United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE.
Environmental Integrity Project (“EIP”) brought
this action against Defendant Environmental Protection Agency
(“EPA”) seeking records of former EPA
Administrator Scott Pruitt's travel vouchers and schedule
of meetings with outside parties. EPA has since provided all
requested documents to EIP. Claiming that it has
“substantially prevailed” in its suit, EIP now
moves the Court for attorneys' fees pursuant to the
fee-shifting provision of 5 U.S.C. § 552(a)(4)(E)(i).
For the following reasons, the Court finds that EIP has not
substantially prevailed in this FOIA litigation, and thus is
not eligible for an award of attorneys' fees.
18, 2017, EIP submitted a FOIA request to EPA seeking records
of former EPA Administrator Scott Pruitt's meetings with
outside parties and records of his travel from his first day
at EPA, February 21, 2017, through the request date. Am.
Compl. [ECF No. 17] ¶¶ 21, 24. When the EPA Office
of the Executive Secretariat (“OEX”) received
EIP's request, it determined that the Administrator's
calendar and travel vouchers would be responsive. Decl. of
Elizabeth White, Ex. 1 to Opp'n to Pl.'s Mot. for
Att'ys' Fees [ECF No. 28-1] ¶ 13. The same day
that EIP submitted its request, the OEX received
Administrator Pruitt's calendar through March 31, 2017
from the staff at the Immediate Office of the Administrator
(“OA”) in response to separate FOIA requests from
third parties. Id. ¶ 14. While this calendar
set was responsive to part of EIP's request, it did not
satisfy it in full. Mem. of P & A in Supp. of Pl.'s
Mot. for Att'ys' Fees (“Pl.'s Mem.”)
[ECF No. 24-1] at 2-3. OEX staff requested the additional
responsive calendar records and travel vouchers from the OA,
but the OA was in transition, and its staff changed several
times during the twenty-day statutory period. Decl. of
Elizabeth White ¶ 15; Opp'n to Pl.'s Mot. for
Att'ys' Fees (“Def.'s Opp'n”)
[ECF No. 28] at 4. Although the OEX requested the additional
calendar records four times within this period, its efforts
were unsuccessful. Decl. of Elizabeth White ¶ 15. On
June 13, 2017, OA staff did provide OEX with the responsive
travel vouchers, but the vouchers required review before
sending to EIP. Id. ¶¶ 19-21. Twenty-one
days after the FOIA request was received, on June 19, 2017,
EPA sent EIP the calendar records through March 31, 2017 but
did not provide a date by which it would finish production.
Id. ¶¶ 17-18. EIP confirmed that the
calendar records were responsive to its request for those
dates. Ex. 1 to Proposed Briefing Sched. [ECF No. 10-1] at 2.
Later that day, EIP filed its complaint. Decl. of Elizabeth
White ¶ 18.
month later, on July 18, 2017, EPA produced the reviewed
travel vouchers, and EIP confirmed that the production was
responsive to its request. Am. Compl. ¶ 25. On September
27, 2017, EPA produced partially redacted calendars through
May 18, 2017, which included updated records of the February
21 through March 31 calendar previously provided, plus an
additional travel voucher. Decl. of Elizabeth White
¶¶ 25-26, 30. In the months that followed, EIP
raised various questions concerning the bases for redactions
in the produced documents. Id. ¶ 31. On
December 5, 2017, EPA re-released four revised calendar pages
which had been redacted in error and removed other redactions
as a discretionary matter. Id.; Pl.'s Mem. at 6.
EIP then informed EPA that it was satisfied that the
information provided resolved its FOIA request. Pl.'s
Mem. at 6. EIP subsequently moved for attorneys' fees.
Mot. for Att'ys' Fees [ECF No. 24].
may “assess reasonable attorney fees and other
litigation costs reasonably incurred” in the course of
FOIA litigation in which the complainant has
“substantially prevailed.” 5 U.S.C. §
552(a)(4)(E)(i). Whether an award of attorneys' fees is
proper depends on a two-step inquiry of (1) eligibility and
(2) entitlement. See Church of Scientology of Cal. v.
Harris, 653 F.2d 584, 587 (D.C. Cir. 1981). There is no
presumption in favor of awarding fees to complainants who
ultimately receive documents, and the court has “broad
discretion” when considering whether to grant an award
of attorneys' fees. Hall & Associates v.
EPA, 210 F.Supp.3d 13, 19 (D.D.C. 2016) (citing
Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d
704, 713-14 (D.C. Cir. 1977) (“The single most
important element under [FOIA's attorneys' fees
provision], however, is the [district] court's
discretion.”)). The fee-shifting provision of FOIA is
not meant to punish an agency for delays in processing
requests, but to reward plaintiffs whose lawsuits alter an
agency's slowness and bring about disclosure. Terris,
Pravlik, & Millian, LLP v. Ctrs. for Medicare &
Medicaid Servs., 794 F.Supp.2d 29, 38 (D.D.C. 2011).
satisfy the first step, the complainant must
“substantially prevail, ” which means that the
institution and prosecution of litigation caused the agency
to release responsive documents. Church of Scientology of
Cal., 653 F.3d at 587 (citing Cox v. U.S. Dep't
of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979)). A
complainant may “substantially prevail” by
obtaining relief through a “judicial order, or an
enforceable written agreement or consent decree” or by
obtaining a “voluntary or unilateral change in
position” by the agency. 5 U.S.C. §
552(a)(4)(E)(ii)(I)-(II); Elec. Privacy Info. Ctr.
