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Bloomgarden v. United States Department of Justice

United States District Court, District of Columbia

May 25, 2017

Howard Bloomgarden, Plaintiff,
United States Department of Justice Defendant.


          ELLEN SEGAL HUVELLE, United States District Judge

         Plaintiff 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.)

         Upon 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.[1] Accordingly, plaintiff will be awarded $45, 518.23 in fees and costs.


         This 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 attorney's fees.

         Plaintiff 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.

         After plaintiff filed his FOIA request, the EOUSA searched without success for the requested documents.[2] 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.)

         While 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.

         On 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 omitted).)

         Because 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.)

         Notwithstanding the Court's proposal, plaintiff moved for a new Vaughn index, which the government agreed to produce.

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. (Id.)

         In June 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.)


         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). 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 fees requested.”)

         Here, 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 ...

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