People for the Ethical Treatment of Animals v. National Institutes of Health, Department of Health and Human Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PEOPLE FOR THE ETHICAL )
TREATMENT OF ANIMALS, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-1818 (ABJ)
)
NATIONAL INSTITUTES OF HEALTH, )
DEPARTMENT OF HEALTH AND )
HUMAN SERVICES, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION AND ORDER
People for the Ethical Treatment of Animals (“PETA”) has filed an application for an
award of attorneys’ fees and costs pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552(a)(4)(E). Plaintiff seeks an award of $219,967.07 in attorneys’ fees and $7,273.21 in costs,
for a total of $227,240.28. Defendant National Institutes of Health (“NIH”) maintains that plaintiff
is neither eligible for nor entitled to a fee award under FOIA, and that the amount plaintiff seeks
is unreasonable.
The Court finds that plaintiff is eligible for and entitled to a fee award under FOIA. But
given the very narrow relief plaintiff obtained in this case, the Court finds that ten percent of the
amount claimed would be a reasonable award. The Court grants plaintiff’s application and awards
plaintiff a total of $22,724.03 in attorneys’ fees and costs.
BACKGROUND
I. Factual Background
This case concerned three FOIA requests PETA made to NIH regarding alleged violations
of animal welfare laws at Auburn University, a public university in Alabama that receives federal
funding from NIH for research on laboratory animals. PETA v. NIH, 853 F. Supp. 2d 146, 150
(D.D.C. 2012); aff’d in part and vacated in part, 745 F.3d 535 (D.C. Cir. 2014). 1 The complaint
alleges that on September 27, 2005, an Auburn University employee contacted NIH to report the
“misappropriation of NIH funds” by certain Auburn University researchers in connection with
their work on a five-year NIH research grant. Id. PETA sent three FOIA requests to defendant
in order to discover whether defendant had taken any action with respect to those allegations. Id.
PETA submitted its first FOIA request on February 28, 2006, seeking “copies of all [Office
of Laboratory Animal Welfare] 2 files concerning Auburn University.” Ex. 3 to Decl. of Carol
Maloney [Dkt. #13-2] (attached to Def.’s Mot. to Dismiss in Part and for Summ. J.) (the “First
Request”) at 11. Defendant produced some documents in response to the First Request, but
withheld or redacted others. PETA, 853 F. Supp. 2d at 150.
Plaintiff states that on August 30, 2006, six months after it submitted the First Request, it
sent a complaint to the U.S. Department of Agriculture (“USDA”) and to defendant “concerning
an eight-month long undercover investigation it had conducted” at Auburn University. Pl.’s Appl.
at 2; see also Ex. A to Pl.’s Appl. [Dkt. # 39-1] (the “August 2006 Letter”). The August 2006
1 The facts of the underlying case are set forth in the Court’s memorandum opinion, PETA
v. NIH, 853 F. Supp. 2d at 149–51.
2 This office within NIH is responsible for investigating alleged violations of animal welfare
laws by institutions that receive funding from the agency. Pl.’s Appl. for Attys’ Fees & Costs
[Dkt. # 39] (“Pl.’s Appl.”) at 8–9 n.1; Def.’s Mem. in Opp. to Pl.’s Appl. [Dkt. # 42] (“Def.’s
Opp.”) at 4.
2
Letter, which alleged violations of animal welfare laws and misuse of federal funds at Auburn
University, was addressed to the USDA with a copy to Dr. Elias Zerhouni, then-director of NIH.
August 2006 Letter at 1, 6; Pl.’s Appl. at 5.
PETA submitted a second FOIA request on July 25, 2007, seeking “copies of all official
investigative reports, preliminary notes, testimonies, memos, meeting minutes, phone
conversations, emails and other materials related to all National Institutes of Health (NIH)
investigations into complaints filed in 2005–present” regarding two NIH grant recipients and one
colleague at Auburn University. Ex. B to Pl.’s Appl. [Dkt. # 39-2] (the “Second Request”). The
Second Request did not specifically mention the August 2006 Letter, id., but the August 2006
Letter contained accusations about the three researchers named in the Second Request. See August
2006 Letter at 1–6.
On September 7, 2007, PETA sent a request to Auburn University under the Alabama Open
Records Act seeking access to records regarding investigations into surgeries performed by the
three researchers. Compl. ¶ 15; Ex. BB to Pl.’s Mot. for Partial Summ. J. [Dkt. # 15-27]. After
producing some documents, the university informed plaintiff that it could not comply with
plaintiff’s request because “Auburn University has a signed confidentiality agreement with NIH
relating to materials and information.” Compl. ¶ 17; Ex. CC to Pl.’s Mot. for Partial Summ. J.
