UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) ENVIRONMENTAL INTEGRITY ) PROJECT, ) ) Plaintiff, ) ) v. ) No. 18-cv-0042 (KBJ) ) GENERAL SERVICES ) ADMINISTRATION, ) ) Defendant. ) )
MEMORANDUM OPINION
On January 8, 2018, Plaintiff Environmental Integrity Project (“EIP”) filed the
instant action against the General Services Administration (“GSA”) under the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552, seeking certain travel reports that the
Environmental Protection Agency (“EPA”) and the Department of the Interior (“DOI”)
were legally required to submit to GSA. (Compl., ECF No. 1, ¶ 1; Ex. 1 to Compl.,
ECF No. 1-1, at 1–2.) 1 During the pendency of this lawsuit, GSA referred EIP’s request
to EPA and DOI, and those agencies ultimately released the travel reports to EIP. (See
Exs. G–I to Pl.’s Mot. for Att’ys’ Fees & Costs (“Pl.’s Mot. for Fees”), ECF No. 22-7,
at 34–47.) Once GSA confirmed that the released records matched those in its internal
system (see Ex. A to Pl.’s Mot. for Fees, ECF No. 22-7, at 3), EIP agreed to dismiss all
of the claims in its complaint, except its claim for an award of attorneys’ fees and costs
1 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns. EIP had requested the records that are the subject of the instant action from GSA on November 2, 2017, pursuant to the FOIA. (See Compl. ¶ 17.) (see Ex. J to Pl.’s Mot. for Fees, ECF No. 22-7, at 50; Joint Mot. to Stay, ECF No. 19,
at 1).
Then, on September 19, 2018, EIP filed a motion for a fee award under the FOIA
(see Pl.’s Mot. for Fees, ECF No. 22, at 1), arguing that it had substantially prevailed in
this lawsuit by causing GSA to refer its FOIA request to EPA and DOI, under
circumstances in which the agency had failed to produce the records based solely on
EIP’s FOIA request (see Pl.’s Mem. in Supp. of Mot. for Fees (“Pl.’s Mem.”), ECF No.
22-1, at 8–9). This Court referred EIP’s motion to a Magistrate Judge for resolution
(see Min. Order of Sept. 20, 2018), and the matter was randomly assigned to
then-Magistrate Judge Deborah Robinson (see Min. Entry of Sept. 20, 2018).
Before this Court at present is Magistrate Judge Robinson’s Report and
Recommendation (see R. & R., ECF No. 25), which proposes denying EIP’s motion on
the ground that EIP is ineligible to recover fees under the FOIA (see id. at 7). EIP has
submitted timely objections to the Report and Recommendation (see Pl.’s Objs. to R. &
R. (“Pl.’s Objs.”), ECF No. 26), and GSA has filed a response thereto (see Def.’s Resp.
to Pl.’s Objs., ECF No. 29; see also Pl.’s Reply in Supp. of Objs., ECF No. 30). This
Court has carefully considered the Report and Recommendation, the parties’
submissions, and the record evidence, and for the reasons discussed fully below, the
Court concludes that EIP’s lawsuit served as the catalyst for GSA’s referral of EIP’s
FOIA request to EPA and DOI, and, thus, EIP is eligible for a fee award. The Court has
further determined that EIP is entitled to attorneys’ fees and costs (albeit in an amount
that is slightly lower than the amount EIP has requested). Accordingly, the Court will
DECLINE TO ADOPT the Report and Recommendation, and will GRANT IN PART
2 EIP’s motion, awarding a total of $36,578.50 in attorneys’ fees and $422.92 in costs. A
separate Order consistent with this Memorandum Opinion will follow.
I. BACKGROUND
1. EIP’s FOIA Request And Appeal
EIP is a nonprofit organization that works to “hold federal and state agencies, as
well as individual corporations, accountable for failing to enforce or comply with
environmental laws[.]” (Compl. ¶ 8.) On November 2, 2017, EIP sent a request to
GSA under the FOIA seeking “any and all records held by [GSA] for the reporting
period of April 1, 2017 through September 30, 2017 submitted by either [EPA] or [DOI]
to comply with 41 C.F.R. § 301-70.907”—a regulation that requires agencies “to
report[] on a semi-annual basis to [GSA] information about Senior Federal officials
who fly aboard U.S. Government aircraft.” (Ex. 1 to Compl. at 1.) EIP additionally
explained that it was directing its request for records to GSA, rather than to EPA or
DOI, because EIP was “attempting not only to determine compliance by [EPA and DOI]
with ethics regulations but also to determine . . . whether [they] submitted these
required reports [to GSA] and whether any submitted reports contained all the required
information under 41 C.F.R. § 301-70.907.” (Id. at 2.)
GSA denied EIP’s request the day after receiving it, explaining GSA’s view that
EIP must submit its request to EPA and DOI directly. (Ex. 3 to Compl., ECF No. 1-3,
at 1.) According to the denial letter, GSA had decided that EPA and DOI were the
proper recipients of EIP’s FOIA request despite the fact that those agencies are required
to submit travel reports to GSA, because such agencies “maintain ownership of their
travel data and determine how that data is made available to the public[.]” (Id.) Given
3 this conclusion, GSA provided EIP with the contact information for EPA’s and DOI’s
FOIA offices (id. at 1–2), and stated that this response “complete[d]” GSA’s “action on
this FOIA Request” (id. at 2).
EIP filed an administrative appeal on November 16, 2017, claiming that the
FOIA required GSA to release the documents under its control, and that, even if referral
was appropriate, GSA had failed to comply with its referral obligations under the FOIA
by denying EIP’s request. (See Ex. 4 to Compl., ECF No. 1-4, at 1, 4–11.)
2. Court Proceedings And Subsequent Disclosures
EIP filed the instant legal action on January 8, 2018, after more than eight weeks
had passed without receiving a response from GSA. In its complaint, EIP asserted that
GSA had failed to comply with the FOIA’s response deadlines and had improperly
withheld agency records. (Compl. ¶¶ 25–34.) On February 12, 2018, just three days
before its answer to EIP’s complaint was due, GSA responded to EIP’s administrative
appeal, reaffirming its view that EPA and DOI were the proper agencies to respond to
EIP’s FOIA request. (See Ex. E to Pl.’s Mot. for Fees, ECF No. 22-7, at 25–26; see
also ECF No. 7 (noting in docket text the due date for GSA’s answer).) GSA also
confirmed that it had “not yet provided a copy of [EIP’s] FOIA request to each agency
who originated the records” (Ex. E to Pl.’s Mot. for Fees at 28), but promised to “refer
[EIP’s] request to the respective agencies for processing” (id. at 27). GSA then sent an
email to the Chief FOIA Officers at EPA and DOI, attaching its response to EIP’s
administrative appeal and informing the agencies of GSA’s “referral . . . for further
action.” (Ex. F to Pl.’s Mot. for Fees, ECF No. 22-7, at 31–32.)
