Electronic Privacy Information Center v. United States Department of Homeland Security
218 F. Supp. 3d 27
| D.D.C. | 2016Background
- EPIC filed a FOIA request (July 26, 2011) seeking records about the Defense Industrial Base Cyber Pilot (a DHS/DoD cybersecurity program) and appealed DHS's limited response; DHS later produced documents and a Vaughn index but withheld material under various FOIA exemptions.
- EPIC sued (Mar. 1, 2012) after administrative delays; the Court issued a Scheduling Order requiring DHS to produce all responsive documents by a date certain and later modified deadlines to address DHS's slow processing.
- DHS ultimately produced ~1,386 pages (some redacted) and withheld 362 pages; the Court granted DHS summary judgment on most exemption claims but required DHS to supplement its Vaughn index for Exemption 7(D).
- After DHS filed a revised Vaughn index, all disputes except attorneys' fees and costs were resolved; EPIC moved for attorneys' fees under 5 U.S.C. § 552(a)(4)(E).
- The Court analyzed (1) EPIC's eligibility to recover fees under the judicial-order and catalyst theories, (2) entitlement under McKinley factors (public benefit, commercial benefit, plaintiff's interest, reasonableness of withholding), and (3) the reasonableness of requested fees (rates, hours, and billing practices).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPIC is eligible for fees under the judicial-order theory | Scheduling Order and subsequent orders requiring DHS to produce documents by dates certain made EPIC a prevailing party | Orders were merely procedural and did not change the parties' legal relationship | Held: EPIC substantially prevailed via the Scheduling Order; eligible under judicial-order theory |
| Whether EPIC is eligible under the catalyst theory | Litigation prompted DHS to accelerate and complete production; DHS did little before suit | DHS was already processing the request and delays were due to scope and administrative burdens | Held: EPIC also eligible under catalyst theory — suit caused DHS to act and production likely would not have occurred without litigation |
| Whether EPIC is entitled to fees (McKinley factors) | Case served public interest (cybersecurity/privacy), EPIC is non-profit and lacked commercial motive, DHS's withholdings/unresponsiveness were unreasonable | DHS contends limited public benefit and reasonable administrative delay | Held: All entitlement factors favor EPIC — public benefit, noncommercial purpose, and DHS's unreasonable delay support awarding fees |
| Reasonableness of fees requested (rates, hours, practices) | EPIC sought LSI‑adjusted Laffey rates and submitted contemporaneous time records; limited some reductions voluntarily | DHS argued for lower USAO Laffey rates, challenged hours, block billing, and overstaffing | Held: Court accepted LSI Laffey Matrix as the starting point; awarded fees for pre‑summary production work and post‑summary work and allowed fees-on-fees in part, but disallowed summary‑judgment fees and ordered revisions to billing (reduce excessive entries, cap multiple-attorney call billing, exclude certain timekeeping entries) |
Key Cases Cited
- Judicial Watch, Inc. v. FBI, 522 F.3d 364 (D.C. Cir.) (orders requiring production by a date certain can make plaintiff a prevailing party)
- Davy v. Central Intelligence Agency, 456 F.3d 162 (D.C. Cir.) (scheduling/production orders can change legal relationship; used in prevailing-party analysis)
- Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C. Cir.) (agency’s pre-suit inaction can weigh in favor of fee awards despite later prevailing on merits)
- Morley v. Central Intelligence Agency, 810 F.3d 841 (D.C. Cir.) (public-benefit factor requires ex ante assessment of the request’s potential public value)
- Salazar v. District of Columbia, 809 F.3d 58 (D.C. Cir.) (approach and evidentiary showing for selecting Laffey adjustment methodology)