Electronic Privacy Information Center v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY INFORMATION
CENTER,
Plaintiff,
Civil Action No. 12-667 (CKK)
v.
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
MEMORANDUN OPINION
(February 20, 2015)
Plaintiff, Electronic Privacy Information Center (“EPIC”), filed a Motion for Attorney’s
Fees which the Court referred to Magistrate Judge Alan Kay. See Order (Feb. 4, 2014), ECF No.
[34]. Magistrate Judge Kay submitted a Report and Recommendation to the Court,
recommending that Defendant, the Federal Bureau of Investigation (“FBI”), pay $20,799 in
attorney’s fees and $350 in costs to EPIC.1 Report & Recomm. (“R&R”), ECF No. [38].
Presently before the Court are the parties’ Objections to the Report and Recommendation. Upon
consideration of the pleadings,2 the relevant legal authorities, and the record as a whole, the
1
The Report and Recommendation actually recommends “awarding attorney’s fees and
costs in the total amount of $20,799.” R&R at 14 (emphasis added). However, after
independently calculating the attorney’s fees and costs award based on the reductions
recommended by Magistrate Judge Kay, the Court believes the Magistrate Judge Kay mistakenly
subtracted the $350 costs award from the amount cited as the total fees and costs award in the
Report and Recommendation.
2
While the Court’s decision is based on the record as a whole, the Court’s analysis
focuses on the following documents: Pl.’s Mot. Atty. Fees (“Pl.’s Mot.”), ECF No. [28]; Def.’s
Opp’n to Pl.’s Mot. Atty. Fees (“Def.’s Opp’n”), EFC No. [31]; Pl.’s Reply to Mot. Atty. Fees
(“Pl.’s Reply”), ECF No. [32]; Report & Recomm. (“R&R”), ECF No. [42]; Pl.’s Objs. to R&R
Court finds that, although the majority of Magistrate Judge Kay’s recommendations are based on
sound reasoning and shall be adopted, EPIC’s objections to certain of Magistrate Judge Kay’s
reductions in the attorney’s fees award have merit. Accordingly, Magistrate Judge Kay’s Report
and Recommendation is ADOPTED as modified in this Memorandum Opinion. Additionally,
the Court has determined that the FBI shall pay EPIC $9,175.50 for attorney’s fees expended by
EPIC in preparing its initial motion for attorney’s fees and its Objections to the Report and
Recommendation. In total, the Court shall award EPIC $29,635 in attorney’s fees and costs.
I. BACKGROUND
According to its Complaint, EPIC is a “public interest research organization incorporated
as a not-for profit corporation in Washington, D.C. EPIC[] conducts oversight of Government
activities and policies and analyzes their impact on civil liberties and privacy interests.” Compl.,
¶ 4. On February 10, 2012, EPIC submitted a FOIA request to the FBI requesting agency
records regarding cell-site simulator or “StingRay” technology, which EPIC asserts is used by
the FBI and other federal agencies to track and locate cellular telephones and other wireless
devices. See id. ¶¶ 6, 19. The request specifically sought:
i. “All documents concerning technical specifications of the StingRay device or
other cell-site simulator technologies”;
ii. “All documents concerning procedural requirements or guidelines for the use of
StingRay device or other cell-site simulator technologies (e.g. configuration, data
retention, data deletion)”;
iii. “All contracts and statements of work that relate to StingRay device or other
cellsite simulator technologies”;
(“Pl.’s Objs.”), ECF No. [41]; Def.’s Objs. to R&R (“Def.’s Objs.”), ECF No. [42]; Pl.’s Resp. to
Def.’s Objs. (“Pl.’s Resp.”), ECF No. [43]; Def.’s Resp. to Pl.’s Objs. (“Def.’s Resp.”), ECF No.
[44]; Def.’s Reply to Pl.’s Resp. (“Def.’s Reply”), ECF No. [45]; Pl.’s Reply to Def.’s Resp.
(“Pl.’s Reply”), ECF No. [46].
2
iv. “All memoranda regarding the legal basis for the use of StingRay device or other
cell-site simulator technologies”; and
v. “All Privacy Impact Assessments or Reports concerning the use or capabilities of
StingRay device or other cell-site simulator technologies.”
Id. ¶ 20. EPIC asked the FBI to expedite its response to the request, grant EPIC “News Media”
fee status, and waive all duplication fees. Id. ¶¶ 21-23.
The FBI acknowledged receipt of EPIC’s request on February 16, 2012. Id. ¶ 25. On
March 20, 2012, having received no further correspondence from the FBI regarding its request,
EPIC filed an administrative appeal with the Office of Information Policy, part of the
Department of Justice. Id. ¶¶ 30-31. According to EPIC, the Department of Justice failed to
respond to EPIC’s appeal within the twenty-day deadline set by the FOIA. Id. ¶ 35. EPIC filed
suit in this Court on April 26, 2012, alleging that the FBI failed to comply with statutory
deadlines, failed to make reasonable efforts to search for responsive records, unlawfully withheld
agency records, and failed to designate EPIC as a representative of the news media for fee
purposes. Id. ¶¶ 37-54.
