Conservation Force v. Jewell , 160 F. Supp. 3d 194 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CONSERVATION FORCE, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-cv-1665 (KBJ)
)
SALLY JEWELL, in her official capacity )
as Secretary of the U.S. Department of the )
Interior, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
A threshold requirement for a plaintiff who seeks to recover attorneys’ fees for
claims brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq.,
is to demonstrate that he has “substantially prevailed” in the underlying litigation in a
manner that makes him eligible for fees. 5 U.S.C. § 552(a)(4)(E). Before this Court at
present is an attorneys’ fees motion that Plaintiff Conservation Force, a nonprofit
wildlife-conservation foundation, has brought based on a FOIA lawsuit that the
organization filed in 2012 against the Department of the Interior, the United States Fish
and Wildlife Service (“FWS”), and high-level executive officers of those agencies in
their official capacities (collectively “Defendants”). As explained fully below, this
Court has concluded that Conservation Force has not made the required eligibility
showing in support of its motion for attorneys’ fees, despite the fact that Defendants
provided Conservation Force many of the desired documents soon after the suit’s
initiation, and Defendants also revamped the descriptions of redacted information in the
agency’s Vaughn Index during the course of the litigation pursuant to an order of the
Court. 1 Consequently, and as set forth in the separate order that accompanies this
Memorandum Opinion, Conservation Force’s motion for attorneys’ fees and costs will
be DENIED.
I. BACKGROUND
A. The Wood Bison Cases
This Court sketched out much of the relevant background at length in the
Memorandum Opinion that it issued in this case on September 2, 2014, see
Conservation Force v. Jewell, 66 F. Supp. 3d 46, 52–54 (D.D.C. 2014) (“Wood Bison
III”); therefore, only broad strokes are necessary here.
Canada permits limited hunting of the Canadian wood bison—a species that has
been of concern to environmentalists for some time, see id. at 53—through the sale of
“wood bison hunts[,]” Conservation Force v. Salazar, 715 F. Supp. 2d 99, 101 (D.D.C.
2010) (“Wood Bison I”). In the early 2000s, four American hunters purchased hunts
and successfully hunted wood bison, see id., and with the assistance of Conservation
Force, each of these individuals submitted applications to the FWS for permission to
import their wood bison trophies into the United States. See id. Conservation Force
and the hunters sued the FWS in this District in 2009, after what they considered to be
an unreasonably delayed response; their complaint alleged that the FWS’s failure to
respond to their important request violated several statutory and constitutional
provisions. See id. at 102–08. The FWS then denied the import applications while the
1
A “Vaughn index is a document that correlates all withholdings with specific FOIA exemptions and
the agency’s specific nondisclosure justifications.” Pub. Citizen v. U.S. Dep’t of Health and Human
Servs., 66 F. Supp. 3d 196, 200 n.2 (D.D.C. 2014) (citing Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.
Cir. 1973)).
2
lawsuit was pending, and the court dismissed the plaintiffs’ action as moot. See id. at
105–07.
Undaunted, Conservation Force sued the FWS again, this time alleging that the
agency’s denial of the request to import the hunting trophies violated various statutory
provisions. See Conservation Force v. Salazar, 851 F. Supp. 2d 39, 42 (D.D.C. 2012)
(“Wood Bison II”). This suit asserted, in essence, that the denial was based on
impermissible policy reasons (as opposed to good science), see, e.g., id. at 45–46, and
the court ultimately agreed with Conservation Force’s argument that the administrative
record could not support the agency’s decision, remanding the applications to FWS for
reconsideration, see id. at 52–54.
The FOIA lawsuit that is the basis for the instant motion for attorneys’ fees arose
out of Conservation Force’s interest in discovering the true rationale for the initial
import denials. See Wood Bison III, 66 F. Supp. 3d at 54. Apparently, as part of the
administrative record in Wood Bison II, Conservation Force had received documents
that appeared to contain the reason that a particular government attorney had
recommended that the permits be denied, but the “specific rationale for recommending
denial of the permits” had been redacted. Id. at 53. Consequently, on April 16, 2012,
Conservation Force submitted a FOIA request to the FWS, requesting “any and all
documents, correspondence, and notes of meetings between the [FWS] and the Office of
the Solicitor regarding import permits for Canadian wood bison trophies since 2000
including any documents excluded as purportedly privileged from the administrative
record in Wood Bison II.” Id. (internal quotation marks and citations omitted).
The FWS acknowledged receipt of the FOIA request on April 17, 2012. (See
3
Pl.’s Mem. in Supp. of Pl.’s Mot. for Atty.’s Fees and Costs (“Pl.’s Mem.”), ECF No.
