United States District Court, District of Columbia
BERMAN JACKSON, United States District Judge
Cornucopia Institute (“Cornucopia”) has filed a
motion for an award of attorneys' fees and costs pursuant
to Federal Rule of Civil Procedure 54(d) and the Freedom of
Information Act (“FOIA”), 5 U.S.C. §
552(a)(4)(E)(i). Pl.'s Mot. for Attys.' Fees &
Costs [Dkt. # 14] (Pl.'s Mot.”). Plaintiff seeks an
award of $41, 543.65 in attorneys' fees and $422.08 in
costs, for a total of $41, 965.73. Pl.'s Reply in Supp.
of Pl.'s Mot. [Dkt. # 17] (“Pl.'s Reply”)
at 12-13. Defendant Agricultural Marketing Service maintains
that plaintiff is neither eligible for nor entitled to a fee
award under FOIA, and that the amount plaintiff seeks is
unreasonable. Def.'s Opp. to Pl.'s Mot. [Dkt. # 16]
(“Def.'s Opp.”) at 1.
Court finds that plaintiff is eligible for and entitled to
some fee award under FOIA. But because the portion of
“fees-on-fees” work greatly exceeds the time
spent on the merits of the underlying FOIA litigation, and
because the litigation over a relatively narrow set of
materials was uncomplicated and quickly resolved, the Court
will grant $9, 723.75 for attorneys' fees, $2, 000.00 for
fees-on-fees, and $422.08 in costs for a total of $12,
Cornucopia is a non-profit organization with a “strong
interest in ensuring the integrity of our nation's
organic certification process.” Decl. of Will Fantle
[Dkt. # 14-3] (“Fantle Decl.”) ¶ 5.
Defendant, Agricultural Marketing Service
(“AMS”), is a federal agency within the United
States Department of Agriculture (“USDA”) that
administers the National Organic Program, which develops
national standards for organic agricultural products.
Def.'s Opp. at 1.
April 4, 2016, USDA announced five vacancies on the National
Organic Standards Board (“Board”), a 15-member
board that advises the Secretary of Agriculture on organic
policy and standards. Fantle Decl. ¶ 10. AMS oversees
the Board. On June 10, 2016, plaintiff sent a FOIA request to
AMS for “all applications submitted for vacancies open
on the National Organic Standards Board (NOSB) as announced
on April 4, 2016 by the USDA.” Ex. 7 to Fantle Decl.
[Dkt. # 14-3] (“FOIA Request”).
replied on July 11, 2016, that it had identified 671 pages of
responsive records but that “all of these documents
[were] being withheld in their entirety pursuant to FOIA
Exemptions (b)(5) and (b)(6).” Ex. 8 to Fantle Decl.
[Dkt. # 14-3] (“Initial Response”). The agency
explained that Exemption (b)(5) protects
“pre-decisional and/or deliberative” records
which are “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other
than in litigation with the agency.” Id.,
quoting 5 U.S.C. § 552(b)(5). Because “the
requested applications [were] still under review within USDA,
” defendant argued that Exemption (b)(5) was
applicable. Id. The agency also asserted that the
information was protected under Exemption (b)(6) because the
requested applications contained information similar to
personnel information, and disclosure “would constitute
a clearly unwarranted invasion of personal privacy.”
Id., 5 U.S.C. § 552(b)(6).
administratively appealed the agency's decision on August
3, 2016, arguing that “the USDA AMS [had] improperly
applied FOIA exemptions (b)(5) and (b)(6) in an overly broad
manner” in violation of “FOIA's express
segregability requirement.” Ex. 1 to Decl. of Gregory
Bridges [Dkt. # 16-2] (“Pl.'s Admin.
Appeal”). On September 2, 2016, the agency denied
plaintiff's appeal, affirming its use of Exemption (b)(5)
and (b)(6) and re-stating that the “requested
applications [were] still under review within USDA.”
Ex. 9 to Fantle Decl. [Dkt. # 14-3] (“Final
November 14, 2016, plaintiff filed a complaint with this
Court seeking declaratory and injunctive relief in order to
obtain the records. Compl. [Dkt. # 1]. Two days later, on
November 16, 2016, the USDA issued a press release officially
announcing the appointments of five new members to the Board.
Ex. 2 to Decl. of Gregory Bridges [Dkt. # 16-3] (“USDA
discussions between the parties, defendant concluded on
December 16, 2016, that “Exemption 5 was no longer
applicable” because the recent appointments marked the
end of its application process, and it provided plaintiff
with the responsive records. Def.'s Opp. at 3; Ex. 10 to
Fantle Decl. [Dkt. # 14-3] (“Letter Releasing
Records”). Of the 671 pages produced, 407 pages
contained redactions of personal information (i.e.
“social security numbers, personal email addresses,
residential mailing addresses . . . telephone numbers, birth
dates, places of birth, and other personal information which
pertains to an applicant's personal finances, criminal
history, race, and ethnicity”) pursuant to Exemption 6.
Id. The remaining 264 pages were released in full.
Id. With respect to the five applicants appointed to
the Board, the agency decided to partially waive Exemption 6
in order to release additional personal information regarding
their outside income and judgments against them, because it
concluded that the “public interest in certain
components of their applications outweighed their privacy
interest . . . .” Id.
the initial December 16 production, the parties continued to
have discussions over the release of any remaining responsive
documents. On March 6, 2017, defendant decided to release
additional information. Ex. 11 to Fantle Decl. [Dkt. # 14-3]
(“Letter Releasing More Records”). Specifically,
the agency reversed its position on Exemption 6 and agreed to
unredact the state of residence for each applicant.
Id. Then on March 9, 2017, defendant provided
plaintiff with “several pages” of responsive
records it had inadvertently omitted. Def.'s Opp. at 3.
And on March 29, 2017, at plaintiff's request, defendant
corrected a redaction error on one previously produced page.
Decl. of C. Peter Sorenson [Dkt. # 14-4] (“Sorenson
Decl.”) ¶ 13.
parties notified the Court on April 12, 2017, that “the
release of responsive records [had] been completed” and
requested a stay until May 12, 2017, “to complete their
discussion regarding reasonable fees and costs.” Joint
Mot. to Stay [Dkt. # 8] (“Mot. to Stay”). There
was no briefing in this case following plaintiff's
complaint due to the willingness of the parties to resolve
the FOIA dispute among themselves.
14, 2017, the case was referred to a Magistrate Judge to
conduct mediation concerning attorneys' fees and costs.
The parties were unable to reach an agreement, so on August
18, 2017, plaintiff filed the pending motion for
attorneys' fees. Pl.'s Mot. Defendant filed its
response on September 20, ...