PAUL S. GREWAL, United States Magistrate Judge.
Plaintiff Mirsad Hajro ("Hajro") and Plaintiff James R. Mayock ("Mayock") (collectively "Plaintiffs") seek recovery of attorneys' fees and costs from Defendant United States Citizenship and Immigration Services ("USCIS"), T. Diane Cejka ("Cejka"), Rosemary Melville ("Melville"), and Janet Napolitano ("Napolitano") (collectively "Defendants"), pursuant to the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552(a)(4)(E). Having considered the parties' papers and oral arguments, the court GRANTS-IN-PART Plaintiffs' motion.
The long history of this case is detailed in the court's October 12, 2011 order denying-in-part and granting-in-part the parties' cross-motions for summary judgment.
In November 2007, Hajro filed a FOIA request with the USCIS's National Records Center to obtain a copy of his alien registration file after his application for naturalization was rejected on the grounds that he had provided false testimony. Hajro sought expedited processing of his request pursuant to USCIS's system of prioritizing FOIA requests. In 2007, USCIS implemented a three-track system for processing FOIA requests: "Track 1" for simple requests, "Track 2" for complex inquiries requiring additional time, and
Mayock was the plaintiff in a 1992 suit resulting in a settlement agreement ("Settlement Agreement") with the Immigration and Naturalization Service ("INS")
In March 2008, Mayock and Hajro filed suit against USCIS, Cejka, Melville, Napolitano, and Eric Holder in this court, seeking declaratory and injunctive relief under FOIA and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553, 702, 704, and 706. The parties each moved for summary judgment on the nine claims brought in the suit and this court proceeded to rule.
Holder prevailed on his summary judgment motion, and all claims against him were dismissed.
FOIA authorizes the court to "assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed."
Assuming plaintiffs have met the threshold eligibility requirement, the court must then determine whether they are entitled to fees. The court evaluates four factors: (1) "the public benefit from disclosure"; (2) "any commercial benefit to the plaintiff resulting from disclosure"; (3) "the nature of the plaintiff's interest in the disclosed records"; and (4) "whether the government's withholding of the records had a reasonable basis in law."
If the court finds plaintiffs are both eligible for and entitled to fee recovery, plaintiffs must provide the court with their fee bill "for its scrutiny of the reasonableness of (a) the number of hours expended and (b) the hourly fee claimed."
In their written objection to Plaintiffs' motion for attorneys' fees, Defendants argued that the court should stay the motion pending outcome of their appeal to the Ninth Circuit.
The court must confess that in light of their statements at the hearing, Defendants' present position is not entirely clear. But understanding that Defendants in any event believe Plaintiffs' request is premature, the court begins by noting it "has broad discretion to stay proceedings as an incident to its power to control its own docket."
Karuk is distinguishable. There, the plaintiff had lost or settled all of its claims and had appealed the claims on which it had lost.
Before determining Plaintiffs' eligibility or entitlement to fees, the court must first address to which of Plaintiffs' claims Section 552(a)(4)(E) applies. As noted previously, Section 552(a)(4)(E) provides:
The issue before the court is the breadth of the phrase "any case under this section." Plaintiffs understandably seek a broad interpretation of the phrase, to include "any FOIA action whether the claim is based on FOIA, the APA, the Constitution, the violation of a settlement agreement, or any other legal tool used to improve FOIA processing."
To the extent that Plaintiffs' claims secured access to documents Defendants otherwise withheld, both the statute and the case law support application of Section 552(a)(4)(E).
The applicability of Section 552(a)(4)(E) to Plaintiffs' claims regarding the Settlement Agreement requires further discussion. Plaintiffs sought from this court a declaration that Defendants' policies and procedures for handling FOIA requests violated the Settlement Agreement. Obtaining a settlement agreement when a case is brought under FOIA satisfies the "substantially prevailed" requirement,
The Ninth Circuit held 42 U.S.C. § 1988, the fee provision for actions brought pursuant to § 1983, permitted attorneys' fees awards for parties who monitor compliance with settlement agreements they obtained in earlier actions in which they substantially prevailed.
Although Prison Legal News dealt with 42 U.S.C. § 1983, not FOIA, the reasoning applies here with equal force.
Plaintiffs argue that because Claims Seven, Eight and Nine are related to Defendants' violation of FOIA, Section 552(a)(4)(E) equally applies to them. Claim Seven involves the violation of Hajro's due process rights in his immigration hearing resulting from the delay in Defendants' response to his FOIA request. In Claim Eight, Plaintiffs successfully argued Defendants' Track 3 policy violated the APA's requirement of notice and comment before instituting a new rule. In Claim Nine, Plaintiffs did not prevail on their argument that Defendants' policy violated the Equal Protection Clause. Plaintiffs argue that the three claims arise out of Defendants' violation of FOIA, and that due process, equal protection, and APA causes of action are merely tools by which to enforce FOIA.
