1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEBBIE COFFEY, Plaintiff,

v. Civil Action No. 16-508 (JEB) BUREAU OF LAND MANAGEMENT,
Defendant.

MEMORANDUM OPINION Although the parties to this Free dom of Information Act litigat ion may have declared an armistice concerning the rele ase of documents and the refunding of search fees, no final peace treaty has been signed. Indee d, the new battleground is attorn ey fees. While the Government does not contest Plaintiff Debbi e Coffey’s eligibility or entit lement to such fees − or the hourly rate sought − it believes that t he number of hours listed is bo th insufficiently detailed and excessive. As the Court concurs in part, it will grant Plainti ff’s Motion for Attorney Fees, but reduce the amount sought from $125,541 to $69,019. I. Background Since the prior Opinion details the full background of this sui t, see Coffey v. Bureau of Land Mgmt., 249 F. Supp. 3d 488, 491-94 (D.D.C. 2017), the Cour t will recount here only the facts relevant to the pending M otion. Plaintiff filed her Comp laint in March 2016, alleging that the Bureau of Land Management had not adequately responded to h er FOIA requests for information related to its Wil d Horse and Burro Program. See E CF No. 1. In subsequently ruling on the parties’ cross-moti ons for summary judgment, the Court determined in April 2017 that BLM had not conducted a suffi cient search for documents. Coffey, 249 F. Supp. 3d at 499-2 500. The Court later issued a M inute Order on May 5 of that ye ar requiring Defendant to “conduct a new search and release any non-exempt responsive rec ords on or before June 28, 2017,” which deadline was subse quently extended to July 26, 201 7. See Minute Order of June 29, 2017. Five months later, after Coffey had reviewed the rec ords ultimately released, the parties submitted a Joint Status Report indicati ng that “all su bstantive issues of this FOIA action have been fully resolved.” E CF No. 28 at 1. That left only th e question of fees. Plaintiff seeks a total of $125,541, which includes f ees for the underlying litig ation, as well as “fees on fees” for the briefing of he r fee petition. II. Legal Standard This Court has previously explaine d the legal standard at play in FOIA fee litigation: FOIA provides that courts “may assess against the United States reasonable attorney fees and othe r litigation costs reasonably incurred in any case . . . in which the complainant has substan tially prevailed.” 5 U.S.C. § 552(a )(4)(E)(i); see Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 524 (D.C. Cir. 2011). “This language naturally divides the a ttorney-fee inqui ry into two pr ongs, which our case law has long described as fee ‘eligibility’ and fee ‘entitlement.’” Brayton, 641 F.3d at 524 (citing Judicial Watc h, Inc. v. Dep’t of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). The Court, therefore, first decides whether [Plaintiff] AIC has “substantially prevailed” and is therefore “eligible” to receiv e fees. See id.; Judicial Watch, 470 F .3d at 368; Negley v. FBI, 818 F. Supp. 2d 69, 73 (D.D.C. Oct. 11, 201 1). If so, the Court must then “consider[] a variety of factors” to determine whether it is “e ntitled” to fees. Brayton, 641 F.3d at 524-25; Judicial Watch, 470 F.3d at 369; Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008). Put another way, the Court will first determine whether AIC may receive fees; if so, it will then decide whether it should rece ive them. See Brayton, 641 F.3d at 524. Finally, upon determining that A IC is both eligible and entitled to fees, the Court must “analyze whether the amount of the fee request is reasonable.” Elec. Privacy In fo. Ctr. v. U.S. Dep’t of Homeland Sec . (EPIC I), 811 F. Supp. 2d 216, 2 37 (D.D.C. 2011).3 Am. Immigration Council v. U.S. D ep’t of Homeland Security, 82 F. Supp. 3d 396, 402 (D.D.C. 2015). III. Analysis Fortunately for the reader, the Court need spend little time on most of these issues, as the parties do not dispute them. Mor e specifically, BLM concedes t hat Coffey is both eligible and entitled to obtai n fees here. See Opp. at 1. In moving next t o the amount sought, the Court acknowledges that the “usual m ethod of calculating reasonable a ttorney’s fees is to multiply the hours reasonably expended in the litigation by a reasonable hou rly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel and Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania v. D elaware Valley Citizens’ Co uncil for Clean Air, 478 U.S. 546, 564 (1986)). Once again, amity pr evails on the issue of t he appropriate hourly fee, as the Government does not challenge the rates Coffey submits. See EC F No. 35 (Notice) at 1. What is left? The question of time . Or, to put it less philosophic ally, the propriety of the number of hours expended. In asserting that Plaintiff has overreached here, BLM cites sev eral specific points, concluding with a broader argument that much of the time spent was excessive. The Court, too, will start with the specific and move to the general. Defendant first complains of ins ufficiently detailed time recor ds and, more specifically, several examples of block billing. See Opp. at 10-11. While b lock billing is certainly disfavored, the three selected e ntries deal with minimal time p eriods (.2, .2, and .6 hours) and typically conflate but two tasks ; as a result, the Court “decli nes . . . to engage in the kind of nitpicking invited by [such] smalle r-scale objections.” AIC, 8 2 F. Supp. 3d at 411 (citation and internal quotation marks omitted).4 BLM next points to certain ent ries that do not seem appropriate – for example, ones that describe tasks that relate to f ilings that occurred earlier tha n the entry – and thus call into question the contemporaneity of counsel’s timekeeping. See Opp . at 12-13. In the Second Supplemental Declaration of C. Pet er Sorensen, attached to Plai ntiff’s Reply, Coffey’s counsel acknowledges some inadvertent e rrors and deducts them from a re calculation of the fees sought. See ECF No. 37-1 at 3-5. In fact, t he amount claimed for the l itigation and the initial fees Motion dropped by about $9,000 from approximately $115,000 to $ 106,000. The Court does not infer from these isolated mistak es that counsel’s timekeeping w as generally not contemporaneous. On a related note, the Government contends that counsel cannot recover fees for tasks related to timekeeping itsel f. See Opp. at 14 (citing EPIC v. U.S. Dep’t of Homeland Security, 218 F. Supp. 3d 27, 52 (D.D.C. 2016) (“EPIC had an ongoing duty throughout the litigation to maintain an accurate record of its time, which means these acti vities were eith er duplicative of work already performed or enlarge d because it was performed so late in the litigation.”)). As Coffey never responds, the Court could treat the point as conce ded. Even absent such concession, the Court agrees t hat a reduction i n the timekeepin g entries is appropriate. Some have already been adjusted to zero, but the Court will deduct a further $450, which is the approximate amount still remaining. See ECF Nos. 37-4, -5, -6. BLM also believes that 11.9 hours of work toward settlement of the fees dispute should be deducted on the ground that Pl aintiff did not substantially prevail on this task since settlement was not achieved. See Opp. at 14. This seems too narrow a cha racterization since Plaintiff does ultimately prevail by obtaining fees here. In addition, courts should not discourage parties from attempting to settle fees issues before requiring their interve ntion. See EPIC v. Dep’t of5 Homeland Security (EPIC II), 197 F. Supp. 3d 290, 297 (D.D.C. 2 016) (In FOIA fees litigation, the “Court encourages parties to resolve their differences with out motions.”). This amount, consequently, will not be stricken. Another Government target here are the fees sought for an exper t witness hired for the fees litigation. See Opp. at 21. P laintiff’s counsel paid Mat t Kenna to review their billing records and to opine on their reas onableness. See ECF No. 29-1 6 (Declaration of Matt Kenna). Yet this is not a subject be yond the Court’s ken; indeed, it ro utinely determines the reasonableness of fees in all types of litigation. Paying anot her attorney to review Plaintiff’s attorneys’ records for reasona bleness is an unnecessary use of funds and one the Court will not recompense. As a result, $1970 in e xpert fees will be deducted

