UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ELECTRONIC PRIVACY 

INFORMATION CENTER 

Plaintiff, 

v. 

THE UNITED STATES DEPARTMENT 

OF HOMELAND SECURITY 

Defendant. 

Civil Action No. 12-0333 (GK} 

MEMORANDUM OPINION 

Plaintiff Electronic Privacy Information Center ("Plaintiff" 

or "EPIC") brings this action against Defendant the United States 

Department of Homeland Security ("the Government" or "DHS") under 

the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff 

sought records concerning the Defense Industrial Base Cyber Pilot 

("DIB Cyber Pilot"),· a cyber-security pilot program jointly 

conducted by the United States Department of Defense ("DoD") and 

Defendant DHS. Memorandum in Support of Defendant's Motion for 

Summary Judgment ("Def.'s Mot. Summ. J.") at 2 [Dkt. No. 53-1]. 

The program "aim [ed] to protect U.S. critical 

infrastructure[,] [and] furnished classified threat and 

technical information to voluntarily participating [] companies or 

their Commercial Service Providers[]." Id. EPIC, citing concerns 

from the Department of Justice that the,program "[ran] afoul of 

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laws forbidding government surveillance of private Internet 

traffic [,] /1 filed a FOIA request with DHS seeking records to 

determine whether the DIB Cyber Pilot program complied with federal 

wiretap laws. Plaintiff's Memorandum of Points and Authorities in 

Opposition to Defendant's Motion for Summary Judgment and in 

Support of Plaintiff's Cross-Motion for Summary Judgment ("Pl.'s 

Mot. Summ. J. 11 ) at 2 [Dkt. No. 57-1]. Dissatisfied with DHS's 

response, EPIC initiated this lawsuit challenging the sufficiency 

of DHS's search and production. 

Thereafter, DHS conducted a search for records responsive to 

EPIC's request, produced documents to EPIC, and provided a Vaughn 

Index for all documents that were withheld in full or in part under 

one of FOIA' s several exemptions. 5 U.S. c. § 552 (b) ; . see also 

Defendant's Vaughn Index for Challenged Withholdings ("Vaughn 

Index") [Dkt. No. 53-4] . 

The Court held that DHS's search for records responsive to 

EPIC's FOIA request was sufficient and that the Government met its 

burden in justifying withholding documents under all but one 

relevant FOIA Exemption. Memorandum Opinion on Summary Judgment 

(Aug. 4, 2015) ("2015 Mem. Op.") at 16 [Dkt. No. 68]. The Court 

ordered DHS to submit a revised Vaughn Index to more fully explain 

the basis for withholding documents under FOIA Exemption 7(D), id. 

at 38, which it did on September 30, 2015. Notice of Filing of 

Supplemental, Revised Vaughn Index ("Supplemental Vaughn Index") 

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[Dkt. No. 73]. EPIC now seeks attorneys' fees under 5 U.S.C. § 

552(a) (4) (E). Memorandum of Points and Authorities in Support of 

Plaintiff's Motion for Attorneys' Fees and Costs ("Pl.' s Mot.") 

[Dkt. No. 81-1]. 

I. BACKGROUND 

A. FOIA 

The Freedom of Information Act ("FOIA"), 5 U.S.C § 552, was 

enacted by Congress "to ensure an informed citizenry, vital to the 

functioning of a de~ocratic society." Critical Mass Energy Project 

v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992), 

cert. denied, 507 U.S. 984 (1993) (citing Fed. Bureau of 

Investigations v. Abramson, 456 U.S. 615, 621 (1982)). 

When an agency receives a request for records, the agency 

must conduct a sufficient search for records within the scope of 

the request. 5 U.S.C. § 552(a) (3) (A). The agency then must furnish 

the information in a timely manner, unless the information is 

precluded from disclosure by one of FOIA' s nine exemptions. § 

552(b). FOIA's goal is "broad disclosure," and the exemptions must 

be "given a narrow compass." Milner v. Dep't of Navy, 562 U.S. 

562, 571 (2011) (citing U.S. Dep't of Justice v. Tax Analysts, 492 

U.S. 136, 151 (1989)). 

The agency has the burden of justifying its withholding of a 

document under a FOIA exemption. Defenders of Wildlife v. U.S. 

Border Patrol, 623 F. Supp. 2d 83, 91 (D.D.C. 2009). To enable the 

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Court to determine whether the agency has met its burden, the 

agency must submit a "Vaughn Index" consisting of affidavits or 

declarations that "identif [y] the reasons why a particular 

exemption is relevant and correlate [e] those claims with the 

particular part of a withheld document to which they apply." Id. 

(citing Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 

146 (D.C. Cir. 2006)); see also Vaughn v. Rosen, 523 F.2d 1136 

(D.C. Cir. 1975). 

FOIA additionally provides for attorneys' fees in order to 

encourage FOIA suits that benefit the public and to compensate a 

complainant for enduring an agency's resistance to complying with 

FOIA. Barnard v. Dep't of Homeland Sec., 656 F. Supp. 2d 91, 97 

(D.D.C. 2009). FOIA provides that a court may award "reasonable 

attorney fees and other litigation costs reasonably incurred" in 

FOIA litigation in which the complainant has "substantially 

prevailed." 5 U.S.C. § 552 (a) (4) (E) (i). 

B. Factual Background 

1. EPIC'S FOIA Request and Appeal 

On July 26, 2011, EPIC submitted a FOIA request for documents 

to DHS, as well as requests for news media fee status and a fee 

waiver. Pl.'s Mot. Summ. J. at 2. EPIC requested records related 

to the DIB Cyber Pilot program "to monitor Internet traffic flowing 

through certain Internet Service Providers ("ISPs") from Internet 

users to a select number of defense contractors." Id. Specifically, 

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EPIC requested five categories of documents, with the fifth 

category described as, "[a]ny privacy impact assessment performed 

as part of the development" of the DIB Cyber Pilot program. Id. at 

3 . 

After receiving a FOIA request, an agency must make a 

"determination" within 20 working days as to whether to comply 

with the request. 5 U.S.C. § 552 (a) (6) (A) (i). A "determination" 

must include the scope of the documents that the agency will 

produce and withhold under FOIA exemptions. Citizens for 

Responsibility and Ethics in Washington v. Fed. Election Comm'n, 

711 F.3d 180, 186 (D.C. Cir. 2013). 

The following week, on August 3, 2011, DHS sent a letter to 

EPIC acknowledging receipt of its FOIA request. Def.'s Mot. Summ. 

J. at 2. DHS also indicated that it had referred the request to 

the DHS National Protection and Programs Directorate ("NPPD"). DHS 

Response at 1-2 [Dkt. No. 58-3]. DHS notified EPIC that no 

responsive documents had been found for the fifth category and 

informed EPIC of its right to appeal that determination. 

After receiving no further communication regarding its FOIA 

request, EPIC faxed an administrative appeal approximately 100 

days later on January 5, 2012, to the attention of NPPD FOIA 

Officer Lizzy Gary. EPIC Facsimile at 1-2 [Dkt. No. 57-4]. Under 

DHS' s FOIA regulations, an appeal must be made in writing and 

received by the Associate General Counsel of DHS within 60 days of 

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the date of the agency's "adverse determination." 6 C.F.R. § 

5.9(a) (1). EPIC appealed NPPD's failure to respond to categories 

1-4 of EPIC's FOIA request, but did not appeal DHS's determination 

that it lacked records for category 5 of the request. EPIC 

Facsimile at 2. In its Answer, DHS denied that the January 5, 

2012 facsimile constituted a FOIA appeal, Answer ' 26-28 [Dkt. No. 

7], and its timeliness. Defendant's Statement of Undisputed 

Material Facts in Support of its Motion for Summary Judgment 

("Def.'s Statement") '9-10 [Dkt. No. 62-4]. 

As already noted, the agency must make a determination as to 

any appeal within twenty days. 5 u.s.c. § 552 (a) (6) (A) (ii). An 

adverse determination by the Associate General Counsel will be the 

final action, 6 C.F.R. § 5.9(a) (2), and the decision "will be made 

in writing," 6 C.F.R. § 5.9(b). On January 23, 2012, a FOIA 

Specialist from NPPD contacted EPIC by telephone requesting 

additional information with respect to category one of EPIC'S FOIA 

request. Declaration of Amie Stepanovich ("First Stepanovich 

Deel.") ' 12 [Dkt. No. 18-1]. EPIC was unable to provide the agency 

with further information, and DHS informed EPIC that "DHS was 

processing the request," Id.; Def.'s Mot. Summ. J. at 3. 

Under FOIA, a person making a request for any records will be 

deemed to have exhausted administrative remedies if the agency 

fails to comply with the applicable time limit provisions under 

FOIA. 5 U.S.C. § 552 (a) (6) (C) (i). Arguing that NPPD failed to 

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comply with FOIA by neither responding to nor producing records 

for EPIC's FOIA request within the statutory timelines, EPIC filed 

its Complaint for Injunctive Relief on March 1, 2012. Complaint 

for Injunctive Relief ( "Compl.") ~ 4 [Dkt. No. l] . EPIC sought, 

inter alia, a court order compelling DHS to conduct a search for 

responsive records within five days and to produce documents within 

ten days, and attorneys' fees and other relief as "just and 

proper." Compl. ~ A-E. DHS filed its Answer on May 1, 2012. 

