Virginia-Pilot Media Cos. v. Dep't of Justice

VIRGINIA-PILOT MEDIA COMPANIES, LLC and SCOTT DAUGHERTY, Plaintiffs, v. DEPARTMENT OF JUSTICE, Defendant.

CIVIL ACTION NO. 2:14cv577

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

August 10, 2016

MEMORANDUM OPINION & ORDER

Before the Court is Virginia Pilot Media Companies, LLC and Scott Daugherty's ("Plaintiffs") Motion for Attorneys' Fees pursuant to the citizen suit provision of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(E), and Federal Rule of Civil Procedure 54(d). ECF No. 69. Plaintiffs request attorneys' fees and expenses incurred in litigating this suit. This matter has been fully briefed and is ripe for disposition. A hearing will not aid judicial determination. For the reasons set forth herein, Plaintiffs' Motion for Attorneys' Fees is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL HISTORY

On November 7, 2014, Plaintiffs filed this action challenging Defendant's compliance with the Freedom of Information Act ("FOIA") in identifying only 29 pages of material in response to Plaintiffs' FOIA request and withholding all of the documents under claimed exemptions. Compl., ECF No. 1. On December 31, 2014, Defendant filed its Answer reasserting the application of exemptions to the withheld documents. ECF No. 10.

On April 1, 2015, Defendant conducted another search using the dale this suit was filed as a cut-off date, which identified 889 pages of material responsive to Plaintiffs' FOIA request. Def.'s Mem. in Supp. of Mot. for Summ. J. 3, ECF No. 29. Defendant then released 65 partly redacted pages and an additional 23 pages identifying other documents that were entirely withheld and the exemptions claimed for the withheld material. Id. at 4; see also ECF No. 22. On June 5, 2015, Defendant filed a Motion for Summary Judgment and released 28 additional pages of material responsive to Plaintiffs' FOIA request. ECF No. 28. This resulted in a total of 10 pages released in full, 83 pages released in part, and 796 pages withheld in full of the 889 responsive pages. Def.'s Mem. in Supp. of Mot. for Summ. J. 4, ECF No. 29.

On June 26, 2015, Plaintiffs filed a Motion for Summary Judgment, Opposition to Defendant's Motion for Summary Judgment, and a Motion to Lift Stay on Discovery. ECF Nos. 39, 41, 44. On July 2, 2015, Defendant filed its Reply in support of its Motion for Summary Judgment. ECF No. 46. On July 10, 2015, Defendant filed an Opposition to Plaintiffs' Motion to Lift Stay on Discovery. ECF No. 51. On July 17, 2015, Defendant filed its Opposition to Plaintiffs' Motion for Summary Judgment. ECF No. 53. On July 27, 2015, Plaintiffs filed their Reply in Support of their Motion for Summary Judgment. ECF No. 56.

On November 5, 2015, a hearing was held on these matters, and the Court took them under advisement. On November 25, 2015, the Court issued an Order granting in part and denying in part the Parties' Motions for Summary Judgment. ECF No. 610. The Court found that Defendant violated FOIA but upheld exemptions for withheld material and declined to conduct an in camera inspection. The Court also held that Plaintiffs were the prevailing parties.

On January 5, 2016, Plaintiffs filed a Motion for Attorneys' Fees with supporting exhibits. ECF No. 69. On February 5, 2016, Defendant filed its Response in Opposition. ECF No. 72. On February 19, 2016, Plaintiffs filed their Reply in Support of their Application for Attorney's Fees with supporting exhibits. ECF No. 73.

II. LEGAL STANDARD

The touchstone of any award of attorneys' fees and expenses is reasonableness. SunTrust Mortg., Inc. v. AIG United Guar. Corp., 933 F. Supp. 2d 762, 769 (E.D. Va. 2013) (quoting E.I. DuPont de Nemours and Co. v. Kolon Indus., Inc., Civil Action No. 3:09cv058, 2013 WL 458532, at *2 (E.D. Va. Feb. 6, 2013)). The fee applicant bears the burden of demonstrating the reasonableness of its fee request, Kenney v. A Touch of Patience Shared Hous., Inc., 779 F. Supp. 2d 516, 525 (E.D. Va. 2011), and of "providing sufficient detail in [its] records to explain and support [its] requests for fees and costs." Andrade v. Aerotek, Inc., 852 F. Supp. 2d 637, 645 (D. Md. 2012). Indeed, "the party who seeks payment must keep records in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed." Hensley v. Eckerhart, 461 U.S. 424, 441 (1983) (Burger, C.J., concurring).

