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Case TitleCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. U. S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2010cv00750
Date Filed2010-05-11
Date Closed2011-11-21
JudgeJudge James E. Boasberg
PlaintiffCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
DefendantU. S. DEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [11]
FOIA Project Annotation: Judge James Boasberg has ruled that CREW is entitled to attorney's fees for its suit against the Justice Department for records pertaining to the alleged destruction of former Office of Legal Counsel attorney John Yoo. CREW made a request to DOJ in February 2010 for records concerning its record-keeping policies, particularly its retention of email records. CREW asked for expedited processing, which was granted. Less than a week later, CREW submitted another FOIA request for Yoo's emails from June 2001 �" May 2003. It did not ask for expedited processing of the second request. CREW and DOJ discussed the February request several times by phone and the agency disclosed two records. After hearing nothing further, CREW filed suit. The court issued a case management order in June 2010 and issued a subsequent scheduling order in August instructing DOJ to finish processing both requests. The agency complied with the scheduling order, the case was dismissed in June 2011 and CREW filed for attorney's fees, contending that the scheduling order changed the legal relationship between the parties. Boasberg agreed. He noted that "despite Defendant's attempt to characterize the order as mere 'housekeeping,' it does not simply 'require the parties to meet and confer and then submit a joint status or scheduling report.' It affirmatively requires the processing and production of documents by a date certain. And Defendant's suggestion that CREW did not obtain the relief it sought because it desired the 'immediate' release of documents and 'immediate' release was not ordered, is an attempt to split hairs even more finely. A party must 'substantially prevail,' not 'precisely prevail;' as a result, it need not obtain an order granting relief in language identical to that used in its complaint." Having found CREW was eligible for fees, Boasberg turned to an analysis of whether the organization was entitled to an award. Noting that CREW was a non-profit organization dedicated to protecting citizens' rights to be informed about government activities and the integrity of government officials, Boasberg observed that "in furtherance of this enterprise, CREW freely and publicly disseminates those records it acquires through FOIA requests. As an entity that 'gathers information of potential interest to a segment of the public, uses [its] editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience,' CREW is 'among those whom Congress intended to be favorably treated under FOIA's fee provision.'" But he explained that "CREW's status as a nonprofit, public interest organization does not entitle it to a government-signed blank check for its FOIA-related litigation always and everywhere. Indeed, the public benefit and the agency's reasonableness must also be considered." Boasberg agreed that Yoo's emails were a matter of public interest. The agency argued that CREW had admitted it found nothing substantive in the records concerning Yoo, suggesting that there was no public interest. But Boasberg pointed out that "CREW did not expect the emails to expose substantive information about Yoo's work at DOJ; instead, as the request itself makes clear, '[d]isclosure of the volume and subject of Mr. Yoo's existing email records. . .would inform the public about whether and to what extent the destruction of emails was limited to Mr. Yoo's role in drafting the terror memoranda and may have been the result of willful actions by Mr. Yoo or others.' The fact that the remaining emails had little to do with Yoo's substantive activities at OLC, therefore, is precisely the kind of information CREW hoped to glean from its requests. That only mundane or unrelated email survived, CREW maintains, suggests that the missing emails concerning the torture memoranda were destroyed willfully." Boasberg also found that the agency's delay in responding brought the reasonableness of its position into question. He observed that "although Defendant is correct that 'an agency's failure to meet deadlines. . .does not warrant an award of fees in and of itself,' considering this failure in conjunction with the other three factors, the Court finds Plaintiff is entitled to a fee award." Boasberg instructed the parties to settle on an award, but if they could not do so the court would make a determination.
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Entitlement - Public benefit
Opinion/Order [15]
FOIA Project Annotation: Judge James Boasberg has awarded CREW $12,417 for prevailing in its suit against the Justice Department. Although CREW asked for $22,393, Boasberg found that some of its charges had not been adequately substantiated. Boasberg agreed with the agency that CREW had not provided adequate justification for the hours charged. He noted that "while CREW's counsel did keep contemporaneous records, their timekeeping practices fell significantly below what is expected of fee applicants in this Circuit. . .CREW offers no real excuse for its inadequate timekeeping habits. CREW was aware it would be seeking a fee award and its counsel are experienced litigators." But he then noted that "the Court, nevertheless, does not find a complete disallowance of fees to be warranted"the records here are not so deficient as to prevent opposing counsel or the Court from 'mak[ing] an informed determination as to the merits of the application.' CREW's fee award, however, will be reduced to account for any inaccuracies and overbilling that may have occurred as a result of its unacceptable timekeeping habits." He indicated that "Defendant's suggestion of a 37.5% reduction is reasonable. This is based on splitting the 75% difference between billing in quarter-hour versus full-hour increments. Plaintiff's fee award will be adjusted accordingly." Boasberg agreed that CREW should not be awarded $3,325 for reviewing the documents released by the agency. He pointed out that "plaintiff would have had to expend this time had DOJ timely produced the documents without litigation; the cost of reviewing documents produced in response to a FOIA request is simply the price of making such a request."
