Hiken et al v. Department of Defense et al

MOTION for Attorney Fees

N.D. Cal.June 14, 2012

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C. § 522(a)(4)(E) COLLEEN FLYNN, SBN 234281 CHRIS FORD, SBN 239376 3435 Wilshire Blvd., Suite 2900 Los Angeles, CA 90010 Telephone: (213) 487-8000 Facsimile: (213) 487-8001 E-mail: colleen_ucsc@hotmail.com W. GORDON KAUPP, SBN 226141 115 ½ Bartlett Street San Francisco, CA 94110 Telephone: (415) 285-8091 Facsimile: (415) 285-8092 E-mail: gordonk@hotmail.com ATTORNEYS FOR PLAINTIFFS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MARGUERITE HIKEN and THE MILITARY LAW TASK FORCE, Plaintiffs, v. DEPARTMENT OF DEFENSE and UNITED STATES CENTRAL COMMAND, Defendants. Case No. CV-06-2812 (MHP) PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR AN ATTORNEY FEE AWARD PER 5 U.S.C. § 552(a)(4)(E); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Hearing Date: July 9, 2012 Time: 9 a.m. Courtroom: 9, 19th floor Judge: Hon. James Ware Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page1 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) TABLE OF CONTENTS NOTICE OF MOTION .....................................................................................................4 MEMORANDUM OF POINTS AND AUTHORITIES ................................................5 INTRODUCTION ............................................................................................................6 ARGUMENT....................................................................................................................12 I. THE COURT SHOULD AWARD ATTORNEY FEES TO PLAINTIFFS BECAUSE THEY SUBSTANTIALLY PREVAILED IN THE LITIGATION....................................................................................................13 A. Plaintiffs Substantially Prevailed Under Buckhannon for Attorney Fees Earned Prior to December 31, 2007 Because They Obtained “Some Relief” From This Court .............................................................13 B. Plaintiffs Substantially Prevailed Under the Current Reading of § 552 (a)(4)(E) for Attorney Fees Earned Subsequent to December 31, 2007 Because the Relief They Obtained Was Via Judicial Order ................15 II. PLAINTIFFS ARE ENTITLED TO ATTORNEY FEES ............................16 A. Disclosure “Furthers a Project Benefiting the General Public” ..........17 B. The Nature of Plaintiff’s Interest is Scholarly, Journalistic and in the Public Interest...........................................................................................17 C. There is No “Reasonable Basis” for Defendants’ Withholding ...........18 a. Defendants’ Dilatory Conduct Demonstrated “Recalcitrance” and “Obduracy,” Justifying an Order for Attorney Fees on This Basis Alone ...................................................................................................20 b. Defendants’ Actions Lacked a “Colorable Basis” ..........................22 III. THE COURT SHOULD ORDER DEFENDANTS TO PAY PLAINTIFFS THE LODESTAR AMOUNT..........................................................................23 A. The Court should Defer to Counsel’s Professional Judgment in Determining Whether the Number of Hours Billed Is Reasonable .....23 B. The Court Should Apply Plaintiffs’ Attorneys’ Current Billing Rates in Light of Their Having Worked on This Matter for More Than Six Years Without Compensation .................................................................25 CONCLUSION ...............................................................................................................26 Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page2 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) TABLE OF AUTHORITIES CASES American Small Business League v. U.S. Small Business Admin., 2009 WL 1011632 (N.D. Cal. 2009) ........................................................................................14, 15, 19, 20, 23 Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001) ...........................................................................10, 11, 12 Church of Scientology of California v. U.S. Postal Service, 700 F.2d 486 (9th Cir. 1983) .. .............................................................................................................13, 14, 15 Contreras v. U.S. Dept. of Justice, 729 F.Supp.2d 167 (D.C. Cir 2010).....................10, 12 Davis v. Dept’t of Justice, 460 F.3d 92 (D.C. Cir. 2006) ..................................................10 Davy v. C.I.A., 550 F.3d 1155 (D.C. Cir. 2008) ..............................................10, 13, 15, 16 Fenster v. Brown, 617 F.2d 740 (D.C. Cir. 1979) .............................................................15 Hart v. United States HHS, 676 F.Supp.2d 846, 857 (D. Ariz. 2009)...............................13 Hiken v. Dep’t. of Defense, 521 F.Supp.2d 1047 (N.D. Cal. 2007) ........5, 6, 11, 18, 19, 21 Jones v. Metro Life Ins. Co., No. C 08-03971, 2012 U.S. District LEXIS 33817 (N.D. Cal, Feb. 24, 2012) ....................................................................................................................22 Long v. I.R.S, 932 F.2d 1309 (9th Cir. 1991) ................................................................9, 20 Los Angeles Gay & Lesbian Community Services Center v. IRS, 559 F.Supp.2d 1055 (C.D. Cal. 2008).....................................................................................................14, 19, 20 Miller v. Holzmann, 575 F.Supp.2d 2 (D.D.C. 2008)........................................................20 Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008)...................................20, 21 National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982) .................................................................................................................22 O’Neill, Lyasght & Sun v. D.E.A., 951 F.Supp. 1413 (C.D. Cal. 1996)......................14, 15 Oregon Natural Desert Assn. v. Locke, 572 F.3d 610 (9th Cir. 2009) ..............................10 Peter S. Herrick’s Customs and Intern. Trade Newsletter v. U.S. Customs and Border Protection, 2006 WL 3060012, 34 Media L. Rep. 2460 (D.D.C. 2006) ...........................16 Powell v. U.S. Dept. of Justice, 569 F.Supp 1192 (N.D. Cal. 1983) .................................20 Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page3 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) Preservation Coalition of Erie County v. Federal Transit Admin., 356 F.3d 444 (2nd Cir. 2004) ..................................................................................................................11 Read v. F.A.A., 252 F.Supp.2d 1108 (W.D. Wash. 2003) .....................................16, 17, 19 Welch v. Metro. Life Ins. Co., 480 F.3d 942 (9th Cir. 2007).............................................22 Wheeler v. IRS, 37 F.Supp.2d 407 (W.D. Pa. 1998)..............................................16, 18, 19 Wildlands CPR v. U.S. Forest Service, 558 F.Supp.2d 1096 (D. Mont. 2008) .................10 STATUTES 5 U.S.C. § 552(a)(4)(E) ......................................................................................1, 9, 10, 12 5 U.S.C. § 552(a)(4)(E)(i)....................................................................................................9 5 U.S.C. § 552(a)(4)(E)(ii) ................................................................................................13 5 U.S.C. § 552(a)(6)(A)(i) ................................................................................................17 5 U.S.C. § 