The Inclusive Communities Project Inc v. The United States Department of Housing and Urban Development
MEMORANDUM OPINION AND ORDER: ICP's Motion for Attorneys' Fees (doc. 57 ) is therefore GRANTED in the amount of $90,280. (Ordered by Judge Jane J. Boyle on 1/26/2017) (ctf)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
THE UNITED STATES DEPARTMENT §
OF HOUSING AND URBAN §
CIVIL ACTION NO. 3:14-CV-3333-B
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff The Inclusive Communities Project, Inc.’s (ICP) Motion for
Attorneys’ Fees. Doc. 57. For the reasons set forth below, the Court GRANTS the Motion in the
amount of $90,280.
ICP initially submitted a Freedom of Information Act (FOIA) request to the United States
Department of Housing and Urban Development (HUD) in January 2014 to obtain records
concerning use of HUD Housing Choice Vouchers in the Dallas area. Doc. 18, Pl.’s 1st Am. Compl.
¶ 1. HUD responded nine days later, indicating that ICP’s request had been received and would be
The underlying facts of this case were detailed in the Court’s previous Memorandum Opinion and
Order (doc. 56), and thus are outlined generally here only as required for the resolution of ICP’s present
Motion for Attorneys’ Fees.
processed in 30 to 45 days. Id. Not having received any records from HUD, ICP filed suit under
FOIA eight months later, on September 15, 2014. Doc. 1, Orig. Compl. Three months after ICP filed
suit, HUD provided ICP with a first batch of documents but withheld some information, citing
privacy concerns and claiming a statutory exemption. Doc. 18, Pl.’s 1st Am. Compl. ¶ 1–2, 18. HUD
produced additional records in September 2015, but this batch of records still did not include all of
the information ICP initially requested. Doc. 34, Pl.’s Mot. Summ. J. 1.
Therefore, in September 2015, ICP moved for summary judgment, asking the Court to order
HUD to provide all of the requested information. Doc. 33, Pl.’s Mot. Summ. J. HUD filed its own
motion for summary judgment the next month, asking the Court to find that HUD was justified in
claiming the statutory exemption for the withheld information and thus had fully complied with
ICP’s original request. Doc. 41, Def.’s Mot. Summ. J. The Court granted ICP’s motion for summary
judgment and required HUD to provide ICP with the information initially requested in its January
2014 request. Doc. 56, Mem. Op. & Order 31. Accordingly, the Court also denied HUD’s motion
for summary judgment and allowed ICP 60 days to submit an application for attorneys’ fees and costs.
ICP filed its Motion for Attorney Fees on November 14, 2016. Doc. 57, Pl.’s Mot. for Att’y
Fees. [hereinafter Pl.’s Mot.]. HUD responded (doc. 60), and ICP replied (doc. 61). Therefore, ICP’s
motion is ripe for review.
FOIA authorizes a district court to “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). In deciding whether to award attorneys’ fees
under FOIA, the district court conducts a two-step analysis, asking first whether the plaintiff is
“eligible” to receive attorneys’ fees, and then whether the plaintiff is “entitled” to them. DaSilva v.
U.S. Citizenship & Immigration Servs., 559 F. App’x 535, 541 (5th Cir. 2014) (citing Batton v. I.R.S.,
718 F.3d 522, 525 (5th Cir. 2013)). The eligibility prong addresses whether a plaintiff has
“substantially prevailed” and thus may receive fees. Id. If so, the court then proceeds to the
entitlement prong and considers a variety of factors to determine whether the plaintiff should receive
fees. Id. (citing Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)
(emphasis in original)).
A complainant has “substantially prevailed” if it has obtained relief through either: (1) a
judicial order, or an enforceable written agreement or consent decree; or (2) a voluntary or unilateral
change in position by the agency. 5 U.S.C. § 552(a)(4)(E)(ii). If a plaintiff has substantially
prevailed, then the court considers four factors in the entitlement analysis: “(1) the benefit to the
public deriving from the case; (2) the commercial benefit to the complainant; (3) the nature of the
complainant’s interest in the records sought; and (4) whether the government’s withholding of the
records had a reasonable basis in law.” Texas v. Interstate Commerce Comm’n, 935 F.2d 728, 730 (5th
If the court concludes that a fee award is appropriate, meaning that the plaintiff is both
“eligible” and “entitled” to receive attorneys’ fees, it must then determine the amount using the
lodestar method. DaSilva, 599 F. App’x at 541. First, the court calculates the “lodestar,” which is
equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the
community for similar work. Id. (citing Jimenez v. Wood Cty., Tex., 621 F.3d 372, 379 (5th Cir. 2010),
on reh’g en banc, 660 F.3d 841 (5th Cir. 2011)). In calculating the lodestar, the court should exclude
all time that is excessive, duplicative, or inadequately documented. Id. Once the lodestar is
calculated, the court can then adjust it based on the twelve factors set forth in Johnson v. Ga.
