Grand Canyon Trust v. Zinke ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GRAND CANYON TRUST,
Plaintiff,
Civil Action No. 17-849 (BAH)
v.
Chief Judge Beryl A. Howell
RYAN ZINKE, in his official capacity as
Secretary of the Interior, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, Grand Canyon Trust, seeks attorney’s fees and costs, pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), arising from the plaintiff’s
underlying FOIA requests to defendants, the Department of the Interior’s Office of the Secretary
(“DOI-OS”) and Bureau of Land Management (“BLM”), for documents regarding an order issued
by the Secretary of the Interior concerning the Federal Coal Program, see Compl. ¶ 2, ECF No.
1. Within thirteen months of submitting the FOIA requests and four months of the filing of the
complaint, the defendants disclosed, in whole or in part, 65,353 pages of records, which
disclosures fully discharged the defendants’ obligations under the FOIA. The parties reached a
settlement regarding document production issues but contested the issue of attorney’s fees. For
the reasons set forth below, the plaintiff’s Motion for Attorney Fees and Costs, Pl.’s Mot. Att’y’s
Fees (“Pl.’s Mot.”), ECF No. 17, is denied because the plaintiff is ineligible for a fee award.
I. BACKGROUND
The plaintiff Grand Canyon Trust is “a non-profit corporation with over 3,500 members”
and the mission “to protect and restore the lands, ecosystems, and environment of the Colorado
Plateau, including those federal lands for which the mineral estate is owned or managed by the
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federal government by and through the U.S. Department of the Interior and the Bureau of Land
Management pursuant to the Federal Coal Program.” Compl. ¶ 11. In August 2016, the plaintiff
submitted FOIA requests to the DOI-OS and BLM requesting “[a]ll documents and records
concerning and supporting the development of the January 15, 2016 Secretarial Order 3338” and
“[a]ll documents and records concerning the implementation of the January 15, 2016 Secretarial
Order 3338, specific to Section 5, Pause of the Issuance of New Federal Coal Leases for Thermal
Coal, and Section 6, Exclusions.” Pl.’s Mot., Ex. 1, Decl. of Eric Ames (“Ames Decl.”), Ex. C,
Correspondence between Grand Canyon Trust and DOI-OS (“DOI-OS Correspondence”) at 12,
ECF No. 17-1; see also Ames Decl., Ex. D, Correspondence between Grand Canyon Trust and
BLM (“BLM Correspondence”) at 46, ECF No. 17-1. 1 The two defendants’ responses are
detailed below, followed by a summary of the ensuing litigation.
A. The Plaintiff’s FOIA Request to the Office of the Secretary
The DOI-OS acknowledged receipt of the plaintiff’s August 2, 2016, request on August
16, 2016, and advised that the DOI-OS FOIA Office was “taking a 10-workday extension under
43 C.F.R. § 2.19” and would be “placing your request under the ‘Complex’ processing track.”
DOI-OS Correspondence at 17. Two months later, on October 18, 2016, the plaintiff sent a letter
to the DOI-OS “objecting to the Office of the Secretary’s failure to issue a determination within
the statutory deadlines in the FOIA” and requesting “an estimated completion date.” Compl.
¶ 33; see also DOI-OS Correspondence at 18–19. The DOI-OS responded on October 20, 2016,
explaining that the FOIA office was “continuing to search for records” and would “provide records
to you on a rolling basis as they become available.” DOI-OS Correspondence at 21. The DOI-
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The plaintiff submitted numerous declarations supporting its request for attorney’s fees. Although each
declaration and exhibit has been reviewed, only those exhibits necessary to provide context for resolution of the
instant motion are cited herein.
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OS estimated that the agency’s first response would be sent “on or about November 17, 2016.”
Id. Five days later, the DOI-OS again notified the plaintiff that the request was being processed.
Id. at 22. Although the DOI-OS did not provide any files by November 16, 2016, the agency
provided a “partial response” of 222 pages on December 2, 2016. Id. at 24; see also Compl. ¶ 36.
