Urban Air Initiative, Inc. v. Environmental Protection Agency

• Court: District Court, District of Columbia
• Decided: February 27, 2020
• Docket: Civil Action No. 2015-1333
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) URBAN AIR INITIATIVE, INC., et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 15-1333 (ABJ) ) ENVIRONMENTAL PROTECTION ) AGENCY, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

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

2 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

3 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,

1 EPA transitioned to a new e-mail client in 2013 so EPA’s information technology office had to search for responsive records from 2006-2009 on an archived system. See Sargeant Decl. ¶ 33. 4 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

2 Defendant was required to determine whether it would comply with plaintiffs’ request and notify plaintiffs within twenty business days, or thirty in unusual circumstances, after request for an extension. 5 U.S.C. § 552(a)(6)(A)–(B). Plaintiffs submitted their revised FOIA request on April 2, 2015, thus defendant should have responded by May 14, 2015 at the latest. Revised FOIA Request; Compl. ¶ 32. Defendant responded on June 15, 2015 requesting an extension. EPA Extension. 5 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 defendant to prioritize any responsive emails, and ordered that all

responsive records not entitled to confidential treatment be produced by May 31, 2016. Id.; Def.’s

Status Report [Dkt. # 11] at 1–2.

Throughout January and February, defendant adhered to the ordered timeline, requesting

one extension, and produced approximately 3,980 records in full and 196 records with redactions.

Defendant withheld 136 records in full. Def.’s Mot. for Summ. J. [Dkt. # 19] (“Def.’s Mot.”) at

2; Sargeant Decl. ¶ 49.

On September 2, 2016, defendant moved for summary judgment, arguing that it had met

its FOIA obligations. Def.’s Mot. at 1. Plaintiffs opposed the motion and moved for partial

summary judgment arguing that: (1) 198 records were improperly withheld pursuant to FOIA

6 Exemption 5, (2) two records were improperly redacted as partially non-responsive; (3) all

remaining e-mail attachments were improperly redacted as non-responsive; and (4) defendant’s

search was inadequate. See Pls.’ Opp. & Cross-Mot. for Partial Summ. J. [Dkt. # 21] (“Pls.’ Cross-

Mot.”) at 16–35; Pls.’ Cross-Reply in Supp. of Pls.’ Cross–Mot. [Dkt. # 34] (“Pls.’ Cross-Reply”)

at 6–24. Defendant voluntarily released 188 records responsive to the second and third issues,

thereby rendering them moot. Def.’s Sur-Reply [Dkt. # 36] (“Def.’s Sur-Reply”) at 2; Resp. to

Court’s Min. Order [Dkt. # 45] at 1–2; Resp. to Court’s Order [Dkt. # 48] at 1–2.

The Court denied plaintiffs’ motion and granted in part and denied in part defendant’s

motion on the grounds that defendant had properly invoked Exemption 5 to redact or withhold

records, but it had failed to establish that it had conducted an adequate search. Urban Air Initiative,

Inc. v. Envtl. Prot. Agency, 271 F. Supp. 3d 241, 246 (D.D.C. 2017).

On January 19, 2018, defendant filed a joint status report stating that it had conducted a

renewed search in accordance with the Court’s summary judgment order and opinion, and it was

reviewing records to identify responsive, non-exempt information. Joint Status Report [Dkt. # 55]

at 1. Defendant proposed a production schedule – to which plaintiffs did not object – that

encompassed three phases: Phase 1, which called for rolling production of all non-exempt, non-

confidential responsive records, would be completed by April 13, 2018; Phase 2, which would

entail the completion of confidentiality determinations of certain records, would be completed by

July 6, 2018; and Phase 3, which would give the parties time to evaluate the status of the case,

would be completed by August 3, 2018. Id. at 2.

The Court issued an order on January 22, 2018, adopting the parties’ proposed due dates.

Min. Order (Jan. 22, 2018). The Court established a schedule for production of non-exempt

7 records on a rolling basis on February 16, March 16, and April 13. Id. Defendant complied with

this order and produced an additional 1,140 records. Def.’s Status Report [Dkt. # 59].

On December 4, 2018, EPA filed a renewed motion for summary judgment. Def.’s

Renewed Mot. for Summ. J. [Dkt. #6 6] (“Def.’s Renewed Mot.”). The parties stipulated to the

dismissal of the case on February 11, 2019. Joint Stipulation for Dismissal [Dkt. # 69]. On May

16, 2019, plaintiffs moved for attorneys’ fees. Pls.’ Mot. at 2.

ANALYSIS

FOIA provides that courts may assess “against the United States reasonable attorney fees

and other litigation costs reasonably incurred . . . in which the complainant has substantially

prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). To recover fees and costs, plaintiffs must first show that

they are both eligible and entitled to an award. 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). A plaintiff is eligible for attorneys’ fees if it “substantially

prevailed,” either by obtaining relief either through a judicial order, § 552(a)(4)(E)(ii)(I), or by

causing “a voluntary or unilateral change in position by the agency, if the complainant’s claim is

not insubstantial.” § 552(a)(4)(E)(ii)(II); see Brayton, 641 F.3d at 524. Only eligible plaintiffs

are entitled to an award of attorneys’ fees.

To determine whether an eligible plaintiff is entitled to an award, a court balances a

combination of factors, including the public benefit of the disclosure, the nature of the plaintiff’s

interest, whether any commercial benefits were derived, as well as the reasonableness of an

agency’s initial withholding. Davy v. C.I.A. (“Davy II”), 550 F.3d 1155, 1159 (D.C. Cir. 2008);

Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice (“CREW”), 820 F.

8 Supp. 2d 39, 45 (D.D.C. 2011) (emphasizing shifting nature of analysis as no criteria alone is

dispositive).

After determining that the plaintiff is both eligible for and entitled to an award, the court

must assess whether the amount requested is reasonable after considering the number of hours

spent on particular tasks, the requested hourly rates, the prevailing market rates in the relevant

community, and the attorneys’ skill and experience. See § 552(a)(4)(E)(i) (providing “reasonable”

costs may be assessed); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).

In exercising its discretion, courts must bear in mind the fundamental policy behind

granting fee awards: to “encourage the maximum feasible public access to government

information” and “facilitate citizen access to the courts to vindicate their statutory rights.”

Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 715 (D.C. Cir. 1977). As a result, the

“touchstone of a court’s discretionary decision” must be whether an award is necessary to advance

the goals underlying the Freedom of Information Act. See id.

Here, defendant challenges both plaintiffs’ eligibility for and entitlement to an award, and

it argues that even if plaintiffs were eligible and entitled, their requested fees are unreasonable.

I. Plaintiffs are eligible for a fee award.

There are two ways a plaintiff can show it has “substantially prevailed” and is therefore

eligible for an award under FOIA. First, a plaintiff substantially prevails when it secures “a judicial

order, or an enforceable written agreement or consent decree.” § 552(a)(4)(E)(ii)(I); Campaign

for Responsible Transplantation v. Food & Drug Admin. (“CRT”), 511 F.3d 187, 193 (D.C. Cir.

2007). Scheduling orders requiring production by a certain date may qualify – even when the

orders adopt timelines proposed by the agency and agreed to by the plaintiff – because with their

entry, the plaintiff has gained a judgment that can be enforced through contempt. See Davy v.

