vaughn Index by August 24, 2012. Order, May 24, 2012
("Scheduling Order") [Dkt. No. 12] .
After DHS identified approximately 10,000 pages of documents
potentially responsive to EPIC'S FOIA request, it moved, on the
last day of the August 24 deadline, to stay proceedings for ten
days to enable the parties to narrow the scope of EPIC'S request.
Defendant's Motion for a 10-Day Stay of Proceedings ("Def.'s Mot.
Stay") at 2-3 [Dkt. No. 13]. DHS argued that the large volume of
classified documents potentially responsive to EPIC's FOIA request
would require significant review by DHS and other agencies. Id. at
2. DHS noted its intention to move to modify the May 24, 2012
Scheduling Order, but stated that how much additional time it would
need would "depend on whether the parties are able to reach
agreement on narrowing the scope of the request." Id. at 2-3.
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After the Court granted DH.S's ten-day stay, DHS moved for a
second ten-day stay. Defendant's Motion to Continue Stay of
Proceedings for 10 Additional Days ("Def.'s Second Mot. Stay") at
1 [Dkt. No. 14]. Although EPIC had narrowed its FOIA request on
August 31, 2012, by excluding draft documents and by limiting the
scope of request category three, DHS again sought more time to
assess the impact of the narrowed request on the number of
potentially responsive document pages. Id. at 2-3. In its second
motion, DHS anticipated that it would need to further clarify and
narrow EPIC'S FOIA request in light of the remaining volume of
classified document pages. Id.
EPIC opposed DHS' s second motion on the grounds that DHS
failed to demonstrate "exceptional circumstances." Plaintiff's
Opposition to Defendant's Motion for an Additional 10-Day Stay of
Proceedings ("Pl. 's Opp'n Stay") at 3 [Dkt. No. 15]. EPIC noted
that DHS had engaged in significant delays in seeking to narrow
the scope of EPIC"s request: first, by waiting until the deadline
for full production had arrived - August 24, 2012, three months
after the May 24 Scheduling Order - before first contacting EPIC;
and then, even after the first 10-day stay was granted, waiting
almost another week to contact EPIC about further narrowing the
FOIA request. Id. EPIC also argued that DHS "failed to provide a
date certain by which time any documents might act~ally be
produced." Id. at 5.
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After the Court granted the second 10-day stay, Order (Sept.
5, 2012) ("Sept. 5, 2012 Order") [Dkt. No. 16], DHS moved to modify
the scheduling order. Defendant's Motion to Modify the Scheduling
Order ("Def.'s Mot. to Modify") at 1 [Dkt. No. 17]. DHS stated
that the new scope of EPIC's FOIA request only reduced the number
of potentially responsive document pages from approxima.tely 10, 000
to approximately 9,200, and that EPIC did not agree to further
narrow the request. Def.'s Mot. to Modify at 1-2. After estimating
that it would take 16 months to review the documents due to EPIC's
broad request, the volume of documents, and the need for inter-
agency collaboration, DHS proposed a modified schedule with
January 17, 2014 as the final due date for all responsive
documents. Id. at 3.
EPIC opposed DHS's motion on the grounds that DHS failed to
show good cause. Plaintiff's Opposition to Defendant's Motion to
Modify the Scheduling Order and Cross-Motion for Entry of An Order
to Show Cause Why Defendant Should Not Be Held in Contempt at 7
[Dkt. No. 18] . EPIC argued that the delays were due to "preventable
carelessness" on DHS's part, and that the agency had already been
granted multiple stays despite its initial representation that it
could produce documents on July 18, 2012. Id. at 4-5, 7. EPIC alo
argued that DHS demonstrated bad faith in waiting until the day of
the production deadline to ask EPIC to narrow its FOIA request,
and that EPIC had agreed to narrow its request because of DHS's
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representation that doing so would "facilitate production." Id. at
1, 8.
Although the Court permitted the scheduling order to be
modified, it found DHS' s proposed final production deadline of
January 17, 2014 as "far too far away." Order, Oct. 16, 2012
("Modified Scheduling Order") at 2 [Dkt. No. 25] . The Court ordered
DHS to fully review at least 2, 000 document pages per month,
"producing to Plaintiff all responsive and unclassified
documents," with complete production of documents by March 15,
2013, and the Vaughn Index by May 1, 2013. Id. at 3. The Order
also required DHS to submit a monthly report indicating how many
document pages it produced to EPIC each month. Id.
In a subsequent order, the Court eliminated the requirement
that DHS produce documents on a rolling basis. Order, Jan. 8, 2013
("Order on Plaintiff's Motion for Reconsideration") at 2-3 [Dkt.
No. 3 9] Instead, DHS was ordered to produce all responsive
documents by April 15, 2013, with the Vaughn Index due by June 1,
2013. Id. DHS was still required to provide a monthly report and
to review a minimum number of document pages per month, but this
minimum was reduced to 1,500. Id.
On April 15, 2013, DHS produced 1,276 pages of responsive
documents to EPIC; 117 pages were released in their entirety and
the remaining 1,159 pages were partially redacted pursuant to FOIA
Exemptions. Second Declaration of James Holzer ("Second Holzer
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•.
Deel.") ~ 46 [Dkt. No. 53 -3] . After receiving several additional
extensions from the Court, DHS provided Plaintiff with its
preliminary Vaughn Index on June 22, 2013, one day after the June
21, 2013, deadline. Pl.' s Mot. Summ. J. at 4. In total, DHS
produced 1,386 pages of documents, some released in full and some
redacted, and withheld 362 pages of documents in full under several
of FOIA's exemptions. Def.'s Mot. Summ. J. at li see also 5 U.S.C.
§ 552 (b) .
EPIC filed its Motion for Summary Judgment on August 30, 2013,
challenging the adequacy of the search performed by DHS in response
to its FOIA request. Pl.'s Mot. Summ. J. at 6. EPIC also alleged
that the Government improperly redacted and withheld documents
under FOIA Exemptions 1, 3, 4, 5, and 7(D). Id. at 9, 12, 15, 22,
24. The Court held that DHS conducted a sufficient search under
FOIA and commended DHS' s "meticulous, organized, and thorough"
initial search for responsive records. 2015 Mem. Op. at 15-16. The
Court also found that the agency was justified in its withholding
of documents under Exemptions 1, 3, 4, and 5. Id. at 21, 24, 32,
33.
The only claim on which the Court did not find in favor of
Defendant was with regard to documents withheld under Exemption
7(D). The Court held that the Vaughn Index was not sufficiently
detailed to justify the Exemption 7D withholding, but permitted
DHS to file a revised Vaughn Index. Id. at 33-38. Thus, the Court
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granted the majority of the Government's Motion for Summary
Judgment, and denied without prejudice only the portion relating
to Exemption 7D. Id. at 37-38. The Court denied without prejudice
EPIC's Motion for Summary Judgment with regard to Exemption 7D and
denied the remainder of EPIC's Motion for Summary Judgment. Id.
In sum, no portion of EPIC' s Motion for Summary Judgment was
granted. DHS produced a revised Vaughn Index on September 30, 2015
[Dkt. No. 74], which Plaintiff did not challenge.
The filing of the revised Vaughn Index thereby resolved all
issues in dispute except costs and attorneys' fees. Joint Status
Report ("Joint Report") at 1 [Dkt. No. 76].
c. Procedural Background
The parties now dispute EPIC'S Motion for Attorneys' Fees and
Costs, filed on February 5, 2016. Pl.'s Mot. [Dkt. No. 81-1]. On
March 9, 2016, DHS filed its Opposition. Defendant's Opposition
to EPIC' s Motion for Attorney Fees and Costs ("Def.' s Opp' n") [Dkt.
