Dasilva v. United States Citizenship and Immigration Services et al

Filing 82

ORDER AND REASONS granting in part, denying in part, and dismissing without prejudice in all other respects 70 Motion for Attorney Fees and Costs. FURTHER ORDERED that on or before 3/10/2014, plaintiff shall file a separate motion, including a revised time sheet consistent with the directives herein, addressing the proper amount of attorney's fees relative solely to the disclosure of the second set of documents. Signed by Judge Lance M Africk on 2/24/2014. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAFAEL ELLWANGER DASILVA

CIVIL ACTION

VERSUS

No. 13-13
SECTION I

U.S. CITIZENSHIP AND
IMMIGRATION SERVICES

ORDER AND REASONS
Before the Court is a motion1 by plaintiff, Rafael Ellwanger DaSilva, for attorney’s fees and
costs pursuant to 5 U.S.C. § 552(a)(4)(E), to which defendant, the United States Citizenship and
Immigration Services (“USCIS”), has filed an opposition.2 For the following reasons, the motion is
GRANTED IN PART, DENIED IN PART, and DISMISSED WITHOUT PREJUDICE in all
other respects.
BACKGROUND
The Court assumes familiarity with the factual background of this case3 and only briefly
reviews a timeline of relevant dates.
On November 30, 2012, plaintiff submitted a request to the USCIS National Records Center,
essentially requesting that it furnish his alien file (“A-File”) and copies of emails concerning
plaintiff sent to and/or received from certain USCIS employees.4 On December 13, 2012, USCIS
indicated to plaintiff that his request had been assigned a case number and placed in the “fast track”

1

R. Doc. No. 70. Plaintiff seeks $46,076.44 in attorney’s fees and costs. R. Doc. No. 70-2, at 20.
R. Doc. No. 72.
3
E.g., R. Doc. No. 62.
4
R. Doc. No. 62, at 1-2.
2

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for a response, although it would still be responded to on a “first-in, first-out basis.”5 On January 4,
2013, plaintiff filed a complaint against USCIS and several of its employees pursuant to the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552.6 On February 25, 2013, plaintiff received a production
of documents from USCIS totaling approximately 1,300 pages, which appeared to comprise
plaintiff’s A-file, but which did not include the requested emails.7
On May 1, 2013, plaintiff filed a motion for summary judgment, highlighting the fact that
no responsive email correspondence was included in USCIS’s February 25 disclosure.8 On May 7,
2013, USCIS notified the Court and plaintiff that USCIS had located additional responsive
documents,9 and USCIS later explained that it had “inadvertently overlooked the portions” of
plaintiff’s request that referenced electronic correspondence.10 After processing the records, USCIS
mailed an additional approximately 1,100 pages of documents to plaintiff on May 20, 2013.11
Although plaintiff challenged the redactions in both sets of documents, the Court rejected
his challenges, and eventually granted summary judgment in favor of defendant and against
plaintiff.12
LAW AND ANALYSIS
Plaintiff seeks attorney’s fees pursuant to 5 U.S.C.A. § 552(a)(4)(E), which provides:

5

R. Doc. No. 50-1, at 2; R. Doc. No. 1-2, at 19.
R. Doc. No. 1.
7
R. Doc. No. 39-1, at 4.
8
R. Doc. No. 39-1, at 5-6.
9
R. Doc. No. 44, at 2.
10
R. Doc. No. 50, at 2; see also R. Doc. No. 50-1, at 3.
11
R. Doc. No. 50-1, at 3.
12
R. Doc. No. 62.
6

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(E)(i) The court may assess against the United States reasonable attorney fees and
other litigation costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed.
(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.
Pursuant to this statute, the Court follows a two-pronged approach. “The eligibility prong asks
whether a plaintiff has substantially prevailed and thus may receive fees. If so, the court proceeds to
the entitlement prong and considers a variety of factors to determine whether the plaintiff should
receive fees.” Batton v. IRS, 718 F.3d 522, 525 (5th Cir. 2013) (quoting Brayton v. Office of the U.S.
Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)). The Court considers each prong in turn.
See id.
I. Eligibility
Plaintiff’s request is premised on subsection (E)(ii)(II). This subsection, which took effect on
December 31, 2007, codifies the catalyst theory of causation. See Batton, 718 F.3d at 525. According
to plaintiff, his lawsuit was the catalyst for the voluntary or unilateral change in USCIS’s position,
by which it released all of the requested records only after plaintiff filed a complaint and moved for
summary judgment.13 Defendant contends that any delay in the disclosure of the relevant documents