On January 17, 2017, the DOI-OS informed the plaintiff that its search had been completed
and all responsive records located, noting that “the records are exceptionally voluminous—about
8,000 additional pages.” DOI-OS Correspondence at 29. The DOI-OS further stated that although
the office had “many requests that require our work and attention, we continue to work diligently
on yours,” with a final response expected “in early February.” Id. On March 17, 2017, after not
hearing from the DOI-OS in February, the plaintiff inquired about the timing of “a final response
so that we can avoid taking additional steps to secure the public documents.” Id. The DOI-OS
promptly responded that the records were “currently with the Office of the Solicitor for comment,”
which is “the final, routine stage of review,” and that the Office of the Solicitor “has a multitude
of requests that require its attention” but was “working diligently to review the voluminous
records that are responsive to your request.” Id. In addition, the DOI-OS had located “several
thousand additional pages of information” that were still being evaluated. Id. In April 2017, the
DOI-OS informed the plaintiff that letters had been sent to several coal companies, notifying the
companies that certain information submitted by the companies to the DOI-OS was responsive to
the plaintiff’s FOIA request and inviting the companies to submit any objections to the release of
such information. Id. at 30–42.
Finally, on May 1, 2017, the plaintiff requested that the DOI-OS “identify the estimated
completion date and provide a disclosure plan for the release of documents and records no later
than the close of business on May 3, 2017.” Id. at 45. On May 3, 2017, a FOIA Officer from the
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DOI-OS spoke with the plaintiff and stated that “a large portion of the documents were being
reviewed by the Office of the Solicitor” and that “the request would take at least another two
months to finalize.” Defs.’ Answer ¶ 43, ECF No. 18. The plaintiff then filed this lawsuit on
May 9, 2017.
According to the defendants, “as of the date of Plaintiff’s Complaint, the Office of the
Secretary had completed its search for all responsive documents [and] had produced the first
partial response of 222 pages of records to Plaintiff.” Id. ¶ 3. A second partial release of 5,830
pages of records was transmitted to the plaintiff on May 25, 2017, two weeks after the complaint
was filed but without any action by the Court. Id. ¶ 38. On June 13, 2017, approximately one
month after the complaint was filed, the DOI-OS transmitted a final release of 314 pages,
resulting in a total 6,366 pages released to the plaintiff, still without any deadlines imposed by
the Court. See Joint Status Report dated June 28, 2017 (“First JSR”) at 1, ECF No. 12.
B. The Plaintiff’s FOIA Request to BLM
BLM responded to the plaintiff’s August 2, 2016, request two days later and informed the
plaintiff that the request “falls into the complex track,” which “is for requests that can be processed
in twenty-one to sixty workdays.” BLM Correspondence at 49. On October 10, 2016, however,
BLM allegedly informed the plaintiff “that it would require ‘at least a year to compile and
produce the responsive documents.’” Compl. ¶ 54. The plaintiff responded on October 17,
2016, requesting “an explanation for the estimated completion date.” Id. ¶ 55; see also BLM
Correspondence at 50–52. Ten days later, BLM responded that work was underway to “get[ ]
you the responsive records as expeditiously as we can,” with “rolling releases” shortly, and that
the plaintiff would be contacted “no later than Tuesday, November 1 to provide you with either a
timeline or records release schedule.” BLM Correspondence at 53. On November 2, 2016,
BLM informed the plaintiff that “the easiest way to provide you the records would be on a
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monthly basis,” id. at 54, but no records were produced in November 2016, Compl. ¶ 58. The
plaintiff inquired about the promised records on December 1, 2016, and shortly thereafter, BLM
released twelve pages of records. See BLM Correspondence at 54, 56–59; Compl. ¶ 61.
BLM continued reviewing records through January and February 2017. On January 3,
2017, BLM informed the plaintiff that it was “working through a substantial amount of your
records” and “hop[ed] to have your records to you very soon.” BLM Correspondence at 60. On
February 28, 2017, acknowledging that the plaintiff was “looking for hard dates,” BLM informed
the plaintiff that DOI-OS had to finish reviewing “approximately 1,200 pages” of documents.
