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Electronic Privacy Information Center v. United States Department of Homeland Security

United States District Court, District Circuit

October 15, 2013



ROYCE C. LAMBERTH, District Judge.

Before the Court is plaintiff Electronic Privacy Information Center's (EPIC) motion for attorneys' fees and costs [ECF No. 24] against defendant U.S. Department of Homeland Security (DHS). After considering the motion, the response and reply thereto [ECF Nos. 25-26], and the record herein, the Court will award EPIC $3, 321.95 in fees and costs. EPIC may also move the Court for an additional $640.58, but only if DHS's settlement offer was for less than $3, 321.95.


There are three time periods to keep in mind for this case. The first period is from November 19, 2010 to March 21, 2013. That is the time during which the parties litigated the merits. The second is between March 21st and April 12th. That is when the parties litigated fees and costs, but before DHS made an offer of settlement under Federal Rule of Civil Procedure 68. The third period is after April 12th, 2013, or after DHS's Rule 68 offer.

The underlying case began on November 19, 2010, when EPIC filed a Freedom of Information Act (FOIA) lawsuit against DHS [ECF No. 1], seeking production of documents relating to Whole Body Imaging technology used in U.S. airports. In response, DHS produced nearly 1, 900 pages but also withheld many pursuant to exemptions 3, 4, 5, and 6. In response to EPIC's summary judgment motion to compel production of documents withheld under exemptions 3, 4, and 5 (EPIC conceded 6), this Court ordered production of documents withheld under only exemption 4, resulting in the production of 18 pages. See Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 928 F.Supp.2d 139, 147-49 (D.D.C. 2013).

Because the Court granted it partial summary judgment, EPIC moved for attorneys' fees under FOIA's fee-shifting statute. See 5 U.S.C. § 552(a)(4)(E). EPIC also logged the hours that its attorneys worked on this fee litigation. Those hours began on March 21, 2013-both for this case and for another, Elec. Privacy Info. Ctr. v. Transp. Sec. Admin., Civil No. 11-290. Except for a few unique entries, the logs are substantially the same as of March 21st.

Fees continued to pile up even after DHS made a settlement offer under Rule 68 on April 12, 2013 (EPIC rejected it). DHS has not disclosed the amount offered so as not to bias the Court, see Def.'s Opp'n 28-29, but even so, the Court will for the reasons below split the fees on fee litigation into those incurred up to April 12th and those incurred after.

There are many issues contested in this fee litigation. So rather than repeat itself, the Court will elaborate on the facts relevant to each one below.


a. Eligibility for and entitlement to attorneys' fees

In a FOIA suit, "[t]he court 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). A plaintiff substantially prevails by "obtain[ing] relief through either (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." § 552(a)(4)(E)(ii). In addition to being eligible for attorneys' fees, i.e. substantially prevailing, a plaintiff must be entitled to the fees in order to receive any. Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984). Entitlement "entails a balancing of four factors: (1) the benefit of the release to the public; (2) the commercial benefit of the release to the plaintiff; (3) the nature of the plaintiff's interest; and (4) the reasonableness of the agency's withholding." Id. at 1498. With respect to the balancing test, "[t]he sifting of those criteria over the facts of a case is a matter of district court discretion." Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992). Still, the D.C. Circuit has offered some guidance, for instance by stating, "Essentially, the first three factors assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage." Davy v. CIA, 550 F.3d 1155, 1160 (D.C. Cir. 2008) (emphasis added).

b. Successful and unsuccessful claims

Even if a plaintiff is eligible for and entitled to attorneys' fees, a court must still inquire whether there are any unsuccessful claims that were unrelated to successful ones. See George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1535 (D.C. Cir. 1992). If there are, the plaintiff may recover fees for work done on only the successful claims. Id. Further, a court "must then consider whether the success obtained on the remaining claims is proportional to the efforts expended by counsel." Id. In other words, if the plaintiff achieves only limited success, it is within the court's discretion to reduce the award of fees. See id. The method of reduction this Court will use here, one that the D.C. Circuit has used when a plaintiff does not allocate time between claims, is to award a percentage of the fees sought equal to the percentage of pages spent arguing the successful claims on the merits. See Judicial Watch, Inc. v. U.S. Dep't of Commerce, 2007 U.S.App. LEXIS 2337, at *2-*4 (D.C. Cir. 2007).

c. Fees for conferences

Whereas the touchstone for attorneys' fees is reasonableness, see 5 U.S.C. § 552(a)(4)(E)(i) ("The court may assess... reasonable attorney fees... reasonably incurred...."), this Court expects fee applicants to exercise billing judgment. Where applicants fail to do this, the Court will exclude "hours that are excessive, redundant, or otherwise unnecessary" after considering the record. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Moreover, the Court will pay particularly close attention when many lawyers bill for a single task. Cf. Copeland v. Marshall, 641 F.2d 880, 891 (D.C. ...

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