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American Immigration Council v. United States Department of Homeland Security

United States District Court, D. Columbia.

March 10, 2015

AMERICAN IMMIGRATION COUNCIL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants

For AMERICAN IMMIGRATION COUNCIL, Plaintiff: Beth Jennifer Werlin, PRO HAC VICE, AMERICAN IMMIGRATION COUNCIL'S LEGAL ACTION CENTER, Washington, DC; Creighton R. Magid, DORSEY & WHITNEY LLP, Washington, DC; Melissa E. Crow, AMERICAN IMMIGRATION COUNCIL, Washington, DC; Michelle S. Grant, PRO HAC VICE, DORSEY & WHITNEY LLP, Minneapolis, MN.

For UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, Defendants: Marian L. Borum, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

In March 2011, American Immigration Council submitted a Freedom of Information Act request to Customs and Border Protection, a component agency of the Department of Homeland Security. AIC sought information about individuals' access to counsel during their interactions with federal immigration authorities. Dissatisfied with the response to its request -- the agency produced just two pages of records after six months of discussion -- AIC filed suit in this court against CBP and DHS. Defendants then conducted a broader search, which ultimately produced at least 156 additional responsive documents.

The merits litigation now completed, AIC moves for an award of attorney fees and costs. Because Plaintiff substantially prevailed in its suit and the multi-factor entitlement inquiry favors a fee award -- at least for a portion of the underlying litigation -- the Court will grant its Motion in part. AIC's requested sum, however, will be reduced to account for various billing-related deficiencies.

I. Background

Past Opinions detail the full background of this suit, so the Court will recount here only the facts relevant to the pending Motion for Attorney Fees. In March 2011, AIC submitted a FOIA request to CBP asking for:

[A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:
o Attorneys' ability to be present during their clients' interactions with CBP;
o What role attorneys may play during their clients' interactions with CBP;
o Attorney conduct during interactions with CBP on behalf of their clients;
o Attorney appearances at CBP offices or other facilities.

Mot., Exh. B (March 14, 2011, Letter from Emily Creighton to CBP's FOIA Division) at 1 (footnote omitted). The request " include[d], but [was] not limited to" ten specific types of records. Id. at 1-2.

After " consult[ing] with several component offices within CBP," the agency's FOIA Division informed Plaintiff that " much of the information" it sought was " already publicly available." Compl., Exh. C (May 12, 2011, Letter from Dorothy Pullo to Emily Creighton) at 1. The letter further stated that responsive information could be found online in one of three places: the Code of Federal Regulations, the " Personal Search Handbook," or the soon-to-be-released " Inspector's Field Manual." Id.

Questioning the adequacy of Defendants' search for responsive documents, Plaintiff immediately filed an administrative appeal. See Compl., Exh. D (May 26, 2011, Letter from Emily Creighton to CBP's FOIA Appeals Division) at 2 (" The May 12, 2011, response merely includes general documents that are publicly available and does not reflect a search reasonably calculated to uncover documents relevant to the guidance outlined in the request." ). Upon receipt of this filing, the Appeals Division contacted three internal offices " in which responsive records were likely to have been created and be maintained" -- namely, the Office of the Border Patrol (OBP), the Office of Field Operations (OFO), and the Office of Chief Counsel (OCC). See id., Exh. F (Sept. 29, 2011, Letter from Shari Suzuki to Emily Creighton) at 10. The cumulative efforts of those three offices produced just two pages of responsive records. See id., Exh. G (Excerpts from Agency Guidance Materials). The agency explained that it was " unable to provide [AIC] with any further information because no such information exists." See Suzuki Letter at 10.

In November 2011, believing that Defendants had failed to comply with the obligations imposed by FOIA, AIC brought suit in this court. Shortly thereafter, Defendants filed their first Motion for Summary Judgment, maintaining that the search CBP had conducted was " reasonably calculated to uncover all information responsive to Plaintiff's request." ECF No. 9 (First Motion for Summary Judgment) at 10. AIC opposed the Government's Motion, arguing that the agency had failed to adequately justify the limited nature of its search. See ECF No. 12 (First AIC Opposition). In particular, Plaintiff noted that Suzuki's Declaration never explained why the three component offices searched were the only ones likely to contain responsive records, and that the Declaration lacked sufficient detail as to the search methods employed. See id. at 3-8. AIC also highlighted a number of responsive documents likely to be in CBP's possession that, inexplicably, had not been produced. See id. at 8-16.