9 C.I.A. (“Davy I”), 456 F.3d 162, 166 (D.C. Cir. 2006); Edmonds v. F.B.I., 417 F.3d 1319, 1323

(D.C. Cir. 2005); CREW, 820 F. Supp. at 44 (noting plaintiff “substantially” prevailed in securing

scheduling and production by a certain date).

Second, a plaintiff substantially prevails when its suit causs a “voluntary or unilateral

change in position by the agency.” § 552(a)(4)(E)(ii)(II). This basis for prevailing is often referred

to as the “catalyst theory.” Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010)

(noting that Congress added § 552(a)(4)(E)(ii)(II) in 2007 after the Supreme Court rejected the

catalyst theory under a different statute so that FOIA plaintiffs could prevail when their lawsuits

prompted defendants’ response).

Plaintiffs contend that they “substantially prevailed” under both theories. First, they argue

that they obtained judicial relief under § 552(a)(4)(E)(ii)(I) when this Court issued two orders

requiring production of responsive records: (1) the January 13, 2016 order requiring production on

a rolling basis, and (2) the January 22, 2018 order requiring production of responsive records from

the renewed search after the Court issued its summary judgment decision. Pls.’ Mot. at 4, 6–7.

Second, they maintain that under § 552(a)(4)(E)(ii)(II), their suit and the motion for summary

judgment caused a “voluntary or unilateral change in position by the agency,” because defendant

began its search for responsive documents only after the suit was initiated, and it voluntarily

released contested documents only after plaintiff cross-moved for summary judgment. Pls.’ Mot.

at 8–9.

The Court finds that plaintiffs have substantially prevailed by securing judicial relief and

by causing a unilateral change in position by the agency that was not insubstantial. The Court

ordered production according to a specific schedule on January 13, 2016, calling for a rolling

production to be completed by February 29, 2016 for all non-exempt, non-CBI records. See Min.

10 Order (Jan. 13, 2016). And, of more significance, on September 25, 2017, the Court granted in

part and denied in part defendant’s motion for summary judgment and denied plaintiffs’ cross-

motion for summary judgment. Order [Dkt. # 50] (“Sept. 25, 2017 Order”). The Court ruled in

plaintiffs’ favor by finding the search to be inadequate, and plaintiff obtained relief when, on

January 22, 2018, the Court ordered defendant to produce responsive, non-exempt, non-CBI

records on a rolling basis to be completed by April 13, 2018. Min. Order (Jan. 22, 2018). Both

the January 13, 2016 order and the January 22, 2018 order imposed enforceable legal obligations

on the defendant.

Defendant maintains nonetheless that plaintiffs did not prevail, because the two orders were

merely “procedural ruling[s]” that did not require production of any specific documents, and it

relies upon Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of Energy (“OCAW”),

288 F.3d 452, 458 (D.C. Cir. 2002). In OCAW, the district court had simply ordered an agency to

conduct a more thorough search, and it did not issue an order that any records be produced. Id. at

457. The D.C. Circuit reversed the fee award on the grounds that the “procedural ruling” could

not serve as a basis for a finding that plaintiff had prevailed. Id. at 458.

But here, the Court did more than order the agency to re-double its efforts. In its January

13, 2016 minute order, the Court stated:

[D]efendant shall review and produce responsive, non-exempt, and non- CBI records to plaintiffs on a rolling basis on January 15, 2016, January 29, 2016, February 15, 2016, and February 29, 2016, and it shall produce all responsive CBI records not entitled to confidential treatment by May 31, 2016. It is FURTHER ORDERED that of the more than 15,000 records that have already been identified, defendant shall review and produce responsive emails first . . . . Defendant shall submit reports to the Court updating it on the status of the rolling production on February 1, 2016, March 1, 2016, and June 1, 2016, and those reports should indicate the number of records reviewed, the number produced, and the number of any records withheld in full or in part.

11 Min. Order (Jan. 13, 2016). The Court’s January 22, 2018 minute order stated:

Defendant must produce responsive, non-exempt, non-CBI records on a rolling basis on February 16, 2018, March 16, 2018, and April 13, 2018, and it must file a status report concerning the status of the rolling productions on April 16, 2018. Defendant must produce records found not entitled to confidential treatment by July 6, 2018. And defendant must file a status report on August 3, 2018.

Min. Order (Jan. 22, 2018).

The D.C. Circuit has held that orders requiring agencies to produce records by a certain

date are sufficient to “render the plaintiffs who secure them prevailing parties eligible for

attorney’s fees.” Judicial Watch v. FBI, 522 F.3d 364, 369 (D.C. Cir. 2008); see, e.g., CRT, 511

F.3d at 194; Edmonds, 417 F.3d at 1322–23 (finding plaintiff substantially prevailed where the

court directed defendant to produce documents by a specified date). That is because once an order

is adopted by a court explicitly requiring an agency to release documents, its compliance can no

longer be described as voluntary, and the legal relationship between the parties has been changed

by virtue of an enforceable order. See, e.g., CRT, 511 F.3d at 197; Davy I, 456 F.3d at 166.

Applying those binding authorities, the Court finds that the plaintiffs are entitled to fees as the

prevailing party.

Furthermore, plaintiffs substantially prevailed in their cross-motion for summary judgment

because the motion prompted defendant to voluntarily and unilaterally change its position.

Defendant argues that plaintiffs did not substantially prevail at the summary judgment stage

because the Court largely granted defendant’s motion and denied plaintiffs’ motion. Therefore,

defendant maintains that plaintiffs are not eligible for attorneys’ fees on the time spent researching

and drafting the motion. Def.’s Opp. at 20–21. But two of the three issues plaintiffs raised in their

motion were rendered moot when, “in an effort to narrow the issues,” defendant voluntarily

12 released 188 records it had previously identified as non-responsive. 3 See Supplemental Decl. of

Kathryn Sargeant [Dkt. # 28-2] (“Suppl. Sargeant Decl.”) ¶¶ 16–17. Thus, defendant voluntarily

altered its behavior in response to plaintiffs’ cross-motion for summary judgment.

With those issues resolved, plaintiffs sought summary judgment on the remaining issue

concerning the applicability of a claimed exemption, and it opposed defendant’s motion seeking

judgment in its favor on the adequacy of the search. Plaintiffs’ motion with respect to Exemption

5 was denied. See Urban Air Initiative, 271 F. Supp. 3d at 251. However, the Court agreed with

plaintiffs in part and denied defendant’s motion in part because defendant had not conducted an

adequate search. Id. at 263. Thus, plaintiffs substantially prevailed on the search issue.

Furthermore, as part of its ruling, the Court ordered defendant to conduct a more thorough

search, provide more detailed justification for the adequacy of its searches, and release any

reasonably non-exempt records consistent with FOIA. Order [Dkt. # 50]. As a result of this order,

defendant submitted a status report indicating that it was in the process of reviewing records from

the revised search, and it proposed a schedule to release those records. See Joint Status Report

[Dkt. # 54]; Joint Status Report [Dkt. # 55]. The Court then adopted that schedule in the January

22, 2018 minute order and ordered the production of responsive records by certain dates. Min.

