Filed: Jun. 14, 2013
Latest Update: Feb. 12, 2020
Summary: district court's calculation of his hourly rate.-5-, to Moffat's various FOIA requests.e.g., Hutchinson, 636 F.3d at 16 (noting that $250/hour fee was, identical to those that the same lawyers had previously received, in civil rights cases).court's entry of summary judgment and the fee award.
United States Court of Appeals
For the First Circuit
No. 11-2472
SHANE O. MOFFAT,
Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise Jefferson Casper, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.*
David A.F. Lewis for appellant.
Jennifer A. Serafyn, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief.
June 14, 2013
*
Judge Boudin participated in the semble in this matter, but
did not participate in the issuance of the panel's opinion. The
remaining two panelists therefore issued the opinion pursuant to 28
U.S.C. § 46(d).
LIPEZ, Circuit Judge. Appellant Shane O. Moffat
commenced this action under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, seeking information from the Federal
Bureau of Investigation ("FBI") that he believes will exonerate him
from his conviction for first degree murder. The government
produced certain heavily redacted documents in response to the
complaint, and asserted various exemptions to disclosure of the
documents' full contents. The district court subsequently granted
the government's motion for summary judgment, finding that Moffat
had received all of the relief to which he was entitled. The court
also awarded Moffat attorneys' fees, after significantly reducing
both the number of hours that were compensable and the requested
hourly rate of Moffat's counsel.
Moffat appeals the district court's grant of summary
judgment, contending that the government's invocation of the FOIA
exemptions is evidence that it did not respond to his request in
good faith. He requests vacatur and remand of the district court's
order so that, among other things, he can take discovery concerning
his claims. He also appeals the fee award, challenging the
district court's calculation of his hourly rate. We affirm.
I.
A. Factual Background
In 2001, Moffat was tried for murder in the Commonwealth
of Massachusetts. During his criminal proceedings, the Hampden
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County District Attorney's office gave him a document that purports
to be an FBI 302 report dated December 9, 1999. Although the
record is silent as to how this document came into the district
attorney's possession, Moffat alleges that it came from the U.S.
Attorney's Office for the District of Connecticut.1 This mostly-
redacted document includes notes from an interview conducted by
federal law enforcement officials with an individual named Desmond
Wolfe, as a result of a proffer agreement between Wolfe and the
government. Although the document given to Moffat contains
substantial redactions, portions of the report reveal the names of
the agents and government prosecutors who were present at the
interview.2 During the interview, Wolfe recounted a conversation
he had with a man named "Screw" regarding "a murder that occurred
in Springfield." Screw told Wolfe that on the day of the murder,
he and another individual named "Shane," presumably referring to
Moffat, "licked a man down and now he died." The murder victim
owed Shane money and Screw witnessed Shane commit the murder.
Moffat was convicted of murder in October 2001 and
sentenced to life imprisonment. His conviction was based in part
on the theory that he was alone at the crime scene when the murder
1
The document contains faint and partially obscured lines at
the top margins of its pages, which list a fax number and the words
"US Attys Off." The document also discusses an interview that took
place at the U.S. Attorney's Office in Hartford, CT.
2
The record does not disclose what entity or individual made
the redactions in Moffat's version of the report.
-3-
took place. He alleges that the individual named "Screw" mentioned
in the FBI 302 report is an alias for a man named Everol Bartlet,
who actually committed the crime. Since the FBI 302 report places
Bartlet at the murder scene, Moffat asserts that it undermines the
prosecution's theory of the case.
On November 12, 2008, Moffat submitted FOIA requests to
the FBI at its main office in Washington, DC, believing that the
agency possessed information that may exonerate him. These
requests sought, inter alia, a copy of the FBI 302 report discussed
above, all records that mention or refer to Moffat, and any
documents that refer to Moffat in connection with the investigation
and prosecution of Desmond Wolfe. He later filed similar requests
with four FBI field offices after his request to the main office
was unproductive.
The FBI conducted initial searches but did not uncover
any responsive information; the main office and four field offices
denied Moffat's requests. Moffat filed administrative appeals of
those decisions, to no avail.
