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Barnard v. Dep't of Homeland Security

September 18, 2009


The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge


Pending for consideration by the undersigned United States Magistrate Judge is Plaintiff's Motion for Award of Attorneys' Fees and Litigation Costs pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(E), and the Privacy Act, 5 U.S.C. § 552a(g)(3)(b). (Document No. 53). Plaintiff claims that he is eligible to an award of attorneys' fees and costs as he "substantially prevailed" in the underlying litigation; that he is entitled to an award; and that the requested award of $66, 967.72 is reasonable under the circumstances. Upon consideration of the parties' submissions and the entire record herein, Plaintiff's motion will be denied.


Plaintiff, Neal D. Barnard, M.D., is the president and founder of the Physicians Committee for Responsible Medicine. Third Amended Complaint ("Compl.") (Document No. 37) ¶ 2. Defendant, Department of Homeland Security, is a United States agency, which includes as components Immigrations Customs Enforcement ("ICE") and U.S. Customs and Border Protection ("CBP"). Id. ¶ 3.

Plaintiff alleges that between January, 2003 and January, 2007, he was detained, questioned, and searched at various airports before or after international trips on approximately 17 occasions. Barnard v. Dep't of Homeland Security, 598 F. Supp. 2d 1, 3 (D.D.C. 2009). To obtain records related to him with respect to the detentions, interrogations and searches, Plaintiff, in 2006, sent FOIA and Privacy Act requests first to CPB, then to ICE. Plaintiff subsequently filed this action on August 7, 2006. Id. With respect to the responsive records which had been located, but withheld, as of the time the parties completed their briefing of their cross-motions for summary judgment, the court (Kollar-Kotelly, J.), after an in camera review of the records, determined that there was no reasonably segregable, non-exempt information in such records. Id. at 5. Accordingly, the court granted Defendant's motion for summary judgment and denied Plaintiff's cross-motion for summary judgment. See id.

Within a week, Defendant advised that it had discovered additional responsive documents. Id. The court granted Defendant's motion for a stay, and ordered Defendant to "process" the additional records and either release them to Plaintiff or prepare a Vaughn index regarding any information withheld from release. Id. at 6. During the course of the stay, additional records were discovered by both CBP and ICE, some of which were released to Plaintiff (either in full or with redactions) and the remainder of which were withheld. Id. In accordance with the court's scheduling order, the parties briefed a second round of dispositive motions, which incorporated Plaintiff's motion for reconsideration of the order denying his first motion for summary judgment. Id. On February 9, 2009, the court granted Defendant's second motion for summary judgment, and denied both Plaintiff's motion for reconsideration and second cross-motion for summary judgment. See id. at 28. On February 23, 2009, Plaintiff filed the pending motion for attorneys' fees and costs.


Plaintiff moved for an award of attorneys' fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E) and 5 U.S.C. § 552a(g)(3)(b). Plaintiff's Memorandum of Points and Authorities In Support of Motion for Award of Attorneys' Frees and Litigation Costs ("Pl.'s Mem.") (Document No. 53) at 1. Plaintiff asserts that he "substantially prevailed" in this Freedom of Information ("FOIA")*fn1 and Privacy Act lawsuit and is entitled to both an award of attorneys' fees and litigation costs." Pl.'s Mem. at 2. Plaintiff states that he "substantially prevailed" because "he obtained relief through either 'judicial order' or 'a voluntary or unilateral change in position by the agency[,]'" and maintains that "Defendant's discovery and production of responsive documents was a direct result of judicial orders." Id. at 3. To calculate the amount of the fee award Plaintiff requested, he calculated the "lodestar amount" by multiplying the number of hours he suggests were reasonably expended -- 572.9 -- by an hourly rate of $205.00 -- the prevailing market rate for an attorney with one to three years of experience -- added costs of $350, then multiplied that sum by "a production factor" of 57%. Id. at 4-5. These calculations yielded a total of $66,967.72. Id.

