Case Detail

FOIA Project Annotation: Judge Henry Kennedy has ruled that Judicial Watch is entitled to attorney's fees for its FOIA suit against the Justice Department for records concerning the Terrorist Surveillance Program. Judicial Watch was granted expedited processing for its request but when DOJ failed to respond within 20 days the public interest group filed suit. While the agency withheld 294 documents under Exemption 5 (deliberative process privilege), Kennedy rejected the agency's claim. The parties then continued negotiations and the agency ultimately released 68 documents to Judicial Watch. Because Judicial Watch had filed suit before the effective date of the OPEN Government Act amendments changing the definition of "substantially prevail," the government argued the case should be considered under Buckhannon. Kennedy disagreed, finding instead that a stipulation he signed binding the agency to provide all further non-exempt documents by a date certain was judicial relief on the merits and qualified Judicial Watch as the prevailing party even under Buckhannon. Kennedy noted that the restrictions imposed in the Oil, Chemical & Atomic Workers International Union v. Dept of Energy, 288 F.3d 452 (D.C. Cir. 2002), decision, in which the D.C. Circuit first adopted Buckhannon, had been subsequently narrowed in Davy v. CIA, 456 F.3d 162 (D.C. Cir. 2006), and Judicial Watch v. FBI, 522 F.3d 364 (D.C. Cir. 2008), and his stipulated order in this case clearly qualified as substantially prevailing. While DOJ did not argue that disclosure of records on the Terrorist Surveillance Program would not be in the public interest, it claimed instead that the fact that some of the records had been disclosed already in a case brought by EPIC diminished the degree of public interest in subsequent disclosures. Acknowledging that the extent to which records were already in the public domain was a consideration, Kennedy observed that it was the agency's burden to show dissemination. He pointed out that "it is not enough that some other private party has access to the material in question: 'only material that has met a threshold level of public dissemination will not further "public understanding" within the meaning of [FOIA's] fee waiver provisions.' Because DOJ has made no effort to show that the information contained in the records at issue here has reached that levelâ€"or any levelâ€"of public dissemination, the court finds that this factor weighs in favor of Judicial Watch, albeit with somewhat less force than if none of the documents requested had been released before." Kennedy then pointed out that "even though DOJ's conduct after the suit was filed was generally reasonable, [its] initial failure to respond still weighs in favor of a fee award." Rejecting the agency's arguments that Judicial Watch's limited success in the suit favored a 50 percent reduction in the award and that the organization's hourly rates were too high, Kennedy awarded Judicial Watch $26,600.
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Eligibility - Causal effect, Litigation - Attorney's fees - Entitlement - Public benefit

Date Filed	Doc #	Docket Text
2006-03-06	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE (Filing fee $ 250) filed by JUDICIAL WATCH, INC.(lc, ) (Entered: 03/08/2006)
2006-03-06	2	NOTICE OF RELATED CASE by JUDICIAL WATCH, INC.. Case related to Case No. 06-0214. (lc, ) (Entered: 03/08/2006)
2006-03-06	3	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (lc, ) (Entered: 03/08/2006)
2006-03-06		SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 03/08/2006)
2006-04-14	4	ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE. Related document: 1 Complaint filed by JUDICIAL WATCH, INC.,.(Bhattacharyya, Rupa) (Entered: 04/14/2006)
2006-05-10	5	Order For Initial Scheduling Conference. Initial scheduling conference set for August 10, 2006, at 2:30 p.m., in Courtroom 27A, before Judge Henry H. Kennedy, Jr. Signed by Judge Henry H. Kennedy, Jr., on May 10, 2006. (FL, ) (Entered: 05/10/2006)
2006-08-02	6	NOTICE of Appearance by Jason B. Aldrich on behalf of JUDICIAL WATCH, INC. (Aldrich, Jason) (Entered: 08/02/2006)
2006-08-03	7	STIPULATION AND PROPOSED ORDER by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Orfanedes, Paul) (Entered: 08/03/2006)
2006-08-07		MINUTE ORDER: The court approves of the parties' stipulations (#7) docketed August 3, 2006, and the parties shall be governed by the deadlines set forth therein. (Kennedy, Henry) (Entered: 08/07/2006)
2006-08-08		NOTICE of Hearing: Status Hearing set for 8/10/06 has been canceled. (adc) (Entered: 08/08/2006)
2006-12-06	8	STIPULATION (Second) and Proposed Order by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Bhattacharyya, Rupa) (Entered: 12/06/2006)