In support of this position, Plaintiffs point to two decisions: Mayock v. INS and Oregon Natural Desert Association v. Locke. The district court in Mayock v. INS, the primogenitor of this case, awarded attorneys' fees under Section 552(a)(4)(E) because it found INS had violated the FOIA through its pattern and practice of untimely responses.
In the second case, Oregon Natural Desert Association v. Locke, the Ninth Circuit interpreted the term "any case under this section" in Section 552(a)(4)(E) to include "a case challenging the validity of a regulation governing the processing of FOIA requests" and authorized an award of attorney fees under that construction.
Neither Mayock nor Locke stand for the proposition that violations of other rights — such as due process, equal protection, or protections afforded by the APA — that occur in parallel with FOIA violations permit an award of attorneys' fees under Section 552(a)(4)(E). In both cases, the courts found the defendants' actions violated the FOIA itself. In Mayock, INS's practice and pattern of delayed responses violated FOIA's time limit requirements,
Plaintiffs also point to the legislative history of Section 552(a)(4)(E) to suggest that their broad reading is appropriate. Congress added the attorneys' fees provision to FOIA in 1974 as a method "crucial to effectuating the original congressional intent that judicial review be available to reverse agency refusals to adhere strictly to the Act's mandates."
In 2007, Congress amended § 552(a)(4)(E) to extend its application to cases where plaintiffs who obtain relief through "a voluntary or unilateral change in position by the agency, if [their] claim is not insubstantial."
The legislative history, to be sure, supports a policy of authorizing attorneys' fees awards when violations of FOIA occur, most notably when agencies improperly withhold documents or act in an "obdurate" manner.
Because Plaintiffs have provided no case law that supports their broad reading of Section 552(a)(4)(E) and because the legislative history lends no further support to their interpretation, the court declines Plaintiffs' invitation to read expansively the recovery permissible under Section 552(a)(4)(E). Accordingly, Section 552(a)(4)(E) does not apply to Claims Seven, Eight, or Nine.
Having determined that § 552(a)(4)(E) applies only to Claims One through Six, the court turns now to determining whether Plaintiffs are eligible for attorneys' fees for these claims. Plaintiffs argue that because they prevailed on their summary judgment motions on Claims One through Six, they have substantially prevailed on the claims and are eligible for attorneys' fees.
As to Claims One and Two, Defendants argue only that § 552(a)(4)(E) does not apply to causes of action arising under the Settlement Agreement. The court has addressed and disposed of that argument; monitoring compliance is sufficient to warrant an award of attorneys' fees.
Defendants maintain that Plaintiffs did not substantially prevail on Claims Three, Four, Five, and Six, which involve their violations of FOIA's requirements for processing information requests. As Defendants explains, they had identified and provided to Hajro all of the documents relevant to his request by March 4, 2008 — six days before Hajro and Mayock initiated this action. As to the court's order that Defendants turn over the notes of an officer adjudicating Hajro's 2003 application, Defendants opine that it "was not information sought by Hajro," and so before the litigation even began, "Hajro obtained all of the records he sought."
Underlying Defendants' argument is an assumption that Claims Three through Six all concern improperly withholding responsive documents in violation of FOIA. Claims Three and Four, however, stem from separate causes of action: the delay in Hajro's receipt of the responsive documents and notice of Defendants' decision. Relief for these claims, therefore, is predicated on when Hajro received the responsive documents, not if he received the responsive documents.
In a similar vein, Claim Five concerned not the improper withholding of responsive documents but a separate cause of action: Defendants' pattern or practice of violating FOIA's time limits. Hajro's receipt of the documents prior to the initiation of this case does not affect whether he and Mayock substantially prevailed in their claim that in its furnishing of responsive documents Defendants had a pattern and practice of violating FOIA's time mandates. As with Hajro's claims regarding Defendants' delay in delivering responsive documents, they prevailed on their summary judgment motion on Claim Five, which resulted in injunctive relief requiring Defendants to end its pattern and practice of violating FOIA. Accordingly, Plaintiffs substantially prevailed on Claim Five and are eligible for attorneys' fees.
Claim Six is the only cause of action concerning Defendants' withholding responsive documents from Hajro. Defendants' argument, however, that the documents the court ordered it to turn over to
Defendants now claim that the document with the information relevant to Hajro's request does not exist, and so Hajro received all of the documents he requested in Defendants' initial disclosure.
