BLOOMGARDEN v. UNITED STATES DEPARTMENT OF JUSTICE

Filing 151

MEMORANDUM OPINION in support of 150 Order granting in part and denying in part plaintiff's 145 Motion for Attorney Fees and Costs. See Opinion for details. Signed by Judge Ellen S. Huvelle on May 25, 2017. (Attachments: # 1 Fees Spreadsheet) (lcesh1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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Howard Bloomgarden,
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Plaintiff,
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v.
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United States Department of Justice
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Defendant.
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_________________________________________ )

Civil Action No. 12-0843 (ESH)

MEMORANDUM OPINION
Plaintiff Howard Bloomgarden sued the Department of Justice (“DOJ”) to compel the
production of records by the Executive Office for United States Attorneys (“EOUSA”) under the
Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552, et seq. (Am. Compl., Nov. 9, 2012,
ECF No. 11.) After years of litigation, the government produced 2,035 unredacted pages and
1,013 partially redacted pages of the 3,700-page file that plaintiff requested. (Pl.’s Mem. of P. &
A. in Supp. of Pl.’s Mot. for Atty’s Fees (“Pl.’s Mot.”), Sept. 29, 2016, ECF No. 145-1, at 8.)
Plaintiff now moves for attorney’s fees and costs pursuant to Fed. R. Civ. P. 54(d) and 5 U.S.C.
§ 552(a)(4)(E). (Id. at 1, 9.) The government disputes that plaintiff is entitled to fees and costs
and argues that, even if plaintiff were entitled to fees, the government should pay less than
plaintiff seeks. (Def.’s Mem. in Opp’n to Pl.’s Mot. for Atty’s Fees (“Def.’s Opp’n”), Oct. 26,
2016, ECF No. 147, at 5.)
Upon consideration of plaintiff’s motion, defendant’s opposition, and plaintiff’s reply
(Pl.’s Reply to Def.’s Opp’n (“Pl.’s Reply”), Nov. 7, 2016, ECF No. 149), and for the reasons
that follow, plaintiff’s motion will be granted in part and denied in part. The Court finds that

plaintiff is entitled to recover fees and costs pursuant to FOIA but less than the amount
requested.1 Accordingly, plaintiff will be awarded $45,518.23 in fees and costs.
BACKGROUND
This Court has described in detail the background of this case in its earlier opinions. (See
Mem. Op., Jan. 22, 2014, ECF No. 31, at 1–4; Mem. Op., Feb. 5, 2016, ECF No. 106, at 1–3;
Mem. Op. & Order, April 13, 2016, ECF No. 118, at 1–2; Mem. Op., July 19, 2016, ECF No.
134, at 1–2.) It will therefore limit its discussion to those of the facts that are relevant to
plaintiff’s current request for attorney’s fees.
Plaintiff filed this FOIA action in 2012 in order to obtain the disciplinary file of a former
Assistant United States Attorney in the United States Attorney’s Office for the Eastern District of
New York (“USAO-EDNY”). Plaintiff hoped that these documents would provide evidence of
prosecutorial misconduct, which plaintiff had raised as a defense to the California state murder
charges that had been brought against him. Plaintiff continued to press his FOIA request after he
was convicted of those charges in 2014, to support his motion for a new trial.
After plaintiff filed his FOIA request, the EOUSA searched without success for the
requested documents.2 When the government could not identify any responsive documents, it
moved for summary judgment. (Def.’s Mot. for Summ. J., Sept. 4, 2013, ECF No. 23.) On the
basis of “five [] sworn declarations from three government employees detailing their search for
responsive documents,” this Court found that the government reasonably discharged its duties

1

Plaintiff cites Fed. R. Civ. P. 16 as an alternative basis for a fee award. (Pl.’s Mot. at
14–15.) Because the Court concludes that plaintiff is entitled to fees and costs under FOIA’s
fee-shifting provision, the Court need not address this argument.
2

The EOUSA provides administrative support to the United States Attorney’s Offices,
including the coordination of responses to FOIA requests.
2