On June 4, 2012, the FBI granted EPIC a fee waiver, but denied expedited processing of
EPIC’s request for agency records. Def.’s Opp’n at 2. The parties disagreed on a production
schedule. In a July 1, 2012, Scheduling Order, the Court found that “[t]he FBI exceeded the
statutorily prescribed time frames for responding to EPIC’s request over three months ago, and now
requests an additional two years and five months to complete its production of responsive
documents.” Order (July 1, 2012), ECF No. [13], at 2. Accordingly, the Court ordered the FBI
to file an Open America stay by July 30, 2012, or else the Court would adopt Plaintiff’s proposed
schedule. Id. The FBI filed a Motion for an Open America Stay and, during the pendency of
that Motion, began making rolling productions. Def.’s Opp’n at 4. On March 28, 2013, the
3
Court denied the FBI’s Motion for an Open America Stay finding that the FBI had “not
demonstrated exceptional circumstances exist so as to warrant the fourteen-month stay of
proceedings requested by the FBI.” Mem. Op. (Mar. 28, 2013), ECF No. [19], at 1. The Court
ordered the FBI to produce all responsive, non-exempt documents by no later than August 1,
2013. Id. at 12.
The parties filed a Joint Status Report on August 29, 2013, and proposed a schedule for
the production of a Vaughn index by the FBI to accompany a 500-page sample of released
documents selected by EPIC. See Joint Status Report (Aug. 29, 2013), ECF No. [23], ¶ 10.
EPIC requested the Vaughn index to assist it in evaluating the FBI’s withholdings under
Exemption 3 and Exemption 7(E) and in determining how to proceed in this matter. Id.
Pursuant to its preparation of the Vaughn index, the FBI “voluntarily agreed to review the 500
pages to determine if there were additional terms that could be released.” Joint Status Report
(Nov. 1, 2013), ECF No. [25], ¶ 6. On October 1, 2013, the FBI produced the sample Vaughn
index as well as the reprocessed sample pages which included terms that had originally been
redacted. Id. ¶ 7.
On November 1, 2013, the parties filed a Joint Status Report indicating that the FBI had
produced documents on a rolling basis through July 30, 2013, and had completed its production
and that EPIC was willing to resolve the remaining legal issues in this case—attorney’s fees and
costs—through settlement. Id. ¶¶ 5, 8. The parties, however, were unable to come to an
agreement about attorney’s fees and costs. See Joint Status Report (Nov. 12, 2013), ECF No.
[27], ¶¶ 2-3. Accordingly, EPIC filed a Motion for Attorney’s Fees on December 19, 2013,
requesting a total of $33,802.00 in attorney’s fees and $350 in costs. Pl.’s Mot. at 12. The FBI
subsequently filed an Opposition and EPIC filed a Reply.
4
The Court referred EPIC’s Motion to Magistrate Judge Kay for a Report and
Recommendation. Magistrate Judge Kay issued his Report and Recommendation on September
19, 2014, recommending that the Court award EPIC $20,799 in attorney’s fees and $350 in costs.
R&R at 14. Magistrate Judge Kay awarded attorney’s fees and costs in an amount lower than
that requested by EPIC on the basis that EPIC billed an excessive amount of time for drafting the
Complaint and preparing the Joint Proposed Schedule. Id. at 9-10. Magistrate Judge Kay also
reduced the amount of attorney’s fees after finding that EPIC should not recover for time spent
reviewing documents received following the Court’s Open America Order. Id. at 10-12.
Magistrate Judge Kay abstained from evaluating EPIC’s request for fees-on-fees until the issue
of attorney’s fees for litigating the merits was decided by the Court. Id. at 13-14. Accordingly,
Magistrate Judge Kay further reduced the requested amount of attorney’s fees by the amount that
he determined was associated with the fees-on-fees request. Id. Magistrate Judge Kay rejected
all other bases on which the FBI argued that the requested amount of attorney’s fees and costs
was unreasonable. Id. at 14.
Both parties filed objections to Magistrate Judge Kay’s Report and Recommendation.
The FBI claims that EPIC is not entitled to attorney’s fees for the reasons previously argued in
the FBI’s opposition to EPIC’s Motion for Attorney’s Fees. The FBI also claims that Magistrate
Judge Kay misattributed the amount of attorney’s fees associated with EPIC’s fees-on-fees
request as opposed to EPIC’s fees request for litigating the underlying FOIA action. The FBI
also contends that EPIC’s total fees-on-fees request is excessive and should be reduced.
EPIC objects to Magistrate Judge Kay’s reduction of attorney’s fees for the time EPIC
spent preparing the Complaint and reviewing documents in this case. EPIC also objects to
Magistrate Judge Kay’s decision to abstain from resolving the fees-on-fees request.
