Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec.

• Decision Date: 18 July 2016
• Docket Number: Civil Action No. 13-260 (JEB)
• Citation: 197 F.Supp.3d 290
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, Defendant.
• Court: U.S. District Court — District of Columbia

197 F.Supp.3d 290

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,

v.DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 13-260 (JEB)

United States District Court, District of Columbia.

Signed July 18, 2016

Alan Jay Butler, Marc Rotenberg, Washington, DC, for Plaintiff.

Justin Michael Sandberg, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

In July 2012, the Electronic Privacy Information Center submitted a Freedom of Information Act request to the Department of Homeland Security. EPIC sought information relating to Standard Operating Procedure 303, a document that describes DHS protocols for shutting down wireless networks during national emergencies. After the Agency told EPIC that it could not locate any responsive records, Plaintiff administratively appealed and eventually filed suit here. Although Defendant then released a heavily redacted version of SOP 303, EPIC wanted more. While EPIC temporarily prevailed in this Court, the Court of Appeals ultimately held that full release was not required, but remanded for a segregability analysis. After Defendant removed some redactions, this Court approved and closed the case.

EPIC now asks for attorney fees and costs. Because Defendant concedes that Plaintiff is eligible for and entitled to some reimbursement, the Court will grant Plaintiff's Motion for Attorney Fees in part. Plaintiff's requested sum, however, will be significantly reduced to account for the limited nature of its success and for various billing-related deficiencies.

I. Background

As past Opinions detail the background of this suit, see EPIC v. DHS(EPIC II), 777 F.3d 518, 520–22 (D.C.Cir.2015), the Court recounts here only facts relevant to the pending Motion. In July 2012, EPIC submitted a FOIA request to DHS for:

1. The full text of Standard Operating Procedure 303;

2. The full text of the pre-determined "series of questions" that determines if a shutdown is necessary;

3. Any executing protocols or guidelines related to the implementation of Standard Operating Procedure 303, distributed to DHS, other federal agencies, or private companies, including protocols related to oversight of shutdown determinations.

MSJ, Exh. 1 (July 10, 2012, Letter from Amie Stepanovich to DHS) at 3. DHS wrote back that it had "conducted a comprehensive search of files within the DHS" and other offices, but, "[u]nfortunately, ... w[as] unable to locate or identify any responsive records." Id., Exh. 3 (August 21, 2012, Letter from Mia Day to Amie Stepanovich) at 1.

Challenging the adequacy of DHS's search—especially given that SOP 303's existence was public knowledge—EPIC filed an administrative appeal. See id., Exh. 4 (September 13, 2012, Letter from Amie Stepanovich to DHS); Opp. to MSJ, Exh. 1 (October, 25, 2012, Letter from James Holzer to Amie Stepanovich). FOIA's twenty-day appeal period quickly passed without further action from DHS, and so in February 2013, EPIC filed suit in this court. See 5 U.S.C § 552(a)(6)(A)(ii).

While this case was pending, the administrative law judge in EPIC's administrative appeal decided that DHS's record "fails to demonstrate that [DHS] conducted an adequate search for responsive records" and remanded EPIC's FOIA request for further review. See MSJ, Exh. 5 (March 25, 2013, Letter from Joanna Sherry to Amie Stepanovich) at 1.

That administrative decision, however, did not end matters. DHS located SOP 303 after conducting a more extensive search. But, in June 2013, the Agency produced to EPIC only a heavily redacted version of the document. Defendant withheld under FOIA Exemptions 7(E) and 7(F) all but four sentences of the substantive portions of SOP 303. See Opp., Exh. 1 (First SOP 303) at 1-7; see also 5 U.S.C. § 552(b)(7)(E), (F).

Summary-judgment briefing then focused on DHS's reliance on those law-enforcement-related exemptions. While this Court sided with Plaintiff, EPIC v. DHS(EPIC I), 999 F.Supp.2d 24 (D.D.C.2013), the Circuit reversed and remanded for this Court to decide only whether non-exempt portions of SOP 303 could be segregated from exempt portions and then produced. EPIC II, 777 F.3d at 528. After remand, Defendant released a second version of SOP 303 with fewer redactions and provided the Court an unredacted copy for in camera review. See Opp., Exh. 2 (Second SOP 303) at 1-7. This Court then determined that no other pages needed to be released and entered judgment. See July 10, 2015, Minute Order. No appeal followed.

Plaintiff now seeks to recover attorney fees and other expenses associated with this litigation.