under FOIA and granted the government’s motion. (Mem. Op., Jan. 22, 2014, at 7.) Plaintiff
appealed. (Notice of Appeal, March 31, 2014, ECF No. 33.)
While plaintiff’s appeal was pending, another agency of the government located
documents responsive to plaintiff’s FOIA request, including a 35-page disciplinary letter.
Bloomgarden v. U.S. Dep’t of Justice, 2014 WL 6725736, at *1 (D.C. Cir. Nov. 13, 2014) (per
curiam). Accordingly, the Court of Appeals dismissed plaintiff’s appeal as moot and remanded
the matter to this Court for further proceedings. Id.
On remand, this Court ordered the parties to confer and file a joint status report. (Minute
Order, Jan. 14, 2015.) Plaintiff continued to seek disclosure of the entire disciplinary file, but the
government refused to release any of the requested documents. (Status Report, Jan. 28, 2015,
ECF No. 41, at 1–2.) After reviewing the parties’ status report, the Court ordered the
government to produce an unredacted copy of the 35-page disciplinary letter for in camera
review. (Order, Feb. 20, 2015, ECF No. 42.) At the March 4, 2015 status conference, the Court
set a briefing schedule for dispositive motions and ordered the government to produce a Vaughn
Index outlining the legal bases for withholding the disciplinary file. (See Minute Order, Mar. 10,
2015.) On May 26, 2015, plaintiff moved for summary judgment. (Pl.’s Mot. For Summ. J.,
ECF No. 49.) The government cross-moved for summary judgment on July 15, 2015. (Def.’s
Mot. For Summ. J., ECF No. 67).
As this Court noted,
[t]he Vaughn Index produced by DOJ was woefully inadequate, lumping
hundreds of pages together into single entries and inadequately explaining why
particular exemptions applied to particular documents. The Court was thus
unable to rule on the vast majority of documents in the disciplinary file, though
having reviewed certain documents in camera, it did rule that a 35-page
disciplinary letter . . . from the file was properly withheld in its entirety under
Exemption 6. The Court also noted that DOJ had failed to press its Exemption 5
argument in its motion, and thus that argument was deemed abandoned.
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(Mem. Op. & Order, April 13, 2016, at 2 (citations omitted).)
Because of the “complete waste of time and expense that creating a proper Index would
entail,” the Court proposed – and the parties agreed – that
(1) plaintiff would forego a proper Vaughn Index in exchange for (2) defendant
disclosing any public documents it had previously withheld and (3) consenting to
the in camera review of selected documents by Judge Rappe [who presided over
plaintiff’s California criminal case] for any possible Brady material related to
plaintiff’s California criminal case.
(Order, Feb. 17, 2017, ECF No. 110, at 1.) When the government indicated that it would
withhold all court documents originally filed under seal, the Court ordered the government to file
an index of the documents withheld pursuant to Morgan v. U.S. Dep’t of Justice, 923 F.2d 195
(D.C. Cir. 1991). (Minute Order, Nov. 16, 2015.) The Court ultimately rejected the
government’s Morgan claims and ordered the government to produce the court filings that had
been filed under seal some twenty years earlier. (Order, Jan. 5, 2016, ECF No. 100, at 1.)
Notwithstanding the Court’s proposal, plaintiff moved for a new Vaughn index, which
the government agreed to produce.
Because the new Vaughn Index [was] only necessary because of DOJ’s shoddy
initial effort, the Court included a provision ordering that DOJ not get a second
bite at the apple—having relied on Exemptions 6 and 7(C) initially, it would be
bound by those litigation choices moving forward. DOJ’s motion to amend that
Order followed, arguing that despite its admitted error, it should be allowed to
assert Exemptions 3, 7(D), and 7(F) to protect innocent third parties.
(Mem. Op. & Order, April 13, 2016, at 2 (citations omitted).) Granting the government’s
Motion to Amend, the Court allowed the government to raise new legal bases for withholding
documents in order to protect informants and other third parties who might otherwise be
prejudiced by disclosure. (Id. at 5.) At the same time, the Court ordered the government to
release to plaintiff all reasonably segregable information within the withheld documents. (Id.)

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In June 2016, the parties again cross-moved for summary judgment with respect to the
documents the government continued to withhold. (Pl.’s Mot. for Summ. J., June 8, 2016, ECF
No. 127; Def.’s Mot. for Summ. J., June 20, 2016, ECF No. 129.) Finding the government was
correct in withholding the remaining documents, the Court denied plaintiff’s motion for
summary judgment and granted the government’s cross-motion for summary judgment. (Mem.
Op., July 19, 2016, at 7.) This Motion for Attorney’s Fees followed plaintiff’s unsuccessful
Motion to Amend Judgment. (See Order, Aug. 12, 2016, ECF No. 141.)
ANALYSIS
FOIA provides that courts “may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any case . . . in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). As the D.C. Circuit has explained, the feeshifting statute’s language
naturally divides the attorney-fee inquiry into two prongs, which our case law has
long described as fee “eligibility” and fee “entitlement.” Judicial Watch, Inc. v.
U.S. Dep’t of Commerce, 470 F.3d 363, 368–69 (D.C. Cir. 2006). The eligibility
prong asks whether a plaintiff has “substantially prevailed” and thus “may”
receive fees. Id. at 368. If so, the court proceeds to the entitlement prong and
considers a variety of factors to determine whether the plaintiff should receive
fees. Id. at 369.
Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). If a
court finds that a litigant is both eligible and entitled to fees pursuant to FOIA, the court must
then consider whether the moving party has met its burden to establish that the requested fees are
reasonable. See Elec. Privacy Info. Ctr. v. United States Dep’t of Homeland Sec., 2016 WL
6879251, at *6 (D.D.C. Nov. 21, 2016) (“The party seeking fees has the additional burden of
establishing the reasonableness of the fees requested.”)
Here, plaintiff contends, and the government agrees, that he is eligible for fees under the
first prong of the attorney-fee inquiry. (Pls.’ Mot. at 9; Def.’s Opp’n at 5.) However, the
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government argues that plaintiff is not entitled to fees under the second prong of the inquiry and
that, even if he were, “the amount [plaintiff] seeks is disproportionate to the work that led to the
release of documents.” (Def.’s Opp’n at 5.)
I. PLAINTIFF’S FEE ELIGIBILITY
To be eligible for attorney’s fees pursuant to FOIA, the party seeking fees must have
“substantially prevailed” in the litigation. 5 U.S.C. § 552(a)(4)(E)(i). A party has “substantially
prevailed” by obtaining relief through either “a judicial order, or an enforceable written
agreement or consent decree” or through “a voluntary or unilateral change in position by the
agency, if the complainant’s claim is not insubstantial.” Id. § 552(a)(4)(E)(ii)(I)–(II). The
government does not dispute that plaintiff substantially prevailed in his FOIA lawsuit, and the
Court concludes that plaintiff is eligible to recover attorney’s fees and costs based on the courtordered release of documents. (See Def.’s Opp’n at 5.)
II. PLAINTIFF’S FEE ENTITLEMENT
To determine whether a FOIA plaintiff who is eligible for a fee award is also entitled to a
fee award, courts must assess four factors: “(1) the public benefit derived from the case; (2) the
commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and
(4) the reasonableness of the agency’s withholding.” Davy v. C.I.A., 456 F.3d 162, 166
(D.C. Cir. 2006) (“Davy I”) (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1093
(D.C. Cir. 1992)). While “[n]o one factor is dispositive” of the plaintiff’s entitlement to fees,
“the court will not assess fees when the agency has demonstrated that it had a lawful right to
withhold disclosure.” Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (“Davy II”) (citations
omitted). “The sifting of those criteria over the facts of a case is a matter of district court
discretion.” Tax Analysts, 965 F.2d at 1094 (citing Church of Scientology v. Harris, 653 F.2d

