Gahagan v. United States Customs and Border Protection et al

Filing 71

ORDER granting 62 Motion for Attorney Fees. Signed by Judge Nannette Jolivette Brown on 6/1/16. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL GAHAGAN

CIVIL ACTION

VERSUS

CASE NO. 14-2619

UNITED STATES CUSTOMS AND BORDER
PROTECTION, et al.

SECTION: “G”(2)

ORDER
In this action arising under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),
Plaintiff Michael W. Gahagan (“Gahagan”) sought relief in connection with his request for
agency records he claims that Defendants United States Customs and Border Protection
(“CBP”), United States Immigration and Customs Enforcement (“ICE”), and United States
Department of State (“Department of State”) (collectively “Defendants”) unlawfully withheld.1
Pending before the Court is Gahagan’s “Motion for Attorney’s Fees and Costs Pursuant to the
Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E).” 2 Having reviewed the motion, the
memoranda in support, the memorandum in opposition, the record, and the applicable law, the
Court will grant the motion and award Gahagan $16,485.70, representing $16,016 for attorney’s
fees and $469.70 for litigation costs.
I. Background
Gahagan, an immigration attorney, filed the instant action against Defendants in order to
obtain materials required to represent his client, Theodore Weegar, in removal proceedings before

1

Rec. Doc. 1.

2

Rec. Doc. 62.

1

the New Orleans Immigration Court. 3 In his complaint, Gahagan alleges that he filed FOIA requests
seeking these materials from Defendants in July 2014. 4 He further alleges that, as of November 15,
2014, when he filed the instant complaint, he had received no response from CBP. 5 ICE, on the
other hand, allegedly notified Gahagan that it “would . . . forward [his] request” to the United States
Citizenship and Immigration Services (“USCIS”), prompting Gahagan to appeal ICE’s “refusal to
search its files for the requested agency records” on August 18, 2014. 6 Gahagan maintains that, as
of November 15, 2014, he had received 56 “fully redacted and fully withheld agency records” from
USCIS marked “Referred to Immigrations and Customs Enforcement,” but that he had received no
response from ICE regarding his request or his appeal. 7 Finally, Gahagan contends that the
Department of State mailed him a letter on July 31, 2014 requesting additional information to
process his request, an action Gahagan deemed to be a denial of his request, prompting him to file
a FOIA appeal.8 Gahagan avers that he supplied the requested information to the Department of
State, but had received “no substantive reply” at the time he filed the instant complaint on November
15, 2014. 9
On November 24, 2014 and December 29, 2014, Plaintiff filed two successive motions for

3

Rec. Doc. 1.

4

Id. at 4.

5

Id. at 4–5.

6

Id. at 5–6.

7

Id. at 6.

8

Id. at 6–7.

9

Id. at 7.

2

summary judgment. 10 The Court granted in part and denied in part those motions. 11 On July 19,
2015, Gahagan filed a third motion for summary judgment, which the Court granted in part and
denied in part. 12 Gahagan filed the instant motion on November 20, 2015. 13 Defendants filed an
opposition on December 1, 2015. 14 With leave of Court, Gahagan filed a reply on December 4,
2015. 15
II. Parties’ Arguments
A.

Gahagan’s Arguments in Support of an Award of Attorney’s Fees and Costs
In his motion, Gahagan requests an award of $34,777 in attorney’s fees, representing a rate

of $300 per hour, as well as costs in the amount of $469.70, pursuant to 5 U.S.C. § 552(a)(4)(E). 16
Gahagan asserts that he is both eligible and entitled to an award of attorney’s fees and costs pursuant
to FOIA because he substantially prevailed in the underlying litigation pursuant to 5 U.S.C. §
552(a)(4)(E)(ii)(I) and (II). 17 According to Gahagan, he substantially prevailed in his lawsuit
because he: “(1) filed a FOIA request with the government; (2) the government failed to disclose
the requested records with the legally mandated Vaughn index within 20 business days as mandated
by FOIA; (3) Plaintiff sued the government because he had exhausted his administrative remedies;
and (4) the agency then released the requested information both voluntarily and pursuant to multiple

10

Rec. Docs. 9, 24.

11

Rec. Docs. 46, 47.

12

Rec. Docs. 49, 57.

13

Rec. Doc. 62.

14

Rec. Doc. 63.

15

Rec. Doc. 67.

16

Rec. Doc. 67-1 at 8.

17

Id. at 1.

3

Court Orders.” 18 Gahagan contends that he substantially prevailed because the Court ordered
Defendants to conduct a legally adequate search and produce a Vaughn index, and because
Defendants made a voluntary or unilateral change in their position and finally produced the
requested information after three motions for summary judgment. 19
Gahagan asserts that the Fifth Circuit has explained that in enacting FOIA, Congress has
evinced a strong desire “to establish a national policy of open government through the disclosure
of government information” and “[a] crucial means of implementing the policy is a liberal attorney
fee provision.” 20 Gahagan asserts that in determining whether a claimant is entitled to an award, a
court should consider 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.” 21 First, in support of his contention that the public derived a benefit from this case, Gahagan
cites a Northern District of California case, Mayock v. Immigration and Naturalization Service,
asserting that Mayock is factually and legally identical to this case and the attorney in that case
was granted attorney’s fees. 22 Gahagan also cites a Fifth Circuit case, Blue v. Bureau of Prisons,
in which the court stated that “the 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 disclosure of

18

Id. at 2–3 (internal citations omitted).

19

Id. at 2.

20

Id. at 4 (quoting Cazalas v. Dep’t of Justice, 709 F.2d 1051, 1057 (5th Cir. 1983)).

21

Id. at 8 (quoting State of Texas v. Interstate Commerce Comm’n, 935 F.2d 728, 730 (5th Cir. 1991)).

22

Id. at p. 9 (citing 736 F. Supp. 1561, 1564 (N.D. Cal. May 16, 1990)).

4

government information.” 23 Gahagan asserts that the release of documents worked to preserve the
integrity of the Immigration Court proceedings. 24 According to Gahagan, attorney’s fees in this
case are appropriate because the FOIA response helped protect the public’s interest in the fair
administration of justice. 25 Gahagan acknowledges that an individual desire to access information
does not always mean that there is a public benefit; however, he asserts that an individual desire
does not preclude an award of attorney’s fees. 26
Second, Gahagan asserts that there was no commercial benefit to him as he is an
immigration attorney who filed this lawsuit in order to obtain information from the government,
information that he asserts was necessary to effectively represent his client. 27 Gahagan contends
that he was not using the information to make a profit and he actually lost income by having to
refuse a new case due to the time-consuming nature of the litigation. 28
Third, Gahagan contends that the nature of his interest in the records weighs in favor of his
entitlement to attorney’s fees. 29 In support, Gahagan cites a case from another section of the
Eastern District of Louisiana, Hernandez v. United States Customs and Border Protection Agency,
where, according to Gahagan, the court determined that an immigrant placed in deportation
proceedings who sued the government to obtain the documents he needed to defend himself
implicated “the strong public interest in preserving the administration of justice in our nation’s

23

Id. (citing 570 F. 2d 529, 533 (5th Cir. 1978)).

24

Id. (citing Jarno v. Dep’t of Homeland Sec., 365 F. Supp. 2d 733, 738 (E.D. Va. Apr. 18, 2005)).

25

Id. (citing Jarno, 365 F. Supp. 2d at 738)).

26
Id. (citing Cazalas v. Dep’t of Justice, 709 F.2d 1051, 1053 (5th Cir. 1983); Hernandez v. U.S. Customs
& Border Protection Agency, No. 10-4602, 2012 WL 398328, at *8 (E.D. La. Feb. 7, 2012) (Barbier, J.)).
27

Id. at 11.

28

Id.

29

Id.

5

immigration courts.” 30 Gahagan asserts that although the government may argue that he filed his
FOIA request as a substitute for discovery, “FOIA is the exclusive means that a respondent in
Immigration Court proceedings must use to obtain documents for use in immigration
proceedings.” 31 Gahagan contends that the government routinely refuses to produce requested
documents in a timely manner under the statute and he often has to resort to litigation to obtain the
agency records he needs to effectively represent his clients. 32 According to Gahagan, although
some courts have recognized that an award of attorney’s fees is generally inappropriate when a
litigant utilizes FOIA as a means of obtaining earlier access to information for use in other pending
litigation, this case is distinguishable from those cases because the vast majority of them involve
business firms seeking trade information for use in private civil litigation, and none involve
deportation proceedings. 33
Fourth, Gahagan contends that he is entitled to attorney’s fees under FOIA because the
government caused “unnecessary litigation by untruthfully arguing that ‘there is a litany of cases
[that] place the burden squarely on a plaintiff when deciding injunctive relief in FOIA matters,’
even though no Judge has ever applied a preliminary injunction standard to a FOIA cause of action
without the Plaintiff first moving for a preliminary injunction.” 34 Gahagan contends that opposing
counsel’s untruthful factual and legal arguments and the filing of misleading pleadings are not an
isolated incident. 35 Furthermore, according to Gahagan, the government has the burden of proof

30

Id. at 12 (citing Hernandez, 2012 WL 398328, at *11).

