ELECTRONIC PRIVACY INFORMATION CENTER v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, No. 1:2012cv00333 - Document 89 (D.D.C. 2016)
Court Description: MEMORANDUM OPINION to the Order granting in part and denying in part Plaintiff's Motion for Attorney Fees. Signed by Judge Gladys Kessler on 11/21/16. (CL)
Download PDF
<![CDATA[
ELECTRONIC PRIVACY INFORMATION CENTER v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY Doc. 89 Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 1 of 52 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 The program infrastructure[,] Mot. Summ. J.") at 2 [Dkt. No. 53-1]. to "aim [ed] [and] furnished protect U.S. critical 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 -1- Dockets.Justia.com Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 2 of 52 laws forbidding traffic [,] /1 government filed a surveillance FOIA request of with DHS private Internet 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 Defendant's Index") several exemptions. Vaughn Index for 5 U.S. c. § 552 (b) ; . see also Challenged Withholdings ("Vaughn [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 relevant FOIA Exemption. (Aug. 4, 2015) documents under all but one Memorandum Opinion on Summary Judgment ("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") -2- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 3 of 52 [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 de~ocratic functioning of a 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. the information in a § 552(a) (3) (A). The agency then must furnish 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. 562, 571 (2011) Dep't of Navy, 562 U.S. (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 -3- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 4 of 52 Court to determine whether the agency has met its burden, agency must submit a "Vaughn Index" consisting of affidavits or declarations that exemption relevant is the "identif [y] and the reasons correlate [e] why those a claims particular 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., (D.D.C. 2009). 656 F. Supp. 2d 91, 97 FOIA provides that a court may award "reasonable attorney fees and other litigation costs reasonably incurred" in FOIA litigation in prevailed." 5 U.S.C. B. which § the complainant has "substantially 552 (a) (4) (E) (i). 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, -4- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 5 of 52 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. § must scope of the documents include produce and the withhold 552 (a) (6) (A) (i). A "determination" under FOIA that the agency will 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, days EPIC faxed an administrative appeal approximately 100 later on January 5, 2012, to the attention of NPPD FOIA Officer Lizzy Gary. EPIC Facsimile at 1-2 DHS' s FOIA regulations, [Dkt. No. 57-4]. Under an appeal must be made in writing and received by the Associate General Counsel of DHS within 60 days of -5- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 6 of 52 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 Facsimile at 2. for category In its Answer, 5 of the request. EPIC DHS denied that the January 5, 2012 facsimile constituted a FOIA appeal, Answer ' 26-28 [Dkt. No. 7], and its timeliness. Defendant's Material Facts in Support of ("Def.'s Statement") '9-10 [Dkt. No. Statement its Motion for of Undisputed Summary Judgment 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. in writing," Specialist 6 C.F.R. from NPPD 5.9(a) (2), and the decision "will be made § § 5.9(b). contacted On January EPIC by 23, 2012, telephone a FOIA 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 processing the request," Id.; Def.'s "DHS was 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). -6- Arguing that NPPD failed to Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 7 of 52 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, for Injunctive Relief ~ ( "Compl.") 4 [Dkt. No. 2012. Complaint 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 The parties also stated [Dkt. No. 11] . 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, appropriate production schedule. Id. they ~ disagreed as to the 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 -7- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 8 of 52 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, Court adopted the 2012. Plaintiff's Id. ~7. proposed On May 24, time line and 2012, the issued a scheduling order for DHS to complete production of documents and the Vaughn Index ("Scheduling Order") by August 24, 2012. Order, May 24, 2012 [Dkt. No. 12] . After DHS identified approximately 10,000 pages of documents potentially responsive to EPIC'S FOIA request, last day of the August 24 deadline, it moved, on the 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 Stay") at 2-3 [Dkt. No. 13]. Mot. 