2. FOIA Litigation 

After DHS filed its Answer, the parties submitted a Joint 

Meet and Confer Statement, where they agreed that categories 1-4 

of EPIC's FOIA request served as the basis of the FOIA litigation, 

and that EPIC did not appeal DHS's determination that it lacked 

records responsive to category 5. Joint Meet and Confer Statement 

("Joint Statement") ~ 3 [Dkt. No. 11] . The parties also stated 

that DHS was conducting a "new search for records" responsive to 

categories 1-4 of EPIC' s FOIA request. Id. ~ 4. Although the 

parties agreed that the post-production issues would likely be the 

sufficiency of DHS's search, the appropriateness of the agency's 

withholdings, and attorneys' fees, they disagreed as to the 

appropriate production schedule. Id. ~ 5, 8. 

DHS proposed a two-stage search for responsive records, with 

stage one focused on gathering responsive records and stage two 

focused on reviewing the documents for relevance and potential 

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FOIA Exemptions. Id. ~ 6. While DHS proposed a June 27, 2012 

deadline for stage one, the agency was unable to propose a stage 

two deadline due to the need for inter-agency collaboration and 

the uncertainty as to timing. Id. Nonetheless, DHS stated it could 

complete its "first production" of responsive records on July 18, 

2012. Id. Plaintiff's proposed schedule consisted of "concrete 

deadlines," with DHS to complete production of documents and the 

Vaughn Index by August 24, 2012. Id. ~7. On May 24, 2012, the 

Court adopted the Plaintiff's proposed time line and issued a 

scheduling order for DHS to complete production of documents and 

the Vaughn Index by August 24, 2012. Order, May 24, 2012 

("Scheduling Order") [Dkt. No. 12] . 

After DHS identified approximately 10,000 pages of documents 

potentially responsive to EPIC'S FOIA request, it moved, on the 

last day of the August 24 deadline, to stay proceedings for ten 

days to enable the parties to narrow the scope of EPIC'S request. 

Defendant's Motion for a 10-Day Stay of Proceedings ("Def.'s Mot. 

Stay") at 2-3 [Dkt. No. 13]. DHS argued that the large volume of 

classified documents potentially responsive to EPIC's FOIA request 

would require significant review by DHS and other agencies. Id. at 

2. DHS noted its intention to move to modify the May 24, 2012 

Scheduling Order, but stated that how much additional time it would 

need would "depend on whether the parties are able to reach 

agreement on narrowing the scope of the request." Id. at 2-3. 

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After the Court granted DH.S's ten-day stay, DHS moved for a 

second ten-day stay. Defendant's Motion to Continue Stay of 

Proceedings for 10 Additional Days ("Def.'s Second Mot. Stay") at 

1 [Dkt. No. 14]. Although EPIC had narrowed its FOIA request on 

August 31, 2012, by excluding draft documents and by limiting the 

scope of request category three, DHS again sought more time to 

assess the impact of the narrowed request on the number of 

potentially responsive document pages. Id. at 2-3. In its second 

motion, DHS anticipated that it would need to further clarify and 

narrow EPIC'S FOIA request in light of the remaining volume of 

classified document pages. Id. 

EPIC opposed DHS' s second motion on the grounds that DHS 

failed to demonstrate "exceptional circumstances." Plaintiff's 

Opposition to Defendant's Motion for an Additional 10-Day Stay of 

Proceedings ("Pl. 's Opp'n Stay") at 3 [Dkt. No. 15]. EPIC noted 

that DHS had engaged in significant delays in seeking to narrow 

the scope of EPIC"s request: first, by waiting until the deadline 

for full production had arrived - August 24, 2012, three months 

after the May 24 Scheduling Order - before first contacting EPIC; 

and then, even after the first 10-day stay was granted, waiting 

almost another week to contact EPIC about further narrowing the 

FOIA request. Id. EPIC also argued that DHS "failed to provide a 

date certain by which time any documents might act~ally be 

produced." Id. at 5. 

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After the Court granted the second 10-day stay, Order (Sept. 

5, 2012) ("Sept. 5, 2012 Order") [Dkt. No. 16], DHS moved to modify 

the scheduling order. Defendant's Motion to Modify the Scheduling 

Order ("Def.'s Mot. to Modify") at 1 [Dkt. No. 17]. DHS stated 

that the new scope of EPIC's FOIA request only reduced the number 

of potentially responsive document pages from approxima.tely 10, 000 

to approximately 9,200, and that EPIC did not agree to further 

narrow the request. Def.'s Mot. to Modify at 1-2. After estimating 

that it would take 16 months to review the documents due to EPIC's 

broad request, the volume of documents, and the need for interagency collaboration, DHS proposed a modified schedule with 

January 17, 2014 as the final due date for all responsive 

documents. Id. at 3. 

EPIC opposed DHS's motion on the grounds that DHS failed to 

show good cause. Plaintiff's Opposition to Defendant's Motion to 

Modify the Scheduling Order and Cross-Motion for Entry of An Order 

to Show Cause Why Defendant Should Not Be Held in Contempt at 7 

[Dkt. No. 18] . EPIC argued that the delays were due to "preventable 

carelessness" on DHS's part, and that the agency had already been 

granted multiple stays despite its initial representation that it 

could produce documents on July 18, 2012. Id. at 4-5, 7. EPIC alo 

argued that DHS demonstrated bad faith in waiting until the day of 

the production deadline to ask EPIC to narrow its FOIA request, 

and that EPIC had agreed to narrow its request because of DHS's 

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representation that doing so would "facilitate production." Id. at 

1, 8. 

Although the Court permitted the scheduling order to be 

modified, it found DHS' s proposed final production deadline of 

January 17, 2014 as "far too far away." Order, Oct. 16, 2012 

("Modified Scheduling Order") at 2 [Dkt. No. 25] . The Court ordered 

DHS to fully review at least 2, 000 document pages per month, 

"producing to Plaintiff all responsive and unclassified 

documents," with complete production of documents by March 15, 

2013, and the Vaughn Index by May 1, 2013. Id. at 3. The Order 

also required DHS to submit a monthly report indicating how many 

document pages it produced to EPIC each month. Id. 

In a subsequent order, the Court eliminated the requirement 

that DHS produce documents on a rolling basis. Order, Jan. 8, 2013 

("Order on Plaintiff's Motion for Reconsideration") at 2-3 [Dkt. 

No. 3 9] Instead, DHS was ordered to produce all responsive 

documents by April 15, 2013, with the Vaughn Index due by June 1, 

2013. Id. DHS was still required to provide a monthly report and 

to review a minimum number of document pages per month, but this 

minimum was reduced to 1,500. Id. 

On April 15, 2013, DHS produced 1,276 pages of responsive 

documents to EPIC; 117 pages were released in their entirety and 

the remaining 1,159 pages were partially redacted pursuant to FOIA 

Exemptions. Second Declaration of James Holzer ("Second Holzer 

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•. 

Deel.") ~ 4 6 [Dkt. No. 53 -3] . After receiving several additional 

extensions from the Court, DHS provided Plaintiff with its 

preliminary Vaughn Index on June 22, 2013, one day after the June 

21, 2013, deadline. Pl.' s Mot. Summ. J. at 4. In total, DHS 

produced 1,386 pages of documents, some released in full and some 

redacted, and withheld 362 pages of documents in full under several 

of FOIA's exemptions. Def.'s Mot. Summ. J. at li see also 5 U.S.C. 

§ 552 (b) . 

EPIC filed its Motion for Summary Judgment on August 30, 2013, 

challenging the adequacy of the search performed by DHS in response 

to its FOIA request. Pl.'s Mot. Summ. J. at 6. EPIC also alleged 

that the Government improperly redacted and withheld documents 

under FOIA Exemptions 1, 3, 4, 5, and 7(D). Id. at 9, 12, 15, 22, 

24. The Court held that DHS conducted a sufficient search under 

FOIA and commended DHS' s "meticulous, organized, and thorough" 

initial search for responsive records. 2015 Mem. Op. at 15-16. The 

Court also found that the agency was justified in its withholding 

of documents under Exemptions 1, 3, 4, and 5. Id. at 21, 24, 32, 

33. 

The only claim on which the Court did not find in favor of 

Defendant was with regard to documents withheld under Exemption 

7(D). The Court held that the Vaughn Index was not sufficiently 

detailed to justify the Exemption 7D withholding, but permitted 

DHS to file a revised Vaughn Index. Id. at 33-38. Thus, the Court 

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granted the majority of the Government's Motion for Summary 

Judgment, and denied without prejudice only the portion relating 

to Exemption 7D. Id. at 37-38. The Court denied without prejudice 

EPIC's Motion for Summary Judgment with regard to Exemption 7D and 

denied the remainder of EPIC's Motion for Summary Judgment. Id. 

In sum, no portion of EPIC' s Motion for Summary Judgment was 

granted. DHS produced a revised Vaughn Index on September 30, 2015 

[Dkt. No. 74], which Plaintiff did not challenge. 

