IN THE UNITED STATES DISTRICT COURT

                                             FOR THE DISTRICT OF COLUMBIA

 

 

JUDICIAL WATCH, INC.,                            

 

Plaintiff,                                               

 

vs.                                                                                Civil Action No. 03-655 (GK)

 

UNITED STATES POSTAL SERVICE,        

 

Defendant.                               

____________________________________

 

 

                             PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS

                                              FEES AND LITIGATION EXPENSES

Plaintiff Judicial Watch, Inc. (“Judicial Watch”), by counsel and pursuant to 5 U.S.C. § 552(a)(4)(E) and 28 U.S.C. § 1920, respectfully requests that attorneys fees and litigation expenses be awarded to Judicial Watch in the above-captioned action.  The motion is supported by a verified itemization of attorney/paralegal time and expenses.  As explained herein, Judicial Watch’s request for $12,775.51 is entirely reasonable in light of the facts of this case.

                                                      MEMORANDUM OF LAW

I.          Factual Background.

This case involves Judicial Watch’s efforts to secure information relating to a December 2001 community meeting hosted by the United States Postal Service (“USPS”) to discuss the proposed decontamination of the Brentwood Postal Facility, which was contaminated with anthrax in October 2001.  The facts of this case are as follows:  

On or about December 17, 2002, Judicial Watch sent a request to the USPS seeking access to the following agency records pursuant to the Freedom of Information Act (“FOIA”):


a.         A full transcript of a USPS hosted community meeting on Wednesday December 11, 2001, at 6:30 p.m. in the Auditorium of Gallaudet University’s Kellogg Conference Center.

 

b.         The minutes of the USPS hosted community meeting on Wednesday December 11, 2001 at 6:30 p.m. in the Auditorium of Gallaudet University’s Kellogg Conference Center.

 

c.         A videotape copy of the USPS hosted community meeting on Wednesday December 11, 2001 at 6:30 p.m. in the Auditorium of Gallaudet University’s Kellogg Conference Center.

See Affidavit of Christopher J. Farrell, attached as Exhibit 1 to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Cross-Motion for Summary Judgment, filed on or about July 7, 2003 (“Farrell Affidavit”), at ¶ 3; see also Defendant’s Answer and Affirmative Defenses to Plaintiff’s Complaint (“Defendant’s Answer”) at ¶ 5; Defendant’s Statement of Material Facts as to Which There Is No Genuine Dispute (“Defendant’s Statement”) at ¶ 1.

In a letter dated January 14, 2003, the USPS acknowledged receipt of Judicial Watch’s FOIA request and released several documents pursuant to the request.   See Farrell Affidavit at ¶ 4; see also Defendant’s Answer at ¶ 6; Defendant’s Statement at ¶ 2.  However, it withheld release of the videotape, citing FOIA Exemption 6 concerning “personal privacy.”  Id.

On January 23, 2003, Judicial Watch filed an administrative appeal challenging the USPS’s refusal to release the videotape.  See Farrell Affidavit at ¶ 4; see also Defendant’s Answer at ¶ 7;  Defendant’s Statement at ¶ 4.  When the USPS failed to respond to Judicial Watch’s administrative appeal in a timely manner, Judicial Watch filed this action on March 12, 2003.  See Farrell Affidavit at ¶ 4; see also Defendant’s Answer at ¶¶ 8, 9. 


After Judicial Watch filed suit, the USPS produced the videotape at issue.  However, the tape had been redacted.  See Farrell Affidavit at ¶ 5; see also Defendant’s Answer at ¶ 6; Defendant’s Statement at ¶ 5.  The audio, and in some portions the video, on the tape was edited to mask the names of individuals who spoke at the community meeting during a question and answer session.  See Farrell Affidavit at ¶ 5.

