Case 1:08-cv-01046-JDB Document 54 Filed 04/21/10 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON,

Plaintiff,
v. Civil Action No. 08-1046 (JDB)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,

Defendant.

MEMORANDUM OPINION and ORDER

Before the Court is [50] Citizens for Responsibility and Ethics in Washington's

("CREW's") motion for an award of attorneys' fees and costs pursuant to 5 U.S.C. §

552(a)(4)(E)(i). In Freedom of Information Act cases such as this, a court "may assess against

the United States reasonable attorney fees and other litigation costs reasonably incurred in any

case . . . in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). Here,

CREW seeks $49,916 in fees and $350 in costs. See Pl.'s Mot. for Attorneys' Fees ("Pl.'s Mot.")

[Docket Entry 50], at 8; Pl.'s Reply in Supp. of Mot. for Attorneys' Fees ("Pl.'s Reply") [Docket

Entry 53], at 8. The Department of Homeland Security concedes that CREW is entitled to

attorneys' fees, but contends that the amount of fees its seeks is "unreasonable." Def.'s Opp'n to

Pl.'s Mot. for Attorneys' Fees ("Def.'s Opp'n") [Docket Entry 52], at 2.

Where, as here, "a plaintiff is deemed eligible and entitled [to attorneys' fees under the

Freedom of Information Act], the court focuses on the proper amount of the fee award." Summer

v. Dep't of Justice, 477 F. Supp. 2d 56, 63 (D.D.C. 2007). The "usual method of calculating
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reasonable attorney's fees is to multiply the hours reasonably expended in the litigation by a

reasonable hourly fee, producing the 'lodestar' amount." Bd. of Trs. of Hotel and Rest.

Employees Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1988). Although applicants

seeking attorneys' fees bear the burden of establishing reasonable hourly rates, see Covington v.

District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995), the Department of Homeland

Security does not challenge the hourly rates CREW uses to calculate its fee request.1 Rather, the

Department "disputes that Plaintiff supports its fee request with sufficient documentation under

established precedent in this jurisdiction." Def.'s Opp'n at 7.

Fee applicants also bear the burden of establishing the hours worked on a case. See Role

Models, 353 F.3d at 970; Covington, 57 F.3d at 1107. Here, CREW has submitted billing

statements for the three attorneys who represented it in this action. See Pl.'s Mot., Decl. of David

Sobel ("Sobel Decl."), Ex. A (Sobel's Billing Summary); Pl.'s Mot., Decl. of Anne Weismann

("Weismann Decl."), Ex. A (Weismann's Billing Summary); Pl.'s Mot., Decl. of Melanie Sloan

("Sloan Decl."), Ex. A (Sloan's Billing Summary). Each statement lists eleven tasks that counsel

undertook in litigating this action, and the time each attorney spent on the activity. CREW's

attorneys also indicated that they "exercise[d] . . . billing judgment," and "adjusted downward the

time for which [they] seek compensation." Sobel Decl. at ¶ 5; see also Weismann Decl. at ¶ 5

("In addition, in calculating my hours for purposes of recovering my fees, I exercised

considerable billing judgment.").

1
CREW has used the prevailing market rates set by the United States Attorney's Office
for the District of Columbia to calculate its hourly rate, see Pl.'s Mot., Ex. A (United States
Attorney's Office matrix), which the D.C. Circuit has "said litigants may rely on when seeking
fees," Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004).

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The Department of Homeland Security objects to the absence of detail in the attorneys'

billing summaries as well as to the amount of time the three attorneys indicate they spent

litigating this case. A "fee application must . . . contain sufficiently detailed information about

the hours logged and the work done . . . to permit the District Court to make an independent

determination whether or not the hours claimed are justified." Nat'l Ass'n of Concerned Veterans

v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). For example, parties seeking an award of

attorneys' fees should provide the subject matter of the meeting, telephone conference, or work

billed in each billing line item. See In re Meese, 907 F.2d 1192, 1204 (D.C. Cir. 1990); In re

Sealed Case, 890 F.2d 451, 455 (D.C. Cir. 1989); see also In re Madison Guar. Sav. & Loan, 373

F.3d 1373, 1381 (D.C. Cir. 2004) ("[A]dequate documentation of legal work performed is a

necessary ingredient for the reimbursement of attorneys' fees . . . ."). Without such

documentation, it is "impossible for the court to verify the reasonableness of the billings, either

as to the necessity of the particular service or the amount of the time expended on a given legal

task." In re Sealed Case, 890 F.2d at 455.