GSA subsequently moved for summary judgment in this case on May 3, 2018,
contending that its referral of EIP’s request to EPA and DOI fulfilled its responsibilities
4 under the FOIA, and that EIP’s claims had become moot as a result. (See Def.’s Mem.
in Supp. of Mot. for Summ. J., ECF No. 15-1, at 3–4.) EIP filed a cross-motion for
summary judgment shortly thereafter, vigorously contesting GSA’s assertions of
mootness. (See Pl.’s Mem. in Supp. of Combined Opp’n & Cross-Mot. for Summ. J.
(“Pl.’s Cross-Mot. for Summ. J.”), ECF No. 16-1, at 12–13.) In its cross-motion, EIP
explained that it had not received any records in response to the FOIA request, and that
GSA’s referral was both inappropriate and inadequate. (See id. at 6.) In this regard,
EIP noted that GSA’s referral emails to EPA and DOI did not include the responsive
documents, EIP’s FOIA request, or EIP’s administrative appeal; instead, GSA had
merely attached its own response to EIP’s administrative appeal, and that
correspondence had misstated EIP’s address, misspelled the name of EIP’s primary
lawyer, and failed to provide accurate contact information for EIP. (Id. at 18–19.) EIP
also insisted that GSA had not come anywhere close to discharging its duties under the
FOIA, as GSA retained responsibility over EIP’s FOIA request and was required to
ensure that EPA and DOI processed the request accordingly. (See id. at 12–13, 22–24.)
Less than one month after EIP filed its cross-motion for summary judgment,
GSA sent an email to the FOIA offices at EPA and DOI, attaching EIP’s FOIA request
and asking the respective agencies to copy GSA on their “acknowledgement letter” to
EIP. (See Ex. G to Pl.’s Mot. for Fees at 34–35.) GSA also notified EIP that its FOIA
request had been referred to the agencies for processing (see id.), and a few weeks later,
EPA and DOI released the responsive documents to EIP in full, which amounted to
seven pages of records (see Exs. H & I to Pl.’s Mot. for Fees at 37–47). In light of this
development, on July 9, 2018, EIP asked GSA to (1) confirm that the reports produced
5 by EPA and DOI were “the same records and contain[ed] all information received by
GSA from each respective agency[,]” and (2) specify the dates on which the agencies
had submitted the reports to GSA. (Ex. J to Pl.’s Mot. for Fees at 50.) EIP further
explained that if GSA complied with this request, EIP would “agree to dismiss its
claims except [its] claim for attorneys’ fees and costs.” (Id.) GSA responded to EIP
the following day, verifying that the reports in its possession were consistent with those
produced by EPA and DOI, and providing the dates on which each report was
submitted. (Ex. A to Pl.’s Mot. for Fees at 3.) The parties then notified the Court that
all disputes had been resolved, aside from the issue of attorneys’ fees and costs. (See
Joint Mot. to Stay at 1.)
3. EIP’s Motion For Attorneys’ Fees And Costs
On September 19, 2018, EIP filed a motion for an award of attorneys’ fees and
costs. (See Pl.’s Mot. for Fees at 1.) In its motion, EIP contends that it “‘substantially
prevailed’” in this litigation—and is thus eligible for a fee award under the FOIA—
because its lawsuit “served as the catalyst for GSA’s proper referral and the subsequent
release” of the requested reports. (Pl.’s Mem. at 8 (quoting 5 U.S.C. § 552(a)(4)(E)).)
With respect to this contention, EIP identifies two points in the litigation at which GSA
appeared to have voluntarily altered its position in reaction to EIP’s lawsuit. First,
despite having initially insisted that EIP must submit a FOIA request directly to EPA
and DOI, after EIP filed the instant complaint, GSA reversed course and agreed to refer
EIP’s request to the two agencies. (See id. at 19–21.) Second, although GSA argued in
its motion for summary judgment that it had fully discharged its duties under the FOIA,
GSA nevertheless re-referred EIP’s request to EPA and DOI after EIP filed a cross-
motion that pointed out the flaws in GSA’s prior referral. (See id. at 21–23.) EIP also
6 maintains that it has satisfied the factors that courts consider when determining whether
a party is entitled to a fee award under the FOIA (see id. at 25–39), and that its
requested fee award is appropriate (see id. at 40–43; see also Pl.’s Reply in Supp. of
Mot. for Fees (“Pl.’s Reply”), ECF No. 24, at 22–23).
GSA opposes EIP’s motion, contending that EIP is neither eligible for nor
entitled to attorneys’ fees and costs. (Def.’s Opp’n to Pl.’s Mot. for Fees (“Def.’s
Opp’n”), ECF No. 23, at 4, 7.) As an initial matter, GSA maintains that the agency
consistently stated that referral to the originating agencies was appropriate, and that
EIP’s lawsuit in no way prompted GSA to change its position on that issue. (See id. at
6.) GSA also asserts that, even though the agency was slow to respond to EIP’s
administrative appeal, the delay was due to “the agency’s significant backlog of FOIA
requests and appeals[,]” not EIP’s lawsuit. (Id.; see also Decl. of Travis Lewis in Supp.
of Opp’n, Ex. 1 to Def.’s Opp’n, ECF No. 23-1, ¶ 7 (explaining that the agency had
around “265 open FOIA requests and appeals” at the time it received EIP’s FOIA
request, and “approximately 190” of those cases “were backlogged due to GSA
receiving over 400 more FOIA requests and appeals than GSA received in the previous
year”).) GSA also argues that EIP is not entitled to recover attorneys’ fees under the
circumstances presented in this case, because GSA’s response to EIP’s FOIA request
was entirely reasonable (see Def.’s Opp’n at 7), and any procedural errors in the
agency’s initial referrals were rectified (see id. at 9). Finally, if the Court decides that
fees are warranted, GSA urges the Court to reduce EIP’s requested award because the
nature of the instant proceedings was highly straightforward (id. at 11), and EIP’s use
of numerous attorneys in this matter amounts to “excessive staffing” (id. at 12).
