Case 1:12-cv-01441-ABJ-GMH Document 1 Filed 08/30/12 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER FOUNDATION

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1818 N Street, N.W.

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Suite 410

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Washington, DC 20036,

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Plaintiff,

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v.

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DEPARTMENT OF JUSTICE

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950 Pennsylvania Avenue, N.W.

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Washington DC 20530,

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Defendant.

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________________________________________________)

COMPLAINT FOR INJUNCTIVE RELIEF

1. This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for injunctive and other appropriate relief. Plaintiff seeks the expedited processing and release of records Plaintiff requested from Defendant Department of Justice and its components, Office of Information Policy and National Security Division, including the opinions of the Foreign Intelligence Surveillance Court (FISC) and reports to Congress describing unconstitutional government surveillance. The requested records concern an “actual or alleged [f]ederal [g]overnment activity” about which there is an “urgency to inform the public,” and the requests were “made by a person primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(i)(I), (v)(II); 28 C.F.R. § 16.5(d)(1)(ii). The requested records also involve a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(i)(II); 28 C.F.R. § 16.5(d)(1)(iv).

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JURISDICTION AND VENUE 2. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
PARTIES 3. Plaintiff Electronic Frontier Foundation (EFF) is a not-for-profit corporation established under the laws of the Commonwealth of Massachusetts, with offices in San Francisco, California and Washington, D.C. EFF is a donor-supported membership organization that works to inform policymakers and the general public about civil liberties issues related to technology and to act as a defender of those liberties. In support of its mission, EFF uses the FOIA to obtain and disseminate information concerning the activities of federal agencies. 4. Defendant Department of Justice (DOJ) is a Department of the Executive Branch of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). The Office of Information Policy (OIP)1 and National Security Division (NSD) are components of Defendant DOJ.
FACTUAL ALLEGATIONS The FISA Amendments Act and Unconstitutional Government Surveillance 5. Section 702 of the FISA Amendments Act (“FAA”) of 2008, P.L. 110-261, 122 Stat. 2436 (codified as amended in scattered sections of 18 and 50 U.S.C.) provides, among other things, that the government may obtain an order “for a period of up to 1 year” for the “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a). This targeting is subject to specified limitations and the approval of targeting and minimization requirements by the Foreign Intelligence Surveillance Court (“FISC”). Id.
1 The Office of Information Policy has primary responsibility for handling FOIA requests submitted to the Office of the Attorney General, Deputy Attorney General, and Associate Attorney General, as well as the Office of Legislative Affairs and the Office of Legal Policy.
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6. The FAA also provides for Congressional review of surveillance performed under Section 702. 50 U.S.C. § 1881f. These reports, required at least “every 6 months,” must include a “description of the judicial review” by the FISC of the “targeting and minimization procedures” used in connection with Section 702 surveillance, 50 U.S.C. § 1881f(b)(1)(D), and “a description of any incidents of noncompliance.” 50 U.S.C. § 1881f(b)(1)(G).
7. FISA also requires the Attorney General to submit to Congress “a copy of any decision, order, or opinion issued by the [FISC] or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of [FISA].” 50 U.S.C. § 1871(c)(1).
8. The provisions for surveillance established in the FAA will sunset on December 31, 2012. P.L 110-261, Sec 403(b)(1); 50 U.S.C. § 1881 note. Director of National Intelligence James Clapper described reauthorization of the FAA as the intelligence community’s “top legislative priority.” Letter from James Clapper to John Boehner, et al. (March 26, 2012).2
9. In anticipation of the FAA’s expiration and the debate over reauthorization, Senators Ron Wyden and Mark Udall have pushed the executive branch to make public statements concerning surveillance conducted under Section 702. See, e.g., Spencer Ackerman, NSA: It Would Violate Your Privacy to Say if We Spied on You, Wired (June 18, 2012).3
10. In July 2012, the Office of the Director of National Intelligence provided Senator Wyden with a classification review of three statements he wished to make publicly concerning surveillance conducted under Section 702. The three statements are:
• “A recent unclassified report noted that the [FISC] has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.”
2 Available at http://www.fas.org/irp/news/2012/03/dni032612.pdf. 3 Available at http://www.wired.com/dangerroom/2012/06/nsa-spied/.
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• “It is also true that on at least one occasion the [FISC] held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.”
• “I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the [FISC] has reached this same conclusion.”
Letter from Kathleen Turner, Director of Legislative Affairs, Office of Director of National Intelligence, to Senator Ron Wyden (July 20, 2012).4
11. This disclosure confirmed previous reports that Section 702 surveillance had “intercepted the private e-mail messages and phone calls of Americans . . . on a scale that went beyond the broad legal limits established by Congress[.]” Eric Lichtblau and James Risen, Officials Say U.S. Wiretaps Exceeded Law, N.Y. Times (April 15, 2009);5 see also Eric Lichtblau and James Risen, Email Surveillance Renews Concerns in Congress, N.Y. Times (June 16, 2009).6 Officials briefed on the surveillance in 2009 described it as “significant and systemic.” Id.
Plaintiff’s FOIA Requests and Requests for Expedited Processing 12. In letters dated July 26, 2012 and sent by email to OIP and NSD, Plaintiff requested the following category of records under the FOIA:
(1) Any written opinion or order, as described [in the three statements quoted in ¶ 12], in which “the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment;”
4 Available at http://www.wired.com/images_blogs/dangerroom/2012/07/2012-07-20-OLA-Ltrto-Senator-Wyden-ref-Declassification-Request.pdf. 5 Available at http://www.nytimes.com/2009/04/16/us/16nsa.html. 6 Available at http://www.nytimes.com/2009/06/17/us/17nsa.html.
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(2) Any written opinion or order, as described in [the three statements quoted in ¶ 12], reflecting or concerning a FISC determination that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law;” and,
(3) Any briefing provided to the Senate Select Committee on Intelligence or the House Permanent Select Committee on Intelligence concerning the FISC opinions or orders, described in items (1) and (2) above.
13. In its July 26 letters, Plaintiff also formally requested that the processing of these requests be expedited because they pertain to information about which there is “[a]n urgency to inform the public about an actual or alleged federal government activity,” and the requests were “made by a person primarily engaged in disseminating information.” 5 U.S.C. § 552(a)(6)(E)(i)(I), (v)(II); 28 C.F.R. § 16.5(d)(1)(ii). Plaintiff also requested expedited processing because the requests involve a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 5 U.S.C. § 552(a)(6)(E)(i)(II); 28 C.F.R. § 16.5(d)(1)(iv).
14. Plaintiff also requested a waiver of all fees associated with the processing and release of the requested records.
15. On information and belief, OIP received Plaintiff’s request letter, described in paragraphs 14 & 15, on July 26, 2012, and NSD received Plaintiff’s request letter on July 31, 2012.
16. By letter dated August 13, 2012, NSD acknowledged receipt of Plaintiff’s request letter.
17. Neither OIP nor NSD have yet processed and released records responsive to Plaintiff’s FOIA request. Not only has Defendant failed to expedite the processing of Plaintiff’s requests, it has also exceeded the generally applicable twenty-day deadline for the processing of any FOIA request.
18. Plaintiff has exhausted the applicable administrative remedies with respect to all of its FOIA requests referenced herein.
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19. Defendant has wrongfully withheld the requested records from Plaintiff. CAUSES OF ACTION
Violation of the Freedom of Information Act for Failure to Expedite Processing 20. Plaintiff repeats and realleges paragraphs 1-19. 21. Defendant has violated the FOIA by failing to expedite the processing of Plaintiff’s FOIA requests. 22. Plaintiff has exhausted the applicable administrative remedies with respect to Defendant’s failure to expedite the processing of Plaintiff’s requests. 23. Plaintiff is entitled to injunctive relief with respect to the expedited processing of the requested agency records. Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records 24. Plaintiff repeats and realleges paragraphs 1-19. 25. Defendant has wrongfully withheld agency records requested by Plaintiff by failing to comply with the statutory time limit for the processing of FOIA requests. 26. Plaintiff has exhausted the applicable administrative remedies with respect to Defendant’s wrongful withholding of the requested records. 27. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested documents.
REQUESTED RELIEF WHEREFORE, Plaintiff prays that this Court:
1. order Defendant and its components to process immediately the requested records in their entirety;
2. order Defendant and its components, upon completion of such expedited processing, to disclose the requested records in their entirety and make copies available to Plaintiff;
3. order Defendant and its components to waive all fees associated with the processing and release of the requested records;
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Case 1:12-cv-01441-ABJ-GMH Document 1 Filed 08/30/12 Page 7 of 7

 
 Case 1:12-cv-01441-ABJ Document 12 Filed 04/24/13 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER FOUNDATION, Plaintiff,
v. DEPARTMENT OF JUSTICE,
Defendant.

) ) ) ) ) Civ. No. 12-1441-ABJ ) ) ) ) )

PLAINTIFF’S UNOPPOSED MOTION TO STAY PROCEEDINGS

For the reasons set forth below, plaintiff Electronic Frontier Foundation (“EFF”)

respectfully moves for a stay of proceedings in this Freedom of Information Act (“FOIA”)

case. Pursuant to LCvR 7(m), counsel for plaintiff has conferred with counsel for

defendant Department of Justice (“DOJ”) concerning this motion. Counsel for defendant

has represented that DOJ does not oppose plaintiff’s motion.

Points and Authorities

EFF initiated this action on August 30, 2012, seeking the disclosure of records in

the possession of the DOJ’s National Security Division. Compl. ¶ 1 (Dkt. No. 1). In

particular, EFF’s suit seeks disclosure of opinions of the Foreign Intelligence Surveillance

Court (“FISC”) concerning unconstitutional surveillance conducted under the FISA

Amendments Act. Id. ¶ 12. On April 1, 2013, DOJ moved for summary judgment. Def.

Mem. of Pts. & Auth. ISO Mot. for Summ. J. (“Def. Mem.”) (Dkt. No. 11). In its summary

judgment motion, and for the first time, DOJ suggested that the FISC’s Rules of Procedure

prohibit the disclosure of the records at issue in this litigation. See Def. Mem. at 11-15.

EFF now seeks a stay of these proceedings in order to request, by motion of the FISC,

publication of the FISC opinion at issue here. A stay in this case is warranted to preserve

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the resources of the Court and to definitively resolve the interplay between the FISC’s procedural rules, FOIA, and the release of the FISC opinions at issue in this case.
1. EFF’s FOIA Request, Procedural Background of this Litigation, and Defendant’s Motion for Summary Judgment
In July 2012, EFF filed a FOIA request with DOJ requesting, among other records, any “written opinion or order” of the FISC in which that court held government surveillance conducted under the FISA Amendments Act “was unreasonable under the Fourth Amendment” or had “circumvented the spirit of the law.” Compl. ¶ 12. After DOJ failed to release the requested records within the statutory timeframe, EFF filed suit in August 2012. Id.
By letter dated January 3, 2013, DOJ initially informed EFF that it had located records, including a FISC opinion, responsive to EFF’s request. Def. Mem. at 8-9. The agency indicated that the records were being withheld in full under Exemptions 1 and 3 of FOIA. Id.
On April 1, 2013, DOJ moved for summary judgment. The agency again acknowledged that it was withholding a FISC opinion responsive to EFF’s request – an 86page opinion issued on October 3, 2011.1 Declaration of Mark Bradley (“Bradley Decl.”), ¶ 5 (Dkt. No. 11-3). DOJ claimed in its motion that, independent of any exemption to FOIA, the FISC’s Rules of Procedure barred the agency from disclosing any part of the responsive opinion in response to a FOIA request. Def. Mem. at 11-15.
1 A second, redacted version of the FISC Opinion, which was produced for Congress, was also determined to be responsive to EFF’s request. Bradley Decl. ¶ 5.
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2. Further Proceedings Should Be Stayed in the Interest of Judicial Economy EFF respectfully submits that the interest of judicial economy is best served by staying the proceedings. Litigating before this Court the question of what restrictions, if any, the FISC’s Rules of Procedure place on the DOJ’s dissemination of FISC opinions would be unnecessarily duplicative in light of EFF’s intent to file a motion with the FISC requesting publication of the opinion at issue in this case. The FISC is uniquely able to opine on the application of its own rules, and should clearly be afforded an opportunity to do so before this Court proceeds. This Court has consistently recognized that “[t]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Feld Entm’t, Inc. v. ASPCA, 523 F. Supp. 2d 1, 2 (D.D.C. 2007) (quoting Landis v. North American Co., 299 U.S. 248, 254 (1936)); see also Am. Postal Workers Union v. U.S. Postal Serv., 422 F. Supp. 2d 240, 248 (D.D.C. 2006); Hisler v. Gallaudet Univ., 344 F. Supp. 2d 29, 35 (D.D.C. 2004). Such forbearance is appropriate where, as here, the outcome of other proceedings may have a bearing on the disposition of the case. Hisler, 344 F. Supp. 2d at 35 (“A trial court has broad discretion to stay all proceedings in an action pending the resolution of independent proceedings elsewhere.”) (citing Landis); Painters’ Pension Trust Fund v. Manganaro Corp., 693 F. Supp. 1222, 1224 (D.D.C. 1988) (noting “stays are not infrequently granted when simultaneously pending [] proceedings might illuminate or resolve matters also confronting courts”). “Indeed, ‘[a] trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.’” Hussain v. Lewis, 848 F. Supp. 2d 1, 2 (D.D.C.
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2012) (citing Hisler). In the interest of judicial economy, the Court should stay further proceedings in this
case. EFF intends to promptly file a motion with the FISC requesting publication of the opinion currently at issue in this case. The FISC’s resolution of that motion will likely settle whether, as DOJ claims, the FISC’s own rules prohibit the agency from disclosing the FISC opinion at issue here. EFF proposes to keep this Court apprised of the proceedings in the FISC through the filing of status updates every 90 days; in addition, EFF will notify this Court within 14 days of any decision by the FISC and, after conferring with defendant, file a jointly proposed schedule for further proceedings in this case.
CONCLUSION For the foregoing reasons, plaintiff’s unopposed motion to stay proceedings should be granted. An appropriate proposed order accompanies this memorandum.
Respectfully submitted,
/s/ David L. Sobel DAVID L. SOBEL D.C. Bar No. 360418 Electronic Frontier Foundation 1875 Connecticut Avenue, N.W., Suite 650 Washington, DC 20009 (202) 797-9009 MARK RUMOLD (Admitted in California) Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 (415) 436-9333 Counsel for Plaintiff
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

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ELECTRONIC FRONTIER

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FOUNDATION

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Plaintiff,

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v.

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DEPARTMENT OF JUSTICE,

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Defendants

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____________________________________)

Civil Action No. 12-01441 (ABJ)

MEMORANDUM OPINION Pending before the Court are defendant Department of Justice’s renewed motion for summary judgment and plaintiff Electronic Frontier Foundation’s cross-motion for summary judgment. Def.’s Mem. in Supp. of Def.’s Renewed Mot. for Summ. J. (“Def.’s Mem.”) [Dkt. # 16-1]; Pl.’s Mot. for Summ. J. (“Pl.’s Mem.”) [Dkt. # 19]. The sole issue presented is whether defendant properly redacted portions of an October 2011 Foreign Sovereign Intelligence Court (“FISC”) Opinion that it produced in response to plaintiff’s Freedom of Information Act (“FOIA”), 5 U.S.C. § 522 (2012), request. Defendant argued that the information is properly redacted and withheld under FOIA Exemption 1 because it is classified or, alternatively, under FOIA Exemption 3 because four statutes prohibit disclosure of that information. Def.’s Mem. at 12–26. By the time the Court got involved in this matter, the legal opinion in question had been almost entirely released to the public. After the parties filed their renewed motions for summary judgment and again in July in response to questions posed by the Court, defendant notified the Court that it would release some of the information that had been previously withheld, thereby

