Citizens for Responsibilityand Ethics in Wash. v. Fed. Election Comm'n

• Decision Date: 05 September 2014
• Docket Number: Civil Action No. 11–951 CKK
• Citation: 66 F.Supp.3d 134
• Parties: Citizens for Responsibility and Ethics in Washington, Plaintiff, v. Federal Election Commission, Defendant.
• Court: U.S. District Court — District of Columbia

66 F.Supp.3d 134

Citizens for Responsibility and Ethics in Washington, Plaintiff

v.Federal Election Commission, Defendant.

Civil Action No. 11–951 CKK

United States District Court, District of Columbia.

Signed September 5, 2014

Anne L. Weismann, Citizens For Responsibility And Ethics In Washington, Washington, DC, for Plaintiff.

Charles Kitcher, David Brett Kolker, Erin R. Chlopak, Kevin Deeley, Steve Nicholas Hajjar, Federal Election Commission, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

Plaintiff, Citizens for Responsibility and Ethics in Washington (“CREW”), filed a Motion for Attorney Fees which the Court referred to Magistrate Judge John M. Facciola. Pl.'s Mot. Atty. Fees, ECF No. [24]; Order (Nov. 20, 2013), ECF No. [31]. Magistrate Judge Facciola submitted a Report and Recommendation to the Court, recommending that Defendant, Federal Election Commission (“FEC”), pay $139,998.68 in attorney fees and costs in the amount of $500 to CREW. Report & Recomm. (“R & R”), ECF No. [35]. Presently before the Court is the FEC's Objection to the Report and Recommendation.

Def.'s Objs., ECF No. [36]. Upon consideration of the pleadings,¹ the relevant legal authorities, and the record as a whole, the Court finds none of the FEC's objections have merit. Magistrate Judge Facciola's Report and Recommendation is ADOPTED as modified in this Memorandum Opinion, for substantially the same reasons as articulated by Magistrate Judge Facciola. Additionally, the Court has determined that the FEC shall pay CREW an additional $13,260.30 for attorney fees expended by CREW in preparing its response to the FEC's objections to the Report and Recommendation, for a total attorney fee award of $153,258.98 and $500 in costs.

II. BACKGROUND

On May 7, 2011, CREW sent a request pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the FEC via facsimile, which the FEC acknowledged receiving on the following day via e-mail. Pl.'s Mot. at 3. The request was related to communications between three FEC commissioners and individuals and entities outside of the FEC, as well as the calendars and other recordation of meetings and appointments of these commissioners. Pl.'s Mot. at 3. After discussions between the parties, CREW agreed to exclude certain files from the FEC's initial search. Id. CREW specifically reserved the right to revisit the full scope of its request after reviewing the documents that were produced as a result of the initial search. Id.

On May 23, 2011, CREW filed the instant action, asserting that the FEC failed to produce any documents in response to CREW's FOIA request. See Compl., ECF No. [1]. On June 23, 2011, the FEC filed a Motion to Dismiss Or, In the Alternative, for Summary Judgment. Def.'s Mot. to Dismiss, ECF No. [4]. After full briefing, the Court entered an Order on December 30, 2011, granting the FEC's Motion for Summary Judgment and holding that CREW had failed to exhaust administrative remedies. Citizens for Responsibility & Ethics in Wash. v. FEC, 839 F.Supp.2d 17 (D.D.C.2011) (“CREW I ”). CREW filed an appeal. On June 4, 2013, the Court of Appeals for the District of Columbia Circuit (“D.C.Circuit”) reversed the Court's ruling and remanded this matter for further proceedings. Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180 (D.C.Cir.2013) (“CREW II ”). On June 12, 2013, the Court ordered that the parties to file a joint status report. Min. Order (June 12, 2013). After the Court granted two joint motions requesting extensions of time, the parties filed a Stipulation of Dismissal, stipulating that the above-captioned matter be dismissed without prejudice, on August 12, 2013. Jt. Mt. for Ext. of Time, ECF No. [17]; 2d Jt. Mt. for Ext. of Time, ECF No. [20]; Stip. of Dism., ECF No. [21]. On its terms, the stipulation had no effect on CREW's ability to seek attorney fees. Stip. of Dism., ECF No. [21].