After reviewing Plaintiff's Opposition, Defendants withdrew their Motion. See ECF No. 18 (Notice of Withdrawal). Deeming it " in the best interest of this litigation" to " expand their search beyond the CBP offices originally believed to have responsive records," Defendants agreed to " conduct a nationwide search of CBP offices for records responsive to Plaintiff's FOIA request . . .[,] involv[ing] over 300 Ports of Entry, approximately 130 Border Patrol Stations and 20 Border Patrol Sectors, CBP Field Operations Offices as well as the following additional offices at CBP headquarters: Office of Training and Development, Office of Diversity and Civil Rights, Office of Policy and Planning, and Office of Executive Secretariat." Id. at 2-3.

This ramped-up effort yielded a richer harvest of more than 300 documents, of which the Government subsequently released some in full, disclosed others in part, and withheld still others altogether pursuant to various FOIA exemptions. See ECF Nos. 20-25, 27-29, 31, 38 (status reports updating the Court on progress of production). During this period of rolling productions -- which occurred between October 2012 and July 2013 -- the parties frequently met and conferred regarding the adequacy of Defendants' searches and the propriety of various redactions. See Mot. at 2. These conferences bore fruit: the Government subsequently produced certain records with fewer redactions, and AIC determined that it would no longer challenge the adequacy of the search. See id. at 2-3. Despite continued negotiations, however, the parties could not reach an agreement on the redactions contained in seven of the documents. With progress at a standstill, Defendants moved for summary judgment on the remaining documents, which the Court granted on March 21, 2014. See Am. Immigration Council v. United States Dep't of Homeland Sec. (AIC I), 30 F.Supp.3d 67, 2014 WL 1118353 (D.D.C. 2014).

Plaintiff now seeks to recover attorney fees and related expenses for the work its attorneys performed prior to Defendants' Second Motion for Summary Judgment. The parties began negotiating such fees almost a year ago, back in April of 2014. On August 28, nearly five months after this discussion began and after multiple e-mails and conference calls, Defendants abruptly notified AIC that " [u]pon further reflection," they " do[] not believe [AIC] is entitled to attorneys' fees." ECF No. 49 (Motion for Briefing Schedule), Att. 1 (Declaration of Melissa Crow), Exh. 8 (August 28, 2014, Letter from Marian Borum). The letter explained that because AIC had failed to file a motion for fees within fourteen days after the entry of judgment, as required by Federal Rule of Civil Procedure 54(d)(2)(B)(i), " Defendant considers this matter closed." Id.

Taken aback by the Government's sudden change of heart, AIC immediately filed a Motion to set a briefing schedule to resolve the issue of attorney fees. See ECF No. 49. Agreeing with Plaintiff that Rule 54 poses no bar to an attorney-fee award in this case, the Court granted the Motion. See ECF No. 52 (Memorandum Opinion & Order) (AIC II). With briefing now complete, the Court turns to the merits of AIC's request.

II. Analysis

FOIA 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); see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524, 395 U.S.App.D.C. 155 (D.C. Cir. 2011). " This language naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee 'eligibility' and fee 'entitlement.'" Brayton, 641 F.3d at 524 (citing Judicial Watch, Inc. v. Dep't of Commerce, 470 F.3d 363, 368-69, 373 U.S.App.D.C. 424 (D.C. Cir. 2006)). The Court, therefore, first decides whether AIC has " substantially prevailed" and is therefore " eligible" to receive fees. See id.; Judicial Watch, 470 F.3d at 368; Negley v. FBI, 818 F.Supp.2d 69, 73 (D.D.C. Oct. 11, 2011). If so, the Court must then " consider[] a variety of factors" to determine whether it is " entitled" to fees. Brayton, 641 F.3d at 524-25; Judicial Watch, 470 F.3d at 369; Davy v. CIA, 550 F.3d 1155, 1158, 384 U.S.App.D.C. 49 (D.C. Cir. 2008). Put another way, the Court will first determine whether AIC may receive fees; if so, it will then decide whether it should receive them. See Brayton, 641 F.3d at 524. Finally, upon determining that AIC is both eligible and entitled to fees, the Court must " analyze whether the amount of the fee request is reasonable." Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. (EPIC I), 811 F.Supp.2d 216, 237 (D.D.C. 2011).

