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DEFENDANTS OPPOSITION TO
MOTION FOR ATTORNEYS FEES AND COSTS
Defendants respectfully submit this opposition to Plaintiffs Motion for Attorneys Fees
and Costs, Dkt. No. 36, in this Freedom of Information Act (FOIA) case. For the reasons
discussed below, Plaintiff is not entitled to fees or costs, and the Court should deny Plaintiffs
Motion.
FACTUAL BACKGROUND
I. The Parties
Plaintiff David Hardy is an attorney and internet blogger who disseminates information
relating to firearms law issues on the internet. Complaint 4. 1 Defendants are the Bureau of
1
Plaintiff has represented himself in FOIA litigation previously, see Hardy v. DOJ, No. 98-27
(D. Az.), and is currently representing other plaintiffs in separate FOIA litigation against ATF
pending before this Court, see Codrea v. ATF, No. 15-988-BAH (D.D.C.). Plaintiff would be
barred from recovering fees had he represented himself in this case, see Natl Sec. Counselors v.
CIA, 811 F.3d 22, 28 (D.C. Cir. 2016), so he retained attorneys Stephen Stamboulieh and Alan
Beck. Mr. Stamboulieh submitted a declaration in support of the attorneys fee request in the
Codrea litigation, see Codrea, No. 15-988, Dkt. No. 28-1, and he is currently representing one of
the Codrea plaintiffs in yet another FOIA suit against ATF, Savage v. ATF, No. 16-1212
(D.D.C.). In short, there is a tangled web of connections between a small cadre of firearms
activists and their efforts to recover fees through largely unsuccessful FOIA litigation.
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Alcohol, Tobacco, and Firearms (ATF) and the Office of Inspector General at the Department
of Justice (OIG).
On March 18, 2015, Defendant OIG received a FOIA request from Plaintiff seeking
[a]ny statements, surveys, or reports of interviews given to the Justice Department Office of
Inspector General in connection with IG Report No. I-2007-006 (The Bureau of Alcohol,
Tobacco, Firearms and Explosives National Firearms Registration and Transfer Record, June
responsive records. Id. 7. On February 26, 2016, OIG made a production to Plaintiffs counsel
consisting of portions of the responsive records that were directly quoted in the National
Firearms Registration and Transfer Record (NFRTR Report). Id. As Plaintiff notes in her
Motion, those records were almost completely redacted, Motion at 2 10, and accordingly
Plaintiff and OIG thereafter filed cross-motions for summary judgment. On March 22,
2017, the District Court issued a decision granting in part and denying in part Defendants
Motion for Summary Judgment and granting in part and denying in part Plaintiffs Cross-Motion
for Summary Judgment. See Dkt. Nos. 30, 31. Of the sixty documents at issue, the Court held
that 49 of the documents were protected from disclosure by FOIA exemption 5, as asserted by
OIG. See Mem. Op., Dkt. No. 31, at 15-19, 24-25, 30. As to eight of the documents, the Court
held that there was insufficient information on which to make a determination of the applicability
of Exemption 5 so the Court denied the cross-motions, without prejudice, as to those records.
See id. at 25-28, 30-31. Lastly, the Court held that Exemption 5 was inapplicable to three of the
2
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withheld documents. See id. at 19-24. The Courts rulings on the sixty withheld documents are
summarized as follows:
Following the Courts summary judgment ruling, OIG agreed to release the three
documents to which the Court held Exemption 5 inapplicable as well as five of the eight
documents as to which the Court held there was insufficient information to grant either partys
motion. Waller Decl. 8. The parties thereafter filed a stipulation of dismissal as to all claims
except for Plaintiffs claim for attorneys fees. See Stip. of Dismissal, Dkt. No. 35.
On March 30, 2015, Defendant ATF received a FOIA request from Plaintiff seeking
seven categories of records concerning opinions issued by ATFs Firearms Technology Branch,
rulings on National Firearms Act firearms, and other records concerning rulings or opinions
3
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(Chisholm Decl.) 2. ATF acknowledged receipt of the request on June 26, 2015. Id. 3.
ATF processed 804 pages in response to Plaintiffs request, producing 196 pages in full,
464 pages in part, and withholding in full 144 pages. Id. 6. The productions occurred on
Plaintiff did not challenge ATFs search or withholdings. See Pls Cross-Motion for
Summ. J., Dkt. No. 24, at 1 (agree[ing] that Summary Judgment is appropriate as to Defendant
Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) as it has finally complied with
Plaintiffs FOIA request). The Court therefore entered judgment in favor of ATF. See Mem.
