Urban Air Initiative, Inc. v. Envtl. Prot. Agency

442 F.Supp.3d 301

URBAN AIR INITIATIVE, INC., et al., Plaintiffs,

v.ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Civil Action No. 15-1333 (ABJ)

United States District Court, District of Columbia.

Signed February 27, 2020

Adam R.F. Gustafson, James Ryan Conde, Boyden Gray & Associates, Washington, DC, for Plaintiffs.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

The Urban Air Initiative, Inc. and Energy Future Coalition have filed a motion for an award of attorneys' fees and costs pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(E). Pls.' Mot. for Attorneys' Fees and Costs [Dkt. # 71] ("Pls.' Mot."). Plaintiffs seek a total award of $189,288.40, including: $141,792.60 for litigation-phase fees; $400 in costs; and $47,095.80 in "fees-on-fees" for time spent negotiating and drafting the motion and reply in support of their motion for attorneys' fees. Id. at 2; Pls.' Reply in Supp. of Mot. for Attorneys' Fees and Costs [Dkt. # 78] ("Pls.' Reply") at 24. Defendant Environmental Protection Agency ("EPA") maintains plaintiffs are neither eligible for, nor entitled to, a FOIA fee award, and that the amount sought is unreasonable. Def.'s Opp. to Pls.' Mot. [Dkt. # 75] ("Def.'s Opp.") at 34–35.

The Court finds that plaintiffs are eligible for and entitled to a fee award, but the amount requested was not reasonable. Accordingly, the Court will award a reduced fee in the amount of $75,400.00.

BACKGROUND

I. Factual Background

The Urban Air Initiative ("UAI") is a nonprofit social welfare organization dedicated to educating the public about health threats posed by petroleum-based fuels. Compl. [Dkt. # 1] ¶ 3. Energy Future Coalition ("EFC") is a nonprofit organization dedicated to advancing practical and bi-partisan solutions to energy and environmental policy challenges. Id. ¶ 4.

In the Energy Policy Act of 2005, Congress instructed the EPA to produce an updated vehicle emissions model that considered the effect of individual fuel properties on emissions from vehicles. Declaration of Kathryn Sargeant [Dkt. # 19-3] ("Sargeant Decl.") ¶ 10. In order to create this model, which would become known as the MOVES2014 model, the EPA, the Department of Energy, and the Coordinating Research Council conducted a study entitled EPAct/V2/E–89 Tier 2 Gasoline Fuel Effects Study ("EPAct study"). Id. ¶ 8; Compl. ¶ 6. Ultimately, the MOVES2014 model included data from a range of sources, including the EPAct Study. Sargeant Decl. ¶ 10.

According to plaintiffs, the EPAct study was the "basis for erroneous emissions factors" in MOVES2014 and would result in increased air pollution. Compl. ¶ 7. Specifically, "the MOVES2014 model projects that increasing concentration of ethanol in gasoline contributes to increased emissions of various pollutants," but plaintiffs contend that "in reality, ethanol reduces emissions of these pollutants." Id. So plaintiffs, along with the states of Kansas and Nebraska, petitioned for judicial review of EPA's MOVES2014 model in the D.C. Circuit, partially on the basis of "pollution modeling errors that are the direct result of defects in the EPAct study's design." Id. ¶ 10; Ex. A to Compl. [Dkt. # 1-1] ("Kansas v. EPA Brief").

Plaintiffs submitted a FOIA request on February 9, 2015 to obtain information about the EPAct study. Compl. ¶ 14. EPA's Office of Transportation and Air Quality received the request on February 10, and confirmed receipt on February 19. Ex. B. to Sargeant Decl. [Dkt. # 19-4]. On March 9, 2015 defendant informed plaintiffs that their request would yield an estimated 83,000 responsive records at a cost of $24,000, and it encouraged plaintiffs to narrow the scope of their request. Sargeant Decl. ¶ 15. After discussion between the parties, on April 2, 2015, plaintiffs revised their request to call for one contract, two work assignments, and all information related to the "design phase" of the EPAct study – defined as "everything that preceded the emissions testing that resulted directly in the reported results of any phase of the EPAct study." Ex. J to Compl. [Dkt. # 1-1] ("Revised FOIA Request"); Compl. ¶¶ 16–19. Plaintiffs emphasized that their request was time sensitive due to ongoing litigation challenging MOVES2014, and they noted that they were amenable to receiving records as they became available. See Revised FOIA Request. On April 24, 2015, EPA sent plaintiffs a letter estimating that there would be 36,000 potentially responsive records at a cost of $18,000, and plaintiffs agreed to pay all legitimate costs in a letter two days later, again noting urgency. Compl. ¶¶ 20–21.

