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Hardy v. Bureau of Alcohol, Tobacco

United States District Court, District of Columbia

November 9, 2017

DAVID T. HARDY, Plaintiff,



         The plaintiff, David T. Hardy, seeks attorneys' fees and costs as a “prevailing party” under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), Pl.'s Mot. Att'ys' Fees (“Pl.'s Mot.”) at 1, ECF No. 36, in this lawsuit challenging aspects of the response by defendants, the Department of Justice Office of Inspector General (“OIG”) and Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), to the plaintiff's FOIA request. See Compl. ¶¶ 10, 18, 21, ECF No. 2.[1] After the parties' cross-motions for summary judgment were granted in part and denied in part, the parties stipulated to a dismissal of the case, except for the plaintiff's claim for attorneys' fees. Pl.'s Mot. ¶ 15. For the reasons set forth below, the plaintiff's motion for attorneys' fees is GRANTED in part and DENIED in part.

         I. BACKGROUND

         The factual and procedural history to this case is fully set out in this Court's prior Memorandum Opinion and, consequently, only those facts pertinent to resolving the instant motion are summarized below. See Hardy v. Bur. of Alcohol, Tobacco, Firearms & Explosives (Hardy I), 243 F.Supp.3d 155, 159-61 (D.D.C. 2017). In March 2015, the plaintiff submitted a FOIA request to OIG and ATF seeking documents regarding ATF's policies on registered handguns and “any statements, surveys, or reports of interviews given” to OIG “in connection with” an OIG report issued in June 2007 titled “The Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer Record” (“NFRTR”). Id. at 159-60. The parties agreed that the requested records each fell into one of three categories: “(1) records of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey data summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes of materials and interviews; and summaries of a document and emails that were reviewed.” Id. at 160.

         In August 2015, OIG prepared a response to the plaintiff's request stating that all responsive records were exempt from disclosure pursuant to the “deliberative process” privilege under Exemption 5 of the FOIA. Id. (citing Defs.' Mot. Summ. J., Ex. 2, Decl. of Deborah M. Waller (“Waller Decl.”) ¶¶ 5-6, ECF No. 22-2); see also Defs.' Answer, Ex. 1, OIG Resp. Pl.'s FOIA Request, Aug. 27, 2015 (“OIG Response”), ECF No. 13-1 (stating that “responsive documents have been reviewed” and “[i]t has been determined that these documents be withheld in their entirety”). The plaintiff then initiated this lawsuit in October 2015 challenging both defendants' responses to his FOIA request. Compl. ¶¶ 17-22.

         In January 2016, the Court imposed a scheduling order, consistent with the parties' proposal in a Joint Status Report, ECF No. 15, requiring the release of any nonexempt material by February 29, 2016. Minute Order (Jan. 9, 2016). OIG subsequently reviewed sixty responsive documents and determined that the portions that had been directly quoted in the publicly available NFRTR “could be segregated and released without compromising the deliberative processes of the OIG.” Waller Decl. ¶ 7. Three days ahead of the Court's February 29, 2016, disclosure deadline, OIG provided forty pages of highly redacted documents and an “index of responsive records withheld under claim of exemption, ” pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (the “Vaughn Index”), reflecting the withholding of a total of 511 pages. Hardy I, 243 F.Supp.3d at 160-161, 165. Likewise, after a first release on February 26, 2016, and a rolling production through June 29, 2016, ATF provided 539 documents, a production that the plaintiff acknowledged “complied with [his] FOIA request.” Id. at 159 n.1; Pl.'s Statement of Facts (“Pl.'s Facts”) ¶ 9, ECF No. 36; Defs.' Opp'n Pl.'s Mot. Att'ys' Fees (“Defs.' Opp'n”), Ex. 2, Decl. of Peter J. Chisholm, Acting Chief, Disclosure Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (“Chisholm Decl.”) ¶ 5, ECF No. 37-2.

         The parties' cross-motions for summary judgment were each granted in part and denied in part. Hardy I, 243 F.Supp.3d at 159. Specifically, of the three categories of withheld records, the Court concluded that OIG was entitled to summary judgment as to the first category of records described as “records of interviews and notes of telephone interviews, ” id. at 170, but only as to a single document in category two (i.e., “Survey Draft”), id. at 174, and a single document in category three (i.e., “Interview Workpaper”), id. at 177. Otherwise, OIG was denied summary judgment. The plaintiff was granted summary judgment and OIG was ordered to disclose three documents in category two (i.e., two “Survey Results” and “Final Survey Data”). Id. at 173. For the remaining category two and three documents, both parties' motions were denied because OIG “ha[d] not provided sufficient information for the Court to determine, one way or the other, whether these documents [were] protected by Exemption 5.” Id. at 175; see also id. at 178. In total, of the sixty documents withheld, three documents were ordered to be released, all documents in category one and two other documents in the remaining categories were deemed properly withheld, and OIG was denied summary judgment concerning the remaining documents.