Order (Jan. 22, 2018); Davy I, 456 F.3d at 165–66 (finding that plaintiff substantially prevailed

when the parties’ joint stipulation was approved and memorialized in a court order). Though

3 In that regard, this case is distinguishable from Elec. Privacy Info. Ctr. v. FDA (“EPIC III”), which defendant claims is on “all fours” with the instant case. Def.’s Opp. at 20–21. The court there found the agency’s initial search was adequate and plaintiffs did not “substantially prevail” when the court merely ordered a supplemental declaration addressing a specific search requested by plaintiffs. 266 F. Supp. 3d 162, 166, 168 (D.D.C. 2017). Conversely, the court did find plaintiffs prevailed on an initial order which ordered the agency to produce non-exempt records by a certain date, despite the agency’s protestations that they would have released documents even without such an order. 13 defendant characterizes this ruling as “marginal,” Def.’s Opp. at 20, it substantially altered the

state of the relationship between the parties, and it resulted in the production of an additional 1,140

records – a number equal to a quarter of the total number of records produced. See Def.’s

Statement of Facts in Support of its Renewed Mot. for Summ. J. [Dkt. # 66-2] ¶ 19.

Defendant also argues that despite these judicial orders, plaintiffs did not substantially

prevail because litigation was not necessary to compel the production of documents. Def.’s Opp.

at 18. EPA relies on Hall & Assoc. v. Envt’l. Prot. Agency, in which the court found litigation was

not necessary, and therefore the plaintiff was not eligible for fees, even though the court had

entered an order requiring the defendant to provide the plaintiff with responsive documents by a

certain date. 210 F. Supp. 3d 13, 20 (D.D.C. 2016), aff’d sub nom. Hall & Assocs. v. Envtl. Prot.

Agency, No. 16-5315, 2018 WL 1896493 (D.C. Cir. Apr. 9, 2018). But in that case, plaintiff’s

FOIA requests were submitted in an improper form, and he did not timely clarify them with the

agency before filing suit. Id. In affirming that decision, the appeals court noted that while plaintiff

may have been “technically eligible for fees” because he obtained relief through judicial order,

plaintiff was not entitled to fees because the agency’s position regarding the FOIA request was

“correct as a matter of law.” 2018 WL 1896493 at *2.

The Hall case is inapposite since plaintiffs did not fail to take necessary steps before filing

suit. They worked with defendant to narrow the scope of their request, and they committed to

covering any legitimate costs. Compl. ¶¶ 16–19, 20–21. And, while defendant produced a handful

of key records, by late June of 2015, the agency was still officially “uncertain” about how long it

would take to locate and examine the bulk of the material that had been requested in February.

June 25, 2015 EPA Reply. At that point it was reasonable for plaintiffs to seek the Court’s

assistance to obtain compliance with the statute. See EPIC III, 266 F. Supp. 3d 162, 168 (D.D.C.

14 2017) (rejecting DEA’s argument that they “would have released” records regardless of order

because defendants did not meaningfully begin complying until after a complaint was filed); Elec.

Privacy Info. Ctr. v. United States Dep’t of Homeland Sec. (“EPIC II”), 218 F. Supp. 3d 27, 41

(D.D.C. 2016) (significant delays in complying with FOIA may support an inference that an

agency was seeking to ignore or forgot about a request and a fee award might be appropriate).

In sum, the Court finds that plaintiffs are eligible for a fee award since they substantially

prevailed through judicial order and by causing a voluntary change in defendant’s position.

II. Plaintiffs are entitled to a fee award.

When a plaintiff is eligible for a fee award, the court must next determine whether the

plaintiff is also entitled to an award. Davy I, 456 F.3d at 166. In analyzing entitlement, the court

weighs four factors: (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; 4 and (4) the reasonableness of the

agency’s withholding of the requested documents. McKinley v. Fed. Hous. Fin. Agency, 739 F.3d

707, 711 (D.C. Cir. 2014). “No one factor is dispositive,” Davy II, 550 F.3d at 1159, and balancing

is left to the district court’s discretion. Morley v. C.I.A., 894 F.3d 389, 391 (D.C. Cir. 2018).

The Court finds that the applicable factors weigh in favor of plaintiffs, and they are entitled

to an award of attorneys’ fees.

A. Public Benefit Derived from Plaintiffs’ Case

To assess public benefit derived from the case, a court must determine whether the lawsuit

“is likely to add to the fund of information that citizens may use in making vital political choices.”

Davy II, 550 F.3d at 1159–60, citing Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). The

4 The first three factors distinguish between requestors seeking documents for public information purposes, for which a public subsidy makes sense, and those with private advantage who need no incentive to litigate. See Davy II, 550 F.3d at 1160. 15 Court considers both the effect of the litigation for which fees are requested and the “potential

public value” of the information sought. Id. at 1159. To have “potential public value” the request

must have “at least a modest probability of generating useful new information about a matter of

public concern.” Morley v. C.I.A., 810 F.3d 841, 844 (D.C. Cir. 2016). The “potential public

value” of the information requested should be evaluated “with little or no regard as to whether any

documents supplied prove to advance the public interest.” Id.

Plaintiffs maintain their request benefited the public because it resulted in the production

of “over 4,000 EPA records, including email records that highlight the influence of the oil industry

on the EPAct study,” which “affects air quality nationwide.” Pls.’ Mot. at 10, 23. These

documents, which otherwise would not have been released, are now available to the public. Id. at

1, 10–11 (also noting that the emissions model based on the study is used to implement the Clean

Air Act, an issue of national public importance). Defendant takes issue with this conclusion,

arguing results of the EPAct study were made public in 2013, and the additional information

released through this lawsuit only benefitted businesses specifically affected by EPA regulations.

Def.’s Opp. at 26.

The Court rejects defendant’s cramped viewpoint and finds that the documents released as

a result of this action added to the public knowledge. Plaintiffs’ request did not focus on the

published results of the study; rather it sought information not available to the public – specifically,

“everything that preceded the emissions testing that resulted directly in the reported results of any

phase of the EPAct study.” Revised FOIA Request; Def.’s Opp. at 26. The EPAct study was

incorporated into the Congressionally mandated updated vehicle emissions model, MOVES2014,

which has national implications for emissions and air quality and is used, in part, to implement the

Clean Air Act nationally. Def.’s Mot. at 3; Sargeant Decl. ¶ 9. Plaintiffs sought to uncover errors

16 or “influence” in the study’s design, and such information would be of interest to the multiple

stakeholders involved in and affected by matters of national environmental policy and public

health.

Indeed, plaintiffs subsequently released a public report of their findings. And, in their

pleading, they refer to other media publications that made use of the records they obtained, such

as The Hill and Biofuels Digest. 5 See Pls.’ Mot. at 10–13. Plaintiffs also used the information

they obtained in a formal effort to seek corrections to the EPAct study. See id. at 13; EPAct – Fuel

Effects Study (RFC 17001), United States Environmental Protection Agency,

https://www.epa.gov/quality/epact-fuel-effects-study-rfc-17001 (last visited February 26, 2020).

As a result, this case stands in contrast to those cited by defendant where “the particularized nature

of the released information” made it of limited public benefit. See, e.g., McKinley, 739 F.3d at

711 (finding that the request yielded two documents “so heavily redacted that they contributed

only ‘scant’ information to the public record”); Fenster v. Brown, 617 F.2d 740, 744–45 (D.C. Cir.

1979) (release of Defense Contract Audit Manual primarily helps government contractors with

audits of their performance by the government and does not further general public interest);

Horsehead Indus., Inc. v. E.P.A., 999 F. Supp. 59, 69 (D.D.C. 1998) (court found likelihood that

records would actually be disseminated to the public speculative and benefit “minimal” after

plaintiff, thought by EPA to have contaminated a particular Superfund site, requested data on

hazardous substances found at that site).

