Detention Watch Network et al v. United States Immigration and Customs Enforcement et al
Filing
208
OPINION AND ORDER: For the foregoing reasons, Plaintiffs motion for attorneys fees and costs is GRANTED in part. Plaintiffs DWN and CCR are awarded reasonable attorneys fees and costs incurred while litigating this action in the Second Circuit and Su preme Court, and those fees and costs will be assessed against Defendants ICE and DHS (and not Defendant-Intervenors GEO and CoreCivic). The Clerk of Court is respectfully directed to close the motion at Docket Number 194. (Signed by Judge Lorna G. Schofield on 2/5/2019) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
DETENTION WATCH NETWORK, et al.,
Plaintiffs, :
:
:
-against:
:
UNITED STATES IMMIGRATION AND
:
CUSTOMS ENFORCEMENT, et al.,
Defendants. :
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2/5/2019
14 Civ. 583 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
This motion for attorneys’ fees and costs arises out of an action by Plaintiffs Detention
Watch Network (“DWN”) and Center for Constitutional Rights (“CCR”) seeking certain records
from Defendants United States Immigration and Customs Enforcement (“ICE”) and United
States Department of Homeland Security (“DHS”) under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. Plaintiffs seek attorneys’ fees and costs under FOIA for their efforts
in litigating this case in the Court of Appeals for the Second Circuit and Supreme Court of the
United States. Defendants and Defendant-Intervenors the GEO Group, Inc. (“GEO”) and
CoreCivic (previously known as Corrections Corporation of America (“CCA”)) oppose the
motion. Plaintiffs’ motion is granted in part.
BACKGROUND
On November 25, 2013, Plaintiffs -- non-profit, human rights advocacy and legal groups
-- submitted FOIA requests to DHS and ICE, seeking a range of records related to the “Detention
Bed Mandate,” which Plaintiffs define as a policy of maintaining a certain numerical level of
detention. Among the records sought were executed agreements and contract renewals between
ICE or DHS and private companies that operated detention facilities. The Detention Bed
Mandate has been the subject of significant public attention, including legislative efforts to
eliminate the mandate.
On January 30, 2014, Plaintiffs filed this action to compel the Government to search for
and produce records sought in their FOIA request. Based on input from GEO and CoreCivic,
which are counterparties to detention facility agreements, ICE determined that it would continue
to invoke FOIA Exemption 4, which protects “trade secrets and commercial or financial
information obtained from a person and privileged or confidential,” 5 U.S.C. § 552(b)(4), to
withhold “unit prices,” “bed-day rates” and “staffing plans” from records of government
contracts with private detention facilities. GEO and CoreCivic are or were two of the largest
private immigration detention contractors in the country. As of December 2015, GEO operated
twelve detention facilities for ICE, and CoreCivic operated eight facilities of various types for
ICE.
On November 17, 2015, Plaintiffs moved for partial summary judgment challenging the
Government’s withholding of information pursuant to FOIA Exemption 4. The Government
cross-moved for partial summary judgment. The Government submitted declarations from GEO
and CoreCivic executives with its opposition and cross-motion briefing.
Pursuant to the July 14, 2016, Opinion and Order granting Plaintiffs’ motion, “unit
prices,” “bed-day rates” and “staffing plans” in government contracts with private detention
facilities were found to be not protected from disclosure. As a result, the Government was
required to produce in unredacted form certain contracts of GEO and CoreCivic that previously
had been produced with redactions.
On July 29, 2016, GEO requested a pre-motion conference on its contemplated motion to
intervene. On August 5, 2016, the Government informed the Court that it did not oppose GEO’s
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proposed intervention. On August 9, 2016, during a conference discussing GEO’s proposed
intervention, the Government stated that it was deciding whether to appeal the July 14, 2016,
Opinion and Order. On August 10, 2016, CoreCivic (then CCA) filed a request to intervene. By
letter dated August 18, 2016, Plaintiffs informed the Court that the Government had notified
them that the Government did not intend to appeal.
Pursuant to the September 1, 2016, Opinion and Order, GEO and CoreCivic were granted
leave to intervene for the sole purpose of appealing the Court’s July 14, 2016, Opinion and
Order. Neither GEO nor CoreCivic was allowed to supplement the record or conduct discovery.
On November 29, 2016, it was clarified that the Court’s July 14, 2016, Opinion and Order was
stayed in part pending GEO and CoreCivic’s appeal.
On September 9, 2016, GEO and CoreCivic appealed this Court’s July 14, 2016, Opinion
and Order to the Second Circuit. Plaintiffs cross-appealed and moved to dismiss GEO and
CoreCivic’s appeal for lack of standing under FOIA. In February 2017, the Second Circuit
granted Plaintiffs’ motion to dismiss for lack of FOIA standing. GEO and CoreCivic moved for
reconsideration and en banc review, which was denied.
