Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brayton v. Office of the United States Trade Representative

September 28, 2009

ED BRAYTON, PLAINTIFF,
v.
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 16

MEMORANDUM OPINION DENYING THE PLAINTIFF'S MOTION FOR A DETERMINATION OF HIS ELIGIBILITY FOR AND ENTITLEMENT TO ATTORNEY'S FEES AND COSTS

I. INTRODUCTION

This matter is before the court on the plaintiff's motion for a determination of his eligibility for and entitlement to attorney's fees and costs. The action arises out of the plaintiff's request, made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for a copy of a compensation agreement between the United States and the European Union ("EU"). The plaintiff contends that he substantially prevailed in his FOIA action because the defendant, the Office of the United States Trade Representative ("USTR"), rescinded its initial denial of the plaintiff's request and disclosed the document. The court concludes that because the plaintiff was not entitled to an award of attorney's fees, his motion for fees is denied.

II. FACTUAL & PROCEDURAL BACKGROUND

In 2007, the United States entered into negotiations for a compensation agreement with several interested parties, including the EU, to exclude the gambling and betting service sector from its commitments under the General Agreement on Trade in Services ("GATS"). Pl.'s Mot. at 2. The negotiations took place under the auspices of the World Trade Organization ("WTO"). Id.In December 2007,the United States announced it had reached an agreement with the EU to modify its schedule of commitments under the GATS ("the Agreement"). Id.

The plaintiff was at the time a fellow in the New Journalist Program at the Center for Independent Media. Pl.'s Mot. at 2; Second Decl. of Ed Brayton ("Pl.'s 2d Decl.") ¶ 2. He was also a journalist for the Michigan Messenger and maintained a blog, "Dispatches from Culture Wars." Pl.'s 2d Decl. ¶ 1.

On December 19, 2007, the plaintiff submitted a FOIA request seeking disclosure of the Agreement. Def.'s Mot. for Summ. J. at 2. In January 2008, the defendant denied the request, asserting that the Agreement fell within FOIA Exemption 1, which authorizes the nondisclosure of foreign policy and national security information. First Decl. of Ed Brayton ("Pl.'s 1st Decl."), Ex. A. The plaintiff subsequently filed an administrative appeal. Pl.'s 1st Decl., Ex. B. By letter dated March 25, 2008, the defendant denied the appeal, asserting that the Agreement constituted "foreign government information" exempted from FOIA's disclosure requirements. Pl.'s 1st Decl., Ex. C ("March 25 Letter") at 1. Specifically, the defendant stated that the Agreement was "entered into as part of a multinational process under the purview of the World Trade Organization" and constituted foreign government information because "WTO rules . . . require that such documents . . . be held in confidence." Id. The defendant further informed the plaintiff that "[o]nce the multinational negotiating process is complete, the adjustments to the United States schedule of commitments will become public information." Id.

On May 19, 2008, the plaintiff commenced suit in this court seeking to compel disclosure of the Agreement. See generally Compl.In June 2008, the defendant informedthe plaintiff that there were some developments taking place that could potentially result in an earlier release of the Agreement. Decl. of David Apol ("Apol Decl.") ¶ 4. Counsel for the defendant had been informed by other USTR officials that the Agreement could be derestricted prior to the completion of multinational negotiations through a joint agreement between the United States and the EU. Id. The defendant, however, was not inclined to pursue such a joint agreement at that time because of concerns that "seeking the EU's cooperation might complicate or distract from other negotiations that were then underway." Id. ¶ 5. For that reason, the defendant "decided to defer entering into those discussions at that time." Id.

On July 9, 2008, the defendant moved for summary judgment without mentioning the possibility of disclosure through the joint agreement process. See generally Def.'s Mot. for Summ. J. On August 8, 2008, the plaintiff filed his opposition to the defendant's motion for summary judgment and a cross-motion for summary judgment. Id. In September 2008, senior USTR officials advised counsel for the defendant that pursuing the joint agreement method of derestriction would be feasible, and gave specific instruction to USTR representatives to approach the EU to discuss such an agreement. Apol Decl. ¶ 6. On September 3, 2008, the defendant moved for an extension of time to file its reply in support of summary judgment, in light of the possibility of an earlier release of the information sought. Id. Shortly thereafter, the defendant contacted the EU regarding a joint agreement on derestriction. Decl. of Bonnie Robin-Vergeer ("Robin-Vergeer Decl.") ¶ 4. In November 2008, the defendant and the EU jointly agreed to derestrict the Agreement, which was then declassified and released later that month. Pl.'s Mot. at 9. The plaintiff now moves for an award of attorney's fees.

III. ANALYSIS

A. Legal Standard for Awarding Attorney's Fees and Costs Under FOIA

The FOIA provides that government agencies "shall make available to the public" certain information upon a proper request. 5 U.S.C. § 552(a)(1). Under the FOIA, the court may assess "reasonable attorney's fees and other litigation costs reasonably incurred in any case . . . in which the complainant has substantially prevailed."*fn1 Id. §552(a)(4)(E)(i). A prevailing party must demonstrate both eligibility and entitlement for an award of attorney's fees. Id. To be "eligible" for an award of attorney's fees, the claimant must have "substantially prevailed" in the underlying FOIA litigation. Id. A party substantially prevails if he "has obtained relief through either . . . a judicial order, or an enforceable written agreement or consent decree[,] or . . . a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." Id. § 552(a)(4)(E)(ii).

Second, the court must determine that the plaintiff is "entitled" to an award of attorney's fees and costs. 5 U.S.C. ยง 552; Weisberg v. United States, 745 F.2d 1476, 1498 (D.C. Cir. 1984). In deciding whether a claimant is entitled to an award of attorney's fees and costs, the court generally considers four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; and (4) the reasonableness of the agency's withholding of the requested documents. Id.; see also Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093-94 (D.C. Cir. 1992). "[E]ntitlement is at the discretion of the district court." Md. Dep't of Human Res. v. Sullivan, 738 F. Supp. 555, 565 (D.D.C. 1990). Moreover, "[a]n ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.