197 F. Supp. 3d 290
D.D.C.2016Background
- In July 2012 EPIC filed a FOIA request to DHS seeking SOP 303 and related protocols; DHS initially said no responsive records were found.
- EPIC administratively appealed; an ALJ found DHS’s search inadequate and remanded; DHS subsequently located SOP 303 but produced a heavily redacted version asserting FOIA Exemptions 7(E) and 7(F).
- EPIC sued in February 2013; the district court initially sided with EPIC, but the D.C. Circuit reversed in part and remanded for a segregability analysis (EPIC II).
- On remand DHS produced a less-redacted SOP 303 and provided an unredacted copy for in camera review; the district court ordered no further release and entered judgment in July 2015.
- EPIC then moved for attorney fees and costs; DHS conceded eligibility and entitlement to some fees but disputed the amount and raised timeliness and overbilling concerns.
- The court applied the LSI-updated Laffey Matrix rates, found overstaffing and limited success on the merits, applied discounts (35% for overstaffing; additional reductions for limited success), reduced fees-on-fees, and awarded $20,145.04 (including $469.82 costs) of the $107,321.05 sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of fee motion | Motion was timely because the court later set a briefing schedule and parties sought fee briefing | Rule 54’s 14-day deadline bars late fee motions absent court order | Timely: court order setting briefing schedule cured delay; Rule 54 not jurisdictional here |
| Appropriate hourly rates | Use LSI-updated Laffey Matrix rates for EPIC’s counsel | Challenge only minor categorization of one attorney’s years-of-experience | LSI Laffey Matrix rates accepted; DOJ guidance supports plaintiff’s categorization |
| Reasonableness of billed hours (lodestar) | Full lodestar before adjustments | Reduce for travel billing, review time, multiple attorneys, and other inefficiencies | Applied lodestar but discounted overall lodestar 35% for overstaffing/inefficiency |
| Adjustment for limited success on merits | EPIC substantially prevailed because it caused production and obtained some release | EPIC’s success was limited; much of SOP 303 remained withheld, so fees should be reduced | Further reduced fees to reflect limited success: segregability-related work compensated (24% of certain briefing) and other briefing reduced by 76% |
| Fees for fee litigation (fees-on-fees) | Seek full fees for litigating fees | Reduce fees-on-fees in same proportion as merits reductions and exclude time spent during protracted negotiations | Awarded fees-on-fees in same percentage as merits award after excluding time tied to prolonged, avoidable negotiations; reply fees reduced to match motion |
Key Cases Cited
- EPIC v. DHS, 777 F.3d 518 (D.C. Cir.) (remanding for segregability analysis)
- EPIC v. DHS, 999 F. Supp. 2d 24 (D.D.C.) (district court’s initial decision in favor of EPIC)
- Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521 (D.C. Cir. 2011) (framework for FOIA fee eligibility and entitlement)
- Judicial Watch, Inc. v. Dep’t of Commerce, 470 F.3d 363 (D.C. Cir.) (substantial-prevailor standard and fee principles)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar method; adjustments for success)
- Fox v. Vice, 563 U.S. 826 (2011) (courts should seek "rough justice" rather than auditing perfection in fee awards)
- Davis County Solid Waste Mgmt. v. EPA, 169 F.3d 755 (D.C. Cir.) (reducing fees for multiple attorneys performing same tasks)
- Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58 (D.C. Cir.) (use of LSI-updated Laffey Matrix rates)