Case 1:15-cv-01649-BAH Document 37 Filed 08/07/17 Page 1 of 19

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
____________________________________
DAVID T. HARDY )
)
Plaintiff, )
)
v. ) Civil Action No. 15-1649 (BAH)
)
BUREAU OF ALCOHOL, TOBACCO, )
FIREARMS AND EXPLOSIVES, et al., )
)
)
Defendants. )
____________________________________)

DEFENDANTS OPPOSITION TO
MOTION FOR ATTORNEYS FEES AND COSTS

Defendants respectfully submit this opposition to Plaintiffs Motion for Attorneys Fees

and Costs, Dkt. No. 36, in this Freedom of Information Act (FOIA) case. For the reasons

discussed below, Plaintiff is not entitled to fees or costs, and the Court should deny Plaintiffs

Motion.

FACTUAL BACKGROUND

I. The Parties

Plaintiff David Hardy is an attorney and internet blogger who disseminates information

relating to firearms law issues on the internet. Complaint 4. 1 Defendants are the Bureau of

1
Plaintiff has represented himself in FOIA litigation previously, see Hardy v. DOJ, No. 98-27
(D. Az.), and is currently representing other plaintiffs in separate FOIA litigation against ATF
pending before this Court, see Codrea v. ATF, No. 15-988-BAH (D.D.C.). Plaintiff would be
barred from recovering fees had he represented himself in this case, see Natl Sec. Counselors v.
CIA, 811 F.3d 22, 28 (D.C. Cir. 2016), so he retained attorneys Stephen Stamboulieh and Alan
Beck. Mr. Stamboulieh submitted a declaration in support of the attorneys fee request in the
Codrea litigation, see Codrea, No. 15-988, Dkt. No. 28-1, and he is currently representing one of
the Codrea plaintiffs in yet another FOIA suit against ATF, Savage v. ATF, No. 16-1212
(D.D.C.). In short, there is a tangled web of connections between a small cadre of firearms
activists and their efforts to recover fees through largely unsuccessful FOIA litigation.
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Alcohol, Tobacco, and Firearms (ATF) and the Office of Inspector General at the Department

of Justice (OIG).

II. Plaintiffs FOIA Request to OIG

On March 18, 2015, Defendant OIG received a FOIA request from Plaintiff seeking

[a]ny statements, surveys, or reports of interviews given to the Justice Department Office of

Inspector General in connection with IG Report No. I-2007-006 (The Bureau of Alcohol,

Tobacco, Firearms and Explosives National Firearms Registration and Transfer Record, June

2007). Declaration of Deborah M. Waller 3. OIG conducted a search and located 60

responsive records. Id. 7. On February 26, 2016, OIG made a production to Plaintiffs counsel

consisting of portions of the responsive records that were directly quoted in the National

Firearms Registration and Transfer Record (NFRTR Report). Id. As Plaintiff notes in her

Motion, those records were almost completely redacted, Motion at 2 10, and accordingly

were of little, if any, value to Plaintiff.

Plaintiff and OIG thereafter filed cross-motions for summary judgment. On March 22,

2017, the District Court issued a decision granting in part and denying in part Defendants

Motion for Summary Judgment and granting in part and denying in part Plaintiffs Cross-Motion

for Summary Judgment. See Dkt. Nos. 30, 31. Of the sixty documents at issue, the Court held

that 49 of the documents were protected from disclosure by FOIA exemption 5, as asserted by

OIG. See Mem. Op., Dkt. No. 31, at 15-19, 24-25, 30. As to eight of the documents, the Court

held that there was insufficient information on which to make a determination of the applicability

of Exemption 5 so the Court denied the cross-motions, without prejudice, as to those records.

See id. at 25-28, 30-31. Lastly, the Court held that Exemption 5 was inapplicable to three of the

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withheld documents. See id. at 19-24. The Courts rulings on the sixty withheld documents are

summarized as follows:

Document Category Number of Documents Ruling

Records of Interviews and 47 Documents Protected by Exemption 5.

