United States District Court, D. Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant
[Copyrighted Material Omitted]
Citizens For Responsibility And Ethics in Washington,
Plaintiff: Adam J. Rappaport, LEAD ATTORNEY, CITIZENS FOR
RESPONSIBILITY AND ETHICS IN WASHINGTON, Washington, DC USA;
David L. Sobel, LEAD ATTORNEY, ELECTRONIC FRONTIER
FOUNDATION, Washington, DC USA.
U.S. Department of Justice, Defendant: Arjun Garg, LEAD
ATTORNEY, U.S. Department of Justice, Civil Division, Federal
Programs Branch, Washington, DC USA.
BATES, United States District Judge.
than four years ago, Citizens for Responsibility and Ethics
in Washington sought information about the Department of
Justice's criminal investigation of former senator John
Ensign. After lengthy litigation under the Freedom of
Information Act--and two orders from this Court--CREW
obtained several thousand pages of responsive material. CREW
now seeks attorneys' fees to cover the costs of the
litigation. The Court finds that CREW is entitled to recover
fees and it will award $32,865.19.
years ago, the federal government investigated Senator John
Ensign but, as Ensign announced publicly, ultimately elected
not to bring any charges. See CREW v. DOJ, 978
F.Supp.2d 1, 4 (D.D.C. 2013). Curious about that decision,
CREW submitted FOIA requests to the DOJ, the FBI, and the
Executive Office for United States Attorneys. Each request
asked for " all records related to DOJ's and the
FBI's investigation of Senator John Ensign (R-NV),
including but not limited to DOJ's decision not to bring
criminal charges against him that are not covered by grand
jury secrecy." Id. at 5 (alteration and
internal quotation marks omitted).
agency denied CREW's requests under FOIA Exemptions 6 and
7(C), which protect personnel, medical, and law enforcement
records from disclosure that would constitute unwarranted
personal privacy. Id.; see also 5 U.S.C. §
552(b)(6), (b)(7)(C). Indeed, the FBI and the EOUSA did not
even perform a search. CREW, 978
F.Supp.2d at 5. Instead, the government elected to
categorically withhold all responsive documents rather than
evaluate each document individually and provide a Vaughn
index explaining any withholdings. DOJ's Office of
Information Policy affirmed the government's decisions on
appeal, although on slightly different grounds. Id.
And so CREW filed suit, and eventually a motion for summary
judgment, in this Court, arguing that the government had
wrongfully withheld responsive documents. See id.
addressing the parties' cross-motions for summary
judgment on that issue, the Court " recognized [that,]
in the context of Exemption 7(C)[,] 'privacy interests
are particularly difficult to overcome when law enforcement
information regarding third parties is implicated.'"
Id. at 7 (quoting Martin v. DOJ, 488 F.3d
446, 457, 376 U.S.App.D.C. 293 (D.C. Cir. 2007)). Thus,
agencies " categorically deny all requests for law
enforcement records regarding third parties in the absence of
an 'overriding' public interest (or proof of death or
a privacy waiver, neither of which are at issue in this
case)." Id. at 8. And the DOJ had "
concluded here that CREW had not articulated an
'overriding' public interest." Id.
Court agreed with the government's position that Senator
Ensign " enjoys a significant privacy interest in the
substance of the investigative files" --although that
interest is " substantially diminished" by his
public announcement acknowledging the fact of the
investigation itself. Id. At 11. But the Court also
found that " the public has a substantial interest in
DOJ's decision not to prosecute him, considering the
circumstances." Id. at 12. After all, "
Senator Ensign purportedly resigned under threat of expulsion
from the Senate." Id. at 13. And " the
public--and Congress--would benefit from knowing that DOJ
gives serious consideration to referrals from Congress."
Id. at 14. Balancing these interests, the Court
concluded that " [a]pplication of DOJ's categorical
rule is . . . not appropriate." Id.
the government's categorical withholding could not stand.
Instead, the government was ordered to evaluate Senator
Ensign's privacy interests and the resulting availability
of exemptions on a document-by-document basis. Id.
The government was required to submit a Vaughn index that
identified each document withheld, along with a "
relatively detailed justification" for each.