37-1, at 3.) 2 The agency next communicated with Conservation Force on August 9,
2012; it sent a letter to explain that, because the “request consisted primarily of
documents that were previously identified as privileged” during Wood Bison II, the
FWS had forwarded the document request to the FOIA Officer for the Department of
the Interior Solicitor’s Office for his review. (Second Decl. of Timothy Van Norman
(“Second Van Norman Decl.”), ECF No. 12-1, ¶¶ 2–3; see also Pl.’s Mem. at 3–4.)
When Conservation Force had still received no response by October 4, 2012—and had
apparently unsuccessfully tried to contact certain individuals identified as contact
persons in the August 9 letter (see Pl.’s Mem. at 4)—it filed a lawsuit in this Court,
alleging that the FWS had failed to comply with the FOIA’s requirement that document-
production determinations be made expeditiously, see 5 U.S.C. § 552(a)(6). (See
Compl., ECF No. 1, ¶¶ 42–46.) Notably, with respect to the relief sought, Conservation
Force’s complaint specifically requested that the Court (1) declare that the government
violated the FOIA when it failed to respond to the April 2012 request “in accordance
with the statutory deadline”; (2) declare that the government was continuing to violate
the FOIA for the same reasons; (3) issue an injunction ordering the government to
provide all records described in the April 2012 FOIA request that could not lawfully be
withheld; and (4) grant Plaintiff costs of litigation. (See Compl. at 12–13.)
Subsequently, in November of 2012, the FWS and the Department of the Interior
jointly determined that the August referral to the Department of the Interior had been a
mistake and that the FWS should resume processing the documents. (See Second Van
2
Page-number citations to the documents the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.
4
Norman Decl. ¶ 6.) Around the same time, Defendants asked the Court for a ten-week
stay of the proceedings to permit the agency to search for and review responsive
documents. (See Defs.’ Mot. to Stay, ECF No. 9, at 1–2.) Conservation Force opposed
the stay motion on the grounds that Defendants had failed to establish the “exceptional
circumstances” the FOIA requires to justify an administrative stay, see 5 U.S.C.
§ 552(a)(6)(C). (See generally Pl.’s Opp’n to Defs.’ Mot. to Stay, ECF No. 10.) But
then, on December 12, 2012, and before the Court ruled on the stay request, Defendants
released 1,026 pages of unredacted responsive documents and simultaneously reiterated
that it expected to complete its review—including possible redactions or
withholdings—of all remaining responsive material by January 31, 2013. (See Defs.’
Reply to Pl.’s Opp’n to Stay, ECF No. 12, at 1.)
On January 3, 2013, this Court addressed the pending stay request by ordering
Defendants to “show cause in writing why the requested extension of time should be
granted” (see Order (“Show-Cause Order”), ECF No. 13, at 1), and gave Defendants
until January 10 to better explain why the Court should grant an extension to process
the FOIA request. (See id. at 4.) Shortly thereafter, on January 9, 2013, the FWS
provided its final release of documents—577 pages of partially redacted responsive
records—and withdrew its stay request as moot. (See generally Defs.’ Resp. to Show-
Cause Order, ECF No. 14.)
The parties then proceeded to clash on the redaction front. Defendants filed a
motion for summary judgment, a supplemental declaration from an FWS official, and a
Vaughn Index as proof that the FOIA’s enumerated exceptions supported the
withholding of certain information. See Wood Bison III, 66 F. Supp. 3d at 54.
5
Predictably, Conservation Force disagreed, offering its own motion for summary
judgment that asserted that Defendants’ materials “f[e]ll woefully short of the level of
specificity required to justify withholdings under [the FOIA exemptions claimed ].” See
id. at 54, 58.
This Court resolved the redaction dispute, in part, on September 2, 2014, by
concluding that Defendants were entitled to summary judgment on the subset of
redactions that were based on the FOIA’s attorney-client-privilege and personal-
information exemptions; the Court, however, denied without prejudice both parties’
cross-motions for summary judgment with respect to the withholdings that were based
on the work-product and deliberative-process privileges. See id. at 62, 66–68. The
Court determined that Defendants had provided insufficient evidence to permit a ruling
as to whether or not those claimed exemptions actually applied, and as a result, it
permitted Defendants to choose, on the one hand, to file “a supplemental Vaughn Index,
affidavit, or declaration that provides the necessary additional information regarding the
redacted documents[,]” or, on the other, to release the challenged withheld content. Id.
at 68; (see also Order (“September 2 Order”), ECF No. 26, at 1–2). Defendants opted
to file a supplemental Vaughn Index and affidavit on October 2, 2014 (see Defs.’ Notice
of Filing, ECF No. 30), and orally renewed their motion for summary judgment at a
status conference held on April 7, 2015. At that conference, Conservation Force
“conceded that the Defendants’ revised Vaughn index [was] sufficient to address the
concerns the Court expressed in [Wood Bison III’s Memorandum Opinion].” (Order of
April 7, 2015, ECF No. 36, at 2.) Accordingly, the Court granted Defendants summary
judgment on the remaining redactions and dismissed Conservation Force’s initial
6
complaint. (See id.)
