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Electronic Privacy Information Center v. U.S. Department of Homeland Security

United States District Court, District Circuit

November 15, 2013



JOHN D. BATES, District Judge.

The Electronic Privacy Information Center ("EPIC") brings this action against the United States Department of Homeland Security ("DHS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Before the Court is [25] EPIC's motion for attorney's fees, and [28] DHS's motion to strike a portion of [27] EPIC's reply brief in support of its fee motion. For the reasons set forth below, EPIC's motion for attorney's fees will be granted in part and denied in part, and DHS's motion to strike will be denied.


On February 1, 2011, DHS published notice in the Federal Register announcing its intent to create a new system to monitor social media networks, titled "Publicly Available Social Media Monitoring and Situational Awareness Initiatives." Compl. [Docket Entry 1] ¶ 5; see also 76 Fed. Reg. 5603, No. DHS-2011-0003 (Feb. 1, 2011). The program was designed to monitor "publicly available online forums, blogs, public websites, and message boards, " and "disseminate relevant and appropriate de-identified information to federal, state, local, and foreign governments, and private sector partners." 76 Fed. Reg. at 5603.

EPIC filed a FOIA request "[i]n order to allow the public to assess the privacy risks to social media users, on April 12, 2011." Pl.'s Mot. for Att'y's Fees [Docket Entry 25] at 3. Eight months later, DHS had not produced any documents. Compl. ¶ 27. Hence, EPIC filed this lawsuit, seeking an injunction to compel DHS to comply with FOIA. Id . ¶ 38. DHS began producing responsive documents three weeks later. Over the next year, DHS made rolling productions, totaling approximately five hundred pages of documents, some of which were partially redacted. See Decl. of James Holzer, Attach. 3 to Def.'s Mot. for Summ. J. [Docket Entry 12-3] ¶¶ 15-17; Decl. of Julie Ferrell ("Ferrell Decl."), Attach. 5 to Def.'s Mot. for Summ. J. [Docket Entry 12-5] ¶¶ 26-29. DHS also withheld 230 responsive documents under various FOIA exemptions. Ferrell Decl. ¶ 29.

DHS then moved for summary judgment, arguing that it had adequately searched for and produced all responsive, nonexempt records. Def.'s Mot. for Summ. J. [Docket Entry 12] at 8. EPIC filed a cross-motion for summary judgment, making two objections to DHS's efforts to comply with their FOIA request: (1) that DHS's Vaughn index was insufficient, and (2) that DHS should have produced in redacted form seven documents from the Secret Service that had been withheld in their entirety ("the Secret Service documents"). Pl.'s Opp'n & Cross Mot. for Summ. J. ("Pl.'s MSJ") [Docket Entry 16] at 1. EPIC also requested attorney's fees and costs. Id. at 14.

DHS disputed both of EPIC's arguments, and asked the Court to defer ruling on EPIC's request for attorney's fees. Def.'s Reply & Opp'n [Docket Entry 20] at 1-2. But despite arguing for several pages that their original Vaughn index was proper, DHS attached an updated, more-specific Vaughn index. See Updated Vaughn Index (Oct. 26, 2012), Attach. 1 to Def.'s Reply & Opp'n [Docket Entry 20-1]. In doing so, DHS maintained its position that "the original Index was sufficient, " but admitted that it "could be made more clear." Def.'s Reply & Opp'n at 6. Satisfied with the updated version, EPIC then withdrew its objections to DHS's Vaughn index, while continuing to press its objections to DHS's withholding of the Secret Service documents, and renewing its request for attorney's fees and costs. Pl.'s Reply in Supp. of Cross Mot. for Summ. J. [Docket Entry 22] at 1-2.