552(a)(6)(A)(ii) ...............................................................................................17 5 U.S.C. § 552(b) ................................................................................................................3 Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page4 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) NOTICE OF MOTION TO THE HONORABLE COURT, THE PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 9, 2012 at 9:00 a.m. in Courtroom 9 of the Honorable James Ware, United States District Chief Judge, at the United States Courthouse, for the Northern District of California, 450 Golden Gate Avenue, 19th Floor, San Francisco, California 94102, Plaintiffs Marguarite Hiken and the Military Law Task Force will and hereby do move this Court to issue an Order awarding attorney fees and costs under 5 U.S.C. § 552(a)(4)(E) in the amount of $381,633.99. This motion is based upon the attached memorandum of points and authorities, the attached declarations and exhibits, the pleadings and papers filed in this case, and such written and oral arguments as may hereinafter be made by the parties. DATED: June 14, 2010 BY: ______/s/___________________ Chris Ford Counsel for Plaintiffs Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page5 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiffs in this case, Marguerite Hiken and the Military Law Task Force of the National Lawyers Guild, have substantially prevailed. Through this litigation, they have obtained the release of documents the defendants, Department of Defense and United States Central Command, sought to withhold from the public. These documents relate to the Rules of Engagement in effect during the war in Iraq and controversial and heavily criticized action by the United States Military, i.e., the 2005 shooting of Italian journalist Giuliana Sgrena and Italian agent Nicola Calipari near Baghdad, Iraq. These documents include a voluminous after-action report on the Sgrena incident containing investigative analysis and findings, photographs, and communications between the U.S. and Italian governments. The released documents also include information about limitations on the use of force, escalation of force procedures, and other Rules of Engagement in effect during the war in Iraq. The released documents shed light on the manner in which our government conducts wars abroad and are, therefore, the types of documents whose release promotes transparency, public debate, and democracy. The Freedom of Information Act (“FOIA”) was enacted to promote exactly such principles. Nevertheless, substantial litigation was required to obtain their release, as the defendants resisted disclosure and repeatedly failed to comply with their obligations under the Act. Notably, most of the work plaintiffs’ counsel have done on this case over the past seven years would not have been required if defendants had taken their obligations under the FOIA seriously by searching for responsive documents and segregating and releasing non-exempt information in response to plaintiffs’ initial, administrative request in 2005. Had they done so at the administrative level, a lawsuit may never have even been filed. Not only did defendants fail to adequately search for, segregate and release responsive materials, defendants further disregarded their statutory obligations by repeatedly submitting grossly inadequate Vaughn Indices and declarations with boilerplate, overly simplistic and conclusory explanations as to the justifications for withholding. And, at least in the case of the Ghormely declaration, the government submitted Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page6 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) misleading information to plaintiffs and the Court, preventing the Court from ruling on exemptions to disclosure and generating the need for additional litigation. Throughout this lawsuit, defendants expected the Court to simply take their word that release of any withheld material would endanger service members. Such a false and unreasonable position created the need for plaintiffs to aggressively litigate the case and resulted in court orders requiring defendants to release more information after almost every stage of litigation. As Judge Marilyn Hall Patel stated in her last order, defendants’ “just 'trust us' attitude does not satisfy section 552(b) or the extensive body of case law expounding on it." Order Re Motions for Summary Judgment at 21:1-2, Dkt. No. 94 (“Feb. 2012 Order”). Defendants’ most flagrant disregard for their statutory obligations appears to be their failure to produce, or even identify, a single Fallujah-related document. Plaintiffs’ 2005 FOIA request included the Rules of Engagement (“ROE”) in effect for the 2004 sieges of Fallujah. At the most recent hearing in this matter, on May 14, 2012, counsel for defendants informed the Court that defendants were unable to find any Fallujah-related documents and so provided plaintiffs with the closest documents they could find. See Decl. of Colleen Flynn, para. 13, filed concurrently herewith. It is unfathomable that defendants could not locate a single ROE-related document from Fallujah, where they carried out an extended siege of the city and the ROE for the siege were highly debated in the media. (See discussion of Fallujah in Plaintiffs’ Opposition to Defendants’ Motion for Clarification and Partial Reconsideration, Dkt. No. 108, filed April 11, 2012). Despite defendants’ resistance to transparency and, as Judge Patel observed, “cavalier” attitude towards their statutory obligations, Feb. 2012 Order at 21:22-24, plaintiffs were ultimately successful in this litigation. They obtained the release of thousands of pages of requested documents, substantially prevailing in this matter, and are they now are eligible for and entitled to an award of attorney fees. PROCEDURAL HISTORY On March 17, 2005, the Military Law Task Force of the National Lawyers Guild and Marguerite Hiken (“plaintiffs”) submitted a Freedom of Information Act (“FOIA”) request to Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page7 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) the Department of Defense requesting the ROE and other documents for the soldiers involved in the shooting attack on Guiliana Sgrena’s car and the soldiers involved in the siege of Fallujah. Specifically, plaintiffs requested: (1) Any and all Rules of Engagement (whether called so, or by any other name) in effect for military personnel who, on March 4, 2005, fired upon, or ordered the firing upon, the car carrying Italian journalist Giuliana Sgrena while she was en route to the Baghdad, Iraq airport; (2) Any other documents bearing on any purported justification for the actions taken by the military, or any personnel, in firing on Ms. Sgrena’s car on March 4, 2005; (3) Any and all Rules of Engagement (whether called so, or by any other name) in effect for military personnel engaged in Fallujah, Iraq from March through December, 2004; and, (4) Any and all documents (guidelines, directives, trainings, rules, orders, etc.) which relate to, touch upon, or concern the judgments of U.S. military personnel in Iraq in distinguishing between civilians and combatants, including without limitation such decision-making in Fallujah and along the road to the Baghdad Airport in Iraq. On August 15, 2005, U.S. Central Command (“CENTCOM”) denied the request outright and on September 26, 2005 plaintiffs submitted an administrative appeal to the Department of Defense as instructed by CENTCOM. Plaintiffs filed this action in federal court on April 25, 