Telephone Interview Notes Mem. Op. at 15-19.
Survey Results and Final Survey Three Documents OIG did not provide
Data sufficient justification for
non-disclosure. Mem. Op. at
19-24.
Survey Draft One Document Protected by Exemption 5.
Mem. Op. at 24-25.
Final Survey Data Analysis and Five Documents Insufficient information
Survey Question Analysis cross motions denied. Mem.
Op. at 25-28.
Interview Workpaper One Document Protected by Exemption 5.
Mem. Op. at 30.
Workpaper Index and One Document Insufficient information
Assignments Worksheet cross motions denied. Mem.
Op. at 30-31.
Email Summary and Document Two Documents Insufficient information
Summary cross motions denied. Mem.
Op. at 31-33.

Following the Courts summary judgment ruling, OIG agreed to release the three

documents to which the Court held Exemption 5 inapplicable as well as five of the eight

documents as to which the Court held there was insufficient information to grant either partys

motion. Waller Decl. 8. The parties thereafter filed a stipulation of dismissal as to all claims

except for Plaintiffs claim for attorneys fees. See Stip. of Dismissal, Dkt. No. 35.

III. Plaintiffs FOIA Request to ATF

On March 30, 2015, Defendant ATF received a FOIA request from Plaintiff seeking

seven categories of records concerning opinions issued by ATFs Firearms Technology Branch,

rulings on National Firearms Act firearms, and other records concerning rulings or opinions

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related to sales of firearms by Federal Firearms Licensees. Declaration of Peter J. Chisholm

(Chisholm Decl.) 2. ATF acknowledged receipt of the request on June 26, 2015. Id. 3.

ATF processed 804 pages in response to Plaintiffs request, producing 196 pages in full,

464 pages in part, and withholding in full 144 pages. Id. 6. The productions occurred on

February 26, 2016, and June 29, 2016. Id. 5.

Plaintiff did not challenge ATFs search or withholdings. See Pls Cross-Motion for

Summ. J., Dkt. No. 24, at 1 (agree[ing] that Summary Judgment is appropriate as to Defendant

Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) as it has finally complied with

Plaintiffs FOIA request). The Court therefore entered judgment in favor of ATF. See Mem.

Op., Dkt. No. 31, at 1 n.1.

On July 5, 2017, Plaintiff filed his Motion for Attorneys Fees and Costs seeking almost

$42,000 in fees, plus $436 in costs.

ARGUMENT

I. Plaintiff is Not Entitled to an Award of Fees or Costs

In dealing with requests for awards of attorney fees under FOIA, a court must engage in a

two-step substantive inquiry. First it must determine, if a plaintiff is eligible for a fee award, and

then it must determine if the plaintiff is entitled to the award. See Brayton v. Office of the U.S.

Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011); Tax Analysts v. U.S. Dept of Justice, 965 F.2d

1092, 1093 (D.C. Cir. 1992).

In order to demonstrate eligibility for an attorneys fees award, a plaintiff can show that it

has obtained relief through a judicial order or by making the agency voluntarily or unilaterally

change its position with respect to the plaintiffs FOIA request. See 5 U.S.C. 552(a)(4)(E).

Defendants recognize that authority exists holding that a FOIA plaintiff substantially prevails

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where a court issues a scheduling order requiring an agency to produce responsive documents by

a date certain, as the Court did here.

Nevertheless, Plaintiffs Motion should be denied because even if Plaintiff can show he is

eligible for fees, he cannot show that he is entitled to them. Judicial Watch, Inc. v. U.S. Dept of

Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006) (Eligibility for fees does not necessarily mean

that a party is entitled to attorney fees under FOIA.). The entitlement inquiry examines (1) the

public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the

nature of the complainants interest in the records sought; and (4) whether the governments

withholding had a reasonable basis in law. Id. (citing Davy v. CIA, 550 F.3d 1155, 1159 (D.C.

Cir. 2008)). Ultimately, the decision on whether a plaintiff is entitled to attorneys fees rests in

the sound discretion of the district court. Church of Scientology v. Harris, 653 F.2d 584, 590

(D.C. Cir. 1981).