31

Id. at 13 (citing Jarno, 365 F. Supp. 2d at 740).

32

Id.

33

Id. at 14–15.

34

Id. at 17.

35

Id. (citing DaSilva v. U.S. Citizenship and Immigration Servs., No. 13-13, 2014 WL 775606, at *7 (E.D.

6

with respect to this element and they have failed to meet this burden. 36 Gahagan asserts that the
question is not whether the plaintiff has affirmatively shown that the agency was unreasonable,
but whether the agency has shown that it had any colorable or reasonable basis for not disclosing
the material before the plaintiff filed suit. 37
Gahagan contends that once a plaintiff is deemed eligible and entitled to attorney’s fees,
the court turns to the proper amount of the fee award. 38 He asserts that the court determines the
proper attorney’s fee award by multiplying the hours reasonably expended in the litigation by a
reasonable hourly fee, producing what is called the lodestar. 39 Gahagan asserts that he is requesting
$300 per hour because that is the “prevailing market rate[] in the relevant community for similar
services by attorneys of reasonably comparable skills, experience, and reputation.” 40 Gahagan
contends that he has been practicing law in the Eastern District of Louisiana for more than eight
years and has successfully litigated multiple FOIA cases with identical fact patterns. 41 Gahagan
asserts that in Hernandez, another section of the Eastern District of Louisiana awarded $300 an
hour in a factually and legally similar FOIA case to an attorney with more than eight years of
experience. 42 In support, Gahagan also attaches affidavits from other attorneys within the Eastern

La. Feb. 24, 2014)).
36
Id. at 16 (citing Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 235–36
(D.D.C. 2011)).
37

Id.

38

Id. at 18 (citing Summers v. U.S. Dep’t of Justice, 477 F. Supp. 2d 56, 63 (D.D.C. 2007)).

39

Id. (citing Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F. Supp. 2d 159, 175 (D.D.C. 2008)).

40

Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)).

41

Id. at pp. 18–19.

42
Id. at p. 19 (citing Hernandez v. U.S. Customs & Border Protection Agency, No. 10-4602, 2012 WL
398328, at *14–16 (E.D. La. Feb. 7, 2012) (Barbier, J.)).

7

District of Louisiana who assert that $300 is the prevailing hourly rate for the litigation of a FOIA
suit by someone with Gahagan’s skills, experience, and reputation. 43
Gahagan also contends that district courts within the Fifth Circuit apply the lodestar method
outlined by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc. to calculate fee
awards. 44 Gagahan contends that after multiplying the number of hours reasonably expended in
the case by the prevailing hourly rate for legal services in the district in order to calculate the
lodestar, courts can make adjustments based upon consideration of twelve factors. 45 Gahagan
contends that the burden of reasonableness of the hours expended is on the fee applicant. 46
However, Gahagan contends, in Hernandez, the court stated that “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.” 47 Gahagan requests $34,006.25,
representing $33,540 in attorney’s fees and $466.25 in costs. 48 Gahagan contends that he has
removed all excessive and duplicative work from his billing statement and all his fees and costs
are adequately documented. 49
Addressing the twelve Johnson factors, Gahagan asserts that litigation was unnecessarily
compounded by USCIS’s refusal to obey FOIA and due to the government untruthfully arguing
that courts had ruled in ways that they had not, and therefore the factor “time and labor required”

43

Rec. Doc. 62-6; 67-1 at 12–13.

44

Rec. Doc. 69-2 at p. 19 (citing 488 F.2d 714 (5th Cir. 1974)).

45

Id. at pp. 19–20 (citing Hernandez, 2012 WL 398328, at *13).

46

Id. at p. 20 (citing Hernandez, 2012 WL 398328, at *13).

47

Id. (citing Hernandez, 2012 WL 398328, at *14).

48

Id.

49

Id.

8

confirms the reasonableness of the lodestar amount. 50 He contends that the second factor, the
novelty and difficulty of the issues involved, is met because FOIA procedures are so difficult that
no other immigration attorney in the Eastern District of Louisiana is willing to represent clients in
FOIA suits and this case was made more difficult by the pressing time constraints imposed by his
client’s pending deportation proceeding. 51 Gahagan also argues that the third factor, the skill
required to litigate a FOIA case in federal court, is demonstrated by the fact that no other
immigration attorney in this district or market takes these cases. 52 Turning to the fourth factor,
preclusion of other employment, Gahagan asserts that he seeks an upward adjustment under this
factor because he is a sole practitioner and was precluded from accepting one worthy case as a
result of this case, causing him a loss in $5,000 in income. 53 As for the fifth factor, the customary
fee, Gahagan contends that his customary fee, along with other attorneys who practice FOIA law
in this district, is $300 per hour where an attorney has more than eight years of experience. 54
Addressing the sixth factor, whether the fee is fixed or contingent, and the eleventh factor, the
nature and length of professional relationship between the attorney and the client, Gahagan asserts
that he is representing himself pro se. 55
Turning to the seventh factor, the time limitations imposed by the client or the
circumstances of the case, Gahagan contends that the circumstances in this case imposed
considerable time constraints on Gahagan, and because there was little time for unnecessary or

50

Id. at 21.

51

Id.

52

Id.

53

Id. at 21–22.

54

Id. at 22 (citing Hernandez, 2012 WL 398328, at *14–16).

55

Id. at 22–23.

9

redundant work, this factor further confirms the reasonableness of the hours Gahagan expended. 56
Gahagan asserts that the eighth factor, the amount involved and the results obtained, is perhaps the
most important factor. 57 Gahagan contends that he was successful in all three of his motions for
summary judgment and forced the government to conduct an adequate search, produce all
responsive agency records, and produce an adequate Vaughn index. 58 Gahagan contends that the
ninth factor, the experience, reputation, and ability of the attorney, is addressed in the affidavits he
submitted from local attorneys. 59 Gahagan seeks an upward adjustment pursuant to the tenth factor,
the undesirability of the case, which, he asserts, is intended to incentivize attorneys to accept
undesirable cases, especially in the civil rights context. 60 Gahagan asserts that he was forced to
file this litigation because the government refused to follow the 20-day mandate in producing the
requested agency records and Vaughn index, and then refused to properly adjudicate Gahagan’s
appeal, “all while knowing that Mr. Weegar’s deportation hearing was fast approaching.”61
Finally, addressing the twelfth factor, awards in similar cases, Gahagan points to the court’s ruling
in Hernandez awarding $300 per hour for an attorney with more than eight years of experience
and $180 per hour for an attorney with approximately two years of experience. 62 Gahagan
acknowledges, however, that another section of the Eastern District of Louisiana recently awarded
only $200 per hour in a FOIA case. 63

56

Id. at 22.

57

Id. (citing Abner v. Kansas City So. Ry. Co., 541 F.3d 372, 376–77 (5th Cir. 2008)).

58

Id. (citing Rec. Docs. 46, 47, 57, 61).

59

Id. at 23 (citing Rec. Doc. 62-6).

60

Id. (citing Cooper v. Pentecost, 77 F.3d 829 (5th Cir. 1996)).

61

Id.

62

Id. (citing 2012 WL 398328, at *14–16).

63

Id. (citing DaSilva v. U.S. Citizenship and Immigration Servs., No. 13-13, 2014 WL 775606, at *9 (E.D.

10

Gahagan asserts that a portion of his fee request represents time spent in preparing this fee
application which is permitted under “fees on fees” litigation precedent. 64 Furthermore, Gahagan
asserts that he is entitled to recovery of $466.25 in costs pursuant to 5 U.S.C. § 552(a)(4)(E)(i),
which provides for recovery of costs. 65 Finally, Gahagan requests that the Court order Defendants
to pay Gahagan within a reasonable amount of time, to be determined by the Court, because, in
another litigation, it took Defendants more than a year to pay Gahagan his attorney’s fees. 66
B.

Defendants’ Arguments in Opposition to an Award of Attorney’s Fees
Defendants contend that even if Gahagan is eligible for attorney’s fees, he is not entitled

to them. 67 Alternatively, Defendants assert that even if the Court finds that Gahagan is both eligible
for and entitled to attorney’s fees, the fee should be nominal given Gahagan’s “minimal success”
in obtaining only one document, the Form I-826, which CBP argued was non-responsive. 68
Defendants argue that although the Court disagreed with CBP regarding the responsiveness of the
record, its withholding was not in bad faith and was reasonable. 69
Defendants contend that because the Court entered a judicial order requiring them to
release one page in CBP’s possession, Gahagan is eligible for some attorney’s fees. 70 However,
Defendants assert that merely obtaining a Vaughn index does not make a plaintiff a prevailing

La. Feb. 24, 2014) (Africk, J.)).
64

Id. at 24 (citing Sierra Club v. Envtl. Prot. Agency, 769 F.2d 769, 808 (D.C. Cir. 1985)).

