United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE
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.
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.
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].
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.
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).
NSC moved for attorney fees in the amount of $14,
444.90. See Mot. for Fees [Dkt. 55];
Reply [Dkt. 63]. 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.
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].
LEGAL STANDARD AND ANALYSIS
Eligibility and Entitlement to Fees
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).
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.
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).
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 . . . .”). 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