. Next up is time spent reviewing documents released by BLM. See Opp. at 18, 16 n.7. As this Court held in another case, such time is not compensabl e. See AIC, 82 F. Supp. 3d at 412 (“Plaintiff would have had to e xpend this time had CBP time ly produced the documents without litigation; the cost of reviewing documents produced in response to a FOIA request – to see if they are responsive or for other reasons – is simply the price of making such a request. The Court will thus deduct these charges as well.”). The sum o f $2,772 will not be compensated. Last and more broadly, BLM argues that Plaintiff’s counsel has submitted excessive hours for the drafting of their s ubstantive motions here, inclu ding the one seeking fees. See Opp. at 18-20. The Court agrees. For example, almost 40 hours to p repare for and draft an 8-page Reply to the Fees Motion is easily too much (even with supporti ng materials), see ECF No. 37-6, as is 60+ hours to prepare for and draft her 12-page merits Rep ly, much of which consisted of setting out legal standards. See ECF No. 37-4 (time records) a t 15-18; Opp. at 19; ECF No. 20-1 (Reply itself). The hours on the other written pleadings appea r similarly inflated for the tasks6 accomplished. As the Court is loath to “‘conduct a minute eval uation of each phase or category of counsel’s work,’” Copeland v. Marshall, 641 F.2d 880, 903 (D .C. Cir. 1980) (quoting Lindy Bros. Builders Inc. of Philadelphi a v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976)), it believes a general discount on the fees sought for the motions of 50% is appropriate. The Court arrives at this figure because it deter mines that the preparation of the motions could have been accomplished in approximately half the time listed. Cf. EPIC II, 197 F. Supp. 3d at 296 (35% overall disc ount for overstaffing). That means the following sums s hould be deducted: (1) Initial m erits motion: 50% of ($32,033 – $2,772, which was already deducted above) = $14,630; (2) Merits rep ly: 50% of $24,058 = $12,029; (3) Fees motion: 50% of ($30,536 - $450, whi ch was already deducted above) = $15,043; and (4) Fees reply: 50% of $19,256 = $9,628. Total deducted = $51,330.
IV. Conclusion The final calculation, accordingl y, is as follows: Plaintiff se eks a grand total of $125,541, and the Court has deducted $450, $1970, $2,772, and $51,330 = $ 56,522. The amount awarded is thus $69,019. A separate Order so stating shall issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: June 14, 2018