[Dkt. # 15-28] at 2.
On August 21, 2008, after learning about the alleged confidentiality agreement, PETA
submitted a third FOIA request to defendant, repeating the Second Request and seeking “[c]opies
of any signed confidentiality agreement between Auburn University and NIH relating to materials
and information with regard to an investigation into the research of” one of the NIH grant recipients
“and colleagues.” Ex. GG to Pl.’s Mot. for Partial Summ. J. [Dkt. # 15-32] at 1 (the “Third
3
Request”). Like the Second Request, the Third Request did not specifically mention the August
2006 Letter. Third Request.
In response to the Second and Third Requests, NIH issued Glomar responses, refusing to
confirm or deny the existence of any responsive records on the grounds that to do so would
constitute an invasion of personal privacy protected by FOIA Exemptions 6 and 7(C). Compl.
¶¶ 18, 21, 23; see also Ex. 2 to Decl. of Carol Maloney [Dkt. # 13-2] at 7–10.
II. Procedural Background
PETA filed suit on October 27, 2010, seeking a declaratory judgment that NIH violated
FOIA by failing to disclose all non-exempt responsive records in responding to its FOIA requests
and that NIH violated the Administrative Procedure Act (“APA”) by requiring Auburn University
to enter into a confidentiality agreement that plaintiff contended was contrary to state law. PETA,
853 F. Supp. 2d at 149; Compl. at 11 (prayer for relief).
A. PETA’s Claims
The first FOIA count challenged defendant’s redacting or withholding records responsive
to the First Request. Compl. ¶ 25. Count II alleged that “[t]here is no statutory basis for NIH’s
wholesale refusal to process PETA’s [Second and Third Requests] for information concerning
investigations of particular recipients of federal funding, or to refuse to disclose the information
requested by those requests.” Id. ¶ 26. And Count III objected under the APA to defendant’s
alleged confidentiality agreement with Auburn University. Id. ¶ 27. Plaintiff additionally sought
to compel disclosure of records responsive to the FOIA requests, and an order requiring defendant
to rescind the confidentiality agreement with Auburn University. Id. at 11 (prayer for relief).
B. The Parties’ Dispositive Motions
On March 10, 2011, defendant filed a motion to dismiss the complaint in part and for
summary judgment. Def.’s Mot. to Dismiss in Part and for Summ. J. [Dkt. # 13]. On April 29,
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2011, plaintiff opposed the motion to dismiss and moved for partial summary judgment. Pl.’s Mot.
for Partial Summ. J. [Dkt. # 15]. Plaintiff’s motion “challeng[ed] only the government’s assertion
of a ‘Glomar’ response and the withholding of the ‘confidentiality agreement’.” Pl.’s Opp. &
Mem. in Supp. of Cross-Mot. for Partial Summ. J. [Dkt. #15] at 2 n.1. It did not respond to
defendant’s arguments with respect to Counts I or III. PETA, 853 F. Supp. 2d at 151.
After the case had been narrowed in that fashion, this Court issued a memorandum opinion
on April 10, 2012. PETA, 853 F. Supp. 2d 146. It treated Counts I and III as conceded, dismissing
those claims without prejudice, and granted summary judgment for NIH on Count II. Id. at 151,
159. Plaintiff appealed. Notice of Appeal [Dkt. # 28].
C. The D.C. Circuit’s Ruling
The D.C. Circuit summarily affirmed the decision on Counts I and III. Order (Nov. 2,
2012) [Dkt. # 30] (“Summary Affirmance Order”). As to Count II, the D.C. Circuit affirmed the
Court’s grant of summary judgment in part and vacated it in part, and remanded for a limited
search. PETA, 745 F.3d at 541–45.
The D.C. Circuit made four findings as to Count II, three of which were in favor of
defendant and one of which was in favor of plaintiff. Id. The Court agreed that NIH could assert
a Glomar response with respect to: (1) “any documents that would confirm the existence of an
investigation into the three named researchers;” (2) any “documents showing that the agency
received complaints about the researchers but declined to conduct an investigation in response;”
and (3) copies of any confidentiality agreement relating to any investigation of the named
researchers. Id. at 544–45.