B. The Instant Motion For Attorneys’ Fees
On April 20, 2015, Conservation Force filed the instant motion for reasonable
attorneys’ fees and costs. (See generally Pl.’s Mot. for Atty.’s Fees and Costs (“Pl.’s
Mot.”), ECF No. 37; Pl.’s Mem.; Defs.’ Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No.
41; Pl.’s Reply in Supp. of Pl.’s Mot. (“Pl.’s Reply”), ECF No. 44.) In the motion,
Conservation Force maintains that initiating the Wood Bison III litigation caused the
FWS to “change its position and provide some of the relief sought by the s uit, [i.e.,]
release of records related to wood bison import permits.” (Pl.’s Mem. at 10.)
Conservation Force also asserts that the Court’s opinion and order issued September 2,
2014 “grant[ed] Conservation Force much of the substantive relief that it . . . requested”
in its initial complaint. (Id. at 11.) In their opposition to the fee motion, Defendants
argue that Conservation Force is ineligible for any fees under the terms of the
applicable statute, and that even if it is deemed eligible, Conservation Force should
only receive a portion of the fees incurred in the matter because much of the litigation
was spent litigating issues on which Conservation Force did not prevail. (See Defs.’
Opp’n at 4–5.)
II. MOTIONS FOR ATTORNEYS’ FEES IN FOIA CASES
In section 552(a)(4)(E) of Title 5 of the United States Code—which is a
provision of the FOIA statute—Congress has specified that “[t]he 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)(i). The statute does not authorize courts to assess
what it means to “prevail” (substantially or otherwise) in a FOIA case in the abstract;
7
rather, the statute further provides:
(ii) For purposes of this subparagraph, a complainant has substantially
prevailed if the complainant has obtained relief through 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). In Brayton v. Office of the U.S. Trade Representative, 641
F.3d 521 (D.C. Cir. 2011), the D.C. Circuit made clear that the language Congress uses
to authorize attorneys’ fees in FOIA cases “naturally divides the attorney-fee inquiry
into two prongs, which our case law has long described as fee ‘eligibility’ and fee
‘entitlement.’” Id. at 524 (quoting Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470
F.3d 363, 368–69 (D.C. Cir. 2006)). It further explained: “[t]he eligibility prong asks
whether a plaintiff has ‘substantially prevailed’ and thus ‘may’ receive fees[,]” id.
(citation omitted), and “[i]f so, the court proceeds to the entitlement prong and
considers a variety of factors to determine whether the plaintiff should receive fees[,]”
id. (emphasis in original) (citation omitted).
To undertake the requisite eligibility analysis, the court must determine whether
“the complainant has substantially prevailed” in the FOIA litigation insofar as he has
“obtained relief through” one of the two ways set forth above: either (1) an order of the
court or enforceable agreement of the parties, or (2) a “voluntary or unilateral change in
position by the agency,” assuming the plaintiff’s claim is not insubstantial. 5 U.S.C.
§ 552(a)(4)(E)(i)–(ii). With respect to the first manner of demonstrating eligibility for
fees—this Court will call it the “court-order” method of establishing eligibility, for
short—the plaintiff must identify a court order that “constitutes judicial relief on the
merits resulting in a court-ordered change in the legal relationship between the plaintiff
8
and the defendant.” People for the Ethical Treatment of Animals v. Nat’l Insts. of
Health, No. 10-1818, 2015 WL 5326103, at *4 (D.D.C. Sept. 11, 2015) (quoting
Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 194 (D.C. Cir. 2007))
(internal quotation marks omitted); see also Campaign for Responsible Transplantation,
511 F.3d at 194. Such order must have “require[d] a party ‘to do what the law
required—something that it had theretofore been unwilling to do.’” People for the
Ethical Treatment of Animals, 2015 WL 5326103, at *4 (quoting Campaign for
Responsible Transplantation, 511 F.3d at 196).