2006. On October 6, 2006, seven months after plaintiffs filed suit and over year after submitting their administrative appeal, defendants denied the appeal. On November 1, 2006, CENTCOM sent plaintiffs a heavily redacted Army Regulation 15-6 investigative report (“AR 15-6 Report”) with associated Annexes A through J and L through M. Apparently, the government had lost Annex K, a document classified as “SECRET.” (See Decl. of Maj. Gen. Ghormley, para. 12 fn. 1, Dkt. No. 18, “The 15-6 report is missing Annex K. MNF-I and USCENTCOM have conducted diligent and reasonable searches for Annex K but have been unable to locate it.”) The report and annexes concern the U.S. military’s investigation into the attack by U.S. military personnel on the car carrying Ms. Sgrena. The letter accompanying the report and annexes informed the plaintiffs that the defendants continue to withhold all other responsive Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page8 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) materials. Annex K was later found and provided. No documents regarding Fallujah were provided, even in redacted format. By letter dated November 7, 2006, CENTCOM sent plaintiffs supplemental responsive documents from the annexes to the AR15-6 Report, which it had failed earlier to disclose. Additionally, the letter informed plaintiffs that CENTCOM had located another eight pages of documents that “fall under the purview of the Department of State (DOS),” and that those pages were forwarded to DOS “for a direct response” to plaintiffs. These documents were the subject of defendants’ supplemental motion for summary judgment. (Dkt. Nos. 46, 60). In her Feb. 2012 Order, Judge Patel denied defendants’ motion seeking to withhold these documents and ordered defendants to release them in their entirety. Feb. 2012 Order at 23:18-21. The parties filed cross motions for summary judgment in December 2006/January 2007, and Judge Patel held a hearing on these motions on March 26, 2007. On October 2, 2007, she issued a ruling on these motions, Hiken v. DoD, 521 F.Supp.2d 1047 (N.D. Cal. 2007) (Dkt. No. 53) (“Hiken” or “2007 Order”), ordering defendants to segregate and release non-exempt materials and produce information concerning certain names assigned to routes or units in the AR 15-6 report. Judge Patel also ordered defendants to provide the Court with a supplemental declaration, a revised Vaughn Index and the withheld documents for in camera review because defendants’ declarations and Index were inadequate; defendants had, incorrectly, expected Judge Patel to sanction their “just trust us” approach and rule on FOIA exemptions with only the incomplete and misleading information they had provided. Feb. 2012 Order at 21:1-2. In response to the Court’s 2007 Order, defendants produced a revised version of the AR 15- 6 Report with significantly fewer redactions and 117 pages of ROE-related documents which had previously been withheld in their entirety. Defendants also filed further declarations and a revised Vaughn Index, and submitted all documents to the Court for in camera review. Because Judge Patel had insufficient information from the government to rule on whether or not the search was sufficient, defendants also conducted an entirely new search, resulting in their finding many additional documents. Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page9 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) Defendants’ original Vaughn Index had identified only four ROE-related documents. (Vaughn Index, Exhibit A to Ds’ MSJ, Dkt. No. 18-1). The Court’s 2007 Order criticized the government’s search that resulted in only these four documents, citing the “lack of specific search terms,” the “general nature of the description contained in the affidavit,” and “evidence that the results of the search failed to produce responsive documents.” Hiken, 521 F.Supp.2d at 1054-55. Defendants claimed they were unable to provide more information about the original search, so instead of providing a declaration further explaining the original search, defendants executed an entirely new search with plaintiffs’ consent and the Court’s permission. (Defendants’ Renewed Motion for Summary Judgment, Dkt. No. 66, at 1:21-23). Defendants located twelve additional documents as a result of their new search. (Defendants’ Revised Vaughn Index, Exhibit A to Defendants’ Renewed Motion for Summary Judgment, Dkt. No. 66-2). Defendants had previously withheld the ROE-related documents in their entirety and justified their failure to segregate and release these documents by falsely claiming that “[t]he only non-exempt information that could be segregated would consist of lists of references or heading titles such as ‘General Guidance’ or ‘Definitions’ that, if released, would be of no informational value.” (Declaration of Major General Timothy F. Ghormley, USMC, Exhibit 2 to Ds’ MSJ, Dkt. No. 18, at para. 7). However, when defendants subsequently released 117 pages of ROE materials in compliance with this Court’s 2007 Order, the materials revealed much more than just heading titles, such as information on information about limitations on the use of force, escalation of force procedures, and other Rules of Engagement in effect during the war in Iraq. Moreover, defendants additionally withheld essential facts the release of which would undermine their untrue assertion that the AR 15-6 report was “leaked” onto their Web site and thus not an official disclosure. (Defendants’ Reply in Support of Their Motion for Summary Judgment and Opposition to Plaintiffs’ Cross-Motion for Summary Judgment, Dkt. No. 35, at 3-4; Ghormley Supp. Decl., Dkt. No. 36, paras. 3-5). The Court held that it lacked sufficient evidence to determine whether defendants’ release of the AR 15-6 report was official and so ordered additional information be provided. Hiken, 521 F.Supp.2d at 1057. Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page10 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) Because the Court was unable to rule on many of the pending issues and exemptions due to defendants’ abundant failures at providing an adequate Vaughn Index and declarations, a second round of litigation was required. Beginning in December 2007, the parties litigated renewed cross- motions for summary judgment. (Dkt. Nos. 66, 69). On February 3, 2012, Judge Patel ruled on the motions that the parties had filed since her 2007 Order: the parties’ renewed cross-motions for summary judgment and defendants’ supplemental motion for summary judgment regarding the documents they had referred to the Department of State. (Dkt. Nos. 46, 60). Judge Patel, in her Feb. 2012 Order, denied defendants’ supplemental motion for summary judgment and ordered defendants to release all of the documents that were the subject of the supplemental motion. Feb. 2012 Order at 23:18-21. The Court also granted in part and denied in part both parties’ renewed cross-motions for summary judgment, requiring defendants to produce to plaintiffs within 60 days all documents ordered disclosed, i.e., by April 2, 2012. (Dkt. No. 94). On March 14, 2012, defendants produced to plaintiffs the majority of the information the Court had ordered disclosed. Judge Patel ruled against defendants on a host of issues. For example, although Judge Patel had in 2007 ruled that defendants had met their burden for justifying non-disclosure under Exemption 1, 2007 Order at 14:5-6, after she had seen the documents in camera she ruled that Exemption 1 was not well taken in many instances. For example, as to the AR 15-6 report and