reducing the remaining number of contested redactions. Because the Court finds that defendant met its burden to show that the very limited number of remaining redactions are proper under FOIA Exemption 1, the Court will grant defendant’s motion for summary judgment and deny plaintiff’s motion for summary judgment.
BACKGROUND Plaintiff Electronic Frontier Foundation is a not-for-profit corporation that works to keep the public informed about civil liberties issues relating to technology. Compl. ¶ 3 [Dkt. # 1]. On July 26, 2012, it submitted a FOIA request to defendant’s National Security Division (“NSD”), asking for documents relating to the government’s collection of foreign intelligence pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended in 2008 by the FISA Amendment Act of 2008. 50 U.S.C. § 1881a et seq. (2012). Plaintiff’s FOIA request came on the heels of the government’s decision in 2012 to declassify four statements about its section 702 activities. Def.’s Mem. at 1. Section 702 of U.S. Code title 50 provides the Attorney General of the United States and the Director of National Intelligence with the authority to “authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably
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believed to be located outside the United States to acquire foreign intelligence.”1 50 U.S.C. § 1881a(a). But before they may implement an authorization, the Attorney General and Director of National Intelligence must submit to FISC a written certification and supporting affidavit, attesting that the authorization complies with the limitations of section 1881a(b) as well as the minimization procedures, targeting procedures, and compliance guidelines that have been adopted. Id. § 1881a(g)(1)–(2)(A). If the FISC determines that the certification is lacking in any way, it can order the government to correct any deficiency identified, or it can order the government to “cease, or not begin, the implementation of the authorization for which [the]
1 This authority is not without limit. Subsection (b) provides: An acquisition authorized under subsection (a) – (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
50 U.S.C. § 1881a(b). And subsection (c) requires the Attorney General, in consultation with the Director of National Intelligence, to adopt and implement minimization procedures, targeting procedures, and compliance guidelines to ensure that the government abides by the limitations set in subsection (b). Id. § 1881a(c).
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certification was submitted.” Id. § 1881a(i)(3)(B)(i)–(ii). FISC creates a written explanation of the reasons for its determination that it issues with every order it enters.2
Plaintiff hoped to obtain those written explanations and orders dealing with section 702,
as well as reports to Congress about those documents, through its 2012 FOIA request.
Specifically, plaintiff asked for the following categories of documents:
1. Any written opinion or order, as described in the statement quoted above, in which “the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment;”
2. Any written opinion or order, as described in the statement quoted above, reflecting or concerning a FISC determination that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law;” and,
3. Any briefing provided to the Senate Select Committee on Intelligence or the House Permanent Select Committee on Intelligence concerning the FISC opinions or orders, described in items (1) and (2) above.
Def.’s Statement of Material Facts not in Genuine Dispute (“Def.’s SOF”) ¶ 1 [Dkt. # 16-4]; see
also Pl.’s Statement of Material Facts not in Dispute & Resp. to Def.’s SOF (“Pl.’s SOF”) ¶ 1
[Dkt. # 19-5].
Approximately a month after submitting its FOIA request, plaintiff filed the complaint in
this case, seeking injunctive relief that would result in the expedited processing and release of
records responsive to its request. Compl. ¶ 1. The parties devised a processing and production
schedule and, on January 3, 2013, defendant notified plaintiff that it had located five responsive
documents:
2 Section 702 was supposed to sunset at the end of 2012, but Congress extended the FISA Amendment Act of 2008 until December 31, 2017. See Pub. L. No. 112-238, 126 Stat. 1631 (2012).
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x an October 2011 FISC order; x the redacted copy of the same FISC order that was provided to Congress pursuant
to 50 U.S.C. § 1871; x a classified white paper prepared for Congress, only one paragraph of which was
responsive to plaintiff’s FOIA request; x a Joint Statement Before the Permanent Select Committee on Intelligence, U.S.
House of Representatives, one section of which was responsive to plaintiff’s request; and x a Joint Statement Before the Senate Select Committee on Intelligence, one section of which was responsive. Def.’s SOF ¶ 2; Pl.’s SOF ¶ 1. Defendant withheld the first two documents in full pursuant to FOIA Exemptions 1 and 3, and it redacted all of the responsive portions of the remaining three documents under the same exemptions. Def.’s Mem. at 1; Pl.’s Mem. at 4. Defendant then filed a motion for summary judgment, arguing that its withholdings were proper under the invoked FOIA exemptions because of the documents’ classification levels at that time. See Def.’s Mot. for Summ. J. [Dkt. # 11] (withdrawn pursuant to notice filed Sept. 5, 2013); see also Def.’s Mem. at 8; Pl.’s Mem. at 4. While the motion for summary judgment was pending, in June 2013, Edward Snowden – a former government contractor – leaked to media outlets thousands of classified documents relating to the U.S. government’s intelligence surveillance programs, triggering a firestorm of public commentary and enhanced scrutiny of our nation’s surveillance practices. In response, President Obama ordered the Director of National Intelligence to review and declassify all the information that could be disclosed without harming national security in an effort to enhance transparency and regain the public’s trust. See Def.’s SOF ¶ 3; Pl.’s SOF ¶ 2; Def.’s Mem. at 2, 9. On August 21, 2013, the government posted that newly declassified information – some of
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which was contained in the five documents that are responsive to plaintiff’s FOIA request – on the website www.dni.gov. Def.’s SOF ¶¶ 2, 4; Pl.’s SOF ¶¶ 1–2; Def.’s Mem. at 2, 9.
Faced with a sudden change in the status of some of the information that it previously withheld in processing plaintiff’s FOIA request, defendant withdrew its pending motion for summary judgment and reprocessed the five responsive documents. Def.’s Mem. at 2, 9. On the same day the government posted the newly declassified information on the internet, defendant produced to plaintiff redacted copies of the five responsive documents. It explained that any remaining redactions covered information that continued to be classified in the wake of the recent declassifications and was therefore still exempt under FOIA Exemptions 1 and 3. Def.’s SOF ¶ 4; Pl.’s SOF ¶ 1, Def.’s Mem. at 9; Pl.’s Mem. at 6; see also Def.’s SOF ¶ 7 (“As part of a recent declassification review of information concerning Section 702 intelligence collection, the government conducted a line-by-line review of the information in the October 2011 Opinion.”). Plaintiff accepted that position with respect to four of the five documents, and it notified defendant that it would challenge only the redactions in the first document, the October 2011 FISC opinion.3 Def.’s SOF ¶ 5; Pl.’s SOF ¶ 1; see also Pl.’s Mem. at 1–2; Def.’s Mem. at 10. Of the opinion’s eighty-one pages, approximately half of the pages contained less than a line of redacted text, and included in that count is twenty-five pages that contained no redactions at all. See 2011 FISC Opinion (Redacted), Ex. A to Pl.’s Mem. (“Oct. 11 FISC Op.”) [Dkt. # 19-1].
The parties subsequently filed the cross-motions for summary judgment that are now before the Court, and the sole issue raised in those motions is whether FOIA Exemption 1 and 3 justify defendant’s withholding of the redacted information in the October 2011 FISC Opinion.
3 But plaintiff does not challenge the withholdings to the extent that the information redacted is the name of individuals or companies, including communications service providers. Def.’s SOF ¶ 5; Pl.’s SOF ¶ 1.
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Plaintiff acknowledged that the withholding of the redacted information might ultimately be justified, but it took the position that the Court should not rely solely on defendant’s affidavits and should instead conduct in camera review of the document. Pl.’s Mem. at 2 (“[S]ome redactions still appear calculated not to protect legitimate national security interests, but to shield government agencies and officials from embarrassment and to prevent further public scrutiny of controversial government surveillance practices.”); see also id. at 10–15. Defendant argued that in camera review was unnecessary, and it stated that the Court could properly rely solely on the government’s affidavits to find in its favor. Def.’s Reply in Supp. of Def.’s Renewed Mot. for Summ. J. & Opp. to Pl.’s Mem. (“Def.’s Reply”) at 2–10 [Dkt. # 22] (asserting that plaintiff has not demonstrated that defendant acted in bad faith in redacting the information in the October 2011 FISC opinion).
Although it is true that the Court, “in conducting de novo review in the context of national security concerns, . . . ‘must accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record,’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007), quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984), it remains within the Court’s discretion to conduct an in camera review of the withheld material – regardless of whether there is bad faith – in order to make a responsible de novo determination on the claims of exemption. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Finding that in camera review would assist the Court in making a determination in this case, the Court ordered defendant to produce an unredacted version of the October 2011 FISC opinion for inspection. Mar. 25, 2014 Minute Order.
After it conducted its in camera review, the Court called for additional information from defendant that related to the question of whether the redactions were justified on national
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security grounds. See June 11, 2014 Minute Order. Specifically, on June 11, 2014, the Court
ordered defendant to explain why purely numerical docket information redacted on multiple
pages could not be disclosed, and it ordered the defendants to provide further information
concerning twelve specific redactions:
(1) why, in light of the unredacted paragraph that begins on page three, any reference to the number of previous acquisitions in the opinion needs to be withheld;
(2) why the material in the 10th line of the first paragraph in section I.A on page 3 is classified, taking into consideration the rest of the sentence that has already been disclosed and what is disclosed in footnote 17 on page 18;
(3) the reason why the end of footnote 9 is redacted;
(4) the reason for the redaction of the reference that is not a docket number within lines 2-4 at the top of page 16;
(5) the reason for the redactions other than docket numbers on page 23;
(6) the reason for the redaction on page 24;
(7) the reason for the redaction on page 25;
(8) the reason for the redaction in footnote 49 on page 54;
(9) the reason for the redaction in the 5th line of the first paragraph under section B;
(10) the reason for the redacted lines at the bottom of page 21 and onto page 22;
(11) the reason for the redactions, other than the docket numbers, in the first full paragraph on page 22 beginning with "Furthermore;" and
(12) the reason for the [redactions] on page 73.
June 11, 2014 Minute Order.
Defendant responded to the Court’s June 11, 2014 Order by filing an ex parte submission
that was reviewed by the Court on July 15, 2014. As part of its efforts to respond to the Court’s
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questions, defendant reviewed the FISC opinion and the redactions again, and defendant decided to lift many of the previous redactions and disclose the information that was the subject of some of the Court’s questions. Specifically, defendant withdrew its withholding of the information referred to in questions 2, 3 (with the exception of the docket number information), 4, 5, 6, 7, 8, 9, 10, and 12, as well as part of the information in question 11. Therefore, there is no need to address defendant’s previous withholding of that information.
STANDARD OF REVIEW “FOIA cases are typically and appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009) (citations omitted). Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When assessing whether the moving party is entitled to judgment as a matter of law, the Court “must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986). In a FOIA case, “the burden is on the agency to sustain its action,” and the district court must determine the matter de novo. 5 U.S.C. § 552(a)(4)(B); see also Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To satisfy its burden to show the applicability of an exemption, an agency may rely on detailed affidavits, declarations, a Vaughn index, in camera review, or a combination of these tools.” Comptel v. FCC, 910 F. Supp. 2d 100, 111 (D.D.C. 2012). The agency must be specific enough in its explanation for the court to determine “why a
9

particular exemption is relevant,” and the agency must correlate its exemption “claims with the particular part of the withheld document to which they apply.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf, 473 F.3d at 37475.
ANALYSIS Although Congress enacted FOIA in an effort “to ensure an informed citizenry,” which is “vital to the functioning of a democratic society” and “needed to check against corruption and to hold the governors accountable to the governed,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), it also recognized that “legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). Congress therefore created “nine specific exemptions under which disclosure could be refused,” despite the agency and documents otherwise being subject to FOIA. Id. To properly balance the competing interests of an informed citizenry with the need to protect governmental and private interests, the nine FOIA exemptions “must be narrowly construed,” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976), while still “hav[ing] meaningful reach and application.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). In this case, defendant invoked FOIA Exemptions 1 and 3 to justify its continued withholding of the minimal number of redactions remaining in the October 2011 FISC opinion. Def.’s Mem. at 1; Pl.’s Mem. at 4. The first FOIA exemption provides that the statute’s disclosure requirements do not apply to matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Defendant points to
10

Executive Order No. 13526, “Classified National Security Information,” to justify its redactions in the October 2011 FISC Opinion. Def.’s Mem. at 12.
Section 1.1(a) of that Executive Order provides that information may be classified if: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.
Exec. Order No. 13526, 75 Fed. Reg. 707, 707 (Dec. 29, 2009). The categories under section 1.4 of Executive Order No. 13526 include information that pertains to, among other things, “intelligence activities (including covert action), intelligence sources or methods, or cryptology” and “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security.” Id.
Plaintiff does not challenge that the first two prongs of Executive Order No. 13526 are satisfied in this case. Pl.’s Mem. at 15–23. Instead, it challenges only defendant’s position that all redacted information in the FISC opinion falls into one of the categories listed in section 1.4 of that order as well as defendant’s position that releasing that information would impact national security. Id. Moreover, plaintiff contends that at least some of that information was never properly classified under the Executive Order because section 1.7 of that order prohibits classification of information in order to “conceal violations of the law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency,” and
11

defendant’s actions in withholding information are, at least in part, motivated by a desire to avoid further embarrassment. Pl.’s Mem. at 20, quoting 75 Fed. Reg. at 710.
As noted above, the Court conducted an in camera review of the unredacted October 2011 FISC Opinion, and it reviewed defendant’s ex parte response to the targeted questions the Court propounded in its June 11, 2014 Minute Order. Based on its review of those documents, the Court finds that none of the remaining redactions appear to be for an improper purpose, such as to shield embarrassing information from the public. The overwhelming majority of the redactions are simply docket information identifying prior applications and opinions by either number or date.4 None of these redactions, nor any of the other redactions, operate to withhold material that would show any violation of law, inefficiency, or administrative error. Indeed, material in the opinion that is critical of the government’s conduct has been declassified and made public. See, e.g., Oct. 11 FISC Op. at 8, 15, 16 n.14, 28, and 45.
The Court also finds that defendant met its burden to justify continued withholding of the very limited number of remaining redactions under FOIA Exemptions 1. The information has been properly classified under Executive Order No. 13526, and giving defendant the deference it is owed on matters of national security, see Wolf, 473 F.3d at 374, the Court finds that defendant met its burden to show that “disclosure of the information reasonably could be expected to result in damage to the national security.” 75 Fed. Reg. at 707.
Specifically, the Court finds that the following redactions are proper: x the docket number information contained throughout the opinion; x references to the number of previous acquisitions described in question 2 of the June 11,
2014 Minute Order;
4 This category includes all of the redactions on pages 1–2, 6–9, 11–13, 15, 19, 28, 42, 44, 7, 70, 72, 77, and 79 of the opinion and pages 1–2 of the order. See Oct. 11 FISC Op. It also includes many of the redactions found on pages 3–5, 10, 16–18, 22–23, 30, 36, 68, 75, and 80.
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x the portion in question 11 of the June 11, 2014 Minute Order that remains redacted after defendant’s July 11, 2014 submission of its supplemental ex parte explanation in response to the Court’s June 11 Minute Order;
x the information on pages 4, 20, 26–27, 30–31, 33, 36, 43, 47–48, 57, and 80 of the FISC opinion;
x the information in footnote 16 that spans pages 17–18 of the FISC opinion: x the information at the top of page 21 of the FISC opinion; x the information in footnote 33 on page 35 of the FISC opinion; x the information in footnote 42 on page 40 of the FISC opinion; x the information in footnote 53 on page 58 of the FISC opinion; x the information in footnote 57 on page 63 of the FISC opinion; x the information in the three lines at the bottom page 68 of the FISC opinion; and x the redaction on page 3 of the FISC order. Because the limited remaining redactions are all properly withheld under FOIA Exemption 1, defendant is entitled to judgment as a matter of law, and the Court need not address the applicability of Exemption 3.
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 Case 1:12-cv-01441-ABJ Document 47 Filed 09/30/15 Page 1 of 48

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ELECTRONIC FRONTIER

)

FOUNDATION

)

)

Plaintiff,

)

)

v.

)

Civil No. 12-cv-1441 (ABJ/GMH)

)

DEPARTMENT OF JUSTICE

)

)

Defendant.

)

____________________________________)

MEMORANDUM OPINION On February 23, 2015, this case was referred to the undersigned for resolution of plaintiff’s motion for attorney’s fees and costs. Upon a thorough review of the parties’ briefs and the entire record herein,1 plaintiff’s motion will be granted in part and denied in part.

1 The documents referenced more than once in this Memorandum Opinion are as follows:
(1) Plaintiff’s Complaint (“Compl.”) [Dkt. 1]; (2) Memorandum in Support of Defendant’s Motion for Summary Judgment (“Def.’s MSJ”) [Dkt. 11-1]; (3) Statement of Material Facts (“SOMF”) [Dkt. 11-2] (4) Declaration of Mark A. Bradley (“Bradley Decl.”) [Dkt. 11-3]; (5) Declaration of Diane E. Janosek (“Janosek Decl.”) [Dkt. 11-4]; (6) Plaintiff’s Unopposed Motion to Stay Proceedings (“Mot. to Stay”) [Dkt. 12]; (7) Memorandum in Support of Defendant’s Renewed Motion for Summary Judgment (“Def.’s Ren. MSJ”) [Dkt. 16-1]; (8) Declaration of Jennifer L. Hudson (“Hudson Decl.”) [Dkt. 16-2]; (9) Declaration of Dr. David Sherman (“Sherman Decl.”) [Dkt. 16-3]; (10) Memorandum in Support of Plaintiff’s Cross Motion and Opposition to Summary Judgment (“Pl.’s MSJ”) [Dkt. 19-1]; (11) Defendant’s Fee Reply to Plaintiff’s Cross Motion and Opposition to Summary Judgment (“Def.’s MSJ Opp.”) [Dkt. 22]; (12) Plaintiff’s Response to Defendant’s Fee Reply (“Pl.’s MSJ Reply”) [Dkt. 25]; (13) Ex Parte Supplemental Hudson Declaration (“Suppl. Hudson Decl.”) [Dkt. 33]; (14) Plaintiff’s Motion for Attorney’s Fees and Costs (“Fee Mot.”) [Dkt. 38]; (15) Declaration of David L. Sobel (“Sobel Decl.”) [Dkt. 38-1]; (16) Declaration of Mark Rumold (“Rumold Decl.”) [Dkt. 38-2]; (17) Defendant’s Opposition to Plaintiff’s Motion for Attorney’s Fees and Costs (“Fee Opp.”) [Dkt. 39]; (18) Declaration of Susan L. Kim (“Kim Decl.”) [Dkt. 39-2]; (19) Plaintiff’s Fee Reply to Defendant’s Opposition to Motion for Attorney’s Fees and Costs (“Fee Reply”) [Dkt. 40];

Case 1:12-cv-01441-ABJ Document 47 Filed 09/30/15 Page 2 of 48

I.

BACKGROUND

Plaintiff Electronic Frontier Foundation (“EFF”) is a “not-for-profit corporation . . . that

works to inform policymakers and the general public about civil liberties issues related to

technology and to act as a defender of those liberties.” Compl. ¶ 3. This case stems from

plaintiff’s Freedom of Information Act (“FOIA”) request seeking information concerning the

government’s surveillance activities under Section 702 of the Foreign Intelligence Surveillance

Act of 1978 (“FISA”), 50 U.S.C. § 1881a, as amended by the FISA Amendment Act of 2008

(“FAA”). Section 702 authorizes and regulates certain governmental electronic surveillance of

communications of individuals who are not “United States persons” and are reasonably believed

to be located outside the United States, for foreign intelligence purposes. 50 U.S.C. § 1881a.

Collecting foreign intelligence under Section 702 must comport with the Fourth Amendment,

and is subject to congressional oversight as well as several types of Executive Branch review.

Id. at §§ 1881a(b)(5), (f)(2), (l).

During the summer of 2012, with the FAA scheduled to sunset at the end of the year

unless re-authorized by Congress, Senator Ron Wyden, a member of the Senate Select

Committee on Intelligence, sought the public release of information concerning the

government’s Section 702 collection under the FAA. Pl.’s MSJ at 3. In response to Senator

Wyden’s request, on June 20, 2012, the government declassified four statements concerning its

Section 702 surveillance activities. Id. Through these disclosures, the public learned for the first

time that “the government’s implementation of Section 702 of [FISA] ha[d] sometimes

(20) Supplemental Declaration of David Sobel (“Suppl. Sobel Decl.”) [Dkt. 41-4]; (21) Supplemental Declaration of Mark Rumold (“Suppl. Rumold Decl.”) [Dkt 41-5]; (22) Plaintiff’s Supplemental Brief in Support of its Motion for Attorney’s Fees (“Suppl. Fee Br.”) [Dkt. 42]; (23) Defendant’s Response to Plaintiff’s Supplemental Brief (“Suppl. Fee Opp.”) [Dkt. 45]; (24) Plaintiff’s Supplemental Fee Reply Brief in Support of its Motion for Attorney’s Fees (“Suppl. Fee Reply”) [Dkt. 46].

