Nat'l Sec. Counselors v. Cent. Intelligence Agency

NATIONAL SECURITY COUNSELORS, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.

NATIONAL SECURITY COUNSELORS, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et al. Defendants.

Civil Action No. 11-444 (BAH)

Civil Action No. 11-445 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

November 21, 2017

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

After over six years of litigation, involving three rounds of dispositive motions and three memorandum opinions, the plaintiff, National Security Counselors ("NSC"), seeks a total of $66,944.83 for attorneys' fees and costs in Civil Action No. 11-444 ("NSC 444") and Civil Action No. 11-445 ("NSC 445"), as the prevailing party, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(E).¹ See NSC 444, Pl.'s Pet. Att'ys' Fees ("NSC 444 Pl.'s Pet."), ECF No. 107; NSC 445, Pl.'s Pet. Att'ys' Fees ("NSC 445 Pl.'s Pet."), ECF No. 101;NSC 444, Bill of Costs ("NSC 444 Pl.'s Bill of Costs"), ECF No. 105; NSC 445, Bill of Costs ("NSC 445 Pl.'s Bill of Costs"), ECF No. 99.² The defendants, the Central Intelligence Agency ("CIA") in NSC 444, and the CIA, the Defense Intelligence Agency ("DIA"), the Department of Justice ("DOJ"), the Department of State ("State"), the National Security Agency ("NSA"), and the Office of the Director of National Intelligence ("ODNI"), in NSC 445, challenge the plaintiff's eligibility and entitlement to attorney's fees and costs and, in the alternative, seek a reduction the amount of fees requested by the plaintiff. See NSC 444, Def.'s Opp'n Pl.'s Pet. Att'ys' Fees ("NSC 444 Def.'s Opp'n Fees") at 1-3, ECF No. 110; NSC 445, Defs.' Opp'n Pl.'s Pet. Att'ys' Fees ("NSC 445 Defs.' Opp'n Fees") at 1-3, ECF No. 104. The defendants also seek to reduce the plaintiff's recovery for litigation costs. NSC 444, Def.'s Opp'n Pl.'s Bill of Costs ("NSC 444 Def.'s Opp'n Costs") at 2-5, ECF No. 109; NSC 445, Defs.' Opp'n Pl.'s Bill of Costs ("NSC 445 Defs.' Opp'n Costs") at 2-3, ECF No. 103. For the following reasons, the plaintiff's petitions are GRANTED in part and DENIED in part.

I. BACKGROUND

The relevant factual and procedural history is summarized only to the extent necessary to evaluate the pending fee petitions, as the facts have been recited in ample detail in opinions resolving the parties' dispositive motions. See Nat'l Sec. Counselors v. CIA (NSC III), 206 F. Supp. 3d 241, 246-248 (D.D.C. 2016); Nat'l Sec. Counselors v. CIA (NSC II), 960 F. Supp. 2d 101, 118-131 (D.D.C. 2013); Nat'l Sec. Counselors v. CIA (NSC I), 898 F. Supp. 2d 233, 242-251 (D.D.C. 2012). In February 2011, the plaintiff, a Virginia-based non-profit organization, filed three lawsuits, Civil Action No. 443 ("NSC 443"), NSC 444, and NSC 445, which togetheralleged that six federal intelligence agencies improperly processed records requests under FOIA and maintained policies and practices violating FOIA, 5 U.S.C. § 552 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. See NSC I, 898 F. Supp. 2d at 241-42.

In NSC 443, the plaintiff asserted three counts against the CIA. See generally NSC 443, Pl.'s Compl. ("NSC 443 Compl."), ECF No. 1. Counts One and Two, respectively, challenged the CIA's response to a records request that had been assigned to the plaintiff, id. ¶¶ 5-17, and the CIA's overall policy of refusing to recognize assigned rights to FOIA requests, id. ¶¶ 18-28. The two counts survived the CIA's Motion to Dismiss in NSC I, 898 F. Supp. 2d 233 at 290, and summary judgment was granted to the plaintiff with respect to both counts in NSC II, 960 F. Supp. 2d at 208. With respect to Count Three, which challenged the CIA's response to a separate FOIA request, NSC 443 Compl. ¶¶ 29-33, summary judgment was granted in part and denied in part to the CIA in NSC II, 960 F. Supp. 2d at 208, and, in NSC III, the plaintiff's Motion for Partial Reconsideration was denied, while summary judgment was granted in all other respects on this count to the CIA, as conceded, NSC III, 206 F. Supp. 3d at 288-89. The plaintiff's two motions to compel production of two documents, which the plaintiff had turned over to the Federal Bureau of Investigations ("FBI") as potentially classified and expected to be returned with the classified information redacted, were granted prior to NSC I, see NSC 443, Min. Order (dated Aug. 15, 2012); NSC 443, Order ("NSC 443 Order to Compel Compliance"), ECF No. 34, and the plaintiff's "non-frivolous" Motion for Sanctions against the CIA, stemming from the agency's handling of the two documents was denied in NSC II, 960 F. Supp. 2d at 139, 208.³

