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National Security Counselors v. Central Intelligence Agency

United States District Court, District of Columbia

November 21, 2017

NATIONAL SECURITY COUNSELORS, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant. NATIONAL SECURITY COUNSELORS, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al. Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         After over six years of litigation, involving three rounds of dispositive motions and three memorandum opinions, the plaintiff, National Security Counselors (“NSC”), seeks a total of $66, 944.83 for attorneys' fees and costs in Civil Action No. 11-444 (“NSC 444”) and Civil Action No. 11-445 (“NSC 445”), as the prevailing party, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E).[1] See NSC 444, Pl.'s Pet. Att'ys' Fees (“NSC 444 Pl.'s Pet.”), ECF No. 107; NSC 445, Pl.'s Pet. Att'ys' Fees (“NSC 445 Pl.'s Pet.”), ECF No. 101; NSC 444, Bill of Costs (“NSC 444 Pl.'s Bill of Costs”), ECF No. 105; NSC 445, Bill of Costs (“NSC 445 Pl.'s Bill of Costs”), ECF No. 99.[2] The defendants, the Central Intelligence Agency (“CIA”) in NSC 444, and the CIA, the Defense Intelligence Agency (“DIA”), the Department of Justice (“DOJ”), the Department of State (“State”), the National Security Agency (“NSA”), and the Office of the Director of National Intelligence (“ODNI”), in NSC 445, challenge the plaintiff's eligibility and entitlement to attorney's fees and costs and, in the alternative, seek a reduction the amount of fees requested by the plaintiff. See NSC 444, Def.'s Opp'n Pl.'s Pet. Att'ys' Fees (“NSC 444 Def.'s Opp'n Fees”) at 1-3, ECF No. 110; NSC 445, Defs.' Opp'n Pl.'s Pet. Att'ys' Fees (“NSC 445 Defs.' Opp'n Fees”) at 1-3, ECF No. 104. The defendants also seek to reduce the plaintiff's recovery for litigation costs. NSC 444, Def.'s Opp'n Pl.'s Bill of Costs (“NSC 444 Def.'s Opp'n Costs”) at 2-5, ECF No. 109; NSC 445, Defs.' Opp'n Pl.'s Bill of Costs (“NSC 445 Defs.' Opp'n Costs”) at 2-3, ECF No. 103. For the following reasons, the plaintiff's petitions are GRANTED in part and DENIED in part.

         I. BACKGROUND

         The relevant factual and procedural history is summarized only to the extent necessary to evaluate the pending fee petitions, as the facts have been recited in ample detail in opinions resolving the parties' dispositive motions. See Nat'l Sec. Counselors v. CIA (NSC III), 206 F.Supp.3d 241, 246-248 (D.D.C. 2016); Nat'l Sec. Counselors v. CIA (NSC II), 960 F.Supp.2d 101, 118-131 (D.D.C. 2013); Nat'l Sec. Counselors v. CIA (NSC I), 898 F.Supp.2d 233, 242- 251 (D.D.C. 2012). In February 2011, the plaintiff, a Virginia-based non-profit organization, filed three lawsuits, Civil Action No. 443 (“NSC 443”), NSC 444, and NSC 445, which together alleged that six federal intelligence agencies improperly processed records requests under FOIA and maintained policies and practices violating FOIA, 5 U.S.C. § 552 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. See NSC I, 898 F.Supp.2d at 241-42.

