CREW v. DOJ (FOIA Attorneys' Fees)

• Background |
• EPIC's Interest |
• Resources |

Questions Presented

At issue in this case are the billing rates that public interest attorneys may charge in a Freedom of Information Act ("FOIA") lawsuit.

Background

In 2011, Citizens for Responsibility and Ethics in Washington ("CREW"), a non-profit advocacy organization in Washington, D.C. filed a Freedom of Information Act ("FOIA") request with the Department of Justice for records related to the agency's investigation and prosecution of a prominent lobbyist who pleaded guilty to federal campaign finance violations. After the DOJ withheld all responsive records based on privacy grounds, CREW filed suit in federal district court in Washington, D.C. The agency then released hundreds of pages of responsive documents. Following the agency's document production, CREW submitted a motion to recover attorneys' fees and costs as is permitted by the FOIA. Upon consideration of CREW's motion, the district court awarded the organization $35,018 in fees and costs.

U.S. District Court for the District of Columbia

A prevailing party in a Freedom of Information Act (“FOIA”) matter is entitled to “reasonable attorney fees” and other reasonable litigation costs. Because public interest lawyers do not have standard hourly rates, courts routinely rely on a matrix of hourly fees for complex federal litigation first developed in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), and then updated by the D.C. Circuit in Save Our Cumberland Mountains v. Hodel, 857 F. 2d 1516 (D.C. Cir. 1988). The DOJ challenges CREW's version of the Laffey matrix.

CREW adjusted the 1988 version of the Laffey matrix for inflation by applying the legal services component ("LSI-adjusted Laffey matrix") of the Consumer Price Index ("CPI"), which the group argued best approximates the hourly billing rates of Washington D.C. attorneys who engage in complex federal litigation. DOJ argues that the court should use the version of the Laffey matrix maintained by the U.S. Attorney's Office for D.C. The government's version adjusts the original 1982 Laffey matrix by applying the overall CPI for the Washington-Baltimore area. The weakness of all-item price indices, according to CREW, is that inflation is calculated based on the price change of more than one hundred thousand commodities. The competing methodologies yield drastically different hourly rates. For example, under the updated Laffey matrix, a lawyer with more than 20 years experience would bill $771 per hour in 2014. But under the government's matrix, that lawyer would bill $510 per hour.

Judge Christopher R. Cooper granted CREW's motion for attorneys' fees. Citing Eley v. District of Columbia, 999 F. Supp. 2d 137 (D.D.C. 2013), another case in which the court approved the use of the LSI-adjusted Laffey matrix, Judge Cooper concluded that the LSI-adjusted Laffey matrix "offers a better approximation of D.C. rates for the relevant services than a matrix adjusted using a general inflation index."

In May of 2015, the DOJ filed a appeal in the D.C. Circuit challenging CREW's calculation of attorneys' fees.

EPIC's Interest

As an active FOIA litigator, EPIC has a significant interest in recovering reasonable attorneys' fees authorized under the law. These fees support the work of FOIA requesters who litigate on behalf of the public, as well as encourage agencies to expedite disclosure. Recognition of the LSI-adjusted Laffey matrix by the D.C. Circuit, the most influential forum for FOIA litigation, would further both goals.

Courts have routinely awarded EPIC fees and costs in FOIA cases in which it has obtained government documents of public interest. . For example, in EPIC v. FBI, the court awarded EPIC $20,000 in fees and costs after EPIC obtained documents detailing the government’s operation of the largest biometric database in the world. The court observed, “There can be little dispute that the general public has a genuine, tangible interest in a system designed to store and manipulate significant quantities of its own biometric data, particularly given the great number of people from whom such data will be gathered.”

Legal Documents

United States District Court for the District of Columbia

• Memorandum Opinion (Feb. 11, 2015)

Resources

• Laffey Matrix from U.S. Attorney's Office for D.C.
• 2015
• Previous years
• Updated Laffey Matrix