5 Defendant points out that only UAI, not co-plaintiff EFC, disseminated information obtained from their FOIA request. Def.’s Opp. at 26. There appears to be no requirement in the law that all parties to a FOIA request each equally disseminate information. There are a variety of reasons why one party might take the lead on releasing information, but both are still involved in acquiring and making its dissemination possible.

17 Thus, the Court finds that this factor weighs in favor of plaintiffs.

B. Commercial Benefit to Plaintiffs and Plaintiffs’ Interest in the Records Sought

The second and third factors – the commercial benefit to plaintiffs and the nature of their

interest – are closely related and usually considered together. Davy II, 550 F.3d at 1159–60. These

factors weigh against an award to a plaintiff who seeks disclosure for a commercial benefit or out

of other personal motives, see id. at 1160, and instead “favor non-profit organizations . . . which

‘aim to ferret out and make public worthwhile, previously unknown government information –

precisely the activity that FOIA’s fees provision seeks to promote.’” Elec. Privacy Info. Ctr. v.

U.S. Dep’t of Homeland Sec., 999 F. Supp. 2d 61, 69 (D.D.C. 2013), quoting Davy II, 550 F.3d at

1160; see Nationwide Bldg. Maint., 559 F.2d at 712 (noting courts generally disallow awards to

large corporate interests or representatives of such interests, except news interests).

While both plaintiffs are non-profit organizations, Compl. ¶¶ 3–4, defendant argues that

UAI 6 is not entitled to fees because it is “inextricably linked” to an ethanol plant construction

company, ICM, Inc. (“ICM”), and ICM may benefit commercially from the release of the

requested information. Def.’s Opp. at 29. Defendant contends that plaintiffs sought the documents

to undermine the MOVES2014 model and EPAct Study, which showed that increasing the

concentration of ethanol in gasoline contributes to increased emissions of various pollutants. Id.

at 30. Since ICM builds and supports ethanol plants, undermining the government’s study would

be commercially advantageous to it.

To support its contention that UAI should be viewed as the alter ego of ICM, defendant

points to the following facts: (1) UAI’s president is also ICM’s founder; (2) ICM and UAI share

6 EPA does not dispute that EFC is a non-profit organization that has no commercial interest in the records. 18 an address; (3) several leaders and staff members within the two organizations overlap; and (4)

ICM makes regular financial contributions to UAI. See Def.’s Opp. at 28–31. UAI does not

dispute its connections with ICM, but it points out that ICM is not a party to this suit, ICM does

not pay for UAI’s attorneys, and UAI is an independent nonprofit organization, not a subsidiary

of ICM. Pls.’ Mot. at 12–13. UAI maintains that it was created to “educate the general public on

the health dangers of toxic aromatics and reduce aromatics from mobile emission sources in urban

areas,” not to advance the commercial interests of ICM. Articles of Incorporation, Urban Air

Initiative, Ex. D to Pls.’ Reply [Dkt. # 78-4] at 2. In advancing that mission, UAI works on

“technical research, improving public policy, and education to expose the health threats caused by

harmful compounds in gasoline.” Welcome to Urban Air Initiative, Urban Air Initiative,

https://fixourfuel.com/ (last visited Feb. 26, 2020). In sum, UAI maintains that the nonprofit and

the ethanol company are two separate entities that have different goals and purposes, Pls.’ Reply

at 12–13, and that it “sought the requested information to expose the oil industry’s influence over

the EPAct study’s design,” not to gain any commercial benefit. Pls.’ Reply at 11.

At the end of the day, while defendant has identified facts that suggest there may have been

some potential benefit to ethanol producers such as ICM stemming from this action, that does not

entirely negate the broader public aspects of plaintiffs’ work.

Significantly, defendant does not argue that plaintiff UAI, a nonprofit organization, was

seeking to benefit itself commercially, but it suggests that the goal of the FOIA action was to

benefit ICM commercially, which in turn would allegedly benefit UAI. See Davy II, 550 F.3d at

1160 (“The second factor considers the commercial benefit to the plaintiff.”) (emphasis added).

But UAI’s ambit and public advocacy extends beyond its relationship with ICM. In submitting

the FOIA request, it advanced several public and policy-oriented goals, and once UAI received the

19 documents, it made the requested information available to the public. Compl. ¶ 3. Thus, UAI’s

interest cannot be said to be “purely commercial.” Davy II, 550 F.3d at 1160–61 (emphasis added)

(finding that the intention to publish a book does not mean the nature of plaintiff’s interest was

“purely commercial” and to the extent plaintiff had “a scholarly interest in publishing publicly

valuable information in a book, his interest [was] at most ‘quasi-commercial’”). 7

Moreover, defendant fails to state how the release of information about the EPAct Study

and the MOVES2014 emissions model would lead to an increase in ethanol use, much less in such

a way that would benefit ICM, and UAI, specifically. In Campaign For Responsible

Transplantation v. FDA, the agency unsuccessfully argued that the plaintiff nonprofit group –

dedicated to raising awareness about the dangers of cellular treatment therapy – should not recover

fees because it would use the requested information to seek a total ban on the therapy and its

professional membership would benefit commercially from such a ban. 593 F. Supp. 2d 236, 241–

42 (D.D.C. 2009). The agency did not state how the release of the requested documents would

necessarily lead to a prohibition of a particular cellular treatment therapy, and the court refused to

make that “logical leap.” Id. Here, defendant asks the Court to make a similar “logical leap.”

While ICM would benefit from increased ethanol use, defendant has not shown how the release of

information about the study underlying the MOVES2014 emissions model would necessarily lead

7 In contrast, the court in Alliance for Responsible CFC Policy v. Costle found sufficient commercial interest where the plaintiff nonprofit was formed by a group of chlorofluorocarbons (CFC) producers specifically in response to EPA’s notice that it would start regulating CFC production. 631 F. Supp. 1469, 1469 (D.D.C. 1986). “[P]laintiff was a well-funded entity created for the advancement of the private interests of its constituent entities.” Id. at 1471. Because the impending regulation would directly curtail their business, the producers had sufficient private incentive to litigate for production of EPA’s rulemaking documents and could not show their suit was prompted “even in part” by public concerns. Id. Here, UAI was not created in response to any regulation, and it has not been shown that its purpose is to advance a pro-ethanol agenda. 20 to such an increase and thereby benefit plaintiff UAI. See Def.’s Opp. at 29; Pls.’ Reply at 14–

15.

A closer question, however, is whether plaintiffs were motivated by their own personal and

commercial interests when they utilized FOIA as a substitute for discovery in litigation challenging

MOVES2014. See Def.’s Opp. at 27–28. Along with Kansas and Nebraska, 8 plaintiffs sought

judicial review of the MOVES2014 model, and they were explicit about their intention to use the

requested documents in that litigation. See Ex. O to Compl. [Dkt. # 1-1] (letter from plaintiffs to

EPA asking for native electronic documents by September 16, 2015 so plaintiffs could review

them in conjunction with EPA’s reply brief in MOVES2014 challenge).

“The primary purpose of the FOIA was not to benefit private litigants or to serve as a

substitute for civil discovery.” Baldrige v. Shapiro, 455 U.S. 345, 360 n.14 (1982). Thus, courts

have found in some circumstances that a plaintiff does stand to gain a commercial or private benefit

when it seeks documents that could aid efforts in ongoing civil litigation. See, e.g., Dorsen v.

