Case 1:08-cv-01046-JDB Document 46 Filed 12/07/09 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) C.A. No. 08-1046 (JDB)
)
DEPARTMENT OF HOMELAND SECURITY, )
)
Defendant. )
)

PLAINTIFF’S MOTION FOR A STATUS CONFERENCE CONCERNING

ATTORNEY’S FEES AND AN EXTENSION OF TIME IN WHICH TO MOVE
FOR AN AWARD OF ATTORNEY’S FEES, AND SUPPORTING MEMORANDUM

Pursuant to Local Rule 54.2, plaintiff Citizens for Ethics and Responsibility in

Washington (“CREW”) respectfully moves for entry of an order 1) directing the parties to confer

and to attempt to reach agreement on attorney’s fee issues; 2) setting a status conference to

assess the parties’ progress; and 3) providing CREW an extension of time for filing a motion for

an award of attorney’s fees under Rule 54(d)(2)(B).1

1
In compliance with LCvR 7(m), counsel for CREW inquired as to defendant’s position with
respect to this motion, and defendant responded as follows: “The parties have conferred and
agree that the only outstanding issue pertaining to the first part of CREW’s FOIA request is
CREW’s claim for attorney’s fees and costs. DHS, however, opposes any new scheduling order
in this case that does not also address the second part of CREW’s FOIA request. DHS proposes
that the parties have a telephone conference during the week of December 7, 2009 to discuss the
status of the agency’s production of emails pursuant to the Court’s November 24, 2008 Order.
Currently, DHS is required to complete its rolling disclosure of emails by December 20, 2009;
however, the agency needs more time to complete the processing of emails and intends to ask the
Court to extend that deadline. Accordingly, DHS submits that the parties should meet and confer
and attempt to reach an agreement as to a new scheduling order for both parts of CREW’s FOIA
request. The Court will then be able to consider CREW’s motion in the context of the case as a
whole.”
 Case 1:08-cv-01046-JDB Document 46 Filed 12/07/09 Page 2 of 6

Background

In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, CREW

seeks the disclosure of records concerning allegations that defendant Department of Homeland

Security (“DHS”) and its component, U.S. Customs and Border Protection (“CBP”), engaged in

improper political favoritism when CBP made decisions concerning the location of the U.S.-

Mexico border fence and the property owners who would be adversely impacted by the

construction project. Following briefing and the Court’s in camera inspection of the disputed

records, by memorandum opinion and order dated September 1, 2009, the Court granted in part

and denied in part the parties’ cross-motions for summary judgment. Specifically, the Court

ordered defendant DHS to release to CREW certain information previously withheld by CBP,

and “with respect to the Exemption 5 claims in Document Nos. 1, 9 and 27 and relevant

attachments within Document Nos. 22 and 24,” the Court directed that “defendant must file a

supplemental Vaughn submission, along with a memorandum in support of its exemption claims,

by not later than October 2, 2009 or the Court will treat these remaining exemption claims as

conceded and order that the withheld material be released.” Order of September 1, 2009 (Docket

No. 36) at 2.

On October 2, 2009, defendant filed a consent motion requesting a 30-day stay of the

Court’s Order of September 1, 2009 (Docket No. 37). The motion stated that “[t]he stay is

requested so that the parties can discuss a global settlement of all issues relating to the first part

of Plaintiff’s FOIA request, including attorney fees, and eliminate the need for any additional

litigation relating to this request.” By minute order dated October 5, 2009, the Court granted

defendant’s motion and stayed defendant’s deadline for filing a supplemental Vaughn

2
 Case 1:08-cv-01046-JDB Document 46 Filed 12/07/09 Page 3 of 6

submission, along with a memorandum in support of its exemption claims, until November 2,

2009.

On November 2, 2009, defendant DHS filed a notice of appeal of the Court’s September

1 Order (Docket No. 38) and moved to stay the Order pending appeal (Docket No. 39). CREW

opposed the motion to the extent that defendant sought to delay the filing of a supplemental

Vaughn submission. By Order issued on November 5, 2009 (Docket No. 42), the Court granted

in part and denied in part defendant’s stay motion and ordered the agency to “file its

supplemental Vaughn index and supporting memorandum by not later than November 27, 2009,”

and to “file a report on the status of its appeal” by that date, as well. Id. at 3.

