United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
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. 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.
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
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.
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.
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.
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, id. ¶ 10, and
on December 24, 2015 the matter was again remanded to ICE
FOIA to reprocess the request. Id. ¶ 11.
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.
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.
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.
“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.” Brayton, 641 F.3d
at 524, citing Judicial Watch, 470 F.3d at 369
(emphasis in original).
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 ...