Case Detail

FOIA Project Annotation: Judge Tanya Chutkan ruled that EPIC is entitled to nearly $20,000 in attorney's fees for its suit against the FBI for access to records related to the agency's Next Generation Identification program. EPIC made two related requests to the FBI and the agency responded two days later that it had located 7,380 pages of potentially responsive records and asked EPIC to narrow the scope of its second request. EPIC did so, but after hearing nothing further from the agency, it filed suit six months later. A month later, the FBI released 592 pages responsive to EPIC's first FOIA request, including an unredacted copy of the contract for the NGI program after concluding the contract had been public at one point. Several weeks later, the parties, pursuant to Chutkan's order, filed a proposed briefing schedule stipulating that the FBI would produce all non-exempt records by August 30, 2013, with an interim release by July 31, 2013. Chutkan approved the order, the FBI provided the records, and EPIC then filed a motion for $22,124 in fees and costs. Finding EPIC had substantially prevailed because of her signed order, Chutkan pointed out that "compliance with this order constituted both some relief on the merits of EPIC's claims and a judicially sanctioned change in the parties' legal relationship. That the FBI consented to the terms mandated by the Court's Order is immaterial." The FBI argued EPIC had not substantially prevailed because the agency had already provided some records before the stipulation. Chutkan observed that "the law merely requires that the plaintiff 'substantially prevails' and achieves some of the benefits sought in bringing suit. Here, EPIC has done both." Turning to an assessment of whether EPIC was entitled to fees, Chutkan found the subject matter of the records was clearly in the public interest. She noted that "there can be little dispute that the general public has a genuine, tangible interest in a system designed to store and manipulate significant quantities of its own biometric data, particularly given the great number of people from whom such data will be gathered." Because the agency did not challenge whether EPIC had a commercial or personal interest in the records, Chutkan examined whether the agency's actions were reasonable. During the relevant time period, the FBI temporarily lost $700 million in funding due to the government shutdown and sequester and Chutkan agreed that the FBI's behavior was not unreasonable. But she pointed out that "the FBI has not advanced any colorable legal reason why, after indicating that it possessed responsive documents and asking for a revised request, it simply ceased all communication with EPIC in October 2012, until EPIC sought recourse in this Court in April 2013." The FBI argued that EPIC's fees should be reduced, particularly since the case was not terribly complex. While Chutkan trimmed EPIC's fee request, subtracting triple-billing for several teleconferences and reducing the hourly rate for an EPIC attorney who may not have been a member of the bar at the time of the litigation, she largely agreed with EPIC's claims. The FBI complained that EPIC should not be entitled to fees for the time spent reviewing 2,462 pages of released records. But Chutkan noted that "while EPIC did not subsequently challenge any of the FBI's redactions or seek further Court-ordered relief after the FBI finally produced the requested documents, it needed to review the documents before making those decisions. Such review took place during this litigation and before the parties stipulated that the underlying matter was settled." The FBI also attacked the hourly rates for several EPIC attorneys, arguing that since they had less than three years experience they were not entitled to the lowest Laffey Matrix hourly rate of $245. Chutkan observed that "in categorizing staff under the Laffey Matrix, this Court has drawn a distinction between persons who are licensed to practice law and those who are not. The Laffey Matrix does not provide a category for licensed attorneys below '1-3 years' of experience. For this reason, the Court in its discretion finds that [two of the EPIC attorneys who were recent members of the bar] most fairly qualify as attorneys in the '1-3 years' experience category of the Laffey Matrix, and therefore their reasonable hourly fee is $245." However, since there was no evidence of whether a third attorney had become a member of the bar, Chutkan lowered his rate to $145. Chutkan also allowed EPIC to collect for the time spent arguing for a fee award. She noted that "the majority of EPIC's fee requests [are] warranted and supported and. . .therefore it declines any further reduction for 'fees on fees.'"
