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Contreras v. U.S. Dep't of Justice

August 3, 2010


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


In this action brought by Frediando Contreras, pro se, Mr. Contreras initially sued the Federal Bureau of Information ("FBI"), the Executive Office of the United States Attorney ("EOUSA"), and the Drug Enforcement Administration ("DEA") under the Freedom of Information Act, 5 U.S.C. § 552.*fn1 See First Am. Compl. [Dkt. # 11]. Mr. Contreras subsequently withdrew his complaint against the FBI. See Pl.'s Mot. to Withdraw [Dkt. # 19]. Defendants then filed a motion to dismiss or for summary judgment, and Mr. Contreras filed a cross motion for summary judgment, seeking filing fees and costs.

Mr. Contreras now "concedes that summary judgment is appropriate" as to EOUSA "in all respects of their argument." Pl.'s Resp. [Dkt. # 35]*fn2 at 1. He also concedes that his suit against the DEA is moot because "summary judgment is warranted in regards to DEA's eventual search and withholding of records pursuant to FOIA exemptions[.]" Id.; see also Pl.'s Mem. in Supp. [Dkt. # 35] at 9.*fn3 The sole issue remaining is whether Mr. Contreras is entitled to recover $431.14 in filing fees and costs as an alleged "prevailing party" against the DEA.*fn4 As explained below, Defendants' motion for summary judgment will be granted, and Plaintiff's motion for summary judgment and request for fees will be denied.


The DEA is a constituent agency of the United States Department of Justice.*fn5 By letter dated July 11, 2008, Mr. Contreras requested "a complete and thorough search of [DEA] filing system under [DEA's] control, of any records [DEA] may have that pertain in any form or sort to [Plaintiff]." See Defs.' Mot. to Dismiss or for Summ. J. [Dkt. # 30] ("Defs.' Mot.") , Ex. D. ("Supp. Little Decl.") ¶ 13. The FOIA request also asked for "any computerized data," "any See Reference Cards' search slips, abstracts, and any raw data cards," and "any photographic, videographic, or audio tapes generated of [the Plaintiff]." Id. DEA acknowledged receipt of the letter by response dated August 1, 2008. See id. ¶ 14, Ex. B. By letter dated October 24, 2008, DEA informed Mr. Contreras that his FOIA request was being denied because it did not reasonably describe the records being sought, it was not filed in accord with agency rules, and it did not include a promise to pay or request for a waiver of fees. See id. ¶ 15, Ex. C.

By letter dated November 22, 2008, Mr. Contreras appealed the DEA's determination. See id. ¶ 17, Ex. D. By letter dated June 2, 2009, the DOJ Office of Information and Privacy informed Mr. Contreras that its file was closed because Mr. Contreras had, in the meantime, filed this suit. See id. ¶ 19, Ex. F.

As noted above, Mr. Contreras had also sent a FOIA request to EOUSA. In preparing its response, EOUSA referred certain documents contained in its files to DEA for evaluation because they were DEA-originated documents. See id. ¶ 20, Ex. G. Thus provided with detailed information about Mr. Contreras, DEA conducted a search of its Investigative Case File Nos. C3-06-0142 and IZ-06-0012 for all records that contained Mr. Contreras's name and those that related to him. See id. ¶ 140. One-hundred and ninety-one (191) total pages of responsive material were located during the searches conducted by DEA. Defs.' Statement of Material Facts [Dkt. # 30] ¶ 31. Those that had not already been processed as a result of the EOUSA referral, numbering fifty-nine pages, were processed by the DEA, with the result that thirty-nine were withheld in their entirety and twenty were withheld in part.*fn6 Id. ¶ 28.

Mr. Contreras challenges none of this. At issue is whether Mr. Contreras is a prevailing party, inasmuch as the DEA denied his FOIA request and then, as a result of this lawsuit, responded to it and released some records.


Congress amended the attorney fee provisions in FOIA effective December 31, 2007, pursuant to the Openness Promotes Effectiveness in our National Government Act of 2007 (the "OPEN Government Act" or the "Act"). Pub. L. 110-175, 121 Stat. 2424 (2007). Under the new Act, a FOIA requester may be deemed to have substantially prevailed (and thus may be entitled to attorney fees) under the "catalyst" theory, i.e., if his lawsuit resulted in a voluntary or unilateral change in position by the agency and if his claim is not insubstantial. OPEN Government Act § 4 (amending 5 U.S.C. § 552(a)(4)(E)). FOIA § 552(a)(4)(E) now provides:

(i) The 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.

(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)(i) & (ii). To show that he has substantially prevailed and is eligible for attorney fees, a FOIA plaintiff must "prove that prosecution of the action could reasonably be regarded as necessary to obtain the information and that a causal nexus exists between the action and the agency's surrender of that information." Judicial Watch Inc. v. Bureau of Land Mgmt., 562 F. Supp. 2d 159, 173 (D.D.C. 2008). The causation requirement is missing when disclosure results not from the suit but from delayed administrative processing. See, e.g., Weisberg v. Dep't of Justice, 848 ...

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