Nkihtaqmikon v. Bureau Of Indian Affairs

• Decision Date: 09 July 2010
• Docket Number: No. CV-05-188-B-W.,CV-05-188-B-W.
• Citation: 723 F.Supp.2d 272
• Parties: Nulankeyutmonen NKIHTAQMIKON, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, Defendant.
• Court: U.S. District Court — District of Maine

723 F.Supp.2d 272

Nulankeyutmonen NKIHTAQMIKON, Plaintiff,

v.BUREAU OF INDIAN AFFAIRS, Defendant.

No. CV-05-188-B-W.

United States District Court,D. Maine.

July 9, 2010.

COPYRIGHT MATERIAL OMITTED.

David K. Mears, Justin E. Kolber, Patrick A. Parenteau, Teresa B. Clemmer, Environmental and Natural Resources Law Clinic, Vermont Law School, South Royalton, VT, Lynne A. Williams, Law Office of Lynne A. Williams, Bar Harbor, ME, for Plaintiff.

Evan J. Roth, U.S. Attorney's Office, Portland, ME, Robin A. Friedman, U.S. Department of Justice, U.S. Department of the Interior, Stephanie Yu, U.S. Department of Interior Office of the Solicitor, Washington, DC, for Defendant.

ORDER ON PLAINTIFF'S PETITION FOR ATTORNEY FEES AND COSTS UNDER THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552(a)(4)(E)

JOHN A. WOODCOCK, JR., Chief Judge.

Presented with an application for attorney fees under 5 U.S.C. § 552(a)(4)(E) for $157,021, the Court awards a fee of $86,885.16, eliminating student billing from the Environmental & Natural Resources Law Clinic (ENRLC) at Vermont Law School, reducing excessive, unexplained, and overstaffed hours, and applying an equitable reduction of 25% to the net figure to account for lack of specificity. At the same time, the Court rejects the Bureau of Indian Affairs' (BIA) argument that no fee should be awarded because it had a reasonable basis for withholding its documents under the Freedom of Information Act (FOIA) and that Nulankeyutmonen Nkihtaqmikon (NN) did not substantially prevail on all the issues for which ENRLC is claiming fees.

I. STATEMENT OF FACTS A. The Procedural History

On April 24, 2009, Nulankeyutmonen Nkihtaqmikon (NN) filed a request for relief in which it asked for permission to file a motion for recovery of attorney fees and costs incurred in this Freedom of Information Act, 5 U.S.C. § 552, (FOIA) case. Pl.'s Req. for Relief (Docket # 100). The Bureau of Indian Affairs' initial response did not address the attorney fees request. Resp. to Pl.'s Req. for Relief (Docket # 102). On November 13, 2009, the Court issued an Order addressing the merits of the other requests for relief but deferring ruling on NN's other requests, including the request for attorney fees and costs. Order on Pl.'s Req. for Relief at 5 (Docket # 105). On November 18, 2009, the Court held a telephone conference of counsel to allow BIA to submit a response to NN's request for attorney fees and costs. Minute Entry (Docket # 107). The BIA declined to respond. Id. On December 2, 2009, the Court issued an Order, granting NN's request to petition for an award of attorney's fees and costs. Second Order on Pl.'s Req. for Relief (Docket # 108).

On February 25, 2010, NN filed a motion for award of attorney fees and costs, requesting a total award of $157,021. Pl.'s Pet. for Attorney Fees and Costs Under the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E) at 13 (Docket # 116) ( Pl.'s Pet.). This time the BIA responded; the response was filed on April 2, 2010. Resp. to Pl.'s Pet. for Fees and Costs (Docket # 121) ( BIA Resp.). NN replied on April 16, 2010. Pl.'s Reply in Support of Pet. for Attorney Fees and Costs Under FOIA (Docket # 122) ( Pl's Reply ).

B. Tortuous Litigation

This case began on June 8, 2005 when NN mailed a FOIA request to BIA, seeking the release of BIA documents relating to its approval of a ground lease between the Passamaquoddy Tribe and Quoddy LLC, which planned to construct an LNG facility on tribal land. The Court has elsewhere described the “tortuous history” of NN's FOIA request, and will not repeat it. Nulankeyutmonen Nkihtaqmikon, 672 F.Supp.2d 154, 156-58 (D.Me.2009) ( NN ). Over four years later, on December 2, 2009, the Court granted NN's request to file a petition for attorney fees and costs. Id. at 172-74.

In response to NN's request for an award of $157,021, the BIA objected to the following: 1) an absence of “detailed contemporaneous” billing records; 2) “unproductive, excessive, or duplicative” efforts; and, 3) the BIA's reasonable basis for withholding the requested documents. ¹ BIA Resp. 2-8. Finally, it urges the Court to adopt “a more even-handed approach,” urging the Court to follow its analysis in Sullivan v. City of Augusta, 625 F.Supp.2d 28 (D.Me.2009). Id. at 8-9.