II. Analysis

FOIA provides that courts "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case ... in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i) ; see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C.Cir.2011). "This language naturally divides the attorney-fee inquiry into two prongs, which our case law has long described as fee 'eligibility' and fee 'entitlement.' " Brayton, 641 F.3d at 524 (quoting Judicial Watch, Inc. v. Dep't of Commerce, 470 F.3d 363, 368–69 (D.C.Cir.2006) ). EPIC is "eligible" to receive fees if it has "substantially prevailed." Id.; Judicial Watch v. Dep't of Commerce, 470 F.3d at 368. If EPIC is eligible, the Court must then "consider[ ] a variety of factors" to determine whether it is "entitled" to fees. Brayton, 641 F.3d at 524–25 ; Davy v. CIA, 550 F.3d 1155, 1158 (D.C.Cir.2008). If EPIC is both eligible for and entitled to receive fees, the Court proceeds to "analyze whether the amount of the fee request is reasonable."

EPIC v. DHS, 811 F.Supp.2d 216, 237 (D.D.C.2011).

Much of the attorney-fee legwork is done because DHS concedes both eligibility and entitlement. See Opp. at 7-8. What it strenuously objects to, however, is the amount sought. Before the Court addresses whether Plaintiff's requested fees are reasonable, it pauses to address a threshold question of whether the Motion is timely.

A. Timeliness

The Court first considers whether it is now too late for Plaintiff to request fees. Federal Rule of Civil Procedure 54(d)(2)(B)(i) provides that "[u]nless a statute or court order provides otherwise, the motion [for attorney fees] must ... be filed no later than 14 days after the entry of judgment." As DHS highlights, seasons have passed since the entry of judgment here in July 2015. Yet, in March 2016, following months of failed negotiations between the parties, EPIC filed a joint motion for a briefing schedule on attorney-fees issues, which the Court granted. See ECF No. 27 (Joint Motion for Briefing Schedule).

Under these circumstances, Rule 54 does not present an obstacle to Plaintiff's Motion. "[B]y its very terms, the fourteen-day deadline of Rule 54 is not a fatal jurisdictional deadline." Am. Immigration Council v. DHS, No. 11–1972, ECF No. 52 (Memorandum Order and Opinion) at 2 (D.D.C. Sept. 24, 2014) (quoting Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 227 (2d Cir.2004) ). In this case, a "court order provide[d] otherwise"—namely, this Court set an attorney-fees briefing schedule, with which EPIC has complied. See Fed. R. Civ. P. 54(d)(2)(B)(i) ; April 5, 2016, Minute Order; see also Am. Immigration Council v. DHS, 82 F.Supp.3d 396, 402 (D.D.C.2015) (noting that court's order setting briefing schedule satisfied Rule 54's requirement). All the same, the Court observes that the delay in requesting attorney fees and in asking for a briefing schedule was not ideal—the Court has an interest in resolving fees issues when they "are freshly in mind," Radtke v. Caschetta, 822 F.3d 571, 574 (D.C.Cir.2016) (quoting Fed. R. Civ. P. 54 advisory committee's notes)—and the Court trusts that EPIC will be more punctual in the future. Having said this, the timing of Plaintiff's Motion is not fatal here.

B. Reasonableness of Fees

The Court next addresses whether the sum EPIC seeks is reasonable. The "usual method of calculating reasonable attorney's fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the 'lodestar' amount." Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C.Cir.1998) (citing Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) ). Though the starting point is the lodestar amount, that number may then be adjusted to reflect, for instance, "the significance of the overall relief obtained by the plaintiff." Judicial Watch, Inc. v. DOJ, 774 F.Supp.2d 225, 233 (D.D.C.2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ). In parsing EPIC's billing entries, the Court is mindful "that 'trial courts need not, and indeed should not, become green-eyeshade accountants' in examining fee requests since '[t]he essential goal ... is to do rough justice, not to achieve auditing perfection.' " EPIC v. NSA, 87 F.Supp.3d 223, 235 (D.D.C.2015) (quoting Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011) ).

Plaintiff puts forth a figure of $81,223.70 for fees and costs in the FOIA litigation. It further requests a surprising $26,097.35 for time spent litigating over attorney fees—i.e. , "fees on fees." Defendant asks for adjustments to the lodestar amount and for the Court to factor in Plaintiff's lack of merits success. The Court considers these two issues, then looks at fees on fees, and ends by computing the fee award.

1. Lodestar

In examining the lodestar amount, the Court first addresses a point of substantial agreement—the hourly rates. In fleshing out rates, this Circuit has frequently employed the Laffey Matrix, "a schedule of fees based on years of attorney experience that was developed in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), rev'd on other grounds, 746 F.2d 4 (D.C.Cir.1984)." ACLU v. DHS, 810 F.Supp.2d 267, 277 (D.D...