         In NSC 443, the plaintiff asserted three counts against the CIA. See generally NSC 443, Pl.'s Compl. (“NSC 443 Compl.”), ECF No. 1. Counts One and Two, respectively, challenged the CIA's response to a records request that had been assigned to the plaintiff, id. ¶¶ 5-17, and the CIA's overall policy of refusing to recognize assigned rights to FOIA requests, id. ¶¶ 18-28. The two counts survived the CIA's Motion to Dismiss in NSC I, 898 F.Supp.2d 233 at 290, and summary judgment was granted to the plaintiff with respect to both counts in NSC II, 960 F.Supp.2d at 208. With respect to Count Three, which challenged the CIA's response to a separate FOIA request, NSC 443 Compl. ¶¶ 29-33, summary judgment was granted in part and denied in part to the CIA in NSC II, 960 F.Supp.2d at 208, and, in NSC III, the plaintiff's Motion for Partial Reconsideration was denied, while summary judgment was granted in all other respects on this count to the CIA, as conceded, NSC III, 206 F.Supp.3d at 288-89. The plaintiff's two motions to compel production of two documents, which the plaintiff had turned over to the Federal Bureau of Investigations (“FBI”) as potentially classified and expected to be returned with the classified information redacted, were granted prior to NSC I, see NSC 443, Min. Order (dated Aug. 15, 2012); NSC 443, Order (“NSC 443 Order to Compel Compliance”), ECF No. 34, and the plaintiff's “non-frivolous” Motion for Sanctions against the CIA, stemming from the agency's handling of the two documents was denied in NSC II, 960 F.Supp.2d at 139, 208.[3]

         In NSC 444, the plaintiff asserted twenty-one counts against the CIA. See generally NSC 444, Pl.'s First Am. Compl. (“NSC 444 FAC”), ECF No. 6. Of the thirteen policy-or-practice claims, twelve were dismissed in NSC I, but Count Twenty-One, which challenged the CIA's alleged Cut-Off Date Policy under FOIA, was allowed to go forward. NSC I, 898 F.Supp.2d at 290-91 (granting CIA's partial Motion to Dismiss with respect to Counts Two through Seven and Eleven through Sixteen and denying CIA's Motion to Dismiss with respect to Count Twenty-One). Summary judgment was later granted to the CIA on Count Twenty-One, as well as Counts One, Eight, Nine, and Ten, but denied as to Counts Seventeen, Eighteen, and Twenty, which challenged the CIA's responses to different records requests. NSC II, 960 F.Supp.2d at 208-09; see also Id. at 118 n.3 (explaining Count Nineteen was voluntarily dismissed). In NSC III, only Counts Eighteen and Twenty remained in dispute, and summary judgment was granted to the CIA with respect to the remaining issues on those two counts and in all other respects to the CIA, as conceded. NSC III, 206 F.Supp.3d at 289.

         The plaintiff also asserted twenty-one counts in NSC 445, addressing the agencies' responses to eleven different FOIA records requests, as well as policies or practices that pertained to over twenty other FOIA records requests. See generally NSC 445, Pl.'s First Am. Compl. (“NSC 445 FAC”), ECF No. 7. In NSC I, nine of the counts addressing policy-or-practice claims, including the CIA's Glomar response policy, were dismissed. NSC I, 898 F.Supp.2d at 291 (granting CIA's Motion to Dismiss with respect to Counts Four, Eleven, Fourteen through Nineteen and Twenty-One). In NSC II, summary judgment was (i) denied in part and granted in part to the CIA on Counts One, Two, Three, and Seven; (ii) denied in part and granted in part to DIA on Count Five; (iii) denied to ODNI on Count Six; (iv) denied in part and granted in part to DOJ on Count Eight; (v) denied in part and granted in part to State on Count Nine; (vi) denied to NSA on Count Ten; (vii) granted to CIA on Count Twelve; (viii) denied to CIA on Count Thirteen; and (ix) granted to the plaintiff on Count Twenty, which alleged a general FOIA violation due to CIA's refusal to invoke exemptions with particularity. NSC II, 960 F.Supp.2d at 209-10. In NSC III, summary judgment was granted on all remaining counts to the defendants. NSC III 206 F.Supp.3d at 289-90.[4]