The second method of establishing that the party seeking fees substantially
prevailed in the FOIA action, see 5 U.S.C. § 552(a)(4)(E)(ii)(II), is ordinarily called the
“catalyst” method, and it permits the plaintiff to claim eligibility even without a
favorable court judgment, if “the litigation substantially caused the requested records to
be released.” ACLU v. U.S. Dep’t of Homeland Sec., 810 F. Supp. 2d 267, 274 (D.D.C.
2011) (quoting N.Y.C. Apparel F.Z.E. v. U.S. Customs & Border Prot. Bureau, 563 F.
Supp. 2d 217, 221 (D.D.C. 2008)) (internal quotation marks omitted). However, it is
clear beyond cavil that, because “[r]ecovery under the catalyst [method] . . . turns on
causation[,]” Citizens for Responsibility & Ethics in Wash. v. DOJ, 83 F. Supp. 3d 297,
303 (D.D.C. 2015) (citing, inter alia, Cox v. DOJ, 601 F.2d 1, 6 (D.C. Cir. 1979)),
“[t]he ‘mere filing of the complaint and subsequent release of documents,’” without
more, will not suffice to show a causal nexus, id. (quoting Weisberg v. DOJ, 745 F.2d
1476, 1496 (D.C. Cir. 1984)). Moreover, and accordingly, in order to “prevent
plaintiffs from being the beneficiaries of purely extrinsic factors, courts are directed to
look at the circumstances surrounding disclosure.” Id. Ultimately, it is the plaintiff’s
9
burden to show that the catalyst pathway applies, see Dorsen v. SEC, 15 F. Supp. 3d
112, 118 (D.D.C. 2014); if nothing else, this at least means that equipoise on the
question of causation will not do, see Pub. Citizen Health Research Grp. v. Young, 909
F.2d 546, 550 (D.C. Cir. 1990) (holding, in the context of an analogous fee statute’s
catalyst provision, that “the claimant must show that it is more probable t han not that
the government would not have performed the desired act absent the lawsuit” (citations
omitted)).
As mentioned, and significantly for present purposes, a plaintiff must “ obtain[]
relief through” either the court-order or catalyst methods in order to be eligible for
attorneys’ fees. See 5 U.S.C. § 552(a)(4)(E)(ii) (emphasis added). The FOIA defines
“relief” broadly as, among other things, the “taking of . . . action on the application of
or petition of, and beneficial to, a person[,]” 5 U.S.C. § 551(11), and in this regard, the
statute appears merely to have imported the ordinary meaning of “relief” into the
agency context. See Black’s Law Dictionary 1482 (10th ed. 2014) (defining “relief,” as
relevant here, as the “redress or benefit . . . that a party asks of a court”).
A FOIA plaintiff who demonstrates that he has obtained relief through either of
the two statutorily prescribed methods discussed above has “substantially prevailed”
within the meaning of the statute, and is thus eligible to recover fees; he must then
proceed to show an entitlement to fees under a “multi-factor standard” that serves to
guide the court’s decision making regarding whether or not it should exercise its
discretion to grant fees to an eligible plaintiff. Dorsen, 15 F. Supp. 3d at 117 (citation
omitted). Under this framework, courts consider “(1) the public benefit derived from
the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s
10
interest in the records; and (4) the reasonableness of the agency’s withholding of the
requested documents.” Id. (internal quotation marks and citation omitted). No factor is
dispositive, and “sifting of th[e] criteria over the facts of a case is a matter of district
court discretion.” Id. (internal quotation marks and citation omitted). Moreover, courts
have explained that the various factors are merely tools to aid in the pursuit of the “two
separate and distinct” overriding objectives of the FOIA: “to encourage [F OIA] suits
that benefit the public interest, and to compensat[e] for enduring an agency’s
unreasonable obduracy in refusing to comply with the [FOIA] requirements.” ACLU,
810 F. Supp. 2d at 276 (alterations in original) (internal quotation marks and citation
omitted). Thus, the touchstone is always “whether an award of attorney fees is
necessary to implement the FOIA.” Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008)
(citation omitted).
Finally, it is important to note that, even after finding eligibility and entitlement,
district courts retain the discretion to modify a fee award based on the reasonableness
of the request and the particular facts of the case. See Judicial Watch, 470 F.3d at 369.
Thus, once a plaintiff successfully surmounts the eligibility hurdle, the fee inquiry
becomes highly case specific. See, e.g., Judicial Watch, Inc. v. DOJ, 878 F. Supp. 2d
225, 238–39 (D.D.C. 2012) (examining whether the fees that were incurred were
reasonable, even after the plaintiff had demonstrated eligibility and entitlement).
