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Judicial Watch, Inc. v. Dep't of Commerce

July 29, 2005


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


These cases concern several related Freedom of Information Act ("FOIA") requests made by Judicial Watch, the plaintiff, to the Department of Commerce ("DOC"), the defendant. On September 30, 2004, after nearly ten years of litigation, this Court granted summary judgment to DOC in each case and dismissed each case because DOC had, at last, conducted a reasonable search for responsive documents and because DOC's withholdings and redactions of responsive documents were proper . While DOC ultimately convinced the Court that it had met its FOIA obligations, DOC's initial searches were "inadequate, unreasonable, and unlawful." Therefore, the court invited Judicial Watch to move for attorney fees and sanctions, if appropriate.

Now before the Court is Judicial Watch's motion [896, 897] for attorney fees and costs and for sanctions. The Court will grant in part and deny in part Judicial Watch's motion for the reasons set forth herein and award $897,331.05 in fees and costs to Judicial Watch.


In a December 22, 1998 memorandum opinion, the Court recounted the history of the case up to that point:

Plaintiff Judicial Watch filed three Freedom of Information Act (FOIA) requests with the DOC in the fall of 1994 seeking documents regarding the alleged sale of seats on DOC foreign trade missions in exchange for large donations to the Democratic National Committee (DNC). Having received no response from the DOC, Judicial Watch filed this FOIA action on January 19, 1995. On May 17, 1995, the DOC released some 28,000 pages of documents and withheld about one thousand others.

On February 1, 1996, this Court denied the DOC's first motion for summary judgment, finding the agency's Vaughn index to be insufficient to support judgment as a matter of law and also authorizing discovery on the issue of the adequacy of the DOC's document search. The DOC filed a revised Vaughn index in April of 1996 along with a second motion for summary judgment. The Court denied the motion as to the adequacy of the search on August 7, 1996.

On September 5, 1996, the Court granted in part and denied in part the remainder of the DOC's motion as to the agency's withholding of documents pursuant to various FOIA exemptions. The Court found 153 of the 306 documents withheld under Exemption 5 to have been unlawfully withheld and ordered their production; summary judgment was granted for the DOC as to all other documents accounted for in the revised Vaughn index. The Court subsequently granted Judicial Watch's motion to reconsider, reviewed all of the withheld documents in camera, and [reinstated] the September 5, 1996 ruling . . . . Since Judicial Watch began its discovery in the fall of 1996, it has consistently and persistently uncovered evidence of misconduct and unlawful withholding of documents by the DOC. It has been demonstrated that the DOC wrongfully withheld documents, destroyed documents, and removed or allowed the removal of others, all with the apparent intention of thwarting the FOIA and the orders of this Court. As if the agency's own conduct were not reprehensible enough, its counsel has also repeatedly strayed far outside the boundaries of professional conduct (although not without some provocation by counsel for Judicial Watch).

Judicial Watch, Inc. v. Dep't of Commerce, 34 F. Supp. 2d 47, 48-49 (D.D.C. 1998). In a separate opinion issued that date, the Court took the unusual step of denying the DOC's motion for summary judgment against itself because, without further court proceedings, any relevant documents that had been transferred out of DOC's control, destroyed, or misplaced "would not be found even by the most exhaustive of searches, and the DOC would have succeeded in circumventing the FOIA." Judicial Watch, Inc. v. Dep't of Commerce, 34 F. Supp. 2d 28, 43 (D.D.C. 1998). The Court, sua sponte, entered partial summary judgment against DOC, ordered the DOC to undertake a second, more rigorous search for documents, and authorized further discovery concerning DOC's search and document handling that could lead to the recovery of transferred, destroyed, or lost documents. Id. at 41, 44-46.

After December 22, 1998, DOC made a second search for responsive documents and Judicial Watch took discovery as authorized by the Court. While Judicial Watch unearthed some further evidence of improprieties during the first search, Judicial Watch was largely unsuccessful at that task and was unable to reconstruct or locate lost or destroyed responsive documents. At the conclusion of the second search, DOC moved for summary judgment. On September 30, 2004, this Court granted DOC's summary judgment motions, disposing of the merits of the case. Judicial Watch v. Dep't of Commerce, 337 F. Supp. 2d 146 (D.D.C. 2004).

Judicial Watch now seeks reimbursement of attorney fees and costs incurred throughout the past 10 years of litigation. DOC concedes that Judicial Watch should receive some fees and costs for its prosecution of the litigation through December 22, 1998 -- the date the Court sua sponte entered partial summary judgment in favor of Judicial Watch -- but argues that no fees or costs should be awarded for activity after that date.


The Court will first consider Judicial Watch's eligibility for and entitlement to an award of fees and costs under FOIA. Finding Judicial Watch eligible and entitled, the Court will then consider the reasonableness of rates and hours for which Judicial Watch seeks compensation. Finally, the Court will consider DOC's opposition to fees incurred by Judicial Watch attorney Larry Klayman and to Judicial Watch's requested fee enhancement.


FOIA allows a district court, in its discretion, to "assess against the United States reasonable attorney's fees and other litigation costs reasonably incurred in any case ... in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). "Determining whether an award of attorney's fees is appropriate under the fee-shifting provision of FOIA requires an inquiry into two related but separate issues: (1) Is plaintiff eligible for an award of attorney's fee? (2) If plaintiff is eligible for attorney's fees, is plaintiff entitled to such fees?" Piper v. Dep't of Justice, 339 F. Supp. 2d 13, 17 (D.D.C. 2004) (citing Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 709, 711 (D.C. Cir. 1977)). The eligibility determination is nothing more than a determination that plaintiff meets the statutory requirement that "the complainant has substantially prevailed." Church of Scientology v. Harris, 653 F.2d 584, 587 (D.D.C. 1981). Not all eligible plaintiffs are also entitled. Id. at 590. The entitlement inquiry allows the court to exercise its "sound discretion" to grant or deny fees given the facts of particular cases. Id. Once plaintiff is deemed eligible and entitled, the Court focuses on the proper amount of the fee award.

Judicial Watch is clearly eligible. "In order for plaintiffs in FOIA actions to become eligible for an award of attorney's fees, they must have been awarded some relief by a court, either in a judgment on the merits or in a court-ordered consent decree." Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452 (D.C.Cir.2002). In the early stages of litigation, the Court ordered DOC to release numerous unlawfully withheld documents. See Piper, 339 F. Supp. 2d at 19-20 (finding plaintiff had prevailed because, in part, the Court had ordered release of documents upon plaintiff's motion). In 1998, as already described, the Court entered partial summary judgment sua sponte against DOC, ordering a new search and authorizing further discovery. These events qualify as court-awarded relief and surely "changed the legal relationship of the parties." Oil, Chem. & Atomic Workers Int'l Union, 288 F.3d at 458. DOC concedes this. (Opp. Br. at 11.) The fact that Judicial Watch lost summary judgment after the new search does not diminish its earlier successes and does not alter the Court's conclusion that Judicial Watch is eligible for fees.*fn1

Judicial Watch is also entitled. When a court exercises its discretion and considers a plaintiff's entitlement to fees and costs, it may consider, among other factors it deems important:

(1) the benefit to the public if any, derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records sought; and (4) whether the government's withholding of the records had a reasonable basis of law.

Church of Scientology v. Harris, 653 F.2d at 590. DOC does not question Judicial Watch's entitlement to some fees and costs and the Court concludes that these factors ...

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