Naumes v. Department of the Army

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SARAH KATHERINE NAUMES,
Plaintiff,
v. Civil Action No. 21-1670 (JEB)
DEPARTMENT OF THE ARMY,
Defendant.
MEMORANDUM OPINION
In February 2019, Sarah Katherine Naumes submitted a Freedom of Information Act
request to the Department of the Army, seeking access to the entirety of its Global Assessment
Tool (GAT) — a mental-fitness questionnaire for U.S. soldiers — as well as associated
documents. The Army disclosed no documents to Naumes over the course of two and a half
years of correspondence. She thus filed suit here, which precipitated the release of some
material. Over the course of the litigation, Plaintiff obtained more records via both court orders
and voluntary release by Defendant.
The merits litigation now completed, Naumes moves for an award of attorney fees and
costs. Because she substantially prevailed in most of her suit and the multi-factor entitlement
inquiry favors a fee award, the Court will grant her Motion in part. Plaintiff’s requested sum,
however, will be reduced based on her failure to prevail in certain phases of the litigation. The
Court will ultimately award her $111,425.59.
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I. Background
As a past Opinion details the full background of this suit, see Naumes v. Dep’t of the
Army, 588 F. Supp. 3d 23, 43 (D.D.C. 2022), the Court need only briefly recount the new facts
relevant to the present Motion.
On February 28, 2019, Plaintiff filed a FOIA request seeking three categories of
documents: all versions of the GAT questionnaire from 2008 through the present, all informed-
consent forms associated with those questionnaires, and the list of recommendations given under
the agency’s ArmyFit portal. See ECF No. 1 (Compl.), ¶ 11. Such recommendations discuss
how individuals can improve their mental and physical wellness — e.g., through practicing
mindfulness and maintaining coping skills. See ECF No. 9-5, Exh. 104 (Samples of ArmyFit
Recommendations).
Having vainly waited for two-and-a-half years to receive her requested documents,
Naumes filed this suit on June 22, 2021. Finally spurred to action, the Army agreed on August 6
to release a first set of documents to her. See ECF No. 7-1 (Def. SMF), ¶¶ 12–13; ECF No. 9-
16, Exh. 115 (First Document Disclosure). This release addressed the first two categories of
requested documents — the GAT survey questions and informed-consent forms. There, the
Army disclosed to Naumes 773 of the questions on the GAT, but withheld an additional 534
questions under FOIA Exemption 4, which protects privileged and confidential commercial
information — in this case, copyrighted information. See First Document Disclosure at 2; ECF
No. 7-3 (Declaration of Kathleen Vaughn-Burford), ¶ 8. All corresponding informed-consent
forms were also produced since those forms are included with the surveys themselves. See
Vaughn-Burford Decl., ¶ 5.
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Another set of records responsive to the third category — the list of ArmyFit
recommendations — was produced on October 23, 2021. See Samples of ArmyFit
Recommendations at 2. These records were described as “sample[s]” of the recommendations
and presented in a “file [that] included five pages, each containing a single screenshot of
information, derived from [the] ArmyFit” portal. See ECF No. 10-1 (Declaration of Sarah
Katherine Naumes Decl.), ¶ 54; Vaughn-Burford Decl., ¶ 10.
So far, so good. But Naumes at this point was still dissatisfied with the incompleteness
of the recommendations disclosure; redactions on the GAT survey, on which 534 questions were
withheld; and the fact that at least one of the GAT surveys and its accompanying informed-
consent forms were missing. See ECF No. 9-1 (Naumes Opp. to First MSJ), ¶¶ 52, 54.
Defendant nonetheless proceeded on October 26, 2021, to file a motion for summary judgment,
which Naumes contested with her own motion for summary judgment. See ECF No. 7 (Def.
MSJ); Naumes Opp. to First MSJ; ECF No. 10 (Naumes Cross MSJ).
On February 28, 2022, this Court issued an Opinion that granted in part and denied in
part the motions. See Naumes, 588 F. Supp. 3d at 30–31. It agreed with Plaintiff that the
ArmyFit recommendations disclosure was incomplete, but ruled that Defendant was only
obligated to release some and not all requested documents. On the issue of survey redactions,
the Court concluded that the best way to solve the Exemption 4 dispute was to ask the copyright
holders themselves whether they would consent to the release of their sets of questions, known as
“scales.” As to the missing GAT survey, the Court held, “Despite the confusion about the
different categories of the GAT, Defendant has described a good-faith effort to identify this
document” and thus had no duty to further search. Id. at 36. The Court also declined to penalize
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the Army despite Plaintiff’s claim that it had “violated FOIA’s statutory time requirements.” Id.
at 33 (quoting ECF No. 9-20 (Memorandum in Support) at 9).