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584, 590 (D.C. Cir. 1981)). Below, the Court considers each factor in light of the particular
circumstances of this case.
A. The Public Benefit Factor
The first factor to consider when determining whether a FOIA litigant is entitled to fees is
the “public benefit.” This factor weighs in favor of an award of attorney’s fees “where the
complainant’s victory is likely to add to the fund of public information that citizens may use in
making vital political choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995)
(quoting Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)). “This first factor requires
consideration of both the effect of the litigation for which fees are requested and the public value
of the information sought.” Elec. Privacy Info. Ctr. v. F.B.I., 72 F. Supp. 3d, 338, 345 (D.D.C.
2014) (citations omitted).
Plaintiff does not contend that the records produced here “per se” benefit the public, but
instead he argues that “the public interest in the records sought is plainly significant” because
plaintiff believed those records could have revealed prosecutorial misconduct. (Pl.’s Mot. at 10–
11.) The government responds that the public interest in the documents that plaintiff requested
was negligible at best, as plaintiff hoped to further his efforts to secure a new trial in California
state court, not inform the public of government misconduct. (Def.’s Opp’n at 6.) The
government has the better argument.
Here, plaintiff’s success is not “likely to add to the fund of public information that
citizens may use in making vital political choices.” See Cotton, 63 F.3d at 1120. The D.C.
Circuit has made it clear that a “personal stake in using the requested records to attack [a FOIA
litigant’s] convictions does not count in the calculation of the public interest.” Oguaju v. United
States, 288 F.3d 448, 450 (D.C. Cir. 2002), vacated on other grounds, 541 U.S. 970 (2004),

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reinstated, 378 F.3d 1115 (D.C. Cir. 2004). Further, the records here implicated a single, lowlevel prosecutor, not widespread or high-level corruption in the government. As this Court has
noted, the vast majority of the 3,700-page file that plaintiff requested has “little if any value to
anyone, including plaintiff.” (Order, Feb. 17, 2016, at 1.) And, “even if the records [plaintiff]
s[ought] would reveal wrongdoing in his case, exposing a single, garden-variety act of
misconduct would not serve the FOIA’s purpose of showing ‘what the government is up to.’”
Oguaju, 288 F.3d at 451 (quoting Dep’t of Justice v. Reporters Comm. For Freedom of Press,
489 U.S. 749, 776 (1989)). The Court therefore finds that the public-interest factor weighs
against a fee award.
B. The Commercial Benefit and the Nature of Interest Factors
The second and third factors that courts must consider in determining a FOIA litigants
entitlement to attorney’s fees are the “commercial benefit” and the “plaintiff’s interest.” Because
the second and third factors are closely related, they are often evaluated together. Tax Analysts,
965 F.2d at 1095; see Fenster, 617 F.2d at 743 (“Two of the four criteria are closely related in
this case: the commercial benefit to the complainant and the nature of the complainant’s interest
in the record sought.”). “FOIA was fundamentally designed to inform the public and not to
benefit private litigants. . . . Accordingly, when a litigant seeks disclosure for a commercial
benefit or out of other personal motives, an award of attorney’s fees is generally inappropriate.”
Tax Analysts, 965 F.2d at 1095 (quotation marks and citations omitted); Fenster, 617 F.2d at
743.
With respect to the second factor, it is undisputed that plaintiff derived no commercial
benefit from his FOIA request. (See Pl.’s Mot. at 12; Def.’s Opp’n at 8–9.) With respect to the
third factor, plaintiff “acknowledges that he had a personal incentive to seek the documents at

