Free Motion for Attorney Fees - District Court of Colorado - Colorado

Case 1:04-cv-01264-LTB-PAC

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Filed 03/31/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01264-LTB-PAC MARY M. HULL, Plaintiff, vs. UNITED STATES DEPARTMENT OF LABOR, Defendant. __________________________________________________________________________ DECLARATION OF CURTIS L. KENNEDY IN SUPPORT OF APPLICATION FOR AWARD OF ATTORNEY'S FEES AND REIMBURSEMENT OF EXPENSES

I, Curtis L. Kennedy, declare as follows: 1. I am a sole practitioner with offices in Denver, Colorado. I am counsel of record

for Plaintiff Mary M. Hull. For more than twenty years, a significant part of my law practice has concentrated on assisting, either on a paid basis or pro bono basis, thousands of employees and retirees of the former Bell System, particularly the former U S WEST and the current Qwest Communications International, Inc. I played a very significant role in the forming and organization of the Association of U S WEST Retirees (AUSWR), participants of the Qwest Pension Plan. 2. I am submitting this declaration and application for an award of attorneys' fees in

connection with services rendered in the above-entitled action and the reimbursement of expenses incurred by me in the course of this litigation. I performed professional services in connection with the following tasks and projects during this litigation as described in the table below and billed at my current customary hourly rate of $300.00.

Exhibit 1

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3.

This protracted litigation arose after a legitimate written demand under the

Freedom of Information Act (FOIA) was fully refuted by the United States Department of Labor (DOL). Undisputed facts of this case are recited in the Court's December 2, 2005 Order entered in this case (See Docket 28). 4. I was retained by Mary "Mimi" Hull, President of AUSWR, to pursue a request

for information pertaining to an alleged on-going investigation concerning the Qwest Pension Plan. Thousands of AUSWR members, plan participants in the pension plan wanted to know about the situation. The information to be obtained was going to be freely distributed to the retirees. Ms. Hull was fulfilling her duties as President of AUSWR to try to police the pension plan and learn more about what, if anything, was being accomplished by the DOL. 5. On March 2, 2004, I began the formal FOIA process by first telephoning Robert

Webber, the Acting Regional Director for the DOL's Employee Benefits Security Administration in Kansas City and asked about the subject matter. During our telephone conversation, he told me he couldn't say anything about the status of the "investigation." When pressed to give me some clue as to when it might be finished, he told me the `investigation' might never be ended, and that response seemed particularly odd to me. On March 3, 2004, I followed up with a letter faxed to Mr. Webber making a formal FOIA request. The next day, Mr. Webber faxed back to me a letter saying my FOIA request was denied in its entirety. Not one piece of paper was sent to me in response to the FOIA request. 6. On March 16, 2004, I exhausted the FOIA appeals process by sending a demand

letter to the Office of the Solicitor in Washington, DC. Several weeks later, I followed up with a telephone call and was told the appeal was being `processed,' nothing more. I followed up with several more telephone calls inquiring about the matter, each time being told the same -2-

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thing, that the appeal was being `processed' and that no estimate could be given as to when the processing would be completed. On the 75th day after the appeal letter was sent to the Office of the Solicitor, I filed the Complaint in this Court on behalf of Mimi Hull and promptly served the DOL via the United States Attorney's office. In response, the DOL filed a general denial Answer. 7. The case degenerated into one of `cat and mouse" or a "tug-of-war." Each time

I pursued another step in the litigation process, the DOL release additional documents, repeatedly making `moot' pending motions for summary judgment. 8. While Ms. Hull got nothing in response to her FOIA request prior to litigation,

she ultimately received over 6,000 pages of responsive papers and this information was shared with thousands of Qwest retirees who, thereby, learned more about the operations, administration and financial status of their pension plan. There was no personal gain or commercial gain sought or obtained by either Ms. Hull or the retiree organization. 9. Several weeks after HULL filed her last legal brief on February 3, 2006, the DOL

complied with Hull's request, again, producing FOIA responsive papers before there could be further judicial involvement. 10. Near the end of February 2006, Assistant United States Attorney Michael