On July 5, 2017, Plaintiff filed his Motion for Attorneys Fees and Costs seeking almost
ARGUMENT
In dealing with requests for awards of attorney fees under FOIA, a court must engage in a
two-step substantive inquiry. First it must determine, if a plaintiff is eligible for a fee award, and
then it must determine if the plaintiff is entitled to the award. See Brayton v. Office of the U.S.
Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011); Tax Analysts v. U.S. Dept of Justice, 965 F.2d
In order to demonstrate eligibility for an attorneys fees award, a plaintiff can show that it
has obtained relief through a judicial order or by making the agency voluntarily or unilaterally
change its position with respect to the plaintiffs FOIA request. See 5 U.S.C. 552(a)(4)(E).
Defendants recognize that authority exists holding that a FOIA plaintiff substantially prevails
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where a court issues a scheduling order requiring an agency to produce responsive documents by
Nevertheless, Plaintiffs Motion should be denied because even if Plaintiff can show he is
eligible for fees, he cannot show that he is entitled to them. Judicial Watch, Inc. v. U.S. Dept of
Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006) (Eligibility for fees does not necessarily mean
that a party is entitled to attorney fees under FOIA.). The entitlement inquiry examines (1) the
public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the
nature of the complainants interest in the records sought; and (4) whether the governments
withholding had a reasonable basis in law. Id. (citing Davy v. CIA, 550 F.3d 1155, 1159 (D.C.
Cir. 2008)). Ultimately, the decision on whether a plaintiff is entitled to attorneys fees rests in
the sound discretion of the district court. Church of Scientology v. Harris, 653 F.2d 584, 590
1. OIG
Plaintiffs Motion focuses primarily on the first factor the public benefit derived from
the case. The public benefit factor has been described as perhaps the most important factor in
determining entitlement to a fee award. Hernandez v. U.S. Customs & Border Prot. Agency,
No. 10-4602, 2012 U.S. Dist. LEXIS 14290, at *23 (E.D. La. Feb. 6, 2012). While any FOIA
disclosure hypothetically benefits the public by generally increasing public knowledge about the
government, this broadly defined benefit is not what Congress had in mind when it provided
for awards of attorney fees. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). Rather, the
public benefit factor speaks for an award [of attorney fees] when the complainants victory is
likely to add to the fund of information that citizens may use in making vital political choice.
5
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Id. Importantly, as Plaintiff acknowledges in his Motion, [p]ertinent to the Courts public
benefit factor analysis is the extent to which the information released is already in the public
domain. Motion at 4 (quoting Elec. Privacy Info. Ctr. v. FBI, 72 F. Supp. 3d 338, 346 (D.D.C.
2014)). As the D.C. Circuit has explained, whether documents are already in the public domain
is significant because it undermines any claim that the requesters use of FOIA had provided
public access to the documents. Morley v. CIA, 810 F.3d 841, 845 (D.C. Cir. 2016) (citing Tax
This last point is dispositive on the public interest question here. Plaintiff argues that
three of the documents produced by OIG demonstrate that BATFEs [sic] question the integrity
and accuracy of the NFRTR. Motion at 6; see also id. at 7 (the accuracy is heavily questioned
in the survey responses). But that information is already in the public domain. Specifically, the
NFRTR Report which was released publically in 2007 is filled with statements similar to
those referenced by Plaintiff. Indeed, Plaintiffs Motion itself quotes the Reports conclusion
that [t]he lack of consistency in procedures and the backlog in reconciling discrepancies,
combined with the technical issues, result in errors in the records, reports, and queries produced
from the NFRTR. These errors affect the NFRTRs reliability as a regulatory tool when it is
used during compliance inspections of federal firearms licensees. Motion at 5 (quoting NFRTR
Report at iii).2 And similar statements are repeated throughout the Report, including that
management and technical deficiencies contribute to inaccuracies in the NFRTR database, Ex.
1 at iii, that [i]ncomplete and inaccurate training could lead to errors in the NFRTR and in
decisions based on the NFRTR, id at v, that [t]he NFA Branch is not promptly correcting a
backlog of NFRTR errors identified during inspections of federal firearms licensees, id. at vi,
and that discrepancies between the NFRTR and inventories of federal firearms licensees were
2
The NFRTR Report is attached hereto as Exhibit 1.
