Am. Immigration Council v. U.S. Dep't of Homeland Sec.

82 F.Supp.3d 396

American Immigration Council, Plaintiff

v.United States Department of Homeland Security, et al., Defendants.

Civil Action No. 11–1972 JEB

United States District Court, District of Columbia.

Signed March 10, 2015

Creighton R. Magid, Dorsey & Whitney LLP, Melissa E. Crow, American Immigration Council, Beth Jennifer Werlin, Washington, DC, Michelle S. Grant, Dorsey

& Whitney LLP, Minneapolis, MN, for Plaintiff.

Marian L. Borum, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

In March 2011, American Immigration Council submitted a Freedom of Information Act request to Customs and Border Protection, a component agency of the Department of Homeland Security. AIC sought information about individuals' access to counsel during their interactions with federal immigration authorities. Dissatisfied with the response to its request—the agency produced just two pages of records after six months of discussion—AIC filed suit in this court against CBP and DHS. Defendants then conducted a broader search, which ultimately produced at least 156 additional responsive documents.

The merits litigation now completed, AIC moves for an award of attorney fees and costs. Because Plaintiff substantially prevailed in its suit and the multi-factor entitlement inquiry favors a fee award—at least for a portion of the underlying litigation—the Court will grant its Motion in part. AIC's requested sum, however, will be reduced to account for various billing-related deficiencies.

I. Background

Past Opinions detail the full background of this suit, so the Court will recount here only the facts relevant to the pending Motion for Attorney Fees. In March 2011, AIC submitted a FOIA request to CBP asking for:

[A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions, subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:

• Attorneys' ability to be present during their clients' interactions with CBP;

• What role attorneys may play during their clients' interactions with CBP;

• Attorney conduct during interactions with CBP on behalf of their clients;

• Attorney appearances at CBP offices or other facilities.

Mot., Exh. B (March 14, 2011, Letter from Emily Creighton to CBP's FOIA Division) at 1 (footnote omitted). The request “include[d], but [was] not limited to” ten specific types of records. Id. at 1–2.

After “consult[ing] with several component offices within CBP,” the agency's FOIA Division informed Plaintiff that “much of the information” it sought was “already publicly available.” Compl., Exh. C (May 12, 2011, Letter from Dorothy Pullo to Emily Creighton) at 1. The letter further stated that responsive information could be found online in one of three places: the Code of Federal Regulations, the “Personal Search Handbook,” or the soon-to-be-released “Inspector's Field Manual.” Id.

Questioning the adequacy of Defendants' search for responsive documents, Plaintiff immediately filed an administrative appeal. See Compl., Exh. D (May 26, 2011, Letter from Emily Creighton to CBP's FOIA Appeals Division) at 2 (“The May 12, 2011, response merely includes general documents that are publicly available and does not reflect a search reasonably calculated to uncover documents relevant to the guidance outlined in the request.”). Upon receipt of this filing, the Appeals Division contacted three internal offices “in which responsive records were likely to have been created and be maintained”—namely, the Office of the Border Patrol (OBP), the Office of Field Operations (OFO), and the Office of Chief Counsel (OCC). See id., Exh. F (Sept. 29, 2011, Letter from Shari Suzuki to Emily Creighton) at 10. The cumulative efforts of those three offices produced just two pages of responsive records. See id., Exh. G (Excerpts from Agency Guidance Materials). The agency explained that it was “unable to provide [AIC] with any further information because no such information exists.” See Suzuki Letter at 10.

In November 2011, believing that Defendants had failed to comply with the obligations imposed by FOIA, AIC brought suit in this court. Shortly thereafter, Defendants filed their first Motion for Summary Judgment, maintaining that the search CBP had conducted was “reasonably calculated to uncover all information responsive to Plaintiff's request.” ECF No. 9 (First Motion for Summary Judgment) at 10. AIC opposed the Government's Motion, arguing that the agency had failed to adequately justify the limited nature of its search. See ECF No. 12 (First AIC Opposition). In particular, Plaintiff noted that Suzuki's Declaration never explained why the three component offices searched were the only ones likely to contain responsive records, and that the Declaration lacked sufficient detail as to the search methods employed. See id. at 3–8. AIC also highlighted a number of responsive documents likely to be in CBP's possession that, inexplicably, had not been produced. See id. at 8–16.