A. There is No Public Benefit from the Released Records

1. OIG

Plaintiffs Motion focuses primarily on the first factor the public benefit derived from

the case. The public benefit factor has been described as perhaps the most important factor in

determining entitlement to a fee award. Hernandez v. U.S. Customs & Border Prot. Agency,

No. 10-4602, 2012 U.S. Dist. LEXIS 14290, at *23 (E.D. La. Feb. 6, 2012). While any FOIA

disclosure hypothetically benefits the public by generally increasing public knowledge about the

government, this broadly defined benefit is not what Congress had in mind when it provided

for awards of attorney fees. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). Rather, the

public benefit factor speaks for an award [of attorney fees] when the complainants victory is

likely to add to the fund of information that citizens may use in making vital political choice.

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Id. Importantly, as Plaintiff acknowledges in his Motion, [p]ertinent to the Courts public

benefit factor analysis is the extent to which the information released is already in the public

domain. Motion at 4 (quoting Elec. Privacy Info. Ctr. v. FBI, 72 F. Supp. 3d 338, 346 (D.D.C.

2014)). As the D.C. Circuit has explained, whether documents are already in the public domain

is significant because it undermines any claim that the requesters use of FOIA had provided

public access to the documents. Morley v. CIA, 810 F.3d 841, 845 (D.C. Cir. 2016) (citing Tax

Analysts, 965 F.2d at 1094-95)).

This last point is dispositive on the public interest question here. Plaintiff argues that

three of the documents produced by OIG demonstrate that BATFEs [sic] question the integrity

and accuracy of the NFRTR. Motion at 6; see also id. at 7 (the accuracy is heavily questioned

in the survey responses). But that information is already in the public domain. Specifically, the

NFRTR Report which was released publically in 2007 is filled with statements similar to

those referenced by Plaintiff. Indeed, Plaintiffs Motion itself quotes the Reports conclusion

that [t]he lack of consistency in procedures and the backlog in reconciling discrepancies,

combined with the technical issues, result in errors in the records, reports, and queries produced

from the NFRTR. These errors affect the NFRTRs reliability as a regulatory tool when it is

used during compliance inspections of federal firearms licensees. Motion at 5 (quoting NFRTR

Report at iii).2 And similar statements are repeated throughout the Report, including that

management and technical deficiencies contribute to inaccuracies in the NFRTR database, Ex.

1 at iii, that [i]ncomplete and inaccurate training could lead to errors in the NFRTR and in

decisions based on the NFRTR, id at v, that [t]he NFA Branch is not promptly correcting a

backlog of NFRTR errors identified during inspections of federal firearms licensees, id. at vi,

and that discrepancies between the NFRTR and inventories of federal firearms licensees were
2
The NFRTR Report is attached hereto as Exhibit 1.
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frustrating and time consuming for IOIs as well as disconcerting for licensees, id. at vi. For the

Courts convenience, these and many other similar remarks from the NFRTR Report are

included in Exhibit 2 attached hereto.

In fact, each of the points from the released documents that Plaintiff cites in his

opposition is already contained in some instances verbatim in the long-public NFRTR

Report. For example, Plaintiff cites the results of a survey question asking how often a

discrepancy is due to an error in the NFRTR. Motion at 6-7. But that exact same information

was already disclosed through the NFRTR Report, which states:

In our interviews and survey, IOIs reported that discrepancies between licensees
inventories and the NFRTR record were prevalent. In our survey, 46.5 percent of
IOIs (139 of 299) reported that there was a discrepancy between the NFRTR
inventory report and the licensees inventory always or most of the time.
Further, 44.4 percent of IOI respondents (133 of 299) said that the discrepancy
was due to an error in the NFRTR always or most of the time. In comparison,
no IOI respondent reported that the error was always on the part of the licensee,
and only 2 percent (6 of 299) reported that the error was on the part of the
licensee most of the time.

Ex. 1 at 25; see also id. at vii.

Likewise, Plaintiff points to a released document noting that IOIs state that many

[Federal Firearms Licensees] are concerned about the accuracy of the information in the

NFRTR. Motion at 7. But the NFRTR Report repeatedly says the same thing, observing that

IOIs stated that many licensees were worried about any identified discrepancy, Ex. 2 at vii,

that discrepancies between the NFRTR and licensees inventories are frustrating and time

consuming for IOIs and are disconcerting for licensees who can be referred for criminal

investigation for violations of the NFA and GCA discovered in compliance inspections, id. at

26, and that the two NFATCA representatives and one federal firearms licensee we interviewed

were very concerned with the accuracy of the NFRTR, id. at 29.