6
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frustrating and time consuming for IOIs as well as disconcerting for licensees, id. at vi. For the
Courts convenience, these and many other similar remarks from the NFRTR Report are
In fact, each of the points from the released documents that Plaintiff cites in his
Report. For example, Plaintiff cites the results of a survey question asking how often a
discrepancy is due to an error in the NFRTR. Motion at 6-7. But that exact same information
In our interviews and survey, IOIs reported that discrepancies between licensees
inventories and the NFRTR record were prevalent. In our survey, 46.5 percent of
IOIs (139 of 299) reported that there was a discrepancy between the NFRTR
inventory report and the licensees inventory always or most of the time.
Further, 44.4 percent of IOI respondents (133 of 299) said that the discrepancy
was due to an error in the NFRTR always or most of the time. In comparison,
no IOI respondent reported that the error was always on the part of the licensee,
and only 2 percent (6 of 299) reported that the error was on the part of the
licensee most of the time.
Likewise, Plaintiff points to a released document noting that IOIs state that many
[Federal Firearms Licensees] are concerned about the accuracy of the information in the
NFRTR. Motion at 7. But the NFRTR Report repeatedly says the same thing, observing that
IOIs stated that many licensees were worried about any identified discrepancy, Ex. 2 at vii,
that discrepancies between the NFRTR and licensees inventories are frustrating and time
consuming for IOIs and are disconcerting for licensees who can be referred for criminal
investigation for violations of the NFA and GCA discovered in compliance inspections, id. at
26, and that the two NFATCA representatives and one federal firearms licensee we interviewed
were very concerned with the accuracy of the NFRTR, id. at 29.
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The same is true of other statements quoted by Plaintiff from the released records. One
such record notes that [e]rrors and discrepancies make ATF, as a whole, look inept, Motion at
8, and the NFRTR Report similarly states that discrepancies between NFRTR inventory reports
and licensee inventories make the NFA Branch look incompetent and can be disruptive to
licensees operations, Ex. 1 at 26. A released document states that the NFA Branch does not
always correct errors, even by the time of the next inspection, Motion at 8, and the Report
devotes multiple paragraphs to the same point, Ex. 1 at 27 (Some IOIs noted frustration over the
NFA Branchs failure to correct identified discrepancies in the NFRTR before a licensees next
compliance inspection.). One released document quotes an inspector discussing the need for
cleaning up of the NFRTR, Motion at 8, and the Report likewise states that many IOIs
stated that the existing data in the NFRTR should be cleaned up, Ex. 1 at 28. Finally, Plaintiff
century capability and observing that [y]ou are United States National Firearms Act Branch,
stop operating like a third world country Dept of Motor Vehicles office. Motion at 8. The same
quote, however, is already included in the NFRTR Report, as part of an entire section devoted to
reporting deficiencies in the NFRTR computer system. Ex. 1 at 33; see also id. at 32-39.
Aside from the three documents cited in Plaintiffs Motion and discussed above, Plaintiff
does not argue that any other released document contains information of public significance, nor
could he. See Motion at 6-9. In particular, the OIGs initial release in February 2016 consisted
of portions of records that were directly quoted in the NFRTR Report and, therefore, were
already in the public domain. Waller Decl. 7. Accordingly, the information that Plaintiff
contends establishes a public interest here has already been public for many years and cannot
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Lastly, Plaintiff also states that it is believed that the release of these documents will
lead not only to convictions being overturned but also for defendants to be able to attack the
validity and accuracy of the NFRTR, the likes of which will have far-reaching implications for
years to come. Motion at 9. Plaintiffs belie[f] is entirely speculative and, in any event,
baseless. See Aviation Data Serv. v. FAA, 687 F.2d 1319, 1323 (10th Cir. 1982) ([S]peculative
benefit[s] will not suffice.). Given that the NFRTR Report itself did not lead to convictions
being overturned, the release of the same information in other records will not have a different
outcome. Also, Plaintiff conveniently ignores the critical conclusion of the NFRTR Report that
[e]rrors or discrepancies in the NFRTR have not resulted in inappropriate criminal prosecutions
of NFA weapons owners and licensees and that OIG did not find evidence that errors in
NFRTR records caused inappropriate seizures or criminal charges against NFA weapons owners
or federal firearms licensees. Ex. 1 at 30-31. Plaintiff has failed to cite any information
revealed through the released records that undermines these conclusions by OIG.