The community meeting had been promoted and/or advertised to the public and media with no mention of confidentiality.  See Farrell Affidavit at ¶ 6.  Members of the news media were in attendance, and video cameras were in plain view inside the auditorium.  Id.  Members of the public who participated in the question and answer session did so voluntarily.  Id.  They voluntarily stood up, moved to a microphone in the front of the auditorium, and identified themselves by name.  Id.  They asked questions about and, in some cases, commented on the USPS’s proposed decontamination of the Brentwood Postal facility.  Id.  They clearly had no expectation of privacy.

Nonetheless, the USPS moved for summary judgment on June 23, 2003, asking the Court to uphold its redactions under Exemption 6.  Plaintiff opposed the USPS’s motion on July 7, 2003 and filed a cross-motion on that same date.  On February 23, 2004, the Court denied the USPS’s motion for summary judgment and granted Plaintiff’s cross-motion.  The Court ordered the USPS to produce a complete, unredacted copy of the December 2001 community meeting videotape to Plaintiff.    

II.        Argument.

A.        Judicial Watch is Entitled to an Award of Attorneys Fees.


FOIA allows awards of attorneys fees and costs to prevailing plaintiffs for two purposes:  (1) “to encourage Freedom of Information Act suits that benefit the public interest” and (2) to serve “as compensation for enduring an agency’s unreasonable obduracy in refusing to comply with the Freedom of Information Act’s requirements.”  LaSalle Extension Univ. v. Federal Trade Comm'n, 627 F.2d 481, 484 (D.C. Cir. 1980).  To obtain an award, the plaintiff must demonstrate that (1) it has “substantially prevailed” and is thus eligible for an award; and (2) it is entitled to an award under a balancing of relevant factors.  See Oil, Chemical and Atomic Workers Int’l Union v. Department of Energy, 288 F.3d 452 (D.C. Cir. 2002); Bricker v. FBI, 54 F. Supp.2d 1, 5 (D.D.C. 1999); Northwest Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59, 63 (D.D.C. 1997) (citing Weisberg v. DOJ, 848 F.2d 1265, 1268 (D.C. Cir. 1988).   

1.         Judicial Watch Has “Substantially Prevailed.

A party has “substantially prevailed” if it has “been awarded some relief by [a] court, either in a judgment on the merits or in a court-ordered consent decree.”  Oil, Chemical, and Atomic Workers Int’l Union, 288 F.3d at 456-57 (citing Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001) (internal quotations omitted).  In this case, the Court denied the USPS’s motion for summary judgment and granted Judicial Watch’s cross-motion, finding that the USPS “improperly applied Exemption 6 to redact portions of the December 2001 community meeting videotape.”  Memorandum Opinion of February 23, 2004 at 9.  It ordered the USPS to “provide [Judicial Watch] with a complete, unredacted copy of the December 2001 community meeting videotape.”  Id. at 10.  Clearly, Judicial Watch “substantially prevailed.” 

2.         Balancing the Relevant Factors Warrants an Award.


In addition, before granting an award of attorneys fees to a plaintiff that has “substantially prevailed,” a Court also must consider the following four factors: “(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) whether the Government had a reasonable basis for withholding requested information.”  Burka v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998) (internal citations and quotations omitted).  The second and third factors are “closely related and often considered together.”  Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (quoting Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992)).  In determining a plaintiff’s entitlement to attorneys fees, the Court must balance all four factors.  Ralph Hoar & Assocs., 985 F. Supp. at 9.  The balancing of these factors in this case clearly supports awarding attorneys fees to Judicial Watch.

a.         Public Benefit.

According to the D.C. Circuit, a FOIA action results in a public benefit if a plaintiff’s victory is “likely to add to the fund of information that citizens may use in making vital political choices.” Cotton, 63 F.3d at 1120 (quoting Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978)).  In making this inquiry, it is important to note that the “central purpose” of FOIA is “to assist our citizenry in making the informed choices so vital to the maintenance of a popular form of government.”  Blue, 570 F.2d at 533.

