Argus Leader Media v. United States Department of Agriculture
ORDER granting 129 Motion for Attorney Fees and Costs in the amount of $68,422.67, which will be due and owing if the underlying order on the FOIA matter is affirmed by the Eighth Circuit Court of Appeals. Judgment will be entered at that time. Signed by U.S. District Judge Karen E. Schreier on 8/3/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
ARGUS LEADER MEDIA,
d/b/a Argus Leader,
ORDER GRANTING MOTION FOR
ATTORNEY FEES AND COSTS
UNITED STATES DEPARTMENT OF
Plaintiff, Argus Leader Media, moves for attorney fees and costs after
prevailing on its claim under the Freedom of Information Act (FOIA).
Defendant, United States Department of Agriculture (USDA), opposes the
motion. For the reasons stated below, the court grants Argus’s motion.
On August 26, 2011, Argus filed a complaint seeking information from
the United States Department of Agriculture about the Supplemental Nutrition
Assistance Program (SNAP), formerly known as the Food Stamp Program.
Docket 1. Argus sought information under the Freedom of Information Act
about SNAP redemptions at the individual store level. Id. The USDA opposed
the request and filed a motion for summary judgment, arguing that the
requested information fell within FOIA Exemption 3. Docket 18; Docket 23. The
court granted USDA’s motion, and the Eighth Circuit Court of Appeals later
reversed and remanded the case. Docket 38; Docket 45. USDA then filed a
second motion for summary judgment, arguing FOIA Exemptions 4 and 6
applied. Docket 58; Docket 61. The court denied the motion and held a bench
trial on May 24, 2016. Docket 80; Docket 111. On November 30, 2016, the
court entered its judgment in favor of Argus. Docket 128. Argus now seeks to
recover reasonable attorney fees and costs. Docket 129.
FOIA provides that “[t]he court may assess against the United States
reasonable attorney fees and other litigation costs reasonably incurred in any
case . . . in which the complainant has substantially prevailed.” 5 U.S.C.
§ 552(a)(4)(E)(i). One way a complainant may substantially prevail is by
obtaining relief through a judicial order. 5 U.S.C. § 552(a)(4)(E)(ii). Because an
award of attorney fees is not mandatory under FOIA, the court engages in a two
part inquiry: (1) whether the complainant is eligible for fees under the statute
and (2) whether the complainant is entitled to fees under the statute. Miller v.
U.S. Dep’t of State, 779 F.2d 1378, 1389 (8th Cir. 1985); Brayton v. Office of
U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).
Eligibility for Attorney Fees
To be eligible for attorney fees, Argus must have substantially prevailed
before this court. 5 U.S.C. § 552(a)(4)(E)(i). This includes obtaining relief
through a judicial order. 5 U.S.C. § 552(a)(4)(E)(ii). Here, when Argus filed its
complaint with the court, Argus sought SNAP redemption data from individual
stores for the years 2005 to 2010. Docket 1 at 2. On November 30, 2016, the
court entered judgment in Argus’s favor and ruled that Argus was entitled to
the requested information. Docket 127; Docket 128. Although Argus may have
initially requested additional information, such as store identifier numbers,
both parties later agreed that information had marginal relevance. The heart of
Argus’s request was the individual store redemption data, and this court has
ruled that Argus is entitled to receive that data. Thus, Argus has substantially
Entitlement to Attorney Fees
When determining whether a party is entitled to attorney fees, courts
consider a number of factors including: “(1) the benefit to the public to be
derived from the case; (2) commercial benefit to the complainant; (3) the nature
of the complainant’s interest in the records which he seeks; and (4) whether
the government’s withholding of the records had a reasonable basis in law.”
Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1389 (8th Cir. 1985) (citing LaSalle
Extension Univ. v. FTC, 627 F.2d 481, 483 (D.C. Cir. 1980)). Each factor is
The Eighth Circuit Court of Appeals has stated, “Probably the most
important consideration in determining entitlement to fees in a FOIA case is
the benefit to the public which is to be derived from release of the information
sought.” Miller, 779 F.2d at 1389. The Eighth Circuit has noted that “[m]edia
requesters have an obvious claim to acting in the public interest . . . .” Id. In
Miller, the Eighth Circuit explained that disclosure of information related to the
attack on the U.S.S. Liberty provided “considerable public value” even though
the incident happened eighteen years earlier. Id. at 1389-90. The information
was important because there was “considerable public value in any disclosure
which adds significantly to the fund of information which citizens may use in
making political choices . . . .” Id. at 1390.