A. Eligibility

A FOIA " complainant has substantially prevailed" and, consequently, is eligible for a fee award if it " has obtained 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." 5 U.S.C. § 552(a)(4)(E)(ii). AIC invokes the latter subsection as the basis for its fee request. The key question under this aptly named " catalyst theory" is whether " the institution and prosecution of the litigation cause[d] the agency to release the documents obtained during the pendency of the litigation." Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587, 209 U.S.App.D.C. 329 (D.C. Cir. 1981); see also Davis v. DOJ, 610 F.3d 750, 752, 391 U.S.App.D.C. 365 (D.C. Cir. 2010) (" FOIA plaintiffs [are] eligible for a fee award if the lawsuit substantially caused the agency to release the requested records," regardless of whether the plaintiff obtained any court-ordered relief.).

To recover fees, " a litigant must . . . show[ ] that the lawsuit was reasonably necessary and the litigation substantially caused the requested records to be released." Burka v. HHS, 142 F.3d 1286, 1288, 330 U.S.App.D.C. 59 (D.C. Cir. 1998). Although " the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation," Weisberg v. DOJ, 745 F.2d 1476, 1496, 240 U.S.App.D.C. 339 (D.C. Cir. 1984), it is nonetheless a " 'salient factor' in the analysis." EPIC I, 811 F.Supp.2d at 232 (citation omitted); accord Pub. Law Educ. Inst. v. DOJ, 744 F.2d 181, 184 n.5, 240 U.S.App.D.C. 166 (D.C. Cir. 1984) (" While the temporal relation between [a] FOIA action and the release of documents may be taken into account in determining the existence vel non of a causal nexus, timing, in itself or in conjunction with any other particular factor, does not establish causation as a matter of law." ). If, instead of " the threat of an adverse court order . . .[,] an unavoidable delay accompanied by due diligence in the administrative process was the actual reason for the agency's failure to respond to a request, then it cannot be said that the complainant substantially prevailed in [its] suit." Church of Scientology of Cal., 653 F.2d at 587.

In opposing Plaintiff's eligibility for fees, Defendants principally contend that no change in agency position occurred as a consequence of the litigation. According to CBP, it has consistently and " steadfastly" striven to produce responsive records since the moment it received AIC's FOIA request. See Opp. at 10-11. The agency says it made a " good faith effort to search out material" prior to Plaintiff's initiation of this suit, and its decision to " cast a wider net and conduct even more searches" upon realizing that additional responsive documents might exist is consistent with its earlier approach. See id. at 11.

The facts, however, speak for themselves -- and they do not speak in Defendants' favor. The agency produced not a single document in response to AIC's initial FOIA request, instead informing Plaintiff that " much of the information it sought" was publicly available online. See Pullo Letter at 1. Even after Plaintiff filed an administrative appeal, the agency produced a mere two pages of records, stating that it was " unable to provide [AIC] with any further information because no such information exists." Suzuki Letter at 2.

It was plainly reasonable for Plaintiff to conclude at that point -- in light of CBP's initial response and its subsequent disposition of the administrative appeal -- that no further material would be released absent judicial involvement. Indeed, the agency had emphatically declared in no uncertain terms that no additional responsive material existed. Cf. Judicial Watch, Inc. v. U.S. Dep't of Justice, 878 F.Supp.2d 225, 232 (D.D.C. 2012) (" [I]t was reasonable for Judicial Watch to believe that the records would not be unconditionally released absent a lawsuit, given the DOJ's initial invocation of Exemptions 5 and 7 in response to Judicial Watch's FOIA request." ).