Many of the time records lack the adequate detail that would permit the Court to evaluate

whether CREW's fee request is justified. For example, all three attorneys give an identical entry

-- "[r]esearch, draft and final prep of plaintiff's opposition and cross-motion for SJ; confer w/co-

counsel" -- to describe their work on CREW's motion for summary judgment. See Sobel's

Billing Summary; Weismann's Billing Summary; Sloan's Billing Summary. "Such generic

entries are inadequate to meet a fee applicant's 'heavy obligation to present well-documented

claims.'" Role Models, 353 F.3d at 971 (quoting Kennecott Corp. v. Envtl. Prot. Agency, 804

F.2d 763, 767 (D.C. Cir. 1986) (per curiam)); see also id. (finding inadequate a law clerk's time

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record that gave "an identical, one-line entry, '[r]esearch and writing for appellate brief,' on eight

consecutive weekdays" (alteration in original)). The attorneys consistently use this cursory

approach to describing their tasks. See, e.g., Sobel's Billing Summary ("[r]esearch, draft and

final prep of plaintiff's reply memo;" "[r]esearch and draft opposition to defendant's motion for

stay pending appeal").

Moreover, CREW's attorneys have not produced contemporaneous billing records

corroborating the hours they indicated they spent on this case, even though the Department of

Homeland Security requested such records. See Kennecott Corp., 804 F.2d at 767 ("This circuit

and others have indicated that contemporaneous time charges should be filed with the motion for

attorneys' fees as a matter of course, and certainly should be provided once legitimate questions

are raised by the opposing party."). To be sure, apparently none of CREW's attorneys prepared

bills or invoices for CREW -- one attorney represented CREW "on a partially contingent, flat fee

basis," see Sobel Decl. at ¶ 3, and two of the attorneys were actually employed by CREW, see

Weismann Decl. at ¶ 2; Sloan Decl. at ¶ 2. At least two of CREW's attorneys, however,

maintained daily time sheets indicating "the number of hours . . . spent on specific cases."

Weismann Decl. at ¶ 3; see also Sloan Decl. at ¶ 3. Yet CREW has failed to include these daily

time sheets in their motion for attorneys' fees, and, according to the Department, "declined to

provide such records" when the Department requested them. Def.'s Opp'n at 9.

Where, as here, an attorney's work is inadequately documented, the D.C. Circuit has

routinely reduced the final fee award by ten percent. See In re Madison Guar. Sav. & Loan, 373

F.3d at 1381; In re North, 30 F.3d 143, 147-48 (D.C. Cir. 1994); In re Meese, 907 F.2d at 1204;

In re Sealed Case, 890 F.2d at 455; In re Olson, 884 F.2d 1415, 1428-29 (D.C. Cir. 1989). In

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light of CREW's attorneys' failure to fully detail the hours they worked and the tasks they worked

on, and given the D.C. Circuit's ten percent benchmark, the Court will reduce CREW's fees by

ten percent here.2

The Department of Homeland Security also suggests that the number of hours that

CREW's attorneys worked "is grossly excessive in light of the straightforward nature of this

action, and the result." Def.'s Opp'n at 8. But aside from this conclusory observation, the

Department has failed to demonstrate that the time the three attorneys spent litigating this case

exceeds the time other attorneys have spent litigating comparable cases. The Department has

not, for example, indicated how many hours it spent litigating this case, information that would

permit the Court to evaluate in context the hours CREW's attorneys spent on the case. Nor has

the Department suggested how many hours would be reasonable to spend on a case like this.

Absent such information, the Court cannot conclude that approximately one hundred hours of

work in total by three attorneys is unreasonable.3

Accordingly, upon consideration of CREW's motion for an award of attorneys' fees and

costs, the parties' several memoranda, the applicable law, and the entire record herein, it is hereby

2
The Court will award CREW the full $350 it seeks as reimbursement for filing the
complaint in this action.
3
The Department also contends that the Court should reduce CREW's attorneys' fees to
reflect the "relative degree of success" of the parties in litigating this matter. See Def.'s Opp'n at
14-15. In its motion for summary judgment, CREW challenged the Department's withholding of
documents pursuant to a single exemption, and on this claim they "substantially prevailed." See
5 U.S.C. § 552(a)(4)(E)(i) (party entitled to attorneys' fees only where it "substantially prevails"
on merits of claim). Although the Court upheld some of the Department's withholdings pursuant
to the challenged exemption, "entitlement to a fee award is not tempered by the fact that [CREW]
may not have technically prevailed on all aspects of [its] claims." Cobell v. Norton, 407 F. Supp.
2d 140, 149 (D.D.C. 2005). Hence, the Court will not reduce CREW's fee award on this basis.

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ORDERED that CREW's motion is GRANTED IN PART and DENIED IN PART;

and it is further

ORDERED that CREW is awarded $44,924.40 in attorney's fees and $350 in costs.4

SO ORDERED.

/s/
JOHN D. BATES
United States District Judge
Date: April 21, 2010

4
If CREW later seeks attorneys' fees and costs in connection with the second part of this
bifurcated case, and the Court concludes that it is entitled to them, the award will be only for
work done specifically on the second part of this case. Work done in support of both parts --
such as preparing and filing the complaint -- has been compensated by the award here.

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