The Court then ordered the following remedy:
[B]y March 14, 2022: 1) the Army [shall] search for and release the
pages offering Spiritual, Family Fitness, Social Fitness, and
Physical Fitness Dimension Recommendations linked to in the
records already provided; 2) release the GAT survey questions that
derive from sources available to the general public; 3) contact the
copyright holders for the questions from the remaining non-public
source materials and inform the Court as to their position on release;
and 4) provide supplemental briefing on how the GAT survey
questions are assembled from the underlying sources.
Naumes, 588 F. Supp. 3d at 43.
On May 10, 2022, the Army proceeded to contact the copyright holders. All permitted
the release of the questions, with the exception of Dr. Nansook Park, who holds three of the
fourteen copyrights. See ECF No. 23 (Dep’t of Army Status Report). Those not belonging to
Dr. Park were released. See ECF No. 35-2 (Fourth Naumes Decl.), ¶ 10. Defendant then
renewed its Motion for Summary Judgment, again contending that it had released all possible
documents. Naumes opposed, arguing that Dr. Park’s three scales were still not subject to the
Exemption 4 shield. See ECF No. 28 (Naumes Opp. to Second MSJ) at 1. On December 19,
2022, this Court granted the Motion and entered judgment for the Army. See ECF No. 32 (Order
on Ren. MSJ).
With the merits of the litigation now terminated, Plaintiff has filed this suit to recover
attorney fees.
II. Legal Standard
FOIA provides that courts “may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case . . . in which the complainant has
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substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i); see Brayton v. Off. of the U.S. Trade Rep.,
641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the attorney-fee inquiry
into two prongs, which our case law has long described as fee ‘eligibility’ and fee ‘entitlement.’”
Brayton, 641 F.3d at 524 (quoting Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363,
368–69 (D.C. Cir. 2006)). Plaintiffs are “eligible” to receive fees if they have “substantially
prevailed.” Id.; Negley v. FBI, 818 F. Supp. 2d 69, 72–73 (D.D.C. 2011). In such a
circumstance, the court must then “consider[] a variety of factors” to determine whether they are
“entitled” to fees. Brayton, 641 F.3d at 524–25; see also Davy v. CIA, 550 F.3d 1155, 1158–59
(D.C. Cir. 2008). If plaintiffs are both eligible for and entitled to receive fees, the court proceeds
to “analyze whether the amount of the fee request is reasonable.” Elec. Privacy Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 237 (D.D.C. 2011).
III. Analysis
Given that framework, the Court will first determine whether Naumes may receive fees;
finding that she may, it next assesses whether she should receive them. Last the Court
determines the precise amount of fees that should be awarded, looking at both the merits and the
fee litigation.
A. Eligibility
A FOIA “complainant has substantially prevailed” and is consequently eligible for a fee
award if it “has 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). Plaintiff invokes both
subsections as the basis for her fee request. While the former is largely self-explanatory, the key
question under the latter, aptly named the “catalyst theory,” is whether “the institution and
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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); see also Davis v. DOJ, 610 F.3d 750, 752 (D.C. Cir. 2010) (“FOIA plaintiffs [are]
eligible for a fee award if the lawsuit substantially caused the agency to release the requested
records,” regardless of whether the plaintiff obtained any court-ordered relief.).
Defendant makes two main arguments for reducing attorney fees based on eligibility. It
first contends that Naumes may recover no fees for her failed Opposition to the second Motion
for Summary Judgment. See ECF No. 36 (Opp. to Fee Mot.) at 7. Defendant also more broadly
argues that Plaintiff did not substantially prevail on all issues and so her remaining fees must be
cut by 50%. Id. The Court looks at each in turn.
1. Success in Second MSJ
Begin with Defendant’s contention that Plaintiff cannot recover any attorney fees on her
second Motion for Summary Judgment. See Opp. to Fee Mot. at 7. The Court agrees with
Defendant’s position on this matter. On December 19, 2022, it granted Defendant’s Motion,
finding that the agency properly invoked Exemption 4 to shield the three questions to which
civilian-scientist Dr. Park holds a copyright. See Order on Ren. MSJ. The Court recognizes
Plaintiff’s effort to reduce the fees for this Motion in response to the Army’s objections. See
ECF No. 37 (Reply to Fee Mot. Opp.) at 4. A reduction, however, is insufficient: Plaintiff
garnered no relief on this Motion and so should not recover any fees. The Court will accordingly
reduce Plaintiff’s fees sought for this Motion to zero in its final calculation.
