DocketNumber: Case No. 16-cv-05254-MEJ
Citation Numbers: 365 F. Supp. 3d 993
Judges: James, Maria
Filed Date: 6/14/2018
Status: Precedential
Modified Date: 7/25/2022
INTRODUCTION
Plaintiff Ecological Rights Foundation (EcoRights) moves to recover $ 702,000 in attorneys' fees and $ 1,728.79 in costs it incurred litigating this Freedom of Information Act (FOIA) action. See Mot., Dkt. No. 98; Reply at 1 n.1 (providing updated figures), Dkt. No. 128; Reply C. Sproul Decl., Dkt. No. 128-2; May 31, 2018 FTR at 11:20 (fees at issue are $ 702,000). Defendant Federal Emergency Management Agency (FEMA) asks the Court to reduce the fee award to a "still significant $ 200,878.71." Opp'n at 22, Dkt. No. 124. FEMA does not oppose the request for costs. Id. at 22-23.
After EcoRights and FEMA attended an unsuccessful settlement conference regarding the fee dispute, the Motion was fully briefed and argued before this Court on May 31, 2018.
For the reasons set forth below, the Court GRANTS IN PART EcoRights' Motion, and awards EcoRights $ 316,000 in reasonable attorneys' fees and $ 1,728.79 in costs.
LEGAL STANDARD
FOIA's fee-shifting provision grants courts discretion "to assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed."
To be eligible for an award, a party must show that "(1) the filing of the action could reasonably have been regarded as *998necessary to obtain the information," and that "(2) the filing of the action had a substantial causative effect on the delivery of the information." Church of Scientology ,
Once a court determines a party is eligible for an award, it exercises its "discretion to determine whether the plaintiff is entitled to fees." Oregon Nat. Desert Ass'n v. Locke ,
If a court determines that a party is both eligible and entitled to an award, that party "must submit [a] fee bill to the court for its scrutiny of the reasonableness of (a) the number of hours expended and (b) the hourly fee claimed." Long ,
DICUSSION
FEMA concedes EcoRights is eligible to recover attorneys' fees, and that it is entitled to recover at least some of the fees it requests. However, FEMA argues EcoRights' fees are generally unreasonable because the matter was overstaffed, the requested hourly rates are excessive, and EcoRights billed excessively. FEMA further argues that EcoRights is not entitled to recover fees billed for specific tasks, including:
• Arguing issues upon which it did not prevail, including the search cut off dates, the adequacy of FEMA's Vaughn Index at the administrative stage, and forward-looking injunctive relief. See Opp'n at 7-8, 16.
• Preparing documents it eventually withdrew, such as its first motion for summary judgment and the claims asserted in the proposed third amended complaint.2 Id. at 8-9, 16-17.
• Working on papers it did not file (a motion to enforce a court order or a motion to shorten time), on work related to other matters, or on work performed at the administrative stage of the FOIA process. Id. at 17.
*999• Opposing FEMA's motion to stay this Court's Order pending appeal. Id. at 12, 15.
• Working on the instant fees motion. Id. at 18-19.
EcoRights in its Reply agreed to eliminate approximately $ 40,000 in fees for time spent on the administrative stage of the FOIA proceedings, "getting up to speed" on the case, quality control work, and for a portion of the fees requested in connection with the present Motion; EcoRights otherwise opposes FEMA's arguments to cut its fees request. See Reply at 9, 11, 13 ns. 5-6; see also Reply C. Sproul Decl.
The Court agrees that EcoRights is eligible to recover attorneys' fees, and turns to FEMA's arguments regarding entitlement and reasonableness.
A. Entitlement to Fees
Applying the Church of Scientology factors, the Court finds EcoRights is entitled to recover the reasonable attorneys' fees it incurred in securing the release of FEMA governments under FOIA.