7 On August 22, 2019, Magistrate Judge Robinson issued a Report and
Recommendation on EIP’s motion for attorneys’ fees and costs. (See R. & R. at 7.) In
her report, Magistrate Judge Robinson recommended denying EIP’s motion, on the
ground that EIP has “failed to demonstrate that it ‘substantially prevailed’ in the
underlying litigation, and thus, is eligible for an award of attorneys’ fees and costs.”
(Id. at 5.) In reaching that decision, Magistrate Judge Robinson found that GSA did not
change its position at any point during the pendency of the lawsuit, since she viewed
GSA as having referred EIP to EPA and DOI “in the initial denial of [EIP’s] FOIA
request” and then as merely “follow[ing] up with EPA and DOI on June 12, 2018” in
connection with its referral. (Id. at 6.) The Report and Recommendation also
underscored GSA’s assertion that its delay in responding to EIP’s administrative appeal
was due to a serious backlog of FOIA requests and appeals. (See id. at 6–7.) Given
these findings, Magistrate Judge Robinson concluded that EIP’s proffered evidence
illustrates a mere “correlation, not a causal nexus, between the filing of the instant
action and the release of documents[,]” which is insufficient to establish eligibility for
fees. (Id. at 6.) And because eligibility is a threshold requirement for recovery of
attorneys’ fees and costs under the FOIA, Magistrate Judge Robinson did not proceed to
address EIP’s entitlement to attorneys’ fees and costs or the reasonableness of its
requested award. (See id. at 7 n.2.)
On September 5, 2019, EIP filed the timely objections to the Report and
Recommendation that are before this Court at present. EIP challenges Magistrate Judge
Robinson’s factual findings and legal conclusions (see Pl.’s Objs. at 6–11), and in
particular, EIP contends that the Report overlooks the fact that GSA did not “accept[]
8 responsibility for responding to the FOIA request” or for “confirming that the travel
reports ultimately released were identical to the documents in [GSA’s] possession” until
after EIP filed its cross-motion for summary judgment (id. at 7). EIP further maintains
that the Report and Recommendation mistakenly characterizes GSA’s initial denial of
the FOIA request as a referral (see id. at 8), and that Magistrate Judge Robinson did not
account for GSA’s obligation to ensure that its referrals had been processed (see id. at
8–9). EIP also insists that GSA’s “‘administrative backlog’ excuse” is “untimely and
illogical[,]” especially considering that GSA had sufficient wherewithal to deny EIP’s
initial FOIA request the day after it was filed. (Id. at 10.) EIP thus asks this Court to
overrule Magistrate Judge Robinson’s Report and Recommendation and award
reasonable attorneys’ fees and costs. (See id. at 11; Pl.’s Reply in Supp. of Obj. at 8.)
II. LEGAL STANDARDS
Section 552(a)(4)(E) of the FOIA provides courts with discretion to “assess
against the United States reasonable attorney fees and other litigation costs reasonably
incurred” during a FOIA lawsuit “in which the complainant has substantially
prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). To recover attorneys’ fees and costs, a plaintiff
must demonstrate both eligibility for and entitlement to a fee award. See, e.g., Brayton
v. Off. of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).
Plaintiffs are eligible for a fee award if they “substantially prevail[]” in the
lawsuit by “obtain[ing] relief through” (1) “a judicial order,” or (2) “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); see also Brayton, 641 F.3d at 525. This
second method of eligibility, often referred to as the “catalyst” theory, requires the
9 plaintiff to prove that the lawsuit “could reasonably be regarded as necessary” to obtain
relief, and that “the litigation substantially caused the requested records to be
released[.]” See Dorsen v. SEC, 15 F. Supp. 3d 112, 118 (D.D.C. 2014) (internal
quotation marks and citations omitted). The FOIA broadly defines “relief” to include
the “taking of . . . action on the application or petition of, and beneficial to, a
person[,]” 5 U.S.C. § 551(11), and whether a lawsuit was reasonably necessary to
obtain such relief is assessed from the plaintiff’s perspective, see Fund for Const. Gov’t
v. Nat’l Archives & Recs. Serv., 656 F.2d 856, 872 (D.C. Cir. 1981). “[T]he mere filing
of the complaint and the subsequent release of documents is insufficient to establish
causation” for purposes of the catalyst theory; however, such timing remains “a salient
factor in the [Court’s] analysis[.]” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland
Sec., 811 F. Supp. 2d 216, 232 (D.D.C. 2011) (internal quotation marks and citations
omitted). Even so, if “a lack of actual notice of a request or an unavoidable delay
accompanied by due diligence in the administrative processes was the actual reason for
the agency’s failure to respond to a request, then it cannot be said that the complainant
substantially prevailed in [the] suit.” Church of Scientology of Cal. v. Harris, 653 F.2d
584, 588 (D.C. Cir. 1981) (citation omitted).
A plaintiff who establishes eligibility for attorneys’ fees and costs under the
FOIA must also demonstrate an entitlement to receive a fee award. See Dorsen, 15 F.
Supp. 3d at 120. Courts in this circuit employ a four-factor balancing test to assess
entitlement to attorneys’ fees and costs—those factors include “(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
10 withholding of the requested documents.” Id. at 117 (internal quotation marks and
citation omitted). None of these factors is dispositive. Id. What is more, in evaluating
a plaintiff’s entitlement to fees, courts must keep in mind the underlying purpose of
awarding fees in FOIA cases: to encourage plaintiffs to bring FOIA lawsuits that further
the public interest, and to compensate plaintiffs for “enduring an agency’s unreasonable
obduracy in refusing to comply with the [FOIA’s] requirements.” ACLU v. U.S. Dep’t
of Homeland Sec., 810 F. Supp. 2d 267, 276 (D.D.C. 2011) (internal quotation marks
and citation omitted).
Once a plaintiff establishes an entitlement to attorneys’ fees and costs, one final
hurdle must be cleared: demonstrating that the requested fees and costs are reasonable.
See Jud. Watch, Inc. v. U.S. Dep’t of Just., 878 F. Supp. 2d 225, 238 (D.D.C. 2012).
Under D.C. Circuit precedent, the “usual method of calculating reasonable attorney’s
fees is to multiply the hours reasonably expended in the litigation by a reasonable
hourly fee, producing the ‘lodestar’ amount.” Reyes v. U.S. Nat’l Archives & Recs.
Admin., 356 F. Supp. 3d 155, 168 (D.D.C. 2018) (internal quotation marks and citation
omitted). A court may reduce any part of a requested fee award that it deems
unreasonable, and it retains discretion to determine how and to what extent any such
reduction should be made. See Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir.