2006-12-28		MINUTE ORDER: The parties shall be governed by the briefing deadlines set forth in their second stipulation and proposed order (#8) filed December 6, 2006. SO ORDERED. (Kennedy, Henry) (Entered: 12/28/2006)
2007-01-26	9	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A -- Bradbury Declaration# 2 Exhibit B -- Kovakas Declaration# 3 Exhibit C -- Baker Declaration# 4 Statement of Facts)(Bhattacharyya, Rupa) (Entered: 01/26/2007)
2007-02-08	10	Unopposed MOTION for Extension of Time to File Response/Reply (Opposition to Defendant's Motion for Summary Judgment by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Orfanedes, Paul) (Entered: 02/08/2007)
2007-02-08		Minute order granting 10 plaintiff's unopposed motion for extension of time to file opposition to defendant's motion for summary judgment. Plaintiff shall have up to and including March 2, 2007, to file an opposition to defendant's motion for summary judgment. Defendant's reply is due March 23, 2007. Signed by Judge Henry H. Kennedy, Jr., on February 8, 2007. Official paperless order (FL, ) (Entered: 02/08/2007)
2007-02-21		Reset Deadlines: Plaintiff's opposition to defendant's dispositive motions due by 3/2/2007; Defendant's reply to the dispositive motions due by 3/23/2007. (tj, ) (Entered: 02/21/2007)
2007-03-01	11	Second MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Orfanedes, Paul) (Entered: 03/01/2007)
2007-03-05		Minute order granting 11 plaintiff's second unopposed motion for extension of time to file opposition to defendant's motion for summary judgment. Plaintiff shall have up to and including March 7, 2007, to file an opposition to defendant's motion for summary judgment. Defendant's reply is due March 28, 2007. Signed by Judge Henry H. Kennedy, Jr., on March 5, 2007. Official paperless order (FL, ) (Entered: 03/05/2007)
2007-03-07	12	Memorandum in opposition to re 9 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Orfanedes, Paul) (Entered: 03/07/2007)
2007-03-19	13	Unopposed MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 03/19/2007)
2007-03-21		Minute order granting 13 defendant's unopposed motion for an extension of time in which to reply in support of its pending motion for summary judgment. Defendant shall have up to and including April 27, 2007, within which to file a reply brief in support of its pending motion for summary judgment. Signed by Judge Henry H. Kennedy, Jr., on March 21, 2007. Official paperless order (FL, ) (Entered: 03/21/2007)
2007-03-22		Reset Deadlines: Reply to Dispositive Motions due by 3/28/2007. (tj ) (Entered: 03/22/2007)
2007-04-27	14	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Bhattacharyya, Rupa) (Entered: 04/27/2007)
2007-05-31	15	MOTION for Leave to File Surreply by JUDICIAL WATCH, INC. (Attachments: # 1 Exhibit # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 05/31/2007)
2007-06-14	16	Memorandum in opposition to re 15 MOTION for Leave to File Surreply filed by U.S. DEPARTMENT OF JUSTICE. (Bhattacharyya, Rupa) (Entered: 06/14/2007)
2007-06-16	17	REPLY to opposition to motion re 15 MOTION for Leave to File Surreply filed by JUDICIAL WATCH, INC.. (Orfanedes, Paul) (Entered: 06/16/2007)
2007-07-17		Minute order granting 15 plaintiff's motion for leave to file surreply. Plaintiff's surreply to defendant's motion for summary judgment is deemed filed. Signed by Judge Henry H. Kennedy, Jr., on July 17, 2007. Official paperless order (FL, ) (Entered: 07/17/2007)
2007-07-17	18	SURREPLY to re 9 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC. (lc, ) (Entered: 07/18/2007)
2008-03-20	19	MEMORANDUM OPINION AND ORDER granting in part and denying in part 9 Defendant's Motion for Summary Judgment. Signed by Judge Henry H. Kennedy, Jr. on March 20, 2008. (NP) Modified on 3/21/2008 (nmw, ). (Entered: 03/20/2008)
2008-04-21	20	STIPULATION (Third) and Proposed Order by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Bhattacharyya, Rupa) (Entered: 04/21/2008)
2008-04-24	21	THIRD STIPULATION AND ORDER (Approved by by Judge Henry H. Kennedy on 4/21/08) (tj ) (Entered: 04/24/2008)
2008-06-18	22	Unopposed MOTION for Extension of Time to File a Renewed Motion for Summary Judgment and to Modify Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 06/18/2008)
2008-06-20		MINUTE ORDER granting 22 Defendant's Unopposed Motion for an Extension of Time in which to File a Renewed Motion for Summary Judgment and to Modify Briefing Schedule. Accordingly, defendant's second motion for summary judgment is due by August 14, 2008; plaintiff's opposition to defendant's motion and any cross-motion is due by September 12, 2008; defendant's reply in support of its motion and its opposition to plaintiff's cross-motion is due by October 3, 2008; and plaintiff's reply in support of its cross-motion is due by October 24, 2008. Signed by Judge Henry H. Kennedy, Jr. on June 20, 2008. (NP) (Entered: 06/20/2008)