For several years, Judicial Watch has been involved in investigating the USPS’s response to the October 2001 anthrax contamination at the Brentwood facility and subsequent decontamination efforts.  To this end, Judicial Watch has been working closely with postal employees at the facility and an advocacy and support group, Brentwood Exposed, organized to assist the 2,200 Brentwood facility postal employees who were exposed to anthrax in October 2001.  Two Brentwood facility employees died in the October 2001 anthrax attack and several more were injured.  The attack also caused significant contamination “downstream” from the facility, including contamination at other postal facilities and federal office buildings.


Judicial Watch has assisted Brentwood Exposed in its numerous advocacy efforts and has represented members of Brentwood Exposed in appearing before various governmental entities, in the media, and in meeting with local and national political leaders, including District of Columbia Delegate Eleanor Holmes Norton and U.S. Representative Henry Waxman of the House Committee on Government Reform, and Senators Joseph Lieberman and Susan Collins of the Senate Governmental Affairs Committee.

In May 2003, representatives of Judicial Watch and members of Brentwood Exposed met with and provided voluminous documentation and information to members of the Government Accounting Office’s Physical Infrastructure team investigating the 2001 anthrax attacks.  In December 2003, they provided briefing materials to and testified before the District of Columbia Committee on Government Operations chaired by District of Columbia Councilman Vincent B. Orange regarding the reopening of the Brentwood facility.  Most recently, Judicial Watch produced an analysis of a Government Accounting Office report concerning the anthrax exposure at the Brentwood facility, Analysis of GAO Testimony:  U.S. Postal Service -- Clear Communication With Employees Needed Before Reopening the Brentwood Facility,” (GAO-04-205T/October 23, 2003).  In response to Judicial Watch’s analysis, Comptroller General of the United States David M. Walker wrote on December 17, 2003: “We view Judicial Watch as an important accountability organization in Washington, D.C. and very much appreciate your offer to meet with us again and discuss our review and provide further assistance to us.”


In addition to filing a class action lawsuit against USPS officials on behalf of several Brentwood facility employees (see Briscoe, et al. v. U.S. Postal Service Postmaster General John E. Potter, et al., Civil Action No.03-cv-2084 (RMC)), Judicial Watch also has pursued other FOIA lawsuits in order to obtain, analyze, and disseminate information about the USPS’s response to the anthrax contamination at the facility.  See Judicial Watch, Inc. v. U.S. Postal Service, Civil Action No. 01-1101 (HHK).  Obtaining an unredacted copy of the USPS’s videotape of the December 2001 community meeting is part of Judicial Watch’s ongoing investigation into the 2001 anthrax contamination at the Brentwood facility and its work with Brentwood postal facility employees and  Brentwood Exposed. 


The importance of the decontamination efforts at the Brentwood facility, which recently reopened, cannot be overstated.  Approximately 2,200 individuals work at the facility and millions of pieces of mail, including much of the mail received by the federal government, are processed at the Brentwood facility.  Confidence in the decontamination effort, including the discussion held at the December 2001 community meeting, is of the utmost importance.  Dissemination of the complete, unredacted version of the December 2001 community meeting videotape will assist the public in knowing the whole story regarding the USPS’s decontamination efforts. As the Court held, Judicial Watch’s “interest in determining whether the USPS was genuinely seeking independent community input regarding ‘important information about the potential [anthrax] contamination problems at the postal facility certainly fits within ‘FOIA’s central purpose to ensure that the Government’s activities be opened up to the sharp eye of public scrutiny.’”[1]  Memorandum Opinion of February 23, 2004 at 8-9 (citations omitted).  With the stakes so high, the partial truth is simply not good enough.  

b.         Commercial Benefit/Nature of Plaintiff’s Interest.

