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National Security Counselors v. Central Intelligence Agency

United States District Court, District of Columbia

May 25, 2016




         National Security Counselors seeks attorney fees and costs after prevailing in part in a case against the Central Intelligence Agency and Department of Defense under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Court denied the motion, holding that because National Security Counselors and its counsel were one and the same, there was no attorney-client relationship and no attorney fees could be awarded. See Mem. Op. [Dkt. 67] at 8-9. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. National Security Counselors now seeks fees for the original litigation and for the appeal and fee litigation. Because National Security Counselors prevailed only in part and the fees it seeks are not reasonable, the fee petition will be granted in part and denied in part.

         I. FACTS

         National Security Counselors (NSC) submitted four requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The first was submitted on April 23, 2010, to the Central Intelligence Agency (CIA), requesting copies of current CIA “regulations, policy statements, guidelines, memoranda, training materials, handbooks, manuals, checklists, worksheets, instructions, and similar documents on the topic of Mandatory Declassification Review . . . .” Defs. Opp’n [Dkt. 59], Ex. A (FOIA Requests) [Dkt. 59-1] at 3. The second was submitted to CIA on November 30, 2010, seeking 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. The third was submitted on December 10, 2010, to the Defense Intelligence Agency (DIA), a component of the Department of Defense (DOD), calling for records that were responsive to a FOIA request submitted by Michael Ravnitzky in 1997 regarding a secret scientific intelligence board. Id. at 12. On the same day, a fourth FOIA request was submitted to DIA, pursuing records concerning the administrative processing of Mr. Ravnitzky’s FOIA request to determine why the request had taken over a decade. Id. at 19.

         On February 28, 2011, NSC filed a Complaint against the CIA and DOD (collectively, Defendants), which included the first through fourth FOIA requests as Counts 1 through 4, respectively. See Compl. [Dkt. 1] ¶¶ 7-33. Defendants moved for partial dismissal due to the fact that NSC failed to exhaust administrative remedies with respect to its claim against twelve unidentified “John Doe” agencies that that had created some of the records at issue. Mot. to Dismiss [Dkt. 9] at 5-7. On July 12, 2011, NSC 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 regarding the third FOIA request. See Joint Status Report [Dkt. 33] ¶ 4. On March 8, 2013, Defendants moved for summary judgment on the remaining counts. See Mot. for Summ. J. [Dkt. 45]. Defendants argued that (1) CIA conducted a reasonable search and produced documents responsive to the first FOIA request; (2) CIA satisfied the second FOIA request because, after conducting reasonable searches, it did not locate any responsive documents; and (3) Defendants properly withheld certain information pursuant to FOIA exemptions. Id. at 10-35. Defendants also noted that the parties had “settled the substantive issues” related to the fourth FOIA request sent to DIA. Id. at 6 n.1.

         On April 16, 2013, NSC responded with a Notice of Voluntary Dismissal, which noted that it was satisfied with the information provided in Defendants’ filings and that “the value of any further information it could receive outweigh[ed] the work necessary to receive it.” Notice of Voluntary Dismissal [Dkt. 51] at 1; see also Minute Order 4/17/13 (approving voluntary dismissal).

         Subsequently, NSC moved for attorney fees in the amount of $14, 444.90.[1] See Mot. for Fees [Dkt. 55]; Reply [Dkt. 63].[2] Defendants opposed. See Opp’n [Dkt. 59]; Surreply [Dkt. 66]. The Court denied the motion for fees, finding that NSC was not entitled to fees because it was not a separate entity from its lawyer, Kelly McClanahan. The Circuit disagreed and remanded the case for further proceedings.

         NSC supplemented its request to add substantial fees attributable to the fee litigation, and it now seeks a total of $91, 750 in attorney fees plus costs. See Supp. Pet. [Dkt. 81] at 3; Supp. Reply [Dkt. 86]. Defendants oppose. See Supp. Opp’n [Dkt. 84].


         A. Attorney Fees

         1. Eligibility and Entitlement to Fees

         Under FOIA, a court may award reasonable attorney fees to a claimant who substantially prevails in FOIA litigation. 5 U.S.C. § 552(a)(4)(E). The decision to award attorney fees is committed to the discretion of the district court. Tax Analysts v. Dep’t of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992). “The award of attorney’s fees to successful FOIA plaintiffs was intended to relieve plaintiffs with legitimate claims of the burden of legal costs; it was not intended as a reward for successful claimants or as a penalty against the government.” Falcone v. IRS, 714 F.2d 646, 647 (6th Cir. 1983). To obtain attorney fees under FOIA, a plaintiff must demonstrate both (1) eligibility and (2) entitlement. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014).

         To be eligible for fees, a plaintiff must have “substantially prevailed.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984). A plaintiff “substantially prevailed” (a) if he won relief through a judicial order, an enforceable written agreement, or a consent decree or (b) if he obtained relief through a “voluntary or unilateral change in position by the agency, ” see Davis v. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010), provided that the request for records was not “insubstantial, ” see 5 U.S.C. § 552(a)(4)(E)(ii). To show that he substantially prevailed, 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.” Contreras v. Dep’t Justice, 729 F.Supp.2d 167, 170 (D.D.C. 2010).

         To determine whether a plaintiff is “entitled” to fees, courts examine: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding of the requested records. Tax Analysts, 965 F.2d at 1093-94. The first three factors aid a court in distinguishing between requesters who seek documents for public informational purposes and who may need an incentive to litigate and those who seek documents for private advantage and who typically do not need an incentive. Davy v. CIA, 550 F.3d 1155, 1160 (D.C. Cir. 2008). The last factor, “the reasonableness of the agency’s withholding, ” can be dispositive--if the Government was correct as a matter of law to refuse to release records, the plaintiff is not entitled to fees. Id. at 1158. Balancing these factors is within the discretion of the district court. Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C. Cir. 2008).

         The parties agree that NSC prevailed on the first FOIA request. See Mot. for Fees at 2 (asserting that CIA released a significant number of records responsive to the first request); Opp’n at 12 (“plaintiff substantially prevailed on its first claim . . . .”).[3] In contrast, NSC did not prevail on the second FOIA request, as CIA searched but found no responsive records. See Contreras, 729 F.Supp.2d at 168 n.3 (when agency did not find any records, FOIA plaintiff cannot show that any records were improperly withheld). NSC agrees that ordinarily this would not be considered a “win, ” but argues that the request inured to the public interest because the second FOIA request caused CIA to admit that it had not developed special procedures ...

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