65

Id. at 24–25.

66

Rec. Doc. 62 at 1.

67

Rec. Doc. 63 at 1.

68

Id. at 1–2.

69

Id. at 2.

70

Id. at 3.

11

party. 71 Defendants assert that although Gahagan contends that he is eligible for attorney’s fees
because the Court held that CBP and ICE did not perform reasonable searches, the Court granted
summary judgment in Gahagan’s favor only “to the extent that the supporting declarations failed
to state adequate language sufficient for either defendant to prevail on this point.” 72 Defendants
assert that the Court did not instruct ICE or CBP to conduct additional searches and no additional
documents were produced. 73
Furthermore, Defendants contend that Gahagan’s claim is insubstantial and Gahagan fails
to meet any of the other four criteria in order to be entitled to attorney’s fees. 74 Defendants contend
that Gahagan’s request is strictly personal, garnering no public benefit, as he was attempting to
utilize this FOIA proceeding as a means to obtain discovery in his client’s deportation proceeding,
which is inappropriate. 75 In support, Defendants cite a district court case from the District of
Columbia where the court stated that “Congress clearly recognized 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.” 76 Defendants assert that although there is case law stating
that a successful FOIA plaintiff always achieves some degree of public benefit by bringing the
government into compliance with FOIA, and the benefit from the public disclosure of government
information, this “broadly defined public benefit” is not the benefit to which this factor is

71

Id. (citing Nw. Coal. For Alternatives to Pesticides v. Environmental Protection Agency, 275 F. App’x 10
(D.C. Cir. 2008)).
72

Id. at 3–4.

73

Id. at 4.

74

Id.

75

Id. (citing Simon v. United States, 587 F. Supp. 1029 (D.D.C. 1984)).

76

Id. at 6 (citing Horsehead Indus., Inc. v. Environmental Protection Agency, 999 F. Supp. 59, 67 (D.D.C.

1998)).

12

addressed. 77 Defendants also assert that simply alleging that prosecution of a suit has compelled
an agency to improve the efficiency of its FOIA processing is not sufficient to meet the public
benefit criterion. 78 In addition, they contend that even if Gahagan did not have any commercial
interest in the material sought, “his personal interest in the material is so great it outweighs an
award of attorney’s fees.” 79
Finally, Defendants contend that Gahagan must show not only that Defendants made
withholdings in this case but also that such withholdings were unreasonable. 80 Defendants assert
that the single document they withheld is a computer record that is only printed in paper form by
CBP if it is required for a specific reason; but here, it was never printed, served, or executed. 81
Defendants argue that they took a reasonable approach in withholding the document based upon
the agency’s understanding of the electronic system. 82
Defendants contend that even if Gahagan is entitled to an award of attorney’s fees, his
award must be significantly reduced as it is excessive. 83 Defendants assert that an hourly rate of
$300 is excessive as the Fifth Circuit recently affirmed a decision setting Gahagan’s hourly rate at
$200 per hour. 84 Defendants contend that the Fifth Circuit rejected Gahagan’s reliance on
Hernandez v. United States Customs and Border Protection Agency, stating that “$300 an hour

77

Id. at 4–5 (citing Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995); Ellis v. United States, 941 F.
Supp. 1068, 1078 (D. Utah 1996)).
78

Id. at 5 (citing Read v. FAA, 252 F. Supp. 2d 1108, 1110–11 (W.D. Wash. 2003)).

79

Id. (citing Read, 252 F. Supp. 2d at 111).

80

Id. at 7.

81

Id.

82

Id. at 8.

83

Id.

84

Id. (citing DaSilva v. U.S. Citizenship and Immigration Servs., 599 F. App’x 535 (5th Cir. 2014)).

13

appeared to be atypically high.” 85 Defendants also assert that another section of the Eastern District
of Louisiana, in St. Stephen’s Missionary Baptist Church v. Taylor, in 2008, assessed an hourly
rate of $150 for a partner, where the partner was David J. Krebs, a skilled attorney with over 25
years of experience in the area of the subject litigation. 86 Defendants assert that Gahagan’s request
for $300 an hour is excessive as he is only eight years removed from law school and the majority
of his experience is handling immigration matters, not FOIA matters. 87 According to Defendants,
Gahagan’s level of experience would most likely classify him as a Senior Associate at best in a
law firm, entitling him to a rate of roughly $175 an hour. 88 Defendants also contend that in light
of the Johnson factors, any award of attorney’s fees to Gahagan should be decreased given the
amount of material produced in response to his broad FOIA requests and the reasonableness of
Defendants’ withholdings. 89 Because, Defendants assert, Gahagan was largely unsuccessful, he
should be compensated only for the time spent on successful claims. 90 In support, Defendants cite
a District Court for the District of Columbia case, Electronic Privacy Information Center v. United
States Department of Homeland Security, where the court stated that the plaintiff could recover
fees for work done only on his successful claims and then consider whether the success obtained
on those claims is proportional to the efforts expended by counsel. 91

85

Id. at 8–9 (citing DaSilva, 599 F. App’x at 543)).

86

Id. at 7 (citing No. 05-294, 2008 WL 4057162 (E.D. La. Aug. 29, 2008)).

87

Id. at 10.

88

Id. at 10–11.

89

Id. at 11.

90

Id.

91

Id. (citing 982 F. Supp. 2d 56, 60 (D.D.C. 2013)).

14

Defendants also assert that Gahagan’s claim for attorney’s fees should be reduced for his
use of poor billing judgment. 92 Citing the Fifth Circuit in Saizan v. Delta Concrete Products,
Defendants assert that the burden is on the plaintiff to show the reasonableness of the hours billed
and the use of billing judgment, including documentation of the hours charged and those written
off as unproductive, excessive, or redundant. 93 Defendants contend that although Gahagan has
litigated several FOIA cases in the past, he somehow researched for 7.3 hours before drafting the
instant complaint for 3.5 hours. 94 Furthermore, Defendants assert that Gahagan filed three motions
for summary judgment, but the majority of each was “bloated with the same canned caselaw and
statutory guidance.” 95 Defendants also assert that Gahagan’s research time is excessive and
although Gahagan asserts that he spent 10.9 hours to research and draft the instant motion, the
motion is virtually identical to the motion filed in No. 14-2233, Gahagan v. USCIS. 96
C.

Gahagan’s Arguments in Further Support of an Award of Attorney’s Fees and Costs
In reply, Gahagan asserts that although Defendants assert that his claim is not substantial

pursuant to 5 U.S.C. § 552(a)(4)(E)(ii), the “not insubstantial” test applies only when a plaintiff
seeks fees under the theory that there was a “voluntary or unilateral change in position by the
agency,” not when a plaintiff has prevailed pursuant to a judicial order. 97 In response to
Defendants’ argument that Gahagan’s FOIA request was “strictly a personal request,” Gahagan
asserts that in Hernandez, which he asserts was factually and legally similar, the court rejected this

92

Id. at 12.

93

Id. (citing 448 F.3d 795, 799 (5th Cir. 2006)).

94

Id. (citing Rec. Doc. 62-4 at 2).

95

Id. at 13.

96

Id.

97

Rec. Doc. 67 at 2.

15

argument. 98 Addressing Defendants’ arguments regarding the fact that Gahagan used FOIA as a
means of discovery, Gahagan asserts that FOIA is the exclusive means that a respondent in
Immigration Court proceedings must use to obtain documents for use in the proceedings. 99
Gahagan also re-urges his arguments regarding the benefit the public derived from his FOIA
request, as well as his assertion that he did not receive any commercial benefit and in fact lost
income by having to refuse another case. 100 Gahagan also contends that the court in Hernandez
rejected the Government’s argument that a plaintiff is not entitled to attorney’s fees because the
nature of his interest in the records is as a means of discovery. 101
Turning to whether the Defendants’ withholding had a reasonable basis in law, Gahagan
contends that here the Defendants’ “recalcitrant and obdurate action of knowingly misrepresenting
case law, which unnecessarily dragged out this litigation, served only to ‘thwart the requestor.’”102
Gahagan contends that Defendants have not satisfied their burden of showing that they had a
colorable or reasonable basis for not disclosing the material until after Gahagan filed suit. 103
Gahagan contends that Defendants, in opposing the requested hourly rate, cite cases as old
as 1996, cite no cases within the last seven years, and only two cases within the last ten years. 104
Gahagan contends that in DaSilva, a case cited by Defendants, the court divided the plaintiff’s
single FOIA cause of action for the purpose of granting and denying attorney’s fees and reduced

98

Id. at 3 (citing Hernandez v. United States Customs & Border Protection Agency, No. 10-4602, 2012 WL
398328, at *8 (E.D. La. Feb. 7, 2012) (Barbier, J.)).
99

Id. (citing Jarno v. Dep’t of Homeland Sec., 365 F. Supp. 2d 733, 740 (E.D. Va. 2005)).