Highway Express, Inc. if necessary. Id.
ICP asserts it is both “eligible” and “entitled” to receive attorneys’ fees. Doc. 58, Pl.’s Br. 1.
As to eligibility, ICP avers that it is the prevailing party based on the Court’s Order requiring HUD
to provide the records as they were originally requested in January 2014. Id. (citing 5 U.S.C.
§ 552(a)(4)(E)(ii)(I)). Additionally, ICP argues that HUD’s December 2014 and November 2015
production of additional records, both of which occurred after ICP filed suit but before the Court
handed down its Order resolving the summary judgment motions, make ICP the prevailing party,
as the production evinces a “change in position by the agency.” Id. (citing 5 U.S.C.
ICP also contends that all four entitlement factors weigh in favor of awarding attorneys’ fees
in this case. First, ICP argues that the benefit to the public supports the award of attorneys’ fees
because release of the withheld information sheds light on HUD’s performance of its statutory duties.
Id. at 2. Second, ICP points out that it will reap no commercial benefit from the information, as it
is a public interest organization serving low-income families. Id. at 2–3. Third, ICP notes that the
information will be used to benefit families using Housing Choice Vouchers and the public which
provides funding for the Housing Choice Voucher program. Id. at 3. Finally, ICP argues that HUD
had no reasonable basis for withholding the requested information. Id.
HUD’s Response appears to concede both ICP’s “eligibility” and “entitlement” to at least
some amount of attorneys’ fees. HUD does not contest—as it does not address—whether ICP is the
prevailing party or any of the four entitlement factors. Instead, HUD’s three-page response takes
issue only with the amount of attorneys’ fees requested. See Doc. 60, Def.’s Resp. 1 (“ICP’s motion
should be denied, and the amount awarded should be reduced to $82,870. Even if ICP could show
that it is eligible for and entitled to fees, ICP’s fee request is excessive, as its counsel seek fees for
work done that is not recoverable.”). Therefore, the Court agrees with ICP that it is both eligible and
entitled to receive attorneys’ fees and now addresses the appropriate amount of the award based on
ICP requests $90,280 in attorneys’ fees.2 Doc. 61, Pl.’s Reply 1 n.1. Its motion indicates that
two attorneys from Daniel & Bashara, P.C., worked a total of 327.3 hours on the case. Doc. 58, Pl.’s
Br. 7; Doc. 59, Pl.’s App. 7. Attorney Michael M. Daniel worked 173.8 hours, from which ICP
deducted 61 hours as duplicative and 31.2 hours for billing judgment. Doc. 58, Pl.’s Br. 6–7; Doc.
ICP initially requested $90,380 in attorneys’ fees. Doc. 57, Pl.’s Mot. However, in HUD’s Response,
it points out a subtraction error in the number of hours ICP deducted for duplicative work performed by Mr.
Michael M. Daniel. Doc. 60, Def.’s Resp. 3. ICP’s initial lodestar figure of $90,380 is based on a deduction
of 60.8 hours from Mr. Daniel for duplicative work, however, it appears 61 hours should have been deducted
based on ICP’s billing spreadsheet. See Doc. 59, Pl.’s App. 13. This 0.2 hour difference results in a $100
reduction in the lodestar figure (0.2 hours multiplied by the $500 hourly rate for Mr. Daniel). In its Reply,
ICP acknowledges this miscalculation and reduces its request to $90,280. Doc. 61, Pl.’s Reply 1 n.1.
59, Pl.’s App. 7, 13; Doc. 61, Pl.’s Reply 1 n.1. This resulted in a final adjusted figure of 81.6 hours
requested for Mr. Daniel. Attorney Laura B. Beshara worked a total of 153.5 hours, from which ICP
deducted 29.8 hours for billing judgment. Doc. 58, Pl.’s Br. 6–7; Doc. 59, Pl.’s App. 7. This resulted
in a final adjusted figure of 123.7 hours requested for Ms. Beshara. ICP seeks hourly rates of $500
for Mr. Daniel and $400 for Ms. Beshara, arguing that these rates are reasonable and within the
range of rates awarded in the Northern District of Texas for attorneys of comparable or less
experience than Mr. Daniel and Ms. Beshara. Doc. 58, Pl.’s Br. 4–6.; Doc. 59, Pl.’s App. 2–6, 15–23.