Here, USDA argues there is limited public benefit in publishing
additional SNAP data because the government already publishes SNAP data on
the national, regional, state, and community level. Docket 169 at 6-7. This
argument, however, overlooks the public benefit the sales data could provide in
improving public policy regarding city planning, distribution of government
resources, and government transparency. Docket 73-6 at 5-10, ¶¶ 29-42.
Because the disclosure of the requested SNAP data could add “significantly to
the fund of information which citizens may use in making political choices,”
this factor weighs in Argus’s favor.
The Eighth Circuit Court of Appeals has described this second factor as
an inverse of the first. Miller, 779 F.2d at 1390. “To the extent that the
requester seeks government information primarily for private gain, his FOIA
action is a matter of his own concern and expense and not of advocacy to serve
a public interest.” Id. The Eighth Circuit has also explained that “[i]t was not
the purpose of Congress to subsidize essentially private disputes with the
government.” Id. (citing Cuneo v. Rumsfeld, 553 F.2d 1360, 1368 (D.C. Cir.
Although Argus may derive some commercial benefit from publishing
SNAP sales data, the primary purpose of publishing such data is to inform the
public how and where government resources are being used. Argus is not using
its FOIA request to further a private interest in a dispute with the government.
Instead, Argus submitted its FOIA request to obtain information to share with
the public. This factor also weighs in Argus’s favor.
Interest in the Records
Another criterion that the Eighth Circuit Court of Appeals has used in its
FOIA attorney fee analysis is “the nature of the complainant’s interest in the
records.” Miller, 779 F.2d at 1390. The Eighth Circuit has explained that
“[w]hen the FOIA requester acts on behalf of an articulated public interest, or
when he seeks information for disinterested scholarly purposes, he is more
likely to be furthering the purposes of FOIA than when his primary interest is
to advance a purely personal goal.” Id. (citing Blue v. Bureau of Prisons, 570
F.2d 529, 534 (5th Cir. 1978); Nationwide Bldg. Maint., Inc. v. Sampson, 559
F.2d 704, 712 (D.C. Cir. 1977)). As stated above, Argus did not seek SNAP
redemption data to serve a purely personal goal. Argus did not seek the
information to further its own ends in a dispute with the government. Argus is
more closely situated with the “disinterested scholarly purposes” articulated in
Miller. Argus is attempting to publish information for the public, not further its
private interests. This factor also weighs in Argus’s favor.
Reasonableness of Agency’s Withholding
Both parties agree this factor weighs in favor of USDA. Docket 175 at 13;
Docket 169 at 8-10. Neither party disputes that USDA had a “reasonable basis
in law” to withhold the documents. Miller, 779 F.2d at 1390. FOIA Exemptions
3 and 4 provided a reasonable legal basis to withhold the requested
information. This factor weighs in USDA’s favor. Despite this fact, under the
circumstances of this case and after considering all four factors, the court finds
that Argus is entitled to an award of attorney fees and costs.
Reasonableness of Fees Requested
Argus bears the burden of proving that its attorney fees are reasonable.
See Ginter v. IRS, 648 F.2d 469, 471 (8th Cir. 1981) (holding “plaintiff carries
the burden of sustaining the request for attorney’s fees” (citing Lovell v.
Alderete, 630 F.2d 428, 432 (5th Cir. 1980))). The Supreme Court of the United
States has made it clear that the lodestar method is the preferred method for
calculating reasonable attorney’s fees under federal fee-shifting statutes.
Pennsylvania v. Del. Valley Citizens Council for Clean Air, 478 U.S. 546, 556
(1986) (using lodestar method to calculate attorney’s fees under § 304(d) of the
Clean Air Act); City of Burlington v. Dague, 505 U.S. 557, 557 (1992) (using
lodestar method to calculate reasonable attorney’s fees under the Clean Water
Act and the Resource Conservation and Recovery Act). Where Congress has
authorized an award of attorney’s fees to a prevailing party, the court should
“determine ‘the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.’ ”Simpson v. Merchs. & Planters Bank,
441 F.3d 572, 580 (8th Cir. 2006) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)). This formula results in what is called the “lodestar,” which the
court presumes is a reasonable fee. McDonald v. Armontrout, 860 F.2d 1456,
1458 (8th Cir. 1988).
When setting the reasonable number of hours and reasonable hourly
rate, the court should consider the factors identified in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Those factors are:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar
Hensley v. Eckerhart, 461 U.S. 424, 434 n.3 (1983). After determining the
lodestar, “[t]here remain other considerations that may lead the district court
to adjust the fee upward or downward, including the important factor of the
‘results obtained.’ ” Hensley, 461 U.S. at 434.
