American Oversight v. U.S. Dep't of Justice, Civil Action No. 17-727 (RDM)

• Decision Date: 25 March 2019
• Docket Number: Civil Action No. 17-727 (RDM)
• Parties: AMERICAN OVERSIGHT, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE and Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — District of Columbia

375 F.Supp.3d 50

AMERICAN OVERSIGHT, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE and Federal Bureau of Investigation, Defendants.

Civil Action No. 17-727 (RDM)

United States District Court, District of Columbia.

Signed March 25, 2019

Austin Ridgely Evers, Daniel Alexander McGrath, Melanie Togman Sloan, Cerissa Cafasso, American Oversight, Washington, DC, for Plaintiff.

Anjali Motgi, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District JudgeThis 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...