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The same is true of other statements quoted by Plaintiff from the released records. One

such record notes that [e]rrors and discrepancies make ATF, as a whole, look inept, Motion at

8, and the NFRTR Report similarly states that discrepancies between NFRTR inventory reports

and licensee inventories make the NFA Branch look incompetent and can be disruptive to

licensees operations, Ex. 1 at 26. A released document states that the NFA Branch does not

always correct errors, even by the time of the next inspection, Motion at 8, and the Report

devotes multiple paragraphs to the same point, Ex. 1 at 27 (Some IOIs noted frustration over the

NFA Branchs failure to correct identified discrepancies in the NFRTR before a licensees next

compliance inspection.). One released document quotes an inspector discussing the need for

cleaning up of the NFRTR, Motion at 8, and the Report likewise states that many IOIs

stated that the existing data in the NFRTR should be cleaned up, Ex. 1 at 28. Finally, Plaintiff

quotes a statement by an inspector proposing to [u]pdate the computer program to a 21st

century capability and observing that [y]ou are United States National Firearms Act Branch,

stop operating like a third world country Dept of Motor Vehicles office. Motion at 8. The same

quote, however, is already included in the NFRTR Report, as part of an entire section devoted to

reporting deficiencies in the NFRTR computer system. Ex. 1 at 33; see also id. at 32-39.

Aside from the three documents cited in Plaintiffs Motion and discussed above, Plaintiff

does not argue that any other released document contains information of public significance, nor

could he. See Motion at 6-9. In particular, the OIGs initial release in February 2016 consisted

of portions of records that were directly quoted in the NFRTR Report and, therefore, were

already in the public domain. Waller Decl. 7. Accordingly, the information that Plaintiff

contends establishes a public interest here has already been public for many years and cannot

support a fee award.

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Lastly, Plaintiff also states that it is believed that the release of these documents will

lead not only to convictions being overturned but also for defendants to be able to attack the

validity and accuracy of the NFRTR, the likes of which will have far-reaching implications for

years to come. Motion at 9. Plaintiffs belie[f] is entirely speculative and, in any event,

baseless. See Aviation Data Serv. v. FAA, 687 F.2d 1319, 1323 (10th Cir. 1982) ([S]peculative

benefit[s] will not suffice.). Given that the NFRTR Report itself did not lead to convictions

being overturned, the release of the same information in other records will not have a different

outcome. Also, Plaintiff conveniently ignores the critical conclusion of the NFRTR Report that

[e]rrors or discrepancies in the NFRTR have not resulted in inappropriate criminal prosecutions

of NFA weapons owners and licensees and that OIG did not find evidence that errors in

NFRTR records caused inappropriate seizures or criminal charges against NFA weapons owners

or federal firearms licensees. Ex. 1 at 30-31. Plaintiff has failed to cite any information

revealed through the released records that undermines these conclusions by OIG.

2. ATF

Plaintiff makes only a half-hearted attempt to argue that ATFs production serves the

public interest. See Motion at 9-10. Plaintiff merely lists a series of vague and general topics to

which, he claims, some unidentified documents pertain. Id. Plaintiff has not attached any of the

records produced by ATF and he cites no evidence to support his assertions in his brief. ATF

produced 660 pages of records and it is unclear to which records Plaintiff is referring. In any

event, the topics referenced by Plaintiff were already addressed in the public domain there are

many documents associated with those topics readily available for public consumption.

Chisholm Decl. 13.

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The one document that Plaintiff discusses with at least some particularity does not

contain information of public interest. Specifically, Plaintiff argues that a document contains an

opinion on whether a wife purchasing a firearm for her husband, after her husband receives a

delay response from NICS when purchasing a firearm from an FFL. Motion at 10 n.5. But

that document is a private letter ruling drafted in response to questions from private citizens or

the industry and are only binding on the party that receives the ruling. See Chisholm Decl. 9-

10. Plaintiffs argument that this document informs the public about how to navigate the

federal firearms law, Motion at 1, is incorrect as it applies only to the recipient party.