S.E.C., 15 F. Supp. 3d 112, 123 (D.D.C. 2014); Republic of New Afrika v. F.B.I., 645 F. Supp. 117,

121 (D.D.C. 1986); Simon v. United States, 587 F. Supp. 1029, 1033 (D.D.C. 1984). As the D.C.

Circuit has explained, when a plaintiff has a commercial benefit or a personal interest in pursuing

litigation, “an award of fees is generally inappropriate” because there is already sufficient

motivation for the claimant to bring suit without the promise of attorneys’ fees. See Fenster, 617

F.2d at 743; see also Cotton, 63 F.3d at 1120 (“When a litigant seeks disclosure for a commercial

benefit or other personal reasons, an award of fees is usually inappropriate.”) (citation omitted).

In this line of cases, though, the courts have reasoned that it was the potential to award

damages or personal vindication in the separate civil suit that provided sufficient incentive to

8 ICM did not participate in the lawsuit. 21 pursue the FOIA action, and there was no need for a fee award to serve that purpose. For example,

in Dorsen, the Court found that plaintiff had a sufficient personal and commercial interest in

obtaining the documents because his ultimate goal was to “obtain relief from a $63 million

judgment against him” and to “rehabilitate his image in the eyes of the community.” 15 F. Supp.

3d at 123. In Republic of New Afrika, the Court found a personal and commercial interest when

plaintiff, a nonprofit organization, sought records about FBI activities to exonerate certain of its

members from criminal prosecution and to aid in civil discovery in a case against the government

for substantial money damages. 645 F. Supp. at 122. In Simon, plaintiff had been terminated from

his employment at the Patent and Trademark Office, and he requested documents pertaining to his

employment to support a separate civil lawsuit challenging the dismissal. 587 F. Supp. at 1032.

The Court found that his interest in the documents were purely “personal” and thus attorney’s fees

for the FOIA litigation were not recoverable. Id.

Here, the Court recognizes that plaintiffs’ FOIA litigation was initiated to obtain

documents that could be used in a separate civil lawsuit. But plaintiffs have made clear that their

interest in both the FOIA request and the separate lawsuit involving MOVES2014 was to challenge

the emissions factors and the potential oil industry influence underlying the EPAct study and its

conclusions. Pls.’ Mot. at 1. UAI contends that its “sole motivation for challenging the

MOVES2014 model in the D.C. Circuit was its belief that the model’s erroneous inputs could harm

human health.” Pls.’ Reply at 15. Most important, UAI was not requesting any monetary relief in

the civil case – it sought only vacatur of the model. 9 See Kansas v. EPA Brief at 61–62.

9 For this reason, UAI recognizes that it may be deemed to lack standing to challenge EPA’s release of MOVES2014. Pls.’ Reply at 15. 22 Thus, plaintiffs’ motives were not purely “personal” or “commercial” within the meaning

of the statute, although there may have been, as noted above, some potential commercial benefit

to the ethanol industry backers of plaintiff UAI’s work. The pending judicial challenge to the

MOVES2014 model did not supply a financial incentive to litigate the FOIA request without the

possibility for a fee award. But, because plaintiffs made it clear that they requested the documents

to aid their judicial challenge, the Court finds that these factors do weigh in some small measure

against plaintiffs, and all of these circumstances will bear on the Court’s discretion in fashioning

an award. See Reyes v. U.S. Nat’l Archives and Records Admin., 356 F. Supp. 3d 155, 165–66

(D.D.C. 2018) (where plaintiff used a FOIA request as a substitute for civil discovery, the Court

only granted minimal weight against the request for attorney’s fees because the award in the civil

litigation was minimal and the documents were important to thousands of other people).

C. Reasonableness of EPA’s Position

The fourth and final factor “evaluates why the agency initially withheld the records.”

Morley, 894 F.3d at 392. It requires the Court to evaluate whether defendant was “recalcitrant in

its opposition to a valid claim or otherwise engaged in obdurate behavior.” McKinley, 739 F.3d at

712 (internal citations omitted). “The question is not whether [plaintiff] has affirmatively shown

that the agency was unreasonable, but rather whether the agency has shown that it had any

colorable or reasonable basis for not disclosing the material until after [the plaintiff] filed suit.”

Davy II, 550 F.3d at 1163; see also Am. Immigration Council v. Dep’t of Homeland Sec., 82 F.

Supp. 3d 396, 407 (D.D.C. 2015); Judicial Watch, Inc. v. U.S. Dep’t of Justice, 878 F. Supp. 2d

225, 237 (D.D.C. 2012). If the government’s position in declining to release the records at issue is

“correct as a matter of law, that will be dispositive. If the Government’s position is founded on a

colorable basis in law,” however, “that will be weighed along with other relevant considerations

23 in the entitlement calculus.” Chesapeake Bay Found., Inc. v. U.S. Dep’t of Agric., 11 F.3d 211,

216 (D.C. Cir. 1993).

Plaintiffs maintain that defendant cannot make such a showing because it unjustifiably

withheld thousands of non-exempt records for months until plaintiffs filed suit, and it did not even

begin to conduct its search of electronic records until two months after the suit was filed. 10 See

Pls.’ Mot. at 16. Based on the undisputed chronology set forth above, the Court finds that

defendant has not provided any colorable basis in law for its delays, and thus this factor weighs in

favor of plaintiffs.

As the D.C. Circuit has explained, the fourth factor is meant to “incentiviz[e] the

government to promptly turn over – before litigation is required – any documents that it ought not

withhold.” Davy II, 550 F.3d at 1166 (Tatel, J., concurring). Courts in this district have held that

administrative delay and FOIA backlog do not form a “reasonable basis in law” for withholding

documents, because “this purpose would not be served if it were reasonable for agencies to

withhold documents for indeterminant periods of time because they have too many FOIA requests

and too few FOIA staff members.” Reyes, 356 F. Supp. 3d at 167–68 (where defendant did not

tell plaintiff that it intended to comply with her request until she filed suit 120 days after she

submitted her FOIA request, defendant did not present a reasonable basis in law for withholding

documents); see Am. Oversight v. U.S. Dep’t of Justice, 375 F. Supp. 3d 50, 67–69 (D.D.C. 2019)

(defendants did not have a reasonable basis for withholding documents that were eventually

10 For this statement, plaintiffs cite to the Declaration of Kathryn Sargeant. Pls.’ Mot. at 16. But the declaration indicates that EPA initiated the search in May to June 2015, while this suit was filed August 2015. Sargeant Decl. ¶¶ 24–34. The declaration indicated, however, that defendant did not conduct its responsiveness review of electronic records until January 2016. Id. ¶ 35 (“In January 2016, two collections of documents . . . were created to facilitate the review and processing of potentially responsive records.”). 24 produced due to a backlog or administrative issues); Elec. Privacy Info. Ctr. v. U.S. Dep’t of

Homeland Sec., 811 F. Supp. 2d 216, 236 (D.D.C. 2011) (where defendant did not provide plaintiff

with any information concerning the status of its FOIA requests and at no point informed plaintiff

of an administrative backlog or seek to extend its time to respond to the FOIA requests, defendant

did not present a reasonable basis in law for withholding documents).

