United States District Court, District of Columbia
MEMORANDUM OPINION 
S. CHUTKAN UNITED STATES DISTRICT JUDGE
Joan Wadelton and the news website Truthout filed suit under
the Freedom of Information Act (“FOIA”) against
the Department of State (“State”), seeking to
compel the release of records relating to Wadelton's
tenure at the agency. After several years of litigation and
several rounds of briefing, this court entered summary
judgment in favor of State on September 22, 2016. Plaintiffs
request attorney's fees based primarily on the
court's denial of State's proposed disclosure
schedule and the denial of State's first motion for
summary judgment. For the reasons set forth below, the court
will GRANT Plaintiffs' fee petition in part, and DENY the
petition in part.
joined State in 1980 and worked her way up to the highest
rank short of the Senior Foreign Service. Compl. ¶ 7.
She alleges that State's Bureau of Human Resources
(“HR”) began treating her unfairly around 2000
when she learned that HR planned to “remove” her
from her position. She protested and later filed a complaint
with the Office of Inspector General (“OIG”)
about alleged abuses by HR. Id. ¶¶ 14-18.
Wadelton claims that because of her complaints-despite having
outstanding performance reviews-she suffered retaliation,
including reduction of responsibilities, HR's submission
of her incomplete personnel file to authorities considering
her for promotion, and threats to force her into involuntary
retirement. Id. ¶¶ 18-19, 22. Wadelton
responded by filing grievances with the Foreign Service
Grievance Board (“FSGB”) which ordered State to
reconsider her for some of the promotions she had
unsuccessfully sought. Id. ¶¶ 20-28.
claims that during her employment at State, she collected
evidence demonstrating that the treatment she received from
HR was just one example of widespread misconduct.
Id. ¶ 15. She sought to prove that several
high-level HR managers were manipulating the selection board
promotion process to benefit themselves and their allies.
Id. To that end, Wadelton provided Congressional
representatives with information about HR's activities,
after which several representatives became involved, and the
Government Accountability Office announced an impending
investigation. Id. ¶¶ 33-39. Wadelton also
lodged additional complaints with the OIG on multiple
occasions, and she claims OIG ultimately issued a report
criticizing HR's procedures and accusing the department
of mismanagement and falsifying information. Id.
¶¶ 31, 35.
with the directive from the FSGB, State reconsidered Wadelton
for some of the promotions she had sought, but refused to
reverse its prior decisions. Id. ¶¶ 34-35.
Wadelton then sued the agency in January 2011. See
Wadelton v. Clinton, 11-cv-49-BJR
(D.D.C.). State terminated her several months later
in March 2011, allegedly in retaliation for her
whistleblowing activities. Compl. ¶¶
and October of the following year, Wadelton submitted three
separate FOIA requests to State, seeking records pertaining
to her employment. Wadelton v. Dept. of State, 941
F.Supp.2d 120, 121 (D.D.C. 2013). Specifically, she sought
records from three departments within the agency: (1) the HR
department, (2) the Office of Legal Advisor
(“L”), and (3) the Under Secretary of Management
January 29, 2013, State informed Wadelton that it had
identified eighteen responsive records from M and agreed to
release eight records in full, but was withholding six
records in full and would coordinate with other offices
regarding the remaining four records. Compl. ¶ 63. State
did not inform Wadelton whether it had searched and/or
identified records located in the L and HR offices. See
id. ¶¶ 47-63.
February 4, 2013, Wadelton's attorney wrote State
requesting expedited processing and informing the agency that
Truthout would be joining Wadelton's FOIA requests.
Id. ¶¶ 49, 56, 64. After failing to obtain
the relief they sought and exhausting all administrative
remedies, Plaintiffs filed a Complaint and a Motion for
Preliminary Injunction, seeking expedited processing of the
FOIA requests on April 1, 2013 (nine months after the first
FOIA request). Id. ¶¶ 51, 58, 65-67; ECF
Nos. 1, 3.