         Following the above decisions, the plaintiff filed the pending petitions for attorney's fees, now seeking $50, 967.80 in NSC 444 (including fees for NSC 443) and $14, 371.20 in NSC 445. NSC 444, Pl.'s Errata (“NSC 444 Pl.'s Errata”), ECF No. 115; NSC 445, Pl.'s Errata (“NSC 445 Pl.'s Errata”), ECF No. 109. These requested fees reflect only a portion of the overall hours expended in this litigation, which hours were reduced based on plaintiff's counsel's assessment of the counts on which the plaintiff prevailed. NSC 444 Pl.'s Pet., Attach. 3, Decl. of Kelly McClanahan, Esq. (“NSC 444 First McClanahan Decl.”) ¶ 12, ECF No. 107-3; NSC 445 Pl.'s Pet., Attach. 3, Decl. of Kelly McClanahan, Esq. (“NSC 445 First McClanahan Decl.”) ¶ 12, ECF No. 101-3. NSC also filed Bills of Costs in NSC 444 and 445, seeking $1, 255.83 and $350.00, respectively. NSC 444 Pl.'s Bill of Costs at 1; NSC 445 Pl.'s Bill of Costs at 1. The defendants argue the fee petitions “should be denied, ” or in the alternative, the plaintiff's award “should be significantly reduced, ” as should the plaintiff's award of costs. See NSC 444 Def.'s Opp'n Fees at 1; NSC 445 Defs.' Opp'n Fees at 1; NSC 444 Def.'s Opp'n Costs at 1; NSC 445 Defs.' Opp'n Costs at 2-3. The plaintiff's requests for attorney's fees and costs are considered below.

         II. LEGAL STANDARD

         The FOIA authorizes the award of attorneys' fees reasonably incurred by a plaintiff in litigation to obtain “the production of any agency records improperly withheld, ” 5 U.S.C. § 552(a)(4)(B), when “the complainant has substantially prevailed, ” id. § 552(a)(4)(E)(i). The D.C. Circuit has construed this statutory provision as “naturally divid[ing] the attorney-fee inquiry into two prongs, which our case law has long described as fee ‘eligibility' and fee ‘entitlement.'” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006)). Thus, to obtain attorneys' fees under the FOIA, the plaintiff must demonstrate both eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014); see also Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984) (“[E]ligibility alone is not enough. . . . the complainant must [also] show that he or she is ‘entitled' to an award.”) (citation omitted). After establishing eligibility and entitlement, the plaintiff must then demonstrate the reasonableness of the calculation in its fee request. See Covington v. District of Columbia, 57 F.3d 1101, 1107-08 (D.C. Cir. 1995).

         To satisfy the first requirement of eligibility for attorneys' fees, a claimant must show that he or she “substantially prevailed” in the underlying FOIA litigation. See 5 U.S.C. § 552(a)(4)(E)(i). The statute provides that the claimant “substantially prevailed” by gaining relief from either: “(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” Id. § 552(a)(4)(E)(ii). Under the first prong, the claimant substantially prevails when “‘the order changed the legal relationship between [the parties], ' and . . . the plaintiff ‘was awarded some relief on the merits of his claim.'” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367 (D.C. Cir. 2008) (quoting Davy v. CIA (Davy I), 456 F.3d 162, 165 (D.C. Cir. 2006) (internal quotation marks and citation omitted)). Under the second prong, or “catalyst theory, ” attorney's fees may be awarded solely due to a change in an agency's position. Indeed, in such a situation, “a plaintiff ‘substantially prevailed' . . . when he substantially caused the government to release the requested documents before final judgment.” Brayton, 641 F.3d at 524-25; accord Davis v. U.S. Dep't of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010) (“FOIA plaintiffs [are] eligible for a fee award if the lawsuit substantially caused the agency to release the requested records.”); Burka v. U.S. Dep't of Health & Human Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998) (holding that party claiming attorney's fees “must first establish eligibility by showing that the lawsuit was reasonably necessary and the litigation substantially caused the requested records to be released”); Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981) (finding that whether a party “substantially prevailed” is “largely a question of causation, ” asking “did the institution and prosecution of the litigation cause the agency to release the documents obtained during the pendency of the litigation?”).[5]

         If the plaintiff has “substantially prevailed and thus may receive fees, ” then “the court proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees.” Brayton, 641 F.3d at 524 (emphasis in original) (quotation marks and citations omitted). “This circuit has long applied a multi-factor standard” involving consideration of “[f]our non-exclusive 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.” McKinley, 739 F.3d at 711 (quoting Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)); see also Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C. Cir. 1995). “No one factor is dispositive, ” except that “if the Government's position is correct as a matter of law, that will be dispositive.” Davy v. CIA (Davy II), 550 F.3d 1155, 1159, 1162 (D.C. Cir. 2008). “The sifting of those criteria over the facts of a case is a matter of district court discretion.” Tax Analysts, 965 F.2d at 1094 (citing Church of Scientology, 653 F.2d at 590); see also Judicial Watch, 522 F.3d 364, 371 (D.C. Cir. 2008) (“Balancing these factors is a matter for the district court.”).

