Case Detail

FOIA Project Annotation: Judge Randolph Moss has ruled that American Oversight is both eligible and entitled to attorney's fees in its FOIA litigation against the Department of Justice for disclosure of records concerning former Attorney General Jeff Sessions' unreported contacts with Russian officials in connection with his security clearance and contacts between the FBI and former White House Chief of Staff Reince Priebus regarding press reports of contacts between Russian nationals and individuals associated with the Trump campaign but reduced American Oversight's fee request by a third because of the relative simplicity of the litigation. American Oversight had requested expedited processing, which was granted, and by the time the parties appeared before Moss, the primary issue for resolution was to set a disclosure schedule. Moss accepted the FBI's proposed schedule and ordered the agency to comply with it. Despite some disputes between the parties, the FBI disclosed Sessions' security clearance records, including a discretionary release, and provided 239 pages with redactions in response to the Priebus request. American Oversight then filed a motion for $24,092 in attorney's fees, $8,252 for litigating the fee request, and $475 in costs. Justice argued that American Oversight was not eligible for fees since the FBI was already processing its request when American Oversight filed suit and would have disclosed the records without the need for litigation. Moss pointed out that "nothing in the [FBI's] declaration suggests that the FBI planned to produce the relevant records on the same timeline as the one adopted by the Court, absent this litigation. But, more importantly, Plaintiff could still satisfy the judicial-order requirements by showing that the Court issued an order adopting an existing production schedule." Moss noted that "because the Court required the FBI to produce non-exempt documents relevant to both the Sessions request and the Priebus request by set dates, the Court concludes that Plaintiff 'obtained relief through. . . a judicial order' and American Oversight is, accordingly, eligible for an award of attorney's fees." Having determined that American Oversight was eligible for fees, Moss turned to an examination of whether or not the organization was entitled to the fees requested. The FBI contended that the Priebus request was not in the public interest because it did not produce any evidence that the FBI responded to Priebus's query. Moss noted that "Defendants do not dispute that the topic was one that might have been of public interest. But they note that American Oversight's FOIA request failed to yield any records of public interest." He added that "American Oversight sought to confirm the accuracy of that statement, and the fact that it found no contrary evidence was itself of public value." Finding no evidence that American Oversight had made its requests because of any commercial or personal interest, Moss found those two factors did not apply. As to the reasonableness of the agency's position, Moss pointed out that because the FBI had granted expedited processing, the focus was whether or not the agency's delay was justified. He found that here the reasonableness factor did not weigh in favor of either party. However, Moss indicated that American Oversight's fee request was excessive. He noted that he was unpersuaded "that attorneys' fees of almost $20,000 for attending three status conferences and conferring with opposing counsel is reasonable." He pointed out that "extensive preparation is, of course, a good thing. But Defendants should not be required to foot the bill for preparation above and beyond what was reasonably necessary." Moss found the same problem applied to American Oversight's request for "fees-on-fees" for litigating the fee award issue, reducing that amount by a third as well because of overstaffing. As a result, Moss reduced the fee award to $16,061 in attorneys' fees and $5,501 for litigating the fee award issue.
Issues: Litigation - Attorney's fees - Eligibility, Litigation - Attorney's fees - Entitlement - Calculation of award

Date Filed	Doc #	Docket Text
2017-04-19	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-4919353) filed by American Oversight. (Attachments: # 1 Exhibit A - Priebus FOIA, # 2 Exhibit B - Sessions FOIA, # 3 Civil Cover Sheet, # 4 Summons, # 5 Summons, # 6 Summons)(Cafasso, Cerissa) (Entered: 04/19/2017)
2017-04-19	2	Corporate Disclosure Statement by American Oversight. (Cafasso, Cerissa) (Entered: 04/19/2017)
2017-04-19		Case Assigned to Judge Randolph D. Moss. (sth) (Entered: 04/19/2017)
2017-04-19	3	STANDING ORDER: The parties are hereby ORDERED to comply with the directives in the attached Standing Order. See document for details. Signed by Judge Randolph D. Moss on 4/19/2017. (lcrdm3, ) (Entered: 04/19/2017)