In considering the public benefit factor, courts consider "the degree of dissemination and the likely public impact that might result from disclosure." Church of Scientology ,
EcoRights is a " 'nonprofit public interest group[ ] organized [to] alert the public of issues concerning environmental and health risks.' " Mot. at 16 (quoting Sierra Club ,
*1000"The second and third factors are the commercial benefit to the complainant and the nature of the complainant's interest in the records sought. Courts regularly consider these factors together." Our Children's Earth Found. v. Nat'l Marine Fisheries Serv. ,
The fourth factor is "whether the government's withholding had a reasonable basis in law"; in other words, whether the government's actions appeared to have "a colorable basis in law" or instead appeared to be carried out "merely to avoid embarrassment or to frustrate the requester." Church of Scientology ,
To summarize, all the Church of Scientology factors weigh in favor of awarding fees to EcoRights in this action.
B. Reasonableness of Fees
Having found EcoRights is entitled to fees, the Court considers the reasonableness of its request.
1. Applicable Standard
"[A] 'reasonable' number of hours equals the number of hours which could reasonably have been billed to a private client." Gonzalez v. City of Maywood ,
2. FEMA's Claims- or Task-Based Arguments
FEMA argues EcoRights should not recover for work performed in connection with claims it "lost" such as the *1002search cut-off date or the argument FEMA should have provided more complete Vaughn indices at the administrative stage. See Opp'n at 7-8 (citing Hajro v. U.S. CIS ,
The Court cannot find the claims EcoRights lost or abandoned "intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted [by this Court] is premised." See Second Am. Compl., Dkt. No. 43. Each of the claims EcoRights asserted in the SAC sought to remedy the same course of conduct: FEMA's failure to timely and fully comply with its obligations *1003under FOIA. While FEMA contends EcoRights should not recover fees for its request for forward-looking injunctive relief, that claim was not "distinctly different" from the claims upon which EcoRights succeeded; it merely sought different type of relief for FEMA's FOIA violations. EcoRights did lose its claim based on the use of search cut off, and the Court did not accept EcoRights' argument that FEMA should have made more fulsome disclosures regarding exemptions at the administrative stage. See Order re: Summ. J. But those claims also were based on the same factual underpinnings: FEMA's failure to timely and adequately produce documents regarding the ESA pursuant to FOIA.
EcoRights seeks to recover fees incurred in drafting documents it ultimately did not file, but the Court cannot find that EcoRights work to draft these documents was not necessary to the case, or that preparing these documents was not necessary to force FEMA to abide by its discovery obligations. For example, while EcoRights withdrew its first summary judgment motion, EcoRights used that motion to guide settlement conference negotiations and obtain a partial settlement of its claims. See Reply C. Sproul Decl. ¶ 4. Similarly, while EcoRights never filed its Third Amended Complaint, the Court cannot find that FEMA's knowledge of the document and EcoRights' intention to file it, did not lead FEMA to respond to the FOIA request. Id. ¶¶ 6-7.
FEMA also argues EcoRights should not be compensated for opposing FEMA's motion to stay because the opposition "relates to plaintiff's desire to use the unredacted documents obtained from FEMA in the ESA lawsuits before Judge Donato." Opp'n at 12. FEMA offers no legal support for this position, and the Court finds EcoRights' opposition to the stay was necessary and reasonable to finally obtain the information FEMA had been withholding for approximately two years.
The Court thus rejects FEMA's request to cut fees connected to particular tasks, arguments, or documents. EcoRights prevailed on its core claims. This merits a fully compensatory award of reasonable fees. See Hensley ,
3. General Reasonableness
FEMA argues that EcoRights' request reflects overstaffing, unreasonably high hourly rates and excessive and cumulative billing. Opp'n at 15-16, 20-22. Based on its overall sense of the suit and the following three examples, FEMA's arguments about *1004the reasonableness of EcoRights' fees are well taken.