1980).
Finally, where, as here, a motion for attorneys’ fees comes to the Court after a
Magistrate Judge has issued a contested Report and Recommendation on the matter, the
Court must review the motion de novo and may “accept, reject, or modify the
11 recommended disposition[.]” Fed. R. Civ. P. 72(b)(3); see also Fed. R. Civ. P.
54(d)(2)(D).
III. DISCUSSION
Based on its review of the parties’ filings and the record evidence, this Court
concludes that EIP is both eligible for and entitled to a fee award under the FOIA. The
Court has also determined that EIP’s requested fees are reasonable, with the exception
of the hours expended reviewing and recalculating billing entries. Accordingly, the
Court declines to adopt the Magistrate Judge’s recommendation, and will award EIP
$36,578.50 in attorneys’ fees and $422.92 in costs.
A. EIP Is Eligible For Attorneys’ Fees And Costs Because Its Lawsuit Substantially Caused GSA To Change Its Positions
EIP contends that it substantially prevailed in this litigation under the catalyst
theory of eligibility, because its lawsuit elicited two changes in GSA’s position: (1)
GSA decided to refer EIP’s request to EPA and DOI directly, on February 12, 2018,
after initially directing EIP to submit its request to both agencies, and (2) GSA re-
referred EIP’s request to EPA and DOI on June 12, 2018, after insisting that it had
already discharged its duties under the FOIA. (See Pl.’s Mem. at 19–23.) As explained
above, in order to prevail under the catalyst theory of eligibility, EIP must demonstrate
that its lawsuit was reasonably “necessary and causally linked to the release of the
documents obtained[,]” Church of Scientology, 653 F.2d at 588, and that the agency’s
response was not merely the result of “extrinsic factors” having little to do with EIP’s
lawsuit, Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 218 F. Supp. 3d 27, 41
(D.D.C. 2016). In this Court’s view, the record plainly supports EIP’s argument that its
lawsuit substantially caused GSA to change its position on both of the identified issues.
12 1. EIP Substantially Caused GSA To Change Its Position On Direct Referral
Starting with GSA’s decision to refer EIP’s request to EPA and DOI directly, it
is clear to this Court that GSA’s direct-referral decision represented a change from
GSA’s original position concerning its own duties. In its initial response to EIP’s FOIA
request, GSA disclaimed any responsibility for providing the requested records; indeed,
it expressly proclaimed that, “in order to obtain the travel information requested, [EIP]
should submit [its] request directly to the agencies.” (Ex. 3 to Compl. at 1.) Nothing
about GSA’s response indicated any intention of referring EIP’s FOIA request to the
agencies on its own—to the contrary, GSA unequivocally announced that its advice to
EIP regarding how EIP should proceed “complete[d] [the agency’s] action on this FOIA
request.” (Id. at 2.) GSA has subsequently characterized its response as a “decision to
refer EIP’s FOIA request to [DOI] and [EPA] for processing” (Decl. of Travis Lewis in
Supp. of Opp’n ¶ 5; Decl. of Travis Lewis in Supp. of Mot. for Summ. J., Ex. 3 to
Def.’s Mot. for Summ. J., ECF No. 15-3, ¶ 10), but that description finds no support in
the record (see Ex. 3 to Compl. at 1–2 (providing the contact information of EPA and
DOI to EIP so that EIP could resubmit its FOIA request to those agencies)). What the
record does show is that GSA did not agree to refer EIP’s request to the agencies until
approximately three months after EIP filed an administrative appeal that argued that
GSA had such a duty, and the direct referral was made just three days before GSA’s
answer to EIP’s complaint in this action was due. (See Ex. E to Pl.’s Mot. for Fees at
27; see also Def.’s Mot. for Summ. J. at 5 (admitting that “[a]lthough GSA originally
notified [EIP] that it should submit its request directly to EPA and DOI, GSA did in
fact later refer [EIP’s] FOIA requests to the originating agencies”).)
13 To be sure, the fact that GSA responded to EIP’s appeal shortly after the lawsuit
was filed—and promised, for the first time, to refer EIP’s FOIA request to EPA and
DOI directly—does not establish causation on its own. See Weisberg v. U.S. Dep’t of
Just., 745 F.2d 1476, 1496 (D.C. Cir. 1984). For example, if GSA’s belated response to
EIP’s appeal was the result of “unavoidable delay accompanied by due diligence in the
administrative process[,]” there would be no reason to infer that EIP’s lawsuit was the
catalyst for GSA’s subsequent actions. Church of Scientology, 653 F.2d at 588 (citation
omitted). GSA predictably attempts to argue that there is no causal nexus between
EIP’s lawsuit and its own response to EIP’s appeal on this basis, by asserting that it had
“approximately 265 open FOIA requests and appeals” at the time it “received [EIP’s]
FOIA request” (Decl. of Travis Lewis in Supp. of Opp’n ¶ 7), and that its untimely
response to EIP’s appeal was “due to the agency’s significant backlog of FOIA requests
and appeals” (Def.’s Opp’n at 6). GSA also specifically maintains that EIP’s initiation
of the lawsuit “did not cause GSA to respond to [EIP’s] FOIA Appeal.” (Decl. of
Travis Lewis in Supp. of Opp’n ¶ 8.) But any such administrative constraints do not
rationally account for GSA’s change of heart concerning which entity (GSA or EIP)
bore responsibility for referring the FOIA request to the other agencies.
Moreover, and in any event, GSA’s backlog-related assertions are far too vague
or conclusory to demonstrate that an intractable delay occurred in this case. For one
thing, GSA has not provided any explanation of how the alleged administrative backlog
impacted its ability to respond to EIP’s administrative appeal. GSA does not point to a
policy of reviewing and processing FOIA appeals in the order they are submitted, for
instance; nor does it allege that it has only a few employees in charge of dealing with
14 FOIA appeals. See Conservation Force v. Jewell, 160 F. Supp. 3d 194, 206 (D.D.C.
2016). Indeed, GSA has not made any effort whatsoever to connect the dots between
the number of open FOIA cases it had at the time EIP submitted its request and GSA’s
failure to process EIP’s appeal in a timely manner. And it is also noteworthy that GSA
was able to deny EIP’s request for records just one day after EIP submitted the request
notwithstanding the alleged administrative backlog (see Ex. 3 to Compl. at 1–2), which
suggests that GSA has some procedure in place for streamlining its responses to FOIA
requests under certain circumstances.