No. 86]. On March 22, 2016, EPIC filed its Reply. Reply in Support
of Plaintiff's Motion for Attorneys' Fees and Costs ("Reply") [Dkt.
No. 87].
II. STANDARD OF REVIEW
A court may award "reasonable attorney fees and other
litigation costs reasonably incurred" in the course of FOIA
litigation in which the complainant has "substantially prevailed."
5 U.S.C. § 552(a) (4) (E). Even though the award of attorneys' fees
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and costs is within the Court's discretion, a complainant must be
both "eligible" for and "entitled" to attorneys' fees. See Brayton
v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C.
Cir. 2011). In order to be "eligible" for attorneys' fees, a
complainant must "substantially prevail[]" in the litigation. Id.
A complainant may "substantially prevail" by obtaining relief
through a "judicial order, or an enforceable written agreement or
consent decree" 1 or by obtaining a "voluntary or unilateral change
in position" by the agency. 2 5 U.S.C. § 552 (a) (4) (E) (ii) (I) - (II).
To determine whether a complainant is "entitled" to
attorneys' fees, the Court considers factors, including, but not
limited to: "(l) 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 v.
Fed. Hous. Fin. Agency, 739 F.3d 707, 711 (D.C. Cir. 2014)
(citations omitted) .
The party seeking fees has the additional burden of
establishing the reasonableness of the fees requested. Barnard,
656 F. Supp. 2d at 97. The complainant must provide supporting
1 The Court will refer to this first theory of eligibility as the
"judicial order" theory.
2 This theory of eligibility is often referred to as the "catalyst
theory."
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documentation that is sufficiently detailed "to enable the court
to determine with a high degree of certainty that such hours were
actually and reasonably expended." Id., (quoting Role Models
America, Inc. v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004)).
III. Analysis
A. Plaintiff's Eligibility for Attorneys' Fees
EPIC argues that it is "eligible" under both the "judicial
order" and the "catalyst" theories. Pl.'s Mot. at 6-8; Reply
at 3-11.
1. Plaintiff's Eligibility under the "Judicial Order"
Theory
EPIC argues that the following Orders issued by the Court
support its eligibility for attorneys' fees under the "judicial
order" theory: (1) the May 24, 2012, Scheduling Order, the Oct.
16, 2012, Modified Scheduling Order, and the Jan. 8, 2013, Order
on Plaintiff's Motion for Reconsideration; and ( 2) the Court's
Order on the parties' cross motions for summary judgment ("Summary
Judgment Order") [Dkt. No. 67]. Pl.'s Mot. at 6-7. DHS argues that
none of the Orders issued in this litigation establish that EPIC
is eligible for attorneys' fees. Def.'s Opp'n at 5-9.
a. Orders Requiring Production
The Court begins with . Plaintiff's argument that it
substantially prevailed in this litigation as a result of the
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issuance of the Court's Scheduling Order, the Modified Scheduling
Order, or the Order on Plaintiff's Motion for Reconsideration.
A FOIA plaintiff substantially prevails when "awarded some
relief on the merits of [its] claim" in the form of a judicial
order that "change[s] the legal relationship between the plaintiff
and defendant." Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367-
68 (D.C. Cir. 2008) (citing Davy v. Central Intelligence Agency,
456 F.3d 162, 165-66 (D.C. Cir. 2006) ("Davy I") (internal
quotation marks omitted)). An order that requires an agency to
produce documents by a date certain changes the legal relationship
between the parties, because prior to the order, the agency "[is]
not under any judicial direction to produce documents by specific
dates," whereas after the order, the agency must do so or be
subject to the sanction of contempt. Id. at 368 (citing Davy I,
456 F.3d at 166).
For example, in Judicial Watch an agency refused to release
documents responsive to a FOIA request, withholding them pursuant
to one of the FOIA Exemptions. 522 F.3d at 366. After the FOIA
requestor filed suit, the agency and the requestor entered into a
stipulation, whereby the agency would release the responsive
documents by a date certain, and the district court approved the
stipulation in a court order. Id. The Court of Appeals held that
the plaintiff substantially prevailed as a result of the orders
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because the orders required the agency to produce documents by a
date certain, and thereby changed the legal relationship between
the parties. Id. at 367-68.
Similarly, the courts in this District have repeatedly held
that a FOIA plaintiff substantially prevails where a court issues
a scheduling order requiring an agency to produce responsive
documents by a date certain. See Citizens for Responsibility &
Ethics in Washington v. U.S. Dep't of Justice, 820 F. Supp. 2d 39,
44 (D.D.C. 2011); Elec. Privacy Info. Ctr. v. ,FBI, 72 F. Supp. 3d
338, 344-345 (D.D.C. 2014) i Judicial Watch, Inc. v. DOJ, 774 F.
Supp. 2d 225, 228-229 (D.D.C. 2011). This is true even where the
scheduling order adopts the production schedule proposed by the
Government, rather than the one proposed by the plaintiff.
Citizens for Responsibility & Ethics in Washington, 820 F. Supp.
2d at 44.
The Scheduling Order in this case is virtually
indistinguishable from the orders issued in Judicial Watch and
Davy I, as the Scheduling Order required the "Defendant's Complete
Production of Documents" by a date certain, August 24, 2012.
Scheduling Order at 1. It "provide [d] [Plaintiff] with the precise
relief [her] complaint sought," namely, that DHS produce all
documents responsive to EPIC'S FOIA request. See Judicial Watch,
522 F.3d at 367. Consequently, the Scheduling Order changed the
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legal relationship between the parties and EPIC substantially
prevailed in this litigation as a result of its issuance.
The Government argues that the relief granted in the
Scheduling Order - a requirement that it produce documents by a
date certain - is "just a matter of court procedure". Opp'n at 6
(citing Edmonds v. F.B.I., 417 F.3d 1319, 1323 (D.C. Cir. 2005).
The Government has repeatedly raised this argument in courts in
this District and this Circuit, and both have just as repeatedly
rejected it. See Judicial Watch, 774 F. Supp. 2d at 229 ("DOJ's
response-that the Courtjs order was merely procedural because it
did not rule on the merits of [plaintiff's] claim-is an argument
that the D.C. Circuit has repeatedly rejected.") (citing inter
alia Judicial Watch, 522 F.3d 364, and Davy I, 456 F.3d 162). The
Court of Appeals' words are apt: "the government's decision to
dust off a thoroughly discredited argument and present it to [the
Court] anew wastes both [the Court's] time and the government's
resources." Judicial Watch, 522 F.3d at 370.
Therefore, the Court finds that the Plaintiff substantially
prevailed in this litigation as a result of the issuance of the
Scheduling Order, and consequently, that it is eligible for
attorneys' fees.3
Whether the Modified Scheduling Order and the Order on Plaintiff's
3
Motion to Reconsider also changed the legal relationship between
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b. Summary Judgment Order
In contrast, the Court did not find in favor of EPIC on a
single issue in the Summary Judgment Order. The Court merely
required DHS to supplement its Vaughn index by providing additional
justification for its withholdings under Exemption 7D and no
additional documents were produced. Thus, EPIC did not
substantially prevail as a result of the Summary Judgment Order.