13

R. Doc. No. 46, at 1.
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was a “result of delayed administrative proceedings, not a voluntary or unilateral change in the
government’s position.”14
To show that plaintiff is eligible for attorney fees pursuant to the catalyst theory “requires
‘showing 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.’”
Batton, 718 F.3d at 525 (quoting Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980)). “The
causation requirement is missing when disclosure results not from the suit but from delayed
administrative processing.” Contreras v. U.S. Dep’t of Justice, 729 F. Supp. 2d 167, 170 (D.D.C.
2010). Accordingly, “The mere fact that the information sought was not released until after the suit
was instituted without more is insufficient to establish that [a plaintiff] ‘substantially prevailed.’”
Lovell, 630 F.2d at 432.
With respect to the first set of documents, which constituted plaintiff’s A-file and did not
include any emails, “the government did not engage in the sort of dilatory litigation tactics that [the
attorney’s fees] provision was aimed to prevent.” See Mobley v. Dep’t of Homeland Sec., 908 F.
Supp. 2d 42, 48 (D.D.C. 2012). Plaintiff initially submitted his FOIA request on November 20,
2012.15 Defendant indicated on December 13, 2012, that it was processing plaintiff’s request,16 and
plaintiff filed suit on January 4, 2013.17 “[T]he government’s compliance with [plaintiff’s] request
so early in the litigation is not the sort of agency behavior that Congress intended to prevent by
awarding attorney’s fees.” Id. at 48; see also Arevalo-Franco v. INS, 772 F. Supp. 2d 959, 961 (W.D.

14

R. Doc. No. 72, at 3.
R. Doc. No. 39-1, at 3.
16
R. Doc. No. 50-1, at 2.
17
R. Doc. No. 1.
15

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Tex. 1991) (“FOIA was not meant to reward plaintiffs who[,] impatient with justifiable delays at the
administrative level, resort to the squeaky wheel technique of prematurely filing suit in an effort to
secure preferential treatment.”) (quotation omitted). Morever, the Court notes that plaintiff’s
complaint was filed very quickly after his initial FOIA request, weakening any inference that the
filing of the complaint was the catalyst for the agency’s disclosure. Cf. Batton, 718 F.3d at 526
(“Indeed, Batton filed his FOIA suit after enduring the IRS’s continued and unexplained delays in
responding to his request for almost one year.”); Sikes v. United States, No. 312-045, 2013 WL
6633082, at *13 (S.D. Ga. Dec. 6, 2013) (“[T]he extensive correspondence between Plaintiff and
Defendants’ representatives demonstrates that the instant case is not one of a plaintiff prematurely
resorting to litigation to attain the requested materials.”). Accordingly, the Court finds that plaintiff
is not eligible for attorney’s fees relative to the disclosure of the first set of documents.
With respect to the second set of documents, by which the Court refers to the emails disclosed
in May 2012, plaintiff has demonstrated eligibility for attorney’s fees. Plaintiff requested “copies of
all written or electronic correspondence or communication, including, but not limited to, any email
correspondence.”18 The sentence requesting these materials was the only underlined portion of
plaintiff’s request.19 On May 7, 2013, in his opposition to defendant’s motion for summary judgment,
plaintiff highlighted the fact that no emails had been disclosed and that the declarations submitted
by defendant did not reflect that emails were ever searched.20 Later the same day, counsel for
defendant filed a motion to continue the submission date of the cross-motions for summary judgment,

