Vollmann v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM T. VOLLMANN,
Plaintiff,
v. Civil Action No. 12-0939 (FYP)
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
This matter comes before the Court upon consideration of Plaintiff William T.
Vollmann’s motion for an award of attorney’s fees and costs pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E). Vollmann seeks a total fee award of
$14,487.20. The Defendant Department of Justice (“DOJ”) maintains that Plaintiff is neither
eligible for, nor entitled to, a FOIA fee award, and that the amount sought is unreasonable. The
Court finds that Plaintiff is eligible for and entitled to a fee award, but that the full amount
requested is not reasonable. Accordingly, the Court will award a reduced fee in the amount of
$9,491.70.
BACKGROUND
Vollmann is a professional, full-time writer. On September 13, 2011, he submitted a
FOIA request to the Federal Bureau of Investigation (“FBI”) seeking access to “all records” in
the possession of the FBI concerning himself. See ECF No. 1 (Complaint), ¶ 6. By letter dated
April 9, 2012, the FBI responded to Vollmann’s FOIA request and stated that it had reviewed
353 pages of material and would release 182 pages. Id., ¶ 8; ECF No. 10-2 (Ex. C FBI’s FOIA
Response). On April 20, 2012, Vollmann submitted an appeal to the DOJ’s Office of
Information Policy. See Compl., ¶ 9; ECF No. 10-2 (Ex. E Vollmann’s FOIA Appeal). The
DOJ acknowledged the appeal on April 30, 2012. See Compl., ¶ 10; ECF No. 10-2 (Ex. F DOJ’s
Appeal Response).
Following a period of inaction by the DOJ, Vollmann initiated the instant suit on June 8,
2012, seeking the disclosure of records maintained by the FBI. See generally Compl. After the
DOJ filed its Answer on July 27, 2012, see ECF No. 4, the FBI informed Vollmann by letter
dated August 24, 2012, that it had processed an additional 785 pages of records responsive to his
FOIA request and would disclose 294 pages of material. See ECF No. 10-2 (Ex. H FBI’s
Additional FOIA Response). According to the FBI, “[u]pon further review” of Vollmann’s
initial request, it determined that the original scope of the search had been too narrow and the
agency therefore had conducted a further search. Id. The FBI also “determined that [several
potentially responsive records] were damaged during a recent flood of the [FBI’s Alexandria
Records Center], and are located on a refrigerated truck pending remediation, thus making them
unavailable at this time.” See ECF No. 10 (Defendant’s Motion for Summary Judgment), at 8–9;
ECF No. 10-1 (Declaration of David M. Hardy). ¶ 26.
On January 16, 2013, by joint motion, the parties requested that the Court stay the case
until November 15, 2013. See ECF No. 11 (Joint Motion for Partial Dismissal and For a Stay of
Further Proceedings). The parties explained that the FBI had processed a total of 785 pages
responsive to Vollmann’s FOIA request; and that Vollmann did not challenge the search, the
exemptions claimed, or the segregability analysis as to those records. Id. at 1. Consequently,
2
Vollmann “move[d] for partial dismissal with prejudice concerning the processed pages, [with]
the parties to pay their own fees, costs and expenses.” Id. The parties further explained that the
flood-damaged documents would require remediation and therefore would take more time to
process. Id. at 2. 1 As a result, the Court stayed this matter on January 17, 2013. See ECF No.
12 (Order Granting Joint Motion).
Between August 5, 2013, and February 29, 2016, the DOJ submitted 16 status reports,
informing the Court of its progress in the remediation and processing of records. See generally
Docket, Vollmann v. DOJ, No. 12-cv-0939. Beginning in August 2013, Vollmann began
publishing pieces based on the documents that he had already received from the FBI pursuant to
his FOIA request. Vollmann learned from the documents that he had been investigated by the
FBI as part of its Unabomber and anthrax-mailing investigations. See Pl. Mot. at 6. In the
September 2013 issue of Harper’s Magazine, Vollmann published a nine-page article, titled Life
as a Terrorist: Uncovering My FBI File, detailing his discoveries. Id.; ECF No. 37-1 (Ex. B
Harper’s Article). The article received widespread attention in the news media, including
1
More specifically, the parties stated:
There is another group of documents that have not been processed by Defendant
FBI. With respect to these documents, Defendant represents as follows: During the
FBI’s search, potentially responsive serials 287, 641, 647, 669, 848, as well as serial
534 of AO file number 149A-SF-106204 (NK) were unavailable. It was determined
that the unavailable parts of the case files were damaged during a flood of the
Alexandria Records Center, and are located on a refrigerated truck pending
remediation, thus making them unavailable at this time.