         Even if a plaintiff is eligible and entitled to fees, the plaintiff bears the burden of demonstrating that the fees sought are reasonable. See Covington, 57 F.3d at 1107 (“[A] fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates.”) (citing Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). That determination involves a three-part analysis: “(1) determination of the number of hours reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly Dep't of Health & Human Res., 532 U.S. 598, 610 (2001). Congress responded by resurrecting the catalyst theory for FOIA cases in the Open Government Act of 2007. See Davis, 610 F.3d at. 752. “The purpose and effect of this law, which remains in effect today, was to change the ‘eligibility' prong back to its pre-Buckhannon form.” Brayton, 641 F.3d at 525. rate or ‘lodestar'; and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel (SOCM), 857 F.2d 1516, 1517 (D.C. Cir. 1988) (citation omitted). Evidence pertinent to showing these elements include “the attorneys' billing practices; the attorneys' skill, experience, and reputation; and the prevailing market rates in the relevant community.” Covington, 57 F.3d at 1107; Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015). The prevailing market rate may be shown using evidence of the “attorneys' fee matrices, ” the “‘most commonly used'” of which “is the ‘Laffey Matrix'-the schedule of prevailing rates compiled in” Laffey v. Nw. Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C. 1983), aff'd in part, rev'd in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), which “sets out a general guideline for awarding attorneys' fees based on experience . . . adjusted for inflation.” Salazar, 809 F.3d at 62 (citing Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015)). The original Laffey rates, developed in the early 1980s, were supported by a “barrage of data” pertaining to attorneys' hourly charges to “fee-paying clients in employment discrimination cases” in the Washington, D.C. area. Laffey, 572 F.Supp. at 371-72.

         In the over thirty years since the Laffey Matrix was first adopted, the original matrix has spawned “competing” versions of fee schedules based on years of legal experience. Eley, 793 F.3d at 101; Salazar, 809 F.3d at 62. One version, developed by the United States Attorney's Office (“USAO”) for the District of Columbia (“USAO Laffey Matrix”), is based on the original Laffey rates, as adjusted for inflation using the Consumer Price Index for All Urban Consumers for all items in the Washington, D.C. area (“All Items CPI”). Eley, 793 F.3d at 101; Salazar, 809 F.3d at 62. The USAO applies this fee matrix, which is derived from rates approved for “work done principally in 1981-82, ” to attorney's fees incurred prior to June 1, 2015. U.S. Attorney's Office, U.S. Dep't of Justice, Laffey Matrix - 2003-2014, Explanatory Notes ¶ 3, https://www.justice.gov/sites/default/files/usao-dc/legacy/2013/09/09/LaffeyMatrix%202014.pdf (last visited Nov. 21, 2017); U.S. Attorney's Office, U.S. Dep't of Justice, USAO Attorney's Fees Matrix - 2015-2018 (“2015-18 USAO Matrix”), Explanatory Notes ¶ 4, https://www.justice.gov/usao-dc/file/796471/download (last visited Nov. 21, 2017) (“[T]he USAO rates for years prior to and including 2014-2015 remain based on the prior methodology, i.e., the original Laffey Matrix updated by the [All Items CPI] for the Washington-Baltimore area.”).

         A second “enhanced” fee schedule, approved in Salazar, 809 F.3d at 63-64, adjusts updated Laffey Matrix rates for inflation using the Legal Services Index (“LSI”) of the nationwide CPI (“LSI Laffey Matrix”).[6]

