United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING WITHOUT PREJUDICE
PLAINTIFFS' MOTION FOR AN INTERIM AWARD OF ATTORNEY FEES
AND COSTS (DKT. 62)
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs Michigan Immigrant
Rights Center, Dr. Geoffrey Alan Boyce, Dr. Elizabeth
Oglesby, and American Civil Liberties Union of Michigan's
joint motion for an interim award of attorney fees and costs
incurred through March 25, 2019 (Dkt. 62). This matter has
been fully briefed. Because oral argument will not assist in
the decisional process, the motion will be decided based on
the parties' briefing. See E.D. Mich. LR
7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons discussed
below, the Court finds that an award of interim fees is
premature and, therefore, denies without prejudice
21, 2015, Plaintiffs submitted to Defendants United States
Department of Homeland Security and United States Customs and
Border Protection a request for four categories of
documents-referred to as Categories A, B, C, and D
documents-under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. 5/21/15 FOIA
Request, Ex. A to Compl. (Dkt. 1-2). Although Defendants
began producing some Category A documents in January 2016,
see 1/12/16 Initial Response Letter, Ex. 6 to Defs.
Mot for Summ. J. (Dkt. 28-8), Plaintiffs initiated the
present action on November 30, 2016, alleging that Defendants
violated their obligations under FOIA by withholding the
disclosable records requested, Am. Compl. ¶¶ 77-79
(Dkt. 22). Among other forms of relief, Plaintiffs sought an
injunction requiring Defendants to disclose the requested
records. Id. ¶ 85. On May 10, 2017, Plaintiffs
filed a second FOIA request seeking the same four categories
of documents created over a more recent timeframe. 5/10/17
FOIA Request, Ex. Q to Am. Compl. (Dkt. 22-18). Plaintiffs
amended their complaint on July 28, 2017 to reflect this
second FOIA request. See Am. Compl. ¶ 13.
the initiation of the litigation, the parties have largely
negotiated Defendants' production and redaction of the
documents requested by Plaintiffs. For example, Defendants
produced Category B, C, and D documents responsive to the
first FOIA request in March through May of 2017. Joint
Discovery Plan at 3-5 (Dkt. 21). The parties agreed to a
joint discovery plan setting forth production deadlines in
July 2017 for Category A documents responsive to the second
FOIA request. Id. at 8-9. In early 2018 the parties
filed cross-motions for partial summary judgment disputing
Defendants' redaction of certain information from its
productions. Defs. Mot. for Partial Summ. J. (Dkt. 28); Pls.
Mot. for Partial Summ. J. (Dkt. 32). However, the parties
later resolved this dispute and arrived at an agreement
regarding Defendants' production of all the remaining
categories of documents responsive to both FOIA requests.
See 9/7/18 Stipulated Order (Dkt. 41).
September 2018, the parties disputed the timeline over which
Defendants were to produce remaining Category C and D
documents. 9/28/18 Joint Prod. Schedule Status Report (Dkt.
46). The Court ultimately resolved this dispute in an order
requiring production of the remaining Category A and B
documents by December 31, 2018, and setting forth a rolling
production schedule for the remaining Category C and D
documents at a significantly more accelerated pace than that
proposed by Defendants. See 11/26/18 Order (Dkt.
52). On January 17, 2019, the Court granted Defendants'
motion to stay production deadlines in light of the
government shutdown. 1/17/19 Order (Dkt. 56). However, on
March 25, 2019, the Court issued a revised production
schedule for the Category C and D documents requiring a final
production to be made no later than December 11, 2019.
3/25/19 Order (Dkt. 60).
April 1, 2019, Plaintiffs filed their present motion seeking
an award of interim attorney fees and costs incurred through
March 25, 2019. Pls. Mot. at 19 (Dkt. 62). Thus, Plaintiffs
seek to recover fees and costs through the time the Court
ordered production of Category A and B documents by a fixed
date and ordered an accelerated production schedule for
Category C and D documents.
FOIA, a court “may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section in which
the complainant has substantially prevailed.” 5 U.S.C.
§ 552(a)(4)(E). Courts determining whether to award
attorney fees apply a two-part test evaluating whether (1)
the plaintiff substantially prevailed such that he is
eligible for an award and (2) the plaintiff is entitled to an
award based upon a balancing of equitable considerations.
GMRI, Inc. v. Equal Emp't Opportunity
Comm'n, 149 F.3d 449, 451 (6th Cir. 1998). With
respect to the first part of the test, a plaintiff
“substantially prevails” if relief is obtained
through either “a judicial order, or an enforceable
written agreement or consent decree” or “a
voluntary or unilateral change in position by the agency, if
the complainant's claim is not insubstantial.” 5
U.S.C. § 552(a)(4)(E). With respect to the second part
of the test, courts evaluate the following three equitable
factors: “‘ the benefit to the public deriving
from the case;  the commercial benefit to the complainant
and the nature of its interest in the records; and 
whether the agency's withholding [of the records] had a
reasonable basis in law.'” GMRI, 149 F.3d
at 452 (quoting Detroit Free Press, Inc. v. Dep't of
Justice, 73 F.3d 93, 98 (6th Cir. 1996)).
court, in its discretion, may award interim attorney fees to
a party who has substantially prevailed in an action brought
under FOIA. Clemente v. Fed. Bureau of
Investigation, 166 F.Supp.3d 11, 13 (D.D.C. 2015),
aff'd 867 F.3d 111 (D.C. Cir. 2017).
Nevertheless, many courts have held that an interim award of
fees should be dissuaded in all but the most exceptional
cases involving protracted litigation and financial hardship.
Allen v. Fed. Bureau of Investigations, 716 F.Supp.
667, 672 (D.D.C. 1988); see also Biberman v. Fed. Bureau
of Investigation, 496 F.Supp. 263, 265 (S.D.N.Y. 1980)
(holding that interim fees should be awarded “only in
those cases in which it is necessary to the continuance of
litigation which has proven to be meritorious at the time of
the application”). Courts frequently evaluate the
following “Powell factors” to determine
whether an award of fees is warranted:
First, the court should consider the degree of hardship which
delaying a fee award until the litigation is finally
concluded would work on plaintiff and his or her counsel . .
. . Second, the court should consider whether there is
unreasonable delay on the government's part . . . .
Third, the court should consider the length of time the case
has been pending prior to the motion, and fourth, the period
of time likely to be required before the litigation is
Powell v. U.S. Dep't of Justice, 569 F.Supp.
1192, 1200 (N.D. Cal. 1983). Courts have also considered
whether evaluating a party's entitlement to interim fees
will result in a duplication of effort in later evaluating
entitlement to a final award of fees. See Allen, 716
F.Supp. at 672; Powell, 569 F.Supp. at 1196.
present case, the Powell factors do not support an
interim award of fees. First, Plaintiffs have not
demonstrated that a failure to award fees would impose a
financial hardship or result in an inability to continue the
litigation. To the contrary, on December 10, 2018, Plaintiffs
stipulated that “any briefing as to attorneys' fees
would be premature at this juncture” and that
“the Court should withhold judgment on the question
until after any disputes with respect to the remaining
categories of documents have been litigated.” Joint
Statement at 2 (Dkt. 53). Thus, the first factor weighs
against awarding interim fees.
Defendants initially sought to delay the proceedings by
suggesting a protracted production schedule extending over
thirty-seven months. 9/28/18 Joint Production Schedule Status
Report at 12. More recently, they sought to extend the
production schedule due to their own carelessness in
needlessly reviewing documents that were not producible,
thereby having to extend the timeframe for producing the