Navarro Hernandez v. U.S. Customs and Border Patrol
Filing
66
ORDER granting Plaintiff Joaquin Navarro Hernandez's 56 Motion for Attorney Fees and Costs. FURTHER ORDERED that Defendant Unites States Customs and Border Protection Agency shall remit payment to Plaintiff as stated within document. Signed by Judge Carl Barbier on 2/6/2012. (gec, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOAQUIN NAVARRO HERNANDEZ
CIVIL ACTION
VERSUS
NO: 10-4602
UNITED STATES CUSTOMS AND
BORDER PROTECTION AGENCY
SECTION: J(3)
ORDER AND REASONS
This matter is before the Court on Plaintiff Joaquin Navarro
Hernandez’s Motion for Attorneys’ Fees and Costs (Rec. Doc. 56)
pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552 .
The United States Customs and Border Protection Agency
opposes
Plaintiff’s Motion.
PROCEDURAL HISTORY AND BACKGROUND FACTS
On January 12, 2010, Plaintiff Joaquin Navarro Hernandez, a
construction worker and resident of New Orleans, Louisiana, was
arrested by United States Customs and Border Protection Agency
(“CBP”) enforcement agents at a convenience store on a day
laborer street corner in northeast New Orleans.
Based solely on
information obtained through Plaintiff’s arrest, the Department
of Homeland Security initiated deportation proceedings against
1
him.
Plaintiff sought assistance from the New Orleans Workers’
Center for Racial Justice, a non-profit advocacy organization
that works to defend the rights of low-income workers, of which
he is a member.
With help from the Center’s legal staff, on July
23, 2010, Plaintiff filed a FOIA request with CBP, seeking
information related to the agency’s immigration enforcement
actions in the city of New Orleans generally, and specifically
with respect to the January 12, 2010 incident during which he was
arrested.
Plaintiff sought to establish an ongoing pattern of
unlawful surveillance and suspicionless raids of immigrant
construction workers on day laborer corners in New Orleans.1
Plaintiff specifically requested the following:
a.
All documents relating to [Plaintiff].
b.
All documents relating to the events on January 12,
2010 at the gas station referred to in Respondent’s
I-213, “Record of Deportable Alien,” including, but not
limited to tips, monitoring, surveillance, and/or data
collection relating to the enforcement action referred
to in Respondent's I-213.
c.
All documents relating to all enforcement actions at
the gas station referred to in Respondent’s I-213 from
January 12, 2009 to the present, including, but not
1
Evidence obtained through “egregious” or “widespread”
violations of the Constitution by law enforcement officials are
inadmissible in deportation proceedings in immigration court.
See I.N.S. v. Lopez –Mendoza, 486 U.S. 1032, 1050 (1984).
2
limited to documents showing planning, monitoring,
surveillance, and/or data-collection for the purpose of
conducting enforcement actions at the gas station as
documents showing interrogations, arrests, and other
outcomes.
d.
All documents relating to all tips including, though
not limited to, from individuals and local police
officials conveyed to CBP relating from January 12,
2009 to the present including but not limited to the
January 12, 2010 enforcement action at the gas station
referred to in Respondent’s I-213.
e.
All documents conveying information about individuals
providing information used in relation to monitoring,
surveillance, data-collection, and/or enforcement
actions at the gas station referred to in Respondent’s
I-213 from January 12, 2009 to the present including
but not limited to the January 12, 2010 enforcement
action at the gas station referred to in Respondent’s
I-213.
f.
All documents related to any program used in the New
Orleans area by which U.S. Customs and Border
Protection provides financial compensation or any other
benefit to individuals providing information used in
relation to monitoring, surveillance, data collection,
and/or enforcement actions from January 12, 2009 to the
present.
g.
All documents related to quotas for stops,
interrogations, and/or arrests made by U.S. Customs and
Border Protection in the New Orleans area from January
12, 2009 to the present.
h.
All documents related to monitoring, surveillance,
data-collection, and/or enforcement actions by U.S.
Customs and Border Protection in the New Orleans area
in relation to individuals who solicit day work in
public spaces, including, but not limited to, street
corners.
i.
All documents including but not limited to statements,
notes, and/or computer entries made by Mr. Brett R.
Gaudet in relation to the gas station referred to in
3
Respondent’s I-213, including, but not limited to,
monitoring, surveillance, data-collection and/or
enforcement actions there including but not limited to
the January 12, 2010 enforcement action against
Respondent.2
When the statutory response deadline passed without event,
Plaintiff sent a follow-up letter via overnight mail inquiring as
to the status of his FOIA request.
unanswered.
This letter also went
Accordingly, on December 22, 2010, Plaintiff filed
the instant lawsuit seeking the production of all relevant, nonexempt records responsive to his request.
On January 7, 2011,
Plaintiff filed a motion for preliminary injunction, requesting
expedited production.
On January 11, 2011, CBP provided its first response to
Plaintiff’s request, producing 22 pages of partially redacted
records taken from Plaintiff’s immigration file.
CBP also
indicated that it had identified another set of documents
responsive to Plaintiff’s request, namely an I-213 form and other
accompanying documents for an individual arrested in the same
enforcement action as Plaintiff.
However, CBP claimed these
records were exempt from disclosure under the FOIA privacy
exemption.
2
Beyond that, CBP stated that no other records
Rec. Doc. 1, ¶ 20.
4
responsive to Plaintiff’s request existed.
When Plaintiff questioned the sufficiency of CBP’s search,
the Court ordered CBP to provide Plaintiff with a search
affidavit and a Vaughn Index, each of which it subsequently filed
into the record.3
After examining these documents, Plaintiff
immediately filed a response identifying several potential
deficiencies in CBP’s search.
In an effort to resolve the
dispute regarding the adequacy of CBP’s response, Plaintiff
noticed depositions for several CBP employees knowledgeable about
the agency’s record-keeping procedures and immigration
enforcement tactics.
In response, CBP moved to quash the
depositions, which the Court denied on March 23, 2011.
On March 30, the day before the depositions were scheduled,
CBP notified Plaintiff that it had discovered additional
documents that were “potentially responsive” to his original
request, but stated that these documents were wholly exempt from
disclosure.
Nonetheless, based on information revealed in the
depositions, CBP voluntarily agreed to conduct a number of
additional searches for potentially responsive information.
3
In
Rec. Doc. 19.
The United States Court of Appeals for
the D.C. Circuit’s decision in Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973), established the procedure in FOIA litigation by
which an agency prepares an itemized index, correlating each
withheld document (or portion thereof) with a specific FOIA
exemption and the agency's non-disclosure justification.
5
particular, CBP agreed to perform the following searches:
a.
Search the Outlook “inbox,” “trash,” “sent mail,” and
“drafts” boxes of the following agents for the name
“Joaquin Navarro Hernandez,” “Joaquin Navarro,” or
“Joaquin Hernandez,” in either the subject line or
content of the email: Robert Rivet, Jay St. Romaine,
Toby Willcut, Bret Gaudet, Alphonso Gonzales.
b.
Search the Outlook “inbox,” “trash,” “sent mail,” and
“drafts” boxes of the following agents for the number
“A 088 931 424": Robert Rivet, Jay St. Romaine, Toby
Willcut, Bret Gaudet, Alphonso Gonzales.
c.
Search the Intelligence Reporting System database (IRS)
for the name “Joaquin Navarro Hernandez,” “Joaquin
Navarro,” or “Joaquin Hernandez.”
d.
Search the Intelligence Reporting System database (IRS)
for the number “A 088 931 424.”
e.
Search E3 for I-213s and any other documents associated
with the event number “LS 1001.”
f.