III. DISCUSSION
Conservation Force asserts that it is eligible for, and is entitled to recover, the
attorneys’ fees and costs that it incurred in litigating Wood Bison III (the FOIA action)
against Defendants. In support of its argument for fees, Conservation Force points,
first, to this Court’s Order denying without prejudice Defendants’ motion for summary
11
judgment in part and permitting the submission of a revised Vaughn Index (see
September 2 Order at 1–2), and second, to what it claims is the fact that the lawsuit
prodded the agency into action. (See Pl.’s Mem. at 10–11.) However, for the reasons
explained below, this Court concludes that this is not a “case in which the complainant
has substantially prevailed[,]” 5 U.S.C. § 552(a)(4)(E)(ii), because Conservation Force
has not demonstrated that it “obtained relief through either” a court order or a
“voluntary or unilateral change in position by the agency,” id. § 552(a)(4)(E)(ii)(I)–
(II). Consequently, the pending motion for attorneys’ fees will be denied.
A. Conservation Force Did Not Obtain Relief Through A Court Order
As mentioned, success via the court-order method requires the movant to identify
an order of the court that “constitutes judicial relief on the merits ” because it resulted in
“a ‘court-ordered change in the legal relationship between the plaintiff and the
defendant.’” People for the Ethical Treatment of Animals, 2015 WL 5326103, at *4
(quoting Campaign for Responsible Transplantation, 511 F.3d at 194). Courts
assessing eligibility under this standard routinely evaluate the relief that the complaint
requests in light of what the court actually ordered—and have often found that, because
FOIA plaintiffs ordinarily request relief in the form of a court order requiring
production of the documents themselves, administrative orders that a court might issue
to aid in its determination of whether the documents have been properly withheld ( e.g.,
orders for Vaughn Indices or status reports) do not give rise to a finding of eligibility
for attorneys’ fees. See, e.g., Campaign for Responsible Transplantation, 511 F.3d at
196 (explaining the holding in a previous D.C. Circuit case by pointing out that the
district-court order in question—an order to conduct a search—“was not the relief on
the merits that plaintiff sought” where what plaintiff sought was “the release of
12
documents”). Put another way, a court order that requires the government to produce a
“Vaughn index, without more, does not constitute court -ordered relief for a plaintiff on
the merits of its FOIA claim” because it “does not change the legal relationship between
the plaintiff and defendant.” Id. at 196 (citation omitted); see also Summers v. DOJ,
569 F.3d 500, 505 (D.C. Cir. 2009) (reasoning that court-ordered status reports
regarding certain government “voluntary disclosures” did not effect “a court-ordered
change in the legal relationship” between the parties, because the govern ment could
“refuse[] to disclose a single document or datum” and still not be in violation of the
court’s order (internal quotation marks and citation omitted)); Barnard v. Dept. of
Homeland Sec., 656 F. Supp. 2d 91, 98–99 (D.D.C. 2009) (holding that a court order
requiring defendant either to release records or to prepare a Vaughn Index was not
judicial relief on the merits, for the same reasons (citing Summers, 569 F.3d at 505)).
These holdings foreclose Conservation Force’s characterization of this Court’s
September 2nd order as judicial relief on the merits. As explained, Conservation
Force’s complaint asked this Court to (1) issue an injunction forcing the government to
release certain documents and (2) declare that Defendants had violated, and were
continuing to violate, the FOIA’s statutory time limits. (See Compl. at 12–13; see also
supra Part I.A.) The Court’s order of September 2, 2014, included no such declaration,
nor did it direct a document release. Instead, the Court merely denied the government’s
motion for summary judgment in part and without prejudice, on the grounds that some
of the claimed exemptions were insufficiently explained to support summary judgment ,
and the Court permitted Defendants to choose between releasing the content allegedly
protected by the insufficiently explained exemptions or submitting “a supplemental
13
Vaughn Index and/or affidavits or declarations that comply with their obligations under
[FOIA].” (September 2 Order at 1.) Therefore, just as in Summers, Defendants would
not have violated the Court’s order if they had refused to produce any documents at all,
see 569 F.3d at 505, as long as they produced a revised Vaughn Index or equivalent
supplement to their claimed exemptions. 3 Moreover, if a court order to produce a
Vaughn Index, without more, “does not constitute court -ordered relief for a plaintiff on
the merits of its FOIA claim,” Campaign for Responsible Transplantation, 511 F.3d at
195 (citation omitted), then neither does a court’s reminder to a defendant that it must
either justify its exemptions sufficiently or release the requested documents.
In response to all this, Conservation Force makes only the bald statement that the
September 2nd order “[wa]s a production order.” (Pl.’s Reply at 6 (citing Elec. Privacy
Info. Ctr. v. U.S. Dep’t of Homeland Sec., 999 F. Supp. 2d 61, 65, 67 (D.D.C. 2013)).)
