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Brennan Center for Justice v. Department of Homeland Security

United States District Court, District of Columbia

January 22, 2019




         Plaintiff Brennan Center for Justice has filed a motion for an award of attorney's 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 an Award of Atty's Fees & Costs [Dkt. # 25] (“Pl.'s Mot.”). Plaintiff seeks an award of $14, 365.00 in attorney's fees for both the litigation of the merits and the fee application and $400.00 in costs, for a total of $14, 765.00.[1] Pl.'s Reply in Supp. of Pl.'s Mot. [Dkt. # 28] (“Pl.'s Reply”) at 4. Defendant Department of Homeland Security argues that the plaintiff's time records are not sufficiently detailed, and the amount plaintiff seeks is unreasonable because: (1) plaintiff sought fees unrelated to this lawsuit; (2) it applied an incorrect rate for tasks related to filing and serving the complaint; (3) it improperly seeks fees for reviewing the documents provided in response to its FOIA request; and (4) the “fees on fees” are excessive Def.'s Resp. to Pl.'s Mot. [Dkt. # 27] (“Def.'s Resp.”) at 3-5.

         Because plaintiff's review of documents served more than one purpose, and the fees on fees requested is disproportionately high compared to the total hours expended, the Court will reduce the request somewhat and award plaintiff a total of $10, 765.


         Plaintiff Brennan Center for Justice at New York University School of Law “is a nonpartisan law and policy institute that seeks to improve the nation's systems of democracy and justice.” Compl. [Dkt. #1] ¶ 3. Defendant, Department of Homeland Security (“DHS”), is a department of the executive branch of the United States government and encompasses U.S. Immigration and Customs Enforcement (“ICE”). Id. ¶ 4.

         On June 23, 2015, plaintiff sent a FOIA request to ICE, requesting “records relating to the closure of immigration court proceedings on national security grounds pursuant to 8 C.F.R. § 1003.27(d) and the issuance of protective orders on national security grounds pursuant to 8 C.F.R. § 1003.46(a).” Compl. ¶ 5; Def.'s Resp. at 2. The request sought records relating to the number of times the government filed motions seeking to have proceedings closed or protective orders issued. Pl.'s Mot. at 2.

         On July 10, 2015, ICE responded with a letter, stating that the information plaintiff sought was under the purview of the Executive Office for Immigration Review (“EOIR”)-a part of the Department of Justice. Compl. ¶ 6. Plaintiff contacted ICE several times to explain that it had already submitted a FOIA request to EOIR and deliberately sought records from ICE, but ICE informed plaintiff that it had closed the file on plaintiff's request. Id.; Pl.'s Mot. at 2-3. On August 4, 2015, plaintiff filed an administrative appeal asking that ICE conduct a search for documents responsive to its request. Compl. ¶ 7. ICE processed the appeal, and on September 16, 2015, it informed plaintiff that “a new search or, modifications to the existing search, could be made, ” and the matter was remanded to ICE FOIA for processing. Id. ¶ 8.

         On November 10, 2015, defendant informed plaintiff that it had found 106 pages of responsive records. Compl. ¶ 9. Ninety-three of those pages were withheld, pursuant to FOIA Exemptions 5, 6, 7(C), 7(E), and 7(F), while the other thirteen pages were produced in full. Id. On November 16, 2015, plaintiff appealed, arguing that ICE did not conduct an adequate search, [2]id. ¶ 10, and on December 24, 2015 the matter was again remanded to ICE FOIA to reprocess the request. Id. ¶ 11.

         On January 20, 2016 plaintiff received a “final response” from ICE stating that it was producing twenty-seven additional pages with redactions pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). Compl. ¶ 12. Because no motions or orders were produced, plaintiff appealed for a third time on January 21, 2016, and the matter was once again remanded to the agency FOIA office to reprocess the request. Id. ¶¶ 13-14. On June 30, 2016, ICE informed plaintiff that no responsive records were located. Id. ¶ 15. Plaintiff appealed for a fourth time on June 30, 2016. Id. ¶¶ 16- 17.

         Before the fourth appeal was decided, plaintiff filed a complaint against DHS in this Court on August 8, 2016, alleging wrongful withholding of agency records under FOIA. Compl. ¶¶ 19- 22. Defendant answered on October 27, 2016. See generally Ans. [Dkt. # 5]. On November 28, 2016, the parties filed a joint status report informing the Court that after the parties had met and conferred, ICE had identified responsive records and proposed a schedule for production. See Status Report (Nov. 28, 2016) [Dkt. # 7]. In light of this, the Court entered a minute order adopting the parties' proposed schedule. Min. Order (Nov. 29, 2016).

         On June 26, 2017, the parties filed a status report indicating that plaintiff intended to challenge the adequacy of ICE's search and production and proposing a schedule for briefing summary judgment. See Status Report (June 26, 2017) [Dkt. # 11]. The Court adopted that schedule, see Min. Order (June 27, 2017), and the parties submitted summary judgment briefs in the fall of 2017. See generally Def.'s Mot. for Summ. J. [Dkt. # 13]; Pl.'s Cross-Mot. for Summ. J. [Dkt. # 16]. But on March 23, 2018, plaintiff informed the Court that it had decided to forego its challenge to defendant's production. Pl.'s Status Report (Mar. 23, 2018) [Dkt. # 21] (“3/23/18 SR”). The Court denied defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment as moot, see Min. Order (Apr. 17, 2018), and defendant filed a stipulation of dismissal on April 24, 2018. See Stipulation of Dismissal [Dkt. # 23] (“Dismissal Stip.”). The only remaining dispute between the parties is the amount of fees to be awarded.


         Courts “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred” in any FOIA case where “the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). In order to recover fees and costs, a FOIA plaintiff must show first that it is eligible, and second, that it is entitled to such an award. 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). Under the eligibility prong, a court “asks whether a plaintiff has ‘substantially prevailed' and thus ‘may' receive fees.” Id. To substantially prevail, the complainant must show that it has “obtained relief” through either a judicial order or “a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). If the requester is eligible for a fee award, the Court “proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees.”[3] Brayton, 641 F.3d at 524, citing Judicial Watch, 470 F.3d at 369 (emphasis in original).

         Here, defendant does not contest plaintiff's eligibility or entitlement to attorney's fees. Def.'s Resp. at 1. Defendant argues that the award plaintiff seeks is unreasonably high. Id. Thus, the ...

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