United States District Court, District of Columbia
ROYCE C. LAMBERTH, District Judge.
Before the Court are plaintiffs Hall and Studies Solutions Results' motion  for interim attorneys' fees and plaintiff Accuracy in Media's motion  for interim attorneys' fees for their work in this case. For over a decade, plaintiffs have sought records under the Freedom of Information Act ("FOIA") pertaining to missing Prisoners of War and persons Missing in Action ("POW/MIAs") in Southeast Asia. The facts pertinent to this lengthy litigation have previously been set forth in great detail, both in Hall v. CIA, 668 F.Supp.2d 172, 176-78 (D.D.C. 2009) and in Hall v. CIA, 881 F.Supp. 38 50-51 (D.D.C. 2012).
I. LEGAL STANDARD
In a FOIA suit, "[t]he court 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). A plaintiff substantially prevails by "obtain[ing] 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." § 552(a)(4)(E)(ii). In addition to being eligible for attorneys' fees, i.e. substantially prevailing, a plaintiff must be entitled to the fees in order to receive any. Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984). Entitlement "entails a balancing of four factors: (1) the benefit of the release to the public; (2) the commercial benefit of the release to the plaintiff; (3) the nature of the plaintiff's interest; and (4) the reasonableness of the agency's withholding." Id. at 1498. With respect to the balancing test, "[t]he sifting of those criteria over the facts of a case is a matter of district court discretion, " Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992), but the D.C. Circuit has offered some guidance. "Essentially, the first three factors assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage." Davy v. CIA, 550 F.3d 1155, 1160 (D.C. Cir. 2008) (emphasis added).
FOIA permits an award of " reasonable attorney fees and other litigation costs" to a plaintiff that demonstrates its eligibility for and entitlement to such an award. 5 U.S.C. § 552(a)(4)(e)(i) (emphasis added). "The usual method of calculating reasonable attorney's fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee." Bd. of Trs. Of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citations omitted); see also Weisberg, 745 F.2d at 1499. The plaintiff bears the burden of establishing the reasonableness of the hourly rate sought. In re North, 59 F.3d 184, 189 (D.C. Cir. 1995). "Once plaintiffs have provided such information, there is a presumption that the number of hours billed and the hourly rates are reasonable." Blackman v. District of Columbia, 677 F.Supp.2d 169, 172 (D.D.C. 2010). At that point, "the burden then shifts to the defendants to rebut plaintiffs' showing that the amount of time spent was reasonable and that the hourly rates for the attorneys who worked on the matter were reasonable, considering their various skill levels and experience for this kind of case." Id. (citing Watkins v. Vance, 328 F.Supp.2d 23, 26 (D.D.C. 2004)).
If the plaintiff achieves only limited success, it is within the court's discretion to reduce the award of fees. George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1535 (D.C. Cir. 1992). The court must exclude "hours that are excessive, redundant, or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). A prevailing FOIA plaintiff is not entitled to an attorneys' fee award for "nonproductive time or for time expended on issues on which plaintiff ultimately did not prevail." Weisberg, 745 F.2d at 1499 (citing Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1323 (D.C. Cir. 1982)). As the Supreme Court explained in Hensley, "[t]here is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-37.
Interim fees may be awarded under FOIA. See, e.g., Nat'l Ass'n of Criminal Defense Lawyers, Inc. v. U.S. Dep't of Justice, 182 F.3d 981 (D.C. Cir. 1999); Washington Post v. U.S. Dep't of Defense, 789 F.Supp. 423 (D.D.C. 1992). Some FOIA cases dealing with interim fees have erected additional bars to interim fee awards that vary from case to case. Cf. Allen v. Dep't of Defense, 713 F.Supp. 7 (D.D.C. 1989); Allen v. FBI, 716 F.Supp. 667 (D.D.C. 1989). For example, Allen v. FBI set forth four factors to determine whether interim fees are appropriate: (1) the degree of hardship which delaying a fee award until the litigation is finally concluded would work on plaintiff and his counsel; (2) whether there is unreasonable delay on the government's part; (3) the length of time the case has been pending prior to the motion; and (4) the period of time likely to be required before the litigation is concluded. 716 F.Supp. at 672 (citation omitted). Another case, Allen v. Department of Defense, noted only that the plaintiff had substantially prevailed on several matters and the case had been ongoing for many years before awarding interim fees. 713 F.Supp. at 13.
The CIA concedes that the plaintiffs have prevailed on several of their claims and that they are therefore eligible for fees. Opp'n 8. The CIA also "accepts some responsibility for the unnecessarily protracted nature of this litigation" and notes that there is "accordingly no need for the Court to consider whether the plaintiffs are entitled to an award." Id. Furthermore, the CIA does not argue that interim fees are inappropriate or that fees should not be awarded until the conclusion of litigation. By its own admission, "[t]he only question is what award is reasonable under the circumstances." Opp'n 8.
In conceding the plaintiffs' entitlement to fees, the CIA acknowledges that factors such as the benefit of the release to the public and the reasonableness of the CIA's withholding support awarding reasonable fees to the plaintiffs' attorneys for their work. The Court finds that given the scope and length of this case, the number of court proceedings recorded on the docket, and the records regarding billing hours proposed by plaintiffs, the number of hours requested appears reasonable.
Nonetheless, the CIA argues that the plaintiffs' request is "grossly unreasonable on the facts of this case" and requests limiting the award to more than $75, 000, Opp'n 8, and the Court addresses each of its arguments in turn.
1. Plaintiffs' Success
The CIA primarily argues that the plaintiffs' limited overall success in this case cannot justify the requested fee award. Its opposition may also be read to make the related argument that plaintiffs' award should specifically exclude compensation for hours spent working on unsuccessful motions. The Court treats these related issues separately.
The CIA requests that the Court reduce the requested fees because plaintiffs have achieved only limited success, calling their victory "largely pyrrhic." Id. at 13 (citing EPIC v. Dep't of Homeland Sec., 982 F.Supp.2d 56, 63 (D.D.C. 2013); Judicial Watch, Inc. v. Dep't of Justice, 878 F.Supp.2d 225, 239 (D.D.C. 2012)). The CIA argues that because plaintiffs sought such "extraordinarily broad categories of records, " "it was almost inevitable that litigation would ensue." Id. at 9. This allegation is, to some extent, in tension with the CIA's statement that it "does not dispute that the plaintiffs have substantially prevailed on several of their claims." Indeed, the Court has repeatedly rejected the CIA's claim that the FOIA requests were overly broad and unduly burdensome, and now agrees that plaintiffs have achieved significantly more than a pyrrhic victory.
Overall, the Court finds that the plaintiffs in this case have been quite successful in achieving their objective: obtaining documents unlawfully withheld. When this lawsuit was filed, the CIA refused to release the requested records and failed to respond to plaintiffs' request for over a year. After many years of litigation, the CIA has released more than 4, 000 documents, quite a substantial success. The Court finds that plaintiffs' actions in diligently pursuing their claims were reasonable - even those that were ultimately unsuccessful - and it will not use the benefit of hindsight to scrutinize every one of plaintiffs' actions. Cf. Hensley, 461 U.S. at 435 n.11 ("We ...