UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LOUISE TRAUMA CENTER LLC,

Plaintiff,

v. Case No. 1:20-cv-01128 (TNM)

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

Defendant.

MEMORANDUM OPINION

Plaintiff Louise Trauma Center LLC filed Freedom of Information Act (FOIA) requests

with Customs and Immigration Services (USCIS). After no response, the Center sued under

FOIA. The merits of this dispute have been resolved, and now the Court considers the Center’s

motion for attorney’s fees and costs. The Court finds that the Center is entitled to and eligible

for fees. But because the Center’s request is excessive, the Court will award it less than it seeks.

I.

The Center is a nonprofit organization that helps “immigrant women who have suffered

from gender-based violence” obtain asylum in the United States. Compl. ¶ 5, ECF No. 1. It

submitted four FOIA requests to USCIS about the agency’s handling of a particular FOIA

provision and its related training for asylum officers. 1 See Compl. Exs. A–D, ECF Nos. 1-1–1-4.

USCIS failed to respond within the statutory period, so the Center sued under FOIA. The agency

then searched for responsive records and produced thousands of pages. See Joint Status Report

1 The listed Defendant is the Department of Homeland Security, the parent agency of USCIS. But based on the record, USCIS employees conducted the searches and resolved the Center’s requests. So when describing actions of the Defendant, the Court will refer to USCIS, not the Department. at 1, ECF No. 10. The agency withheld some information under various FOIA exemptions. See

id.

After these disclosures, the Center voluntarily dismissed Count III of its Complaint and

confirmed that USCIS had fully responded to the FOIA request comprising Count I. See Joint

Status Report at 1, ECF No. 12. But the Center moved for summary judgment on Counts II and

IV, asserting that the agency’s searches were inadequate. See First Mot. for Summ. J., ECF No.

11. USCIS also moved for summary judgment, see ECF No. 15, but then it sought a stay after

discovering that there were “gaps in the search parameters for possible responsive information.”

Mot. to Stay at 1, ECF No. 19. So USCIS conducted a supplement search and released more

records to the Center, again withholding certain information under various FOIA exemptions.

See Decl. of Jennifer Piateski (Piateski Decl.) ¶ 12, ECF No. 28-4. The Court ordered a new

round of briefing to avoid piecemeal challenges. See Min. Order, July 16, 2021.

The parties again moved for summary judgment. See Def.’s Mot. for Summ. J., ECF No.

28-2; Pl.’s Cross-Mot. for Summ. J. (Pl.’s MSJ), ECF No. 29-1. The Center sought summary

judgment on Counts I and III because USCIS did not respond within the allotted time. See Pl.’s

MSJ at 5, 14. The Court denied the motion as to those counts, reasoning that the Center already

“jettisoned” those claims. See Louise Trauma Ctr. LLC v. DHS, No. 20-cv-1128,

, at *2 (D.D.C. Apr. 11, 2022) (explaining that the Center dismissed Count III and said

that USCIS had “complied in full” with Count I (citing Joint Status Report, ECF No. 10)).

The Court then considered the merits of Counts II and IV. For both counts, the Court

concluded that the agency had not shown its search for records was adequate. See

at *3–*4.

So the Court granted the Center summary judgment as to the adequacy of those searches. The

Center also challenged the agency’s withholdings under Exemptions 5, 6, and 7(E). The result

2 was a mixed bag. For Exemption 5, the Court granted the Center summary judgment as to those

withholdings invoking the deliberative process privilege. See id. at *6. On the other hand, the

Court granted USCIS summary judgment as to the Exemption 5 withholdings invoking the

attorney work-product privilege. See id. The Court also found the agency was entitled to

summary judgment as to its withholdings under Exemption 6. See id. at *7. Finally, the Court

held that Exemption 7(E) applied to all but one page of the challenged withholdings, which was

already in the public domain. See id. at *10.