Having determined that Plaintiffs substantially prevailed on Claims One through Six and are eligible for attorneys' fees, the court now turns to whether Plaintiffs are entitled to an award under Section 552(a)(4)(E). The court must consider at least four factors in its determination: (1) the public benefit from disclosure; (2) any commercial benefit to the plaintiff resulting from disclosure; (3) the nature of the plaintiff's interest in the disclosed records; and (4) whether the government's withholding of the records had a reasonable basis in law.
In considering the public benefit of actions brought under FOIA, courts should "take into account the degree of dissemination and the likely public impact that might result from disclosure."
Plaintiffs sought in Claims One and Two enforcement of the Settlement Agreement, which had been negotiated to end a previous pattern or practice of FOIA violations by INS, USCIS's predecessor. In Claim Five, Plaintiffs sought injunctive relief to end Defendants' pattern and practice of violating FOIA's time limit requirements. By obtaining injunctive relief mandating Defendants comply with its obligations under the Settlement Agreement and FOIA, Plaintiffs have benefitted other applicants seeking records to aid in disputes with Defendants. The public benefit factor weighs in favor of awarding fees for Claims One, Two, and Five.
As for Claims Three and Four, Hajro sought injunctive relief for potential future delays in any subsequent FOIA requests he may make in an individual capacity. Although the injunctive relief sought primarily benefited Hajro in his private capacity, it also established that in cases where due process concerns arise, such as citizenship status proceedings, Defendants must expedite their decisions on FOIA requests. The court thus finds the public benefit factor weighs in favor of awarding fees for Claims Three and Four.
In Claim Six, Hajro sought documents relating to alleged false testimony leading to the denial of his naturalization request. Plaintiffs do not provide specific arguments explaining how Hajro's request for documents for his personal dispute with Defendants provides a public benefit. They point only to the overarching goal of their case to alter Defendants' FOIA's policies. Hajro's request for documents for personal use may have initiated the ensuing claims, but Claim Six, on its own, does not provide a public benefit. The court thus finds the public benefit factor does not weigh in favor of awarding fees for Claim Six.
Courts must consider to what degree plaintiffs commercially benefit from their claims. "[I]f the potential for private commercial benefit was sufficient incentive to encourage ... pursuit of [a] claim, it would not be improper for [a] district court to deny [an] attorney's fees request."
Through Claims One, Two, and Five, Plaintiffs sought injunctive relief to correct the Defendants' practice and pattern of violating its obligations under FOIA. Hajro is a private citizen and nothing in the evidence before the court suggests he has any commercial interest in pursuing these claims. Although he may receive some personal benefit from the change in Defendants' policy, the public benefit from the injunctive relief he pursued reflects that he sought more than just to protect a private interest. Mayock is an immigration
As to Claims Three, Four, and Six, as noted above, Hajro is a private person and nothing in the evidence suggests Hajro has any commercial interests in pursuing claims for Defendants' failure to comply with FOIA's time limits or to comply with its FOIA obligations to supply responsive documents. Hajro's interest in those claims, however, was personal: he sought injunctive relief to protect his private interest in speedily obtaining documents to succeed in his naturalization dispute with Defendants. Although the lack of commercial interest weighs in favor of granting attorneys' fees for Claims Three, Four, and Six, the personal nature of Hajro's interest in the claims weighs against it.
The fourth factor courts must consider is to what degree the agency's position is reasonably based in the law. Under this criterion, "a court would not award fees where the government's withholding had a colorable basis in law but would ordinarily award them if the withholding appeared to be merely to avoid embarrassment or frustrate the requester."
Defendants, perhaps with good reason, do not provide an argument suggesting their pattern and practice of consistently straying from their obligations under FOIA had a reasonable basis in law. As the court noted in its order granting summary judgment to Plaintiffs on Claims One, Two, and Five regarding Defendants' pattern and practice of untimely responses, "the experiences of Plaintiffs establish a pattern or practice of violations" and Defendants failed even to assert that they were in compliance with FOIA's time limits.
Defendants argue, however, that as to Claims Three, Four, and Six concerning Hajro's personal causes of action for the delay and withholding of information, the delay and withholding were the result of "bureaucratic difficulty in handling" instead of bad faith. Such bureaucratic inefficiency, Defendants argue, cannot be the basis of an attorneys' fees award. Instead, according to Defendants, only obdurate behavior or bad faith will tilt this final factor in Plaintiffs' direction.