Id. at 61. The FOIA Officer stated that, “[i]f everything goes accordingly with the second set of
documents, you should have them by the end of March” and that “[g]etting the records to you
has become one of my top priorities.” Id. On May 1, 2017, after not receiving any additional
records, the plaintiff sent a letter to BLM requesting “a revised estimated completion date” and
“a disclosure plan for the release of the remaining documents and records no later than the close
of business on May 3, 2017.” Id. at 64. The plaintiff filed this lawsuit on May 9, 2017. After
the complaint was filed, but without any court order directing disclosure, BLM released 569
pages to the plaintiff on June 30, 2017; 1,294 pages on July 28, 2017; and 57,112 pages on
August 31, 2017, for a total of 58,987 pages. Defs.’ Opp’n at 5.
C. Litigation History
The plaintiff filed a complaint on May 9, 2017, seeking declaratory and injunctive relief
under the FOIA. See generally Compl. On June 28, 2017, the parties filed their first Joint Status
Report, in which the DOI-OS indicated that its response to the FOIA request was complete, with
three separate releases of records: “222 pages of records on December 2, 2016; 5,830 pages of
records on May 25, 2017, and 314 pages on June 13, 2017.” First JSR at 1. BLM’s search was
“still underway,” but the agency had “produced twelve responsive pages in December 2016” and
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had agreed, without the Court’s involvement, “to two releases, one on June 30, 2017 and the
final production on August 31, 2017.” Id. at 1–2. These disclosures were timely made, with 569
pages released on June 30, 2017, and 57,112 pages released on August 31, 2017, as well as 1,294
pages released on July 28, 2017. Defs.’ Opp’n at 5. Three months later, the parties informed the
Court that “[n]o document production issues remain.” Joint Status Report dated Sept. 29, 2017
(“Second JSR”) at 1, ECF No. 14. The plaintiff subsequently “indicated that the production
[wa]s satisfactory,” and the parties ultimately settled all claims other than the plaintiff’s claim for
attorney fees and other litigation costs, which motion is now pending before the Court. See Joint
Status Report dated Oct. 27, 2017 (“Third JSR”) at 1, ECF No. 15; Joint Status Report dated
Dec. 8, 2017 (“Fourth JSR”) at 1, ECF No. 16. The plaintiff seeks $68,047.82 in attorney’s fees
and litigation costs. See Pl.’s Reply Supp. Mot. Att’y’s Fees (“Pl.’s Reply”) at 15, ECF No. 19.
II. LEGAL STANDARD
The FOIA authorizes the “assess[ment] against the United States [of] reasonable attorney
fees and other litigation costs reasonably incurred in any case . . . in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). This provision “‘was not enacted to provide
a reward for any litigant who successfully forces the government to disclose information it
wished to withhold,’ but instead ‘had a more limited purpose—to remove the incentive for
administrative resistance to disclosure requests based not on the merits of exemption claims, but
on the knowledge that many FOIA plaintiffs do not have the financial resources or economic
incentives to pursue their requests through expensive litigation.’” Davy v. CIA (“Davy II”), 550
F.3d 1155, 1158 (D.C. Cir. 2008) (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d
704, 711 (D.C. Cir. 1977)).
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The D.C. Circuit recognizes that “[t]he statute contains no express limitation on who
counts as an eligible ‘complainant’ or whose work is compensable by payment of ‘attorney
fees,’” Nat’l Sec. Counselors v. CIA, 811 F.3d 22, 28 (D.C. Cir. 2016) (citation omitted), but this
statutory provision has been interpreted to divide “the attorney-fee inquiry into two prongs,
which our case law has long described as fee ‘eligibility’ and fee ‘entitlement,’” Brayton v.
Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Judicial
Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 368–69 (D.C. Cir. 2006)). Thus, the
plaintiff must demonstrate both eligibility and entitlement to the award. See McKinley v. Fed.
Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014); Weisberg v. U.S. Dep’t of Justice, 745
F.2d 1476, 1495 (D.C. Cir. 1984) (“[E]ligibility alone is not enough. . . . [T]he complainant must
[also] show that he or she is ‘entitled’ to an award.”) (citation omitted). Upon establishing both
eligibility and entitlement, the plaintiff must then show the reasonableness of the fee request.
See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).
To satisfy the eligibility requirement, the plaintiff must show that he or she “substantially
prevailed” in the underlying FOIA litigation by gaining relief from either: “(I) a judicial order, or
an enforceable written agreement or consent decree; or (II) 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)(ii).
Under the first prong, the claimant substantially prevails when “‘the order changed the legal
relationship between [the parties],’ and [ ] the plaintiff ‘was awarded some relief on the merits of
his claim.’” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367 (D.C. Cir. 2008) (internal quotation
marks omitted) (quoting Davy v. CIA (“Davy I”), 456 F.3d 162, 165 (D.C. Cir. 2006)). Under
the second prong, or “catalyst theory,” attorney’s fees may be awarded solely due to a change in
an agency’s position, for example, when the plaintiff’s lawsuit “substantially caused the
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government to release the requested documents before final judgment.” Brayton, 641 F.3d at524–25; Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 232
(D.D.C. 2011) (“The key question under this ‘catalyst theory’ is whether ‘the institution and
prosecution of the litigation cause[d] the agency to release the documents obtained during the
pendency of the litigation.’” (alteration in original) (quoting Church of Scientology of Cal. v.
Harris, 653 F.2d 584, 587 (D.C. Cir. 1981))). 2
If the plaintiff has substantially prevailed, the court proceeds to the entitlement prong.
The D.C. Circuit “has long applied a multi-factor standard for evaluating whether a plaintiff who
is eligible for attorneys’ fees is also entitled to such fees.” McKinley, 739 F.3d at 711. “Four
non-exclusive factors typically govern the entitlement inquiry: ‘(1) the public benefit derived
from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in
the records; and (4) the reasonableness of the agency’s withholding’ of the requested documents.”
Id. (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)); see
also Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013). 3 While “[n]o one factor is dispositive,”
“[i]f the Government’s position is correct as a matter of law, that will be dispositive.” Davy II,
550 F.3d at 1159, 1162. “The sifting of those criteria over the facts of a case is a matter of
district court discretion.” Tax Analysts, 965 F.2d at 1094.
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The catalyst theory was utilized by this Circuit until 2001, when the Supreme Court held that “the ‘catalyst
theory’ is not a permissible basis for the award of attorney’s fees.” Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 610 (2001). Congress responded by resurrecting the catalyst theory
for FOIA cases in the Open Government Act of 2007. See Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C.
Cir. 2010). “The purpose and effect of this law, which remains in effect today, was to change the ‘eligibility’ prong
back to its pre-Buckhannon form.” Brayton, 641 F.3d at 525. As a result, “plaintiffs can now qualify as
‘substantially prevail[ing],’ and thus become eligible for attorney fees, without winning court-ordered relief on the
merits of their FOIA claims.” Id. (alteration in original).
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The D.C. Circuit’s four-factor test for assessing a FOIA plaintiff’s entitlement to attorney’s fees has been
criticized for “hav[ing] no basis in the statutory text” and being “arbitrary and inconsistent with the structure and
purposes of FOIA.” Morley, 719 F.3d at 690–91 (Kavanaugh, J., concurring) (recommending that “[w]e should
ditch the four-factor standard”).
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If the plaintiff has established eligibility and entitlement, the plaintiff must then establish
the reasonableness of the calculation in its fee request. See Covington, 57 F.3d at 1107. The
reasonableness determination involves three parts: “(1) determination of the number of hours
reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or ‘lodestar’;
and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857
F.2d 1516, 1517 (D.C. Cir. 1988) (citation omitted). The plaintiff must submit evidence regarding
“the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and the prevailing
market rates in the relevant community.” Covington, 57 F.3d at 1107. The reasonable hourly
rate is most commonly determined by the Laffey Matrix, which “sets out a general guideline for
awarding attorneys’ fees based on experience . . . adjusted for inflation.” Salazar v. District of
Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015). Provided that the plaintiff has submitted the required
information, the presumption is that the number of hours billed and the hourly rates are reasonable.
