United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff American
Oversight's motion for attorneys' fees. Dkt. 23. In
2017, American Oversight submitted two requests to the
Federal Bureau of Investigation (“FBI”) under the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, seeking (1) records relating to Attorney General
Jeff Sessions's disclosure of any contacts with Russian
officials in connection with his security clearance process
(“the Sessions request”) and (2) documents
relating to reported communications between White House Chief
of Staff Reince Priebus and the FBI regarding press reports
of contacts between Russian nationals and individuals
associated with the Trump campaign (“the Priebus
request”). Both requests were resolved without any
substantive motions practice. American Oversight has now
moved for an award of attorneys' fees pursuant to 5
U.S.C. § 552(a)(4)(E). See Dkt. 23. For the
reasons explained below, the Court concludes that American
Oversight is both eligible and entitled to an award of
attorneys' fees. But, in light of the modest amount of
work needed to achieve the result that American Oversight
sought, its fee request is excessive and must be reduced. The
Court will therefore GRANT in part and
DENY in part American Oversight's motion
for attorneys' fees.
March 9, 2017, Plaintiff submitted a four-part FOIA request
to the FBI seeking “all communications” exchanged
between the FBI and then-White House Chief of Staff Reince
Priebus, any news media, or any member of Congress or
congressional staff regarding reports of “an FBI
investigation dating back to summer 2016 into affiliations
between then-candidate Donald J. Trump (and his associates)
and Russians known to intelligence officials.” Dkt. 1
at 5 (Compl. ¶ 26). Less than two weeks later, on March
20, 2017, American Oversight submitted a second request,
seeking “[a] copy of the Standard Form 86 (SF-86) form
prepared by or on behalf of” then-Attorney General Jeff
Sessions “in connection with his security clearance or
background investigation for his appointment to the position
of United States Attorney General.” Id. at 7
(Compl. ¶ 36(1)). Plaintiff clarified that it sought
“only the information contained in Section 20B.6 of the
SF-86 form relating to contacts with any official of the
Russian government” and that it had “no objection
to the redaction of any other personal information contained
in Mr. Session's SF-86 aside from Mr. Sessions's
name, the signature line, signature date, and any disclosures
regarding contacts with any official of the Russian
government.” Id. That request also sought
“[a] copy of any interview notes or summary prepared
during the course of Mr. Sessions's background check,
” again stating that it did not oppose “the
redaction of any other personal information regarding Mr.
Sessions contained in the background interview notes or
summaries aside from any disclosures regarding contacts with
any official of the Russian government, the date of the
interview, and the name of the interview subject.”
Id. (Compl. ¶ 36(2)). American Oversight
requested expedited processing for both the Priebus request
and the Sessions request. Id. at 5, 7 (Compl.
¶¶ 27, 37). The FBI acknowledged receipt of both,
see Dkt. 24-2 at 9, 23, but did not otherwise
respond to the requests within the 20-day statutory time
April 19, 2017, Plaintiff initiated this lawsuit, seeking
declaratory and injunctive relief requiring the FBI to
produce all non-exempt records responsive to both requests.
See Dkt. 1. (Compl.) Defendants filed an Answer on
May 24, 2017, noting that FBI had granted expedited
processing of the Priebus request on April 18, 2017, and of
the Sessions request on May 4, 2017. Dkt. 8 at 4, 5 (Answer
¶¶ 30, 40). That same day, the Court set an initial
status conference for June 12, 2017, “to discuss the
schedule for further proceedings in this matter.” May
24, 2017 Minute Order.
initial conference on June 12, 2017, counsel for Plaintiff
agreed that, because the FBI had since granted expedited
processing on both requests, Counts I and IV of the Complaint
were moot. See Dkt. 19 at 2 (June 12, 2017 Hrg.
Trans.). The Court then heard from the parties regarding
schedules for processing, producing, and potentially
challenging both the Priebus and Sessions requests. American
Oversight requested that productions related to the Priebus
request “begin on a rolling basis on July 12th with
final production by August 11th.” Id. at 3
(June 12, 2017 Hrg. Trans.). Plaintiff further proposed that
Defendants split the Sessions request into two separate
tracks, completing processing and production of the SF-86
form by June 23, 2017 and producing all remaining non-exempt
documents by July 12. See Id. at 3 (June 12, 2017
Hrg. Trans.). Defendants, in turn, represented that the
agency “will have completed all of the searches for the
Priebus request within 30 days, ” or by July 12, and
proposed a schedule based on that date. Id. at 12
(June 12, 2017 Hrg. Trans.). Counsel further represented that
the FBI had located records responsive to Part 1 of the
Sessions request-that is, the SF-86 form-and proposed that
the agency complete productions on both parts of the request
by July 12, 2017. See Id. at 5, 9 (June 12, 2017
Hrg. Trans.). Following that scheduling conference, the Court
ordered that (1) Defendants “shall” produce all
non-exempt records responsive to the Sessions Request by July
12; (2) Defendants “shall” complete searches for
records responsive to the Priebus Request by July 12; and (3)
the parties must appear for a further status conference on
July 13, 2017. See June 12, 2017 Minute Order.
