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Electronic Privacy Information Crnter v. National Security Agency

United States District Court, D. Columbia.

April 8, 2015


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For NATIONAL SECURITY AGENCY, Defendant: Gregory Peter Dworkowitz, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

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BERYL A. HOWELL, United States District Judge.

Pending before the Court is the plaintiff's Motion for Attorneys' Fees and Costs (" Pl.'s Mot." ), ECF No. 44. The plaintiff, the Electronic Privacy Information Center (" EPIC" ), seeks attorneys' fees as a prevailing party pursuant to the Freedom of Information Act (" FOIA" ). 5 U.S.C. § 552(a)(4)(E). The defendant, the National Security Agency (" NSA" ), challenges

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the plaintiff's entitlement to attorneys' fees and, in the alternative, challenges the reasonableness of the amount requested by the plaintiff, seeking a reduction in fees as a sanction. See Def.'s Opp'n to Pl.'s Mot. for Attys. Fees and Costs (" Def.'s Opp'n" ) at 5, ECF No. 45. For the reasons set forth below, the plaintiff's motion is granted in part and denied in part.


The facts of this case have been set forth in this Court's prior Memorandum Opinion and do not need to be repeated here. See EPIC v. NSA (EPIC I), 988 F.Supp.2d 1, 4-7 (D.D.C. 2013). In EPIC I, this Court held that a partially classified document requested by the plaintiff under the FOIA, National Presidential Security Directive (" NPSD" ) 54, which sets forth the U.S. Government's cybersecurity polices, was not an " agency record" within the meaning of FOIA and, therefore, the Court granted summary judgment to the defendant regarding the withholding in full of NSPD 54. See id. at 12.

The plaintiff timely appealed that decision in December 2013. Notice of Appeal at 1, ECF No. 32. While the appeal was pending, on January 27, 2014, the plaintiff " accepted a Rule 68 Offer of Judgment for $3,500 from the [defendant]." Pl.'s Mot. at 4. The Offer of Judgment reads as follows, in pertinent part:

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Defendant National Security Agency hereby offers to allow judgment to be taken against it, in the amount of $3,500.00, in full resolution of all claims of Plaintiff Electronic Privacy Information Center for all costs, including attorney's fees, incurred in this action. This offered amount includes all costs accrued, including all attorney's fees and all fees on fees.

Def.'s Offer of Judgment, Jan. 27, 2014 (the " January Judgment" )[1] at 1, ECF No. 36-1. The plaintiff accepted the Offer of Judgment on February 9, 2014, Def.'s Notice of Acceptance of Offer of Judgment at 1, ECF No. 36, and the judgment with the above language was entered by the Clerk of Court on February 11, 2014.

Despite the offer and acceptance of judgment, the plaintiff's appeal continued in the D.C. Circuit, with the plaintiff filing its initial appellant brief in March 2014. Def.'s Opp'n at 4. That appeal effectively ended on June 5, 2014, when the defendant released " an unclassified version of NSPD 54" to the plaintiff. Id. Four days later, the parties filed a joint motion to vacate the portion of NSC I holding that NSPD 54 was not an agency record, which motion was subsequently granted by the D.C. Circuit. Pl.'s Mot. at 4-5.

Following vacatur, the plaintiff filed the pending motion, seeking $68,354.01 in attorneys' fees and $730.28 in costs. Pl.'s Reply Def.'s Opp'n Pl.'s Mot. (" Pl.'s Reply" ) at 22, ECF No. 46 (including $9,786 in " fees on fees for time spent preparing [the plaintiff's] Reply" ).


A. Settlement Agreements

The D.C. Circuit interprets settlement agreements under the local law of the jurisdiction where the settlement agreement is to be enforced. See Makins v. District of Columbia, 277 F.3d 544, 548, 349 U.S.App.D.C. 303 (D.C. Cir. 2002) (" [W]e adopt local law in

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determining whether a settlement agreement should be enforced." ). The District of Columbia treats settlement agreements as contracts. See Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 188 (D.C. 2009) (" [S]ettlement agreements are construed under general principles of contract law. Accordingly, we enforce a valid and binding settlement agreement just like any other contract." ) (internal quotation marks and citations omitted); see also Pub. Emps. for Envtl. Responsibility v. U.S. EPA, 926 F.Supp.2d 48, 54 (D.D.C. 2013) (finding that a FOIA plaintiff was precluded from filing more FOIA requests because " [a] settlement agreement is a contract, and [plaintiff] is bound by the contract he signed" ). District of Columbia contract law is an " objective law of contracts, meaning that the written language embodying the terms of an agreement will govern the rights and liabilities of the parties [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress, or mutual mistake." Abdelrhman v. Ackerman, 76 A.3d 883, 888 (D.C. 2013) (internal quotation marks and citations omitted; brackets in the original).

B. FOIA Fee Awards

The FOIA authorizes the award of attorneys' fees reasonably incurred by a plaintiff who is in litigation to obtain " the production of any agency records improperly withheld," 5 U.S.C. § 552(a)(4)(B), when " the complainant has substantially prevailed," Id. at § 552(a)(4)(E)(i). The D.C. Circuit has construed this statutory provision as " naturally divid[ing] the attorney-fee inquiry into two prongs, which our case law has long described as fee 'eligibility' and fee 'entitlement.'" Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524, 395 U.S.App.D.C. 155 (D.C. Cir. 2011) (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368-69, 373 U.S.App.D.C. 424 (D.C. Cir. 2006)). Thus, to obtain attorneys' fees under the FOIA, the plaintiff must demonstrate both eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710, 408 U.S.App.D.C. 35 (D.C. Cir. 2014); see also Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1495, 240 U.S.App.D.C. 339 (D.C. Cir. 1984) (" [E]ligibility alone is not enough. . . . the complainant must [also] show that he or she is 'entitled' to an award." ).

1. Eligibility For Fees Award

To satisfy the first requirement of eligibility for attorneys' fees, a claimant must show that he " substantially prevailed" in the underlying FOIA litigation. See 5 U.S.C. § 552(a)(4)(E)(i). The statute provides that the claimant " substantially prevail[ed]" by gaining relief from 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." Id. at § 552(a)(4)(E)(ii).[2] This statutory text is a

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direct Congressional response to the D.C. Circuit's rejection of the " catalyst theory" [3] in determining whether FOIA plaintiffs were eligible for attorneys' fees when an agency voluntarily turned over the records sought. See Davis v. U.S. Dep't of Justice, 610 F.3d 750, 752, 391 U.S.App.D.C. 365 (D.C. Cir. 2010). After the Supreme Court's landmark case of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), which largely invalidated the catalyst theory, the D.C. Circuit held that " a FOIA plaintiff has 'substantially prevailed' only if he has 'been awarded some relief by [a] court, either in a judgment on the merits or in a court-ordered consent ...

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