Search BPETS for the daily schedules of Border Patrol
Agents St. Romain, Gaudet, and Willcut on Jan 12, 2010.
g.
Search the New Orleans Sector communication center
radio logs for requests for assistance from NOPD made
on January 12, 2010 in relation to Respondent’s arrest.
h.
Search the New Orleans sector communication center
radio logs for January 12, 2010 for any other
communication related to Plaintiff’s arrest.
i.
Search the hard files of Gordon Cates, the patrol agent
in charge of the New Orleans station at the time of
Plaintiff’s arrest, and Robert Rivet, the supervising
officer for the arresting officers, for previous
versions of the narrative section of Plaintiff’s I-213.
j.
Search Robert Rivet’s Outlook account for a message
sent to him by lead border patrol agent James Godhold
or by any member of the intelligence unit containing
6
daily arrest information for January 12, 2010.
k.
Search the E-3 database for CBP arrests from January
12, 2009 to the present with the following arrest
coordinates: 29.9692, -90.0504.
l.
Search the E-3 database for all I-213s from the New
Orleans area for which the method of
location/apprehension is coded as “OA.”4
m.
Search financial records for the month of January 2010
for payments made to confidential informants in
relation to Plaintiff’s arrest.
n.
Search E-3 for I-213s where the method of
location/apprehension is listed as “PI,” the status
when found is listed as “seeking employment,” and the
length of time in the US is greater than one year.
o.
Search BPETS and E3 for operations orders that contain
the terms “day laborer.”
p.
Search John Morris. Outlook account, including the
inbox, sent mail, drafts, and trash, using each of the
following terms separately: “day laborer.”5
These searches revealed a number of documents not previously
identified as responsive to Plaintiff’s request.
On June 20,
2011, Plaintiff moved for partial summary judgment to resolve
whether the documents CBP had withheld were exempt from
disclosure.
Three of these documents had been identified as
responsive or “potentially responsive” to Plaintiff’s original
4
This search was intended to identify arrests made by CBP
as a result of collaboration with another law enforcement agency,
or “other agency,” i.e., “OA.”
5
Rec. Doc. 49-1, pp. 3-5.
7
FOIA request:
(1) the I-213 arrest report and accompanying
documents for the individual arrested in the same enforcement
action as Plaintiff; (2) CBP's Interim Informant Guidelines; and
(3) a Field Information Report containing intelligence
information gathered by CBP about day laborers in New Orleans and
detailing Plaintiff’s arrest.
The fourth set of documents was a collection of I-213 forms
describing the arrest of 62 individuals by CBP agents as a result
of collaboration with other law enforcement agencies, including
local police.
These documents had been identified through the so
called “new” searches performed by CBP.
Plaintiff argued that
there was no legal basis for withholding any of these documents
in their entirety, and that any legally protected information
could be redacted in lieu of withholding the entire records.
After an in camera inspection, the Court agreed and granted
Plaintiff’s motion for partial summary judgment, ordering CBP to
produce each of the document sets, allowing redactions only for
personal information contained therein.
Having secured access to the disputed documents, Plaintiff
subsequently filed the instant motion, seeking an award of
$50,880.00 in attorneys’ fees and $2,617.60 in costs, pursuant to
FOIA’s fee-shifting provision.
In addition, Plaintiff requests
that the Court find that the CBP employees involved acted in an
8
arbitrary and capricious manner and order the Special Counsel of
the Merit Systems Protection Board to initiate an inquiry into
the necessity of disciplinary proceedings against these
employees. See 5 U.S.C. § 552(a)(4)(F).
LEGAL STANDARD
“The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors
accountable to the governed.”
437 U.S. 214, 242 (1978).
NLRB v. Robbins Tire & Rubber Co.,
It has been long recognized that
FOIA’s attorney fee provision plays a critical role in
effectuating this purpose.
As the Fifth Circuit has explained:
“Congress evinced its strong desire, by enacting the
FOIA, to establish a national policy of open government
through the disclosure of government information. . . .
A crucial means of implementing this policy is a
liberal attorney fee provision. The fee provision is
designed to remove the barriers a private individual
faces in insuring government compliance with the policy
of open government . . . Thus, the fee provision serves
three clear policies. First, it acts as an incentive
for private individuals to pursue vigorously their
claims for information. It allows litigants to
overcome barriers, most particularly the need for legal
fees and legal expertise, that government may erect in
an effort to escape compliance with the law . . .
Second and third, the provision serves a deterrent and,
to a lesser extent, a punitive purpose. Congress
recognized the practical effect of the fee provision is
that, if the government had to pay legal fees each time
it lost a case, it would be much more careful to oppose
only those areas it had a strong chance of winning . .
. The fee provision is designed to deter the government
9
from opposing justifiable requests for information
under the FOIA and to punish the government where such
opposition is unreasonable.”
Cazalas v. Department of Justice, 709 F.2d 1051, 1057 (5th Cir.
1983)(internal quotations and citations omitted).
The basic framework for determining whether an award of
attorneys’ fees and costs is appropriate is a two-step analysis.
First, the Court must determine the threshold issue of whether
the FOIA litigant is “eligible” for a fee award.
In order to be
deemed eligible for a fee award, the plaintiff must have
“substantially prevailed” in the underlying FOIA lawsuit.
U.S.C. § 552(a)(4)(E)(I).
5
Next, provided the plaintiff is
eligible for a fee award, the court must also determine whether
he is “entitled” to such.
In deciding whether a claimant is
entitled to an award, a court should consider the following four
factors: “(1) the benefit to the public deriving from the case;
(2) the commercial benefit to the complainant; (3) the nature of
the complainant's interest in the records sought; and (4) whether
the government's withholding of the records had a reasonable
basis in law.” State of Texas v. Interstate Commerce Comm’n, 935
F.2d 728, 730 (5th Cir. 1991)
DISCUSSION
A.
Is Plaintiff “Eligible” for a FOIA Fee Award?
Because the eligibility standard for attorney fee awards
10
under FOIA has recently changed, a brief explanation of the
development of the law is warranted.
Prior to 2001, a plaintiff
could demonstrate his eligibility for a fee award in one of two
ways.
First, if a plaintiff obtained a court order compelling
disclosure of withheld information, he was deemed eligible for a
fee award.
Church of Scientology of Cal. v. Harris, 653 F.2d
584, 587-88 (D.C. Cir. 1981).
Even in the absence of a favorable
judgment on the merits, however, a plaintiff could also establish
eligibility under the so-called “catalyst theory,” which had been
adopted by several circuits.
Under this theory, a plaintiff was
required to show that his lawsuit was the “catalyst” for the
agency’s decision to voluntarily produce the information, by
demonstrating “that prosecution of the action could reasonably be
regarded as necessary to obtain the information and that the
action had a substantive causative effect on the delivery of the
information. Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir.
1980).
In 2001, however, the viability of the catalyst theory was
called into doubt by the Supreme Court’s decision in Buckhannon
Board and Care Home, Inc. v. West Virginia Dept. of Health &
Human Resources, 532 U.S. 598 (2001).
In Buckhannon, the Supreme
Court held that the catalyst theory was an insufficient basis for
establishing eligibility for an award of attorneys’ fees under
11
the Fair Housing Amendments Act (“FHAA”) and the Americans with
Disabilities Act (“ADA”).
See id. at 605.
As the Court
explained, a defendant's “voluntary change in conduct, although
perhaps accomplishing what [a plaintiff] sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the change.”
Id. (italics in original).
As such, Buckhannon substantially
raised the “prevailing party” bar for plaintiffs seeking
statutory fee awards – litigants were only eligible for such
awards if they were awarded some relief by a court, either in the
form of a judgment on the merits or in a court-ordered consent
decree.