In NSC 444, the plaintiff asserted twenty-one counts against the CIA. See generally NSC 444, Pl.'s First Am. Compl. ("NSC 444 FAC"), ECF No. 6. Of the thirteen policy-or-practice claims, twelve were dismissed in NSC I, but Count Twenty-One, which challenged the CIA's alleged Cut-Off Date Policy under FOIA, was allowed to go forward. NSC I, 898 F. Supp. 2d at 290-91 (granting CIA's partial Motion to Dismiss with respect to Counts Two through Seven and Eleven through Sixteen and denying CIA's Motion to Dismiss with respect to Count Twenty-One). Summary judgment was later granted to the CIA on Count Twenty-One, as well as Counts One, Eight, Nine, and Ten, but denied as to Counts Seventeen, Eighteen, and Twenty, which challenged the CIA's responses to different records requests. NSC II, 960 F. Supp. 2d at 208-09; see also id. at 118 n.3 (explaining Count Nineteen was voluntarily dismissed). In NSC III, only Counts Eighteen and Twenty remained in dispute, and summary judgment was granted to the CIA with respect to the remaining issues on those two counts and in all other respects to the CIA, as conceded. NSC III, 206 F. Supp. 3d at 289.

The plaintiff also asserted twenty-one counts in NSC 445, addressing the agencies' responses to eleven different FOIA records requests, as well as policies or practices that pertained to over twenty other FOIA records requests. See generally NSC 445, Pl.'s First Am. Compl. ("NSC 445 FAC"), ECF No. 7. In NSC I, nine of the counts addressing policy-or-practice claims, including the CIA's Glomar response policy, were dismissed. NSC I, 898 F. Supp. 2d at 291 (granting CIA's Motion to Dismiss with respect to Counts Four, Eleven, Fourteen through Nineteen and Twenty-One). In NSC II, summary judgment was (i) denied in part and granted in part to the CIA on Counts One, Two, Three, and Seven; (ii) denied in part and granted in part to DIA on Count Five; (iii) denied to ODNI on Count Six; (iv) denied in part and granted in part to DOJ on Count Eight; (v) denied in part and granted in part to State on Count Nine; (vi) denied to NSA on Count Ten; (vii) granted to CIA on Count Twelve; (viii) denied to CIA on Count Thirteen; and (ix) granted to the plaintiff on Count Twenty, which alleged a general FOIA violation due to CIA's refusal to invoke exemptions with particularity. NSC II, 960 F. Supp. 2d at 209-10. In NSC III, summary judgment was granted on all remaining counts to the defendants. NSC III 206 F. Supp. 3d at 289-90.⁴

Following the above decisions, the plaintiff filed the pending petitions for attorney's fees, now seeking $50,967.80 in NSC 444 (including fees for NSC 443) and $14,371.20 in NSC 445. NSC 444, Pl.'s Errata ("NSC 444 Pl.'s Errata"), ECF No. 115; NSC 445, Pl.'s Errata ("NSC 445 Pl.'s Errata"), ECF No. 109. These requested fees reflect only a portion of the overall hours expended in this litigation, which hours were reduced based on plaintiff's counsel's assessment of the counts on which the plaintiff prevailed. NSC 444 Pl.'s Pet., Attach. 3, Decl. of Kelly McClanahan, Esq. ("NSC 444 First McClanahan Decl.") ¶ 12, ECF No. 107-3; NSC 445 Pl.'sPet., Attach. 3, Decl. of Kelly McClanahan, Esq. ("NSC 445 First McClanahan Decl.") ¶ 12, ECF No. 101-3. NSC also filed Bills of Costs in NSC 444 and 445, seeking $1,255.83 and $350.00, respectively. NSC 444 Pl.'s Bill of Costs at 1; NSC 445 Pl.'s Bill of Costs at 1. The defendants argue the fee petitions "should be denied," or in the alternative, the plaintiff's award "should be significantly reduced," as should the plaintiff's award of costs. See NSC 444 Def.'s Opp'n Fees at 1; NSC 445 Defs.' Opp'n Fees at 1; NSC 444 Def.'s Opp'n Costs at 1; NSC 445 Defs.' Opp'n Costs at 2-3. The plaintiff's requests for attorney's fees and costs are considered below.

II. LEGAL STANDARD

The FOIA authorizes the award of attorneys' fees reasonably incurred by a plaintiff in litigation to obtain "the production of any agency records improperly withheld," 5 U.S.C. § 552(a)(4)(B), when "the complainant has substantially prevailed," id. § 552(a)(4)(E)(i). The D.C. Circuit has construed this statutory provision as "naturally divid[ing] the attorney-fee inquiry into two prongs, which our case law has long described as fee 'eligibility' and fee 'entitlement.'" Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). Thus, to obtain attorneys' fees under the FOIA, the plaintiff must demonstrate both eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014); see also Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984) ("[E]ligibility alone is not enough. . . . the complainant must [also] show that he or she is 'entitled' to an award.") (citation omitted). After establishing eligibility and entitlement, the plaintiff must then demonstrate the reasonableness of the calculation in its fee request. See Covington v. District of Columbia, 57 F.3d 1101, 1107-08 (D.C. Cir. 1995).

To satisfy the first requirement of eligibility for attorneys' fees, a claimant must show that he or she "substantially prevailed" in the underlying FOIA litigation. See 5 U.S.C. § 552(a)(4)(E)(i). The statute provides that the claimant "substantially prevailed" by gaining relief...