Johnson, gave assurances to us that he had been told by the DOL that there was nothing else to produce responsive to Ms. Hull's FOIA request other than several pages of what the DOL contends to be protected by the attorney-client privilege. 11. The following is a true and accurate statement of my hours expended and tasks

performed for which I seek compensation. However, I have removed from the following a total of 35 hours I spent over the course of this case researching, reading numerous case decisions and -3-

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learning about FOIA and how to litigate alleged FOIA Exemptions, such as those raised by the DOL in this case. Since FOIA is not an area of law with which I had previous experience, I believed it my responsibility to winnow out my learning time and I have limited my request to the following:

STATEMENT OF LEGAL SERVICES RENDERED
12. Statement for period March 3, 2004, through March 31, 2006, for legal services

rendered in connection with Freedom of Information Act (FOIA) claim on behalf of Claimant Mary M. Hull and Association of U S WEST Retirees (AUSWR): Date: 10.17.03 Description of Task Performed: Tc with Board members [including Plaintiff Mary M. Hull] of the Association of U S WEST Retirees (AUSWR) re: requesting the DOL's report about the Qwest Pension Plan; Tc to Acting Regional Director Robert Webber in Kansas City to inquire about the same; draft follow-up letter faxed to Mr. Webber re: our discussion; draft report re: same and email to AUSWR Board members. (10:25-11:45) Draft letter and fax to Acting Regional Director Robert Webber in Kansas City as reminder of October 17, 2003 letter; draft email note to AUSWR Board members re: same. Draft and revise demand letter under Freedom of Information Act (FOIA) and fax and mail to Acting Regional Director Robert Webber in Kansas City; draft explanation letter and email to AUSWR Board members for distribution to Qwest Pension Plan participants. Review March 4, 2004, FOIA denial letter from Kansas City DOL; draft comprehensive letter to AUSWR Board members explaining parameters of FOIA Exemption 7(A) and options available. Hours: N/C

02.24.04

N/C

03.03.04

0.9

03.09.04

0.5

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03.12.04

Review feedback from AUSWR Board members and consider next stage - appeal to Office of the Solicitor; research procedural issues on DOL website; Internet research on FOIA appeals, especially DOL agency matters. (1:15-2:25) Draft and revise and final FOIA appeal letter to DOL Office of the Solicitor. Draft status report to AUSWR Board members re: appeal letter sent to DOL Office of the Solicitor. Tcs to DOL Office of the Solicitor; Tc with Ms. Shteir-Dunn; review email confirmation from Ms. Dunn and report same to AUSWR Board members. Review April 20, 2004, dated letter (mailed on April 30, 2004) from Solicitor's Office acknowledging receipt of the March 16, 2004 and draft email note to AUSWR Board members. Draft email letter to April Nelson, Director FOIA Appeals Unit to inquire about status of FOIA. Review April 20 email note from April Nelson and draft report re: same to AUSWR Board members. Tc with Ms. Hull about filing FOIA lawsuit; review email note from Ms. Hull re: same. Research 10th Circuit and District of Colorado case law on FOIA claims; draft, revise and final complaint under FOIA consider litigation issues. (12:40-4:20) Final work on FOIA Complaint, Summons and filing papers; file with Clerk of the Denver Federal Court; serve Summons and Complaint on U.S. Attorney's Office. (3:10-5:30) Draft status report for AUSWR Board members for distribution to all known Qwest Pension Plan participants; Tc with Ms. Hull re: filing and expected events. Review June 16, 2004, letter denying FOIA appeal from the DOL Office of the Solicitor; draft report re: same to AUSWR Board members for full distribution; Tc with Ms. Hull re: same. Review the July 15, 2004, "Answer" filed by U.S. Attorney's Office for the DOL; draft report re: same to AUSWR Board members for full distribution.