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issue as he hoped that they might help him uncover federal-state prosecutorial misconduct
sufficient to grant him a new trial in his criminal case.” (Pl.’s Mot. at 12.) Plaintiff argues that,
notwithstanding his personal interest, “his criminal proceedings are a subject of consistent, longtime public interest” and that, were he to succeed in securing an evidentiary hearing for a new
trial in his criminal matter, “the private interest here and the public interest will eventually
converge.” (Id.) The government responds that the nature of plaintiff’s interest counsels against
a fee award for the same reasons that plaintiff’s FOIA litigation was not for the public benefit.
(See Def.’s Opp’n at 8–9.)
While it is true that plaintiff did not seek to gain a commercial benefit through his FOIA
suit, he sought to further his personal interest by trying to use the requested documents to
collaterally attack his conviction in California state court. As explained above, there is no public
interest in plaintiff’s attempt to uncover evidence that would absolve him of criminal liability.
See Oguaju, 288 F.3d at 450. Because of plaintiff’s personal motivation to seek the disciplinary
file, the Court finds that the third and fourth factors together weigh against plaintiff’s fee request.
See Tax Analysts, 965 F.2d at 1095.
C. The Reasonableness of the Agency’s Withholding Factor
The fourth factor courts must consider is whether the agency’s withholding of the records
“had a reasonable basis in law.” Id. at 1096. This factor “is intended to weed out those cases in
which the government was ‘recalcitrant in its opposition to a valid claim or otherwise engaged in
obdurate behavior.’” Id. at 1097 (quoting Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C. Cir.
1977)). Indeed, one of the “twin congressional goals” of FOIA’s attorney’s fees provision is to
provide “compensation for enduring an agency’s unreasonable obduracy in refusing to comply
with the Freedom of Information Act’s requirements.” La Salle Extension Univ. v. Fed. Trade

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Comm’n, 627 F.2d 481, 484 (D.C. Cir. 1980). If the government’s withholding of documents is
correct as a matter of law, there are no grounds on which to award fees. Davy II, 550 F.3d at
1162. However, if the government’s withholding of documents is “founded on a colorable basis
in law, that will be weighed along with other relevant considerations in the entitlement calculus.”
Id. (quoting Chesapeake Bay Found., Inc. v. U.S. Dep’t of Agric., 11 F.3d 211, 216 (D.C. Cir.
1993)).
Plaintiff argues that “[e]xcept as to thirteen documents that his Court authorized the
Government to withhold . . . , the Government’s withholdings had absolutely no basis in law and
needlessly, grotesquely, protracted this litigation.” (Pl.’s Mot. at 13.) Thus, given the statutory
goal to compensate litigants faced with unreasonable government obduracy, plaintiff reasons that
“this factor alone strongly weighs in favor of an award of fees.” (Id. (citing Cuneo, 553 F.2d at
1365–66).) With good reason, the government concedes that “it should have produced the public
and segregable documents in the file earlier.” (Def.’s Opp’n at 10.) However, the government
argues that this factor is nevertheless “neutral” because the Court “ordered the release of some
documents and upheld the withholding of others.” (Id. (citing Nkihtaqmikon v. Bureau of Indian
Affairs, 672 F. Supp. 2d 154, 173 (D. Me. 2009)).)
While the government was correct in its withholding of a number of documents, this
litigation was plagued by the government’s obdurate and recalcitrant behavior. The government
initially refused to release any documents, including public documents. When the government
first attempted to create a Vaughn index, it was “woefully inadequate,” so the Court was unable
to evaluate the government’s invocation of FOIA exemptions. (Mem. Op. & Order, April 13,
2016, at 2.) Further, the government neglected its duty to produce any reasonably segregable
materials from documents otherwise protected from disclosure, requiring the Court to order it to

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do so. As the Court noted when the government sought to raise new legal bases for withholding
documents, in violation of Maydak v. U.S. Dep’t of Justice, 218 F.3d 760 (D.C. Cir. 2000), the
government “needlessly complicated and prolonged this litigation.” (Mem. Op. and Order, April 13,
2016, at 4.) For the above reasons, the Court finds that the fourth factor weighs heavily in favor

of awarding fees.
D. Balancing the Factors for Fee Entitlement
The Court is mindful that no single factor is dispositive of the FOIA fee-entitlement
inquiry, and it considers the factors in light of the “twin congressional goals” of the FOIA feeshifting provision. See LaSalle Extension Univ. v. F.T.C., 627 F.2d 481, 484 (D.C. C.ir. 1980).
The first goal–“to encourage [FOIA] suits that benefit the public interest”–is not served by this
lawsuit. See id. Given plaintiff’s “sufficient private interest in the requested information,” he
“d[id] not need the additional incentive of recovering [his] fees and costs” to bring his FOIA suit.
See id.
The second goal of the FOIA fee-shifting provision is to provide compensation to a
successful litigant “for enduring an agency’s unreasonable obduracy in refusing to comply with
[FOIA’s] requirements.” Id. Congress did not intend a FOIA litigant who had a private interest
to bring the FOIA suit or received a pecuniary benefit from the lawsuit to collect fees “unless the
government officials have been recalcitrant in their opposition to a valid claim or have been
otherwise engaged in obdurate behavior.” Id. (quoting S. Rep. No.854, 93d Cong., 2d Sess. 19
(1974)). Because the government’s obduracy unnecessarily prolonged this litigation, the second
goal of the FOIA fee-shifting provision would plainly be served by an award of fees.

