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Electronic Privacy Information Center v. Department of Homeland Security

United States District Court, District of Columbia

July 18, 2016

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, Defendant. v.

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge

         In July 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.

         EPIC 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.

         I. Background

         As past 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 shutdown determinations.

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.

         Challenging 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. § 552(a)(6)(A)(ii).

         While 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.

         That 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. § 552(b)(7)(E), (F).

         Summary-judgment 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.

         Plaintiff now seeks to recover attorney fees and other expenses associated with this litigation.

         II. Analysis

         FOIA 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).

         Much of 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 ...


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