United States District Court, District of Columbia
SEGAL HUVELLE, United States District Judge
Howard Bloomgarden sued the Department of Justice
(“DOJ”) to compel the production of records by
the Executive Office for United States Attorneys
(“EOUSA”) under the Freedom of Information Act
(“FOIA”), 5 U.S.C. §§ 552, et
seq. (Am. Compl., Nov. 9, 2012, ECF No. 11.) After years
of litigation, the government produced 2, 035 unredacted
pages and 1, 013 partially redacted pages of the 3, 700-page
file that plaintiff requested. (Pl.'s Mem. of P. & A.
in Supp. of Pl.'s Mot. for Atty's Fees
(“Pl.'s Mot.”), Sept. 29, 2016, ECF No.
145-1, at 8.) Plaintiff now moves for attorney's fees and
costs pursuant to Fed.R.Civ.P. 54(d) and 5 U.S.C. §
552(a)(4)(E). (Id. at 1, 9.) The government disputes
that plaintiff is entitled to fees and costs and argues that,
even if plaintiff were entitled to fees, the government
should pay less than plaintiff seeks. (Def.'s Mem. in
Opp'n to Pl.'s Mot. for Atty's Fees
(“Def.'s Opp'n”), Oct. 26, 2016, ECF No.
147, at 5.)
consideration of plaintiff's motion, defendant's
opposition, and plaintiff's reply (Pl.'s Reply to
Def.'s Opp'n (“Pl.'s Reply”), Nov. 7,
2016, ECF No. 149), and for the reasons that follow,
plaintiff's motion will be granted in part and denied in
part. The Court finds that plaintiff is entitled to recover
fees and costs pursuant to FOIA but less than the amount
requested. Accordingly, plaintiff will be awarded
$45, 518.23 in fees and costs.
Court has described in detail the background of this case in
its earlier opinions. (See Mem. Op., Jan. 22, 2014,
ECF No. 31, at 1-4; Mem. Op., Feb. 5, 2016, ECF No. 106, at
1-3; Mem. Op. & Order, April 13, 2016, ECF No. 118, at
1-2; Mem. Op., July 19, 2016, ECF No. 134, at 1-2.) It will
therefore limit its discussion to those of the facts that are
relevant to plaintiff's current request for
filed this FOIA action in 2012 in order to obtain the
disciplinary file of a former Assistant United States
Attorney in the United States Attorney's Office for the
Eastern District of New York (“USAO-EDNY”).
Plaintiff hoped that these documents would provide evidence
of prosecutorial misconduct, which plaintiff had raised as a
defense to the California state murder charges that had been
brought against him. Plaintiff continued to press his FOIA
request after he was convicted of those charges in 2014, to
support his motion for a new trial.
plaintiff filed his FOIA request, the EOUSA searched without
success for the requested documents. When the government could
not identify any responsive documents, it moved for summary
judgment. (Def.'s Mot. for Summ. J., Sept. 4, 2013, ECF
No. 23.) On the basis of “five  sworn declarations
from three government employees detailing their search for
responsive documents, ” this Court found that the
government reasonably discharged its duties under FOIA and
granted the government's motion. (Mem. Op., Jan. 22,
2014, at 7.) Plaintiff appealed. (Notice of Appeal, March 31,
2014, ECF No. 33.)
plaintiff's appeal was pending, another agency of the
government located documents responsive to plaintiff's
FOIA request, including a 35-page disciplinary letter.
Bloomgarden v. U.S. Dep't of Justice, 2014 WL
6725736, at *1 (D.C. Cir. Nov. 13, 2014) (per curiam).
Accordingly, the Court of Appeals dismissed plaintiff's
appeal as moot and remanded the matter to this Court for
further proceedings. Id.
remand, this Court ordered the parties to confer and file a
joint status report. (Minute Order, Jan. 14, 2015.) Plaintiff
continued to seek disclosure of the entire disciplinary file,
but the government refused to release any of the requested
documents. (Status Report, Jan. 28, 2015, ECF No. 41, at
1-2.) After reviewing the parties' status report, the
Court ordered the government to produce an unredacted copy of
the 35-page disciplinary letter for in camera
review. (Order, Feb. 20, 2015, ECF No. 42.) At the March 4,
2015 status conference, the Court set a briefing schedule for
dispositive motions and ordered the government to produce a
Vaughn Index outlining the legal bases for
withholding the disciplinary file. (See Minute
Order, Mar. 10, 2015.) On May 26, 2015, plaintiff moved for
summary judgment. (Pl.'s Mot. For Summ. J., ECF No. 49.)
The government cross-moved for summary judgment on July 15,
2015. (Def.'s Mot. For Summ. J., ECF No. 67).