To calculate an award of attorneys' fees the Court must determine a "lodestar fee." Grissom v. The Miller Corp., 549 F.3d 313, 320-21 (4th Cir. 2008); Brodziak v. Runyon, 43 F.3d 194, 196 (4th Cir. 1998). The Supreme Court of the United States ("Supreme Court") has stated that there is a "strong presumption" that the lodestar figure represents a reasonable attorneys' fee award, which may be overcome only "in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553-54 (2010).

The lodestar fee is calculated by multiplying the number of reasonable hours expended times a reasonable rate. Id. The United States Court of Appeals for the Fourth Circuit ("the Fourth Circuit") has held that the Johnson factors must be applied in determining the reasonable hourly rates and hours expended. See Daly v. Hill, 790 F.2d 1071, 1077 (4th Cir. 1986). Thesefactors include:

(1) the time and labor required;

(2) the novelty and difficulty of the questions;

(3) the skill requisite to properly perform the legal service;

(4) the preclusion of other employment by the attorney due to acceptance of the case;

(5) the customary fee;

(6) whether the fee is fixed or contingent;

(7) time limitations imposed by the client or the circumstances;

(8) the amount involved and the results obtained;

(9) the experience, reputation, and ability of the attorneys;

(10) the "undesirability" of the case;

(11) the nature and length of the professional relationship with the client; and

(12) awards in similar cases.

Id. at 1075 n.2 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

In addition, district courts "should exclude from [the] initial fee calculation hours that were not 'reasonably expended.'" Hensley, 461 U.S. at 434 (quoting S. Rep. No. 94-1011, at 6 (1976)). Further, "[h]ours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). The Fourth Circuit has held that, "[a] fee based upon reasonable rates and hours is presumed to be fully compensatory without producing a windfall." Daly, 790 F.2d at 1078.

III. DISCUSSION

Plaintiffs seek attorneys' fees and costs in the amount of $127,857.50. Plaintiffs initially requested $86,260.00 in attorneys' fees and $2,093.05 in costs. In their Reply, Plaintiffs added an additional $39,504.45 in "fees on fees" for the costs incurred in preparing their application for attorneys' fees. Plaintiffs' application for attorneys' fees is supported by billing statements and declarations from lead counsel Conrad M. Shumadine and attorney Hunter W. Sims, Jr.Plaintiffs argue that a reduction in their fees and costs is not warranted because Defendant protracted litigation although Plaintiffs offered to cap fees prior to the filing of summary judgment motions if Defendant would concede that they violated FOIA and produce nonexempt documents. Plaintiffs also note that lead counsel has already discounted his services because of his longstanding relationship representing Plaintiff Virginia Pilot Media Companies, LLC.

Plaintiffs assert that fees incurred during the administrative proceedings were necessary to evaluate whether a suit could be filed and that consultation with the Media Law Resource Center and the New York Times was necessary to obtain guidance on this matter in an attempt to reduce the expenses of litigation. Further, Plaintiffs argue that litigation after the Defendant produced documents was necessary for a ruling that the Defendant violated FOIA, Plaintiffs are the prevailing parties, and Plaintiffs are entitled to attorneys' fees.

Plaintiffs also assert that they were successful in pursuing their claim and no reduction is warranted for unsuccessful efforts to obtain a Vaughn index, in camera inspection, and discovery because these efforts were necessary to litigate this case. Plaintiffs argue that the Defendant's noncompliance with FOIA made litigation protracted and a fee award must be sufficient to deter noncompliance with FOIA and encourage counsel to vindicate public rights pursuant to FOIA. Plaintiffs also note that Defendant did not submit any counter declarations to meet their burden in challenging the fee petition.

Defendant contends that a number of reductions from Plaintiffs' fee request are appropriate. Defendant challenges the reasonableness of the fee amounts for non-attorney services and suggests a rate of $145/hour for non-attorney support personal based on prior case law. Defendant asserts that because Plaintiffs do not address Johnson factors 4, 6, and 7, they are inapplicable. With respect to factors 1 and 2, Defendant asserts that this case did not involveprotracted litigation and proceeded as a normal FOIA case. With respect to factor 8, Defendant argues that the results were not extraordinary and the complaint alone triggered the release of documents, not subsequent litigation efforts. Defendant asserts that although Plaintiffs obtained 93 documents, more than three times the 29 documents initially disclosed, this was only approximately 10% of the 889 total documents. Defendant also asserts that Plaintiffs' attempts to obtain further disclosures from Defendant through litigation efforts were unsuccessful.

In considering factor 12, Defendant asserts that in addition to cases P...