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Citizens for Responsibility and Ethics In Washington v. Commission

United States District Court, D. Columbia.

September 5, 2014

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant

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[Copyrighted Material Omitted]

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For Citizens For Responsibility And Ethics in Washington, Plaintiff: Anne L. Weismann, LEAD ATTORNEY, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Washington, DC USA.

For Federal Election Commission, Defendant: Charles Kitcher, David Brett Kolker, Erin R Chlopak, Kevin Deeley, Steve Nicholas Hajjar, LEAD ATTORNEYS, FEDERAL ELECTION COMMISSION, Washington, DC USA.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

Plaintiff, Citizens for Responsibility and Ethics in Washington (" CREW" ), filed a Motion for Attorney Fees which the Court referred to Magistrate Judge John M. Facciola. Pl.'s Mot. Atty. Fees, ECF No. [24]; Order (Nov. 20, 2013), ECF No. [31]. Magistrate Judge Facciola submitted a Report and Recommendation to the Court, recommending that Defendant, Federal Election Commission (" FEC" ), pay $139,998.68 in attorney fees and costs in the amount of $500 to CREW. Report & Recomm. (" R& R" ), ECF No. [35]. Presently before the Court is the FEC's Objection to the Report and Recommendation.

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Def.'s Objs., ECF No. [36]. Upon consideration of the pleadings,[1] the relevant legal authorities, and the record as a whole, the Court finds none of the FEC's objections have merit. Magistrate Judge Facciola's Report and Recommendation is ADOPTED as modified in this Memorandum Opinion, for substantially the same reasons as articulated by Magistrate Judge Facciola. Additionally, the Court has determined that the FEC shall pay CREW an additional $13,260.30 for attorney fees expended by CREW in preparing its response to the FEC's objections to the Report and Recommendation, for a total attorney fee award of $153,258.98 and $500 in costs.

II. BACKGROUND

On May 7, 2011, CREW sent a request pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, to the FEC via facsimile, which the FEC acknowledged receiving on the following day via e-mail. Pl.'s Mot. at 3. The request was related to communications between three FEC commissioners and individuals and entities outside of the FEC, as well as the calendars and other recordation of meetings and appointments of these commissioners. Pl.'s Mot. at 3. After discussions between the parties, CREW agreed to exclude certain files from the FEC's initial search. Id. CREW specifically reserved the right to revisit the full scope of its request after reviewing the documents that were produced as a result of the initial search. Id.

On May 23, 2011, CREW filed the instant action, asserting that the FEC failed to produce any documents in response to CREW's FOIA request. See Compl., ECF No. [1]. On June 23, 2011, the FEC filed a Motion to Dismiss Or, In the Alternative, for Summary Judgment. Def.'s Mot. to Dismiss, ECF No. [4]. After full briefing, the Court entered an Order on December 30, 2011, granting the FEC's Motion for Summary Judgment and holding that CREW had failed to exhaust administrative remedies. Citizens for Responsibility & Ethics in Wash. v. FEC, 839 F.Supp.2d 17 (D.D.C. 2011) (" CREW I " ). CREW filed an appeal. On June 4, 2013, the Court of Appeals for the District of Columbia Circuit (" D.C. Circuit" ) reversed the Court's ruling and remanded this matter for further proceedings. Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 404 U.S.App.D.C. 275 (D.C. Cir. 2013) (" CREW II " ). On June 12, 2013, the Court ordered that the parties to file a joint status report. Min. Order (June 12, 2013). After the Court granted two joint motions requesting extensions of time, the parties filed a Stipulation of Dismissal, stipulating that the above-captioned matter be dismissed without prejudice, on August 12, 2013. Jt. Mt. for Ext. of Time, ECF No. [17]; 2d Jt. Mt. for Ext. of Time, ECF No. [20]; Stip. of Dism., ECF No. [21]. On its terms, the stipulation had no effect on CREW's ability to seek attorney fees. Stip. of Dism., ECF No. [21].

CREW subsequently filed a motion seeking $122,813.75 in attorney fees and costs in the amount of $500, which the

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FEC opposed. The Court referred the matter to Magistrate Judge John M. Facciola who issued a Report and Recommendation on February 12, 2104, recommending that the Court award CREW $139,998.68 in attorney fees and $500 in costs. R& R at 1. Magistrate Judge Facciola explained that the total arrived at in the Report and Recommendation was the result of totaling all the fees requested by CREW, even though that amount was different from the one initially requested in the motion. Id. at 1 n.1. The FEC filed an Objection to the Report and Recommendation, arguing two major points: (1) that CREW is not entitled to attorney fees because it failed to establish that it was either eligible or entitled for attorney fees; and (2) that CREW failed to show that its fees are reasonable. See generally Def.'s Objs. CREW opposes the FEC's objections and requests that the Court order that the FEC pay CREW an additional $20,002.13 to cover CREW's attorney fees in responding to the FEC's objections to the Report and Recommendation. Pl.'s Resp. at 31-32.