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. -8- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 9 of 52 After the Court granted DH.S's ten-day stay, DHS moved for a second ten-day stay. Defendant's Motion Proceedings for 10 Additional Days ("Def.'s 1 to Continue Stay of Second Mot. Stay") at [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, assess the impact of the DHS again sought more time to 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 failed to demonstrate second motion on the grounds that DHS "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 produced." Id. at 5. -9- documents might act~ally be Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 10 of 52 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, agency January the volume of documents, collaboration, 17, 2014 as DHS proposed the final due a and the need for intermodified date for schedule all with 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 -10- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 11 of 52 representation that doing so would "facilitate production." Id. at 1, 8. Although modified, the Court permitted the scheduling order to be 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 documents," with complete production of documents by March 15, 2013, Plaintiff all responsive and the Vaughn Index by May 1, 2013. and unclassified 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 No. 3 9] Instead, DHS was ordered to produce all [Dkt. 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 -11- ("Second Holzer Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 12 of 52 •. Deel.") ~ extensions 46 [Dkt. No. 53 -3] . After receiving several additional 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 -12- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 13 of 52 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. In sum, no portion of EPIC' s Motion for Id. 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. March 9, 2016, DHS filed its Opposition. [Dkt. No. 81-1]. On 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 litigation may costs award "reasonable reasonably incurred" attorney in the fees and course of other FOIA litigation in which the complainant has "substantially prevailed." 5 U.S.C. § 552(a) (4) (E). Even though the award of attorneys' fees -13- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 14 of 52 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. To determine attorneys' fees, 2 5 U.S.C. whether a § 552 (a) (4) (E) (ii) (I) - (II). complainant is the Court considers factors, "entitled" to 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. fees has the additional Cir. 2014) (citations omitted) . The party seeking burden establishing the reasonableness of the fees requested. 656 F. Supp. 2d at 97. of Barnard, The complainant must provide supporting The Court will refer to this first theory of eligibility as the "judicial order" theory. 1 2 This theory of eligibility is often referred to as the "catalyst theory." -14- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 15 of 52 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' order" theory: (1) the May 24, 2012, fees under the "judicial 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 substantially prevailed in this argument litigation as a -15- that it result of the Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 16 of 52 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." 68 456 Judicial Watch, (D.C. Cir. 2008) F.3d 162, Inc. v. FBI, 522 F.3d 364, 367- (citing Davy v. Central Intelligence Agency, 165-66 (D.C. quotation marks omitted)). Cir. 2006) ("Davy I") (internal 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 -16- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 17 of 52 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 See Citizens for Responsibility & documents by a date certain. 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, Supp. 2d 225, 228-229 (D.D.C. 2011). Inc. v. DOJ, 774 F. This is true even where the scheduling order adopts the production schedule proposed by the Government, rather than the one proposed by the Citizens for Responsibility & Ethics in Washington, plaintiff. 820 F. Supp. 2d at 44. The Scheduling Order in this case virtually is indistinguishable from the orders issued in Judicial Watch and Davy I, as the Scheduling Order required the "Defendant's Complete Production of Documents" Scheduling Order at 1. relief [her] by a date It "provide [d] complaint sought," certain, August 24, 2012. [Plaintiff] with the precise 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 -17- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 18 of 52 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 that the D.C. [plaintiff's] claim-is an argument Circuit has repeatedly rejected.") (citing inter alia Judicial Watch, 522 F.3d 364, and Davy I, 456 F.3d 162). Court of Appeals' words are apt: The "the government's decision to dust off a thoroughly discredited argument and present it to [the Court] anew wastes both resources." [the Court's] time and the government's 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 Motion to Reconsider also changed the legal relationship between 3 -18- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 19 of 52 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 additional for its documents withholdings were under produced. Exemption Thus, EPIC 7D and no 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. -19- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 20 of 52 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: it released documents (1) DHS changed its position when 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. 