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Environmental Integrity Project v. United States Environmental Protection Agency

United States District Court, District of Columbia

July 25, 2018

ENVIRONMENTAL INTEGRITY PROJECT, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.

          MEMORANDUM OPINION

          JOHN D. BATES UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         BACKGROUND

         On May 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”)[1] 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.

         One 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].

         LEGAL STANDARD

         A court 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).

         To 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.

         To 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).

         ANALYSIS

         EIP 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.

         To “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).

         A. EPA's Release of Responsive and Previously Redacted Records

         EIP 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 ...


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