For these reasons, Plaintiff is incorrect that the records released by ATF are likely to add

to the fund of information that citizens use in making vital political choices. Motion at 10

(quoting Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995)). Generally, released

documents have an insufficient public benefit when they pertain to such highly particularized

interactions with an agency that non-participants would have only a limited interest in the

records as a means of learning what the agency was doing. In other words, a mere increase in

general public knowledge of governmental actions is generally not enough to show a public

benefit. Dorsen v. U.S. SEC, 15 F. Supp. 3d 112, 121 (D.D.C. 2014). It is simply not credible

to argue that the public has any interest in these documents, and Plaintiff plainly has not met his

burden on this factor. See Conservation Force v. Jewell, 160 F. Supp. 3d 194, 207 (D.D.C.

2016) (plaintiff bears burden of proof on motion for attorneys fees). Indeed, even Plaintiffs

declarant does not opine that the ATF records provide any public benefit. See Declaration of

Eric Martin Larson, Dkt. No. 36-4, 8 (concluding only that records released by OIG provide a

public benefit without mentioning ATF records). 3

3
The Court should strike the Larson Declaration because his opinions exceed the scope of
permissible lay opinion testimony. See Fed. R. Evid. 701. Plaintiff has not sought to establish
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B. Plaintiffs Interest in the Records is Primarily Personal and Commercial

The remaining factors that courts consider in assessing entitlement include the

commercial benefit to the plaintiff, the nature of the plaintiffs interest in the records, and the

reasonableness of the agencys withholding. McKinley v. Fed. Housing Fin. Agency, 739 F.3d

707, 711 (D.C. Cir. 2014). The second and third factors are closely related and are generally

considered together. See Barnard v. DHS, 656 F. Supp. 2d 91, 99 (D.D.C. 2009). When a

litigant seeks disclosure for a commercial benefit or other personal reasons, an award of fees is

usually inappropriate. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). Conversely,

where the plaintiffs interest is considered to be scholarly or journalistic, i.e., furthering a public

interest, an award of fees is more likely. Barnard, 656 F. Supp. 2d at 99.

Here, Plaintiffs background as an attorney who focuses his work on Second Amendment

issues demonstrates that he has both a personal and commercial interest in the information he

requested. See supra n.1. In his motion, Plaintiff summarily asserts, without providing

supporting evidence, that his interest in the OIG records is scholarly because he published an

article online after the documents were received. Motion at 11. Apparently, the article

published by Plaintiff is nothing more than a post on Plaintiffs blog, Of Arms & the Law.

See Motion at 11 (citing blog post). The blog post merely summarizes the content of the

documents plaintiff received, information which, as explained above, was already in the public

domain. See Ex. 3. Such a summary of public information simply does not constitute a

Mr. Larson as an expert witness, but even if he had, Mr. Larsons opinions would still not be
admissible. To be admissible, the opinions of an expert must be the product of reliable
principles and methods and must be based on sufficient facts or data. Fed. R. Evid. 702. Mr.
Larsons declaration consists of a discussion of information obtained from sources other than this
FOIA case, followed by the unsupported conclusion that disclosure of the Work Papers for the
Department of Justice Office of Inspector General review of the NFRTR is in the public
interest, and critically important if the rule of law is to be maintained and respected. Larson
Decl. 8. Mr. Larsons personal belie[fs] are inadmissible whether offered as lay or expert
testimony.
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scholarly article, and therefore, does not support Plaintiffs assertion that his interest in the

material was purely scholarly. Moreover, the fact that the information contained in the blog post

was already in the public domain as a result of the OIGs public issuance of its report in 2007

further supports the conclusion that the information produced did not further any public interest.

Plaintiff also states that he provided the records to a criminal defense attorney to assist

with the defense of a defendant in a criminal prosecution. Motion at 11. Such conduct is neither

scholarly nor journalistic, nor did it advance a public interest. Indeed, it demonstrates a purely

personal, if not commercial, reason for wanting the information, which weighs against awarding

fees. See Cotton, 63 F.3d at 1120; Republic of New Afrika v. FBI, 645 F. Supp. 117, 121 (D.D.C.

1986) (stating that purely personal motives of plaintiff to exonerate its members of criminal

charges and to circumvent civil discovery dictated against award of fees). For these reasons,

consideration of the nature of Plaintiffs interest in the records weighs against an award of

attorney fees.