This Court granted in part and denied in part both parties' motions for summary judgment. See Mar. 4, 2013 Mem. Op. [Docket Entry 23]. The Court ordered DHS to produce six of the seven Secret Service documents in redacted form, but found that one of the seven had been properly withheld in full, finding that the non-exempt portions were not reasonably segregable. See id.; see also Mar. 4, 2013 Order [Docket Entry 24]. The Court did not rule on EPIC's request for attorney's fees, and instead ordered "that, pursuant to Local Civil Rule 54.2(a), the parties shall confer and attempt to reach an agreement on fee issues." Mar. 4, 2013 Order. Although the Court was "not deciding the issue" at that time, "it note[d], in the hope of guiding the parties' discussions, that EPIC will be entitled to some amount of fees and costs, given the agency's release of responsive documents, the Vaughn index revisions, and the Court's resolution of the instant motions." Mar. 4, 2013 Mem. Op. at 9.

The Court's optimism for an agreement on fees and costs proved unfounded-EPIC filed its motion for attorney's fees the following month. In its opposition brief, DHS made reference to a settlement offer that EPIC had rejected. See Def.'s Opp'n to Mot. for Att'y's Fees ("Def.'s Opp'n") [Docket Entry 26] at 18. In its reply, EPIC actually included the relevant settlement communication, revealing to the Court (and anyone monitoring the public docket) the amount for which DHS had offered to settle the fee issue. See Ex. 2 to Pl.'s Reply in Supp. of Mot. for Att'y's Fees ("Pl.'s Reply") [Docket Entry 27-2]. Three days later, DHS filed a motion to strike the portions of EPIC's reply brief referencing the settlement offer, citing the bar in Federal Rule of Evidence 408 to the admissibility of settlement communications "to prove or disprove the validity or amount of a disputed claim." Fed.R.Evid. 408(a).


The Freedom of Information Act 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). This statutory language "naturally divides the attorney-fee inquiry into two prongs, " which the D.C. Circuit "has long described as fee eligibility' and fee entitlement.'" Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 524 (D.C. Cir. 2011). Under the eligibility prong, a court "asks whether a plaintiff has substantially prevailed' and thus may' receive fees." Id . A FOIA requester "has substantially prevailed if the complainant has obtained relief through either" a court order or "a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii); see also Brayton , 641 F.3d at 525 ("[T]he OPEN Government Act of 2007... revived the possibility of FOIA fee awards in the absence of a court decree.").

If the requester is eligible for a fee award, a court "proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees." Brayton , 641 F.3d at 524; accord Judicial Watch, Inc. v. U.S. Dep't of Commerce , 470 F.3d 363, 368-69 (D.C. Cir. 2006) (Judicial Watch I). The four "entitlement" factors are: "(1) the public benefit derived from the case, (2) the commercial benefit to the requester, (3) the nature of the requester's interest in the information, and (4) the reasonableness of the agency's conduct." Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013). In applying this test, "[n]o one factor is dispositive." Davy v. CIA , 550 F.3d 1155, 1159 (D.C. Cir. 2008). "The sifting of those criteria over the facts of a case is a matter of district court discretion." Tax Analysts v. DOJ, 965 F.2d 1092, 1094 (D.C. Cir. 1992).

Finally, if a court determines that a FOIA requester is both eligible for and entitled to attorney's fees, the court must calculate the proper amount of the fee award. The first step "is to establish the lodestar': the number of hours reasonably expended multiplied by a reasonable hourly rate." Nat'l Ass'n of Concerned Veterans v. Sec'y of Def. , 675 F.2d 1319, 1323 (D.C. Cir. 1982). Once properly calculated, "the lodestar may be adjusted to reflect various other factors." Id . This process is also one of district court discretion, as the D.C. Circuit has recognized "that some of the elements of this formula [are] necessarily somewhat imprecise." Id .; see also Copeland v. Marshall , 641 F.2d 880, 893 (D.C. Cir. 1980) (en banc) ("[W]e ask only that the district court judges exercise their discretion as conscientiously as possible, and state their reasons as clearly as possible.").