See Campaign for Responsible Transplantation v. Food & Drug Admin.,
511 F.3d 187, 196 (D.C. Cir. 2007) (orders requiring an agency to
the parties is a closer question. These later orders are very
similar to the Scheduling Order and the orders in Judicial Watch,
522 F.3d at 370, and Davy I, 456 F.3d 162, in that they also impose
a requirement that DHS produce responsive documents by a date
certain. However, these obligations could be viewed as merely
procedural because the.obligation to produce already existed and
these later orders simply changed the date of production.
Alternatively, the Modified Scheduling Order and the Order
on Plaintiff's Motion to Reconsider could be viewed as changing
the legal relationship between the parties because they brought
the Government out of a state of non-compliance with the Court's
prior Scheduling Order. As noted above, the Government had
failed to produce responsive documents by the August 24, 2012,
deadline established in the Scheduling Order. Thus, as of
August 24, 2012, the Government was out of compliance with an
order of this Court and was potentially subject to contempt.
The later orders established new deadlines, brought the
Government out of a state of non-compliance, and removed the
possibility of a contempt sanction, and thereby could be said to
have changed the legal obligations of the Government.
As the Plaintiff substantially prevailed in this litigation
as a result of the issuance of the Scheduling Order, it is
unnecessary to resolve the question of whether it also
substantially prevailed as a result of the issuance of either
the Modified Scheduling Order or the Order on Plaintiff's Motion
for Reconsideration.
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create or supplement a Vaughn index "are not properly understood
as relief on the merits.").
Consequently, under the judicial order theory, EPIC is
eligible for attorneys' fees because it substantially prevailed in
this litigation only as a result of the issuance of the Scheduling
Order.
2. Plaintiff's Eligibility under the "Catalyst" Theory
EPIC also argues that it is eligible for attorneys' fees under
the "catalyst theory" because its FOIA litigation substantially
caused DHS to produce documents. Pl.'s Mot at 7-8; Reply at 8-11.
Specifically, EPIC argues that: (1) DHS changed its position when
it released documents responsive to EPIC' s FOIA request after
stating earlier in its Answer that EPIC was not entitled to the
relief sought; and (2) EPIC's lawsuit caused DHS to process records
more quickly than it would have without the litigation. Reply at
9-11. DHS counters that the agency was actively responding to
EPIC's FOIA request at the time EPIC filed its Complaint and that
DHS would have produced records without EPIC's litigation. Def.'s
Opp'n at 9-11. DHS contends that the agency's "unavoidable delay
was caused by the scope of EPIC's request and a time-consuming,
diligent administrative process[,]" not EPIC's litigation. Id. at
10-11.
When determining whether a plaintiff's FOIA suit was a
"catalyst" for the release of responsive documents, the Court must
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determine whether the plaintiff demonstrated that the lawsuit was
necessary to ensure the agency's compliance with FOIA. Cox v.
U.S. Dep't of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979). A
plaintiff's recovery under the "catalyst theory" "thus turns on
causation." Citizens for Responsibility and Ethics in Washington
v. U.S. Dep't of Justice, 83 F. Supp. 3d 297, 303 (D.D.C. 2015),
overruled on other grounds as recognized in National Security
Counselors v. Central Intelligence Agency, 811 F.3d 22, 29 (D.C.
Cir. 2016).
While "[t]he mere filing of the complaint and the subsequent
release of the documents is insufficient to establish causation,"
a significant delay by the agency in complying with FOIA may
provide the "inference that the agency forgot about, or sought to
ignore, a FOIA requester's request - and in such a case an award
of [FOIA] costs and fees would be appropriate." Weisberg v. U.S.
Dep't of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984); Harvey v.
Lynch, 14-cv-784, 2016 WL 1559129, at *3 (D.D.C. Apr. 18, 2016).
Indeed, an agency's "sudden acceleration" in processing a FOIA
request may lead to the conclusion that the lawsuit substantially
caused the agency's compliance with FOIA. Terris, Pravlik &
Millian, LLP v. Centers for Medicare and Medicaid Services, 794 F.
Supp. 2d 29, 38 (D.D.C. 2011).
Conversely, "[w]hen disclosure is triggered by events
unrelated to the pending lawsuit, the causal nexus is missing and
-21-
the plaintiff cannot be deemed a 'prevailing party.'" Citizens for
Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 83
F. Supp. 3d at 303 (citing Pyramid Lake Paiute Tribe of Indians v.
U.S. Dep't of Justice, 750 F.2d 117, 119-21 (D.C. Cir. 1984)). To
determine if extrinsic factors, rather than the plaintiff's
lawsuit, caused the agency's release of documents, the Court looks
to the circumstances including but not limited to: ( 1) "whether
the agency made a good faith effort to search out material and
pass on whether it should be disclosed"; (2) "whether the scope of
request caused delay in disclosure"; and (3) "whether the agency
was burdened with other duties that delayed its response."
Conservation Force v. Jewell, 12-cv-1665, 2016 WL 471252, at *7
(D.D.C. Feb. 5, 2016) (quoting ACLU v. U.S. Dep't of Homeland Sec.,
810 F. Supp. 2d 267, 274 (D.D.C. 2011)).
First, the Court must examine the circumstances around DHS's
release of records to determine whether EPIC'S lawsuit caused the
release, and whether DHS had demonstrated good faith and diligence
in responding to EPIC's FOIA request. While this Court described
DHS's ultimate search for documents as "meticulous, organized, and
thorough," the record also demonstrates that prior to the filing
of EPIC's lawsuit on March 1, 2012, DHS had accomplished little in
processing EPIC's FOIA request. 2015 Mem. Op. at 15-16.
After EPIC filed its FOIA ·request on July 26, 2011, DHS
acknowledged receipt on August 3, 2011. Thereafter, EPIC heard
-22-
nothing further and finally filed its appeal on January 5, 2012.
DHS describes its actions in the four months between receiving
EPIC' s FOIA request and the January 5, 2012 appeal, as having
"tasked out the search" to NPPD' s Office of Cybersecurity and
Communications (CS&C) and that there "had been discussions between
NPPD and CS&C regarding the appropriate way to proceed with the
FOIA request given the broad scope." Declaration of James Holzer
in Support of Defendant's Motion for Relief from the Court's Order
of May 24, 2012 ("First Holzer Deel. 11
) ~ 13 [Dkt. No. 1 7-1] . These
bureaucratic descriptions give very little insight into what, if
any, concrete steps the agency was. taking to address EPIC' s FOIA
request. After EPIC filed an appeal on January 5, 2012, DHS and
EPIC had a brief conversation about the request, but it too was
devoid of details and DHS did not communicate a plan of action or
timeline for responding to the request. See supra, 5-6.
DHS conceded that the agency "accelerated" the search for
responsive records after EPIC filed its Complaint in this Court on
March 1, 2012. Id. ~ 18. Specifically, in April of 2012, the NPPD
FOIA Office developed a "renewed search plan" by meeting with
subject-matter experts who identified the NPPD subcomponent
offices likely to have responsive records and tasking these
subcomponent off ices with conducting electronic and physical
record searches. Id. Additionally, the parties stipulated in their
-23-
Joint Statement on May 21, 2012, that DHS had informed EPIC that
it was "conducting a new search" for records. Joint Statement~ 4.