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Case 1:12-cv-01441-ABJ Document 47 Filed 09/30/15 Page 3 of 48
circumvented the spirit of the law,” and that “on at least one occasion, the Foreign Intelligence
Surveillance Court (“FISC”)2 held that some collection carried out pursuant to the Section 702
minimization procedures3 used by the government was unreasonable under the Fourth
Amendment.” Compl. ¶ 10 (quoting Letter from Kathleen Turner, Director of Legislative
Affairs, Office of the Director of National Intelligence, to Senator Ron Wyden (July 20, 2012)).4
Understanding the importance of the disclosures to the ongoing public debate concerning
the reauthorization of the FAA, on July 26, 2012, EFF submitted a FOIA request to the National
Security Division of the Department of Justice (“DOJ”) requesting additional information
concerning the subject matter of Senator Wyden’s disclosures. See Compl. ¶ 12; Fee Mot. at 2.
Specifically, plaintiff sought the release of:
(1) Any written opinion or order . . . in which “the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment”;
(2) Any written opinion or order . . . reflecting or concerning a FISC determination that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law”; and
2 The FISC is a specialized court with jurisdiction to “hear applications for and grant orders approving electronic surveillance . . . under the procedures set forth in [FISA].” 50 U.S.C. § 1801 et seq. The Attorney General and the Office of the Director of National Intelligence (“ODNI”) provide to the FISC a written certification and any supporting affidavits attesting that all minimization and targeting procedures are in place and that the adopted guidelines are “consistent with the requirements of the Fourth Amendment.” Id. §§ 1881a(g)(1)(A), (g)(2)(A)(iv). If the FISC finds that a certification “contains all the required elements,” and that the targeting and minimization procedures . . . are consistent” with the statutory requirements and the Fourth Amendment, the FISC will enter an order approving the certification and the acquisition. Id. § 1881a(i)(2)(A). Otherwise, the FISC will order the government to correct any identified deficiency, or it will order the government to “cease . . . the implementation of the authorization for which [the] certification was submitted.” Id. § 1881a(i)(3)(B)(i)–(ii). 3 Section 702 minimization procedures are specific procedures, adopted by the Attorney General, that are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information[.]” 50 U.S.C. § 1801(h)(1). 4 Available at http://www.wired.com/images_blogs/dangerroom/2012/07/2012-07-20-OLA-Ltr-to-Senator-Wydenref-Declassification-Request.pdf.
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(3) Any briefing provided to the Senate Select Committee on Intelligence or the House Permanent Select Commission on Intelligence concerning FISC opinions or orders described in items (1) and (2) above. Compl. ¶ 12. EFF formally requested expedited processing of its request. Id. ¶ 13 (citing 5 U.S.C. § 552(a)(6)(E)(i)(I)–(II)). After exhausting all applicable administrative remedies without receiving any responsive documents, EFF filed a FOIA complaint in this Court seeking injunctive relief. See Compl. ¶ 18. On December 6, 2012, this Court ordered DOJ to file a report no later than January 4, 2013, addressing “the status of the production” of documents responsive to EFF’s FOIA request. See Dec. 6, 2012, Minute Order. On January 3, 2013 – four days after the FAA was reauthorized – DOJ notified EFF that it had identified five responsive documents:  an October 2011 FISC opinion;  a redacted copy of this same opinion that was provided to Congress pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1871;  one paragraph of a classified White Paper prepared for Congress;  one section of a Joint Statement Before the Permanent Select Committee on Intelligence, U.S. House of Representatives; and  one section of a Joint Statement Before the Senate Select Committee on Intelligence. Def.’s MSJ at 8–9; Fee Mot. at 2–3. It is only the October 2011 FISC opinion and the redacted version of the same (hereinafter, collectively referred to as the “2011 FISC Opinion” or the “Opinion”) that is relevant to EFF’s motion for an award of attorney’s fees because EFF withdrew its challenge to the government’s withholdings in the other three documents. See Pl.’s MSJ at 2 (“[T]he only document remaining at issue in this case [is] an opinion of the . . . FISC issued in October 2011. . . .”); Ren. Def.’s MSJ at 10 (“By email dated August 27, 2013, EFF
4

Case 1:12-cv-01441-ABJ Document 47 Filed 09/30/15 Page 5 of 48
advised the Department that the only withholdings still in contention are those in the October 2011 FISC opinion . . . .”).
In this litigation, DOJ withheld the 2011 FISC Opinion in full pursuant to FISC Rule of Procedure 62.5 Def.’s MSJ at 11–14. It further asserted that FISC Rule 62 released the government of its obligation to produce any reasonably segregated, non-exempt information from the Opinion. Id. at 26. According to DOJ, “[u]nlike in the typical FOIA case, the Department does not have the discretion to produce [the 2011 FISC Opinion] to Plaintiff” because “[p]ursuant to the FISC Rules of Procedure, such court records cannot be published” other than by order of the FISC. Id.; see also SOMF ¶ 16 (“[The 2011 FISC Opinion] could not be segregated and released by the Department because of the FISC-imposed restriction on [its] public release.”); Bradley Decl. ¶ 11 (“For [the FISC 2011 Opinion], I determined that no portion . . . could be properly segregated and released due to the FISC’s rule pertaining to the release of its orders.”).
5 FISC Rule of Procedure 62 provides, in relevant part: Rule 62. Release of Court Records. (a) Publication of Opinions. The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published. Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published. Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected pursuant to Executive Order 13526 (or its successor). (b) Other Records. Except when an order, opinion, or other decision is published or provided to a party upon issuance, the Clerk may not release it, or other related record, without a Court order. . .
F.I.S.C. R. Pr. 62.
5

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The government also withheld the 2011 FISC Opinion pursuant to FOIA Exemptions 16 and 3.7 Def.’s MSJ at 9. Under Exemption 1, DOJ withheld information in the Opinion “describing highly sensitive intelligence activities, sources and methods” concerning “the manner and means by which the United States Government targets non-United States persons located overseas to acquire foreign intelligence information under Section 702.” Bradley Decl. ¶¶ 8–9. The National Security Agency (“NSA”) withheld information “pertain[ing] to the operational details of NSA’s collection activities under Section 702.” Sherman Decl. ¶¶ 20–23. As for FOIA Exemption 3, the government withheld from the Opinion information concerning intelligence sources and methods, communication intelligence activities, and information concerning NSA activities pursuant to: Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024; Section 6 of the National Security Act of 1959, 50 U.S.C. § 3605; and/or 18 U.S.C. § 798. Bradley Decl. ¶ 10; Sherman Decl. ¶¶ 13, 24–31.
In response to DOJ’s assertion that FISC Rule 62 made any disclosure from the 2011 FISC Opinion impossible absent an order of the FISC, on April 24, 2013, EFF sought a stay of this case to permit it to adjudicate that issue before the FISC. See Mot. to Stay at 1–2. With DOJ’s consent, this Court promptly granted the stay so as to permit EFF to litigate the issue in front of the FISC. Apr. 24, 2013, Minute Order.
On May 23, 2013, plaintiff filed a motion with the FISC requesting the court’s consent to the disclosure of the 2011 FISC Opinion, or, alternatively, its determination that FISC Rule 62
6 Exemption 1 excludes from disclosure records that are: “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]” 5 U.S.C. § 552(b)(1). 7 Exemption 3 excludes from disclosure records that are “exempted from disclosure by statute . . . if that statute: (A)(i) [r]equires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (A)(ii) [e]stablishes particular criteria for withholding or refers to particular types of matters to be withheld. . . .” 5 U.S.C. § 552(b)(3).
6

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did not prohibit disclosure of the Opinion by this Court pursuant to FOIA. In re Motion for Consent to Disclosure of Court Records, No. Misc. 13-01, 2013 WL 5460051, at *4 (F.I.S.C. 2013). DOJ opposed the motion, arguing that the FISC lacked jurisdiction to adjudicate EFF’s request, or, in the alternative, that there was “good reason not to vacate the seal on the opinion” that, in the government’s view, FISC Rule 62 created. Gov.’s Opp. Br. at 2, 5, In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051 (F.I.S.C. 2013). The FISC swiftly resolved the matter, holding that FISC Rule 62 neither placed the 2011 FISC Opinion under seal nor “prohibited the Government from disclosing copies of the [Opinion] sought by EFF.” In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051, at *4 (F.I.S.C. 2013). The FISC further held that a decision concerning the Opinion’s disclosure was “appropriately addressed by the District Court in the FOIA litigation.” Id. In light of the FISC’s ruling, DOJ notified the Court on August 9, 2013, that it was “withdrawing its jurisdictional argument” based on FISC Rule 62. Aug. 9, 2013, Status Report [Dkt. 15] at 2 n.1.
On June 6, 2013, six days prior to the FISC’s order, the Guardian and Washington Post published classified details of the government’s domestic surveillance programs that were leaked by a former NSA contractor, Edward Snowden.8 In response to “a firestorm of public commentary and enhanced scrutiny of our nation’s surveillance practices,” on June 20, 2013, President Obama ordered the Office of the Director of National Intelligence (“ODNI”) to review and declassify all information that could immediately be disclosed to the public, and to engage in a “large-scale, multi-agency review process led by ODNI to determine what further information .
8 See, e.g., Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, The Guardian, (June 6, 2013, 6:05 AM), http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order; Barton Gellman & Laura Poitras, U.S., British intelligence mining data from nine U.S. Internet companies in broad secret program, Wash. Post (June 7, 2013), http://www.washingtonpost.com/investigations/us-intelligence-miningdata-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845d970ccb04497_story.html.
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. . could be declassified and released.” Elec. Frontier Found. v. Dep’t of Justice, 57 F. Supp. 3d 54, 57 (D.D.C. 2014) (“EFF v. DOJ”); Hudson Decl. ¶¶ 17–19.
Soon thereafter, DOJ requested an extension of the Court’s April 24, 2013, stay (originally granted to permit EFF to seek relief from the FISC) until September 3, 2013, to allow the agency to “assess the impact of the government’s recent declassification of information concerning intelligence collection.” July 1, 2013, Jt. Status Report [Dkt. 14] at 9. EFF opposed any further delay and urged the Court to lift the stay. See id. at 3–9. Siding with EFF, this Court lifted the stay on July 9, 2013, and ordered that “by August 12, 2013, defendant must assess its position and make any additional disclosures it intends to make.” July 9, 2013, Minute Order. On August 9, 2013, DOJ filed an unopposed motion for an extension of time, which the Court subsequently granted and ordered that “defendant . . . produce further information to plaintiff by August 21, 2013.” Aug. 9, 2013, Minute Order.
On August 21, 2013, DOJ produced a redacted version of the 2011 FISC Opinion that disclosed over 87 percent of its contents (the “August 21, 2013 Disclosure”). Kim Decl. ¶ 9; Hudson Decl. ¶ 12. That same day, ODNI simultaneously authorized the declassification and publication of certain previously classified documents – including an identical copy of the redacted 2011 FISC Opinion provided to EFF. See Hudson Decl. ¶ 21. The following week, EFF notified DOJ that the only withholding still in contention was the remaining redacted information in the 2011 FISC Opinion. Ren. Def.’s MSJ at 9–10.
DOJ subsequently filed a renewed motion for summary judgment on September 4, 2013.9 In its renewed motion, DOJ argued that the remaining redactions in the 2011 FISC Opinion were properly classified and, therefore, protected from disclosure under FOIA Exemptions 1 and 3.
9 At the same time, DOJ withdrew its original motion for summary judgment that it had filed on April 1, 2013. See Government’s Notice of Withdrawal [Dkt. 17].
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See id. at 12–27. In its opposition to DOJ’s motion, EFF asked the Court to reject the presumption of good faith normally afforded to government declarations, order production of the 2011 FISC Opinion for in camera review, and instruct DOJ to immediately release any improperly withheld information. See Pl.’s MSJ at 13–23. In its November 7, 2013 opposition to EFF’s motion for summary judgment, DOJ asked the Court to reject EFF’s request for in camera review. Def.’s MSJ Opp. at 17–18.
Agreeing with EFF that in camera review would assist the Court in making “a responsible de novo determination,” this Court ordered DOJ to deliver the unredacted 2011 FISC Opinion to the Court for inspection. See Mar. 25, 2014, Minute Order. On June 11, 2014, following in camera review, the Court ordered DOJ to explain why twelve redactions in the Opinion were justifiable on national security grounds. See June 11, 2014, Minute Order.
In response to the Court’s Order, on July 11, 2014, DOJ filed an ex parte submission with the Court conceding that certain “inadvertently overlooked” information should not remain redacted in the Opinion and providing explanations for the remaining redactions. See Suppl. Hudson Decl. ¶¶ 7–17. Further, DOJ withdrew its withholding of the information referred to “in questions 2, 3 . . . , 4, 5, 6, 7, 8, 9, 10, and 12 [of this Court’s June 11, 2014, Minute Order] as well as part of the information in question 11” (the “July 11, 2014 Disclosure”). EFF v. DOJ, 57 F. Supp. 3d at 59; see generally Suppl. Hudson Decl. Following those disclosures, this Court granted the government’s renewed motion for summary judgment, denied the plaintiff’s cross motion for summary judgment, and upheld, pursuant to FOIA Exemption 1, the government’s remaining redactions in the 2011 FISC Opinion. EFF v. DOJ, 57 F. Supp. 3d at 62.
On November 7, 2014, EFF filed its motion for attorney’s fees and costs that is now before the Court. DOJ opposes EFF’s motion, contending that plaintiff should not be awarded
9

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attorney’s fees because the government’s disclosure of the 2011 FISC Opinion was not caused

by EFF’s litigation efforts, but by Edward Snowden’s unauthorized leaks and the ODNI’s

subsequent declassification initiative. Fee Opp. at 2. In the alternative, DOJ argues that even if

EFF were eligible and entitled to attorney’s fees and costs, the amount of fees EFF seeks is

excessive. Id. at 17. EFF’s fee request is now ripe for disposition.

II.

LEGAL STANDARDS

FOIA provides that a federal 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). An award of attorney’s

fees is thus discretionary and “not designed as a ‘reward for any litigant who successfully forces

the government to disclose information it wanted to withhold.’” Citizens for Responsibility &

Ethics in Washington v. Dep’t of Justice, 83 F. Supp. 3d 297, 302 (D.D.C. 2015) (“CREW”)

(emphasis in original) (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711

(D.C. Cir. 1977)). Rather, an award of fees and costs should advance the “more limited purpose

of removing the incentive for administrative resistance to disclosure requests based, not on the

merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the

financial resources or economic incentives to pursue their requests through expensive litigation.”

Id.

To obtain attorney’s fees under FOIA, the plaintiff must demonstrate both eligibility and

entitlement to the award. Dorsen v. SEC, 15 F. Supp. 3d 112, 116 (D.D.C. 2014) (citing

McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014)); see also Weisberg v.

Dep’t of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984) (“[E]ligibility alone is not enough. . . .

[T]he complainant must [also] show he or she is ‘entitled’ to an award.”). A FOIA plaintiff is

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eligible to receive reasonable attorney’s fees and costs if it has “substantially prevailed” in the matter before the court. 5 U.S.C. § 552(a)(4)(E). Under the current statutory regime, a FOIA plaintiff has “substantially prevailed” if it obtains relief through either “(1) a judicial order, or an enforceable written agreement or consent decree,” that changes the legal relationship between the parties; or (2) through the catalyst theory,10 i.e., “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” Id.; see also Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 525 (D.C. Cir. 2011).
Once the court finds that a FOIA requester has “substantially prevailed” and is therefore eligible to receive attorney’s fees, the court “proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees.” Brayton, 641 F.3d at 524 (emphasis in original). Under the entitlement prong, the D.C. Circuit has long applied a non-exclusive, four-factor test, which 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.” McKinley, 739 F.3d at 711 (quoting Tax Analysts v. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)). Evaluation of these criteria is based solely on the district court’s discretion, and no single factor is dispositive. See
10 For years, the “catalyst theory” was used by this Circuit to determine an attorney’s eligibility for fees in FOIA cases. See, e.g., Burka v. Health & Human Serv., 142 F.3d 1286, 1288 (D.C. Cir. 1998); Church of Scientology of Calif. v. Harris, 653 F.2d 584, 588 (D.C. Cir. 1981). In 2001, the Supreme Court reversed course, holding that “the ‘catalyst theory’ is not a permissible basis for the award of attorney’s fees.” Buckhannon, 532 U.S. at 610. Following Buckhannon, on December 31, 2007, Congress passed the OPEN Government Act of 2007, Pub. L. No. 110-175, § 4(a), 121 Stat. 2524, in part to reinstate the “catalyst theory” as a viable option for obtaining attorney’s fees under FOIA. See 5 U.S.C. § 552(a)(4)(E)(ii) (a plaintiff has “substantially prevailed if [he or she] has obtained relief through . . . a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial”); see also Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 525 (D.C. Cir. 2011) (“The purpose and effect of this law, which remains in effect today, was to change the ‘eligibility’ prong back to its pre-Buckhannon form. The result is that plaintiffs can now qualify as ‘substantially prevailing,’ and thus become eligible for attorney fees without winning court-ordered relief on the merits of their FOIA claims.”). Thus, since December 31, 2007, the “catalyst theory” is a viable basis on which to seek attorney’s fees in FOIA cases.
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Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C. Cir. 2008); Tax Analysts, 965 F.2d at 1094;

Judicial Watch, Inc. v. Dep’t of Justice, 878 F. Supp. 2d 225, 234 (D.D.C. 2012).

Finally, if the court finds that a party is both eligible and entitled to fees, the court must

calculate the correct fee award. To do so, the court first establishes the “lodestar” amount – i.e.,

“the number of hours reasonably expended multiplied by a reasonable hourly rate.” Nat’l Ass’n

of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1323 (D.C. Cir. 1982); see also Bd. Of

Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998).

Thereafter, “the lodestar may be adjusted to reflect various other factors,” Concerned Veterans,

675 F.2d at 1323, which are committed to the court’s discretion. Elec. Privacy Info. Ctr. v. Dep’t

of Homeland Sec., 999 F. Supp. 2d 61, 67–68 (D.D.C. 2013) (“EPIC”).

III.

ANALYSIS

As demonstrated below, the undersigned finds that EFF has substantially prevailed in its

pursuit of this litigation and is entitled to an award of its counsel’s reasonable fees and costs.