On November 25, 2009, defendant DHS released to CREW the records ordered disclosed

by the Court’s September 1 Order, as well as the records for which the Court directed the filing

of a supplemental Vaughn submission. See Defendant’s Notice of Compliance with Court’s

September 1, 2009 Disclosure Order (Docket No. 44). On November 27, 2009, the agency

represented to the Court that it “expects to file a motion to dismiss [its pending] appeal on or

before . . . December 4, 2009.” Id. at 3. The court of appeals did, in fact, dismiss the agency’s

appeal on that date (Docket No. 45).

Points and Authorities

Local Rule 54.2 provides, in pertinent part:

In any case in which a party may be entitled to an attorney’s fee from another
party, the court may, at the time of entry of final judgment, enter an order
directing the parties to confer and to attempt to reach agreement on fee issues.
The order shall provide an extension of time for filing a motion under Rule
54(d)(2)(B). Such an order shall also set a status conference, ordinarily not more
than 60 days thereafter, at which the court will (1) determine whether settlement
of any and or all aspects of the fee matter has been reached, (2) enter judgment for
any fee on which agreement has been reached, . . . and [3] set an appropriate
schedule for completion of the fee litigation. . . .

3
 Case 1:08-cv-01046-JDB Document 46 Filed 12/07/09 Page 4 of 6

LCvR 54.2(a). In light of defendant’s recent compliance with the Court’s September 1

disclosure order, and the agency’s decision to no longer defend its withholding of the other

records that remained in dispute, CREW believes it has “substantially prevailed” within the

meaning of the FOIA, 5 U.S.C. § 552(a)(4)(E), and that it is thus entitled to recover “reasonable

attorney fees and other litigation costs reasonably incurred” in “Part I” of this litigation. As

such, issuance of an order concerning the determination of attorney’s fees pursuant to Local Rule

54.2 would be appropriate.

It is clear that this case is now in the posture the local rule envisions; “[i]n an FOIA case

a ‘final decision’ is an order by the District Court requiring release of documents by the

Government to the plaintiff . . . .” Green v. Dep’t of Commerce, 618 F.2d 836, 841 (D.C. Cir.

1980); see also Citizens for Responsibility & Ethics v. U.S. Dep’t of Homeland Sec., 532 F.3d

860, 863 (D.C. Cir. 2008). Early in the litigation, the parties agreed to “bifurcate” the

proceedings on the two distinct portions of CREW’s FOIA request,2 see Joint Proposed Briefing

Schedule (Docket No. 7) at 2, and the Court’s September 1 ruling on the parties’ cross-motions

for partial summary judgment constitutes “entry of final judgment” with respect to “Part I” of the

bifurcated case. Indeed, defendant DHS recognized the propriety of addressing CREW’s

entitlement to attorney’s fees at this stage of the litigation when it first moved for a stay of the

2
As set forth in defendant’s answer (Docket No. 4), the first part of the request (as amended by
agreement of the parties) was as follows: “[a]ny and all records, regardless of format, dating
from January 20, 2001 to the present reflecting communications concerning Ray L. Hunt, Hunt
Consolidated, Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt
Consolidated, Inc., and the construction of fencing along the border between the U.S. and
Mexico, including, but not limited to, input sought or received from Mr. Hunt and/or Hunt
Consolidated on border fence construction.” The second part of the request was, in pertinent
part, as follows: “[a]ny and all records, regardless of format, concerning deliberations, standards,
and criteria encompassing the decision-making process surrounding where [Secure Border
Initiative] fencing should be constructed along the U.S. border with Mexico.”