5
II. LEGAL STANDARD
Under Local Civil Rule 72.3(b), “[a]ny party may file for consideration by the district
judge written objections to the magistrate judge’s proposed findings and recommendations
issued under [Local Civil Rule 72.3(a)] within 14 days[.]” Local Civ. R. 72.3(b). Local Civil
Rule 72.3(b) further provides that “[t]he objections shall specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for the
objection.” Id. Pursuant to Local Civil Rule 72.3(c), “a district judge shall make a de novo
determination of those portions of a magistrate judge’s findings and recommendations to which
objection is made . . . .” See also Means v. District of Columbia, 999 F. Supp. 2d 128, 132 (D.D.C.
2013) (“District courts must apply a de novo standard of review when considering objections to,
or adoption of, a magistrate judge’s Report and Recommendation.”). The district judge “may
accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate
judge, or may recommit the matter to the magistrate judge with instructions.” Local Civ. R.
72.3(c).
III. DISCUSSION
A. EPIC’S Eligibility and Entitlement to Attorney’s Fees
Pursuant to 5 U.S.C. § 552(a)(4)(E)(i), the court may award reasonable attorney fees and
other litigation costs reasonably incurred by a plaintiff who substantially prevails in an action against
the government for the fulfillment of a FOIA request. In this Circuit, the attorney-fee inquiry is
divided into two prongs, the fee “eligibility” and the fee “entitlement” prongs. Brayton v. Office of
the United States Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). Under the eligibility
prong, the Court must determine whether a plaintiff has substantially prevailed and, as a result, may
receive attorney fees. Id. A plaintiff has substantially prevailed if he or she has obtained relief either
6
through a judicial order, enforceable written agreement, consent decree or, alternatively, through a
voluntary or unilateral change in position by the agency, if the plaintiff’s claim is not insubstantial. 5
U.S.C. § 552(a)(4)(E)(ii)(I)-(II).
If the eligibility prong is satisfied, the Court next considers the entitlement prong to
determine whether a plaintiff should receive fees. Brayton, 641 F.3d at 524. Under the entitlement
prong, the Court must weigh four factors: “(1) the public benefit derived from the case; (2) the
commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the
reasonableness of the agency’s withholding.” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C.
Cir. 2008) (quoting Tax Analysts v. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)). While
no one factor is dispositive, Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008), “[t]he sifting of
those criteria over the facts of a case is a matter of district court discretion . . . ,” Tax Analysts, 965
F.2d at 1094.
In its Opposition to EPIC’s initial Motion for Attorney’s Fees, the FBI did not dispute EPIC’s
argument that it is eligible for attorney’s fees. The FBI also does not presently object to Magistrate
Judge Kay’s finding in his Report and Recommendation that EPIC is eligible for attorney’s fees and
costs under FOIA. The Court finds the reasoning in the Report and Recommendation on the issue of
eligibility to be sound and, accordingly, adopts the recommendation.
As for EPIC’s entitlement to attorney’s fees and costs, the FBI simply incorporates into its
present Objections the arguments it made in its Opposition to EPIC’s Motion for Attorney’s Fees.
The FBI does not make any new arguments regarding EPIC’s entitlement to attorney’s fees. The FBI
initially opposed the Court finding EPIC entitled to attorney’s fees and costs on the basis that (1) the
disclosed records did not benefit the public and, (2) the FBI had a reasonable basis for its actions.
Def.’s Opp’n at 10-16. The Court has reviewed the FBI’s arguments in its Opposition to Plaintiff’s
Motion for Attorney’s Fees, the case law and exhibits cited by the parties, and the Report and
7
Recommendation as to the issue of entitlement, and agrees with the reasoning of the Report and
Recommendation as to this issue. Accordingly, the Court adopts the reasoning of the Report and
Recommendation that the first three entitlement factors weigh in favor of EPIC and the final factor is
neutral and finds that EPIC is entitled to attorney’s fees and costs.
B. Reasonableness of EPIC’s Attorney’s Fees
As the Court adopts the finding in the Report and Recommendation that EPIC is both eligible
and entitled to attorney’s fees, the Court next must determine the reasonableness of the fee award by
exercising its “traditional equitable discretion.” Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir.
1979). “D.C. courts recognize that the ‘usual method of calculating reasonable attorney’s fees is to
multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the
‘lodestar’ amount.” Judicial Watch, Inc. v. BLM, 562 F. Supp. 2d 159, 175 (D.D.C. 2008), rev’d on
other grounds, 610 F.3d 747 (D.C. Cir. 2010) (quoting Bd. of Trs. of the Hotel & Rest. Emples. Local
25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998)). When, as here, the plaintiff is represented by
an attorney who charges discounted rates for “public-spirited reasons,” the plaintiff may nevertheless
recover an award based on market rates. Id. Courts apply the Laffey matrix, “a schedule of charges
based on years of experience,” to determine reasonable hourly rates in order to compute the
“lodestar” amount. Id. EPIC requested $33,802 in attorney’s fees and $350 in costs.3 The Report
and Recommendation found that EPIC should be awarded $20,799 in attorney’s fees and $350 in
costs for litigating the merits of this FOIA action.