AIC, accordingly, filed suit. Even then CBP held fast to its position that it had conducted an adequate search and released all responsive documents, going so far as to move for summary judgment on the issue. In a Declaration accompanying that Motion, Suzuki again averred that CBP was " unable to provide further responsive information to the Plaintiff because no such information exists." First Mot. for Summary Judgment, Att. 1 (Declaration of Shari Suzuki) at 10-11.

Not until after AIC filed its Opposition did the Government change its tune. That is, after Plaintiff expended significant time and energy spelling out the deficiencies in CBP's search efforts, Defendants withdrew their initial Motion for Summary Judgment and agreed to conduct a significantly expanded " nationwide search of CBP offices for records responsive to Plaintiff's FOIA request." Notice of Withdrawal at 2. That augmented search, of course, led to the rolling production of over 300 documents, at least 156 of which Defendants admit were directly responsive to AIC's initial request. See Opp. at 6.

It is baffling -- and hardly helpful to their credibility here -- that Defendants still adamantly assert that no change in position occurred during the pendency of the litigation. On the contrary, Defendants' release of at least 156 additional responsive documents manifests a 180-degree reversal from their initial position that no further responsive records existed. The sequence of events -- as well as the Government's representations throughout -- makes clear, moreover, that Plaintiff's lawsuit served as a necessary catalyst for the agency's release of this significant body of responsive material. Indeed, this Court recognized as much in an earlier opinion. See AIC I, 30 F.Supp.3d 67, 2014 WL 1118353, at *1 (AIC's " suit apparently prompted Defendants to conduct a more thorough search." ). Because Plaintiff has amply demonstrated that CBP would not have released these spoils absent the threat of an adverse judgment, it has " substantially prevailed" and is eligible for fees. See Dasilva v. U.S. Citizenship & Immigration Servs., No. 13-13, 2014 WL 775606, at *3 (E.D. La. Feb. 24, 2014) (" [P]laintiff is eligible to receive attorney's fees because this set [of records] was disclosed after approximately five months and, more importantly, after defendant submitted a declaration, sworn under penalty of perjury, to the effect that all documents had already been disclosed and defendant then reconsidered its position after plaintiff moved for summary judgment." ).

Not inclined to go gently into that good night, Defendants raise three further objections, none of which has merit. They first emphasize their substantial efforts to cooperate with Plaintiff after withdrawing their original Motion for Summary Judgment. See Opp. at 6, 11-12. The Court applauds, as it did in its previous Opinions, the Government's accommodating conduct and both parties' attempts to narrow the dispute without undue court involvement. But the fact that Defendants went above and beyond after the filing of suit and an initial round of summary-judgment briefing hardly supplants the inadequacy of their efforts prior to that point.

Defendants' assertion that they emerged victorious on their Second Motion for Summary Judgment, see id. at 12, while indisputably correct, is also beside the point. To be eligible for fees, a complainant must only substantially -- not completely -- prevail. That the Court ultimately acquiesced to Defendants' withholdings in seven documents does not mean that AIC is stripped of its eligibility for fees. Because Plaintiff's suit caused CBP to release at least 156 responsive records -- 154 more than they produced before litigation ensued -- AIC " substantially prevailed" as a result of bringing suit. As mentioned earlier, moreover, Plaintiff does not seek remuneration for the time spent opposing the Government's Second Motion.

Finally, to the extent Defendants invoke the agency's good faith in responding to AIC's request, they similarly miss the mark. Although bad faith on the part of the Government can be relevant to whether a complainant substantially prevailed, see Weisberg, 745 F.2d at 1496, it is in no sense necessary. The eligibility inquiry focuses on whether a plaintiff obtained relief -- i.e., his requested records -- through litigation. AIC has satisfied that inquiry here. Whether the agency's initial shortcoming resulted from bad faith, laziness, or human error is of no moment.

B. Entitlement

The Court now asks whether AIC is " entitled" to an award of fees. In doing so, it again notes that Plaintiff does not seek fees for the hours it expended opposing Defendants' Second Motion for Summary Judgment. The Court will thus limit ...


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