Health Law Daily Wrap Up, COVID-19—N.D. Tex.: PHMPT takes fee haircut after prevailing in Pfizer COVID-19 vaccine FOIA dispute with FDA, (Nov 10, 2026)

By Justin Marcus Smith, J.D.

PHMPT prevailed, but it failed to differentiate between document review necessary to make its case and document review it would have done without having sued to enforce FOIA production.

At the conclusion of Freedom of Information Act (FOIA) litigation about access to the FDA's Pfizer COVID-19 vaccine records, the federal district court in Fort Worth, Texas awarded the FDA’s $618,629.27 offer of judgment for attorney’s fees and costs to Public Health and Medical Professionals for Transparency (PHMPT). PHMPT, the prevailing party, did not attempt to separate two kinds of document review, and when an applicant has not exercised billing judgment, the remedy is a reduction of the award by some percentage. After applying various adjustments, the court endorsed the hourly rates for the same lead counsel in another case in the district. PHMPT did not justify an enhancement. FOIA did allow for fees on the fee dispute itself. FOIA treats attorney fees as part of litigation costs, so post- offer-of-judgment fees were within the rule. The court declined to make a written finding about individual agency personnel culpability for the withholding of the vaccine Emergency Use Authorization (EUA) file (Public Health and Medical Professionals for Transparency v. FDA, No. 4:21-cv-01058-P (N.D. Tex. Oct. 29, 2026)).

Background. In August 2021, PHMPT asked the FDA for all data and information for the Pfizer-BioNTech COVID-19 vaccine enumerated in 21 C.F.R. 601.51(e), excluding publicly available adverse-event reports. After a series of motions, the FDA reported it had processed roughly 1.2 million pages. FDA said production was complete, but the parties disputed disclosure of an emergency-use authorization (EUA) file. The court resolved that issue in favor of PHMPT (see FDA must produce Emergency Use Authorization file related to Pfizer COVID-19 vaccination (Dec. 9, 2024)). Accordingly, PHMPT ultimately secured more than 1.8 million pages of records, at an estimated cost to the FDA of $5.1 million, underlying FDA licensure of the vaccine.

Apart from the EUA file dispute, FDA did not dispute that PHMPT was entitled to the records. The bulk of the dispute was about the production schedule. The FDA said it did not have enough staff to process this and other FOIA requests about vaccines. It asked for court stays in this and other FOIA litigation (see FDA granted six month stay in responding to FOIA request related to COVID-19 vaccine reports (Jan. 18, 2024); see also FDA continues to reduce massive FOIA backlog, justifying more FOIA litigation stay extensions (Oct. 28, 2026)).

Most recently, the parties could not agree on fees. A settlement conference with a magistrate judge did not resolve the matter, and PHMPT moved for $854,673 for 1,487.4 hours billed; plus a $6,800 enhancement for local counsel; $5,900.72 in costs; and a written finding under a FOIA provision, 5 U.S.C. § 552(a)(4)(F), about attorneys’ fees and costs for individual personnel actions in improper withholding of agency records.

FOIA ordinarily permits reasonable attorneys’ fees and costs for the prevailing party in a FOIA dispute under 5 U.S.C. § 552(a)(4)(E)(i). The court multiplies hours expended by a reasonable hourly rate. The applicant must then document hours and show billing judgment. If either is lacking, the court may reduce the hours by a percentage. The goal is to do “rough justice,” based on objections actually made, not auditing perfection.

The PHMPT reply to the motion added $135,962.42 for the fee litigation itself. FDA conceded PHMPT was eligible for fees because it substantially prevailed, but it argued the court should deny the request outright because of the amount requested. In the alternative, FDA asked the court to award no more than $200,728.78 in fees and costs, plus no more than $46,128.60 in fees about fees.

Reduction remedy. The court held the proper remedy on the FDA objection to the fee request was reduction. Although PHMPT did real work, prevailed, and obtained relief through orders and compelled production, it made two systematic errors that pushed its fee request upward. First, PHMPT requested charges for work that FOIA does not shift. Second, the request priced the work at rates the law does not allow.

PHMPT claimed 1,487.4 hours, after writing off 45.9 hours. Its billing records reconciled, but FDA asked the court to cut the fee by another 43% across the board for overstaffing, vague entries, block billing, document review, and clerical work. Where FDA objected to a category of work, the court addressed the category using a percentage where the entries could not be easily sorted. Where FDA offered examples, and asked the court to infer a pervasive problem, the court addressed the entries FDA identified and declined to hunt for others.

The court discounted document review and indexing the most. FDA contended document review was not compensable in a FOIA case. Time a requester would have spent anyway, without a lawsuit, is the price of making such a request. However, as this case showed, review to evaluate the sufficiency of a release is part of litigation costs reasonably incurred. PHMPT bore the burden of proof, but where its records did not distinguish the time, the court could reduce the time without a precise rule.