18

R. Doc. No. 41-2, at 3.
R. Doc. No. 41-2, at 3.
20
R. Doc. No. 43-1, at 3-4.
19

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asserting that counsel “was recently advised by USCIS that additional documents have been located
that are responsive to Plaintiff’s FOIA request.”21
According to a declaration by Brian J. Welsh, Deputy Chief of the FOIA Program Branch,
National Records Center, USCIS, the email searches occurred on April 10, 2013, May 17, 2013, and
May 20, 2013.22 Notwithstanding the fact that these searches were, apparently, ongoing, defendant
nonetheless moved for summary judgment on May 1, 2013, neglecting to mention the ongoing
searches until the issue was raised in plaintiff’s May 7 filing. Moreover, defendant has not explained
why it “initiated a second, third, and fourth search for documents [] after it had [ostensibly]
completed processing and production of all records.” Am. Civil Liberties Union v. U.S. Dep’t of
Homeland Sec., 810 F. Supp. 2d 267, 275-76 (D.D.C. 2011). The only explanation for the delay is
that the initial request was somehow “missed,” and there is no suggestion that anything other than
plaintiff’s lawsuit caused the missed request to be revisited.23 Accordingly, the Court infers that the
requisite causal nexus exists between plaintiff’s lawsuit and defendant’s search for and disclosure of
the emails.
In conclusion, the first set of documents was disclosed to plaintiff within a matter of weeks,
and defendant indicated that the search for these documents was underway before plaintiff filed his
complaint. Accordingly, plaintiff is not eligible for attorney’s fees with respect to these documents.

21

R. Doc. No. 44, at 2.
R. Doc. No. 50-1, at 3.
23
The Court disagrees with plaintiff’s suggestion that the Court order requiring defendant to produce
these documents was the cause of such production. See, e.g., R. Doc. No. 70-2, at 17. Defendant
took the initiative in notifying the Court and plaintiff that these documents existed, and,
simultaneously, defendant indicated that the documents would be produced. R. Doc. No. 44, at 2
(“Defendants move to continue the pending motions . . . so that the remaining documents can be
produced and ruled upon.”).
22

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With respect to the second set of documents, plaintiff is eligible to receive attorney’s fees because
this set was disclosed after approximately five months and, more importantly, after defendant
submitted a declaration, sworn under penalty of perjury, to the effect that all documents had already
been disclosed24 and defendant then reconsidered its position after plaintiff moved for summary
judgment. Accordingly, the Court turns to whether plaintiff is entitled to such fees relative to the
second set of documents.
II. Entitlement
“District courts must consider four factors in the entitlement analysis: (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.” Batton, 718 F.3d at 527 (quotation omitted). “Additionally,
the court may consider any relevant equitable factors that may affect its balancing of the criteria
above.” Lovell, 630 F.2d at 432. The Court should assess these factors “against the backdrop of the
treble policies of the FOIA attorneys’-fees provision in (1) incentivizing private litigants to pursue
their claims by providing a means of overcoming barriers that government may erect in an effort to
escape compliance with the law; (2) deterring the government from opposing justifiable requests; and
(3) punishing the government where such opposition is unreasonable.” Batton, 718 F.3d at 527.
(quotation and modification omitted).
A. Purpose of Request

24

See R. Doc. No. 41-2, at 4 (“Based on a review of the located records, USCIS/NRC personnel
determined that the search was reasonably designed to locate any responsive documents . . . .”).
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“Essentially, the first three factors assist a court in distinguishing between requesters who
seek documents for public informational purposes and those who seek documents for private
advantage. The former engage in the kind of endeavor for which a public subsidy makes some sense,
and they typically need the fee incentive to pursue litigation; the latter cannot deserve a subsidy as
they benefit only themselves and typically need no incentive to litigate.” Davy v. CIA, 550 F.3d 1155,
1160 (D.C. Cir. 2008).
1. Public Benefit
“The first factor assesses the public benefit derived from the case, and requires consideration
of both the effect of the litigation for which fees are requested and the potential public value of the
information sought.” Davy, 550 F.3d at 1159 (citation and quotation omitted). “[T]he factor of ‘public
benefit does not particularly favor attorneys’ fees where the award would merely subsidize a matter
of private concern; this factor rather speaks for an award where the complainant’s victory is likely
to add to the fund of information that citizens may use in making vital political choices.” Blue v.
Bureau of Prisons, 570 F.2d 529, 533-34 (5th Cir. 1978).
Here, the effect of the litigation was the release of over one thousand pages of emails. The
potential public value of the information sought, however, is minimal. To the extent that plaintiff
argues that an award of attorney’s fees will deter future deter agency misconduct,25 the Court
addresses this argument below.
2. Commercial Benefit to Complainant
The parties essentially agree that there was no commercial benefit to plaintiff.26