Defendant further represents that the FBI records office hopes to have the records
remediated by July/August 2013 (at the earliest). The FOIPA Unit has put a
litigation hold on the serials and when they are available, if they are in a readable
condition, can request them for processing and a supplemental release if the records
are responsive. The FOIPA Unit will initiate an inquiry concerning the availability
of the records for review in August 2013.
See Joint Motion at 1–2 (citation omitted).
3
coverage in several newspapers. See, e.g., ECF No. 37-1 (Ex. D Daniel McDermon, F.B.I.
Listed Prize-Winning Author as a Unabomber Suspect, New York Times, August 22, 2013); id.(Ex. E Ron Charles, FBI Suspected William Vollmann Was the Unabomber, The Washington
Post, August 21, 2013); id. (Ex. F Carolyn Kellogg, William T. Vollmann, Unabomber Suspect,
Opens His FBI File, Los Angeles Times, August 22, 2013). Vollmann was also interviewed on
the National Public Radio program Morning Edition about the contents of the FBI records he
received. Id. (Ex. G Writer William T. Vollmann Uncovers His FBI File, National Public Radio,
Transcript, August 22, 2013).
Several years later, on March 31, 2016, the FBI informed Vollmann that it had located
and reviewed an additional 375 pages of records that were responsive to his FOIA request, and
that 69 pages would be released. Id. (Ex. A FBI’s March 2016 FOIA Response). The agency
also stated that the records it “believed to be a part of the ‘freezer truck’ collection” were “not
responsive” to Vollmann’s request, but that “[a]n additional search of a database” located both
missing records and several more responsive records; it further noted that “[a]dditional
material . . . was inadvertently deemed non-responsive in previous releases and has now been
processed for this release.” Id.The DOJ thereafter submitted a final status report to the Court on April 15, 2016, which
advised that “Defendant ha[d] completed its processing and release, where release was
appropriate, of the remediated records and other records . . . at issue in this case.” See ECF No.
35 (Final Status Report by DOJ). The parties jointly informed the Court on May 3, 2016, that
Vollmann “[would] not challenge the agency’s response to his request” but “intend[ed] to pursue
a claim for attorney’s fees.” See ECF No. 36 (Joint Status Report). Vollmann subsequently filed
4
his Motion for Attorney Fees and Costs. See ECF No. 37 (Plaintiff’s Motion for Attorney’s Fees
and Costs).
LEGAL STANDARD
The FOIA allows a court to award “reasonable attorney fees and other litigation costs
reasonably incurred in any case” where “the complainant has substantially prevailed” against the
government. See 5 U.S.C. § 552(a)(4)(E)(i). To recover fees and costs, a FOIA plaintiff must
show both eligibility for an award and entitlement to it. Brayton v. Off. of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Jud. Watch, Inc. v. Dep’t of
Commerce, 470 F.3d 363, 368–69 (D.C. Cir. 2006)). “The eligibility prong asks whether a
plaintiff has ‘substantially prevailed’ and thus ‘may’ receive fees.” Id. (emphasis added)
(citation omitted). If the Court determines that a plaintiff is eligible, “the court proceeds to the
entitlement prong and considers a variety of factors to determine whether the plaintiff should
receive fees.” Id. (emphasis in original) (citation omitted).
Finally, if the Court concludes that a plaintiff is eligible for and entitled to fees, it
considers the reasonableness of the fees requested. See 5 U.S.C. § 552(a)(4)(E)(i). The Court
may consider the number of hours spent on tasks, the requested hourly rates, the market rates in
the relevant community, and the attorney’s skill and experience. See Covington v. District of
Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). In determining fee awards, courts must keep in
mind the purpose behind the FOIA: to “encourage the maximum feasible public access to
government information” and to “facilitate citizen access to the courts to vindicate their statutory
rights.” Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 715 (D.C. Cir. 1977). As a
result, the “touchstone of a court’s discretionary decision” is whether an award is necessary to
5
advance the goals underlying the FOIA. Id.ANALYSIS
The DOJ challenges Vollmann’s eligibility for and entitlement to an award. See
generally ECF No. 40 (Defendant’s Opposition). Defendant further argues that Vollmann’s
requested fees are unreasonable. Id. The Court addresses each of these issues in turn.