3
This amount represents the amount EPIC requested in its initial Motion for Attorney’s
Fees and includes fees for preparing that initial Motion for Attorney’s Fees. EPIC subsequently
requested fees for preparing the reply in support of its Motion for Attorney’s Fees, as well as fees
related to the briefing of the parties’ Objections to the Report and Recommendation. Magistrate
Judge Kay did not address any of these subsequent fee requests in his Report and
Recommendation. The Court addresses these fee requests, as well as the portion of EPIC’s
initial fee request attributable to the preparation of its Motion for Attorney’s Fees, in Part III.C of
this Memorandum Opinion.
8
EPIC, as the party seeking fees, bears the burden of establishing the reasonableness of its
request. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004). In the FBI’s
Opposition to Plaintiff’s Motion for Attorney’s Fees, the FBI contested as unreasonable five aspects
of EPIC’s requested fees for litigating the merits of their Complaint: (1) time spent preparing the
Complaint; (2) time spent preparing the Joint Proposed Schedule; (3) time spent reviewing released
documents; (4) the fees requested for new lawyers; and (5) the fees requested despite “billing
anomalies.” Def.’s Opp’n at 18-25. Magistrate Judge Kay made recommendations with respect to
each of the FBI’s challenges. Specifically, Magistrate Judge Kay recommended:
 no reduction in the $350 litigation costs sought by EPIC;
 reduction of $2,878.50 in preparing the Complaint;
 reduction of $2,774.50 in preparing the Joint Proposed Schedule;
 reduction of $3,763 for work reviewing documents received pursuant to the FOIA
request, but no reduction for other work (i.e., work other than document review)
following the FBI’s production of documents in accordance with the Court’s Open
America Order;
 no reduction based on the FBI’s Laffey Matrix analysis for new lawyers; and
 no reduction on the basis of billing anomalies.
See R&R at 14.
In its present Objections, the FBI does not object to Magistrate Judge Kay’s recommendations as
to any of its five challenges previously raised in its original motion. EPIC, on the other hand, objects
to Magistrate Judge Kay’s recommendation to reduce the fees award for (1) time spent preparing the
Complaint, and (2) time spent reviewing documents. See Pl.’s Objs. at 3-11. As such, the Court
shall only address herein the two recommendations objected to by EPIC. As to the aspects of
Magistrate Judge Kay’s recommendations to which neither party objects, the Court finds Magistrate
Judge Kay’s recommendations to be well-reasoned and thorough. Accordingly, the Court adopts
these recommendations.4
4
To be clear, the Court adopts the following recommendations from the Report and
9
i. Time Spent Preparing the Complaint
EPIC requested $5,308.50 in attorney’s fees for the time EPIC attorneys spent preparing the
Complaint in this matter. In his Report and Recommendation, Magistrate Judge Kay reduced by
$2,878.50 EPIC’s requested fee award, finding that “18.4 hours spread across three people is an
excessive amount of time to draft th[e] Complaint.” R&R at 9. Magistrate Judge Kay adopted the
FBI’s proposal that EPIC be entitled to only “8 hours—six at Mr. Butler’s rate and two at Mr.
Rotenburg’s”—for drafting the Complaint. Id. EPIC objects to this reduction in its attorney’s fees
award on the basis that this Court should not engage in such “nitpicking.” Pl.’s Objs. at 5.
Having reviewed the hours EPIC spent preparing and filing the Complaint as set forth in
EPIC’s case billing record, see Pl.’s Ex. 8, ECF No. [28-9], the Court agrees it is appropriate to
reduce the fee award attributable to the preparation and filing of the Complaint. The Complaint
drafted by EPIC is a straightforward, nine-page FOIA complaint, similar to the complaints that
EPIC frequently files in FOIA litigation in this Circuit. Although the Court recognizes the
comprehensive nature of EPIC’s Complaint, the Court nevertheless finds it unreasonable for
EPIC to bill 18.4 hours—more than two full days of work—over three different attorneys for the
preparation and filing of this Complaint. A review of the case billing record reveals
inefficiencies and redundancies that makes EPIC’s fee request for the Complaint unreasonable.
For example, two senior EPIC attorneys spent nearly twice as much time editing the Complaint
Recommendation:
 no reduction in the $350 litigation costs sought by Plaintiff;
 reduction of $2,774.50 in preparing the Joint Proposed Schedule;
 no reduction for other work (i.e., work other than document review) following the FBI’s
production of documents in accordance with the Court’s Open America Order;
 no reduction based on the FBI’s Laffey Matrix analysis; and
 no reduction on the basis of billing anomalies.