i. CMC Statement
FEMA contends EcoRights seeks to recover $ 12,066 for 25.6 hours spent on the initial case management statement. See Opp'n at 21 (citing Wall Decl., Ex. L.1, Dkt. No. 124-1). EcoRights does not dispute the accuracy of this figure, nor explain why it was reasonable to spend this amount of time on a form document, in a case concerning an area of law with which EcoRights' attorneys are familiar. See Reply; Sproul Decl. ¶¶ 6-11, Dkt. No. 102. The Court cannot find that this was reasonable, and instead finds that a reasonable client would not have paid for even half of those hours at the rate counsel charged. See Fleming v. Kemper Nat. Servs., Inc. ,
ii. Motions for Summary Judgment
EcoRights also spent more than $ 150,000 in preparing two motions for summary judgment in this matter. See Wall Decl., Ex. B ($ 32,500 on first (withdrawn) MSJ; $ 120,500 on second MSJ). EcoRights argues these figures are inaccurate but does not offer its own calculations (Reply at 5); it also argues that "the work for this first motion expedited EcoRights' ultimately successful second summary judgment motion as EcoRights re-used some of the arguments and legal research in the first motion in the second motion" (id. at 5 (citing Reply C. Sproul Decl. ¶ 5) ). The summary judgment motions addressed issues that were relatively legally straightforward. Moreover, EcoRights' counsel already had researched the issues in the second motion for summary judgment and briefed them not only in connection with the first, withdrawn motion in this case, but in connection with a motion for summary judgment EcoRights filed in another case last year. See Our Children's Earth , N.D. Cal. Case No. 14-cv-1130, Dkt. No. 32 (Mot. for Summ. J.). For instance, of the 47 cases EcoRights cited in its second motion for summary judgment, it had relied on all but two of them in its first, withdrawn motion. Compare Second Mot. at 3-6, Dkt. No. 42, with First Motion at 3-4, Dkt. No. 26. Moreover, EcoRights had cited 28 of those cases in the motion for summary judgment its counsel filed in Our Children's Earth Foundation . Compare Second Mot. at 3-6, with Our Children's Earth Mot. at 3-6.
EcoRights' first and second summary judgment motions were largely substantively identical in content; the only difference in the table of contents for the two motions is a factual discussion of FEMA's response to EcoRights' third FOIA request and of the parties' partial settlement agreement. Compare Second Mot. at 2, with First Motion at 2.
The requested $ 120,500 for fees incurred in connection with the second motion of course includes fees for reviewing the Opposition and drafting the Reply, and arguing before this Court; however, under *1005these circumstances, the Court cannot find that billing anywhere close to $ 120,500 for the Second Motion was reasonable.
This is all the more so given the significant hourly rate charged by EcoRights' counsel, a rate they justify by their expertise in environmental law and their previous experience litigating FOIA cases. See, e.g. , Sproul Decl. ¶¶ 4-14
Again, the Court cannot find that this was reasonable. Given the $ 30,000 counsel already had incurred in drafting the substantively identical First Motion, the Court finds a reasonable client would not have paid for even half of the hours that counsel charged at the rates charged. See Welch v. Metro. Life Ins. Co. ,
iii. Fees Motion
EcoRights seeks to recover more than $ 200,000 for fees incurred in connection with the Fees Motion (including drafting the briefs, conferring with FEMA, preparing for and attending the settlement conference with Judge Kim). See Wall Decl., Ex. L (identifying 343.4 hours in FEMA's billing records related to Fees Motion, totaling $ 181,043.05 through filing of the Motion); Reply C. Sproul Suppl. Dec. ¶ 12 (Exhibit L includes time spent on negotiation, settlement, working out briefing schedule for fees motion, not just drafting of fees motion; also one entry for 0.25 hours included not only time spent on fees issue, but "time spent on the Court's ordered status report"); id. ¶ 16 (exercising further billing judgment to reduce fees on fees); id. ¶ 22 (EcoRights incurred more than an additional $ 100,000 in attorneys' fees after filing opening brief on Motion).