2. ATF
Plaintiff makes only a half-hearted attempt to argue that ATFs production serves the
public interest. See Motion at 9-10. Plaintiff merely lists a series of vague and general topics to
which, he claims, some unidentified documents pertain. Id. Plaintiff has not attached any of the
records produced by ATF and he cites no evidence to support his assertions in his brief. ATF
produced 660 pages of records and it is unclear to which records Plaintiff is referring. In any
event, the topics referenced by Plaintiff were already addressed in the public domain there are
many documents associated with those topics readily available for public consumption.
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The one document that Plaintiff discusses with at least some particularity does not
contain information of public interest. Specifically, Plaintiff argues that a document contains an
opinion on whether a wife purchasing a firearm for her husband, after her husband receives a
delay response from NICS when purchasing a firearm from an FFL. Motion at 10 n.5. But
that document is a private letter ruling drafted in response to questions from private citizens or
the industry and are only binding on the party that receives the ruling. See Chisholm Decl. 9-
10. Plaintiffs argument that this document informs the public about how to navigate the
federal firearms law, Motion at 1, is incorrect as it applies only to the recipient party.
For these reasons, Plaintiff is incorrect that the records released by ATF are likely to add
to the fund of information that citizens use in making vital political choices. Motion at 10
(quoting Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995)). Generally, released
documents have an insufficient public benefit when they pertain to such highly particularized
interactions with an agency that non-participants would have only a limited interest in the
records as a means of learning what the agency was doing. In other words, a mere increase in
general public knowledge of governmental actions is generally not enough to show a public
benefit. Dorsen v. U.S. SEC, 15 F. Supp. 3d 112, 121 (D.D.C. 2014). It is simply not credible
to argue that the public has any interest in these documents, and Plaintiff plainly has not met his
burden on this factor. See Conservation Force v. Jewell, 160 F. Supp. 3d 194, 207 (D.D.C.
2016) (plaintiff bears burden of proof on motion for attorneys fees). Indeed, even Plaintiffs
declarant does not opine that the ATF records provide any public benefit. See Declaration of
Eric Martin Larson, Dkt. No. 36-4, 8 (concluding only that records released by OIG provide a
3
The Court should strike the Larson Declaration because his opinions exceed the scope of
permissible lay opinion testimony. See Fed. R. Evid. 701. Plaintiff has not sought to establish
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The remaining factors that courts consider in assessing entitlement include the
commercial benefit to the plaintiff, the nature of the plaintiffs interest in the records, and the
reasonableness of the agencys withholding. McKinley v. Fed. Housing Fin. Agency, 739 F.3d
707, 711 (D.C. Cir. 2014). The second and third factors are closely related and are generally
considered together. See Barnard v. DHS, 656 F. Supp. 2d 91, 99 (D.D.C. 2009). When a
litigant seeks disclosure for a commercial benefit or other personal reasons, an award of fees is
usually inappropriate. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). Conversely,
where the plaintiffs interest is considered to be scholarly or journalistic, i.e., furthering a public
Here, Plaintiffs background as an attorney who focuses his work on Second Amendment
issues demonstrates that he has both a personal and commercial interest in the information he
requested. See supra n.1. In his motion, Plaintiff summarily asserts, without providing
supporting evidence, that his interest in the OIG records is scholarly because he published an
article online after the documents were received. Motion at 11. Apparently, the article
published by Plaintiff is nothing more than a post on Plaintiffs blog, Of Arms & the Law.
See Motion at 11 (citing blog post). The blog post merely summarizes the content of the
documents plaintiff received, information which, as explained above, was already in the public
domain. See Ex. 3. Such a summary of public information simply does not constitute a
Mr. Larson as an expert witness, but even if he had, Mr. Larsons opinions would still not be
admissible. To be admissible, the opinions of an expert must be the product of reliable
principles and methods and must be based on sufficient facts or data. Fed. R. Evid. 702. Mr.
