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Citizens For Responsibility and Ethics In Washington v. U.S. Department of Justice

October 26, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


In February and March of 2010, Citizens for Responsibility and Ethics in Washington (CREW) submitted two Freedom of Information Act requests to the Department of Justice's Office of Legal Counsel. After failing to obtain the documents it had requested, CREW filed a Complaint initiating the instant suit. On August 2, 2010, Judge Richard J. Leon, to whom this case was previously assigned, issued a Scheduling Order requiring, inter alia, that OLC complete its processing and produce certain responsive documents by a specified date. OLC ultimately complied with this order, and CREW has not challenged any of its withholdings. The parties filed a Joint Stipulation of Dismissal approximately nine months later, leaving only the issue of attorney fees and costs. Because the Court finds that CREW substantially prevailed in its suit and that the multi-factor entitlement inquiry favors a fee award, it will grant Plaintiff's Motion for Attorney Fees and Costs. The actual amount due shall be determined at a subsequent date.


On February 26, 2010, CREW submitted a FOIA request to OLC. See Mot., Exh. E (Letter from Anne Weismann, Feb. 26, 2010). CREW sought 1) "a copy of all record keeping guidance issued to staff of the [OLC] from January 2000 to present concerning how electronic records, including email, are to be treated for purposes of federal record keeping laws," and 2) "a copy of all records indicating, reflecting, or commenting on any problems with the storage or retention of emails of OLC staff, including but not limited to former Assistant Attorneys General John Yoo and Patrick Philbin, from January 2000 to July 2009." Id. at 1. Claiming "a particular urgency to inform the public about the circumstances underlying the destruction of the emails of former high-ranking OLC officials, including Messrs. Yoo and Philbin," CREW requested expedited processing. Id. at 4.

Less than a week later, on March 3, CREW sent a second FOIA request to OLC. See Mot., Exh. I (Letter from Anne Weismann, Mar. 3, 2010). With this request, CREW sought "a copy of all emails sent to or from former Assistant Attorney General John Yoo from June 2001 through May 2003." Id. at 1. This time, it did not seek expedited processing. See id.

OLC responded to the February 26th request by a letter dated March 16, eighteen days after that request had been submitted. Mot., Exh. F (Letter from Paul P. Colborn, Mar. 16, 2010). It acknowledged receipt of CREW's request and advised CREW that its request for expedition had been granted under a regulation "applicable to requests involving '[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.'" Id. (citing 28 C.F.R. 16.5(d)(l)(iv) (2008)) (alteration in original). OLC also suggested that CREW consider narrowing the scope of its request to speed up processing. Id. The letter did not mention the March 3rd request. See id.

During a subsequent phone call, CREW and OLC discussed the February 26th request and agreed that its two parts - the first concerning recordkeeping guidance and the second concerning storage or retention problems with Yoo's and Philbin's email - would be processed separately. See Mot. at 5. OLC also advised CREW that it did not anticipate locating documents responsive to the second part of CREW's request. Id. There was no discussion of CREW's March 3rd request during this call. See id.

OLC produced two documents responsive to the first part of the February 26th request on April 16, 2010. See id., Exh. G (Letter from Paul Colborn, Apr. 16, 2010). Having received no further communication from OLC regarding the second part of its February 26th request and no response at all regarding the March 3rd request, CREW filed the Complaint in this case on May 11, 2010 (seventy-five days after the initial request had been filed and twenty-five days after the last communication from OLC). See Mot. at 5-7. On June 8, 2011, Judge Leon issued a Case Management Order requiring the parties to meet and confer and file a joint statement setting forth, inter alia, a proposed scheduling order. See ECF No. 3. The parties conferred and submitted a Joint Status Report on July 12, 2010. See ECF No. 5. The parties were unable in the Report to reach an agreement on the timetable for OLC to complete its processing of the March 3rd request. See id.

While the Report was pending before Judge Leon, on July 23, OLC advised CREW that it had no documents responsive to the second part of the February 26th request, "thereby confirming what it had orally advised CREW more than four months earlier" and "le[aving] no outstanding issues concerning [that] request." Mot. at 6; id., Exh. H (Letter from Paul Colborn, July 23, 2010). On August 2, Judge Leon issued a Scheduling Order consistent with the timetable suggested by OLC:

It is hereby ORDERED that OLC will, no later than August 31, 2010, (1) complete processing those responsive documents yielded by the search of OLC's records that do not require referral or consulation; (2) produce responsive non-referred documents except those it withholds on the basis of a FOIA exemption; (3) circulate documents that do require referral or consultation to the relevant agencies or departments; and (4) confer with CREW on a timetable for the referrals and for the production of a Vaughn index for withheld documents.

Scheduling Order, August 2, 2010. OLC complied with the terms of this Scheduling Order, producing 201 non-referred documents on August 31 and, consistent with the timetable agreed upon by the parties, producing 25 referred documents on September 30 and a draft Vaughn index on October 22.

CREW did not challenge any of OLC's withholdings or redactions, and, by stipulation of the parties, this action was dismissed on June 9, 2011. See Joint Stip. of Dismissal, ECF No. 6. That same day, Plaintiff filed the instant Motion for Attorney Fees and Costs.*fn1


FOIA provides that courts "may assess against the United States reasonable attorney 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)(i); see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011). "This language naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee 'eligibility' and fee 'entitlement.'" Brayton, 641 F.3d at 524 (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce ("Judicial Watch I"), 470 F.3d 363, 368-69 (D.C. Cir. 2006)). The Court, accordingly, must first decide whether Plaintiff has "substantially prevailed" and is therefore "eligible" to receive fees. See id.; Judicial Watch I, 470 F.3d at 368; Negley v. FBI, 2011 WL 4793143, at *1 (D.D.C. Oct. 11, 2011). If Plaintiff is "eligible," the Court must then "consider[] a variety of factors" to determine whether it is "entitled" to fees. Id.; Judicial Watch I, ...

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