Jackson v. District of Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). The burden then shifts
to the defendant to “provide specific contrary evidence tending to show that a lower rate would
be appropriate.” Covington, 57 F.3d at 1110 (internal quotation marks omitted).
III. DISCUSSION
The plaintiff contends that it substantially prevailed in this litigation and is eligible for
attorney’s fees, based on the catalyst theory, because the defendants “fail[ed] to comply with
FOIA deadlines before the Complaint was filed” and because “[i]t was not until after the Trust
filed suit” on May 9, 2017, “that the agencies complied with their FOIA duties and a series of
deadlines were negotiated for releasing the requested documents.” Pl.’s Mot. at 3–4; Pl.’s Reply
Supp. Mot. Att’y’s Fees (“Pl.’s Reply”) at 1–7, ECF No. 19. The defendants counter that the
plaintiff “is not eligible for an award of attorney fees because it has not substantially prevailed,”
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given that the “the combined backlog of over 180 FOIA requests served as an unavoidable delay
in the agencies’ ability to respond in the expedient time frame requested by the Plaintiff.” Defs.’
Opp’n at 6, 8 (capitalization omitted). For the reasons explained below, the defendants are correct.
To meet the substantially prevailed prong of the eligibility requirement, the plaintiff must
demonstrate that “the institution and prosecution of the litigation cause[d] the agenc[ies] to
release the documents obtained during the pendency of the litigation.” Church of Scientology,
653 F.2d at 587. The law in this Circuit is well established that causation requires more than
correlation. Thus, in the context of FOIA attorney’s fees, “the mere filing of the complaint and
the subsequent release of the documents is insufficient to establish causation.” Weisberg, 745
F.2d at 1496; see also Conservation Force v. Jewell, 160 F. Supp. 3d 194, 205 (D.D.C. 2016).
Although timing is a relevant factor, something “more than post hoc, ergo propter hoc must be
shown.” Pub. Law Educ. Inst. v. U.S. Dep’t of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984);
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (“CREW”), 83 F. Supp. 3d
297, 303 (D.D.C. 2015) (“Although the time between the plaintiff’s initiation of this lawsuit and
the agency’s release of responsive records is indeed a salient factor in the Court’s analysis, it is
by no means dispositive evidence of causation.” (citing Pub. Law Educ. Inst., 744 F.2d at 184
n.5)). Rather, “[t]he sole question” in such cases “is whether the plaintiff’s lawsuit was necessary
for its attainment of the requested documents.” CREW, 83 F. Supp. 3d at 307 (emphasis in
original) (citing Weisberg, 745 F.2d at 1496).
The plaintiff has not met this standard. Rather, the evidence submitted by the plaintiff in
support of its fee motion makes clear that both the DOI-OS and BLM had begun processing the
plaintiff’s request well before this lawsuit was initiated and that both agencies had even made
partial releases to the plaintiff before the complaint was filed. See, e.g., DOI-OS Correspondence
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at 24–28 (transmitting 222 pages to the plaintiff 5 months before complaint was filed); BLM
Correspondence at 53, 56–59 (informing the plaintiff that the agency was “begin[ning] the process
to start sending you rolling releases” and then transmitting 12 pages as a partial release 5 months
before complaint was filed). Both agencies completed their disclosures within four months of
the start of litigation, and these disclosures were satisfactory to the plaintiff. See Second JSR at
1. Based on this timeline and the record in this case, the plaintiff has failed to show that this suit
“cause[d] the agenc[ies] to release the documents.” Church of Scientology, 653 F.2d at 587.