9-11. Reply at 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 -20- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 21 of 52 determine whether the plaintiff demonstrated that the lawsuit was Cox v. necessary to ensure the agency's compliance with FOIA. U.S. Dep't of Justice, 601 F.2d 1, 6 (D.C. plaintiff's recovery under the "catalyst theory" causation." Cir. 1979). A "thus turns on 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 Indeed, an agency's (D.D.C. Apr. 18, 2016). "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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 22 of 52 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) was burdened with other Conservation Force v. (D.D.C. Feb. 5, 2016) duties Jewell, that "whether the agency delayed 12-cv-1665, its response." 2016 WL 471252, at *7 (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. After EPIC filed its 2015 Mem. Op. at 15-16. FOIA ·request on July 26, acknowledged receipt on August 3, 2011. -22- 2011, DHS Thereafter, EPIC heard Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 23 of 52 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, "tasked out the search" to NPPD' s 2012 appeal, as having 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 subject-matter offices likely subcomponent experts to have off ices "renewed search plan" who identified responsive with the records conducting by meeting with NPPD and electronic subcomponent tasking and these physical record searches. Id. Additionally, the parties stipulated in their -23- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 24 of 52 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 assertion, filed and it its is FOIA suit. unclear whether Here, its DHS makes employees no such 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 25 of 52 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 gathered 16,000 despite pages the of fact that documents the agency potentially had already 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 26 of 52 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 fivefold 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 processing. Id. ~ FOIA requests were ahead of EPIC's 12. Regarding other administrative difficulties, DHS represents that the need for line-by-line review, cross-agency for collaboration, and segregation of extensive unauthorized information delayed final review of responsive documents. Id. ~~ 31-34. Finally, given that unclassified information, EPIC requested both classified and 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. supra, 10. See DHS also failed to communicate these administrative -26- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 27 of 52 hurdles to EPIC prior to the lawsuit or provide EPIC with any sort of timeline. In sum, the Court regarding its response Court's multiple Scheduling and that DHS' s to EPIC' s stays, Order, Reconsideration, finds the the lack of FOIA request, Scheduling Order on transparency along with the Order, the Plaintiff's Modified Motion for 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, hard to believe that DHS would ever have gotten the it is job done without the Court's supervision. B. Plaintiff's Entitlement to Attorneys' Fees Having found Plaintiff fees, the Court must now determine if EPIC is also entitled to them. In determining whether a fees, eligible complainant the Court considers, for is attorneys' "entitled" among others, to the plaintiff; (3) the attorneys' the following factors: "(1) the public benefit derived from the case; benefit to nature (2) the commercial 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 28 of 52 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." Cir. 1995). The Cotton v. Court of Heyman, Appeals 63 F.3d 1115, recently 1120 that held (D.C. when determining the public benefit, a court must assess "the potential public value" of the information sought, and not the "public value of the Agency, information 810 received." F.3d 841, 844 Morley (D.C. Cir. v. Central 2016) Intelligence (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 value,' fee-shifting scheme. Id. "To have 'potential public the request must have at least a modest probability of generating useful concern." Id. EPIC new information about a matter of public (internal citations omitted). 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 29 of 52 detracted from the information. Def.'s Obviously, national debate by disseminating false Opp'n at 16-17. 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 30 of 52 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, records, are the nature of the plaintiff's interest in the 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 McKinley, 739 F.3d at 711 (internal quotations and it." 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. F. DHS cites Nat'l Sec. Archive v. U.S. Dep't of Defense, 530 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 considered non-commercial interests. Def.'s not automatically 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 -30- it is true that 501 (c) (3) Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 31 of 52 nonprofit status does not automatically signal a non-commercial interest, FOIA's Castle actually legislative supports history that group[s]" are "usually allow[ed] EPIC' s position, "nonprofit citing to public interest 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 chlorofluorocarbon producers who had formed the non-profit, the court found that their motivation was were and 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 suits which are motivated by scholarly, in the records, "FOIA 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." -31- Pl.'s Mot. Summ. J at 2. Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 32 of 52 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. reasonableness of the agency's withholding, To determine the the Court considers two factors. The first disclosure "had factor a whether reasonable Intelligence Agency, II") is the basis agency's in law." opposition Davy v. 550 F. 3d 1155, 1162 (D. C. Cir. 2008) to Central ("Davy (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 entitlement omitted). with calculus." The other Davy second relevant II, considerations 660 is factor F. 3d at whether 1162 the in the (citations 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 33 of 52 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 foreclosed by Davy II. at 12. This argument is squarely 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. 4 660 F. 3d at 1158. In that case, just as in this, completed court-ordered production and then moved Davy II, the agency 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, plaintiff was Consequently, the Court of Appeals still held that the entitled the to attorneys' Government's fees. argument that Id. at 1163. Plaintiff is 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. 4 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. 5 -33- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 34 of 52 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.'" In this case, Id. 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, that any delay in production was continued, meticulous, a result of its time-consuming efforts." Def.'s DHS argues "diligent, 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 35 of 52 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- -. Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 36 of 52 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 market rate in the relevant is determined by the community, "prevailing regardless of whether plaintiff is represented by private or non-profit counsel." Blum v. Stenson, 465 U.S. 886, 895 elements when determining (1984). reasonable The Court considers three hourly fees: the ( 1) 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, Cir. 2015) ("Salazar IV") 809 F.3d 58, 62 (D.C. (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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 37 of 52 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. - - - - - - Eley v. See id.; also 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 Statistics, the U.S. Department of to update the Laffey Matrix. Labor Bureau Pl. 's Mot. of Labor 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- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 38 of 52 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) Laffey Matrix in a FOIA case) ; (using the USAO 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 -38- litigation. Citizens for Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 39 of 52 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' LSI Laffey Matrix should be used. fees to show that the 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 partners in Washington, DC. survey of billing rates by law firm Id. Subsequently, two judges in this District have also concluded that the LSI Laffey Matrix should -39- be used. Citizens for Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 40 of 52 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 reasonableness of the LSI Laffey Index. in establishing the 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. for See 809 F.3d at 64-65; see also Citizens 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' the LSI Laffey Index. Elec. Privacy Info. -40- Ctr v. fees based on DHS, 2016 WL Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 41 of 52 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. Billing Record"), EPIC' s Mot. Compare Exhibit G to Pl.'s Mot. [Dkt. No. 81-9], Attorneys' for 12-cv-333 Fees and Cost Costs"), 13-cv-260 [Dkt. No. 28-8] ("Case with Exhibit G to ("Bill of Fees and (both listing many of the same attorneys working on both cases) . "Once the fee applicant has provided support for the requested rate, the evidence burden that the falls on the Government rate is erroneous. to go And when forward the with 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 evidence is insufficient. Court concludes that the The Government's sole evidence is the declaration of the economist, Dr Laura A. Malowane. 4] . Government's [Dkt .. No. 86- 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. Dr. Malowane's declaration purports to show that For example, the rates contained in the USAO Laffey Matrix are more in line with those -41- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 42 of 52 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. has failed to meet its burden. 73 (D.D.C. 2011) ("Salazar II") Accordingly, the Government See Salazar, 750 F. Supp. 2d 70, (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 litigating the responsive Cross-motions documents; for 2) Summary fee's incurred Judgment; 3) in fee's incurred following the issuance of the Summary Judgment Order; and 4) so-called "fees on fees," motion. [Dkt. No 81-9]. incurred in litigating the pending The Government objects to awarding any fees whatsoever, but also raises individual objections to certain -42- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 43 of 52 categories of fees sought by EPIC and certain line items within each category. a. First, Pre-Swnmary Judgment fees related to obtaining DHS's production of documents. 