National Security Counselors v. Central Intelligence Agency , 189 F. Supp. 3d 73 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
NATIONAL SECURITY )
COUNSELORS, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-442 (RMC)
)
CENTRAL INTELLIGENCE )
AGENCY, et al., )
)
Defendants. )
___________________________________ )
OPINION
National Security Counselors seeks attorney fees and costs after prevailing in part
in a case against the Central Intelligence Agency and Department of Defense under the Freedom
of Information Act (FOIA), 5 U.S.C. § 552. The Court denied the motion, holding that because
National Security Counselors and its counsel were one and the same, there was no attorney-client
relationship and no attorney fees could be awarded. See Mem. Op. [Dkt. 67] at 8–9. On appeal,
the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. National Security
Counselors now seeks fees for the original litigation and for the appeal and fee litigation.
Because National Security Counselors prevailed only in part and the fees it seeks are not
reasonable, the fee petition will be granted in part and denied in part.
I. FACTS
National Security Counselors (NSC) submitted four requests under the Freedom
of Information Act (FOIA), 5 U.S.C. § 552. The first was submitted on April 23, 2010, to the
Central Intelligence Agency (CIA), requesting copies of current CIA “regulations, policy
1
statements, guidelines, memoranda, training materials, handbooks, manuals, checklists,
worksheets, instructions, and similar documents on the topic of Mandatory Declassification
Review . . . .” Defs. Opp’n [Dkt. 59], Ex. A (FOIA Requests) [Dkt. 59-1] at 3. The second was
submitted to CIA on November 30, 2010, seeking the “special procedures for the [Mandatory
Declassification] [R]eview of information pertaining to intelligence activities (including special
activities), or intelligence sources or methods developed by the Director of Central Intelligence
pursuant to Sections 3.6(e) of Executive Order 12,958 and 3.5(e) of Executive Order 13,292.”
Id. at 8. The third was submitted on December 10, 2010, to the Defense Intelligence Agency
(DIA), a component of the Department of Defense (DOD), calling for records that were
responsive to a FOIA request submitted by Michael Ravnitzky in 1997 regarding a secret
scientific intelligence board. Id. at 12. On the same day, a fourth FOIA request was submitted to
DIA, pursuing records concerning the administrative processing of Mr. Ravnitzky’s FOIA
request to determine why the request had taken over a decade. Id. at 19.
On February 28, 2011, NSC filed a Complaint against the CIA and DOD
(collectively, Defendants), which included the first through fourth FOIA requests as Counts 1
through 4, respectively. See Compl. [Dkt. 1] ¶¶ 7–33. Defendants moved for partial dismissal
due to the fact that NSC failed to exhaust administrative remedies with respect to its claim
against twelve unidentified “John Doe” agencies that that had created some of the records at
issue. Mot. to Dismiss [Dkt. 9] at 5–7. On July 12, 2011, NSC filed an Amended Complaint
omitting allegations against “John Doe” agencies that had not been administratively exhausted.
See Am. Compl. [Dkt. 18].
One year later, the parties notified the Court that they had settled Count Three of
the Amended Complaint regarding the third FOIA request. See Joint Status Report [Dkt. 33] ¶ 4.
2
On March 8, 2013, Defendants moved for summary judgment on the remaining counts. See Mot.
for Summ. J. [Dkt. 45]. Defendants argued that (1) CIA conducted a reasonable search and
produced documents responsive to the first FOIA request; (2) CIA satisfied the second FOIA
request because, after conducting reasonable searches, it did not locate any responsive
documents; and (3) Defendants properly withheld certain information pursuant to FOIA
exemptions. Id. at 10–35. Defendants also noted that the parties had “settled the substantive
issues” related to the fourth FOIA request sent to DIA. Id. at 6 n.1.
On April 16, 2013, NSC responded with a Notice of Voluntary Dismissal, which
noted that it was satisfied with the information provided in Defendants’ filings and that “the
value of any further information it could receive outweigh[ed] the work necessary to receive it.”