First, Plaintiff argues that the 2007 OPEN Government Act amendments*fn2 apply retroactively rendering him eligible for an award of attorney's fees and costs. Plaintiff's Reply in Support of the Motion for Award of Attorneys' Fees and Litigation Costs ("Pl.'s Reply Mem.") (Document No. 57) at 4-5. Next, Plaintiff submits that he is entitled to an award of attorneys' fees and litigation costs. Id. at 6. Finally, Plaintiff contends that the attorneys' fees requested in this case are reasonable. Id. at 10.

Oral argument was held on June 26, 2009. At the conclusion of oral argument, the undersigned learned that while the oral argument in this case was in progress, the United States Court of Appeals for the District of Columbia Circuit issued an opinion in Summers v. Dep't of Justice, 569 F.3d 500 (D.C. Cir. 2009). The decision in Summers included consideration of whether the OPEN Government amendments apply retroactively. Id. With respect to that issue, the Circuit held that the amendments to FOIA do not apply retroactively. Summers, 569 F.3d at 502.

Accordingly, the undersigned requested that each party file a supplemental memorandum addressing the Summers decision. The parties filed memoranda in accordance with the undersigned's scheduling order. See Defendant's Memorandum of Law With [Regard] to Summers v. Department of Justice ("Defendant's Supplemental Memorandum") (Document No. 60); Memorandum of Law Regarding Applicability of Summers v. Dep't of Justice ("Pl.'s Suppl. Mem.") (Document No. 61).

Plaintiff's Arguments Regarding Eligibility

Plaintiff contends that he is eligible for attorneys' fees because he has "substantially prevailed" as required by FOIA. Pl.'s Mem. at 2-3; Pl.'s Reply Mem. at 2-6. In support of his contention, Plaintiff posits that he obtained relief through either "judicial order" or "a voluntary unilateral change in position by the agency." Id. Plaintiff further relies on Defendant's initial denial of the existence of the requested records. Pl.'s Rely Mem. at 3. Plaintiff also alleges that Defendant "unilaterally changed its position" by providing 195 pages in whole or in part and acknowledging the existence of another 148 pages that it withheld. Id. Plaintiff asserts that Defendant's discovery and production of the documents was a direct result of judicial orders. Id. Thus, Plaintiff contends that he should be deemed to have "substantially prevailed" in accordance with either of the alternative criteria. Id.

In his discussion of "eligibility[,]" Plaintiff articulated his arguments regarding the OPEN Government Act amendments to FOIA. Id. at 4-5. Plaintiff initially took the position that the court should adhere to its reasoning in Judicial Watch v. Bureau of Land Mgmt., 562 F. Supp. 2d 159, 167-72 (D.D.C. 2008), and retroactively apply the OPEN Government Act amendments. Id. In his memorandum addressing the holding of Summers, Plaintiff contends that the "Court need not even consider retroactivity" but rather simply deem the law to have been in effect when the "most significant conduct" occurred. Pl.'s Supp. Mem. at 3-4.

Plaintiff's Arguments Regarding Entitlement

In reply to Defendant's opposition to the motion, Plaintiff argues that he is entitled to attorneys' fees because he has satisfied the four-factor analysis set forth under the Freedom of Information Act. Id. at 6. Plaintiff's chief contention is that the public derives a benefit from this case because there is a vested interest in border protection and terrorism prevention. Id. at 8. Furthermore, Plaintiff asserts that he is not seeking a commercial benefit in this case, and the records at issue are only a means of advancing his work for the benefit of the public. Id. at 7-8. Plaintiff also argues that the government's withholding of records in this case was unreasonable. Id. at 8-9. Plaintiff maintains that Defendant did not process his first FOIA/PA request for nearly three years. Id. at 9. Furthermore, Plaintiff contends that it was not until Defendant prepared to comply with the court's 2008 order regarding in camera review that it discovered 300 additional pages of records possessed by both agency components. Id. Therefore, Plaintiff concludes that he is entitled to receive attorneys' fees under FOIA.

Plaintiff's Arguments Regarding Reasonableness of Fees

Plaintiff's counsel seeks compensation of $66,967.72 for attorneys' fees and litigation costs, and maintains that the amount requested is reasonable. Id. at 5. Plaintiff submits than in an exercise of billing judgment, he ...

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