April 25, 2013, the Judge previously assigned to this case
denied Plaintiffs' motion for a preliminary injunction.
4/9/2013 Minute Order; Wadelton, 941 F.Supp.2d 120.
State subsequently released the remaining records from the
active M files and identified over 6, 000 potentially
responsive pages from the L files, as well as roughly 3, 500
potentially responsive pages from HR. ECF Nos. 16, 18. In
light of the number of potentially responsive pages, the need
to review “retired” M files, and a multi-layered
review process, on July 1, 2013, State sought a production
schedule requiring review of 700 pages per month over a
nineteen-month period. ECF No. 16. State explained that the
analyst assigned to review the retired M files was doing so
on a “part-time basis” because of competing
responsibilities in other cases. Id. p. 4. Further,
all records produced were subject to a second level of
review, normally conducted by retired Foreign Service
officers working on a part-time basis. Id. Moreover,
because discovery in Wadelton's promotion lawsuit was
ongoing, documents had to be reviewed for privilege by the
Legal Advisor's office before being produced.
objected to State's proposed schedule for several
reasons. First, they argued that an Open America
Stay was appropriate, rather than the briefing
schedule State had proposed, because of the extended period
State needed to finish processing the records. Plaintiffs
argued that State was attempting to circumvent the normally
high standard of proof required for an Open America
stay by simply requesting an extended briefing schedule.
Plaintiffs asserted that State had not shown it was incapable
of reviewing more than 700 pages per month, and that the
multiple sequential levels of review were unnecessary.
Plaintiffs noted that State had released only sixteen
documents (totaling forty-eight pages) during the prior three
months, and withheld twenty-five pages, and thus had not
demonstrated any real effort to process the records at the
proposed 700-page monthly rate. Plaintiff therefore asked the
court to order State to complete review and production of
non-exempt records in six months, by December 31, 2013, and
to file its dispositive motion on or before January 17, 2014.
court found that sequential reviews were unnecessary,
explaining that State was going to have “to do it
simultaneously instead of wait and wait . . . .” ECF
No. 73, Aug. 29, 2013 Tr. pp. 14-17. Accordingly, the court
ordered State to complete production of the HR and M records
by March 31, 2014, almost a year earlier than State's
proposed deadline. Id.; ECF No. 26. The court also
advised State to reallocate employees to finish the project
if necessary, noting that “[i]t would have been better
if this thing had gone on faster long ago.” Aug. 29,
2013 Tr. pp. 19, 22-23.
met its deadline with respect to the HR and M records, after
which the court held a status conference on June 10, 2014, to
set the deadlines for producing the L records and a briefing
schedule. The court agreed to State's production deadline
of February 2, 2015 for the L records but rejected its
request for a single round of briefing and instead set a
deadline for the first round of briefing on the already
released records. The case was then transferred to the
the first round of briefing, State completed production of
the L records, but the parties were unable to agree on a
production schedule for the second round of motions. ECF No.
50. After argument and additional briefing, the court ordered
State to file its motion earlier than it had requested. April
15, 2015 Min. Order.
thereafter, the court denied State's first motion for
summary judgment because the agency had not provided enough
information in its declarations for the court to resolve
issues regarding the adequacy of the search and the
segregability of released documents. Wadelton v.
Dep't of State, 106 F.Supp.3d 139 (D.D.C. 2015).
State then asked the court to allow supplemental briefing on
the deficiencies identified in the court's Memorandum
Opinion and allow the agency to combine this briefing with
the briefing on the L records. ECF No. 57. Over
Plaintiffs' objection, the court granted State's
request and ordered it to file the supplemental motion by
July 30, 2015. June 15, 2015 Min. Order. The court ultimately
granted State's supplemental summary judgment motion.
Wadelton v. Dep't of State, 208 F.Supp.3d 20
subsequently filed a fee petition requesting $18, 511.50 in
attorney's fees and $711.25 in costs. See ECF
Nos. 67, 68.