Notice of Voluntary Dismissal [Dkt. 51] at 1; see also Minute Order 4/17/13 (approving
voluntary dismissal).
Subsequently, NSC moved for attorney fees in the amount of $14,444.90. 1 See
Mot. for Fees [Dkt. 55]; Reply [Dkt. 63]. 2 Defendants opposed. See Opp’n [Dkt. 59]; Surreply
[Dkt. 66]. The Court denied the motion for fees, finding that NSC was not entitled to fees
because it was not a separate entity from its lawyer, Kelly McClanahan. The Circuit disagreed
and remanded the case for further proceedings.
NSC supplemented its request to add substantial fees attributable to the fee
litigation, and it now seeks a total of $91,750 in attorney fees plus costs. See Supp. Pet. [Dkt.
81] at 3; Supp. Reply [Dkt. 86]. Defendants oppose. See Supp. Opp’n [Dkt. 84].
1
The Court already awarded costs, specifically, the $350 filing fee. See Order [Dkt. 73].
2
NSC also sought an additional $957.50 for filing the Reply. See Reply at 11.
3
II. LEGAL STANDARD AND ANALYSIS
A. Attorney Fees
1. Eligibility and Entitlement to Fees
Under FOIA, a court may award reasonable attorney fees to a claimant who
substantially prevails in FOIA litigation. 5 U.S.C. § 552(a)(4)(E). The decision to award
attorney fees is committed to the discretion of the district court. Tax Analysts v. Dep’t of Justice,
965 F.2d 1092, 1094 (D.C. Cir. 1992). “The award of attorney’s fees to successful FOIA
plaintiffs was intended to relieve plaintiffs with legitimate claims of the burden of legal costs; it
was not intended as a reward for successful claimants or as a penalty against the government.”
Falcone v. IRS, 714 F.2d 646, 647 (6th Cir. 1983). To obtain attorney fees under FOIA, a
plaintiff must demonstrate both (1) eligibility and (2) entitlement. See McKinley v. Fed. Hous.
Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014).
To be eligible for fees, a plaintiff must have “substantially prevailed.” Weisberg
v. Dep’t of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984). A plaintiff “substantially prevailed”
(a) if he won relief through a judicial order, an enforceable written agreement, or a consent
decree or (b) if he obtained relief through a “voluntary or unilateral change in position by the
agency,” see Davis v. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010), provided that the
request for records was not “insubstantial,” see 5 U.S.C. § 552(a)(4)(E)(ii). To show that he
substantially prevailed, a FOIA plaintiff must “prove that prosecution of the action could
reasonably be regarded as necessary to obtain the information and that a causal nexus exists
between the action and the agency’s surrender of that information.” Contreras v. Dep’t Justice,
729 F. Supp. 2d 167, 170 (D.D.C. 2010).
4
To determine whether a plaintiff is “entitled” to fees, courts examine: (1) the
public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of
plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding of the
requested records. Tax Analysts, 965 F.2d at 1093-94. The first three factors aid a court in
distinguishing between requesters who seek documents for public informational purposes and
who may need an incentive to litigate and those who seek documents for private advantage and
who typically do not need an incentive. Davy v. CIA, 550 F.3d 1155, 1160 (D.C. Cir. 2008).
The last factor, “the reasonableness of the agency’s withholding,” can be dispositive––if the
Government was correct as a matter of law to refuse to release records, the plaintiff is not
entitled to fees. Id. at 1158. Balancing these factors is within the discretion of the district court.
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C. Cir. 2008).