The Court finds, however, that EFF’s fee demand of $74,763 is unreasonable. For the reasons

explained below, the Court will instead order an award of $49,124.50 in attorney’s fees and

$350.00 in costs, for a total amount of $49,474.50

A. EFF is Eligible for Attorney’s Fees

The Court turns first to the threshold eligibility requirement for an award of fees. DOJ

contends that EFF did not substantially prevail in this matter because the disclosures were not

caused by EFF’s litigation, but instead by ODNI’s declassification initiative following the

Snowden leaks. Fee Opp. at 11. EFF disagrees and asserts that it substantially prevailed for two

separate, but related, reasons: (1) that it obtained relief through various judicial orders issued by

this Court and the FISC; and (2) that it prevailed under the “catalyst theory” because its efforts

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were necessary to the release of the redacted 2011 FISC Opinion and were the necessary and sufficient cause of the disclosure of all reasonably segregable, non-exempt information from that Opinion. Fee Mot. 6–8; Fee Reply at 9–12. As detailed below, for the most part, this Court sides with EFF.
1. EFF obtained relief through the July 9, 2013, and August 9, 2013, judicial orders
A plaintiff may be considered a prevailing party after “receiv[ing] a judgment on the merits.” Buckhannon, 532 U.S. at 605; see also 5 U.S.C. § 552(a)(4)(E)(iii)(I) (defining “substantially prevailed” as having “obtained relief through . . . a judicial order, or an enforceable written agreement or consent decree”). Indeed, despite Congress’ revitalization of the “catalyst theory” in the FOIA context, obtaining relief on the merits through a “judicial order” remains the primary means by which FOIA requesters become eligible for an award of fees. See, e.g., Judicial Watch, Inc. v. Dep’t of Justice, 774 F. Supp. 2d 225, 228–29 (D.D.C. 2011).
Importantly, a judicial order that requires the production of responsive records, if any, by a certain date constitutes judicial relief that renders the FOIA plaintiff a “substantially prevailing” party. See id. “Once an order has been adopted by the court, requiring the agency to release documents, the legal relationship between the parties changes,” and the plaintiff therefore becomes a “substantially prevailing party,” eligible for attorney’s fees. Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 197 (D.C. Cir. 2007) (“CRT v. FDA”) (emphasis in original).
Here, EFF argues that “[i]t is beyond dispute that [it] obtained relief through a judicial order.” Fee Mot. at 8. To assess that contention, the Court will analyze the following orders in
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this case to determine whether any provided plaintiff with judicial relief on the merits: the June 12, 2013 FISC Order, and this Court’s July 9, 2013, and August 9, 2013, Orders.
a. June 12, 2013 FISC Order On June 12, 2013, the FISC ruled that FISC Rule 62 does not preclude DOJ’s release of FISC records, including the 2011 FISC Opinion, pursuant to a FOIA request. See In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051, at *4 (F.I.S.C. 2013). EFF now claims that ruling qualifies as a “judicial order” entitling it to an award of attorney’s fees. Fee Mot. at 8. The Court disagrees. To qualify as a “judicial order” eligible for an award of fees in the FOIA context, the court order must provide more than interim relief or relief antecedent to the dispute on the production of responsive records. See Mobley v. Dep’t of Homeland Sec., 908 F. Supp. 2d 42, 47–48 (D.D.C. 2012). Rather, the court order must impose an obligation on the government to provide the relief plaintiff seeks in the FOIA litigation, i.e., responsive records, should any exist, by a date certain. See Davy v. CIA, 456 F.3d 162, 165 (D.C. Cir. 2006) (“Davy I”). Anything short of that will not suffice. The June 12, 2013, FISC Order is not such a “judicial order” because it did not direct the production of any of the documents EFF was seeking in this litigation.11 Though plaintiff’s motion to the FISC sought, in part, the FISC’s consent to the disclosure of the 2011 FISC Opinion, the FISC’s decision only explained why the government’s interpretation of FISC Rule 62 was incorrect. See In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051, at *1, *4. It expressed “no opinion on . . . whether the [2011 FISC] Opinion [was]
11 The Court does find, however, that EFF’s victory before the FISC provides a basis for an award of relief under the “catalyst theory,” as discussed infra in Section III.A.2. See Mobley, 908 F. Supp. 2d at 47–48 (finding that such interim relief renders the plaintiff “substantially prevailing,” not pursuant to a judicial order, but pursuant to the more lenient catalyst theory).
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ultimately subject to disclosure under FOIA.” Id. The FISC held, rather, that “[s]uch questions [were] appropriately addressed by the District Court in the FOIA litigation.” Id. Thus, while the FISC’s ruling removed any impediment that its rules would have otherwise posed to the release of the 2011 FISC Opinion, or any segregable portion thereof, it did not go so far as to order the production of any part of the 2011 FISC Opinion. Accordingly, because the FISC did not order any relief that EFF was seeking on the merits, that opinion does not constitute a “judicial order” eligible for an award of attorney’s fees. See Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452, 452 (D.C. Cir. 2002) (“OCAW”).
b. July 9, 2013, and August 9, 2013, Minute Orders In the immediate aftermath of the Snowden unauthorized disclosures, the parties filed a status report with the Court stating their views on how the litigation should proceed. EFF requested that the Court immediately lift the stay that had been granted to permit it to obtain relief from the FISC and allow the case to proceed. July 1, 2013, Status Report [Dkt. 14] at 3. DOJ, on the other hand, requested that the stay continue until September 3, 2013, to provide the government with more time to “assess the impact of the . . . recent declassification of information . . . on . . . the underlying withholdings in this case.” Id. at 9. Upon considering the parties’ status report, the Court issued the following order on July 9, 2013:
[I]t is ORDERED that the stay on this action is lifted. It is FURTHER ORDERED that by August 12, 2013, defendant must assess its position and make any additional disclosures it intends to make in light of the developments described in the July 1 status report. It is FURTHER ORDERED that defendant shall file a notice with the Court on August 12, 2013, indicating whether any other materials were provided to the plaintiff in whole or in part. . . . July 9, 2013, Minute Order.
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On August 9, 2013, DOJ filed an unopposed motion for a nine-day extension to produce information responsive to plaintiff’s FOIA request. The Court subsequently issued an order on August 9, 2013, granting DOJ’s request for an extension of time, and providing that “defendant shall produce further information to plaintiff by August 21, 2013.” Aug. 9, 2013, Minute Order (emphasis added). On August 21, 2013, DOJ turned over 87.2% of the 2011 FISC Opinion to EFF as directed by the Court. Kim Decl. ¶ 9.
DOJ contends that the 2011 FISC Opinion was released as a part of the “large scale, multi-agency review process” caused by the Snowden unauthorized disclosures and that “but for” those disclosures, the government “would have defended its original withholding [of the 2011 FISC Opinion] in full pursuant to [FOIA Exemptions 1 and 3].” Fee Opp. at 2. The question with respect to whether an order qualifies as a “judicial order” for purposes of an award of fees under FOIA, however, is whether the order imposes an obligation on the government to provide the plaintiff with responsive records. The reason for the government’s decision to release the records is irrelevant. See Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, 820 F. Supp. 2d 39, 44 (D.D.C. 2011) (“No matter who made the proposal ultimately adopted, the order changed the legal relationship between the parties, requiring Defendants to produce documents by [a certain date], or face sanctions[,] and providing Plaintiff with the relief it sought – the documents responsive to its requests.”). Because the July 9, 2013, and August 9, 2013, Orders required DOJ to disclose non-exempt and/or reasonably segregable information, if any, from the materials responsive to EFF’s FOIA request, they were “judicial orders” providing EFF with relief on the merits that altered the legal relationship between the parties and thereby rendered EFF a “substantially prevailing” party. See Judicial Watch, 774 F. Supp. 2d at 228–29.
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Two cases before the D.C. Circuit – OCAW and Davy I – illustrate this point. In OCAW, the plaintiff filed a FOIA action against the U.S. Department of Energy (“DOE”), seeking certain records. 288 F.3d at 453. The district court ordered DOE to “complete its record review in 60 days.” Id. at 458. DOE thereafter provided the plaintiff with responsive documents and the parties stipulated to dismissal of the suit. Id. at 453. The plaintiff’s attorney subsequently sought attorney’s fees, arguing that the plaintiff had “substantially prevailed.” Id. at 453–54. The Court of Appeals disagreed, holding that the order requiring the agency to search its records did not constitute court-ordered relief on the merits because it merely directed DOE to conduct a search, and nothing more; the judicial order did not require DOE to also produce any responsive documents on a date certain pursuant to its search. Id. at 458. The Court stated, “[b]efore August 23 [the date of the district court’s order at issue], the court had not ordered the [DOE] to turn over any documents; after August 23, the [DOE] still had no obligation to do so.” Id.
In Davy I, on the other hand, the parties entered into a joint stipulation establishing dates by which the Central Intelligence Agency (“CIA”) would produce responsive documents to the plaintiff’s FOIA request. 456 F.3d at 163–64. The district court memorialized the joint stipulation in a judicial order which stated that the “CIA will provide Plaintiff all responsive documents, if any” by certain dates. Id. at 164 (emphasis added). In distinguishing the language of the Davy I judicial order from that of the judicial order in OCAW, the Court of Appeals explained:
Here, before May 4, 2001 [the date of the order at issue], the CIA was not under any judicial direction to produce documents by specific dates; the May 4, 2001 order changed that by requiring the Agency to produce all “responsive documents” by the specified dates . . . . [T]he May 4, 2001 order was a “judicially sanctioned change in the legal relationship of the parties” because . . . [o]nce
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the district court issued the order, Davy obtained an “enforceable judgment” on the merits of his complaint. If the Agency failed to comply with the order, it faced the sanction of contempt. Id. at 166 (citations omitted). Here, the Court’s July 9 and August 9, 2013, judicial orders are indistinguishable from the judicial order in Davy I. Both orders required that the government review materials responsive to EFF’s FOIA request and disclose any non-exempt and/or reasonably segregable material, if any,12 by a date certain – ultimately, August 21, 2013. Prior to these orders, DOJ was under no judicial direction to produce any responsive documents to plaintiff by a certain date. Because these orders provided EFF with judicial relief on the merits and altered its legal relationship with the government, they rendered EFF a “substantially prevailing” party for purposes of an award of attorney’s fees under FOIA. See Davy I, 456 F.3d at 165; see also Judicial Watch, 522 F.3d at 369 (“As we have held time and time again, orders like these [requiring the government to turn over responsive documents, should they exist, by a date certain], even when voluntarily agreed to by the government, are sufficient to make plaintiffs eligible for attorneys’ fees under FOIA.”). 2. EFF caused “a voluntary or unilateral change in position by the agency” EFF also qualifies as a “prevailing party” under the “catalyst theory.” The gravamen of the inquiry under that theory is causation. The FOIA requester must establish “that prosecution of the action could reasonably be regarded as necessary to obtain the information, and that a causal nexus exists between that action and the agency’s surrender of the information.” Church
12 Notably, like the Court’s orders in this matter, the order found sufficient to qualify as a “judicial order” for purposes of an award of fees in Davy I did not go so far as to require that any documents be produced; rather, it only required that, if the government located responsive, non-exempt documents, it turn over these documents, or portions thereof, on a date certain. Davy I, 456 F.3d at 164.
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of Scientology, 653 F.2d at 588 (emphasis added) (internal quotation omitted). While the “mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation,” it is nonetheless a salient factor in the analysis. Weisberg, 745 F.2d at 1496; Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 232 (“EPIC”); accord Pub. Law. Educ. Inst. v. Dep’t of Justice, 744 F.2d 181, 184 n.5 (D.C. Cir. 1984). Ultimately, whether a party has made a sufficient showing of causation “is a factual determination that is within the province of the district court to resolve.” Church of Scientology, 653 F.2d at 588 (internal quotation omitted).
As discussed further below, the record demonstrates here that EFF’s efforts in this matter were a necessary cause of DOJ’s disclosures on August 21, 2013, and July 11, 2014.
a. August 21, 2013 Disclosure On August 21, 2013, the government disclosed a redacted version of the 2011 FISC Opinion, which was the principal document sought in EFF’s FOIA request. A necessary cause of that disclosure was EFF’s successful challenge of the government’s assertion that FISC Rule 62 barred the Opinion’s disclosure. According to DOJ, the Opinion could only be publicly released “upon the order of the FISC” pursuant to FISC Rule 62. Def.’s MSJ at 6. In DOJ’s view, it had “no discretion in regard to [the] publication” of the Opinion because FISC Rule 62 “prohibit[ed] [its] public disclosure.” Id. at 2. Further, the government was unwilling to make any effort on its own to seek the release of the Opinion from the FISC. According to DOJ, it was “not obligated under FOIA to commence proceedings in the FISC to request the publication of orders responsive to FOIA requests.” Id. at 15 n.3.
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Because DOJ would not, EFF sought a stay in this case, filed a motion in the FISC in aid of its complaint in this matter, and defeated the government’s FISC Rule 62 argument.13 See In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051, 2013 WL 5460051, at *4 (F.I.S.C. 2013). In so doing, EFF eliminated the primary basis the government initially asserted for withholding the 2011 FISC Opinion in full. See Def.’s MSJ at 2, 11–15. Eight days after the FISC’s June 12, 2013, decision, the President ordered ODNI to engage in a “large-scale, multi-agency review process” to determine what further information could be declassified and released following the Snowden unauthorized disclosures, which began on June 6, 2013. EFF v. DOJ, 57 F. Supp. 3d at 57; Hudson Decl. ¶¶ 17–19. On August 21, 2013, the government disclosed the key document that EFF sought in its FOIA request – a redacted version of the 2011 FISC Opinion disclosing over 87% of its contents. Kim Decl. ¶ 9; Hudson Decl. ¶ 12.
DOJ argues that EFF’s successful efforts before the FISC should not be considered the cause of that release because the government asserted additional bases for withholding the Opinion – i.e., FOIA Exemptions 1 and 3. But that argument misses the point. While it is true that, in addition to FISC Rule 62, DOJ justified its withholding of the 2011 FISC Opinion based on those exemptions, the government exercised its discretion to waive both exemptions and declassify significant portions of the Opinion following the Snowden unauthorized disclosures. Kim Decl. ¶ 8; Hudson Decl. ¶ 12. On those facts, EFF’s elimination of FISC Rule 62 as a bar to the Opinion’s disclosure – which the government claimed it had no discretion to waive and no desire to challenge – was just as much a necessary cause of the Opinion’s disclosure as was the
13 For its part, the government opposed EFF’s motion before the FISC, arguing that the FISC did not have jurisdiction to adjudicate plaintiff’s request and that the 2011 FISC Opinion should remain “sealed” pursuant to FISC Rule 62. Gov.’s Opp. Br. at 4, In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051 (F.I.S.C. 2013).
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government’s decision to declassify portions of the Opinion following the Snowden leaks.14 Stated another way, had both not occurred, the Opinion would not have been disclosed.15 Because of EFF’s efforts, both did occur and EFF received a significantly less redacted version of the Opinion on August 21, 2013. The “catalyst theory” requires nothing more. See Church of Scientology, 653 F.2d at 588.
Further, FOIA requires that “[a]ny reasonably segregable portion of a record be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). The government asserted FISC Rule 62 as the basis for its inability to reasonably segregate non-exempt information from the FISC Opinion prior to the Snowden disclosures. See Def.’s MSJ at 26 (“Unlike in the typical FOIA case, the Department does not have the discretion to produce any of the responsive FISC orders to Plaintiff. . . . Thus, [the 2011 FISC Opinion] cannot be reasonably segregated, and [its] withholding in full should be upheld.”); SOMF ¶ 16 (“[The 2011 FISC Opinion] could not be segregated and released by the Department because of the FISC-imposed restrictions on their public release.”); Bradley Decl. ¶ 11 (“For the [2011 FISC Opinion] I determined that no portion of [it] could be properly segregated and released due to the FISC’s rules pertaining to the release of its orders.”). EFF’s elimination of the FISC Rule 62 argument effectively caused the government’s release of all reasonably segregable, nonexempt information from the Opinion. Because of the government’s declassification of
14 Indeed, in its opposition to EFF’s FISC Rule 62 challenge before the FISC, the government presaged the significant role that EFF’s victory would have in the release of the Opinion: “[i]f this Court grants [EFF] the relief sought, the consequence would be that the Government could release the opinion or any portion of it in its discretion . . . .” Gov.’s Opp. Br. at 7, In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051 (F.I.S.C. 2013). 15 While one could hypothesize that had EFF not sought relief in the FISC, the government may have sought such relief itself – and presumably the FISC would have granted that relief – that is not what actually happened. Such hypotheticals cannot erase what EFF in fact did to bring about the release of the Opinion.
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information concerning its 702 coverage at Senator Wyden’s request, the government would have been obligated to release some information from the 2011 FISC Opinion even absent any further declassification of information in the Opinion resulting from the Snowden disclosures and even assuming the government’s other bases for withholding information in the Opinion were well-taken. This is because when “information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Specifically, in the instant action, after the FISC Rule 62 bar had been lifted, the government would have been obligated to release from the Opinion all legal analysis that “matched”16 the information that had been officially declassified in response to Senator Wyden’s request, i.e., that “the government’s implementation of Section 702 ha[d] sometimes circumvented the spirit of the law,” and that “on at least one occasion, the [FISC] held that some collection carried out pursuant to Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.” Compl. ¶ 10; see also Leopold v. Dep’t of Justice, Civ. No. 14-168, 2015 WL 5297254, at *12 (D.D.C. Aug. 12, 2015) (finding that certain legal analysis within classified DOJ White Paper should be disclosed because it “does not in any way reference or pertain to any classified information” or because it “contain[ed] similar legal analysis . . . [previously] disclosed to the Plaintiff”); New York Times Co. v. Dep’t of Justice, 756 F.3d 100, 119 (2d Cir. 2014) (“With the redactions and public disclosures discussed above, it is no longer either ‘logical’ or ‘plausible’ to maintain that disclosure of the legal analysis . . . risks disclosing any aspect of ‘military plans, intelligence activities, sources and methods, and foreign relations.’”). With the benefit of having reviewed
16 The D.C. Circuit applies a three-part test for whether information has been “officially acknowledged”: “(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure.” ACLU v. Dep’t of Def., 628 F.3d 612, 620–21 (D.C. Cir. 2011).
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the unredacted 2011 FISC Opinion following the Snowden disclosures, it is apparent that such
reasonably segregable information from the Opinion would have included at least the following
statements from the Opinion:
• The final question for the Court is whether the [REDACTED] minimization procedures are, as applied to [REDACTED], consistent with the Fourth Amendment. See 50 U.S.C. § 1881a(i)(3)(A)–(B). The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• The Court is . . . unable to find that [REDACTED] minimization procedures, as the government proposes to implement them in connection with [REDACTED] are consistent with the Fourth Amendment.
• By expanding its Section 702 acquisitions to include [REDACTED] has, as a practical matter, circumvented the spirit of Section [REDACTED] with regard to that collection.
• The question therefore becomes whether, taking into account [REDACTED] minimization procedures are reasonable under the Fourth Amendment.
• Under the totality of the circumstances, then, the Court is unable to find that the government’s proposed application of [REDACTED] minimization procedures to [REDACTED] is consistent with the requirements of the Fourth Amendment.
Redacted, 2011 WL 10945618, at *9, *16, *23–24, *28 (F.I.S.C. 2011). None of these
statements are “unintelligible sentences composed of isolated, meaningless words.” Judicial
Watch, Inc. v. Dep’t of Treasury, 796 F. Supp. 2d 13, 29 (D.D.C. 2011) (internal quotation
omitted). Nor are any of them “inextricably intertwined with exempt portions” as the above
redactions demonstrate. Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.
Cir. 1977).
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b. July 11, 2014 Disclosure EFF’s efforts in this case were also the catalyst for the government’s July 11, 2014, disclosures of previously-redacted material from the 2011 FISC Opinion. Those disclosures were the direct result of EFF’s successful request (over the government’s objection) that the Court conduct an in camera review of an unredacted version of the Opinion. Pl.’s MSJ at 2; Def.’s MSJ Opp. at 2–3. Following in camera review, on June 11, 2014, the Court ordered DOJ to provide further information explaining the basis for the government’s classification of 12 redactions in the Opinion. June 11, 2014, Minute Order. Rather than defend its withholdings, on or about July 11, 2014, DOJ unredacted information related to at least 8 of the 12 redactions17 that were the focus of the Court’s June 11, 2014, Order. Suppl. Hudson Decl. ¶¶ 16, 17, 18, 20, 21–22, 24, 25–26, 31, 34, 36, 39. The disclosures included: references to the CIA’s and FBI’s involvement in the Section 702 collection program, details on the CIA’s amended minimization procedures, references to the FBI’s “Standard Minimization Procedures,” and the operational relationship between FBI targeting procedures and NSA targeting procedures. Id. ¶¶ 17, 18, 21, 23, 25–26. DOJ claimed that much of this disclosed material was “inadvertently overlooked” during the ODNI’s ongoing declassification initiative and that the redactions were “mistakenly applied.” Fee Opp. at 13; Suppl. Hudson Decl. ¶¶ 17, 18, 20, 26. For that reason, DOJ argues that the disclosures were not
17 This Court’s July 18, 2014, Memorandum Opinion states that the government withdrew its withholding of information in response to 10 of the 12 questions in the Court’s June 11, 2014, Minute Order. See EFF v. DOJ, 57 F. Supp. 3d at 59. The Hudson declaration, on the other hand, indicates that the government released information in response to 8 of the Court’s 12 questions. The precise number of questions which resulted in the government making further disclosures of previously-redacted material is not relevant to the undersigned’s analysis. Suffice it to say that the government did in fact disclose additional material from the 2011 FISC Opinion as a result of the in camera review that the Court granted at EFF’s request.
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prompted by EFF’s pursuit of this litigation, but instead by the “ongoing declassification decisions directed by the President that inured to the Plaintiff’s benefit.” Fee Opp. at 13.
The Court disagrees. Plainly, EFF’s successful request for in camera review caused the government’s July 11, 2014, disclosures. That request led the Court to question DOJ about 12 suspect redactions in the 2011 FISC Opinion. In response to that probing, the government agreed that there was no basis for the continued withholding at least 8 of the 12 redactions in question and lifted those redactions. The government’s assertion that the redactions were the result of a “mistake” is irrelevant to the causation analysis. But for EFF’s efforts challenging the government’s redactions in this litigation, there is no reason to believe that those redactions would have ever been lifted. See Church of Scientology, 653 F.2d at 588 (“[T]he critical point [is that] but for the institution and prosecution of this suit, the documents ultimately obtained by [the FOIA requester] would never have been identified and therefore would never have been released.”). Stated another way, without the “light of litigation” to expose the “inadvertently overlooked” material, it is “more probable than not that the government would not have performed the desired act,” i.e., lifted the redacted material on July 11, 2014. Conservation Force v. Salazar, 916 F. Supp. 2d 15, 19–20 (D.D.C. 2013) (internal quotation omitted).
For all of the aforementioned reasons, EFF is a substantially prevailing party and, therefore, eligible for attorney’s fees and costs. The Court will analyze next its entitlement to a fee award.
B. EFF is Entitled to Attorney’s Fees There are four factors a district court normally considers when evaluating a prevailing party’s entitlement to attorney’s fees: (1) the “public benefit” factor; (2) the “commercial benefit” factor; (3) the “plaintiff’s interest” factor; and (4) the “reasonableness” factor. See Tax
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Analysts, 965 F.2d at 1093. The second and third factors “are closely related and often considered together.” Id. at 1095. “The sifting of those criteria over the facts of a case is a matter of district court discretion.” Id. at 1094. The Court will consider each factor in turn.
1. “Public benefit” factor In weighing the “public benefit” factor, district courts typically inquire as to whether “the complainant’s victory is likely to add to the fund of information that citizens may use in making vital political choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (citing Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979)). DOJ contends that the public benefit factor weighs against an award of attorney’s fees in this matter because “the government was engaged in a large-scale, multi-agency review process led by the [ODNI]” that would have resulted in the release of the 2011 FISC Opinion irrespective of EFF’s litigation efforts. Fee Opp. at 14 n.2 . This is largely a rehash of the government’s eligibility argument, which the Court rejects. EFF’s efforts in this case ensured that the Opinion would in fact be disclosed to the public, that it would be disclosed on a schedule set by the Court, not the government, and that every reasonablysegregable, non-exempt portion of the Opinion would be released. See supra Sections III.A.1. and III.A.2. The government does not dispute that disclosure of the 2011 FISC Opinion contributed “to the fund of information that citizens may use in making vital political choices.” Cotton, 63 F.3d at 1120. Nor could it. Portions of the 2011 FISC Opinion were published by “a wide range of media outlets, including the New York Times, Washington Post, Los Angeles Times, Guardian, and other news organizations throughout the world.” Fee Mot. at 6, 9. Moreover, in a public statement issued on the day of the Opinion’s release, Senator Ron Wyden noted that the disclosure was “an important addition to the public discussion being held on government
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surveillance authorities.” Id. at 6 (quoting Wyden Statement on Declassification of FISA Court Ruling on 4th Amendment Violations, August 21, 2013). Disclosure of the 2011 FISC Opinion thus had a significant impact on the public discussion of the NSA’s surveillance programs, which is still ongoing. Thus, the first entitlement factor is satisfied.
2. “Commercial benefit” and “plaintiff’s interest” factors The “commercial benefit” and “plaintiff’s interest” factors are often considered together to assess whether a plaintiff has “‘sufficient incentive to seek disclosure’ without attorney’s fees.” Davy v. CIA, 550 F.3d 1155, 1160 (D.C. Cir. 2008) (“Davy II”) (quoting Tax Analysts, 965 F.2d at 1095). DOJ effectively concedes that these factors favor plaintiff. See Fee Opp. at 14 n.2 (“The Department . . . acknowledges that the Court is likely to find that [the commercial benefit and plaintiff’s interest factors] favor Plaintiff.”). DOJ’s concession is well-taken. EFF is “a donor-supported membership organization that works to inform policymakers and the general public about civil liberties issues related to technology and to act as a defender of those liberties.” Compl. ¶ 3. This Court has no reason to doubt that EFF “sought the documents at issue expressly for public dissemination on an issue of public importance” rather than for some commercial purpose. Fee Mot. at 10. The second and third entitlement factors are satisfied here.
3. “Reasonableness” factor The final entitlement factor considers whether the agency’s opposition to disclosure “had a reasonable basis in law,” or whether the agency has been “recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.” Tax Analysts, 965 F.2d at 1096; McKinley, 739 F.3d at 712; Davy II, 550 F.3d at 1162. If the government’s basis for withholding the information at issue was correct as a matter of law, that will be dispositive, and the plaintiff will not be entitled to attorney’s fees. Chesapeake Bay Found. v. Dep’t of Agric., 11
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F.3d 211, 216 (D.C. Cir. 1993). If, however, the government’s position is “founded on a colorable basis in law, that will be weighed along with other relevant considerations in the entitlement calculus.” Id. Thus, the question is “not whether [the plaintiff] has affirmatively shown that the agency was unreasonable, but rather whether the agency has shown that it had any colorable or reasonable basis for not disclosing the material until after [the plaintiff] filed suit.” Davy II, 550 F.3d at 1163. The burden to prove “reasonableness” thus falls squarely on the government.
The Court finds that the government’s assertion of FISC Rule 62 as a bar to disclosure of the 2011 FISC Opinion lacked a reasonable basis in the law. DOJ argued in its initial motion for summary judgment that this rule robbed the government of any discretion (and this Court of any power) to disclose the Opinion under FOIA. Def.’s MSJ at 2, 6, 12 (“[T]he order can[not] be released publicly except upon the order of the FISC.”). But in 2007, when the American Civil Liberties Union (“ACLU”) directly petitioned the FISC for release of certain of its orders, the government objected to their disclosure by arguing the opposite of what it asserted here. See generally In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (F.I.S.C. 2007). To avoid production of FISC records in that case, the government asserted that “[t]he FOIA process . . . [was] the proper means for the ACLU to seek records of [the FISC’s] proceedings from the Executive Branch.” Fee Reply at 9 n.3 (quoting Gov.’s Opp. Br. at 5, In re Motion for Release of Court Records, 526 F. Supp. 2d at 497 (F.I.S.C. 2007)). And the FISC agreed, thereby denying the ACLU’s request for relief. See In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 497 (F.I.S.C. 2007). According to the FISC in 2007, there was “no role for [the FISC] independently to review” the orders and “potentially override, Executive Branch classification decisions.” Id. at 491. It clarified, however, that “nothing in [its] decision
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foreclose[d] the ACLU from pursuing whatever remedies may be available to it in a district court through a FOIA request addressed to the Executive Branch.” Id. at 497.
Five years later, when EFF filed such a FOIA complaint with this Court seeking the disclosure of the 2011 FISC Opinion, the government changed course. Maneuvering again to block disclosure, DOJ represented unequivocally to this Court that it was without power under FOIA to compel the production of the Opinion because the “FISC Rules of Procedure . . . prohibited [the Department] from disclosing [it] publicly.” Def.’s MSJ at 15. The government’s position compelled EFF to stay this case and seek relief from the FISC, which the FISC promptly18 granted in part, citing to its 2007 decision and noting (as it did in 2007) that a decision concerning the Opinion’s disclosure is “appropriately addressed by the District Court in the FOIA litigation.” In re Motion for Consent to Disclosure of Court Records, 2013 WL 5460051, at *4.
The government’s shifting positions with respect to the disclosure of FISC records were recently addressed by the United States District Court for the Southern District of New York. See ACLU v. FBI, 59 F. Supp. 3d 584, 590–91 (S.D.N.Y. 2014). In that case, the ACLU sought records, including FISC orders, under FOIA relating to the government’s use of Section 215 of the USA PATRIOT Act. Id. at 586. As it did here, DOJ defended its withholding of the FISC records by arguing that “the rules and procedures of the FISC restrict the Government from disclosing [them].” Id. at 590. In finding that there was sufficient evidence of bad faith by the government to justify in camera review of the withheld materials in that case, the court relied in part on the contradiction between the government’s position in 2012 concerning the impact of
18 The FISC issued its decision on June 12, 2013 – 20 days after EFF filed its motion and only 5 days after the government filed its opposition.
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the FISC’s procedural rules on disclosure and “the position the Government took in the [2007] proceeding before the FISC”:
Having argued successfully in 2007 that FOIA was the proper vehicle to seek release of FISC documents, the Government appears to have been dissembling in 2012 when it argued “the rules and procedures of the FISC restrict the Government from disclosing FISC records.”. . . [T]he Government’s arguments bear the hallmarks of opportunistic rummaging rather than a coherent strategy. . . . [B]y advancing incorrect and inconsistent arguments, the Government acted without the candor this Court expects from it. Id. at 590–91. Like in ACLU v. FBI, the government’s assertion of FISC Rule 62 to block any disclosure from the 2011 FISC Opinion had no reasonable basis in law following the FISC’s 2007 decision and the position the government asserted in that case. In choosing to make that argument, the government denied EFF, at the very least, the reasonably segregable portions of the 2011 FISC Opinion. See supra Section III.A.2.a. It is only fair that the government now compensate EFF for that choice. See Tax Analysts, 965 F.2d at 1096 (fee applicant satisfies reasonable-basis-in-law factor where the government has been “recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior”).19 Because all four entitlement factors weigh in EFF’s favor, this Court will award EFF its reasonable attorney’s fees.
19 Even were the Court to conclude that there was a reasonable basis for the withholding of the 2011 FISC Opinion in its entirety, under the circumstances of this case and the enormous public interest in the information disclosed, an award would still be appropriate. See, e.g., ACLU v. Dep’t of Homeland Sec., 810 F. Supp. 2d 267, 277 (D.D.C. 2011) (“Considering the immense public benefit derived from the disclosure of [the] information . . ., and the plaintiff’s total lack of any commercial benefit acquired from the disclosure, . . . even if the ‘reasonable basis in law’ factor weighs in favor of the defendant, the other factors nonetheless weight in favor of the plaintiff being ‘entitled’ to an award of attorney’s fees.”).
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C. EFF’s Fee Award Will Be Reduced in the Court’s Discretion Having found that plaintiff is both eligible for and entitled to compensation for its counsel’s fees expended in this matter, the Court will next determine the amount of fees to be awarded. FOIA directs that a Court award a substantially prevailing plaintiff his or her “reasonable attorney’s fees and other litigation costs reasonably incurred. . . .” 5 U.S.C. § 552(a)(4)(E)(i). The usual method of calculating a reasonable fee amount is to “multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” JPR, Inc., 136 F.3d at 801. Here, the parties dispute both components of the lodestar equation – the hourly rates and the hours expended by plaintiff’s counsel in this litigation. The Court will consider the parties’ arguments on each issue in turn.
1. Reasonable Rate A reasonable hourly fee is determined by analyzing three elements: (1) the “attorney[’s] billing practices,” (2) “the attorney[’s] skill, experience, and reputation,” and (3) “the prevailing market rates in the relevant community.” Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). Here, the parties disagree on the third element – the prevailing market rates in the relevant community.20 See Fee Opp. at 24–26; Fee Reply at 16–17. The Court of Appeals has recently addressed the hourly-rate element in Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015). There, the D.C. Circuit, while acknowledging that determining a prevailing market
20 Non-profit attorneys – such as EFF’s attorneys – are entitled to receive the same prevailing market rate as prevailing private counsel in equally complex federal litigation. See Blum v. Stenson, 465 U.S. 886, 894 (1994) (“Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization”); Save Our Cumberland Mountain, Inc. v. Hodel, 847 F.2d 1516, 1524 (D.C. Cir. 1988) (“SOCM”).
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rate is “inherently difficult,” nevertheless emphasized the “importance of fixing the prevailing hourly rate in each case with a fair degree of accuracy.” Eley, 793 F.3d at 100 (internal quotations omitted). To meet its burden with respect to the third element, a fee applicant must “‘produce satisfactory evidence – in addition to the attorney’s own affidavits – that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).
One such type of additional evidence permitted in this Circuit is attorney’s fee matrices such as the Laffey Matrix prepared by the Civil Division of the United States Attorney’s Office for the District of Columbia (“USAO Laffey Matrix”).21 Id.; Rooths v. Dist. of Columbia, 802 F. Supp. 2d 56, 61–62 (D.D.C. 2011). It was created to demonstrate the “prevailing rates in the community for lawyers of comparable skill, expertise and reputation in complex federal litigation.” Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354, 371–72 (D.D.C. 1984), aff’d, 746