12, 2017-the date of production ordered by the Court-the
parties exchanged multiple emails regarding the timing of the
FBI's production of records related to the Sessions
request. See Dkt. 23-1 at 2-3 (Cafasso Decl.
¶¶ 10-15). Plaintiff's counsel attests that,
over the course of the day, the FBI gave “shifting
representations” regarding the timing of the
forthcoming production and the reasons the records had not
yet been produced. Id. at 3 (Cafasso Decl. ¶
14). The FBI ultimately issued its response to the Sessions
request that evening, withholding a single page in its
entirety pursuant to FOIA exemptions (b)(6), (b)(7)(C), and
(b)(7)(E). See Dkt. 10-1 at 1.
next morning, however, shortly before the Court's status
conference, the FBI, “in consultation with the Attorney
General . . . consented to a discretionary release of this
record” and voluntarily provided Plaintiff with a copy
of the single SF-86 page the agency had withheld.
See Dkt. 11 at 1. At the status conference later
that day, Plaintiff objected to the production of the form
without any “identifiable information on
it”-specifically, without the page containing Mr.
Sessions's name and signature. See Dkt. 20 at 5
(July 13, 2017 Hrg. Trans.). Counsel for Defendants responded
that they had not produced that page because they
“d[id] not read” the original Sessions FOIA
request “to ask for a signature page.”
Id. at 13 (July 13, 2017 Hrg. Trans.). Without
ruling on the issue, the Court suggested-purely as a matter
of efficiency- that Defendants “see if [the signature
page] can simply be produced, ” so that “the
issue [could] go away” without further briefing.
Id. at 16 (July 13, 2017 Hrg. Trans.). The Court
made clear, however, that should an issue arise regarding the
signature page, the Court would resolve it at a later date.
Id. (July 13, 2017 Hrg. Trans.). The parties also
represented that they would confer to narrow the Priebus
request, which had generated more than 8, 300 potentially
responsive documents. Id. at 3 (July 13, 2017 Hrg.
Trans.). Following the July 13 hearing, the Court issued a
Minute Entry setting a further status conference for August
14, 2017. See July 13, 2017, Minute Entry.
parties returned to the Court for a final status conference
the next month. At that status conference, Plaintiff
confirmed that the Department of Justice had produced the
signature page of the SF-86 form on August 1 and,
accordingly, American Oversight “[didn't] see any
additional issues with the Sessions request.” Dkt. 21
at 3 (Aug. 14, 2017 Hrg. Trans.). Plaintiff's counsel
also informed the Court that Defendants had produced
“four pages responsive to item number four [of the
Priebus request] . . . and [had indicated] that there were no
records responsive to item one” of the Priebus request.
Id. (Aug. 14, 2017 Hrg. Trans.). Plaintiff further
explained that “the parties [were] very, very close to
[agreeing on] a production schedule” with respect to
Parts 2 and 3 of the Priebus request, having “agreed to
a 90-day production with an interim production at 45
days” but with “one remaining issue” for
the Court to decide. Id. (Aug. 14, 2017 Hrg.
Trans.). Plaintiff asked the Court to order that Defendants
process and produce half of the records potentially
responsive to the remaining two parts of the Priebus request
within 45 days, and Defendants asked that they be allowed to
complete an interim production of unspecified size within 45
days. Id. at 4-5 (Aug. 14, 2017 Hrg. Trans.).
Following the status conference, the Court issued a Minute
Entry, ordering that Defendants “shall make an interim
production on or before [September 28, 2017], with completion
of production by [November 13, 2017]” and that the
parties should submit a further status report “by
[November 21, 2017], which shall include a joint proposed
schedule for briefing, if there are outstanding issues to be
resolved.” See Aug. 14, 2017 Minute Entry.