On June 15, 2015, defendant sent plaintiffs a letter projecting a completion date for production of February 15, 2016 due to the "broad scope of the request" and the "significant amount of EPA's time and resources" required to find and examine both electronic and unindexed paper records. Ex. N to Compl. [Dkt. # 1-1] ("EPA Extension"). In response, plaintiffs proposed a September 2015 deadline for native electronic files and an October 2015 deadline for all other records. Compl. ¶ 25; Ex. O to Compl. [Dkt. # 1-1]. On June 25, defendant declined plaintiffs' proposed deadlines. Compl. ¶ 26; Ex. P to Compl. [Dkt. # 1-1] ("June 25, 2015 EPA Reply"). At that time, defendant did produce the one contract and two work assignments plaintiffs requested but it explained that because responsive emails were archived on legacy systems,¹ there was "still considerable uncertainty about the time [necessary] to produce and review those records." Compl. ¶ 28; June 25, 2015 EPA Reply.

Defendant also noted that staff members in possession of responsive records had other mission-critical priorities and that management and legal resources were limited, particularly due to plaintiffs' ongoing judicial challenge to MOVES2014 in the D.C. Circuit. June 25, 2015 EPA Reply.

II. Procedural Background

Plaintiffs submitted their FOIA request to defendant on February 9, 2015. Compl. ¶ 14. Defendant contacted plaintiffs by letter dated March 9, 2015 to inform them that after an initial search, it estimated more than 83,000 potentially responsive records. Ex. F to Compl. [Dkt. # 1-1]. In an email dated March 11, 2015 and a letter dated April 2, 2015, plaintiffs narrowed the scope of the FOIA request. Ex. G to Compl. [Dkt. # 1-1]; Ex. J to Compl. [Dkt. # 1-1]. Based upon the date of the revised FOIA request, defendant was required to notify plaintiffs within twenty days, absent unusual circumstances, whether or not it would comply with the request. 5 U.S.C. § 552(a)(6)(A)(i).

While defendant responded to plaintiffs on April 24, 2015, indicating that after an initial search regarding the modified request, there were potentially approximately 36,000 responsive records which would take about 650 hours to search for, review, and produce, see Ex. K to Compl. [Dkt. # 1-1]; Ex. L to Compl., [Dkt. # 1-1], it was not until June 15 (51 business days after the revised request was submitted) that defendant informed plaintiffs that it would comply with their request. Ex. N to Compl. [Dkt. # 1-1] ("EPA Extension Request"). In defendant's June 15 letter, it relayed that because of the volume of records involved, the locations of responsive documents, and the way records were stored, it would not be able to complete production until February 2016. Id. Defendant also indicated that agency staff involved in responding to the FOIA request were also involved in responding to the separate judicial challenge, thereby diverting resources that could have contributed to a more expeditious production. Id.

Plaintiffs sought a completion date of October 2015, Ex. O to Compl. [Dkt. # 1-1], and on June 25, defendant made its first production, which consisted of three documents, and reaffirmed its February 2016 completion date in a letter. Ex. P to Compl. [Dkt. # 1-1]. In that letter, defendant explained that:

EPA has limited staff to apply to this request. The program staff who hold[s] the records have other mission-critical priorities that also must be addressed, and there is also a limited amount of management and legal resources available to review the responsive documents, particularly given the related litigation that will be ongoing this summer and fall.

Id. Defendant made no further productions that summer.

Because defendant failed to respond to plaintiffs' FOIA request within the statutorily-prescribed time,² plaintiffs filed this lawsuit on August 17, 2015 alleging defendant was "unlawfully withholding responsive records." Compl. ¶¶ 14, 31–37; 5 U.S.C. § 552(a)(6)(A)–(C). Defendant answered on November 12, 2015, Def.'s Answer [Dkt. #5], and the Court ordered defendant to file a dispositive motion or a report setting forth a schedule for completion of production. Order (Nov. 13, 2015) [Dkt. # 6].

Defendant submitted a status report on December 11, 2015, indicating that it had produced forty-three records through November 20, 2015, and proposed deadlines of February 28, 2016 for non-exempt records and May 31, 2016 for records not entitled to confidential treatment. Def.'s Status Report and Doc. Produc. Schedule [Dkt. # 7] at 1, 3, 7. Plaintiffs objected to this schedule, and the Court referred the action to a Magistrate Judge for mediation, which was unsuccessful. Order (Dec. 21, 2015) [Dkt. # 9]; Pls.' Status Report and Renewed Proposal for FOIA Produc. Schedule [Dkt. # 10] ("Pls.' Renewed Proposal") at 1. Defendant continued producing records according to its proposed schedule, and by January 7, 2016, it had produced a total of 684 records. Ex. Q to Def.'s Mot. for Summ. J. [Dkt. # 19-5]. On January 13, 2016 the Court issued a production schedule, calling for all non-exempt responsive records to be produced on a rolling basis, on January 15, January 29, February 15, and February 29, 2016. Min. Order (Jan. 13, 2016). The Court further ordered...