Although DHS points to these activities to demonstrate its
diligence in responding to EPIC's FOIA request, they simply do not
pass muster when compared with other decisions of the District
courts. In Harvey, 2016 WL 1559129, at *2-3, the plaintiff was not
eligible for attorneys' fees under the "catalyst theory" becauase
the defendant Bureau of Prisons provided sufficient evidence (in
the form of a declaration from a BOP analyst) that the "bulk of
the work to process" plaintiff's FOIA request was completed before
the plaintiff filed its FOIA suit. Here, DHS makes no such
assertion, and it is unclear whether its employees had done
anything more than have internal conversations about the request
prior to EPIC'S lawsuit.
Similarly, in Short v. U.S. Army Corps of Engineers, 613 F.
Supp. 2d 103, 107 (D.D.C. 2009), the plaintiff was not entitled to
attorneys' fees under the "catalyst theory" because the defendant
agency had made a determination to grant the plaintiff's FOIA
request before the plaintiff filed suit and the agency was actively
responding to the request. In this case, while DHS acknowledged
receipt of EPIC's FOIA request, it did not make a "determination"
under FOIA as to whether to comply with EPIC'S request. Even if
DHS had made a determination, its extensive delays suggest that it
was not diligently responding to EPIC'S request.
-24-
The second factor to be considered addresses the scope of the
plaintiff's request and whether the scope caused the delay. While
the scope of EPIC's FOIA request was broad, the Court finds that
DHS failed to address its scope in a diligent manner. When DHS
sent a letter to EPIC, acknowledging receipt of the FOIA request,
it noted that the request was "overly broad." However, DHS never
expressed a desire to narrow the request for more than an entire
year after EPIC made its request. Instead, DHS waited until August
24, 2012, the deadline for DHS's complete production of documents
in this lawsuit to first request that EPIC narrow its request.
This delay was despite the fact that the agency had already
gathered 16,000 pages of documents potentially responsive to
EPIC's FOIA request in July of 2012. First Holzer Deel. ~ 23.
As EPIC notes, August 24, 2012, was an unnecessarily late
date upon which to begin the discussion of narrowing EPIC's FOIA
request. Pl.' s Opp' n Mot. Stay. at 3. Unlike the defendant in
Bigwood v. Defense Intelligence Agency, 770 F. Supp. 2d 315, 321
(D.D.C. 2011), who searched for and reviewed responsive documents
and asked the plaintiff to narrow the scope of its FOIA request
before the plaintiff filed its suit, in this case DHS waited until
the Scheduling Order's production deadline to inform the Court at
that late date of its intention to work with EPIC to narrow the
scope of the search.
-25-
Finally, while DHS has provided evidence that it faced certain
backlogs and administrative difficulties, these representations do
not sufficiently demonstrate that it would have produced records
without EPIC being forced to file this lawsuit. DHS explains that
in the three years preceding EPIC's request, NPPD had seen a five-
fold increase in FOIA requests. First Holzer Deel. ~ 17. At the
time of EPIC'S request, three NPPD FOIA employees were responding
to hundreds of other FOIA requests, on a first-in, first-out basis,
and approximately 180 FOIA requests were ahead of EPIC's for
processing. Id. ~ 12. Regarding other administrative difficulties,
DHS represents that the need for line-by-line review, extensive
cross-agency collaboration, and segregation of unauthorized
information delayed final review of responsive documents. Id. ~~
31-34.
Finally, given that EPIC requested both classified and
unclassified information, DHS argues that it needed to identify
staff who had the proper security clearances to search classified
records systems. Id. ~ 22. Despite these administrative
challenges, DHS represented to the Court at the May 24, 2012 status
conference that DHS would be able to complete its first production
of documents on July 18, 2012, when, in fact, it would later seek
to postpone the production deadline by a year and a half. See
supra, 10. DHS also failed to communicate these administrative
-26-
hurdles to EPIC prior to the lawsuit or provide EPIC with any sort
of timeline.
In sum, the Court finds that DHS' s lack of transparency
regarding its response to EPIC' s FOIA request, along with the
Court's multiple stays, the Scheduling Order, the Modified
Scheduling Order, and the Order on Plaintiff's Motion for
Reconsideration, requiring that DHS review a specific number of
documents per month, support a finding that EPIC'S lawsuit caused
DHS to release responsive records and that it thereby substantially
prevailed in this litigation. Indeed, given these facts, it is
hard to believe that DHS would ever have gotten the job done
without the Court's supervision.
B. Plaintiff's Entitlement to Attorneys' Fees
Having found Plaintiff eligible for attorneys' fees, the
Court must now determine if EPIC is also entitled to them. In
determining whether a complainant is "entitled" to attorneys'
fees, the Court considers, among others, the following 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
(citations omitted). The parties dispute all four factors.
-27-
1. The public benefit derived from EPIC's FOIA lawsuit
The Court first considers the public benefit derived from
Plaintiff's lawsuit. When determining the public benefit, a court
"evaluate[s] the specific documents at issue in the case at hand"
and determines whether the plaintiff's lawsuit "is likely to add
to the fund of information that citizens may use in making vital
political choices." Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C.
Cir. 1995). The Court of Appeals recently held that when
determining the public benefit, a court must assess "the potential
public value" of the information sought, and not the "public value
of the information received." Morley v. Central Intelligence
Agency, 810 F.3d 841, 844 (D.C. Cir. 2016) (stating that the
"public-benefit factor requires an ex ante assessment"). The Court
of Appeals reasoned that "shifting to the plaintiff the risk that
the disclosures would be unilluminating" would defeat the purpose
of FOIA' s fee-shifting scheme. Id. "To have 'potential public
value,' the request must have at least a modest probability of
generating useful new information about a matter of public
concern." Id. (internal citations omitted).
EPIC argues that cybersecurity is an issue of national
importance and that the information obtained through EPIC'S FOIA
request directly contributed to the debate over cybersecurity and
privacy. Pl.'s Mot. at 9-10. DHS argues that EPIC's lawsuit not
only failed to contribute new information to the public, but rather
-28-
detracted from the national debate by disseminating false
information. Def.'s Opp'n at 16-17.
Obviously, issues of national security and privacy are of
enormous public importance. Under Cotton, EPIC has shown that its
lawsuit "add[ed] to the fund of information that citizens may use
in making vital political choices." 63 F.3d at 1120. EPIC cites
to articles and commentary featuring information obtained because
of EPIC'S FOIA suit. Pl.'s Mot. at 9-10. And under Morley, EPIC
has shown that its FOIA request had "at least a modest probability
of generating useful new information about a matter of public
concern." 810 F.3d at 844.
EPIC argues that its FOIA request did in fact produce new
information that contributed to the public benefit by revealing
"important details about the government's cyber surveillance
programs.,; Pl.' s Mot. at 10. DHS disputes the public benefit of
the information, arguing that much of the information was
previously provided to the public and any new information, at most,
"provide[d] marginal and unimportant information." Def.'s Opp'n
at 15-16, 16 n. 11.
The Court need not get into the details of whether the
information EPIC acquired was actually new or important, as it has
already found that its request was likely to generate new and
useful information. The Court does note that much of the public
information DHS cites was not public at the time of EPIC'S FOIA
-29-
request, id. at 15-16, and the fact that it was later made public
strengthens EPIC's argument that it was of public import. For these
reasons, the Court finds that EPIC's FOIA request satisfies the
public benefit factor.
2. The commercial benefit to EPIC and EPIC'S interest
in the records
The second factor, commercial benefit to the plaintiff, and
the third factor, the nature of the plaintiff's interest in the
records, are often analyzed together to determine whether the
plaintiff has a usufficient private incentive to seek disclosure
of the documents without expecting to be compensated for it."