The filing of the revised Vaughn Index thereby resolved all 

issues in dispute except costs and attorneys' fees. Joint Status 

Report ("Joint Report") at 1 [Dkt. No. 76]. 

c. Procedural Background 

The parties now dispute EPIC'S Motion for Attorneys' Fees and 

Costs, filed on February 5, 2016. Pl.'s Mot. [Dkt. No. 81-1]. On 

March 9, 2016, DHS filed its Opposition. Defendant's Opposition 

to EPIC' s Motion for Attorney Fees and Costs ("Def.' s Opp' n") [Dkt. 

No. 86]. On March 22, 2016, EPIC filed its Reply. Reply in Support 

of Plaintiff's Motion for Attorneys' Fees and Costs ("Reply") [Dkt. 

No. 87]. 

II. STANDARD OF REVIEW 

A court may award "reasonable attorney fees and other 

litigation costs reasonably incurred" in the course of FOIA 

litigation in which the complainant has "substantially prevailed." 

5 U.S.C. § 552(a) (4) (E). Even though the award of attorneys' fees 

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and costs is within the Court's discretion, a complainant must be 

both "eligible" for and "entitled" to attorneys' fees. See Brayton 

v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. 

Cir. 2011). In order to be "eligible" for attorneys' fees, a 

complainant must "substantially prevail[]" in the litigation. Id. 

A complainant may "substantially prevail" by obtaining relief 

through a "judicial order, or an enforceable written agreement or 

consent decree" 1 or by obtaining a "voluntary or unilateral change 

in position" by the agency. 2 5 U.S.C. § 552 (a) (4) (E) (ii) (I) - (II). 

To determine whether a complainant is "entitled" to 

attorneys' fees, the Court considers factors, including, but not 

limited to: "(l) the public benefit derived from the case; (2) the 

commercial benefit to the plaintiff; (3) the nature of the 

plaintiff's interest in the records; and (4) the reasonableness of 

the agency's withholding of the requested documents." McKinley v. 

Fed. Hous. Fin. Agency, 739 F.3d 707, 711 (D.C. Cir. 2014) 

(citations omitted) . 

The party seeking fees has the additional burden of 

establishing the reasonableness of the fees requested. Barnard, 

656 F. Supp. 2d at 97. The complainant must provide supporting 

1 The Court will refer to this first theory of eligibility as the 

"judicial order" theory. 

2 This theory of eligibility is often referred to as the "catalyst 

theory." 

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documentation that is sufficiently detailed "to enable the court 

to determine with a high degree of certainty that such hours were 

actually and reasonably expended." Id., (quoting Role Models 

America, Inc. v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004)). 

III. Analysis 

A. Plaintiff's Eligibility for Attorneys' Fees 

EPIC argues that it is "eligible" under both the "judicial 

order" and the "catalyst" theories. Pl.'s Mot. at 6-8; Reply 

at 3-11. 

1. Plaintiff's Eligibility under the "Judicial Order" 

Theory 

EPIC argues that the following Orders issued by the Court 

support its eligibility for attorneys' fees under the "judicial 

order" theory: (1) the May 24, 2012, Scheduling Order, the Oct. 

16, 2012, Modified Scheduling Order, and the Jan. 8, 2013, Order 

on Plaintiff's Motion for Reconsideration; and ( 2) the Court's 

Order on the parties' cross motions for summary judgment ("Summary 

Judgment Order") [Dkt. No. 67]. Pl.'s Mot. at 6-7. DHS argues that 

none of the Orders issued in this litigation establish that EPIC 

is eligible for attorneys' fees. Def.'s Opp'n at 5-9. 

a. Orders Requiring Production 

The Court begins with . Plaintiff's argument that it 

substantially prevailed in this litigation as a result of the 

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issuance of the Court's Scheduling Order, the Modified Scheduling 

Order, or the Order on Plaintiff's Motion for Reconsideration. 

A FOIA plaintiff substantially prevails when "awarded some 

relief on the merits of [its] claim" in the form of a judicial 

order that "change[s] the legal relationship between the plaintiff 

and defendant." Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367-

68 (D.C. Cir. 2008) (citing Davy v. Central Intelligence Agency, 

456 F.3d 162, 165-66 (D.C. Cir. 2006) ("Davy I") (internal 

quotation marks omitted)). An order that requires an agency to 

produce documents by a date certain changes the legal relationship 

between the parties, because prior to the order, the agency "[is] 

not under any judicial direction to produce documents by specific 

dates," whereas after the order, the agency must do so or be 

subject to the sanction of contempt. Id. at 368 (citing Davy I, 

456 F.3d at 166). 

For example, in Judicial Watch an agency refused to release 

documents responsive to a FOIA request, withholding them pursuant 

to one of the FOIA Exemptions. 522 F.3d at 366. After the FOIA 

requestor filed suit, the agency and the requestor entered into a 

stipulation, whereby the agency would release the responsive 

documents by a date certain, and the district court approved the 

stipulation in a court order. Id. The Court of Appeals held that 

the plaintiff substantially prevailed as a result of the orders 

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because the orders required the agency to produce documents by a 

date certain, and thereby changed the legal relationship between 

the parties. Id. at 367-68. 

Similarly, the courts in this District have repeatedly held 

that a FOIA plaintiff substantially prevails where a court issues 

a scheduling order requiring an agency to produce responsive 

documents by a date certain. See Citizens for Responsibility & 

Ethics in Washington v. U.S. Dep't of Justice, 820 F. Supp. 2d 39, 

44 (D.D.C. 2011); Elec. Privacy Info. Ctr. v. ,FBI, 72 F. Supp. 3d 

338, 344-345 (D.D.C. 2014) i Judicial Watch, Inc. v. DOJ, 774 F. 

Supp. 2d 225, 228-229 (D.D.C. 2011). This is true even where the 

scheduling order adopts the production schedule proposed by the 

Government, rather than the one proposed by the plaintiff. 

Citizens for Responsibility & Ethics in Washington, 820 F. Supp. 

2d at 44. 

The Scheduling Order in this case is virtually 

indistinguishable from the orders issued in Judicial Watch and 

Davy I, as the Scheduling Order required the "Defendant's Complete 

Production of Documents" by a date certain, August 24, 2012. 

Scheduling Order at 1. It "provide [d] [Plaintiff] with the precise 

relief [her] complaint sought," namely, that DHS produce all 

documents responsive to EPIC'S FOIA request. See Judicial Watch, 

522 F.3d at 367. Consequently, the Scheduling Order changed the 

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legal relationship between the parties and EPIC substantially 

prevailed in this litigation as a result of its issuance. 

The Government argues that the relief granted in the 

Scheduling Order - a requirement that it produce documents by a 

date certain - is "just a matter of court procedure". Opp'n at 6 

(citing Edmonds v. F.B.I., 417 F.3d 1319, 1323 (D.C. Cir. 2005). 

The Government has repeatedly raised this argument in courts in 

this District and this Circuit, and both have just as repeatedly 

rejected it. See Judicial Watch, 774 F. Supp. 2d at 229 ("DOJ's 

response-that the Courtjs order was merely procedural because it 

did not rule on the merits of [plaintiff's] claim-is an argument 

that the D.C. Circuit has repeatedly rejected.") (citing inter 

alia Judicial Watch, 522 F.3d 364, and Davy I, 456 F.3d 162). The 

Court of Appeals' words are apt: "the government's decision to 

dust off a thoroughly discredited argument and present it to [the 

Court] anew wastes both [the Court's] time and the government's 

resources." Judicial Watch, 522 F.3d at 370. 

Therefore, the Court finds that the Plaintiff substantially 

prevailed in this litigation as a result of the issuance of the 

Scheduling Order, and consequently, that it is eligible for 

attorneys' fees.3 

3 Whether the Modified Scheduling Order and the Order on Plaintiff's 

Motion to Reconsider also changed the legal relationship between 

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b. Summary Judgment Order 

In contrast, the Court did not find in favor of EPIC on a 

single issue in the Summary Judgment Order. The Court merely 

required DHS to supplement its Vaughn index by providing additional 

justification for its withholdings under Exemption 7D and no 

additional documents were produced. Thus, EPIC did not 

substantially prevail as a result of the Summary Judgment Order. 

See Campaign for Responsible Transplantation v. Food & Drug Admin., 

511 F.3d 187, 196 (D.C. Cir. 2007) (orders requiring an agency to 

the parties is a closer question. These later orders are very 

similar to the Scheduling Order and the orders in Judicial Watch, 

522 F.3d at 370, and Davy I, 456 F.3d 162, in that they also impose 

a requirement that DHS produce responsive documents by a date 

certain. However, these obligations could be viewed as merely 

procedural because the.obligation to produce already existed and 

these later orders simply changed the date of production. 

Alternatively, the Modified Scheduling Order and the Order 

on Plaintiff's Motion to Reconsider could be viewed as changing 

the legal relationship between the parties because they brought 

the Government out of a state of non-compliance with the Court's 

prior Scheduling Order. As noted above, the Government had 

failed to produce responsive documents by the August 24, 2012, 

deadline established in the Scheduling Order. Thus, as of 

August 24, 2012, the Government was out of compliance with an 

order of this Court and was potentially subject to contempt. 