On January 25, 2018, the parties appeared for a telephonic status conference before the undersigned. See Jan. 25, 2018 *1006FTR at 10:31. EcoRights explained it had provided a fee demand to FEMA regarding the fees and costs issues, and asked the Court to direct the parties to meet and confer in person regarding those issues before EcoRights were to file a fees motion. Id. at 10:37-38. FEMA explained it required authority from the Agency to settle EcoRight's "significant" fee demand, and that this would take "some time" to obtain. Id. at 10:38-10:39; see also id. at 10:40-41 (explaining FEMA requires five levels of authority to approve demands as large as EcoRights', and based on experience, estimating it could take 3-4 months for FEMA to go through these levels). FEMA counsel suggested the parties continue to discuss the matter informally, and that it would be happy to attend a settlement conference with a magistrate judge. Id. at 10:39. FEMA counsel was "hopeful" he could make meaningful progress in next month and make a counter-offer; EcoRights could then decide whether to file a fees motion. Id. at 10:41-42, 10:44. The Court scheduled a status conference in 30 days "to determine whether we're going to have a fees motion or whether I'm going to send you to a settlement conference." Id. at 10:42. EcoRights expressed frustration at the timeline proposed by FEMA and the Court and asked the Court to clarify what was being ordered. Id. at 10:45. The Court stated, on the record: "Within 30 days, [counsel for FEMA] is directed to pursue a counter-offer to your demand from the Government and get authority for that.... I'll keep a leash on it. It's not going to be as short as you want.... But honestly, having done these cases before, it doesn't matter what I order, they're going to go through their channels...." Id. The Court set a further telephonic status conference for February 22, 2018. See Minute Entry, Dkt. No. 94.
EcoRights filed its Fees Motion on February 16, 2018-six days before the conference that would determine whether the parties would proceed by motion or by settlement conference. See Mot. EcoRights contends it was forced to file its Motion for Attorneys' Fees on February 16, 2018 because of the Court's deadline for doing so. See Reply at 10 n.3. This argument borders on the disingenuous. On January 23, 2018, the Court granted the parties' stipulation and ordered EcoRights to file its Fees Motion by February 16 (Dkt. No. 91); but it subsequently scheduled the February 22 status conference to determine how the parties would proceed-by motion or settlement conference. In light of the discussion during the January 25, 2018 status conference, EcoRights should have been well-aware that the Court would continue any deadline for filing a fees motion. Rather than seek an extension or clarification, EcoRights chose to spend hundreds of hours drafting the Motion. In deciding to forge ahead and incur these significant fees, EcoRights increased the amount of attorneys' fees at issue, which made settlement more difficult to reach. The Court cannot find a reasonable paying, private client would have authorized this approach, but instead would have requested counsel stand down and stop accruing fees until the Court and the parties determined whether the matter would proceed to mediation or by motion.
Nor can the Court conclude the hours EcoRights expended on the Motion were otherwise reasonable.
C. Lodestar
The Court finds that counsel could not have billed a private client $ 702,000 for what was essentially a contentious, hard-fought discovery dispute, which did not involve depositions, experts, or particularly complex issues. See Gonzalez ,
Extrapolating counsel's billing on the CMC statement, Second Summary Judgment Motion, and Fees Motion, and based on the Court's overall experience with the case and its review of the billing records, the Court finds the claimed hours are excessive and that a 55% across-the-board reduction is appropriate. The resulting $ 316,000 in fees is a considerable award, which reflects the fact that FEMA's ability or willingness to timely comply with its obligations under FEMA significantly increased EcoRights' fees in this matter.
D. Costs
EcoRights seeks $ 1,728 in costs. FEMA does not oppose the request. The Court awards EcoRights the full amount it seeks in costs.
CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART EcoRights' Motion, *1009and awards $ 316,000 in fees and $ 1,728 in costs to EcoRights.
IT IS SO ORDERED.