2.1

03.15.04 03.16.04 04.15.04

0.8 0.2 0.2

05.03.04

0.1

05.19.04 05.20.04 06.16.04 06.17.04

0.2 0.1 0.2 3.3

06.18.04

2.3

06.19.04

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06.21.04

0.4

07.18.04

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07.28.04

Review July 19 "Order of Reference to United States Magistrate Judge" and July 20 "Minute Order for Scheduling/Planning Conference, " and draft report re: same to AUSWR Board members for full distribution. Draft motion to vacate scheduling/planning conference and motion for in camera inspection and fax same to U.S. Attorney Michael Johnson for consideration; draft note to AUSWR Board members re: same. Draft email memo re: FOIA matter to Ms. Hull; review email note re: same from Ms. Hull. Draft reminder note to U.S. Attorney Michael Johnson; Tc with Ms. Hull re: status. Review September 28 letter from U.S. Attorney Michael Johnson declining to consent to proposed motion for in camera inspection; Tc with Ms. Hull re: same. Draft proposed Scheduling Order, revise same and fax to U.S. Attorney Michael Johnson for his input of DOL's section and proposed changes. (10:40-12:30) Draft update report to AUSWR Board members re: proposed scheduling order and conference before Magistrate Judge Schlatter.

0.3

08.27.04

0.7

08.31.04 09.27.04 09.28.04

0.1 0.2 0.1

10.22.04

1.5

0.2

10.25.04

Review October 19, 2004, dated letter from DOL Co-Counsel for Administrative Law Miriam McD. Miller advising the "Department of Labor is prepared to release the disclosable records from the ongoing investigation of the Qwest Pension Plan, which are the subject of the captioned case brought under the Freedom of Information Act (FOIA). . . "; Tc with Jennifer Toth at DOL's main office; draft and final response letter confirming agreement to pay estimated costs; draft report re: same to AUSWR Board members for full distribution; Tc re: same with Ms. Hull. Tc with U.S. Attorney Michael Johnson re: upcoming Scheduling Conference before Magistrate Judge Schlatter; review fax received from Mr. Johnson's office on DOL's insert and changes to proposed order; Tc with Ms. Hull re: same Draft unopposed motion proposing to suspend entry of Scheduling Order and fax to Denver Federal Court.

0.7

11.05.04

0.5

0.3

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11.08.04

Conference with Ms. Hull; Attend Scheduling Conference before Magistrate Judge Schlatter and advise of DOL's agreement to send documents; brief discussion with U.S. Attorney Michael Johnson on Ms. Hull's proposal for payment of reasonable attorney's fees and the filing fee. Review time records for work performed in this case; winnow out time; draft application for fees and submit to U.S. Attorney Michael Johnson and DOL Miriam McD. Miller; draft email note to Mr. Johnson; draft update re: same for Ms. Hull; followup Tc with Ms. Hull re: same and process going forward. Draft reminder letter to U.S. Attorney Michael Johnson and DOL Miriam McD. Miller re: what's happening? Where are the promised documents?; draft email update to Ms. Hull and Tc with Ms. Hull re: same old problem. . . Review December 2, 2004 faxed letter from DOL Attorney Miriam McD. Miller re: 4,275 pages of promised documents to be released; draft email note re: same to Ms. Hull and AUSWR Board members re: DOL's requested payment of $626.25; Tc with Ms. Hull re: same; draft response letter to DOL Attorney Miriam McD Miller confirming payment sent today. Prepare for and attend "status conference" before Magistrate Judge Edward Schlatter; after conference discussion with U.S. Attorney Michael Johnson re: DOL's plans to send me requested papers; Tc with Ms. Hull to report to her what happened today; draft report and sent to Ms. Hull and AUSWR Board. Review approximately 4,000 pages of documents received from DOL and organize same to determine what is likely missing from FOIA request. (11:10-1:30) Continue review of 4,000 pages of documents received from DOL to determine what is likely missing. Draft extensive report to Ms. Hull and AUSWR Board on findings from review of 4,000 pages produced by the DOL; review feedback email from Ms. Hull and AUSWR Board members; draft letter to U.S. Attorney and DOL attorney confirming retirees request a Vaughn index.