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In sum, even though the first three factors do not favor an award of fees, the Court finds
that plaintiff is entitled to recover a portion of his attorney’s fees, given the government’s
obdurate behavior that unnecessarily prolonged this litigation.
III. THE REASONABLENESS OF PLAINTIFF’S FEE REQUEST
Having found plaintiff eligible for and entitled to fees, the Court must now evaluate the
reasonableness of plaintiff’s requested fees and costs. Plaintiff “has the burden of establishing
the reasonableness of [his] fee request, and supporting documentation must be of sufficient detail
and probative value to enable the court to determine with a high degree of certainty that such
hours were actually and reasonably expended.” Role Models Am., Inc. v. Brownlee, 353 F.3d
962, 970 (D.C. Cir. 2004) (alteration, citations, and quotation marks omitted).3 Here, plaintiff
submitted detailed billing records showing dates, times, and the nature of the activities
performed, and according to the declarations of plaintiff’s counsel, those records accurately
reflect the work performed. (See Ex. A–C, Pl.’s Mot.)
“The usual method of calculating reasonable attorney’s fees is to multiply the hours
reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’
amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir.
1998). Once a court determines the proper lodestar amount, it has discretion to adjust that
amount for “nonproductive time or for time expended on issues on which plaintiff ultimately did
not prevail.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1499 (D.C. Cir. 1984) (quoting
Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)).
However, fees should not be excluded for such work unless they are “truly fractionable” from the

3

Although the Brownlee opinion dealt with a fee award under the Equal Access to Justice
Act, 28 U.S.C. § 2412, such “decisions are nonetheless instructive in construing the applicable
‘reasonable’ standard that applies to fee awards under FOIA.” Judicial Watch, 470 F.3d at 374.
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claims on which the litigant prevailed. Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1338
n.13 (quoting Copeland v. Marshall, 641 F.2d 880, 892 n.18 (D.C. Cir. 1980) (en banc)). “The
burden of justifying any deviation from the ‘lodestar’ rests on the party proposing the deviation.”
Copeland, 641 F.2d at 892. “When the Government seeks to rebut a rate or calculation or hours
billed, it must provide just as plaintiff must provide specific evidence in his application for
attorney’s fees—’equally specific countervailing evidence.’” Piper v. U.S. Dep’t of Justice, 339
F. Supp. 2d 13, 24 (D.D.C. 2004) (quoting Nat’l Ass’n of Concerned Veterans, 675 F.2d at
1326)).
Courts must also “consider whether the success obtained on the remaining claims is
proportional to the efforts expended by counsel.” George Hyman Const. Co. v. Brooks, 963 F.2d
1532, 1535 (D.C. Cir. 1992). If it is not, the “hours reasonably expended on the litigation as a
whole . . . may be an excessive amount.” Id. (quoting Hensley v. Eckerhart, 451 U.S. 424, 434
(1983)). Accordingly, courts in this Circuit routinely reduce compensable fees by a uniform
percentage to reflect the litigants’ actual success. See, e.g., Elec. Privacy Info. Ctr. v. D.H.S.,
982 F. Supp. 2d 56, 63 (D.D.C. 2013); Judicial Watch, Inc. v. U.S. Dep’t of Justice, 878 F. Supp.
2d 225, 239 (D.D.C. 2012).
Based on his billing records, plaintiff submits that the lodestar in this case is $154,885.00.
(Pl.’s Mot. at 14.) Plaintiff concedes that, because of the government’s proper withholding of
certain documents, the lodestar should be reduced and proposes a recovery of 35% of the fees
incurred through the November 2015 hearing and 90% of the fees incurred after that hearing,
plus costs. (Id.) Plaintiff therefore requests $75,654.23 in attorney’s fees and $1,901.23 in costs,
for a total award of $77,555.46. (Id.)

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The government does not challenge plaintiff’s lodestar methodology, nor does it
challenge the sufficiency of the billing records. Rather, the government argues that reductions
should be made for unproductive or unsuccessful work. According to the government, based on
plaintiff’s limited success, (1) plaintiff should not recover any fees incurred before June 30,
2014; (2) plaintiff should recover no more than 20% of the lodestar for work performed between
June 30, 2014, and February 17, 2016; and (3) plaintiff should not recover any fees incurred after
February 17, 2016. The government therefore proposes a maximum recovery of fees in the
amount of $28,272.62. (Def.’s Opp’n at 12.)4 The Court will now address each of these
proposed reductions.
A. Work Performed Before June 30, 2014
The government first argues that plaintiff should not recover any fees for legal work
performed prior to June 30, 2014. (Id.) This time period covers all legal work from the filing of
plaintiff’s complaint through the government’s discovery of responsive documents while
plaintiff’s appeal was pending before the D.C. Circuit. The government reasons that, because
this Court found that the government’s initial search for the documents was reasonable and
therefore granted the government’s motion for summary judgment, plaintiff is not entitled to any
fees until he began litigating the release of the file. (Id. at 12–13). The Court agrees.
Prior to discovering the disciplinary file, the government did not act obdurately or
otherwise unnecessarily prolong the litigation. To the contrary, as found by the Court in its
January 23, 2014 Memorandum Opinion, in addition to conducting an adequate search of the
files of the USAO-EDNY and EOUSA, the government “expanded its search for responsive