B. Procedural History
Moffat initiated this action in December 2009, appending
his copy of the FBI 302 report to his complaint as well as the
history of his communication with the FBI. As a result of the
litigation, the FBI conducted searches for files directly
pertaining to the subjects of Moffat's requests, as well as
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searches for any documents that included mere mentions of or
passing references to the subjects in question. The government
labels the former type of searches "main file searches," and the
latter "cross-reference searches." These searches located 20 pages
of responsive documents. The FBI states that its initial responses
to Moffat's requests had not produced these documents because, due
to resource constraints, it solely conducts main file searches in
response to administrative requests. Only when a complaint is
filed does the government initiate a cross-reference check. This
cross-reference check evidently uncovered the documents in
question.
On March 29, 2010, the FBI provided Moffat with 16 of the
20 pages, most of which were heavily redacted, and withheld the
remaining four pages as duplicates. Among the responsive documents
were portions of the December 9, 1999, FBI 302 report. The FBI's
version of the report contains more redactions than Moffat's
version, and blacks out the names of the FBI agents who conducted
the investigation, Wolfe's name, as well as most of the factual
details discussed above. The FBI invoked Exemptions 6, 7(C), and
7(D) to justify these redactions, relying on privacy concerns and
the need to protect confidential sources.
After producing these documents, the government moved for
summary judgment, asserting that it had conducted an adequate
search of its records and had produced all information responsive
-5-
to Moffat's various FOIA requests. The government also contended
that it was justified in asserting the claimed exemptions. Moffat
responded by challenging the adequacy of the government's search
methods. Additionally, he noted that he already had a less-
redacted version of the FBI 302 report in his possession, and that
the agency could not continue to withhold information that had
already been revealed. He contended that the government's ongoing
assertion of the exemptions "reflects their bad faith in the entire
process."
In a lengthy and thoughtful memorandum opinion and order,
the district court granted the government's motion, agreeing that
the FBI's search was adequate and that it had properly claimed the
exemptions asserted.3 The district court noted, however, that the
FOIA litigation had resulted in the production of certain documents
and that Moffat had therefore been successful in obtaining some
relief. As a result, the district court suggested that he may be
entitled to attorneys' fees under 5 U.S.C. § 552(a)(4) as a party
that had "substantially prevailed" against the government. The
court directed the parties to brief Moffat's entitlement to fees.
Moffat filed the requested brief, contending that he was
entitled to fees under FOIA, and seeking $14,500 in fees at an
3
The district court also granted summary judgment in favor of
a number of other federal agencies who were defendants in Moffat's
suit. Moffat has not appealed the court's order as to those
parties.
-6-
hourly rate of $225. Although the district court agreed that
Moffat was entitled to fees, it reduced the award to $1,600. There
were two components to this reduction. The court first lowered the
hours compensable by a substantial margin. With respect to the
hourly rate of Moffat's counsel, the court noted that he was
appointed by the Massachusetts Committee for Public Counsel
Services ("CPCS") to represent Moffat in his criminal proceedings,
of which the FOIA litigation was a part. Observing that the CPCS
reimbursement rate was $100 per hour, the court calculated his fee
award using that rate.
Moffat timely appealed the district court's entry of
summary judgment, as well as the fee award.
II.
A. Moffat’s FOIA Claims
Our review of the district court's grant of summary
judgment is de novo. See Soto-Padró v. Pub. Bldgs. Auth., 675 F.3d
1, 5 (1st Cir. 2012). We view the facts in the light most
favorable to the nonmoving party, and may uphold the district
court's order only if there is no genuine dispute of material fact
and the movant is entitled to judgment as a matter of law. See
Candelario del Moral v. UBS Fin. Servs. Inc. of P.R.,
699 F.3d 93,
99 (1st Cir. 2012).
Moffat asks that we vacate the district court's entry of
summary judgment and permit him to take any necessary discovery,
-7-
which would presumably uncover more information responsive to his
FOIA requests. To that end, he raises two separate, but related,
arguments. The first challenges the government's invocations of
certain privacy- and confidentiality-related exemptions to justify
its redaction of the FBI 302 report. Moffat also contends that the
government responded to his FOIA requests in bad faith, thereby
suggesting that it continues to withhold information to which he is
entitled. We address each argument in turn.
