Judicial Watch, Inc. v. U.S. Dep't of Justice

• Decision Date: 23 July 2012
• Docket Number: Civil Action No. 10–851 (RBW).
• Citation: 878 F.Supp.2d 225
• Court: U.S. District Court — District of Columbia
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

878 F.Supp.2d 225

JUDICIAL WATCH, INC., Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 10–851 (RBW).

United States District Court, District of Columbia.

July 23, 2012.

Michael Bekesha, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Jacqueline E. Coleman Snead, John Russell Tyler, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Judicial Watch, Inc., brought this action against the United States Department of Justice (“DOJ”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), seeking the release of records concerning the DOJ's decision to dismiss civil claims in the case of United States v. New Black Panther Party for Self–Defense, No. 09–cv–0065 (E.D.Pa.). Complaint ¶ 5. The parties subsequently stipulated to the voluntary dismissal of this case with prejudice. ECF No. 24. Currently before the Court is Judicial Watch's motion for an award of attorneys' fees and costs. Upon careful consideration of the parties' submissions,¹ the Court concludes for the following reasons that Judicial Watch's motion must be granted in part and denied in part.

I. BACKGROUND

The Court previously described the background of this case in its Memorandum Opinion dated August 4, 2011, and will provide only a brief recitation of that background here. See Judicial Watch, Inc. v. Dep't of Justice, 800 F.Supp.2d 202, 207–09 (D.D.C.2011). On May 15, 2009, the DOJ filed a notice of voluntary dismissal as to three defendants and a motion for default judgment as to a fourth defendant in United States v. New Black Panther Party for Self–Defense (the “ New Black Panther Party case”), an action filed in the United States District Court for the Eastern District of Pennsylvania by the Civil Rights Division of the DOJ pursuant to Section 11(b) of the Voting Rights Act, 42 U.S.C. § 1973i(b) (2006). Id. at 207. By letter dated May 29, 2009, Judicial Watch submitted a FOIA request to the DOJ, seeking the following four categories of records related to the New Black Panther Party case:

1. Any and all records pertaining to the lawsuit under the Voting Rights Act against the New Black Panther Party for Self Defense and three of its members {Malik Zulu Shabazz, Minister King Samir Shabazz, Jerry Jackson} (records include, but are not limited to, memos, correspondence, affidavits, interviews, and records concerning default judgment, excluding court filings).

2. Any and all records pertaining to the decision to end the civil complaint against the New Black Panther Party for Self Defense and three of its members (records include, but are not limited to, memos, correspondence, affidavits, interviews, records concerning default judgment, excluding court filings).

3. Any correspondence between the [DOJ] and the New Black Panther Party for Self Defense, to include defendants {Malik Zulu Shabazz, Minister King Samir Samir Shabazz, Jerry Jackson} and/or any attorney(s) representing the defendants.

4. Any third-party communications concerning the New Black Panther Party for Self Defense, to include defendants {Malik Zulu Shabazz, Minister King Samir Shabazz, Jerry Jackson} and/or any attorney(s) representing the defendants.

Id. at 207–08. After acknowledging receipt of Judicial Watch's request by letter dated July 15, 2010, the DOJ conducted searches for responsive records within several of its components' offices, including the Civil Rights Division. Id. at 208.

The results of the DOJ's searches were communicated to Judicial Watch in a series of letters during the beginning of 2010. Id. at 208. On January 15, 2010, the DOJ informed Judicial Watch that some components had completed their searches and that all of the records located thus far were being withheld in their entirety pursuant to Exemption 5 of the FOIA. Id. Judicial Watch administratively appealed this determination by letter dated January 29, 2010. Id. Then, on February 9, 2010, the Civil Rights Division produced some records to Judicial Watch, including “ ‘copies of pleadings and filings related to’ the New Black Panther Party case, ‘copies of e-mail and correspondence from the court related to’ the case, and ‘letters to the defendants from the Department of Justice.’ ” Id. (citation omitted). The DOJ further advised Judicial Watch that it would be withholding other records pursuant to FOIA Exemptions 5 and 7. Id. The plaintiff administratively appealed this response of the Civil Rights Division by letter dated March 26, 2010. Id.

Judicial Watch instituted this action on May 24, 2010, while its two administrative appeals were still pending. Id. at 208–09. The DOJ consequently closed Judicial Watch's administrative appeals, id. at 209 n. 2, but continued to process the FOIA request, id. at 209. The DOJ then issued a final determination on Judicial Watch's FOIA request on August 19, 2010, releasing no additional records and advising Judicial Watch that it was withholding several additional records pursuant to FOIA Exemptions 5 and 6. Def.'s MSJ Mem. at 5.

