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Peter S. Herrick's Customs and International Trade Newsletter v. U.S. Customs and Border Protection

October 26, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Peter S. Herrick's Customs & International Trade Newsletter ("Herrick's" or "plaintiff") filed this Freedom of Information Act ("FOIA") suit when defendant U.S. Customs & Border Protection Bureau ("Customs" or "defendant") refused to provide it with a copy of the handbook that it had requested. Customs eventually turned over portions of the requested materials, but withheld other portions on the ground that they were exempt from disclosure under FOIA. This Court upheld in large part Customs' decision to refuse disclosure, ordering Customs to disclose only a "limited" amount of information that had apparently been "lumped in with exempt material." Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Protection, Civ.A. No. 04-0377, 2006 WL 1826185, at *10 & n.10 (D.D.C. June 30, 2006) ("Herrick's II"). Plaintiff now moves for an award of $58, 655.88 in attorney's fees. For the reasons discussed below, plaintiff's motion will be denied.


The factual and procedural background of this case is set forth in the Court's two previous opinions, see Herrick's II, 2006 WL 1826185, at *1-*2; Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Protection, Civ.A. No. 04-0377, 2005 WL 3274073, at *1 (D.D.C. Sept. 22, 2005) ("Herrick's I"), and will be repeated here only to the extent necessary to resolve the attorney's fees request. In its original complaint, Herrick's sought an injunction requiring Customs to release the Seized Asset Management Enforcement Procedures Handbook ("SAMEPH"), which Customs had identified as the equivalent of the "Fines, Penalties & Forfeitures Handbook" previously requested by Herrick's. Compl. at 2-3. Although initially withholding the entire contents of SAMEPH, Customs soon released to Herrick's ninety-three pages of the handbook in their entirety and 180 pages with partial redactions, but continued to withhold the final seventy-eight of the 351 total pages. Herrick's II, 2006 WL 1826185, at *1. Herrick's then filed an amended complaint in which it alleged that the remaining portions of SAMEPH were improperly withheld and requested their release. Am. Compl. at 3.

Both parties eventually moved for summary judgment. Faced with those cross-motions, the Court determined that the Vaughn index submitted by Customs was not specific enough and ordered Customs to submit a new Vaughn index in support of its contention that the undisclosed materials had been properly withheld under FOIA's exemptions. Herrick's II, 2006 WL 1826185, at *1; Herrick's I, 2005 WL 3274073, at *4. Customs complied with the Court's order by submitting a new Vaughn index, a declaration from a knowledgeable agency official, and a copy of the redacted version of the SAMEPH that plaintiff had received. Herrick's II, 2006 WL 1826185, at *1. Because Customs' expanded submissions and the parties' memoranda still did not enable the Court to resolve the dispositive motions, the Court ordered Customs to submit for in camera review an unredacted version of the SAMEPH. See Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Protection, Civ.A. No. 04-0377 (D.D.C. Apr. 27, 2006) (Order).

After conducting the in camera review, the Court granted in part and denied in part the cross-motions for summary judgment. Herrick's II, 2006 WL 1826185, at *2. Specifically, the Court upheld almost entirely Customs' determination that the redacted and withheld portions of the SAMEPH were exempt from disclosure under Exemptions 2, 7(E), and 7(F) of FOIA. Id. at *4-*9. The Court did, however, identify "mistakes" in what it described as Customs' "line-byline, good-faith effort to excise and disclose all non-exempt portions of the SAMEPH in response to the Court's earlier directive." Id. at *10. Furthermore, "[a]lthough the mistakes [were] relatively few in number and not necessarily responsive to plaintiff's objectives, they do concern the type of material that FOIA seeks to make public -- specifically, references and citations to statutory authority, as well as non-analytical synopses of what the law requires." Id. The Court identified these non-exempt portions of the SAMEPH in a footnote, id. at *10 n.10, and ordered Customs to disclose only those portions - - approximately thirty sentences scattered between pages 66 and 193 of the SAMEPH. Id.; Pl.'s Motion, Exh. C at 3-4 (8/1/2006 Disclosure Letter).


Section 552(a)(4)(E) of FOIA provides that a 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) (emphasis added). A party seeking a fee award must make two showings. See Davy v. Cent. Intelligence Agency, 456 F.3d 162, 166 (D.C. Cir. 2006). First, the party must show that it is "eligible" for a fee award in that it "substantially prevailed" in the litigation. Id.; Weisberg v. U.S. Dep't of Justice, 848 F.2d 1265, 1268 (D.C. Cir. 1988). Once that showing has been made, the party must demonstrate

that it is entitled to fees under four criteria that the court weighs in determining whether attorney's fees are appropriate: (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) whether the Government had a reasonable basis for withholding requested information."