1. The Exemptions
FOIA serves to expose the operations of federal agencies
"to the light of public scrutiny." Dep't of the Air Force v. Rose,
425 U.S. 352, 361 (1976) (citation omitted) (quotation marks
omitted). The statute embodies a broad policy in favor of
disclosure, reflecting the notion that "promot[ing] an informed
citizenry . . . is vital to democracy." Carpenter v. U.S. Dep’t of
Justice,
470 F.3d 434, 437 (1st Cir. 2006). Nevertheless, there
are nine categories of exemptions, which permit the government to
withhold documents that are otherwise responsive to the request.
See 5 U.S.C. § 552(b);
Maynard, 986 F.2d at 554. The nine
exemptions are to be construed narrowly, with all doubts resolved
in favor of disclosure.
Carpenter, 470 F.3d at 438.
We exercise de novo review over the district court’s
determination that withheld materials are exempt from disclosure.
See id. at 437. The agency bears the burden of demonstrating the
-8-
applicability of the claimed exemption. See State of Maine v. U.S.
Dep't of Interior, 298 F.3d 60, 65 (1st Cir. 2002).
As noted, the only document at issue in this appeal is
the FBI 302 report. The government claimed three exemptions as to
this report, namely Exemptions 6, 7(C), and 7(D). See 5 U.S.C. §
552(b)(6), (7)(C), (7)(D). The district court discussed only
Exemptions 7(C) and 7(D), and we follow suit.4
a. Exemption 7(C)
Exemption 7(C) permits the government to withhold
information "compiled for law enforcement purposes" when the
release of that information "could reasonably be expected to
constitute an unwarranted invasion of personal privacy." Id. §
552(b)(7)(C). The exemption guards the privacy interests of a
broad range of individuals, including government agents, personnel,
confidential sources, and investigatory targets.
Maynard, 986 F.2d
at 566. The exemption also "protects a broad notion of personal
privacy, including an individual's interest in avoiding disclosure
of personal matters."
Carpenter, 470 F.3d at 438. "This notion of
privacy 'encompass[es] the individual's control of information
4
Exemption 6 applies to all "personnel and medical files . .
. the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." 5 U.S.C. § 552(b)(6). As Exemption
7(C) protects similar interests and shields a broader range of
information, we need not address Exemption 6 separately because
"all information that would fall within the scope of Exemption 6
would also be immune from disclosure under Exemption 7(C)." Roth
v. U.S. Dep't of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
-9-
concerning his or her person,' and 'when, how, and to what extent
information about them is communicated to others.'" Id. (quoting
U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 789, 762 (1989)).
The exemption requires a court to balance these privacy
interests against the public interest in disclosure. Maynard, 986
F.2d at 566 (citing Reporters
Comm., 489 U.S. at 762). This public
interest must be guided by FOIA's basic purpose, which is "to open
agency action to the light of public scrutiny." Reporters
Comm.,
489 U.S. at 772. This purpose is not "fostered by disclosure of
information about private citizens that is accumulated in various
government files but that reveals little or nothing about an
agency's own conduct."
Id. at 773.
In invoking 7(C) as to the FBI 302 report, the agency
sought to protect the privacy interests of a number of individuals,
including third party informants, FBI personnel, and people merely
mentioned in the course of the interview. The gravamen of Moffat's
argument is that the privacy interests the government seeks to
protect have been substantially reduced or even eradicated by his
possession of a less-redacted version of the FBI 302 report. As a
result, the diminished privacy interest is now strongly outweighed
by the public interest in disclosure.