Id.
Although Buckhannon was decided with respect to the FHAA and
ADA, two federal circuit courts of appeal subsequently concluded
that the Court’s analysis was equally applicable to FOIA’s
attorney fee provision, as well.
See Oil, Chem. & Atomic Workers
Int'l Union, AFL-CIO v. Dep't of Energy, 288 F.3d 452, 456-57
(D.C. Cir. 2002); Union of Needletrades, Indus. & Textile
Employees, AFL-CIO v. INS, 336 F.3d 200, 203 (2d Cir. 2003).
The Buckhannon rule drew considerable criticism, especially
in the FOIA context.6
6
Essentially, the holding allowed the
See S. Rep. No.110-59, at 4, n.3 (2007)(noting that
Buckhannon “raises serious and special concerns within the FOIA
context.”).
12
Government to ignore valid FOIA claims but prevent an award of
attorney fees by disclosing the documents at the last moment
before the Plaintiff obtained a judgment.
In an effort to
address these problems, Congress enacted the OPEN Government Act
of 2007, Pub. L. No. 110–175, § 4(a), 121 Stat. 2524, which
abrogated the Buckhannon rule with respect to FOIA claims.
The
Act redefined the term “substantially prevailed” under FOIA to
include cases where the plaintiff has obtained
“relief” through
either “a judicial order or an enforceable written agreement or
consent decree,” or “a voluntary or unilateral change in position
by the agency, if the complainant's claim is not insubstantial.”
5 U.S.C. § 552(a)(4)(E)(ii).
While the Fifth Circuit has yet to
address the effect of the amendment, the language added -particularly sub-part (ii)(II) -- appears to have codified the
catalyst theory for FOIA litigants and changed the “eligibility”
prong back to its pre-Buckhannon form.
Having established the governing law, the Court now returns
to the merits of Plaintiff’s motion.
In support of his motion,
Plaintiff contends that he is eligible for a fee award under FOIA
because he obtained relief through both a judicial order granting
relief on the merits of his claim and through voluntary change in
position by CBP.
Because the Court concludes that Plaintiff has
established his eligibility with respect to the former, it need
13
not address the latter in any depth.
Plaintiff identifies this Court’s order granting his motion
for partial summary judgment, requiring CBP to produce 263 pages
of previously withheld documents as the basis for his eligibility
for a fee award.
Under Buckhannon, a court order compelling
disclosure of documents or information that an agency has refused
to produce is clearly sufficient to establish eligibility for
such an award. See Piper v. U.S. Dept. of Justice, 339 F. Supp.
2d 13, 20 (D.D.C. 2004)(“There is no dispute that the FBI would
not have released any of the documents had it not been for the
Court's granting of partial relief to plaintiff . . . This is all
that is required for plaintiff to be considered a prevailing
party.”).
While CBP does dispute Plaintiff’s eligibility for a fee
award, its opposition is based
upon the argument that Plaintiff
has failed to substantially prevail under the newly revived
catalyst theory.
In particular, it argues that the “causal
nexus” between Plaintiff’s lawsuit and the records it
subsequently produced to Plaintiff is lacking, because the
majority of the documents ultimately disclosed to Plaintiff were
not specifically responsive to Plaintiff’s original FOIA request.
Instead, it argues that these records were identified through
several different searches which it voluntarily agreed to conduct
14
over the course of the litigation.
However, even accepting that Plaintiff has not
“substantially prevailed” on the basis of the catalyst theory,
this would not preclude Plaintiff’s eligibility based on the
Court’s previous order granting his motion for partial summary
judgment.
It is clear from the language of the statute that a
plaintiff may demonstrate eligibility on either basis – he need
not satisfy both.
See 5 U.S.C. § 552(a)(4)(E)(ii)(“For purposes
of this subparagraph, a complainant has substantially prevailed
if the complainant has obtained relief through either – (I) a
judicial order or an enforceable written agreement or consent
decree; or "(II) a voluntary or unilateral change in position by
the agency, if the complainant's claim is not
insubstantial.")(emphasis added).
Furthermore, the Court finds that the factual basis for
CBP’s legal argument under the catalyst theory – i.e., that the
majority of the documents identified and produced were not
responsive to Plaintiff’s original request – is simply
inaccurate.
Beyond the 22 pages which Defendant voluntarily
disclosed to Plaintiff, the Court ordered CBP to produce the
following:
the I-213 form and accompanying documents for an
individual arrested on the same day as Plaintiff; the CBP Interim
Informant Guidelines; and the CBP’s Field Intelligence Report.
15
CBP identified each of these three documents as responsive or at
least “potentially responsive” to Plaintiff’s original FOIA
request.
Indeed, CBP’s own memorandum even appears to concede
this fact.7
Pursuant to the parties’ stipulation, the Court also ordered
CBP to produce an additional 62 I-213 forms for individuals
arrested as a result of CBP’s collaboration with other law
enforcement agencies during the year prior to Plaintiff’s
arrest.8
While CBP never designated these forms as responsive,
the Court has reviewed the records and concludes that they are
7
See Rec. Doc. 60, p. 3 (“CBP also identified another
immigration file of another individual dated January 12, 2010,
which was responsive to Plaintiff’s request; however, this
material was withheld pursuant to FOIA Exemption (b)6.”); Rec.
Doc. 60, p. 4 (“During preparation for the depositions, [CBP
identified] three documents that, if read broadly, were
potentially responsive to Plaintiff’s request. Plaintiff was
notified as to the identification of these documents; however,
CBP claimed that the newly discovered documents were exempt from
disclosure.”); Rec. Doc. 60, p. 9 (“CBP concedes that its Interim
Informant Guidelines are potentially responsive to Plaintiff’s
FOIA request (f).”). The Court also notes that when questions
arise regarding whether documents are “potentially” responsive to
a Plaintiff’s request, an agency has a duty to construe the
request liberally. Nation Magazine, Washington Bureau v. U.S.
Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
8
CBP had previously stipulated that the Court’s decision
regarding whether any one I-213 form was exempt from disclosure
would be binding as to all I-213 forms responsive to Plaintiff’s
requests. As a result, when the Court granted Plaintiff’s motion
for partial summary judgment, CBP disclosed the additional I-213
forms.
16
responsive to Plaintiff’s request.
CBP’s argument that these
records were beyond the scope of Plaintiff’s original FOIA
request is based upon the flawed premise that Plaintiff sought
only documents pertaining to the specific “gas station referred
to in [Plaintiff’s] I-213.”9
However, the language of
Plaintiff’s request explicitly disclaimed any such limitation; he
specifically requested
“all documents relating to tips . . .from
individuals and local police officials conveyed to CBP . . . from
January 12, 2009 to the present, including but not limited to the
January 12, 2012 enforcement action at the gas station referred
to in [Plaintiff’s] I-213.”10
As such, the Court finds that
these documents fall squarely within the scope of this plainly
worded request, and CBP’s contentions to the contrary are
unavailing.
Finally, even if it is true that its decision to perform the
searches that uncovered these records was voluntary, the same
cannot be said for its decision to disclose them.
Over the
course of this litigation, CBP withheld each record mentioned
above in its entirety.
Only after the Court granted Plaintiff’s
motion for partial summary judgment, over Defendant’s objections,
9
10
See Defendant’s Opposition Memorandum, Rec. Doc. 60, p.8.
See Complaint, Rec. Doc. 1, ¶ 20.
17
were any of these documents released to Plaintiff.
This order
altered the legal relationship of the parties in Plaintiff’s
favor, which is all that is required to establish his eligibility
for a fee award under FOIA.
See Campaign for Responsible
Transplantation v. Food & Drug Admin., 511 F.3d 187, 195 (D.C.