25

R. Doc. No. 70-2, at 16.
R. Doc. No. 70-2, at 17; R. Doc. No. 72, at 5 (failing to identify a commercial benefit and arguing
that “regardless if Plaintiff did not have any commercial interest in the material sought, his personal
26

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3. Nature of Complainant’s Interest
Several articulations of plaintiff’s interest in the emails have been proposed, and the Court
considers each in turn.
a. Discovery
Much of plaintiff’s alleged interest relates to the need to use his A-file during removal
proceedings. For example, plaintiff’s request, by its very terms, was “in connection with removal
proceedings, which are currently taking place before the Immigration Court in New Orleans,
Louisiana.”27 In his complaint, plaintiff acknowledges that the purpose of requesting his A-file was
“for the purpose of obtaining proof of his status as a Lawful Permanent Resident so that he could
accord himself due process and properly defend himself in his recent removal proceedings.”28
According to the complaint, when plaintiff requested a copy of his A-file from U.S. Immigration and
Customs Enforcement (“ICE”), only a “small handpicked portion” was produced, and he was directed
to file a FOIA request to the extent that he wanted additional documents from the file.29
Insofar as plaintiff’s discovery-related justifications relate to the emails disclosed by
defendant, these justifications do not weigh in favor of an award of attorney’s fees.30 It is “settled law
that FOIA was not intended to be a substitute for discovery.” Cooper Cameron Corp. v. U.S. Dep’t
of Labor, Occupational Safety & Health Admin., 280 F.3d 539, 548 & n.39 (5th Cir. 2002); see also
Appleton Papers, Inc. v. EPA, 702 F.3d 1018, 1027 (7th Cir. 2012) (“FOIA is not a substitute for

interest in the material is so great it outweighs an award of attorney’s fees”).
27
R. Doc. No. 1-2, at 7.
28
R. Doc. No. 1, at 1.
29
R. Doc. No. 1, at 6; see also R. Doc. No. 1-2, at 4.
30
To the extent that discovery-related justifications apply to the A-file, these justifications remain
unavailing, but the Court has already found plaintiff ineligible for attorney’s fees as to these
materials.
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discovery.”). Accordingly, plaintiff’s use of FOIA “as a substitute for discovery constitutes a private,
noncompensable personal interest.” Ellis v. United States, 941 F. Supp. 1068, 1079 (D. Utah 1996).
b. Alleged Agency Misconduct
In addition to discovery, plaintiff has provided additional articulations of his interest in the
emails. In his motion for summary judgment, plaintiff explained the reason that he sought the email
correspondence as follows:
Although FOIA does not require the requester to explain a reason for a FOIA
request, it is important to notify this Honorable Court that the reason why Plaintiff
wants to review the specified Defendants’ Emails is because, for several years,
[three] USCIS employees refused to adjudicate Plaintiff’s properly filed petition for
lawful permanent residence (“Form I-485”), . . . [and] unlawfully closed Plaintiff’s
case without adjudicating the Form I-485, while confiscating Plaintiff’s $1,070.00
application fee. . . . Undersigned counsel currently has two other clients with
factually similar cases, whose $1,070.00 filing fees have also been confiscated and
their cases closed without adjudication . . . by the aforementioned USCIS
Adjudications Officer Mary Patin. It is important to find out if USCIS Adjudications
Officer Mary Patin is simply one rogue USCIS employee who is refusing to follow
the law for a yet undetermined reason; or if this is part of a pattern and practice at the
USCIS New Orleans Field Office, which could involve hundreds of immigrants and
hundreds of thousands of dollars in unlawfully confiscated fees.31