I. Vollmann Is Eligible for a Fee Award.
There are two ways a plaintiff can show that he has “substantially prevailed” and is
therefore eligible for a fee award under the FOIA. First, a plaintiff substantially prevails when
he secures “a judicial order, or an enforceable written agreement or consent decree.” See 5
U.S.C. § 552(a)(4)(E)(ii)(I); Campaign for Responsible Transplantation v. FDA, 511 F.3d 187,
193 (D.C. Cir. 2007). Second, a plaintiff substantially prevails when his suit causes a “voluntary
or unilateral change in position by the agency.” See 5 U.S.C. § 552(a)(4)(E)(ii)(II). The latter
basis for prevailing is often referred to as the “catalyst theory,” and rewards plaintiffs for
instigating governmental action. Davis v. DOJ, 610 F.3d 750, 752 (D.C. Cir. 2010) (explaining
that Congress added Section 552(a)(4)(E)(ii)(II) in 2007 so that FOIA plaintiffs could recover
fees when their lawsuits prompted the government’s response); Grand Canyon Trust v.
Bernhardt, 947 F.3d 94, 96 (2020) (noting that “a plaintiff can prove fee eligibility by showing
that its lawsuit ‘substantially caused the government to release the requested documents before
final judgment’” (quoting Brayton, 641 F.3d at 524–25)).
Vollmann contends that he “substantially prevailed” under both theories. See Pl. Mot. at
6–9. First, he argues that he obtained judicial relief under Section 552(a)(4)(E)(ii)(I) when this
Court issued several orders requiring status reports from the DOJ regarding its remediation and
6
processing efforts. See Pl. Mot. at 8 (citing Order Granting Joint Motion to Dismiss; Minute
Orders of August 5, 2013; June 30, 2014; and July 23, 2014). Second, he maintains that
under Section 552(a)(4)(E)(ii)(II), his suit caused a “voluntary or unilateral change in position by
the agency,” because Defendant initially informed Vollmann that it had completed its search but
undertook further efforts in response to his suit. See Pl. Mot. at 9.
The Court agrees that Vollmann’s suit caused a “voluntary or unilateral change in
position by the agency.” Under Section 552(a)(4)(E)(ii)(II), a plaintiff can obtain an award of
costs and fees if “the institution and prosecution of the litigation cause[d] the agency to release
the documents obtained during the pendency of the litigation.” Church of Scientology of Cal. v.
Harris, 653 F.2d 584, 587 (D.C. Cir. 1981). The question under the catalyst theory is whether
the institution and prosecution of the litigation caused the agency to release the documents
obtained. Grand Canyon Trust, 947 F.3d at 97; see also Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 610 (2001) (noting that, under the
“catalyst theory,” the test is “whether the lawsuit was a substantial . . . cause of the defendant’s
change in conduct”). But “the mere filing of the complaint and the subsequent release of the
documents is insufficient to establish causation.” Weisberg v. DOJ, 745 F.2d 1476, 1496 (D.C.
Cir. 1984); see also Cox v. DOJ, 601 F.2d 1, 6 (D.C. Cir. 1979) (“[A]n allegedly prevailing
complainant must assert something more than post hoc, ergo propter hoc.”). Rather, the plaintiff
has the burden of showing “that it is more probable than not that the government would not have
performed the desired act absent the lawsuit.” Pub. Citizen Health Research Grp. v. Young, 909
F.2d 546, 550 (D.C. Cir. 1990) (citations omitted).
Here, Vollmann has shown that his lawsuit caused the DOJ to release responsive records.
7
Notably, the FBI changed course between August 24, 2012, and March 31, 2016: On August 24,
2012, the agency informed Vollmann that it “ha[d] completed its search for documents
responsive to [Vollmann’s] FOIA request,” see ECF No. 6 (Defendant Report); but the agency
subsequently conducted several additional searches after Vollmann initiated this litigation, see
Ex. A FBI’s March 2016 FOIA Response. There is no reason to suppose that those additional
searches would have occurred if Vollmann had not filed suit. See Crooker v. Dep’t of
Treasury, 663 F.2d 140 (D.C. Cir. 1980) (holding that sudden acceleration in processing
resulting in disclosure can indicate that the lawsuit was the reason for that acceleration); Church
of Scientology of Cal., 653 F.2d at 588 (D.C. Cir. 1981) (determining that files were only
searched in response to FOIA litigation; 200 files released as compared to six items before suit
was filed).