But the D.C. Circuit also held that there “exists a . . . category of responsive documents
beyond those that would necessarily reveal an investigation of the three researchers: documents
showing that NIH responded to complaints about the three researchers by conducting an
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investigation that did not target the researchers themselves.” Id. at 544. It noted that PETA’s
“request presupposes a complaint filed against the named researchers,” but held that, “[i]n view of
the duty to construe FOIA requests liberally,” the Second Request “encompasses documents
relating to any ensuing investigation.” Id. at 544–45. The Court further held that a Glomar
response was not warranted as to “documents showing that NIH responded to complaints about
the three researchers by conducting an investigation that did not target the researchers themselves.”
Id. It remanded with instructions that defendant “search for any documents showing that, in
response to complaints filed against the named researchers, the agency conducted an investigation
other than one targeting the researchers,” and held that on remand, NIH may “issue a narrowed
Glomar response for any documents revealing whether the agency investigated the researchers
themselves.” Id. at 544.
D. Post-Remand Search
In response to the D.C. Circuit’s ruling, NIH performed a search “for any documents
showing that, in response to complaints filed against the named researchers, the agency conducted
an investigation other than one targeting the researchers.” Decl. of Susan R. Cornell [Dkt. # 39-6]
(“Cornell Decl.”) ¶ 3. The agency determined that it had no record of ever having received the
August 2006 Letter, so it conducted no investigation and had no responsive documents. See id.
¶¶ 4–8.
III. Application for Attorneys’ Fees
On December 4, 2014, PETA filed an application for attorneys’ fees, Pl.’s Appl., seeking
$219,967.07 in attorneys’ fees and $7,273.21 in costs, totaling $227,240.28. 3 Pl.’s Reply Mem.
in Supp. of its Pet. for an Award of Attys’ Fees & Costs [Dkt. # 44] (“Pl.’s Reply”) at 15–16 n.7.
3 Defendant opposed the application on February 27, 2015, Def.’s Opp., and plaintiff replied
on April 13, 2015.
6
Plaintiff asserts that the fee request does not reflect any time spent litigating Counts I or
III. Id. at 8. In addition, it claims that the fee request reflects a 25% reduction in plaintiff’s fees
and costs to reflect the fact that “PETA did not prevail on the part of the Glomar rationale that the
agency relied on to neither confirm nor deny some of the non-existent records.” Pl.’s Appl. at 27
(emphasis removed); see also Decl. of Katherine A. Meyer [Dkt. # 39-9] (“First Meyer Decl.”)
¶ 8.
ANALYSIS
FOIA provides that “[t]he court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case . . . in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). In this Circuit, a plaintiff “must satisfy two
requirements” in order to be awarded fees: it must be “eligible for fees” and it must be “entitled
to fees.” See, e.g., McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014). “The
eligibility prong asks whether a plaintiff has ‘substantially prevailed’ and thus ‘may’ receive fees.
. . . If so, the court proceeds to the entitlement prong and considers a variety of factors to determine
whether the plaintiff should receive fees.” Brayton v. Office of the U.S. Trade Representative, 641
F.3d 521, 524 (D.C. Cir. 2011), citing Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d
363, 368–69 (D.C. Cir. 2006).
I. PETA is Eligible for a Fee Award.
A plaintiff has “substantially prevailed” in a FOIA action, and become eligible for a fee
award under the statute, if it “obtained relief through either – (I) a judicial order, or an enforceable
written agreement or consent decree; or (II) a voluntary or unilateral change in position by the
agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii).
PETA alleges that it is eligible to recover attorneys’ fees under subsection (I) because it
obtained relief from the D.C. Circuit’s opinion, and under subsection (II) because of NIH’s
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“dramatic shift in position” verifying that it had not received the August 2006 Letter and had no
responsive records. Pl.’s Appl. at 10. NIH counters that PETA did not substantially prevail
because it obtained only “meager relief . . . in the D.C. Circuit, which resulted in no release of
information.” Def.’s Opp. at 15. The Court finds that PETA obtained relief through the D.C.
Circuit’s opinion because the Circuit Court ordered NIH to search its records for a category of
documents that fell outside the FOIA exemption.