Issues: Litigation - Attorney's fees - Eligibility - Causal effect, Litigation - Attorney's fees - Entitlement - Calculation of award, Litigation - Attorney's fees - Entitlement - Public benefit, Litigation - Attorney's fees - Prevailing party

Date Filed	Doc #	Docket Text
2013-04-08	1	COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 350 receipt number 0090-3275636) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(McCall, Ginger) (Entered: 04/08/2013)
2013-04-08	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (McCall, Ginger) (Entered: 04/08/2013)
2013-04-08		Case Assigned to Judge Reggie B. Walton. (md, ) (Entered: 04/08/2013)
2013-04-08		ELECTRONIC SUMMONS Not Issued (3) as to FEDERAL BUREAU OF INVESTIGATION, U.S. ATTORNEY AND U.S. ATTORNEY GENERAL. (md, ) (Entered: 04/08/2013)
2013-04-09	3	NOTICE of Corrected Summons by ELECTRONIC PRIVACY INFORMATION CENTER re Summons Not Issued, 1 Complaint (McCall, Ginger) (Entered: 04/09/2013)
2013-04-09	4	Electronic Summons (3) Issued as to FEDERAL BUREAU OF INVESTIGATION., ELECTRONIC SUMMONS Issued as to U.S. Attorney and U.S. Attorney General (td, ) (Entered: 04/09/2013)
2013-04-26	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/22/2013. Answer due for ALL FEDERAL DEFENDANTS by 5/22/2013. (McCall, Ginger) (Entered: 04/26/2013)
2013-05-22	6	NOTICE of Appearance by Marcia Kay Sowles on behalf of FEDERAL BUREAU OF INVESTIGATION (Sowles, Marcia) (Entered: 05/22/2013)
2013-05-22	7	ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION.(Sowles, Marcia) (Entered: 05/22/2013)
2013-05-30	8	ORDER. In accordance with the attached order, it is hereby ORDERED that the parties shall file a joint proposed briefing schedule for the filing of dispositive motions on or before June 26, 2013. Signed by Judge Reggie B. Walton on May 30, 2013. (lcrbw1, ) (Entered: 05/30/2013)
2013-05-31		Set/Reset Deadlines: Briefing Schedule due by 6/26/2013. (mpt) (Entered: 05/31/2013)
2013-06-26	9	NOTICE of Filing Joint Proposed Briefing Schedule by FEDERAL BUREAU OF INVESTIGATION re 8 Order, (Sowles, Marcia) (Entered: 06/26/2013)
2013-06-28	10	ORDER. Per the attached order, it is hereby ORDERED that the defendant shall produce to the plaintiff all non-exempt responsive materials on or before August 30, 2013, with an interim production on or before July 31, 2013. It is further ORDERED that the defendant shall file its motion for summary judgment on or before October 15, 2013; the plaintiff shall file its opposition to the defendant's motion and cross-motion for summary judgment on or before November 14, 2013; the defendant shall file its opposition to the plaintiff's cross-motion and reply in support of its motion for summary judgment on or before December 5, 2013; and the plaintiff shall file its reply in support of its cross-motion on or before January 8, 2014. It is further ORDERED that the parties shall appear before the Court for a status conference on a date to be determined by the Clerk. Signed by Judge Reggie B. Walton on June 28, 2013. (lcrbw1, ) (Entered: 06/28/2013)
2013-07-05		Set/Reset Deadlines/Hearings: Summary Judgment motion due by 10/15/2013; Opposition and Cross Motion due by 11/14/2013. Reply and Opposition to Cross Motion due by 12/5/2013. Reply to Cross Motion due by 1/8/2014. Status Conference set for 4/11/2014 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt) (Entered: 07/05/2013)
2013-08-30	11	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 08/30/2013)
2013-10-07	12	MOTION to Stay re 10 Order,,, in Light of Lapse of Appropriations by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Sowles, Marcia) (Entered: 10/07/2013)
2013-10-08		MINUTE ORDER granting 12 Motion to Stay. Upon consideration of the defendant's Motion for Stay in Light of Lapse of Appropriations, it is hereby ORDERED that all current deadlines in this case are stayed. It is further ORDERED that once Congress has restored appropriations, the deadline for the defendant to file its motion for summary judgment shall be extended for thirty days to allow the parties to proceed with discussions to resolve this case. Signed by Judge Reggie B. Walton on October 8, 2013. (lcrbw1, ) (Entered: 10/08/2013)
2013-10-18	13	NOTICE to Court of Restoration of Appropriations by FEDERAL BUREAU OF INVESTIGATION re Order on Motion to Stay,, (Sowles, Marcia) (Entered: 10/18/2013)
2013-10-24		MINUTE ORDER. In light of the Notice to the Court of Restoration of Appropriations filed in this case, it is hereby ORDERED that the stay previously imposed in this case due to the lapse in appropriations is LIFTED. Signed by Judge Reggie B. Walton on October 24, 2013. (lcrbw1, ) (Entered: 10/24/2013)
2013-12-04	14	STATUS REPORT Joint Status Report by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Rotenberg, Marc) (Entered: 12/04/2013)