This line of reasoning fails for two reasons. First, we
have previously stated that prior revelations of exempt information
-10-
do not destroy an individual's privacy interest. See Carpenter,
470 F.3d at 440 ("That information has been released to the public
domain, especially where the release is limited, has little bearing
on the privacy interest. Indeed, in modern society there is little
information that has not been released to another." (citations
omitted)); see also Rugiero v. U.S. Dep't of Justice, 257 F.3d 534,
545 (6th Cir. 2001) (stating that "no diminution of privacy
interests occurs despite the fact that the identifying information
is already publicly available"); Weisberg v. U.S. Dep't of Justice,
745 F.2d 1476, 1491 (D.C. Cir. 1984) (holding that prior disclosure
of information to Congressional committee did not "undermine[] the
privacy interests of these individuals in avoiding harassment and
annoyance that could result should the FBI confirm . . . the
presence of their names in the [relevant] documents"). The privacy
interests the government seeks to uphold remain as strong now as
they were before.5
On the other side of the balance, Moffat has not
identified a public interest powerful enough to outweigh the
substantial privacy interests at stake. The public interest FOIA
seeks to uphold is the right of citizens to understand and obtain
5
As a subsidiary argument, Moffat suggests that the
government is required to make a showing of actual harassment or
other harm in order to invoke Exemption 7(C). We have previously
rejected this contention. See New Eng. Apple Council v. Donovan,
725 F.2d 139, 142 (1st Cir. 1984) ("[T]he protection of exemption
7(C) is not limited to cases involving 'private facts' or an actual
showing of harassment or other harm to government officials.").
-11-
information about the workings of their own government. Maynard,
986 F.2d at 566. In Carpenter, we explained that "the innocence or
guilt of a particular defendant tells the Court 'nothing about
matters of substantive law enforcement policy that are properly the
subject of public
concern.'" 470 F.3d at 441 (quoting Neely v.
FBI,
208 F.3d 461, 464 (4th Cir. 2000)). But this is not to say
that information requested by a criminal defendant may never
implicate the public interest. For example, "[t]o the extent . .
. that any of the requested material would reveal how the
government responded to informants and others who offer
information," or "shed light on possible government misconduct,"
FOIA's purposes may be served.
Id.
Here, Moffat's only discernible interest in the requested
information is to challenge his murder conviction, and he has
failed to connect his deeply personal stake in this information to
a larger governmental function. While his reply brief states in
conclusory fashion that the requested information will "reveal a
method of federal law enforcement that is not readily apparent,"
this assertion is nothing more than speculation. He articulates no
reason why the names and identifying information of specific
individuals would shed any light on the conduct of the government.
To the extent that he implies the existence of some form of
government misconduct, the Supreme Court has said that "where . .
. the public interest being asserted is to show that responsible
-12-
officials acted negligently or otherwise improperly in the
performance of their duties, the requester must establish more than
a bare suspicion in order to obtain disclosure." Nat'l Archives
& Records Admin. v. Favish, 541 U.S. 157, 174 (2004). Rather, the
plaintiff must make a "meaningful evidentiary showing" that the
public interest would be served by disclosure.
Id. at 175.
Moffat's unsupported assertion does not suffice.6
Consequently, Moffat has failed to demonstrate that the
privacy interests the FBI seeks to protect have waned in strength
as a result of the release of a less-redacted version of the FBI
302 report, or that there is a significant public interest in the
requested information. Because this balance clearly favors the
government, we conclude that Exemption 7(C) was properly invoked.
b. Exemption 7(D)
Exemption 7(D) permits the withholding of information
collected for law enforcement purposes when such information "could
reasonably be expected to disclose the identity of a confidential
source." 5 U.S.C. § 552(b)(7)(D). The statute also protects any
6
Moffat repeatedly cites a single district court case,
Stonehill v. I.R.S., 534 F. Supp. 2d 1 (D.D.C. 2008), for the
proposition that our 7(C) analysis must consider the government's
prior disclosure. Stonehill, however, addressed a vastly different
set of facts, involving the government's withholding of the name of
an IRS agent under Exemptions 6 and 7(C) after that name had
already been revealed in prior litigation the plaintiff had
initiated against the government.
Id. at 5. Additionally, the
Stonehill court took pains to cabin its holding to the case's
unique facts.
Id. at 12.
-13-
"information furnished by a confidential source" if that
information was collected "in the course of a criminal
investigation."