C. Defendants Withholdings Were Reasonable and Not Made in Bad Faith

The final entitlement factor evaluates whether the agencys opposition to disclosure

had a reasonable basis in law, and whether the agency had not been recalcitrant in its opposition

to a valid claim or otherwise engaged in obdurate behavior. Dorsen, 15 F. Supp. 3d at 123.

This factor is dispositive where the agency has a colorable basis for initially withholding a

document before making a release. Id. at 123-25.

1. OIG

Contrary to Plaintiffs argument, the Courts summary judgment decision does not

establish that Defendants withholdings were unreasonable. That decision upheld the vast

majority of contested withholdings, affirming the agencys application of Exemption 5 as to 49

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of the 60 documents at issue and holding the exemption inapplicable to only three documents.

See generally Mem. Op.; see also supra at 3 (presenting table summarizing summary judgment

rulings). As courts have held in similar circumstances, [b]ecause [OIG] prevailed on the

majority of its claims, its overall position was reasonable. People for the Ethical Treatment of

Animals v. USDA, No. 03-195, 2006 U.S. Dist. LEXIS 10517, at *12-13 (D.D.C. Feb. 27, 2006).

Plaintiffs Motion should be denied for this reason alone.

Moreover, the fact that the Court disagreed with OIGs position as to three of the 60

documents at issue does not mean that OIGs position was unreasonable or that it was asserted in

bad faith. Indeed, the D.C. Circuit has emphasized that the governments position need not be

correct to qualify as reasonable. Peter S. Herricks Customs & Intl Trade Newsletter v. U.S.

Customs & Border Prot., No. 04-377, 2006 U.S. Dist. LEXIS 77935, at *29 (D.D.C. Oct. 26,

2006) (citing Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)). The government need only

have a colorable basis in law for its legal position to be considered reasonable. McKinley, 739

F.3d at 712. Here, OIGs position as to these three documents was not unreasonable. OIG had

cited multiple decisions in support of its position and although the Court found those decisions

distinguishable, Mem. Op. at 24 n.12, OIG was not unreasonable in relying on them. Even

where an agencys position in withholding . . . documents [is] weak, that does not support a fee

award so long as the position is not baseless. PETA, 2006 U.S. Dist. LEXIS 10517, at *12-13.

OIG submits that its legal position as to these three documents was not weak and was certainly

not baseless. 4

4
OIGs argument at summary judgment was that the information in these three documents was
subject to Exemption 5 because it was part of the agencys process of selecting and analyzing
data to formulate the findings published in the final report. Reply Mem. in Supp. of Defs Mot.
for Summ. J., Dkt. No. 27, at 6. As support, OIG cited, inter alia, a decision holding that
documents use by agency employees in writing the Staff Report renders them part of the
deliberative process. Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194,
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Moreover, Plaintiff has failed to demonstrate that OIG was recalcitrant in its opposition

to a valid claim or otherwise engaged in obdurate behavior. McKinley, 739 F.3d 707, 712.

Although Plaintiff complains about the administrative delay in releasing records, absent

obduracy or bad faith, delay alone does not entitle a FOIA plaintiff to an award of fees and costs.

See, e.g., Read v. F.A.A., 252 F. Supp. 2d 1108, 1112 (W.D. Wash. 2003) ([D]elay due to

bureaucratic ineptitude alone is not sufficient to weigh in favor of an award of attorneys fees.);

Ellis v. United States, 941 F. Supp. 1068, 1080 (D. Utah 1996) (Since plaintiffs challenge is to

the governments delay in releasing the records rather than its substantive claims of exemption,

the reasonableness factor does not favor a fee award so long as the government did not engage in

obdurate behavior or bad faith.). Here, after an initial delay due to a clerical error, OIG issued

its response letter to Plaintiff on December 7, 2015 and then produced records on February 26,

2016. Waller Decl. 5-6. At best, Plaintiff has shown mild sluggishness by an agency busy

with FOIA requests, not bad faith. Frydman v. Dept of Justice, 852 F. Supp. 1497, 1508 (D.