Larsons declaration consists of a discussion of information obtained from sources other than this
FOIA case, followed by the unsupported conclusion that disclosure of the Work Papers for the
Department of Justice Office of Inspector General review of the NFRTR is in the public
interest, and critically important if the rule of law is to be maintained and respected. Larson
Decl. 8. Mr. Larsons personal belie[fs] are inadmissible whether offered as lay or expert
testimony.
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scholarly article, and therefore, does not support Plaintiffs assertion that his interest in the
material was purely scholarly. Moreover, the fact that the information contained in the blog post
was already in the public domain as a result of the OIGs public issuance of its report in 2007
further supports the conclusion that the information produced did not further any public interest.
Plaintiff also states that he provided the records to a criminal defense attorney to assist
with the defense of a defendant in a criminal prosecution. Motion at 11. Such conduct is neither
scholarly nor journalistic, nor did it advance a public interest. Indeed, it demonstrates a purely
personal, if not commercial, reason for wanting the information, which weighs against awarding
fees. See Cotton, 63 F.3d at 1120; Republic of New Afrika v. FBI, 645 F. Supp. 117, 121 (D.D.C.
1986) (stating that purely personal motives of plaintiff to exonerate its members of criminal
charges and to circumvent civil discovery dictated against award of fees). For these reasons,
consideration of the nature of Plaintiffs interest in the records weighs against an award of
attorney fees.
The final entitlement factor evaluates whether the agencys opposition to disclosure
had a reasonable basis in law, and whether the agency had not been recalcitrant in its opposition
This factor is dispositive where the agency has a colorable basis for initially withholding a
1. OIG
Contrary to Plaintiffs argument, the Courts summary judgment decision does not
establish that Defendants withholdings were unreasonable. That decision upheld the vast
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of the 60 documents at issue and holding the exemption inapplicable to only three documents.
See generally Mem. Op.; see also supra at 3 (presenting table summarizing summary judgment
rulings). As courts have held in similar circumstances, [b]ecause [OIG] prevailed on the
majority of its claims, its overall position was reasonable. People for the Ethical Treatment of
Animals v. USDA, No. 03-195, 2006 U.S. Dist. LEXIS 10517, at *12-13 (D.D.C. Feb. 27, 2006).
Moreover, the fact that the Court disagreed with OIGs position as to three of the 60
documents at issue does not mean that OIGs position was unreasonable or that it was asserted in
bad faith. Indeed, the D.C. Circuit has emphasized that the governments position need not be
correct to qualify as reasonable. Peter S. Herricks Customs & Intl Trade Newsletter v. U.S.
Customs & Border Prot., No. 04-377, 2006 U.S. Dist. LEXIS 77935, at *29 (D.D.C. Oct. 26,
2006) (citing Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)). The government need only
have a colorable basis in law for its legal position to be considered reasonable. McKinley, 739
F.3d at 712. Here, OIGs position as to these three documents was not unreasonable. OIG had
cited multiple decisions in support of its position and although the Court found those decisions
distinguishable, Mem. Op. at 24 n.12, OIG was not unreasonable in relying on them. Even
where an agencys position in withholding . . . documents [is] weak, that does not support a fee
award so long as the position is not baseless. PETA, 2006 U.S. Dist. LEXIS 10517, at *12-13.
OIG submits that its legal position as to these three documents was not weak and was certainly
not baseless. 4
4
OIGs argument at summary judgment was that the information in these three documents was
subject to Exemption 5 because it was part of the agencys process of selecting and analyzing
data to formulate the findings published in the final report. Reply Mem. in Supp. of Defs Mot.
for Summ. J., Dkt. No. 27, at 6. As support, OIG cited, inter alia, a decision holding that
documents use by agency employees in writing the Staff Report renders them part of the
deliberative process. Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194,
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Moreover, Plaintiff has failed to demonstrate that OIG was recalcitrant in its opposition
to a valid claim or otherwise engaged in obdurate behavior. McKinley, 739 F.3d 707, 712.
Although Plaintiff complains about the administrative delay in releasing records, absent
obduracy or bad faith, delay alone does not entitle a FOIA plaintiff to an award of fees and costs.
