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Barton v. U.S. Geological Survey

United States District Court, District of Columbia

September 29, 2019

ANNE BARTON, et al. Plaintiffs,
v.
U.S. GEOLOGICAL SURVEY, et al. Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE.

         Plaintiffs Anne Barton, Carol Grunewald, and Mary Rowse have filed a motion for an award of attorneys' fees and costs pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E)(i). Pls.' Application for Attys.' Fees & Costs [Dkt. # 20] (“Pls.' Mot.”). Plaintiffs seek an award of $78, 020.00 for attorneys' fees related to the underlying FOIA suit, plus $26, 928.00 in fee litigation, and $2, 097.31 in costs. Pls.' Mot. at 24; Pls.' Reply to Defs.' Resp. to Pl.'s Mot. [Dkt. # 28] (“Pls.' Reply”) at 11. In total, plaintiffs request a $105, 619.81 award.[1]See Pls.' Mot. at 24; Pls.' Reply at 11. Defendants U.S. Geological Survey and the U.S. Department of the Interior concede that plaintiffs are eligible for and entitled to attorneys' fees, but they maintain that the amount sought is unreasonable. Defs.' Resp. to Pls.' Mot. [Dkt. # 27] (“Defs.' Opp.”) at 1.

         Upon consideration of plaintiffs' motion, their exhibits, the pleadings, and the relevant legal authorities, the Court grants in part and denies in part plaintiffs' motion for attorneys' fees and costs.

         BACKGROUND

         Plaintiffs are D.C. residents who oppose the practice adopted by the National Park Service (“NPS” or “Park Service”) of killing white-tailed deer in Rock Creek Park. Compl. [Dkt. # 1] ¶ 1. Between 2001 and 2014, defendant U.S. Geological Survey (“USGS”), a federal agency within the Department of Interior, conducted scientific research on the impact of the deer on the park's vegetation. Id. ¶¶ 2, 11-12. That research was summarized in a report drafted by Ms. Cairn Kraft and Dr. Jeff Hatfield (“Kraft Report”) which the Park Service relied on to conclude that the deer population was interfering with the forest's ability to regenerate and should be managed. Id. ¶ 11. On December 16, 2016, plaintiffs submitted a FOIA request to USGS and the Department of Interior seeking the scientific data and analysis cited in the report, specifically:

(a) the completed statistical analysis;
(b) the draft report;
(c) the final report that was submitted to the NPS;
(d) all of the raw data upon which the statistical analysis is based;
(e) all peer review responses concerning this report; and (f) any and all other documents concerning the particular statistical analysis referenced [in the report]

Ex. F to Pls.' Mot. for Summ. J. [Dkt. # 14-9] (“FOIA Request”).

         Defendants responded to the FOIA Request on February 9, 2017 by turning over 238 pages related to Items (b) through (e) of the request. Decl. of Brian May [Dkt. # 12-2] (“May Decl.”) ¶ 23. They withheld 2, 447 pages responsive to Items (a) through (f) based on FOIA Exemption 5. Id.; see 5 U.S.C. § 552(b)(5).

         Plaintiffs filed an administrative appeal on March 31, 2017, arguing that Exemption 5 did not apply to the withheld materials. Ex. Q to Pls.' Mot. for Summ. J. [Dkt. # 14-17] (“FOIA Appeal”) at 2. After receiving no response within the twenty-day statutory window, plaintiffs filed this action on June 16, 2017. Compl. ¶ 2; Pls.' Mem. in Opp. to Defs.' Mot. for Summ. J. [Dkt. # 15] (“Pls.' Opp.”) at 23.

         Defendants maintain that they never received plaintiffs' appeal, see May Decl. ¶ 25, but nevertheless, they conducted another review of the withheld information. Defs.' Status Report [Dkt. # 8] ¶ 2. On November 8, 2017, USGS released an additional 2, 447 pages of records. Ex. R to Pls.' Cross-Mot. for Summ. J. [Dkt. # 14-18]. While this release contained “all of the raw data collected by the scientists, ” the defendants “continued to withhold other information, including peer review comments on the ‘draft' report, and the vast majority of both the Final and Draft Reports.” Pls.' Opp. at 16.