Id. Unlike under 7(C), if the government
demonstrates that the information requested was given under an
assurance of confidentiality, 7(D) does not require a further
showing that privacy interests outweigh any public interest in
disclosure. New Eng. Apple
Council, 725 F.2d at 145. Thus,
"Exemption 7(D) provides greater protection to a narrower class of
persons than does 7(C)." Id.7
Moffat contends once again that any interest in
protecting confidential sources or information "evaporated" when
the Hampden County District Attorney's office provided him with a
less-redacted version of the FBI 302 report and that the government
was required to justify its continuing withholding in light of the
prior revelation. This waiver contention founders on our opinion
in Irons v. F.B.I., 880 F.2d 1446 (1st Cir. 1989) (en banc). In
that case, plaintiffs initiated a FOIA suit demanding files
concerning certain FBI informants who testified at the "trials of
alleged Communist leaders in the 1950s."
Id. at 1446. The
7
An assurance of confidentiality can be either express or
implied. New Eng. Apple Council, 725 F.2d at 145. Here, the
district court found that the information in the FBI 302 report was
given under an implied assurance of confidentiality, which can be
inferred from "generic circumstances" such as "the nature of the
crime investigated and [the informant's] relation to it." Dep't
of Justice v. Landano,
508 U.S. 165, 179, 181 (1993). Moffat does
not challenge this determination on appeal.
-14-
government invoked Exemption 7(D) in response, and plaintiffs
argued that the confidential sources had waived the FBI's right to
invoke Exemption 7(D) by testifying in open court concerning the
protected information. Id. at 1446-47.
After an exhaustive examination of the statutory text,
FOIA's legislative history, and assorted policy considerations, we
declined to read a waiver provision into Exemption 7(D)'s
straightforward language. The statute authorizes the withholding
of any "information furnished by a confidential source" in the
context of an ongoing criminal investigation.
Id. at 1449 (quoting
5 U.S.C. § 552(b)(7)(D)). "Neither this language, nor any other
relevant language," we concluded, "says anything about waiver."
Id. As a consequence, we held that "plaintiffs are not entitled to
information furnished to the FBI by confidential sources, beyond
what has been actually disclosed in the source's prior public
testimony."
Id. at 1457. This holding makes clear that Exemption
7(D)'s shield does not necessarily disappear when some fraction of
the information requested has come to light. The government
therefore retained the right to invoke Exemption 7(D) as to the FBI
302 report, notwithstanding the entry into the public domain of
some portions of the report.
Irons reserved the question of whether 7(D) continues to
apply to the specific information that has already been publicly
disclosed. See id. at 1448 ("[W]e are not considering the FBI's
-15-
refusal to make available information restating what the sources in
fact revealed at the . . . trials."). Although Moffat's case
superficially implicates similar facts, given that some of the
information the government seeks to shield has already entered the
public domain, we need not address whether 7(D) admits of a limited
exception regarding publicly-disclosed information. Even if this
possible exception to 7(D) applied, the most Moffat could obtain
would be a copy of the FBI 302 report that contains the exact same
redactions as the version he already possesses. Irons makes
crystal clear that this is the most he is even potentially entitled
to, and that the government may properly withhold any information
not already revealed. See id. at 1456-57. But that is not the
nature of Moffat's claim. His goal is to obtain information other
than what he already has, and nowhere does he suggest that his
claims would be satisfied if the FBI simply produced a copy of the
FBI 302 report that contains the same withholdings as the one in
his possession. Indeed, such an endeavor would serve no
discernible purpose in this case. Because Moffat does not argue
that the government should have provided him with a carbon copy of
his version of the FBI 302 report, we do not address his
entitlement to such a document.8
8
Even assuming that this limited public disclosure exception
to 7(D) remains viable, we doubt that it applies to Moffat's
circumstances given that the record is silent as to whether his
less-redacted version of the FBI 302 report was released with the
government's imprimatur. Cf. Irons, 880 F.2d at 1454 (explaining
-16-
For these reasons, the government validly asserted
Exemption 7(D) as to all the information redacted from the FBI 302
report.