Burka v. U.S. Dep't of Health and Human Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998) (citation and quotation marks omitted). "The sifting of those criteria over the facts of a case is a matter of district court discretion" that the appellate court reviews under the abuse-of-discretion standard. Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992). Moreover, the "legislative history of section 552(a)(4)(E) evinces a clear congressional intent to leave the courts' broad discretion when considering a request for attorney fees," such that there is no "presumption in favor of awarding attorney fees" to prevailing FOIA litigants. See Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 713-14 (D.C. Cir. 1977); Cuneo v. Rumsfeld, 553 F.2d 1360, 1367 (D.C. Cir. 1977) ("It is clear from the legislative history that Congress did not intend the award of attorney fees to be automatic."). With these principles in mind, the Court will address in sequence plaintiff's eligibility for and entitlement to an award of fees.

A. Eligibility

Herrick's is eligible for an award of attorney's fees if it "substantially prevailed" in the FOIA litigation. 5 U.S.C. § 552(a)(4)(E); Tax Analysts, 965 F.2d at 1093. Prior to the Supreme Court's decision in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 603 (2001), the D.C. Circuit had recognized the "catalyst theory," under which a FOIA plaintiff could show that it had substantially prevailed by demonstrating that "the 'litigation substantially caused the requested records to be released.'" Oil, Chemical and Atomic Workers Int'l Union v. Dept. of Energy, 288 F.3d 452, 455-56 (D.C. Cir. 2002) ("OCAW") (quoting Chesapeake Bay Found., Inc. v. Dep't of Agric., 11 F.3d 211, 216 (D.C. Cir. 1993)). But the OCAW court, noting that the Supreme Court had definitively rejected the catalyst theory in Buckhannon, applied the Court's analysis of the phrase "prevailing party" in the fee-shifting provision of the anti-discrimination statutes to the analogous language in FOIA's fee-shifting provision. Id. at 454-57. In the wake of Buckhannon and OCAW, "in order for plaintiffs in FOIA actions to become eligible for attorney's fees, they must have 'been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree." Id. at 456-57 (quoting Buckhannon, 532 U.S. at 603). Accordingly, the Court must focus not on any information that Customs voluntarily disclosed after the filing of the complaint, but instead on the relief that the Court itself awarded. See Davis v. U.S. Dept. of Justice, 460 F.3d 92, 105-06 (D.C. Cir. 2006) (denying the fee request where the government's release of requested tapes "was not made pursuant to any judgment or [court] order").

Here, rather than disputing that Herrick's has met this threshold requirement, Customs argues that Herrick's is ineligible for an award of fees under the D.C. Circuit's decision in Burka, 142 F.3d at 1288-89, which held (1) that pro se attorneys are not eligible for attorney's fees under FOIA and also that (2) a pro se attorney's alleged representation of an "undisclosed client" does not preserve his or her eligibility. The basis for Customs' argument is that "counsel" for plaintiff is also the principal of plaintiff - - Peter S. Herrick. Plaintiff's "interest and those of its counsel," as Customs sees it, "cannot be viewed as 'detached' for purposes of demonstrating an attorney-client relationship." Def.'s Opp'n at 6. Customs therefore insists that counsel for Herrick's, "in advancing his professional or business interest through the newsletter, is no more entitled to fees than a layperson representing his or her own interest." Id. Customs' argument has considerable force. However, accepting it would require the Court to extend the rule announced in Burka well beyond the circumstances of that case - - something that the D.C. Circuit has not yet seen fit to do. This case is also distinguishable from Burka on a basic level, insofar as plaintiff here did not formally proceed pro se; rather, counsel has openly represented an entity distinct from himself - -at least in the legal sense - - since the outset of the litigation. Given these distinctions and the Court's conclusion in Section B infra that plaintiff's request for attorney's fees should be denied on other grounds, the Court declines to break new ground by extending Burka to the circumstances of this case.

Plaintiff's eligibility thus turns solely on whether it substantially prevailed in its FOIA request. This Court's decision in Herrick's II instructed Customs to release a small fraction of the information that Herrick's had sought first in making its FOIA request and later in filing an amended complaint. Specifically, Customs was required to release a number of sentences that contained "references and citations to statutory authority, as well as non-analytical synopses of what the law requires." Herrick's II, 2006 WL 1826185, at *10 & n.10. Although this relief was so minor as to fit into a single footnote on the final page of the opinion, it nonetheless suffices to show that Herrick's was "awarded some ...

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