The DOJ’s argument to the contrary is unavailing. With respect to the FBI’s second
release of records, on August 24, 2012, the DOJ argues that “[i]t is unclear in the record whether
the filing of the complaint caused the second search, or whether the second search was a product
of the FBI following normal administrative procedures.” See Def. Opp. at 6; see also ECF No.
46 (Defendant’s Response and Notice of Additional Supplemental Authority) at 7 (“[T]he fact
that Plaintiff filed his lawsuit the same month when the FBI also expanded its search does not
prove that the litigation caused the supplemental search.”). That argument misses the point:
Vollmann is not arguing that the FBI’s second release on August 24, 2012, indicated a change in
course, but rather that the FBI’s additional release of records on March 31, 2016, marked a
change. See Pl. Mot. at 9; ECF No. 41 (Plaintiff’s Reply) at 3. The March 2016 response letter
states that the agency undertook “[a]n additional search of a database” and also re-processed
8
“[a]dditional material [that] was inadvertently deemed non-responsive in previous releases.” See
Ex. A FBI’s March 2016 FOIA Response. Contrary to the DOJ’s contention “that [the] FBI’s
supplemental search . . . was already in process pending the administrative appeal,” see Def.
Supp. at 8, the record reflects that after the FBI completed the supplemental search in August
2012, it undertook further action in March 2016 as a result of this litigation. Defendant stated on
August 24, 2012, that the FBI intended to take no further action on Vollmann’s request except
remediation of the missing documents; yet the agency conducted additional searches and re-
evaluated earlier withholdings, strongly indicating that “it is more probable than not” that
Vollmann’s suit prompted “a change in the agency’s position regarding the production of the
requested documents.” See Grand Canyon Trust, 947 F.3d at 97–98 (citation omitted).
The same logic also defeats the DOJ’s argument that Vollmann waived his right to
attorney’s fees on January 16, 2013, when he moved for a “partial dismissal with prejudice . . .
the parties to pay their own fees, costs and expenses.” See Def. Mot. at 7 (emphasis omitted).
Again, the DOJ focuses on the wrong time period and fails to grapple with the “additional search
of a database” and re-processing of “[a]dditional material [that] was inadvertently deemed non-
responsive in previous releases” in March 2016. See Ex. A, FBI’s March 2016 FOIA Response.
The FBI released 69 additional pages in March 2016, which plainly post-dated any waiver of
fees as of January 16, 2013. 2 Accordingly, Vollmann is eligible for attorney’s fees because he
has substantially prevailed under Section 552(a)(4)(E)(ii)(II) by causing a unilateral change in
position by the agency that resulted in the further release of records in March 2016. 3
2
Vollmann states clearly that he “seeks compensation only for work associated with [the 69 pages of]
responsive records, located and released subsequent to the FBI’s processing of the 785 pages referenced in January
2013.” See Pl. Reply at 4.
3
The Court agrees with the DOJ that Vollmann is not entitled to fees because he obtained relief through “a
9
II. Vollmann Is Entitled to a Fee Award.
Once a plaintiff is deemed eligible for a fee award, the court must next determine whether
the plaintiff is also entitled to such an award. Davy I, 456 F.3d at 166. In analyzing entitlement,
the court weighs 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 of the requested documents. McKinley v. Fed. Hous.
Fin. Agency, 739 F.3d 707, 711 (D.C. Cir. 2014). “No one factor is dispositive,” Davy v. CIA
(“Davy II”), 550 F.3d 1155, 1159 (D.C. Cir. 2008), and balancing is left to the district court’s
discretion. Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018).
The DOJ does not dispute that the second, third, and fourth factors weigh in favor of
Vollmann. See Def. Opp. at 7–9; see also Citizens for Responsibility & Ethics in Washington v.