After the Court’s ruling, USCIS provided the Center with reprocessed pages that were

previously withheld under Exemption 5. See Joint Status Report at 1, ECF No. 46. The agency

also conducted supplemental searches on Counts II and IV. For Count II, the agency found no

additional responsive records. See id. For Count IV, the agency’s supplemental search turned up

another 206 pages, which the agency released to the Center. See id.

In January 2023, the Center informed the Court that it “ha[d] no more concerns” and

would not be seeking to amend. Pl.’s Status Report at 1, ECF No. 52. The next day, the Center

filed a motion for attorney’s fees and costs. See Pl.’s Mot. for Att’y Fees (Pl.’s Mot.), ECF No.

54. The agency opposes, arguing that the Center’s request is excessive. See Opp’n, ECF No. 57.

The fee motion is now ripe for decision.

II.

FOIA permits courts to assess “against the United States reasonable attorney fees and

other litigation costs reasonably incurred . . . in which the complainant has substantially

prevailed.”

(a)(4)(E)(i). To recover fees and costs, the Center “must show that it

is eligible for fees and that it is entitled to them.” WP Co. LLC v. DHS, No. 20-cv-1487,

, at *1 (D.D.C. Feb. 6, 2023). If the Center shows both, the Court assesses whether

3 the requested amount is reasonable. See id. at *4. The Center carries the burden of showing that

its request is justified. See id.

First, eligibility. A party is “eligible” to receive fees if it has “substantially prevailed.”

Judicial Watch, Inc. v. U.S. Dep’t of Com.,

, 368–69 (D.C. Cir. 2006). Under

FOIA, a party substantially prevails if it has obtained relief through a judicial order, as here. See

(a)(4)(E)(ii). USCIS does not dispute that the Center meets this requirement.

The Court ordered the agency to complete processing of and produce all nonexempt

documents by a specified date. See Min. Order, Nov. 19, 2020. And the Court later granted

partial summary judgment to the Center and required the agency to conduct supplemental

searches and disclose some previously withheld records. See Order, ECF No. 38. So the Center

is eligible for fees. See

(a)(4)(E)(ii).

Next, entitlement. To determine whether the Center is entitled to fees, the Court

considers “(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) the reasonableness of the

agency’s withholding of the requested documents.” McKinley v. Fed. Hous. Fin. Agency,

(D.C. Cir. 2014) (cleaned up). After considering these factors, the Court

concludes that the Center is entitled to fees. And as with the eligibility prong, the agency does

not dispute this. 2

2 The agency argues that the Center’s motion should be denied for failure to comply with Local Civil Rule 7(m). See Opp’n at 2–4. That rule requires parties to meet and confer before filing any non-dispositive motion. See LCvR 7(m). The Center counters that it complied with the rule and that, even if it did not, the rule does not apply to FOIA fee petitions anyway. See Reply at 6–9. The Court need not consider these arguments. “The Court may, in the interest of judicial economy, reach the merits of a motion despite the parties’ failure to satisfy Local Civil Rule 7(m).” English v. WMATA,

, 26 (D.D.C. 2017). So the Court will not deny the Center’s fee motion on this basis, even assuming that Rule 7(m) applies here and that the Center ignored it.

4 The first factor favors awarding fees. The Center requested documents concerning

asylum officers and their training. “The nature of the subject that the request seeks to illuminate

is obviously important.” Morley v. CIA,

(D.C. Cir. 2016). So these requests

had “a modest probability of generating useful new information about a matter of public

concern.”

The requests thus had potential public value.

The second and third factors—the “commercial benefit” and “plaintiff’s interest”

factors—also favor the Center. McKinley,

. The Center is a nonprofit

organization whose mission is to help immigrant woman obtain asylum. See Compl. ¶ 5. To

that end, it “publicizes,” “educates,” and “sets forth new asylum cases, briefs, reports, and

analysis on the law surrounding these women and their issues.”

And “those requesters who

seek documents for public informational purposes are favored by FOIA, and they engage in the

kind of endeavor for which a public subsidy makes some sense.” Elec. Priv. Info. Ctr. (EPIC) v.

DHS,

(D.D.C. 2013) (cleaned up). So the second and third factors

support awarding the Center fees.