As DHS essentially concedes, EPIC is both eligible for and entitled to an award of attorney's fees and costs. The parties vigorously dispute the amount of fees, however, with EPIC requesting $37, 197.75 in fees and costs, and DHS proposing a meager $1, 992.50. DHS offers a variety of objections to EPIC's proposal. Some have merit; others do not. After briefly analyzing the questions of "eligibility" and "entitlement, " the Court will consider each objection in turn. For the reasons set forth below, the Court finds that EPIC is entitled to most, but not all of the fees it has requested, and will order a total award of $29, 841.67 in attorney's fees and $350 in costs.

I. EPIC is eligible for attorney's fees.

EPIC is eligible for attorney's fees, because it has "substantially prevailed" within the meaning of FOIA. There are two ways to satisfy the "substantially prevailed" requirement under FOIA, and EPIC meets both. First, EPIC "obtained relief through... a judicial order." 5 U.S.C. § 552(a)(4)(E)(ii)(I). Faced with cross-motions for summary judgment, this Court granted in part and denied in part both parties' motions. See Mar. 4, 2013 Mem. Op. at 9-10. But EPIC obtained nearly all of the relief it was seeking, as the Court ordered DHS to produce all reasonably segregable portions of six of the seven documents that remained in dispute. Id . True, this Court denied EPIC's motion with respect to one of the seven Secret Service documents, but a FOIA requester can still "substantially prevail" even when it obtains less-than-full relief. See, e.g., Judicial Watch I , 470 F.3d at 371 (FOIA requester awarded fees after a partial litigation victory).[1]

EPIC's advocacy also caused "a voluntary or unilateral change in position by the agency, " 5 U.S.C. § 552(a)(4)(E)(ii)(II). After producing nothing in response to EPIC's FOIA request for approximately eight months, DHS released hundreds of responsive documents within three weeks of receiving EPIC's complaint in this action. Similarly, DHS produced a revised Vaughn index meeting EPIC's proposed specifications, after EPIC took issue with DHS's first attempt.[2] These tangible successes further support the common-sense notion that EPIC has "substantially prevailed" in this matter. See, e.g., Brayton , 641 F.3d at 525 ("[P]laintiffs can now qualify as substantially prevailing, ' and thus become eligible for attorney fees, without winning court-ordered relief on the merits of their FOIA claims."). Presumably for these reasons, DHS does not meaningfully dispute that EPIC is eligible for fees as a prevailing party under FOIA. See generally Def.'s Opp'n.

II. EPIC is entitled to attorney's fees.

Next, the Court applies the D.C. Circuit's four-factor test to determine whether EPIC is entitled to fees. The Court must consider: "(1) the public benefit derived from the case, (2) the commercial benefit to the requester, (3) the nature of the requester's interest in the information, and (4) the reasonableness of the agency's conduct." Morley, 719 F.3d at 690.

The "public benefit" factor "requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought." Davy , 550 F.3d at 1159. As FOIA requests go, the public benefit derived from this one was exceptional. EPIC obtained and disclosed documents relating to a matter subject to an ongoing national debate: the tension between individual privacy interests and the national-security needs of our government in the digital age. Regardless of one's views on the merits, there is no doubt that EPIC's FOIA request made a contribution to this national conversation. Documents obtained through the request were analyzed in the Washington Post. See Ellen Nakashima, DHS Monitoring of Social Media Concerns Civil Liberties Advocates, The Washington Post, Jan. 13, 2012 ("[M]onitoring for positive and negative reports' on U.S. agencies falls outside the department's mission to secure the nation, ' said the Electronic Privacy Information Center, which obtained a copy of a contract and related material describing DHS's social media monitoring through its FOIA suit.").[3] And EPIC's FOIA work on this matter was discussed by several other prominent media outlets. See, e.g., Privacy Group Sues DHS Over Social Media Monitoring Program,, Dec. 24, 2011;[4] Liz Klimas, Which Keywords on Twitter Get the Government's Attention?, The Blaze, Dec. 28, 2011;[5] Mark Hosenball, Homeland Security Watches Twitter, Social Media, Reuters, Jan. 11, 2012;[6] Jaikumar Vijayan, DHS Media Monitoring Could Chill Public Dissent, EPIC Warns, Computer World, Jan. 16, 2012;[7] Mark Rockwell, DHS Social Media Monitoring Practices Revealed Under FOIA, Government Security News, May 29, 2012;[8] Robert N. Charette, Do You Need to Worry About DHS Looking at Your Social Media Conversations?, IEEE Spectrum, May 29, 2012;[9] Reuven Cohen, Dept. of Homeland Security Forced to Release List of Keywords Used to Monitor Social Networking Sites, Forbes, May 26, 2012;[10] Kevin Fogarty, DHS List of Words You Should Never Blog or Tweet. Ever., IT World, May 31, 2012.[11]