FOIA, courts “may assess against the United States
reasonable attorney fees and other litigation costs
reasonably incurred in any case . . . in which the
complainant has substantially prevailed.” 5 U.S.C.
§ 522(a)(4)(E)(i). The fee inquiry is divided into two
prongs, which this Circuit has long described as fee
“eligibility” (whether the Plaintiff has
“substantially prevailed” and thus
“may” obtain fees), and fee
“entitlement” (whether the court
“should” grant the fee request). Brayton v.
Office of the U.S. Trade Representative, 641 F.3d 521,
524 (D.C. Cir. 2011) (citation omitted). If the court
determines that a plaintiff is eligible for attorney's
fees, the court then proceeds to the entitlement analysis to
consider whether the facts warrant awarding fees.
Elec. Privacy Info. Ctr.
(hereinafter “EPIC”) v. FBI, 72
F.Supp.3d 338, 343 (D.D.C. 2014) (citing Judicial Watch,
Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 368-9
(D.C. Cir. 2006)). “Congress, in authorizing the award
of attorneys' fees, left to the traditional equitable
discretion of the courts the decision whether such fees are
appropriate in any given disclosure case.” Fenster
v. Brown, 617 F.2d 740, 742 (D.C. Cir. 1979).
Eligibility for Attorney's Fees
plaintiff need not obtain “court-ordered relief on the
merits” of the FOIA claim to “substantially
prevail” for eligibility purposes. Brayton,
641 F.3d at 525. Rather, a plaintiff substantially prevails
when she “obtain[s] relief through . . . a voluntary or
unilateral change in position by the agency, if the
complainant's claim is not insubstantial.” 5 U.S.C.
§ 552(a)(4)(E)(ii). Plaintiffs claim they are eligible
for attorney's fees because a considerable portion of the
first order on summary judgment favored Plaintiffs, and they
successfully petitioned the court to impose production
schedules that were more demanding than those State
concedes that Plaintiffs are eligible for fees, see
Defs. Resp. p. 1, and the court agrees. Plaintiffs secured a
“unilateral change in position by the agency, ”
that was not insubstantial, given State's contention that
it needed sequential document reviews and eighteen months in
which to complete the process. See 5 U.S.C. §
552(a)(4)(E)(ii); Citizens for Responsibility and Ethics
in Washington, (hereinafter “CREW”) v.
DOJ, 820 F.Supp.2d 39, 44 (D.D.C 2011) (finding that,
even though the court adopted the government's proposed
disclosure schedule, plaintiff had “substantially
prevailed” because prior to the court's scheduling
order the government had no obligation to produce the records
by a specified date, therefore there had been a change in the
“legal relationship” between the parties).
Entitlement to Attorney's Fees
determine whether a “substantially prevailing”
FOIA plaintiff is “entitled” to fees, the
district court must assess four 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.”
Davy v. CIA, 456 F.3d 162, 166 (D.C. Cir. 2006)
(quoting Tax Analysts v. U.S. Dep't of Justice,
965 F.2d 1092, 1093 (D.C. Cir. 1992)). “No one factor
is dispositive, although the court will not assess fees when
the agency has demonstrated that it had a lawful right to
withhold disclosure.” Davy v. C.I.A., 550 F.3d
1155, 1159 (D.C. Cir. 2008) (hereinafter “Davy
II”) (citation omitted). In assessing these
factors, courts must remain cognizant of the purposes of
FOIA's attorney fee provision. Republic of New Afrika
v. F.B.I., 645 F.Supp. 117, 120 (D.D.C. 1986) (citing
LaSalle Extension Univ. v. FTC, 627 F.2d
481, 483 (D.C. Cir. 1980)). The first is “to encourage
individuals to make use of FOIA in cases where the benefits
will accrue to the public.” Republic of New
Afrika, 645 F.Supp. at 120 (citing LaSalle
Extension, 627 F.2d at 484)). The second is to
“compensate victims of agency obduracy and to deter
agencies from engaging in further behavior not in keeping
with FOIA's aims. [Since] these policies promote multiple
congressional goals, a court should not regard any one factor
as conclusive.” Republic of New Afrika, 645
F.Supp. at 120 (citing LaSalle Extension, 627 F.2d
Public Benefit Derived from the Case
Because FOIA was enacted to inform the public, the requested
records should disclose information which would serve
Congress' intent “to open agency action to the
light of public scrutiny.” Tax Analysts v. United
States Dep't of Justice, 845 F.2d 1060, 1066 n.12
(D.C. Cir. 1988) (citing Dep't of the Air Force v.