Issues: Litigation - Attorney's fees - Entitlement - Calculation of award
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2010-05-111COMPLAINT against U. S. DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616029577) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 05/11/2010)
2010-05-11SUMMONS (3) Issued as to U. S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 05/11/2010)
2010-05-112LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON identifying Corporate Parent NONE for CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (rdj) (Entered: 05/11/2010)
2010-06-083STANDING ORDER. Signed by Judge Richard J. Leon on 6/8/2010. (lcrjl1) (Entered: 06/08/2010)
2010-06-104ANSWER to 1 Complaint by U. S. DEPARTMENT OF JUSTICE.(Coleman Snead, Jacqueline) (Entered: 06/10/2010)
2010-07-125STATUS REPORT by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, U. S. DEPARTMENT OF JUSTICE. (Coleman Snead, Jacqueline) (Entered: 07/12/2010)
2010-08-02SCHEDULING ORDER: It is hereby ORDERED that OLC will, no later than August 31, 2010, (1) complete processing those responsive documents yielded by the search of OLC's records that do not require referral or consulation; (2) produce responsive non-referred documents except those it withholds on the basis of a FOIA exemption; (3) circulate documents that do require referral or consultation to the relevant agencies or departments; and (4) confer with CREW on a timetable for the referrals and for the production of a Vaughn index for withheld documents. Signed by Judge Richard J. Leon on 8/2/2010. (lcrjl1) (Entered: 08/02/2010)
2011-03-30Case Randomly Reassigned to U.S. District Judge James E. Boasberg. Judge Richard J. Leon no longer assigned to the case. (jeb, ) (Entered: 03/30/2011)
2011-06-096STIPULATION of Dismissal by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, U. S. DEPARTMENT OF JUSTICE. (Weismann, Anne) (Entered: 06/09/2011)
2011-06-097MOTION for Attorney Fees and Costs by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Weismann, Anne) (Entered: 06/09/2011)
2011-06-278Memorandum in opposition to re 7 MOTION for Attorney Fees and Costs filed by U. S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Colborn Declaration)(Coleman Snead, Jacqueline) (Entered: 06/27/2011)
2011-06-309MOTION for Extension of Time to File Reply in Support of Plaintiff's Motion for an Award of Attorneys' Fees and Costs by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 06/30/2011)
2011-07-05MINUTE ORDER granting 9 Motion for Extension of Time to File Reply. Plaintiff's Reply shall now be due July 11, 2011. Signed by Judge James E. Boasberg on 7/5/2011. (lcjeb3) (Entered: 07/05/2011)
2011-07-05Set/Reset Deadlines: Plaintiff's Reply shall now be due 7/11/2011. (ad) (Entered: 07/05/2011)
2011-07-1110REPLY to opposition to motion re 7 MOTION for Attorney Fees and Costs filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit)(Weismann, Anne) (Entered: 07/11/2011)
2011-10-2611MEMORANDUM OPINION AND ORDER granting 7 Motion for Attorney Fees. The Court ORDERS that 1) Plaintiff's Motion for Attorney Fees and Costs is GRANTED; and 2) the parties shall jointly call chambers on November 3, 2011, at 11:00 a.m. to discuss procedures regarding the calculation of the fee award. Signed by Judge James E. Boasberg on 10/26/2011. (lcjeb2). Signed by Judge James E. Boasberg on 10/26/2011. (lcjeb2, ) (Entered: 10/26/2011)
2011-10-27Set/Reset Hearing: Parties shall jointly call chambers on 11/03/2011 at 10:00 AM to discuss procedures regarding the calculation of the fee award. (ad) (Entered: 10/27/2011)
2011-10-31MINUTE ORDER: The Court ORDERS that the telephone conference call previously scheduled for November 3, 2011, at 11:00 a.m. is hereby rescheduled for November 7, 2011, at 11:00 a.m. Signed by Judge James E. Boasberg on 10/31/2011. (lcjeb2) Modified on 10/31/2011 (ad). (Entered: 10/31/2011)
2011-10-31Set/Reset Hearings: A Telephone Conference previously scheduled for 11/03/2011 at 11:00 AM is RESCHEDULED for 11/07/2011 at 11:00 AM in Chambers before Judge James E. Boasberg. (ad) (Entered: 10/31/2011)
2011-11-0412MOTION for Reconsideration by U. S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shapiro, Elizabeth) (Entered: 11/04/2011)
2011-11-07Minute Entry for proceedings held before Judge James E. Boasberg: Telephone Conference held on 11/07/2011 in Courtroom 19. (ad) (Entered: 11/07/2011)
2011-11-08MINUTE ORDER: The Court ORDERS that Plaintiff shall file any opposition to Defendant's 12 Motion on or before November 15, 2011. No reply will be permitted. Signed by Judge James E. Boasberg on 11/8/2011. (lcjeb2) (Entered: 11/08/2011)
2011-11-08Set/Reset Deadlines: Plaintiff shall file any opposition to Defendant's 12 Motion on or before 11/15/2011. (ad) (Entered: 11/08/2011)
2011-11-1413Memorandum in opposition to re 12 MOTION for Reconsideration filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit)(Weismann, Anne) (Entered: 11/14/2011)
2011-11-2114MEMORANDUM OPINION AND ORDER denying 12 Motion for Reconsideration. Signed by Judge James E. Boasberg on 11/21/2011. (lcjeb2) (Entered: 11/21/2011)
2011-11-2115MEMORANDUM OPINION AND ORDER. The Court ORDERS that judgment for Plaintiff be ENTERED in the amount of $12,417.50. Signed by Judge James E. Boasberg on 11/21/2011. (lcjeb2) (Entered: 11/21/2011)
2011-11-2216MOTION to Alter Judgment as to 15 Memorandum & Opinion by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 11/22/2011)
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by FOIA Project Staff
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