The later orders established new deadlines, brought the 

Government out of a state of non-compliance, and removed the 

possibility of a contempt sanction, and thereby could be said to 

have changed the legal obligations of the Government. 

As the Plaintiff substantially prevailed in this litigation 

as a result of the issuance of the Scheduling Order, it is 

unnecessary to resolve the question of whether it also 

substantially prevailed as a result of the issuance of either 

the Modified Scheduling Order or the Order on Plaintiff's Motion 

for Reconsideration. 

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create or supplement a Vaughn index "are not properly understood 

as relief on the merits."). 

Consequently, under the judicial order theory, EPIC is 

eligible for attorneys' fees because it substantially prevailed in 

this litigation only as a result of the issuance of the Scheduling 

Order. 

2. Plaintiff's Eligibility under the "Catalyst" Theory 

EPIC also argues that it is eligible for attorneys' fees under 

the "catalyst theory" because its FOIA litigation substantially 

caused DHS to produce documents. Pl.'s Mot at 7-8; Reply at 8-11. 

Specifically, EPIC argues that: (1) DHS changed its position when 

it released documents responsive to EPIC' s FOIA request after 

stating earlier in its Answer that EPIC was not entitled to the 

relief sought; and (2) EPIC's lawsuit caused DHS to process records 

more quickly than it would have without the litigation. Reply at 

9-11. DHS counters that the agency was actively responding to 

EPIC's FOIA request at the time EPIC filed its Complaint and that 

DHS would have produced records without EPIC's litigation. Def.'s 

Opp'n at 9-11. DHS contends that the agency's "unavoidable delay 

was caused by the scope of EPIC's request and a time-consuming, 

diligent administrative process[,]" not EPIC's litigation. Id. at 

10-11. 

When determining whether a plaintiff's FOIA suit was a 

"catalyst" for the release of responsive documents, the Court must 

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determine whether the plaintiff demonstrated that the lawsuit was 

necessary to ensure the agency's compliance with FOIA. Cox v. 

U.S. Dep't of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979). A 

plaintiff's recovery under the "catalyst theory" "thus turns on 

causation." Citizens for Responsibility and Ethics in Washington 

v. U.S. Dep't of Justice, 83 F. Supp. 3d 297, 303 (D.D.C. 2015), 

overruled on other grounds as recognized in National Security 

Counselors v. Central Intelligence Agency, 811 F.3d 22, 29 (D.C. 

Cir. 2016). 

While "[t]he mere filing of the complaint and the subsequent 

release of the documents is insufficient to establish causation," 

a significant delay by the agency in complying with FOIA may 

provide the "inference that the agency forgot about, or sought to 

ignore, a FOIA requester's request - and in such a case an award 

of [FOIA] costs and fees would be appropriate." Weisberg v. U.S. 

Dep't of Justice, 745 F.2d 1476, 1496 (D.C. Cir. 1984); Harvey v. 

Lynch, 14-cv-784, 2016 WL 1559129, at *3 (D.D.C. Apr. 18, 2016). 

Indeed, an agency's "sudden acceleration" in processing a FOIA 

request may lead to the conclusion that the lawsuit substantially 

caused the agency's compliance with FOIA. Terris, Pravlik & 

Millian, LLP v. Centers for Medicare and Medicaid Services, 794 F. 

Supp. 2d 29, 38 (D.D.C. 2011). 

Conversely, "[w]hen disclosure is triggered by events 

unrelated to the pending lawsuit, the causal nexus is missing and 

-21-
the plaintiff cannot be deemed a 'prevailing party.'" Citizens for 

Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 83 

F. Supp. 3d at 303 (citing Pyramid Lake Paiute Tribe of Indians v. 

U.S. Dep't of Justice, 750 F.2d 117, 119-21 (D.C. Cir. 1984)). To 

determine if extrinsic factors, rather than the plaintiff's 

lawsuit, caused the agency's release of documents, the Court looks 

to the circumstances including but not limited to: ( 1) "whether 

the agency made a good faith effort to search out material and 

pass on whether it should be disclosed"; (2) "whether the scope of 

request caused delay in disclosure"; and (3) "whether the agency 

was burdened with other duties that delayed its response." 

Conservation Force v. Jewell, 12-cv-1665, 2016 WL 471252, at *7 

(D.D.C. Feb. 5, 2016) (quoting ACLU v. U.S. Dep't of Homeland Sec., 

810 F. Supp. 2d 267, 274 (D.D.C. 2011)). 

First, the Court must examine the circumstances around DHS's 

release of records to determine whether EPIC'S lawsuit caused the 

release, and whether DHS had demonstrated good faith and diligence 

in responding to EPIC's FOIA request. While this Court described 

DHS's ultimate search for documents as "meticulous, organized, and 

thorough," the record also demonstrates that prior to the filing 

of EPIC's lawsuit on March 1, 2012, DHS had accomplished little in 

processing EPIC's FOIA request. 2015 Mem. Op. at 15-16. 

After EPIC filed its FOIA ·request on July 26, 2011, DHS 

acknowledged receipt on August 3, 2011. Thereafter, EPIC heard 

-22-
nothing further and finally filed its appeal on January 5, 2012. 

DHS describes its actions in the four months between receiving 

EPIC' s FOIA request and the January 5, 2012 appeal, as having 

"tasked out the search" to NPPD' s Office of Cybersecurity and 

Communications (CS&C) and that there "had been discussions between 

NPPD and CS&C regarding the appropriate way to proceed with the 

FOIA request given the broad scope." Declaration of James Holzer 

in Support of Defendant's Motion for Relief from the Court's Order 

of May 24, 2012 ("First Holzer Deel. 11 ) ~ 13 [Dkt. No. 1 7-1] . These 

bureaucratic descriptions give very little insight into what, if 

any, concrete steps the agency was. taking to address EPIC' s FOIA 

request. After EPIC filed an appeal on January 5, 2012, DHS and 

EPIC had a brief conversation about the request, but it too was 

devoid of details and DHS did not communicate a plan of action or 

timeline for responding to the request. See supra, 5-6. 

DHS conceded that the agency "accelerated" the search for 

responsive records after EPIC filed its Complaint in this Court on 

March 1, 2012. Id. ~ 18. Specifically, in April of 2012, the NPPD 

FOIA Office developed a "renewed search plan" by meeting with 

subject-matter experts who identified the NPPD subcomponent 

offices likely to have responsive records and tasking these 

subcomponent off ices with conducting electronic and physical 

record searches. Id. Additionally, the parties stipulated in their 

-23-
Joint Statement on May 21, 2012, that DHS had informed EPIC that 

it was "conducting a new search" for records. Joint Statement~ 4. 

Although DHS points to these activities to demonstrate its 

diligence in responding to EPIC's FOIA request, they simply do not 

pass muster when compared with other decisions of the District 

courts. In Harvey, 2016 WL 1559129, at *2-3, the plaintiff was not 

eligible for attorneys' fees under the "catalyst theory" becauase 

the defendant Bureau of Prisons provided sufficient evidence (in 

the form of a declaration from a BOP analyst) that the "bulk of 

the work to process" plaintiff's FOIA request was completed before 

the plaintiff filed its FOIA suit. Here, DHS makes no such 

assertion, and it is unclear whether its employees had done 

anything more than have internal conversations about the request 

prior to EPIC'S lawsuit. 

Similarly, in Short v. U.S. Army Corps of Engineers, 613 F. 

Supp. 2d 103, 107 (D.D.C. 2009), the plaintiff was not entitled to 

attorneys' fees under the "catalyst theory" because the defendant 

agency had made a determination to grant the plaintiff's FOIA 

request before the plaintiff filed suit and the agency was actively 

responding to the request. In this case, while DHS acknowledged 

receipt of EPIC's FOIA request, it did not make a "determination" 

under FOIA as to whether to comply with EPIC'S request. Even if 

DHS had made a determination, its extensive delays suggest that it 

was not diligently responding to EPIC'S request. 

-24-
The second factor to be considered addresses the scope of the 

plaintiff's request and whether the scope caused the delay. While 

the scope of EPIC's FOIA request was broad, the Court finds that 

DHS failed to address its scope in a diligent manner. When DHS 

sent a letter to EPIC, acknowledging receipt of the FOIA request, 

it noted that the request was "overly broad." However, DHS never 

expressed a desire to narrow the request for more than an entire 

year after EPIC made its request. Instead, DHS waited until August 

24, 2012, the deadline for DHS's complete production of documents 

in this lawsuit to first request that EPIC narrow its request. 

This delay was despite the fact that the agency had already 

gathered 16,000 pages of documents potentially responsive to 

EPIC's FOIA request in July of 2012. First Holzer Deel. ~ 23. 

As EPIC notes, August 24, 2012, was an unnecessarily late 

date upon which to begin the discussion of narrowing EPIC's FOIA 

request. Pl.' s Opp' n Mot. Stay. at 3. Unlike the defendant in 

Bigwood v. Defense Intelligence Agency, 770 F. Supp. 2d 315, 321 

(D.D.C. 2011), who searched for and reviewed responsive documents 

and asked the plaintiff to narrow the scope of its FOIA request 

before the plaintiff filed its suit, in this case DHS waited until 

the Scheduling Order's production deadline to inform the Court at 

that late date of its intention to work with EPIC to narrow the 

scope of the search. 