McKinley, 739 F.3d at 711 (internal quotations and citation
omitted).
Regarding the commercial benefit, EPIC states that it is a
u501(c) (3) non-profit public interest research center." Pl.'s Mot.
at 11. DHS cites Nat'l Sec. Archive v. U.S. Dep't of Defense, 530
F. Supp. 2d 198 (D.D.C. 2008), and Alliance for Responsible CFC
Policy, Inc. v. Costle, 631 F. Supp. 1469 (D.D.C. 1986), for the
proposition that 501{c) (3) nonprofits are not automatically
considered non-commercial interests. Def.'s Opp'n at 17.
The Defendant's argument is not convincing. First, Nat'l
Sec. Archive is of limited relevance, as it dealt with attorneys'
fees for litigation over a non-profit seeking preferred fee status
under FOIA; it did not involve a FOIA request for documents. 530
F. Supp. 2d at 200. Second, while it is true that 501 (c) (3)
-30-
nonprofit status does not automatically signal a non-commercial
interest, Castle actually supports EPIC' s position, citing to
FOIA's legislative history that "nonprofit public interest
group[s]" are "usually allow[ed] recovery of fees" as opposed to
"large corporate interests or a representative of such interests."
Castle, 631 F. Supp. at 1471. The plaintiffs in Castle were
chlorofluorocarbon producers who had formed the non-profit, and
the court found that their motivation was primarily personal
interest. That is not the case with EPIC.
DHS then argues that because EPIC's newsletter distributing
information obtained through its FOIA lawsuit featured a link for
donations, the commercial benefit and interest in the records weigh
against EPIC. Def.'s Opp'n at 17. However, a link for donations
does not transform a nonprofits' interests from public interest to
commercial or self-interest.
Regarding the Plaintiff's interest in the records, "FOIA
suits which are motivated by scholarly, journalistic, or public
interest concerns are the proper recipients of fee awards." Cost le,
631 F. Supp. at 1471. Here, EPIC has consistently represented that
it sought the records to address concerns about the DIB Cyber Pilot
Program "[running] afoul of law forbidding government surveillance
of private Internet traffic," and to determine whether the program
"complied with federal wiretap laws." Pl.'s Mot. Summ. J at 2.
-31-
Additionally, EPIC has distributed this information to the public,
corroborating its stated intention.
For these reasons, the Court finds that the second and third
factors of the entitlement determination weigh in favor of EPIC.
3. The Reasonableness of DHS's Withholding
The final factor in determining a plaintiff's entitlement to
attorneys' fees under FOIA is the reasonableness of the agency's
withholdings. McKinley, 739 F.3d at 711. To determine the
reasonableness of the agency's withholding, the Court considers
two factors.
The first factor is whether the agency's opposition to
disclosure "had a reasonable basis in law." Davy v. Central
Intelligence Agency, 550 F. 3d 1155, 1162 (D. C. Cir. 2008) ("Davy
II") (citations omitted). "If the Government's position is correct
as a matter of law, that will be dispositive. If the Government's
position is founded on a colorable legal basis in law that will be
weighed along with other relevant considerations in the
entitlement calculus." Davy II, 660 F. 3d at 1162 (citations
omitted). The second factor is whether the agency was
"'recalcitrant in its opposition to a valid claim or otherwise
engaged in obdurate behavior.'" Id. (quoting LaSalle Extension
Univ. v. Fed. Trade Comm'n, 627 F.2d 481, 486 (D.C. Cir. 1980)).
Under either factor, the agency carries the burden of showing
it behaved reasonably. Davy II, 660 F.3d at 1163. "The question
-32-
is not whether [the Plaintiff] has affirmatively shown that the
agency was unreasonable, but rather whether the agency has shown
that it had any colorable or reasonable basis for not disclosing
the material until after [the Plaintiff] filed suit." Id.
The Government argues that it was "correct as a matter of
law" because the Court granted in part the agency's Motion for
Summary Judgment. Opp' n at 12. This argument is squarely
foreclosed by Davy II. In that case, just as in this, the agency
failed to substantively respond to a FOIA request, was subsequently
sued and then ordered to produce responsive documents. 4 Davy II,
660 F. 3d at 1158. In that case, just as in this, the agency
completed court-ordered production and then moved for summary
judgment, arguing that the scope of its search was sufficient, and
prevailed. 5 Id. Despite the fact that the Government prevailed
at summary judgment, the Court of Appeals still held that the
plaintiff was entitled to attorneys' fees. Id. at 1163.
Consequently, the Government's argument that Plaintiff is
4 As described previously, EPIC requested five distinct categories
of documents. Prior to the initiation of this lawsuit, DHS's only
substantive response was to inform EPIC that it lacked documents
responsive to category five. DHS failed to make any similar
determination with regard to any of the .other four categories of
documents included in EPIC' s request. Indeed, DHS failed to
communicate anything of substance to Plaintiff regarding the other
four categories of documents requested.
5 The trial court held that "the scope of the agency's search was
reasonable and that the FOIA exemptions it asserted were valid."
See Davy I, 456 F.3d at 164.
-33-
ineligible simply because the Government prevailed on its Motion
for Summary Judgment is wholly without merit.
Additionally, Davy II makes clear that an agency lacks a
colorable basis in law where it does not respond to a FOIA request
until after a lawsuit has been filed. Id. "For the agency to
receive the benefit of the fourth factor it must present at least
a 'colorable basis in law' for its failure to respond" to a FOIA
request and "[i]t is not enough to say that 'once the agency faced
a justiciable FOIA claim, it offered no resistance.'" Id.
In this case, beyond acknowledging receipt of the request,
DHS failed to respond in any meaningful way to EPIC'S FOIA request
prior to the initiation of this lawsuit. Additionally, the
Government has failed to present evidence demonstrating that it
"had a reasonable basis for failing to respond," and therefore
cannot carry its burden to show it had a colorable basis in the
law. Id.
Addressing the second factor of recalcitrance, DHS argues
that any delay in production was a result of its "diligent,
continued, meticulous, time-consuming efforts." Def.'s Opp'n at
13. EPIC counters that "the agency's delays were a direct product
of the agency's heel-dragging and intransigence." Reply at 13.
In evaluating the reasonableness of the agency's withholdings
and it recalcitrance with regard to the production of documents,
the Court finds that this factor favors EPIC. While DHS had begun
-34-
discussing EPIC's FOIA request prior to EPIC's lawsuit, the Court
has had to hold DHS's hand throughout the production process by
issuing two Scheduling Orders, both of which required that DHS
review a minimum number of document pages per month, as well as
several Orders granting the Government extensions of time.
Having found that all four entitlement factors favor EPIC,
the Court holds that EPIC is entitled to attorneys' fees.
C. The Reasonableness of Plaintiff's Attorneys' Fees
The parties next contest the reasonableness of the attorneys'
fees and costs sought by EPIC. As noted earlier, under FOIA, the
Court "may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred." 5 U.S.C. §
552(a) (4) (E) (i). The Court has considerable discretion in awarding
attorneys' fees. Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir.
197 9) . The Court determines the award by calculating the "lodestar"
the number of hours reasonably expended multiplied by a
reasonable hourly rate. Bd. of Trs. of Hotel & Rest. Emps. Local
25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). The fee
applicant bears the burden of demonstrating the reasonableness of
both the number of hours and the hourly rate. Role Models Am.,
Inc. v. Brownlee, 353 F.3d at 970.