See R&R at 14.
10
as was spent initially drafting the Complaint. See Pl.’s Ex. 8 at 1-2. Accordingly, the Court shall
reduce the requested attorney’s fee award attributable to the time spent preparing the Complaint.
The Court finds it more reasonable to award EPIC fees for 6 hours preparing and filing the
Complaint at Mr. Butler’s rate, 2.5 hours at Ms. McCall’s rate, and 1 hour at Mr. Rotenberg’s
rate, for a total of $2,535. This adjusted award for the preparing and filing of the Complaint
represents a $2,773.50 reduction in EPIC’s requested attorney’s fees award.
ii. Time Spent Reviewing Documents
Magistrate Judge Kay also reduced EPIC’s fee award by an additional $3,763, the value of
the time EPIC attorneys spent reviewing documents EPIC received following the Court’s Open
America Order, reasoning that EPIC “would have had to review the documents regardless of the
litigation.” R&R at 10-12. EPIC objects to this recommendation and argues that Magistrate
Judge Kay “failed to recognize that EPIC only billed for time spent reviewing documents as
necessary to perform the ‘legal work pursuant to this litigation.’ ” Pl.’s Objs. at 8. EPIC also
argues that Magistrate Judge Kay incorrectly calculated the amount EPIC billed for time spent
reviewing documents as $3,763, when the actual amount was $3,699.50. After reviewing the
case billing record provided by EPIC, see Pl.’s Ex. 8, the Court agrees that the proper amount to
be attributed to the review of documents released by the FBI pursuant to this litigation is
$3,699.50.5
The Court also agrees that the time EPIC attorneys spent reviewing documents released
by the FBI in response to this FOIA litigation should be included in EPIC’s attorney’s fees
award. The Report and Recommendation is correct that, to the extent an attorney spends time
5
The FBI does not object to EPIC’s calculation of the attorney’s fees attributable to the
review of released documents. The difference between the amount calculated by Magistrate
Judge Kay in his Report and Recommendation and the amount calculated by EPIC appears to be
no more than a simple calculation error.
11
reviewing released documents for a purpose unrelated to the FOIA litigation, for example, to
report on the released documents to the media or to assimilate the information contained in the
documents and use that information to facilitate a non-litigation related mission, fees should not
be awarded for that time. See EPIC v. DHS, 999 F. Supp. 2d 61, 75 (D.D.C. 2013) (“Nor should
fees be awarded for time expended in using documents produced.”); CREW v. DOJ, 825
F. Supp. 2d 226, 231 (D.D.C. 2011) (“FOIA provides that a plaintiff may recover ‘attorney fees
and other litigation costs reasonably incurred in any case.” (emphasis in original)). However, to
the extent that the released documents are being reviewed to evaluate the sufficiency of the
release or the propriety of a specific withholding so that the attorney can then challenge the
release or withholding, such document review time is properly included in a FOIA attorney’s
fees award. See EPIC v. DHS, 811 F. Supp. 2d 216, 239-70 (D.D.C. 2011) (awarding fees for
reviewing documents released by DHS during the course of litigation, reasoning that “it would
seem critical to the prosecution of a FOIA lawsuit for a plaintiff to review an agency’s disclosure
for sufficiency and proper withholding during the course of its FOIA litigation”); EPIC, 999
F. Supp. 2d at 75 (awarding fees for time spent reviewing documents because “EPIC [was] only
seeking fees for review of documents produced during this litigation, and DHS ‘[had] failed to
provide any evidence that this time billed by Plaintiff’s attorneys was not spent for the purpose
of litigating this case.’ ”); CREW, 825 F. Supp. 2d at 231 (not awarding attorney’s fees for time
spent reviewing documents released following court’s order where plaintiff did not challenge any
of the agency’s withholdings); but see EPIC v. FBI, ---F.Supp.3d---, 2014 WL 5713859, *9
(D.D.C. Nov. 5, 2014) (awarding fees for reviewing released documents even when plaintiff did
not subsequently challenge the agency’s redactions because “EPIC’s counsel reviewed the 2,462
pages of documents the FBI produced during this case to ensure the agency’s compliance with
12
FOIA and the Court’s . . . Order” and to make the decision whether to challenge the agency’s
redactions).
Here, the facts as laid out by the parties in their August 2013 and November 2013 Joint
Status Reports reveal that the time EPIC billed for reviewing documents released by the FBI was
integral to the ongoing litigation as it was spent evaluating the FBI’s disclosure for “sufficiency
and proper withholding” in order to challenge the FBI’s withholdings. The FBI began drip
releasing the requested documents in October 2012 and, following the Court’s March 28, 2013,
Order denying the Open America stay, finished releasing the documents on July 30, 2013.
Throughout this period EPIC attorneys reviewed the released documents. See Pl.’s Ex. 8 at 8-13.