-25-
Finally, while DHS has provided evidence that it faced certain 

backlogs and administrative difficulties, these representations do 

not sufficiently demonstrate that it would have produced records 

without EPIC being forced to file this lawsuit. DHS explains that 

in the three years preceding EPIC's request, NPPD had seen a fivefold increase in FOIA requests. First Holzer Deel. ~ 17. At the 

time of EPIC'S request, three NPPD FOIA employees were responding 

to hundreds of other FOIA requests, on a first-in, first-out basis, 

and approximately 180 FOIA requests were ahead of EPIC's for 

processing. Id. ~ 12. Regarding other administrative difficulties, 

DHS represents that the need for line-by-line review, extensive 

cross-agency collaboration, and segregation of unauthorized 

information delayed final review of responsive documents. Id. ~~ 

31-34. 

Finally, given that EPIC requested both classified and 

unclassified information, DHS argues that it needed to identify 

staff who had the proper security clearances to search classified 

records systems. Id. ~ 22. Despite these administrative 

challenges, DHS represented to the Court at the May 24, 2012 status 

conference that DHS would be able to complete its first production 

of documents on July 18, 2012, when, in fact, it would later seek 

to postpone the production deadline by a year and a half. See 

supra, 10. DHS also failed to communicate these administrative 

-26-
hurdles to EPIC prior to the lawsuit or provide EPIC with any sort 

of timeline. 

In sum, the Court finds that DHS' s lack of transparency 

regarding its response to EPIC' s FOIA request, along with the 

Court's multiple stays, the Scheduling Order, the Modified 

Scheduling Order, and the Order on Plaintiff's Motion for 

Reconsideration, requiring that DHS review a specific number of 

documents per month, support a finding that EPIC'S lawsuit caused 

DHS to release responsive records and that it thereby substantially 

prevailed in this litigation. Indeed, given these facts, it is 

hard to believe that DHS would ever have gotten the job done 

without the Court's supervision. 

B. Plaintiff's Entitlement to Attorneys' Fees 

Having found Plaintiff eligible for attorneys' fees, the 

Court must now determine if EPIC is also entitled to them. In 

determining whether a complainant is "entitled" to attorneys' 

fees, the Court considers, among others, the following factors: 

"(1) the public benefit derived from the case; (2) the commercial 

benefit to the plaintiff; (3) the nature of the plaintiff's 

interest in the records; and (4) the reasonableness of the agency's 

withholding of the requested documents." McKinley, 739 F.3d at 711 

(citations omitted). The parties dispute all four factors. 

-27-
1. The public benefit derived from EPIC's FOIA lawsuit 

The Court first considers the public benefit derived from 

Plaintiff's lawsuit. When determining the public benefit, a court 

"evaluate[s] the specific documents at issue in the case at hand" 

and determines whether the plaintiff's lawsuit "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). The Court of Appeals recently held that when 

determining the public benefit, a court must assess "the potential 

public value" of the information sought, and not the "public value 

of the information received." Morley v. Central Intelligence 

Agency, 810 F.3d 841, 844 (D.C. Cir. 2016) (stating that the 

"public-benefit factor requires an ex ante assessment"). The Court 

of Appeals reasoned that "shifting to the plaintiff the risk that 

the disclosures would be unilluminating" would defeat the purpose 

of FOIA' s fee-shifting scheme. Id. "To have 'potential public 

value,' the request must have at least a modest probability of 

generating useful new information about a matter of public 

concern." Id. (internal citations omitted). 

EPIC argues that cybersecurity is an issue of national 

importance and that the information obtained through EPIC'S FOIA 

request directly contributed to the debate over cybersecurity and 

privacy. Pl.'s Mot. at 9-10. DHS argues that EPIC's lawsuit not 

only failed to contribute new information to the public, but rather 

-28-
detracted from the national debate by disseminating false 

information. Def.'s Opp'n at 16-17. 

Obviously, issues of national security and privacy are of 

enormous public importance. Under Cotton, EPIC has shown that its 

lawsuit "add[ed] to the fund of information that citizens may use 

in making vital political choices." 63 F.3d at 1120. EPIC cites 

to articles and commentary featuring information obtained because 

of EPIC'S FOIA suit. Pl.'s Mot. at 9-10. And under Morley, EPIC 

has shown that its FOIA request had "at least a modest probability 

of generating useful new information about a matter of public 

concern." 810 F.3d at 844. 

EPIC argues that its FOIA request did in fact produce new 

information that contributed to the public benefit by revealing 

"important details about the government's cyber surveillance 

programs.,; Pl.' s Mot. at 10. DHS disputes the public benefit of 

the information, arguing that much of the information was 

previously provided to the public and any new information, at most, 

"provide[d] marginal and unimportant information." Def.'s Opp'n 

at 15-16, 16 n. 11. 

The Court need not get into the details of whether the 

information EPIC acquired was actually new or important, as it has 

already found that its request was likely to generate new and 

useful information. The Court does note that much of the public 

information DHS cites was not public at the time of EPIC'S FOIA 

-29-
request, id. at 15-16, and the fact that it was later made public 

strengthens EPIC's argument that it was of public import. For these 

reasons, the Court finds that EPIC's FOIA request satisfies the 

public benefit factor. 

2. The commercial benefit to EPIC and EPIC'S interest 

in the records 

The second factor, commercial benefit to the plaintiff, and 

the third factor, the nature of the plaintiff's interest in the 

records, are often analyzed together to determine whether the 

plaintiff has a usufficient private incentive to seek disclosure 

of the documents without expecting to be compensated for it." 

McKinley, 739 F.3d at 711 (internal quotations and citation 

omitted). 

Regarding the commercial benefit, EPIC states that it is a 

u501(c) (3) non-profit public interest research center." Pl.'s Mot. 

at 11. DHS cites Nat'l Sec. Archive v. U.S. Dep't of Defense, 530 

F. Supp. 2d 198 (D.D.C. 2008), and Alliance for Responsible CFC 

Policy, Inc. v. Costle, 631 F. Supp. 1469 (D.D.C. 1986), for the 

proposition that 501{c) (3) nonprofits are not automatically 

considered non-commercial interests. Def.'s Opp'n at 17. 

The Defendant's argument is not convincing. First, Nat'l 

Sec. Archive is of limited relevance, as it dealt with attorneys' 

fees for litigation over a non-profit seeking preferred fee status 

under FOIA; it did not involve a FOIA request for documents. 530 

F. Supp. 2d at 200. Second, while it is true that 501 (c) (3) 

-30-
nonprofit status does not automatically signal a non-commercial 

interest, Castle actually supports EPIC' s position, citing to 

FOIA's legislative history that "nonprofit public interest 

group[s]" are "usually allow[ed] recovery of fees" as opposed to 

"large corporate interests or a representative of such interests." 

Castle, 631 F. Supp. at 1471. The plaintiffs in Castle were 

chlorofluorocarbon producers who had formed the non-profit, and 

the court found that their motivation was primarily personal 

interest. That is not the case with EPIC. 

DHS then argues that because EPIC's newsletter distributing 

information obtained through its FOIA lawsuit featured a link for 

donations, the commercial benefit and interest in the records weigh 

against EPIC. Def.'s Opp'n at 17. However, a link for donations 

does not transform a nonprofits' interests from public interest to 

commercial or self-interest. 

Regarding the Plaintiff's interest in the records, "FOIA 

suits which are motivated by scholarly, journalistic, or public 

interest concerns are the proper recipients of fee awards." Cost le, 

631 F. Supp. at 1471. Here, EPIC has consistently represented that 

it sought the records to address concerns about the DIB Cyber Pilot 

Program "[running] afoul of law forbidding government surveillance 

of private Internet traffic," and to determine whether the program 

"complied with federal wiretap laws." Pl.'s Mot. Summ. J at 2. 

-31-
Additionally, EPIC has distributed this information to the public, 

corroborating its stated intention. 

For these reasons, the Court finds that the second and third 

factors of the entitlement determination weigh in favor of EPIC. 

3. The Reasonableness of DHS's Withholding 

The final factor in determining a plaintiff's entitlement to 

attorneys' fees under FOIA is the reasonableness of the agency's 

withholdings. McKinley, 739 F.3d at 711. To determine the 

reasonableness of the agency's withholding, the Court considers 

two factors. 

The first factor is whether the agency's opposition to 

disclosure "had a reasonable basis in law." Davy v. Central 

Intelligence Agency, 550 F. 3d 1155, 1162 (D. C. Cir. 2008) ("Davy 

II") (citations omitted). "If the Government's position is correct 

as a matter of law, that will be dispositive. If the Government's 

position is founded on a colorable legal basis in law that will be 

weighed along with other relevant considerations in the 

entitlement calculus." Davy II, 660 F. 3d at 1162 (citations 

omitted). The second factor is whether the agency was 

"'recalcitrant in its opposition to a valid claim or otherwise 

engaged in obdurate behavior.'" Id. (quoting LaSalle Extension 

Univ. v. Fed. Trade Comm'n, 627 F.2d 481, 486 (D.C. Cir. 1980)). 