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The government does not appear to argue for any reductions in costs. On the basis of
plaintiff’s counsel’s representation that those costs were reasonably incurred in the litigation, the
Court will award the requested costs.
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documents . . . even though it was under no legal obligation to do so” by forwarding plaintiff’s
FOIA requests to the National Personnel Records Center, which stores the official personnel
folders of former government employees. (Id. at 8.) Indeed, the fact that the search did not
uncover the requested documents does not mean it was inadequate, and this Court found that
plaintiff’s claims to the contrary were unavailing. (Id. at 9.) On this basis, the Court granted
defendants’ motion for summary judgment. (Id. at 10.) Consequently, plaintiff did not prevail in
this first phase of litigation.
Further, the legal work performed in opposing the government’s motion for summary
judgment can be reasonably separated from plaintiff’s successful legal work. The responsive
documents were ultimately located by another federal agency in connection with a separate
FOIA request, and plaintiff was promptly notified. (Tr. of Status. Conf., March 4, 2015, ECF
No. 45, at 7:4–11.) It was not until the records were located that plaintiff could begin seeking
disclosure of the individual documents that the Court ultimately ordered the government to
release. Thus, the Court finds that plaintiff should not recover for any of the legal work
performed prior to June 30, 2014.
B. Work Performed Between June 30, 2014, and February 17, 2016
Next, the government argues that plaintiff should recover no more than 20% of the legal
fees incurred between June 30, 2014, and February 17, 2016. (Def.’s Opp’n at 13.) Plaintiff
argues that he should recover 35% of the fees incurred between June 30, 2014, and November 4,
2015 ($39,025.00) and 90% of the fees incurred between November 5, 2015, and February 17,
2016 ($26,001.00). (See Pl.’s Mot. at 14.)5 As explained below, the Court finds that plaintiff is

5

Plaintiff’s request is equivalent to approximately 46% of the fees incurred between June
30, 2014, and February 17, 2016: plaintiff’s fees in that time period total $140,390.00, and he
requests an award of $65,026.00 of those fees. (See Ex. D, Pl’s Mot.)
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entitled to recover only 30% of his legal fees incurred during the period from June 30, 2014, to
February 17, 2016. 6
In June 2014, the government notified plaintiff that it had located the disciplinary file.
As a result, the D.C. Circuit dismissed plaintiff’s appeal, and the matter was remanded to this
Court for further proceedings. Thereafter, the Court ordered the government to produce over
2,000 unredacted pages and over 1,000 partially redacted pages of the disciplinary file. In
particular, following the November 4, 2015 hearing, the Court ordered the government to
“disclose to plaintiff . . . any public documents contained in the exhibits to the disciplinary file,
with the exception of any Speedy Trial Act waivers.” (Minute Order, Nov. 4, 2015). On the
basis of that Order, the government produced 724 unredacted pages of documents. (See Pl.’s
Mot. at 9.) On January 5, 2016, the Court rejected the government’s Morgan claims for
withholding court documents that had been filed under seal and ordered the government to
“produce all withheld court records to plaintiff.” (Order, Jan. 5, 2016.) The government
subsequently released 84 previously sealed court documents and 1,114 additional pages of
unredacted public documents. (See Pl.’s Mot. at 9.) Finally, on February 17, 2016, the Court
ordered the government to produce a new Vaughn index and to “conduct a diligent segregability

6

Beyond “conced[ing] that a reduction in the lodestar is appropriate in light of the fact
that the Government prevailed on the documents that were submitted in camera and in light of
[plaintiff’s] high private interest in the documents at issue,” plaintiff does not explain why he
believes 35% is an appropriate recovery before the November 4, 2015 hearing or why he
believes 90% is an appropriate recovery thereafter. (See Pl.’s Mot. at 14.) Notwithstanding
plaintiff’s assertion that he deserves to recover a higher percentage of fees after the November
2015 hearing, the Court cannot find a credible reason in the record for this distinction, and
therefore it finds that plaintiff is entitled to recover a uniform percentage of the fees for the entire
time period of June 30, 2014, to February 17, 2016. Although the Court ordered the government
to produce documents only after the November 4, 2015 hearing, plaintiff’s legal work that
resulted in the release of documents and the government’s obdurate behavior that prolonged the
litigation occurred both before and after the November 4, 2015 hearing.
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review and disclose . . . whatever portion of the requested documents can be reasonably
segregated from the withheld material.” (Order, Feb. 17, 2016.) In response, the government
produced 1,013 partially redacted pages and 197 unredacted pages of documents that had
previously been withheld. (See Pl.’s Mot. at 9.)
While these released released did not serve the public interest, the government’s
obduracy during this time period protracted the litigation and resulted in plaintiff’s attorneys
billing over 500 hours during this time period. (See Ex. D, Pl.’s Mot.) The government
acknowledges that it should have released the public documents and performed the segregability
review that the Court ultimately had to order. (Def.’s Opp’n at 10.) The government further
acknowledges, in what can only be charitably viewed as an understatement, that its “delay in
producing documents may have prolonged the litigation.” (Id.)
Indeed, the government refused to produce any documents after the disciplinary file was
located, and its first attempt at a Vaughn index was “useless, deficient,” and “[a] complete waste
of . . . time.” (Tr. of Nov. 4, 2016 Hearing, ECF No. 81, at 7.) After the Court ordered that
certain documents be sent to the Judge presiding over plaintiff’s California state criminal
proceedings, the government unsuccessfully (and unnecessarily) sought clarification of that
Order, based on its purported confusion about whether this Court would “retain full control over
the documents.” (Def.’s Mot. to Clarify, Nov. 30, 2015, ECF No. 84.) Moreover, even after the
Court ordered the government to produce to plaintiff the public documents contained within the
disciplinary file, the government continued to withhold court documents that had been filed
under seal some twenty years earlier. The Court later rejected the government’s baseless
Morgan claims. (Order, Jan. 5, 2016, at 2.) Had the government simply turned over the public
documents, performed the segregability review, and created a legally sufficient Vaughn index,