Kan. 1994) (finding that although eight-month delay in disclosing document after it was

discovered demonstrated some sluggishness by agency, it did not show bad faith); see also

Mobley v. Dept of Homeland Sec., 908 F. Supp. 2d 42, 48 (D.D.C. 2012) ([T]he governments

compliance with the plaintiffs request so early in the litigation is not the sort of agency behavior

that Congress intended to prevent by awarding attorneys fees.). Accordingly, OIG was not

recalcitrant or obdurate.

2. ATF

As to ATF, Plaintiff did not challenge the agencys search or withholdings but instead

consented to the entry of summary judgment in ATFs favor. See Pls Cross-Motion for Summ.

206 (D.D.C. 2007). Even if this case was ultimately distinguishable, it at least appeared to
provide support for OIGs position.
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J., Dkt. No. 24, at 1; Mem. Op. at 1 n.1. Therefore, Plaintiff cannot and does not argue that

ATFs withholdings were improper. Instead, Plaintiffs argument is simply that ATF did not

produce records until after the litigation commenced. Motion at 12-13. But, as discussed above,

delay alone is not sufficient to show recalcitrance or obdurate behavior. See Read, 252 F. Supp.

2d at 1112; Ellis, 941 F. Supp. at 1080; Frydman, 852 F. Supp. at 1508; Mobley, 908 F. Supp. 2d

at 48. Moreover, ATF has shown that the delay in producing records to Plaintiff was caused by

an administrative backlog, not bad faith. See Chisholm Decl. 14-20. Accordingly, it cannot

be said that ATFs conduct was unreasonable, recalcitrant or obdurate in any way. See Dorsen,

15 F. Supp. 3d at 118-19 ([A]n agencys delay in response until after a lawsuit is filed may be

due to factors having nothing to do with the filing of the lawsuit but instead with administrative

delays due to backlogs of FOIA requests, the volume of responsive records requiring processing,

the necessity of inter-agency searches and responses, or a combination of these factors.). Under

such circumstances, Plaintiff is not entitled to an award of fees.

II. Plaintiffs Fee Request is Excessive

For the reasons argued in the foregoing sections, Plaintiff is not entitled under applicable

law to any award of fees or costs. Without conceding any such argument, Defendants maintain

further that Plaintiffs fee award request is excessive and unsupported, and that even if the Court

were to determine Plaintiff is entitled to some fee award, the amount must be reduced

substantially.

A. Any Fee Award Must be Reduced to Account for Plaintiffs Limited

Success

In determining an appropriate fee amount, a court should only award fees based upon

attorney time shown to have been reasonably expended. See Citizens for Responsibility & Ethics

(CREW) v. U.S. Dept of Justice, 825 F. Supp. 2d 226, 231 (D.D.C. 2011). The starting point

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is to multiply the number of hours reasonably expended by a reasonable hourly rate, a calculation

that yields the lodestar. Bd. of Trs. of Hotel & Rest. Employees Local 25 v. JPR, Inc., 136 F.3d

794, 801 (D.C. Cir. 1988). [T]he reasonableness of a fee request must be evaluated in light of

the results obtained. Am. Civ. Liberties Union v. U.S. Dept of Homeland Sec., 810 F. Supp. 2d

267, 277 (D.D.C. 2011) (internal quotations and alterations omitted). The degree of success

obtained is the most critical factor in determining the reasonableness of a fee award. Farrar v.

Hobby, 506 U.S. 103, 114 (1992).

Thus, even if the Court finds that Plaintiff is eligible for fees and is entitled to them, it

should not award the full amount requested by Plaintiff, or anything close to it. Plaintiff seeks

nearly $42,000 in fees for this litigation in which his degree of success was, at best, barely

minimal. Of the 60 documents in dispute at summary judgment, Plaintiff prevailed on his claims

concerning only three. See Mem. Op. at 19-24. In contrast, the Court upheld OIGs

withholdings as applied to 49 of the 60 documents, and denied both parties motions for

summary judgment as to eight of the documents (of which OIG agreed to discretionarily release

five). See id. at 15-19, 24-28, 30-31.