2. Success Prior to Second MSJ
The Army next asserts that a 50% cut for attorney fees up until the second Motion for
Summary Judgment is warranted. See Opp. to Fee Mot. at 7. Although Defendant fails to
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explain the basis for this assertion, it is well established in the caselaw that if Naumes obtained a
less-than-complete victory, a reduction in fees follows. Hensley v. Eckerhart, 461 U.S. 424, 440
(1983) (“[T]he extent of a plaintiff’s success is a crucial factor in determining the proper amount
of an award of attorney fees.”); see also Hall v. CIA 115 F. Supp. 3d 24, 29 (D.D.C. 2015)
(applying Hensley to FOIA litigation).
The foundational case in this area, Hensley, requires a two-step inquiry: “First, did the
plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?
Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award?” George Hyman Const. Co. v. Brooks, 963 F.2d 1532,
1535 (D.C. Cir. 1992) (discussing Hensley, 461 U.S. at 434). Because Plaintiff’s entire suit
centered on the FOIA claim on which she largely succeeded, the Court focuses only on the
second inquiry. Goos v. Nat’l Ass’n of Realtors, 997 F.2d 1565, 1569 (D.C. Cir. 1993); Naumes,
588 F. Supp. 3d at 23. This will require the Court to assess “whether the success obtained on the
remaining claims is proportional to the efforts expended by counsel.” Brooks, 963 F.2d at 1535.
Naumes was successful in obtaining the majority of the documents she originally sought.
See ECF No. 28-6 (Third Naumes Decl.), ¶ 10. Her FOIA request asked for three main
categories of documents: the entirety of the GAT questionnaires, their accompanying informed-
consent forms, and the ArmyFit recommendations given to soldiers and their families. She
substantially prevailed with respect to all three categories.
As to the first, Plaintiff received seven GAT questionnaires in total. Notably, the Army
only agreed to release these questionnaires after Naumes filed her Complaint. See Naumes Opp.
to Second MSJ at 4. The timing of these post-litigation voluntary disclosures indicates that her
litigation was the catalyst in effecting release. See 5 U.S.C. § 552(a)(4)(E)(ii) (“a voluntary or
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unilateral change in position by the agency” is still relief brought on by litigation). Naumes also
sought at least one additional survey, the GAT for Basic Training, which the Army could not
locate. This Court ultimately determined that the Army had completed an adequate search for
that additional questionnaire. See Naumes, 588 F. Supp. 3d at 36.
When initially released, the seven questionnaires were also heavily redacted. As a result
of the lawsuit, this Court ordered the Army to release all non-copyrighted questions, as well as to
contact copyright holders regarding the release of their copyrighted scales and questions.
Naumes, 588 F. Supp. 3d at 42–43. That Order led to the successful release of all questions,
save three of the scales copyrighted by Dr. Park. See Third Naumes Decl., ¶10. All told,
Plaintiff received seven of the eight GAT questionnaires she requested, and she successfully
forced the Army to disclose all of the scales within the questionnaires, with the exception of Dr.
Park’s three. As she herself notes in her Third Declaration from October 11, 2022: “[She] now
ha[s] access to most of the questions in the GAT, including most of Dr. Park’s questions.” Id.
All told, Plaintiff obtained the large majority of documents she sought in this category.
The second category is simple: Plaintiff received all informed-consent forms associated
with the disclosed questionnaires.
Finally, Plaintiff was partially successful in obtaining the ArmyFit recommendations.
Although the Court ruled that “‘FOIA imposes no duty on the agency to create records,’ and the
Army need not assemble a new record in the form of a complete list of recommendations,”
Naumes, 588 F. Supp. 3d at 36 (quoting Forsham v. Harris, 445 U.S. 169, 186 (1980)), the Court
nonetheless required disclosure of all links in the screenshots previously disclosed by the Army.
Id. The Army released those five screenshots, furthermore, only after Plaintiff filed this
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Complaint, once again affirming that her litigation precipitated disclosure. See ECF No. 35-12
(Fee Mot.) at 9.
All told, as Naumes obtained the vast majority of what she requests, the Court will
implement only a 5% trim on fees incurred up until the second Motion for Summary Judgment
when it calculates Naumes’s ultimate fee award.
B. Entitlement
The entitlement inquiry is designed to ensure that attorney fees are disbursed in a manner
consistent with the purpose of FOIA’s fee provision, which “was not enacted to provide a reward
for any litigant who successfully forces the government to disclose information it wished to
withhold.” Davy, 550 F.3d at 1158 (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559
F.2d 704, 711 (D.C. Cir. 1977)). Instead, the fee provision serves the “more limited purpose” of
“remov[ing] the incentive for administrative resistance to disclosure requests based not on the
merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the
financial resources or economic incentives to pursue their requests through expensive litigation.”