HUD’s Challenge to the Lodestar
In its response, HUD does not challenge the hourly rates proposed for either Mr. Daniel or
Ms. Beshara. Rather, HUD takes issue with only 18.3 hours—translating to $7,4103—billed by ICP
for reviewing records produced to ICP and HUD’s Vaughn index.4 Doc. 60, Def.’s Resp. 2. HUD
argues the hours billed for reviewing the records and the Vaughn index are not recoverable, citing
two district court cases for the proposition that time spent reviewing documents produced in
response to a FOIA request is merely “the price of making such a request.” Id. (citing Citizens for
Responsibility & Ethics in Wash. v. Dep’t of Justice, 825 F. Supp. 2d 226, 231 (D.D.C. 2011) and Moffat
v. Dep’t of Justice, No. 09-12067-DJC, 2012 WL 113367, at *2 (D. Mass. Jan. 12, 2012)).
The cases cited by HUD, however, are distinguishable from the present case. In the cases
HUD cited, the plaintiffs received full relief when the respective federal agencies released the
17.4 hours for Ms. Beshara billed at $400 per hour and 0.9 hours for Mr. Daniel billed at $500 per
“A Vaughn index is a routine device through which the defendant agency describes the responsive
documents withheld or redacted and indicates why the exemptions claimed apply to the withheld material.”
Jones v. F.B.I., 41 F.3d 238, 241 (6th Cir. 1994).
requested records to them. Therefore, hours billed for time spent reviewing records that constituted
an adequate response to their requests were not recoverable as attorneys’ fees. But here, HUD
released multiple batches of records—one in December 2014, another in September 2015, and
apparently another in November 2015—none of which was fully responsive to ICP’s initial request
in January 2014. As ICP notes, “HUD did not produce complete records responsive to ICP’s FOIA
request until after ICP had successfully litigated the case.” Doc. 61, Pl.’s Reply 2. That all but 3.5 of
the 18.3 disputed hours are for document reviews conducted before ICP filed its motion for summary
judgment—on which it eventually prevailed—supports this contention. See Doc. 60, Def.’s Resp.
2–3. Thus, in the present case, continued litigation following review of the records produced to ICP
ultimately resulted in more records being turned over to ICP.
While the Fifth Circuit has not addressed the issue, other courts have held that time billed
to review records to determine whether an agency’s response was fully responsive to a plaintiff’s
FOIA request is recoverable under the statute. See, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of
Homeland Sec., 999 F. Supp. 2d 61, 75 (D.D.C. 2013) (quoting Elec. Privacy Info. Ctr. v. U.S. Dep’t
of Homeland Sec., 811 F. Supp. 2d 216, 239–40 (D.D.C. 2011) (“[I]t would seem critical to the
prosecution of a FOIA lawsuit for a plaintiff to review an agency’s disclosure for sufficiency and
proper withholding during the course of its FOIA litigation.”)); Elec. Privacy Info. Ctr. v. F.B.I., 80
F. Supp. 3d 149, 159 (D.D.C. 2015) (“[T]o the extent that the released documents are being
reviewed to evaluate the sufficiency of the release or the propriety of a specific withholding so that
the attorney can then challenge the release or withholding, such document review time is properly
included in a FOIA attorney’s fees award.”). As in those cases, “[t]his is not a case where a plaintiff
filed a complaint for documents under FOIA, the agency released the documents, and the plaintiff
then requested attorney’s fees for its time reviewing the released documents.” Elec. Privacy Info. Ctr.
v. F.B.I., 80 F. Supp. 3d 149 at 160. Rather, ICP requested documents, received some but not all of
the requested documents—which it could have discovered only after reviewing the documents—and
then successfully litigated to obtain the withheld documents. Therefore, the Court finds that the
disputed 18.3 hours for time spent reviewing the records and the Vaughn index is recoverable.
For the reasons stated above, ICP’s Motion for Attorneys’ Fees is therefore GRANTED in
the amount of $90,280.
SIGNED: January 26, 2017.
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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