United States District Court, District of Columbia
ANNE BARTON, et al. Plaintiffs,
U.S. GEOLOGICAL SURVEY, et al. Defendants.
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
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.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.
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.
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
(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]
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).
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.
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.
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].
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.
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]
“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.
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.
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.
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. 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.
â¢ 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”).
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, ...