Id. (quoting Nationwide, 559 F.2d at 711). In considering that purpose, the D.C. Circuit has
distinguished between a “plaintiff who seeks to advance his private commercial interests and
thus needs no incentive to file suit, and a newsman who seeks information to be used in a
publication or the public interest group seeking information to further a project benefitting the
general public.” Id.This Court thus considers four principal 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.” Tax Analysts v. U.S. Dep’t of
Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992). “No one factor is dispositive,” Davy, 550 F.3d at
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1159, and “[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.
1. Factor One: Public Benefit
The first factor “requires consideration of both the effect of the litigation for which fees
are requested and the potential public value of the information sought.” Davy, 550 F.3d at 1159.
In evaluating this criterion, it is important to note that “[t]he simple disclosure of government
documents does not satisfy the public interest factor.” Alliance for Responsible CFC Policy, Inc.
v. Costle, 631 F. Supp. 1469, 1471 (D.D.C. 1986) (citing Fenster v. Brown, 617 F.2d 740, 744
(D.C. Cir. 1979)). Instead, the Court must determine whether “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. Cir. 1995) (quoting Fenster, 617 F.2d at 744)
(internal quotation marks omitted).
This factor leans in Plaintiff’s favor. Naumes is an academic researcher looking to gain
more insight into a tool used by the Army on millions of soldiers and their family members to
assess their psychological health and offer recommendations. See Naumes Decl., ¶¶ 2–4. By
2009, 3.4 million GAT surveys had already been administered, and Plaintiff estimates that
millions more have been used since then. Id., ¶¶ 3–4. Despite the widespread use of this survey
as a mechanism to assess and offer recommendations relating to the psychological well-being of
soldiers, researchers in 2016 studying the GAT tool authored a report stating that “continued
research is needed to confirm the validity of the GAT.” Id., ¶ 4. Plaintiff further highlights how
tools used by the military often seep into mainstream society, making rigorous studies and
evaluations of military tools a task that can have wide-ranging impacts. Id. With all this in
mind, there is evidently a public interest in research involving the GAT assessment tool.
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2. Factors Two and Three: Commercial Benefit & Nature of Intent
Factors two and three — the “commercial benefit” and “plaintiff’s interest,” which “are
closely related and often considered together” — favor Plaintiff. Tax Analysts, 965 F.2d at
1095.
Defendant claims that the personal benefits she will achieve by completing her Ph.D.
disqualify this case from passing the “commercial benefit” and “plaintiff’s interest” factors. See
Opp. to Fee Mot. at 10. Even if Plaintiff obtained some benefit from the disclosure through
educational advancements, that would not render her requests primarily commercial. “Congress
did not intend for scholars … to forego[sic] compensation when acting within the scope of their
professional roles.” Campbell v. DOJ, 164 F.3d 20, 35–36 (D.C. Cir. 1998). The Court
concludes that she possesses only a scholarly, not a commercial, interest in the requested
information, and so these factors tip in her favor.
3. Factor Four: Reasonableness of the Withholding
This final factor requires the Court to “consider[] whether the agency’s opposition to
disclosure ‘had a reasonable basis in law,’ and whether the agency ‘had not been recalcitrant in
its opposition to a valid claim or otherwise engaged in obdurate behavior.’” Davy, 550 F.3d at
1162 (first quoting Tax Analysts, 965 F.2d at 1096, then LaSalle Extension Univ. v. FTC, 627
F.2d 481, 486 (D.C. Cir. 1980)). Significantly, the burden remains with the agency: “The
question is not whether [plaintiff] has affirmatively shown that the agency was unreasonable, but
rather whether the agency has shown that it had any colorable or reasonable basis for not
disclosing the material until after [plaintiff] filed suit.” Id. at 1163.
This factor is a closer call than the others. The Court agrees that the Army’s rationale for
withholding the documents — namely, the copyright concerns — was not entirely unfounded, as
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Dr. Park’s refusal to release her copyrighted questions illustrates. See Dep’t of Army Status
Report. The Court has already declined to award attorney fees for that portion of the litigation.
The real question, accordingly, is whether the Army had a reasonable position as to the other
GAT questions, informed consents, and GAT recommendations.
Defendant is on considerably thinner ice here. In fact, the voluntary disclosures
demonstrate that the Army itself does not even take the position that its withholding of
documents was reasonable. The Court thus concludes that the fourth factor similarly leans in
favor of Plaintiff’s entitlement to attorney fees.