EPIC states that the only document review time it included in its case billing report from this
period involved reviewing documents for the purpose of determining the sufficiency of the FBI’s
document release and the propriety of their withholdings. Pl.’s Objs. at 7. In the parties’ August
29, 2013, Joint Status Report, the parties averred that while EPIC accepted certain of the FBI’s
withholdings of documents in part or in their entirety pursuant to several FOIA exemptions,
EPIC attorneys did “not have sufficient information to evaluate the Defendant’s withholdings
under Exemptions 3 and 7(E)” and to “determine whether Defendant [had] produced all non-
exempt records.” Joint Status Report (Aug. 29, 2013), ¶ 9. Accordingly, the parties agreed that
the FBI would produce a Vaughn index for a 500-page sample of released documents that would
be selected by EPIC attorneys. Id. ¶ 10. EPIC attorneys included in their case billing record time
spent reviewing the released documents in order to compile the 500-page sample for the FBI's
Vaughn index. Pl.’s Objs. at 10; Pl.’s Ex. 8 at 12-13. In responding to EPIC’s request that the
FBI prepare a Vaughn index to support its withholding of certain documents pursuant to FOIA
Exemptions 3 and 7(E), the FBI “voluntarily agreed to review the 500 pages to determine if there
13
were additional terms that could be released.” Joint Status Report (Nov. 1, 2013), ¶ 6.
Ultimately, the FBI “reprocessed the sample pages” and released “additional terms that had been
redacted in Defendant’s original production.” Id. ¶ 7.
Accordingly, the Court finds that EPIC attorneys’ review of released documents was
directly related to the ongoing FOIA litigation, specifically, challenging the sufficiency of the
FBI’s document release and the propriety of the FBI’s withholdings. This is not a case where a
plaintiff filed a complaint for documents under FOIA, the agency released the documents, and
the plaintiff then requested attorney’s fees for its time reviewing the released documents. See
CREW, 825 F. Supp. 2d at 231. EPIC did not accept all of the FBI’s withholdings and secured the
release of additional responsive documents after requiring the FBI to justify their invocation of
certain FOIA Exemptions in the documents EPIC had reviewed. The time EPIC attorneys spent
reviewing the released documents was an integral part of this FOIA litigation and crucial to
EPIC’s success in the litigation. Accordingly, the Court finds that EPIC should be awarded
attorney’s fees for the time it has billed for the review of released documents.
In sum, EPIC shall be awarded its requested attorney’s fees and costs for litigating the
merits of this FOIA action with only a reduction in the fees request attributable to time spent
preparing and filing the Complaint and the Joint Proposed Schedule.
C. EPIC’s Request for Attorney’s Fees for Litigating the Attorney’s Fees Award
Turning to the final issue, EPIC additionally requests that the Court award it attorney’s fees
incurred in petitioning for attorney’s fees, objecting to the Report and Recommendation, and in
responding to the FBI’s objections to the Report and Recommendation. Such an award is commonly
referred to as a “fees-on-fees” award. Specifically, EPIC requests $3,587.50 in fees for preparing its
initial attorney’s fees motion; $3,469.50 for preparing its Reply in support of its fee motion; $5,254
14
for preparing its Objections to the Report and Recommendation; $3,420 for preparing its Opposition
to Defendant’s Objections; and approximately $1,376 for preparing its Reply in support of its
Objections to the Report and Recommendation.6 In his Report and Recommendation, Magistrate
Judge Kay abstained from determining any fees-on-fees award until “the trial court’s final
determination of fees, and an accounting of the hours spent in litigating fees.” R&R at 13-14.
Accordingly, Magistrate Judge Kay reduced EPIC’s requested overall attorney’s fees award by
$3,587.50, “the amount EPIC billed for fees-on-fees in the current submission.” Id. at 14. As the
Court has determined the amount of attorney’s fees and costs to which EPIC is entitled for its work
litigating the merits of this case, the Court may now consider EPIC’s fees-on-fees request.
As an initial matter, both parties dispute the amount of requested fees Magistrate Judge Kay
should have attributed to the fee litigation. EPIC argues that in the briefing of its Motion for
Attorney’s Fees, it requested a total of $7,057 in fees-on-fees7—$3,587.50 for the initial motion and
$3,469.50 for the reply— not $3,587.50 as the Report and Recommendation suggests. After
reviewing the Report and Recommendation, it appears that Magistrate Judge Kay only considered the
amount of fees-on-fees requested in EPIC’s initial Motion for Attorney’s Fees and not the additional
request for fees-on-fees that EPIC made in its Reply in support of its Motion for Attorney’s Fees.
