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Electronic Privacy Information Center v. United States Transportation Security Administration

United States District Court, District Circuit

October 15, 2013

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION, Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

Before the Court is plaintiff Electronic Privacy Information Center's (EPIC) motion for attorneys' fees and costs [ECF No. 28] against defendant U.S. Transportation Security Administration (TSA). After considering the motion, the response and reply thereto [ECF Nos. 29-30], and the record herein, the Court will award EPIC $9, 373.34 in fees and costs. EPIC may also move the Court for an additional $1, 798.10, but only if TSA's settlement offer was for less than $9, 373.34.

I. BACKGROUND

The facts and law applicable to this case are substantially similar to those in another case submitted this day, Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., Civil No. 10-1992 (RCL). The most relevant difference is that there were more costs here associated with the TSA's voluntary production of documents in August 2011. Another difference is that here, EPIC prevailed on a challenge to exemption 5 rather than 4, and it dedicated relatively more pages to it. Even though EPIC got only portions of ten pages as a result, see EPIC. v. TSA, 928 F.Supp.2d 156, 164 (D.D.C. 2013), a fraction of what it sought, the Court will not reduce EPIC's fees further on that account because of the common legal questions involved under exemption 5. As for other factual differences, the Court will mention them only as needed in applying the law.

II. LEGAL STANDARD

For a discussion of the law applicable to this case, please refer to EPIC v. DHS, Civil No. 10-1992.

III. ANALYSIS

a. Fees for causing TSA's voluntary production of documents in August 2011.

TSA concedes that EPIC is entitled to fees and costs associated with TSA's voluntary production of documents in August 2011, but disputes the amount. In addition to the $350 filing fee, EPIC seeks $2, 539.50 in fees before August 2011. See ECF No. 28-3 at 1. That number must be reduced.

First, the Court agrees that EPIC should not get fees for time drafting a motion to appear pro hac vice that was denied. Cf. Am. Wrecking Corp. v Sec'y of Labor, 364 F.3d 321, 331 (D.C. Cir. 2004) ("[T]ime spent gaining admittance to the bar of this court should not be counted as attorney fees for purposes of the EAJA."). The Court also agrees that EPIC cannot claim "fees for time spent responding to the Court's order for EPIC to show cause." Def.'s Opp'n 20. Taking those reductions into account, that brings the pre-August 2011 total (including the filing fee) to $2, 102.

Next, the Court must also reduce some of the remaining pre-August hours, all of which were logged by Ms. Stepanovich, an attorney who was admitted to the New York State Bar on January 20, 2011, see ECF No. 30-2, but was not barred in D.C. until 2013. The first two entries, both from 2010, must be reduced from the $230 hourly rate to $135, the paralegal clerk rate that was applicable at the time, U.S. DEP'T OF JUST., Laffey Matrix - 2002-2012, http://www.justice.gov/usao/dc/divisions/civil_Laffey_Matrix_2003-2012.pdf, because Ms. Stepanovich had not yet been admitted to any bar. The remaining pre-August hours may remain intact because they do not involve filing papers in this Court (which would require membership in the D.C. Bar and the bar of this Court). The fees for pre-August hours are therefore $1, 722.

b. Fees for litigating the summary judgment motion.

The next time period to consider is from August 2011 to March 21, 2013, when fee litigation began. EPIC seeks $16, 557 in fees for that period. The Court will reduce that number in accordance with EPIC's limited success on its summary judgment motion. Using the D.C. Circuit's test in Judicial Watch, Inc. v. U.S. Department of Commerce, 2007 U.S.App. LEXIS 2337, at *2-*4 (D.C. Cir. 2007), this Court finds that EPIC dedicated about 13 pages of argument out of 33, or 39.3939...%, to exemption 5 (the winning issue). See ECF No. 14-1 at 6-24; No. 18 at 2-15. Taking that percentage of $16, 557, the Court will award EPIC $6, 522.45 ...


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