FEC, No. 11-cv-951, 2014 WL 12935326, at *6 (D.D.C. Feb. 12, 2014) (holding that where the
government does not contest a factor, the court may treat the factor as conceded). The DOJ also
does not dispute that Vollmann’s publication of an article in Harper’s Magazine based on
judicial order, or an enforceable written agreement or consent decree.” See Def. Opp. at 5. Vollmann argues that
the Court’s periodic Minute Orders during the pendency of the case show that “it was necessary for the Court to
closely monitor the agency’s completion of processing.” See Pl. Mot. at 8. But close monitoring does not constitute
“relief.” Plaintiffs obtain “relief through a judicial order” when courts order an agency to produce records by
specific dates or otherwise hold an agency to a production schedule. See, e.g., Davy v. CIA (“Davy I”), 456 F.3d
162, 166 (D.C. Cir. 2006) (finding plaintiff eligible because court “require[ed] the Agency to produce all
‘responsive documents’ by the specified dates”); see also Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367 (D.C. Cir.
2008); Campaign for Responsible Transplantation, 511 F.3d at 197; Edmonds v. FBI, 417 F.3d 1319, 1326–27 (D.C.
Cir. 2005) (all deciding on similar grounds). Once a court order explicitly requires an agency to release documents,
the agency’s compliance can no longer be described as voluntary: the legal relationship between the parties is
changed by an enforceable order. See, e.g., Campaign for Responsible Transplantation, 511 F.3d at 197; Davy I,
456 F.3d at 166. In this case, the Court never ordered the DOJ to produce records, but rather ordered the agency to
“update the Court on the status of the remediation of the documents at issue in this case, including an estimate of
when the contractors will complete remediation of those documents.” See Minute Order on July 23, 2014. Thus, the
DOJ’s compliance remained “voluntary;” and Vollmann is not entitled to fees because he obtained a judicial order
that granted him relief.
10
documents he obtained under the FOIA, and the resulting coverage of his story in major
newspapers and on National Public Radio, “meets the public benefits requirement.” See Def.
Opp. at 8. But the DOJ reprises its argument that Vollmann waived any claim for fees as of
January 6, 2013, see supra, noting that Vollmann’s articles “date from 2013” and “were based on
the FBI’s April 2012 and August 2012 releases.” Id. In the DOJ’s view, because the FBI’s later
releases “did not reveal any significant new information concerning [the agency’s] interaction”
with Vollmann, Vollmann is ineligible for attorney’s fees associated with obtaining the later-
released information. Id. at 8.
The Court disagrees with the DOJ’s analysis. Vollmann need not prove that the
documents he received after 2013 actually advanced the public interest; rather, the Court must
consider the “potential public value” of the information sought. Davy II, 550 F.3d at 1159. To
have “potential public value” the request must have “at least a modest probability of generating
useful new information about a matter of public concern;” and the Court assesses the “potential
public value” of the information requested “with little or no regard to whether any documents
supplied prove to advance the public interest.” Morley v. CIA, 810 F.3d 841, 844 (D.C. Cir.
2016). The publication of Vollmann’s 2013 article and the media buzz that it generated
demonstrate that there was significant public interest in the FBI’s investigation of Vollmann.
See Pl. Mot. at 6 (recounting national news coverage of Vollmann’s findings). And there was “at
least a modest probability” that the documents released by the FBI after 2013 would encompass
“useful new information” about that topic. See Morley, 810 F.3d at 844. Vollmann has therefore
met the public-benefit requirement and is entitled to fees because the information that he
received after 2013 had “potential public value.” Id.
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III. Vollmann’s Requested Award Is Unreasonable.
Courts have broad discretion to determine an appropriate fee award and may modify the
request based on the reasonableness of the desired amount and the facts of the case.
Conservation Force v. Jewell, 160 F. Supp. 3d 194, 203 (D.D.C. 2016) (citing Judicial Watch,
Inc., 470 F.3d at 369). Plaintiff bears the burden of establishing reasonableness. Covington, 57
F.3d at 1107–08.
A court’s determination of an appropriate fee award begins by multiplying “the hours
reasonably expended in the litigation by a reasonable hourly fee.” Bd. of Trs. of Hotel & Rest.
Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). The product of the two is
referred to as a lodestar, which a court can adjust in appropriate circumstances. Id. To establish
the reasonableness of hours spent, plaintiffs must submit “sufficiently detailed information about
the hours logged and the work done . . . to permit the District Court to make an independent
determination whether or not the hours claimed are justified.” Nat’l Ass’n of Concerned
Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). Fee applications should
“include contemporaneous time records of hours worked and rates claimed, plus a detailed
description of the subject matter of the work with supporting documents.” In re Donovan, 877
F.2d 982, 994 (D.C. Cir. 1989) (per curiam). The reasonableness of a requested hourly rate turns
on: “(1) the attorney’s billing practices, (2) the attorney’s skill, experience, and reputation, and
(3) the prevailing market rates in the relevant community.” Eley v. District of Columbia, 793
F.3d 97, 100 (D.C. Cir. 2015) (quoting Covington, 57 F.3d at 1107) (cleaned up).
Vollmann seeks a total award of $14,487.20: $9,464 for litigation-phase attorney’s fees
and $5,023.20 in “fees-on-fees” for time spent negotiating and drafting the instant motion and
12
reply in support of his request for attorney’s fees. See Pl. Mot. at 16; Pl. Reply at 7 n. 3; ECF
No. 43 (Plaintiff’s Notice of Supplemental Authority) at 2. Vollmann seeks fees for 19.9 hours
of work performed by his attorney, billed at rates from the Fitzpatrick Matrix maintained and
updated by the United States Attorney’s Office for the District of Columbia (USAO Fitzpatrick
Matrix). See ECF No. 37-1 (Ex. H, Declaration of David L. Sobel); Pl. Supp. at 1. 4 The DOJ
opposes Vollmann’s request on two grounds, arguing: (1) that Vollmann may not recover for all
the hours his attorney worked because Vollmann waived fees for some of those hours; and (2)
that Vollmann seeks recovery at an unreasonable rate. See Def. Opp. at 9; Def. Supp. at 9.
The DOJ first contends that Vollmann may not recover fees for all 19.9 hours he claims
because Vollmann waived recovery of the 3.8 hours his attorney spent on the preparation, filing,
and service of the complaint when he moved for partial dismissal on January 16, 2013. See Def.
Opp. at 9; Def. Supp. at 9 n.1. The Court agrees. Although plaintiffs generally may recover fees
for the preparation and filing of FOIA complaints, see Elec. Privacy Info. Ctr. v. FBI, 80 F.
Supp. 3d 149, 158 (D.D.C. 2015); Am. Oversight v. DOJ, 375 F. Supp. 3d 50, 70 (D.D.C. 2019),
Vollmann may not do so here because he waived recovery of those fees when he moved for
partial dismissal in January 2013. See Joint Motion at 1 (waiving “fees, costs and expenses”
related to the FBI’s processing of the 785 pages released as of January 16, 2013). Although the
terms of Vollmann’s waiver explicitly pertain to the “processing” of pages released as of January
16, 2013, and there is no mention of any fees related to the complaint, the waiver appears to
4
A fee matrix is a chart averaging rates for attorneys at different experience levels. “For decades, courts in
this circuit have relied on some version of what is known as the Laffey matrix.” DL v. District of Columbia, 924
F.3d 585, 587 (D.C. Cir. 2019). The USAO’s version of the Laffey Matrix — called the Fitzpatrick Matrix — is
based on data for all types of lawyers from the entire metropolitan area. Urb. Air Initiative, Inc. v. EPA, 442 F.
Supp. 3d 301, 322 (D.D.C. 2020). It starts with “[t]he hourly rates approved in Laffey . . . for work done principally
in 1981–82” as its baseline. Eley, 793 F.3d at 102. It then adjusts those rates to account for inflation by using the
Consumer Price Index for All Urban Consumers (CPI–U) of the United States Bureau of Labor Statistics. Id.
13
preclude his recovery of any “fees, costs [or] expenses” incurred prior to January 16, 2013. Id.
For example, it seems unlikely that Vollmann would have requested fees for the 3.8 hours spent
preparing, filing, and serving the complaint if no further pages were released after January 16,
2013. At most, the waiver is ambiguous as to whether fees related to the complaint may be
recovered, and Vollmann therefore fails to meet his burden of establishing his entitlement to
those fees. The Court, therefore, will reduce Vollmann’s compensable hours by 3.8 hours and
set the first component of the lodestar at 16.1 hours.