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this lawsuit could have been resolved with far fewer than the over 500 hours plaintiff’s attorneys
spent during this time period.
However, plaintiff’s success here was not “proportional to the efforts expended by
counsel,” and the award plaintiff has requested is therefore “excessive.” See George Hyman
Const., 963 F.2d at 1535. Plaintiff concedes that he did not prevail on the release of the 35-page
disciplinary letter or on the documents that the government continued to withhold at the end of
the litigation. Further, as the government points out, the bulk of plaintiff’s legal work was spent
on issues on which plaintiff did not prevail. For instance, plaintiff devoted approximately one
page of his 22-page motion for summary judgment to his argument that the public documents
from the disciplinary file should be released. (See Pl.’s Mot. for Summ. J., May 26, 2015, ECF
No. 57, at 22–23.) The Court agreed that the government should release those public documents.
(Order, Nov. 16, 2015.) It, however, was not persuaded by the reasoning of the other 21 pages of
plaintiff’s arguments in his first motion for summary judgment.
Plaintiff also spent time raising unproductive and unnecessary issues during this time
period. For instance, even after the Court had announced its ruling as to the 35-page disciplinary
letter in two separate hearings, plaintiff suggested that the ruling was merely “tentative,”
requiring this Court to issue a Memorandum Opinion to “dispel any further doubt.” (Mem. Op.,
Feb. 5, 2016, at 3.) Plaintiff also moved for a new Vaughn index, even though the Court
proposed–and the parties agreed–that plaintiff would forego the index in exchange for the
disclosure of previously withheld public documents and the transmission of certain documents to
Judge Rappe in California. (See Order, Feb. 17, 2017.)7 However, that unproductive legal work

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The government, however, did not oppose production of the Vaughn index, so the Court
ultimately granted the motion. (Order, Feb. 17, 2016.)
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would be nearly impossible to excise from plaintiff’s billing records, as they were lumped
together with plaintiff’s successful motion for a segregability review. (See Pl.’s Mot. for Vaughn
Index & Segregability Review, Jan. 25, 2016, ECF No. 105.) On the basis of plaintiff’s limited
success, the Court finds that a reduction of 33% is appropriate.
A further wholesale reduction in the fee award is justified by the duplication of attorney
efforts in this matter. It was unnecessary for plaintiff to have three attorneys working
simultaneously on his case, especially where all three attorneys attended hearings and consulted
on each court filing. Given that the legal issues were not particularly complex, one attorney well
versed in FOIA litigation could have adequately represented plaintiff in this matter. Using the
November 4, 2015 hearing as an example, the duplicative billing is clear: Torrence Lewis billed
nearly 20 hours to prepare for the hearing and 12 hours to travel to and attend the hearing. (See
Ex. D., Pl.’s Mot.) Howard Anderson billed over 10 hours for the same, even though he did not
speak on the record at the hearing. (See id.; Tr. of Nov. 4, 2015 Hearing.) Scott Hodes billed
two hours for attending the hearing but, like Mr. Anderson, did not actively participate in the
proceedings in any way. Accordingly, an additional 33% reduction is appropriate to account for
the duplication of attorney efforts.
Plaintiff’s attorneys’ improper billing techniques also justify a lower recovery. Both
Howard Anderson and Torrence Lewis submitted bills for travel time at 100% of their normal
hourly rate, and Torrence Lewis engaged in block billing. (See, e.g., Ex. D, Pl.’s Mot., (billing
12 hours on Nov. 4, 2015, for “DC motions hearing; preparation and appearance (travel);
consultation with co-counsel and client regarding same”).) “[I]n this Circuit, travel time is
compensated at half of the attorney’s rate,” and it was therefore improper to bill travel time at
100% of the attorney’s rate. McAllister v. Dist. of Columbia, 21 F. Supp. 3d 94, 106 (D.D.C.