Hajro's claims, however, arise out of Defendants' practice of consistently violating
The court also notes that Defendants' inability to produce documents containing facts about Hajro's alleged false testimony suggests that Defendants' delays and withholding may not have been in good faith. Rather than admitting early in the FOIA procedures that they possessed no documents responsive to Hajro's limited request for evidence of his alleged false testimony, it produced documents without that evidence and claimed the rest were exempt. Hajro was forced to initiate this action to obtain from Defendants an admission that evidence upon which his naturalization application was denied was not within its records. Defendants may seek to claim that this is the result of bureaucratic inefficiency, but the evidence suggests its actions teeter on the edge of obduracy.
The court finds that for Claims Three, Four, and Six the fourth factor weighs in favor of granting attorneys' fees.
Having considered the weight of the four factors on each of Plaintiffs' eligible claims, the court finds that Plaintiffs are entitled to attorneys' fees for Claims One, Two, and Five because all four of the factors weigh heavily in favor of granting a fee award. The court finds that Plaintiffs are entitled to recover attorneys' fees for Claims Three and Four regarding the delay in responding to Hajro's request. The court found three of the four factors weighed in favor of awarding fees and the fourth factor, Hajro's personal interest in the claims, does not weigh strongly against.
The court finds that Claim Six concerning the withholding of Hajro's requested documents is also entitled to an award of attorneys' fees. The court notes Hajro's private interest and the lack of public benefit from the disclosure of the documents weigh against a grant of attorneys' fees and only two of the four factors weigh in favor of granting attorneys' fees: Defendants' lack of a reasonable basis in law for withholding the information and Hajro's lack of commercial interest. Although the factors are evenly split, the court weighs Defendants' unreasonable stance more heavily in light of the purposes of Section 552(a)(4)(E). Congress intended with the provision to incentivize plaintiffs to ensure open government and vindicate their rights by removing the obstacle of attorneys' fees.
Having concluded that Plaintiffs are eligible for and entitled to attorneys' fees under Section 552(a)(4)(E) for Claims One through Six, the court turns now to Plaintiffs' fee request. To determine a reasonable fee award, the court begins with the
Attorneys' fees awards may only include hours "reasonably expended" on the litigation.
Plaintiffs have requested fees for three attorneys as follows:
Kip Evan Steinberg
• 2007: 20.9 hours at $550 per hour = $11,495 • 2008: 176.1 hours at $550 per hour = $96,855 • 2009: 180.3 hours at $600 per hour = $108,180 • 2010: 22.2 hours at $600 per hour = $13,320 • 2011: 62.2 hours at $625 per hour = $38,875 • 2012: 27.6 hours at $625 per hour = $17,250 Total Hours: 489.3 Total Fees Requested: $285,975 Eric Walter Rathhaus • 2008-2011: 29.3 hours at $450 per hour = $13,185 Robert De Vries • 2008: 0.4 hours at $550 per hour = $220 • 2009: 4.8 hours at $600 per hour = $2880
Defendants object to Plaintiffs' fee requests as unreasonable.
Defendants argue first that Plaintiffs' hours are unreasonable because they include time spent on claims for which FOIA does not provide recovery, namely those claims arising under the Settlement Agreement, the APA, or the Constitution. Indeed, Plaintiffs' counsel's records do not differentiate among the various claims in this case. To the extent that the claims arising under the Settlement Agreement fall within the undifferentiated fees, the court has already determined Plaintiffs are entitled to fee recovery for those claims. The question remains, however, to what extent Plaintiffs may recover attorneys' fees for the three claims to which FOIA does not apply.
The due process, Equal Protection, and APA claims are analogous to state law pendant claims brought alongside constitutional violations under 42 U.S.C. § 1983.
The due process, Equal Protection, and APA claims arose from Defendants' untimely response to Plaintiffs' requests for documents under FOIA. They share a "common nucleus of operative facts" with the claims for the direct FOIA violations and for which Plaintiffs can recover attorneys' fees. The due process, Equal Protection, and APA claims derive from the same set of facts as the FOIA claims: Defendants failed to provide Plaintiffs with requested documents within the timeframe required by FOIA.
Here, the court has already found the Equal Protection claim stems from the same set of facts as Plaintiffs' successful claims, specifically Defendants' untimely response to Plaintiffs' FOIA requests. Turning to the second factor, the degree of success, the court finds that Plaintiffs achieved their goals of enforcing the Settlement Agreement and obtaining an injunction requiring Defendants' compliance with FOIA's mandates despite the fact that they failed to prevail on the Equal Protection claim. Accordingly, the court will not reduce Plaintiffs' fees on account of the unsuccessful Equal Protection claim.