21 The USAO Laffey Matrix establishes the following schedule for lawyers practicing complex federal litigation from June 2012 to May 2013, and from June 2013 to May 2014, respectively:

Year Experience 20+ years 11–19 years 8–10 years 4–7 years 1–3 years Paralegals & Law Clerks

USAO Laffey Matrix

06/01/2012–05/31/2013

06/01/2013–05/31/2014

Fees

$505

$510

$445

$450

$355

$360

$290

$295

$245

$250

$145

$145

USAO Laffey Matrix, available at http://www.justice.gov/sites/default/files/usaoc/legacy/2013/09/09/ Laffey_Matrix%202014.pdf.

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F.2d 4 (D.C. Cir. 1988), overruled in part on other grounds by SOCM, 857 F.2d at 1525. The original Laffey Matrix is now more than thirty years old and must be updated to account for inflation. See Eley, 793 F.3d at 101. Competing Laffey Matrices have developed because litigants disagree as to whether the Laffey rates should be adjusted for inflation by using the Consumer Price Index for All Urban Consumers of the United States Bureau of Labor Statistics (as is done in the USAO Laffey Matrix) or by using the Legal Services Index of the Bureau of Labor Statistics (as is done in the Legal Services Index or “LSI” Matrix). Id. For attorneys with 20 or more years of experience, the LSI Matrix sets an hourly rate that is more than $200 higher than that set in the USAO Laffey Matrix.22 Courts in this Circuit have compared the relative merits and imprecisions of the competing matrices and ended up on both sides of the debate.23
But while fee matrices can “provide a useful starting point” in calculating the prevailing market rate, see Covington, 57 F.3d at 1109, the D.C. Circuit in Eley cautioned against uncritical reliance on fee matrices, holding that to accord such rates presumptive reasonableness is to “fli[p] the burden of persuasion on its head.” Eley, 793 F.3d at 105. As Eley confirms, a fee

22 The LSI Matrix establishes the following schedule for lawyers practicing complex federal litigation from June 2012 to May 2013, and from June 2013 to May 2014, respectively:

Year Experience 20+ years 11–19 years 8–10 years 4–7 years 1–3 years Paralegals & Law Clerks

LSI Matrix

06/01/2012–05/31/2013

06/01/2013–05/31/2014

Fees

$753

$771

$625

$640

$554

$567

$383

$393

$312

$320

$170

$175

LSI Matrix, available at http://www.laffeymatrix.com/history.html.