The fee applicant must provide "contemporaneous, complete and
standardized time records which accurately reflect the work done
by each attorney." Nat'l Ass'n of Concerned Veterans v. Sec'y of
-35-
-.
Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). A fee applicant can
meet its burden by providing affidavits, declarations, and billing
records. Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d
1516, 1517 (D.C. Cir. 1988). Thereafter, the burden shifts to the
defendant to rebut the presumption of reasonableness with specific
evidence. Covington v. Dist. of Columbia, 57 F.3d 1101, 1109 (D.C.
Cir. 1995). Finally, the Court retains discretion to adjust the
lodestar amount based on other relevant factors. See Weisberg, 745
F.2d at 1499-1500.
1. The reasonableness of EPIC's billing rate
The Government argues that the various hourly rates sought by
EPIC are unreasonable. Opp'n at 19-21.
A reasonable hourly fee is determined by the "prevailing
market rate in the relevant community, regardless of whether
plaintiff is represented by private or non-profit counsel." Blum
v. Stenson, 465 U.S. 886, 895 (1984). The Court considers three
elements when determining reasonable hourly fees: ( 1) the
attorneys' billing practices; (2) the attorneys' skill, experience
and reputation; and (3) the prevailing market rate in the relevant
community." Salazar v. Dist. of Columbia, 809 F.3d 58, 62 (D.C.
Cir. 2015) ("Salazar IV") (citing Covington, 57 F. 3d at 1107) .
Government or public interest attorneys who do not have a
standard billing rate may utilize the so-called Laffey Matrix to
establish the prevailing market rate. See Laffey v. Nw. Airlines,
-36-
Inc., 572 F. Supp. 354 (D.D.C. 1983), aff'd in part, rev'd in part
on other grounds, Laffey v. Nw. Airlines, Inc., 746 F.2d 4 (D.C.
Cir. 1984), overruled in part on other grounds en bane by Hodel,
857 F.2d 1516. The Laffey Matrix was developed over thirty years
ago and therefore requires adjustment for inflation. See Salazar
IV, 809 F.3d at 62. The Laffey Matrix provides a schedule of fees
for lawyers who practice complex federal litigation based on the
number of years of an attorneys' experience. -
See
--id.;
- - also
- Eley v.
District of Columbia, 793 F.3d 97, 100-01 (D.C. Cir. 2015). While
the parties agree that the Laffey Matrix should be adjusted for
inflation, they disagree over what inflation metric should be used
to make the adjustment.
EPIC urges the Court to apply the "LSI Laffey Matrix," which
the Legal Services Index ("LSI") of the Consumer Price Index (CPI),
calculates . by the U.S. Department of Labor Bureau of Labor
Statistics, to update the Laffey Matrix. Pl. 's Mot. at 13. In
contrast, DHS argues that the Court should apply the "USAO Laffey
Matrix," which is updated by the U.S. Attorneys' Office in
Washington, D.C., based on the CPI for the entire Washington, D.C.
area. Def.'s Opp'n at 19-20.
The USAO Laffey Matrix adjusts for inflation based on the
cost of consumer goods in the Washington, D.C. area, whereas the
LSI Laffey Matrix adjusts on a national basis for inflation based
on the cost of legal services. Salazar v. Dist. of Columbia, 123
-37-
F. Supp. 2d 8, 14-15 (D.D.C. 2000) ("Salazar I"). There is a stark
difference in the results of the two different approaches. For
the second half of 2011, an attorney with twenty or more years of
experience earns $734. 00 per hour under the LSI Laffey Matrix
compared to $475.00 per hour under the USAO Laffey Matrix. See
Declaration of Michael Kavanaugh at 28 [Dkt. No. 81-3]; Declaration
of Dr. Laura A. Malowane at 6 [Dkt. No. 86-4].
Given these stark financial differences, parties in FOIA
cases have vigorously contested which matrix to use, and judges in
this District have differed as to which is more appropriate. See
~ Citizens for Responsibility and Ethics in Washington v. U.S.
Dep't of Justice, 142 F. Supp. 3d 1 (D.D.C. 2015) (using the USAO
Laffey Matrix in a FOIA case) ; Citizens for Responsibility and
Ethics in Washington v. U.S. Dep't of Justice, 11-cv-374, 2016 WL
554772, at *l (D.D.C. Feb. 11, 2016) (using the LSI Laffey Index
in a FOIA case); Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland
Sec., 13-cv-260, 2016 WL 3919810, at *3 (D.D.C. July 18, 2016)
(using the LSI Laffey Index in FOIA case); Poulsen v. DHS, 2016 WL
i091060 (D.D.C. March 21, 2016) (using the USAO Laffey Index in a
FOIA case) .
" [T] his Court has, for many years, accepted the
appropriateness of and greater accuracy of rates" contained in the
LSI Laffey Matrix because the Court believes those rates better
reflect the actual costs of litigation. Citizens for
-38-
Responsibility & Ethics in Washington v. U.S. Dep't of Justice,
No. 11-cv-754, 2014 U.S. Dist. Lexis 182098, at *13 (D.D.C. Aug 4,
2014) (describing the methodology behind the LSI Laffey Matrix as
"far more accurate"); see also Salazar v. District of Columbia,
991 F. Supp. 2d 39, 47-48 (D.D.C. 2014) ("Salazar III") (describing
why the Court believes the methodology underlying the USAO matrix
understates inf lat ion in the market rate for complex federal
litigation services) .
However, while this Court generally believes that the LSI
Laffey Matrix is a more accurate reflection of the prevailing
market rates in complex federal litigation, in any given case the
burden is on the party seeking attorneys' fees to show that the
LSI Laffey Matrix should be used. Salazar IV, 809 F.3d at 61.
Recently, the Court of Appeals clarified what kind of evidence
a fee applicant may use to support use of the LSI Laffey Matrix
over the USAO Laffey Matrix. Id. at 64-65. The Court of Appeals
upheld use of the LSI Laffey Matrix based on the submission of: 1)
an affidavit by the economist who developed the LSI Laffey Matrix,
Dr. Michael Kavanaugh; 2) billing rate tables, enabling a
comparison between law firm rates and the rates contained in each
Laffey Matrix; and 3) a survey of billing rates by law firm
partners in Washington, DC. Id.
Subsequently, two judges in this District have also concluded
that the LSI Laffey Matrix should be used. Citizens for
-39-
Responsibility and Ethics in Washington v. U.S. Dep't of Justice,
2016 WL 554772, at *1 (concluding that LSI Laffey Index is
appropriate in FOIA case where the Plaintiff introduced affidavits
and billing-rate surveys and the court considered other District
Court orders); see also Elec. Privacy Info. Ctr, 2016 WL 3919810
at *3 (using LSI Laffey Index in FOIA case); but see Poulsen v.
DHS, 2016 WL 1091060 (D.D.C. March 21, 2016) (using the USAO Laffey
Index where case did not require creation of a Vaughn Index or
briefing of dispositive motions, but failing to discuss or cite to
the Circuit Court's opinion in Salazar).
In light of Plaintiff's submissions in this case, the Court
finds that Plaintiff has met its burden in establishing the
reasonableness of the LSI Laffey Index. The evidence submitted by
Plaintiff - an affidavit by Dr. Kavanaugh, billing rate tables,
and billing rate surveys - is indistinguishable from the evidence
in Salazar IV, and therefore, certainly allows for use of the LSI
Laffey index in this case. See 809 F.3d at 64-65; see also Citizens
for Responsibility and Ethics in Washington v. U.S. Dep't of
Justice, 2016 WL 554772, at *1 (holding that the LSI Laffey Index
should be used when presented with virtually identical evidence) .