However, as Magistrate Judge Kay entirely abstained from making a recommendation as to the fees-
6
EPIC does not provide a billing record for the hours and rates attributable to the
preparation of its Reply in support of its Objections to the Report and Recommendation. In its
Reply, EPIC only includes a footnote detailing the number of hours each attorney spent on the
Reply and stating that “[a]ll attorneys listed swear that these hours are true and correct.” Pl.’s
Reply at 3 n.1. As the Court does not find it reasonable to award attorney’s fees for EPIC’s
preparation of a reply in support of its Objections to the Report and Recommendation, the Court
need not address whether Plaintiff has provided sufficient evidence to support this specific
attorney’s fees request.
7
EPIC actually states that it requested $7,054 for its work on its initial Motion for
Attorney’s Fees and Reply. Pl.’s Objs. at 12. The difference between the Court’s total and the
total EPIC is claiming it requested in its present Objections appears to be attributable to a simple
$3 calculation error.
15
on-fees award, this omission is of no moment.
The FBI also argues that the Report and Recommendation misstated the amount of requested
fees attributable to the fee litigation, but for a far different reason. Specifically, the FBI argues that
Magistrate Judge Kay should have treated all of the hours EPIC attorneys billed after October 2,
2013—the last time, the FBI alleges, EPIC performed any legal work in connection with the
underlying FOIA dispute—as part of the requested fees-on-fees award. Def.’s Objs. at 5. The FBI
contends that after October 2, 2013, “every single billing entry relates to fees—whether an attempt to
settle the fee dispute, preparation of a status report concerning the fee dispute, researching
concerning fee law, or preparation and filing of the fee motion.” Id. at 5-6. Accordingly, the FBI
argues, EPIC’s initial fees-on-fee request actually totaled $8,145 and Magistrate Judge Kay should
have reduced EPIC’s overall attorney’s fees award by that amount when he declined to award fees-
on-fees in the Report and Recommendation. Instead, Magistrate Judge Kay reduced EPIC’s overall
attorney’s fee award by $3,587.50, which only represents the amount directly attributable to EPIC’s
drafting and editing of the initial motion for attorney’s fees. Magistrate Judge Kay recommended
allowing recovery of fees for EPIC’s other work related to attorney’s fees, but not related to the
drafting of the actual motion for attorney’s fees, explaining that such work is “closely tied to the
litigation.” R&R at 11 (explaining that fees should be allowed for EPIC attorneys’ work
“conduct[ing] research, h[olding] internal discussions about the productions, h[olding] discussions
with opposing counsel about the productions, draft[ing] filings for the Court, and work[ing]
internally and with opposing counsel on settlement.” (emphasis added)).
The Court agrees with the FBI that all of the hours EPIC billed after October 2, 2013,
directly related to EPIC’s efforts to obtain attorney’s fees for this FOIA litigation and are thus
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most appropriately treated as part of EPIC’s requested fees-on-fees award.8 Accordingly, the
Court calculates that EPIC has requested $21,664.50 in fees-on-fees: $4,557.50 for time spent on
settlement negotiations related to attorney’s fees; $3,587.50 for preparing the initial motion for
attorney's fees; $3,469.50 for preparing EPIC’s reply in support of their motion for attorney’s
fees; $5,254 for preparing their Objections to the Report and Recommendation on EPIC’s motion
for attorney’s fees; $3,420 for preparing their Opposition to the FBI’s Objections to the Report
and Recommendation; and approximately $1,376 for their reply in support of their Objections.
The FBI argues that such a fees-on-fees award is exorbitant. The FBI urges the Court to
not award fees for EPIC’s preparation of its Opposition to the FBI’s Objections to the Report and
Recommendation. Def.’s Reply at 4. The FBI also urges the Court to order a fees-on-fees award
no greater than 15% of the attorney’s fees awarded for litigating the merits of this action. Id. at
2. While it “is settled in this circuit” that “[h]ours reasonably devoted to a request for fees are
compensable,” Noxell Corp. v. Firehouse No. 1 Bar–B–Que Rest., 771 F.2d 521, 528 (D.C. Cir.
1985), “ ‘fees on fees must be reasonable, and not excessive,’ ” Boehner v. McDermott, 541
F. Supp. 2d 310, 325 (D.D.C. 2008) (citation omitted). “Courts, therefore, ‘have an obligation to
scrutinize the hours spent preparing the fee petitions to insure that the total is reasonable and that
it does not represent a windfall for the attorneys.’ ” Id. (citation omitted). In Commissioner, INS
v. Jean, 496 U.S. 154 (1990), the Supreme Court has explained that
[b]ecause . . . the district court [must] consider the relationship between the
amount of the fee awarded and the results obtained, fees for fee litigation should
be excluded to the extent that the applicant ultimately fails to prevail in such
litigation.
8
Because the Court has determined that these fees are to be treated as part of EPIC’s
fees-on-fees request, the Court, in contrast with Magistrate Judge Kay’s Report and
Recommendation, did not include these fees as part of the attorney’s fees it is awarding for
EPIC’s litigation of the underlying FOIA action.
