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Cornucopia Institute v. Agricultural Marketing Service

United States District Court, District of Columbia

January 10, 2018



          AMY BERMAN JACKSON, United States District Judge

         Plaintiff Cornucopia Institute (“Cornucopia”) has filed a motion for an award of attorneys' fees and costs pursuant to Federal Rule of Civil Procedure 54(d) and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E)(i). Pl.'s Mot. for Attys.' Fees & Costs [Dkt. # 14] (Pl.'s Mot.”). Plaintiff seeks an award of $41, 543.65 in attorneys' fees and $422.08 in costs, for a total of $41, 965.73. Pl.'s Reply in Supp. of Pl.'s Mot. [Dkt. # 17] (“Pl.'s Reply”) at 12-13. Defendant Agricultural Marketing Service maintains that plaintiff is neither eligible for nor entitled to a fee award under FOIA, and that the amount plaintiff seeks is unreasonable. Def.'s Opp. to Pl.'s Mot. [Dkt. # 16] (“Def.'s Opp.”) at 1.

         The Court finds that plaintiff is eligible for and entitled to some fee award under FOIA. But because the portion of “fees-on-fees” work greatly exceeds the time spent on the merits of the underlying FOIA litigation, and because the litigation over a relatively narrow set of materials was uncomplicated and quickly resolved, the Court will grant $9, 723.75 for attorneys' fees, $2, 000.00 for fees-on-fees, and $422.08 in costs for a total of $12, 145.83.


         Plaintiff Cornucopia is a non-profit organization with a “strong interest in ensuring the integrity of our nation's organic certification process.” Decl. of Will Fantle [Dkt. # 14-3] (“Fantle Decl.”) ¶ 5. Defendant, Agricultural Marketing Service (“AMS”), is a federal agency within the United States Department of Agriculture (“USDA”) that administers the National Organic Program, which develops national standards for organic agricultural products. Def.'s Opp. at 1.

         On April 4, 2016, USDA announced five vacancies on the National Organic Standards Board (“Board”), a 15-member board that advises the Secretary of Agriculture on organic policy and standards. Fantle Decl. ¶ 10. AMS oversees the Board. On June 10, 2016, plaintiff sent a FOIA request to AMS for “all applications submitted for vacancies open on the National Organic Standards Board (NOSB) as announced on April 4, 2016 by the USDA.” Ex. 7 to Fantle Decl. [Dkt. # 14-3] (“FOIA Request”).

         Defendant replied on July 11, 2016, that it had identified 671 pages of responsive records but that “all of these documents [were] being withheld in their entirety pursuant to FOIA Exemptions (b)(5) and (b)(6).” Ex. 8 to Fantle Decl. [Dkt. # 14-3] (“Initial Response”). The agency explained that Exemption (b)(5) protects “pre-decisional and/or deliberative” records which are “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than in litigation with the agency.” Id., quoting 5 U.S.C. § 552(b)(5). Because “the requested applications [were] still under review within USDA, ” defendant argued that Exemption (b)(5) was applicable. Id. The agency also asserted that the information was protected under Exemption (b)(6) because the requested applications contained information similar to personnel information, and disclosure “would constitute a clearly unwarranted invasion of personal privacy.” Id., 5 U.S.C. § 552(b)(6).

         Plaintiff administratively appealed the agency's decision on August 3, 2016, arguing that “the USDA AMS [had] improperly applied FOIA exemptions (b)(5) and (b)(6) in an overly broad manner” in violation of “FOIA's express segregability requirement.” Ex. 1 to Decl. of Gregory Bridges [Dkt. # 16-2] (“Pl.'s Admin. Appeal”). On September 2, 2016, the agency denied plaintiff's appeal, affirming its use of Exemption (b)(5) and (b)(6) and re-stating that the “requested applications [were] still under review within USDA.” Ex. 9 to Fantle Decl. [Dkt. # 14-3] (“Final Response”).

         On November 14, 2016, plaintiff filed a complaint with this Court seeking declaratory and injunctive relief in order to obtain the records. Compl. [Dkt. # 1]. Two days later, on November 16, 2016, the USDA issued a press release officially announcing the appointments of five new members to the Board. Ex. 2 to Decl. of Gregory Bridges [Dkt. # 16-3] (“USDA press release”).

         After discussions between the parties, defendant concluded on December 16, 2016, that “Exemption 5 was no longer applicable” because the recent appointments marked the end of its application process, and it provided plaintiff with the responsive records. Def.'s Opp. at 3; Ex. 10 to Fantle Decl. [Dkt. # 14-3] (“Letter Releasing Records”). Of the 671 pages produced, 407 pages contained redactions of personal information (i.e. “social security numbers, personal email addresses, residential mailing addresses . . . telephone numbers, birth dates, places of birth, and other personal information which pertains to an applicant's personal finances, criminal history, race, and ethnicity”) pursuant to Exemption 6. Id. The remaining 264 pages were released in full. Id. With respect to the five applicants appointed to the Board, the agency decided to partially waive Exemption 6 in order to release additional personal information regarding their outside income and judgments against them, because it concluded that the “public interest in certain components of their applications outweighed their privacy interest . . . .” Id.

         After the initial December 16 production, the parties continued to have discussions over the release of any remaining responsive documents. On March 6, 2017, defendant decided to release additional information. Ex. 11 to Fantle Decl. [Dkt. # 14-3] (“Letter Releasing More Records”). Specifically, the agency reversed its position on Exemption 6 and agreed to unredact the state of residence for each applicant. Id. Then on March 9, 2017, defendant provided plaintiff with “several pages” of responsive records it had inadvertently omitted. Def.'s Opp. at 3. And on March 29, 2017, at plaintiff's request, defendant corrected a redaction error on one previously produced page. Decl. of C. Peter Sorenson [Dkt. # 14-4] (“Sorenson Decl.”) ¶ 13.

         The parties notified the Court on April 12, 2017, that “the release of responsive records [had] been completed” and requested a stay until May 12, 2017, “to complete their discussion regarding reasonable fees and costs.” Joint Mot. to Stay [Dkt. # 8] (“Mot. to Stay”). There was no briefing in this case following plaintiff's complaint due to the willingness of the parties to resolve the FOIA dispute among themselves.

         On June 14, 2017, the case was referred to a Magistrate Judge to conduct mediation concerning attorneys' fees and costs. The parties were unable to reach an agreement, so on August 18, 2017, plaintiff filed the pending motion for attorneys' fees. Pl.'s Mot. Defendant filed its response on September 20, ...

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