72 F. Supp. 3d 338
D.D.C.2014Background
- EPIC filed a FOIA suit (Apr 8, 2013) to compel the FBI to produce records about the Next Generation Identification (NGI) program after FOIA requests submitted Sept. 20–21, 2012 were not timely processed. EPIC narrowed one request in Oct. 2012 after the FBI indicated a large volume of responsive pages.
- The Court ordered the parties’ joint proposed schedule on June 28, 2013, expressly requiring the FBI to produce all non-exempt responsive materials by July 31 (interim) and Aug. 30 (final). The FBI produced multiple releases (July 31, Aug. 30, Nov. 1), totaling 2,462 pages.
- EPIC moved for attorneys’ fees and costs under FOIA, seeking $22,124 (fees + costs), including fees for preparing a Reply; the FBI conceded the $350 filing cost but opposed most fee amounts and hours.
- The Court applied the D.C. Circuit’s two-step FOIA fee framework: eligibility (substantial prevailing) and entitlement (four-factor Davy/Tax Analysts test).
- The Court found EPIC substantially prevailed because the June 28, 2013 court order (approving the parties’ stipulated production schedule) constituted a judicially sanctioned change in the parties’ legal relationship.
- On entitlement, the Court held public benefit, commercial benefit/nature of interest favored EPIC; the reasonableness-of-withholding factor was neutral. The Court awarded fees but reduced requested amounts by $1,851 for triple-billed calls and a reduced rate for one junior attorney, and awarded $350 costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPIC "substantially prevailed" under FOIA (eligibility) | Court-approved stipulation ordering production by date certain made EPIC a prevailing party | FBI: Order was merely scheduling; some production predated the order so plaintiff didn’t substantially prevail | Held: EPIC eligible — court order approving production schedule is judicially meaningful and made EPIC a prevailing party |
| Whether EPIC is entitled to attorneys’ fees (entitlement under Davy factors) | EPIC: release advanced public understanding re: NGI; EPIC is non-profit public-interest requester; FBI had no colorable legal basis for delay | FBI: delays caused by backlog, resources, sequester; any untimely processing alone doesn’t mandate fees | Held: EPIC entitled — public benefit, commercial/nature factors favor EPIC; FBI’s legal basis for delay not colorable; fourth factor neutral overall |
| Whether requested hours and tasks were reasonable (lodestar hours) | EPIC: detailed contemporaneous billing; review of produced records and litigation tasks were reasonable and necessary | FBI: some hours excessive (e.g., complaint drafting), post-order review unnecessary, triple-billing, and some tasks redundant | Held: Majority of hours reasonable; denied triple-billing for seven multi-attorney calls (reduced to single junior-attorney time; $851 reduction); other challenged entries upheld |
| Appropriate hourly rates and recoverable fees-on-fees | EPIC: use Laffey Matrix rates; juniors billed at Laffey lowest attorney rate ($245); seek Reply fees ($6,272.50) | FBI: three attorneys had <1 year of admission so not eligible for 1–3 year Laffey attorney rate; fees-on-fees should be reduced if underlying claims denied | Held: Two junior counsel admitted during the period qualify for 1–3 year Laffey attorney rate ($245); one attorney (Scott) lacked proof of bar admission during 2013 so his 2013 hours reduced to paralegal/law clerk Laffey rate ($145), reducing award by $1,000; Reply fees allowed; declined additional fees-on-fees reduction |
Key Cases Cited
- Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir.) (FOIA fee eligibility/entitlement framework discussion)
- Judicial Watch, Inc. v. FBI, 522 F.3d 364 (D.C. Cir.) (court-approved stipulations requiring production by dates certain render plaintiff a prevailing party)
- Davy v. CIA, 456 F.3d 162 (D.C. Cir.) (judicially sanctioned change in legal relationship; stipulation/order conferring prevailing-party status)
- Davy v. CIA, 550 F.3d 1155 (D.C. Cir.) (Davy II) (articulation of four-factor entitlement test and appraisal of government’s colorable legal basis)
- Campaign for Responsible Transp. v. FDA, 511 F.3d 187 (D.C. Cir.) (court order requiring agency disclosure suffices to make plaintiff eligible)
- Morley v. CIA, 719 F.3d 689 (D.C. Cir.) (reaffirming Davy/Tax Analysts four-factor test)
- Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092 (D.C. Cir.) (establishing public-benefit focus and four-factor entitlement analysis)
- Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir.) (public benefit factor — informing public political choices)
- Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C.) (fee matrix for reasonable hourly rates)
- Covington v. District of Columbia, 57 F.3d 1101 (D.C. Cir.) (use of Laffey Matrix and factors for hourly rate determination)