annexes, she held that “[c]ertainly there are facts, locations, procedures and other matters that do not implicate military plans,” etc. As to the ROE-related documents, she found that general information – graduated force, deadly and non-deadly force and instructions regarding ensuring familiarity with the ROE “is segregable and does not justify classification.” Feb. 2012 Order at 13:3-4. As to Exemption 2, Judge Patel found that Exemption 2 does not apply to the documents for which it is asserted; Exemption 2, “consistent with the plain meaning of ‘personnel rules and practices’ encompasses only records relating to issues of employee relations and human resources.” Feb. 2012 Order at 14:20-22. Although defendants were allowed to withhold Exemption 2 Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page11 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) materials pursuant to Exemption 1, they released a substantial amount of material previously withheld pursuant to Exemption 2. Exemption 3 was asserted by defendants for documents 2c, 2d, 3, 4, 4b, and 5. Feb. 2012 Order at 15:9. As to Document 5, the AR 15-6 Report and its annexes, where defendants were attempting to withhold diplomatic correspondence pursuant to Section 130b of Title 10, Exemption 3, withholding was denied. Feb. 2012 Order at 15:25-16:7. Exemption 3 withholding was granted as to the other documents, except 4b, which defendants released in its entirety. Feb. 2012 Order at 15:18-19. Regarding Exemption 5, defendants initially attempted to withhold significant information in the AR 15-6 Report and Annexes pursuant to this exemption claiming the deliberate process privilege, attorney-client privilege, etc. As to Exemption 5 withholdings, Judge Patel found that defendants’ document descriptions were insufficient and their explanations boilerplate, overly simplistic and conclusory. Feb. 2012 Order at 17:25-27. Defendants ultimately withheld only one document pursuant to Exemption 5 – a letter from an attorney regarding the adequacy of the Sgrena investigation. All other information previously withheld pursuant to Exemption 5 was released to plaintiffs. As to Exemption 6, defendants were able to withhold information such as certain names and faces in photographs. Order on Defendants’ Motion for Partial Reconsideration, at 9:3-4, (Dkt. No. 111) (“May 2012 Order”). Regardless, plaintiffs obtained important photographs of the Sgrena investigation, which shed light on the manner in which it was conducted. Defendants also, nevertheless, provided many, unredacted names. Besides finding many of defendants’ withholdings without merit, Judge Patel, notably, held that in this litigation defendants “have been cavalier about their FOIA duties and have failed to submit declarations and Vaughn Indices that measure up to established statutory and case law principles.” Feb. 2012 Order at 21:22-24. The Court also issued to defendants an Order to Show Cause “why Documents 1-5 should not be fully released… on the grounds that circumstances Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page12 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) justifying non-disclosure have changed since classification of the documents … other than as to the exclusions,” permitted by the Court. Feb. 2012 Order at 24:10-14.1 However, defendants, preferring not to fully comply with the Court’s 2012 Order, sought and received a temporary stay. (Dkt. No. 105). The stay allowed them to withhold, until their motion for partial reconsideration was decided, several names and faces in photographs from the AR 15-6 report and some information they had previously withheld pursuant to Exemption 2 (which they lost) now pursuant to Exemption 1. Defendants sought clarification and partial reconsideration of the Feb. 2012 Order on March 28, 2012. (Dkt. No.106). On May 24, 2012 this Court granted defendants motion for clarification and partial reconsideration. No ruling was ever issued on the briefing submitted in response to the Order to Show Cause. (Dkt. Nos. 94, 96, 97). On June 6, 2012, the Court set the current briefing schedule for the litigation of attorney fees. (Dkt. No. 114). ARGUMENT To receive an award of attorney fees, a FOIA requester must show that s/he has “substantially prevailed” in the litigation by securing documents responsive to his/her request. 5 U.S.C. § 552(a)(4)(E)(i);2 E.g. Long v. I.R.S., 932 F.2d 1309, 1313 (9th Cir. 1991) A plaintiff who successfully shows that s/he has substantially prevailed is eligible for attorney fees. Id. The plaintiff also, however, must show entitlement to fees, which the court determines by applying case law- derived criteria. Id. Once the plaintiff has demonstrated eligibility and entitlement to fees, the final step is for the court to determine whether the fees are reasonable. Id. at 1313-14 (9th Cir. 1991). Not only have plaintiffs herein made the requisite showings for a fee award, as demonstrated infra, but such an award would further the underlying purpose of the FOIA’s attorney fees provisions. “The touchstone of a court’s discretionary decision under section 552(a)(4)(E) must be whether an award of attorney fees is necessary to implement the FOIA. A grudging 1 On March 23, 2012 this case was reassigned from Judge Patel to Chief Judge Ware. (Dkt. No. 103). 2 All statutory references are to Title 5 of the United States Code. Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page13 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) application of this provision, which would dissuade those who have been denied information from invoking their right to judicial review, would be clearly contrary to congressional intent.” Davy v. C.I.A., 550 F.3d 1155, 1158 (D.C. Cir. 2008) (“Davy”) (emphasis added). Based on plaintiffs’ showing here, this Court should grant their Motion for an award of attorney fees. I. THE COURT SHOULD AWARD ATTORNEY FEES TO PLAINTIFFS BECAUSE THEY SUBSTANTIALLY PREVAILED IN THE LITIGATION. A. Plaintiffs Substantially Prevailed Under Buckhannon for Attorney Fees Earned Prior to December 31, 2007 Because They Obtained “Some Relief” From The Court. Plaintiffs have prevailed and are eligible for an attorney fee award pursuant to Buckhannon Board & Care Home, Inc. v. W. Va. Dept. of Health and Human Res., 532 U.S. 598, 601, 610. (2001) (“Buckhannon”). In Buckhannon, the Supreme Court expressly rejected the catalyst theory of fee recovery. Buckhannon, 532 U.S. at 603. Congress restored the catalyst theory with the enactment of the Openness Promotes Effectives in our National Government Act (“OPEN Government Act”)3, which took effect on December 31, 2007. E.g. Contreras v. U.S. Dept. of Justice, 729 F.Supp.2d 167, 170 (D.C. Cir 2010). The Ninth Circuit Court of Appeals has ruled that the OPEN Government Act is not applicable retroactively. Oregon Natural Desert Assn. v. Locke, 572 F.3d 610, 616-18 (9th Cir. 2009). This litigation began in 2006 and continues to the present. Thus, the Court should apply the Buckhannon analysis herein to Plaintiffs’ attorney fees earned prior to December 31, 2007 and find that Plaintiffs substantially prevailed, but it should apply the present reading of § 552 (a)(4)(E) to all fees earned thereafter and make a similar finding. The Buckhannon Court held that a party prevails for the purpose of obtaining a fee award only when it “has been awarded some relief by [a] court.” Id. at 603. The Buckhannon standard applies in FOIA cases. E.g. Davis v. Dept’t of Justice, 460 F.3d 92, 105 (D.C. Cir. 2006). Under 3 By passage of the OPEN Government Act, the provisions in § 552 (a)(4)(E) “replaced” the Buckhannon analysis. Wildlands CPR v. U.S. Forest Service, 558 F.Supp.2d 1096, 1098 (D. Mont. 2008). Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page14 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) Buckhannon, courts apply a two-part test to determine whether a party has prevailed. Under this test, a plaintiff must establish that its federal court action (1) resulted in a “material alteration of the legal relationship of the parties” (2) that was ‘judicially sanctioned,’” Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007), i.e. the product of “a court-ordered ‘change [in] the legal relationship between [the plaintiff] and the defendant.’” Buckhannon, 532 U.S. at 604-605 (alteration in the original). In the present case, the Court’s 2007 and February 2012 Orders materially altered the legal relationship between the parties – finding some redactions not well taken and requiring defendants to segregate and release documents previously withheld in their entirety – and constitutes the kind of judicial imprimatur envisioned by the Buckhannon Court. See Preservation Coalition of Erie County v. Federal Transit Admin., 356 F.3d 444, 451 (2nd Cir. 2004) (“judgments on the merits” constitute an example of an appropriate judicial imprimatur). Specifically, the Court in 2007 ordered defendants, inter alia, to produce to plaintiffs all segregable portions of the documents relating to the Rules of Engagement (“ROE”) as well as information concerning certain names assigned to particular routes or units in the AR 15-6 report. Hiken, 521 F.Supp.2d at 1060. Within a month of the 2007 Order, defendants released two compact disks with 117 pages of previously withheld documents related to the Rules of Engagement (”ROE”).4 Defendants had previously withheld the entirety of the ROE-related documents. The Court’s Feb. 2012 Order also compelled defendants to disclose an extensive array of previously withheld documents. For example, with respect to Exemption 1, the Court ordered defendants to release pages 1-4, paragraphs 3a and 3e and paragraphs 4a and 4b of Document 1 and Documents 2c, 2d, and 2e, except as the latter pertain to weapons systems or intelligence sources or methods. Feb. 2012 Order at 13:10-23. With regard to Exemption 2, the Court found that Documents 1, 2a, 2b, 2c, 2d, 2e, 3, 3b, 3c, 3d, 4 and 5 were subject to release and not protected by that exemption. Feb. 2012 Order at 15:5-6. On defendants’ motion for reconsideration, the Court allowed defendants to withhold pursuant to 4 Plaintiffs have not filed materials stored on these disks as exhibits because defendants notified plaintiffs by letter dated October 31, 2007 that defendants also provided the materials to the Court. Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page15 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) Exemption 1 a small portion of those documents previously asserted as protected from disclosure under Exemption 2, specifically twelve pages in documents 2a, 2b, 2d and 3d. May 2012 Order at 4 n.9, 6 n.15. Thus, with regard to the vast majority of the documents sought to protect under Exemption 2, plaintiffs prevailed. Exemption 3 was asserted by defendants for documents 2c, 2d, 3, 4, 4b, and 5. As to Document 5, the AR 15-6 Report and its annexes, where defendants were attempting to withhold diplomatic correspondence pursuant to Section 130b of Title 10, Exemption 3, withholding was denied. Exemption 3 withholding was granted as to the other documents, except 4b which defendants released in its entirety. With regard to Document 5, defendants’ assertion of Exemption 5 failed, and defendants ultimately released pursuant to court order all Exemption 5 withholding from Document 5 except one page, a letter from an attorney regarding the adequacy of the Sgrena investigation. Finally, while the May 2012 Order, at 9:3-4, allowed defendants to further redact personally identifying information and photographs, defendants, pursuant to the February 2012 Order, nonetheless released photographs of the Sgrena investigation that shed light on the manner in which it was conducted. In sum, by requiring defendants to release to plaintiffs a substantial quantity of materials responsive to plaintiffs’ FOIA request as set forth above, the 2007 and February 2012 Orders created a judicially sanctioned change in the relationship of the parties and “awarded some relief” to plaintiffs. Thus, plaintiffs have substantially prevailed under Buckhannon and are eligible for an award of attorney fees for work done prior to December 31, 2007. Buckhannon, 532 U.S. at 603- 606; Contreras, 729 F.Supp.2d at 170. B. Plaintiffs Substantially Prevailed Under the Current Reading of § 552 (a)(4)(E) for Attorney Fees Earned Subsequent to December 31, 2007 Via Judicial Order. Under the current provisions of the FOIA, a party who has obtained relief through “(I) a judicial order, an enforceable written agreement or consent decree; or (II) a voluntary or unilateral Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page16 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) change in position by the agency” has substantially prevailed. § 552 (a)(4)(E)(ii). “Accordingly, under the current version of 5 U.S.C. § 552(a)(4)(E)(ii), Plaintiffs are eligible for an award of attorneys’ fees if (a) they have obtained a judicial order granting them relief, or (b) Defendant voluntarily changed its position as a result of Plaintiffs’ complaint.” Hart v. United States HHS, 676 F.Supp.2d 846, 857 (D. Ariz. 2009). In its 2007 and February 2012 Orders, the Court ordered that defendants make substantial disclosures, as set forth supra in part I.A. Without question, it was only through litigation and the Court’s orders that the documents were disclosed to plaintiffs. Accordingly, plaintiffs’ counsel are also eligible for an award of attorney fees for the work they did subsequent to December 31, 2007 pursuant to § 552 (a)(4)(E)(ii). II. PLAINTIFFS ARE ENTITLED TO ATTORNEY FEES. Once a court has determined that a party has substantially prevailed and is thus eligible for attorney fees, it may, in its discretion, determine whether the party is “entitled” to such fees by taking into account such factors as “(1) the benefit to the public, if any, deriving from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; . . . (4) whether the government’s withholding of the records sought had a reasonable basis in law”; and “whatever [other] factors it deems relevant in determining whether an award of attorney’s fees is appropriate.” Church of Scientology of California v. U.S. Postal Service (“Church of Scientology”), 700 F.2d 486, 492 (9th Cir. 1983). (internal quotation marks omitted). The first three factors “assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage. The former engage in the kind of endeavor for which a public subsidy makes some sense, and they typically need the fee incentive to pursue litigation; the latter cannot deserve a subsidy as they benefit only themselves and typically need no incentive to litigate.” Davy, 550 F.3d at 1160. Thus, when a court evaluates entitlement to fees in a FOIA action, “a distinction is to be drawn between the plaintiff who seeks to advance his private commercial interests . . . and a newsman who seeks information to be used in a publication or the public interest group seeking information to further a Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page17 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) project benefiting the general public.” Id. at 1158. As demonstrated below, plaintiffs