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American Oversight v. Department of Justice and Federal Bureau of Investigation

United States District Court, District of Columbia

March 25, 2019

AMERICAN OVERSIGHT, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE and FEDERAL BUREAU OF INVESTIGATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         On 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 period.

         On 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.

         At the 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.

         On July 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.

         The 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.

         The 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.

         On 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.

         Plaintiffs 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.

         II. ANALYSIS

         Under 5 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 (D.D.C. 2016).

         A. Eligibility

         American 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.”[1] 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.

         Plaintiff 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.

         A FOIA 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. 2017).

         Defendants' 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.

         As a 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).

         Defendants' 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.”).

         Understood 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, ...


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