Here, defendant should have at least informed plaintiffs that it intended to comply with

their request by May 14, 2015, at the latest. Revised FOIA Request; Compl. ¶ 32. But defendant

did not respond until June 15, and at that point, it requested to extend the deadline to February 15,

which would have been more than a year after the original FOIA request was submitted. On June

15, defendant informed plaintiffs of the reasons for the delay, which included inadequate staffing

staff, management, and legal resources. See Ex. P to Compl. [Dkt. # 1-1]. Afterwards, it stayed

in communication with plaintiffs regarding review of documents and production. But, by the time

the lawsuit was filed, only three documents had been produced, and defendant had told plaintiff

that it had yet to determine whether other records would be released and what records were exempt

from disclosure. Id.

While defendant did not ignore plaintiffs, and its behavior cannot fairly be described as

“recalcitrant” or “obdurate,” it was not especially responsive either. Given the time that elapsed

between plaintiffs’ FOIA request and the agency’s response, and the fact that the only reason

provided for the delay was lack of resources, the Court cannot find that the agency has asserted a

25 “colorable basis in law” for withholding documents. 11 See Bricker v. FBI, 54 F. Supp. 2d 1, 4

(D.D.C. 1999) (“[A]gencies should not be allowed to hide behind the FOIA backlog.”). Thus, the

Court finds that this factor weighs slightly in favor of plaintiffs.

Considering the four factors, then, plaintiffs are entitled to an award of attorneys’ fees.

III. Plaintiffs’ requested award will be reduced; the use of the higher Laffey matrix is unsupported and the hours expended were excessive.

Attorneys’ fees and costs are calculated by multiplying “the hours reasonably expended in

the litigation by a reasonable hourly fee.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc.,

136 F.3d 794, 801 (D.C. Cir. 1998). Courts have broad discretion in determining an appropriate

fee award and may modify the request based on the reasonableness of the desired amount and the

facts of the case. Conservation Force v. Jewell, 160 F. Supp. 3d 194, 203 (D.D.C. 2016), citing

Judicial Watch, 470 F.3d at 369. Plaintiffs bear the burden for establishing reasonableness.

Covington, 57 F.3d at 1107–08.

To establish reasonableness of hours spent, plaintiffs must submit “sufficiently detailed

information about the hours logged and the work done . . . to permit the District Court to make an

independent determination whether or not the hours claimed are justified.” Nat’l Ass’n of

Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). “Fees are not

recoverable for nonproductive time, nor . . . time expended on issues on which plaintiff did not

ultimately prevail.” Id. The court should consider “the relationship between the amount of the fee

11 Defendant maintains that because the Court ultimately ruled that its withholdings under certain exemptions were appropriate, that means its basis for withholding documents was reasonable. But those exemptions aside, defendant eventually released over four thousand records as a result of this action, and it has not provided any reasonable basis for withholding those records previously. See ACLU v. DHS, 810 F. Supp. 2d 267, 277 (D.D.C. 2011) (where the court upheld the exemptions claimed by defendant, the court found that defendants’ asserted reason of administrative backlog was not a reasonable basis for withholding the records defendant eventually produced). 26 [requested] and the results obtained.” See EPIC I, 999 F. Supp. 2d at 76; see also Hensley v.

Eckerhart, 461 U.S. 424, 436–37 (1983) (“The district court may attempt to identify specific hours

that should be eliminated, or it may simply reduce the award to account for the limited success.”).

Plaintiffs seek a total award of $189,288.40: $141,792.60 for litigation-phase attorneys’

fees; $400 in costs; and $47,095.80 in ‘‘fees-on-fees’’ for time spent negotiating and litigating

fees. Pls.’ Mot. at 2, 17. The award sought incorporates three reductions from the total amount of

effort expended: (1) the exclusion of work after the Court’s January 22, 2018 order that did not

lead to any further production; (2) a 75% reduction of document review fees “in an exercise of

reasonable billing judgment”; and (3) a 33.3% reduction of litigation fees to “reflect the denial of

one of [p]laintiffs’ three arguments on summary judgment.” Decl. of Adam R.F. Gustafson [Dkt.

# 71-2] (“Gustafson Decl.”) at 3. Plaintiffs have submitted affidavits from and time records for

two attorneys who spent a total of 624.3 hours on related work billed at rates from the Legal

Services Index-adjusted Laffey Matrix (“LSI Laffey Matrix”), a fee schedule for complex federal

litigation based on an attorney’s experience level. Gustafson Decl.; Decl. of James R. Conde [Dkt.

# 71-5] (“Conde Decl.”). Plaintiffs also provided the Court with a copy of a 2013 affidavit from

Dr. Michael Kavanaugh, who developed the LSI Laffey Matrix. Decl. of Michael Kavanaugh, Ex.

B to Pls.’ Mot. [Dkt. # 71-4] (“Kavanaugh Decl.”).

Defendant takes the position that plaintiffs’ requested award is unreasonable because (1)

full Laffey rates do not reflect the straightforward nature of this case; (2) plaintiffs cannot recover

for time spent reviewing produced documents; (3) plaintiffs spent unnecessary time drafting

memoranda challenging FOIA redactions; (4) plaintiffs spent excessive time on work related to

summary judgment; and (5) plaintiffs claimed excessive amounts of time spent on simple tasks.

Def.’s Opp. at 34–43. In addition, defendant argues that plaintiffs are not entitled to “fees-on-

27 fees,” or at least not the full amount requested, because the time spent on related motions was also

unreasonable. Id. at 43–45.

The Court finds that there is some merit to defendant’s arguments, and in its discretion, it

will award a reduced fee applying the reasoning set forth below.

A. Plaintiffs have not met their burden to establish that the requested rate is reasonable.

Plaintiffs bear the burden of establishing the reasonableness of the hourly rates charged by

their attorneys for services rendered in the underlying proceedings. Eley v. District of Columbia,

793 F.3d 97, 100 (D.C. Cir. 2015). “Whether an hourly rate is reasonable turns on three sub-

elements: (1) ‘the attorney’s billing practices,’ (2) ‘the attorney’s skill, experience, and reputation’

and (3) ‘the prevailing market rates in the relevant community.’” Id., quoting Covington, 57 F.3d

at 1107.

To establish the prevailing market rate, a plaintiff must “‘produce satisfactory evidence

– in addition to the attorney’s own affidavits – that the requested rates are in line with those

prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation.’” Eley, 793 F.3d at 100, quoting Blum v. Stenson, 465 U.S. 886, 895

n.11 (1984) (emphasis in original). Once the plaintiff has made its showing, the burden shifts to

the defendant to rebut the requested rate with “equally specific countervailing evidence.”

Covington, 57 F.3d at 1109–10.

Fee matrices are “one type of evidence that ‘provides a useful starting point’ in calculating

the prevailing market rate.” Eley, 793 F.3d at 100, quoting Covington, 57 F.3d at 1109. A fee

matrix is “a chart averaging rates for attorneys at different experience levels. For decades, courts

28 in this circuit have relied on some version of what is known as the Laffey matrix.” 12 DL v. District

of Columbia, 924 F.3d 585, 587 (D.C. Cir. 2019). The original Laffey matrix, which was created

in the 1980s, relied upon “a relatively small sample of rates charged by sophisticated federal-court

practitioners in the District of Columbia.” Id. at 587. Since then, it has been updated periodically

to reflect inflation. Two competing Laffey matrices have emerged – the Legal Services Index

(“LSI”) Matrix and the United States Attorney’s Office (“USAO”) Matrix – each adjusting for

inflation in different ways. Id. at 589. The rates included in the LSI Matrix are the higher of the

two. See id. at 591. While the LSI Matrix is designed to reflect the hourly rates charged by federal

court practitioners who litigate complex cases in Washington, D.C., the USAO Matrix has been

based, since 2015, on “data for all types of lawyers – not just those who litigate complex federal

cases – from the entire metropolitan area.” Id. at 587.

