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Wadelton v. Department of State

United States District Court, District of Columbia

September 30, 2018

JOAN WADELTON, et al, Plaintiffs,



         Plaintiffs 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.

         I. BACKGROUND

         Wadelton 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.

         Wadelton 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.

         Consistent 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.).[2] State terminated her several months later in March 2011, allegedly in retaliation for her whistleblowing activities. Compl. ¶¶ 14-40.

         In July 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 (“M”). Id.

         On 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.

         On 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.

         On 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. Id.

         Plaintiffs objected to State's proposed schedule for several reasons. First, they argued that an Open America Stay[3] 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.

         Next, 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.

         The 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.

         State 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 present Judge.

         During 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.

         Shortly 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 (D.D.C. 2016).

         Plaintiffs subsequently filed a fee petition requesting $18, 511.50 in attorney's fees and $711.25 in costs. See ECF Nos. 67, 68.

         II. ANALYSIS

         Under 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).

         A. Eligibility for Attorney's Fees

         A 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 proposed.[4]

         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).

         B. Entitlement to Attorney's Fees

          To 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 at 484)).

         1. 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).

         State 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).

         Plaintiffs' 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.[5] 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.

         Similarly, 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.[6] David Brown, Flawed Administration = Ineffective Policy,, 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 Wadelton.

         Not 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 interest.”).

         2. Commercial Benefit and Nature of Plaintiffs' Interest

         This 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. 1979).

         State 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).

         Moreover, 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 reasoned:

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 ...

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