Cir. 2007)(noting that “it is clear that a court order requiring
a recalcitrant agency to release documents pursuant to the legal
mandate of FOIA is sufficient to render the plaintiff a
prevailing party”); see also See Judicial Watch, Inc. v. F.B.I.,
522 F.3d 364, 370 (D.C. Cir. 2008)(even a court order simply
memorializing an agency’s voluntary agreement to produce certain
documents is sufficient to establish eligibility for a fee award
under FOIA).
As such, the Court finds that Plaintiff has
obtained relief through a court order, thus demonstrated
“substantially prevailed” through a court order is eligible for
an award of attorneys’ fees.
B.
Is Plaintiff “Entitled” to a Fee Award?
Because the Court concludes that Plaintiff has substantially
prevailed on the merits of his claim, the Court must next address
whether Plaintiff is “entitled” to an award of attorneys’ fees.
A district court has broad discretion to determine whether a FOIA
litigant is entitled to a fee award.
570 F.2d 529, 533 (5th Cir. 1978).
18
Blue v. Bureau of Prisons,
In exercising this
discretion, however, a court must consider the following factors:
“(1) the benefit to the public deriving from this case, (2) the
commercial benefit to the complainant, (3) the nature of his
interest in the federal records sought, and (4) whether the
government's withholding of the record sought had a reasonable
basis in law.”
State of Texas, 935 F.2d at 730.
While certain
factors may carry more weight than others under the particular
facts of a given case, a court must give each of the four factors
some consideration in determining the propriety of an award.
See
Blue, 570 F.2d at 534 (holding that district court abused its
discretion in considering only one of the four Blue factors).
i. The Public Benefit Deriving from Plaintiff’s Case
The public benefit factor has been described as perhaps the
most important factor in determining entitlement to a fee award.
See Miller v. U.S. Dept. of State, 779 F.2d 1378, 1389 (8th Cir.
1985).
When weighing this factor, a court should consider “the
degree of dissemination and likely public impact that might be
expected from a particular disclosure.”
Blue, 570 F.2d at 533.
Where “the complainant’s victory is likely to add to the fund of
information that citizens may use in making vital political
choices,” a fee award is favored.
Id. at 534.
Conversely, when
a fee award “would merely subsidize a matter of private concern,”
an award is less appropriate.
Id.
19
Here, Defendant takes the position that any public benefit
resulting from the disclosure of these records is marginal or
indefinite, at best.
It contends that Plaintiff’s FOIA request
was merely used as a discovery tool to uncover information to use
his deportation proceeding; thus, in Defendant’s view, his FOIA
request had little to do with increasing the fund of public
information available for making political decisions.
It is undoubtedly true that Plaintiff requested information
to ensure that he was afforded a full and fair hearing at his
deportation proceeding; Plaintiff has readily acknowledged as
much.
However, the Fifth Circuit has rejected the notion that a
strong personal interest in obtaining access to information
necessarily precludes the possibility that a broader public
interest will be served by its release.
See Cazalas, 709 F.2d at
1053 (“[A]n acknowledgment of appellant's strong personal
interest in securing certain letters and notes is not necessarily
inconsistent with an equally strong public interest in also
receiving these items.”).
As an initial matter, it is important to note that the
“simple disclosure of government documents” does not in and of
itself establish a public benefit for the purposes of this
analysis.
Citizens for Responsibility and Ethics in Washington
v. U.S. Dept. of Justice, 2011, WL 5075102, (D.D.C. Oct. 26,
20
2011)(citing Alliance for Responsible CFC Policy, 631 F. Supp.
1469, 1471 (D.D.C. 1986).
This “broadly defined benefit” is not
what Congress contemplated in providing for attorneys’ fees for
successful FOIA litigants.
Cotton v. Heyman, 63 F.3d 1115, 1120
(D.C. Cir. 1995).
Here, however, Plaintiff has done considerably more.
At
present, there is a vigorous public debate on the topic of
targeted immigration enforcement, most notably as to whether such
efforts should prioritize aliens with documented criminal
histories, as opposed to individuals who have committed only
civil immigration law violations, such as Plaintiff.11
There is
also widespread public debate on the related issue of whether and
to what extent local police should be involved with federal
immigration enforcement efforts.12
Both these questions are of
11
See, e.g., Christopher Goffard, et. al., 300,000
Deportation Cases to be Reviewed: Illegal Immigrants Considered
Low Priority May be Able to Stay, CHI. TRIBUNE, Aug. 19, 2011
(discussing Obama administration’s announcement that it will
refocus immigration enforcement efforts on convicted felons and
other public safety threats instead of low-priority individuals
with no criminal record); Charlie Savage, 2,901 Arrested in
Crackdown on Criminal Immigrants, N.Y. TIMES, Sep. 29, 2011
(noting the “record level” of deportation proceedings and
discussing shift in Department of Homeland Security immigration
policy); Alicia Caldwell, U.S. Undertaking Case-by-Case Review on
Deportation, ASSOCIATED PRESS, Aug. 18, 2011.
12
See, e.g., Paloma Esquivel, Controversial Immigration
Enforcement Program is Target of Lively Protest, LOS ANGELES TIMES,
Aug. 15, 2011 (discussing public protest of federal “Secure
21
substantial public interest in the City of New Orleans, where the
plight of the large population of immigrant workers who have
assisted in rebuilding efforts after Hurricane Katrina has been a
matter of particular concern.13
Here, Plaintiff has used the
records disclosed as a result of this case to increase public
Communities” immigration enforcement initiative, under which
information obtained by local law enforcement agents is required
to be forwarded to immigration officials for the potential use
for deportation actions); Paloma Esquivel, Bill Targets Local
Deportation Role: Legislation Would Restrict the Holding of
Arrestees for Federal Immigration Action, LOS ANGELES TIMES, Jan.
28, 2012 (discussing a series of state laws seeking to exempt
police and other local law enforcement officials from cooperation
with federal immigration enforcement officials); Amy Harris,
Illegal-immigrant Crime Targeted: 13 Counties to Adopt Federal
Program; Fears of Racial Profiling, Distrust of Police Raised,
SEATTLE TIMES, July 4, 2011 (describing public debate regarding
collaboration between local police and federal immigration
enforcement agents and whether such actions breed distrust of
local police).
13
See, e.g., Richard A. Webster, Day Laborers Protest ICE
Raid, New Orleans CityBusiness, Oct. 21, 2011, available at
http://neworleanscitybusiness.com/thenewsroom/2011/10/21/day-labo
rers-protest-ice-raid/ (describing public protest of immigration
enforcement raid on non-criminal day laborers); Shaban Bigad,
N.O. Council VP to Insist Sheriff Answer Jail Questions, Fox 8
News, June 30, 2011, available at
http://www.fox8live.com/news/local/story/N-O-Council-VP-to-insist
-Sheriff-answer-jail/VYLDi5ZFpESmeP4dgiophg.cspx (describing
political debate concerning Orleans Parish Sheriff’s
collaboration with immigration officials with respect to
undocumented day laborers suspected to be illegal immigrants);
Eve Abrams, Immigrants Who Rebuilt New Orleans Left Unprotected,
WWNO, Aug. 30, 2011, available at
http://www.publicbroadcasting.net/wwno/news.newsmain/article/0/0/
1846717/news/Immigrants.Who.Rebuilt.New.Orleans.Left.Unprotected
(discussing plight of immigrant day laborers in New Orleans after
Hurricane Katrina).
22
awareness of the above issues, as well as to facilitate public
oversight of CBP’s enforcement of federal immigration law in the
New Orleans area, both as it relates to his own case and in
general.14
As previously discussed, Plaintiff filed his FOIA request
and pursued this litigation through the New Orleans Workers’
Center for Racial Justice, a non-profit advocacy organization
that works to defend the rights of low-income workers and to
increase community participation in public policy initiatives.
