Am. Immigration Council v. DHS, No. 11-1972, 2015 WL 1044534 (D.D.C. Mar. 10, 2015) (Boasberg, J.)

Am. Immigration Council v. DHS, No. 11-1972, 2015 WL 1044534 (D.D.C. Mar. 10, 2015) (Boasberg, J.)

Re: Request for records concerning individuals' access to counsel during interactions with federal immigration authorities

Disposition: Granting plaintiff's motion for attorney fees in part; awarding plaintiff $82,513.42 in attorney fees

• Attorney Fees, Eligibility:  The court holds that plaintiff "has 'substantially prevailed' and is eligible for fees."  The court recounts that "[t]he agency produced not a single document in response to [plaintiff's] initial FOIA request, instead informing Plaintiff that 'much of the information it sought' was publicly available online."  "Even after Plaintiff filed an administrative appeal, the agency produced a mere two pages of records, stating that it was 'unable to provide [[plaintiff]] with any further information because no such information exists.'"  "[Plaintiff], accordingly, filed suit."  "Even then CBP held fast to its position that it had conducted an adequate search and released all responsive documents, going so far as to move for summary judgment on the issue."  "Not until after AIC filed its Opposition did the Government change its tune" and "augmented [its] search [which] led to the rolling production of over 300 documents, at least 156 of which Defendants admit were directly responsive to [plaintiff's] initial request."  The court finds that "[d]efendants' release of at least 156 additional responsive documents manifests a 180–degree reversal from their initial position that no further responsive records existed."  "The sequence of events—as well as the Government's representations throughout—makes clear, moreover, that Plaintiff's lawsuit served as a necessary catalyst for the agency's release of this significant body of responsive material."  The court also finds that the fact "[t]hat the Court ultimately acquiesced to Defendants' withholdings in seven documents does not mean that [plaintiff]  is stripped of its eligibility for fees."  Additionally, in response to defendant's contention that it did not act in bad faith, the court finds that, "[a]lthough bad faith on the part of the Government can be relevant to whether a complainant substantially prevailed, . . . it is in no sense necessary."
   
• Attorney Fees, Entitlement:  The court holds that "[plaintiff's] success on the first three factors, combined with some degree of success on the fourth, is more than sufficient to establish its entitlement to fees."  The court first "notes that Plaintiff does not seek fees for the hours it expended opposing Defendants' Second Motion for Summary Judgment."  "The Court will thus limit its analysis to the preceding phase of the litigation."  The court then finds that "Factors (2) and (3)—the 'commercial benefit' and 'plaintiff's interest' factors … –[weigh in] favor [of plaintiff]" because "[p]laintiff is a nonprofit organization" and "disseminates to the public the records it acquires through FOIA request."  Additionally, the court rejects defendant's argument and finds that "[a] possible increase in such donations as a result of a successful, interest-provoking FOIA request does not constitute a commercial benefit or a 'private advantage,' . . . that weighs against granting a fee award."  The court then finds that "the first factor—the 'public benefit derived from the case'—also militates in [plaintiff's] favor."  The court explains that "[plaintiff's] FOIA request concerned a matter of undeniable public import" because "the issue of noncitizens' access to counsel is an important component of a vigorous political debate over immigration and is, therefore, of widespread public interest."  Additionally, the court finds that plaintiff's "widespread dissemination of the fruits of the request cements a public-benefit finding here."  The court then finds that "[t]he fourth factor—the reasonableness of the agency's withholding—is a closer call."  "The Court recognizes that CBP expended a significant amount of effort and resources searching through documents, particularly after the initial round of summary-judgment briefing."  "It might even be fair to say that—after withdrawing its initial Motion—the Government surpassed the call of duty in searching for documents that might be of interest to Plaintiff."  However, the court also finds that "[t]he agency has not satisfactorily explained why its earlier efforts were so cabined, nor shown 'beyond material doubt' that those limited searches were 'reasonably calculated to uncover all relevant documents.'"
   
• Attorney Fees, Calculations:  The court holds that, "[i]n sum, after all disputes have been resolved and all discounts have been applied, Plaintiffs sought $131,100.21 in attorney fees and will receive $82,513.42."  First, the court notes that "[plaintiff] received pro bono representation from eight attorneys employed by a national law firm."  The court finds that," in the interest of both efficiency and fairness, [it] will treat [the law firm's] rates as a yardstick by which to gauge suitable rates for [plaintiff's] attorneys."  The court explains that "[the law firm's] rates reflect a private firm's market-based assessment of the value of its time for the precise work performed in this case, and they have been universally endorsed by Plaintiff, Defendants, and even other courts."  Concerning the time expended, the court "finds some of Defendants' broader concerns to be justified and reduces the fee award accordingly."  The court finds that "having eleven attorneys working on and billing their time in a non-extraordinary FOIA case seems beyond the pale" and this "led to overbilling."  The court finds that "[i]t is unnecessary—and a waste of judicial resources—however, to scrutinize each individual billing entry."  "Instead, the Court will reduce [plaintiff's] total fee award by 25% as a commensurate counterweight to the surplus of attorneys."  The court then excludes "fees for work performed at the administrative stage of litigation, in addition to work associated with filing pro hac vice motions" because plaintiff "conceded" these issues.  The court also finds that "'[p]laintiff is not entitled to recover for time spent reviewing the documents it instituted [a] lawsuit to obtain'" and the court therefore "deduct[s] these charges."  The court also finds that "[n]o reduction is warranted to account for a handful of entries that could have perhaps benefitted from slightly more detail."  Additionally, the court finds that it "is loath to '"conduct a minute evaluation of each phase or category of counsel's work."'"  The court additionally finds that "[t]he Government cannot now insist that any fee award be anchored to the amount Plaintiff settled for in other comparable cases."  "[Plaintiff] is entitled to seek all amounts reasonably billed."

Regarding the consideration of fees on fees, the court finds that "[t]he 25% across-the-board haircut [described above] will . . . be applied to this aspect of Plaintiff's request as well."  However, "[a]side from the issue of overstaffing, accordingly, the Court believes the hours Plaintiff spent litigating this issue were not excessive."