In his current motion for attorney’s fees, he explains that the purpose of the request was to permit
plaintiff and his attorney: (1) to determine the individual “who directed ICE attorney Joe LaRocca
to refuse . . . to give Mr. DaSilva a copy of his A-File”; (2) to determine who “directed Officer Mary
Patin to refuse to adjudicate” plaintiff’s Form I-485; and (3) to determine who “directed Officer Mary
Patin . . . to place Mr. DaSilva into removal proceedings.”32

31
32

R. Doc. No. 39-2, at 15-16.
R. Doc. No. 70-2, at 3.
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The Court interprets these statements to suggest two alternative justifications: identifying the
individual allegedly responsible for misconduct relative to plaintiff’s removal proceedings and
identifying a pattern or practice of agency misconduct.
With respect to the argument that the disclosure of the emails would assist plaintiff in
identifying an individual who allegedly directed USCIS employees to take certain actions relative
to plaintiff’s removal proceedings, there is no ascertainable public interest at stake. With respect to
the pattern or practice argument, this is not a case where a plaintiff “obtained relief ‘not just for
himself, but also for other litigants and attorneys.’” See Hajro v. USCIS, 900 F. Supp. 2d 1034, 1048
(N.D. Cal. 2012) (quotation omitted). While plaintiff may characterize an “overarching goal” of
modifying defendant’s policies, there is no indication of how plaintiff’s request relative to his
“personal dispute with [defendant] provides a public benefit.” Id. at 1047.
c. Increasing A-File Accessibility
Plaintiff also characterizes his interest in part as “gathering and disseminating information
of interest to other members of the American Immigration Lawyers Association in order to increase
the public fund of knowledge about a matter of public concern, namely the govenrment[’s] continued
refusal to follow The Mandatory Access Law [or] to allow people in removal proceedings to obtain
a copy of their A-File without going through the formal FOIA process . . . .”33 However, as previously
noted, plaintiff is not eligible for attorney’s fees relative to the disclosure of his A-file.
d. Conclusion

33

R. Doc. No. 70-2, at 18.
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“[T]he successful FOIA plaintiff always acts in some degree for the benefit of the public, both
by bringing government into compliance with the FOIA disclosure policy and by securing for the
public at large the benefits assumed to flow from the public disclosure of government information.”
Blue, 570 F.2d at 533 (quotation omitted). Here, however, the award of attorney’s fees “would merely
subsidize a matter of private concern.” Id. at 533-34. Accordingly, while plaintiff’s interest is not
commercial, which weighs in favor of an award of attorney’s fees, the personal nature of that interest
and the lack of a public benefit weigh against an award of attorney’s fees.
The Court concludes that plaintiff’s self interest is sufficient motivation for the pursuit of his
lawsuit. “The court should not ordinarily award fees under this situation unless the government
officials have been recalcitrant in their opposition to a valid claim or have been otherwise engaged
in obdurate behavior.” Cazalas v. U.S. Dep’t of Justice, 709 F.2d 1051, 1054 (5th Cir. 1983) (quoting
Senate Report No. 93-854 at 19). In determining whether defendant has been recalcitrant or obdurate,
the Court proceeds to the fourth factor—the basis in law for the government’s withholdings.
B. Basis in Law
The burden is on the government to demonstrate that its withholding of responsive documents
had a reasonable basis in law. See Davy, 550 F.3d at 1162-63; Citizens for Responsibility & Ethics
in Wash. v. U.S. Dep’t of Justice, 820 F. Supp. 2d 39, 47 (D.D.C. 2011) (“Significantly, the burden
remains with the agency: The question is not whether Plaintiff has affirmatively shown that the
agency was unreasonable, but rather whether the agency has shown that it had any colorable or
reasonable basis for not disclosing the material until after Plaintiff filed suit.”) (quotation omitted).
Defendant relies on two arguments: first, that plaintiff’s request was ultimately processed within the

