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Coffey v. Bureau of Land Management

United States District Court, District of Columbia

June 14, 2018




         Although the parties to this Freedom of Information Act litigation may have declared an armistice concerning the release of documents and the refunding of search fees, no final peace treaty has been signed. Indeed, the new battleground is attorney fees. While the Government does not contest Plaintiff Debbie Coffey's eligibility or entitlement to such fees - or the hourly rate sought - it believes that the number of hours listed is both insufficiently detailed and excessive. As the Court concurs in part, it will grant Plaintiff's Motion for Attorney Fees, but reduce the amount sought from $125, 541 to $69, 019.

         I. Background

         Since the prior Opinion details the full background of this suit, see Coffey v. Bureau of Land Mgmt., 249 F.Supp.3d 488, 491-94 (D.D.C. 2017), the Court will recount here only the facts relevant to the pending Motion. Plaintiff filed her Complaint in March 2016, alleging that the Bureau of Land Management had not adequately responded to her FOIA requests for information related to its Wild Horse and Burro Program. See ECF No. 1. In subsequently ruling on the parties' cross-motions for summary judgment, the Court determined in April 2017 that BLM had not conducted a sufficient search for documents. Coffey, 249 F.Supp.3d at 499- 500. The Court later issued a Minute Order on May 5 of that year requiring Defendant to “conduct a new search and release any non-exempt responsive records on or before June 28, 2017, ” which deadline was subsequently extended to July 26, 2017. See Minute Order of June 29, 2017. Five months later, after Coffey had reviewed the records ultimately released, the parties submitted a Joint Status Report indicating that “all substantive issues of this FOIA action have been fully resolved.” ECF No. 28 at 1. That left only the question of fees. Plaintiff seeks a total of $125, 541, which includes fees for the underlying litigation, as well as “fees on fees” for the briefing of her fee petition.

         II. Legal Standard

         This Court has previously explained the legal standard at play in FOIA fee litigation:

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); see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee ‘eligibility' and fee ‘entitlement.'” Brayton, 641 F.3d at 524 (citing Judicial Watch, Inc. v. Dep't of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). The Court, therefore, first decides whether [Plaintiff] AIC has “substantially prevailed” and is therefore “eligible” to receive fees. See id.; Judicial Watch, 470 F.3d at 368; Negley v. FBI, 818 F.Supp.2d 69, 73 (D.D.C. Oct. 11, 2011). If so, the Court must then “consider[] a variety of factors” to determine whether it is “entitled” to fees. Brayton, 641 F.3d at 524-25; Judicial Watch, 470 F.3d at 369; Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008). Put another way, the Court will first determine whether AIC may receive fees; if so, it will then decide whether it should receive them. See Brayton, 641 F.3d at 524. Finally, upon determining that AIC is both eligible and entitled to fees, the Court must “analyze whether the amount of the fee request is reasonable.” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. (EPIC I), 811 F.Supp.2d 216, 237 (D.D.C. 2011).

Am. Immigration Council v. U.S. Dep't of Homeland Security, 82 F.Supp.3d 396, 402 (D.D.C. 2015).

         III. Analysis

         Fortunately for the reader, the Court need spend little time on most of these issues, as the parties do not dispute them. More specifically, BLM concedes that Coffey is both eligible and entitled to obtain fees here. See Opp. at 1. In moving next to the amount sought, the Court acknowledges that the “usual method of calculating reasonable attorney's fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar' amount.” Bd. of Trs. of Hotel and Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986)). Once again, amity prevails on the issue of the appropriate hourly fee, as the Government does not challenge the rates Coffey submits. See ECF No. 35 (Notice) at 1. What is left? The question of time. Or, to put it less philosophically, the propriety of the number of hours expended.

         In asserting that Plaintiff has overreached here, BLM cites several specific points, concluding with a broader argument that much of the time spent was excessive. The Court, too, will start with the specific and move to the general.

         Defendant first complains of insufficiently detailed time records and, more specifically, several examples of block billing. See Opp. at 10-11. While block billing is certainly disfavored, the three selected entries deal with minimal time periods (.2, .2, and .6 hours) and typically conflate but two tasks; as a result, the Court “declines . . . to engage in the kind of nitpicking invited by [such] smaller-scale objections.” AIC, 82 F.Supp.3d at 411 (citation and internal quotation marks omitted).

         BLM next points to certain entries that do not seem appropriate - for example, ones that describe tasks that relate to filings that occurred earlier than the entry - and thus call into question the contemporaneity of counsel's timekeeping. See Opp. at 12-13. In the Second Supplemental Declaration of C. Peter Sorensen, attached to Plaintiff's Reply, Coffey's counsel acknowledges some inadvertent errors and deducts them from a recalculation of the fees sought. See ECF No. 37-1 at 3-5. In fact, the amount claimed for the litigation and the initial fees Motion dropped by about $9, 000 from approximately $115, 000 to $106, 000. The Court does not infer from these isolated mistakes that counsel's timekeeping was generally not contemporaneous.

         On a related note, the Government contends that counsel cannot recover fees for tasks related to timekeeping itself. See Opp. at 14 (citing EPIC v. U.S. Dep't of Homeland Security, 218 F.Supp.3d 27, 52 (D.D.C. 2016) (“EPIC had an ongoing duty throughout the litigation to maintain an accurate record of its time, which means these activities were either duplicative of work already performed or enlarged because it was performed so late in the litigation.”)). As Coffey never responds, the Court could treat the point as conceded. Even absent such concession, the Court agrees that a reduction in the timekeeping entries is ...

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