The wording of PI 82-06 also confirms that the instruction is of a nonbinding nature. The program labels itself as only "guidance to ACYF Regional officials," prepared simply to "assure conformity and equity in the interpretation of statutory requirements." Hence, it is not PI 82-06 which binds defendants, but rather the requirements of § 627.
2. PI 82-06 Does Not Restrict Administrative Discretion.
The second inquiry under Community Nutrition is whether the agency itself has proscribed any discretion in the application of its rules; that is, if the agency promulgates a rule to which it binds itself without any leeway, that rule is subjective because it has the force and effect of the law. The focus of this inquiry is not on whether the enabling statute gave discretion to the agency, but rather on what degree of discretion an agency allows itself in following what it claims to be an interpretive rule. Plaintiffs' emphasis on § 627's grant of discretion, "to the satisfaction on the Secretary," does not resolve the issue of whether PI 82-06 is interpretive or legislative. Defendants view PI 82-06 as merely a recommendation that indicates the program instruction is an interpretive rule. Because the results of a PI 82-06 case sampling form only the basis for a recommendation, defendants have the discretion to adopt or reject the results.
Plaintiffs argue that establishing a minimum compliance scheme curtails agency discretion granted by § 627. This Circuit differentiated legislative rules, which are "based on an agency's power to exercise its judgment as to how best to implement a general statutory mandate," from interpretive rules, which are "based on specific statutory provisions." United Technologies Corp. v. E.P.A., 261 U.S. App. D.C. 226, 821 F.2d 714, 720-21 (D.C. Cir. 1987). PI 82-06 falls into this latter category because § 627 provides the specific standards by which defendants grant additional funding to a state. In furnishing guidance to the agency on implementing those standards, PI 82-06 at most informs the exercise of discretion, which Community Nutrition recognized as interpretive. 818 F.2d at 949. Because PI 82-06 provides only a recommendation for a final decision, and because it does not implement a rigid set of rules based on a generalized statutory mandate, the program instruction is an interpretive rule. Defendants, therefore, were not arbitrary and capricious in not utilizing notice and comment procedures for PI 82-06.
B. The 1983 Claim Is Not Yet Ripe for Review
Because the DAB remanded plaintiffs' claim of § 627 eligibility for fiscal year 1983, no final administrative decision exists. Lack of final agency action typically renders a claim unripe for review. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). The ripeness doctrine protects an agency from judicial interference until "an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Id. The Abbott Laboratories framework for analyzing the ripeness of pre-enforcement agency action requires evaluation of the fitness of the issues and degree of hardship from withholding review. Id. at 149. If an issue raises a purely legal question, threshold suitability for judicial determination is assumed. Eagle-Picher Indus. v. E.P.A., 245 U.S. App. D.C. 179, 759 F.2d 905, 915 (D.C. Cir. 1985).
The issue before the Court is not the outcome of defendants' determination of ineligibility for 1982 and pending determination for 1983; plaintiffs do not challenge the merits of those findings. Plaintiffs instead raised a purely legal question as to whether defendants must have adhered to notice and comment procedures before they properly could use PI 82-06. Under the Abbott Laboratories and Eagle-Picher analysis, the issue of whether PI 82-06 is a legislative or interpretive rule is ripe for review.
The issue, then, of whether defendants were arbitrary and capricious in relying on PI 82-06 without notice and comment is ripe.
The Court already has determined above that because PI 82-06 is an interpretative rule, defendants may rely on it without being arbitrary and capricious. Accordingly, the purely legal question plaintiffs raise as to the 1983 claim is ripe. Therefore, plaintiffs' claim as to 1983 is also dismissed.
C. Plaintiffs Are Eligible But Are Not Entitled to Fees Under FOIA.
Because defendants did not respond to plaintiffs' FOIA request until after initiation of judicial action, plaintiffs request attorneys' fees and costs under 5 U.S.C. § 552(a)(4)(E) (1988). This provision provides that a court may assess "reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." Id. Assessment of fees involves a two-step inquiry. First, a complainant must show eligibility for an award because it has substantially prevailed. Second, a complainant must show entitlement to the award. Pyramid Lake Paiute Tribe v. United States Dept. of Justice, 242 U.S. App. D.C. 269, 750 F.2d 117, 119 (D.C. Cir. 1984). While plaintiffs are eligible for attorneys' fees and costs under § 552 (a) (4) (E), they are not entitled to such an award.
An agency cannot foreclose an award of attorneys' fees and costs simply by complying with a FOIA request during the pendency of litigation. Cuneo v. Rumsfeld, 180 U.S. App. D.C. 184, 553 F.2d 1360, 1365 (D.C. Cir. 1977). A complainant, however, must show more than the mere initiation of an action. It must demonstrate that "prosecution of the action could reasonably be regarded as necessary to obtain the information . . . and that a causal means exists between that action and the agency's surrender of the information." Cox v. United States Dept. of Justice, 195 U.S. App. D.C. 189, 601 F.2d 1, 6 (D.C. Cir. 1979).