Finally, the fourth factor—“the reasonableness of the agency’s conduct”—supports

awarding fees. McKinley,

. The Court held that the agency violated its duties

under FOIA. After finding that USCIS failed to conduct adequate searches on Counts II and IV,

the Court ordered the agency to conduct supplemental searches. See

, at *4.

And these searches turned up over 200 pages that USCIS had initially missed. See Joint Status

Report at 1, ECF No. 46. More, the Court ruled against the agency on some of its withholdings

under Exemptions 5 and 7(E). See

, at *6, *10. So the fourth factor points in

the Center’s direction.

5 Taken together, the Center is both eligible for and entitled to attorney’s fees under

FOIA’s fee-shifting provision.

III.

Having determined that the Center is entitled to an award of attorney’s fees, the Court

must exercise its discretion and calculate the precise size of that award. The “usual method of

calculating reasonable attorney’s fees is to multiply the hours reasonably expended in the

litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel and

Rest. Emps. Local 25 v. JPR, Inc.,

(D.C. Cir. 1998) (cleaned up). “That

number may then be adjusted to reflect the significance of the overall relief obtained by the

plaintiff.” Am. Immigr. Council v. DHS,

(D.D.C. 2015).

The Center requests $156,800 in fees for this litigation. See Reply at 24. It requests an

additional $45,044 in “fees on fees” for work on this motion.

USCIS objects to both the

claimed hourly rates and the number of hours billed. The Court considers each variable in turn

before calculating the final award.

A.

First, hourly rate. “To calculate fees for public-interest attorneys who have no customary

hourly rates, courts often look to prevailing market rates in the [relevant] community.” Am.

Immigr. Council,

. The Center received pro bono representation from a

self-employed volunteer attorney with over 35 years’ experience. See Decl. of David Cleveland

(Cleveland Decl.) ¶ 1, ECF No. 54-2. So the Court looks to the prevailing market rate for similar

legal services.

6 The Center has two routes to establish that rate. First, it can show that this litigation

qualifies as “complex federal litigation.” If so, Fitzpatrick Matrix rates presumptively apply. 3

See J.T. v. District of Columbia, Nos. 19-cv-989, 22-cv-91,

, at *19 (D.D.C.

Jan. 23, 2023). Second, the Center “can provide evidence of the fees charged and received by

litigators in cases brought under the fee-shifting statute in question.” 12 Percent Logistics, Inc.

v. Unified Carrier Registration Bd., No. 17-cv-2000,

, at *4 (D.D.C. Dec. 9,

2020) (cleaned up). The Center tries both.

First, the Center contends that FOIA cases are per se “complex federal litigation”

justifying Fitzpatrick Matrix rates. It argues that USCIS “conceded that FOIA litigation was

‘complex’ in” a different case before this Court, and that “FOIA litigation was deemed complex

in” a case before another judge in this district. Reply at 10. This may be so, but the Center’s

conclusion—that FOIA cases are essentially always complex—does not follow. See

“[T]here is no presumption that FOIA cases qualify as complex federal litigation.” Webster v.

DOJ, No. 2-cv-603,

, at *11 (D.D.C. Sept. 21, 2021); accord Envtl. Def. Fund

v. EPA, No. 17-cv-2220,

, at *7 (D.D.C. Jan. 13, 2022). So the Center must

show that this particular case qualifies as complex federal litigation.

The Center does not meet its burden. Indeed, it makes little effort to show that this case

was especially complex. And the Court doubts that it is. 4 “This was not an unusual FOIA case.