2. Bad Faith
Moffat repeatedly asserts that the government's redaction
of the FBI 302 report is indicative of its "bad faith" handling of
his FOIA requests and its withholding of other responsive
documents. Although not always clear in their articulation,
Moffat's accusations of bad faith are a challenge to the adequacy
of the agency's search in response to his requests. Under FOIA,
adequacy is determined not by "whether relevant documents might
exist, but whether the agency's search was 'reasonably calculated
to discover the requested documents.'" Maynard v. C.I.A., 986 F.2d
547, 559 (1st Cir. 1993) (quoting Safecard Servs., Inc. v. S.E.C.,
926 F.2d 1197, 1201 (D.C. Cir. 1991)). "The adequacy of an
agency's search for documents under the FOIA is judged by a
standard of reasonableness and depends upon the facts of each
case."
Id. Adequacy "is generally determined not by the fruits of
the search, but by the appropriateness of the methods used to carry
out the search." Iturralde v. Comptroller of Currency,
315 F.3d
311, 315 (D.C. Cir. 2003).
that "there is no reason to apply the 'waiver' doctrine where not
only is there no indication that the sources actually wanted to
make public the information they did not in fact made public, but
also the agency itself does not want such disclosure").
-17-
The government bears the initial burden of showing that
it conducted an adequate search. As part of meeting this burden,
it may provide an affidavit describing the search it conducted in
response to the plaintiff's request. Id. at 314-15. "[I]f an
agency demonstrates that it has conducted a reasonably thorough
search, the FOIA requester can rebut the agency's affidavit only by
showing that the agency's search was not made in good faith."
Maynard, 986 F.2d at 560 (emphasis added); see also Oglesby v. U.S.
Dep't of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990) (stating that
agency has duty to make "a good faith effort to conduct a search
for the requested records").9 If the plaintiff demonstrates that
the agency acted with a lack of good faith in conducting the
search, summary judgment must be denied.10 See
Maynard, 986 F.2d
at 560.
9
Although the government asserts that Moffat had waived any
challenge to the adequacy of the FBI's search, his repeated
references to the government's bad faith are only fairly understood
as arguments about adequacy.
10
A successful challenge to the adequacy of the search could
result in a remand requiring the district court to reconsider the
adequacy issue, see Perry v. Block, 684 F.2d 121, 128-29 (D.C. Cir.
1982), or for the agency to offer "fuller enlightenment on [its]
procedures," Founding Church of Scientology of Wash., D. C., Inc.
v. Nat'l Sec. Agency,
610 F.2d 824, 838 n.108 (D.C. Cir. 1979), or
for discovery regarding the agency's processes, see Weisberg v.
U.S. Dep't of Justice,
627 F.2d 365, 371 (D.C. Cir. 1980).
Finally, a case may involve disputes that must be resolved via
factfinding. But see Margaret B. Kwoka, The Freedom of Information
Act Trial, 61 Am. U. L. Rev. 217, 249-56 (2011) (discussing rarity
of trials in FOIA cases).
-18-
Here, Moffat argues that his primary evidence of the
FBI's bad faith is the government's continuing assertion of
exemptions relating to the FBI 302 report, despite the previous
revelation of some of its contents. He purports to use the FBI's
treatment of the report as evidence of its bad faith handling of
his FOIA requests generally, and as an indication that the agency
continues to hide documents from him.
As an initial matter, we question whether an agency's
incorrect invocation of FOIA exemptions can ever serve as evidence
of bad faith. We are certain, however, that even if the agency
claimed an exemption in error, that fact alone does not establish
that the government's response lacked good faith, or that the
search was inadequate. The adequacy of a search focuses on the
reasonableness of the agency's response, not whether that response
was legally correct in every particular. See Church of Scientology
Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 230 (1st Cir. 1994).
Regardless of whether the exemptions inquiry and the
adequacy inquiry can ever overlap, we have already explained that
in this case, Exemptions 7(C) and 7(D) were appropriately applied
to the FBI 302 report. Consequently, there is no basis to conclude
that the government's redactions were unjustified or improper here.
Put another way, "[appellant's] prime example of bad faith on the
part of the government . . . amounts to nothing more than proper
application of the law." Rugiero, 257 F.3d at 545.