II. LEGAL STANDARD

Under Local Civil Rule 72.2(b), " [a]ny party may file written objections to a magistrate judge's ruling under [Local Civil Rule 72.2(a)] within 14 days[.]" Local Civ. R. 72.2(b). Local Civil Rule 72.2(b) further provides that " [t]he objections shall specifically designate the order or part thereof to which objection is made, and the basis for the objection." Id. Pursuant to Local Civil Rule 72.2(c), " a district judge may modify or set aside any portion of a magistrate judge's order under this Rule found to be clearly erroneous or contrary to law." See also Fed.R.Civ.P. 72(a) (" The district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law." ) (emphasis added). A court should make such a finding when the court " 'is left with the definite and firm conviction that a mistake has been committed.'" Am. Soc'y for Prevention of Cruelty to Animals v. Feld Entm't, 659 F.3d 13, 21, 398 U.S.App.D.C. 79 (D.C. Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

II. DISCUSSION

A. CREW's Eligibility and Entitlement for Attorney Fees

Pursuant to 5 U.S.C. § 552(a)(4)(E)(i), the court may award reasonable attorney fees and other litigation costs reasonably incurred by a plaintiff who substantially prevails in an action against the government for the fulfillment of a FOIA request. In this Circuit, the attorney-fee inquiry is divided into two prongs, the fee " eligibility" and the fee " entitlement" prongs. Brayton v. Office of the United States Trade Representative, 641 F.3d 521, 524, 395 U.S.App.D.C. 155 (D.C. Cir. 2011). Under the eligibility prong, the Court must determine whether a plaintiff has substantially prevailed and, as a result, may receive attorney fees. Id. A plaintiff has substantially prevailed if he or she has obtained relief either through a judicial order, enforceable written agreement, consent decree or, alternatively, through a voluntary or unilateral change in position by the agency, if the plaintiff's claim is not insubstantial. 5 U.S.C. § 552(a)(4)(E)(ii)(I)-(II).

If the eligibility prong is satisfied, the Court next considers the entitlement prong to determine whether a plaintiff should receive fees. Brayton, 641 F.3d at 524. Under the entitlement prong, the Court must weigh four factors: " '(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in

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the records; and (4) the reasonableness of the agency's withholding.'" Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371, 380 U.S.App.D.C. 339 (D.C. Cir. 2008) (quoting Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1093, 296 U.S.App.D.C. 130 (D.C. Cir. 1992)). While no one factor is dispositive, Davy v. CIA, 550 F.3d 1155, 1159, 384 U.S.App.D.C. 49 (D.C. Cir. 2008), " [t]he sifting of those criteria over the facts of a case is a matter of district court discretion . . . ," Tax Analysts, 965 F.2d at 1094.

a. CREW's Eligibility for Attorney Fees

Magistrate Judge Facciola first found that CREW satisfied the eligibility prong. First, Judge Facciola found that CREW substantially prevailed by obtaining a successful ruling in the D.C. Circuit. R& R at 7-9. The FEC objects to this finding, arguing that neither the D.C. Circuit's opinion nor the proceedings before this Court had an effect on the resolution of CREW's substantive FOIA claim, and instead only dealt with a procedural question that was resolved by the D.C. Circuit's ruling. Def.'s Objs. at 27. CREW argues that the Court should not consider the FEC's argument regarding CREW's eligibility for attorney fees because the challenge was only mentioned briefly at the end of the FEC's objections and, even if the Court were to consider the FEC's argument, it provides no basis to disturb the conclusion in the Report and Recommendation that CREW meets the eligibility requirement for a fee award. Pl.'s Resp. at 11 n.4. The Court shall first address CREW's argument that the Court need not consider the FEC's objection.

CREW argues that the Court should not consider the FEC's objection to the finding that CREW is eligible for attorney fees because the FEC failed to comply with the provisions of LCvR 72.3(b).[2] LCvR 72.3(b) requires that " [t]he objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection." The Court finds that the FEC's objection to the finding that CREW is eligible for attorney fees complies with the requirements of LCvR 72.3(b) in that it clearly indicates that finding to which it objects, namely that CREW is eligible for a fee award, and provides its argument and references relevant parts of both the FEC's Objection to the Report and Recommendation and its Opposition to CREW's Motion for Attorney Fees as additional support for its argument. Def.'s Objs. at 27. Accordingly, the Court shall consider the FEC's argument that CREW is not eligible for a fee award.

