The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff United America Financial, Inc. ("UAF") filed this Freedom of Information Act ("FOIA") suit against defendant Postmaster General John Potter seeking the release of documents related to the creation and circulation of an article designating certain insurance employees as "Nigerian identity thieves." Although this Court upheld in part defendant's decision not to disclose materials, the United States Postal Service ("USPS") was ordered to provide names that had been redacted in earlier disclosures. Plaintiff now moves for an award of $143,615.60 in attorney fees plus an additional $6,941.80 in fees for preparing the briefs for this motion. For the reasons discussed below, plaintiff's motion will be denied.
The factual background of this case is set out at length in the Court's earlier opinions and will only briefly be revisited here. See United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29 (D.D.C. 2008) ("UAF I"); United Am. Fin., Inc. v. Potter, 667 F. Supp. 2d 49 (D.D.C. 2009) ("UAF II"). Plaintiff submitted a FOIA request to the USPS on February 1, 2006, seeking information related to an article circulated among Postal Service employees on or about January 27, 2006 entitled "A dropped PIN: Nigerian identity thieves targeting USPS employees." See UAF I, 531 F. Supp. 2d at 36; UAF II, 667 F. Supp. 2d at 53-54. Plaintiff argued that the government improperly labeled its salespeople as "identity thieves" simply because they were black and had Nigerian names. Under FOIA, plaintiff requested several documents related to the investigation.
In UAF II, after three rounds of briefing and several motions for summary judgments from both parties, this Court granted in part and denied in part the parties' cross motions for summary judgment. The Court found that certain documents containing information identifying USPS investigators and inspectors fell within the law enforcement purposes of FOIA Exemption 7(C) and thus were properly redacted, but also concluded that USPS failed to set forth a factual basis to support the claimed concerns of harassment, intimidation, or physical harm necessary to show a privacy interest in the case of several documents. UAF II, 667 F. Supp. 2d at 60. Hence, the Court identified ten documents, in total less than 20 pages, that defendant was required to provide to plaintiff with the specified redacted portions intact. See id. at 59-66.
Although USPS filed a notice of appeal on December 31, 2009, USPS ultimately moved to dismiss the appeal on March 10, 2010. See Pl's Mot. for Atty Fees and Costs (Pl's Mot.) at 8. On March 12, 2010, the D.C. Circuit dismissed defendant's appeal and on March 25, 2010 defendant provided plaintiff with the requested documents. Pl's Mot. at 8.
Section 552(a)(4)(E) of FOIA states 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)(i). In determining the reasonableness of attorney fees and costs under FOIA a court must first find that the plaintiff is eligible for attorney fees and then determine whether the plaintiff is entitled to the requested fees and costs. Weisberg v. U.S. Dep't of Justice, 848 F.2d 1265, 1268 (D.C. Cir. 1988); Burka v. U.S. Health & Human Serv., 142 F.3d 1286, 1288 (D.C. Cir. 1998).
Plaintiffs are considered eligible for attorney fees and costs if they can show they "substantially" prevailed in the litigation. See 5 U.S.C. § 552(a)(4)(E)(ii). Prior to the enactment of the 2007 OPEN Government Act amendments, "in order for plaintiffs in FOIA actions to become eligible for an award of [attorney] 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." Oil, Chemical and Atomic Workers v. Dep't of Energy, 288 F.3d 452, 456-57 (D.C. Cir. 2002) (quoting Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 603 (2001)).
Under the current FOIA provision, however, a plaintiff "substantially prevails" if the plaintiff has obtained relief either through "(1) a judicial order or an enforceable written agreement or consent decree; or (2) 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)(ii)(I)-(II). A plaintiff is considered to have "substantially prevailed" if the litigation "substantially caused the requested records to be released." N.Y.C. Apparel F.Z.E. v. U.S. Customs & Borders Prot. Bureau, 563 F. Supp. 2d 217, 221 (D.D.C. 2008) (internal citations omitted).
Once a plaintiff has been deemed eligible for attorney fees and costs under FOIA, the court must then consider four factors in determining the plaintiff's entitlement: (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 has a reasonable basis for withholding the requested information. Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C. Cir. 1995). Section 552(a)(4)(E) does not operate to award attorney fees and costs to every successful litigant, but instead seeks "to remove the incentive for administrative resistance to disclosure requests based not on the merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation." Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977). Hence, no one factor should be given "dispositive weight" and courts are encouraged to "search out and consider other factors that may be relevant to whether [attorney] fees should be awarded to a successful FOIA plaintiff." Id. at 714. Upon viewing all the relevant evidence and materials, "if the balance of these four factors favors the Government, then the claim for attorney fees is insubstantial." Poett v. U.S. Dept. of Justice, 2010 U.S. Dist. LEXIS 104900, * 13 ( D.D.C. 2010). With these principles in mind, the Court will address in sequence plaintiff's eligibility for and then entitlement to an award of fees.
Plaintiff is eligible for an award of attorney fees if it "substantially prevailed" in the FOIA litigation. 5 U.S.C. § 552(a)(4)(E); Tax Analysts v. U.S. Dept. of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992). Here, defendant has conceded eligibility because "this litigation rendered a decision granting, in part, and denying, in part, USPS's Final Motion for Summary Judgment." See Def's Opp'n to Pl's Mot. for ...