Merely saying this does not make it so. And the cited Electronic Privacy case provides
no support for this ipse dixit either, because it is clear that the court in that case was
referencing the defendant’s revised Vaughn Index in the context of a discussion about
plaintiff’s eligibility under the catalyst method, not the court-order analysis that is
presently pertinent. See Elec. Privacy Info. Ctr., 999 F. Supp. 2d at 65, 67. As this
Court reads it, the Electronic Privacy case says nothing contrary to the above analysis
regarding court-ordered relief; consequently, this Court concludes that Conservation
Force has failed to show that it is eligible for attorneys’ fees because it obtained relief
through a court order under 5 U.S.C. § 552(a)(4)(E)(ii)(I). 4
3
Indeed, as noted in Part I.A, Defendants did not disclose any documents after or pursuant to the
Court’s order; instead, they chose to update their Vaughn Index, and as Conservation Force
subsequently conceded, that updated Vaughn Index passed muster.
4
In its reply brief, Conservation Force argues for the first time that two orders the Court issued in
14
B. Conservation Force’s Catalyst Arguments Are Insufficient To
Demonstrate Eligibility
Because this Court has concluded that Conservation Force is not entitled to fees
on the basis of there being any court-ordered relief on the merits, Conservation Force
can only show eligibility through the catalyst method. To recap, the catalyst analysis is
all about causation, and it is Conservation Force’s burden to show that the necessary
causal nexus exists. See Dorsen, 15 F. Supp. 3d at 118. Moreover, because “the mere
filing of the complaint and the subsequent release of the documents is insufficient to
establish causation[,]” id. (quoting Weisberg, 745 F.2d at 1496)), “vague assertions of
post hoc, ergo propter hoc are insufficient[,]” Citizens for Responsibility and Ethics, 83
F. Supp. 3d at 297 n.5 (citing Pub. Law Educ. Inst. v. DOJ, 744 F.2d 181, 183 (D.C.
Cir. 1984)); see also Black’s Law Dictionary 1355 (10th ed. 2014) (defining post hoc
ergo propter hoc as the “logical fallacy of assuming that a causal relationship exists
when acts or events are merely sequential”). After all, if it was “unavoidable delay
accompanied by due diligence in the administrative process” that caused the agency’s
failure to respond in a timely fashion to the initial FOIA request, and not the “threat of
an adverse court order,” then “it cannot be said that the complainant substantially
prevailed in [its] suit.” Calypso Cargo Ltd. v. U.S. Coast Guard, 850 F. Supp. 2d 1, 4
(D.D.C. 2011) (alteration in original) (quoting Church of Scientology of Cal. v. Harris,
653 F.2d 584, 588 (D.C. Cir. 1981)); see also Short v. U.S. Army Corps of Engr’s, 613
F. Supp. 2d 103, 106 (D.D.C. 2009) (“The causation requirement is missing when
2013—the January 3rd order to show cause why Defendants deserved a further extension of time to
respond to the FOIA request and the February 19th minute order entering a briefing sc hedule—were
orders satisfying the court-order test. But there is no colorable argument that Conservation Force
obtained relief through those orders. And, in any event, new arguments made in a reply brief are
forfeited, see Harrison v. Office of the Architect of the Capitol, 68 F. Supp. 3d 174, 183 (D.D.C. 2014),
so this Court will not exercise its discretion to consider them here.
15
disclosure results not from the suit but from delayed administrative processing .”).
This principle makes considerable sense, and it compels the outcome here. The
FOIA’s fee provision represents an intentional deviation from the usual rule that each
party pays its own attorneys’ fees, see Union of Needletrades, Indus. & Textile Emps.,
AFL-CIO, CLC v. U.S. I.N.S., 336 F.3d 200, 203 (2d Cir. 2003), and Congress directed
that fees may be awarded with respect to FOIA litigation to incentivize lawsuits that
“facilitate citizen access to the courts to vindicate their [FOIA] statutory rights[,]”
Benavides v. Bureau of Prisons, 993 F.2d 257, 260 (D.C. Cir. 1993) (citation omitted).
By contrast, no attorneys’ fee reward is due if, as it turns out, recourse to the judicial
system was unnecessary. Accordingly, when determining whether a party’s action was
the catalyst for the defendant’s compliance with its FOIA obligati ons, courts “look at
the circumstances surrounding disclosure[,]” Citizens for Responsibility, 83 F. Supp. 3d
at 303, and consider factors “such as whether the agency made a good[-]faith effort to
search out material and pass on whether it should be disclo sed, whether the scope of
request caused delay in disclosure, and whether the agency was burdened by other
duties that delayed its response[,]” ACLU, 810 F. Supp. 2d at 274 (internal quotation
marks and citation omitted) (alteration in original); see also Dorsen, 15 F. Supp. 3d at
118–19.