23 Compare Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, Civ. No. 11-3374, 2015 WL 545991, at *2 (D.D.C. Feb. 11, 2015) (adopting the LSI Matrix); and Eley v. Dist. of Columbia, 999 F. Supp. 2d 137, 150–156 (D.D.C. 2013), vacated and remanded, 793 F.3d 97 (D.C. Cir. 2015) (same); with Hall v. CIA, Civ. No. 04-814, 2015 WL 4335364, at *6 (D.D.C. July 14, 2015) (adopting the USAO Laffey Matrix); and EPIC, 72 F. Supp. 3d at 349 (same).

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applicant does not meet its burden on the hourly-rate element merely by submitting the USAO Laffey Matrix or the LSI Matrix with a fee application. Rather, the applicant is obliged to demonstrate that the suggested rates in the matrix are “in line with those prevailing in the community for similar services”24 to those at issue in the litigation. Eley, 793 F.3d at 104 (emphasis in original); Concerned Veterans, 675 F.2d at 1325 (“‘An applicant is required to provide specific evidence of the prevailing community rate for the type of work for which he seeks an award.’”) (emphasis in original); see also Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004). Stated another way, fee applicants “are entitled to the Laffey rate only if they can establish that the relevant legal market [at issue] in [the] action . . . is subject to the same hourly rates that prevail in complex federal litigation” as represented in the matrix. Eley, 793 F.3d at 105, n.6 (quoting Price v. Dist. of Columbia, Civ. Nos. 14–7133, 14–7138, 2015 WL 3916444, at *4 (D.C. Cir. June 26, 2015). “Absent such a finding, Laffey Matrix rates are irrelevant to the prevailing-rate determination.” Id.
A fee applicant can make the required showing by supplementing fee matrices with other evidence such as “surveys to update the[m]; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.” Id. at 101 (quoting Covington, 57 F.3d at 1109); see also id. at 104, n.5 (“Evidence of the prevailing market rate can take many forms.”). “[P]owerfully persuasive,” according to the Court of Appeals, would be “[a] statistically reliable, welldocumented, and extensive survey of the rates clients pay for [the] certain sub-market of legal
24 EFF’s assertion that this requirement in Eley was restricted to IDEA’s fee shifting provision is unavailing. Suppl. Fee Br. at 1–2. In fact, the D.C. Circuit expressly relied on legal principles and case law that govern awards in all fee-shifting cases. See Eley, 793 F. 3d at 100, n.2 (“We apply the respective analysis from Blum and SOCM notwithstanding both cases involved different attorney’s fees statutes.”) (internal citation omitted)).
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services” at issue in the case. Id. at 104, n.5. Should the fee applicant fail to provide in its submission “evidence that [its] ‘requested rates are in line with those prevailing in the community for similar services,” – i.e., the sub-market at issue – the fee applicant will not have met its burden. Eley, 793 F.3d at 105 (citing Covington, 57 F.3d at 1109 (Henderson, J., dissenting); Blum, 465 U.S. at 895) (internal quotation omitted); id. at 104–5, n.5 & n.6.
In the instant action, the parties dispute which matrix should be used as a basis to determine a reasonable hourly rate for EFF’s counsel. DOJ argues that the Court should adopt the USAO Laffey Matrix rates. Fee Opp. at 24. EFF contends that it should be awarded fees based on LSI Matrix rates. Fee Mot. at 14–15. Use of LSI rates would equate to hourly rates of $773 and $771 for one of EFF’s attorneys, Mr. Sobel, and $312 and $320 per hour for its other attorney, Mr. Rumold. Id. But again, a fee applicant does not meet its burden on the hourly-rate element merely by submitting the LSI Matrix (or the USAO Laffey Matrix) with a fee application. Rather, the applicant must demonstrate that the rates set in the matrix are “in line with those prevailing in the community for similar services,” or the legal “sub-market” at issue. Eley, 793 F.3d at 104 (emphasis in original); id. at 104, n.5. Here, EFF has failed to meet that burden; that is, it has failed to demonstrate that the rates reflected in the LSI Matrix are those prevailing in FOIA litigation in the Washington, D.C. legal market.
Indeed, in its initial fee petition, EFF provided no evidence concerning the prevailing market rates for FOIA litigation. It submitted only (1) the declarations of its counsel attesting to the number of hours spent on the litigation, and (2) the declaration of Dr. Michael Kavanaugh, originally submitted in another case, explaining the LSI Matrix. See Mot. Ex. A, B, D; see generally Sobel Decl.; see generally Rumold Decl. Absent from EFF’s original submission was any evidence that its “requested rates are in line with those prevailing in the community for
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similar services,” here, FOIA litigation. Eley, 793 F.3d at 104 (quoting Covington, 57 F.3d at 1107, 1109). Indeed, EFF’s initial evidentiary submission effectively mirrored the plaintiff’s inadequate evidentiary submission in Eley which also consisted of the LSI Matrix, Dr. Kavanaugh’s declaration, and “her lawyer’s verified statement averring that he charged paying clients the rates in the [LSI] Matrix.” Eley, 793 F.3d at 104.
The materials submitted by EFF with its supplemental filing fare no better.25 EFF’s second submission consisted of: (1) the declaration of David K. Colapinto, a partner at a Washington, D.C., public interest law firm focusing on whistleblower advocacy and employment law; (2) an eight-year-old declaration of Steven K. Davidson, a partner at a large D.C. law firm, attesting to general market rates in 2007; and (3) a “Real Rates Report 2014” listing the median hourly fees billed for litigation partners in the District of Columbia. See Suppl. Fee Br. Ex. A, B, C. Neither Mr. Davidson’s declaration nor the Real Rates Report provide any information relevant to establishing prevailing market rates for FOIA litigation in the District of Columbia legal market. While Mr. Calapinto’s declaration mentions FOIA litigation, his assertion that it constitutes “complex federal litigation” is unsubstantiated and entirely conclusory. Colapinto Decl. ¶ 16. Conspicuously absent from his declaration is any averment that he has received his firm’s full hourly rates (up to $995 per hour) in FOIA cases. See id. ¶¶ 10, 12, 16. Indeed, he attests that all of his FOIA cases have settled, “so the fee issued was not litigated.” Id. ¶ 16.
On this record, EFF has not met its burden of justifying the reasonableness of the LSI Matrix rates it seeks. Nevertheless, the Court will permit EFF to be compensated at USAO Laffey rates. It does so because the government has conceded that, if EFF is awarded attorney’s
25 On September 3, 2015, this Court permitted the parties to file supplemental briefs addressing the impact of Eley on EFF’s request for attorney’s fees. See Sept. 3, 2015, Minute Order.
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fees in this matter, they should be based on the USAO Laffey Matrix. Fee Opp. at 24; see also . Further, doing so would be consistent with Eley, which held that the hourly rates plaintiffs have obtained in recent similar cases is, in fact, persuasive evidence that those rates are the prevailing rates for those types of cases.26 Eley, 793 F.3d at 104; see also id. at 101 (prevailing rates can be demonstrated by, inter alia, “‘evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases’”) (quoting Covington, 57 F.3d at 1109); see also Concerned Veterans, 675 F.2d at 1325 (“Recent fees awarded by the courts or through settlement to attorneys of comparable reputation and experience performing similar work are . . . useful guides in setting an appropriate rate.”). The weight of recent case authority in this Circuit has awarded USAO Laffey rates to successful FOIA plaintiffs. See Elec. Privacy Info. Ctr. v. FBI, 72 F. Supp. 3d 338, 349–50 (D.D.C. 2014) (awarding attorney’s fees in a FOIA case based on the USAO Laffey Matrix) (“EPIC”); Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 66 F. Supp. 3d 134, 148 (D.D.C. 2014) (same); EPIC, 999 F. Supp. 2d 61, 71–72 (2013) (same); Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, 825 F. Supp. 2d 226, 229 (D.D.C. 2011) (same); EPIC, 811 F. Supp. 2d 216, 236 (2011) (same); Judicial Watch v. DOJ, 774 F. Supp. 2d 225, 232 (D.D.C. 2011) (same); Queen Anne’s Conservation Ass’n v. Dep’t of State, 800 F. Supp. 2d 195, 200–01 (D.D.C. 2011)
26 The undersigned recognizes that basing the prevailing rate analysis on the weight of prior case authority may favor the USAO Laffey Matrix over its variants because it came first. The D.C. Circuit’s decision in Eley makes plain, however, that fee applicants need not “always cite fee orders issued in other cases” in order for their fee petitions to be successful. Eley, 793 F.3d at 104 n.5. Instead, “evidence of the prevailing market rate can take many forms.” Id. Indeed, the Court of Appeals observed that it would be “powerfully persuasive” if, instead of relying on any fee matrix, a fee petitioner were to submit a “statistically reliable, well-documented, and extensive survey of the rates clients pay for [the] sub-market of legal services” at issue in the case. Id. (internal quotation omitted). Plaintiff provides no such survey here.
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(same); Nw. Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59, 65–66 (D.D.C. 1997) (same).27
Using the USAO Laffey Matrix as a guide, David Sobel, plaintiff’s senior attorney with over 30 years of experience, will be awarded $505 per hour for his work on this litigation from June 2012 to May 2013, and $510 per hour for his work from June 2013 to May 2014. See supra n.21. Likewise, Mark Rumold, plaintiff’s junior attorney with 1–3 years of experience, will be awarded $245 per hour for his work in this action from June 2012 to May 2013, and $250 per hour for his work from June 2013 to May 2014. See id.
2. Reasonable Hours A plaintiff bears the burden of demonstrating the reasonableness of the hours claimed by “documenting the appropriate hours expended.” Hensley v. Eckerhart, 461 U.S. 424, 441 (1983). In the instant action, EFF claims that Mr. Sobel spent a total of 17.75 hours, and that cocounsel, Mr. Rumold, spent a total of 87 hours on this FOIA litigation. Sobel Decl. ¶ 5; Rumold Decl. ¶ 4. The government contends that EFF’s claimed hours are unreasonable for three reasons: (1) they reflect time spent on “unsuccessful or non-productive pursuits,” (2) they seek to recover for time expended “reviewing the documents sought in this litigation,” and (3) they reflect hours calculated based on a post hoc review of documents by one of EFF’s attorney’s rather than contemporaneous billing records. Fee Opp. at 18–23. As discussed below, the Court finds merit only in the government’s third argument.
27 In comparison, the undersigned has only identified two cases wherein the Court awarded LSI Matrix rates to successful FOIA plaintiffs. See CREW, Civ. No. 11-1021 (D.D.C. Oct. 24, 2014), at *22 (awarding rates consistent with the LSI Matrix in a FOIA case); Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, Civ. No. 11-0754, 2014 U.S. Dist. LEXIS 182098, at *14 (D.D.C. Aug. 4, 2014) (same).
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a. EFF Has Not Claimed Hours for “Unsuccessful or Non-Productive Pursuits” Counsel for a fee applicant “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his [or her] fee submission.” Hensley, 461 U.S. at 434. Should a court determine that certain documented hours were not “reasonably expended,” the court may exclude those hours from the fee calculation. Id. Based on these legal principles, the government argues that EFF is not entitled to fees for its “elective non-FOIA proceedings in the FISC,” for its “unsuccessful Cross-Motion for Summary Judgment,” and for the period between when it filed its complaint and “early June 2013,” a stage of the case the government contends was rendered “moot” by the Snowden leaks. Fee Opp. at 20–21. The Court finds little merit in the government’s arguments. There was nothing elective about EFF’s litigation before the FISC. Indeed, EFF was compelled to seek relief in the FISC because of the government’s incorrect and unreasonable claim that FISC Rule 62 precluded any disclosure of information in this matter. For that reason, it should be compensated for its successful efforts before the FISC. See 5 U.S.C. § 552(a)(4)(E)(i) (authorizing the court to assess “fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed”). Similarly, the Court rejects DOJ’s related contention that compensating EFF for its attorneys’ efforts before the FISC would “exceed the waiver of sovereign immunity in FOIA’s fee provision.” Fee Opp. at 8. EFF’s challenge before the FISC of the government’s Rule 62 argument was an integral and necessary part of this litigation. This is so given that it was the government that (1) interposed FISC Rule 62 into this FOIA case, (2) argued that the rule left
39

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both the government and this Court without authority to disclose the 2011 FISC Opinion, and (3) refused to go before the FISC itself and seek to remove that claimed bar to disclosure in this action. The government’s actions thereby compelled EFF to seek its own relief before the FISC so as to permit release of the Opinion in this action. Indeed, the government conceded as much in its brief before the FISC when it characterized EFF’s motion as being “an action in aid of Movant’s FOIA suit against the Department of Justice seeking records from the Department’s files.” Gov.’s Opp. Br. at 2, In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (F.I.S.C. 2007). For that reason, the fees and costs associated with EFF’s efforts were “reasonably incurred” under Section 552(a)(4)(E)(i) and will be compensated.
Finally, the Court rejects the government’s related contention that EFF’s pursuit of every other phase of this case was “non-productive.” Taking the government’s position at the initiation of this litigation at face value – that it would not have voluntarily or unilaterally sought any relief from the FISC – it is apparent that, regardless of the Snowden leaks, the 2011 FISC Opinion would not have been released absent EFF’s litigation before the FISC, which the government’s position compelled. Thereafter, EFF successfully pursued this litigation to ensure that the Opinion would be released on a schedule set by the Court, not the government, and that every reasonably segregable portion of it would be released, all of which was beneficial to the public. Cf. Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, Civ. No. 11-1021, at *11 (D.D.C. Oct. 24, 2014) (denying fees because “after the first stage of the briefing, there was no public benefit to further litigation, and the Government’s withholdings were not unreasonable”). Moreover, DOJ’s argument also neglects the fact that “FOIA cases routinely result in the disclosure of a relatively small proportion of the documents originally requested.” Judicial Watch, 774 F. Supp. 2d at 232.
40

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Accordingly, the Court will not curtail any of EFF’s claimed hours as being “excessive, redundant, or otherwise unnecessary.” See Hensley, 461 U.S. at 434.
b. EFF Can Recover for Time Expended Reviewing Documents Sought in this Litigation for Purposes of Challenging the Government’s Withholding from Those Documents
Also unavailing is DOJ’s contention that EFF cannot recover for time spent reviewing “the documents released in August 2013 and the partial footnote released in November 2013.” Fee Opp. at 22. DOJ characterizes this time as “non-compensable, ‘post-relief activity, separate from the litigation.’” Id. (quoting CREW, 825 F. Supp. 2d at 231 (D.D.C. 2011)). However, as this Court recently held, “to 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 fee award.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., Civ. No. 12-667, 2015 WL 737101, at *6 (D.D.C. Feb. 20, 2015) (“EPIC”); see also EPIC, 811 F. Supp. 2d at 239–40 (D.D.C. 2011) (observing that “it 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”); EPIC, 999 F. Supp. 2d at 75 (D.D.C. 2013).
As in EPIC, Civ. No. 12-667 (D.D.C. 2015), this is not a case where the 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.” 2015 WL 737101, at *6. Rather, the hours EFF’s attorneys spent reviewing the versions of the 2011 FISC Opinion released in August 2013 and November 2013 were “an integral part of this FOIA litigation.” Id. Based on that review, EFF further challenged the government’s redactions to the Opinion –
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challenges which resulted in in camera review of that Opinion and further disclosure of information from it. See Pl.’s MSJ at 2 (“[S]ome redactions still appear calculated. . . . EFF respectfully urges the Court to require production of the Opinion for the Court’s in camera inspection and to reject the overbroad withholding claims DOJ continues to assert.”). Accordingly, the Court will compensate the time that EFF’s counsel reasonably expended reviewing the 2011 FISC Opinion in August and November 2013 as it determined whether to challenge the government’s continued withholdings from that document.
c. Plaintiff’s Fee Award Should Be Reduced to Account for Plaintiff’s Counsel’s Post Hoc Reconstruction of His Time Spent on this Case
The government’s final challenge based on the inadequate timekeeping of one of EFF’s attorneys – Mr. Rumold – fares better. This Circuit’s case law requires that attorneys intending to make a fee application at a later stage of the litigation “must maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney.” Concerned Veterans, 675 F.2d at 1327. “Casual after-the-fact-estimates of time expended on a case are insufficient to support an award of attorneys’ fees.” Id. “Where the documentation of hours is inadequate,” a court may reduce the award accordingly. Hensley, 461 U.S. at 432. Given the stark contrast in the timekeeping practices of EFF’s attorneys, the Court will analyze each attorney’s hours in turn.
i. David Sobel David Sobel represented EFF in this FOIA litigation as a part-time employee. Sobel Decl. ¶ 4. Unsurprisingly, as a part-time, public-interest attorney, Mr. Sobel did not file monthly invoices with individual line items devoted to each discrete task. Id. ¶¶ 4, 5. Rather, Mr. Sobel “maintain[ed] a running tally of time devoted to each discrete task performed during the course of the litigation . . . [which] was compiled on a computer file [and] updated as additional time
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was devoted to the case.” Id. ¶ 5. In an effort “to be conservative and to ensure that

unproductive time was not included in the tally,” Mr. Sobel recorded his time in six-minute

increments. Id. Relying upon the contemporaneous records he kept, Mr. Sobel provided a chart

to the Court, reproduced below, that delineates the total time spent on the major tasks that were

necessary to pursue this action to completion, not including the hours devoted to the attorney’s fees briefs:28

Date

Work

Hours

8/2012

Draft complaint

1.5

4/2013

Review & analysis of DOJ SJ filing

.75

4-5/2013

Stay in DDC and motion to FISC

9.25

6-7/2013

Status report (filed 7/1/13)

1.75

8/2013

Review document produced on 8/21

.25

9-10/2013

Opp. to DOJ SJ motion & EFF cross-motion

2.5

11-12/2013

Reply ISO EFF cross-motion

1.75

TOTAL

17.75

Id. The Court commends Mr. Sobel for his thorough and contemporaneous timekeeping and
for keeping track of his time in six-minute increments. See CREW, Civ. No. 11-1021 (D.D.C. Oct. 24, 2014), at *13 (“[C]ourts in this District and others have often required that attorneys bill in ten-minute or six-minute increments” because this type of billing practice is more accurate).

