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

November 21, 2011

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE,
DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

In February and March of 2010, Citizens for Responsibility and Ethics in Washington 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.

On October 26, 2011, the Court issued a Memorandum Opinion and Order granting Plaintiff's Motion for Attorney Fees and Costs, but reserving the question of the actual amount due in the hope that the parties could resolve that issue themselves. As they have been unable to do so, the Court turns to that question here. Having considered the parties' arguments and dusted off its calculator, the Court ultimately finds Plaintiff entitled to costs and fees in the amount of $12,417.50.

I.Analysis

The full history of this case is set out in detail in the Court's October 26, 2011, Memorandum Opinion and Order granting Plaintiff's Motion for Attorney Fees. See CREW v. DOJ, --- F. Supp. 2d ---, 2011 WL 5075102, at *1-2 (D.D.C. 2011). In CREW's Motion it initially requested fees in the amount of $13,978 plus costs. See Mot. at 21. (The $500 in costs does not appear to be disputed.*fn1 ) The two attorneys seeking compensation for their work on this case, Anne Weismann and Melanie Sloan, submitted supplemental declarations with CREW's reply brief in which they attest that they spent 14 and 1.5 hours, respectively, preparing that document. See Reply, Exh. B (Supp. Decl. of Anne Weismann), ¶ 2; id., Exh. C (Supp. Decl. of Melanie Sloan), ¶ 2. CREW also seeks reimbursement for 10 hours of a legal intern's work "at the hourly rate of $135 for law clerks and paralegals authorized by the Laffey matrix." Weismann Supp. Decl., ¶ 3. In total, then, CREW seeks $22,393 in attorney fees. *fn2 This is the sum in dispute.

DOJ brings numerous challenges to CREW's request. It appears, nevertheless, that both parties agree on the preliminaries. It is established that the "usual method of calculating reasonable attorney's fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the 'lodestar' amount." Bd. of Trs. of Hotel and Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986)). Where, as here, the attorneys to be compensated are public-interest attorneys without a customary hourly rate, courts look to the prevailing market rates in the community. See Blum v. Stenson, 465 U.S. 886, 896 (1984); Bd. of Trs., 136 F.3d at 801. Courts in this circuit look to the Laffey matrix, "a schedule of fees based on years of attorney experience that was developed in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev'd on other grounds, 746 F.2d 4 (D.C. Cir. 1984)," ACLU v. U.S. Dept. of Homeland Security, --- F. Supp. 2d ---, 2011 WL 4100962, at *9 (D.D.C. 2011), in order to determine the appropriate "reasonable hourly fee" to use in calculating the lodestar amount. See, e.g., Judicial Watch, Inc. v. DOJ, 774 F. Supp. 2d 225, 232 (D.D.C. 2011); B.R. ex rel. Rempson v. District of Columbia, --- F. Supp. 2d ---, 2011 WL 3557459, at *8 (D.D.C. 2011); Northwest Coalition for Alternatives to Pesticides v. EPA, 421 F. Supp. 2d 123, 129 (D.D.C. 2006).

DOJ, furthermore, seems to agree with CREW's suggestion that, consistent with the Laffey matrix, Weismann is entitled to $465 per hour for her work in 2010 and $475 per hour for her work in 2011. See Mot. at 20. And though it contends that Sloan should not be compensated for her time at all, DOJ does not appear to contest that, should the Court find that her time is compensable, Sloan should receive $410 per hour for her work in 2010 and $420 per hour for her work in 2011.

The parties go that far together and no farther. DOJ argues that CREW's "reconstructed timesheets are insufficient for this Court to determine the time reasonably expended on this case," Opp. at 24, that CREW should not recover fees "for reviewing documents produced in response to its FOIA request," id. at 28, that it should not recover for various additional "unreasonable time expenditures," id. at 30-34, and that the award of "fees on fees" should be reduced to the extent the Court is persuaded that any of CREW's requests are unreasonable. Id. at 32-33. The Court will address each of DOJ's arguments in turn. Ultimately, it finds some of DOJ's broader concerns to be justified and will reduce the fee award accordingly, but it declines to engage in the kind of "nitpicking" invited by DOJ's smaller-scale objections. See Baker v. D.C. Public Schools, --- F. Supp. 2d ---, 2011 WL 4507251, at *4 (D.D.C. 2011) (citing Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1337-38 (D.C. Cir. 1982)); see also Alfonso v. District of Columbia, 464 F. Supp. 2d 1, 5-6 (D.D.C. 2006) (rejecting "defendants' invitation to 'conduct a minute evaluation of each phase or category of counsel's work'" (quoting Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980))).

A. CREW's Timekeeping Practices

DOJ challenges the sufficiency of CREW's timekeeping practices in two respects. First, it argues that CREW's counsel failed to maintain sufficiently detailed contemporaneous records and that its "reconstructed timesheets" are insufficient. See Opp. at 24-25. Second, it maintains that CREW's practice of billing in hourly and "in some cases" half-hourly increments resulted in overbilling. See id. at 25-26. The Court agrees.

"[The D.C. Circuit] has been very explicit about what documentation is necessary to recover attorney fees." Weisberg v. Webster, 749 F.2d 864, 872 (D.C. Cir. 1984). Specifically, it has emphasized that "[c]asual after-the-fact estimates of time expended on a case are insufficient to support an award of attorneys' fees. Attorneys who anticipate making a fee application must maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney." Concerned Veterans, 675 F.2d at 1327. In addition, "courts in this District and others" have often required that attorneys bill in ten-minute or six-minute increments and "have reduced attorneys' fees on the grounds that billing in increments smaller than quarter-hours is more accurate." Thomas ex rel. A.T. v. Dist. of Columbia, 2007 WL 891367, at *4 (D.D.C. 2007) (citing Blackman v. Dist. of Columbia, 59 F. Supp. 2d 37, 44 (D.D.C. 1999), and Bd. of Educ. of Frederick Cty. v. I.S., 358 F. Supp. 2d 462, 470 (D. Md. 2005)).

While CREW's counsel did keep some contemporaneous records, their timekeeping practices fell significantly below what is expected of fee applicants in this Circuit. They kept "daily time sheets" that "indicate[d] the number of hours (and in some cases half-hour increments) . . . spent on specific cases, but d[id] not itemize the specific tasks [they] performed for each of those cases." Weismann Decl., ¶ 3. Working from these time sheets, Weismann attests she was able to "determine [her] time for purposes of recovering [ ] fees in this matter" as follows:

I reviewed the hours I spent on the case in coordination with the docket sheet, my case files, and periodic notes of daily activities I maintain on my calendar, all of which informed me as to the specific matter pending on a date on which I had expended time. For example, knowing the parties had filed a joint status report with the Court on July 12, 2010, allowed me to attribute the time I spent on this case in the days preceding July 12, 2010 to that task.

Id., ΒΆ 4. Both Weismann and Sloan stated that they "exercised considerable billing judgment and "typically reduced [their] hours assigned to a specific litigation ...


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