September 28, 2017, Defendants produced to Plaintiff all
remaining non-exempt records responsive to Parts 2 and 3 of
the Priebus request, totaling 239 pages in full or with
partial redactions, and a single withheld duplicate page.
See Dkt. 13. On November 21, 2017, the parties
submitted a joint status report informing the Court that no
further substantive briefing would be required in this case.
See Dkt. 14.
now seek an award of “reasonable attorneys' fees
and costs” in the amount of $24, 092.94 in
attorneys' fees, $8, 252.42 in “fees-on-fees,
” $474.04 in costs, and $295.65 in supplemental costs.
Dkt. 25 at 30; see also Dkt. 23. As explained below,
the Court concludes that American Oversight is both eligible
and entitled to an award of attorney's fees. The Court,
however, will reduce the total amount of the award that
American Oversight seeks, and will therefore GRANT in part
and DENY in part its motion for attorneys' fees.
U.S.C. § 552(a)(4)(E)(i), the Court “may assess .
. . reasonable attorney fees and other litigation costs
reasonably incurred” by a FOIA plaintiff that
“has substantially prevailed.” The test for an
award of fees “has two components: eligibility and
entitlement.” Gerhard v. Fed. Bureau of
Prisons, 258 F.Supp.3d 159, 165 (D.D.C. 2017).
“The eligibility prong asks whether a plaintiff has
‘substantially prevailed' and thus ‘may'
receive fees.” Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)
(citation omitted). “If so, the court proceeds to the
entitlement prong and considers a variety of factors to
determine whether the plaintiff should receive
fees.” Id. (emphasis in original) (citation
omitted). “To obtain attorneys' fees under FOIA, a
plaintiff must satisfy” both prongs of the test.
McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707,
710 (D.C. Cir. 2014). Moreover, if the plaintiff demonstrates
that he or she is both eligible for and entitled to fees, he
or she must demonstrate that the award sought is
“reasonable.” See 5 U.S.C. §
522(a)(4)(E)(i); see also Elec. Privacy Info. Ctr. v.
Dep't of Homeland Sec., 197 F.Supp.3d 290, 293-94
Oversight may establish that it “has substantially
prevailed” by showing that it “obtained relief
through either . . . a judicial order. . . [or] a voluntary
or unilateral change in position by the agency.” 5
U.S.C. § 552(a)(4)(E)(ii). The first approach-“a
judicial order”- applies to cases in which there is a
“judicially sanctioned change in the legal relationship
between the parties.” Davy v. CIA, 456 F.3d
162, 166 (D.C. Cir. 2006) (“Davy I”)
(quoting Edmonds v. FBI, 417 F.3d 1319, 1322-23
(D.C. Cir. 2005)). The second approach-a voluntary change in
position-codifies the so-called “catalyst theory,
” which asks whether the “litigation
substantially caused the requested records to be
released.” N.Y.C. Apparel F.Z.E. v. U.S. Customs
and Border Prot. Bureau, 563 F.Supp.2d 217, 221 (D.D.C.
2008) (citations omitted); see also Brayton, 641
F.3d at 524-25. Whether faced with claims that a plaintiff
prevailed through a judicial order or the catalyst theory,
however, “[t]he question of whether a litigant
substantially prevailed is one of fact.” Weisberg
v. U.S. Dep't of Justice, 848 F.2d 1265, 1268 (D.C.
Cir. 1988), overruled on other grounds by King v.
Palmer, 950 F.2d 771 (D.C. Cir. 1991). American
Oversight contends that it is eligible for a fee award
pursuant to either a judicial order or the catalyst theory.
Because the Court agrees that Plaintiff prevailed, at least
in part, based on a court order with respect to both the
Sessions and Priebus requests, it need not address whether
the instant litigation was a catalyst to the production and
voluntary disclosure of the records at issue.
points to the Court's minute orders on June 12 and August
14, 2017 as “judicial order[s]” within the
meaning of 5 U.S.C. § 552(a)(4)(E)(ii). According to
American Oversight, “[t]his Court's orders required
Defendants to timely process and produce non-exempt records
in response to Plaintiff's FOIA requests by specific
dates, and Defendants consequently produced these non-exempt
records on the schedule ordered by the Court.” Dkt. 23
at 11. The Court agrees.
plaintiff “may be considered [a] prevailing
part[y]” for purposes of attorneys' fees “if
they succeed on any significant issue in litigation [that]
achieves some of the benefit [the plaintiff] sought in
bringing the suit.” Edmonds, 417 F.3d at
1326-27 (quoting Farrar v. Hobby, 506 U.S. 103, 109
(1992)). Where the “benefit. . . sought” includes
the production of records, a judicial order requiring
disclosure can qualify as “relief” sufficient for
a party to “substantially prevail” under 5 U.S.C.