GEO (without CoreCivic) petitioned the Supreme Court for certiorari on the question of
FOIA standing. Plaintiffs filed an opposition brief. GEO’s petition was denied on October 10,
2017.
On March 2, 2018, Plaintiffs and the Government stipulated to the payment of $220,000
for Plaintiffs’ attorneys’ fees and costs incurred in the district court litigation. Plaintiffs now
seek to recover from the Government and, in the alternative, from GEO and CoreCivic,
attorneys’ fees and costs incurred litigating in the Second Circuit and Supreme Court.
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LEGAL PRINCIPLES
Under FOIA, “[t]he 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.” 5 U.S.C. § 552(a)(4)(E)(i). To prevail on a request for
attorneys’ fees and costs, a claimant must show both eligibility and entitlement. Pietrangelo v.
U.S. Army, 568 F.3d 341, 343 (2d Cir. 2009); accord Century Found. v. Devos, No. 18 Civ.
1128, 2018 WL 3084065, at *3 (S.D.N.Y. June 22, 2018). A FOIA claimant is eligible if “a
complainant has substantially prevailed[ -- that is] if the complainant has obtained relief through
. . . a judicial order, or an enforceable written agreement or consent decree.” 5 U.S.C. §
552(a)(4)(E)(ii). Entitlement is determined by weighing four criteria: “(1) the public benefit
derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's
interest in the records; and (4) whether the Government had a reasonable basis for withholding
requested information.” Pietrangelo, 568 F.3d at 343; accord Century Found., 2018 WL
3084065, at *3. Once eligibility and entitlement are established, the question becomes whether
the fee requested is “presumptively reasonable.” See Simmons v. New York City Transit Auth.,
575 F.3d 170, 174 (2d Cir. 2009); New York Times Co. v. Cent. Intelligence Agency, 251 F.
Supp. 3d 710, 713 (S.D.N.Y. 2017).
DISCUSSION
Plaintiffs’ reasonable attorneys’ fees and litigation costs incurred on appeal are assessed
against the Government, but not GEO and CoreCivic.
A.
Plaintiffs Are Eligible and Entitled to Reasonable Fees and Costs
Plaintiffs have established eligibility and entitlement to reasonable fees and costs.
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1. Eligibility
No party disputes Plaintiffs’ eligibility, as Plaintiffs substantially prevailed by obtaining
relief through a judicial order which survived GEO and CoreCivic’s efforts to challenge it on
appeal. See 5 U.S.C. § 552(a)(4)(E)(ii) (“[A] complainant has substantially prevailed if the
complainant has obtained relief through . . . a judicial order . . . .”). As a result of the judicial
order, the Government ultimately released the documents Plaintiffs sought in their FOIA request.
Plaintiffs have substantially prevailed in this FOIA action and are eligible for fees and costs.
2. Entitlement
The parties similarly do not contest that Plaintiffs are “entitled.”1 Plaintiffs are entitled to
fees and costs because the overall weight of the four entitlement criteria is in their favor. First,
the public benefits from learning about the Government’s practices with regard to private prison
contractors and the use of guaranteed minimums. Plaintiffs have published the information they
obtained through the FOIA requests. The importance of the issue is illustrated by the
introduction of legislation in the United States House of Representatives that would ban
guaranteed minimums of immigration detention beds. See Protecting Taxpayers and
Communities from Local Detention Quota Act, H.R. 2808, 114th Cong. (2015). Second,
Plaintiffs did not realize any commercial benefit from this action. CCR is a non-profit, legal and
educational organization, and DWN is a coalition of organizations and individuals working on
detention and deportation issues. Third, Plaintiffs sought the Government’s records “[t]o
vindicate the public’s right to information about immigration detention and enforcement
practices.” Fourth, and finally, the Government had a reasonable basis for withholding the
1
GEO argues that the Court should consider whether GEO and CCR’s positions were reasonable
on appeal, but only if GEO is held responsible for the fees and costs.
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requested information while the case was on appeal because this Court had issued a stay on the
production of documents. While this final factor favors the Government, the first three criteria
weigh strongly in favor of Plaintiffs. Thus the balance of factors warrants entitlement.
B.
Reasonable Fees and Costs Are Assessible Against the Government
Plaintiffs contend that the Government -- or in the alternative GEO and CoreCivic as
intervenors -- should pay Plaintiffs’ attorneys’ fees and costs incurred litigating this action in the
Second Circuit and Supreme Court. The Government counters that it is not responsible for such
fees because the Government was not a party to the appeal and its interests were not aligned with
GEO and CoreCivic. GEO and CoreCivic assert that FOIA does not provide for the award of
attorneys’ fees from non-government parties. For the following reasons, FOIA’s plain language,
purpose, case law and principles of equity support assessing reasonable fees and costs against the
Government for Plaintiffs’ appellate work.