         In June 2017, OIG provided three documents-two documents labeled “Survey Results” and one document labeled “Final Survey Data”-to the plaintiff as required by the Court's Order. Pl.'s Facts ¶ 14; Hardy I, 243 F.Supp.3d at 179. OIG also released five other documents as to which the Court held there was insufficient information to grant either party's motion. Defs.' Opp'n, Ex. 1, Decl. of Deborah M. Waller (“Waller Fees Decl.”) ¶ 8, ECF No. 37-1. The parties then stipulated to a dismissal of this case in its entirety, except for the plaintiff's instant claim for attorneys' fees. Stip. of Dismissal at 1, ECF No. 35. The plaintiff now seeks attorneys' fees for time spent litigating the merits of this case as well as fees for time spent on the fee motions.


         The FOIA authorizes an award of attorneys' fees reasonably incurred by a plaintiff who “has substantially prevailed” in the litigation. 5 U.S.C. § 552(a)(4)(E)(i). This statutory provision “naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee ‘eligibility' and fee ‘entitlement.'” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). Accordingly, the plaintiff must demonstrate both eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014); Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984) (“[E]ligibility alone is not enough . . . the complainant must [also] show that he or she is ‘entitled' to an award.”) (citation omitted). If the plaintiff has established both eligibility and entitlement, he must also establish the reasonableness of the fee request. See Covington v. District of Columbia, 57 F.3d 1101, 1107-08 (D.C. Cir. 1995).

         To satisfy the eligibility requirement, the plaintiff must show that he or she “substantially prevailed” in the underlying FOIA litigation by gaining relief from either: “(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 USC § 552(a)(4)(E)(ii). Under the first prong, the claimant substantially prevails when “‘the order changed the legal relationship between [the parties], ' and . . . the plaintiff ‘was awarded some relief on the merits of his claim.'” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367 (D.C. Cir. 2008) (quoting Davy v. C.I.A. (Davy I), 456 F.3d 162, 165 (D.C. Cir. 2006)) (internal quotations omitted). Under the second prong, or “catalyst theory, ” attorney's fees may be awarded solely due to a change in an agency's position, for example, when the plaintiff's lawsuit “substantially caused the government to release the requested documents before final judgment.” Brayton, 641 F.3d at 524-25.[2]

         If the plaintiff has substantially prevailed, the court proceeds to the entitlement prong. The D.C. Circuit “has long applied a multi-factor standard for evaluating whether a plaintiff who is eligible for attorneys' fees is also entitled to such fees.” McKinley, 739 F.3d at 711. “Four non-exclusive factors typically govern the entitlement inquiry: ‘(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' of the requested documents.” Id. (quoting Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)). While “[n]o one factor is dispositive, ” “if the Government's position is correct as a matter of law, that will be dispositive.” Davy v. CIA (Davy II), 550 F.3d 1155, 1162 (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.

         If the plaintiff has established eligibility and entitlement, the plaintiff must then establish the reasonableness of the calculation in its fee request. See Covington, 57 F.3d at 1107-08. The reasonableness determination involves three parts: “(1) determination of the number of hours reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or ‘lodestar'; and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517 (D.C. Cir. 1988) (citation omitted). The plaintiff must submit evidence regarding “the attorneys' billing practices; the attorneys' skill, experience, and reputation; and the prevailing market rates in the relevant community.” Covington, 57 F.3d at 1107. The reasonable hourly rate is most commonly determined by the Laffey Matrix, which “sets out a general guideline for awarding attorneys' fees based on experience . . . adjusted for inflation.” Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015). Provided that the plaintiff has submitted the required information, the presumption is that the number of hours billed and the hourly rates are reasonable. Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C. 2010) (citing Blackman v. District of Columbia, 677 F.Supp.2d 169, 172 (D.C. Cir. 2010)). The burden then shifts to the defendant to “provide specific contrary evidence tending to show that a lower rate would be appropriate.” Covington, 57 F.3d at 1109-10 (internal quotations omitted).


         The defendants challenge the plaintiff's fee request on the grounds that he is not entitled to fees and that the fee request is excessive. These issues are considered in turn below.

         A. The Plaintiff Is Eligible for Fees from OIG but Not from ATF

         The plaintiff contends he is eligible for fees from both defendants because “neither OIG nor BATFE produced any documents prior to the filing of the Complaint.” Pl.'s Mot. at 3. While the plaintiff's assertion about the timing of production is correct, this fact is not dispositive of his eligibility for attorneys' fees. As the D.C. Circuit has made clear, in the context of FOIA attorneys' fees, “the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation.” Weisberg, 745 F.2d at 1496. When the plaintiff advances a catalyst theory to establish eligibility for FOIA attorneys' fees, “the focus is highly contextual on what occurred in the lawsuit at issue, including consideration of ...

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