Reasonable Hourly Rate
The first phase of the lodestar analysis requires the court to determine
the reasonable hourly rate for the attorney’s services. Hensley, 461 U.S. at 433.
“A reasonable hourly rate is usually the ordinary rate for similar work in the
community where the case has been litigated.” Emery v. Hunt, 272 F.3d 1042,
1048 (8th Cir. 2001). The fee applicant has the burden to show that the
requested rate is reasonable and consistent with rates within the community
“for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). Evidence of an
attorney’s customary rate is relevant to determining a reasonable fee. Moysis v.
DTG Datanet, 278 F.3d 819, 828 (8th Cir. 2002).
Here, Argus’s attorney, Jon Arneson, requests an hourly rate of $200 per
hour. Docket 163 at 6. Arneson has forty years of experience “advising media
clients on state and local government access matters . . . .” Id. at 2, ¶ 7. Even
though Arneson does not usually bill his clients by the hour (Id. at 2-3), this fee
is reasonable given Arneson’s experience. This court has previously held that a
reasonable rate within the District of South Dakota is $175-$210 depending on
the experience of the attorney. See Bishop v. Pennington Cty., Civ. No. 06-506KES, 2009 WL 1364887, at *5 (D.S.D. May 14, 2009) (finding that $180 was a
reasonable rate for experienced partners); Albers v. Tri-State Implement, Inc.,
No. CR. 06-4242-KES, 2010 WL 960010, at *24 (D.S.D. Mar. 12, 2010) (finding
$210 was a reasonable rate for an attorney with substantial experience); Jadari
v. Shiba Investments, Inc., Civ. Nos. 06-5012-RHB, 06-5020-RHB, 06-5037RHB, 06-5050-RHB, 2008 WL 5100812, at *8-*11 (D.S.D. Dec. 3, 2008)
(finding that $175 was a reasonable rate for experienced partners). Arneson’s
rate falls within the court’s prior rulings.
Number of Hours Spent on Litigation
Arneson requests that he be compensated for a total of 1,000 hours
spent on this litigation. Arneson also acknowledges, however, that he has
“never kept time sheets, taken retainers or billed clients on an arbitrary hourly
rate . . . .” Id. at 2. Because Arneson has not submitted records showing how
much time he has spent on this litigation, the court must determine the
reasonable amount of hours spent on this litigation. Argus requests
compensation for the following tasks:
litigating USDA’s summary judgment motion on FOIA exemption 3;
appealing that issue to the 8th Circuit Court of Appeals; litigating
USDA’s second summary judgment motion on FOIA exemption 4
and the newly added exemption 6; preparing for trial on FOIA
exemptions 4 and 6; going through trial; writing post-trial briefs;
preparing post-trial motions, including those for costs and
Id. at 4, ¶ 15. Based on the work completed by Arneson, the court finds that
300 hours is a reasonable amount of time spent on this litigation and excludes
any time prior to the commencement of the litigation. Thus, the lodestar is
$60,000. The court presumes the lodestar is reasonable. McDonald, 860 F.2d
at 1458. Neither Argus nor USDA ask for further consideration under the
Argus also seeks miscellaneous costs that were not awarded as part of its
bill of costs. “[O]ther litigation costs” are recoverable in a FOIA action under 5
U.S.C. § 552(a)(4)(E)(i). Such costs may include photocopying, postage, covers,
exhibits, typing, transportation and parking expenses. See Kuzma v. IRS, 821
F.2d 930, 933 (2d Cir. 1987). After reviewing Argus’s request, the court finds
the following costs of litigation to be reasonable in the amounts requested by
Argus: certified mailing, appellate brief and reply brief printing, St. Paul Hotel,
video-conferencing fee, and the expert witness fees (excluding the $80 witness
fees awarded under the bill of costs). The court does not award the requested
fee for Eighth Circuit admission. Attorney admission fees should be a
prerequisite for any lawyer who is representing a client—and not a fee to be
passed on to the client. As a result, the total miscellaneous costs to be awarded
Because Argus has substantially prevailed on its FOIA claim and the
factors for awarding attorney fees tip in Argus’s favor, it is
ORDERED that Argus’s motion for attorney’s fees (Docket 129) is granted
in the amount of $68,422.67, which will be due and owing if the underlying
order on the FOIA matter is affirmed by the Eighth Circuit Court of Appeals.
Judgment will be entered at that time.
DATED this 3rd day of August, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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