1. FOIA’s Plain Language
“The preeminent canon of statutory interpretation requires us to presume that the
legislature says in a statute what it means and means in a statute what it says there.” In re
Barnet, 737 F.3d 238, 246 (2d Cir. 2013) (internal quotation marks omitted). “When the
statutory language is plain, the sole function of the courts . . . is to enforce it according to its
terms.” Cmty. Health Care Ass’n of New York v. Shah, 770 F.3d 129, 151 (2d Cir. 2014)
(alteration in original).
The plain language of FOIA’s fee-shifting provision is clear -- this Court “may assess
against the United States reasonable attorney fees and other litigation costs reasonably incurred
in any case under [FOIA] in which the complainant has substantially prevailed.” 5 U.S.C. §
552(a)(4)(E)(i) (emphasis added).
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FOIA’s broad language encompasses the situation here. Plaintiffs brought this case
under FOIA to compel the Government to produce records pertaining to ICE’s detention bed
quota. On appeal, Plaintiffs asserted that GEO and CoreCivic lacked standing under FOIA to
pursue the appeal. Throughout the proceedings, this case was and is a FOIA action. Nothing in
the statutory language confines its reach to parts actively litigated by or against the United States.
See United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163, 171 (2d Cir. 2018) (“If the
statutory language is unambiguous, ‘we construe the statute according to the plain meaning of
its words.’”) (quoting Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013)); see also Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 174 (2d Cir. 2005) (“[T]he word ‘any’ has an
expansive meaning . . . .”) (some internal quotation marks omitted) (quoting Deravin v. Kerik,
335 F. 3d 195, 203 (2d Cir. 2003)). FOIA’s statutory language strongly supports the assessment
of Plaintiffs’ fees and costs against the Government.
2. FOIA’s Purpose
FOIA’s purpose supports granting Plaintiffs’ motion as to the Government. See United
States v. DiCristina, 726 F.3d 92, 96–97 (2d Cir. 2013) (“‘Our obligation is to give effect to
congressional purpose so long as the congressional language does not itself bar that result.’”)
(quoting Johnson v. United States, 529 U.S. 694, 710 n.10 (2000)).
“FOIA strongly favors a policy of disclosure.” Nat’l Council of La Raza v. Dep’t of
Justice, 411 F.3d 350, 355 (2d Cir. 2005). FOIA was enacted in 1966 to ensure public access to
information by creating a judicially enforceable public right to obtain information from
government agencies. See Milner v. Dep’t of Navy, 562 U.S. 562, 565 (“Congress enacted FOIA
to overhaul the public-disclosure section of the Administrative Procedures Act . . . [which had]
gradually become more a withholding statue than a disclosure statute.”) (internal quotation
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marks omitted). By granting access to such information, Congress sought “to ‘promote honest
and open government and to assure the existence of an informed citizenry [in order] to hold the
governors accountable to the governed.’” Nat’l Council of La Raza, 411 F.3d at 355 (quoting
Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)); accord John Doe Agency
v. John Doe Corp., 493 U.S. 146, 152 (1989). “Congress enacted FOIA ‘to pierce the veil of
administrative secrecy and to open agency action to the light of public scrutiny.’” Cook v. Nat’l
Archives & Records Admin., 758 F.3d 168, 173 (2d Cir. 2014) (quoting U.S. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991)). With FOIA’s fee-shifting provision, “Congress has indicated a
specific intent to encourage vigorous enforcement.” H.R. Rep. No. 1418, 96th Cong., 2d Sess.
18, reprinted in 1980 U.S.C.C.A.N. 4953, 4986–87.
FOIA’s goals are better served by reimbursing Plaintiffs for reasonable fees and costs
incurred on appeal, particularly when Plaintiffs were appellees and prevailed in the district court.
To do otherwise would discourage FOIA plaintiffs with meritorious cases from pursing FOIA
information critical to promoting an informed citizenry and holding agencies publicly
accountable. See Davy v. C.I.A., 550 F.3d 1155, 1158 (D.C. Cir. 2008) (“A grudging application
of [FOIA’s fee-shifting] provision, which would dissuade those who have been denied
information from invoking their right to judicial review, would be clearly contrary to
congressional intent.”) (internal quotations marks omitted).
3. Case Law and Principles of Equity
The parties did not identify -- nor did the Court independently find -- binding case law
regarding whether to award fees and costs to a successful FOIA plaintiff against the Government
for work incurred litigating against non-government parties. Persuasive authority, however,
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supports holding the Government responsible for fees and costs related to Defendant-Intervenors
even when the Government did not actively litigate against Plaintiffs.
