$11,000 IN ATTORNEY FEES AWARDED TO CATHOLIC CHARITIES OF WASHINGTON IN FREEDOM OF INFORMATION ACT CASE

by


Catholic Charities of Washington DC was awarded $11,000 in attorney fees in a Freedom of Information Act case, by U.S. District Court Judge Amy Jackson. The 16-page opinion, Abtew v. U.S. Dep’t of Homeland Security, Civ. Action No. 13-1566, dated March 31, 2016 is available here.

Facts

Plaintiff, an asylum applicant from Ethiopia, was interviewed by an asylum officer, who took notes and then wrote an “Assessment to Refer.” The officer rejected the claim, but sent the case to Immigration Court, where plaintiff will get a second chance. The officer placed his notes and Assessment in the “A file” and sent it to the Department of Homeland Security [DHS] lawyer who will appear in Immigration Court.

Plaintiff, fearing that he would be ambushed at his court hearing by the notes and the Assessment, filed a Freedom of Information Act [FOIA] request with the DHS, requesting a copy of those documents. The FOIA provides, 5 U.S.C. § 552, that the government must provide copies of documents, unless the documents fall into one of nine exemptions.

The FOIA also provides, that even if a document is exempt in general, the agency must nonetheless “segregate” out the facts from the document. 5 U.S.C. § 552(b).

After some months passed, the DHS stated it would not release the documents. Plaintiff then did an administrative appeal, inside DHS. This too resulted in no disclosure. So, plaintiff filed a lawsuit in the U.S. District Court for the District of Columbia. The DHS very quickly released the notes of the officer to the plaintiff; however, the DHS resisted disclosing the Assessment, claiming that it was exempt under the “deliberative process privilege.” The DHS also argued it was impossible to segregate out any of the facts in the document.

The Court examined the Assessment in camera. The Court found that the document was indeed privileged; however, the first six paragraphs of it, were facts that were “easily segregable.” Abtew v. DHS, 47 F. Supp. 3d 98, 114 (D.D.C. 2014).

ATTORNEY FEES UNDER THE FOIA

5 U.S.C. §552(a)(4)(E)(i) provides that a court “may assess against the United States reasonable attorney and other litigation costs….” However, the plaintiff-requester must satisfy two more requirements: he must be both “eligible for” and also “entitled to” fees. Nat’l Sec. Counselors v. CIA, 811 F.3d 22, 28, (D.C. Cir. 2016).

Plaintiff is eligible for a fee award

Plaintiff has prevailed in this lawsuit: he obtained the notes, and the first six paragraphs of the Assessment. A requester can prevail, even if he “obtains less-than-full-relief.” Elec. Privacy Info Ctr. v. DHS, 999 F. Supp. 2d 61, 67 (D.D.C. 2013).

Plaintiff is entitled to a fee award

A plaintiff-requester is entitled to fees, depending on four factors:

A. Was there a public benefit from the disclosure of the information?

Plaintiff stated that his main interest in getting the documents was to increase his own

chances of success in Immigration Court. To be sure, plaintiff stated a desire “to assist other asylum applicants see justice,” and he explained that his lawyer worked for Catholic Charities, which would be use the documents in its trainings and seminars; however, on balance, the public benefit is small. Therefore, this factor favors the DHS.

B. Was there a commercial benefit to the requester?

There was no commercial benefit for this plaintiff-requester. He is not a business or a

person involved in commerce; he is an asylum applicant.

C. What was the nature of the requester’s interest in the documents?

The plaintiff-requester in this case has a very personal interest in the documents; he is

not mainly seeking them for “public informational purposes.” This factor favors the DHS.

D. How reasonable was the government in resisting disclosure?

The DHS released the notes quickly after the lawsuit was filed; this reversal of position

suggests there may not have been a reasonable basis to withhold the notes in the first place. As to the Assessment, the DHS did have a reasonable basis for withholding.

THE COURT AWARDS FEES OF $10, 935, PLUS $400 IN COSTS

Attorney fees and costs are usually calculated by multiplying “the number of hours reasonably expended…by a reasonable hourly rate.” Nat’l Ass’n of Concerned Veterans v. Sec’y of Defense, 675 F.2d 1319, 1323 (D.C.Cir. 1982)

Which “matrix” should be used for attorney fees?

Plaintiff requested the hourly rate using the LSI Laffey matrix, instead of the United States Attorney’s Office Laffey matrix. The LSI matrix is the more generous, and is appropriate if plaintiff can supply information concerning the billing rates of D.C. area lawyers who represent clients in immigration or asylum proceedings. Salazar ex re Salazar v. District of Columbia, 809 F.3d 58 (D.C. Cir. 2015). However, plaintiff failed to supply this, so he will be awarded fees using the other matrix.

Plaintiff’s counsel has more than 30 years of experience. The United States Attorney’s Office Laffey Matrix is a schedule of fees based on years of experience. Eley v.D.C., 793 F.3d 97, 100-01 (D.C.Cir. 2015). For the year ending in May 2014, for a lawyer of his experience, the rate is $510 per hour. For the year ending May 2015, the rate is $520 per hour. For the year ending May 2016, the rate is $568 per hour. Counsel spent about 171 hours on this case, over these years.

The reasonableness of a fee request “must be evaluated in light of the results obtained.” Barnard v. DHS, 656 F. Supp. 2d 91, 98 (D.D.C. 2009). Counsel spent ten hours to study the file and prepare the complaint. Those hours were reasonable, and should be compensated at $510 per hour. However, thereafter, plaintiff only prevailed on a narrow portion of the complaint. There was “some public benefit” of the documents sought, so the Court will compensate counsel for 10% of his hours, at the rate of $510 per hour.

Plaintiff also requests to be paid for time he spent on his fee petition and arguments. The court awards him 10% of those hours, at $568 per hour.

Reprinted with permission.


About The Author

David Cleveland David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.