This inquiry is necessarily fact-specific. Claimants have succeeded where an
agency admitted that, “[i]n the course of preparing [its] Motion for Summary
Judgment[,]” it determined that the sought-after information could be released, months
after “it had ceased its administrative processing and issued a final determination
concerning [plaintiff’s] FOIA request[.]” Judicial Watch, 878 F. Supp. 2d at 232–33
16
(first two alterations in original) (internal quotation marks and citation omitted) .
Claimants were also found eligible for fees where, after the lawsuit was filed, the
agency reversed course on previous exemption assertions and provided the desired
documents, see Dorsen, 15 F. Supp. 3d at 115–16, 119–20. Conversely, the court in
Calypso Cargo rejected a catalyst claim where the agency began diligently processing
the FOIA request before the lawsuit but, due to “the volume of the records[,]” released
the responsive documents some months after the complaint was filed. 850 F. Supp. 2d
at 4–6 (citation omitted) (citing cases). So, too, there was no catalyst eligibility in
Bigwood v. Defense Intelligence Agency, where the agency labored under a significant
backlog of FOIA requests, and “expended a considerable amount of time and effort”
processing the plaintiff’s broad request “prior to the filing of his lawsuit[.]” 770 F.
Supp. 2d 315, 321 (D.D.C. 2011); see also Reinbold v. Evers, 187 F.3d 348, 363 (4th
Cir. 1999) (rejecting the catalyst theory’s applicability where unrebutted evidence
showed that the delay in responding to a request “was caused by a staffing shortage”).
At bottom, then, the question is whether hard evidence—beyond temporal proximity—
supports the inference that the plaintiff’s lawsuit caused the document release or other
requested relief.
Such evidence is entirely absent here. Conservation Force filed the instant
lawsuit in October of 2012 in order to obtain certain documents and particular
declarations from the Court. It never obtained the latter, and while it is true that
Defendants released some documents after Conservation Force filed the complaint as a
purely chronological matter, it is also clear beyond cavil that the catalyst method
requires more. No averments or other facts in the instant record indicate that
17
Defendants only produced these documents because of Conservation Force’s lawsuit or
its necessary consequents, nor was there any about-face from an initial agency refusal
here. Compare Dorsen, 15 F. Supp. 3d at 115–16. Indeed, if anything, Defendants’
release of documents substantially resembles the types of unavoidable and unintentional
delay noted above.
For example, the record reflects that the FWS has “a long standing policy of
reviewing and processing requests in sequential order[,]” (Third Decl. of Timothy Van
Norman, ECF No. 14-1, ¶ 4), and also that, at all relevant times, the FWS had tasked
only one individual with processing all FOIA requests, and that same person was also
responsible for “oversee[ing] the weekly Federal Register notice publication
announcing the receipt of all Endangered Species Act applications, handling . . . all
legal file searches received by the office, and mana ging other data issues[,]” (Second
Van Norman Decl. ¶ 5). This dynamic alone could be the cause of intractable delays in
responding to FOIA requests. But, here, there is more: the record demonstrates that
after the agency began to move on Conservation Force’s FOIA request—which
indisputably occurred even before Conservation Force filed its lawsuit (see id. ¶¶ 2–3;
see also Pl.’s Mem. at 3–4)—the review’s momentum was thwarted when the agency
apparently mistakenly decided to refer the request to the Department of the Interior for
processing. (See Second Van Norman Decl. ¶¶ 5–6.) This decision took place in
August of 2012, and was only reversed in November of 2012, approximately one month
after Conservation Force’s lawsuit was filed. (See id. ¶¶ 4, 6.) Thus, nothing here
suggests an intransigence that only fell away in the face of litigation ; to the contrary,
these facts, which Conservation Force has not disputed, are at least susceptible to the
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view that the agency was doing its best in a tough situation, and that the document
releases in December of 2012 and January of 2013 did not result from the lawsuit but,
instead, from the agency’s best efforts finally bearing fruit.