100

Id. at 3–4.

101

Id. at 6 (citing Hernandez, 2012 WL 398328, at *10–11).

102

Id. at 7 (citing Blue v. Bureau of Prisons, 570 F. 2d 529, 533 (5th Cir. 1978)).

103

Id. at 7–8 (citing Davy v. Cent. Intelligence Agency, 550 F.3d 1155, 1163 (D.C. Cir. 2008)).

104

Id. at 8.

16

the plaintiff’s award by more than 85%. 105 Gahagan asserts that no other court has followed this
division scheme since. 106 Gahagan also contends that Defendants have submitted no direct
evidence to contradict Gagahan’s affidavits from local attorneys affirming that $300 is the
prevailing rate for attorneys of comparable experience. 107 Gahagan asserts that he is well-known
as a local and national expert in FOIA who has been asked twice to teach a continuing legal
education course on FOIA by the American Immigration Lawyers Association. 108 Finally,
Gahagan asserts that although USCIS contends that his claim should be decreased due to the
amount of material produced, an agency cannot put a requestor through the time and expense of
enforcing FOIA compliance and then complain that the resources expended were out of proportion
to what was obtained. 109
III. Law and Analysis
A.

Legal Standard
When a plaintiff brings a lawsuit under FOIA, a 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.” 110 The Supreme Court has stated
that “[t]he 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

105

Id. at 8–9 (citing No. 13-13, 2014 WL 775606, at *7 (E.D. La. Feb. 24, 2014) (Africk, J.)).

106

Id. at 9.

107

Id.

108

Id. (citing Rec. Docs. 62-5, 62-6).

109

Id. at 10 (citing Hernandez v. United States Customs & Border Protection Agency, No. 10-4602, 2012
WL 398328, at *8 (E.D. La. Feb. 7, 2012) (Barbier, J.)).
110

5 U.S.C. § 552(a)(4)(E)(i).

17

the governed.” 111 The Fifth Circuit has recognized that FOIA’s attorney fee provision plays a
critical role in effectuating this purpose:
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. This same
incentive is necessary where an attorney seeking information is utilizing his or her
own services. 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 from opposing
justifiable requests for information under the FOIA and to punish the government
where such opposition is unreasonable. These goals apply with equal force where
an attorney litigant proceeds pro se. 112
The basic framework for determining whether an award of attorney’s 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. 113 A plaintiff can be
said to have “substantially prevailed” if he 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.” 114 If a court determines

111

John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citations omitted).

112

Cazalas v. Dep’t of Justice, 709 F.2d 1051, 1057 (5th Cir. 1983) (internal quotations and citations

omitted).
113

5 U.S.C. § 552(a)(4)(E)(i).

114

5 U.S.C. § 552(a)(4)(E)(ii)(I–II).

18

that a plaintiff is “eligible” for an award of attorney’s fees, the court next evaluates whether the
plaintiff is entitled to such an award. 115 This determination is left to the sound discretion of the
district court. 116 In exercising this discretion, however, the court must consider 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.” 117 All four factors are to be weighed as
guides to the court’s discretion in FOIA attorneys’ fees awards and no one factor is dispositive.118
B.

Analysis
1.

Gahagan’s Eligibility for an Award of Attorney’s Fees

Gahagan contends that he is eligible for an award of attorney’s fees pursuant to 5 U.S.C. §
552(a)(4)(e)(i) because the Court issued multiple Orders compelling USCIS to produce a legally
adequate Vaughn index, conduct a legally adequate search, and produce records for an in camera
inspection. 119 Gahagan also asserts that the Fifth Circuit has held that when the government
“delayed in releasing the documents and [the Plaintiff] did not receive the documents until after
the [government] was served with suit,” the Plaintiff has “substantially prevailed.” 120 Therefore,
Gahagan contends that he has substantially prevailed by causing the production of the requested
information from the government because Defendants have given no reasonable excuse for their

115

State of Texas v. Interstate Commerce Comm’n, 935 F.2d 728, 730 (5th Cir. 1991).

116

Blue v. Bureau of Prisons, 570 F.2d 529, 533 (5th Cir. 1978).

117

Id.

118

Id. (holding that the district court abused its discretion in denying an award of attorney’s fees after
finding that there was no benefit to the public deriving from the case and discussing none of the other factors).
119

Rec. Doc. 62-2 at 5.

120

Id. at 6 (citing Batton v. Internal Revenue Service, 718 F.3d 522, 526 (5th Cir. 2013)).

19

refusal to conduct a legally adequate search, produce all responsive agency records, or produce a
legally adequate Vaughn index before Gahagan filed suit and three motions for summary
judgment. 121
Defendants assert that although Gahagan suggests that he is eligible for attorney’s fees
because Defendants were required to file a Vaughn index, Defendants cite a District of Columbia
Circuit case, Northwest Coalition for Alternatives to Pesticides v. Environmental Protection
Agency, where the court concluded that an order compelling the production of a Vaughn index,
without more, is insufficient to make a plaintiff a “prevailing party” to support a claim for
attorney’s fees. 122 Defendants also contend that the Court’s Order granting summary judgment in
favor of Gahagan, which concluded that CBP and ICE did not perform reasonable searches, does
not make Gahagan eligible for attorney’s fees because after supplemental declarations were filed,
the Court did not require that additional searches be completed. 123 However, here, Defendants
acknowledge that the Court also ordered them to release a Form I-826 in CBP’s possession, which
was originally withheld by CBP as non-responsive and therefore, it is undisputed that Gahagan is
eligible for some attorney’s fees. 124
Furthermore, Gahagan contends, and Defendants do not contest, that Gahagan received
151 documents after he filed suit, and that it wasn’t until July 23, 2015, after Gahagan filed his
third motion for summary judgment, that ICE provided 56 pages of documents. 125 Although
Defendants focus upon the fact that the Court only ordered the production of one specific

121

Id. at 8 (citing Batton, 718 F.3d at 526).

122

Rec. Doc. 63 at 3 (citing 275 F. App’x 10 (D.C. Cir. 2008)).

123

Id. at 4.

124

Id. at 3.

125

Rec. Doc. 67 at 2–3 n.2.

20

document, Defendants do not address Gahagan’s contention that he is eligible for attorney’s fees
based upon the Defendants’ “voluntary or unilateral change in position.” 126 Accordingly, Gahagan
has demonstrated that he is eligible for attorney’s fees both as a result of the Court’s Order
requiring Defendants to produce the Form I-826, as well as Defendants’ voluntary disclosure of
documents following the commencement of this suit.
2.

Gahagan’s Entitlement to an Award of Attorney’s Fees

Gahagan asserts that he is entitled to attorney’s fees because: (1) the public derived a
benefit from this case; (2) Gahagan did not obtain any commercial benefit from this lawsuit; (3)
he filed this suit in order to obtain documents for his client’s deportation proceeding; and (4)
Defendants have not satisfied their burden to show that their withholdings had a reasonable basis
in law. 127 Defendants contend that Gahagan is not entitled to attorney’s fees because the request
was strictly personal and garnered no public benefit, Gahagan used this litigation as a means of
discovery in his client’s deportation proceedings, and Gahagan has not demonstrated that
Defendants’ withholdings were unreasonable. 128 The Court will address each of these arguments
in turn.
(a)

Public Benefit

Gahagan, citing the Fifth Circuit in Blue v. Bureau of Prisons, asserts that this litigation
resulted in a public benefit because a successful FOIA plaintiff always acts in some degree for the
benefit of the public by bringing the government into compliance with FOIA and by securing the

126

5 U.S.C. § 552(a)(4)(E)(ii).

127

Rec. Doc. 62-2 at 9–18.

128

Rec. Doc. 63 at 4–8.

21

benefits assumed to flow from the public disclosure of government information. 129 The court also
held, however, in weighing this factor, that a court should take into account “the degree of
dissemination and likely public impact that might be expected from a particular disclosure.” 130
The court stated that this factor “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.” 131 Therefore, Gahagan may not rely upon this general benefit in order to
establish that this first factor has been met.
Gahagan also cites Davy v. Central Intelligence Administration, a D.C. Circuit case, in
support of his contention that he is “the quintessential requestor of government information
envisioned by FOIA.” 132 However, in Davy, the plaintiff sought information regarding the
individuals allegedly involved in President Kennedy’s assassination, and had asserted that the
released documents provided new information bearing on the controversy over a contention that
the Central Intelligence Administration was involved in the assassination plot.133 Gahagan’s
request of documents pertaining specifically to his client, for use in his client’s deportation
proceedings, does not serve the public in a similar way as the information requested in Davy.
However, Gahagan also asserts that the public benefitted from the government’s
compliance with his FOIA request because the government’s response “worked to preserve the

129

Rec. Doc. 62-2 at 9 (citing 570 F.2d 529, 533 (5th Cir. 1978)).