In addition to the substantial media coverage, documents arising out of EPIC's FOIA request were also heavily featured at a congressional hearing devoted to DHS's social media monitoring. See, e.g., DHS Monitoring of Social Networking and Media: Enhancing Intelligence Gathering and Ensuring Privacy, Hearing Before the Subcomm. on Counterterrorism and Intelligence of the H. Comm. on Homeland Security, 112th Cong. ("Homeland Security Hr'g") (Feb. 16, 2012) (statement of Rep. Speier, Ranking Member) ("I am deeply troubled by the document that has just been put into the record by"). This is the sort of public benefit that FOIA was designed to promote.

Next, "[t]he second and third factors, which are often considered together, assess whether a plaintiff has sufficient private incentive to seek disclosure' without attorney's fees." Davy , 550 F.3d at 1160 (quoting Tax Analysts, 965 F.2d at 1095). "The second factor considers the commercial benefit to the plaintiff, while the third factor considers the plaintiff's interest in the records." Id . These factors also favor non-profit organizations like EPIC, which "aim to ferret out and make public worthwhile, previously unknown government information-precisely the activity that FOIA's fees provision seeks to promote." Id . As the D.C. Circuit has explained, those "requesters who seek documents for public informational purposes" are favored by FOIA, and they "engage in the kind of endeavor for which a public subsidy makes some sense." Id . And even if some private benefit accrued to EPIC by means of their success, "Congress did not intend for scholars (or journalists and public interest groups) to forego compensation when acting within the scope of their professional roles." Campbell v. DOJ , 164 F.3d 20, 35-36 (D.C. Cir. 1998). Hence, the second and third factors also favor EPIC.

Finally, the fourth factor, "the reasonableness of the agency's conduct, " does not strongly weigh in favor of either party. True, the Court held that DHS violated its statutory responsibilities in responding to EPIC's FOIA request-but that will be true in any FOIA case in which the plaintiff obtains court-ordered relief. DHS also produced a revised Vaughn index upon receiving plaintiff's objections, obviating the need for a judicial determination on that issue. DHS's conduct-while no doubt falling short of FOIA's requirements-was not egregiously unreasonable. Hence, the fourth factor is more or less neutral in this analysis.

Considering all four factors together, the Court finds that EPIC is not just "eligible, " but is also "entitled" to attorney's fees under FOIA's fee-shifting provision. DHS essentially concedes as much in its opposition brief, which focuses on the amount of fees to be awarded. See Def.'s Opp'n at 1 ("While we do not dispute that EPIC is entitled to some fees in proportion to its minimal success, its request of $30, 590.75 is unreasonably excessive and wholly unsupported.").

III. EPIC is entitled to "fees on fees."

EPIC asks not only for attorney's fees for the underlying litigation, but also for its work in litigating this fee motion-that is, "fees on fees."[12] DHS opposes this request, primarily on the grounds that EPIC "vexatiously imposed unnecessary burdens on defendant and the Court" by rejecting DHS's settlement offers, and by refusing to consent to an extension of time to continue settlement negotiations. See Def.'s Opp'n at 18-19.