Id. at 15. As the Court explained, " submission
of a Vaughn Index here w[ould] not harm Senator Ensign's
privacy interests in not being identified as the subject of
an investigation--that ship has sailed. And the privacy
interests of other third parties mentioned in the records but
not already publicly known can be protected adequately by
redaction of identifying information." Id. at
14-15 (citations omitted).
government failed to meet the deadline to produce that Vaughn
index--even after an extension. See Feb. 14, 2014 Mem. Op. &
Order [ECF No. 21] at 2. And on the eve of a status
conference to address that issue, the government filed a
motion requesting another lengthy extension--and " that
it be permitted to submit representative 1% sample Vaughn
indices of the 86,000 and 120,000 pages of responsive
documents in the custody of the [DOJ] Criminal Division and
the EOUSA, respectively." Id. The Court voiced
concern with the FBI's dilatory conduct: " Had it
been processing documents since [the Court's previous
Order] at the rate it now proposes . . ., it would have
completed processing the 8,000 pages by now, and CREW would
already be in possession of a wealth of non-exempt
information." Id. at 4. And
the Court expressed surprise at the " unusual
fashion" in which the DOJ and EOUSA wished to proceed.
Id. at 5. After all, the DOJ " cite[d] no case
where a court has permitted an agency to provide a
representative Vaughn index before processing all responsive
documents." Id. Moreover, " until [the]
DOJ processes responsive records, releases non-exempt
records, and withholds documents in part or in full pursuant
to FOIA exemptions, CREW and the Court cannot test its
exemption claims through sampling or otherwise."
Id. " In effect," the Court explained, the
" DOJ want[ed] an advisory opinion on how the Court
views its preliminary stances on withholding so that it
c[ould] code, withhold, and redact accordingly."
Id. at 6. The Court therefore denied the DOJ's
motion for representative sampling and ordered production to
continue. Id. at 7-9.
government appears to have complied with this second Order,
processing thousands of pages of responsive material (though
far fewer than estimated in the second round of briefing),
releasing many in full or in part, and providing Vaughn
indices explaining its withholdings. See Pl.'s Mem. [ECF
No. 38-1] at 8-9. CREW did not challenge any of the
withholdings. See Oct. 28, 2014 Status Report [ECF No. 31].
CREW has, however, moved for attorneys' fees to reimburse
its costs in pursuing this FOIA action. That is the issue
presently before this Court.
The Freedom of Information Act provides for the recovery of
[reasonable] attorneys' fees in cases brought under its
provisions where the complainant has 'substantially
prevailed.'" Chesapeake Bay Found., Inc. v. U.S.
Dep't of Agric., 11 F.3d 211, 215, 304 U.S.App.D.C.
167 (D.C. Cir. 1993) (quoting 5 U.S.C. § 552(a)(4)(E)).
Courts analyze this issue in two steps: first, eligibility,
and second, entitlement. Id. at 216. As both parties
agree that CREW is statutorily eligible for attorneys'
fees, see Def.'s Opp'n [ECF No. 40] at 5 n.1, the
Court need only address CREW's entitlement to fees. That
is, CREW " may" receive fees, but the Court must
determine whether it " should." 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). If the Court determines
that CREW is entitled to recover fees, then it must calculate
the appropriate award.
Entitlement to Attorneys' Fees
D.C. Circuit has instructed this court " to consider at
least four criteria in determining whether a substantially
prevailing FOIA litigant is entitled to attorney's fees:
(1) the public benefit derived from the case; (2) the
commercial benefit to the plaintiff; (3) the nature of the
plaintiff's interest in the records; and (4) the
reasonableness of the agency's withholding." Tax
Analysts v. DOJ, 965 F.2d 1092, 1093, 296 U.S.App.D.C.
130 (D.C. Cir. 1992). The second and third
factors--commercial benefit and plaintiff's
interest--" are closely related and often considered
together." Id. at 1095. Indeed, " 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,
384 U.S.App.D.C. 49 (D.C. Cir. 2008). " The sifting of
those criteria over the facts of a case is a matter of
district court discretion," Tax
Analysts, 965 F.2d at 1094 (citation omitted),
and " [n]o one factor is dispositive,"
Davy, 550 F.3d at 1159.
government does not attempt to refute CREW's argument
that the first three factors weigh in CREW's favor--but
the Court would agree as to the disposition of those factors
in any event. CREW is a nonprofit organization "
dedicated to promoting ethics and accountability in
government and public life." About Us, CREW,
www.citizensforethics.org/pages/about . CREW advances that
mission in part by " bring[ing] unethical conduct to the
public's attention." Id. Thus, CREW's
interest is " for public informational purposes,"
rather than " private advantage."