In keeping with Congress’s intention that FOIA’s fee provision “encourage . . . suits that
benefit the public interest,” LaSalle Extension Univ., 627 F.2d at 484, Plaintiff is entitled to fees.
C. Calculating Fees
The Court must now calculate Naumes’s precise award. The “usual method of
calculating reasonable attorney fees is to multiply the hours reasonably expended in the litigation
by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel and Rest.
Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)). That number may
then be adjusted to reflect “the significance of the overall relief obtained by the plaintiff.”
Judicial Watch, Inc., 774 F. Supp. 2d at 233 (quoting Hensley, 461 U.S. at 435).
Defendant does not dispute Naumes’s sought rate under the Fitzpatrick Matrix nor many
features of her timekeeping. Its main contention appears to be that her attorney’s hours were
excessive in some specific respects given his specialization in FOIA litigation. See Opp. to Fee
Mot. at 8. The Court is mindful here that “‘trial courts need not, and indeed should not, become
green-eyeshade accountants’ in examining fee requests since ‘[t]he essential goal . . . is to do
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rough justice, not to achieve auditing perfection.’” Elec. Privacy Info. Ctr. v. National Security
Agency, 87 F. Supp. 3d 223, 235 (D.D.C. 2015) (alteration in original) (quoting Fox v. Vice, 563
U.S. 826, 838 (2011)). “The Court therefore need not — and should not — scrutinize every
billing entry.” Am. Oversight v. U.S. Dep’t of Justice, 375 F. Supp. 3d 50, 70 (D.D.C. 2019).
With all this in mind, the particular hours to which defendant objects —for example, 1.8 hours
spent on “rudimentary FOIA questions,” 4.4 hours revising Plaintiff’s declaration, and 3 hours
reviewing the intersection of copyright and FOIA as well as prevailing-party status — hardly
seem excessive or unreasonable. See Opp. to Fee Mot. at 8. Following this “rough justice”
approach, and considering the earlier trimmings, the Court does not take issue with Plaintiff’s
rates or remaining hours. National Security Agency, 87 F. Supp. 3d at 235 (internal quotation
marks omitted).
Getting down to business, the Court thus may now calculate Plaintiff’s merits award.
Plaintiff sought $81,208.70 in attorney fees prior to her failed Opposition to the second Motion
for Summary Judgment; reducing that sum by 5% yields a total of $77,148.27. As the Court will
grant no fees for that Opposition, her merits award will be $77,148.27.
A postscript before moving on to fees on fees: Plaintiff also seeks $428.15 in costs,
which covers her filing fee and postal fees incurred in serving Defendant. Defendant does not
specifically object to this sum, which the Court finds reasonable and will award.
D. Fees on Fees
The Court finally concludes by considering whether to add in fees for time spent on this
fee litigation, known colloquially as “fees on fees.” Courts in this district have concluded that
awards of “fees on fees” should be reduced to exclude the amount of time spent unsuccessfully
defending fee requests denied by the Court. See, e.g., Nat’l Veterans Legal Servs. Program v.
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U.S. Dep’t of Veterans Affairs, 1999 WL 33740260, at *5–6 (D.D.C. 1999); see also
Commissioner, INS v. Jean, 496 U.S. 154, 163 n.10 (1990) (“[F]ees for fee litigation should be
excluded to the extent that the applicant ultimately fails to prevail in such litigation.”).
As discussed above, Plaintiff’s success on all of her motions was substantial but
incomplete. The Court, accordingly, will follow the lead of other courts in this district and
award plaintiff “the same percentage of fees for fee litigation as it does for fees on the merits.”
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 982 F. Supp. 2d 56, 61 (D.D.C. 2013).
This approach ends up being functionally similar to ratably reducing the number of hours
Plaintiff’s counsel spent on this Motion then multiplying that sum by the applicable USAO
Matrix rates.
Naumes received 82% of the original attorney fees she requested on the merits, totaling
an 18% reduction overall. Given that Defendant develops no further substantive challenge here,
the Court will concomitantly reduce the fees on fees by 18%. The resulting fees-on-fees
recovery will be $34,267.06. Adding that sum to Plaintiff’s merits and costs awards yields a
grand total of $111,843.48.
Summary Totals Plaintiff’s Sought Award Court’s Final Award
Prior to Second MSJ $81,208.70 $77,148.27
Second MSJ $13,128.75 $0
Fees on Fees $41,789.10 $34,267.06
Costs $428.15 $428.15
Grand Total $136,554.70 $111,843.48
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IV. Conclusion
In sum, after all disputes have been resolved and all discounts have been applied, the
Court will award Plaintiff $111,843.48 in attorney fees and costs. A separate Order so stating
shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: July 5, 2023
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