0.7

11.16.04

1.2

12.01.04

0.3

12.02.04

0.3

12.09.04

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12.24.04

1.5

01.05.05 01.17.05

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01.24.05

Review 31 pages fax from DOL and U.S. Attorney consisting of Vaughn index; draft report re: same to Ms. Hull and AUSWR Board members; review applicable case law on seeking award of attorney's fees; final report and send to Ms. Hull and AUSWR Board. (2:20-3:45 and 6:20-7:55 p.m) Prepare for and participate in "status conference" conducted by Magistrate Judge Edward Schlatter; draft report of proposed compromise given to U.S. Attorney to send to Ms. Hull and AUSWR Board members and explain to retiree clients difficulties due to Supreme Court's 5-4 decision in Buckhannon Board and Care Home, Inc., et al v. West Virginia Department of Health and Human Resources, et al. Tc (lengthy) with U.S. Attorney Michael Johnson and DOL's Jennifer Toth (Office of the Solicitor) re: prevailing party concept, plans to file a motion for summary judgement and issues concerning the Vaughn index. Several Tcs with Ms. Hull about direction to go and procedure.

2.7

02.08.05

1.5

03.01.05

0.5

0.3 3.3

04.05.05

Review and analyze, checking case law cited in DOL's April 4 filed Motion for Summary Judgment (Docket No. 13), and consider opposition, noting issues and legal argument to make (6:40-10:10 p.m.) Draft extensive update report to Ms. Hull and AUSWR Board members re: the Summary Judgment filing made by the DOL; conduct additional research and drafting of opposition brief and proposed motion requesting an in camera review. (10:25-1:05) Half day writing brief in opposition to DOL's motion for summary judgment; research FOIA related case law and judicial rulings on requests for in camera review to contest federal agency's contention of applicable FOIA exemptions (11:40-4:10).

04.06.05

2.5

4.0

04.19.05

Continue work on brief in opposition to DOL's motion for summary judgment; continue research on standard for getting a judicial in camera review under FOIA; draft update report to Ms. Hull on my progress. (12:10-3:45)

3.5

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04.20.05

Complete work on brief in opposition to DOL's motion for summary judgment and final paper and submit to Clerk of the Court; draft update report to Ms. Hull and AUSWR Board members re: DOL's emphatic argument that "public access to documents revealing the status of the investigation could trigger public interference with the investigation, and therefore hamper its progress." (12:05-1:30) Tc (voice message) from U.S. Attorney Michael Johnson and review of his filed motion requesting an extension of time; Tc with Ms. Hull re: same. Tc with U.S. Attorney Michael Johnson and DOL Jennifer Roth on additional reply brief to be field by DOL regarding alleged FOIA Exemption 7A and discussion re: end of `ongoing investigation;' Tc with Ms. Hull re: same and how we proceed from here. (12:25-1:10). Review and analyze the reply summary judgment brief papers received from DOL, review and analyze DOL's response to petition for in camera review; review of the thousands of pages produced by DOL, noting missing information; and draft short email report re: same to Ms. Hull. (1.55-3:35) Draft update report to Ms. Hull and AUSWR Board members with explanation of April 7, 2005 closure letter from EBSA arm of DOL to Qwest on $83,321.00 expenses improperly charged to Qwest Pension Plan. Review June 27, 2005 letter from DOL Regional Director Steven R. Eischen reporting that upon his "re-examination of documents that were previously [FOIA request] denied" there has been a change in position at the DOL and documents will be released; review and analyze approximately 1,400 pages sent to me; draft extensive report re: same to Ms. Hull and AUSWR Board members. (7:25-9:10 p.m.). Quick overview and study of 2nd motion for summary judgment filed on July 11 by DOL (with affidavits) [Docket No. 23]. Review and analyze 2nd motion for summary judgment filed on July 11 by DOL (with affidavits) [Docket No. 23] and begin drafting opposition brief and request for an in camera review. Review and analyze DOL's Vaughn index and determine likely missing paperwork.