Even if the Court credits GSA’s bare assertions of administrative backlog at the
time EIP filed its complaint, there is little indication that such backlog delayed any
diligent processing of EIP’s appeal on GSA’s part. See Church of Scientology, 653
F.2d at 588 (explaining that no causal nexus exists if there is evidence of “unavoidable
delay accompanied by due diligence in the administrative process[]” (emphasis added)
(citation omitted)). GSA’s FOIA and Records Management Director, Travis Lewis,
avers that he contacted GSA’s Assistant General Counsel “[u]pon receipt” of EIP’s
appeal and sent him copies of EIP’s request and appeal, but Lewis did not provide any
specific dates for when this contact occurred or when he began “consulting” with the
Assistant General Counsel about the appeal. (Decl. of Travis Lewis in Supp. of Mot.
for Summ. J. ¶ 9.) It is also telling that, in describing GSA’s response to EIP’s appeal
“[u]pon [its] receipt[,]” Lewis focuses only on his mutual agreement with the Assistant
General Counsel that EPA and DOI were the proper parties to respond to EIP’s request,
and he omits any discussion of when (or how) he reached the decision to refer EIP’s
15 request directly to the agencies instead of requiring EIP to resubmit the request to EPA
and DOI on its own. (See id.)
Based on Lewis’s representations and the record as a whole, it is not at all clear
that GSA had started to process EIP’s appeal before EIP filed the instant lawsuit, nor is
it evident that GSA would have changed its position on direct referral had EIP not filed
its complaint. Instead, given GSA’s “sudden acceleration” in processing EIP’s appeal
after EIP filed its complaint, Elec. Priv. Info. Ctr., 218 F. Supp. 3d at 41 (internal
quotation marks and citation omitted), and its vague assertions of administrative
backlog, the Court concludes that it was reasonable for EIP to believe that litigation
was necessary to obtain the requested records, and that EIP’s filing of this lawsuit
prompted GSA to respond to EIP’s appeal and agree to refer EIP’s request directly to
EPA and DOI. 2
2. EIP Substantially Caused GSA To Re-Refer The FOIA Request After GSA Insisted That It Had Fulfilled Its Duties
The Court is also persuaded that EIP is eligible for attorneys’ fees based on
GSA’s second change in position: specifically, its decision to re-refer EIP’s FOIA
request to EPA and DOI after maintaining that it had fully discharged its duties under
the FOIA. As previously explained, GSA moved for summary judgment in this case
after responding to EIP’s appeal, and its motion asserted that EIP’s claims were moot in
light of GSA’s referral of EIP’s FOIA request to EPA and DOI. (Def.’s Mot. for
Summ. J. at 3.) But after EIP pointed out numerous issues with GSA’s initial referrals
2 Notably, the Court need not find that EIP’s filing of the instant lawsuit was the sole reason for GSA’s change in position in order to conclude that EIP is eligible for fees; instead, it is sufficient that the lawsuit substantially caused GSA to alter its position. See Cornucopia Inst. v. Agric. Mktg. Serv., 285 F. Supp. 3d 217, 224 (D.D.C. 2018). The Court is persuaded that that requirement has been satisfied here, for the reasons discussed above.
16 GSA changed its tune (see Pl.’s Cross-Mot. for Summ. J. at 18–19); it promptly sent
another round of emails to EPA and DOI, attaching EIP’s FOIA request and explaining
that GSA “[was] referring this matter” for processing (Ex. G to Pl.’s Mot. for Fees at
34–35). That action is manifestly inconsistent with GSA’s prior insistence that the
original referrals mooted EIP’s claims. And because GSA’s re-referral emails appear to
have been tailored to include most of the information that EIP had faulted GSA for
omitting in the initial referrals, this Court has little doubt that the arguments EIP made
in the context of this lawsuit substantially caused GSA to re-refer EIP’s request.
(Compare Pl.’s Cross-Mot. for Summ. J. at 17–19, 24 (noting that GSA had not
attached EIP’s FOIA request in its initial referrals; that GSA had not provided the
agencies with any accurate contact information for EIP; and that EIP had not received
any acknowledgment from EPA or DOI regarding the referral), with Ex. G to Pl.’s Mot.
for Fees at 34–35 (showing that GSA attached EIP’s FOIA request to its re-referral
emails, copied EIP on the emails, and asked the agencies to copy GSA on its
“acknowledgment letters” to EIP).)
GSA’s proclamation that, regardless of the re-referrals, EIP’s lawsuit was
“unnecessary” and “the suit did not expedite [EPA’s and DOI’s] responses” (Def.’s
Resp. to Pl.’s Objs. at 5) is likewise unpersuasive, because the record evidence strongly
suggests otherwise. For instance, in the letter that DOI sent to EIP in response to EIP’s
FOIA request, DOI indicated that it had received EIP’s records request and had
assigned the request a control number on June 12, 2018—the date of GSA’s re-referral.
(Ex. I to Pl.’s Mot. for Fees at 42.) Plus, in the re-referral email that GSA sent to EPA
in the wake of EIP’s cross-motion for summary judgment, GSA stressed that “[t]his is a
17 very time sensitive matter” and that EPA’s “prompt attention to this matter is greatly
appreciated.” (Ex. G to Pl.’s Mot. for Fees at 35.)
Thus, contrary to GSA’s assertions, the record demonstrates that GSA’s re-
referrals did precipitate EPA’s and DOI’s responses to EIP’s FOIA request, and, for the
reasons already stated, the Court finds that EIP’s lawsuit substantially caused GSA to
make those re-referrals. Accordingly, the Court concludes that EIP is eligible for
attorneys’ fees and costs.
B. EIP Is Entitled To Attorneys’ Fees And Costs
As explained earlier, courts in this circuit typically consider four factors to
evaluate an eligible plaintiff’s entitlement to fees under the FOIA: (1) whether the
plaintiff’s case serves a public benefit; (2) whether the plaintiff obtained any
commercial benefit from the lawsuit; (3) “the nature of the plaintiff’s interest in the
records”; and (4) whether the agency had a reasonable basis for withholding the
requested records. Conservation Force, 160 F. Supp. 3d at 202 (internal quotation
marks and citation omitted). This Court finds that all four of these factors weigh in
EIP’s favor, and thus that EIP is entitled to a fee award.
