Case Detail

FOIA Project Annotation: A federal court in Virginia has awarded the American Bird Conservancy $106,000 in attorney's fees for its suit against the Fish and Wildlife Service for records pertaining to the dangers wind energy development pose to birds. American Bird Conservancy made three FOIA requests for records and although the agency disclosed records for all three, it withheld some records under various exemptions, including Exemption 7(A) (interference with ongoing investigation or proceeding). Two months after the Conservancy filed suit, the Office of the Secretary at the Department of the Interior released an additional 1200 pages. Several months later when the Conservancy filed its motion for summary judgment, the agency disclosed the records previously withheld under Exemption 7(A), indicating the investigation was no longer open. After a court-ordered in camera review, the agency released other documents. The agency argued that the Conservancy was not entitled to attorney's fees because its suit did not cause the agency to disclose the records. While the Conservancy claimed DOI's release of the 1200 documents was the result of its suit, the agency argued the release was due to the fact that it took several months to gather responsive records, review them, and then disclose them. The court sided with the government, noting that "it was not unreasonable for defendants to take four-and-a-half months to respond to plaintiff's FOIA request, especially considering the volume of the documents to be produced and the fact. . .that prompt steps were taken to identify, review, and release the responsive documents." The court, however, rejected the agency's assertion that it dropped the Exemption 7(A) claim because the status of the documents had evolved and were no longer exempt. The court pointed out that "the timing of this document release, in conjunction with the fact that plaintiff's summary judgment response specifically attacked the withholding of documents on Exemption 7(A) grounds, corroborates plaintiff's contention that plaintiff's summary judgment filing was the cause of the release. . .The fact that the determination to disclose these documents occurred after consultation with the Department of Justiceâ€" presumably including the summary judgment recordsâ€"persuasively suggests that the [later] document release was the result of reconsideration of defendants' position with respect to these documents based on plaintiff's summary judgment filing." The court observed that since other documents had been released after the court-ordered in camera review, their disclosure also entitled the Conservancy to attorney's fees. The court found that some of the documents clearly touched upon matters of public interest and that the agency's claim that Exemption 7(A) was applicable was not persuasive. The agency argued that since the Conservancy had only prevailed on two specific sets of releases, its fee request should be discounted to reflect its level of success. But the court noted that "plaintiff could not have known [beforehand] that these documents would be the only source of its entitlement to attorney's fees since, by definition, the contents of the released documents were unknown when plaintiff initially submitted its FOIA requests. To penalize and limit plaintiff to an attorney's fees award related only for hours expended related to these document release would be to ignore the realities of the 'normal FOIA litigation process.'" The Conservancy argued that its D.C.-based attorney should be compensated at hourly rates for D.C. attorneys; the court found that prevailing rates in the Eastern District of Virginia were the appropriate measure of compensation. Reducing the Conservancy's hourly rates by about $100 an hour, the court concluded that a fee of $106,000 was appropriate.
Issues: Litigation - Attorney's fees - Eligibility - Causal effect

Date Filed	Doc #	Docket Text
2013-06-14	1	COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 14683036740.), filed by American Bird Conservancy. (Attachments: # 1 Civil Cover Sheet, # 2 Letter, # 3 Receipt)(gwalk, ) (Entered: 06/18/2013)
2013-06-14	2	Financial Interest Disclosure Statement (Local Rule 7.1) by American Bird Conservancy. (gwalk, ) (Entered: 06/18/2013)
2013-06-14	3	Summons Issued as to All Defendants, and U.S. Attorney General for service by certified mail and as to the U.S. Attorney for Service by SPS. (gwalk, ) Modified on 7/10/2013 to clarify the method of service for all defts, the U.S. Atty Gen. and the U.S. Atty for the EDVA (stas). (Entered: 06/18/2013)