herein fall under the latter category, having sought the requested materials not for commercial benefit but for the benefit of the public. A. Disclosure of the Requested Documents “Furthers a Project Benefiting the General Public.” This Court has noted that the first factor, pertaining to the public benefit derived from the case, “relates to the degree of dissemination and likely public impact from disclosure of the requested information. . . . Types of requests that might justify fee awards include a request for information to be used in a publication or a request by a public interest group for information that furthers a project benefitting the general public.” American Small Business League v. U.S. Small Business Admin. (“ASBL”), 2009 WL 1011632 *3 (N.D. Cal. 2009) (citing Church of Scientology, 700 F.2d at 493 & 493 n.6). Further, “[t]he information need not be of public interest as long as there is a public benefit from the fact of its disclosure.” O’Neill, Lysaght & Sun v. D.E.A., 951 F.Supp.1413, 1423 (C.D. Cal. 1996) (citing Church of Scientology 700 F.2d at 493). Plaintiffs, Marguerite Hiken and the National Lawyers Guild’s Military Law Task Force (“MLTF”), a nonprofit organization, requested the information at issue in this litigation for the purpose of preparing an article for publication in “On Watch,” the newsletter of the MLTF. Exhibit 1 to Ds’ MSJ, Dkt. No. 18. On Watch, published on and available free to all via the Internet, informs the public regarding the activities of the U.S. military. Id.; Declaration of Marguerite Hiken, June 12, 2012 (“Hiken Dec.”), para. 4. B. The Nature of Plaintiffs’ Interest is Scholarly, Journalistic and in the Public Interest. The second and third factors of the entitlement test “are often considered together.” Los Angeles Gay & Lesbian Community Services Center v. IRS (“LAGLCSC”), 559 F.Supp.2d 1055, 1060 (C.D. Cal. 2008); accord, Church of Scientology, 700 F.2d at 494 (courts have found it “logical to read the two criteria together”). Specifically, Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page18 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) [t]he second factor, commercial benefit to plaintiff, and the third factor, the nature of plaintiff's interest in the information sought, relate to whether the plaintiff requested information for a private commercial benefit only or whether the public interest benefited from the release of the requested information. . . . For example, a court might allow recovery of attorneys’ fees for an indigent plaintiff or a non-profit public interest group, but not for a large corporate plaintiff. ASBL, 2009 WL 1011632, at *3 (citing Church of Scientology, 700 F.2d at 493 n.6, 494); see also O’Neill, 951 F.Supp. at 1424 (fee award justified where requestor’s interest is neither private nor personal). Additionally, “a court would generally award fees if the complainant’s interest in the information sought was scholarly or journalistic or public-interest oriented, [unless] ... his interest was of a frivolous or purely commercial nature,” Davy, 550 F.3d at 1160-61 (quoting Fenster v. Brown, 617 F.2d 740, 742 n. 4 (D.C. Cir. 1979) (alteration in the original) (internal quotation marks omitted). Here, plaintiffs enjoy no private or commercial benefit from disclosure of the materials the Court ordered disclosed. Hiken Dec., para. 4. The purpose of the article the MLTF seeks to publish based on the requested materials is to inform the public about important issues pertaining to the government’s foreign policy decisions. FOIA request letter, Exhibit 1 to Ds’ MSJ, Dkt. No. 18; Complaint, Dkt. No. 1, paras. 6-7. The MLTF’s newsletter, On Watch, is made available online at no charge. Hiken Dec., para. 4. Thus, plaintiffs’ interest in the information is scholarly, journalistic and public-interest oriented. It is not frivolous or of a commercial nature, and the requesters’ interests is neither private nor personal. Hiken Dec., paras. 3-4. Accordingly, plaintiffs have satisfied both the second and third factors of the entitlement test. C. There is No “Reasonable Basis” for Defendants’ Withholding. To satisfy the “reasonable basis in law” factor, the government must show that (1) “it had a reasonable basis in law for concluding that the information in issue was exempt” and (2) “it had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.” Fenster, 616 F.2d at 744. The first factor “relates to whether the government agency’s actions appeared to have a ‘colorable basis in law’ or instead appeared to be carried out ‘to frustrate the requester.’” ASBL, 2009 WL 1011632, at *4. “The question is not whether [the requestor] has Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page19 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) affirmatively shown that the agency was unreasonable, but rather whether the agency has shown that it had any colorable or reasonable basis for not disclosing the material until after [requestor] filed suit.” Davy, 550 F.3d at 1163. Even if the government’s argument “is found on a colorable basis in law,” that does not foreclose fee recovery by plaintiff; rather, this fact “is merely weighed along with the other factors.” Wheeler v. IRS, 37 F.Supp.2d 407, 414 (W.D. Pa. 1998). Regarding the second factor for determining whether the government has a reasonable basis for withholding, courts take such a dim view of obdurate behavior that upon a plaintiff’s showing of such behavior, a court need not consider the first three fee-entitlement factors – public benefit, commercial nature, and nature of complainant’s interest. Recalcitrance and obduracy, according to the Wheeler Court, can make the fee-entitlement factor pertaining to reasonable basis dispositive in favor of a plaintiff “without consideration of any of the other factors.” Wheeler, 37 F.Supp.2d at 414. For instance, “if [an agency] had engaged in dilatory tactics simply to avoid a disclosure obligation, then its conduct might well qualify as ‘recalcitrant’ or ‘obdurate’ and hence unreasonable.” Peter S. Herrick’s Customs and Intern. Trade Newsletter v. U.S. Customs and Border Protection, 2006 WL 3060012, at *10, 34 Media L. Rep. 2460 (D.D.C. 2006). In another example, an agency’s failure to respond to the plaintiff’s request for twenty months following plaintiff’s final payment of copying costs “demonstrates recalcitrance and obduracy.” Read v. F.A.A., 252 F.Supp.2d 1108, 1112 (W.D. Wash. 2003). In Wheeler, the agency placed the plaintiff’s FOIA request “on the back burner” until the complaint was filed, then “located some files.” Wheeler, 37 F.Supp.2d at 410, 414. After some delay, an agency employee, on suggestion by counsel, searched through some previously unexamined boxes of materials and found two responsive documents. Id. The agency attempted to explain away the delay by citing a merger between two offices. Id. The court, however, did not credit that explanation, finding that the agency’s actions “indicate a lack of even a colorable basis in law.” Id. // Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page20 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) 1. Defendants’ Dilatory Conduct Demonstrated “Recalcitrance” and “Obduracy,” Justifying an Order for Attorney Fees on This Basis Alone. Defendants have demonstrated recalcitrance and obduracy throughout both the administrative and litigation phases of the within matter. For example, during the administrative phase, defendants waited nearly half a year to communicate their denial of plaintiffs’ initial FOIA request, a gross violation of § 552 (a)(6)(A)(i). See