         A third fee schedule has recently been developed by the USAO based on data in a 2011 survey from ALM Legal Intelligence (“2011 ALM Survey”) of hourly lawyer rates in the D.C. metropolitan area, which rates are adjusted annually using the Producer Price Index-Office of Lawyers (“PPI-OL”) national index (“2015 USAO Matrix”). 2015-18 USAO Matrix, Explanatory Notes ¶ 2; see also Elec. Privacy Info. Ctr. v. U.S. Drug Enf't Admin. (EPIC), Civ. No. 15-00667 (CRC), 2017 WL 3049403, at *5 (D.D.C. July 18, 2017). The USAO acknowledges that methodology used in the 2015 USAO Matrix, which the USAO applies to attorney's fees incurred after May 2015, “better reflects the mix of legal services that law firms collectively offer, ” even though “it is a national index, and not a local one.” 2015-18 USAO Matrix, Explanatory Notes ¶ 3. The government, however, will not oppose use of either “an updated Laffey Matrix computed using the prior [All Items CPI] methodology . . . for periods after May 2015, ” or the use of the “new [PPI-OL based] methodology . . . to calculate reasonable attorney's fees under applicable fee-shifting statutes for periods prior to June 2015, ” id. ¶ 5. Thus, at least three alternative methods for determining the prevailing market rate for hourly attorney's fees are sanctioned by the USAO (i.e., USAO Laffey Matrix or 2015 USAO Matrix applied across the board; or USAO Laffey Matrix applied to fees incurred before June 2015 and 2015 USAO Matrix applied to fees incurred after May 2015).

         When a plaintiff seeking attorney's fees submits the required information, a presumption applies that the number of hours billed and the hourly rates are reasonable. Covington, 57 F.3d at 1109. The burden then shifts to the defendant to “provide specific contrary evidence tending to show that a lower rate would be appropriate.” Id. at 1109-10 (quoting Nat'l Ass'n of Concerned Veterans v. Sec'y of Def. (Concerned Veterans), 675 F.2d 1319, 1326 (D.C. Cir. 1982)).

         III. DISCUSSION

         The defendants challenge the plaintiff's petitions for attorney's fees on the grounds that the plaintiff is neither eligible nor entitled, and, in the alternative, the requested fees are not reasonable based on the number of hours billed and the plaintiff's reliance on the LSI Laffey Matrix to determine rates. The defendants also challenge the plaintiff's requests for costs due to insufficient documentation, inclusion of unnecessary items, and failure to account for limited success. These issues are considered seriatim below.

         A. ELIGIBILITY FOR FEE AWARDS

         In the plaintiff's view, eligibility for a fee award is established because the plaintiff substantially prevailed on all three counts in NSC 443, five counts in NSC 444, and thirteen counts in NSC 445. See NSC 444, Pl.'s Reply Supp. Mot. Att'ys' Fees (“NSC 444 Pl.'s Reply”) at 2, ECF No. 114; NSC 445, Pl.'s Reply Supp. Mot. Att'ys' Fees (“NSC 445 Pl.'s Reply”) at 2, ECF No. 108. The defendants counter that the plaintiff is not eligible for a fee award because the fee petitions “deprive[] CIA and the Court of the information needed to accurately assess the extent to which Plaintiff has substantially prevailed in this case.” NSC 444 Def.'s Opp'n Fees at 6; NSC 445 Defs.' Opp'n Fees at 5. Although the petitions lack specificity in describing precisely how the plaintiff prevailed with respect to each individual count, the fee petitions are generally based on the “significant percentage of” NSC II that favored NSC and “to a lesser degree” NSC I. NSC 444 Pl.'s Pet. at 2; NSC 445 Pl.'s Pet. at 2. Indeed, while the plaintiff was granted summary judgment on only three counts in all three cases, the plaintiff also prevailed by winning two motions to compel and causing the defendants to reverse their “position on several issues, ” perform “a search after initially making a Glomar response, ” and release “electronic records to NSC after arguing numerous times that it was simply not feasible to do so.” NSC 444 Pl.'s Pet. at 2-3; NSC 445 Pl.'s Pet. at 2-3.