Furthermore, it is significant that the Government recently
conceded in another FOIA case, in which EPIC was the plaintiff,
that EPIC's attorneys were entitled to attorneys' fees based on
the LSI Laffey Index. Elec. Privacy Info. Ctr v. DHS, 2016 WL
-40-
3919810 at *3 (stating "That the parties agree that LSI Laffey
Matrix acts as a starting point."). Given the very same attorneys,
working for the very same organization, litigating the very same
questions in both cases, it is hard to believe that the prevailing
market rate would differ. Compare Exhibit G to Pl.'s Mot. ("Case
Billing Record"), 12-cv-333 [Dkt. No. 81-9], with Exhibit G to
EPIC' s Mot. for Attorneys' Fees and Cost ("Bill of Fees and
Costs"), 13-cv-260 [Dkt. No. 28-8] (both listing many of the same
attorneys working on both cases) .
"Once the fee applicant has provided support for the requested
rate, the burden falls on the Government to go forward with
evidence that the rate is erroneous. And when the Government
attempts to rebut the case for a requested rate, it must do so by
equally specific countervailing evidence." Covington, 57 F.3d at
1109-10 (internal quotation marks and citation$ omitted).
In this case, the Court concludes that the Government's
evidence is insufficient. The Government's sole evidence is the
declaration of the economist, Dr Laura A. Malowane. [Dkt .. No. 86-
4] . While Dr. Malowane offers a thoughtful methodological critique
of the LSI Laffey Index, the Court remains unconvinced that the
USAO Laffey Index properly accounts for inflation in the market
for complex federal legal services in Washington, DC. For example,
Dr. Malowane's declaration purports to show that the rates
contained in the USAO Laffey Matrix are more in line with those
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charged by litigation attorneys in both Washington, DC and the
South Atlantic region--but that is not the relevant comparator.
Id. at p. 4-7. What is relevant is the amount of fees charged by
firms or attorneys conducting complex federal litigation. Dr.
Malowane's declaration fails to establish that the firms in her
sample primarily engage in such work. Accordingly, the Government
has failed to meet its burden. See Salazar, 750 F. Supp. 2d 70,
73 (D.D.C. 2011) ("Salazar II") (explaining why the Court believes
that LSI Laffey Matrix is more accurate); also Salazar III, 991 F.
Supp. 2d at 47-48.
For the foregoing reasons, the Court adopts EPIC'S proposal
to use the hourly rates in the "LSI Laffey Index."
2. The reasonableness of EPIC's billing activities and
hours
EPIC'S Motion includes a "Bill of Fees and Costs" identifying
four categories of fees that EPIC seeks: 1) fees incurred prior to
the Court's Summary Judgment Order, principally in order to force
DHS to produce responsive documents; 2) fee's incurred in
litigating the Cross-motions for Summary Judgment; 3) fee's
incurred following the issuance of the Summary Judgment Order; and
4) so-called "fees on fees," incurred in litigating the pending
motion. [Dkt. No 81-9]. The Government objects to awarding any
fees whatsoever, but also raises individual objections to certain
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categories of fees sought by EPIC and certain line items within
each category.
a. Pre-Swnmary Judgment fees related to obtaining
DHS's production of documents.
First, EPIC seeks fees for work conducted prior to summary
judgment - between March 1, 2012, and August 19, 2013 - to force
DHS to produce responsive documents. EPIC'S Bill of Fees and Costs
claims $95,629.10 in fees, but it has discounted its claim by ten
percent for a total of $86,066.19. [Dkt. No 81-9 at p. 2]. DHS
argues that EPIC should not be awarded fees.for any work it did
after the Court issued the Scheduling Order on May 24, 2012,
because that Order granted Plaintiff the only relief it received
in this case, and all subsequent work was essentially superfluous.
See Opp'n at 6 n.4.
As discussed extensively above, DHS '. s failure to comply with
FOIA's statutory requirements prompted EPIC to pursue litigation
in this Court and ultimately resulted in the production of more
than 1000 pages of documents. See supra 15-19. EPIC received
exactly what it sought in this lawsuit the production of
responsive documents by DHS ~ and therefore, the Court will award
EPIC fees for its work that led to that production.
The Government's argument ignores that when a lawsuit
consists of related claims, "a plaintiff who has won substantial
relief should not have his attorneys' fees reduced simply because
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the district court did not adopt each contention raised." Elec.
Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 999 F. Supp. 2d
61, 75 (D.D.C. 2013) (quoting Hensley v. Eckerhart, 461 U.S. 424,
440 (1983)). EPIC'S work prior to summary judgment was related
and reasonably calculated to achieve the goal of production, and
much of it was necessitated by very substantial delays by DHS after
the Court issued the Scheduling Order. Even if EPIC did not prevail
on every scheduling motion, the Court is mindful that "rare,
indeed, is the litigant who doesn't lose some skirmishes on the
way to winning the war. " Hall v. CIA, 115 F. Supp. 3d 24, 29
(D.D.C. 2015) (quoting Air Transp. Ass'n of Canada v. FAA, 156
F.3d 1329, 1335 (D.C.Cir.1998)) (internal quotation markets
omitted).
To the extent that the Government objects to individual line
items for work incurred by EPIC prior to summary judgment, see
Opp'n at 19, the Court declines to analyze every itemized instance
of work conducted by EPIC' s attorneys. The Court' s role in
awarding fees is to do "rough justice" not engage in a picayune
"battle of the ledgers." Elec. Privacy Info. Ctr, 2016 WL 3919810
at *3-4.
EPIC has already reduced the lodestar amount for this work by
10% to account for the fact that the Court granted some of DHS's
requests, Tran Deel. ~ 10 [Dkt. No. 81-2], and therefore, the Court
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finds that the hours billed for Pre-Summary Judgment Work is
reasonable.
b. Fees Incurred on Cross-Motions for Summary
Judgment
The Plaintiff has also requested fees for its work on the
various motions and cross-motions for summary judgment. While
this work totaled $22,754.60 in fees, Plaintiff has discounted
this amount by 84% for a total of $3640.74. Plaintiff asserts
that it succeeded on only one of seven issues addressed in the
Summary Judgment Order and this amount reflects the amount of work
dedicated to that issue. Tran Deel. ~ 11 [Dkt. No. 81-2] .
"If the plaintiff achieves only limited success, it is within
the court's discretion to reduce the award of fees." Hall, 115 F.
Supp. 3d at 27. If a losing claim is distinct from successful
claims, "the hours spent on the unsuccessful claims should be
excluded in considering the amount of a reasonable fee." Elec.
Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 999 F. Supp. 2d
at 75 (citing Hensley v. Eckerhart, 461 U.S. at 440).
The Court will not award EPIC any fees for its work on summary
judgment because, as discussed earlier, EPIC's arguments on
summary judgment were wholly rejected and those claims were wholly
independent from any claims on which EPIC succeeded in this
litigation. EPIC did not prevail on a single issue raised on
summary judgment. Furthermore, the issues that EPIC unsuccessfully
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raised on summary judgment- -that DHS conducted an inadequate
search and that DHS improperly applied FOIA exemptions to withhold
documents--are substantively unrelated to the instances in which
EPIC succeeded, namely the issuance of the Scheduling Order forcing
EPIC to produce responsive documents.