2013-06-18	4	Motion to appear Pro Hac Vice by Jessica Almy and Certification of Local Counsel Tammy L. Belinsky Filing fee $ 75, receipt number 0422-3560481. by American Bird Conservancy. (Belinsky, Tammy) (Entered: 06/18/2013)
2013-06-18	5	Motion to appear Pro Hac Vice by Eric R. Glitzenstein and Certification of Local Counsel Tammy L. Belinsky Filing fee $ 75, receipt number 0422-3560531. by American Bird Conservancy. (Belinsky, Tammy) (Entered: 06/18/2013)
2013-06-19	6	ORDER granting 4 Motion to appear Pro Hac Vice by Jessica Almy. Signed by District Judge T. S. Ellis, III on 6/19/2013. (stas) (Entered: 06/20/2013)
2013-06-19	7	ORDER granting 5 Motion to appear Pro Hac Vice by Eric R. Glitzenstein. Signed by District Judge T. S. Ellis, III on 6/19/2013. (stas) (Entered: 06/20/2013)
2013-07-01	8	AFFIDAVIT of Service by American Bird Conservancy. (Belinsky, Tammy) (Entered: 07/01/2013)
2013-07-01		Notice of Correction re: 8 AFFIDAVIT of Service by American Bird Conservancy. The filing user has been reminded that returns of service on a summons are an exception to electronic filing and the affidavit of service and green cards should be filed in paper form with the Clerk's Office. (stas) (Entered: 07/02/2013)
2013-07-09	9	AFFIDAVIT of Service for Summons and Complaint served by Certified Mail on United States Fish and Wildlife Service, United States Department of the Interior and U.S. Attorney General on 6/18/2013; 6/18/2013 and 6/19/2013 respectively, filed by American Bird Conservancy. (Attachments: # 1 Attachment A, # 2 Cover Letter)(stas) (Entered: 07/11/2013)
2013-07-18	10	SUMMONS Returned Executed U.S. Attorney served on 6/14/2013. (Attachments: # 1 Letter)(nhall) (Entered: 07/19/2013)
2013-07-29	11	ANSWER to 1 Complaint by U.S. Department of Interior, U.S. Fish and Wildlife Service.(Sher, R.) (Entered: 07/29/2013)
2013-07-30		Notice of Correction re: 11 ANSWER to 1 Complaint by U.S. Department of Interior, U.S. Fish and Wildlife Service. The filing user has been asked to refile only the Certificate of Service with the required elements of the signature block. (stas) (Entered: 07/30/2013)
2013-08-06	12	SCHEDULING ORDER: Initial Pretrial Conference set for 8/28/2013 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Thomas Rawles Jones Jr. Discovery due by 12/13/2013. Final Pretrial Conference set for 12/19/2013 at 11:00 AM in Alexandria Courtroom 900 before District Judge T. S. Ellis III (See order for details). Signed by District Judge T. S. Ellis, III on 8/6/2013. (Attachments: # 1 Pretrial Notice, # 2 Alexandria Magistrate Judge Consent Form)(stas) (Entered: 08/07/2013)
2013-08-20	13	Discovery Plan by American Bird Conservancy, U.S. Department of Interior, U.S. Fish and Wildlife Service.(Sher, R.) (Entered: 08/20/2013)
2013-08-21	14	CERTIFICATE of Service re 13 Discovery Plan by R. Joseph Sher on behalf of All Defendants (Sher, R.) (Entered: 08/21/2013)
2013-08-27	15	Rule 16(b) Scheduling Order - Upon consideration of the record and the representations made by the parties in their discovery plan, the court makes the following rulings: a. Parties shall deliver to my chambers (not to the Clerk's office) a copy of every non-dispositive motion and every document relating to such a motion within one business day of filing it. b. Rule 26(a) disclosures, depositions, interrogatories, requests for documents and admissions, and answers thereto shall not be filed except on order of the court, or for use in a motion or at trail. c. No "general objection" may be asserted in response to any discovery demand except to preserve the attorney-client privilege and work product protection. d. The Rule 26(f) report filed by the parties is approved (except for the provisionfor scheduling dispositive motions. The parties shall file a motion addressed to Judge Ellis for approval of a summary judgment schedule. (See order for details) Signed by Magistrate Judge Thomas Rawles Jones, Jr on 8/27/2013. (stas) (Entered: 08/27/2013)
2013-08-30	16	Joint MOTION Joint Motion for a Litigation Schedule by American Bird Conservancy. (Attachments: # 1 Proposed Order)(Belinsky, Tammy) (Entered: 08/30/2013)