In addition, the D.C. Circuit repeatedly has acknowledged that if “an unavoidable delay
accompanied by due diligence in the administrative processes was the actual reason for the
agency’s failure to respond to a request,” rather than “the threat of an adverse court order,” then
“it cannot be said that the complainant substantially prevailed in [its] suit.” Id. at 588 (internal
quotation marks omitted). To that end, in order to “prevent plaintiffs from being the beneficiaries
of purely extrinsic factors,” courts must “look at the circumstances surrounding disclosure.
When disclosure is triggered by events unrelated to the pending lawsuit, the causal nexus is
missing and the plaintiff cannot be deemed a ‘prevailing party.’” CREW, 83 F. Supp. 3d at 303
(citing Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Justice, 750 F.2d 117, 119–21
(D.C. Cir. 1984)). Indeed, “Congress did not enact the fee-shifting provision of FOIA to punish
agencies for their slowness in processing FOIA requests, but to reward plaintiffs whose filing of
lawsuits alters the government’s slowness and brings about disclosure.” Terris, Pravlik &
Millian, LLP v. Ctrs. for Medicare & Medicaid Servs., 794 F. Supp. 2d 29, 38 (D.D.C. 2011).
In this case, the defendants have explained that, “[a]t the time Plaintiff submitted its
requests,” both the DOI-OS and BLM had a substantial backlogs in processing FOIA requests.
Defs.’ Opp’n at 2. Specifically, as of September 2016, shortly after the plaintiff’s FOIA request
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was submitted, the DOI-OS and BLM had backlogs of 33 and 153 FOIA requests, respectively,
with the plaintiff’s requests “immediately placed in the queue to be worked on in the order they
were received.” Id.; see also id. at 8 (“[T]he combined backlog of over 180 FOIA requests
served as an unavoidable delay in the agencies’ ability to respond in the expedient time frame
requested by the Plaintiff.”); Defs.’ Answer ¶ 54. The plaintiff’s exhibits in support of its fee
motion reflect the agencies’ preexisting backlog and show that, despite these backlogs, the
agencies’ FOIA offices diligently worked to satisfy the plaintiff’s requests. See, e.g., DOI-OS
Correspondence at 22 (noting that “processing various drafts of the same record requires a line-
by-line analysis, which can be time consuming,” and that “to provide a timely response, we will
work to first respond with all non-draft records that we have located”); id. at 23 (providing a
partial response four months after request was filed and five months before complaint was filed);
id. at 29 (noting that 8,000 additional pages had been located and that although the DOI-OS “ha[s]
many requests that require our work and attention, we continue to work diligently on yours”);
BLM Correspondence at 54 (noting that a second set of documents “is a substantially larger release
of documents, so it make take a couple days longer past” the previously stated deadline); id. at 55
(updating the plaintiff that BLM was “working through a substantial amount of your records and
[was] almost done reviewing them”); id. at 56 (providing an interim release four months after the
plaintiff’s request was filed and five months before complaint was filed). Thus, the plaintiff has
not established that the threat of an adverse court order prompted the disclosures ultimately made
in this case. Instead, the record shows that “an unavoidable delay accompanied by due diligence
in the administrative process was the actual reason for the agency[ies’] failure to respond to [the]
request.” Church of Scientology, 653 F.2d at 588 (internal quotation marks omitted).
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The plaintiff points to the defendants’ failure to produce “a single declaration or piece of
documentary evidence to support this narrative” of agency backlog, Pl.’s Reply at 2, and argues
that “when the government seeks to rebut evidence presented in a fee motion, ‘it must provide—
just as plaintiff must provide specific evidence in his application for attorney’s fees—equally
specific countervailing evidence,’” id. (internal quotation marks omitted) (quoting Piper v. U.S.