Under either factor, the agency carries the burden of showing 

it behaved reasonably. Davy II, 660 F.3d at 1163. "The question 

-32-
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." Id. 

The Government argues that it was "correct as a matter of 

law" because the Court granted in part the agency's Motion for 

Summary Judgment. Opp' n at 12. This argument is squarely 

foreclosed by Davy II. In that case, just as in this, the agency 

failed to substantively respond to a FOIA request, was subsequently 

sued and then ordered to produce responsive documents. 4 Davy II, 

660 F. 3d at 1158. In that case, just as in this, the agency 

completed court-ordered production and then moved for summary 

judgment, arguing that the scope of its search was sufficient, and 

prevailed. 5 Id. Despite the fact that the Government prevailed 

at summary judgment, the Court of Appeals still held that the 

plaintiff was entitled to attorneys' fees. Id. at 1163. 

Consequently, the Government's argument that Plaintiff is 

4 As described previously, EPIC requested five distinct categories 

of documents. Prior to the initiation of this lawsuit, DHS's only 

substantive response was to inform EPIC that it lacked documents 

responsive to category five. DHS failed to make any similar 

determination with regard to any of the .other four categories of 

documents included in EPIC' s request. Indeed, DHS failed to 

communicate anything of substance to Plaintiff regarding the other 

four categories of documents requested. 

5 The trial court held that "the scope of the agency's search was 

reasonable and that the FOIA exemptions it asserted were valid." 

See Davy I, 456 F.3d at 164. 

-33-
ineligible simply because the Government prevailed on its Motion 

for Summary Judgment is wholly without merit. 

Additionally, Davy II makes clear that an agency lacks a 

colorable basis in law where it does not respond to a FOIA request 

until after a lawsuit has been filed. Id. "For the agency to 

receive the benefit of the fourth factor it must present at least 

a 'colorable basis in law' for its failure to respond" to a FOIA 

request and "[i]t is not enough to say that 'once the agency faced 

a justiciable FOIA claim, it offered no resistance.'" Id. 

In this case, beyond acknowledging receipt of the request, 

DHS failed to respond in any meaningful way to EPIC'S FOIA request 

prior to the initiation of this lawsuit. Additionally, the 

Government has failed to present evidence demonstrating that it 

"had a reasonable basis for failing to respond," and therefore 

cannot carry its burden to show it had a colorable basis in the 

law. Id. 

Addressing the second factor of recalcitrance, DHS argues 

that any delay in production was a result of its "diligent, 

continued, meticulous, time-consuming efforts." Def.'s Opp'n at 

13. EPIC counters that "the agency's delays were a direct product 

of the agency's heel-dragging and intransigence." Reply at 13. 

In evaluating the reasonableness of the agency's withholdings 

and it recalcitrance with regard to the production of documents, 

the Court finds that this factor favors EPIC. While DHS had begun 

-34-
discussing EPIC's FOIA request prior to EPIC's lawsuit, the Court 

has had to hold DHS's hand throughout the production process by 

issuing two Scheduling Orders, both of which required that DHS 

review a minimum number of document pages per month, as well as 

several Orders granting the Government extensions of time. 

Having found that all four entitlement factors favor EPIC, 

the Court holds that EPIC is entitled to attorneys' fees. 

C. The Reasonableness of Plaintiff's Attorneys' Fees 

The parties next contest the reasonableness of the attorneys' 

fees and costs sought by EPIC. As noted earlier, under FOIA, the 

Court "may assess against the United States reasonable attorney 

fees and other litigation costs reasonably incurred." 5 U.S.C. § 

552(a) (4) (E) (i). The Court has considerable discretion in awarding 

attorneys' fees. Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir. 

197 9) . The Court determines the award by calculating the "lodestar" 

the number of hours reasonably expended multiplied by a 

reasonable hourly rate. Bd. of Trs. of Hotel & Rest. Emps. Local 

25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). The fee 

applicant bears the burden of demonstrating the reasonableness of 

both the number of hours and the hourly rate. Role Models Am., 

Inc. v. Brownlee, 353 F.3d at 970. 

The fee applicant must provide "contemporaneous, complete and 

standardized time records which accurately reflect the work done 

by each attorney." Nat'l Ass'n of Concerned Veterans v. Sec'y of 

-35-
-. 

Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). A fee applicant can 

meet its burden by providing affidavits, declarations, and billing 

records. Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 

1516, 1517 (D.C. Cir. 1988). Thereafter, the burden shifts to the 

defendant to rebut the presumption of reasonableness with specific 

evidence. Covington v. Dist. of Columbia, 57 F.3d 1101, 1109 (D.C. 

Cir. 1995). Finally, the Court retains discretion to adjust the 

lodestar amount based on other relevant factors. See Weisberg, 745 

F.2d at 1499-1500. 

1. The reasonableness of EPIC's billing rate 

The Government argues that the various hourly rates sought by 

EPIC are unreasonable. Opp'n at 19-21. 

A reasonable hourly fee is determined by the "prevailing 

market rate in the relevant community, regardless of whether 

plaintiff is represented by private or non-profit counsel." Blum 

v. Stenson, 465 U.S. 886, 895 (1984). The Court considers three 

elements when determining reasonable hourly fees: ( 1) the 

attorneys' billing practices; (2) the attorneys' skill, experience 

and reputation; and (3) the prevailing market rate in the relevant 

community." Salazar v. Dist. of Columbia, 809 F.3d 58, 62 (D.C. 

Cir. 2015) ("Salazar IV") (citing Covington, 57 F. 3d at 1107) . 

Government or public interest attorneys who do not have a 

standard billing rate may utilize the so-called Laffey Matrix to 

establish the prevailing market rate. See Laffey v. Nw. Airlines, 

-36-
Inc., 572 F. Supp. 354 (D.D.C. 1983), aff'd in part, rev'd in part 

on other grounds, Laffey v. Nw. Airlines, Inc., 746 F.2d 4 (D.C. 

Cir. 1984), overruled in part on other grounds en bane by Hodel, 

857 F.2d 1516. The Laffey Matrix was developed over thirty years 

ago and therefore requires adjustment for inflation. See Salazar 

IV, 809 F.3d at 62. The Laffey Matrix provides a schedule of fees 

for lawyers who practice complex federal litigation based on the 

number of years of an attorneys' experience. See id.; also Eley v. ---- --

District of Columbia, 793 F.3d 97, 100-01 (D.C. Cir. 2015). While 

the parties agree that the Laffey Matrix should be adjusted for 

inflation, they disagree over what inflation metric should be used 

to make the adjustment. 

EPIC urges the Court to apply the "LSI Laffey Matrix," which 

the Legal Services Index ("LSI") of the Consumer Price Index (CPI), 

calculates . by the U.S. Department of Labor Bureau of Labor 

Statistics, to update the Laffey Matrix. Pl. 's Mot. at 13. In 

contrast, DHS argues that the Court should apply the "USAO Laffey 

Matrix," which is updated by the U.S. Attorneys' Office in 

Washington, D.C., based on the CPI for the entire Washington, D.C. 

area. Def.'s Opp'n at 19-20. 

The USAO Laffey Matrix adjusts for inflation based on the 

cost of consumer goods in the Washington, D.C. area, whereas the 

LSI Laffey Matrix adjusts on a national basis for inflation based 

on the cost of legal services. Salazar v. Dist. of Columbia, 123 

-37-
F. Supp. 2d 8, 14-15 (D.D.C. 2000) ("Salazar I"). There is a stark 

difference in the results of the two different approaches. For 

the second half of 2011, an attorney with twenty or more years of 

experience earns $734. 00 per hour under the LSI Laffey Matrix 

compared to $475.00 per hour under the USAO Laffey Matrix. See 

Declaration of Michael Kavanaugh at 28 [Dkt. No. 81-3]; Declaration 

of Dr. Laura A. Malowane at 6 [Dkt. No. 86-4]. 

Given these stark financial differences, parties in FOIA 

cases have vigorously contested which matrix to use, and judges in 

this District have differed as to which is more appropriate. See 

~ Citizens for Responsibility and Ethics in Washington v. U.S. 

Dep't of Justice, 142 F. Supp. 3d 1 (D.D.C. 2015) (using the USAO 

Laffey Matrix in a FOIA case) ; Citizens for Responsibility and 

Ethics in Washington v. U.S. Dep't of Justice, 11-cv-374, 2016 WL 

554772, at *l (D.D.C. Feb. 11, 2016) (using the LSI Laffey Index 

in a FOIA case); Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland 

Sec., 13-cv-260, 2016 WL 3919810, at *3 (D.D.C. July 18, 2016) 

(using the LSI Laffey Index in FOIA case); Poulsen v. DHS, 2016 WL 

i091060 (D.D.C. March 21, 2016) (using the USAO Laffey Index in a 

FOIA case) . 