1.5

05.06.05

0.2

05.17.05

0.7

5.20.05

1.5

06.03.05

0.8

07.07.05

1.5

07.14.05 07.25.05

0.6 0.8

07.27.05

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07.28.05

Drafting of brief in opposition to DOL's motion for summary judgment; continue research for supportive case law to get judicial in camera review under FOIA; draft update report to Ms. Hull on my progress. (10:15-3:35) Tc with Ms. Hull re: her Affidavit to file with our papers; revise and final her Affidavit; meeting with Ms. Hull to discuss FOIA response papers received from DOL and have her execute the Affidavit. Final drafting and submission of Plaintiff's Response [Docket 24] in Opposition re Docket 23 Defendant's July 11, 2005 Motion For Summary Judgment and Petition For In Camera Review with Rule 56(f) Affidavit by Plaintiff Hull. (7:10-9:20 and (2:05-4:55).

5.1

07.29.05

0.9

4.0

08.16.05

Review another motion for more time [Docket 25] filed by DOL for permission to file another legal brief; draft update report re: same to Ms. Hull and AUSWR Board members, with advisement that DOL reports "counsel was informed on the morning of August 15, 2005, that defendant has located a few additional documents which appear to be responsive to plaintiff's request." Draft extensive update report to AUSWR general members to be posted at website on status of the Hull FOIA case with explanation of further legal action to be carried out. Review and analyze latest 21 page legal brief filed by DOL on August 18, 2005 [Docket 27] and draft update report re: same to Ms. Hull and AUSWR Board members. (1:50-3:00) Review and analyze December 2 ruling [Docket 28]by Chief Judge Babcock granting request for in camera review; and begin draft explanation re: same to Ms. Hull, AUSWR Board and general membership to be posted at website; Tcs with Mimi Hull and Nelson Phelps re: outcome and ruling. (1:20-2:50). Revised and final report to send to Ms. Hull, AUSWR Board and general retiree membership; Tc with Ms. Hull re: same. Draft and revise Hull's Motion For Summary Judgment re: unfinished issues and to set date for in camera review of withheld documents. (1:40-3:35)

0.5

08.18.05

0.8

08.22.05

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12.02.05

1.5

12.07.05 12.20.05

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12.21.05

Draft Affidavit for Ms. Hull; Tc with Ms. Hull re: same; revise and final her Affidavit; meeting with Ms. Hull to explain and have her execute Affidavit. Final work on Hull's Motion For Summary Judgment and efiling of same [Docket 29] today; draft follow-up email note to Ms. Hull re: same; draft email note re: same to U.S. Attorney Michael Johnson. (7:30-9:15 a.m and 3:10-5:15 p.m.)

0.6

3.0

12.23.05

Review December 21, 2005 letter from U.S. Attorney's office to Chief Judge Babcock re: transmittal of documents for his in camera review; draft report re: same to Ms. Hull. Review December 27, 2005 letter from U.S. Attorney Michael Johnson together with 26 pages of additional papers now being released by the DOL; close analysis of information provided in the 26 pages; draft extensive report re: same to Ms. Hull and AUSWR Board members. Review December 27, 2005 letter from DOL Attorney Miriam McD Miller together with Qwest Pension Plan service agreements not being released; draft additional update report re: same to Ms. Hull and AUSWR Board members.