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2014). However, many of the travel entries are block billed, making specific reductions more
difficult. Block billing involves lumping multiple tasks into a single time entry, which can
“mak[e] it impossible to evaluate their reasonableness.” See Brownlee, 353 F.3d at 971. While
block billing is not “prohibit[ed],” courts often reduce fee awards as a result of it. See id.;
Bennett v. Castro, 74 F. Supp. 3d 382, 406 (D.D.C. 2014); In re InPhonic, Inc., 674 F. Supp. 2d
273, 289 (D.D.C. 2009); Summers v. Howard Univ., 2006 WL 751316, at *7 (D.D.C. Mar. 20,
2006). Even if tasks are adequately described, there is simply no way for the Court to assess
whether the time spent on each of those tasks was reasonable or to make reductions to certain
activities, like travel, when the tasks are lumped together. See Brownlee, 353 F.3d at 970 (the
court must “determine with a high degree of certainty that such hours were actually and
reasonably expended” (quoting In re Olson, 884 F.2d 1415, 1428 (D.C. Cir. 1989))). Thus,
given the difficulty of disambiguating the block billed entries either to reduce travel-time
recovery or to evaluate the reasonableness of the entries themselves, the Court will reduce
plaintiff’s recovery by an additional 4%.
In sum, while the government’s proposal of awarding 20% of plaintiff’s fees during this
time period would understate the degree of plaintiff’s success and would almost amount to a free
pass for the government’s obdurate behavior, plaintiff’s proposed award significantly overstates
his success, especially given the fact that the documents that were properly withheld were of far
greater importance than the thousands of pages that were produced. For the aforementioned
reasons, after reducing the award by 70% (33% for limited success, 33% for duplicative efforts,
and 4% for improper billing techniques), the Court will award 30% of plaintiff’s attorney’s fees
incurred between June 30, 2014, and February 17, 2016. See Fox v. Vice, 563 U.S. 826, 838

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(2011) (“The essential goal in shifting fees (to either party) is to do rough justice, not to achieve
auditing perfection.”)
C. Work Performed After February 17, 2016
Finally, the government argues that plaintiff should not recover any fees for legal work
performed after February 17, 2016. (Def.’s Opp’n at 13.) During this time period, the parties
filed final cross-motions for summary judgment, and plaintiff filed an unsuccessful Motion to
Alter Judgment. Plaintiff did not prevail on any issue after the Court ordered the government to
disclose any segregable portions of the documents at issue on February 17, 2016. (See id.) Nor
does plaintiff identify any issues on which he substantially prevailed after February 17, 2016.
(See Pl.’s Mot. at 9). With the exception of work performed preparing plaintiff’s fee petition, the
Court therefore agrees with the government that plaintiff is not entitled to fees for legal work
performed after this date.
The government prevailed on the parties’ final cross-motions for summary judgment, as
the Court found that it had properly withheld the remaining documents. (Mem. Op., July 19,
2016, at 7.) Further, plaintiff did not prevail on his Motion to Alter Judgment, which argued that
the Court’s July 19, 2016 Order dismissing the case failed to satisfy Rule 58(a)’s “separate
document” requirement. (Order, Aug. 12, 2016.) The legal work on the final summary
judgment motion and plaintiff’s Motion to Alter Judgment can be reasonably separated from the
legal work on which he prevailed. Accordingly, the Court will not award fees for legal work
performed after February 17, 2016, except for time spent preparing the present Motion for
Attorney’s Fees.

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D. Fees on Fees
The government’s arguments for fee reductions do not address plaintiff’s entitlement to
“fees on fees”—the time spent preparing the fee petition–even though that legal work occurred
after February 17, 2016. (See Pl.’s Reply at 5–6.) Plaintiff requests an award of $4,050.00, 90%
of the fees incurred as a result of the 17.5 hours spent preparing his Motion for Attorney’s Fees
and Reply Brief. (See Ex. D, Pl.’s Mot.; Pl.’s Reply at 6 n.2.) As with plaintiff’s period of
successful legal work, the Court will award 30% of plaintiff’s “fees on fees.” See EPIC, 982 F.
Supp. 2d at 61 (reducing the award of “fees on fees” work to the same extent the award for
merits work was reduced.)
The Court notes that the hours expended on the fee petition are overstated by the
duplication of efforts that justified a uniform reduction of plaintiff’s other fees. Torrence Lewis
billed 6.5 hours at $350 per hour ($2,275 total) for producing a time table. (See Ex. D, Pl.’s
Mot.) This was more than twice the amount of time that Howard Anderson billed for drafting
the memorandum in support of the motion itself, and more than four times the amount of time
that Scott Hodes spent compiling his time table. Mr. Lewis employed paralegals who would
have been more than capable of compiling the time tables of hours at a significantly lower hourly
rate.
CONCLUSION
Accordingly, plaintiff’s motion for attorney’s fees and costs will be GRANTED IN
PART AND DENIED IN PART. Plaintiff will be awarded $43,617.00 in fees and $1,901.23 in
costs, for a total recovery of $45,518.23. A separate Order accompanies this Memorandum
Opinion.

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/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: May 25, 2017

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