If a plaintiff achieves only limited success, it is within the courts discretion to reduce

the award of fees. Elec. Privacy Info. Ctr. v. U.S. Dept of Homeland Sec., 982 F. Supp. 2d 56,

60 (D.D.C. Oct. 15, 2013); see also Barnard v. DHS, 656 F. Supp. 2d 91, 100 (D.D.C. 2009)

(amount requested was unreasonable when it appear[ed] to include hours for legal work as to

which [the plaintiff] was not successful); Natl Sec. Archive v. DOD, 530 F. Supp. 2d 198, 205

(D.D.C. 2008) ([a]warding [the plaintiff] its entire fee, and thus compensating it at least in part

for time spent on a losing claim, would be an abuse of discretion). The method of reduction . .

. that the D.C. Circuit has used when a plaintiff does not allocate time between claims, is to

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award a percentage of the fees sought equal to the percentage of pages spent arguing the

successful claims on the merits. Id. (citing Judicial Watch, Inc. v. U.S. Dept of Commerce, No.

05-5366, 2007 U.S. App. LEXIS 2337, at *2-4 (D.C. Cir. Jan. 31, 2007)). In EPIC, the court

reduced the requested fees by 6/7 because of the plaintiffs limited success at summary

judgment, after determining that the plaintiff dedicated 6 pages out of 42 of argument, or 1/7, to

the winning issue. Id. at 63.

Here, Plaintiff devoted only one paragraph, or about 1/3 of a page, in its 11-page

summary judgment motion to argument about the survey-related records on which he prevailed.

See Pls Cross-Motion for Summ. J., Dkt. No. 24, at 13. Accordingly, Plaintiff spent about 1/33

of his summary judgment brief on this issue. Therefore, any recovery for the time spent

litigating the merits of this case should not exceed 1/33 of those fees.

Also, OIGs initial production in February 2016 does not represent a success for Plaintiff

as even Plaintiff concedes that the production was almost completely redacted, Motion at 2

10, and the only information produced therein were direct quotes from the NFRTR Report,

Waller Decl. 7. Plaintiff cannot credibly contend that he should be compensated based on

OIGs voluntary production of this minimal, already-public information. In any event, only a

fraction of Plaintiffs fees occurred before the February 2016 production. See Motion, Exs. 7 &

8. The remainder of the fees are not attributable to that production and cannot be recovered as

compensation for that piece of the litigation.

B. Plaintiffs Claimed Hours Include Time Spent on Non-Compensable

Tasks

Any fee award should be further reduced, first, because Plaintiffs time records reveal

17.8 hours spent on the review of documents produced by the agencies, which is non-

compensable. See CREW, 825 F. Supp. 2d at 231 (refusing to award fees for time spent

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reviewing records received in response to FOIA request because the cost of reviewing

documents produced in response to a FOIA request is simply the price of making such a

request).

In addition, the time sheets contain examples of excessive time spent on simple tasks.

For example, attorney Stamboulieh billed $79 for an entry described as Attention to entry of

reset deadlines by court, for which he spent two-tenths of an hour. See Motion, Ex. 7 (4/5/2016

entry); see also id. (billing 1/10 of an hour on 6/16/2016 for Attention to Court order resetting

deadlines). Reviewing an ECF notice resetting deadlines should take mere seconds, and is not

the sort of activity that courts consider compensable. As courts have held, [i]t is excessive to

charge for tasks of less than a minute. Audubon Socy of Portland v. U.S. Natural Res.

Conservation Serv., No. 10-1205, 2012 U.S. Dist. LEXIS 145724, at *13 (D. Or. Oct. 8, 2012)

(declining to award fees where plaintiff billed a tenth of an hour, i.e., six minutes, to review a

minute order from the court. The minute order was one sentence and would not have taken even

one minute to read.). Accordingly, the Court should deny these and any other excessive time

entries.

CONCLUSION

For the reasons set forth above, the Court should deny Plaintiffs Motion for Attorneys

Fees and Costs.

Respectfully submitted,

CHANNING D. PHILLIPS
United States Attorney
D.C. Bar #415793

DANIEL VAN HORN

Chief, Civil Division
D.C. Bar # 924092

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By: /s/____________________
JOSHUA M. KOLSKY
Assistant United States Attorney
D.C. BAR #993430
Washington, D.C. 20530
Phone: (202) 252-2541
Email: joshua.kolsky@usdoj.gov

Counsel for Defendants

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