The second and third factors -- whether a plaintiff will derive commercial benefit from disclosure and the nature of the plaintiff’s interests in the records -- are closely related and typically considered together.  Cotton, 63 F.3d at 1120.  Judicial Watch is a non-profit, tax-exempt, educational organization.  It has no commercial interest in this case.  Instead, Judicial Watch’s “public-interest oriented” mission to bring to the public’s attention information concerning its government is identical to the purpose behind the FOIA statute.  S. Rep. No. 93-854, 93 Cong., 2d Sess. at 19 (1974).  Accordingly, Judicial Watch’s entirely non-commercial motive and interest in disclosure of the videotape fully entitle it to an award of attorneys fees.

c.         Reasonableness of Government’s Basis for Withholding.

This final criterion provides, in part, that where the government has unreasonably withheld records, a fee award is appropriate if the agency was “recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.”  See Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1097 (D.C. Cir. 1992) (citations omitted); Cazalas v. United States Dep't of Justice, 709 F.2d 1051, 1054 (5th Cir. 1983); Matlack, Inc. v. United States Environmental Protection Agency, 868 F. Supp. 627, 632 (D. Del. 1994). 


The USPS’s conduct clearly justifies a fee award.  This was not a close case.  First and foremost, the USPS failed to respond to Judicial Watch’s administrative appeal in a timely manner, forcing Judicial Watch to file suit in order to obtain compliance with FOIA.  Second, the Court resoundingly rejected the USPS’s attempted withholding under Exemption 6, which is intended to protect personal privacy.  The videotape at issue was taken at a public meeting during which individuals stepped forward to identify themselves and ask questions.  They clearly did so voluntarily.  These individuals chose to speak and identify themselves at a meeting in which readily identifiable members of the local, regional, and national media were in attendance.  Memorandum Opinion of February 23, 2004 at 7.  As the Court found, any privacy interests these individuals might have had in the nondisclosure of their names was “minimal,” and “[s]uch open participation and public identification could be found to effectively waive any privacy interests these individuals may have had.”  Id. at 7-8.  Moreover, the Court also found that “the public interest in disclosure of the names of speakers at the community meeting far outweighs the minimal privacy interest of those persons who spoke at the public meeting.”  Id. at 8.  The USPS had no legitimate basis for redacting the videotape, and its stubborn refusal to produce the complete, unredacted tape was unreasonable under the circumstances.

3.         The Requested Award is Reasonable. 

Fee awards are calculated by multiplying the number of hours reasonably expended by a reasonable hourly rate, resulting in a lodestar amount.  See Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980).  As public interest lawyers, Judicial Watch’s counsel do not have customary billing rate, as most private practice attorneys do.  Nevertheless, public interest attorneys may be awarded reasonable fees calculated “according to the prevailing market rates in the relevant community.”  Blum v. Stenson, 465 U.S. 886, 896 (1984) (fees awarded based on prevailing rate whether plaintiff is represented by private or nonprofit counsel); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995); Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988). 


In the District of Columbia Circuit, fee awards may be calculated based on the Laffey matrix, because, in the absence of a specific sub-market analysis of attorney fees, “use of the broad Laffey matrix may be by default the most accurate evidence of a reasonable hourly rate.”  Covington, 57

 F.3d at 1114 n.5.[2]  A copy of the Laffey matrix is attached as Exhibit 1.  Judicial Watch requests that its fee award be calculated under the Laffey matrix. 

A verified itemization of attorney/paralegal time spent by Judicial Watch in this matter is attached as Exhibit 2.  The itemization was generated from the contemporaneously-kept time records of the (4) individuals who worked on the case, Meredith L. Cavallo, Paul J. Orfanedes, Dale L. Wilcox, and David F. Rothstein.  The rates applied to the time recorded in Exhibit 2 are adopted from the Laffey Matrix.

Ms. Cavallo is an attorney who graduated from Regent University School of Law in 2000.  She has been practicing law continuously since that time.  Based on the Laffey Matrix of hourly rates allowed by the federal courts in the District of Columbia, the prevailing market rate for an attorney of Ms. Cavallo’s experience in 2003 was $175 per hour.