Perhaps one could conceive of good arguments to support Conservation Force’s
contention that the lawsuit prompted the agency to release the requested documents, but
as far as motions for attorneys’ fees are concerned, plaintiffs bear this burden, and
Conservation Force has barely developed any catalyst argument, let alone a winning
one. In its opening brief, Conservation Force offers only the unadorned assertion that
the lawsuit “served as [a] ‘catalyst[,]’” which it then seeks to support with the lone
observation that “Defendants did not respond at all to Plaintiff’s FOIA request until
after this lawsuit was filed.” (Pl.’s Mem. at 10 (emphasis in original).) This is
precisely the type of conclusory post hoc argument that precedent rejects. See Dorsen,
15 F. Supp. 3d at 118–19 (collecting cases). Conservation Force elaborates marginally
in its reply brief—it asserts that, but for this litigation, Conservation Force would never
have received the Vaughn Index “or its valuable explanations” and that “Conservation
Force’s opposition to Defendants’ withholdings led to production of a revised Vaughn
index[.]” (Pl.’s Reply at 6–7). Even assuming arguendo that this argument is not
waived, it is certainly beside the point, because the FOIA statute does not make a
plaintiff eligible for attorneys’ fees if it prevails on any dispute within a case, however
small. Instead, plaintiffs are eligible only if they “obtain[] relief[,]” 5 U.S.C.
§ 552(a)(4)(E)(ii), and as explained above, “Vaughn indices are not properly understood
as relief on the merits for a FOIA plaintiff.” Campaign for Responsible
Transplantation, 511 F.3d at 196; see also Citizens for Responsibility, 83 F. Supp. 3d at
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305 (disagreeing that defendant’s provision of “more fulsome explanations” for certain
withholdings meant that plaintiff substantially prevailed, and explaining that a “party
simply does not ‘prevail’ by failing to obtain the requested records” (citations
omitted)).
This is also why the Court sees no reason to address the parties’ extensive (and
misguided) discussions regarding whether or not Conservation Force might be eligible
to recover fees with respect to particular pieces of its work within the case overall. For
example, the government suggests that Conservation Force might be eligible “for
attorneys’ fees . . . associated with the complaint, proof of service and summons,” but
would not be eligible to recover fees with respect to the remainder of the work done by
Conservation Force’s attorneys, which post-dated the document productions of
December 2012 and January 2013, and thus could not possibly have caused those
productions. (Defs.’ Opp’n at 2 (asserting that Conservation Force is not eligible for
“unsuccessful subsequent filings”); id. at 5; see also Pl.’s Reply at 7 (seeming to accept
this piecemeal eligibility analysis).) This approach to evaluating eligibility is not based
in the statute, which clearly speaks about eligibility to receive attorneys’ fees for cases,
not particular pieces of work within a case. See 5 U.S.C. § 552(a)(4)(E)(i) (stating that,
if a complainant substantially prevails in a case, the court “may assess . . . reasonable
attorney fees and other litigation costs reasonably incurred in [that] case”). Moreover,
nothing in the statute suggests that the eligibility requirement is to be established based
on a plaintiff’s momentary successes on interstitial issues in a case where, as here, there
is no evidence that the litigation itself elicited an event through which the plaintiff
obtained relief.
20
Of course, the degree to which a plaintiff deserves to recover fees for particular
pieces of work is not entirely irrelevant to an attorneys’ fee motion; it may certainly
factor into the court’s ultimate determination of whether the entire amount of fees that
the plaintiff claims to have incurred in the case is reasonable. See, e.g., Elec. Priv.
Info. Ctr., 999 F. Supp. 2d at 67 & n.1 (conducting the eligibility analysis and
observing that “[w]hether [plaintiff] is entitled to all of its fees for work on issues for
which it did not prevail is a different question”); see also id. at 75–76 (addressing the
fee award’s scope at the reasonableness stage and describing circumstances where
partial failures within the lawsuit are grounds for a fee reduction). But the initial
eligibility analysis permits no such debate; rather, Congress was clear that, with respect
to the case as a whole, if a FOIA plaintiff obtained the relief he requested (typically, the
documents themselves) “through” either the court-order method or a change in agency
position, he has “substantially prevailed” and thus “may” receive—i.e., is eligible for—
reasonable fees incurred in that case. 5 U.S.C. § 552(a)(4)(E). And because
Conservation Force has not made such a showing in the context of the instant case, this
Court concludes that it is not eligible for an award of attorneys’ fees and costs.
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IV. CONCLUSION
Conservation Force has failed to demonstrate that it substantially prevailed in the
underlying action—i.e., that it received court-ordered relief on the merits of its FOIA
claims or that it received relief from the agency that it would not have obtained but for
the lawsuit. Therefore, it is ineligible to recover fees, and its motion for attorneys’ fees
and costs must be DENIED. A separate order providing accordingly will issue with
this opinion.
DATE: February 5, 2016 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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