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typical time frame for similar requests and, second, that the Court has ultimately found the
withholdings and redactions justified.34
Relative to the emails, defendant argues that “non-A-file material” processing can take “up
to 109 business days.”35Therefore, defendant acted “reasonably,” and “in the same manner it handles
a typical FOIA request.”36 The Court finds this argument unpersuasive because Defendant submitted
sworn declarations that disclosure was complete when searches were still ongoing. As previously
noted, there is no indication that, were it not for the pending litigation, Defendant would have
revisited the request for emails.
With respect to the argument that defendant’s eventual disclosures and withholdings were
justified, it is insufficient to argue merely that the government was justified in its ultimate
withholdings, notwithstanding the delay associated with the disclosures. Rather, “[s]ince plaintiff[’s]
challenge is to the government’s delay in releasing the records rather than its substantive claims of
exemption, the reasonableness factor does not favor a fee award so long as the government did not
engage in obdurate behavior or bad faith.” Ellis, 941 F. Supp. at 1080. If defendant did engage in
obdurate or recalcitrant behavior or bad faith, such conduct may “merit[] an award that serves a
punitive purpose, almost regardless of the necessity of such an award to encourage an FOIA
complainant to pursue his or her rights.” Cazalas, 70 F.2d at 1054.37
Neither party has identified a case where the government initially overlooks a portion of a
request and then revisits the request in light of ongoing litigation. The U.S. District Court for the

34

R. Doc. No. 72, at 6.
R. Doc. No. 72, at 7.
36
R. Doc. No. 72, at7.
37
Attorney’s fees may also be appropriate if “an agency’s nondisclosure was designed to avoid
embarrassment or thwart the requester.” Blue, 570 F.2d at 534.
35

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District of Columbia, however, has characterized a “persistent and inexplicable refusal to search” the
proper database, “despite misleading representations otherwise,” as “a distressing active disregard”
of FOIA obligations. Negley v. FBI, 658 F. Supp. 2d 50, 58 (D.D.C. 2009). That Court has also
persuasively found that a defendant “ did not have a reasonable basis for withholding . . . records that
were produced after the defendants had [allegedly] ‘completed processing and production of all
records.’” Am. Civil Liberties Union, 810 F. Supp. 2d at 277.
In the instant matter, defendant’s filings, including its motion for summary judgment and
accompanying evidence, suggested that defendant only searched the A-file for responsive documents
because “all immigration transactions and communications involving a particular individual are
documented and stored [in his A-file] as he passes through the immigration and inspection process.”38
The attached declaration by Jill A. Eggleston, Assistant Center Director in the FOIA and Privacy Act
Unit of USCIS, repeated plaintiff’s request for “all written or electronic correspondence or
communication, including, but not limited to, any email correspondence.”39
Defendant’s initial withholding of the emails did not have “even a colorable basis in law”—it
was the result of an oversight. See Cazalas, 709 F.2d at 1055. The Court need not determine whether
a mere oversight, however significant, is the type of “obdurate” conduct warranting attorney’s fees.
Defendant’s sworn declarations and pleadings, which reiterated that plaintiff sought email
communications, and then asserted that “all communications” would be in his A-file, are plainly
misleading. See Am. Civil Liberties Union, 810 F. Supp. 2d at 275-76; Negley, 658 F. Supp. 2d at 58.
“[W]hether blunder or subterfuge, [this] ‘is the kind of recalcitrant and obdurate conduct’” that merits

38
39

R. Doc. No. 41-1, at 7 (emphasis added).
R. Doc. No. 41-2, at 3.
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attorney’s fees. See Nat’l Sec. Archive v. U.S. Dep’t of Def., 530 F. Supp. 2d 198, 209 (D.D.C. 2008)
(quoting Piper v. U.S. Dep’t of Justice, 339 F. Supp. 2d 13, 23 (D.D.C. 2004)).
III. Hourly Rate
Once a district court concludes that a party is entitled to attorney’s fees, it utilizes the lodestar
method to determine the amount to be awarded. Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th
Cir. 1997). Under this method, a district court must determine the reasonable number of hours
expended on the litigation and the reasonable hourly rates for the participating attorneys, and then
multiply the two figures together to arrive at the “lodestar.” Id. (citing Louisiana Power & Light Co.
v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995); Forbush v. J.C. Penney Co., 98 F.3d 817, 821 (5th
Cir. 1996)). The lodestar is then adjusted upward or downward, depending on the circumstances of
the case, after assessing the dozen factors set forth in Johnson v. Georgia Highway Express, 488 F.2d
714, 717-19 (5th Cir. 1974); see also Blue, 570 F.2d at 531.
Even if plaintiff’s counsel had focused his time sheet solely on the two FOIA requests at
issue, the Court would be unable to ascertain the percentage of plaintiff’s hours associated with the
second set of documents disclosed by FOIA, for which additional briefing will be required. See Nat’l
Sec. Archive, 530 F. Supp. 2d at 209 (“[Defendant’s] inability to segregate the time spent on the claim
it won from the time spent on the claim it lost militates against the award of fees it seeks.”). The
Court pauses, however, to address troubling aspects of the existing time sheet. See Piper, 339 F.
Supp. 2d at 24. For example, plaintiff requests compensation for four hours associated with counsel’s
“[t]ravel to U.S. Attorney’s office/Conference with Defense counsel to pick up I-551 (green card) /
Return to office from U.S. Attorney’s office” and for counsel’s round trip travel to plaintiff’s house