28 This Court will address EFF’s claim for “fees on fees” separately below. See infra Section III.C.3.
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Having kept contemporaneous records of his time in sufficient detail, Mr. Sobel will be fully

credited for the 17.75 hours he expended in this litigation.

ii. Mark Rumold

Mark Rumold worked full-time for EFF on this litigation. Rumold Decl. ¶ 3. In contrast

to Mr. Sobel, Mr. Rumold did not maintain contemporaneous time records related to this matter.

Rather, before filing EFF’s fee petition, Mr. Rumold recreated his billing history through,

according to him, a “careful assessment of [his] time based on [his] case file of pleadings,

correspondence and communications, and research materials.” Id. ¶ 4. Based on that post hoc

review of documents, Mr. Rumold’s timesheet reflects that he spent 119.8029 hours working on

this litigation. Rumold Decl. App. To make up for possible discrepancies between his own

recollection and the time he actually spent on the case, Mr. Rumold then “exercised ‘billing

judgment’” to reduce the number of hours from 119.80 to 87. Id. Mr. Rumold attests that, “[a]s

a result of [his] review, and the additional reduction, [he is] confident that 87 hours were

reasonably expended in order to achieve success in this matter, and that there are no excessive,

redundant or unnecessary hours included in this request.” Id. Like Mr. Sobel, Mr. Rumold

provided a chart to the Court, reproduced below, that outlines the time he estimates that he spent

on this litigation:

Date

Work

Hours

8/2012

Draft complaint

3.0

4/2013

Review & analysis of DOJ SJ filing

6.0

4-5/2013

Stay in DDC and motion to FISC

13.0

29 Mr. Rumold miscalculated the number of hours allegedly spent on this FOIA litigation as documented in his appendix. In EFF’s motion for attorney’s fees, Mr. Rumold claims 110.55 hours; his appendix actually reflects that he spent 119.80 hours on this litigation. See Rumold Decl. App.
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6-7/2013

Status report (filed 7/1/13)

6.0

8/2013

Review document produced on 8/21

2.0

9-10/2013

Opp. to DOJ SJ motion & EFF cross-motion

33.0

11-12/2013

Reply ISO EFF cross-motion

24.0

TOTAL

87.0

Id. This Court is not satisfied with Mr. Rumold’s timekeeping. See In re Olson, 884 F.2d
1415, 1428 (D.C. Cir. 1989) (per curiam) (“Supporting documentation must be of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended.”). Indeed, as DOJ correctly notes, Mr. Rumold’s practices are “strikingly similar to the inadequate timekeeping in the fee decision” in CREW, Civ. No. 11-1021 (D.D.C. Oct. 24, 2014). Fee Opp. at 20. In that case, the plaintiff’s attorney calculated her hours by “review[ing] [her] daily time sheets and separate notes [she] maintain[ed] on individual cases.” CREW, Civ. No. 11-1021 (D.D.C. Oct. 24, 2014), at *14. Like Mr. Rumold, the plaintiff’s attorney in that case “calculate[d] her time based on a post-hoc ‘review’” of those documents and did not “indicate the increments in which she billed.” Id. For those reasons, this Court in CREW, Civ. No. 11-1021 (D.D.C. Oct. 24, 2014), reduced by 30 percent the hours of plaintiff’s counsel. Id.
A similar reduction is appropriate here. The Court lacks confidence that Mr. Rumold was able to remember all the details necessary to calculate the 119.80-hour total he claims to have spent on this case.30 His application of a 27 percent reduction to those total hours in an exercise

30 EFF claims that Mr. Rumold’s timekeeping procedures “are deemed appropriate in the Northern District of California, where he principally practices.” Fee Reply at 14–15; see also Rumold Decl. ¶ 2. But by his own admission, Mr. Rumold practices regularly in this Court, which has long required that attorneys “maintain
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of “billing judgment” to account for errors in his methodology does little to boost the Court’s confidence in the accuracy of the original figure. While Mr. Rumold’s records are not so deficient as to require no recovery for his time, this Court finds that his time should be further curtailed “to account for any inaccuracies and overbilling that may have occurred as a result of [his] unacceptable timekeeping habits.” CREW, 825 F. Supp. 2d at 231.
After careful consideration, the Court will reduce Mr. Rumold’s total fee demand of 119.80 hours by 40 percent. See Hensley, 461 U.S. at 433 (“Where the documentation of hours is inadequate, the district court may reduce the award accordingly.”). This percentage decrease falls well within the range of reductions this Court has recently imposed for similarly deficient timekeeping practices, and should provide an incentive for all counsel practicing in this Court to keep contemporaneous billing entries in the future. See Berkeley v. Home Ins. Co., 68 F.3d 1409, 1419–20 (D.C. Cir. 1995) (affirming reduction of attorney’s fees by 50% “in light of posthoc recollections two years after the fact and methodologically flawed estimates”); CREW, Civ. No. 11-1021 (D.D.C. Oct. 24, 2014), at *15 (applying a 30% reduction based on similar timekeeping practices); EPIC, 999 F. Supp. 2d at 73 (“[T]he Court will deduct 40% of this time from EPIC’s fee award as a penalty for [their] shortcomings, and to incentivize future litigants to maintain sufficiently detailed billing entries.”); CREW, 825 F. Supp. 2d at 231 (red ucing attorney’s fees by 37.5% “based on splitting the 75% difference between billing in quarter-hour versus full-hour increments”).
contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney.” Concerned Veterans, 675 F.2d at 1327; see Rumold Decl. ¶ 2 (“For the past three years, I have . . . assisted my co-counsel, David L. Sobel, with the litigation of FOIA cases in this Court.”).
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3. Fees on Fees EFF also seeks recovery for the time its counsel devoted to this fee dispute. Fee Mot. at 20; Fee Reply at 18 n.7; Suppl. Fee Reply Br. at 8 n.7. Awarding prevailing plaintiffs such “fees on fees” is consistent with this Circuit’s case law. See Noxell Corp. v. Firehouse No. 1 Bar-BQue Rest., 771 F.2d 521, 528 (D.C. Cir. 1984) (“Hours reasonably devoted to a request for fees are compensable.”). DOJ does not dispute this general principle. Fee Opp. at 23. Rather, it argues that EFF’s recovery of fees on fees should be reduced to the extent the Court is “persuaded that most of Plaintiff’s fee demands are unsubstantiated or unwarranted.” Id.; cf. INS v. Jean, 496 U.S. 154, 163 (1990) (“[F]ees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation.”). However, with the exception of the reduction for Mr. Rumhold’s timekeeping – a deficiency which was corrected for purposes of EFF’s fees-on-fees demand31 – this Court does not believe that any across-the-board reductions to plaintiff’s fees-on-fees request are appropriate. Further, having reviewed EFF’s fees-on-fees request, the Court finds that it is reasonable. Accordingly, the Court declines DOJ’s invitation to reduce EFF’s fees-on-fees demand, and will compensate EFF for the full amount requested: 39.2 hours for Mr. Sobel,32 and 9 hours for Mr. Rumold.33 See Sobel Decl. ¶ 7; Sobel Supp. Decl. ¶ 2; Rumold Decl. ¶ 5; Rumold Supp. Decl. ¶ 2; Suppl. Fee Reply Brief at 8 n.7.
31 Mr. Rumold maintained contemporaneous recordkeeping of the time he spent on EFF’s fee motion. See Rumold Supp. Decl. ¶ 2 n.1. Accordingly, his hours spent on that motion should not be reduced for the deficiencies identified above. 32 Specifically, Mr. Sobel claims 11 hours for preparation of the motion for attorney’s fees, 18.8 hours for the reply in support of EFF’s motion for attorney’s fees, and 9.4 hours for the supplemental briefing ordered by the Court on September 3, 2015. Sobel Decl. ¶ 7; Suppl. Sobel Decl. ¶ 2; Suppl. Fee Reply Brief at 8 n.7. 33 Specifically, Mr. Rumold claims 3.6 hours for preparation of the motion for attorney’s fees and 5.4 hours for the reply in support of EFF’s motion for attorney’s fees. Rumold Decl. ¶ 5; Suppl. Rumold Decl. ¶ 2.
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4. Total Attorney’s Fees

Applying the forgoing analysis to EFF’s fee demand results in a total award of attorney’s

fees calculated as follows:

Attorney
David L. Sobel
Mark Rumold

Hours 11.5 6.25 (1-0.40) x 27.5 = 16.5 (1-0.40) x 92.3 = 55.38

Laffey Rate Per Hour
$505
$510 $245
$250

Lodestar $5,807.50 $3,187.50 $4,042.50 $13,845.00

Total $8,995
$17,887.50

Mr. Sobel: $8,995 + (39.2 “fees on fees” hours x $510 per hour) = $28,987

Mr. Rumold: $17,887.50 + (9 “fees on fees” hours x $250 per hour) = $20,137.50

Total Attorney’s Fees = $49,124.50

CONCLUSION

For the reasons stated above, plaintiff’s motion for attorney’s fees and costs will be

GRANTED IN PART and DENIED IN PART. Consistent with the foregoing analysis,

plaintiff’s counsel shall be awarded total fees and costs as follows:

Attorney’s Fees $49,124.50

Costs34 $350.00

Total $49,474.50

An appropriate Order accompanies this Memorandum Opinion.

Date: September 30, 2015

_____/s__G_._M__ic_h_a_e_l _H_a_r_v_e_y________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

34 EFF incurred $350 in costs to pay for the court filing fee. See Sobel Decl. ¶ 7. DOJ makes no specific objection to paying these costs. See Fee Opp. at 26 (arguing “the most Plaintiff’s counsel can recover is $4,172.38 plus $350.00 for filing costs”). Accordingly, the Court directs that plaintiff’s legal costs should be paid in full.
48

 
 Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 1 of 8
CLOSED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12−cv−01441−ABJ

ELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT OF JUSTICE Assigned to: Judge Amy Berman Jackson Cause: 05:552 Freedom of Information Act
Plaintiff ELECTRONIC FRONTIER FOUNDATION

Date Filed: 08/30/2012 Date Terminated: 07/21/2014 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant
represented by David L. Sobel ELECTRONIC FRONTIER FOUNDATION 5335 Wisconsin Avenue, NW Suite 640 Washington, DC 20015−2052 (202) 246−6180 Fax: (415) 436−9993 Email: sobel@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF JUSTICE

represented by Deepthy Kishore U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 883 Washington, DC 20044 (202) 616−4448 Fax: (202) 616−8470 Email: deepthy.c.kishore@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacqueline E. Coleman Snead U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 7332 Washington, DC 20044 (202) 514−3418 Fax: (202) 616−8470 Email: jacqueline.snead@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305−7919 Fax: (202) 616−8470 Email: rodney.patton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 2 of 8
Steven Y. Bressler U.S. DEPARTMENT OF JUSTICE Ben Franklin Station P.O. Box 883 Washington, DC 20044 (202) 305−0167 Fax: (202) 616−8470 Email: steven.bressler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/30/2012
08/30/2012 08/30/2012 08/30/2012 10/01/2012 10/02/2012
10/08/2012 10/31/2012 11/01/2012
11/01/2012 12/05/2012 12/06/2012
12/06/2012

# Docket Text
1 COMPLAINT for Injunctive Relief against DEPARTMENT OF JUSTICE ( Filing fee $ 350 receipt number 0090−3053407) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General, # 3 Summons Dept. of Justice, # 4 Summons US Attorneys Office)(Sobel, David) (Entered: 08/30/2012)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC FRONTIER FOUNDATION (Sobel, David) (Entered: 08/30/2012)
Case Assigned to Judge Amy Berman Jackson. (mmh) (Entered: 08/30/2012)
3 ELECTRONIC SUMMONS Issued (3) as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Consent Notice)(mmh) (Entered: 08/30/2012)
4 ANSWER to Complaint by DEPARTMENT OF JUSTICE.(Coleman Snead, Jacqueline) (Entered: 10/01/2012)
5 ORDER that defendant file on or before 10/31/12 a dispositive motion or, in the alternative, a report setting forth the schedule for document production to plaintiff. See Order for details. Signed by Judge Amy Berman Jackson on 10/2/12. (DMK) (Entered: 10/02/2012)
Set/Reset Deadlines: Defendant to file a dispositive motion or, in the alternative, a report setting forth the schedule for the production of documents to plaintiff by 10/31/2012. (jth) (Entered: 10/08/2012)
6 STATUS REPORT by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 10/31/2012)
MINUTE ORDER. It is ORDERED that on December 14, 2012, the parties file a joint status report that addresses: (1) the status of production, and (2) whether plaintiff is challenging any withholdings, and if so, a proposed briefing schedule for dispositive motions. Signed by Judge Amy Berman Jackson on 11/1/12. (lcabj1) (Entered: 11/01/2012)
Set/Reset Deadlines: Joint Status Report due by 12/14/2012. (jth) (Entered: 11/01/2012)
7 STATUS REPORT by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 12/05/2012)
MINUTE ORDER. It is ORDERED that on or before January 4, 2013, defendant is to file a status report that addresses the status of production, and it is further ORDERED that on or before January 18, 2013, the parties are to file a joint status report indicating whether plaintiff is challenging any withholdings and if so, a proposed briefing schedule for dispositive motions. Signed by Judge Amy Berman Jackson on 12/6/12. (DMK) (Entered: 12/06/2012)
Set/Reset Deadlines: Defendant to file a status report by 1/4/2013 that addresses the status of production. The parties are directed to file a joint status report by 1/18/2013 indicating whether plaintiff is challenging any withholdings and if so, a proposed briefing schedule for the filing of dispositive motions. (jth) (Entered: 12/06/2012)

Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 3 of 8

01/04/2013 01/18/2013 01/22/2013
04/01/2013
04/24/2013 04/24/2013 04/25/2013 06/05/2013 06/10/2013 06/10/2013 07/01/2013 07/09/2013

8 STATUS REPORT by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 01/04/2013)
9 STATUS REPORT and Proposed Briefing Schedule by DEPARTMENT OF JUSTICE, ELECTRONIC FRONTIER FOUNDATION. (Sobel, David) (Entered: 01/18/2013)
10 SCHEDULING ORDER:Defendant's motion for summary judgment will be due on or before April 1, 2013; Plaintiff's combined opposition to the motion for summary judgment and cross−motion for summary judgment, if any, will be due on or before May 3, 2013; Defendant's combined reply in support of its motion for summary judgment and opposition to plaintiff's cross−motion, if any, will be due on or before May 24, 2013; Plaintiff's reply in support of its cross−motion, if any, will be due on or before June 7, 2013. (SEE ORDER FOR COMPLETE DETAILS). Signed by Judge Amy Berman Jackson on 1/22/13. (lcabj1) (Entered: 01/22/2013)
11 WITHDRAWN PURSUANT TO NOTICE FILED 09/05/13.....MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum of Points and Authorities, # 2 Statement of Material Facts not in Dispute, # 3 Bradley Declaration, # 4 Janosek Declaration)(Coleman Snead, Jacqueline) Modified on 9/6/2013 (jth). (Entered: 04/01/2013)
12 Unopposed MOTION to Stay Proceedings by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 04/24/2013)
MINUTE ORDER granting 12 Motion to Stay. It is ORDERED that the parties file a joint status report on June 5, 2013. Signed by Judge Amy Berman Jackson on 4/24/13. (lcabj1) (Entered: 04/24/2013)
Set/Reset Deadline: Joint Status Report due on 6/5/2013. (jth) (Entered: 04/25/2013)
13 STATUS REPORT (JOINT) by ELECTRONIC FRONTIER FOUNDATION. (Sobel, David) (Entered: 06/05/2013)
MINUTE ORDER. In light of the joint status report filed on June 5, 2013, it is ORDERED that the parties file another joint status report on July 1, 2013. Signed by Judge Amy Berman Jackson on 6/10/13. (lcabj1) (Entered: 06/10/2013)
Set/Reset Deadlines: Joint Status Report due by 7/1/2013. (jth) (Entered: 06/10/2013)
14 STATUS REPORT of the Parties by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 07/01/2013)
MINUTE ORDER LIFTING STAY. In light of the status report filed by the parties on July 1, 2013 [Dkt. # 14], it is ORDERED that the stay on this action is lifted. It is FURTHER ORDERED that by August 12, 2013, defendant must assess its position and make any additional disclosures it intends to make in light of the developments described in the July 1 status report. It is FURTHER ORDERED that defendant shall file a notice with the Court on August 12, 2013, indicating whether any other materials were provided to the plaintiff in whole or in part, and stating whether it intends to rely upon the Motion for Summary Judgment filed on April 1, 2013 [Dkt. # 11], or if it intends to withdraw that motion and substitute a new motion for summary judgment. If the defendant intends to file a new motion, it will be due on or before August 26, 2013; plaintiff's opposition and combined cross−motion for summary judgment, if any, will be due on or before September 23, 2013; defendant's reply in support of its motion and combined opposition to plaintiff's cross−motion, if any, will be due on or before October 14, 2013; and plaintiff's reply in support of its cross−motion, if any, will be due on or before October 28, 2013. If defendant states on August 12 that the original Motion for Summary Judgment is still the operative document, plaintiff's opposition and combined cross−motion for summary judgment, if any, will be due on or before September 9, 2013; defendant's reply in support of its motion and combined opposition to plaintiff's cross−motion, if any, will be due on or before September 30, 2013; and plaintiff's reply in support of its cross−motion, if any, will be due on or before October 14, 2013. Signed by Judge Amy Berman Jackson on 7/9/13. (lcabj1) (Entered: 07/09/2013)

Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 4 of 8

07/10/2013
07/10/2013 08/09/2013 08/09/2013
08/12/2013 09/04/2013 09/05/2013 10/02/2013 10/02/2013 10/03/2013 10/03/2013
10/18/2013 10/18/2013

