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Short v. United States Army Corps of Engineers

May 13, 2009

JAMES R. SHORT, PLAINTIFF,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

James R. Short sought records from the U.S. Army Corps of Engineers (the "Army Corps" or "Corps") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The Army Corps released documents to Mr. Short, and on January 9, 2009, the Court granted summary judgment in favor of the Corps. Mr. Short now seeks attorney fees and costs in the amount of $158,444.00, claiming that he "substantially prevailed" in the litigation. The Corps opposes. As explained below, Mr. Short's request for fees will be denied.

I. FACTS*fn1

Mr. Short's FOIA request arose from his frustration in attempting to change a wetlands designation on property he sought to develop. Mr. Short is a real estate developer who is involved in developing Ocean Pines, a residential community in Worcester County, Maryland. In 1994, Ocean-Pines LLC - Balfour Holdings, Inc, applied for a permit to develop various sections of Ocean Pines, including Section 15B. As part of the permit process, a conservation easement was placed on Section 15B and a Jurisdictional Determination*fn2 was issued for this Section. In 2002, Mr. Short filed an application with the Army Corps for a Jurisdictional Determination that certain features in Section 15B, including Lot 64, were not wetlands. Because the Corps failed to act on his application and he allegedly was unable to obtain information regarding the processing of the application, on January 16, 2007, Mr. Short submitted a FOIA request for documents related to Lot 64 in Section 15B as follows:

RE: JD Determination - Tracking No. 20036062

Dear Mr. Fraer: Thank you for speaking with me today. As discussed, this is a request made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., as amended.

My firm represents Mr. James R. Short in connection with his joint application for a jurisdictional determination on a parcel of property located in Worchester [sic] County, Maryland. The JD application was first submitted to the U.S. Army Corps of Engineers by the Maryland Department of Environment on or about October 11, 2002. The JD application concerns a parcel located in Ocean Pines Section 15B, Lot 64, Tax Map 21, Parcel 68 (the "Parcel").*fn3

We hereby request that you provide us with copies of all documents in the possession, custody or control of the Corps with respect to the Parcel, including but not limited to any and all wetlands delineations, conservation easements, correspondence generated by the Corps in response to the JD application, and any internal memorandum or other documents generated by the Corp in connection with the JD application.

Def.'s Mot. to Dismiss or for Summ. J. ("Def.'s Mot."), Ex. A ("Fraer Decl."), Ex. 2.

On February 1, 2007, Michael Fraer, the FOIA coordinator for the Corps' Baltimore District Regulatory Branch, wrote to Mr. Short indicating that a preliminary determination had been made to grant Mr. Short's FOIA request and Mr. Fraer forwarded the request to the Baltimore Branch. Fraer Decl., Ex. 2 & 3. The Baltimore Branch has custody and control over all regulatory permit matters for the State of Maryland, where Lot 64 is located, and thus the Baltimore Branch is the only location where the requested records could be located. Id. ¶ 9; Def.'s Statement of Material Facts Not in Dispute ¶ 3. The request was misplaced for some time, but the Corps was reminded when Mr. Short filed this lawsuit on December 17, 2007.*fn4 Def.'s Mot., Ex. B ("Gaffney-Smith Decl.") ¶ 3. The Corps then conducted its search and on January 4, 2008, released 438 pages of documents and 19 oversize drawings, without redaction. The Corps did not withhold any documents. Id. ¶¶ 7-8.

Mr. Short, through counsel, contacted the Corps charging that the Corps failed to produce certain documents. Pl.'s Facts, Ex. 13.*fn5 In response, the Corps informed Mr. Short that all records possessed by the agency responsive to his request had been provided. Def.'s Reply to Mot. for Summ. J., Ex. 1, Lorenz Decl. ¶¶ 15 & 16.

This Court found that the Corps' search was reasonable and adequate. Mem. Op. [Dkt. # 26] at 8 (citing Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). The Court denied Mr. Short's motion for summary judgment and granted summary judgment in favor of the Corps. Mr. Short now seeks attorney fees and costs in the amount of $158,444.00.

II. ANALYSIS

Prior to a change in the law effective December 31, 2007, in order for a plaintiff in a FOIA action to become eligible for attorney fees, he must have been awarded some relief by a court, either in a judgment on the merits or in a court ordered consent decree. Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 457-58 (D.C. Cir. 2002). Under this standard, Mr. Short is not entitled to attorney fees because he did not obtain relief via a court judgment or ...


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