3 The Fitzpatrick Matrix is a schedule of hourly fees based on years of attorney experience developed by the U.S. Attorney’s Office for the District of Columbia. See Fitzpatrick Matrix & Explanatory Notes, ECF No. 58-3. It has been developed to provide a reliable assessment of fees charged for complex federal litigation in the District. See

USCIS agrees that the Fitzpatrick Matrix provides the most accurate measure of complex federal litigation in the District of Columbia. See Opp’n at 10–11. 4 In its reply, the Center argues for the first time that this litigation is complex because the agency requested an extension of time. The agency justified its request in part because the case has a “complex procedural history” and the government attorney needed to “consult with agency

7 It was not a class action on behalf of a large number of plaintiffs; it did not involve particularly

voluminous or complicated factual and legal issues; it did not require plaintiff[] to conduct

extensive investigation and discovery; and it required no specialized non-legal knowledge.”

Envtl. Def. Fund,

, at *7. Indeed, this case was “resolved on a motion for

summary judgment involving straightforward issues.” Rooths v. District of Columbia,

(D.D.C. 2011). So the Center has not shown that this case qualifies as complex

federal litigation such that the Fitzpatrick Matrix presumptively applies.

The Center has a second route to showing the reasonableness of its requested rate. It can

produce evidence that the rate is “in line with those prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience and reputation.” Urban Air

Initiative, Inc. v. EPA,

, 323 (D.D.C. 2020).

First, the Center notes that certain partners at large law firms command rates above

Fitzpatrick Matrix rates. See Pl.’s Mot. at 18–19 (citing the billing rates of prominent attorneys

including Neil Katyal, Eric Holder, and David Boies). This argument fails. The relevant

comparators are “attorneys with comparable qualifications handling similar cases.” Covington v.

District of Columbia,

(D.C. Cir. 1995). The Center fails to show that its

work is of the same ilk.

More, that other lawyers command a premium says nothing about the billing rates for

lawyers in the District who represent clients in immigration proceedings. And the Court

observed in this case that the Center “largely failed” to “clearly state its arguments and provide

relevant caselaw as support.” Louise Trauma Ctr. LLC,

, at *8 n.7; see also

counsel.” Reply at 9 (citing ECF No. 56). But a complex procedural history is a very different concept from a complex case. In any event, the Court does not consider arguments raised for the first time in reply. See Lu v. Lezell,

(D.D.C. 2014).

8

(“[l]ittered throughout the Center’s briefings are conclusory assertions about how USCIS has

violated the law”). Indeed, the Center’s briefs left much to be desired. The Court thus rejects

the implication that the Center’s work is on par with that of the other attorneys it references.

The Center’s only other evidence in support of its requested rate is a declaration from its

counsel. See generally Cleveland Decl. Counsel points to three cases in which he was awarded

attorney’s fees. See id. ¶¶ 3, 9, 11 (citing Cerjan v. Fasula,

(N.D. Ohio

1981); Abtew v. DHS, No. 13-cv-1566,

(D.D.C. 2016); Gatore v. DHS,

(D.D.C. 2018)). These submissions do not persuade.

First, Cerjan was a civil rights case brought under

nearly four decades

ago in another district. Again, the relevant comparators are lawyers “handling similar cases,”

Covington,

, and FOIA is not analogous to § 1983. Second, the Center fails to

explain, even in a conclusory manner, how the litigation in Abtew and Gatore compare to this

case. While both were FOIA cases, they do not resemble the Center’s case. More, each

qualified as complex federal litigation. See Gatore,

(awarding fees “at the

prevailing rate for complex federal litigation”); Abtew, Mem. Op. and Order at 13, No. 13-cv-

1566, ECF No. 49 (awarding fees at the Laffey rates, which only apply to complex federal

litigation). And because the Center has not shown that this case is especially complex, neither

Gatore nor Abtew helps it.

Besides its citations to other FOIA cases, the Center has produced absolutely no evidence

other than its counsel’s own declaration to support the reasonableness of its requested rate. Even

if this evidence were persuasive, the Center must produce evidence “in addition to the attorney’s

own affidavits” to establish the reasonableness of its requested rates. Eley v. District of

9 Columbia,

(D.C. Cir. 2015) (cleaned up). The Center’s evidence does not

come close to satisfying its burden.

In this case, “a rate considerably below” the Fitzpatrick maximum is called for. Rooths,

. The Court will thus award fees at an hourly rate equal to 80% of the

Fitzpatrick rate.