         As noted, a plaintiff may substantially prevail, pursuant to § 552(a)(4)(E)(ii), under either a court-order or the catalyst theory. The former applies when a judicial order has been issued that changes the legal relationship between the parties, and the plaintiff has been awarded some relief on the merits. See Judicial Watch, 522 F.3d at 367-68; Campaign for Responsible Transplantation v. Food & Drug Admin., 511 F.3d 187, 193-94 (D.C. Cir. 2007); see also Conservation Force v. Jewell, 160 F.Supp.3d 194, 201 (D.D.C. 2016). “A court order that changes the legal relationship between the parties is one that requires a party ‘to do what the law required-something that it had theretofore been unwilling to do.'” People for the Ethical Treatment of Animals v. Nat'l Insts. of Health, 130 F.Supp.3d 156, 162 (D.D.C. 2015) (quoting Campaign for Responsible Transplantation, 511 F.3d at 196). An order requiring an agency to take an action that is not merely procedural, such as producing records by a certain date, is judicial relief on the merits that amounts to a change in the legal relationship between parties. See Judicial Watch, 522 F.3d at 367-68; Edmonds v. FBI, 417 F.3d 1319, 1324, 1326-27 (D.C. Cir. 2005). By contrast, a procedural order, such as requiring the parties to file a joint status report or an agency to update a Vaughn index, does not change the legal relationship. See Summers v. U.S. Dep't of Justice, 569 F.3d 500, 505 (D.C. Cir. 2009) (finding orders requiring parties to file status report “do not affect a court-ordered change in the legal relationship between the plaintiff and the defendant”) (internal quotation marks and citation omitted); Campaign for Responsible Transplantation, 511 F.3d at 196 (“[A]n order compelling the production of a Vaughn index, without more, is not enough to make a plaintiff a ‘prevailing party' sufficient to support a claim for attorney's fees.”); see also Conservation Force, 160 F.Supp.3d at 203 (“[A]dministrative orders that a court might issue to aid in its determination of whether the documents have been properly withheld (e.g., orders for Vaughn Indices or status reports) do not give rise to a finding of eligibility for attorneys' fees.”).

         Absent a court order that affects the parties' legal relationship, the catalyst theory is available when the plaintiff demonstrates that the litigation caused the agency to change its position voluntarily and release requested records. Brayton, 641 F.3d at 524-25; Weisberg, 745 F.2d at 1496 (explaining that, under the catalyst theory, the “party seeking such fees in the absence of a court order must show that the prosecution of the action could reasonably be regarded as necessary to obtain the information . . . and that a causal nexus exists between that action and the agency's surrender of that information”) (internal quotation marks and citations omitted). Causation, however, requires more than correlation and, thus, in the context of FOIA attorney's fees, “the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation.” Weisberg, 745 F.2d at 1496; see also Conservation Force, 160 F.Supp.3d at 205 (same). Timing is a relevant factor, but something “more than post hoc, ergo propter hoc must be shown.” Pub. Law Educ. Inst. v. U.S. Dep't of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984). For instance, the release of documents after litigation is initiated does not establish eligibility when an agency's administrative backlog caused the delay in processing, defeating a plaintiff's claim of “substantially prevailing” under the catalyst theory. See Codrea v. Bureau of Alcohol, Tobacco, Firearms & Explosives, Civ. No. 15-0988 (BAH), 2017 WL 4334119, at *4 (D.D.C. Sept. 28, 2017); Gerhard v. Fed. Bureau of Prisons, Civ. No. 16-1090 (RDM), 2017 WL 2958603, at *5 (D.D.C. July 11, 2017); Dorsen v. U.S. Sec. & Exch. Comm'n, 15 F.Supp.3d 112, 120 (D.D.C. 2014).

         The plaintiff's eligibility for the fees sought in the petitions is now evaluated under both prongs of 5 U.S.C. § 552(a)(4)(E)(ii), the court-order theory and the catalyst theory.

         1. NSC 443

         The plaintiff substantially prevailed on all three counts of NSC 443. With respect to Counts One and Two, the plaintiff substantially prevailed, as required for fees under § 552(a)(4)(E)(ii)(I), in NSC II because summary judgment was granted to the plaintiff on both counts. NSC II, 960 F.Supp.2d at 208. The counts alleged that the CIA's assignment of rights policy violated FOIA and that the CIA was required to process a FOIA request, which the plaintiff had received through an assignment. Id. at 137-48. After NSC II, the CIA was prohibited from “categorically refus[ing] to recognize the assignment of FOIA requests” and was required to “permit the plaintiff to exhaust its administrative remedies through the administrative appeals process as an assignee of the FOIA request in question.” Id. at 148. With respect to Counts One and Two, thus, the plaintiff clearly obtained judicial relief that changed the parties' legal relationship. Moreover, the defendants do not appear to dispute that, if the plaintiff is eligible for a fee award, Counts One and Two serve as a basis. See NSC 444 Def.'s Opp'n Fees at 4 (recognizing grant of summary judgment to the plaintiff on Counts One and Two in NSC 443).