Dep’t of Justice, 339 F. Supp. 2d 13, 24 (D.D.C. 2004)). This argument takes Piper out of
context. While the Piper court concluded that the government must provide “equally specific
countervailing evidence,” Piper, 339 F. Supp. 2d at 24 (internal quotation marks omitted), this
was not for the purpose of showing that the plaintiff is ineligible for fees. Rather, “[w]hen the
Government seeks to rebut a rate or calculation or hours billed, it must provide—just as
plaintiff must provide specific evidence in his application for attorney’s fees—‘equally specific
countervailing evidence.’” Id. (quoting Nat’l Ass’n of Concerned Veterans v. Sec. of Def., 675
F.2d 1319, 1326 (D.C. Cir. 1982)). In this case, neither rates nor calculations nor hours billed is
at issue, given that the plaintiff has failed to establish eligibility for attorney’s fees. Accordingly,
the defendants’ lack of supporting declarations does not warrant an award of fees for the plaintiff.
The other cases relied on by the plaintiff do not suggest a different result. The plaintiff
contends that, “[i]n a similar scenario, a district court found a plaintiff organization was eligible
for fees when the agency ‘failed to inform Plaintiffs of an estimated completion date.’” Pl.’s
Reply at 5 (quoting Sierra Club v. EPA, 75 F. Supp. 3d 1125, 1146 (N.D. Cal. 2014)). In that case,
however, the plaintiff was eligible for attorney’s fees because the court had approved a stipulation
between the parties regarding a briefing schedule, requiring the agency to release records by a
specified date and thereby “chang[ing] the legal relationship between the parties.” Sierra Club,
75 F. Supp. 3d at 1141. Similarly, the plaintiff argues that “an agency’s ‘sudden acceleration’ in
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processing a FOIA request may lead to the conclusion that the lawsuit substantially caused the
agency’s compliance with FOIA.” Pl.’s Mot. at 2 (quoting Elec. Privacy Info. Ctr. v. U.S. Dep’t
of Homeland Sec. (“EPIC”), 218 F. Supp. 3d 27, 41 (D.D.C. 2016)). In EPIC, as in Sierra Club,
the Court held that the plaintiff had “substantially prevailed in this litigation as a result of the
issuance of [a] Scheduling Order” requiring that the government “produce documents by a date
certain,” thereby “chang[ing] the legal relationship between the parties.” EPIC, 218 F. Supp. 3d
at 40. No such scheduling orders have been entered in this case—in fact, the only scheduling
order issued in this case governed briefing for the pending fee motion. See Minute Order (Dec.
8, 2017). Based on the evidence and the record in this case, the plaintiff has failed to establish
that “the institution and prosecution of litigation cause[d] the agenc[ies] to release the documents
obtained during the pendency of the litigation.” Church of Scientology, 653 F.2d at 587.
The plaintiff’s attempt to distinguish the cases relied on by the defendants fares no better.
The plaintiff contends that Calypso Cargo v. U.S. Coast Guard, 850 F. Supp. 2d 1 (D.D.C. 2011),
is distinguishable because the defendant in that case “provided multiple declarations to support
its argument that the suit did not accelerate its document production.” Pl.’s Reply at 6. Although
the defendants produced no declarations in this case, the evidence submitted by the plaintiff
points to the same conclusion. As in Calypso Cargo, the record here makes clear that “multiple
divisions within the [defendant agencies] had already begun coordinating and processing the
plaintiff[’s] request before plaintiff[ ] filed [its] lawsuit.” Calypso Cargo, 850 F. Supp. 2d at 5.
The plaintiff also argues that Church of Scientology is distinguishable because in that case “the
Court of Appeals actually reversed a denial of fees by the district court where documents were
provided after suit was filed, even though the agency had, as here, begun the processing the [sic]
request before suit was filed.” Pl.’s Reply at 6 (citing Church of Scientology, 653 F.2d at 588–
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89). In that case, however, the agency had informed the plaintiff that no responsive records
existed and did not change its position until responding to interrogatories and appearing for
depositions during the litigation. Church of Scientology, 653 F.2d at 585–86. The “critical
point” for the D.C. Circuit was that “but for the institution and prosecution of this suit, the
documents ultimately obtained by [the plaintiff] would never have been identified and therefore
would never have been released.” Id. at 588. By contrast, actual production of records in this
case began five months before the complaint was filed. See DOI-OS Correspondence at 24–28;
BLM Correspondence at 56.