The Court next considers the second component: the reasonableness of Vollmann’s
requested hourly rate. Vollmann initially used the historical annual rates set by the Fitzpatrick
Matrix to calculate his requested recovery, seeking a total award of $10,731. 5 See Pl. Mot. at
15–16; Pl. Reply at 7. On December 7, 2021, however, Vollmann filed a Notice of
Supplemental Authority highlighting “a recent opinion involving a long-pending request for an
award of attorney’s fees under FOIA.” See Pl. Supp. at 2 (citing Webster v. DOJ, No. 02-cv-603,
2021 WL 4243414, at *12 n.7 (D.D.C. Sept. 17, 2021)). In Webster v. DOJ, the district court
awarded attorney’s fees under the FOIA based on current, rather than historical, rates because
“awarding attorney’s fees based on the hourly rate for the year in which the attorney performed
the work undercompensates the attorney because of inflation and the time value of money;” to
offset that under-compensation, the court awarded the current year’s hourly rate for all the hours
the attorney worked between 2001 and 2021. Webster, 2021 WL 4243414, at *12 & n.7 (citing
5
The Matrix operates along two axes, one corresponding to the year in which the work was completed and
the other corresponding to the experience of the attorney who completed the work. For example, under the current
Matrix, an attorney who completed work in 2016 and had 35 years or more experience at that time, is paid $619 per
hour. See Fitzpatrick Matrix, https://www.justice.gov/usao-dc/page/file/1189846/download. By contrast, an
attorney who completed work in 2021 and had 35 years or more experience at that time, would be paid at a rate of
$736 per hour. Id.14
West v. Potter, No. 05-cv-1339, 2009 WL 10659210, at *4 (D.D.C. Oct. 13, 2009)). Relying on
that authority, Vollmann argues that his attorney should be compensated for all of his work at the
current Fitzpatrick rate, instead of the rate that prevailed at the time that the work was performed.
Vollmann’s calculation increases his total award to $14,487.20. Id. Defendant objects to the
application of the attorney’s current billing rate under the Fitzpatrick Matrix. See Def. Supp. at 9
(explaining that the DOJ “does not oppose” using the 2021 Fitzpatrick Matrix to calculate
Plaintiff’s counsel’s hourly rates, but “objects to applying Plaintiff’s counsel’s current maximum
hourly rate” to all recoverable hours).
The Court declines to apply the current maximum Fitzpatrick Matrix rate to all the hours
worked by Vollmann’s attorney between 2013 and 2016. While “the D.C. Circuit has sanctioned
the application of current prevailing rates — as opposed to the rates in effect when the work was
performed — as a means of compensating the party seeking attorney[’]s fees for the delay in
receiving payment,” Tridico v. District of Columbia, 235 F. Supp. 3d 100, 107 (D.D.C. 2017)
(citing West v. Potter, 717 F.3d 1030, 1034 (D.C. Cir. 2013)), it has only done so in
circumstances where the delay in payment is attributable to the government, see, e.g., Webster,
2021 WL 4243414, at *7–8 (applying current rates only after concluding that the DOJ delayed
litigation); see also West, 2009 WL 10659210, at *4 (collecting cases). Here, Vollmann does not
argue or cite any evidence that the DOJ delayed litigation in this matter, see generally Pl. Supp.,
and he therefore fails to overcome the “strong presumption” in favor of using historical rates.
See Tridico, 235 F. Supp. 3d at 107 (citing West, 717 F.3d at 1034).
Accordingly, the lodestar amount will be calculated by multiplying “the [16.1] hours
reasonably expended” by Vollmann’s attorney by the annual rates laid out in the Fitzpatrick
15
Matrix. See Bd. of Trs. of Hotel & Rest. Emps. Local 25, 136 F.3d at 801. Based on this
calculation, the Court will award Vollmann $9,491.70. 6
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Attorney’s Fees and Costs is granted in
part and denied in part. Defendant is required to pay Plaintiff $9,491.70 in attorney’s fees. A
separate Order will issue this day.
_____________________________
FLORENCE Y. PAN
United States District Judge
Date: April 14, 2022
6
The following charts show the Court’s calculations using the USAO Matrix rates regarding the litigation
fees for Vollmann’s attorney:
David L. Sobel - Litigation Fees
Years Experience Hours Rate Total
2013-14 34 years 1.0 $534 $534
2014-15 35 years 5.7 $563 $3,209.10
2015-16 35+ years 2.5 $591 $1,477.50
2016-17 35+ years 6.9 $619 $4,271.10
16.1 $9,491.70
16