B.

Consider next the reasonableness of the hours billed. The Center claims to have spent

269 hours litigating this case. It reduces its hours by 5% to account for overbilling and then by

another 20% to account for its limited success at summary judgment. See Pl.’s Mot. at 16. So

the Center says 204.44 hours are compensable.

USCIS says this is unreasonable. Its arguments fall into two buckets. First, it says that

the Center’s billing records contain considerable evidence of needless and duplicative work.

Second, it says that the Center’s records are insufficiently descriptive. The Court agrees on both

scores.

1.

The Center’s billing records are difficult to decipher. See Itemization of Hours, Ex. C,

ECF No. 54-3. But from what the Court can tell, it spent too much time on this case.

The touchstone for attorney’s fees is reasonableness, so the Court must “exclude hours

that are excessive, redundant, or otherwise unnecessary.” EPIC v. DHS,

(D.D.C. 2013). But “trial courts need not, and indeed should not, become green-eyeshade

accountants.” Fox v. Vice,

, 838 (2011). In this context, “[t]he essential goal . . . is

to do rough justice, not to achieve auditing perfection.” Id. Thus, the Court “may use estimates

in calculating and allocating an attorney’s time.” Id. This means that the Court “may attempt to

10 identify specific hours that should be eliminated” or “simply reduce the award to account for”

overbilling. Hensley v. Eckerhart,

, 436–37 (1983).

The Center’s time entries show significant inefficiencies and a lack of billing judgment.

The Court gives a few examples. Before filing its complaint, the Center’s counsel spent 2.3

hours “reviewing court website; ECF rules; checklist for attorneys” and “reading court rules re

filing.” Itemization of Records at 2. Counsel also billed 5.8 hours for “research” into Rules 8,

11(b), and 59 of the Federal Rules of Civil Procedure. See id. at 2, 9. As the agency notes, every

attorney who practices in this Court must certify their familiarity with both local and federal

rules.

Other entries show that the Center’s request is unreasonable. For instance, counsel spent

more than 15.4 hours “reviewing,” “studying,” or “organizing” the “entire file.” See Itemization

of Records at 4–10. 5 And counsel billed a cumulative 3.9 hours for time that he spent re-reading

the Complaint that he filed on behalf of the Center. The Complaint is only four pages long. See

generally Compl. He also billed 1.5 hours for “CIS is confused? study of file and requests.”

Itemization of Records at 3. This is unreasonable. The agency should not be billed for counsel’s

reading and re-reading of his own pleadings and FOIA requests.

The Court need not go on. As these examples suggest, much of counsel’s work was

needless, duplicative, or inefficient. So the Court will reduce the hours the Center may recover.

5 Many other entries include similar “review of file” descriptions that are lumped with other (vaguely described) tasks. So the Court cannot discern how much of this time was spent reviewing the case file generally or otherwise wasted. See, e.g., Itemization of Records at 3 (“.4 review of file; email to A Meltzer”); id. at 4 (“.6 study of file; email to BP”); id. at 5 (“1.2 review of file; preparing JSR”); id. at 9 (“.8 review of entire file; rereading #37”).

11 2.

The agency also argues that the Center’s records are insufficiently descriptive. And

inadequate records call for a reduction in compensable hours. Vague billing records “make[] it

impossible for the court to verify the reasonableness of the billings, either as to the necessity of

the particular service or the amount of time expended on a given legal task.” In re Sealed Case,

(D.C. Cir. 1989) (per curiam). Generic, one-line entries “are inadequate to

meet a fee applicant’s heavy obligation to present well-documented claims.” Role Models Am.,

Inc. v. Brownlee,

(D.C. Cir. 2004).

A review of the Center’s billing records show that they lack adequate detail. Most of the

entries lack any real description detailing the task counsel performed, or why he performed it.

For instance, counsel billed a cumulative 2.5 hours for “searching the Electronic Reading

Room.” Searching for what? Counsel also billed 1.8 hours for “research on technique and

procedure.” Itemization of Hours at 6. This entry is similarly impenetrable.