130

Blue, 570 F. 2d at 533.

131

Id. at 533–34.

132

Rec. Doc. 67 at 4 (citing 550 F.3d 1155, 1157 (D.C. Cir. 2008)).

133

550 F.3d at 1159.

22

integrity of Immigration Court proceedings.” 134 In support, Gahagan cites Jarno, where a judge in
the Eastern District of Virginia concluded that the plaintiff’s success on his FOIA claim
contributed to the legitimacy of the immigration and asylum process. 135 In Jarno, the court cited a
District of New Jersey case, Landano v. United States Department of Justice, for the proposition
that “[a]ttorney’s fees are appropriate where a FOIA response helps protect the public’s interest in
the ‘fair and just’ administration of justice.” 136 The court in Jarno stated that the release of
documents to the plaintiff allowed the Immigration Court to make a determination based on all the
relevant evidence regarding the plaintiff’s political asylum case, thereby preserving the fairness
and legitimacy of the proceedings. 137 In this case, after filing suit, Gahagan has received 151
records, and on October 20, 2015, the Court ordered CBP to produce any segregable portion of the
previously withheld Form I-826. 138 Gahagan represents that the documents “will be used in Mr.
Weegar’s immigration proceedings so that the Judge can make an informed determination based
on all of the relevant evidence.” 139 Accordingly, the Court concludes that the public benefit factor
weighs in favor of an award of attorney’s fees because the disclosure of the documents contributes
to the legitimacy of the immigration proceedings.

134

Rec. Doc. 62-2 at 9 (citing Jarno v. Dep’t of Homeland Sec., 365 F. Supp. 2d 733, 738 (E.D. Va. Apr.

18, 2005)).
135

Id. (citing 365 F. Supp. 2d at 739).

136

365 F. Supp. 2d at 739 (citing Landano v. U.S. Dep’t of Justice, 873 F. Supp. 884, 892 (D.N.J. 1994)).

137

Id.

138

Rec. Doc. 62-1 at 9; Rec. Doc. 57 at 17.

139

Rec. Doc. 67 at 5.

23

(b)

Commercial Benefit

Gahagan asserts that he filed this lawsuit because had a duty to obtain the information
needed to effectively represent his client in immigration court proceedings. 140 Gahagan asserts that
he received no commercial benefit and actually lost income by having to refuse a new case due to
the time-consuming nature of the litigation. 141 Defendants do not appear to contest Gahagan’s
assertion that he obtained no commercial benefit, arguing only that Gahagan’s personal interest in
the requested material outweighs this factor. 142 Therefore, the Court finds that this factor weighs
in favor of an award of attorney’s fees.
(c)

Nature of Plaintiff’s Interest in the Records

Gahagan asserts that because he sought the records in order to assist his client in his
removal proceedings, this factor weighs in favor of an award of attorney’s fees. 143 On the other
hand, Defendants contend that Gahagan is not entitled to an award of attorney’s fees because
Gahagan’s personal interest in the records outweighs the other factors.

144

Gahagan contends that in Hernandez, another section of the Eastern District of Louisiana
determined that this factor weighed in favor of an award of attorney’s fees where the plaintiff
sought the requested records to ensure that he was afforded a full and fair hearing in his pending
deportation proceeding. 145 Gahagan asserts that the court stated that the plaintiff’s interest, while
personal in nature, also implicated the strong public interest in preserving the administration of

140

Rec. Doc. 62-2 at 11.

141

Id.

142

Rec. Doc. 63 at 5.

143

Rec. Doc. 62-2 at 15.

144

Rec. Doc. 63 at 5.

145

Rec. Doc. 62-2 at 12 (citing 2012 WL 398328, at *11).

24

justice in our nation’s immigration courts. 146 The court in Hernandez found the Eastern District of
Virginia case, Jarno, which Gahagan also cites, instructive. 147 The court in Jarno, in discussing
this factor, explained that the plaintiff’s central interest in that case was to force the defendant to
disclose the requested documents in order to facilitate the fair adjudication of his political asylum
case in Immigration Court and, although this was his main motivation, the public benefit derived
from the released documents and his case overall was substantial. 148 In Jarno, the court stated that
“[a]ttorney’s fees are appropriate where a FOIA response helps protect the public’s interest in the
fair and just administration of justice.” 149
In opposition, Defendants cite a Western District of Washington case, Read v. Federal
Aviation Administration, where the court concluded that although the plaintiff had no commercial
interest in the requested records, his personal interest was sufficient to motivate him to pursue the
FOIA litigation and therefore, although the commercial benefit factor weighed in favor of granting
attorney’s fees, the factor was outweighed by the nature of the plaintiff’s interest. 150 In Read, the
plaintiff sought records from the Federal Aviation Administration. 151 The opinion does not
explain, however, what information the requested records contained or why the plaintiff wanted
the records. Therefore, the Court does not find Read, which is not binding, persuasive. Gahagan’s
asserted interest in this case was motivated by his desire to effectively represent his client in his
removal proceedings. As in Hernandez, the Court concludes that Gahagan’s interest in the

146

Id.

147

2012 WL 398328, at *10.

148

Jarno v. Dep’t of Homeland Sec., 365 F. Supp. 2d 733, 739–40 (E.D. Va. 2005).

149

365 F. Supp. 2d at 739.

150

Rec. Doc. 63 at 5 (citing 252 F. Supp. 2d 1108, 1111 (W.D. Wash. 2003)).

151

Read, 252 F. Supp. 2d at 1109.

25

requested records also implicates the strong public interest in preserving the administration of
justice in our nation’s immigration courts.
Defendants also assert that an award of attorney’s fees is inappropriate in this case because
Gahagan used the FOIA litigation as a means of discovery in his client’s deportation
proceedings. 152 In support, Defendants cite cases from the D.C. Circuit, the District Court for the
District of Columbia, the District of Utah, and the Northern District of California, stating that when
FOIA is used as a discovery tool, an award of attorney’s fees is inappropriate. 153 Gahagan cites
Hernandez, Jarno, and two Board of Immigration cases, Matter of Henriquez Rivera and Matter
of Khalifah, in support of his assertion that there is no right to discovery in immigration
proceedings, and that FOIA is the exclusive means that a respondent in Immigration Court
proceedings must use to obtain documents. 154 In Matter of Khalifah, the Board of Immigration
Appeals specifically stated that there is no right to discovery in deportation proceedings. 155 As the
cases cited by Defendants demonstrate, a concern about using FOIA as a discovery tool arises
when the plaintiff has used FOIA “as a substitute for discovery in private litigation with the
government.” 156 Here, Gahagan had no other option in obtaining these records. Furthermore, none
of the cases cited by Defendants involve deportation proceedings. Therefore, the fact that Gahagan

152

Rec. Doc. 63 at 5.

153

Id. at 5–7 (citing Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 712 (D.C. Cir. 1977);
Horsehead Indus., Inc. v. EPA, 999 F. Supp. 59, 67 (D.D.C. 1998); Ellis v. United States, 941 F. Supp. 1068, 1079
(D. Utah 1996); Md. Dep’t of Human Res. v. Sullivan, 738 F. Supp. 555, 563 (D.D.C. 1990); Simon v. United States,
587 F. Supp. 1029 (D.D.C. 1984); Guam Contractors Ass’n v. Dep’t of Labor, 570 F. Supp. 163, 169 (N.D. Cal.
1983)).
154

Rec. Doc. 62-2 at 13–14 (citing Hernandez, 2012 WL 398328, at *10; Jarno, 365 F. Supp. 2d at 740;
Matter of Henriquez Rivera, 25 I&N Dec. 575, 579 (BIA 2011); Matter of Khalifah, 21 I&N Dec. 107, 112 (BIA
1995)).
155

21 I&N Dec. 107, 112 (BIA 1995).

156

Sampson, 559 F.2d at 712.

26

used FOIA in the instant litigation in order to obtain records to be used in a deportation proceeding
does not weigh against an award of attorney’s fees.
(d)

Reasonableness of the Government’s Withholdings

Finally, Gahagan asserts that Defendants have not satisfied their burden to show that their
withholdings were reasonable. 157 In opposition, Defendants contend that Gahagan has failed to
demonstrate that Defendants’ withholdings were unreasonable. 158 Defendants contend that the
document in question is a computer record that is printed in paper form only when it is to be served
upon an individual who has been arrested or detained in order to provide him with notice of his
rights. 159 Defendants contend that Mr. Weegar was never detained or arrested by CBP and
therefore the Form I-826 was never printed, served, or executed. 160 Therefore, Defendants contend
that their decision not to provide the document was reasonable in light of their understanding of
the agency’s electronic system. 161
The Fifth Circuit in Blue v. Bureau of Prisons stated that the reasonableness of the
government’s withholding factor weighs in favor of an award of attorney’s fees if the agency’s
nondisclosure “was designed to avoid embarrassment or thwart the requester.” 162 Gahagan asserts
that the burden is on Defendants to show that their withholding is reasonable, but cites no Fifth
Circuit precedent for this assertion. The D.C. Circuit in Davy v. Central Intelligence Agency held
that this factor requires a court to answer not whether the plaintiff has affirmatively shown that the

157

Rec. Doc. 62-2 at 18.