Davy, 550 F.3d at 1160; see also
CREW v. DOJ, 820 F.Supp.2d 39, 45 (D.D.C. 2011)
(finding that the second and third factors " militate
strongly in favor" of CREW, as it is a nonprofit
organization that " freely and publicly disseminates
those records it acquires through FOIA requests" ). And
the public did indeed derive a benefit from this litigation:
CREW published a free, if short, report (helpfully entitled
" What CREW Has Learned About the John Ensign
Investigation and Why He Was Never Prosecuted,"
), and " provided the files to The New York Times,"
which in turn presented national coverage of the
government's decision-making process in declining to
charge Senator Ensign. Eric Lichtblau, Documents Reveal
Details of F.B.I. Inquiry Into Nevada Senator, N.Y. Times,
Dec. 30, 2014, at A12. The public is likely interested in
assessing how and why the Department of Justice exercises its
prosecutorial discretion--particularly in regard to
high-profile public figures. Thus, CREW's pursuit and
dissemination of these documents " is likely to add to
the fund of information that citizens may use in making vital
political choices." Cotton v. Heyman, 63 F.3d
1115, 1120, 314 U.S.App.D.C. 161 (D.C. Cir. 1995) (internal
quotation marks omitted); see also CREW v. DOJ, No.
11-1021, at *9 (D.D.C. Oct. 24, 2014) (finding that "
CREW's FOIA request concerned a matter of undeniable
public import" where " [t]he public had a clear
interest in documents concerning [Representative Jerry]
Lewis's investigation, especially considering the
backdrop of broader public concerns about the DOJ's
handling of allegations of corruption leveled against
high-ranking public officials" (alteration and internal
quotation marks omitted)). Hence, the Court concludes that
the first three factors weigh in CREW's favor.
The fourth factor considers whether the agency's
opposition to disclosure had a reasonable basis in law, and
whether the agency had not been recalcitrant in its
opposition to a valid claim or otherwise engaged in obdurate
behavior." Davy, 550 F.3d at
1162 (internal quotation marks and citation omitted). "
The question is not whether [CREW] has affirmatively shown
that the agency was unreasonable, but rather whether the
agency has shown that it had any colorable or reasonable
basis for not disclosing the material until after [CREW]
filed suit." Id. at 1163. While this factor is
fair grounds for discussion, CREW prevails here as well.
agency's position in the second round of briefing--asking
to produce representative sample Vaughn indices--was
unreasonable. As the Court has previously explained, the
government " cite[d] no case where a court ha[d]
permitted an agency" to proceed along those lines. Feb.
14, 2014 Mem. Op. & Order at 5. " In effect," the
government sought " an advisory opinion."
Id. at 6. Thus, the agency had no " reasonable
basis in law" for seeking to produce sample indices
before processing CREW's request. And so this round of
briefing, requiring a second opinion from the Court, served
only to delay the inevitable: production of non-exempt
government barely addresses this second round of briefing,
and only does so to point out that " after the [DOJ]
processed and released thousands of pages of records and
provide d Vaughn indices, CREW did not further challenge any
of [the government's] withholdings." Def's
Opp'n at 9. According to the government, then, "
this was not a case where a defendant sought merely to
stonewall based on frivolous exemption claims," and so a
fee award is not merited. Id. But the appropriate
inquiry does not center on the ultimate validity of the
government's withholdings. After all, the government did
not create the unchallenged Vaughn indices--nor produce, or
even process, the relevant documents--until forced to do so
by Court order after lengthy resistance. Delay tactics are
just another form of stonewalling. See
Davy, 550 F.3d at 1163 (" It
is not enough to say that once the agency faced a justiciable
FOIA claim, it offered no resistance, because the agency did
not disclose the documents until after [the plaintiff] had
pursued litigation, including filing a cross-motion for
summary judgment and negotiating a release schedule."
(alteration, internal quotation marks, and citation
omitted)). Hence, all four factors weigh in favor of CREW as
to the second round of briefing, and CREW is entitled to
attorneys' fees as to those costs.
first round of briefing--the cross-motions for summary
judgment regarding the blanket exemption--the fourth factor
is (if marginally) " a closer call." CREW v.