As EPIC argues-and DHS does not appear to dispute-" [i]t is settled in this circuit' that hours reasonably devoted to a request for fees are compensable.'" Judicial Watch, Inc. v. DOJ, 878 F.Supp.2d 225, 240 (D.D.C. 2012) (quoting Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest. , 771 F.2d 521, 528 (D.C. Cir. 1985)). Although there appears to be no D.C. Circuit case law applying this principle in the FOIA context, other courts in this district have done so without hesitation. See, e.g., id.; EPIC v. DHS , 811 F.Supp.2d 216, 140 (D.D.C. 2011) ("[H]ours reasonably expended' in preparing a fee petition are compensable."). This Court agrees-there is no reason to treat FOIA's fee-shifting provision differently than those for which the D.C. Circuit has approved awards of "fees on fees." See, e.g., Noxell , 771 F.2d at 528 (upholding "fees on fees" under the Lanham Act); Sierra Club v. EPA , 769 F.2d 796, 811-12 (D.C. Cir. 1985) (upholding "fees on fees" under the Clean Air Act). Hence, EPIC is entitled to a reasonable award of attorney's fees for litigating this motion.

IV. EPIC's fee award will be reduced in the Court's discretion.

The Court will now exercise its discretion to calculate a "reasonable" fee award, as directed by 5 U.S.C. § 552(a)(4)(E)(i). The Court will begin with EPIC's request for $36, 847.75 in fees and $350 in costs, [13] and will ultimately reduce that amount slightly, for a variety of reasons.

A. Starting Point: Laffey and the Lodestar

"The usual method of calculating a reasonable fee amount is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the lodestar' amount.'" Judicial Watch, Inc. v. DOJ, 774 F.Supp.2d 225, 232 (D.D.C. 2011) (Judicial Watch II) (quoting Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc. , 136 F.3d 794, 801 (D.C. Cir. 1998). To determine a "reasonable" hourly rate, the Court considers "the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel." Blum v. Stenson , 465 U.S. 886, 895 (1984). Of course, non-profit counsel may not actually bill for their services. To solve this problem, "[f]or public-interest or government lawyers who do not have customary billing rates, courts in this circuit have frequently employed the Laffey Matrix, ' a schedule of fees based on years of attorney experience." Judicial Watch II, 774 F.Supp.2d at 232; see also Covington v. District of Columbia , 57 F.3d 1101, 1105-12 (D.C. Cir. 1995) (approving of the Laffey matrix and affirming fee award calculated with it). Using the Laffey matrix, EPIC calculated a lodestar of $36, 847.75. DHS does not question EPIC's arithmetic, but it does object to the total number of hours and the hourly rate charged by three of EPIC's attorneys. The Court now turns to these objections.[14]

B. Hourly Rate of Attorneys Brody, Horwitz, and Scott

DHS objects to the hourly rate charged by three of the seven EPIC attorneys who billed time on this matter: David R. Brody, Julia Horwitz, and Jeramie D. Scott. See Def.'s Opp'n at 16-18. EPIC billed these attorneys at a rate of $245 per hour, which corresponds to the Laffey rate for attorneys with "1-3 years" of legal experience. But as DHS points out, and EPIC does not dispute, none of these attorneys-all 2012 law school graduates-were admitted to practice law in any jurisdiction while they worked on this case. Id. at 16. Hence, they are more properly categorized under the heading "Paralegals & Law Clerks, " based upon their bar status during the relevant time period, and the fact that they had not yet achieved "1-3 years" of legal experience. See EPIC , 811 F.Supp.2d at 238 ("[B]ecause the plaintiff does not refute that one of its attorneys, Ms. Ginger McCall, conducted work on this litigation prior to her admittance to the bar, the court applies the paralegal/clerk' Laffey rate to this time."). The Court will recalculate their fees with the $145 per hour rate applicable to Law Clerks under the Laffey matrix:

David R. Brody
Original request: 10.40 hours at $245 per hour = $2, 548
As modified by the Court: 10.40 hours at $145 per ...

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