1. EIP’s Lawsuit Served A Public Benefit
Beginning with the first factor, there is no question that the public derived a
benefit from EIP’s lawsuit. (See Def.’s Opp’n at 7–10 (citing the D.C. Circuit’s four-
factor test and discussing only the reasonableness of GSA’s conduct).) To serve a
public benefit, the records that a FOIA requester seeks must be “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) (internal quotation marks and citation
omitted), and must also have “at least a modest probability of generating useful new
18 information about a matter of public concern[,]” Morley v. CIA, 810 F.3d 841, 844
(D.C. Cir. 2016). In its motion for attorneys’ fees, EIP contends that the public derived
an important benefit from the lawsuit, because “at the time of EIP’s request, there were
significant national controversies concerning frequent, excessive, and potentially illegal
travel expenditures” by the EPA Administrator and the Secretary of the Interior, which
raised questions about the “potential abuse of taxpayer money” and the agencies’
adherence to federal travel reporting requirements. (Pl.’s Mem. at 25–26.) To bolster
this contention, EIP cites to various news articles that discuss investigations into EPA’s
and DOI’s use of taxpayer funded flights and the agencies’ compliance with relevant
ethics requirements (id. at 25–27), and it argues that its FOIA request contributed to the
public’s knowledge of those issues (see id. at 26–27). EIP also notes that, by seeking
and obtaining the requested records, it was able to expose the fact that EPA had failed
to provide all of the necessary information in its reports to GSA, and, as a consequence,
EIP “forwarded the records it obtained to the EPA Office of Inspector General[] to
assist in [the Office’s] on-going ethics reviews.” (Id. at 27.)
Given “the specific documents at issue” in this case, Cotton, 63 F.3d at 1120,
and in light of the public’s evident interest in these agencies’ compliance with federal
travel regulations, the Court agrees with EIP that the public benefit factor weighs in its
favor.
2. EIP Did Not Obtain A Commercial Benefit From Its Lawsuit, And Public-Interest Concerns Motivated Its Request For Records
The Court reaches the same conclusion with respect to the second and third
entitlement factors—the commercial benefit that the plaintiff obtained and the nature of
the plaintiff’s interest in the records sought. These factors are “closely related and
19 often considered together[,]” and are typically satisfied when “the plaintiff is a
nonprofit public interest group” bringing a FOIA suit “motivated by . . . public interest
concerns[.]” Elec. Priv. Info. Ctr., 811 F. Supp. 2d at 235 (internal quotation marks and
citations omitted).
EIP argues that, as a “501(c)(3) nonprofit public interest organization[,]” it has
“no commercial interest in the requested records [because it] sought the records at issue
expressly for public dissemination on an issue of public importance[,]” and has made
the records publicly available at no charge. (Pl.’s Mem. at 28.) Based on these
representations—which GSA does not dispute—the Court finds that the “commercial
benefit” and “nature of interest” factors weigh in EIP’s favor as well.
3. GSA Did Not Have A Reasonable Basis For Failing To Refer EIP’s Request Directly And In An Adequate Manner
The remaining factor, and the only one that GSA explicitly contests, is the
reasonableness of the agency’s withholdings. In analyzing this factor, courts must ask
“whether the agency’s opposition to disclosure had a reasonable basis in law” and
“whether the agency . . . [was] recalcitrant in its opposition to a valid claim or
otherwise engaged in obdurate behavior.” Cornucopia Inst., 285 F. Supp. 3d at 226
(alterations in original) (internal quotation marks and citations omitted). The agency
bears the burden of showing that it had a “colorable or reasonable basis” for its actions,
and the D.C. Circuit has made clear that an agency cannot “defeat an award of fees by
citing a lack of resistance after the requester files a lawsuit to obtain requested
documents[.]” Davy v. CIA, 550 F.3d 1155, 1163 (D.C. Cir. 2008).
In its motion for attorneys’ fees, EIP contends that GSA lacked a reasonable
basis in law for three of its actions: its decision that EPA and DOI were the appropriate
20 agencies to respond to EIP’s request; its failure to refer the documents to the agencies
directly until after EIP filed the instant complaint; and its failure to “properly refer”
EIP’s request until after EIP filed its cross-motion for summary judgment. (Pl.’s Mem.
at 29.) The Court need not determine the reasonableness of GSA’s decision to refer
EIP’s request, because even assuming that a referral was warranted, GSA has not
offered any reasonable basis for failing to refer EIP’s request to the agencies promptly
and in an adequate manner.
It is well established that “when an agency receives a FOIA request for ‘agency
records’ in its possession, it must take responsibility for processing the request[,]” and
may not “refuse to act on the ground that the documents originated elsewhere.”
McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983). Although an agency may refer
documents in its possession “to the originating agency for processing[,]” Unrow Hum.
Rts. Impact Litig. Clinic v. U.S. Dep’t of State, 134 F. Supp. 3d 263, 279 (D.D.C. 2015)
(internal quotation marks and citation omitted), the agency’s referral procedures must
be reasonable and cannot amount to an improper withholding of documents, by, for
instance, significantly “impair[ing] the requester’s ability to obtain the records” or by
significantly “increas[ing] the amount of time [the requestor] must wait to obtain
them[,]” McGehee, 697 F.2d at 1110. The D.C. Circuit has not “adopted a ‘bright line’
rule for when referral of responsive records to another agency constitutes an improper
withholding[.]” Unrow, 134 F. Supp. 3d at 279. However, the Circuit has identified
certain factors that courts should consider when making this determination, such as
whether “the referral was prompt and public[,]” and whether the procedure imposed a
burden on the requestor by requiring it to “file a separate FOIA request [with] the
21 originating agency.” Id. at 280 (internal quotation marks and citations omitted); see
also McGehee, 697 F.2d at 1110 (explaining that a procedure that required requestors to
“submit separate requests to a number of independent bodies” or that “resulted in very
long delays would be highly difficult [for an agency] to justify”).
In the instant case, GSA’s referral procedure plainly impaired EIP’s ability to
obtain the requested records promptly. That is, when GSA first received EIP’s FOIA
request, it did not even attempt to refer the request to EPA and DOI directly; rather, it
put the onus on EIP to file separate requests with each agency. (See Ex. 3 to Compl. at
1–2.) And, notably, GSA’s response not only placed a significant burden on EIP, but
also contravened GSA’s own regulations, which, at the time EIP submitted its FOIA
request, provided that “[i]f GSA receives a request for access to records that are known
to be the primary responsibility of another agency, GSA will refer the request to the
agency concerned for appropriate action.” 41 C.F.R. § 105-60.104 (2017) (emphasis
added). Furthermore, when GSA later did refer EIP’s request to EPA and DOI, it failed
to ensure that it had provided both agencies with EIP’s proper contact information, and
did not attach a copy of EIP’s request or the responsive documents. (See Ex. F to Pl.’s
Mot. for Fees at 31–32.) Moreover, and likewise, when multiple months passed without
any production of records, GSA made no effort to follow up with the agencies to
confirm receipt of the referral or to ensure that they were processing EIP’s request.