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Id. at 163 n.10. The Court agrees with the FBI that EPIC’s fees-on-fees request, which is over
$1,000 greater than the $20,459.50 in attorney’s fees and costs the Court is awarding EPIC for
litigating the underlying FOIA action, is excessive. First, the Court finds that awarding EPIC
attorney’s fees for preparing its Opposition to the FBI’s Objections to the Report and
Recommendation would effectively be a “fees-on-fees-on-fees” award because EPIC’s
Opposition only addresses its request for a fees-on-fees award. Such a “fees-on-fees-on-fees”
award is too attenuated from original adjudication to be compensable. See Means, 999
F. Supp. 2d at 136 n.7 (“fees on fees on fees, as may be pursued by the plaintiff for the successful
adjudication of the current claim, may be too removed to be compensable”); Kaseman v. District
of Columbia, 444 F.3d 637, 640 (D.C. Cir. 2006) (“our general rule is that the court may award
additional fees for ‘time reasonably devoted to obtaining attorneys fees’ ” (emphasis added)
(citation omitted)). Accordingly, the Court reduces EPIC’s requested fees-on-fees award by
$3,420—the amount EPIC billed for preparing its Opposition to the FBI’s Objections.
The Court does find it generally appropriate to award EPIC for its work attempting to
settle the attorney’s fees matter, preparing the initial motion for attorney’s fees and its reply in
support of its motion, and in preparing the Objections presently before the Court. However, the
Court is mindful that the amount billed by EPIC for these activities totals $18,244.50, nearly
90% of the amount the Court is awarding EPIC in attorney’s fees for litigating the merits of their
FOIA action. As previously explained, the Court has “an obligation to scrutinize the hours spent
preparing the fee petitions to insure that the total is reasonable and that it does not represent a
windfall for the attorneys.” Boehner, 541 F. Supp. 2d at 325. The Court finds that such a fees-on-
fees award would be excessive especially in light of the straightforward, short-term merits
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litigation and the equally straightforward fees litigation in this case. After reviewing the case
billing records related to the fees litigation, the Court finds that EPIC has submitted several
redundant fee requests. Most notably, EPIC makes many of the same arguments in its
Objections to the Report and Recommendation and its Reply in support of its Objections as it
made in its Reply in support of its initial Motion for Attorney’s Fees. Nevertheless, EPIC has
billed an approximate total of $6,630 in fees for the preparation of the Objections and the
supporting Reply—nearly as much as EPIC billed for its initial, far more extensive Motion for
Attorney’s Fees and Reply. The only extent to which these pleadings are arguably not redundant
is the extent to which they address the FBI’s fees-on-fees objections; however, the Court has
already ruled that it shall not allow any fees-on-fees-on-fees awards. Accordingly, so as to
eliminate the redundancy in EPIC’s fees billing and avoid granting EPIC an unjustified windfall,
the Court shall not award attorney’s fees for EPIC’s preparation of its Objections to the Report
and Recommendation nor for the preparation of its Reply in support of its Objections.
The Court shall award EPIC fees-on-fees for its fee-related legal work prior to the filing
of its Motion for Attorney’s Fees, and for its work preparing the initial Motion for Attorney’s
Fees and its supporting Reply. EPIC has requested a total of $11,614.50 for this work.
However, as discussed above, the Supreme Court and courts in this Circuit have held that “fees
for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in
such litigation.” Commissioner, INS v. Jean, 496 U.S. 154, 163 n.10 (1990); see also Nat.
Veterans Legal Services Program v. Dept. of Veterans Affairs, No. 96-1740, 1999 WL
33740260, *4 (D.D.C. April 13, 1999) (“ ‘the applicant should not receive fees for the time spent
defending’ aspects of the fees request that proved unsuccessful” (quoting Commissioner, INS,
496 U.S. at 163 n.10)). Some courts have reduced fees-on-fees recovery by a
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percentage representing the percentage by which the attorney’s fees requested in the prevailing
party’s original fee motion were reduced. See id. (citing cases). Here, EPIC was not entirely
successful in litigating for attorney’s fees incurred in preparing its Complaint or the Joint
Prepared Schedule and the Court has accordingly reduced EPIC’s attorney’s fee award by $5,548
as discussed above. This amount represents a 21% reduction in EPIC’s requested attorney’s fees
and costs award for litigating the merits of this FOIA action. Accordingly, the Court finds it
appropriate to reduce EPIC’s requested fees-on-fees award by 21% to $9,175.50.
IV. CONCLUSION
For the foregoing reasons, the Court adopts Magistrate Judge Kay’s Report and
Recommendation except for the modifications delineated above. Accordingly, the Court shall
award EPIC $20,109.50 in attorney’s fees and $350 in costs for litigating the underlying FOIA
action and $9,175.50 as a fees-on-fees award. In sum, the Court shall award EPIC $29,635 in
attorney’s fees and costs.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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