Ps’ MSJ at 12:11-16. Then, despite defendants’ claims that they had placed plaintiffs’ administrative appeal on the “front burner,” defendants instead threw it on the back burner for more than a year before finally denying it in violation of § 552 (a)(6)(A)(ii). Id. at 12:16-13:1. Thus, defendants’ dilatory behavior spanned approximately nineteen months – a very similar amount of time to the twenty months of delays found in Read to “demonstrate[] recalcitrance and obduracy.” Read, 252 F.Sup.2d at 1112. Defendants’ dilatory behavior continued throughout the litigation. For example, defendants failed to segregate and release non-exempt ROE materials until this Court ordered them to do so in 2007. Even after that Order, rather than promptly segregate and release, defendants generated further delays by deluging the Court with a mobile cart filled with thousands pages of documents, many of them duplicative. Feb. 2012 Order at 12. Following the Court’s in camera review, defendants demonstrated a continued failure to segregate and release, disrespecting the Court with their “just trust us” attitude, “not even giv[ing segregability] a nod in their reply.” Feb. 2012 Order at 11-12, 20-21. Furthermore, defendants justified this failure by falsely claiming that “[t]he only non-exempt information that could be segregated would consist of lists of references or heading titles such as ‘General Guidance’ or ‘Definitions’ that, if released, would be of no informational value.” Declaration of Major General Timothy F. Ghormley, USMC, Exhibit 2 to Ds’ MSJ, Dkt. No. 18, at para. 7. However, when defendants subsequently released 117 pages of ROE materials upon this Court’s Order, the materials revealed much more than just heading titles, such as information on information about limitations on the use of force, escalation of force procedures, and other Rules of Engagement in effect during the war in Iraq. Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page21 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) Defendants further prolonged the litigation by initially conducting an inadequate search. Defendants’ original Vaughn index identified only four ROE-related documents. Vaughn index, Exhibit A to Ds’ MSJ. The Court criticized the government’s search that resulted in only these four documents, citing the “lack of specific search terms,” the “general nature of the description contained in the affidavit,” and “evidence that the results of the search failed to produce responsive documents.” Hiken, 521 F.Supp.2d at 1054-55. Defendants claimed they were unable to provide more information about the original search, so instead of providing a declaration further explaining the original search, defendants executed a new search with plaintiffs’ consent and the Court’s permission. Defendants’ Renewed Motion for Summary Judgment (“Ds’ Renewed MSJ”), Dkt. No. 66, at 1:21-23. Defendants located twelve additional documents as a result of their new search. Defendants’ Revised Vaughn Index, Exhibit A to Defendants’ Renewed Motion for Summary Judgment, Dkt. No. 66-2. Nonetheless, even after defendants revised their Vaughn index, the revised document failed to adequately describe the reasons for non-disclosure and specific harms, lacked the requisite particularity and “repeat[ed] conclusory language and its repetition [became] boilerplate.” Feb. 2012 Order at 10. Defendants’ continued failure to provide the Court with an adequate Vaughn index prolonged the litigation and left both the Court and plaintiffs in the dark regarding their legal justifications for withholding public documents. Moreover, defendants additionally prolonged the litigation by withholding essential facts the release of which would undermine their untrue assertion that the AR 15-6 report was “leaked” onto their Web site and thus not an official disclosure. Defendants’ Reply in Support of Their Motion for Summary Judgment and Opposition to Plaintiffs’ Cross-Motion for Summary Judgment, Dkt. No. 35, at 3-4; Ghormley Supp. Decl., Dkt. No. 36, paras. 3-5. This imposed an unwarranted delay in the litigation, evidenced by this Court’s statement that it lacked sufficient evidence to determine whether defendants’ release of the AR 15-6 report was official. Hiken, 521 F.Supp.2d at 1057. In summary, defendants’ willfully keeping the Court and plaintiffs in the dark regarding their withholding justifications, ongoing failure to segregate and release documents that do not fall within the FOIA exemptions and to provide something so basic as an adequate Vaughn Index, and extreme delays in the administrative phase of this matter demonstrate recalcitrance and Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page22 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) obduracy, and this Court should find that plaintiffs are entitled to attorney fees based on this factor alone. Wheeler, 37 F.Supp.2d at 414. 2. Defendants’ Actions Lacked a “Colorable Basis.” Even if defendants’ dilatory behavior is not seen as demonstrating the kind of recalcitrance or obduracy found in Wheeler or Read, defendants had no colorable basis in law for withholding the materials the Court ultimately ordered disclosed. See ASBL, 2009 WL 1011632, at *4. For example, in Wheeler, the defendants’ locating “some files,” then later, on suggestion of their own counsel, performing further searches and finding responsive documents, “indicate[d] a lack” of a colorable basis in law. Wheeler, F.Supp.2d at 414. Here, defendants initially searched some file cabinets and electronic files, but failed to meet the basic search standards enunciated by the courts – despite having taken many months to respond to plaintiffs’ request. See Plaintiffs’ Reply in Support of Their Motion for Summary Judgment and Opposition to Defendants’ Reply at 11:6-12:20; Hiken, 521 F.Supp.2d at 1054. Consequently, this Court, citing “[t]he lack of specific search terms and the general nature of the description contained in the affidavit in combination with evidence that the results of the search failed to produce responsive documents,” found it necessary to conduct in camera review to determine the adequacy of defendants’ search for responsive information. Hiken, 521 F.Supp.2d at 1054-55. Here, as in Wheeler, defendants’ lengthy delays and failure to perform an adequate search “appeared to be carried out ‘to frustrate the requester.’” ASBL, 2009 WL 1011632, at *4. Moreover, as this Court found, defendants lacked a colorable basis in law to not segregate and release information contained in the documents listed in their initial Vaughn index – or in their revised Vaughn index, Hiken, 521 F.Supp.2d at 1060; Feb. 2012 Order at 10. Under these circumstances, the Court should find that defendants lacked a colorable basis for their withholding and that plaintiffs are therefore entitled to attorney fees in this matter. Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page23 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) III. THE COURT SHOULD ORDER DEFENDANTS TO PAY PLAINTIFFS THE LODESTAR AMOUNT. Where, as here, a plaintiff has demonstrated eligibility for and entitlement to attorney fees, courts scrutinize the attorneys’ billing statements for “reasonableness of (a) the number of hours expended and (b) the hourly fee claimed. If these two figures are reasonable, then there is a strong presumption that their product, the lodestar figure, represents a reasonable award.” LAGLCSC, 559 F.Supp.2d at 1060 (quoting Long v. IRS, 932 F.2d at 1313-14) (emphasis added) (internal quotation marks omitted); accord, ASBL, 2009 WL 1011632, at *4 (“if the submitted number of hours and the hourly rate are reasonable, then there is a ‘strong presumption’ that their product is a reasonable award”). Generally, “an attorney’s usual billing rate is presumptively the reasonable rate, provided that this rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Miller v. Holzmann, 575 F.Supp.2d 2, 11 (D.D.C. 2008) (internal quotation marks omitted). In addition, a court may authorize “an upward or downward5 adjustment from the lodestar figure if certain factors relating to the nature and difficulty of the case overcome this strong presumption and indicate that such an adjustment is necessary.” LAGLCSC, 559 F.Supp.2d 1055, 1060. This Court, for example, adjusted a lodestar figure upward by applying a multiplier of 1.5 where the attorney worked pro bono for his client, and the attorney’s work was “at a higher level of competence than that of attorneys with similar experience.” Powell v. U.S. Dept. of Justice, 569 F.Supp.1192, 1204 (N.D. Cal. 1983). A. The Court should Defer to Counsel’s Professional Judgment in Determining Whether the Number of Hours Billed Is Reasonable. The Ninth Circuit Court of Appeals has sought to discourage trial court judges from cutting back excessively on requested attorney fees in civil right cases, observing “that lawyers are not 5 Worth noting is that a Ninth Circuit court appears to have limited a court’s authority to adjust downward from the lodestar figure. See Long v. IRS, 932 F.2d at 1316. Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page24 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee. It would therefore be the highly atypical civil rights case where plaintiff's lawyer engages in churning.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Thus, the court continued, a trial court “should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.” Id. (emphasis added). Some duplication of effort is necessary and “is inherent in the process of litigating over time.” Moreno, 534 F.3d at 1112. When a case goes on for many years, a lot of legal work product will grow stale; a competent lawyer won’t rely entirely on last year’s, or even last month’s, research: Cases are decided; statutes are enacted; regulations are promulgated and amended. A lawyer also needs to get up to speed with the research previously performed. Id. Thus, acknowledging that at least some apparent duplication of effort is necessary to the performance of competent legal representation, even where a court suspects unnecessary duplication, it can impose a “haircut,” or reduction, of no more than 10 percent. Id. (rejecting a court’s 25 percent attorney fee reduction based on duplication of effort). Here, to account for any duplication that may have gone beyond that which was absolutely necessary, Plaintiffs’ attorneys have already calculated in the within request for attorney fees a 10 percent “haircut.” See Flynn Dec., para 28. In addition to offering up front to take a 10 percent “haircut” on their total fees, plaintiffs’ attorneys’ have been reasonable in their work allocation in this case, as shown in their billing records, particularly in light of defendants’ litigation tactics. The Court should bear in mind that it found many of defendants’ withholdings without merit and held that in this litigation defendants “have been cavalier about their FOIA duties and have failed to submit declarations and Vaughn Indices that measure up to established statutory and case law principles.” Feb. 2012 Order at 21:22- 24 (emphasis added). Specifically, defendants submitted “boilerplate,” “conclusory” and repetitive assertions in their Vaughn indices regarding classification and segregation, in some instances merely “parrot[ing]” classification language and compelling the Court to “ponder the Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page25 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) imponderable.” Hiken, 521 F.Supp.2d at 1055; Feb. 2012 Order at 10:9-10 , 10:27-11:5, 23:5-10. Against this backdrop, the Court was required to repeatedly seek further information from defendants – or corrections to their false and misleading statements and assertions –so that it could make final decisions on releasability of the requested materials, necessitating delays and ongoing litigation. B. The Court Should Apply Plaintiffs’ Attorneys’ Current Billing Rates in Light of Their Having Worked on This Matter for More Than Six Years Without Compensation. Moreover, this Court has noted that it may consider the delay in payment in arriving at a reasonable hourly billing rate for the plaintiffs’ attorneys “by either applying the attorneys’ current rates to all hours billed during the course of the litigation or using the attorneys’ historical rates and adding a prime rate enhancement.” Jones v. Metro Life Ins. Co., No. C 08-03971, 2012 U.S. District LEXIS 33817, at *15 (N.D. Cal, Feb. 24, 2012) (quoting Welch v. Metro. Life Ins. Co., 480 F.3d 942, 947 (9th Cir. 2007)). Plaintiffs urge the Court to recognize that their attorneys have expended hundreds of hours in attorney time through six long years of litigation without any compensation and to apply the attorneys’ current rates. The attorneys for plaintiffs herein support their lodestar billing rates by showing their rates in similar cases; what they command in the marketplace; actual billing practices during the course of the litigation; and recent fees awarded, based on actual evidence of prevailing rates, to attorneys of comparable reputation and experience performing similar work. See generally National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1325-28 (D.C. Cir. 1982) (“Veterans”); Declaration of Colleen Flynn (“Flynn Dec.”); Declaration of Chris Ford (“Ford Dec”); Declaration of Gordon Kaupp (“Kaupp Dec.”); Declaration of Kenneth Kreuscher (“Kreuscher Dec.”); Declaration of Carol Sobel (“Sobel Dec.”); Declaration of Thomas Burke (“Burke Dec.”). Plaintiffs’ counsel, for example, maintained contemporaneous, complete and standard time records that accurately reflect the work performed by each attorney. Veterans, 675 F.2d at 1327. Flynn Dec., para. 27; Ford Dec., para. 10; Kaupp Dec., para. 14; Kreuscher Dec., para. 14. Further, Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page26 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 Plaintiffs’ Motion for Attorney Fees Per 5 U.S.C.§552(a)(4)(E) lead counsel Colleen Flynn demonstrates that her reasonable market billing rate is $475 per hour. Flynn Dec., para. 24. Co-counsel W. Gordon Kaupp, Chris Ford and Kenneth Kreuscher demonstrate that their reasonable market billing rates are $500 per hour, $450 per hour, and $425 per hour, respectively. Flynn Dec., para. 29; Ford Dec., para. 9; Kaupp Dec., para. 11.; Kreuscher Dec., para 13; see Sobel Dec., para. 9. Plaintiffs have prepared a table showing each of their attorneys’ hours worked in the first phase of this litigation and in preparing the within motion, their reasonable billing rate, and their presumptively reasonable lodestar figures. ASBL, 2009 WL 1011632, at *4; Flynn Dec., para. 29. The total of fees and costs owed plaintiffs is $381,633.99. Id. The Court should award plaintiffs the total amount of attorney fees sought herein. IV. CONCLUSION Based on the foregoing, the Court should issue an order that defendants pay plaintiffs’ attorney fees and costs as set forth herein. DATED: June 14, 2012 Respectfully submitted, BY:_______/s/ Chris Ford_______ COLLEEN FLYNN CHRIS FORD W. GORDON KAUPP Attorneys for Plaintiffs Case4:06-cv-02812-YGR Document115 Filed06/14/12 Page27 of 27