As this Court noted,
[t]he Vaughn Index produced by DOJ was woefully inadequate,
lumping hundreds of pages together into single entries and
inadequately explaining why particular exemptions applied to
particular documents. The Court was thus unable to rule on
the vast majority of documents in the disciplinary file,
though having reviewed certain documents in camera,
it did rule that a 35-page disciplinary letter . . . from the
file was properly withheld in its entirety under Exemption 6.
The Court also noted that DOJ had failed to press its
Exemption 5 argument in its motion, and thus that argument
was deemed abandoned.
(Mem. Op. & Order, April 13, 2016, at 2 (citations
of the “complete waste of time and expense that
creating a proper Index would entail, ” the Court
proposed - and the parties agreed - that
(1) plaintiff would forego a proper Vaughn Index in
exchange for (2) defendant disclosing any public documents it
had previously withheld and (3) consenting to the in
camera review of selected documents by Judge Rappe [who
presided over plaintiff's California criminal case] for
any possible Brady material related to
plaintiff's California criminal case.
(Order, Feb. 17, 2017, ECF No. 110, at 1.) When the
government indicated that it would withhold all court
documents originally filed under seal, the Court ordered the
government to file an index of the documents withheld
pursuant to Morgan v. U.S. Dep't of Justice, 923
F.2d 195 (D.C. Cir. 1991). (Minute Order, Nov. 16, 2015.) The
Court ultimately rejected the government's
Morgan claims and ordered the government to produce
the court filings that had been filed under seal some twenty
years earlier. (Order, Jan. 5, 2016, ECF No. 100, at 1.)
the Court's proposal, plaintiff moved for a new
Vaughn index, which the government agreed to
Because the new Vaughn Index [was] only necessary
because of DOJ's shoddy initial effort, the Court
included a provision ordering that DOJ not get a second bite
at the apple-having relied on Exemptions 6 and 7(C)
initially, it would be bound by those litigation choices
moving forward. DOJ's motion to amend that Order
followed, arguing that despite its admitted error, it should
be allowed to assert Exemptions 3, 7(D), and 7(F) to protect
innocent third parties.
(Mem. Op. & Order, April 13, 2016, at 2 (citations
omitted).) Granting the government's Motion to Amend, the
Court allowed the government to raise new legal bases for
withholding documents in order to protect informants and
other third parties who might otherwise be prejudiced by
disclosure. (Id. at 5.) At the same time, the Court
ordered the government to release to plaintiff all reasonably
segregable information within the withheld documents.
2016, the parties again cross-moved for summary judgment with
respect to the documents the government continued to
withhold. (Pl.'s Mot. for Summ. J., June 8, 2016, ECF No.
127; Def.'s Mot. for Summ. J., June 20, 2016, ECF No.
129.) Finding the government was correct in withholding the
remaining documents, the Court denied plaintiff's motion
for summary judgment and granted the government's
cross-motion for summary judgment. (Mem. Op., July 19, 2016,
at 7.) This Motion for Attorney's Fees followed
plaintiff's unsuccessful Motion to Amend Judgment.
(See Order, Aug. 12, 2016, ECF No. 141.)
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). As the D.C. Circuit has explained,
the fee-shifting statute's language
naturally divides the attorney-fee inquiry into two prongs,
which our case law has long described as fee
“eligibility” and fee “entitlement.”
Judicial Watch, Inc. v. U.S. Dep't of Commerce,
470 F.3d 363, 368-69 (D.C. Cir. 2006). The eligibility prong
asks whether a plaintiff has “substantially
prevailed” and thus “may” receive fees.
Id. at 368. If so, the court proceeds to the
entitlement prong and considers a variety of factors to
determine whether the plaintiff should receive fees.
Id. at 369.
Brayton v. Office of the U.S. Trade Representative,
641 F.3d 521, 524 (D.C. Cir. 2011). If a court finds that a
litigant is both eligible and entitled to fees pursuant to
FOIA, the court must then consider whether the moving party
has met its burden to establish that the requested fees are
reasonable. See Elec. Privacy Info. Ctr. v. United States
Dep't of Homeland Sec., 2016 WL 6879251, at *6
(D.D.C. Nov. 21, 2016) (“The party seeking fees has the
additional burden of establishing the reasonableness of the
plaintiff contends, and the government agrees, that he is
eligible for fees under the first prong of the attorney-fee
inquiry. (Pls.' Mot. at 9; Def.'s Opp'n at 5.)
However, the government argues that plaintiff is not entitled
to fees under the second prong of the inquiry and that, even
if he were, “the amount [plaintiff] seeks is