158

Rec. Doc. 63 at 7.

159

Id.

160

Id.

161

Id. at 8.

162

570 F.2d 529, 534 (5th Cir. 1978).

27

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 [the plaintiff] filed suit.” 163 However,
even if demonstrating this factor is Gahagan’s burden, the Court concludes that Gahagan has
demonstrated that the agency’s failure to disclose was unreasonable.
The Fifth Circuit has held that FOIA’s disclosure exemptions are “explicitly limited by
statute and should be construed narrowly.” 164 The withholding at issue in this case was not based
upon any statutory exception, but rather the government’s statement that the requested documents
were of no consequence because the document was never printed, served, or executed. The Court,
in granting in part Gahagan’s third motion for summary judgment, determined that Defendants
had not met their burden of establishing the validity of CBP’s decision to withhold Form I-826 on
the grounds that it was non-responsive, and concluded that the withheld Form I-826 was responsive
to Gahagan’s FOIA request. 165 Although Defendants contend that they did not act unreasonably
in withholding the document, the Supreme Court has held that FOIA establishes a “strong
presumption in favor of disclosure,” and accordingly “places the burden on the [government]
agency [to which a request has been made] to justify the redaction of identifying information in a
particular document as well as when it seeks to withhold an entire document.” 166 Therefore, in
light of the clear precedent of the Supreme Court and the Fifth Circuit, Gahagan has demonstrated
that Defendants’ actions in withholding the requested document were unreasonable.

163

550 F.3d 1155, 1162–63 (D.C. Cir. 2008).

164

Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010) (citations omitted).

165

Rec. Doc. 57 at 15.

166

U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991).

28

(e)

Conclusion

Considering that all four factors weigh in favor of an award of attorney’s fees, the Court
concludes that an award of attorney’s fees is appropriate.
3.

The Reasonableness of Gahagan’s Requested Attorney’s Fees

Gahagan requests an award of $34,777 in attorney’s fees, representing a rate of $300 per
hour, as well as costs in the amount of $469.70. 167 Defendants oppose this award on the grounds
that: (1) Gahagan’s requested rate of $300 is inappropriate and unsupported by other cases in the
district; (2) in light of the Johnson factors, any award should be reduced given the amount of
material that was produced in response to Gahagan’s broad FOIA requests and the reasonableness
of Defendants’ withholdings; (3) Gahagan should only be compensated for time spent on
successful claims; and (4) Gahagan exercised poor billing judgment. 168
Courts in the Fifth Circuit engage in a two-step process to assess attorney’s fees. First, a
lodestar is calculated by multiplying the number of hours reasonably expended by an appropriate
hourly rate in the community for such work. 169 “There exists a strong presumption of the
reasonableness of the lodestar amount.” 170 However, after calculating the lodestar, a district court
may decrease or enhance the amount of attorney’s fees based on the relative weights of the twelve
factors set forth in Johnson v. Georgia Highway Express, Inc. 171 These factors are: (1) the time

167

Rec. Doc. 67-1 at 8.

168

Rec. Doc. 63 at 8–13.

169

Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir. 2006).

170

Id. at 800.

171

Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013). Traditionally, courts have considered the
factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974) when calculating
attorney’s fees. In Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542, 550–551 (2010), the Supreme Court noted that
the Johnson factors were “[o]ne possible method” for determining reasonable attorney’s fees, but that the factors
“gave very little actual guidance to district courts. Setting attorney’s fees by reference to a series of sometimes
subjective factors placed unlimited discretion in trial judges and produced disparate results.” Since Perdue, however,

29

and labor required to litigate the matter; (2) the novelty and difficulty of the issues; (3) the skill
required to properly litigate the issues; (4) whether the attorney had to refuse other work to litigate
the case; (5) the attorney’s customary fee; (6) whether the fee is fixed or contingent; (7) whether
the client or case imposed time constraints; (8) the amount involved and results obtained; (9) the
experience, reputation, and ability of the attorney; (10) whether the case was “undesirable;” (11)
the type of attorney-client relationship and whether the relationship was long-standing; and (12)
awards made in similar cases. 172 The lodestar may not be adjusted due to a Johnson factor,
however, if the creation of the lodestar award, multiplying the number of hours reasonably
expended on the case by an appropriate hourly rate in the community for such work, already took
that factor into account. 173 Such reconsideration is impermissible double-counting. 174
The Court will first address the requested hourly rate. “‘Reasonable’ hourly rates ‘are to be
calculated according to the prevailing market rates in the relevant community.” 175 The applicant
bears the burden of producing satisfactory evidence that the requested rate is aligned with
prevailing market rates, 176 which necessarily includes an affidavit of the attorney performing the

the Fifth Circuit and the Eastern District of Louisiana have continued to weigh the Johnson factors when considering
whether to decrease or enhance the lodestar in attorney’s fee cases. See, e.g., Ransom v. M. Patel Enters., Inc., 734
F.3d 377, 388 n.17 (5th Cir. 2013); Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013); Altier v. Worley
Catastrophe Response, LLC, No. 11-241, 2012 WL 161824, at *22 (E.D. La. Jan. 18, 2012) (Wilkinson, M.J.).
Accordingly, this Court does the same. See Ahmed v. Bros. Food Mart, et al., No. 13-5948, Rec. Doc. 33 (E.D. La.
Sept. 12, 2014) (Brown, J.).
172

Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974).

173

Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006).

174

Id.

175

McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (quoting Blum v. Stenson, 465 U.S.
886 (1984)).
176

Blum, 465 U.S. at 897.

30

work and information of rates actually billed and paid in similar lawsuits. 177 “When an attorney’s
customary billing rate is the rate at which the attorney requests the lodestar to 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.” 178 A court abuses its discretion when it awards attorney’s
fees without “a reasonably specific explanation for all aspects of a fee determination, including
any award of an enhancement.” 179
In support of his request for a rate of $300 per hour, Gahagan submits his own declaration
stating that his normal billing rate is $300 per hour, as well as the declarations of three other
attorneys who practice within the Eastern District of Louisiana and assert that Gahagan is a “known
expert in the field of immigration law and the Freedom of Information Act in Louisiana” and that
they are not aware of other attorneys in the Eastern District of Louisiana who would perform these
types of services for less than $300 per hour.” 180 In addition, Gahagan submits invitations he has
received for speaking engagements, as well as the 2016 edition of Super Lawyers Magazine listing
Gahagan as a Super Lawyer Rising Star. 181 Gahagan also asserts that he is the owner of The
Immigration Law Firm of New Orleans who specializes in the areas of immigration law and the
Freedom of Information Act, is the current Federal Litigation Chairman for the American
Immigration Lawyers Association Midsouth Chapter, and additionally submits a list of 22 cases
that he has litigated or is currently litigating involving immigration, FOIA, or both. 182 In support

177

Id. at 895 n.11.

178

La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995).

179

Perdue, 559 U.S. at 558.

180

Rec. Docs. 62-5, 62-6, 67-12 at 12–13.

181

Rec. Doc. 62-5 at 5–6, 67-1 at 73.

182

Rec. Doc. 62-5.

31

of his assertion that $300 per hour is the prevailing market rate, Gahagan cites Hernandez, stating
that in a factually and legally similar FOIA case, the court awarded $300 per hour to an attorney
with more than eight years of experience. 183 However, in opposition, Defendants contend that the
Fifth Circuit in 2014 recently rejected Gahagan’s argument in a case with “similar content and
briefing” that an award of $300 per hour was appropriate, stating that the court there concluded
that “$300 per hour appeared to be atypically high.” 184 The Fifth Circuit, in DaSilva v. United
States Citizenship and Immigration Services, affirmed the district court’s award of an hourly rate
of $200 per hour for Gagahan, noting that such an hourly rate was “within the middle of the
range.” 185
The Court notes that the affidavits submitted by Gahagan are from attorneys working, not
in the field of immigration law, but in “family law, personal injury and business litigation,” “estate,
succession, real estate and commercial law,” and “criminal and plaintiff work,” and therefore are
not persuasive in determining the market rate for immigration attorneys and attorneys involved in
FOIA litigation. 186 Nor does Gahagan provide information regarding rates actually billed and paid
in similar lawsuits to support his claim for an hourly rate of $300.
Although Defendants do not submit any evidence challenging Gahagan’s affidavits or
declaration, they assert that a review of the applicable jurisprudence does not support an hourly
rate of $300 per hour for an attorney with 7–8 years of experience. 187 Defendants cite a Fifth

183

Rec. Doc. 62-2 at 18–19.