The Court previously summarized the long and somewhat tortuous course of this action in its Order granting EcoRights' Motion for Summary Judgment; it will not reproduce that background here. See Order re: Summ. J., Dkt. No. 74; see also Mot. at 3-12 (summarizing litigation).
EcoRights moved for leave to file a third amended complaint (Dkt. No. 53), and subsequently withdrew that motion (Dkt. No. 64).
During the hearing on the Motion, EcoRights also conceded a February 14, 2018 time entry for M. Coyne included an error in the amount of $ 18,759, and abandoned its request for those fees. See May 31, 2018 FTR at 11:13, 11:16 ("The fees we are seeking should be reduced by $ 19,000").
In Hajro , the claimant asserted nine factually and legally distinct causes of action: two actions by CIS violated a prior settlement agreement; the timing of CIS' FOIA responses violated FOIA; CIS failed to notify the claimant that it could not timely process his request; CIS had a pattern and practice of failing to comply with FOIA timing requirements; CIS unlawfully withheld information; withholding of nonexempt material violated claimant's due process rights because it interfered with his ability to appeal his naturalization denial and violated his right to a fair hearing; CIS' policy violated Fifth Amendment guarantee of Equal Protection; and adoption of policy without notice and comment rulemaking procedure violated the APA.
In Oregon Natural Desert Ass'n , the district court granted summary judgment to the FOIA claimant on three out of four claims.
Assuming these claims are sufficiently factually and legally distinct to warrant reducing a fee award, EcoRights counsel declares "a very small portion of EcoRights hours on its summary judgment motions were spent on these issues, no more than about 5% maximum." Reply C. Sproul Decl. ¶ 8. To the extent the award must be reduced to reflect this small portion of the fees, that reduction would be captured by the adjustment reflected below.
Id. ¶ 6 ("I have exclusively represented non-profit environmental organizations and individuals seeking to advance environmental protection through judicial litigation and administrative advocacy under the major environmental laws, ... including the Freedom of Information Act ('FOIA') )"; id. ¶ 7 ("I have also represented such clients in various suits brought under FOIA against federal agencies.... My clients and I frequently utilize FOIA to acquire the documents necessary for our public interest advocacy work."); id. ¶ 9 ("[M]any of these cases [Mr. Sproul brought on behalf of clients] have established important precedent in environmental law or under FOIA."); id. ¶ 11 ("While at EPA, one of my areas of responsibility was to advise EPA officials concerning compliance with FOIA and to assist with EPA responses to FOIA requests.").
EcoRight challenges FEMA's calculation, but does not offer one of its own.
EcoRights does not break out the fees it is claiming for "fees on fees" but in a demonstrative FEMA handed to the Court on May 31, 2018, to which EcoRights objected on the basis of unfair surprise, FEMA contends the "fees on fees" incurred by EcoRights through the Reply amount to $ 214,266, or almost 30% of the total $ 702,000 sought. The Court has not parsed through EcoRights' voluminous entries to confirm FEMA's calculations, and it sustains EcoRights' objection to the introduction of the demonstrative as evidence in the record. EcoRights admitted at the May 31 hearing that it has spent over 300 hours in connection with the Motion and associated proceedings. See supra. EcoRights claims a total of 1,367 hours. Reply C. Sproul Decl., Ex. 1; Coyne Suppl. Decl. Ex. 1 (48.75 hour error on Feb. 14, 2018). Based on these figures, the Court can estimate that the fees on fees hours account for at least 22 percent of the total hours (as revised on Reply and at the hearing) that EcoRights requests through this Motion. This is a significant portion of the total fees sought in this matter.
Based on the year in which work was performed, C. Sproul requests an hourly rate between $ 775 and $ 825; F. Evanson requests an hourly rate between $ 675 and $ 735; and D. Hunt between $ 610 and $ 655. Reply C. Sproul Decl., Ex. 1. More junior attorneys billed between $ 350 and $ 470 per hour. Id.