Plaintiffs argue that HHS's lack of response to the FOIA request necessitated this action and that defendants' response shortly thereafter demonstrates causation. Defendants argue that because the request was handled in the normal course of business and because the agency intended to respond to the request regardless of litigation, causality does not exist.
Beyond the mere filing of the complaint and the subsequent release of the information, courts must consider such factors as whether the agency had reasonable and actual notice of the request, whether the agency made a good faith effort, the scope of the request, and the degree of other burdens facing the agency. Cox, 601 F.2d at 6; Alliance for Responsible CFC Policy, Inc. v. Costle, 631 F. Supp. 1469 (D.D.C. 1986). If such factors constitute the actual cause of HHS's delay in responding, then plaintiffs have not substantially prevailed. Defendants, however, offer no such considerations. Mere intentions to respond after three months of silence do not evidence due diligence. Arguing that the FOIA request was handled in the normal course of business suggests defendants are in the habit of delaying response to all FOIA requests. Defendants failed to provide even preliminary notification pursuant to 5 U.S.C. § 552 (a)(6)(A)(i) (1988).
While the Court recognizes the burdens placed on agencies by the FOIA, this does not appear to be a case in which the agency, "upon actual and reasonable notice, made a good faith effort to search out material and to pass on whether it should be disclosed." Cox, 601 F.2d at 6. Given this circumstance, it may be concluded that plaintiffs' suit caused the release of the documents obtained.
A finding of eligibility to an award under § 552(a)(4)(E), however, does not automatically entitle a complainant for such an award. Church of Scientology of Calif. v. Harris, 209 U.S. App. D.C. 329, 653 F.2d 584, 590 (D.C. Cir. 1981). Entitlement is at the discretion of the district court. Cox, 601 F.2d at 7. This Circuit has identified several factors to guide that discretion: "(1) Benefit to the public, if any, from the suit; (2) commercial benefit to the complainant; (3) nature of the complainant's interest in the released information; and (4) whether the agency's withholding of the information had a reasonable basis in law." Cuneo, 553 F.2d at 1364.
Plaintiffs satisfy the first relevant condition. The information sought -- how often defendants rely on PI 82-06 and what other guidelines defendants use in determining § 627 eligibility -- is of the type that "'is likely to add to the fund of information that citizens may use in making vital political choices.'" Fenster v. Brown, 199 U.S. App. D.C. 158, 617 F.2d 740, 744 (D.C. Cir. 1979) (quoting Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978)). Other states concerned with § 627 compliance may benefit from the information plaintiffs sought.
The second and third factors, however, do not suggest entitlement.
While plaintiffs are public-interest oriented, their motive in the FOIA request was personal: they sought information about the program instruction in order to aid their litigation against defendants. The FOIA request itself evidences such a motive, for plaintiffs asked for documents showing "the HHS decision . . . that a state is eligible for §  funds after a finding that a state has failed the compliance review process," and "guidelines . . . which guide the agency's exercise of discretion in determining a state's eligibility for §  funds." These requests suggest preparation for suit concerning the issue of PI 82-06's legislative or interpretive status. They concern precisely the subject matter of this litigation and are beyond simply an inquiry as to how the agency makes § 627 determinations. This district has found that the use of FOIA as a substitute for civil discovery is not proper and should not be encouraged by a fees and costs award. Simon v. United States, 587 F. Supp. 1029, 1033 (D.D.C. 1984); Republic of New Afrika v. Federal Bureau of Investigation, 645 F. Supp. 117, 121 (D.D.C. 1986). Plaintiffs' personal interest of litigation preparation for its own benefit does not suggest entitlement to a FOIA award.
The fourth criterion provides no relevancy as there is no claim of any "withholding" of documents. Defendants ultimately complied in full with plaintiffs' FOIA request.
In applying its discretion to make an entitlement determination, this Court may not give any one particular factor dispositive weight, Nationwide Building Maintenance, Inc. v. Sampson, 182 U.S. App. D.C. 83, 559 F.2d 704, 714 (D.C. Cir. 1977), and should use the factors to further the FOIA's basic policy of encouraging maximum feasible public access to government information. Id. at 715. The factors here indicate plaintiffs are not entitled to an award under § 552 (a) (4) (E). While other states may benefit from the information sought, plaintiffs' personal interests in the FOIA information does not further the FOIA policy.
The Court finds that Program Instruction 82-06 is an interpretive rule and, therefore, defendants were not arbitrary and capricious in using the rule to determine plaintiffs' eligibility for § 627 funds for either 1982 or 1983. The Court finds plaintiffs eligible for, but not entitled to, an award of attorneys' fees and costs under § 552(a) (4) (E). Accordingly, the Court grants defendants' motion and dismisses plaintiffs' complaint. An appropriate Order accompanies this Opinion.
ORDER - May 23, 1990, Filed
This matter is before the Court on plaintiffs' and defendants' cross-motions for summary judgment, plaintiffs' and defendants' opposition thereto, and the entire record herein. For reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that plaintiffs' motion is denied. It hereby further is
ORDERED, that defendants' motion is granted. It hereby further is
ORDERED, that this action is dismissed.