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Citizens for Responsibility & Ethics in Washington v. United States Department of Justice

United States District Court, D. Columbia.

March 18, 2015


Decided March 17, 2015.

For Citizens For Responsibility And Ethics in Washington, Plaintiff: Anne L. Weismann , LEAD ATTORNEY, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Washington, DC USA.

For U.S. Department of Justice, Defendant: Heather D. Graham-Oliver, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.


RICHARD J. LEON, United States District Judge.

[# 27]

Plaintiff Citizens for Responsibility and Ethics in Washington (" CREW" or " plaintiff') moved to recover $25,922.12 in attorney's fees and costs pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552(a)(4)(E)(i), and Federal Rule of Civil Procedure 54(d) against defendant United States Department of Justice (" DOJ" or " defendant" ). See Pl.'s Mot. for an Award of Att'ys' Fees and Costs (" Pl.'s Mot." ) [Dkt. #27]. In February 2011, plaintiff submitted a FOIA request seeking records regarding the government's investigation of the late Congressman John Murtha (D-PA) and his associates. Compl. ¶ 1 [Dkt. #1]. In the months following the commencement of this lawsuit, the defendant released certain previously withheld documents, prompting plaintiffs claim that it was both eligible for, and entitled to, the attorneys' fees and litigation costs sought in the instant motion. See generally Mem. in Supp. of Pl.'s Mot. for Award of Att'ys' Fees and Costs (" Pl.'s Mem." ) [Dkt. #27-1]. For the reasons set forth below, plaintiff's motion is DENIED.


Plaintiff is a non-profit corporation " committed to protecting the rights of citizens to be informed about the activities of government officials." Compl. ¶ 3. To advance this credo, plaintiff seeks to disseminate " information about public officials and their actions" in order to inform public discourse. Compl. ¶ 3. This case stems from plaintiff's efforts to obtain investigatory records concerning former Congressman John Murtha (" Murtha" ) and his associates. See Compl. ¶ 1. A longtime " champion of earmarks," Congressman Murtha was dubbed by some the " King of Pork" for a career spent doling out billions in federal money to fund lawmakers' " pet projects." See Pl.'s Mem. at 2-3. Murtha's largesse, however, proved to be his downfall. As a result of his brand of pork-barrel politics, the Congressman, and various of his associates, fell under the scrutiny of both the DOJ and the Office of Congressional Ethics. This led to several high-profile investigations into, among others, former Murtha aide Paul Magliocchetti, Murtha associates William and Ronald Kuchera, and Murtha proté gé Rep. Peter J. Visclosky (D-Ind.). In addition, the FBI and DOJ investigated several corporate entities alleged to have received millions in federal earmarks at the Congressman's behest, including Kuchera Industries and Concurrent Technologies. See PI.' s Mem. at 2-3. These investigations bore fruit. Although the Congressman, who died in 2010, was never indicted, several of his associates were charged with criminal conduct. In 2009, for example, Richard Ianiere, the former CEO Coherent Systems International Corporation, a defense contractor with ties to the Congressman, pled guilty to accepting kickbacks. PI.' s Mot. Ex. D [Dkt. #27-2]. In 2011, Paul Magliocchetti received a 27-month prison sentence for illegally funneling campaign contributions to candidates and political action committees. Pl.'s Mot. Ex. C [Dkt. #27-2]. And in 2013, William and Ronald Kuchera, who owned and managed Kuchera Defense Systems, pled guilty to federal fraud and conspiracy charges. Pl.'s Mot. Ex. D.

On February 7, 2011, in the wake of these highly publicized investigations, plaintiff sent FOIA requests to the FBI, the DO] Criminal Division, and the Executive Office for United States Attorneys (" EOUSA" ) seeking: " witness statements, investigation reports, prosecution memoranda, and [FBI] 302 reports ... related to several investigations in which the late Rep. John Murtha (D-PA) is named or otherwise identified." Pl.'s Mot. Ex. E [Dkt #27-2]; Decl. of David Hardy (" Hardy Decl." ) ¶ 5 [Dkt. #31-1]. The FBI promptly acknowledged plaintiffs request and stated, in a letter dated February 10, 2011, that it was searching for responsive records. Hardy Decl. ¶ 6; Def.'s Opp'n to Pl.'s Mot. for Att'ys' Fees (" Def.'s Opp'n" ), Ex. B [Dkt. #31-2]. The EOUSA and the DOJ Criminal Division followed suit, confirming receipt of plaintiff's requests by letters dated February 14, 2011 and February 16, 201 1, respectively. See CompI. ¶ ¶ 13,21.