Rose, 426 U.S. 352, 361 (1976)). Thus, “simple
disclosure of governmental documents does not satisfy the
public [benefit] factor.” Alliance for Responsible
CFC Policy, Inc. v. Costle, 631 F.Supp. 1469,
1471 (D.D.C 1986) (citing Fenster v. Brown, 617 F.2d
740, 744 (D.C. Cir. 1979)). Instead, the public benefit
factor considers whether “the complainant's victory
is likely to add to the fund of public information that
citizens may use in making vital political choices.”
Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir.
1995) (citation omitted).
argues-with no citation to legal authority-that Plaintiffs
have not shown a “public benefit” because
Truthout has not published an article about Wadelton's
litigation. ECF No. 79, Defs. Br. p. 10. The court is
unpersuaded by this argument, since, as the D.C. Circuit has
recognized, in assessing the public benefit factor, the court
must consider “both the effect of the litigation for
which fees are requested and the potential public value of
the information sought.” Davy II, 550 F.3d at
1159 (citation omitted).
litigation has already contributed to public discourse.
Approximately three weeks after Wadelton filed this lawsuit,
The Atlantic magazine published an article about the
longstanding absence of an inspector general at
State. David. W. Brown, The State Department
Needs a Watchdog-Now, Not Later, The Atlantic, Apr. 23,
2013. The article noted that the inspector general's
office investigates internal grievances and
“questionable activities, ” and, because of the
lack of an inspector general, Foreign Service officers were
appointed to lead OIG positions for extended periods of
time-a practice the article described as “inconsistent
with professional standards for independence.”
Id. It cited Wadelton's case as an example of
the problems arising from the absence of an inspector
general, and discussed Wadelton's allegations that
State's HR department retaliated against her after she
accused it of criminal wrongdoing in doctoring FSGB results.
several months after The Atlantic article appeared, a website
for security clearance related jobs and news published an
article about the problems created by the absence of a
permanent inspector general at State. David Brown, Flawed
Administration = Ineffective Policy, ClearanceJobs.com,
Sept. 18, 2013. The article claimed that the lack of
leadership could cause policy failures with life-or-death
consequences. It cited a State employee who claimed that
State had ignored employee complaints about inadequate
security systems, removed those who expressed concerns about
the systems, and barred those employees from further focus
groups. The article noted the parallels between State's
response to the employee's story and the attack on the
U.S. Embassy in Benghazi, where complaints about security had
allegedly been ignored. It suggested that re-establishing
trust at the agency would involve assuring employees that
State would not retaliate against whistleblowers like
only do these articles impact the public benefit analysis,
but the D.C. Circuit has instructed lower courts to evaluate
the “potential” or “likely” value of
the requested records when considering the public benefit
factor. See Cotton, 63 F.3d 1115 at 1120; Davy
II, 550 F.3d at 1159 (explaining that the public benefit
factor requires consideration of, inter alia, the
“potential public value of the information
sought”). Wadelton's allegations of wrongdoing,
coupled with governmental investigations and media attention
regarding the leadership vacuum at the OIG, are sufficient to
convince this court that the requested records had more than
“potential” or “likely” public value.
See Yonemoto v. Dep't of Veterans Affairs, No.
CV 06-00378 BMK, 2012 WL 1980818, at *3-4 (D. Haw. June 1,
2012) (“[Employee's] FOIA action benefitted the
public because it shed light on how the VA interacts with
personnel. . . . It is in the public interest to ensure that
an agency treats its employees fairly and
appropriately.”), aff'd, 549 Fed.Appx. 627
(9th Cir. 2013); Prison Legal News v. EOUSA, No.