Upon Defendant’s release of the requested documents, these
documents were immediately provided to the Center, which has used
the information as a part of its “Know Your Rights” outreach and
advocacy campaigns in the New Orleans community.15
It also
14
See Complaint, Rec. Doc. 1, ¶ 5 (“Mr. Joaquin Navarro
Hernandez brings this complaint to vindicate the New Orleans’
community’s right to information about U.S. Customs and Border
Protection’s ongoing, covert, community raids. The release of
these documents is essential to facilitate much-needed community
monitoring and oversight of actions by U.S. Customs and Border
Protection.”).
15
Other courts have readily found the public benefit factor
to be met when a FOIA litigant uses the information disclosed to
facilitate public debate on important political issues. See,
e.g. Judicial Watch, Inc. v. U.S. Dept. of Homeland Sec., 2009 WL
1743757, at *7 (D.D.C. 2009)(finding public benefit in release of
border surveillance footage, in light of public’s “heightened
interest in national security”); Judicial Watch, Inc. v. U.S.
Dept. of Justice, 774 F. Supp. 2d 225, 230 (D.D.C.
2011)(explaining that records related to widely debated
government surveillance program were “precisely the sort of
23
intends to make continued use of the records in its efforts to
promote immigration reform and increase public awareness of these
issues both nationally and in the New Orleans area.
The Court
also notes that Plaintiff’s case has garnered at least some
independent media attention, as well.16
As a result of these efforts, the information disclosed will
surely “add to the fund of information that citizens may use in
making vital political choices.”
Blue, 570 F.2d at 534.
Indeed, the legislative history of FOIA shows that Congress
contemplated that the public benefit factor would favor a fee
award in circumstances such as this.
See Church of Scientology
of California v. U.S. Postal Service, 700 F.2d 486, 492 n.6 (9th
Cir. 1983)(quoting H.R. Rep. No. 1380, 93rd Cong., 2d Sess. 10
(1974))(explaining that Congress considered the public benefit
information that is valuable to the public” in making informed
political decisions); Elec. Privacy Info. Ctr. v. U.S. Dept. of
Homeland Sec., 2011 WL 4014308, at *13 (D.D.C. Sep. 12,
2011)(public benefit factor weighed in favor of fee award when
documents obtained were used to inform public debate on
Transportation Safety Administration’s controversial whole body
imaging devices); Found. v. Office of Dir. of Nat’l Intelligence,
2008 WL 2331959, at *3 (N.D. Cal. June 4, 2008)(finding public
benefit resulting from disclosure of records which plaintiff
planned to disseminate in order to inform public debate on
government surveillance program under active consideration by
Congress).
16
See Sabrina Canfield, Info Sought on Surveillance of Day
Laborers, Courthouse News Service, Dec. 27, 2010, available at
http://www.courthousenews.com/2010/12/27/32875.htm.
24
factor to favor a fee award where “a public interest group was
seeking information to further a project benefitting the general
public.”).
Here, the Center facilitated Plaintiff’s FOIA request
for the purposes of benefitting the public and used the
information obtained in a manner consistent with the policy
objectives of § 552(a)(4)(E).
Accordingly, the Court finds that
the first Blue factor favors a fee award.
ii. The Commercial Benefit to the Complainant
The second factor considers whether a plaintiff obtained a
commercial benefit through the information sought.
FOIA’s
attorney fee provisions were not intended to compensate litigants
whose private commercial interests provide sufficient incentive
to pursue access to information through FOIA litigation.
Fenster v. Brown, 617 F.2d 740, 743 (D.C. Cir. 1979).
See
However,
for other individuals, without the benefit of FOIA’s fee-shifting
provisions, the prohibitive costs of litigation would essentially
act as a bar to judicial review of an agency’s decision to
withhold information.
As such, the Fifth Circuit has recognized
that this factor favors an award when the litigant pursuing
disclosure is indigent, a public interest group, or a
disinterested scholar.
Blue, 570 F.2d at 534.
Here, Plaintiff is an immigrant day laborer with essentially
no monetary resources.
Furthermore, he is represented by a
25
public interest organization that performs substantial advocacy
work in the day laborer community on behalf of other individuals
like Plaintiff.
An award of fees in this case would appear to
enhance Congress’s goal that agency decisions should receive
judicial review even when the requestor cannot afford to pay the
costs of bringing a lawsuit.
Accordingly, this factor also
weighs in favor of a fee award.
iii.
The Nature of Plaintiff’s Interest in the Records
Sought
A court must also consider the nature of a plaintiff’s
interest in the records sought.
When a plaintiff seeks to
protect only a private interest that provides sufficient
incentive to litigate his FOIA claim, the policy objectives of
§552(a)(4)(E) are not furthered by providing a fee award.
Cuneo
v. Rumsfeld, 553 F.2d 1360, 1367 (D.C. Cir. 1977).
Here, Defendant contends that Plaintiff needed no additional
incentive to pursue his FOIA claim because his personal interest
in obtaining the documents was so strong.
This strictly personal
interest, it argues, more than compensates for his lack of
commercial interest in this case.
Defendant additionally submits
that courts have roundly refused to award fees in cases where a
plaintiff’s FOIA’s request is intended as a discovery tool for
other pending litigation, as Plaintiff here did.
26
On this point, the Court finds a recent decision in a case
with similar facts instructive. In Jarno v. Dept. of Homeland
Sec., 365 F. Supp. 2d 733, 739-40 (E.D. Va. 2005), the Court
awarded fees to a FOIA plaintiff who had prevailed in obtaining
documents relating to his pending immigration asylum proceeding.
In considering the “plaintiff’s interest” factor, the Court
explained:
“Plaintiff's central interest in this case was to force
the defendant to disclose the requested documents in
order to facilitate the fair adjudication of his
political asylum claim in Immigration Court. Plaintiff
also wished to make Congress, the press, advocacy
groups, and the public aware of the relevant
information regarding his case. Although Plaintiff was
in large part motivated by a desire to use the
documents requested to ensure that his own asylum case
was decided properly by the Immigration Court, the
public benefit derived from the released documents and
his case overall are substantial.”
Id. at 740.
Likewise, here, Plaintiff sought to ensure he was afforded a
full and fair hearing in his pending deportation proceeding.
This interest, while personal in nature, also implicates the
strong public interest in preserving the administration of
justice in our nation’s immigration courts, as was recognized by
the court in Jarno.
“Attorney's fees are appropriate where a
FOIA response helps protect the public's interest in the fair and
just administration of justice.” Id. at 739 (internal quotations
27
omitted); see also Mayock v. I.N.S., 736 F. Supp. 1561, 1564
(N.D. Cal. 1990)(plaintiff’s interest factor supported an award
when requestor sought information “not just for himself, but also
for other litigants and attorneys before the INS”); Crooker v.
U.S. Parole Com’n, 776 F.2d 366, 368 (1st Cir. 1985)(finding
plaintiff’s interest factor supported fee award where plaintiff’s
interest “was to ensure that the Parole Commission relied on
accurate information in making decisions affecting his liberty”)
Landano v. U.S. Dept. of Justice, 873 F. Supp. 884, 892 (D.N.J.
1994)(noting that “although he has a strong private interest in
the information, this interest furthers the public's concern with
the criminal justice system”).
Furthermore, as previously noted,
Plaintiff’s request was not solely self-motivated; he also sought
information in order to raise public awareness of issues of
public import and from which other individuals could benefit,
both of which also serve a substantially public purpose.
Id.
