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DaSilva v. USCIS, No. 13-13, 2014 WL 775606 (E.D. La. Feb. 24, 2014) (Africk, J.)
February 24, 2014 Posted by

Re: Plaintiff’s motion for attorney’s fees and costs resulting from action relating to request for records concerning plaintiff

Disposition: Granting in part and denying in part plaintiff’s motion for attorney’s fees and costs; dismissing without prejudice motion in all other respects

  • Attorney Fees, Eligibility:  The court “finds that plaintiff is not eligible for attorney’s fees relative to the disclosure of ‘plaintiff’s A-file’” because “‘the government did not engage in the sort of dilatory litigation tactics that [the attorney's fees] provision was aimed to prevent.’”  The court “notes that plaintiff’s complaint was filed very quickly after his initial FOIA request, weakening any inference that the filing of the complaint was the catalyst for the agency’s disclosure.”  However, regarding plaintiff’s request for certain e-mails, the court finds that “plaintiff has demonstrated eligibility for attorney’s fees.”  The court notes that defendant “neglect[ed] to mention the ongoing searches until the issue was raised [by] plaintiff[]” and “defendant has not explained why it ‘initiated a second, third, and fourth search for documents [ ] after it had [ostensibly] completed processing and production of all records.’”
  • Attorney Fees, Entitlement:  The court finds that “while plaintiff’s interest is not commercial, which weighs in favor of an award of attorney’s fees, the personal nature of that interest and the lack of a public benefit weigh against an award of attorney’s fees.”  First, the court finds that “[t]he potential public value of the information sought . . . is minimal.”  Second, as for the nature of the plaintiffs interest, the court finds that “[i]nsofar as plaintiff’s discovery-related justifications relate to the emails disclosed by defendant, these justifications do not weigh in favor of an award of attorney’s fees.”  Additionally, the court finds that “[w]hile plaintiff may characterize an ‘overarching goal’ of modifying defendant’s policies, there is no indication of how plaintiff’s request relative to his ‘personal dispute with [defendant] provides a public benefit.’”  Finally, the court states that “as previously noted, plaintiff is not eligible for attorney’s fees relative to the disclosure of his A-file.”

    As to the fourth factor, the court finds that “[d]efendant’s initial withholding of the emails did not have ‘even a colorable basis in law’—it was the result of an oversight.”  Moreover, the court states that it “need not determine whether a mere oversight, however significant, is the type of ‘obdurate’ conduct warranting attorney’s fees” because “[d]efendant’s sworn declarations and pleadings, which reiterated that plaintiff sought email communications, and then asserted that ‘all communications’ would be in his A-file, are plainly misleading.”

  • Attorney Fees, Calculation:  The court first notes that “[e]ven if plaintiff’s counsel had focused his time sheet solely on the two FOIA requests at issue, the Court would be unable to ascertain the percentage of plaintiff’s hours associated with the second set of documents disclosed by FOIA, for which additional briefing will be required.”  The court also notes that some of plaintiff’s “activities appear wholly unrelated to either of plaintiff’s FOIA claims, much less his successful one.”  The court then finds that “[p]laintiff’s counsel has submitted a declaration to the effect that $295.00 hourly is his customary billing rate, . . .[b]ut this does not demonstrate that $295.00 is the rate ‘actually billed and paid in similar lawsuits,’ . . .  given that counsel’s primary practice appears to be immigration law, rather than FOIA.”  The court finds that “[a]fter reviewing recent caselaw from the Eastern District of Louisiana . . . the Court concludes that an hourly rate of $200.00 is appropriate given counsel’s seven years of experience in immigration law and the absence of any evidence specifying his experience in representing clients with FOIA claims.”
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