Having determined Plaintiffs may recover for the due process, Equal Protection, and APA claims, the court turns to Defendants' second objection to fees they claim were billed in 2007 before Hajro submitted his FOIA request and received documents. Hajro filed his FOIA request on November 19, 2007.
In light of the fact that the events giving rise to most of the claims in this suit occurred only after Hajro filed his FOIA request and Defendants failed to timely respond, the court finds it appropriate to subtract from the fee award the hours billed before the request. The attorneys' fees award, therefore, is reduced by the 5.7 hours billed before November 19, 2007. Because one of the main complaints in this case was the untimeliness of Defendants' response to Plaintiffs' FOIA requests, and not just the quality of the response, the
Defendants also claim Plaintiffs' counsel engaged in block-billing and noncontemporaneous time-keeping, both of which, as Defendants point out, are disfavored forms of recording fees.
As to Defendants' block-billing argument, having reviewed the fee requests, the court agrees that Plaintiffs engaged in block-billing in some instances. The court has identified in the table below the dates, hours, and descriptions it has determined are unreasonable block-billing.
Date Hours Descriptions102 12/22/2007 7.0 Meeting with Mirsad Hajro. Read "Freedom of Information Act And Privacy Act Practice Before The Department of Homeland Security" Immigration Briefings. Legal research re FOIA and Settlement Agreement, first draft of complaint 1/26/2008 2.5 Meeting in Larkspur with JM to discuss and strategize about case and review breach letter, draft complaint, and legal research. Reviewed "The Open Government Act of 2007". Sent breach letter to Rosemary Melville and Diane Cejka. Emails to JM, Eric Sinrod, and Mirsad Hajro. 3/3/2008 2.7 Email to JM with Questions re his FOIA cases. Email exchange with Eric Sinrod re standing issue for James Mayock in original Mayock litigation. Telephone call with Mirsad Hajro re case. Discussed case strategy with litigator Matt White. Reviewed Mayock federal court decisions. 3/7/2008 6.5 Emailed Beverly Jacklin, editor at Interpreter Releases to obtain clear copy of document in July 27, 1992 IR at page 919 re DOJ policy on FOIA expedites. Reviewed email reply with attached document. Traveled to federal district court San Francisco to try to obtain copy of July 6, 1988 order by Court in Mayock case re standing and mootness. Met docket clerk Jeff Issac at clerk's office and reviewed original docket of original Mayock district court case. Discussed ordering case file from Federal Records Center. Prepared final edits on Complaint and Exhibits.
Because Plaintiffs failed to itemize the hours required for the varied tasks for these days, the court is unable to determine the validity of the requests.
To summarize, the court reduces the fee award by the 5.7 hours billed before November 19, 2007 and by 3.74 hours for block-billing. Defendants have not raised any other objections to Plaintiffs' fee requests and so the court will grant the remaining hours. The court finds that 479.86 hours were reasonably expended in this four-year-plus litigation resulting in injunctions requiring Defendants to comply with their FOIA obligations.
To determine a reasonable hourly rate, the court must consider "certain factors, including the novelty and difficulty of the issues, the skill required to try the case, whether or not the fee is contingent, the experience held by counsel and fee awards in similar cases."
Plaintiffs request fees ranging from $550 to $625 for lead counsel and $450 to $600 for associated counsel. Plaintiffs provide an affidavit from an expert who opines that having been informed "of the nature of the case, the qualifications of Plaintiffs' counsel, including their CV's, and the hourly rates they are requesting," in his opinion "the hourly rates requested ... are well in line with the non-contingent market rates charged for reasonably similar services by attorneys of reasonably similar qualifications and experience."
The court finds the requested hourly rate is reasonable. In similar cases where parties sought to monitor and enforce consent decrees, attorneys with the same number of years of experience as counsel here were awarded $575 for 27 years of experience and $430 for 10 years of experience.
The court also finds adequate documentation for the costs requested by Plaintiffs in the amount of $2,446.29.
Accordingly, the court GRANTS Plaintiffs' motion for attorneys' fees in the amount of $318,568
Section 552(a)(4)(E) applies only to Claims One through Six; Claims Seven, Eight, and Nine are not causes of action alleging violations of FOIA. Plaintiffs are both eligible for and entitled to attorneys' fees for Claims One through Six. Because Claims Seven through Nine are related to the eligible claims, Plaintiffs may recover attorneys' fees for those claims as well. Having reviewed the rates and hours, the court has determined that Plaintiffs are entitled to $318,568 in attorneys' fees and $2,446.29 in costs.
