Electronic Privacy Information Center v. United States Department of Homeland Security

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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