         The plaintiff also substantially prevailed on Count Three, which sought Tables of Contents (“TOC”) from the CIA's in-house journal, even though summary judgment was ultimately granted to the CIA in NSC III. NSC III, 206 F.Supp.3d at 288-89. First, two motions to compel were granted that changed the legal relationship between the parties by requiring the defendant to release two documents “relevant to the plaintiff's claim in Count Three” by certain dates. NSC II, 960 F.Supp.2d at 128; see supra note 2.

         Second, the plaintiff also substantially prevailed under the catalyst theory on Count Three. In NSC II, summary judgment was denied to the CIA with respect to the agency's withholdings under Exemption 1 and Exemption 3, 5 U.S.C. § 552(b)(1), (3), as well as the CIA's refusal to produce records in an electronic format. NSC II, 960 F.Supp.2d at 208. Although the court-order theory does not apply with respect to the withholdings because the relief was procedural, see Id. at 171, 185 (giving the CIA another opportunity to establish and justify that information was properly withheld), the catalyst theory is available with respect to the part of Count Three requesting electronic records. Indeed, the CIA does not dispute that the agency “released electronic records to NSC after arguing numerous times that it was simply not feasible to do so.” NSC 444 Pl.'s Pet. at 2-3; see also NSC II, 960 F.Supp.2d at 202-04 (detailing CIA's “unclear and internally inconsistent” attempts to explain why it would not produce the electronic records); NSC 444, Pl.'s Not. Withdrawal Cross-Mots. Part. Summ. J. (“NSC 444 Pl.'s Not. Withdrawal”) at 1, ECF No. 86 (explaining government's ultimate release of electronic records). Without any other explanation for the CIA's declination initially to produce the records in the electronic format, the litigation appears to have caused the CIA's changed policy, and the catalyst theory applies. Given the plaintiff's success on Count Three with respect to the motions to compel and the electronic records production, the plaintiff has substantially prevailed on Count Three and is thus eligible for a fee award at least for the claims in NSC 443. See Am. Immigration Council v. U.S. Dep't of Homeland Sec., 82 F.Supp.3d 396, 404 (D.D.C. 2015) (“To be eligible for fees, a complainant must only substantially-not completely-prevail.”) (emphasis in original).

         2. NSC 444

         The plaintiff contends that eligibility is established with respect to Counts Seventeen through Twenty-One in NSC 444, see NSC 444 Pl.'s Reply at 2, but eligibility is only established with respect to Counts Seventeen, Eighteen, and Twenty-One under the catalyst theory.

         First, the plaintiff prevailed under the catalyst theory on Count Seventeen, which requested certain records related to the processing of earlier FOIA requests, and Count Eighteen, which sought copies of CIA records pertaining to search tools and indices, for the same reason the plaintiff substantially prevailed on NSC 443 Count Three with respect to the electronic records. See supra Part III.A.1. In NSC II, summary judgment was denied, in part, to the CIA on Counts Seventeen and Eighteen with respect to withholdings under FOIA Exemptions 3 and 5, and, additionally, with respect to the adequacy of the search for records responsive to the request at issue in Count Eighteen. NSC II, 960 F.Supp.2d at 208-09. The orders requiring the CIA to explain its withholdings and searches do not constitute judicial relief for the purposes of eligibility, see Davy I, 456 F.3d at 165; Conservation Force, 160 F.Supp.3d at 203-04, but, as a result of litigation, records that the defendant had previously provided in paper form in response to Counts Seventeen and Eighteen were then released in an electronic format. NSC 444 Pl.'s Pet. at 2-3; see also NSC III, 206 ...


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