08-1055, 2010 WL 3170824, at *2 (D. Col. Aug. 10, 2010)
(finding public benefit from disclosure of records despite
the fact that “the population to which this information
is likely to be disseminated is relatively small, ” as
“information about how the BOP responded to the murder
may inform the public as to its effectiveness in maintaining
security and order inside of [a] prison”); Morley
v. CIA, 810 F.3d 841, 844 (D.C. Cir. 2016) (“[W]e
clarify that the public-benefit factor requires an ex
ante assessment of the potential public value of the
information requested, with little or no regard to whether
any documents supplied prove to advance the public
Commercial Benefit and Nature of Plaintiffs'
Circuit typically analyzes two factors-commercial benefit and
nature of plaintiffs' interest-together to determine
whether plaintiffs have “a sufficient private incentive
to seek disclosure” of the records without expecting
compensation. Davy II, 550 F.3d at 1160 (quoting
Tax Analysts, 965 F.2d at 1095). Requestors
“who have a private commercial interest in
disclosure” have a “sufficient incentive to
pursue their claim through the courts, ” even in the
absence of a fee award. See Fenster v. Brown, 617
F.2d 740, 743 (D.C. Cir. 1979). Similarly, requestors who
seek records of “minimal” public interest for
“personal, rather than scholarly [or] journalistic . .
.” purposes have a sufficient incentive to file a FOIA
request, Simon v. United States, 587 F.Supp. 1029,
1032 (D.D.C. 1984), and therefore “should not be
encouraged by an award of attorney fees.” Republic
of New Afrika, 645 F.Supp. at 121. State argues that
Wadelton is not entitled to fees because she sought the
records for use in her employment lawsuit, and cites to
several cases where courts denied fees for requestors who
sought records to aid in non-FOIA litigation or proceedings.
See id.; Ellis v. United States, 941
F.Supp. 1068, 1079 (D. Utah 1996); Polynesian Cultural
Ctr., Inc. v. N. L. R. B., 600 F.2d 1327, 1330 (9th Cir.
ignores the fact that Wadelton was not the sole plaintiff in
this matter; media outlet Truthout joined Wadelton's FOIA
request intending to publish “one or more
in-depth” articles about “Wadelton's case and
the underlying problems facing the State Department personnel
system.” ECF No. 8, Pls. Prelim. Injunction Mot.
Response at Ex. B, Leopold Decl. ¶ 3. Indeed, then
Truthout journalist Jason Leopold wrote an article about
Wadelton and sought approval to publish the article, but it
appears it was never published. Id. The reasons for
this are unclear, but clearly there was media interest in the
requested records. As this Circuit has recognized, “a
court would ordinarily award fees, for example, where a
[journalist] was seeking information to be used in a
publication.” Nationwide Bldg. Maint., Inc. v.
Sampson, 559 F.2d 704, 712 (D.C. Cir. 1977).
any private interest Wadelton may have had in obtaining the
records does not necessarily disqualify her from obtaining
fees. In Piper v. United States Department of
Justice, 339 F.Supp.2d 13, 21 (D.D.C. 2004) the court
awarded fees even though the plaintiff sought records
regarding his mother. Noting that the plaintiff, a published
author, intended to write a book about the records, the court
There is little doubt that plaintiff is motivated by a
distinct personal interest in the documents he is seeking. .
. . This factor could then weigh against plaintiff in
isolation. But the notion that a private interest and public
interest “must be mutually exclusive is not
supportable.” Playboy Enters., Inc. v. U.S. Customs
Serv.,959 F.Supp. 11, 16 (D.D.C. 1997). Often times,
“such benefits and interests are not so easily
separable, and in this case we have both.” Id.
Here, plaintiff intends to write a book about his
mother's kidnapping and the FBI ...