The Biologics License Applications (BLA) review was essential to the litigation. By cataloguing FDA production, PHMPT identified what FDA omitted. PHMPT claimed most of its document review work was done to assess the adequacy of the FDA search, but the billing entries did not show this. About 45 of a certain document reviewer’s 519 hours were described as having to do with completeness and trial subjects, but nearly all the rest involved typical review and research. The problem, as the court saw it, was that the work cataloguing, itemizing, and indexing the documents into a spreadsheet did “two jobs at once.” It spanned FOIA litigation work as well as what each document was and what it contained. PHMPT needed the latter whether or not it sued under FOIA, and FOIA did not shift that cost to the government. Nor was data entry recoverable at attorney or paralegal rates no matter who performs it.

PHMPT did not attempt to separate the two kinds of document review, and when an applicant has not exercised billing judgment, the remedy is a reduction of the award by some percentage. However, because the catalogue had concrete litigation value, the court did not deny outright the fees for that work, despite discretion to do so. The court reduced the hours in the BLA document review phase by 40% from 647.7 to 388.6.

EUA indexing. The result was different for EUA indexing. Some hours had litigation value, but with the scope of the FDA obligation settled, hours dedicated to compliance accounted for a much smaller share of the work than the gap-checking in the BLA phase. The court reduced these hours by 60% from 167.5 to 67.0.

Scheduling proceedings. The court held for full award of the modification dispute and scheduling dispute. The FDA objected that seven attorneys and four support staff spent 334 hours on a December 2021 FOIA production scheduling conference, and another 171 hours on FDA’s motion to modify the schedule and Pfizer’s motion to intervene, but the court said this work was the heart of the case. FDA’s proposed production schedule would have taken decades. Pfizer move to intervene, but the FDA consented to keep Pfizer from altering or delaying the schedule the FDA was asking the court to modify. For this reason, the court did not reduce the time spent litigating against Pfizer.

Ad hoc disallowance. The court made other specific reductions, but not across-the-board percentage reductions, based on FDA objections. For example, time spent obtaining pro hac vice admissions was a cost of PHMPT’s choice of counsel.

Hourly rates. The FDA asked for a 35% across-the-board reduction of rates that, in some instances, exceeded $1,000 per hour, and $625 per hour for three junior attorneys, but PHMPT said these rates reflected hourly billing rates in the district. The court agreed that the billing rates should reflect those in the district at the time the work was performed, but it concluded they overstated the value of the work performed in two respects. First, they were 2024 rates, but PHMPT attorneys did most of the work earlier. Second, they were rates for complex litigation. The court endorsed the rates for the same lead counsel in another case in the district. That placed rates below $1,000 per hour. The court then reduced the merits lodestar by 15%, consisting of 10% for timing and a further 5% for complexity. The merits lodestar was therefore $528,504.71.

Requested enhancement. The court denied the PHMPT request for an enhancement. PMHPT requested an enhancement for results obtained, the EUA issue, and the need to deter government misconduct. However, the court found the results and difficulty of the issues were already reflected in the rates and hours allowed. Fee shifting itself served as a deterrent to the government opposing justifiable requests. The Johnson factors did not warrant further adjustment the modified lodestar did not already capture by considering complexity, timing, and degree of success. See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 714 (5th Cir. 1974).

Fees on fees. The court held FOIA supports reasonable fees for prevailing on fee disputes. Here, PHMPT sought $131,796.00 for 150.7 hours of fee litigation, and $58,657 for a paralegal, which occurred after the Fed. R. Civ. P. 68 offer. The work happened in 2026, and PHMPT exercised billing judgment in seeking less than half the hours its timekeepers recorded. The court accepted the requested rates, less the 5% reduction for the relative simplicity of the case, yielding $125,206.20. However, it reduced the fee litigation award to $75,423.84 to match 62% recovery on the merits lodestar PHMPT sought, having lost on a substantial share or hours and rates and on its request for an enhancement finding.

Costs. The FDA did not contest $5,900.72 in costs or the $6,800 billed by local counsel, all of which predated the R. 68 offer, and the court awarded both. However, it rejected the $4,116.42 in costs PHMPT sought in the reply because PHMPT did not carry its burden.

Offer of judgment. FOIA treats attorney fees as part of litigation costs, so post- offer-of-judgment fees are within the rule. The court awarded the FDA’s requested offer awards, which totaled $618,629.27. This consisted of $605,928.55 in attorney’s fees, $528,504.71 of which was for merits litigation, $77,423.84 for fee litigation; $6,800 in attorney’s fees for local counsel; and $5,990.72 in costs.

Written finding. The court declined to make the written finding PHMPT requested that the FDA withholding of the EUA file raised questions about whether agency personnel acted arbitrarily or capriciously under 5 U.S.C. § 552(a)(4)(F)(i). That subsection is directed at individual agency personnel, but nothing in the record identified an arbitrary or capricious individual decision, as distinct from the institutional position the court rejected. The court stood by its finding that the FDA “attempted to hide the file’s existence.” The court also found the FDA was diligent in complying with the court’s prior orders. The prior orders and this award were sufficient response.

The case is No. 4:21-cv-01058-P.

Judge: Pittman, M.

Attorneys: John R. Howie, Jr (Howie Law PC) for Public Health and Medical Professionals for Transparency. Heidy L. Gonzalez, US Department of Justice, for Food and Drug Administration.

Companies: Public Health and Medical Professionals for Transparency; Food and Drug Administration

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