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. exactly what it sought in responsive documents by DHS this ~ EPIC received See supra 15-19. lawsuit the production of and therefore, the Court will award EPIC fees for its work that led to that production. The Government's argument consists of related claims, ignores that when a lawsuit "a plaintiff who has won substantial relief should not have his attorneys' fees reduced simply because -43- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 44 of 52 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) 440 (1983)). (quoting Hensley v. Eckerhart, 461 U.S. 424, 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 indeed, scheduling motion, F.3d Court is mindful that "rare, is the litigant who doesn't lose some skirmishes on the way to winning the war. " (D.D.C. the 2015) 1329, Hall v. (quoting Air Transp. 1335 (D.C.Cir.1998)) CIA, 115 F. Supp. 3d 24, Ass'n of Canada v. (internal quotation FAA, 29 156 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 -44- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 45 of 52 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 While various motions and cross-motions for summary judgment. 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. ~ [Dkt. No. 81-2] . 11 "If the plaintiff achieves only limited success, it is within the court's discretion to reduce the award of fees." Supp. 3d at 27. claims, Hall, 115 F. If a losing claim is distinct from successful "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 litigation. from any claims on which EPIC did not prevail on a EPIC succeeded in this single issue raised on summary judgment. Furthermore, the issues that EPIC unsuccessfully -45- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 46 of 52 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 This request totals $22,435.40. ~fees on fees." The Government argues that EPIC's -46- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 47 of 52 request is unreasonable because EPIC spent nearly as much time on the issue of attorneys' judgment. Def.'s "Hours fees as on work related to summary Opp'n at 19. 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 quotation marks omitted). (D.D.C. 2015) (internal citation and "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 omitted). (D.D.C. 2008) In addition, (internal citation and quotation marks "fees on fees" may be reduced to reflect the degree of a plaintiff's success on the merits. and Nationalization Services v. Jean, 496 U.S. See Immigration 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. argues that the hours dedicated to preparing the Motion DHS for Attorneys' Fees are excessive. Specifically, DHS argues that EPIC spent nearly as much time on the issue of attorneys' work related to summary judgment. Def.' s Elec. Privacy Info. Ctr. v. FBI, fees as on Opp' n at 19; see also 80 F. Supp. 3d at 162 -47- (finding Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 48 of 52 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. had an ongoing duty [Dkt. No. 81-9 at p. 45-52]. throughout accurate record of its time, the litigation EPIC to maintain an 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, Attorneys' Fees. and the preparation of the Motion for Fees related to reviewing billing and entering billing records shall be excluded. -48- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 49 of 52 EPIC will submit revised billing records for fees on fees to reflect this finding. 3. The Government's Practices objection to EPIC's Billing 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. (D.C. Cir. 1980) 641 F.2d 880, 891 ("where three attorneys are present at a hearing when one would suffice, excess time") . Copeland v. Marshall, compensation should be denied for the 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. -49- ., Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 50 of 52 Reflecting the realities of complex federal litigation and the resources of opposing counsel, the Court believes that it is often appropriate conference calls. to have However, more than generally, one attorney 72 F. Supp. 3d at 352. on the presence of three or Elec. more attorneys is unnecessary and unreasonable. Info. Ctr., present Accordingly, Privacy 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 Errors" and Repetitive Block Billing. ucareless DHS presents a bald assertion that EPIC engaged in "numerous examples of EPIC' s repetitive, billing sufficiently records and affidavits "contemporaneous, Opp'n at 19. Def.' s block billing." provide complete Court with standardized and the 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) No. 87-2); see also Role Models America, Inc. v. Brownlee, [Dkt. 353 F. 3d at 975; American Immigration Council v. U.S. Dep' t of Homeland Security, 82 F. Supp. 3d 396, 412 -50- (D.D.C. 2015). DHS has not Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 51 of 52 provided specific evidence to overcome the presumption of reasonableness. However, in discovered one considering instance the parties' motions, in which EPIC appears billed for the work of one attorney. [Dkt. the Court to have double- 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. prepare a opinion. EPIC shall revised case billing record in accordance with this 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 -51- Case 1:12-cv-00333-GK Document 89 Filed 11/21/16 Page 52 of 52 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 -52-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