§ 552(a)(4)(E)(ii). Indeed, “the D.C. Circuit has
at least thrice held that a judicial order requiring
disclosure renders a plaintiff eligible for a fee
award.” Elec. Privacy Info. Ctr. v. United States
Drug Enf't Admin., 266 F.Supp.3d 162, 167-68 (D.D.C.
principal argument is that “American Oversight did not
‘substantially prevail' within the meaning of the
FOIA fees provision” because all of the minute orders
entered by the Court “resulted in the Court's
approval of the processing schedules Defendants were already
employing for both of [American Oversight's] FOIA
requests.” Dkt. 24 at 13. For support, Defendants rely
on the declaration by David Hardy, Section Chief of the
Record/Information Dissemination Section of the FBI, averring
that “the FBI had already begun working on both
requests at the time Plaintiff filed suit.” Dkt. 24-1
at 5 (Hardy Decl. ¶ 14). As a result, Defendants argue,
American Oversight “has not demonstrated that, had it
simply allowed Defendants to continue processing its request,
. . . Defendants would not have completed their processing of
the Sessions [r]equest by July 12 and their searches for the
Priebus [r]equest by the same date.” Dkt. 24 at 16.
threshold matter, even if Defendants were already
“processing” the records, nothing in the Hardy
declaration suggests that the FBI planned to produce the
relevant records on the same timeline as the one adopted by
the Court, absent this litigation. But, more importantly,
Plaintiff could still satisfy the judicial-order requirement
by showing that the Court issued an order adopting an
existing production schedule. The D.C. Circuit has explained
that, once a judicial order requires the “timely
production of nonexempt documents” by an agency, any
subsequent production “could no longer be described as
a voluntary change” in the agency's conduct-and the
order thus constitutes a “judicially sanctioned change
in the legal relationship between the parties.”
Davy I, 456 F.3d at 166 (internal quotations
omitted). In Davy I, for example, the parties
entered into a joint stipulation agreeing to a mutually
acceptable schedule for production, which the court then
“memorialized” in an order. Id. at 164.
The D.C. Circuit explained that, even though the parties had
previously consented to the schedule, the court's order
constituted a “judicially sanctioned change in the
legal relationship between the parties” because, up
until the court entered the order, “the [agency] was
not under any judicial direction to produce documents by
specific dates, ” but once the court issued the order,
the agency was required to comply on pain of contempt.
Id. at 166. Put differently, “the order
memorializing the agreement created the necessary judicial
imprimatur for plaintiffs to be a prevailing
party.” Campaign for Responsible Transplantation v.
Food & Drug Admin., 511 F.3d 187, 197 (D.C. Cir.
2007); see also Judicial Watch, Inc. v. FBI, 522
F.3d 364, 368-70 (D.C. Cir. 2008) (surveying cases
reaffirming Davy I).
contention that the Court “adopted in full DOJ's
processing proposal, ” Dkt. 24 at 15, is therefore
“besides the point.” Campaign for Responsible
Transplantation, 511 F.3d at 197. Regardless of who
proposed the schedule, “[o]nce an order has been
adopted by the court, requiring the agency to release
documents, the legal relationship between the parties
changes.” Id. (emphasis in original); see
also Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep't of Justice, 820 F.Supp.2d 39, 44 (D.D.C.
2011) (concluding that whether a “Scheduling Order
adopted the schedule that [Defendants] had proposed (as
opposed to Plaintiff's proposed schedule) . . . is a
distinction without a difference.”).
in this light, the Court's June 12 and August 14, 2017
minute orders qualify as “judicial orders” within
the meaning of the FOIA fees provision. Like the order in
Davy I, this Court's orders “(1) contain
mandatory language . . .; (2) [are both] entitled an
‘ORDER'; and (3) bear the district judge's
signature, not those of the parties' counsel, ” 456
F.3d at 166, and set concrete dates for production,
see June 12, 2017 Minute Order (“Defendants
shall produce any responsive documents that are not subject
to a FOIA exception or exemption on or before July 12,
2017.”) (Sessions request); Aug. 14 Minute Entry (FBI
“shall make an interim production on or before
[September 28, 2017], with completion of production by
[November 13, 2017].”) (Priebus request). Both orders,