2008-06-20		Defendant's second motion for summary judgment is due by August 14, 2008; plaintiff's opposition to defendant's motion and any cross-motion is due by September 12, 2008; defendant's reply in support of its motion and its opposition to plaintiff's cross-motion is due by October 3, 2008; and plaintiff's reply in support of its cross-motion is due by October 24, 2008. Signed by Judge Henry H. Kennedy, Jr. on June 20, 2008. (NP) (Entered: 06/20/2008)
2008-08-12	23	NOTICE OF SUBSTITUTION OF COUNSEL by Caroline Lewis Wolverton on behalf of U.S. DEPARTMENT OF JUSTICE Substituting for attorney Rupa Bhattacharyya (Wolverton, Caroline) (Entered: 08/12/2008)
2008-08-12	24	Unopposed MOTION for Extension of Time to File Renewed Motion for Summary Judgment and to Modify Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Wolverton, Caroline) (Entered: 08/12/2008)
2008-08-14	25	ORDER granting defendant's 24 motion for extension of time to file a renewed motion for summary judgment and to modify the briefing schedule. Signed by Judge Henry H. Kennedy on 8/14/08. (tj ) (Entered: 08/14/2008)
2009-07-08	26	NOTICE of Change of Address by Jason B. Aldrich (Aldrich, Jason) (Entered: 07/08/2009)
2010-02-24	27	ORDER directing the parties to file a joint status report no later than March 8, 2010. Signed by Judge Henry H. Kennedy, Jr. on February 24, 2010. (NP) (Entered: 02/24/2010)
2010-03-08	28	STATUS REPORT (Joint) by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Aldrich, Jason) (Entered: 03/08/2010)
2010-03-08	29	STIPULATION of Dismissal of Action by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Aldrich, Jason) (Entered: 03/08/2010)
2010-04-07	30	MOTION for Attorney Fees and Litigation Expenses by JUDICIAL WATCH, INC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Aldrich, Jason) (Entered: 04/07/2010)
2010-04-20	31	Unopposed MOTION for Extension of Time to File Response/Reply as to 30 MOTION for Attorney Fees and Litigation Expenses by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Wolverton, Caroline) (Entered: 04/20/2010)
2010-04-22		MINUTE ORDER granting Defendant's Unopposed Motion for Enlargement of Time to Respond to Plaintiff's Motion for Award of Attorney's Fees and Litigation Expenses. Accordingly, defendant's response is due on May 5, 2010. Signed by Judge Henry H. Kennedy, Jr. on April 22, 2010. (NP) (Entered: 04/22/2010)
2010-05-05	32	Memorandum in opposition to re 30 MOTION for Attorney Fees and Litigation Expenses filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit Letter of Sept. 15, 2006 from OLC to Judicial Watch, # 2 Text of Proposed Order)(Wolverton, Caroline) (Entered: 05/05/2010)
2010-05-17	33	Unopposed MOTION for Extension of Time to File Response/Reply as to 30 MOTION for Attorney Fees and Litigation Expenses by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 05/17/2010)
2010-05-18		MINUTE ORDER granting 33 Plaintiff's Unopposed Motion for Extension of Time to File Reply to Defendant's Opposition to Plaintiff's Motion for Attorney's Fees and Litigation Expenses. Accordingly, plaintiff's reply is due on May 24, 2010. Signed by Judge Henry H. Kennedy, Jr. on May 18, 2010. (NP) (Entered: 05/18/2010)
2010-05-24	34	REPLY to opposition to motion re 30 MOTION for Attorney Fees and Litigation Expenses filed by JUDICIAL WATCH, INC.. (Aldrich, Jason) (Entered: 05/24/2010)
2010-06-07	35	NOTICE of Change of Address by Paul J. Orfanedes (Orfanedes, Paul) (Entered: 06/07/2010)
2010-06-07	36	NOTICE of Change of Address by Jason B. Aldrich (Aldrich, Jason) (Entered: 06/07/2010)
2011-03-31	37	MEMORANDUM OPINION AND ORDER granting 30 plaintiff's Motion for Attorney Fees and Litigation Expenses. Signed by Judge Henry H. Kennedy, Jr. on March 31, 2011. (lchhk3) (Entered: 03/31/2011)
2011-05-31	38	NOTICE OF APPEAL as to 37 Memorandum & Opinion, Order by U.S. DEPARTMENT OF JUSTICE. Fee Status: No Fee Paid. Parties have been notified. (Wolverton, Caroline) (Entered: 05/31/2011)
2011-06-01	39	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 38 Notice of Appeal. (znmw, ) (Entered: 06/01/2011)
2011-06-06		USCA Case Number 11-5140 for 38 Notice of Appeal filed by U.S. DEPARTMENT OF JUSTICE. (dr) (Entered: 06/07/2011)
2011-08-12	40	ORDER of USCA (certified copy) as to 38 Notice of Appeal filed by U.S. DEPARTMENT OF JUSTICE ; ORDERED that the motion for voluntary dismissal be granted, and this case is hereby dismissed. USCA Case Number 11-5140. (mmh) (Entered: 08/17/2011)
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