The parties agree that NSC prevailed on the first FOIA request. See Mot. for Fees
at 2 (asserting that CIA released a significant number of records responsive to the first request);
Opp’n at 12 (“plaintiff substantially prevailed on its first claim . . . .”). 3 In contrast, NSC did not
prevail on the second FOIA request, as CIA searched but found no responsive records. See
Contreras, 729 F. Supp. 2d at 168 n.3 (when agency did not find any records, FOIA plaintiff
cannot show that any records were improperly withheld). NSC agrees that ordinarily this would
not be considered a “win,” but argues that the request inured to the public interest because the
second FOIA request caused CIA to admit that it had not developed special procedures that it
had been required to develop by Executive Order. The alleged public benefit could weigh in
3
NSC prevailed on the first FOIA request because the Court denied CIA’s first motion for
summary judgment without prejudice and required a broader search. See Op. [Dkt. 30]; Order
[Dkt. 31]. CIA conducted a new search and released additional records.
5
favor of NSC as to its “entitlement” to fees, but does not demonstrate that NSC prevailed on
Count 2.
The parties debate whether NSC prevailed on Counts 3 and 4 under the catalyst
theory. The Department of Defense (DOD) had been processing a previous request for the same
records since 1997, and within seven months after this suit was filed, DOD began releasing
responsive records; over the course of two years, DOD released approximately 2000 pages.
Defendants argue that NSC has not proven a causal nexus between this lawsuit and DOD’s
release of documents and that the mere fact that DOD released documents after this suit was filed
does not prove causation. See Alliance for Responsible CFC Policy, Inc. v. Costle, 631 F. Supp.
1469 1469 1470 (D.D.C. 1986) (under catalyst theory of eligibility for fees, a plaintiff must show
causation); Simon v. United States, 587 F. Supp. 1029, 1031 (D.D.C. 1984) (mere sequence of
events does not demonstrate causation and thus eligibility for fees).
The standard is not particularly high. To show that he prevailed, a FOIA plaintiff
must prove that prosecution of the action “could reasonably be regarded as necessary to obtain
the information” and that a causal nexus exists between the lawsuit and the release of records.
Contreras, 729 F. Supp. 2d at 170. Without access to the internal workings of the agency, a
plaintiff is hard pressed to prove that the actual reason the agency released documents was the
plaintiff’s FOIA suit. The timing here provides evidence of causation, i.e., that NSC filed suit in
2011 and within seven months DOD began releasing documents that had been requested in 1997.
While DOD argues that mere timing does not prove causation, DOD does not presented any
evidence to the contrary. In light of the timing of the release of the documents, this suit can
reasonably be regarded as causing the release of records. The Court finds that NSC prevailed on
Counts 3 and 4.
6
Because NSC substantially prevailed on Counts 1, 3, and 4, the next question is
whether NSC is “entitled” to attorney fees. In examining the issue of entitlement, the Court must
look at the public benefit derived from the case, the commercial benefit to the plaintiff, and the
nature of plaintiff’s interest in the records. Tax Analysts, 965 F.2d at 1093-94. NSC is a
nonprofit public interest firm whose mission, in part, is to foster greater public understanding of
national security matters. Mot. for Fees at 3. The first FOIA request was for CIA records
concerning how it processed requests to declassify classified records. The third FOIA request
was for DOD records regarding a scientific intelligence board, and the fourth request was for
information regarding why a prior request took over 13 years. All of the requests were regarding
matters of public interest. Further, Defendants do not contend that the FOIA requests benefitted
NSC commercially. Instead, Defendants argue that the documents released in response to the
fourth FOIA request did not actually shed light on why the FOIA processing of the Ravnitzky
request took so long because the records were redacted due to the fact they were classified or
otherwise exempt under FOIA. Defendants cite no legal authority to support this proposition.
Because “disclosure, not secrecy, is the dominant objective of [FOIA],” see Dep’t of the Air
Force v. Rose, 425 U.S. 352, 361 (1976), the Court declines to adopt this reasoning as it could
encourage heavy redaction.