After reviewing Plaintiff's Opposition, Defendants withdrew their Motion. See ECF No. 18 (Notice of Withdrawal). Deeming it “in the best interest of this litigation” to “expand their search beyond the CBP offices originally believed to have responsive records,” Defendants agreed to “conduct a nationwide search of CBP offices for records responsive to Plaintiff's FOIA request ... [,] involv[ing] over 300 Ports of Entry, approximately 130 Border Patrol Stations and 20 Border Patrol Sectors, CBP Field Operations Offices as well as the following additional offices at CBP headquarters: Office of Training and Development, Office of Diversity and Civil Rights, Office of Policy and Planning, and Office of Executive Secretariat.” Id. at 2–3.

This ramped-up effort yielded a richer harvest of more than 300 documents, of which the Government subsequently released some in full, disclosed others in part, and withheld still others altogether pursuant to various FOIA exemptions. See ECF Nos. 20–25, 27–29, 31, 38 (status reports updating the Court on progress of production). During this period of rolling productions—which occurred between October 2012 and July 2013—the parties frequently met and conferred regarding the adequacy of Defendants' searches and the propriety of various redactions. See Mot. at 2. These conferences bore fruit: the Government subsequently produced certain records with fewer redactions, and AIC determined that it would no longer challenge the adequacy of the search. See id. at 2–3. Despite continued negotiations, however, the parties could not reach an agreement on the redactions contained in seven of the documents. With progress at a standstill, Defendants moved for summary judgment on the remaining documents, which the Court granted on March 21, 2014. See Am. Immigration Council v. United States Dep't of Homeland Sec. (AIC I), 30 F.Supp.3d 67 (D.D.C.2014).

Plaintiff now seeks to recover attorney fees and related expenses for the work its attorneys performed prior to Defendants' Second Motion for Summary Judgment. The parties began negotiating such fees almost a year ago, back in April of 2014. On August 28, nearly five months after this discussion began and after multiple e-mails and conference calls, Defendants abruptly notified AIC that “[u]pon further reflection,” they “do[ ] not believe [AIC] is entitled to attorneys' fees.” ECF No. 49 (Motion for Briefing Schedule), Att. 1 (Declaration of Melissa Crow), Exh. 8 (August 28, 2014, Letter from Marian Borum). The letter explained that because AIC had failed to file a motion for fees within fourteen days after the entry of judgment, as required by Federal Rule of Civil Procedure 54(d)(2)(B)(i), “Defendant considers this matter closed.” Id.

Taken aback by the Government's sudden change of heart, AIC immediately filed a Motion to set a briefing schedule to resolve the issue of attorney fees. See ECF No. 49. Agreeing with Plaintiff that Rule 54 poses no bar to an attorney-fee award in this case, the Court granted the Motion. See ECF No. 52 (Memorandum Opinion & Order) (AIC II ). With briefing now complete, the Court turns to the merits of AIC's request.

II. Analysis

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 substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i) ; see Brayton v. Office 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 (citing Judicial Watch, Inc. v. Dep't of Commerce, 470 F.3d 363, 368–69 (D.C.Cir.2006) ). The Court, therefore, first decides whether AIC has “substantially prevailed” and is therefore “eligible” to receive fees. See id. ; Judicial Watch, 470 F.3d at 368 ; Negley v. FBI, 818 F.Supp.2d 69, 73 (D.D.C.2011). If so, the Court must then “consider[ ] a variety of factors” to determine whether it is “entitled” to fees. Brayton, 641 F.3d at 524–25 ; Judicial Watch, 470 F.3d at 369 ; Davy v. CIA, 550 F.3d 1155, 1158 (D.C.Cir.2008). Put another way, the Court will first determine whether AIC may receive fees; if so, it will then decide whether it should receive them. See Brayton, 641 F.3d at 524. Finally, upon determining that AIC is both eligible and entitled to fees, the Court must “analyze whether the amount of the fee request is reasonable.” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. (EPIC I), 811 F.Supp.2d 216, 237 (D.D.C.2011).

A. Eligi...