See, e.g., Read v. F.A.A., 252 F. Supp. 2d 1108, 1112 (W.D. Wash. 2003) ([D]elay due to
bureaucratic ineptitude alone is not sufficient to weigh in favor of an award of attorneys fees.);
Ellis v. United States, 941 F. Supp. 1068, 1080 (D. Utah 1996) (Since plaintiffs challenge is to
the governments delay in releasing the records rather than its substantive claims of exemption,
the reasonableness factor does not favor a fee award so long as the government did not engage in
obdurate behavior or bad faith.). Here, after an initial delay due to a clerical error, OIG issued
its response letter to Plaintiff on December 7, 2015 and then produced records on February 26,
2016. Waller Decl. 5-6. At best, Plaintiff has shown mild sluggishness by an agency busy
with FOIA requests, not bad faith. Frydman v. Dept of Justice, 852 F. Supp. 1497, 1508 (D.
Kan. 1994) (finding that although eight-month delay in disclosing document after it was
discovered demonstrated some sluggishness by agency, it did not show bad faith); see also
Mobley v. Dept of Homeland Sec., 908 F. Supp. 2d 42, 48 (D.D.C. 2012) ([T]he governments
compliance with the plaintiffs request so early in the litigation is not the sort of agency behavior
that Congress intended to prevent by awarding attorneys fees.). Accordingly, OIG was not
recalcitrant or obdurate.
2. ATF
As to ATF, Plaintiff did not challenge the agencys search or withholdings but instead
consented to the entry of summary judgment in ATFs favor. See Pls Cross-Motion for Summ.
206 (D.D.C. 2007). Even if this case was ultimately distinguishable, it at least appeared to
provide support for OIGs position.
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J., Dkt. No. 24, at 1; Mem. Op. at 1 n.1. Therefore, Plaintiff cannot and does not argue that
ATFs withholdings were improper. Instead, Plaintiffs argument is simply that ATF did not
produce records until after the litigation commenced. Motion at 12-13. But, as discussed above,
delay alone is not sufficient to show recalcitrance or obdurate behavior. See Read, 252 F. Supp.
2d at 1112; Ellis, 941 F. Supp. at 1080; Frydman, 852 F. Supp. at 1508; Mobley, 908 F. Supp. 2d
at 48. Moreover, ATF has shown that the delay in producing records to Plaintiff was caused by
an administrative backlog, not bad faith. See Chisholm Decl. 14-20. Accordingly, it cannot
be said that ATFs conduct was unreasonable, recalcitrant or obdurate in any way. See Dorsen,
15 F. Supp. 3d at 118-19 ([A]n agencys delay in response until after a lawsuit is filed may be
due to factors having nothing to do with the filing of the lawsuit but instead with administrative
delays due to backlogs of FOIA requests, the volume of responsive records requiring processing,
the necessity of inter-agency searches and responses, or a combination of these factors.). Under
For the reasons argued in the foregoing sections, Plaintiff is not entitled under applicable
law to any award of fees or costs. Without conceding any such argument, Defendants maintain
further that Plaintiffs fee award request is excessive and unsupported, and that even if the Court
were to determine Plaintiff is entitled to some fee award, the amount must be reduced
substantially.
In determining an appropriate fee amount, a court should only award fees based upon
attorney time shown to have been reasonably expended. See Citizens for Responsibility & Ethics
(CREW) v. U.S. Dept of Justice, 825 F. Supp. 2d 226, 231 (D.D.C. 2011). The starting point
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is to multiply the number of hours reasonably expended by a reasonable hourly rate, a calculation
that yields the lodestar. Bd. of Trs. of Hotel & Rest. Employees Local 25 v. JPR, Inc., 136 F.3d
794, 801 (D.C. Cir. 1988). [T]he reasonableness of a fee request must be evaluated in light of
the results obtained. Am. Civ. Liberties Union v. U.S. Dept of Homeland Sec., 810 F. Supp. 2d
267, 277 (D.D.C. 2011) (internal quotations and alterations omitted). The degree of success
obtained is the most critical factor in determining the reasonableness of a fee award. Farrar v.