184
Rec. Doc. 63 at 8–9 (citing DaSilva v. United States Citizenship & Immigration Servs., 599 F. App’x
535, 543 (5th Cir. 2014).
185

599 F. App’x at 543.

186

Rec. Docs. 62-6, 67-1 at 12.

187

Rec. Doc. 63 at 9.

32

Circuit case, several cases from the Eastern District of Louisiana, as well as a Louisiana Fourth
Circuit Court of Appeal case, all decided in the last twenty years, in which courts have awarded
less than $300 per hour, including a case decided in 2008 where another section of the Eastern
District of Louisiana awarded $150 per hour for a partner and $140 an hour for a junior partner,188
and a 2005 case in which the Louisiana Circuit Court of Appeal determined that $200 per hour
was not a rate in excess of community standards. 189 However, the most recent of the cases cited
by Defendants was decided seven years ago, and therefore, these cases hold substantially less
weight regarding the current prevailing rates in the New Orleans area.
This Court in No. 14-2233, Gahagan v. United States Citizenship and Immigration
Services, in a March 21, 2016 Order, concluded that $200 an hour was an appropriate hourly rate
for Gahagan given his eight years of experience in immigration law and FOIA. 190 In concluding
that $200 was the appropriate hourly rate, the Court noted that the Fifth Circuit recently held that
a district court that had awarded Gahagan $200 per hour in attorney’s fees was within his discretion
as $200 per hour was in the middle of the range of rates for attorneys with Gahagan’s experience. 191
The arguments made in Gahagan’s motion for attorney’s fees in Gahagan v. United States
Citizenship and Immigration Services are almost identical to the arguments made in the instant

188
Id. (citing St. Stephen’s Missionary Baptist Church v. Taylor, No. 05-294, 2008 WL 4057162 (E.D. La.
Aug. 29, 2008) (Knowles, M.J.)).
189

Id. (citing Motton v. Lockheed Martin Corp., 2003-CA-0962 (La. App. 4 Cir. 3/5/05), 900 So. 2d 901).

190

No. 14-2233, Gahagan v. United States Citizenship and Immigration Services, Rec. Doc. 59 at 39 (citing
Kennedy v. Generator & Utility Serv. Corp., No. 12-2499, 2013 WL 3456974, at *2 (E.D. La. July 9, 2013)
(Wilkinson, M.J.) (finding that $160 per hour was within the range of reasonable rates for an attorney with almost
six years of experience); Gulf Coast Facilities Mgmt., LLC v. BG LNG Servs., LLC, No. 09-3822, 2010 WL
2773208, at *6 (E.D. La. July 13, 2010) (Roby, M.J.) (finding a rate of $180 per hour reasonable for an attorney who
had been practicing for a little over six years); Marks v. Standard Fire Ins. Co., No. 09-1947, 2010 WL 487403, at
*2 (E.D. La. Feb. 3, 2010) (Roby, M.J.) (finding that a rate of $185 per hour was reasonable for an attorney with
seven years of experience)).
191

Id. (citing DaSilva v. United States Citizenship & Immigration Servs., 599 F. App’x 535, 543 (5th Cir.

2014)).

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motion. Gahagan has provided the Court with no reason to reach a different determination
regarding the appropriate hourly rate in this case, and the Court sees no reason to do so.
Accordingly, the Court concludes that $200 per hour is appropriate.
Next, the Court turns to the number of hours reasonably expended on this litigation. The
Fifth Circuit in Saizan v. Delta Concrete Products Co. stated that a plaintiff seeking attorney’s
fees has “the burden of showing the reasonableness of the hours billed and, therefore, [is] also
charged with proving that [he] exercised billing judgment. Billing judgment requires
documentation of the hours charged and of the hours written off as unproductive, excessive, or
redundant.” 192 Gahagan contends that he has reasonably expended 100.6 hours on the merits of
the litigation and 15.3 hours on the instant motion. 193 In support, he attaches his time records
documenting the time he spent working on both the merits of the litigation and the instant
motion. 194 In opposition, Defendants assert that although Gahagan has litigated several FOIA cases
in the past, he spent 7.3 hours researching before spending 3.5 hours drafting the complaint and
the majority of his motions for summary judgment are “bloated with the same canned caselaw and
statutory guidance (as in Gahagan v. USCIS, 14-2233).” 195
Although Gahagan asserts that he has exercised billing judgment in compiling the
record, 196 Gahagan has not documented any hours “written off as unproductive, excessive, or
redundant” and therefore has failed to meet his burden of showing that he exercised billing

192

448 F.3d 795, 799 (5th Cir. 2006).

193

Rec. Doc. 67-1 at 8.

194

Id. at 2–5.

195

Rec. Doc. 63 at 12–13.

196

Rec. Doc. 62-5 at 3.

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judgment. 197 “The proper remedy when there is no evidence of billing judgment is to reduce the
hours awarded by a percentage intended to substitute for the exercise of billing judgment.” 198 In
his declaration, Gahagan asserts that, prior to the filing of this case, he had litigated seventeen
immigration and/or FOIA related cases. 199 However, despite this experience, Gahagan asserts that
he spent 7.3 hours performing research before drafting his complaint. 200 Furthermore, Gahagan
asserts that he expended a total of 23.8 hours researching issues for his three motions for summary
judgment and the corresponding reply memoranda. 201 However, again, Gahagan represents that he
has litigated many FOIA cases in the past and therefore this number appears excessive. For
example, in Gahagan’s first motion for summary judgment, he asserted that it was unlawful to
“route” a FOIA request to another agency or withhold responsive agency records for longer than
30 working days. 202 In his declaration, Gahagan asserted that he had litigated several FOIA cases
in the Eastern District of Louisiana in the past, including another case before this Court, No. 142233, Gahagan v. United States Citizenship and Immigration Services. 203 In that case, Gahagan
made the same argument, asserting that it was unlawful for an agency to “refer” responsive agency
records to another agency or withhold responsive agency records for longer than 30 business
days. 204

197

Walker v. U.S. Dep’t of Hous. and Urban Dev.. 99 F.3d 761, 769–70 (5th Cir. 1996).

198

Id. at 770.

199

Rec. Doc. 62-5 at 3–4.

200

Rec. Doc. 67-1 at 2.

201

Id. at 2–5.

202

Rec. Doc. 9-2 at 7.

203

Rec. Doc. 62-5 at 4.

204

No. 14-2233, Gahagan v. United States Citizenship and Immigration Services, Rec. Doc. 10-2 at 7.

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In addition, as Defendants note, Gahagan asserts that he spent 11.8 hours researching and
drafting the instant motion for attorney’s fees, despite the fact that the motion is virtually identical
to the motion for attorney’s fees filed in No. 14-2233, Gahagan v. United States Citizenship and
Immigration Services, where Gahagan billed 11.9 hours. 205 Having reviewed the motion for
attorney’s fees in the instant case and the motion for attorney’s fees in Gahagan v. United States
Citizenship and Immigration Services, and having determined that the motions contain almost
entirely the same arguments and the same case law, the Court will reduce the number of hours that
Gahagan may recover for his work on the instant motion to two hours rather than 11.8 hours.
Gahagan’s time records reflect the hours of an attorney who has to research and draft motions
working from a blank slate, rather than an attorney with expertise in the subject matter and
experience in FOIA litigation. Although it is prudent to ensure there wasn’t any intervening
caselaw, the sheer number of hours spent on researching and drafting in an area Gahagan claims
to have expertise in is excessive. 206 Therefore, in light of the fact that Gahagan has not met his
burden of showing that he exercised billing judgment, and considering the redundant and excessive
nature of Gahagan’s hours, the Court finds that a 25% reduction for the remainder of Gahagan’s
asserted hours is appropriate. 207 Reducing the hours that Gahagan may recover for the instant
motion and applying a 25% reduction for billing judgment to the remaining hours, the number of
hours reasonably expended on this case is 80.08. 208

205

Rec. Doc. 63 at 13.

206
Here, Gahagan is being awarded $200 per hour which is a rate in the middle of the range. DaSilva v.
U.S. Citizenship and Immigration Servs., 599 F. App’x 535, 543 (5th Cir. 2014)).
207

Walker v. U.S. Dep’t of Hous. and Urban Dev.. 99 F.3d 761, 770 (5th Cir. 1996) (finding that 15% was
the appropriate reduction); Lalla v. City of New Orleans, 161 F. Supp. 2d 686, 699–707 (E.D. La. 2001) (Livaudais,
J.) (finding that 25% was the appropriate reduction).
208
Gahagan asserted that he had spent 115.9 hours on the case. Rec. Doc. 67-1 at 8. 115.9-11.8=104.1.
104.1x.25=26.025. 104.1-26.025=78.075. 78.075+2=80.075.