2013-09-03	17	ORDER Upon consideration of the parties' Joint Motion for a Litigation Schedule, and of the whole record in this action, it is Ordered that the litigation shall proceed as follows: A. On or before Friday, September 20, 2013 the deft will produce to the pltf a Vaughn index of documents or portions of documents responsive to the requests at issue in this action which have been withheld or redacted. B. On or before October 4, 2013 the pltf's counsel will advise the deft and the Court which, if any, of the documents identified in the Vaughn index are no longer in issue in this case. The deft will then have to and including November 1, 2013 to file a motion for summary judgment as to the documents withheld or redacted which remain in issue. C. On or before November 29, 2013 the pltf may file an opposition to the defts'motion for summary judgment, and, if they are so advised, a cross-motion for summary judgment. D. The deft may file a reply to the pltf's motion for summary judgment and an opposition to the pltf's cross-motion (if such is filed) on or before December 20, 2013. E. The pltf may file a reply in support of its cross-motion for summary judgment (if such is filed) on or before January 6, 2014. F. The Court may hear the motion and cross motion, or deem it submitted should the court determine that a hearing will not aid the decisional process. If a hearing is required, it will be held at 10 AM, Friday, Jan 24, 2014. Signed by District Judge T. S. Ellis, III on 9/3/2013. (stas) Modified on 9/4/2013 to correct hearing date (stas). (Main Document 17 replaced on 9/4/2013) (stas, ). (Entered: 09/04/2013)
2013-10-04	18	NOTICE by American Bird Conservancy pursuant to paragraph B of Doc. No. 17 (Attachments: # 1 Letter advising which documents are no longer at issue)(Belinsky, Tammy) (Entered: 10/04/2013)
2013-10-23	19	NOTICE by American Bird Conservancy Withdrawal of Counsel (Belinsky, Tammy) (Entered: 10/23/2013)
2013-11-12	20	Joint MOTION for Extension of the Briefing Schedule by American Bird Conservancy, U.S. Department of Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 11/12/2013)
2013-11-12	21	ORDER granting 20 Motion for Extension of Time to File. ORDERED that the litigation shall proceeds as follows: The defendant may have to and inclduing 11/22/2013 to file a motion for summary judgment as to the documents withheld or redaced which remain at issued; on or before 12/23/13 the plaintiff may file an opposition to defendants' motion for summary judgment, and, if they are so advised, a cross-moiton for summary judgment; that defendant may file a reply to the plaintiff's motion for summary judgment and an opposition to the plaintiff's cross-motion on or before 1/15/2014; the plaintiff may file a reply in support of its cross-motion for summary judgment on or before 1/30/2014; the Court may hear the motion and cross motion, or deem it submitted should the court determine that a hearing will not aid the decisional process on or after 2/14/2014. Signed by District Judge T. S. Ellis, III on 11/12/2013. (rban, ) (Entered: 11/12/2013)
2013-11-12		Alexandria Set Hearing: Summary Judgment Hearing set for 2/14/2014 at 10:00 AM in Alexandria Courtroom 900 before District Judge T. S. Ellis III. (rban, ) (Entered: 11/12/2013)
2013-11-22	22	MOTION for Summary Judgment by U.S. Department of Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Affidavit Gates Declaration, # 2 Affidavit Smith Declaration, # 3 Affidavit Ikenson Declaration, # 4 Affidavit Erfling Declaration, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7)(Sher, R.) (Entered: 11/22/2013)
2013-11-22	23	Memorandum in Support re 22 MOTION for Summary Judgment filed by U.S. Department of Interior, U.S. Fish and Wildlife Service. (Sher, R.) (Entered: 11/22/2013)
2013-12-16		Reset Scheduling Order Deadline: Final Pretrial Conference reset for 12/19/2013 at 02:00 PM in Alexandria Courtroom 900 before District Judge T. S. Ellis III. (rban, ) (Entered: 12/16/2013)
2013-12-17	24	Joint MOTION to Continue the FInal Pretrial Conference Scheduled for December 19, 2013 by American Bird Conservancy, U.S. Department of Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 12/17/2013)
2013-12-17	25	ORDER granting 24 Motion to Continue. Signed by District Judge T. S. Ellis, III on 12/17/13. (gwalk, ) (Entered: 12/17/2013)
2013-12-23	26	Opposition to 22 MOTION for Summary Judgment , 23 Memorandum in Support and Cross Motion for Summary Judgment filed by American Bird Conservancy. (Attachments: # 1 Memorandum In Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Proposed Order)(Belinsky, Tammy) (Entered: 12/23/2013)
2014-01-15	27	REPLY to Response to Motion re 22 MOTION for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed by U.S. Department of Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Supplement Supplemental Vaughn Index, # 2 Affidavit Declaration of Stuart Webster, # 3 Affidavit Declaration of Robert C. Myer)(Sher, R.) (Entered: 01/15/2014)