" [T] his Court has, for many years, accepted the 

appropriateness of and greater accuracy of rates" contained in the 

LSI Laffey Matrix because the Court believes those rates better 

reflect the actual costs of litigation. Citizens for 

-38-
Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 

No. 11-cv-754, 2014 U.S. Dist. Lexis 182098, at *13 (D.D.C. Aug 4, 

2014) (describing the methodology behind the LSI Laffey Matrix as 

"far more accurate"); see also Salazar v. District of Columbia, 

991 F. Supp. 2d 39, 47-48 (D.D.C. 2014) ("Salazar III") (describing 

why the Court believes the methodology underlying the USAO matrix 

understates inf lat ion in the market rate for complex federal 

litigation services) . 

However, while this Court generally believes that the LSI 

Laffey Matrix is a more accurate reflection of the prevailing 

market rates in complex federal litigation, in any given case the 

burden is on the party seeking attorneys' fees to show that the 

LSI Laffey Matrix should be used. Salazar IV, 809 F.3d at 61. 

Recently, the Court of Appeals clarified what kind of evidence 

a fee applicant may use to support use of the LSI Laffey Matrix 

over the USAO Laffey Matrix. Id. at 64-65. The Court of Appeals 

upheld use of the LSI Laffey Matrix based on the submission of: 1) 

an affidavit by the economist who developed the LSI Laffey Matrix, 

Dr. Michael Kavanaugh; 2) billing rate tables, enabling a 

comparison between law firm rates and the rates contained in each 

Laffey Matrix; and 3) a survey of billing rates by law firm 

partners in Washington, DC. Id. 

Subsequently, two judges in this District have also concluded 

that the LSI Laffey Matrix should be used. Citizens for 

-39-
Responsibility and Ethics in Washington v. U.S. Dep't of Justice, 

2016 WL 554772, at *1 (concluding that LSI Laffey Index is 

appropriate in FOIA case where the Plaintiff introduced affidavits 

and billing-rate surveys and the court considered other District 

Court orders); see also Elec. Privacy Info. Ctr, 2016 WL 3919810 

at *3 (using LSI Laffey Index in FOIA case); but see Poulsen v. 

DHS, 2016 WL 1091060 (D.D.C. March 21, 2016) (using the USAO Laffey 

Index where case did not require creation of a Vaughn Index or 

briefing of dispositive motions, but failing to discuss or cite to 

the Circuit Court's opinion in Salazar). 

In light of Plaintiff's submissions in this case, the Court 

finds that Plaintiff has met its burden in establishing the 

reasonableness of the LSI Laffey Index. The evidence submitted by 

Plaintiff - an affidavit by Dr. Kavanaugh, billing rate tables, 

and billing rate surveys - is indistinguishable from the evidence 

in Salazar IV, and therefore, certainly allows for use of the LSI 

Laffey index in this case. See 809 F.3d at 64-65; see also Citizens 

for Responsibility and Ethics in Washington v. U.S. Dep't of 

Justice, 2016 WL 554772, at *1 (holding that the LSI Laffey Index 

should be used when presented with virtually identical evidence) . 

Furthermore, it is significant that the Government recently 

conceded in another FOIA case, in which EPIC was the plaintiff, 

that EPIC's attorneys were entitled to attorneys' fees based on 

the LSI Laffey Index. Elec. Privacy Info. Ctr v. DHS, 2016 WL 

-40-
3919810 at *3 (stating "That the parties agree that LSI Laffey 

Matrix acts as a starting point."). Given the very same attorneys, 

working for the very same organization, litigating the very same 

questions in both cases, it is hard to believe that the prevailing 

market rate would differ. Compare Exhibit G to Pl.'s Mot. ("Case 

Billing Record"), 12-cv-333 [Dkt. No. 81-9], with Exhibit G to 

EPIC' s Mot. for Attorneys' Fees and Cost ("Bill of Fees and 

Costs"), 13-cv-260 [Dkt. No. 28-8] (both listing many of the same 

attorneys working on both cases) . 

"Once the fee applicant has provided support for the requested 

rate, the burden falls on the Government to go forward with 

evidence that the rate is erroneous. And when the Government 

attempts to rebut the case for a requested rate, it must do so by 

equally specific countervailing evidence." Covington, 57 F.3d at 

1109-10 (internal quotation marks and citation$ omitted). 

In this case, the Court concludes that the Government's 

evidence is insufficient. The Government's sole evidence is the 

declaration of the economist, Dr Laura A. Malowane. [Dkt .. No. 86-

4] . While Dr. Malowane offers a thoughtful methodological critique 

of the LSI Laffey Index, the Court remains unconvinced that the 

USAO Laffey Index properly accounts for inflation in the market 

for complex federal legal services in Washington, DC. For example, 

Dr. Malowane's declaration purports to show that the rates 

contained in the USAO Laffey Matrix are more in line with those 

-41-
charged by litigation attorneys in both Washington, DC and the 

South Atlantic region--but that is not the relevant comparator. 

Id. at p. 4-7. What is relevant is the amount of fees charged by 

firms or attorneys conducting complex federal litigation. Dr. 

Malowane's declaration fails to establish that the firms in her 

sample primarily engage in such work. Accordingly, the Government 

has failed to meet its burden. See Salazar, 750 F. Supp. 2d 70, 

73 (D.D.C. 2011) ("Salazar II") (explaining why the Court believes 

that LSI Laffey Matrix is more accurate); also Salazar III, 991 F. 

Supp. 2d at 47-48. 

For the foregoing reasons, the Court adopts EPIC'S proposal 

to use the hourly rates in the "LSI Laffey Index." 

2. The reasonableness of EPIC's billing activities and 

hours 

EPIC'S Motion includes a "Bill of Fees and Costs" identifying 

four categories of fees that EPIC seeks: 1) fees incurred prior to 

the Court's Summary Judgment Order, principally in order to force 

DHS to produce responsive documents; 2) fee's incurred in 

litigating the Cross-motions for Summary Judgment; 3) fee's 

incurred following the issuance of the Summary Judgment Order; and 

4) so-called "fees on fees," incurred in litigating the pending 

motion. [Dkt. No 81-9]. The Government objects to awarding any 

fees whatsoever, but also raises individual objections to certain 

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categories of fees sought by EPIC and certain line items within 

each category. 

a. Pre-Swnmary Judgment fees related to obtaining 

DHS's production of documents. 

First, EPIC seeks fees for work conducted prior to summary 

judgment - between March 1, 2012, and August 19, 2013 - to force 

DHS to produce responsive documents. EPIC'S Bill of Fees and Costs 

claims $95,629.10 in fees, but it has discounted its claim by ten 

percent for a total of $86,066.19. [Dkt. No 81-9 at p. 2]. DHS 

argues that EPIC should not be awarded fees.for any work it did 

after the Court issued the Scheduling Order on May 24, 2012, 

because that Order granted Plaintiff the only relief it received 

in this case, and all subsequent work was essentially superfluous. 

See Opp'n at 6 n.4. 

As discussed extensively above, DHS '. s failure to comply with 

FOIA's statutory requirements prompted EPIC to pursue litigation 

in this Court and ultimately resulted in the production of more 

than 1000 pages of documents. See supra 15-19. EPIC received 

exactly what it sought in this lawsuit the production of 

responsive documents by DHS ~ and therefore, the Court will award 

EPIC fees for its work that led to that production. 

The Government's argument ignores that when a lawsuit 

consists of related claims, "a plaintiff who has won substantial 

relief should not have his attorneys' fees reduced simply because 

-43-
the district court did not adopt each contention raised." Elec. 

Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 999 F. Supp. 2d 

61, 75 (D.D.C. 2013) (quoting Hensley v. Eckerhart, 461 U.S. 424, 

440 (1983)). EPIC'S work prior to summary judgment was related 

and reasonably calculated to achieve the goal of production, and 

much of it was necessitated by very substantial delays by DHS after 

the Court issued the Scheduling Order. Even if EPIC did not prevail 

on every scheduling motion, the Court is mindful that "rare, 

indeed, is the litigant who doesn't lose some skirmishes on the 

way to winning the war. " Hall v. CIA, 115 F. Supp. 3d 24, 29 

(D.D.C. 2015) (quoting Air Transp. Ass'n of Canada v. FAA, 156 

F.3d 1329, 1335 (D.C.Cir.1998)) 

omitted). 

(internal quotation markets 

To the extent that the Government objects to individual line 

items for work incurred by EPIC prior to summary judgment, see 

Opp'n at 19, the Court declines to analyze every itemized instance 

of work conducted by EPIC' s attorneys. The Court' s role in 

awarding fees is to do "rough justice" not engage in a picayune 

"battle of the ledgers." Elec. Privacy Info. Ctr, 2016 WL 3919810 

at *3-4. 

EPIC has already reduced the lodestar amount for this work by 

10% to account for the fact that the Court granted some of DHS's 

requests, Tran Deel. ~ 10 [Dkt. No. 81-2], and therefore, the Court 

-44-
finds that the hours billed for Pre-Summary Judgment Work is 

reasonable. 

b. Fees Incurred on Cross-Motions for Summary 

Judgment 

The Plaintiff has also requested fees for its work on the 

various motions and cross-motions for summary judgment. While 

this work totaled $22,754.60 in fees, Plaintiff has discounted 

this amount by 84% for a total of $3640.74. Plaintiff asserts 

that it succeeded on only one of seven issues addressed in the 

Summary Judgment Order and this amount reflects the amount of work 

dedicated to that issue. Tran Deel. ~ 11 [Dkt. No. 81-2] . 