The fourth and final factor relevant to a plaintiff’s entitlement to fees is whether
the agency’s withholding of the requested records was reasonable. Tax Analysts, 965 F.2d at
1093-94. Defendants do not argue that CIA was reasonable in withholding documents in
response to the first FOIA request, and thus this issue is conceded. See Hopkins v. Women’s
Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff'd, 98 F. App’x 8
(D.C. Cir. 2004).
7
With regard to the third and fourth FOIA requests, DIA contends that it did not
withhold documents at all, that there was simply a delay in administrative processing and delay
does not entitle a FOIA plaintiff to an award of fees, absent bad faith. See Read v. FAA, 252 F.
Supp. 2d 1108, 1112 (W.D. Wash. 2003) (finding that delay due to ineptitude alone is not
sufficient to weigh in favor of a fee award); Ellis v. United States, 941 F. Supp. 1068, 1080 (D.
Utah 1996) (when a plaintiff challenges the delay in production of requested documents rather
than withholding of documents, the reasonableness factor does not favor a fee award so long as
the Government was not engaging in obdurate behavior or acting in bad faith). Here, however,
DOD had delayed over 13 years in responding to the third FOIA request. DOD does not advance
any explanation for the length of the delay. Without more from DOD, it is difficult to find it was
reasonable in its protracted delay.
In sum, the factors relevant to NSC’s entitlement to attorney fees balance in favor
of NSC. NSC is entitled to attorney fees with respect to Counts 1, 3, and 4 of the Amended
Complaint.
2. Rates
Once it is determined that a litigant is entitled to attorney fees, the court must
calculate the award by multiplying the hours reasonably expended in the litigation by a
reasonable hourly fee––the “lodestar” 1 amount. Bd. of Trs. of Hotel & Restaurant Employees
Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). The fee applicant bears the burden of
demonstrating that the claimed rate and number of hours are reasonable. Blum v. Stenson, 465
1
The “lodestar” approach to fee awards was established by the Supreme Court in Hensley v.
Eckerhart, 461 U.S. 424 (1983), and is the approach followed by the federal courts in most fee
award disputes. See Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002).
8
U.S. 886, 897 (1984); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).
“[A]n attorney’s usual billing rate is presumptively the reasonable rate, provided that this rate is
in line with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Kattan by Thomas v. District of Columbia, 995
F.2d 274, 278 (D.C. Cir. 1993). A rate determined this way is usually deemed to be reasonable
and is referred to as the “prevailing market rate.” Blum, 465 U.S. at 895 n.11. Given the
variation in attorneys’ skills and experiences, the prevailing market rate for established
practitioners is higher than that for younger lawyers. See id. Reasonable attorneys’ fees include
charges for legal assistants and law clerks. Missouri v. Jenkins, 491 U.S. 274, 285 (1989); In re
Donovan, 877 F.2d 982, 993-94 (D.C. Cir. 1989) (paralegals and law clerks should be
compensated at their market rates).
The Laffey Matrix 1 was developed by the United States Attorney’s Office for the
District of Columbia and it provides the prevailing market rates for complex federal litigation in
the District of Columbia. Covington, 57 F.3d at 1109. It “creates one axis for a lawyer’s years
of experience in complicated federal litigation and a second [axis] for rates of compensation.”
Griffin v. Wash. Convention Ctr., 172 F. Supp. 2d 193, 197 (D.D.C. 2001).
NSC cites an “Adjusted Matrix” as the proper source for billing rates. See
http://www.laffeymatrix.com/see.html (last visited on May 11, 2016). NSC asserts that its
1
See Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff’d in part, rev’d in
part on other grounds, 74 F.2d 4 (D.C. Cir. 1984), as modified by Save Our Cumberland
Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988). See Laffey Matrix 2003-14,
https://www.justice.gov/sites/default/files/usao-dc/legacy/2013/09/09/Laffey_Matrix
%202014.pdf (last visited on May 11, 2016); Laffey Matrix 2014-15, https://www.justice.gov/
sites/default/files/usao-dc/legacy/2014/07/14/Laffey%20Matrix_2014-2015.pdf (last visited on
May 11, 2016); Laffey Matrix 2015-16, https://www.justice.gov/usao-dc/file/796471/download
(last visited on May 11, 2016).