A plaintiff “substantially prevail[s]” under subsection (I) if a court order “constitutes
judicial relief on the merits resulting in a ‘court-ordered change in the legal relationship between
the plaintiff and the defendant.’” Campaign for Responsible Transplantation v. FDA, 511 F.3d
187, 194 (D.C. Cir. 2007), quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health
& Human Res., 532 U.S. 598, 604 (2001); see also Davy v. CIA, 456 F.3d 162, 165 (D.C. Cir.
2006) (holding that the plaintiff substantially prevailed because “the order changed the legal
relationship between [the plaintiff] and the defendant” and the plaintiff “was awarded some relief
on the merits of his claim”) (alteration in original) (internal quotation marks and citation omitted).
A court order that changes the legal relationship between the parties is one that requires a party
“to do what the law required – something that it had theretofore been unwilling to do.” Campaign
for Responsible Transplantation, 511 F.3d at 196; see also Edmonds v. FBI, 417 F.3d 1319, 1324
(D.C. Cir. 2005) (a plaintiff substantially prevails if the court order “requir[ed] some action . . . by
the defendant”) (alteration in original), quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 493–
94 (D.C. Cir. 2003).
At the outset, the Court notes that the D.C. Circuit certainly did not award plaintiff all of
the relief it sought. The Circuit Court summarily affirmed this Court’s decision with respect to
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Counts I and III. Summary Affirmance Order. And it only awarded plaintiff relief on a narrow
portion of Count II.
Count II alleged that “[t]here is no statutory basis for NIH’s wholesale refusal to process
PETA’s . . . requests for information concerning investigations of particular recipients of federal
funding, or to refuse to disclose the information requested by those requests.” Compl. ¶ 26
(emphasis added). The D.C. Circuit rejected the argument that PETA was entitled to information
about investigations into the three researchers, which the Court characterized as the “heartland” of
responsive documents. See PETA, 745 F.3d at 541, 544. But it did grant plaintiff a narrow victory
by reading the Second Request as also seeking “documents showing that NIH responded to
complaints about the three researchers by conducting an investigation that did not target the
researchers themselves.” Id. at 544. Furthermore, it held:
Because there exists a category of responsive documents for which a
Glomar response would be unwarranted, NIH’s assertion of a blanket
Glomar response to the second request cannot be sustained. . . . On remand,
NIH must search for any documents showing that, in response to complaints
filed against the named researchers, the agency conducted an investigation
other than one targeting the researchers. But NIH still may issue a narrowed
Glomar response for any documents revealing whether the agency
investigated the researchers themselves.
Id. at 545.
NIH argues that this relief is not substantial within the meaning of the statute because
PETA only received a “small measure of success.” Def.’s Opp. at 18; see id. at 15, citing Mobley
v. DHS, 908 F. Supp. 2d 42, 48 (D.D.C. 2012) (“[I]f a plaintiff obtains only one small piece of the
relief it seeks in its complaint, . . . calling such prevalence ‘substantial’ is clearly incorrect[;] . . . a
FOIA plaintiff must obtain the essential elements of the relief that it seeks in its complaint in order
to substantially prevail”).
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While the Court agrees that the sum total of plaintiff’s victory in this case was small, the
test is not merely the size of the relief obtained but whether plaintiff obtained some judicial relief
on the merits that resulted in a “change in the legal relationship” between the parties. See
Campaign for Reasonable Transplantation, 511 F.3d at 194; see also Elec. Privacy Info. Ctr. v.
U.S. DHS, 999 F. Supp. 2d 61, 67 (D.D.C. 2013) (“a FOIA requester can still ‘substantially prevail’
even when it obtains less-than-full relief”), citing Judicial Watch, 470 F.3d at 371. Indeed, the
degree of plaintiff’s success is relevant to the size of reasonable fees, not to its eligibility for a fee
award. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790 (1989).
The Court finds that the D.C. Circuit’s order changed the legal relationship between PETA
and NIH, and it resulted in further action on the agency’s part. While the Glomar response to the
Second Request as it concerned the three researchers was “fully warranted,” the Circuit Court also
held that the request “broadly construed, encompasse[d] documents relating to any ensuing
investigation,” and documents responsive to that broader category could be withheld only if they
“reveal[ed] whether the agency investigated the researchers themselves.” PETA, 745 F.3d at 544–
45. Thus, if the agency had responsive documents that fell within the broader request, it would
have been required to release them to PETA. The fact that it did not have responsive documents
does not negate the fact that the D.C. Circuit’s ruling “changed the legal relationship” between
PETA and NIH. Davy v. CIA, 456 F.3d at 165 (internal quotation marks omitted). 4
4 This case is unlike other cases involving an order to conduct a search without more, which
some courts have held does not constitute judicial relief on the merits. See Oil, Chem. and Atomic
Workers Int’l v. Dep’t of Energy, 288 F.3d 452, 458 (D.C. Cir. 2002) (holding that an order for the
government to “complete its record review in 60 days” was a procedural ruling, not judicial relief
on the merits, because even after the order was issued, the government “still had no obligation”
turn over documents). Here, the Circuit Court ordered the broader search, which may uncover
“responsive documents for which a Glomar response would be unwarranted.” 745 F.3d at 545.