"If the plaintiff achieves only limited success, it is within 

the court's discretion to reduce the award of fees." Hall, 115 F. 

Supp. 3d at 27. If a losing claim is distinct from successful 

claims, "the hours spent on the unsuccessful claims should be 

excluded in considering the amount of a reasonable fee." Elec. 

Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 999 F. Supp. 2d 

at 75 (citing Hensley v. Eckerhart, 461 U.S. at 440). 

The Court will not award EPIC any fees for its work on summary 

judgment because, as discussed earlier, EPIC's arguments on 

summary judgment were wholly rejected and those claims were wholly 

independent from any claims on which EPIC succeeded in this 

litigation. EPIC did not prevail on a single issue raised on 

summary judgment. Furthermore, the issues that EPIC unsuccessfully 

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raised on summary judgment- -that DHS conducted an inadequate 

search and that DHS improperly applied FOIA exemptions to withhold 

documents--are substantively unrelated to the instances in which 

EPIC succeeded, namely the issuance of the Scheduling Order forcing 

EPIC to produce responsive documents. 

Everything EPIC won in this lawsuit - production of responsive 

documents - it won well before the issue of summary judgment came 

before the Court and EPIC received no further relief on the merits 

from the Summary Judgment Order. Consequently, it cannot piggy 

back off its success prior to summary judgment to collect fees for 

work done preparing its opposition and cross-motion for summary 

judgment. 

c. Fees Incurred Post-Summary Judgment 

EPIC also requests $3987.40 in fees incurred for work don't 

after the Court issued its Summary Judgment Order but before EPIC 

began litigating the issue of attorneys' fees. The Government 

does not raise any specific objection to these fees. That EPIC 

would need to review the Court's Order and determine next steps 

seems reasonable to the Court. 

fees claimed for this work. 

d. Fees on Fees 

Therefore, the Court will award 

EPIC requests attorneys' fees for the time it spent litigating 

the present Motion for Attorneys' fees, so-called ~fees on fees." 

This request totals $22,435.40. The Government argues that EPIC's 

-46-
request is unreasonable because EPIC spent nearly as much time on 

the issue of attorneys' fees as on work related to summary 

judgment. Def.'s Opp'n at 19. 

"Hours reasonably devoted to a request for fees are 

compensable." Judicial Watch, Inc. v. U.S. Dep't of Justice, 878 

F. Supp. 2d 225, 240 (D.D.C. 2012). "Fees on fees must be 

reasonable, and not excessive." Elec. Privacy Info. Ctr. v. FBI, 

80 F. Supp. 3d 149, 162 (D.D.C. 2015) (internal citation and 

quotation marks omitted). "Courts, therefore, have an obligation 

to scrutinize the hours spent preparing the fee petitions to insure 

that the total is reasonable and that it does not represent a 

windfall for the attorneys." Boehner v. McDermott, 541 F.Supp.2d 

310, 325 (D.D.C. 2008) (internal citation and quotation marks 

omitted). In addition, "fees on fees" may be reduced to reflect 

the degree of a plaintiff's success on the merits. See Immigration 

and Nationalization Services v. Jean, 496 U.S. 154, 163 n.10 

(1990); see also Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland 

Security, 999 F. Supp. 2d at 77. 

EPIC claims 50.9 hours of fees for the present Motion. DHS 

argues that the hours dedicated to preparing the Motion for 

Attorneys' Fees are excessive. Specifically, DHS argues that EPIC 

spent nearly as much time on the issue of attorneys' fees as on 

work related to summary judgment. Def.' s Opp' n at 19; see also 

Elec. Privacy Info. Ctr. v. FBI, 80 F. Supp. 3d at 162 (finding 

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request for fees on fees in amount larger than fees for underlying 

FOIA action excessive) . 

While the Court does find it appropriate to award EPIC fees 

on fees, the Court agrees that EPIC'S request is excessive. A fees 

on fees award that is roughly equivalent to the amount of time 

EPIC spent on summary judgment would be excessive, given that EPIC 

., 

i filed far fewer briefs in support of its request for attorneys' 

fees than on summary judgment. The excess billing stems largely 

from entries related to basic timekeeping, such as "review billing 

records" and "enter billing records," which total nearly one-third 

of EPIC's fees on fees request. [Dkt. No. 81-9 at p. 45-52]. EPIC 

had an ongoing duty throughout the litigation to maintain an 

accurate record of its time, which means these activities were 

either duplicative of work already performed or enlarged because 

it was performed so late in the litigation. Either way, the Court 

finds any total award of fees on fees for these activities to be 

unreasonable. 

The Court does find it appropriate to award EPIC for its work 

attempting to resolve the issue of attorneys' fees. The Court will 

grant EPIC fees on fees to the extent that the work relates to 

settlement negotiations, and the preparation of the Motion for 

Attorneys' Fees. Fees related to reviewing billing and entering 

billing records shall be excluded. 

-48-
EPIC will submit revised billing records for fees on fees to 

reflect this finding. 

3. The Government's objection to EPIC's Billing 

Practices 

Finally, the Government objects to certain billing practices 

of EPIC, namely billing for repetitive tasks and so-called "block 

billing." Opp'n at 18-19. 

a. DHS's Claim that multiple EPIC attorneys billed 

for repetitive tasks. 

DHS argues that the Court should reduce attorneys' fees where 

"multiple attorneys" conducted "routine tasks." Def.'s Opp'n at 

19. 

The amount of time actually expended is not the same as the 

amount of time reasonably expended, and the Court may reduce an 

award for overstaffing. Copeland v. Marshall, 641 F.2d 880, 891 

(D.C. Cir. 1980) ("where three attorneys are present at a hearing 

when one would suffice, compensation should be denied for the 

excess time") . For example, in Elec. Privacy Info. Ctr., 72 F. 

Supp. 3d at 352, the Court reduced the amount EPIC could recover 

for triple-billing telephone conference calls because staffing 

telephone conferences with three attorneys was unnecessary, and 

accordingly reduced the lodestar for these activities to reflect 

the time of one junior attorney at the lowest USAO Laffey rate. 

Id. 

-49-
., 

Reflecting the realities of complex federal litigation and 

the resources of opposing counsel, the Court believes that it is 

often appropriate to have more than one attorney present on 

conference calls. However, generally, the presence of three or 

more attorneys is unnecessary and unreasonable. Elec. Privacy 

Info. Ctr., 72 F. Supp. 3d at 352. Accordingly, the Court will 

reduce EPIC's billing entries to the extent of allowing EPIC to 

claim fees for at most one senior attorney and one junior attorney 

for participating in conference calls. 

EPIC will submit revised billing records to reflect this 

portion of the opinion. 

b. DHS's Claim that EPIC Engaged in ucareless 

Errors" and Repetitive Block Billing. 

DHS presents a bald assertion that EPIC engaged in "numerous 

examples of repetitive, block billing." Def.' s Opp'n at 19. 

EPIC' s billing records and affidavits provide the Court with 

sufficiently "contemporaneous, complete and standardized time 

records which accurately reflect the work done by each attorney." 

Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d at 

1327; see Bill of Fees and Costs, Pl.'s Ex. G [Dkt. No. 81-9) [Dkt. 

No. 87-2); see also Role Models America, Inc. v. Brownlee, 353 

F. 3d at 975; American Immigration Council v. U.S. Dep' t of Homeland 

Security, 82 F. Supp. 3d 396, 412 (D.D.C. 2015). DHS has not 

-50-
provided specific evidence to overcome the presumption of 

reasonableness. 

However, in considering the parties' motions, the Court 

discovered one instance in which EPIC appears to have doublebilled for the work of one attorney. [Dkt. No. 81-9 at p. 7] 

(including two entries for the participation of Marc Rotenberg in 

a tele-conference on May 21, 2012). As the Court has asked EPIC 

to submit a revised bill, EPIC will be afforded an opportunity to 

correct any and all errors present, including the error just 

identified. 

IV. CONCLUSION 

For the foregoing reasons, Plaintiff's Motion for Attorneys' 

Fees shall be granted in part and denied in part. EPIC shall 

prepare a revised case billing record in accordance with this 

opinion. In submitting the revised bill, EPIC shall not seek fees 

for any work not already included in the Bill of Fees and Costs 

[Dkt. No. 81-9]. 

Additionally, EPIC shall submit a copy of the original Bill 

of Fees and Costs, annotated to indicate which specific line-items 

are no longer being claimed in its revised bill. 

Finally, the Government will be provided an opportunity to 

review EPIC's revised bill and present to the Court any line-items 

that are either clearly erroneous or otherwise inconsistent with 

this opinion. The Court stresses that this is not an occasion to 

-51-
relitigate any issues raised in the Motion, but simply an 

opportunity to assist the Court in identifying fees which EPIC may 

not have reasonably incurred, in light of this Memorandum Opinion. 

An Order shall accompany this Memorandum Opinion. 

November 21, 2016 

United States District Judge 

Copies to: attorneys on record via ECF 

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