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National Security Counselors v. Central Intelligence Agency

United States District Court, District of Columbia

February 12, 2014



ROSEMARY M. COLLYER, District Judge.

National Security Counselors seeks an award of attorney's fees after prevailing in a case against the Central Intelligence Agency and Department of Defense under the Freedom of Information Act. Defendants oppose the petition, arguing that National Security Counselors hardly prevailed, seeks exaggerated fees, and is not a separate entity from its lawyer, Kelly B. McClanahan. The Court agrees that the record does not support Mr. McClanahan's asserted attorney-client relationship with National Security Counselors. Of course, a lawyer can submit FOIA requests and litigate their denial, but he cannot claim fees without a true, independent client. There is no such client here. Accordingly, the Court will deny the request for costs and attorney's fees.


In 2010, Kelly B. McClanahan submitted four Freedom of Information Act (FOIA), 5 U.S.C. § 552, requests on behalf of National Security Counselors: two to the Central Intelligence Agency (CIA), and two to the Defense Intelligence Agency (DIA), a component of the Department of Defense (DOD) (collectively, Defendants). Mr. McClanahan signed each request on National Security Counselors letterhead. See Defs. Opp'n [Dkt. 59], Ex. A (FOIA Requests) [Dkt. 59-1] at 2-5, 8-10, 12-15, 19-21.

Mr. McClanahan's first FOIA request was submitted to CIA on April 23, 2010, requesting "copies of all current Central Intelligence Agency... regulations, policy statements, guidelines, memoranda, training materials, handbooks, manuals, checklists, worksheets, instructions, and similar documents on the topic of Mandatory Declassification Review...." Id. at 3. His second FOIA request to CIA was submitted on November 30, 2010, requesting the "special procedures for the [Mandatory Declassification] [R]eview of information pertaining to intelligence activities (including special activities), or intelligence sources or methods developed by the Director of Central Intelligence pursuant to Sections 3.6(e) of Executive Order 12, 958 and 3.5(e) of Executive Order 13, 292." Id. at 8.

On December 10, 2010, Mr. McClanahan submitted a third FOIA request to DIA, seeking records that were responsive to a FOIA request submitted by Michael Ravnitzky in 1997. Id. at 12. On the same day, he submitted a fourth FOIA request, again to DIA. This time, he requested all records pertaining to the administrative processing of Mr. Ravnitzky's FOIA request. Id. at 19.

A. FOIA Processing and Litigation

National Security Counselors filed a Complaint on February 28, 2011, which included each FOIA request as a separate Count. See Compl. [Dkt. 1] ¶¶ 7-33. Defendants filed a partial motion to dismiss, arguing, inter alia, that National Security Counselors failed to exhaust administrative remedies with respect to its claim against twelve "John Doe" agencies, that is, unidentified agencies that created some of the records at issue in the Complaint. Mot. to Dismiss [Dkt. 9] at 5-7. On July 12, 2011, National Security Counselors filed an Amended Complaint omitting allegations against "John Doe" agencies that had not been administratively exhausted. See Am. Compl. [Dkt. 18].

One year later, the parties notified the Court that they had settled Count Three of the Amended Complaint, i.e., Mr. McClanahan's third FOIA request to DIA. See Joint Status Report [Dkt. 33] ¶ 4.

On March 8, 2013, Defendants moved for summary judgment on the remaining Counts, which included Mr. McClanahan's first and second FOIA requests to CIA and his fourth FOIA request to DIA. See Mot. for Summ. J. [Dkt. 45]. In their motion, Defendants argued that (1) CIA conducted a reasonable search and produced documents responsive to the first FOIA request; (2) Defendants satisfied the second FOIA request because, after conducting reasonable searches, CIA did not locate any responsive documents; and (3) Defendants properly withheld certain information pursuant to FOIA exemptions. Id. at 10-35. In a footnote, Defendants noted that the parties had "settled the substantive issues related to [Mr. McClanahan's fourth FOIA request] sent to DIA." Id. at 6 n.1.

On April 16, 2013, National Security Counselors responded with a Notice of Voluntary Dismissal, which noted that it was "satisfied with the information provided in Defendants' filings." Notice of Voluntary Dismissal [Dkt. 51] at 1. The Court granted the Notice of Voluntary Dismissal on April 17, 2013. See April 17, 2013 Minute Order. The instant fee petition followed thereafter.

B. Mr. McClanahan and National Security Counselors

Mr. McClanahan has focused his legal career on the intersection between national security law and information and data privacy law. Petition for Costs and Fees [Dkt. 55], Ex. A (McClanahan Decl.) [Dkt. 55-1] ¶ 2. He obtained a Master of Arts in Security Studies from Georgetown University in 2003, received his Juris Doctor from American University in 2007, and then earned a Master of Laws (LL.M.) in national security law from Georgetown University Law Center in 2009. Id. From 2007 to 2009, Mr. McClanahan was of counsel to the Law Office of Mark S. Zaid, P.C., where he specialized in national security law, "including whistleblowers, security clearances, prepublication review, and FOIA/[Privacy Act] litigation." Id., Ex. B (McClanahan Resume) [Dkt. 55-2] at 2. He was of counsel to Kohn, Kohn, & Colapinto, LLP, from 2009 to 2012, with the same national security specialization. Id. at 1.

The parties agree to all relevant facts concerning National Security Counselors's charter and incorporation. On August 6, 2009, Mr. McClanahan chartered National Security Counselors as an unincorporated association in the Commonwealth of Virginia. Pl. Reply [Dkt. 61] at 4; Defs. Opp'n at 5. National Security Counselors was incorporated on January 3, 2011, under the name "National ...

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