On November 2, 2010, the DOJ moved for summary judgment and, in the process, produced records to Judicial Watch that it previously withheld as exempt. Pl.'s Mem. at 2. The DOJ produced additional records to Judicial Watch on January 10, 2011, contemporaneously with the filing of its Reply and Opposition to Plaintiff's Cross–Motion for Summary Judgment. Id.

The Court granted the DOJ's motion for summary judgment in part and denied it in part without prejudice on August 4, 2011. Judicial Watch, 800 F.Supp.2d at 220. In doing so, the Court “conclude[d] that the DOJ ha[d] properly asserted Exemption 5 of the FOIA as the basis for withholding all the documents that are in dispute.” Id. “However,” the Court further determined that “the DOJ ha[d] not provided a sufficiently detailed justification regarding the non-segregability of” certain documents, and accordingly denied the DOJ summary judgment “as to these documents.” Id. The Court explained that “[u]pon submission to the Court of a renewed motion for summary judgment, along with a declaration or other documentation that addresses the segregability issue, [it would] reevaluate the DOJ's request for summary judgment.” Id.

On September 30, 2011, the DOJ filed a renewed motion for summary judgment focusing solely on the issue of segregability. Pl.'s Mem. at 2. Together with this filing, the DOJ produced redacted documents to Judicial Watch which it had previously withheld in their entirety, noting that, upon further review, the documents contained “ ‘non-exempt information [that] could be segregated.’ ” Id. (citation omitted). Judicial Watch never responded to the DOJ's renewed motion. Instead, the parties stipulated to the dismissal of this action with prejudice on October 20, 2011. ECF No. 24. Judicial Watch now moves for an award of attorneys' fees and costs.

II. ANALYSIS

The 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). “This language naturally divides the attorney-fee inquiry into two prongs, which [Circuit] case law has long described as fee ‘eligibility’ and fee ‘entitlement.’ ” Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C.Cir.2011) (quoting Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368–69 (D.C.Cir.2006)). “The eligibility prong asks whether a plaintiff has ‘substantially prevailed’ and thus ‘may’ receive fees.” Id. “If so, the court proceeds to the entitlement prong and considers a variety of factors to determine whether Judicial Watch should receive fees.” Id. (emphasis in original). “Finally, ‘[a] plaintiff who has proven both eligibility for and entitlement to fees must submit his fee bill to the court for its scrutiny of the reasonableness of (a) the number of hours expended and (b) the hourly fee claimed.’ ” U.S. Dep't of Commerce, 470 F.3d at 369 (citation omitted).

A. Fee Eligibility

As noted, to be “eligible” for attorneys' fees, a FOIA plaintiff must have “ ‘substantially prevailed.’ ” Brayton, 641 F.3d at 525. “[A] complainant has substantially prevailed if the complainant has obtained relief through either—(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Judicial Watch invokes this latter provision—subsection (II) of § 552(a)(4)(E)(ii)—as the basis for its fee request. See Pl.'s Mem. at 3. This provision codifies the so-called “catalyst theory” of fee eligibility, under which “FOIA plaintiffs [are] eligible for a fee award if the lawsuit substantially caused the agency to release the requested records,” regardless of whether the plaintiff obtained any court-ordered relief. Davis v. DOJ, 610 F.3d 750, 752 (D.C.Cir.2010).² To recover attorneys' fees under this theory, “a litigant must ... show[ ] that the lawsuit was reasonably necessary and the litigation substantially caused the requested records to be released.” Burka v. HHS, 142 F.3d 1286, 1288 (D.C.Cir.1998). Although “the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation,” Weisberg v. DOJ, 745 F.2d 1476, 1496 (D.C.Cir.1984), it is nonetheless a “ ‘salient factor’ in the analysis,” Elec. Privacy Info. Ctr. v. DHS, 811 F.Supp.2d 216, 232 (D.D.C.2011) (citation omitted); accord Pub. Law Educ. Inst. v. DOJ, 744 F.2d 181, 184 n. 5 (D.C.Cir.1984) (“While the temporal relation between an FOIA action and the release of documents may be taken into account in determining the existence vel non of a causal nexus, timing, in itself or in conjunction with any other particular factor, does not establish causation as a matter of law.”)....