United States District Court, District of Columbia
DAVID T. HARDY, Plaintiff,
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al., Defendants.
A. HOWELL UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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.
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.
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.
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.
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).
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.
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.
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).
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
The Plaintiff Is Eligible for Fees from OIG but Not from
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 ...