0.2

01.03.06

0.9

0.7

01.10.06

Review and analyze DOL's January 10, 2006 filed brief [Docket 30] in opposition to Hull's December 21, 2005 Motion for Summary Judgment arguing that the DOL has since complied making the motion moot; draft extensive update re: same to Ms. Hull and AUSWR Board members. (1:15-3:10) Review and analyze DOL's January 11 2006 filed [Docket 31] Motion for Summary Judgment with Respect to Certain Electronic Documents and Service Contracts; draft extensive update re: same to Ms. Hull and AUSWR Board members. (2:15-3:05) Review Chief Judge Babcock's Order entered today [Docket 32] on his in camera inspection and his order requiring the DOL to produce papers to retirees; draft update report on same to Ms. Hull and AUSWR Board members. Review papers DOL sent to me in compliance with Chief Judge Babcock's order to produce the same; draft extensive report on findings and significance of papers to Ms. Hull and AUSWR Board members; Tc with Ms. Hull re: same.

1.8

01.11.06

0.8

01.13.06

0.9

01.28.06

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02.03.06

Research case law, draft, revise and final Hull's Response in Opposition re [Docket 31] Defendant's January 11, 2006 Motion For Summary Judgment and Petition for a 2nd In Camera review, together with Affidavit for Ms. Hull; meeting with Ms. Hull to explain everything and have her execute the affidavit. (8:10-12:15 and 3:15-3:35) Review Minute Order [Docket 35] scheduling status/settlement conference before Magistrate Judge Coan on March 24, 2006; draft update report re: same to Ms. Hull and AUSWR Board members; Tc with Ms. Hull on our settlement position. Review Order by Chief Judge Babcock [Docket 36] on various matters; draft update report to Ms. Hull. Tc with U.S. Attorney Michael Johnson on DOL's plans to file another legal brief reporting compliance with order to produce records and final matters to be decided; draft update report re: same to Ms. Hull. Review latest filing by DOL [Docket 37] reporting a change in mind and plans to release six of nine additional responsive documents; draft update report re: same to Ms. Hull and AUSWR Board members. Review February 24, 2006 letter from Dol with packet of additional FOIA responsive papers; draft update report re: same to Ms. Hull and AUSWR Board members. Prepare for status/settlement conference and draft proposal for settlement to Magistrate Judge Coan and send same to U.S. Attorney Michael Johnson. Attend status/settlement conference before Magistrate Judge Coan; and after conference explanation discussion with Ms. Hull and AUSWR Executive Director Nelson Phelps. (1:203:00). Draft, revise and final Motion for Judicial Decree and Award of Attorney's Fees and Expenses, Declaration of Curtis L. Kennedy in support of same. (9:30-3:20). Total Billable Hours: Total Time Charges: 90.0 hours @ $300 (March 3, 2004 to March 31, 2006) $27,000.00

5.2

02.14.06

0.2

02.15.06 02.21.06

0.1 0.2

02.23.06

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02.27.06

0.4

03.20.06

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03.24.06

1.5

03.31.06

5.0

90

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13.

There was a total of $570.00 of costs and expenses during this litigation

consisting of: 1) $150.00 Denver Federal Court filing fee, plus making a full copy set of all documents produced by the DOL, approximately 6,000 pages @ $.07 per page, or $420.00. 14. About two weeks ago, I provided United States Attorney Michael Johnson with

the aforesaid statement reflecting my time prior to the Court's status/settlement conference on March 24, 2006. In addition, months ago, I gave Mr. Johnson a copy of my resume and listing of my extensive federal court experience and legal service provided to U S WEST and Qwest retirees and I do not believe there is any dispute in that regard. I declare under penalty of perjury that the foregoing is true and correct. Executed this 31st day of March, 2006 at Denver, Colorado.

A
CURTIS L. KENNEDY #12351 8405 E. Princeton Avenue Denver, Colorado 80237-1741 Telephone: (303) 770-0440 Fax: (303) 843-0360 [email protected] Attorney For Plaintiff Mary M. Hull

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