United States District Court, District of Columbia
E. BOASBERG United States District Judge
2012, the Electronic Privacy Information Center submitted a
Freedom of Information Act request to the Department of
Homeland Security. EPIC sought information relating to
Standard Operating Procedure 303, a document that describes
DHS protocols for shutting down wireless networks during
national emergencies. After the Agency told EPIC that it
could not locate any responsive records, Plaintiff
administratively appealed and eventually filed suit here.
Although Defendant then released a heavily redacted version
of SOP 303, EPIC wanted more. While EPIC temporarily
prevailed in this Court, the Court of Appeals ultimately held
that full release was not required, but remanded for a
segregability analysis. After Defendant removed some
redactions, this Court approved and closed the case.
now asks for attorney fees and costs. Because Defendant
concedes that Plaintiff is eligible for and entitled to
some reimbursement, the Court will grant
Plaintiff’s Motion for Attorney Fees in part.
Plaintiff’s requested sum, however, will be
significantly reduced to account for the limited nature of
its success and for various billing-related deficiencies.
Opinions detail the background of this suit, see EPIC v.
DHS (EPIC II), 777 F.3d 518, 520-22 (D.C. Cir.
2015), the Court recounts here only facts relevant to the
pending Motion. In July 2012, EPIC submitted a FOIA request
to DHS for:
1. The full text of Standard Operating Procedure 303;
2. The full text of the pre-determined “series of
questions” that determines if a shutdown is necessary;
3. Any executing protocols or guidelines related to the
implementation of Standard Operating Procedure 303,
distributed to DHS, other federal agencies, or private
companies, including protocols related to oversight of
MSJ, Exh. 1 (July 10, 2012, Letter from Amie Stepanovich to
DHS) at 3. DHS wrote back that it had “conducted a
comprehensive search of files within the DHS” and other
offices, but, “[u]nfortunately, . . . w[as] unable to
locate or identify any responsive records.”
Id., Exh. 3 (August 21, 2012, Letter from Mia Day to
Amie Stepanovich) at 1.
the adequacy of DHS’s search - especially given that
SOP 303’s existence was public knowledge - EPIC filed
an administrative appeal. See id., Exh. 4 (September
13, 2012, Letter from Amie Stepanovich to DHS); Opp. to MSJ,
Exh. 1 (October, 25, 2012, Letter from James Holzer to Amie
Stepanovich). FOIA’s twenty-day appeal period quickly
passed without further action from DHS, and so in February
2013, EPIC filed suit in this court. See 5 U.S.C.
this case was pending, the administrative law judge in
EPIC’s administrative appeal decided that DHS’s
record “fails to demonstrate that [DHS] conducted an
adequate search for responsive records” and remanded
EPIC’s FOIA request for further review. See
MSJ, Exh. 5 (March 25, 2013, Letter from Joanna Sherry to
Amie Stepanovich) at 1.
administrative decision, however, did not end matters. DHS
located SOP 303 after conducting a more extensive search.
But, in June 2013, the Agency produced to EPIC only a heavily
redacted version of the document. Defendant withheld under
FOIA Exemptions 7(E) and 7(F) all but four sentences of the
substantive portions of SOP 303. See Opp., Exh. 1
(First SOP 303) at 1-7; see also 5 U.S.C. §
briefing then focused on DHS’s reliance on those
law-enforcement-related exemptions. While this Court sided
with Plaintiff, EPIC v. DHS (EPIC I), 999
F.Supp.2d 24 (D.D.C. 2013), the Circuit reversed and remanded
for this Court to decide only whether non-exempt portions of
SOP 303 could be segregated from exempt portions and then
produced. EPIC II, 777 F.3d at 528. After remand,
Defendant released a second version of SOP 303 with fewer
redactions and provided the Court an unredacted copy for
in camera review. See Opp., Exh. 2 (Second
SOP 303) at 1-7. This Court then determined that no other
pages needed to be released and entered judgment.
See July 10, 2015, Minute Order. No appeal followed.
now seeks to recover attorney fees and other expenses
associated with this litigation.
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 (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 (quoting Judicial Watch, Inc. v. Dep’t of
Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). EPIC
is “eligible” to receive fees if it has
“substantially prevailed.” Id.;
Judicial Watch v. Dep’t of Commerce, 470 F.3d
at 368. If EPIC is eligible, the Court must then
“consider a variety of factors” to determine
whether it is “entitled” to fees.
Brayton, 641 F.3d at 524-25; Davy v. CIA,
550 F.3d 1155, 1158 (D.C. Cir. 2008). If EPIC is both
eligible for and entitled to receive fees, the Court proceeds
to “analyze whether the amount of the fee request is
reasonable.” EPIC v. DHS, 811 F.Supp.2d 216,
237 (D.D.C. 2011).
the attorney-fee legwork is done because DHS concedes both
eligibility and entitlement. See Opp. at 7-8. What
it strenuously objects to, however, is the amount sought.
Before the Court addresses whether Plaintiff’s
requested fees are ...