10
The Court therefore finds that plaintiff obtained relief on the merits through a judicial order,
and is thus eligible for an award of attorneys’ fees.
II. PETA is Entitled to a Fee Award.
If a plaintiff is “eligible” for a fee award, the court next determines whether the plaintiff
also is “entitled” an award. Citizens for Responsibility & Ethics in Wash. v. DOJ, 820 F. Supp. 2d
39, 45 (D.D.C. 2011). The issue of entitlement is left to the court’s discretion. Morley v. CIA, 719
F.3d 689, 691 (D.C. Cir. 2013) (Kavanaugh, J., concurring). In analyzing this issue, courts
consider four factors: (1) the public benefit derived from the case; (2) the commercial benefit to
the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether
the government’s withholding had a reasonable basis in law. See, e.g., id. at 690. None of the
factors are dispositive, although “the court will not assess fees when the agency has demonstrated
that it had a lawful right to withhold disclosure.” Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir.
2008).
The Court finds that the public benefit factor is neutral, the commercial benefit and
personal interest factors weigh in favor of plaintiff, and the reasonableness factor weighs in favor
of defendant. In an exercise of its discretion and in consideration of the record in this case, the
Court finds that plaintiff is eligible for a modest award of attorneys’ fees.
A. Public Benefit Derived from the Case
To assess the public benefit derived from the case, the Court must consider “both the effect
of the litigation for which fees are requested and the potential public value of the information
sought.” Davy v. CIA, 550 F.3d at 1159. The public benefit factor weighs in favor of granting
attorneys’ fees “where the complainant’s victory is likely to add to the fund of information that
citizens may use in making vital political choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C.
11
Cir. 1995). Courts “evaluate the specific documents at issue in the case at hand” in order to
determine the public benefit derived from the case. Id.
PETA argues that there is a public interest in learning about how NIH processes FOIA
requests concerning animal welfare violations, and that its lawsuit benefitted the public by
“bringing the government into compliance with the law.” Pl.’s Appl. at 17, quoting Cuneo v.
Rumsfeld, 553 F.2d 1360, 1366 (D.C. Cir. 1977) (emphasis removed). NIH argues that any public
benefit is “minimal” because it only conducted a limited search on remand, and found no
responsive documents. Def.’s Opp. at 23.
With respect to “the effect of the litigation for which fees are requested,” Davy, 550 F.3d
at 1159, the Court finds that this prong favors defendant. No documents were produced and the
litigation did not in fact generate any information about how NIH responds to animal welfare
complaints or the way it processes FOIA requests. Since nothing was produced and no information
was gleaned, there was nothing to “add to the fund of information that citizens may use in making
vital political choices.” Cotton, 63 F.3d at 1120.
As for “the potential public value of the information sought,” Davy v. CIA, 550 F.3d at
1159 (emphasis added), the Court finds that this prong favors plaintiff. The D.C. Circuit noted on
remand that “there is a cognizable public interest in learning how NIH handles complaints
concerning animal abuse and misappropriation of federal research funds” and “in shedding light
on NIH’s investigatory processes.” PETA, 745 F.3d at 542, 545. If on remand defendant had
produced “documents showing that, in response to complaints filed against the named researchers,
the agency conducted an investigation other than one targeting the researchers,” id. at 545, then
the litigation could potentially have shed light on both of those practices. The information sought
also could have shed light on the way that NIH responds to FOIA requests generally. See Negley
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v. FBI, 818 F. Supp. 2d 69, 75 (D.D.C. 2011) (the public benefit factor may be satisfied where the
litigation results in the release of “the baseline method by which [an agency] will search for and
respond to FOIA requests”). So the Court finds this element favors plaintiff.
Because the first prong favors NIH and the second prong favors PETA, the Court finds that
on balance this factor is neutral.