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Multiplying the number of hours reasonably expended in this case, 80.08, by the hourly
rate of $200, the lodestar is $16,016. There is a strong presumption that the lodestar is sufficient
and “a party seeking fees has the burden of identifying a factor that the lodestar does not adequately
take into account and proving with specificity that an enhanced fee is justified.” 209 Gahagan seeks
an upward adjustment of the lodestar based upon the Johnson factors of preclusion of other
employment and undesirability of the case. 210 Gahagan asserts that he is a sole practitioner and
was precluded from accepting another case as a result of this litigation, causing a loss of $5,000 in
income. 211 Gahagan also asserts that the undesirability of the case factor is intended to incentivize
attorneys to accept undesirable cases, most often in the civil rights context, and he was forced to
file costly and time-consuming litigation because the government refused to follow FOIA’s 20day mandate in producing the requested agency records and Vaughn index, and refused to properly
adjudicate Gahagan’s appeal “all the while knowing that Mr. Weegar’s deportation hearing was
fast approaching.” 212
The Court concludes that Gahagan has not met his burden of demonstrating that an
enhanced fee is justified in this case. Gahagan has not provided any further explanation regarding
his assertion that he lost $5,000 in income as a result of this case. No information regarding this
statement was provided in his declaration, or in any other exhibit. Gahagan’s bare assertion that
he was precluded from taking a case and therefore lost $5,000 is insufficient to rebut the “strong
presumption of the reasonableness of the lodestar amount.” 213 Furthermore, Gahagan asserts that

209

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546 (2010).

210

Rec. Doc. 62-2 at 21–23.

211

Id. at 21–22.

212

Id. at 23.

213

Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006).

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the undesirability of this case warrants an upward adjustment. 214 However, in support, Gahagan
only cites the government’s actions which led to the filing of this lawsuit, and fails to explain why
this makes litigation of the case undesirable. Therefore, Gahagan has failed to meet his burden of
showing that the case is so undesirable as to warrant an upward adjustment.
Defendants seek to reduce the lodestar amount “given the amount of material produced in
respect to Plaintiff’s broad FOIA requests and the reasonableness of CBP’s withholding –
withholding a single document due to it being a generic computer generated cover letter” and that
he was “largely unsuccessful in furtherance of his FOIA claims in this matter.” 215 Defendants
contend that Gahagan should only be compensated for time spent on his successful claims. 216 The
degree of success obtained is perhaps the most important Johnson factor. 217 In support of their
assertion that any award of attorney’s fees should be reduced on this ground, Defendants cite a
District Court for the District of Columbia case, Electronic Privacy Information Center v.
Department of Homeland Security, where, they assert, the court awarded only $3,321.95 out of the
requested $22,000 in attorney’s fees “after the court weeded out improper billing” and reduced the
fees because the plaintiff had only won one of its claims and devoted only 6 of 42 pages to that
particular argument. 218 In opposition, Gahagan cites Hernandez, where the court stated that “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.’” 219

214

Rec. Doc. 62-2 at 23.

215

Rec. Doc. 63 at 11.

216

Id.

217

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)).
218

Rec. Doc. 63 at 11–12 (citing 982 F. Supp. 2d 56 (D.D.C. 2013)).

219

Rec. Doc. 67 at 10 (citing Hernandez v. U.S. Customs & Border Protection Agency, No. 10-4602, 2012

38

In his complaint, Gahagan alleged that he requested “any and all documents . . . related to
Mr. Theodore Weegar in the possession of” Defendants. 220 Gahagan filed three motions for
summary judgment. 221 After Gahagan filed his first motion for summary judgment, ICE and CBP
produced documents to him and all three Defendants submitted declarations addressing the
sufficiency of their searches and the basis for their decisions to withhold records from Gahagan. 222
In reply, Gahagan challenged the adequacy of Defendants’ searches and CBP’s failure to produce
a Vaughn index. 223 The Court granted Gahagan’s first motion for summary judgment to the extent
that he asserted that CBP and ICE did not conduct an adequate search and denied the motion to
the extent that he asserted that the Department of State had not conducted an adequate search. 224
The Court granted Gahagan’s second motion for summary judgment to the extent that it requested
that the Court order ICE to submit a one-page, fully redacted document in dispute to the Court for
an in camera inspection and to submit the seven pages of documents marked as “non-responsive”
to the Court for an in camera inspection as well. 225 The Court deferred ruling on whether ICE had
lawfully withheld the information contained in the documents until it had the opportunity to inspect
them. 226 The Court also ordered CBP to submit the disputed document to the Court for an in
camera inspection and deferred decision on whether CBP must submit a Vaughn index or whether

WL 398328, at *14 (E.D. La. Feb. 7, 2012) (Barbier, J.)).
220

Rec. Doc. 1 at 4–6.

221

Rec. Docs. 9, 24, 49.

222

Rec. Doc. 46 at 45.

223

Id.

224

Id. at 46.

225

Id. at 48.

226

Id.

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it has lawfully withheld the information contained in the document until it had the opportunity to
inspect the document. 227 In all, Defendants produced 151 records to Gahagan following the
commencement of this suit. 228
After reviewing the documents in camera, the Court granted Gahagan’s second motion for
summary judgment to the extent that it urged the Court to order CBP to produce a Vaughn index.229
The Court denied the motion to the extent that it requested that the Court order ICE to produce the
seven pages of “non-responsive” records, order ICE to produce any additional portions of the onepage fully-redacted record, order ICE and the Department of State to produce any reasonably
segregable portion of any responsive records being withheld, and enjoin ICE and the Department
of State from continuing to withhold non-exempt responsive records. 230 The Court granted
Gahagan’s third motion for summary judgment to the extent that Gahagan requested the Court to
enjoin CBP from continuing to withhold any and all non-exempt records responsive to his FOIA
requests and ordered CBP to produce any segregable portion of the Form I-826. 231 The Court
denied the third motion for summary judgment to the extent that it requested that the Court order
CBP to produce an unredacted Form I-826 and to enjoin all Defendants from continuing to
withhold any and all non-exempt agency records responsive to Gahagan’s FOIA requests. 232 The
Court further ordered CBP to produce an updated Vaughn index.233 Accordingly, the Court is not

227

Id. at 49.

228

Rec. Doc. 67 at 2 n.2.

229

Rec. Doc. 47 at 11–12.

230

Id. at 12.

231

Rec. Doc. 57 at 17.

232

Id.

233

Id. at 18.

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persuaded by Defendants’ argument that Gahagan had limited success because it appears that,
during the course of this litigation, he obtained access to the majority of the information he sought
in his complaint.
The parties do not request an upward or downward departure based on any of the remaining
Johnson factors. Reviewing these factors, the Court finds that some of the factors, whether the fee
is fixed or contingent, and the nature and length of the professional relationship with the client, are
inapplicable given that Gahagan is an attorney who represented himself pro se. The Court has
already discussed the factor of “awards made in similar cases.” The remaining factors confirm the
reasonableness of the lodestar amount. Having concluded that none of the Johnson factors warrant
an adjustment of the lodestar of $16,016, the Court will award attorney’s fees in the amount of
$16,016.
4.

Litigation Costs

Pursuant to 5 U.S.C. § 552(a)(4)(E), a court may also assess “litigation costs reasonably
incurred.” Gahagan seeks $469.70 in costs, $400 of which is for the filing fee and the remainder
of which is for postage and printing costs. 234 Defendants do not state any opposition to Gahagan’s
recovery of litigation costs. The Court therefore finds that the costs were reasonably incurred and
will award Gahagan the full $469.70 as requested.
5.

Deadline to Pay Award of Attorney’s Fees

Finally, Gahagan requests that the Court set a deadline for Defendants to comply with any
Court Order requiring Defendants to pay him attorney’s fees. 235 The Court declines to do so. If
Defendants fail to comply with a Court Order, Gahagan may file an appropriate motion.

234

Rec. Doc. 67-1 at 5–6.

235

Rec. Doc. 62.

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IV. Conclusion
The Court concludes that Gahagan has demonstrated that he has both “substantially
prevailed” in this litigation and that he is entitled to an award of reasonable attorney’s fees and
costs pursuant to 5 U.S.C. § 552(a)(4)(E).
Accordingly,
IT IS HEREBY ORDERED that Gahagan’s “Motion for Attorney’s Fees and Costs
Pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E) is GRANTED.
IT IS FURTHER ORDERED that Defendants shall remit payment to Gahagan in the
amount of $16,485.70, representing $16,016 for attorney’s fees and $469.70 for litigation costs.

1st
NEW ORLEANS, LOUISIANA, this ________ day of June, 2016.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

42