Plaintiffs seek to recover attorneys’ fees based on the LSI Laffey Matrix rates. Because the

D.C. Circuit deems fee matrices as “somewhat crude,” fee applicants must “supplement[] fee

matrices with other evidence such as ‘surveys to update the[m]; affidavits reciting the precise fees

that attorneys with similar qualifications have received from fee-paying clients in comparable

cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with

comparable qualifications handling similar cases.’” Eley, 793 F.3d at 101, quoting Covington, 57

F.3d at 1109.

Plaintiffs have supplied two affidavits from their attorneys, Adam R.F. Gustafson and

James R. Conde. Both are lawyers at Boyden Gray and Associates, the law firm that represented

plaintiffs. Gustafson stated that he is a 2009 graduate from Yale Law School and that he is a

12 The Laffey Matrix was first set forth in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other grounds, 746 F.2d 4 (D.C. Cir. 1984). Eley, 793 F.3d at 100. 29 member of good standing of the D.C. Bar. Gustafson Decl. ¶ 3. He further stated that he used the

LSI Laffey Matrix to calculate the lodestar amount and that “LSI Laffey rates are approved by the

D.C. Circuit.” Id. ¶ 8. Conde’s declaration does not address the relevant rates, but it sets forth

that he is a 2015 graduate of the Antonin Scalia Law School, an associate at the law firm, and a

member of good standing of the Virginia and D.C. Bars. Conde Decl. ¶¶ 1–7. Plaintiffs also

submitted a 2013 declaration, prepared for another case, from Dr. Michael Kavanaugh, the creator

of the LSI Matrix. The declaration explained the methodology of the LSI Matrix and why, in his

view, it is a more accurate representation of the prevailing market rates for complex federal

litigation in Washington, D.C. Kavanaugh Decl. ¶¶ 5, 15–25.

Plaintiffs’ evidence is insufficient to establish that “the requested [hourly] rates are in line

with those prevailing in the community for similar services by lawyers of reasonably comparable

skill, experience and reputation.” Blum, 465 U.S. at 895 n.11. The attorney affidavits do not recite

“precise fees that attorneys with similar qualifications have received” in other comparable cases.

DL, 924 F.3d at 589, citing Covington, 57 F.3d at 1109; see also Nat’l Ass’n of Concerned

Veterans, 675 F.2d at 1326 (“[W]hen the attorney states his belief as to the relevant market rate,

he should be able to state . . . that it was formed on the basis of several specific rates he knows are

charged by other attorneys.”). And, while Dr. Kavanaugh’s declaration is helpful in understanding

the method by which the rates in the LSI Matrix were calculated, it is not helpful in determining

whether the LSI Matrix should apply in this particular case. Eley, 793 F.3d at 104 (finding plaintiff

had not met the burden of justifying the reasonableness of the rates where her evidence consisted

of declaration from Dr. Kavanaugh explaining the LSI Laffey matrix, the lawyer’s affidavit

averring that she charged his paying clients the rates found in the LSI Laffey matrix, and the lawyer

pointed to four decisions that had utilized the LSI Laffey matrix in similar cases).

30 In accordance with the guidance in Eley, the Court finds that the evidence presented is

insufficient to establish that the market rate for FOIA practitioners in Washington, D.C. comports

with the LSI Matrix, and that plaintiffs have not met their burden to show that it would be

reasonable to apply the higher LSI adjusted Laffey Matrix rates in this case. Thus, the Court will

apply the lower USAO Matrix rates. See USAO Attorney’s Fees Matrix, 2015-2020, available at

https://www.justice.gov/usao-dc/page/file/1189846/download (last visited February 26, 2020).

Using these rates, based upon the time records submitted by plaintiffs’ attorneys, the new

totals would be:

• Litigation Fees: $187,103.70 13

13 The following charts show the Court’s calculations using the USAO Matrix rates regarding the litigation fees for each attorney:

Adam R.F. Gustafson - Litigation Fees Years Experience Hours Rate Total 2015-16 7 years 68.8 $332 $22841.6 2016-17 8 years 39.2 $395 $15484 2017-18 9 years 32.5 $410 $13325 2018-19 10 years 4.8 $417 $2001.6 145.3 $53,652.2

James Conde - Litigation Fees Years Experience Hours Rate Total 2015-16 1 year 136.3 $284 $38709.2 2016-17 2 years 230.75 $322 $74301.5 2017-18 3 years 61.2 $334 $20440.8 428.25 $133,451.5

31 • Fees-on-Fees: $35,574.10 14 • Costs: $400

Thus, the new lodestar amount is $223,077.80. After applying the same voluntary reductions

plaintiffs applied, 15 the litigation fees total $126,377.22, bringing the lodestar amount to

$162,351.32.

B. The Court finds some of the components of the litigation fee to be reasonable and others excessive.

1. Plaintiffs may recover for some time spent reviewing produced documents.

Defendant challenges some of the individual components of the total fee, including the

time spent reviewing records produced by the agency. Generally, plaintiffs should not recover

fees for time spent reviewing responsive documents, because the lawyers would have performed

that task even in the absence of litigation. See, e.g., Citizens for Responsibility & Ethics in

Washington v. U.S. Dep’t of Justice, 825 F. Supp. 2d 226, 231 (D.D.C. 2011) (plaintiff was “not

entitled to recover for time spent reviewing the documents it instituted this lawsuit to obtain”);

14 The following charts show the Court’s calculations using the USAO matrix rates regarding the fees-on-fees for each attorney:

Adam R.F. Gustafson – Fees-on-Fees Years Experience Hours Rate Total 2018-19 10 years 11.9 $417 $4962.3 2019-20 11 years 16 $510 $8160 27.9 $13,122.3

James Conde – Fees-on-Fees Years Experience Hours Rate Total 2018-19 4 years 38.8 $351 $13618.8 2019-20 5 years 24.2 $365 $8833 63 $22,451.8

15 The Court excluded fees for work performed after January 22, 2018, reduced document review fees by 75%, and reduced fees related to summary judgment by 33%. 32 Am. Immigration Council, 82 F. Supp. 3d at 412 (document review is a “post-relief” activity).

However, courts have granted some fees where document review is necessary to evaluate the

sufficiency of production or to challenge withholdings. See, e.g., Elec. Privacy Info. Ctr, 811 F.

Supp. 2d at 240 (“[I]t would seem critical to the prosecution of a FOIA lawsuit for a plaintiff to

review an agency’s disclosure for sufficiency.”); Elec. Privacy Info. Ctr. v. FBI, 72 F. Supp. 3d

338, 351 (D.D.C. 2014) (finding it “reasonable that EPIC’s counsel reviewed the 2,462 pages of

documents the FBI produced during this case to ensure the agency’s compliance with FOIA” and

court order).