First, the Government has been held responsible in a FOIA action for fees and costs
related to intervenors even when the Government did not actively litigate against a successful
party. See Anderson v. Sec’y of Health & Human Servs., 80 F.3d 1500, 1505 (10th Cir. 1996)
(affirming without discussing a district court’s award of fees under FOIA where an intervenor
defended the documents from disclosure).
Second, principles of equity further support holding the Government responsible for fees.
Plaintiffs disseminated the information gained through their FOIA action to the public. See
Castillo Grand, LLC v. Sheraton Operating Corp., 719 F.3d 120, 124 (2d Cir. 2013) (holding
that in “suits where one litigant’s expenses benefit a larger class,” attorney fees may be
awarded). The public benefitted from Plaintiffs’ labors, and the public funds the Government.
See Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 391–92 (1970) (“To allow the others to obtain full
benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would
be to enrich the others unjustly at the plaintiff’s expense.”).
Third, and finally, the Government’s interests did not diametrically diverge from those of
Defendant-Intervenors. The Government chose not to appeal after both GEO and CoreCivic had
requested to intervene, and the Government did not oppose the intervention. Because the
Government did not acquiesce to Plaintiffs’ claims during the pendency of the appeals -- and
instead stood by while Defendant-Intervenors sought to defend the Government’s actions on
appeal -- Plaintiffs’ appellate work “was made necessary by the [Government]’s opposition . . .
.” See Pollinator Stewardship Council v. U.S. Envtl. Prot. Agency, No. 13 Civ. 72346, 2017 WL
3096105, at *10 (9th Cir. June 27, 2017) (allowing fees under the Equal Access to Justice Act
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where the agency “did not request a remand or otherwise acquiesce” to the plaintiff’s claims
during litigation); see also Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 374
(D.C. Cir. 2006) (“[The agency] should only [be] liable for fees related to third parties insofar as
they ‘were incurred in opposing government resistance.’”) (quoting Love v. Reilly, 924 F.2d
1492, 1496 (9th Cir. 1991)).
The Government advocates for the application of a “bright-line rule” that does not permit
the award of fees against it for phases of litigation when a plaintiff is actively opposed only by
third parties. This argument is unpersuasive. The sole FOIA case cited by the Government in
support of this contention is Judicial Watch, a factually disparate and non-binding case. In
Judicial Watch, the Court of Appeals for the District of Columbia Circuit awarded FOIA
attorneys’ fees for court-ordered depositions of third-parties, but not costs incurred from
discovery disputes between the plaintiff and third parties initiated by the plaintiff. 470 F.3d at
374 (“It is important to emphasize here that ‘litigation disputes’ should not be confused with
authorized depositions of third parties taken by Judicial Watch. [The Government] contests only
the former, not the latter.”). The Court of Appeals found that “in those situations when (1) the
litigation disputes between [the plaintiff] and the third parties were not initiated or pursued by
[the Government], (2) the third parties were not represented by [the Government], and (3) [the
Government] had neither authority nor control over the third parties, no fees should [be]
awarded.” Id. Unlike in Judicial Watch, the intervenors here -- not Plaintiffs -- pursued this
litigation. Plaintiffs litigated on appeal out of necessity to defend their judgment. Further, in this
case, the litigation pursued by the intervernors directly challenged Plaintiff’s FOIA request for
documents -- compared to Judicial Watch where, for example, the plaintiff sought discovery
including the deposition of a witness who “had nothing to do with the FOIA requests or the
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search for responsive documents.” Id. at 372; cf. Ass’n of Am. Physicians & Surgeons, Inc. v.
U.S. Food & Drug Admin., 391 F. Supp. 2d 171, 179–81 (D.D.C. 2005) (awarding fees and costs
against the Government under the Equal Access to Justice Act for an appeal solely pursued by an
intervenor, even when the Government submitted an amicus brief in support of the plaintiff and
in opposition to the intervenor).
FOIA’s plain language, purpose, case law and principles of equity thus support the award
of fees and costs for the prevailing party in this FOIA litigation -- Plaintiffs -- against the
Government.2
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for attorneys’ fees and costs is GRANTED
in part. Plaintiffs DWN and CCR are awarded reasonable attorneys’ fees and costs incurred
while litigating this action in the Second Circuit and Supreme Court, and those fees and costs
will be assessed against Defendants ICE and DHS (and not Defendant-Intervenors GEO and
CoreCivic).
The Clerk of Court is respectfully directed to close the motion at Docket Number 194.
SO ORDERED.
Dated: February 5, 2019
New York, New York
2
Plaintiffs’ alternative request that GEO and CoreCivic cover such fees is not supported by the
statutory language.
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