2017-04-19	4	ENTERED IN ERROR.....SUMMONS (3) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) Modified on 4/21/2017 (sth). (Entered: 04/19/2017)
2017-04-21	5	REQUEST FOR SUMMONS TO ISSUE filed by AMERICAN OVERSIGHT. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(Cafasso, Cerissa) (Entered: 04/21/2017)
2017-04-21	6	SUMMONS (4) Issued Electronically as to DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(sth) (Entered: 04/21/2017)
2017-04-25	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/25/2017. Answer due for ALL FEDERAL DEFENDANTS by 5/25/2017. (Attachments: # 1 Exhibit A - Receipt for Certified Mail - U.S. Attorney, # 2 Exhibit B - Receipt for Certified Mail - U.S. Attorney General, # 3 Exhibit C - Receipt for Certified Mail - Department of Justice, # 4 Exhibit D - Receipt for Certified Mail - Federal Bureau of Investigation)(Cafasso, Cerissa) (Entered: 04/25/2017)
2017-05-24	8	ANSWER to Complaint by DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION.(Motgi, Anjali) (Entered: 05/24/2017)
2017-05-24		MINUTE ORDER: The parties are hereby ORDERED to appear for a status conference on June 12, 2017, at 2:15 p.m., to discuss the schedule for further proceedings in this matter. The parties shall confer in advance of the status conference to narrow the issues for discussion. Signed by Judge Randolph D. Moss on 5/24/2017. (lcrdm3, ) (Entered: 05/24/2017)
2017-05-24		Set/Reset Hearings: Status Conference set for 6/12/2017 at 02:15 PM in Courtroom 21 before Judge Randolph D. Moss. (dot) (Entered: 05/24/2017)
2017-06-09	9	NOTICE of Appearance by Melanie Togman Sloan on behalf of AMERICAN OVERSIGHT (Sloan, Melanie) (Main Document 9 replaced on 6/9/2017) (jf). (Entered: 06/09/2017)
2017-06-12		Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 6/12/2017. Counts one (1) and four (4) of the complaint are now moot and therefore dismissed. Order forthcoming. (Court Reporter: Jeff Hook.) (kt) (Entered: 06/12/2017)
2017-06-12		MINUTE ORDER: In light of the parties' representations at today's status conference, the Court hereby ORDERS as follows: With respect to the "Sessions" FOIA request, Dkt. 1 -2, Defendants shall produce any responsive documents that are not subject to a FOIA exception or exemption on or before July 12, 2017. With respect to the "Pribeus" FOIA request, Dkt. 1 -1, Defendants shall complete their searches for any responsive documents, absent a showing of good cause, on or before July 12, 2017. To the extent practicable, Defendants shall also begin the consultation and review processes for responsive documents identified prior to the July 12 deadline. It is FURTHER ORDERED that the parties appear for a status conference on July 13, 2017, at 10:00 a.m. Signed by Judge Randolph D. Moss on 6/12/2017. (lcrdm3, ) (Entered: 06/12/2017)
2017-06-13		Set/Reset Deadlines/Hearings: Defendants to produce any responsive documents that are not subject to a FOIA exception or exemption on or before 7/12/2017; With respect to the "Pribeus" FOIA request, Defendants to complete their searches for any responsive documents, on or before 7/13/2017. Status Conference set for 7/13/2017, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 06/13/2017)
2017-07-12	10	NOTICE of Production by AMERICAN OVERSIGHT (Attachments: # 1 Exhibit)(Cafasso, Cerissa) (Entered: 07/12/2017)
2017-07-13	11	NOTICE of Filing by DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION (Motgi, Anjali) (Entered: 07/13/2017)
2017-07-13		Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 7/13/2017. Issues addressed. A further Status Conference is set for 8/14/2017, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (Court Reporter: Jeff Hook.) (kt) (Entered: 07/13/2017)
2017-08-11	12	NOTICE of Appearance by Austin Ridgely Evers on behalf of AMERICAN OVERSIGHT (Evers, Austin) (Entered: 08/11/2017)
2017-08-14		Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 8/14/2017. Joint Status Report due by 9/28/2017; The Department of Justice shall make an interim production on or before 9/28/2017, with completion of production by 11/13/2017; A further Joint Status Report is due by 11/21/2017, which shall include a joint proposed schedule for briefing, if there are outstanding issues to be resolved. And if the parties are unable to reach an agreement on a proposed joint schedule, then they are to indicate their individual prospective proposals. Within a week, the Defendant shall inform Plaintiff as to the amount of documents that can be produced in 45 days. If Plaintiff finds it unacceptable, the parties shall jointly contact the Courtroom Deputy Clerk to set up a Status Conference. (Court Reporter: Jeff Hook.) (kt) (Entered: 08/14/2017)