CREW subsequently filed a motion seeking $122,813.75 in attorney fees and costs in the amount of $500, which the FEC opposed. The Court referred the matter to Magistrate Judge John M. Facciola who issued a Report and Recommendation on February 12, 2104, recommending that the Court award CREW $139,998.68 in attorney fees and $500 in costs. R & R at 1. Magistrate Judge Facciola explained that the total arrived at in the Report and Recommendation was the result of totaling all the fees requested by CREW, even though that amount was different from the one initially requested in the motion. Id. at 1 n.1. The FEC filed an Objection to the Report and Recommendation, arguing two major points: (1) that CREW is not entitled to attorney fees because it failed to establish that it was either eligible or entitled for attorney fees; and (2) that CREW failed to show that its fees are reasonable. See generally Def.'s Objs. CREW opposes the FEC's objections and requests that the Court order that the FEC pay CREW an additional $20,002.13 to cover CREW's attorney fees in responding to the FEC's objections to the Report and Recommendation. Pl.'s Resp. at 31–32.

II. LEGAL STANDARD

Under Local Civil Rule 72.2(b), “[a]ny party may file written objections to a magistrate judge's ruling under [Local Civil Rule 72.2(a) ] within 14 days [.]” Local Civ. R. 72.2(b). Local Civil Rule 72.2(b) further provides that “[t]he objections shall specifically designate the order or part thereof to which objection is made, and the basis for the objection.” Id. Pursuant to Local Civil Rule 72.2(c), “a district judge may modify or set aside any portion of a magistrate judge's order under this Rule found to be clearly erroneous or contrary to law.” See also Fed.R.Civ.P. 72(a) (“The district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law .”) (emphasis added). A court should make such a finding when the court “ ‘is left with the definite and firm conviction that a mistake has been committed.’ ” Am. Soc'y for Prevention of Cruelty to Animals v. Feld Entm't, 659 F.3d 13, 21 (D.C.Cir.2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ).

II. DISCUSSION

A. CREW's Eligibility and Entitlement for Attorney Fees

Pursuant to 5 U.S.C. § 552(a)(4)(E)(i), the court may award reasonable attorney fees and other litigation costs reasonably incurred by a plaintiff who substantially prevails in an action against the government for the fulfillment of a FOIA request. In this Circuit, the attorney-fee inquiry is divided into two prongs, the fee “eligibility” and the fee “entitlement” prongs. Brayton v. Office of the United States Trade Representative, 641 F.3d 521, 524 (D.C.Cir.2011). Under the eligibility prong, the Court must determine whether a plaintiff has substantially prevailed and, as a result, may receive attorney fees. Id. A plaintiff has substantially prevailed if he or she has obtained relief either through a judicial order, enforceable written agreement, consent decree or, alternatively, through a voluntary or unilateral change in position by the agency, if the plaintiff's claim is not insubstantial. 5 U.S.C. § 552(a)(4)(E)(ii)(I)-(II).

If the eligibility prong is satisfied, the Court next considers the entitlement prong to determine whether a plaintiff should receive fees. Brayton, 641 F.3d at 524. Under the entitlement prong, the Court must weigh four factors: “ ‘(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding.’ ” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C.Cir.2008) (quoting Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1093 (D.C.Cir.1992) ). While no one factor is dispositive, Davy v. CIA, 550 F.3d 1155, 1159 (D.C.Cir.2008), “[t]he sifting of those criteria over the facts of a case is a matter of district court discretion ...,” Tax Analysts, 965 F.2d at 1094.

a. CREW's Eligibility for Attorney Fees

Magistrate Judge Facciola first found that CREW satisfied the eligibility prong. First, Judge Facciola found that CREW substantially prevailed by obtaining a successful ruling in the D.C. Circuit. R & R at 7–9. The FEC objects to this finding, arguing that neither the D.C. Circuit's opinion nor the proceedings before this Court had an effect on the resolution of CREW's substantive FOIA claim, and instead only dealt with a procedural question that was resolved by the D.C. Circuit's ruling. Def.'s Objs. at 27. CREW argues that the Court should not consider the FEC's argument regarding CREW's eligibility for attorney fees because the challenge was only mentioned briefly at the end of the FEC's objections and, even if the Court were to consider the FEC's argument, it provides no basis to disturb the conclusion in the Report and Recommendation that CREW meets the eligibility requirement for a fee award. Pl.'s Resp. at 11 n.4. The Court shall first address CREW's argument that the Court need not consider the FEC's objection.

CREW argues that the Court should not consider the FEC's objection to the finding that CREW is eligible for attorney fees because the FEC failed to comply with the provisions of LCvR 72.3(b).² LCvR 72.3(b) requires that “[t]he objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection.” The Court finds that the FEC's objection to the finding that CREW is eligible for attorney fees complies with the requirements of LCvR 72.3(b) in that it clearly indicates that finding to which it objects, namely that CREW is eligible for a fee award, and provides its argument and references relevant parts of both the FEC's Objection to the Report and Recommendation and its Opposition to CREW's Motion for Attorney Fees as additional support for its...