The plaintiff also attempts to distinguish Short v. U.S. Army Corps of Engineers, 613 F.
Supp. 2d 103 (D.D.C. 2009), and Harvey v. Lynch, 178 F. Supp. 3d 5 (D.D.C. 2016), on the
ground that the requests in those cases “had already been completed by the time [the plaintiff]
filed suit,” Pl.’s Reply at 7 (quoting Harvey, 178 F. Supp. 3d at 8). In Short, a preliminary
determination had been made to grant the plaintiff’s request, but the request was misplaced and
the agency was reminded of the request only after the lawsuit was filed, at which point the
agency conducted its search and released the records at issue. Short, 613 F. Supp. 3d at 105.
Even so, the court concluded that the complaint “did not cause the [agency] to change its position”
given the earlier determination. Id. at 107 (internal quotation marks omitted). Likewise, in
Harvey, the agency had not produced any records by the time the complaint was filed, but one
week after filing, the agency sent the plaintiff a satisfactory release. Harvey, 178 F. Supp. 3d at
6. The court concluded that “the bulk of the work to process Harvey’s FOIA request had already
been completed by the time Harvey filed suit” and that, “at most,” the complaint “prompted [the
defendant] . . . to wrap up work that had already been taken almost to completion.” Id. at 7–8.
Similar conclusions can be reached in this case: both agencies made partial releases five months
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prior to the complaint, and by the date of the complaint, the DOI-OS had completed its search.
Answer ¶ 3; see also DOI-OS Correspondence at 24–28; BLM Correspondence at 56. The
plaintiff’s complaint thus did not cause the agencies to change their positions regarding the
plaintiff’s requests.
Finally, the plaintiff seeks to distinguish Mobley v. Department of Homeland Security,
908 F. Supp. 2d 42 (D.D.C. 2012), because in that case “‘the plaintiffs received no documents’
after filing suit.” Pl.’s Reply at 7 (quoting Mobley, 178 F. Supp. 3d at 8). In Mobley, the
government “voluntarily processed the plaintiffs’ request only three weeks after the complaint
was filed,” and the plaintiffs then voluntarily dismissed their complaint. Mobley, 908 F. Supp.
2d at 48. Although the plaintiffs’ fee motion was untimely, the court noted that “voluntary
compliance very early in a FOIA litigation, like the government’s compliance here, should be
encouraged rather than punished” by the imposition of fees. Id. at 49. Indeed, the Senate Judiciary
Committee Report accompanying the FOIA noted that “[i]f the government is forced to pay
attorney’s fees even if it settles a lawsuit without court action . . . then we may well find that the
government is less inclined to settle FOIA lawsuits.” Id. (alterations in original) (quoting S. REP.
NO. 110-59, at 14). The parties in this case likewise were able to resolve all document production
issues without the Court’s involvement, and “[a]lthough it would have been ideal for the defendant
to process the plaintiff[’s] request from the very beginning, the government’s compliance with the
plaintiff[’s] request so early in the litigation is not the sort of agency behavior that Congress
intended to prevent by awarding attorney’s fees.” Id. at 48.
The plaintiff has failed to establish eligibility for attorney’s fees and costs. Accordingly,
the plaintiff’s entitlement to attorney’s fees and the reasonableness of the plaintiff’s request need
not be considered, and the plaintiff’s motion is denied. See Pub. Law Educ. Inst., 744 F.2d at
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184 (“Since [the plaintiff] is not eligible for an award of attorney’s fees and litigation expenses,
we have no occasion to comment on the factors that would bear on [the plaintiff’s] entitlement.”).
IV. CONCLUSION
For the foregoing reasons, the plaintiff is not eligible for attorney’s fees under
§ 552(a)(4)(E) because the plaintiff has not “substantially prevailed” in this litigation.
Accordingly, the plaintiff’s Motion for Attorney’s Fees and Costs, ECF No. 17, is denied. An
appropriate Order accompanies this Memorandum Opinion.
Date: May 24, 2018
__________________________
BERYL A. HOWELL
Chief Judge
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