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attorneys should be paid at adjusted higher rates because the Adjusted Matrix “uses more
accurate, recent base hourly rates” and because attorney Kelly McCallahan is a specialist with an
LLM in national security law. Mot. for Fees at 6-7; Reply at 10. Mr. McClanahan graduated
from law school in 2007. See Mot. for Fees, Ex. B (McClanahan Resume). Co-counsel Bradley
Moss graduated from law school in 2006. See Supp. Pet., Ex. B (Moss Resume). According to
the Adjusted Matrix, Mr. McClanahan’s hourly rate would be $361 for work before June 1,
2011, $374 for work the following year, and for the next years in succession $383, $393, $581,
and $586. Mr. Moss’s hourly rate for work done from June 1, 2014 through May 2015 would be
$581 and for work June 1, 2015 until now would be $586. 4 The Adjusted Matrix sets rates that
are 25% to 50% higher than the regular Laffey rates. For example, Mr. McClanahan’s rate in
2011 would be $275 per hour under the Laffey Matrix instead of $361 under the Adjusted
Matrix; his rate in 2015-16 would be $386 per hour under the Laffey Matrix and it would be $581
in 2015 and $586 in 2016 under the Adjusted Matrix.
The problem for NSC is that this was a typical FOIA case that was not complex.
It did not require the skills of a specialist in national security or privacy law. In fact, the bulk of
the work for which fees are requested was not even FOIA litigation, it was uncomplicated fee
litigation. The regular Laffey Matrix provides sufficient compensation for this run-of-the-mill
case. The Court declines to apply the enhanced rates set by the Adjusted Matrix.
3. Number of Hours Billed and Sufficiency of Information Provided
Fee applications must “include contemporaneous time records of hours worked
and rates claimed, plus a detailed description of the subject matter of the work with supporting
4
NSC also claims $179 per hour for over 11 hours of work by unidentified interns and an “of
counsel” attorney. Because NSC did not name these individuals or specify their skills and
training, no fees can be awarded for their work.
10
documents, if any.” Donovan, 877 F.2d at 994. A fee applicant may satisfy its burden of
demonstrating that its time was reasonably spent by submitting “‘sufficiently detailed
information about the hours logged and the work done’ that permits the district court to ‘make an
independent determination whether or not the hours claimed are justified.’” Cobell v. Norton,
231 F. Supp. 2d 295, 306 (D.D.C. 2002) (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of
Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)). The D.C. Circuit has emphasized that “[c]asual
after-the-fact estimates of time expended on a case are insufficient to support an award of
attorneys’ fees. Attorneys who anticipate making a fee application must maintain
contemporaneous, complete and standardized time records which accurately reflect the work
done by each attorney.” Concerned Veterans, 675 F.2d at 1327. “[I]t is insufficient to provide
the District Court with very broad summaries of work done and hours logged.” Id. “Hours may
also be rejected when work descriptions are so general that a court cannot ascertain the
reasonableness of the time claimed.” Davis County Solid Waste Mgmt. & Recovery Special Serv.
Dist. v. EPA, 169 F.3d 755, 761 (D.C. Cir. 1999). Further, a plaintiff is not entitled to attorney
fees for nonproductive time or for time expended on issues on which a plaintiff ultimately did
not prevail, see Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1499 (D.C. Cir. 1984); Judicial
Watch Inc. v. Dep’t of Justice, 878 F. Supp. 2d 225, 240 (D.D.C. 2012), and is not entitled to
fees for duplicative work, see Watkins v. Vance, 328 F. Supp. 2d 23, 26 (D.D.C. 2004).