Instead, GSA filed a motion in this Court insisting that it had fulfilled all of its duties
under the FOIA (see Def.’s Mot. for Summ. J. at 3), despite its obligation to “take
responsibility” for processing EIP’s request, McGehee, 697 F.2d at 1110; see also Keys
v. Dep’t of Homeland Sec., 570 F. Supp. 2d 59, 70 (D.D.C. 2008) (“Because the agency
22 who received the FOIA request . . . is the agency ultimately responsible for responding
to the request, the agency is not absolved of its obligations under FOIA when it refers
the documents elsewhere.”); Hall v. CIA, 668 F. Supp. 2d 172, 182 (D.D.C. 2009)
(holding that an agency that received and referred a FOIA request remained responsible
for responding to the request and was required to “take affirmative steps to ensure that
its referrals [were] being processed”).
On these facts, it is difficult to imagine how GSA’s referral process could be
characterized as reasonable, and GSA’s efforts to rationalize its response (see Def.’s
Opp’n at 8–9) are largely based on inaccurate assumptions and are, therefore, wholly
unpersuasive. For example, GSA’s contention that the agency’s initial response was
sufficient because it dutifully provided EIP with the contact information of the FOIA
offices at those two agencies (see id. at 8) misunderstands the “referral” duty in this
context. When an agency makes a referral to another agency, it is the FOIA request or
the responsive document that is being referred—not the requestor itself. See Elec. Priv.
Info. Ctr. v. Nat’l Sec. Agency, 795 F. Supp. 2d 85, 92 (D.D.C. 2011). This Court is not
aware of any authority suggesting that an agency’s mere provision of the originating
agency’s contact information to the requestor constitutes a proper referral under the
FOIA, and GSA has not cited any case to that effect. Cf. Tax Analysts v. U.S. Dep’t of
Just., 845 F.2d 1060, 1067 (D.C. Cir. 1988) (“[I]n response to a FOIA request, an
agency must itself make disclosable agency records available to the public and may not
on grounds of administrative convenience avoid this statutory duty by pointing to
another public source for the information.”), aff’d, 492 U.S. 136 (1989).
23 As for the actual referral that GSA belatedly made to EPA and DOI after
responding to EIP’s appeal, GSA has not offered any “reasonable explanation for its
procedure.” McGehee, 697 F.2d at 1110. Instead, the agency merely highlights the fact
that it did make the referrals after its initial provision of EPA’s and DOI’s contact
information, and that it ultimately corrected any “procedural errors” in those referrals.
(Def.’s Opp’n at 9; see also Def.’s Resp. to Pl.’s Objs. at 5–6.) GSA points to various
cases that purportedly stand for the broad proposition that “administrative errors do not
entitle [a plaintiff] to recover fees or costs” (Def.’s Opp’n at 9), but the cited authorities
involve unavoidable administrative delays, and none of them actually support GSA’s
suggestion that an agency’s errors in the referral process itself cannot give rise to
attorneys’ fees and costs under the FOIA, see Jud. Watch, Inc., 878 F. Supp. 2d 225;
Hart v. U.S. Dep’t of Health & Hum. Servs., 676 F. Supp. 2d 846 (D. Ariz. 2009);
Hersh & Hersh v. U.S. Dep’t of Health & Hum. Servs., No. 06-cv-4234, 2008 WL
2725497 (N.D. Cal. July 10, 2008). And to the extent that GSA seeks to excuse its
inadequate referral on the grounds of administrative delay, the record does not contain
any indication that administrative delays influenced GSA’s referral, let alone that GSA
exercised due diligence in making the referral or proactively correcting its mistakes.
Thus, GSA has failed to demonstrate that its actions had a reasonable basis in
law, which means that the fourth entitlement factor also weighs in EIP’s favor. This
means that all four entitlement factors support EIP’s request for a fee award, and the
Court therefore concludes that EIP is entitled to attorneys’ fees and costs.
C. With The Exception Of Fees Related To Reviewing And Recalculating Billing Entries, EIP’s Requested Fees Are Reasonable
24 Having found that EIP is both eligible for and entitled to a fee award, the only
question remaining is what amount of attorneys’ fees and costs EIP should receive. In
the instant case, EIP has requested $36,885.50 in attorneys’ fees and $422.92 in costs,
which reflects the 109.25 hours that four of its attorneys worked on this case, and the
filing and postage fees associated with initiating the lawsuit. (See Exs. L–N to Pl.’s
Mot. for Fees, ECF No. 22-7, at 56–64; Ex. A to Pl.’s Reply, ECF No. 24-1, at 2; Pl.’s
Mem. at 8; Pl.’s Reply at 23.) In this jurisdiction, courts calculate fee awards by
multiplying a reasonable hourly rate by the number of hours reasonably expended in the
litigation—including the hours spent preparing a request for fees. See, e.g., Reyes, 356
F. Supp. 3d at 168–69, 173. In determining the reasonableness of the plaintiff’s billed
hours and fees, courts must ensure that the attorneys “exercised good billing judgment”
and did not “waste or otherwise unnecessarily spend time on the matter[.]” Elec. Priv.
Info. Ctr., 811 F. Supp. 2d at 237 (internal quotation marks and citations omitted). This
Court has reviewed the billing entries and declarations that EIP’s attorneys have
submitted, and it finds that EIP’s requested fee award is reasonable, with the exception
of the fees involved in reviewing and correcting billing entries, as explained in more
detail below.
To begin, there is no dispute that EIP’s requested hourly rates are reasonable.
(See Pl.’s Mem. at 40–41; Def.’s Opp’n at 10–13.) To calculate the hourly rates for
each of its attorneys, EIP used the USAO’s Revised 2015-2019 Matrix, which sets
standard hourly rates for lawyers in the District of Columbia based on differing levels
of experience. See Eley v. District of Columbia, 793 F.3d 97, 101 (D.C. Cir. 2015).
The declarations that EIP has submitted describe its attorneys’ legal experience and
25 identify the particular category of hourly rates applied to each attorney under the
Matrix. (See Decl. of Sylvia Lam, ECF No. 22-3, ¶¶ 3–8, 12–17; Decl. of Eric V.