2017-09-28	13	Joint STATUS REPORT by DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION. (Motgi, Anjali) (Entered: 09/28/2017)
2017-11-21	14	Joint STATUS REPORT by U.S. Department of Justice et al. and by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 11/21/2017)
2017-11-21		MINUTE ORDER: In light of the parties' joint status report 14 , it is hereby ORDERED that the parties file a joint status report on or before February 28, 2018. Signed by Judge Randolph D. Moss on 11/21/17. (lcrdm3, ) (Entered: 11/21/2017)
2017-11-21		Set/Reset Deadlines: Joint Status Report due by 2/28/2018. (kt) (Entered: 11/21/2017)
2018-02-22	15	Joint STATUS REPORT by U.S. Department of Justice et al. and by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 02/22/2018)
2018-02-26		MINUTE ORDER: In light of the parties' joint status report 15 , it is hereby ORDERED that the parties shall file a joint status report on or before April 27, 2018. Signed by Judge Randolph D. Moss on 2/26/18. (lcrdm3, ) (Entered: 02/26/2018)
2018-02-26		Set/Reset Deadlines: Joint Status Report due by 4/27/2018. (kt) (Entered: 02/26/2018)
2018-04-27	16	Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 04/27/2018)
2018-04-27		MINUTE ORDER: In light of the parties' Joint Status Report 16 , it is hereby ORDERED that the parties shall file a further joint status report on or before May 25, 2018. Signed by Judge Randolph D. Moss on 4/27/18. (lcrdm3, ) (Entered: 04/27/2018)
2018-04-27		Set/Reset Deadlines: Joint Status Report due by 5/25/2018. (dot) (Entered: 04/30/2018)
2018-05-25	17	Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 05/25/2018)
2018-05-29	18	MINUTE ORDER: It is hereby ORDERED that the following schedule shall govern further proceedings in this case: (1) Plaintiff shall file its petition for attorneys' fees on or before June 19, 2018; (2) Defendants shall file their opposition on or before July 13, 2018; and (3) Plaintiff shall file its reply on or before July 27, 2018. Signed by Judge Randolph D. Moss on 5/29/18. (lcrdm3, ) (Entered: 05/29/2018)
2018-05-29		Set/Reset Deadlines: Plaintiff shall file its petition for attorneys' fees on or before 6/19/2018; Defendants shall file their opposition on or before 7/13/2018; Plaintiff shall file its reply on or before 7/27/2018. (kt) (Entered: 05/29/2018)
2018-05-30	19	TRANSCRIPT OF PROCEEDINGS before Judge Randolph D. Moss held on June 12. 2017; Page Numbers: 1 - 30. Date of Issuance: May 30, 2018. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abov e. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 6/20/2018. Redacted Transcript Deadline set for 6/30/2018. Release of Transcript Restriction set for 8/28/2018.(Hook, Jeff) (Entered: 05/30/2018)
2018-05-30	20	TRANSCRIPT OF PROCEEDINGS before Judge Randolph D. Moss held on July 13, 2017; Page Numbers: 1 - 38. Date of Issuance: May 30, 2018. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abo ve. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 6/20/2018. Redacted Transcript Deadline set for 6/30/2018. Release of Transcript Restriction set for 8/28/2018.(Hook, Jeff) (Entered: 05/30/2018)
2018-05-30	21	TRANSCRIPT OF PROCEEDINGS before Judge Randolph D. Moss held on August 14, 2017; Page Numbers: 1 - 16. Date of Issuance: May 30, 2018. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced ab ove. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 6/20/2018. Redacted Transcript Deadline set for 6/30/2018. Release of Transcript Restriction set for 8/28/2018.(Hook, Jeff) (Entered: 05/30/2018)
2018-06-19	22	NOTICE of Appearance by Daniel Alexander McGrath on behalf of AMERICAN OVERSIGHT (McGrath, Daniel) (Entered: 06/19/2018)
2018-06-19	23	MOTION for Attorney Fees by AMERICAN OVERSIGHT (Attachments: # 1 Declaration Cafasso, and Exhibits, # 2 Declaration Chief Counsel, # 3 Declaration Creighton, # 4 Declaration Evers, # 5 Text of Proposed Order)(McGrath, Daniel) (Entered: 06/19/2018)
2018-07-13	24	Memorandum in opposition to re 23 MOTION for Attorney Fees filed by DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Declaration of David M. Hardy, # 2 Exhibit A-F to Hardy Decl.)(Motgi, Anjali) (Entered: 07/13/2018)
2018-07-27	25	REPLY to opposition to motion re 23 MOTION for Attorney Fees filed by AMERICAN OVERSIGHT. (Attachments: # 1 Declaration Suppl. Cafasso Decl. and Exs., # 2 Declaration Suppl. Chief Counsel Decl., # 3 Declaration McGrath Decl., # 4 Text of Proposed Order Amended Proposed Order)(McGrath, Daniel) (Entered: 07/27/2018)
2019-03-25	26	MEMORANDUM OPINION AND ORDER: American Oversight's motion for an award of attorneys' fees and costs, Dkt. 23, is hereby GRANTED in part and DENIED in part. See document for details. Signed by Judge Randolph D. Moss on 3/25/2019. (lcrdm2, ) (Entered: 03/25/2019)
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