Set/Reset Deadlines: Defendant to file a notice with the Court on 8/12/2013, indicating whether any other materials were provided to the plaintiff in whole or in part, and stating whether it intends to rely upon the Motion for Summary Judgment filed on 4/1/2013 [Dkt. # 11], or if it intends to withdraw that motion and substitute a new motion for summary judgment. If the defendant intends to file a new motion, it will be due on or before 8/26/2013. (jth) (Entered: 07/10/2013)
Set/Reset Deadlines: If defendant's notice of 8/12/2013 states its intention to withdraw the Motion for Summary Judgment filed 4/1/2013 [Dkt. #11], and substitute a new Motion for Summary Judgment − reset the remaining briefing schedule deadlines established in the minute order issued 7/9/2013. (jth) (Entered: 07/10/2013)
15 Unopposed MOTION for Extension of Time to Release Documents to Plaintiff; Status Report by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bressler, Steven) (Entered: 08/09/2013)
MINUTE ORDER granting 15 Unopposed Motion for Extension of Time. In light of defendant's consolidated statute report and motion for extension of time filed on this day, it is ORDERED that defendant shall produce further information to plaintiff by August 21, 2013. It is further ORDERED that defendant's renewed motion for summary judgment, if any, is due by September 4, 2013, plaintiff's opposition and combined cross−motion for summary judgment, if any, is due by October 2, 2013, defendant's reply in support of its motion and combined opposition to plaintiff's cross−motion, if any, is due by October 23, 2013, and plaintiff's reply in support of its cross−motion, if any, is due by November 6, 2013. Signed by Judge Amy Berman Jackson on 8/9/13. (DMK) (Entered: 08/09/2013)
Set/Reset Deadlines: Defendant shall produce additional information to Plaintiff by 8/21/2013. Defendant's Renewed Motion for Summary Judgment is due by 9/4/2013, Plaintiff's Opposition and Cross−Motion is due by 10/2/2013. Defendant's Reply and Opposition to the Cross−Motion is due by 10/23/2013. Plaintiff's reply in support of the Cross−Motion is due by 11/6/2013. (jth) (Entered: 08/12/2013)
16 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Hudson Declaration, # 3 Sherman Declaration, # 4 Statement of Material Facts not in Dispute)(Coleman Snead, Jacqueline) (Entered: 09/04/2013)
17 NOTICE OF WITHDRAWAL OF MOTION by DEPARTMENT OF JUSTICE re 11 MOTION for Summary Judgment (Coleman Snead, Jacqueline) (Entered: 09/05/2013)
18 Memorandum in opposition to re 16 MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Statement of Facts (Response), # 6 Text of Proposed Order)(Sobel, David) (Entered: 10/02/2013)
19 MOTION for Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Statement of Facts, # 6 Text of Proposed Order)(Sobel, David) (Entered: 10/02/2013)
20 Unopposed MOTION to Stay Litigation in Light of Lapse in Federal Government Appropriations by DEPARTMENT OF JUSTICE (Coleman Snead, Jacqueline) (Entered: 10/03/2013)
MINUTE ORDER granting 20 Motion to Stay. It is ORDERED that the current briefing schedule for dispositive motions is vacated. It is FURTHER ORDERED that the parties shall file a joint status report with a proposed revised dispositive motions briefing schedule within two business days of the resumption of operations at the Department of Justice. Signed by Judge Amy Berman Jackson on 10/3/2013. (lcabj1) (Entered: 10/03/2013)
21 STATUS REPORT of the Parties by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 10/18/2013)
MINUTE ORDER. It is ORDERED that the stay in this case is lifted in light of the resumption of government activities. Pursuant to the parties' joint status report, it is FURTHER ORDERED that Defendant's Opposition to Plaintiff's Cross−Motion for Summary Judgment/Reply in Support of Defendant's Renewed Motion for Summary

Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 5 of 8

10/21/2013
11/07/2013 11/07/2013 11/20/2013 11/20/2013
11/21/2013 12/06/2013 03/25/2014
03/25/2014 04/04/2014 05/28/2014 06/11/2014

Judgment is now due on or before November 7, 2013, and Plaintiff's Reply in Support of Plaintiff's Cross−Motion for Summary Judgment is now due on or before November 21, 2013. Signed by Judge Amy Berman Jackson on 10/18/2013. (lcabj1) (Entered: 10/18/2013)
Set/Reset Deadlines: Defendant's Reply in support of their Motion for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment is due by 11/7/2013, Plaintiff's Reply in Support of it's Cross−Motion for Summary Judgment is now due by 11/21/2013. (jth) (Entered: 10/21/2013)
22 REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 11/07/2013)
23 Memorandum in opposition to re 19 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Counterstatement of Material Facts)(Coleman Snead, Jacqueline) (Entered: 11/07/2013)
24 Unopposed MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Summary Judgment by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 11/20/2013)
MINUTE ORDER granting 24 Unopposed Motion for Extension of Time to File Response/Reply. It is ORDERED that plaintiff's reply in support of its cross−motion for summary judgment is now due on or before December 6, 2013. Signed by Judge Amy Berman Jackson on 11/20/2013. (lcabj1) (Entered: 11/20/2013)
Set/Reset Deadlines: Plaintiff's Reply in support of its Cross−Motion for Summary Judgment is now due by 12/6/2013. (jth) (Entered: 11/21/2013)
25 REPLY to opposition to motion re 19 MOTION for Summary Judgment filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sobel, David) (Entered: 12/06/2013)
MINUTE ORDER. Defendant is directed to deliver the October 3, 2011 FISC Opinion and Order withheld under 5 U.S.C. § 552(b)(1) and (b)(3) to chambers by Friday, April 4, 2014, for in camera inspection to assist the Court in making a responsible de novo determination. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Signed by Judge Amy Berman Jackson on 3/25/2014. (lcabj1) (Entered: 03/25/2014)
Set/Reset Deadline: Defendant's In−Camera Submission is due by 4/4/2014. (jth) (Entered: 03/25/2014)
26 NOTICE of Complance with Minute Order by DEPARTMENT OF JUSTICE re Order, (Coleman Snead, Jacqueline) (Entered: 04/04/2014)
27 NOTICE to the Court by DEPARTMENT OF JUSTICE (Coleman Snead, Jacqueline) (Entered: 05/28/2014)
MINUTE ORDER. On March 25, 2014, the Court ordered defendant to provide the October 2011 FISC Opinion for in camera review. The Court has completed that review but needs further information from defendant regarding certain redactions. First, with respect to the many redactions of docket information, the Court notes that paragraph 30 of the Declaration of Jennifer L. Hudson [Dkt. # 16−2] states that the redactions contain dates and targets, and therefore disclosure would threaten national security. But many of the redactions are of docket numbers or dates only, so it is ORDERED that defendant shall provide further explanation as to why that sort of purely numerical information cannot be disclosed as long as any reference to particular targets remain classified. Second, it is FURTHER ORDERED that defendant shall notify the Court: (1) why, in light of the unredacted paragraph that begins on page three, any reference to the number of previous acquisitions in the opinion needs to be withheld; (2) why the material in the 10th line of the first paragraph in section I.A on page 3 is classified, taking into consideration the rest of the sentence that has already been disclosed and what is disclosed in footnote 17 on page 18; (3) the reason why the end of footnote 9 is redacted; (4) the reason for the redaction of the reference that is not a docket number within lines 2−4 at the top of page 16; (5) the reason for the redactions other than docket numbers on page 23; (6) the reason for the redaction on page 24; (7) the reason for the redaction on page 25; (8) the reason for the redaction in footnote 49 on page 54; (9) the reason for the redaction in the 5th line of the first

Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 6 of 8

06/12/2014 06/20/2014 06/23/2014
06/24/2014 07/11/2014 07/18/2014 07/18/2014 07/18/2014
07/18/2014 07/25/2014 07/25/2014
07/25/2014 08/01/2014 09/04/2014 09/04/2014

paragraph under section B; (10) the reason for the redacted lines at the bottom of page 21 and onto page 22; (11) the reason for the redactions, other than the docket numbers, in the first full paragraph on page 22 beginning with "Furthermore;" and (12) the reason for the reactions on page 73. This information shall be provided on or before July 2, 2014. Signed by Judge Amy Berman Jackson on 6/11/2014. (lcabj1) (Entered: 06/11/2014)
Set/Reset Deadlines: Information pursuant to the Court's Minute Order issued 6/11/2014 shall be provided by 7/2/2014. (jth) (Entered: 06/12/2014)
28 Unopposed MOTION for Extension of Time to File Response/Reply to Minute Order of June 11, 2014 by DEPARTMENT OF JUSTICE (Coleman Snead, Jacqueline) (Entered: 06/20/2014)
MINUTE ORDER granting 28 Unopposed Motion for Extension of Time to File Response. It is ORDERED that defendant's response to the Court's Minute Order of June 11, 2014 is due by July 11, 2014. Signed by Judge Amy Berman Jackson on 6/23/14. (DMK) (Entered: 06/23/2014)
Set/Reset Deadlines: Defendant's Response to the Court's Minute Order of 6/11/2014 is now due by 7/11/2014. (jth) (Entered: 06/24/2014)
29 NOTICE re Minute Order of June 11, 2014 by DEPARTMENT OF JUSTICE re Order,,,,,,,, (Coleman Snead, Jacqueline) (Entered: 07/11/2014)
30 ORDER granting 16 Defendant's Motion for Summary Judgment; denying 19 Plaintiff's Motion for Summary Judgment. (SEE ORDER FOR DETAIL). Signed by Judge Amy Berman Jackson on 7/18/2014. (lcabj1) (Entered: 07/18/2014)
31 MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 7/18/2014. (lcabj1) (Entered: 07/18/2014)
MINUTE ORDER. It is ORDERED that defendant shall file on the public docket a redacted version of the supplemental Hudson Declaration that it provided ex parte to this Court in response to the June 11, 2014 Minute Order or an explanation for why it cannot do so on or before August 1, 2014. Signed by Judge Amy Berman Jackson on 7/18/2014. (lcabj1) (Entered: 07/18/2014)
Set/Reset Deadlines: Defendant to file on the public docket a redacted version of the Supplemental Hudson Declaration or, file an explanation for why it can't do so by 8/1/2014. (jth) (Entered: 07/18/2014)
32 Consent MOTION for Extension of Time to File Petition for an Award of Attorneys' Fees and Costs by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 07/25/2014)
MINUTE ORDER granting 32 Consent Motion for Extension of Time to File a Motion for an Award of Attorney's Fees and Costs. It is ORDERED that plaintiff's time in which to file a motion for an award ofattorney's fees and costs is extended until September 5, 2014. Signed by Judge Amy Berman Jackson on 7/25/2014. (lcabj1) (Entered: 07/25/2014)
Set/Reset Deadlines: The time in which plaintiff may file a Motion for an Award of Attorney's Fees and Costs is extended until 9/5/2014. (jth) (Entered: 07/25/2014)
33 RESPONSE TO ORDER OF THE COURT re Order, Redacted Supplemental Hudson Declaration filed by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 08/01/2014)
34 Consent MOTION for Extension of Time to File Petition for an Award of Attorneys' Fees and Costs by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 09/04/2014)
MINUTE ORDER granting 34 Consent Motion for Extension of Time to File Petition for an Award of Attorneys' Fees and Costs. In light of the consent motion, it is ORDERED that any motion for attorneys' fees and costs is now due on or before September 26, 2104. Signed by Judge Amy Berman Jackson on 9/4/2014. (lcabj1) (Entered: 09/04/2014)

Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 7 of 8

09/05/2014 09/10/2014 09/23/2014 09/24/2014
09/24/2014 10/10/2014 10/10/2014
10/10/2014 11/07/2014 12/08/2014 12/22/2014 02/23/2015 08/21/2015 09/03/2015
09/04/2015 09/10/2015

Set/Reset Deadlines: The time in which plaintiff may file any Motion for an Award of Attorney's Fees and Costs is extended until 9/26/2014. (jth) (Entered: 09/05/2014)
35 NOTICE of Change of Address by David L. Sobel (Sobel, David) (Entered: 09/10/2014)
36 Consent MOTION to Stay re Order on Motion for Extension of Time to File, by DEPARTMENT OF JUSTICE (Coleman Snead, Jacqueline) (Entered: 09/23/2014)
MINUTE ORDER granting 36 Consent Motion to Stay the Court's September 4 Order on the Motion for Extension of Time to File a Petition for Award of Attorneys' Fees and Costs. In light of the consent motion, it is ORDERED that the deadline to file a petition for an award of attorneys' fees and costs is stayed. It is FURTHER ORDERED that the parties shall file a joint status report or proposed briefing schedule on or before October 10, 2014, if the issue has not been resolved by that date. Signed by Judge Amy Berman Jackson on 9/24/2014. (lcabj1) (Entered: 09/24/2014)
Set/Reset Deadlines: If the issue has not been resolved by that date, the parties shall file a Joint Status Report or Proposed Briefing Schedule by 10/10/2014. (jth) (Entered: 09/24/2014)
37 RESPONSE TO ORDER OF THE COURT re Order on Motion to Stay,, filed by DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 10/10/2014)
MINUTE ORDER. In light of the jointly proposed schedule submitted by the parties pursuant to the Court's September 24, 2014 Minute Order, it is ORDERED that: Plaintiff's motion for fees is due on or before November 7, 2014. Defendant's opposition is due on or before December 8, 2014. Plaintiff's reply is due on or before December 24, 2014. Signed by Judge Amy Berman Jackson on 10/10/2014. (lcabj2) (Entered: 10/10/2014)
Set/Reset Deadlines: Plaintiff's Motion for Fees is due by 11/7/2014; Defendant's Opposition is due by 12/8/2014; Plaintiff's reply is due by 12/24/2014. (jth) (Entered: 10/10/2014)
38 MOTION for Attorney Fees and Costs by ELECTRONIC FRONTIER FOUNDATION (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Sobel, David) (Entered: 11/07/2014)
39 Memorandum in opposition to re 38 MOTION for Attorney Fees and Costs filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Supplemental Hudson Declaration, # 2 Kim Declaration, # 3 Malowane Declaration)(Coleman Snead, Jacqueline) (Entered: 12/08/2014)
40 REPLY to opposition to motion re 38 MOTION for Attorney Fees and Costs filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Declaration of David L. Sobel (supplemental), # 5 Declaration of Mark Rumold (supplemental))(Sobel, David) (Entered: 12/22/2014)
CASE REFERRED directly to Magistrate Judge G. Michael Harvey for a motion for attorney's fees and costs. (gt, ) (Entered: 02/23/2015)
41 NOTICE of Appearance by Rodney Patton on behalf of DEPARTMENT OF JUSTICE (Patton, Rodney) (Entered: 08/21/2015)
MINUTE ORDER: It is ORDERED that the parties will provide supplemental briefing regarding the impact, if any, of Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015), on plaintiffs request for attorneys fees in this case. Plaintiffs brief is due on or before September 10, 2015; defendants response is due on or before September 17, 2015; and plaintiffs reply, if any, is due on or before September 22, 2015. Signed by Magistrate Judge G. Michael Harvey on 09/03/2015. (lcgmh1) (Entered: 09/03/2015)
Set/Reset Deadlines: Plaintiffs Brief due by 9/10/2015. Defendants Responses due by 9/17/2015. Plaintiffs Replies due by 9/22/2015. (ldc) (Entered: 09/04/2015)
42 MEMORANDUM re 38 MOTION for Attorney Fees and Costs filed by ELECTRONIC FRONTIER FOUNDATION by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A (Colapinto Declaration), # 2 Exhibit B (Davidson Declaration), # 3 Exhibit C (Real Rates Report excerpts))(Sobel, David)

Case: 1:12-cv-1441 As of: 12/11/2016 01:19 PM EST 8 of 8

09/17/2015 09/17/2015 09/17/2015
09/17/2015 09/18/2015 09/23/2015 09/30/2015 09/30/2015 10/08/2015 10/09/2015
10/13/2015 11/16/2015

(Entered: 09/10/2015)
43 NOTICE of Appearance by Deepthy Kishore on behalf of DEPARTMENT OF JUSTICE (Kishore, Deepthy) (Entered: 09/17/2015)
44 MOTION for Extension of Time to File Response/Reply as to 38 MOTION for Attorney Fees and Costs by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Kishore, Deepthy) (Entered: 09/17/2015)
MINUTE ORDER granting in part and denying in part 44 Motion for Extension of Time to File Response/Reply. Upon consideration of defendant's motion for an extension of time, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART. Defendant's response to plaintiff's supplemental brief is due on or before September 18, 2015. Plaintiff's reply, if any, is due on or before September 23, 2015. No further extensions of time will be granted to either party to submit the supplemental briefing ordered on September 3, 2015. Signed by Magistrate Judge G. Michael Harvey on 09/17/2015. (lcgmh1) (Entered: 09/17/2015)
Set/Reset Deadlines: Defendant's response to plaintiff's supplemental brief is due 09/18/15. Plaintiff's reply due 09/23/15. (ldc) (Entered: 09/17/2015)
45 SUPPLEMENTAL MEMORANDUM to filed by DEPARTMENT OF JUSTICE. (Kishore, Deepthy) (Entered: 09/18/2015)
46 SUPPLEMENTAL MEMORANDUM to re 38 MOTION for Attorney Fees and Costs (Reply) filed by ELECTRONIC FRONTIER FOUNDATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sobel, David) (Entered: 09/23/2015)
47 MEMORANDUM OPINION granting in part and denying in part 38 Motion for Attorney Fees. Signed by Magistrate Judge G. Michael Harvey on 09/30/2015. (lcgmh1) (Entered: 09/30/2015)
48 ORDER granting in part and denying in part 38 MOTION for Attorney Fees and Costs filed by ELECTRONIC FRONTIER FOUNDATION. Signed by Magistrate Judge G. Michael Harvey on 09/30/2015. (lcgmh1) (Entered: 09/30/2015)
49 Consent MOTION for Extension of Time to File Objections to Magistrate Judge's Memorandum Opinion on Attorney's Fees and Costs by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 10/08/2015)
MINUTE ORDER granting 49 Motion for Extension of Time. The parties shall have until November 16, 2015, to file any objections to the Magistrate Judge's 47 Memorandum Opinion and 48 Order granting in part and denying in part plaintiff's motion for attorneys' fees and costs. Signed by Judge Amy Berman Jackson on 10/9/2015. (lcabj2) (Entered: 10/09/2015)
Set/Reset Deadlines: The parties shall have until 11/16/2015, to file any objections to the Magistrate Judge's 47 Memorandum Opinion and 48 Order granting in part and denying in part plaintiff's motion for attorneys' fees and costs. (jth) (Entered: 10/13/2015)
50 NOTICE that Defendant Will Not File Objections to the Magistrate Judge's Decision on Attorneys' Fees and Costs by DEPARTMENT OF JUSTICE (Patton, Rodney) (Entered: 11/16/2015)