Schaeffer, ECF No. 22-4, ¶¶ 4–14; Decl. of Sanghyun Lee, ECF No. 22-5, ¶¶ 2–9; Decl.
of Adam Kron, ECF No. 22-6, ¶¶ 3–10.) Based on these submissions, and the fact that
GSA does not contest EIP’s use or application of the USAO Matrix, the Court is
satisfied that the hourly rates requested by EIP are reasonable. See, e.g., Reyes, 356 F.
Supp. 3d at 169 n.2 (finding hourly rates reasonable where USAO Matrix was used and
the defendant did not dispute that the rates were fair).
As for the time spent on this litigation, the Court has determined that EIP’s
requested hours must be reduced slightly, but not for the reasons that GSA has asserted.
In its opposition to EIP’s motion for fees, GSA contends that EIP’s requested award is
patently unreasonable for two reasons. First, GSA argues that EIP’s requested award is
excessive in light of the simple nature of this case. (See Def.’s Opp’n at 11–12.) GSA
emphasizes that EIP “received all responsive records, with no redactions, prior to the
parties’ completion of briefing and without the need for a judicial order” (id. at 12), and
it urges this Court to follow Cornucopia Institute v. Agricultural Marketing Service,
285 F. Supp. 3d 217 (D.D.C. 2018), which is a case in which the court reduced a
requested fee award after noting that the “merits [of the case] were resolved quickly in
a straightforward manner,” id. at 227.
GSA’s argument is problematic for several reasons. First of all, even though EIP
ultimately received the requested records without completing summary judgment
briefing, the Court has found that EIP was only able to obtain those records by bringing
the instant lawsuit and opposing GSA’s motion for summary judgment. See Elec. Priv.
26 Info. Ctr. v. FBI, 72 F. Supp. 3d 338, 350 (D.D.C. 2014) (rejecting defendant’s
argument that the hours plaintiff billed for preparing “what should have been a simple
complaint” were excessive, and noting that “the time [plaintiff] spent preparing the
Complaint was incurred only because of [defendant’s] admitted failure to comply with
the law”). And the fact that the case did not require extensive briefing is adequately
reflected in EIP’s billing records, which log a reasonable amount of time for the limited
tasks involved in the parties’ litigation of the merits. GSA’s citation to Cornucopia
Institute is also misplaced, insofar as the parties in that case resolved the dispute
“without any briefing[,]” and the Cornucopia Institute court’s reduction of the
requested award also appears to have been motivated by the fact that the time the
parties spent litigating the fee issue was vastly disproportionate to the time they spent
litigating the merits of the plaintiff’s legal claims. 285 F. Supp. 3d at 227–28
(emphasis added). By contrast, here, the number of hours spent on the merits was
roughly equal to the time expended on EIP’s request for fees, and both stages of the
litigation involved a similar amount of briefing. (See Exs. L & M to Pl.’s Mot. for Fees
at 56–58, 60–61; Ex. A to Pl.’s Reply at 2.)
As a second basis for the fee-reduction argument, GSA maintains that EIP’s use
of four attorneys on this matter was excessive. (See Def.’s Opp’n at 12–13.) In this
regard, GSA asserts that EIP lacked any reasonable basis to staff so many attorneys on
such a simple matter, especially given that three of EIP’s attorneys had over ten years
of legal experience. (Id. at 12.) But a close review of EIP’s billing records provides no
indication that EIP’s staffing was unreasonable; in fact, two out of the four attorneys
spent a combined total of only 5.25 hours on the matter, and that time largely consisted
27 of reviewing and editing the work of junior attorneys. (See Exs. L & M to Pl.’s Mot.
for Fees at 57–58, 60–61; Ex. A to Pl.’s Reply at 2.) Moreover, unlike the cases upon
which GSA relies (see Def.’s Opp’n at 12 (citing Bloomgarden v. U.S. Dep’t of Just.,
253 F. Supp. 3d 166 (D.D.C. 2017), and Copeland, 641 F.2d 880)), there is no evidence
of duplicative billing for a single task, and GSA has not pointed to any billing entries
that suggest otherwise. Indeed, EIP “preemptively” decreased the actual hours
expended in order to avoid any overbilling, by “reducing percentages of hours to
account for inefficiencies, and including only one attorney’s billable hours for internal
and external conferences which actually involved the participation of multiple EIP
attorneys.” (Pl.’s Mem. at 43.) That representation is consistent with this Court’s
review of the billing records, and the Court finds that it was reasonable for EIP to use
multiple attorneys in this case, as reflected in those records.
That said, the Court will exercise its discretion to reduce EIP’s requested fees by
$307, in order to account for three billing entries that the Court deems unreasonable:
namely, the entries for time spent reviewing and correcting billing records. Cf. ACLU,
810 F. Supp. 2d at 279 (noting that courts should “exclude” from the fee award “hours
that were not ‘reasonably expended’” (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983))). Although the billed time for these entries adds up to only one hour (see Ex.
M to Pl.’s Mot. for Fees at 60–61), EIP “had an ongoing duty throughout the litigation
to maintain an accurate record of its time,” Elec. Priv. Info. Ctr., 218 F. Supp. 3d at 52,
and GSA should not be required to compensate EIP for administrative work that can be
characterized as unnecessary or redundant, see Hensley, 461 U.S. at 434.
28 IV. CONCLUSION
For the foregoing reasons, and as set forth in the accompanying Order, the Court
concludes that EIP is eligible for and entitled to attorneys’ fees and costs in this matter.
The Court also finds that EIP’s requested fee award is reasonable, with the exception of
the request for the recovery of fees for time that one of EIP’s attorneys spent reviewing
and correcting billing entries. Accordingly, the Court will DECLINE TO ADOPT
Magistrate Judge Robinson’s Report and Recommendation and will GRANT IN PART
EIP’s Motion for Attorneys’ Fees and Costs (ECF No. 22). As reflected in the
accompanying Order, a total of $307 will be deducted from EIP’s requested fees, such
that EIP will be awarded $36,578.50 in attorneys’ fees and $422.92 in costs. 3
DATE: August 6, 2021 Ketanji Brown Jackson KETANJI BROWN JACKSON United States Circuit Judge Sitting on the District Court by Designation
3 GSA does not contest EIP’s requested costs—and for good reason. (See Def.’s Opp’n at 10–13.) The requested costs cover only the filing and postage fees associated with the lawsuit (see Ex. N to Pl.’s Mot. for Fees at 63–64), and those expenses undoubtedly qualify as “litigation costs reasonably incurred” under the FOIA, 5 U.S.C. § 552(a)(4)(E)(i); see also Pinson v. Lappin, 806 F. Supp. 2d 230, 237 (D.D.C. 2011).