Finally, it is true, as Defendant suggests, that some courts
have recognized that an award of attorneys’ fees is generally
inappropriate when a litigant utilizes FOIA as a means of
obtaining earlier access to information for use in other pending
litigation.
See, e.g., Sampson, 559 F.2d at 712 (noting that a
court “would not award fees if a business was using the FOIA . .
. as a substitute for discovery in private litigation with the
28
government”); Horsehead Indus., Inc. v. EPA, 999 F. Supp. 59, 67
(D.D.C. 1998)(“Congress clearly recognizes that the FOIA would be
used as a means of obtaining discovery from the Government, and
significantly, in such cases attorneys’ fees would not ordinarily
be awarded.”); Guam Contractors Ass'n v. U.S. Dept. of Labor, 570
F. Supp. 163, 169 (N.D. Cal. 1983)(fee award improper where it
was clear that the company had used his FOIA suit as a
“headstart” for discovery in another lawsuit against the
government).
However, these cases are readily distinguishable from the
instant case; the vast majority involve business firms seeking
trade information for use in other private civil litigation, and
none involve deportation proceedings.
There is no formal
discovery available to a respondent in a deportation proceeding.
Campos v. Nail, 940 F.2d 495, 498 n.8 (9th Cir. 1991).
As such,
FOIA is essentially the only means available for an individual to
obtain information for use in a deportation proceeding.
GORDON
& H.
ROSENFELD, IMMIGRATION LAW AND PROCEDURE
See 2
C.
§ 1.18d (1985); Jarno,
365 F. Supp. 2d at 740 (“FOIA is the exclusive means that a
respondent in Immigration Court proceedings must use to obtain
documents for use in immigration proceedings.”).
Accordingly,
the Court concludes that this factor also favors a fee award.
iv. Whether the Government Had a Reasonable Legal Basis for
29
Withholding the Records Sought
Finally, the Court must consider whether the Government had
a reasonable legal basis for withholding the requested
information.
This factor does not require an agency to show that
its decision was ultimately vindicated in court.
See Lasalle
Extension Univ. v. F.T.C., 627 F.2d 481, 486 (D.C. Cir. 1980).
All that is required is a showing that the agency had a
“colorable legal basis” for concluding that the information was
exempt and that it has not been “recalcitrant in its opposition
to a valid claim or otherwise engaged in obdurate behavior.”
Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)(quoting
Cuneo, 553 F.2d at 1365-66).
Here, CBP argues that it had a statutory basis for
withholding each of the documents it refused to turn over in
response to Plaintiff’s request.
In particular, it argues that
many of the records contained sensitive personal information
about individuals, which the Court acknowledged by ordering the
documents to be produced in redacted form.
It further submits
that other documents withheld under the law enforcement privilege
had previously been marked “official use only – law enforcement
sensitive.”
Thus, it argues that it cannot be deemed
unreasonable for it to withhold such documents when the document
was clearly identified in this manner.
30
At least as to some of the records, the Court agrees that
Defendant’s conduct after the commencement of this action was not
particularly unreasonable.
However, this fails to account for
Defendant’s wholesale disregard of Plaintiff’s FOIA request prior
to the time that suit was filed.
A court may consider an
agency’s initial failure to respond to a FOIA requestor in
weighing the “reasonable basis in law” factor.
Judicial Watch,
Inc., 774 F. Supp. 2d at 231 (“Even though DOJ's conduct after
the suit was filed was generally reasonable, this initial failure
to respond still weighs in favor of a fee award.”);
Elec.
Privacy Info. Ctr. v. U.S. Dept. of Homeland Sec., 2011 WL
4014308, at *13 (D.D.C. Sep. 12, 2011)(“DHS's administrative
delay and a generic claim of a FOIA backlog do not form a
‘reasonable basis in law’ for withholding in these
circumstances.”).
FOIA’s fee provision is intended to incentivize the
government to “promptly turn over – before litigation is required
– any documents that it ought not withhold.
That purpose will be
ill-served if the government can prevail on this factor by saying
nothing and forcing the requester to sue, only then to offer ‘no
resistance.’” Davy, 550 F.3d at 1165 (Tatel, J., concurring).
Here, Defendant offers no explanation for its failure to respond
to Plaintiff’s initial request or to his follow-up
31
communications.
Accordingly, even if CBP’s basis for withholding
particular documents may not have been unreasonable, this factor
nonetheless weighs in favor of a fee award.17
v. Plaintiff’s Request for a Written Finding that the CBP
Employees Involved Acted Arbitrarily and Capriciously
Plaintiff has additionally requested a written finding that
the CBP employees involved acted in an arbitrary and capricious
manner, such that the Special Counsel of the Merit Systems
Protection Board will initiate an inquiry into the need for
disciplinary proceedings against these employees.
5 U.S.C. §
552(a)(4)(F) provides that “[w]henever a court orders the
production of any agency records improperly withheld from the
complainant and assesses against the United States reasonable
attorney fees and other litigation costs, and the court
additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether agency
personnel acted arbitrarily or capriciously with respect to the
withholding, the Special Counsel shall promptly initiate a
proceeding to determine whether disciplinary action is warranted
17
Even if the Court concluded that this factor weighed
against assessing a fee award, one factor alone is not
dispositive in considering requests for attorneys’ fees under
FOIA. See La Salle Extension Univ., 627 F.2d at 484; Crooker,
776 F.2d 366 (awarding fees even where government had a
reasonable basis for withholding the information).
32
against the officer or employee who is primarily responsible for
the withholding.”
Here, although CBP’s initial failure to
respond to Plaintiff’s request was unreasonable, on the whole,
the Court finds the conduct of the agency personnel involved does
not rise to the level of arbitrariness or capriciousness.
Accordingly, the Court declines to issue the requested finding in
this case.
C.
The Reasonableness of the Fees Requested
Because all of the Blue criteria weigh in favor of an award
of attorneys’ fees, the Court must next turn to the methodology
required to calculate the appropriate fee.
Federal courts in
this circuit generally apply the lodestar method outlined by the
Fifth Circuit in Johnson v. Georgia Highway Express, Inc. to
calculate fee awards.
488 F.2d 714 (5th Cir. 1974) (en banc).
Under this two-step process, the Court must first calculate the
benchmark lodestar by multiplying the number of hours reasonably
expended in the case by the prevailing hourly rate for legal
services in the district.
Jimenez v. Wood County, Tex., 621 F.3d
372, 379-380 (5th Cir. 2010).
After the lodestar amount is calculated, the second step
allows the Court to make downward adjustments, or in rare cases,
upward adjustments, based upon consideration of the twelve
Johnson factors.
These factors include: (1) the time and labor
33
required; (2) the novelty and difficulty of issues; (3) the skill
requisite to perform the legal service properly, (4) the
preclusion of other employment by the attorney due to acceptance
of the case, (5) the customary fee, (6) whether the fee is fixed
or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained,
(9) the experience, reputation, and ability of the attorneys,
(10) the “undesirability” of the case, (11) the nature and length
of the professional relationship with the client, and (12) awards
in similar cases.
i.
Johnson, 488 F.2d at 717–19.
The Number of Hours Reasonably Spent
The Court must first determine whether the requested hours
expended by Plaintiff’s counsel were reasonable in light of the
facts of the case and the work performed.
The burden of proving
the reasonableness of the hours expended is on the fee applicant.
Mota v. Univ. of Tex. Houston Health Science Ctr., 261 F.3d 512,
528 (5th Cir. 2001).
Here, Plaintiff has requested an award in
the amount of $53,497.60, representing $50,880.00 in attorneys’
fees plus $2,617.60 in litigation costs.