2013-12-12		MINUTE ORDER. Upon consideration of the parties' Joint Status Report, ECF No. 14, it is hereby ORDERED that the summary judgment briefing schedule previously set in this case is VACATED, and the following briefing schedule is imposed: the plaintiff's motion for attorneys' fees shall be filed on or before December 13, 2013, the defendant's response to the plaintiff's motion shall be filed on or before January 10, 2014, and the plaintiff's reply in support of its motion for attorneys' fees shall be filed on or before January 17, 2014. Signed by Judge Reggie B. Walton on December 12, 2013. (lcrbw1, ) (Entered: 12/12/2013)
2013-12-13		Set/Reset Deadlines: Motions due by 12/13/2013. Opposition due by 1/10/2014 Reply due by 1/17/2014. (mpt, ) (Entered: 12/13/2013)
2013-12-13	15	MOTION for Attorney Fees by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Affidavit Horwitz, # 11 Affidavit McCall, # 12 Affidavit Rotenberg, # 13 Affidavit Scott, # 14 Affidavit Brody)(Rotenberg, Marc) (Entered: 12/13/2013)
2014-01-10	16	Memorandum in opposition to re 15 MOTION for Attorney Fees and Costs filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Exhibit 1 - Declaration of David Hardy, # 2 Exhibit Exhibits A-J to Declaration of David Hardy, # 3 Exhibit Exhibits K-P to Declaration of David Hardy, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Text of Proposed Order)(Sowles, Marcia) (Entered: 01/10/2014)
2014-01-17	17	REPLY to opposition to motion re 15 MOTION for Attorney Fees filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Affidavit Horwitz Affidavit, # 5 Exhibit Exhibit 4, # 6 Affidavit Rotenberg Affidavit, # 7 Exhibit Exhibit 5, # 8 Affidavit Scott Affidavit)(Rotenberg, Marc) (Entered: 01/17/2014)
2014-04-09		MINUTE ORDER. In light of the pending motion for attorneys' fees, it appears unnecessary to hold the previously-scheduled status conference. Accordingly, the status conference set for April 11, 2014 is CONTINUED to a date to be determined by the Clerk. Signed by Judge Reggie B. Walton on April 9, 2014. (lcrbw1) (Entered: 04/09/2014)
2014-04-09		Set/Reset Hearings: Status Conference reset for 7/8/2014 10:30 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt) (Entered: 04/09/2014)
2014-06-09		Case reassigned to Judge Tanya S. Chutkan. Judge Reggie B. Walton no longer assigned to the case. (ztnr, ) (Entered: 06/09/2014)
2014-07-02		MINUTE ORDER: The status conference set for 7/8/14 is hereby cancelled, and will be rescheduled before Judge Tanya Chutkan on a date to be determined by the Clerk. Signed by Judge Reggie B. Walton on 7/2/14. (lctsc1) (Entered: 07/02/2014)
2014-08-14		MINUTE ORDER: A Status Conference is hereby set for August 21, 2014 at 11:00 a.m. in Courtroom 2. No later than August 19, 2014, the parties shall file a joint status report that indicates whether either party believes mediation would be beneficial to resolution of the case. Status Report due by 8/19/2014 Status Conference set for 8/21/2014 11:00 AM in Courtroom 2 before Judge Tanya S. Chutkan. Signed by Judge Tanya S. Chutkan on 8/14/14. (djs) (Entered: 08/14/2014)
2014-08-15	18	Unopposed MOTION to Continue and Reset the Date for the Status Conference set for August 21, 2014, pursuant to a minute entry issued on August 14, 2014 by FEDERAL BUREAU OF INVESTIGATION (Sowles, Marcia) (Entered: 08/15/2014)
2014-08-16		MINUTE ORDER: Granting 18 Motion to Continue; The Status Conference previously set for August 21, 2014 is hereby rescheduled for September 4, 2014 at 10:00 a.m. in Courtroom 2. No later than 4:30 p.m. on September 2, 2014, the parties shall file a joint status report that indicates whether either party believes mediation would be beneficial to resolution of the case; Set/Reset Deadlines/Hearings: Status Report due by 9/2/2014; Status Conference set for 9/4/2014 10:00 AM in Courtroom 2 before Judge Tanya S. Chutkan. Signed by Judge Tanya S. Chutkan on 8/16/14. (djs) (Entered: 08/16/2014)
2014-09-02	19	STATUS REPORT by Parties pursuant to Minute Order dated August 16, 2014 by FEDERAL BUREAU OF INVESTIGATION. (Sowles, Marcia) (Entered: 09/02/2014)
2014-09-03		MINUTE ORDER: Upon the consent of counsel for both parties and in light of Plaintiff's fully briefed Motion for Attorney Fees and Costs and the parties' recently filed Joint Status Report, the Status Conference set for September 4, 2014 is hereby VACATED. Signed by Judge Tanya S. Chutkan on 09/03/2014. (lctsc3) (Entered: 09/03/2014)
2014-11-05	20	MEMORANDUM AND OPINION regarding Plaintiff's 15 Motion for Attorneys Fees. Signed by Judge Tanya S. Chutkan on 11/05/2014.(lctsc3) (Entered: 11/05/2014)
2014-11-05	21	ORDER and JUDGMENT granting in part and denying in part Plaintiff's 15 Motion for Attorney Fees. Signed by Judge Tanya S. Chutkan on 11/05/2014.(lctsc3) (Entered: 11/05/2014)
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