Thus, even if the Court finds that Plaintiff is eligible for fees and is entitled to them, it
should not award the full amount requested by Plaintiff, or anything close to it. Plaintiff seeks
nearly $42,000 in fees for this litigation in which his degree of success was, at best, barely
minimal. Of the 60 documents in dispute at summary judgment, Plaintiff prevailed on his claims
concerning only three. See Mem. Op. at 19-24. In contrast, the Court upheld OIGs
withholdings as applied to 49 of the 60 documents, and denied both parties motions for
summary judgment as to eight of the documents (of which OIG agreed to discretionarily release
If a plaintiff achieves only limited success, it is within the courts discretion to reduce
the award of fees. Elec. Privacy Info. Ctr. v. U.S. Dept of Homeland Sec., 982 F. Supp. 2d 56,
60 (D.D.C. Oct. 15, 2013); see also Barnard v. DHS, 656 F. Supp. 2d 91, 100 (D.D.C. 2009)
(amount requested was unreasonable when it appear[ed] to include hours for legal work as to
which [the plaintiff] was not successful); Natl Sec. Archive v. DOD, 530 F. Supp. 2d 198, 205
(D.D.C. 2008) ([a]warding [the plaintiff] its entire fee, and thus compensating it at least in part
for time spent on a losing claim, would be an abuse of discretion). The method of reduction . .
. that the D.C. Circuit has used when a plaintiff does not allocate time between claims, is to
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award a percentage of the fees sought equal to the percentage of pages spent arguing the
successful claims on the merits. Id. (citing Judicial Watch, Inc. v. U.S. Dept of Commerce, No.
05-5366, 2007 U.S. App. LEXIS 2337, at *2-4 (D.C. Cir. Jan. 31, 2007)). In EPIC, the court
reduced the requested fees by 6/7 because of the plaintiffs limited success at summary
judgment, after determining that the plaintiff dedicated 6 pages out of 42 of argument, or 1/7, to
Here, Plaintiff devoted only one paragraph, or about 1/3 of a page, in its 11-page
summary judgment motion to argument about the survey-related records on which he prevailed.
See Pls Cross-Motion for Summ. J., Dkt. No. 24, at 13. Accordingly, Plaintiff spent about 1/33
of his summary judgment brief on this issue. Therefore, any recovery for the time spent
litigating the merits of this case should not exceed 1/33 of those fees.
Also, OIGs initial production in February 2016 does not represent a success for Plaintiff
as even Plaintiff concedes that the production was almost completely redacted, Motion at 2
10, and the only information produced therein were direct quotes from the NFRTR Report,
Waller Decl. 7. Plaintiff cannot credibly contend that he should be compensated based on
OIGs voluntary production of this minimal, already-public information. In any event, only a
fraction of Plaintiffs fees occurred before the February 2016 production. See Motion, Exs. 7 &
8. The remainder of the fees are not attributable to that production and cannot be recovered as
Any fee award should be further reduced, first, because Plaintiffs time records reveal
17.8 hours spent on the review of documents produced by the agencies, which is non-
compensable. See CREW, 825 F. Supp. 2d at 231 (refusing to award fees for time spent
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Case 1:15-cv-01649-BAH Document 37 Filed 08/07/17 Page 18 of 19
reviewing records received in response to FOIA request because the cost of reviewing
documents produced in response to a FOIA request is simply the price of making such a
request).
In addition, the time sheets contain examples of excessive time spent on simple tasks.
For example, attorney Stamboulieh billed $79 for an entry described as Attention to entry of
reset deadlines by court, for which he spent two-tenths of an hour. See Motion, Ex. 7 (4/5/2016
entry); see also id. (billing 1/10 of an hour on 6/16/2016 for Attention to Court order resetting
deadlines). Reviewing an ECF notice resetting deadlines should take mere seconds, and is not
the sort of activity that courts consider compensable. As courts have held, [i]t is excessive to
charge for tasks of less than a minute. Audubon Socy of Portland v. U.S. Natural Res.
Conservation Serv., No. 10-1205, 2012 U.S. Dist. LEXIS 145724, at *13 (D. Or. Oct. 8, 2012)
(declining to award fees where plaintiff billed a tenth of an hour, i.e., six minutes, to review a
minute order from the court. The minute order was one sentence and would not have taken even
one minute to read.). Accordingly, the Court should deny these and any other excessive time
entries.
CONCLUSION
For the reasons set forth above, the Court should deny Plaintiffs Motion for Attorneys
Respectfully submitted,
CHANNING D. PHILLIPS
United States Attorney
D.C. Bar #415793
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Case 1:15-cv-01649-BAH Document 37 Filed 08/07/17 Page 19 of 19
By: /s/____________________
JOSHUA M. KOLSKY
Assistant United States Attorney
D.C. BAR #993430
Washington, D.C. 20530
Phone: (202) 252-2541
Email: joshua.kolsky@usdoj.gov
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