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James Lutcher Negley v. Federal Bureau of Investigation

October 11, 2011


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff James Lutcher Negley brings this Motion for an Award of Attorneys' Fees and Costs, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(E) [Dkt. No. 92]. The Government has filed an Opposition [Dkt. No. 98], Plaintiff has filed a Reply [Dkt. No. 99] and a Notice of Supplemental Filing in Support of Plaintiff's Motion for an Award of Attorneys' Fees and Costs [Dkt. No. 100], and Defendant has filed an Opposition to Plaintiff's Notice [Dkt. No. 101]. The last two filings related to Plaintiff's request for an additional fee award for time spent on work related to the underlying Motion for an Award of Attorneys' Fees and Costs. Upon consideration of Plaintiff's Motion and Notice of Supplemental Filing, the Government's Oppositions, the applicable case law, and the entire record in this case, Plaintiff's Motion and Notice of Supplemental Filing are granted.


This case concerns a FOIA dispute between Negley and the FBI, which commenced over nine years ago. This Court's September 24, 2009, Memorandum Opinion, Negley v. FBI, 658 F. Supp. 2d 50, 53-55 (D.D.C. 2009) ("2009 Opinion"), contains a detailed recitation of the case's lengthy procedural and substantive history. Since issuance of that Opinion, granting Plaintiff's Motion for Partial Summary Judgment, the Court has denied Plaintiff's Motion for Contempt [Dkt. No. 110], has denied Plaintiff's Motion for Reconsideration [Dkt. No. 125], and has granted Defendant's Motion for Summary Judgment [Dkt. No. 126].

To briefly summarize, Negley submitted a FOIA request on January 16, 2002, to the FBI's San Francisco Field Office ("SFFO") seeking "a copy of any records about [him] maintained at and by the FBI in [the San Francisco] Field Office." Negley, 658 F. Supp. 2d at 53. Thereafter, there was much litigation between the parties. On September 24, 2009, this Court granted Plaintiff's Motion for Partial Summary Judgment and denied Defendant's Second Motion for Summary Judgment, finding that the FBI's search for responsive documents was inadequate and that its production of documents was insufficient. Id.


Under 5 U.S.C. § 552(a)(4)(E), district courts "may assess against the United States reasonable attorneys' fees and other litigation costs reasonably incurred in any case under this section in which a complainant has substantially prevailed." Our Court of Appeals, in a number of different opinions, has directed the district court to first determine whether a FOIA plaintiff "has substantially prevailed" and is therefore "eligible" for attorneys' fees. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524-25 (D.C. Cir. 2011); Davy v. Central Intelligence Agency, 550 F.3d 1155, 1158 (D.C. Cir. 2008).

Once the district court determines that a FOIA plaintiff has substantially prevailed, it must

then, in the exercise of its discretion, determine whether that litigant is "entitled" to attorneys' fees. Davy, 550 F.3d at 1158. In making that decision, the Court must examine and weigh at least four different factors: (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) the reasonableness of the agency's withholding of the requested documents. Id. at 1159; Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992). The Court will address, first, whether Negley is "eligible" for attorneys' fees, i.e., whether he substantially prevailed, and, second, if so, whether he is "entitled" to such an award based upon the four criteria just enumerated.

A. Has Negley "Substantially Prevailed"?

In a refreshing burst of candor, the FBI concedes, albeit reluctantly, that Plaintiff has "prevailed" with regard to those provisions of the 2009 Opinion ordering the disclosure of File S-1575; searches of the ICM database and the ECF database; the deposition of David Hardy (for the second time in this litigation) at the FBI's expense; searches of additional specific sources of potentially responsive documents; production, within 90 days, of all responsive documents along with a related Vaughn Index; and submission, within 90 days, of a detailed affidavit explaining the searches conducted and the bases for any redaction and/or withholdings (including permission for Negley to depose the affiant). See Order 2-4, Sept. 24, 2009 [Dkt. No. 90]; Def.'s Opp'n 6-9 . In addition to prevailing on these issues in September 2009, Plaintiff prevailed, on January 8, 2007, when the Court ordered the FBI to produce Serial 3041 in its entirety [Dkt. No. 43]; in doing so, the FBI also produced responsive documents from Serial 3865, as well as additional documents that it located during a "hand search" which had not been conducted previously. Negley, 658 F. Supp. 2d at 54. As the Court stated in its 2009 Opinion, "[t]his extremely tardy disclosure has never been explained." Id. at 59.

In short, it is clear that the Plaintiff has "substantially prevailed" in obtaining most of the documents responsive to his January 16, 2002, request.*fn1

B. Is Negley Entitled, Under the Applicable Case Law, to an Award of Attorneys' Fees?

In Davy, the Court of Appeals reaffirmed that "'[t]he touchstone of a court's discretionary decision under section 552(a)(4)(E) must be whether an award of attorney fees is necessary to implement the FOIA. A grudging application of this provision, which would dissuade those who have been denied information from invoking their right to judicial review, would be clearly contrary to congressional intent.'" 550 F.3d at 1158 (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 715 (D.C. Cir. 1977)).

The Court emphasized that the statutory provision for attorneys' fees was not enacted to reward a litigant who successfully obtained disclosure of information that the Government wished to withhold, but "instead 'had a more limited purpose -- 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.'" Davy, 550 F.3d at 1158 (quoting Nationwide Bldg. Maint., Inc., 559 F.2d at 711). ...

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