This total includes
$31,170.00 for the services of lead counsel Jennifer Rosenbaum,
based on a total of 103.9 hours billed at an hourly rate of $350.
It also includes $21,900.00 for the serves of co-counsel Jessica
Karp, based on a total of 98.55 hours billed at an hourly rate of
34
$200 per hour.
The Court must determine whether these records reflect that
Plaintiffs' counsel exercised billing judgment. See Saizan v.
Delta Concrete Prods. Co., Inc., 448 F.3d 795, 800 (5th Cir.
2006).
A court should exclude all time billed for work that is
excessive, duplicative, or inadequately documented.
Jimenez, 621
F.3d at 379-80 (citing Watkins v. Fordice, 7 F.3d 453, 457 (5th
Cir. 1993)).
Defendant contends that these totals should be reduced,
given the small amount of material ultimately produced in
response to Plaintiff’s broadly worded requests.
The Court
rejects that the total hours reasonably expended in this case
should be calculated with reference to the ultimate amount of
material produced.
To the extent that Plaintiff ultimately
uncovered fewer records than expected, this only underscores the
significant time and expense imposed on individuals by an
agency’s failure to comply with the mandates of FOIA.
As one
court has aptly put it, an agency cannot put a requestor “through
the time and expense of enforcing compliance with FOIA and then
complain that the resources expended were out of proportion to
the good obtained."
Los Angeles Gay & Lesbian Cmty. Servs. Ctr.
v. IRS, 559 F. Supp. 2d 1055, 1061 (C.D. Cal. 2008); see also
Poulsen v. U.S. Customs and Border Protection, 2007 WL 160945, at
35
*3 (N.D. Cal. Jan. 17, 2007)(rejecting agency’s argument that fee
award should be reduced “based on the comparatively small amount
of pages ordered to be released”).
No reduction is warranted on
this basis.
Having reviewed the applicable billing records, the Court
finds the billing records kept by counsel in this case are
sufficiently clear and detailed in order to allow for adequate
review, and that the hours expended are reasonable, under the
facts of this case.
The Court finds no basis to conclude that
any of the work for which compensation is requested was
excessive, duplicative, or otherwise unnecessary.
Additionally,
the Court finds that Plaintiff’s counsel have exercised
reasonable billing judgment by excluding hours spent by legal
assistants, and by voluntarily reducing their total request by
10%.
As such, the Court concludes that the total of 202.45 hours
expended for the work performed in this case is reasonable.
ii.
The Reasonableness of the Hourly Rate for Each
Participating Attorney
Attorney's fees must be calculated at the “prevailing market
rates in the relevant community for similar services by attorneys
of reasonably comparable skills, experience, and reputation.”
Blum v. Stenson, 465 U.S. 886, 895 (1984).
The applicant bears
the burden of producing satisfactory evidence that the requested
36
rate is aligned with prevailing market rates. Wheeler v. Mental
Health & Mental Retardation Auth. of Harris County, Tex., 752
F.2d 1063, 1073 (5th Cir. 1985).
Here, Plaintiff seeks a fee at an hourly rate of $350 for
work performed by lead counsel Jennifer Rosenbaum, an attorney
who has been practicing law for over eight years and who
currently serves as Legal Director of the New Orleans Workers’
Center for Racial Justice, where she specializes in civil rights,
immigration, and employment litigation.
Ms. Rosenbaum is a
graduate of Harvard Law School and has served as a law clerk to
the Honorable Thomas A. Wiseman, Jr., in the U.S. District Court
for the Middle District of Tennessee.
She has also worked for
three years as a staff attorney at the Southern Poverty Law
Center; for two years as a Skadden Fellow and staff attorney at
South Migrant Legal Services in Texas.18
Plaintiff also seeks a fee at an hourly rate of $200 for the
services of co-counsel Jessica Karp, who has been practicing law
for approximately two years.
Ms. Karp is a staff attorney at the
National Day Laborer Organizing network, where she specializes in
civil rights and immigration litigation.
She is a graduate of
Columbia Law School and has served as a law clerk for the
18
Rec. Doc. 56-6.
37
Honorable Stephen Reinhardt of the U.S. Ninth Circuit Court of
Appeals.19
In support of this request, Plaintiff has submitted sworn
affidavits from his attorneys’ and from William Quigley, a law
professor and the clinical director of the Gillis Long Poverty
Law Center at Loyola University in New Orleans.
Each attests
that the requested rates are consistent with the prevailing rates
for similar work for attorneys of comparable experience.
Defendant has submitted no direct evidence to contradict
these affidavits.
Instead, it cites numerous other cases from
this district in which courts have assessed fees at rates lower
than those requested in the present motion.
Based upon this
authority, Defendant submits that the rates requested are
excessive, and posits that rates of $175 and $125 are more
appropriate.
As an initial matter, the Court notes that none of the cases
upon which Defendant relies were decided recently; in fact, only
one of the ten cases cited was decided within the last five
years.
As such, these cases would tend to hold substantially
less weight than the evidence submitted by Plaintiff as to the
current prevailing rates in the New Orleans area.
19
Rec. Doc. 56-8.
38
Nonetheless,
the Court has reviewed
the case law from this district for the
past two years and has concluded that the requested hourly rates
should be reduced.
See, e.g. Smith v. Sprint/United Mgmt. Co.,
2011 6371481 (E.D. La. Dec. 20, 2011)(awarding $290.00/hour for a
partner with 16 years experience and $240/hour for an associate
with 8 years of experience); Construction South, Inc. v. Jenkins,
2011 WL 3892225 (E.D. La. Sept. 2, 2011)(awarding $350/hour for
two partners with 36 and 30 years of experience; $200/hour for an
associate with four years of experience; and $180/hour for an
associate with two years of experience); Atel Mar. Investors, LP
v. Sea Mar Mgmt., LLC, 2011 WL 2550505 (E.D. La. June 27,
2011)(awarding $250 for partner with 35 years of experience; $250
for a partner with 11 years of experience; and $175 for an
associate with 2 years of experience); Entergy La., L.L. C. v.
The Wackenhut Corp., 2010 WL 4812921 (E.D. La. Nov. 17, 2010)
(awarding $175.00/hour to attorney with 16 years of experience);
Wilson v. Tulane Univ., 2010 WL 3943543 (E.D. La. Oct. 4,
2010)(awarding $250.00/hour and $160.00 hour to attorneys with 25
and four years experience respectively); Hebert v. Rodriguez,
2010 WL 2360718 (E.D. La. June 8, 2010) (awarding $300.00/hour to
partner with 33 years of experience); Gulf Coast Facilities Mgmt,
L.L.C. v. BG LNG Servs., L.L.C., 2010 WL 2773208 (E.D. La. July
13, 2010)(awarding $300.00/hour to attorneys with 17 years
39
experience and $180.00/hour and $135.00/hour to attorneys with
seven years and two years experience respectively); Belfor USA
Group, Inc. v. Bellemeade Partners, L.L.C., 2010 WL 6300009 (E.D.
La. Feb. 19, 2010) (awarding $210.00/hour, $250.00/hour and
$180.00/hour to attorneys with 20, 10, and 4 years of legal
experience, respectively); Marks v. Standard Fire Ins. Co., 2010
WL 487403 (E.D. La. Feb. 3, 2010) (awarding $185.00/hour to
attorney with seven years of experience).
Based on the fees set by the courts in the foregoing cases,
the Court finds that the requested rates are beyond the higher
end of the prevailing market rates.
Accordingly, the Court will
assess fees at a rate of $300.00 per hour for Jennifer Rosenbaum
and $180.00 per hour for Jessica Karp.
iii.