DOJ, at *10. " At the time of suit, . . . [the
government's] policy had recently been upheld by another
court in this district." See id. at *11 (citing
Graff v. FBI, 822 F.Supp.2d 23, 35-37 (D.D.C. 2011)
(upholding the policy in general, not as applied to a
particular case)). And this Court did agree with the
government's position that Senator Ensign had a
significant privacy interest in the documents requested. But
in constructing its litigating position, the government had
the benefit of other recent cases finding categorical
withholding inappropriate where the FOIA requester sought
information about a publicly acknowledged investigation of a
public figure. See CREW v. DOJ, 846 F.Supp.2d 63,
75-76 (D.D.C. 2012) (finding categorical withholding
inappropriate and requiring a Vaughn index regarding criminal
investigation of Representative Jerry Lewis); CREW v.
DOJ, 840 F.Supp.2d 226, 236 (D.D.C. 2012) (finding
categorical withholding inappropriate and requiring a Vaughn
index regarding criminal investigation of Representative Don
Young). In its motion for summary judgment in this case, the
government acknowledged these adverse rulings, but "
respectfully disagree[d] with the courts' analysis in
those cases." Def.'s Mem. Supporting Mot. for Summ.
J. [ECF No. 8-1] at 20. The government is certainly free to
disagree with a court's analysis--but simply stating that
two courts in this district got it wrong is not the stuff of
a reasonable litigating position.
government did attempt to distinguish those cases as "
involv[ing] serious allegations of corruption on matters
affecting the public fisc," whereas this case, according
to the government, involved " allegations of a highly
personal nature." Id. at 21. But the fact that
Senator Ensign's alleged criminal conduct stemmed from an
affair does not render any public concern mere " tabloid
interest." Id. Investigations into potential
violations of lobbying laws are matters of public interest
whether or not their surrounding circumstances are more
salacious than usual. And the government's exercise of
prosecutorial discretion--especially as it relates to a
public figure--is hardly the subject of prurient voyeuristic
fixation. Allegations that a senator violated lobbying laws
are not " of a highly personal nature," and it is
unreasonable to say otherwise. Id. Given the
similarity of these cases, then, the Court finds it difficult
to say that the government's desire to categorically
withhold all responsive documents had a reasonable basis in
law. See CREW v. DOJ, No. 11-754, at *7-12 (D.D.C.
Aug. 4, 2014) (holding CREW was entitled to attorney's
fees in the case involving
Representative Young's investigation, as the
government's litigating position in withholding documents
" even if [the government] did prevail on this one
factor, CREW's success on the first three would still tip
the balance in favor of awarding fees." CREW, at *11.
Because courts " must be careful not to give any
particular factor dispositive weight," Nationwide
Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 714, 182
U.S.App.D.C. 83 (D.C. Cir. 1977), a close call on the fourth
factor cannot outweigh the fact that the other three factors
" militate strongly" in favor of CREW. CREW, at
*8. This balance accords with " the
basic policy of the FOIA to encourage the maximum feasible
public access to government information and the fundamental
purpose of section 552(a)(4)(E) to facilitate citizen access
to the courts to vindicate their statutory rights."
Nationwide Bldg., 559 F.2d at 715. CREW, then, is
both eligible for and entitled to attorneys' fees for
both rounds of briefing--and the Court need only determine
Amount of Attorneys' Fees
The usual method of calculating reasonable attorney's
fees is to multiply the hours reasonably expended in the
litigation by a reasonable hourly fee, producing the
'lodestar' amount." Bd. of Trs. of Hotel &
Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801,
329 U.S.App.D.C. 54, 329 U.S.App.D.C. 79 (D.C. Cir.
1998). Based on this method, CREW seeks
$63,827.40 in attorneys' fees, as well as $550 in costs.
See Pl.'s Reply [ECF No. 43] at 20. But the government
challenges CREW's calculation from both sides, arguing
that the hours expended are inadequately documented (or
constitute inappropriate line-items), and that CREW seeks an
excessive hourly rate. The Court will consider each of these
objections in turn.
Hours Reasonably Expended
" has the burden of establishing the reasonableness of
its fee request, and supporting documentation must be of
sufficient detail and probative value to enable the [C]ourt
to determine with a high degree of certainty that such hours
were actually and reasonably expended." Role Models
Am., Inc. v. Brownlee,353 F.3d 962, 970, 359
U.S.App.D.C. 237 (D.C. Cir. 2004) (alteration, internal
quotation marks, and citation omitted). Thus, " fees and
costs should not be awarded ...