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In his reply brief, Moffat belatedly discusses a wholly
separate category of evidence in support of his bad faith argument.
Specifically, Moffat takes issue with the FBI's treatment of his
FOIA request at the administrative level and its refusal to conduct
a cross-reference search until after his complaint was filed.
Although Moffat discussed this category of evidence during the
summary judgment proceedings in the district court, his failure to
do so in his opening brief on appeal waives any argument based upon
the agency's initial handling of his FOIA requests. See, e.g., N.
Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45 (1st Cir. 2001)
("There are few principles more securely settled in this court than
the principle which holds that, absent exceptional circumstances,
an appellant cannot raise an argument for the first time in a reply
brief.").
Even if this contention was not waived, it has no basis
in the record. In response to Moffat's vague allegations of unfair
treatment, the government has come forward with uncontroverted
evidence that Moffat's FOIA requests were handled pursuant to
general FBI procedure. There is no evidence or even suggestion
that the government inappropriately refused to conduct a cross-
reference search at the administrative level, or that the
government's search was otherwise conducted in bad faith.
For all these reasons, Moffat has failed to raise a
triable issue as to the government's treatment of his FOIA request.
-20-
B. The District Court’s Fee Award
Under FOIA, a court may "assess against the United States
reasonable attorney fees" in any case "in which the complainant has
substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). Although
the district court concluded that Moffat had substantially
prevailed in this litigation, the court declined to assess fees at
the $225 hourly rate his counsel sought and instead approved a rate
of $100 per hour. Moffat has no dispute with the district court's
reduction of the hours compensable, but contends on appeal that the
district court employed an inappropriate measure of his attorney's
hourly rate.
We review the district court's rate calculation for abuse
of discretion. See Hutchinson ex rel. Julien v. Patrick, 636 F.3d
1, 13 (1st Cir. 2011). The reasonableness of a fee award is a
quintessential exercise of the district court's judgment.
Accordingly, "'an appellate court is far more likely to defer to
the trial court in reviewing fee computations than in many other
situations.'"
Id. (quoting Lipsett v. Blanco,
975 F.2d 934, 937
(1st Cir. 1992)).
"Reasonable hourly rates will vary depending on the
nature of the work, the locality in which it is performed, the
qualifications of the lawyers, and other criteria." United States
v. One Star Class Sloop Sailboat, 546 F.3d 26, 38 (1st Cir. 2008).
The party seeking fees bears the burden of "establishing the
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prevailing hourly rate . . . in the community for the performance
of similar legal services by comparably credentialled [sic]
counsel." Hutchinson, 636 F.3d at 16. Moffat's counsel submitted
an affidavit stating in cursory fashion that his typical hourly
rate was $225, without offering any indication that his years in
practice, his credentials, or his experience supported such a
figure. The affidavit also tells us nothing about counsel's
experience with FOIA litigation. These threadbare assertions are
wholly insufficient to warrant his claimed hourly rate.11
Moffat further asserts that the district court erred in
linking its hourly rate calculation to the $100 per hour rate used
to compensate CPCS attorneys for their criminal defense work. But
in light of Moffat's failure to proffer any evidence in support of
his hourly rate, we cannot say the court abused its discretion in
basing the fee award on the value that CPCS had placed on attorneys
representing indigent defendants. Cf. Andrade v. Jamestown Hous.
Auth., 82 F.3d 1179, 1190 (1st Cir. 1996) ("[T]he court is entitled
to rely upon its own knowledge of attorney's fees in its
surrounding area in arriving at a reasonable hourly rate.").
11
On appeal, Moffat cites cases that discuss the prevailing
market rate for civil rights attorneys in the Boston area. See,
e.g., Hutchinson, 636 F.3d at 16 (noting that $250/hour fee was
"identical to those that the same lawyers had previously received
in civil rights cases"). These general estimates do not show that
those rates were justified for this attorney's work in this
particular case.
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In conclusion, there was no abuse of discretion in the
district court's calculation of the fee award in this case.
III.
For the reasons stated, we affirm both the district
court's entry of summary judgment and the fee award.
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