Application of the Johnson Factors
These revised rates yield total fees of $31,170.00 and
$17,739.00 for Jennifer Rosenbaum and Jessica Karp, respectively,
for an aggregate total of $48,909.00.
There is a strong
presumption that this figure is reasonable.
Saizan, 448 F.3d at
800 (citing Heidtman v. County of El Paso, Tex., 171 F.3d 1038,
1043 (5th Cir.1999)).
Nonetheless, the Court must still consider
the twelve Johnson factors in step two of its lodestar analysis.
Though the Court need not be “meticulously detailed” in its
analysis, it must nonetheless articulate and clearly apply the
40
twelve factors to determine how each affects the lodestar amount.
Id. (quoting Forbush v. J.C. Penney Co., 98 F.3d 817, 823 (5th
Cir. 1996)).
The Court should give special consideration to the
time and labor involved, the customary fee, the amount involved
and the results obtained, and the experience, reputation, and
ability of counsel.
Id.
However, to the extent that a factor
has been previously considered in the calculation of the
benchmark lodestar amount, a court should not make further
adjustments on that basis.
Id.
Here, the Court has carefully considered each of the Johnson
factors and has concluded that no further adjustment of the
lodestar amount is necessary.
(1) Time and Labor Required
Plaintiff was ultimately forced to retain counsel and
commence this litigation as a result of Defendant’s failure to
respond to his FOIA request.
The Court further finds that
Defendant’s consistent refusals to produce the requested
documents after this suit was filed further increased the time
and labor required to resolve this matter.
However, because
Plaintiff does not seek an upward adjustment on this basis, the
Court finds this factor confirms the reasonableness of the
lodestar amount calculated in step one.
(2) Novelty and Difficulty of the Issues Involved
41
The Court finds that the legal issues presented in this case
– most notably, the scope of FOIA’s privacy exemptions, 5 U.S.C.
§ 552(b)(6) and (b)(7)(c), and law enforcement exemption, 5
U.S.C. § 552(b)(7)(e), as applied to the documents at issue –
were at least somewhat difficult and novel.
Furthermore, the
difficulty of the issues involved were compounded by the pressing
time constraints imposed by Plaintiff’s pending deportation
proceeding.
Plaintiff’s counsel successfully and skillfully
resolved these issues in an expeditious manner, and the lodestar
amount reflects these efforts.
(3) Skill Required
This factor was already accounted for in the Court’s
consideration of the second Johnson factor.
(4) Preclusion of Other Employment
This factor accounts for the fact that an attorney may be
forced to turn away other potential clients and cases due by
virtue of the time and resources required of the case in which
the fee award is at issue.
Plaintiff’s counsel have introduced
sworn testimony indicating that they were precluded from
accepting other worthy cases as a result of the amount of time
required to litigate this case, and the Court finds no reason to
doubt the veracity of these statements.
(5) Customary Fee
42
This factor was already accounted for in the Court’s
calculation of the lodestar benchmark amount.
(6) Whether Fee Is Fixed or Contingent
Plaintiff’s counsel accepted this case pro bono.
Accordingly, this factor is not relevant to the Court’s
determination.
(7) Time Limitations Imposed by the Client or Circumstances
of the Case
The circumstances of this case imposed considerable time
constraints on Plaintiff’s counsel.
In particular, Plaintiff’s
pending deportation hearing required Plaintiff’s counsel to
complete work in an expeditious fashion in order to secure access
to the requested documents when they would still be of potential
value to Plaintiff.
Because there was little time for
unnecessary or redundant work, the Court finds that this factor
further confirms the reasonableness of the hours counsel expended
in this case.
(8) Amount Involved and Results Obtained
The degree of success obtained is perhaps the most important
Johnson factor.
Abner v. Kansas City So. Ry. Co., 541 F.3d 372,
376–77 (5th Cir. 2008) (citing Johnson v. Ga. Highway Express,
488 F.2d 714, 717–19 (5th Cir. 1974)).
Here, Plaintiff was
successful on virtually every disputed issue in this litigation.
43
Furthermore, though his counsels’ diligent efforts, he has
successfully achieved the ultimate relief sought when he filed
this lawsuit, in that he has obtained
access to each of the
requested documents previously withheld by Defendant.
Plaintiff’s counsel therefore deserve recognition and
compensation commensurate with this level of success, and the
Court finds that the lodestar provides as much.
(9) Experience, Reputation, and Ability of Attorneys
This factor was already accounted for in the Court’s
calculation of the lodestar benchmark amount.
(10) Undesirability of the Case
This factor is intended to incentivize attorneys to accept
undesirable cases, most often in the civil rights context. See
Cooper v. Pentecost, 77 F.3d 829 (5th Cir. 1996).
However, an
upward adjustment is rarely given under this factor, and, in any
event, Plaintiff does not seek an adjustment under this factor.
Accordingly, this factor does not warrant an adjustment in this
circumstance.
(11) Nature and Length of Professional Relationship with
Client
The rationale behind this factor is to compensate attorneys
who have discounted their fees to longstanding clients. See
Johnson, 488 F.2d at 719.
Because Plaintiff’s counsel accepted
44
this case pro bono, the considerations underlying this factor are
not implicated here. As such, the Court will not apply this
factor.
(12) Awards in Similar Cases
The parties have not provided any information regarding fee
awards in other FOIA cases.
While there appear to be few cases,
if any, from this district in which a FOIA litigant was awarded
attorneys’ fees, the Court has independently reviewed several
cases from other districts and is sufficiently satisfied that the
fee award in this case is not disproportionate to those awarded
in other similar cases.
iv.
Litigation Costs
FOIA also provides for a prevailing party to recover
“litigation costs reasonably incurred.”
522(a)(4)(E).
5 U.S.C. §
Plaintiff seeks to recover $2,617.60 in litigation
costs, representing $2,367.60 for deposition transcription costs
and $250 in filing fees.
The costs of depositions are generally
recoverable “if the taking of the deposition is shown to have
been reasonably necessary in the light of facts known to counsel
at the time it was taken.”
Copper Liquor, Inc. v. Adolph Coors
Co., 684 F.2d 1087, 1099 (5th Cir. 1982), modified in part on
other grounds, 701 F.2d 542 (5th Cir. 1983) (en banc), overruled
on other grounds, Int'l Woodworkers v. Champion Intern., 790 F.2d
45
1174, 1175 (5th Cir. 1986).
Here, the Court previously found that the depositions for
which Plaintiff seeks compensation were “the most appropriate
procedure to resolve the factual dispute between the parties
regarding the adequacy of Defendant’s response to Plaintiff’s
FOIA request.”20
The Court therefore finds that such costs were
reasonably incurred and are clearly recoverable.
Having reviewed
the evidence submitted in support of this request,21
the Court
concludes these expenses are sufficiently documented and will
therefore award Plaintiff the full $2,617.60 requested.
D. Conclusion
Plaintiff Joaquin Navarro Hernandez has demonstrated that he
has both “substantially prevailed” in this litigation and that he
is entitled to an award of reasonable attorneys’ fees and costs,
as required under 5 U.S.C. § 552(a)(4)(E).
Accordingly, and for
the reasons stated above,
IT IS ORDERED that Plaintiff Joaquin Navarro Hernandez’s
Motion for Attorneys’ Fees and Costs (Rec. Doc. 56) is GRANTED.
IT IS FURTHER ORDERED that Defendant United States Customs
and Border Protection Agency shall remit payment to Plaintiff in
20
Order on Motion for Protective Order, Rec. Doc. 35.
21
Rec. Doc. 56-7.
46
the amount of $51,526.60, representing $48,909.00 for attorneys’
fees and $2,617.60 for litigation costs.
New Orleans, Louisiana this 6th day of February, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
47
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?