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“to hand deliver” plaintiff’s green card and personally confer with plaintiff.40 These activities appear
wholly unrelated to either of plaintiff’s FOIA claims, much less his successful one.41 Id. (“Nor should
fees be granted for hours spent on unsuccessful claims that are distinct in all respects from successful
claims.”). The Court anticipates that such items will be justified by (or omitted from) plaintiff’s
revised time sheet. The Court proceeds to consider the proper hourly rate at which fees will be
assessed.
Plaintiff’s counsel seeks fees in the amount of $295.00 per hour,42 which he contends is a
“reasonable market rate for an attorney with [his] background and experience.”43 Defendant argues
that this rate is excessive for an attorney with six to seven years of experience practicing in the
Eastern District of Louisiana44 and that his hourly rate should be capped at approximately $175.00
per hour.45
“‘[R]easonable’ hourly rates ‘are to be calculated according to the prevailing market rates in
the relevant community.’” McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (quoting
Blum v. Stenson, 465 U.S. 886, 895 (1984)). “[T]he burden is on the applicant to produce satisfactory
evidence that the requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Id. (quoting Blum,

40

R. Doc. No. 70-3, at 3.
The Court has denied plaintiff’s motion for attorney’s fees relative to his pursuit of a replacement
green card. R. Doc. No. 81; see also, e.g., R. Doc. No. 70-3, at 6 (claiming 6.40 hours of attorney’s
fees for work on a supplemental memorandum challenging the basis for defendant’s redactions); R.
Doc. No. 62; R. Doc. No. 68 (granting USCIS’s motion for summary judgment relative to the
redactions).
42
R. Doc. No. 70-4, at 2.
43
R. Doc. No. 70-5, at 2; see also R. Doc. No. 70-8, at 2. He represented plaintiff in this matter pro
bono. R. Doc. No. 70-5, at 2; R. Doc. No. 70-8.
44
R. Doc. No. 72, at 7.
45
R. Doc. No. 72, at 9.
41

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465 U.S. at 896 n.11). “Satisfactory evidence of the reasonableness of the rate necessarily includes
an affidavit of the attorney performing the work and information of rates actually billed and paid in
similar lawsuits. However, mere testimony that a given fee is reasonable is not satisfactory evidence
of a market rate.” Cole v. Orleans Parish Sheriff’s Office, No. 11-2211, 2013 WL 5557416, at *2
(E.D. La. Oct. 8, 2013) (Roby, Mag. J.) (citations omitted).
Plaintiff’s counsel graduated from the Barry University Dwayne O. Andreas School of Law
in 2006.46 From November 2007 to the present, counsel has “been the owner of The Immigration Law
Firm of New Orleans, specializing in the area of immigration law,” which his exclusive area of
practice,47 and he has represented “hundreds of clients” in this area.48 Accordingly, counsel has
approximately seven years of experience in immigration law, but counsel has not indicated how that
experience related to plaintiff’s FOIA claim. Similarly, counsel has not provided any evidence or
argument as to his experience with FOIA.
“When an attorney’s customary billing rate is the rate at which the attorney requests the
lodestar be computed and that rate is within the range of prevailing market rates, the court should
consider this rate when fixing the hourly rate to be allowed.” La. Power & Light Co., 50 F.3d at 32.
Plaintiff’s counsel has submitted a declaration to the effect that $295.00 hourly is his customary
billing rate.49 But this does not demonstrate that $295.00 is the rate “actually billed and paid in

