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Citizens for Responsibility & Ethics in Wash. v. U.S. Department of Justice

United States District Court, D. Columbia

October 27, 2015


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[Copyrighted Material Omitted]

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          For 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.

         For U.S. Department of Justice, Defendant: Arjun Garg, LEAD ATTORNEY, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC USA.

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         JOHN D. BATES, United States District Judge.

         More 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.


         Some 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).

         Each 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 invasions of

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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.

         In 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.

         The 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.

         Thus, 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).

         But the 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

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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.

         The 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.

         I. Entitlement to Attorneys' Fees

          The 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.

         The 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,

Page 7 . 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," available at ), 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.

         The 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 documents.

         The 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

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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.

         For the 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.

         The 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

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Representative Young's investigation, as the government's litigating position in withholding documents was unreasonable).

         But " 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.[1] 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 the amount.

         II. 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).[2] 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.

         A. Hours Reasonably Expended

          CREW " 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 ...

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