         Thereafter, plaintiffs decided to limit the issues to be litigated to the Final Report and Draft Reports, Ex. V to Pls.' Cross-Mot. for Summ. J. [Dkt. # 14-22], and the parties agreed to a briefing schedule for their motions for summary judgment. On February 14, 2018, defendants filed a motion for summary judgment, arguing that the Final Report and Draft Reports were exempt under FOIA Exemption 5. Defs.' Mot. for Summ. J. [Dkt. # 12] at 1. Plaintiffs opposed that motion and cross-moved for summary judgment on March 30, 2018. Pls.' Cross-Mot. for Summ. J. [Dkt. # 14].

         On April 30, 2018, defendants reversed their position and determined it was no longer necessary to withhold the Final and Draft Reports. Joint Status Report [Dkt. # 16] ¶ 3. They agreed to release the documents in full to plaintiffs. Id. Once the motions for summary judgment became moot, the parties turned their attention to attorneys' fees. Id. at ¶¶ 3-4.

         Plaintiffs filed the pending motion for attorneys' fees and costs on September 26, 2018. see Pls.' Mot., defendants submitted an opposition, see Defs.' Opp., and plaintiffs filed a reply on April 9, 2019. Pls.' Reply. Plaintiffs subsequently filed a Notice of Supplemental Authority. Pls.' Notice of Suppl. Authority [Dkt. # 29] (“Pls.' Suppl.”).

         ANALYSIS

         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 first show that he is eligible, and second, that he 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). Here, defendants agree that the plaintiffs are both eligible and entitled to a fee award. Defs.' Opp. at 1.

         The Court must then determine whether the requested award is reasonable. See 5 U.S.C. § 552(a)(4)(E)(i) (providing for “reasonable attorney fees and other litigation costs”) (emphasis added). The usual method for determining a reasonable award is to calculate the “lodestar” amount, which is found by multiplying “the hours reasonably expended in the litigation by a reasonable hourly fee.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). The Court has broad discretion in determining an appropriate fee award, and it may modify the request based on the reasonableness of the desired amount and the facts of the case. Conservation Force v. Jewell, 160 F.Supp.3d 194, 203 (D.D.C. 2016), citing Judicial Watch, 470 F.3d at 369.

         A plaintiff bears the burden of establishing both the reasonableness of the hourly rate and the reasonableness of the number of hours spent on a particular task. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015), citing Covington v. District of Columbia, 57 F.3d 1101, 1107- 08 (D.C. Cir. 1995). To show the reasonableness of the hourly rates, a plaintiff must submit evidence related to: (1) “the attorneys' billing practices”; (2) “the attorneys' skill, experience, and reputation”; and (3) “the prevailing market rates in the relevant community.” Covington, 57 F.3d at 1107. To show the reasonableness of hours spent on a task, a plaintiff must submit a “sufficiently detailed [invoice] to permit the District Court to make an independent determination whether or not the hours claimed are justified.” Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). Once the plaintiff has met his burden, the number of hours and rate are presumed reasonable, and the burden then shifts to the defendant to rebut the requested rate with “equally specific countervailing evidence.” Covington, 57 F.3d at 1109-10, quoting Nat'l Ass'n of Concerned Veterans, 675 F.2d at 1326.

         In total, plaintiffs seek an award of $105, 619.81, itemized as $78, 020 in attorneys' fees related to the underlying FOIA suit, $26, 928.00 for fee litigation, and $2, 097.31 in costs.[2] See Pls.' Mot. at 24; Pls.' Reply at 11. In support of their fee petition, plaintiffs submitted time records for two attorneys and a law clerk, billed at the following rates:

• Katherine A. Meyer: 78.71 hours at $865 per hour.
• Elizabeth Lewis: 23.5 hours at $358 per hour.
• Brieanah Schwartz: 7.81 hours at $195 per hour.

See Pls.' Mot. at 23; Attach. 1 to Ex. 6 of Pls.' Mot. [Dkt. # 20-6] (“Time Records”); Attach. 2 to Ex. 6 of Pls.' Mot. [Dkt. # 20-6] (“LSI Laffey Matrix”).

         Defendants maintain that plaintiffs' requested award is unreasonable because it: “(1) is based on unreasonably high hourly rates, (2) seeks payment for administrative and ministerial tasks at an excessive rate, (3) seeks fees for tasks that were not reasonably necessary to the litigation, (4) seeks payment for tasks that were duplicative or excessive, and (5) seeks an excessive amount for this fee litigation.” Defs.' Opp. at 3. Defendants do not challenge plaintiffs' requested reimbursement of $2, 097.31 for costs. Id. at 2 n.2. In total, ...


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