46

R. Doc. No. 70-5, at 2.
R. Doc. No. 70-5, at 2. Based on the firm’s website, it appears that he is the firm’s only attorney.
THE IMMIGRATION LAW FIRM, http://www.immigrationlawneworleans.com (last visited
February 20, 2014).
48
R. Doc. No. 70-5, at 2.
49
R. Doc. No. 70-5, at 2.
47

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similar lawsuits,” Blum, 465 U.S. at 896 n. 11 (emphasis added), given that counsel’s primary
practice appears to be immigration law, rather than FOIA.50
Plaintiff also has attached a Laffey Matrix, prepared by the Civil Division of the U.S.
Attorney’s Office for the District of Columbia, and highlighted that an attorney with 4-7 years
corresponds to an hourly rate of $290.00 in the matrix.51 The Court finds the Laffey Matrix
unpersuasive, in part because there is no evidence that rates in the District of Columbia are
comparable to rates in the Eastern District of Louisiana. See also In re Enron Corp. Sec., Derivative
& ERISA Litig., 586 F. Supp. 2d 732, 819 (S.D. Tex. 2008) (Harmon, J.) (“[T]his Court agrees that
not only is there no case in the Fifth Circuit that has applied the Laffey Matrix to determine
reasonable fees, but the Fifth Circuit has clearly endorsed an alternative approach, the twelve-factor
Johnson test, for that purpose.”).
Plaintiff’s counsel has failed to advise the Court of his experience relative to FOIA requests,
as opposed to immigration law. After reviewing recent caselaw from the Eastern District of
Louisiana, however, the Court concludes that an hourly rate of $200.00 is appropriate given counsel’s
seven years of experience in immigration law and the absence of any evidence specifying his
experience in representing clients with FOIA claims. See, e.g., Marks v. Standard Fire Ins. Co., No.
09-1947, 2010 WL 487403 (E.D. La. Feb. 3, 2010) (awarding $185.00 hourly to an attorney with
seven years of experience).
Finally, the Court notes that plaintiff seeks $793.94 in costs,52 and defendant has not set forth
any opposition to this request.

50

Of note,
R. Doc. No. 70-7, at 2 & n.1; see also R. Doc. No. 70-2, at 9.
52
R. Doc. No. 70-2, at 20.
51

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CONCLUSION
For the foregoing reasons, the Court concludes that plaintiff is eligible and entitled to recover
attorney’s fees for the aspects of his lawsuit that related to the disclosure of the second set of
documents. While the lack of a public benefit from this litigation and the personal nature of plaintiff’s
interest weigh heavily against an award of such fees, defendant’s misleading conduct in the pending
litigation merits an award of fees that will serve to deter future conduct. The Court notes, however,
that a reduction may be appropriate given “plaintiff’s manifest private interest in this case,” Piper,
339 F. Supp. 2d at 25.
IT IS ORDERED that the motion is GRANTED IN PART. Plaintiff is eligible and entitled
to recover attorney’s fees for the aspects of his lawsuit that relate to the disclosure of the second set
of documents.
IT IS FURTHER ORDERED that the motion is GRANTED IN PART without opposition
and that plaintiff is entitled to an award of $793.94 in costs.
IT IS FURTHER ORDERED that the motion is DENIED IN PART. Plaintiff is neither
eligible nor entitled to recover attorney’s fees for the aspects of his lawsuit that relate to the
disclosure of the first set of documents.
IT IS FURTHER ORDERED that the motion is DISMISSED WITHOUT PREJUDICE
in all other respects.

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IT IS FURTHER ORDERED that on or before March 10, 2014, plaintiff shall file a
separate motion, including a revised time sheet consistent with the directives herein, addressing the
proper amount of attorney’s fees relative solely to the disclosure of the second set of documents.

New Orleans, Louisiana, February 24, 2014.

_________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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