Everything EPIC won in this lawsuit - production of responsive
documents - it won well before the issue of summary judgment came
before the Court and EPIC received no further relief on the merits
from the Summary Judgment Order. Consequently, it cannot piggy
back off its success prior to summary judgment to collect fees for
work done preparing its opposition and cross-motion for summary
judgment.
c. Fees Incurred Post-Summary Judgment
EPIC also requests $3987.40 in fees incurred for work don't
after the Court issued its Summary Judgment Order but before EPIC
began litigating the issue of attorneys' fees. The Government
does not raise any specific objection to these fees. That EPIC
would need to review the Court's Order and determine next steps
seems reasonable to the Court. Therefore, the Court will award
fees claimed for this work.
d. Fees on Fees
EPIC requests attorneys' fees for the time it spent litigating
the present Motion for Attorneys' fees, so-called ~fees on fees."
This request totals $22,435.40. The Government argues that EPIC's
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request is unreasonable because EPIC spent nearly as much time on
the issue of attorneys' fees as on work related to summary
judgment. Def.'s Opp'n at 19.
"Hours reasonably devoted to a request for fees are
compensable." Judicial Watch, Inc. v. U.S. Dep't of Justice, 878
F. Supp. 2d 225, 240 (D.D.C. 2012). "Fees on fees must be
reasonable, and not excessive." Elec. Privacy Info. Ctr. v. FBI,
80 F. Supp. 3d 149, 162 (D.D.C. 2015) (internal citation and
quotation marks omitted). "Courts, therefore, have an obligation
to scrutinize the hours spent preparing the fee petitions to insure
that the total is reasonable and that it does not represent a
windfall for the attorneys." Boehner v. McDermott, 541 F.Supp.2d
310, 325 (D.D.C. 2008) (internal citation and quotation marks
omitted). In addition, "fees on fees" may be reduced to reflect
the degree of a plaintiff's success on the merits. See Immigration
and Nationalization Services v. Jean, 496 U.S. 154, 163 n.10
(1990); see also Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland
Security, 999 F. Supp. 2d at 77.
EPIC claims 50.9 hours of fees for the present Motion. DHS
argues that the hours dedicated to preparing the Motion for
Attorneys' Fees are excessive. Specifically, DHS argues that EPIC
spent nearly as much time on the issue of attorneys' fees as on
work related to summary judgment. Def.' s Opp' n at 19; see also
Elec. Privacy Info. Ctr. v. FBI, 80 F. Supp. 3d at 162 (finding
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request for fees on fees in amount larger than fees for underlying
FOIA action excessive) .
While the Court does find it appropriate to award EPIC fees
on fees, the Court agrees that EPIC'S request is excessive. A fees
on fees award that is roughly equivalent to the amount of time
EPIC spent on summary judgment would be excessive, given that EPIC
.,
i
filed far fewer briefs in support of its request for attorneys'
fees than on summary judgment. The excess billing stems largely
from entries related to basic timekeeping, such as "review billing
records" and "enter billing records," which total nearly one-third
of EPIC's fees on fees request. [Dkt. No. 81-9 at p. 45-52]. EPIC
had an ongoing duty throughout the litigation to maintain an
accurate record of its time, which means these activities were
either duplicative of work already performed or enlarged because
it was performed so late in the litigation. Either way, the Court
finds any total award of fees on fees for these activities to be
unreasonable.
The Court does find it appropriate to award EPIC for its work
attempting to resolve the issue of attorneys' fees. The Court will
grant EPIC fees on fees to the extent that the work relates to
settlement negotiations, and the preparation of the Motion for
Attorneys' Fees. Fees related to reviewing billing and entering
billing records shall be excluded.
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EPIC will submit revised billing records for fees on fees to
reflect this finding.
3. The Government's objection to EPIC's Billing
Practices
Finally, the Government objects to certain billing practices
of EPIC, namely billing for repetitive tasks and so-called "block
billing." Opp'n at 18-19.
a. DHS's Claim that multiple EPIC attorneys billed
for repetitive tasks.
DHS argues that the Court should reduce attorneys' fees where
"multiple attorneys" conducted "routine tasks." Def.'s Opp'n at
19.
The amount of time actually expended is not the same as the
amount of time reasonably expended, and the Court may reduce an
award for overstaffing. Copeland v. Marshall, 641 F.2d 880, 891
(D.C. Cir. 1980) ("where three attorneys are present at a hearing
when one would suffice, compensation should be denied for the
excess time") . For example, in Elec. Privacy Info. Ctr., 72 F.
Supp. 3d at 352, the Court reduced the amount EPIC could recover
for triple-billing telephone conference calls because staffing
telephone conferences with three attorneys was unnecessary, and
accordingly reduced the lodestar for these activities to reflect
the time of one junior attorney at the lowest USAO Laffey rate.
Id.
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.,
Reflecting the realities of complex federal litigation and
the resources of opposing counsel, the Court believes that it is
often appropriate to have more than one attorney present on
conference calls. However, generally, the presence of three or
more attorneys is unnecessary and unreasonable. Elec. Privacy
Info. Ctr., 72 F. Supp. 3d at 352. Accordingly, the Court will
reduce EPIC's billing entries to the extent of allowing EPIC to
claim fees for at most one senior attorney and one junior attorney
for participating in conference calls.
EPIC will submit revised billing records to reflect this
portion of the opinion.
b. DHS's Claim that EPIC Engaged in ucareless
Errors" and Repetitive Block Billing.
DHS presents a bald assertion that EPIC engaged in "numerous
examples of repetitive, block billing." Def.' s Opp'n at 19.
EPIC' s billing records and affidavits provide the Court with
sufficiently "contemporaneous, complete and standardized time
records which accurately reflect the work done by each attorney."
Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d at
1327; see Bill of Fees and Costs, Pl.'s Ex. G [Dkt. No. 81-9) [Dkt.
No. 87-2); see also Role Models America, Inc. v. Brownlee, 353
F. 3d at 975; American Immigration Council v. U.S. Dep' t of Homeland
Security, 82 F. Supp. 3d 396, 412 (D.D.C. 2015). DHS has not
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provided specific evidence to overcome the presumption of
reasonableness.
However, in considering the parties' motions, the Court
discovered one instance in which EPIC appears to have double-
billed for the work of one attorney. [Dkt. No. 81-9 at p. 7]
(including two entries for the participation of Marc Rotenberg in
a tele-conference on May 21, 2012). As the Court has asked EPIC
to submit a revised bill, EPIC will be afforded an opportunity to
correct any and all errors present, including the error just
identified.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Attorneys'
Fees shall be granted in part and denied in part. EPIC shall
prepare a revised case billing record in accordance with this
opinion. In submitting the revised bill, EPIC shall not seek fees
for any work not already included in the Bill of Fees and Costs
[Dkt. No. 81-9].
Additionally, EPIC shall submit a copy of the original Bill
of Fees and Costs, annotated to indicate which specific line-items
are no longer being claimed in its revised bill.
Finally, the Government will be provided an opportunity to
review EPIC's revised bill and present to the Court any line-items
that are either clearly erroneous or otherwise inconsistent with
this opinion. The Court stresses that this is not an occasion to
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relitigate any issues raised in the Motion, but simply an
opportunity to assist the Court in identifying fees which EPIC may
not have reasonably incurred, in light of this Memorandum Opinion.
An Order shall accompany this Memorandum Opinion.
November 21, 2016
United States District Judge
Copies to: attorneys on record via ECF
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