B. Commercial Benefit to Plaintiff and Plaintiff’s Interest in the Records Sought
The “commercial benefit” and “plaintiff’s interest” factors “are closely related and often
considered together.” Tax Analysts, 965 F.2d at 1095. They weigh against an award where the
plaintiff “seeks disclosure for a commercial benefit or out of other personal motives.” Id. The
factors tend to “favor non-profit organizations . . . which ‘aim to ferret out and make public
worthwhile, previously unknown government information – precisely the activity that FOIA’s fees
provision seeks to promote.’” Elec. Privacy Info. Ctr., 999 F. Supp. 2d at 69, quoting Davy, 550
F.3d at 1160.
NIH does not dispute that PETA obtained no commercial benefit from the litigation but
contends that it “had sufficient private incentive to seek disclosure without an award of attorneys’
fees” because plaintiff “admi[tted] that ‘[its] FOIA request was expressly aimed at ascertaining
what, if any, action NIH had taken in response to [the August 2006 Letter].’” Def.’s Opp. at 24
(emphasis removed).
The Court finds that these factors favor plaintiff. Plaintiff is a non-profit public interest
organization, PETA, 853 F. Supp. 2d at 149, and it was seeking documents from defendant “for
public informational purposes” only. Elec. Privacy Info. Ctr., 999 F. Supp. 2d at 69, quoting Davy,
550 F.3d at 1160; see also Citizens for Responsibility & Ethics in Wash., 820 F. Supp. 2d at 45 (a
non-profit plaintiff that “gathers information of potential interest to a segment of the public, uses
[its] editorial skills to turn the raw materials into a distinct work, and distributes that work to an
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audience,” is “among those whom Congress intended to be favorably treaded under FOIA’s fee
provision.”) (alteration in original), quoting Davy, 550 F.3d at 1161–62. The Court does not agree
with defendant that PETA’s efforts to ascertain what action NIH had taken in response to the
August 2006 Letter constitute interest for personal motives; on the contrary, the Court finds those
efforts to be “for public informational purposes” and “the kind of endeavor for which a public
subsidy makes some sense.” Elec. Privacy Info. Ctr., 999 F. Supp. 2d at 69, quoting Davy, 550
F.3d at 1160. Accordingly, the second and third prong favor plaintiff.
C. Reasonableness of NIH’s Position
Under the fourth factor, the Court assesses “whether the agency’s opposition to disclosure
had a reasonable basis in law” and “whether the agency [was] recalcitrant in its opposition to a
valid claim or otherwise engaged in obdurate behavior.” Davy, 550 F.3d at 1162 (citations and
internal quotation marks omitted). The government’s decision to withhold information may have
a reasonable basis in law even if the information was ultimately not found to be exempt. See
Negley, 818 F. Supp. 2d at 76, citing Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979).
PETA argues that NIH was obdurate and recalcitrant because it “continued to assert non-
existent personal privacy interests” throughout the litigation even though “it knew it had not
received PETA’s August 2006 [Letter] and hence had no records responsive to [the] July . . . 2007
FOIA request.” Pl.’s Appl. at 22 (emphasis removed) (alternation added). Defendant responds
that its Glomar response was reasonable, especially in light of the fact that this Court found for
defendant and the D.C. Circuit found that “a Glomar response is warranted for the heartland of
responsive documents.” Def.’s Opp. at 27, quoting PETA, 745 F.3d at 541.
The Court agrees with defendant. Count II alleged that “[t]here is no statutory basis for
NIH’s wholesale refusal to process PETA’s . . . requests for information concerning investigations
of particular recipients of federal funding, or to refuse to disclose the information requested by
14
those requests.” Compl. ¶ 26 (emphasis added). The Court interpreted the Second Request as
seeking “documents concerning all NIH investigations into complaints regarding three specifically
named researchers,” and held that NIH’s Glomar response was warranted for documents
responsive to that request. PETA, 853 F. Supp. 2d at 149, 159. The D.C. Circuit found the Court’s
reading of the request to be “understandable,” and it held that the Glomar response “would be fully
warranted” if PETA’s request was interpreted to be confined to records revealing the existence of
an investigation of the three researchers. PETA, 745 F.3d at 544. Based on all of the rulings in
this case, the Court does not find that NIH was obdurate or recalcitrant, and that it had a reasonable
basis in law for its Glomar response.