NSC submitted a chart of billable hours with brief descriptions of the work
performed in the FOIA litigation. See Supp. Pet., Ex. A (McClanahan Decl.) [Dkt. 81-1] ¶ 7
(replacing prior submission). The chart includes time spent on unsuccessful work. It includes
work in pursuit of the second CIA request, NSC’s unsuccessful claim. It also includes work
related to NSC’s motion for leave to file an appellate reply brief with excess pages, filed at the
11
same time that it filed the too-long reply. See Supp. Opp’n, Ex. A (Circuit Docket Sheet). When
the Circuit denied the motion, NSC redrafted and refiled the reply. The attorney hours for this
also appear on NSC’s attorney fee chart. See McClanahan Decl. [Dkt. 81-1] ¶ 7 (entries on
4/12/15 through 7/24/15).
In addition to including hours billed for work on unsuccessful issues, the chart
appears to be an after-the-fact summary, not a contemporaneous record, and it lacks detail.
Further, there are 32 billing entries for time spent by one attorney “discussing case” with co-
counsel. The entries are duplicative, as they bill on the same day for the same time period for
both Mr. McClanahan’s discussions with Mr. Moss as well as Mr. Moss’s discussions with Mr.
McClanhan. See id. ¶ 7 (entries on 10/16/14, 10/27/14, 12/12/14, 1/5/15, 1/8/15, 11/11/15,
1/12/15, 3/17/15, 3/23/15, 3/30/15, 4/1/15, 4/3/15, 4/9/15, 4/10/15 through 4/12/15, 1/15/16).
While conversation between co-counsel may be necessary and productive at times, the high
number of such entries reveals duplicative and non-productive attorney work.
Even though the chart is not a contemporaneous record and it lacks specificity in
some instances, it is not so deficient as to justify a rejection of fees altogether. “Where the
documentation of hours is inadequate, the district court may reduce the award accordingly.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). When a large number of billing entries are
deficient, a court can reduce the fees by a reasonable “across-the-board percentage.” Role
Models Am., Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004); e.g., Berkeley v. Home Ins.
Co., 68 F.3d 1409, 1419-20 (D.C. Cir. 1995) (affirming lower court’s reduction of fees by 50%
in part due to the fact that the time records were created 2 years after the work was performed);
Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, 825 F. Supp. 2d 226, 231
(D.D.C. 2011) (awarding fees to plaintiff whose counsel did not keep contemporaneous records,
12
but reducing them by 37.5% to account for inaccuracies due to poor timekeeping habits);
Boehner v. McDermott, 541 F. Supp. 2d 310, 326 (D.D.C. 2008) (applying 25% reduction given
lack of substantiation of fee request). Instead, the Court will reduce the fees.
To sum up, the Court will award fees reduced by a reasonable percentage because
(1) the billing chart includes claims for which Plaintiff was not successful; (2) the chart was
prepared post hoc, lacks sufficient detail, and includes duplicative work; and (3) NSC seeks
excessive hourly rates instead of those set forth in the Laffey Matrix. 5 The Court will reduce the
fees by 40% (i.e., $36,700). The Court will award to NSC attorney fees in the amount of
$55,050 (i.e., $91,750 minus $36,700).
B. Costs
NSC also seeks to recover the following costs: $505 for filing the notice of appeal
in district court and $38.08 for binding the Joint Appendix. 6 Generally, the prevailing party on
appeal is entitled to costs taxed by the Circuit under Federal Rule of Appellate Procedure 39(a).
A party who seeks costs is required to file a request to the Circuit Clerk’s office within 14 days
5
Defendants also contend that the award of fees attributable to the fee litigation, so called “fees
on fees,” should be reduced to exclude time NSC spent unsuccessfully pursuing fee requests that
were denied by the Court. While the Supreme Court has found that “fees for fee litigation should
be excluded to the extent that the applicant ultimately fails to prevail in such litigation,” see
Commn’r, I.N.S. v. Jean, 496 U.S. 154, 163 n.10, a court can decline to reduce a fee award where
the plaintiff prevails on the major issues raised in its fee award motion. See Citizens for
Responsibility & Ethics in Washington, 825 F. Supp. 2d at 233; see also Tax Analysts, 965 F.2d
at 1094 (attorney fee award is in court’s discretion). Here, NSC prevailed on the major issues
and some amount of fees on fees is appropriate.