Consider next counsel’s entries related to exhibits. He billed: 0.8 hours for “creating

PDFs”; 2.1 hours for “double checking exhibits and filing with court”; 2.1 hours “preparing

exhibits”; and .7 hours “creating exhibits and double checking.” Id. at 4, 5, 8. Preparing what

exhibits? And recall the many entries describing counsel’s “review of the entire file.” The Court

cannot imagine a less helpful description.

As these examples show, counsel’s billing records teem with ambiguous entries. This

warrants an across-the-board reduction of the hours claimed. See Role Models Am., Inc.,

(“A fixed reduction is appropriate given the large number of entries that suffer from

one or more of the deficiencies we have described.”).

12 The Court will thus award fees for 60% of the claimed hours. Cf.

(awarding 50% of

hours sought because of inadequate documentation, failure to justify number of hours claimed,

and improper billing entries); see also Okla. Aerotronics, Inc. v. United States,

(D.C. Cir. 1991) (affirming district court’s award of 60% of claimed hours over excessive

billing).

C.

Finally, consider the Center’s request for fees spent preparing this fee motion. Counsel

allegedly spent 56.7 hours preparing its fee motion and reply, and it requests a total award of

$45,044. See Reply at 24. Though “hours reasonably devoted to a request for fees are

compensable, fees on fees must be reasonable, and not excessive.” Urban Air Initiative, 442 F.

Supp. 3d at 326 (cleaned up). Here too, the Center’s request is unreasonable.

The Court has a duty to “scrutinize fees-on-fees to ensure that the total is reasonable and

does not represent a windfall for the attorneys.” Id. at 327 (cleaned up). Counsel spent 19.7

hours on its fees motion and 37.2 hours on the reply brief. See Reply at 24. It is unclear why the

reply took almost twice as many hours as the application. And in reply, he briefed his eligibility

and entitlement to fees again, even though the agency did not contest this in its opposition. See

id. at 19–21.

The Center’s fees-on-fees request is also equivalent to nearly 30% of the claimed total

cost of this litigation. Such an award would be an “unsupportable windfall.” Urban Air

Initiative, 442 F. Supp. 3d at 327. The Court will thus award $10,000 in fees-on-fees. Cf. id.

(awarding less than 30% of requested fees-on-fees where request was nearly 30% of claimed

total litigation costs and reply brief took almost as many hours as application).

* * *

13 The following chart summarizes the Court’s hours and rate adjustments as discussed

above:

Time Period 6 Plaintiff’s Court’s Fitzpatrick Court’s Fees Earned Hours Adjusted Matrix Rate Adjusted Hours (60%) Rate (80%) 2020 76.8 46.08 $731 $584.80 $26,947.58

2021 150.1 90.06 $736 $588.80 $53,345.28

2022 42 25.2 $784 7 $627.20 $15,805.44

Fees-on-fees -- -- -- -- $10,000.00

Total $106,098.00

All told, the Center is entitled to $106,098 in fees. And the Court will grant the Center’s

request for costs of $402, which the agency does not specifically oppose.

IV.

For these reasons, the Court will grant in part and deny in part the Center’s Motion for

Attorneys’ Fees and Costs. A separate Order will issue today.

2023.05.16 18:08:29 -04'00' Dated: May 16, 2023 TREVOR N. McFADDEN, U.S.D.J.

6 The Center asserts without citation that it should be compensated for all hours at the prevailing market rate because of delay in payment. The Court disagrees. See N.W. Coal. for Alts. to Pesticides v. Browner,

(D.D.C. 1997) (“Attorneys’ fees awarded against the United States government must be based on the prevailing market rate at the time the services were performed, rather than rates current at the time of the award.”). 7 The Fitzpatrick Matrix has not been updated for fiscal year 2022. The Court arrives at this figure by adjusting the 2021 rate for inflation based on the legal services index of the Consumer Price Index. See Fitzpatrick Matrix Explanatory Notes ¶ 12.

14