III. A Reasonable Fee Award is $22,724.03.
Upon determining that a plaintiff is both eligible for and entitled to a FOIA fee award, the
Court must then determine whether the requested award is reasonable. See 5 U.S.C.
§ 552(a)(4)(E)(i) (providing for “reasonable attorney fees and other litigation costs”) (emphasis
added).
PETA calculated its fee application using Laffey rates. 5 Pl.’s Appl. at 26; First Meyer Decl.
¶ 9. It seeks $219,967.07 in attorneys’ fees and $7,273.21 in costs, for a total of $227,240.28.
Pl.’s Reply at 15–16 n.7. The application reflects fees and costs from both the District Court and
Court of Appeals proceedings, as well as fees and costs incurred during remand and in preparing
5 Attorneys fees and costs are usually calculated by multiplying “the number of hours
reasonably expended . . . by a reasonable hourly rate.” Elec. Privacy Info. Ctr., 999 F. Supp. 2d
at 66, quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1323 (D.C. Cir.
1982). But in the case of public-interest lawyers, who do not have customary billing rates, courts
in this circuit frequently use the “Laffey Matrix,” first set forth in Laffey v. Northwest Airlines,
Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other grounds, 746 F.2d 4 (D.C. Cir. 1984). The
Laffey Matrix is a schedule of fees based on years of attorney experience. Judicial Watch, Inc. v.
DOJ, 774 F. Supp. 2d 225, 232 (D.D.C. 2011), citing Covington v. District of Columbia, 57 F.3d
1101, 1105–11 (D.C. Cir. 1995).
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the fee application itself. See Attach. 1 to First Meyer Decl. [Dkt. 39-9]; Decl. of Katherine A.
Meyer (Apr. 13, 2015) [Dkt. # 44-3] (“Second Meyer Decl.”) ¶¶ 1–2. Plaintiff states that the fees
it seeks only reflect work litigating Count II. Pl.’s Reply at 8 (“PETA did not spend any time
litigating Claims I and III, and hence is not asking for compensation for any such time.”) (emphasis
removed). Plaintiff also decreased its request by 25% to account for the fact that it did not prevail
on part of its Glomar argument. Pl.’s Appl. at 27; First Meyer Decl. ¶ 8.
To decide what portion of attorneys’ fees are recoverable, the Court considers “the
relationship between the amount of the fee [requested] and the results obtained.” Elec. Privacy
Info. Ctr., 999 F. Supp. 2d at 76, quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The
Court has discretion to adjust any request for attorneys’ fees that is unreasonable on its face, and
“[t]he reasonableness of a fee request must be evaluated in light of the results obtained.” Barnard
v. DHS, 656 F. Supp. 2d 91, 98 (D.D.C. 2009). The degree of plaintiff’s success is the “most
critical factor” in determining the reasonableness of a fee award. Farrar v. Hobby, 506 U.S. 103,
114 (1992); see also Hensley, 461 U.S. at 440 (“the extent of a plaintiff’s success is a crucial factor
in determining the proper amount of an award of attorney’s fees.”); Judicial Watch, 470 F.3d at
369 (“A plaintiff’s overall success on the merits . . . must be considered in determining the
reasonableness of a fee award.”).
As explained above, PETA prevailed only on a narrow portion of the relief it requested.
The complaint raised three counts, two of which were dismissed, and the dismissals were
summarily affirmed. Plaintiff did not prevail on Count II at the trial level, and the District Court’s
ruling with respect to the bulk of records called for under a fair reading of the request in question
was also upheld. It prevailed only to the extent the request could be broadly read to seek other
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documents. And even with respect to that category of documents, it turned out there were no
responsive documents. Def.’s Opp. at 12; Cornell Decl. at ¶¶ 4–8.
Given the narrow slice of relief that PETA obtained, the Court finds that a reasonable fee
award is ten percent of PETA’s claimed amount, or $22,724.03. See, e.g., Piper v. DOJ, 339 F.
Supp. 2d 13, 24–25 (D.D.C. 2004) (decreasing a fee award by 50% because the plaintiff prevailed
only in part).
CONCLUSION
For the reasons set forth above, it is
ORDERED that PETA’s application for attorneys fees and costs [Dkt. # 39] is granted in
part and denied in part. It is
FURTHER ORDERED that defendant shall pay plaintiff $22,724.03 in attorneys’ fees
and expenses.
AMY BERMAN JACKSON
United States District Judge
DATE: September 11, 2015
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