4
 Case 1:08-cv-01046-JDB Document 46 Filed 12/07/09 Page 5 of 6

Court’s September 1 Order. Defendant’s Consent Motion for 30-Day Stay of September 1, 2009

Order (Docket No. 37) at 1 (“[t]he stay is requested so that the parties can discuss a global

settlement of all issues relating to the first part of Plaintiff’s FOIA request, including attorney

fees”).3

CREW submits that a court-supervised process to resolve the issue of attorney’s fees for

“Part I” of the litigation, as outlined in the local rule, would be particularly appropriate in light of

defendant’s previous failure to engage in a good faith discussion of the fee issue,

notwithstanding the agency’s representation to the Court that it sought a stay of its obligations

under the September 1 Order for precisely that purpose. As CREW has shown, defendant in fact

made no effort to confer with respect to CREW’s attorney’s fee claim during the period of that

30-day stay. See Declaration of David L. Sobel, attached to Plaintiff’s Opposition to

Defendant’s Motion for Stay Pending Appeal of September 1, 2009 Order (Docket No. 41).

Indeed, in stating its position on this motion, the agency now seeks to complicate (and delay) the

matter by linking the question of attorney’s fees for “Part I” of the case with future proceedings

on “Part II” – proceedings for which “the agency needs more time” and “intends to ask the Court

to extend [a current] deadline.”

Despite defendant’s lack of cooperation to date with CREW’s efforts to resolve its

attorney’s fee claim without further litigation, CREW remains willing to postpone the filing of a

3
Even if the Court’s Order of September 1 is not deemed to constitute a “final judgment,” Local
Rule 54.2 nonetheless recognizes that consideration of attorney’s fees would be appropriate,
providing that “[n]othing in this Rule precludes interim applications for attorneys fees prior to
final judgment.” LCvR 54.2(c). See also Allen v. FBI, 749 F. Supp. 21, 23, vacated in part on
other grounds, 751 F. Supp. 255 (D.D.C. 1990) (“an award of interim attorneys’ fees and costs is
appropriate” in FOIA case where “first phase of the litigation” is complete).

5
 Case 1:08-cv-01046-JDB Document 46 Filed 12/07/09 Page 6 of 6

motion for an award of attorney’s fees and costs pursuant to Fed. R. Civ. P. 54(d).4 As Local

Rule 54.2 contemplates, unnecessary fee litigation may be avoided when the Court directs the

parties “to confer and to attempt to reach agreement on fee issues” and to appear at a status

conference to report on the progress of those efforts.

Conclusion

In the interest of judicial economy, and to avoid unnecessary litigation, the Court should

order the parties to confer and attempt to reach an agreement on CREW’s claim for attorney’s

fees and costs, and schedule a status conference within 60 days to assess the parties’ progress.

To facilitate that process, the Court should grant CREW an extension of time in which to file a

motion for an award of attorney’s fees and costs.

Respectfully submitted,

/s/ David L. Sobel

DAVID L. SOBEL, D.C. Bar No. 360418
1818 N Street, N.W.
Suite 410
Washington, DC 20036
(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190

MELANIE SLOAN, D.C. Bar No. 434584
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Plaintiff

4
Because the Court’s September 1 Order was stayed pending appeal (Docket No. 42), and the
appeal was dismissed on December 4 (Docket No. 45), the 14-day time limit for filing a motion
for fees and costs established by Rule 54(d)(2)(B) is now running. As Local Rule 54.2 provides,
CREW seeks, by this motion, “an extension of time for filing a motion under Rule 54(d)(2)(B)”
to facilitate a court-directed process to explore a settlement of the issue.

6
 Case 1:08-cv-01046-JDB Document 46-1 Filed 12/07/09 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) C.A. No. 08-1046 (JDB)
)
DEPARTMENT OF HOMELAND SECURITY, )
)
Defendant. )
)

ORDER

UPON CONSIDERATION of plaintiff’s motion for entry of an order pursuant to Local

Rule 54.2, defendant’s response, and the entire record, it is this ___ day of December 2009;

ORDERED that plaintiff’s motion is GRANTED; and it is

FURTHER ORDERED that the parties shall confer and attempt to reach agreement on

attorney’s fee issues with respect to “Part I” of this litigation; and it is

FURTHER ORDERED that a status conference will be held on __________________

at which the Court, inter alia, will determine whether settlement of any and or all aspects of the

fee matter has been reached; and it is

FURTHER ORDERED that plaintiff’s time in which to file a motion for an award of

attorney’s fees and costs is extended until further order of the Court.

____________________________________
UNITED STATES DISTRICT JUDGE