Mr. Orfanedes is an attorney who graduated from The American University’s Washington College of Law in 1990.  He has been practicing law continuously since that time and is an experienced litigator in the federal courts in the District of Columbia.  Based on the Laffey Matrix of hourly rates allowed by the federal courts in the District of Columbia, the prevailing market rate for an attorney of Mr. Orfanedes’ experience in 2003 was $325 per hour.

Mr. Wilcox is an attorney who graduated from Regent University School of Law in 1996.  He has been practicing law continuously since that time and is an experienced litigator in the federal

courts.  Based on the Laffey Matrix of hourly rates allowed by the federal courts in the District of Columbia, the prevailing market rate for an attorney of Mr. Wilcox’s experience in 2003 was $215 per hour.

Mr. Rothstein is a senior litigation assistant/paralegal who graduated from The Catholic University of America’s Columbus School of Law in 1994.  Based on the Laffey Matrix, the prevailing market rate for a litigation assistant/paralegal in 2003 was $100 per hour.

B.        Judicial Watch is Entitled to Reimbursement for Its Litigation Expenses.

 

Judicial Watch incurred litigation expenses (other than fees of counsel) of $169.01.  This includes a filing fee of $150.00 to initiate this action and $19.01 in postage to serve Summonses and copies of the Complaint.  See Exhibit 3.  As provided under FOIA and 28 U.S.C. § 1920, these expenses should be awarded to Judicial Watch.

III.       Conclusion.

For the foregoing reasons, Judicial Watch respectfully requests that it be awarded $12,606.50 in attorneys fees and $169.01 in litigation expenses pursuant to 5 U.S.C. § 552(a)(4)(E) and 28 U.S.C. § 1920, for a total award of $12,775.51. 


Respectfully submitted,

 

JUDICIAL WATCH, INC.

 

 

 

____________________________

Paul J. Orfanedes

D.C. Bar No. 429716                                                                                                         Suite 500

501 School Street, S.W.

Washington, DC 20024

(202) 646-5172

 

Attorneys for Plaintiff


                                              LOCAL RULE 7.1(M) CERTIFICATE

 

I hereby certify that on at least three occasions from March 4-8, 2004, I attempted to contact counsel for Defendant United States Postal Service, Dorann E. Banks, in a good faith effort to determine whether her client would oppose the relief requested in the foregoing PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS FEES AND LITIGATION EXPENSES and, if there is opposition, to narrow the areas of disagreement.  Each time I left a voice mail message for Defendant’s counsel asking her to contact me to discuss Plaintiff’s motion.  As of the filing of this motion, Defendant’s counsel has not returned my telephone calls.

 

 

________________________________

Paul J. Orfanedes 



[1]           Significant concerns had been raised by postal service employees, including members of Brentwood Exposed, about whether questions posed at the December 2001 community meeting were “staged” by the USPS in order to facilitate the USPS’s agenda.  See, e.g., Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Cross-Motion for Summary Judgment, filed on or about July 7, 2004, at 11-12.  Consequently, it was, and is, important to know the identities of the persons who asked questions at the community meeting in order to have any confidence in the USPS’s public outreach efforts and representations regarding the decontamination process.

[2]           This matrix, commonly referred to as the “Laffey Matrix” or the “United States Attorney’s Office Matrix,” is based on hourly rates allowed by the District Court in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983).  Use of an updated Laffey Matrix was implicitly endorsed by the U.S. Court of Appeals for the District of Columbia Circuit in Save Our Cumberland Mountains, 57 F.2d at 1525.  The Court subsequently declared that parties may rely on the updated Laffey Matrix prepared by the United States Attorney’s Office as evidence of prevailing market rates for litigation counsel in the Washington, D.C. area.  See Covington v. District of Columbia, 57 F.3d 1101, 1105 & n.14 (D.C. Cir. 1995).