In the Report and Recommendation, Judge Facciola found that CREW was eligible for a fee award because of CREW's successful appeal of this Court's ruling in the D.C. Circuit. The crux of the parties' dispute on appeal was whether the FEC had properly communicated a " determination" on CREW's FOIA request pursuant to 5 U.S.C. § 552(a)(6)(A)(i), thus triggering the requirement that CREW exhaust administrative remedies before being able to proceed at the district court level. This Court held that the FEC had sufficiently communicated a determination on CREW's FOIA request and, accordingly, granted FEC's motion for summary judgment for failure to exhaust administrative remedies on December 30, 2011. Citizens for Responsibility & Ethics in Wash. v. FEC, 839 F.Supp.2d 17, 28-29 (D.D.C. 2011) (" CREW I " ). On appeal, the D.C. Circuit reversed and held that the FEC

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had not communicated a determination to CREW within the requisite time period and, accordingly, CREW was not required to exhaust administrative remedies before proceeding at the district court level. Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 182-83, 404 U.S.App.D.C. 275 (D.C. Cir. 2013) (" CREW II " ). The D.C. Circuit held in CREW II that:

[I]n order to make a 'determination' and thereby trigger the administrative exhaustion requirement, the agency must at least: (i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the 'determination' is adverse.

Id. at 188.

Judge Facciola relied on the D.C. Circuit's opinion in finding that CREW had substantially prevailed through a judicial order. The FEC argues that this finding is incorrect because the D.C. Circuit did not direct the FEC to provide CREW with responsive documents to CREW's FOIA request, it only held that CREW could proceed with its complaint in district court. Def.'s Objs. at 27 (citing id. at 5-7, 17-21 and Def.'s Opp'n to Mot. For Atty. Fees at 9-15). Defendant's argument is flawed because, as the Report and Recommendation properly describes, a plaintiff in this Circuit may establish that he or she has substantially prevailed by obtaining a ruling that will force an agency to more fully comply with FOIA, even if such a ruling does not require the actual release of the requested documents in that matter. R& R at 7-8. In Halperin v. Department of State, 565 F.2d 699, 184 U.S.App.D.C. 124 (D.C. Cir. 1977), the D.C. Circuit remanded a matter back to the district court to allow the district court to complete an in camera review of certain redacted documents responsive to a FOIA request to determine if release of portions of a transcript of a background press conference that was attended by many people who did not have a security clearance, would damage national security. Id. With regards to the plaintiff's possible future request for attorney fees, the D.C. Circuit in Halperin noted:

Appellee, by virtue of his persistence, has at least benefited the nation by making the Department aware of the laws it must observe if these adventures are to be continued. It would thus appear that appellee has, irrespective of the outcome of the proceedings on remand, " substantially prevailed" within the meaning of 5 U.S.C. § 552(a)(4)(E) (Supp. IV 1974) relating to assessment against the United States of litigation expense, thereby fulfilling one of the conditions for the invocation of possible disciplinary proceedings under 5 U.S.C. § 552(a)(4)(F) (Supp. IV 1974).

Id. at 706 n.11; see also Cotton v. Heyman, 63 F.3d 1115, 1120, 314 U.S.App.D.C. 161 (D.C. Cir. 1995) (noting that Halperin applies to the determination of whether a party has substantially prevailed under fee " eligibility" prong of the test, but did not apply to the public-benefit factor of the " entitlement" prong of the test); Church of Scientology of California v. Harris, 653 F.2d 584, 589, 209 U.S.App.D.C. 329 (1981) (citing Halperin and noting that " [p]laintiff substantially prevails when its litigation benefits the nation by making an agency aware of duties imposed upon it by FOIA" ). Here, relying on Halperin, Judge Facciola found that CREW had substantially prevailed by virtue of its favorable appellate decision, regardless of the fact that neither the D.C. Circuit nor this Court ultimately issued an order requiring the FEC to provide CREW with the requested documents. R& R at 7. In the instant matter, as the Report and Recommendation

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properly indicates, the D.C. Circuit clarified that CREW's request could be litigated in this Court because the FEC had not provided CREW with a determination within the meaning of the statute. R& R at 8. By doing so, the D.C. Circuit provided guidance as to what type of response from an agency constitutes a determination that must be communicated to a FOIA requester in the future in order to trigger the requirement that a FOIA requester must exhaust administrative remedies before he or she may proceed in district court. Judge Facciola explained: " By obtaining its ruling [from the D.C. Circuit] in this case, CREW informed the FEC of its legal obligations to give a 'determination' within twenty work days." R& R at 9. ...


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