II. DISCUSSION A. FOIA Litigation and Attorney Fees Awards

FOIA provides:

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

5 U.S.C. § 552(a)(4)(E). ² In its December 2, 2009 Order, the Court addressed the criteria for the issuance of such an award and concluded that NN substantially prevailed on some aspects of the litigation and authorized an award. NN, 672 F.Supp.2d at 173-74. What remains is the amount.

“Where fee-shifting under an open-ended statute is at issue, courts typically ascertain reasonable attorneys' fees by means of the lodestar method.” United States v. One Star Class Sloop Sailboat, 546 F.3d 26, 37-38 (1st Cir.2008). The lodestar method entails “multiplying the number of hours productively spent by a reasonable hourly rate....” Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 335 (1st Cir.2008). “Reasonable hourly rates will vary depending on the nature of the work, the locality in which it is performed, the qualifications of the lawyers, and other criteria.” One Star, 546 F.3d at 38. Even after the basic lodestar is calculated, the court “may adjust it, up or down, to reflect other considerations, such as the results obtained.” Id. at 38 (citing Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 & n. 3 (1st Cir.1997)). The First Circuit requires the district court to “make concrete findings, supply a clear explanation of its reasons for the fee award, and most of all, retain a sense of overall proportion.” United States v. Metropolitan Dist. Com., 847 F.2d 12, 16 (1st Cir.1988) (internal quotations and citation omitted).

B. A Reasonable Basis for Withholding

Citing Crooker v. United States Parole Comm'n, 776 F.2d 366 (1st Cir.1985) and Kendland Company v. Dep't of the Navy, 599 F.Supp. 936 (D.Me.1984), the BIA seeks to excuse its conduct in this case on the ground that it had a reasonable basis for withholding the requested material and therefore NN's motion for attorney fees should be either denied or reduced. Def.'s Resp. at 7-9. Although the BIA contends that Crooker supports a denial of the BIA request for attorney fees under FOIA, the Court disagrees. Id. Critically, the Crooker Court stated that “we do not find the government's original withholding of such reports to have been unreasonable.” Crooker, 776 F.2d at 369.

Here, the BIA's original response to NN's June 9, 2005 FOIA request was that “the only document in the BIA's possession related to the request was the proposed ground lease agreement, which Plaintiff already possessed,” a response that in light of the cascade of subsequent released documents was manifestly unreasonable. Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, 453 F.Supp.2d 193, 196 (D.Me.2006). Further, unlike Crooker, the BIA took a position early in the litigation before the district court and as a consequence, generated a favorable ruling. On appeal, the BIA took a contrary position, and as the First Circuit wrote, the BIA's change in position “altered the analysis of whether certain documents at issue are actually ‘predecisional’ for purposes of the ‘decisional process privilege’ codified at 5 U.S.C. § 552(b)(5).” Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, No. 07-2290, 2008 U.S.App. LEXIS 27455, at *1 (1st Cir. June 16, 2008). It is difficult to characterize the BIA's shifting and contradictory rationales as “reasonable.”

Finally, as detailed in NN, the BIA's response throughout the litigation has been utterly disorganized and seemingly cavalier. The result has been multiple legal and judicial interventions, resulting in seven, now eight written decisions by the First Circuit and this Court. Id.; Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, 672 F.Supp.2d 149 (D.Me.2009); Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, 601 F.Supp.2d 337 (D.Me.2009); Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, 493 F.Supp.2d 91 (D.Me.2007), stay granted, No. 07-2290, 2008 U.S.App. LEXIS 27455 (1st Cir. June 16, 2008); Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, 453 F.Supp.2d 193 (D.Me.2006); Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs, 450 F.Supp.2d 113 (D.Me.2006). Here, unlike Crooker, the Court expressly finds that the BIA's “withholding of such reports to have been unreasonable.” ³ Crooker, 776 F.2d at 369. Crooker does not assist the BIA, and the Court is mildly surprised at the BIA's contention in view of the unedifying history of this FOIA litigation.

Kendland is inapposite for a number of reasons. In Kendland, a subcontractor to a Navy contract was seeking Navy documents “in order to prosecute a claim for damages and additional compensation against [the general contractor].” Id. at 937. The plaintiff filed a FOIA request on July 22, 1983, but the Navy failed to fully comply, leading the plaintiff to file a FOIA Complaint on December 7, 1983. Id. “All of the requested documents were produced voluntarily by the Navy on June 1, 1984, and June 15, 1984.” Id. The Plaintiff moved to dismiss the FOIA action and the Court dismissed the case on June 17, 1984. Id.

In Kendland, the district court concluded that the FOIA lawsuit had caused the release of the requested documents, or at least had hastened their release, and satisfied the first prong for an attorney fees award. Id. at 938 (noting that the agency had not demonstrated that the disclosure “was due more to its responsible compliance with the provisions of the Act than to the complainant's pending suit”). However, the court declined to issue an attorney fees...