Here, plaintiff seeks fees for document review that occurred after production was ordered

by this Court on February 12, 2016. See Attorneys’ Fees Summary, Ex. A to Pls.’ Mot. [Dkt # 71-

3] (“Conde & Gustafson Fees”) at 11; Def.’s Opp. at 38. Given that thereafter, plaintiffs filed an

opposition and cross-motion for summary judgment challenging the adequacy of EPA’s search, as

well as certain redactions and withheld documents, it is apparent that document review was, in

part, a necessary aspect of the litigation, and therefore, some fees are warranted given the ultimate

outcome of those issues. For those reasons, it was not unreasonable for the plaintiffs to propose

including a percentage of the time spent on document review in their calculation; plaintiffs seek

25% of the total amount of time spent on document review – or $ 7,458.10 – in the fee calculation.

2. The fees sought for work related to summary judgment briefing are excessive.

Defendant also questions the amount of time spent on the summary judgment briefing.

From April 25 to May 17, 2016, the lawyers devoted approximately 65.4 hours to researching and

drafting a FOIA “redactions memorandum” which was to be used in connection with summary

judgment proceedings. Conde & Gustafson Fees at 11–12. Between September 12 and October

33 15, 2016, 16 the attorneys spent approximately 90.2 hours drafting their combined cross-motion for

summary judgment and opposition to defendant’s motion. See id. at 5, 12–13; Def.’s Opp. at 40–

42. In the cross-motion, they argued that defendant’s invocation of Exemption 5 was not proper

and that defendant could not withhold two categories of documents. Pls.’ Cross-Mot. at 22–26.

They also opposed defendant’s motion on the grounds that the search was inadequate. Id. at 31.

On December 8, 2016, after re-reviewing its Exemption 5 withholdings and “in an effort to narrow

the issues,” defendant released an additional 188 responsive documents, see Suppl. Sargeant Decl.

¶¶ 16–17, thereby rendering plaintiffs’ arguments on these issues moot. Then, between March 6

through May 24, 2017, plaintiffs’ lawyers spent another 104.9 hours drafting the cross-reply in

support of their cross-motion for summary judgment. Conde & Gustafson Fees at 6, 13–14.

The Court finds that the request to be compensated for more than 260 hours of work related

to summary judgment is excessive in this case. Plaintiffs state that the redactions memorandum

was prepared to outline a strategy to defeat defendant’s withholdings. Pls.’ Reply at 22. So, that

memorandum was prepared to contest an issue that plaintiffs ultimately did not prevail on; the

applicability of the claimed FOIA exemptions on the released documents. It did not relate to the

main issue that moved forward: the adequacy of the search. Furthermore, plaintiffs were

ultimately unsuccessful in their argument regarding Exemption 5; the Court ruled that those

documents were properly withheld. So, no fees are warranted for that portion of the work, which

amounted to 14 pages (or almost 40%) of the 36-page opposition and cross-motion, and 7 pages

(or almost 30%) of the 24-page reply. Furthermore, spending over 100 hours – more time than

was spent on the motion itself – on a reply that was largely repetitive, and was only 24 pages long,

was also unreasonable. For these reasons, the Court will reduce the total award.

16 The motion was filed on October 14, 2016, but the exhibits were filed on October 15, 2016. 34 3. There are no grounds to conclude that the attorneys charged too much for simple tasks.

Defendant also complains that plaintiffs spent excessive time on “tasks that do not require

complex litigation strategy” such as sending and reading emails. Def.’s Opp. at 43. Defendant

does not specify the number of hours it believes were excessively dedicated to such tasks, but it

merely points to a few examples and argues, without citing any legal authority, that this warrants

a reduction in the award.

Courts in this district have reduced fees when administrative tasks have been duplicated

across several attorneys or otherwise improperly delegated to attorneys billing at higher rates. See

Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 197 F. Supp. 3d 290, 296 (D.D.C. 2016)

(court finds overstaffing to be “the main culprit” resulting in inefficiencies in plaintiff’s work and

chooses to discount the total amount rather than engage in line-by-line assessment). However,

there is no such issue here. A review of Gustafson’s time records shows that most of his work was

in the nature of oversight, coordination, and review – as expected of a senior attorney. The Court

does not find that tasks such as emailing clients or opposing counsel need to be isolated and struck

from plaintiffs’ requested award as they are necessary parts of litigating a claim. Id. at 295 (“The

goal in awarding fees is not line-item supervision of billing practices but ‘rough justice.’”).

Therefore, the Court will not reduce the amount on the basis that excessive time spent on

“simple” tasks.

4. Plaintiffs total award is excessive in light of the nature of the lawsuit and results.

Finally, considering all of the facts set forth above, the Court concludes, in its discretion,

that the requested award would be excessive when one considers such factors as the number of

issues involved, the fact that plaintiffs prevailed on some issues but not others, the fact that

35 plaintiffs were ultimately unsuccessful on portions of their cross-motion for summary judgment

and cross-reply, the complexity of the matters raised, the fact that plaintiffs pursued this action to

advance their own pending civil case, see section II.B, supra, and the number of documents

obtained as a result of the litigation. Therefore, the Court will award litigation fees in the amount

of $65,000.00. See EPIC I, 999 F. Supp. 2d at 76, citing Hensley, 461 U.S. at 436–37 (emphasizing

court’s discretion to either identify specific hours to eliminate or simply reduce the award).

C. Plaintiffs’ request for fees-on-fees is unreasonably high.

“While it is settled in this circuit that hours reasonably devoted to a request for fees are

compensable, fees on fees must be reasonable, and not excessive.” Elec. Privacy Info. Ctr. v. FBI,

80 F. Supp. 3d 149, 162 (D.D.C. 2015) (internal citations and edits omitted). The Court must

“scrutinize” fees-on-fees “to insure that the total is reasonable and . . . does not represent a windfall

for the attorneys.” Id. at 162–63, citing Boehner v. McDermott, 541 F. Supp. 2d 310, 325 (D.D.C.

2008); see also Baylor v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 959–60 (D.C. Cir.

2017) (Henderson, J., concurring).

Here, after adjusting the applicable rates to those found in the USAO Matrix, plaintiffs

seek $18,581.10 in ‘‘fees-on-fees’’ for 50.7 hours spent on the motion for attorneys’ fees and

$16,993.00 for another 40.2 hours of work required to reply to EPA’s opposition. See Pls.’ Mot.

at 2, 17; Pls.’ Reply at 24.

A total of $35,574.10 in fees-on-fees represents almost 30% of the claimed total litigation

costs (after the voluntary reductions were applied). Further, it is not clear why the reply brief took

almost as many hours – and therefore cost almost as much – as the application. For these reasons,

the Court finds that granting plaintiff a $35,574.10 fees-on-fees award would constitute an

unsupportable windfall. See, e.g., Baylor, 857 F.3d at 959 (noting that fee petition was excessive

36 in part because time spent on fee litigation “easily exceeded” work on the underlying claim).

Defendant’s objection to this portion of the fees in its entirety, though, is not well-taken given that

it briefed an objection to every single aspect of plaintiffs’ eligibility for and entitlement to fees, as

well as the reasonableness of the rates and the time expended. Thus, in an exercise of its discretion,

the Court will award $10,000.00 in fees-on-fees.

CONCLUSION

For the reasons set forth above, plaintiffs’ application for attorneys’ fees and costs is

granted in part and denied in part. Defendant must pay plaintiffs $75,400.00 in attorneys’ fees and

costs.

A separate order will issue.

AMY BERMAN JACKSON United States District Judge

DATE: February 27, 2020