2014-01-29	28	NOTICE of Appearance by Michelle Danielle Sinnott on behalf of American Bird Conservancy (Sinnott, Michelle) (Entered: 01/29/2014)
2014-01-30	29	Reply to 26 Opposition,, In Support of Plaintiff's Motion for Summary Judgment filed by American Bird Conservancy. (Sinnott, Michelle) (Entered: 01/30/2014)
2014-01-31	30	CERTIFICATE of Service re 29 Reply by Michelle Danielle Sinnott on behalf of American Bird Conservancy (Sinnott, Michelle) (Entered: 01/31/2014)
2014-02-12		Alexandria Set/Reset Hearings: Summary Judgment Hearing set for 2/21/2014 at 10:00 AM in Alexandria Courtroom 900 before District Judge T. S. Ellis III. (rban, ) (Entered: 02/12/2014)
2014-02-21	31	Minute Entry for proceedings held before District Judge T. S. Ellis, III:Motion Hearing held on 2/21/2014 re: 22 23 MOTION for Summary Judgment filed by U.S. Fish and Wildlife Service, U.S. Department of Interior 26 Response and Cross-Motion of American Bird Conservancy. Appearances: Michaelle Sinnot, Eric Glitzensten for Pltff; Joseph Sher, Roland Blackmon for gov't. Argued and T.U.A. Mr. Sher may file by 2 wks. from today, in camera submissions for the Court to review. (Court Reporter M. Rodriquez.)(tbul, ) (Entered: 02/25/2014)
2014-02-21	32	ORDER, for reasons stated from the bench, TAKING UNDER ADVISEMENT the parties' cross-motions 22 26 for summary judgment. Further ORDERED that Defts are to submit the 73 documents still at issue by 3/7/14 5:00 p.m. for in camera review, and the Court will decide the matter without further oral argument unless otherwise ordered. /s/ by District Judge T. S. Ellis, III on 2/21/14. (tbul, ) (Entered: 02/25/2014)
2014-03-07	33	NOTICE by U.S. Department of Interior, U.S. Fish and Wildlife Service re 32 Order on Motion for Summary Judgment, of Submission od Documents for In Camera Review (Sher, R.) (Entered: 03/07/2014)
2014-03-27	34	ORDER- It is hereby ORDERED that defendants are DIRECTED to retrieve the submitted documents from chambers promptly, and then to resubmit the documents by April 10, 2014 at 5 p.m. in the following form: 1-5 of the order. Signed by District Judge T. S. Ellis, III on 3/27/14. (see order for further details).(gwalk, ) (Entered: 03/27/2014)
2014-04-07	35	NOTICE by U.S. Department of Interior, U.S. Fish and Wildlife Service re 34 Order, (Sher, R.) (Entered: 04/07/2014)
2014-04-07	36	ORDERED that the parties are directed to appear before the Court at 10:00AM on 4/25/2014. The attorneys or attorneys for defendant who were responsible for complying with the Court's 3/27/2014 Order 34 must attend. Signed by District Judge T. S. Ellis, III on 04/07/2014. (mpha) (Entered: 04/10/2014)
2014-04-25	37	Minute Entry for proceedings held before District Judge T. S. Ellis, III: Docket Call held on 4/25/2014. Tammy L. Belinsky present on behalf of Plaintiff. Joseph Sher & Roland Blackmon present on behalf of defendant. Counsel admonished to resubmit documents as directed by Order 34 . Documents to be resubmitted by 5/2/2014. Documents box returned to counsel in open court. Order to follow. (Court Reporter Michael A. Rodriquez)(mpha) (Entered: 04/25/2014)
2014-04-25	38	ORDER for the reasons stated from the bench, and for good cause, defendants are directed to resubmit the documents for in camera review by 5/2/2014 @ 5:00PM. The submitted documents must be in full compliance with the Court's 03/27/2014 Order (Doc. 34 ). Signed by District Judge T. S. Ellis, III on 04/25/2014. (mpha) (Entered: 04/28/2014)
2014-05-02	39	NOTICE by U.S. Department of Interior, U.S. Fish and Wildlife Service re 38 Order, (Sher, R.) (Entered: 05/02/2014)
2014-05-14	40	NOTICE by American Bird Conservancy re 26 Opposition,, 29 Reply of Filing (Attachments: # 1 Attachment A, # 2 Certificate of Service)(Sinnott, Michelle) (Entered: 05/14/2014)
2014-06-24	41	ORDER granting in part and denying in part 22 Motion for Summary Judgment.Accordingly, the Clerk is DIRECTED to enter judgment pursuant to Rule 58, Fed. R. Civ. P., in favor of defendants with regard to these documents.It is further ORDERED that plaintiffs motion for summary judgment is GRANTED IN PART and DENIED IN PART. Accordingly, the Clerk is DIRECTED to enter judgment pursuant to Rule 58, Fed. R. Civ. P., in favor of plaintiff with regard to these documents. Signed by District Judge T. S. Ellis, III on 6/24/14.(see order for further details). (gwalk, ) (Entered: 06/25/2014)
2014-06-25	42	Rule 58 JUDGMENT in favor of the defendants. Signed by Clerk on 6/25/14. (gwalk, ) (Entered: 06/25/2014)
2014-06-25	43	RULE 58 JUDGMENT in favor of plaintiff. Signed by Clerk on 6/25/14. (gwalk, ) (Entered: 06/25/2014)
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