(“EPIC”) v. U.S. Dep't of Homeland Sec.,
218 F.Supp.3d 27, 38 (D.D.C. 2016). Whether a plaintiff has
“substantially prevailed” is “a question of
fact for the District Court . . . .” Terris,
Pravlik, & Millian, LLP, 794 F.Supp.2d at 34.
satisfy the second step, the plaintiff must establish that it
is entitled to receive attorneys' fees. Entitlement is
based on factors including: “(i) the public benefit
from the case; (ii) the commercial benefit to the plaintiff;
(iii) the nature of the plaintiff's interest in the
records; and (iv) the reasonableness of the agency's
withholding of the requested documents. Morley v.
CIA, No. 17-5114, 2018 WL 3351383 at *1 (D.C. Cir. July
9, 2018) (citing Davy v. CIA, 550 F.3d 1155, 1159
(D.C. Cir. 2008)). However, the Court need not proceed to the
entitlement prong if the eligibility prong is not met.
See Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).
argues that it is eligible for attorneys' fees under the
“catalyst theory” because its lawsuit caused EPA
to change its position by producing the responsive documents.
Pl.'s Mem. at 8. Specifically, EIP contends that:
“(i) EPA changed its position when it released records
responsive to EIP's FOIA request after stating earlier in
its answer that EIP was not entitled to the relief sought;
(ii) EIP's lawsuit caused EPA to process records more
quickly than it would have without the litigation; and (iii)
EIP's amended complaint alleging improper withholding
caused EPA's discretionary disclosure of records
previously redacted under FOIA exemptions.”
Id. EIP also briefly asserts that the Court's
August 21, 2017 briefing schedule order constitutes a
“court order” under 5 U.S.C. §
552(a)(4)(E)(ii)(I). Id. at 9. In opposition, EPA
asserts that the lawsuit was not necessary to compel the
production of documents because EPA began searching for
records before EIP filed its complaint, and, upon actual and
reasonable notice of the request, EPA made a good-faith
effort to search for responsive records and decide whether
such material should be disclosed. Def.'s Opp'n at 9.
“substantially prevail” and receive
attorneys' fees, EIP must prove that it caused a
voluntary or unilateral change in EPA's position by
filing its complaint. See Conservation Force v.
Jewell, 160 F.Supp.3d 194, 205 (D.D.C. 2016) (quoting
Weisberg v. U.S. Dep't of Justice, 745 F.2d
1476, 1496 (D.C. Cir. 1984)). The key question under the
“catalyst theory” is whether “the
institution and prosecution of the litigation cause[d] the
agency to release the documents obtained during the pendency
of the litigation.” Church of Scientology of
Cal., 653 F.2d at 588. There must be a causal nexus
between the initiation of litigation and the agency's
surrender of the requested information, and a plaintiff must
do more than claim post hoc, ergo propter hoc
(“after this, therefore because of this”) to
prove that a causal nexus exists. See Pub. Law Educ.
Inst. v. U.S. Dep't of Justice, 744 F.2d 181, 183
(D.C. Cir. 1984). In the context of attorneys' fees,
“the mere filing of the complaint and the subsequent
release of the documents is insufficient to establish
causation.” Codrea v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 272 F.Supp.3d 49, 53 (D.D.C.
2017) (quoting Weisberg, 745 F.2d at 1496). If an
“unavoidable delay accompanied by due diligence in the
administrative processes was the actual reason for the
agency's failure to respond to a request, it cannot be
said that the complainant substantially prevailed in [its]
suit.” Church of Scientology of Cal., 653 F.2d
at 588 (quoting Cox, 601 F.2d at 6).
EPA's Release of Responsive and Previously Redacted
claims that EPA changed its position when it complied with
EIP's FOIA request after its answer had stated that EIP
“failed to state a claim on which relief can be
granted, ” and denied that it had “knowledge or
information sufficient to form a belief as to whether it has
possession, custody, and control of the particular records
Plaintiff seeks.” Pl.'s Mem. at 9; Def.'s
Answer [ECF No. 8] ¶ 15. The key question is whether
“hard evidence-beyond temporal proximity- supports the
inference that the plaintiff's lawsuit caused the
document release.” Conservation Force, 160
F.Supp.3d at 206 (finding no hard evidence beyond temporal
proximity where “[n]o averments or other facts in the
instant record indicate that Defendants only produced these
documents because of [Plaintiff's] lawsuit … nor
was there any about-face from an initial agency
refusal”); see ...