On March 1, 2011, less than a month after plaintiff s request, the FBI informed plaintiff that it was withholding the requested records pursuant to 5 U.S.C. § 552(b)(7)(A) (" Exemption 7(A)" ), which shields from disclosure records that could reasonably be expected to interfere with ongoing enforcement proceedings.[1] See Compl. ¶ 16; Hardy Decl. ¶ 7; Def.'s Opp'n Ex. C [Dkt. #31-2]. Plaintiff appealed the denial of its request through the FBI's administrative appeals process. CompI. ¶ 17; Hardy Decl. ¶ 8; Def.'s Opp'n Ex. D [Dkt. #31-2]. However, on June 16,2011, before any administrative decision was rendered, plaintiff commenced the instant action to enforce its requests. See generally Compl.

In early September 2011, after portions of the investigations pertaining to Congressman Murtha closed, the FBI determined that FOIA Exemption 7(A) no longer applied to all of the requested records. Hardy Decl. ¶ 12. Indeed, a review of pertinent records revealed that Congressman Murtha " was a main subject" in certain responsive files and merely a " cross-reference" --or collateral party--in the files of third party subjects. Hardy Decl. ¶ 12. Although the FBI was able to segregate certain information in Congressman Murtha's main investigative file for production, it continued to withhold portions of " cross-reference files" that " could reasonably be expected to interfere with ongoing criminal investigations of other third parties." Hardy Decl. ¶ 12.

On October 14, 2011, after reviewing 124 pages of responsive material, the FBI released to plaintiff 4 pages in full, withheld 4 pages in full, and released 116 pages in part. Hardy Decl. ¶ 13; Def.'s Opp'n Ex. G [Dkt. #31-2]. On November 14,2011, following a further review of its files, the FBI made a second release of documents. Hardy Decl. ¶ 14; Def.'s Opp'n Ex. H [Dkt. #31-2]. Of the 142 pages examined during this iteration of its review, the FBI released to plaintiff 6 pages in full, withheld 20 pages of duplicate materials, and released 116 pages in part. Hardy Decl. ¶ 14; Def.'s Opp'n Ex. H. The FBI's review continued into early 2012. On January 27,2012, after reviewing 194 pages of responsive records, the FBI notified plaintiff of its decision to withhold all 194 pages in full under a kaleidoscope of FOIA exemptions. Hardy Decl. ¶ 15; Def.'s Opp'n Ex. I [Dkt. #31-2]. That same day, however, the FBI released 50 pages in part of material that had been referred by the DOJ Criminal Division for review. Hardy Decl. ¶ 16; Def.'s Opp'n Ex. J [Dkt. #31-2].

Unsatisfied with the FBI's production, plaintiff challenged the FBI's claimed withholdings on 200 pages of material. See Decl. of Anne L. Weismann (" Weismann Decl." ) ¶ 10 [Dkt. #27-3]. Following a June 2012 conference between the parties, the FBI furnished " further detail about its search and the steps it took to determine if documents should be exempt under FOIA exemption 7(A)." Weismann Decl. ¶ 10. Plaintiff was not, however, satisfied, and continued to contest certain of defendant's claimed exemptions. See Weissman Decl. ¶ ¶ 12-13. As a result of their ongoing negotiations, on or about January 11, 2013, the FBI made another discretionary release of information, identifying previously redacted public sources on eight pages of material. Hardy Decl. ¶ 17. In an effort to resolve the remaining issues, the parties entered mediation. See Order of Sept. 13,2012 [Dkt. #18]. After mediation, the FBI released an additional phrase on one page of material. Hardy Decl. ¶ 18.

Neither the EOUSA nor the 001 Criminal Division directly produced documents to plaintiff. Weismann Decl. ¶ 5. The Criminal Division advised plaintiff in July 2012 that it had located only one responsive document, which it withheld in full pursuant to various FOIA exemptions. Weisman Decl. ¶ 5. In December 2012, the EOUSA advised plaintiff that it had completed its search for responsive documents, but declined to produce any materials, citing numerous FOIA exemptions. Weisman Decl. ¶ ¶ 7-8. Plaintiff does not contest any of these asserted withholdings. See Pl.'s Mem. at 9. Rather, the sole issue before this Court is plaintiff ...

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