6
NSC had requested an award for the cost of printing and binding its appellate briefs, see
McClanahan Decl. ¶ 6, but later withdrew this request. See Supp. Reply [Dkt. 86] at 8.
13
after a judgment. See Fed. R. App. P. 39(d)(1); D.C. Cir. Rule 39(a). 7 This provision governs
NSC request for the $38.08 cost for the Joint Appendix.
NSC’s request for the $505 fee for filing the notice of appeal in district court is
governed by Federal Rule of Appellate Procedure 39(e), which provides that the cost for the
filing of the notice of appeal is taxable in the district court. Unlike Rule 39(d), Rule 39(e) does
not impose a time limit; a Rule 39(e) motion is timely if it is filed in the district court within a
“reasonable time” after the Circuit issues the mandate. Sudouest Import Sales Corp. v. Union
Carbide Corp., 102 F.R.D. 264, 265 (1984). 8
In this case, the Circuit entered judgment on January 15, 2016, and the mandate
was issued on March 9, 2016. See Judgment & Mandate [Dkt. 76]. NSC moved for costs as part
of its Supplemental Motion filed on April 4, 2016. See Supp. Pet. [Dkt. 81]. Thus, the request
for the cost of the Joint Appendix was filed too late and in the wrong court pursuant to Rule
39(d). April 4 was well past 14 days after the January 15 issuance of the Circuit’s judgment and
NSC filed its request in district court when it should have filed it in the Circuit. In contrast, the
petition for costs associated with filing the notice of appeal was filed within a reasonable time
7
The 14-day period can be extended upon motion if good cause is shown. Fed. R. App. P. 26;
see also Sims v. Great-West Life Assur. Co., 941 F.2d 368, 370-71 (5th Cir. 1991) (attorney’s
lack of knowledge regarding time limit did not demonstrate good cause); Mollura v. Miller, 621
F.2d 334, 336 (9th Cir. 1980) (counsel’s miscalendaring of event does not constitute good
cause).
8
The filing of a notice of appeal divests the district court of jurisdiction and vests jurisdiction in
the court of appeals over those matters on appeal. Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982); LaRouche v. U.S. Dep=t of Treasury, 112 F. Supp. 2d 48, 52 (D.D.C.
2000). The district court does not regain jurisdiction until the court of appeals issues its
mandate. United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997); see Murphy v. L & J
Press Corp., 577 F.3d 27, 29 (8th Cir. 1978) (district court proceedings after an appellate
judgment must await issuance of the mandate).
14
after the mandate was issued—the Mandate was issued on March 9, 2016 and the request for the
$505 notice of appeal fee was file on April 4, 2016. Accordingly, the Court will grant in part and
deny in part the request for costs, and will award $505 in costs to NSC.
C. Apportionment
Of the four claims at issue in this suit, NSC was successful on one claim against
CIA and two claims against DOD. Thus, CIA will be liable for paying 33.5 % of the fees and
costs awarded here, and DOD will be liable for paying the remaining 66.5%.
IV. CONCLUSION
Accordingly, NSC’s motion for attorney fees and costs [Dkt. 55] and
supplemental petition [Dkt. 81] will be granted in part and denied in part. NSC will be awarded
$55,050 for attorney fees and $505 in costs. CIA will be liable for 33.5% of the fees and costs,
and DOD will be liable for the remaining 66.5%. A memorializing Order accompanies this
Opinion.
Date: May 25, 2016 /s/
ROSEMARY M. COLLYER
United States District Judge
15