United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
Randolph D. Moss, United States District Judge.
matter is before the Court on Plaintiff Richard Edelman's
motion for attorneys' fees. Dkt. 46. In 2014, Edelman
submitted six requests for agency records to Defendant the
Securities and Exchange Commission (“SEC”)
pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. Among other
things, he sought records relating to the SEC's review of
filings and “consumer complaint[s]” regarding the
consolidation of several properties, including the Empire
State Building, into the Empire State Realty Trust
(“ESRT”), a real estate investment trust.
Edelman v. SEC, 302 F.Supp.3d 421, 423 (D.D.C 2018)
(Edelman III). Edelman maintains a website that
disseminates information about the creation of the ESRT.
See Edelman v. SEC, 172 F.Supp.3d 133, 138 (D.D.C.
2016) (Edelman I). After the SEC failed to
respond to his requests, he filed this action, Dkt. 1, which
the Court resolved on the merits in three memorandum
opinions. See Edelman III, 302 F.Supp.3d at 421;
Edelman v. SEC, 239 F.Supp.3d 45, 48 (D.D.C. 2017)
(Edelman II); Edelman I, 172 F.Supp.3d at
138. Edelman has now moved for an award of attorneys'
fees pursuant to 5 U.S.C. § 552(a)(4)(E). See
Dkt. 46. For the reasons explained below, the Court will
DENY that motion.
Court has set forth the factual background and procedural
history of this case in its previous memorandum opinions,
see Edelman I, 172 F.Supp.3d at 138; Edelman
II, 239 F.Supp.3d at 48-50; Edelman III, 302
F.Supp.3d at 423-24, and will repeat only those facts
relevant to the pending motion.
submitted six FOIA requests to the SEC in 2014. Among other
things, he sought various filings submitted by the ESRT to
the SEC, the SEC's comments on any potential disclosure
deficiencies, any responses from the ESRT to those comments,
meeting notes and emails to and from the SEC attorneys
working on the matter, exhibits submitted by the ESRT or its
predecessor that referenced the sublease for the Empire State
Building, any materials submitted by the ESRT that sought
confidential treatment by the SEC, any “consumer
complaints” submitted by Empire State Building
investors to the SEC relating to its review of the proposed
transaction, correspondence between the SEC and Malkin
Holdings (the company advocating for the conversion of the
Empire State Building's ownership structure into a real
estate investment trust), records relating to Edelman's
FOIA requests, and records reflecting communications between
the SEC and any government official not employed by the SEC
regarding the ESRT. See Edelman I, 172 F.Supp.3d at
138-141 (describing FOIA requests).
Edelman brought suit, the SEC responded to one of his six
requests, and, shortly after he brought suit, it responded to
the remaining five requests and released more than 2, 000
pages of responsive records. Id. at 137, 141. The
parties then filed their first set of motions for summary
judgment. Dkt. 15; Dkt. 16. After considering those
submissions, the Court ruled in favor of the SEC on some
issues and in favor of Edelman on others. The Court agreed
with the SEC that Edelman had failed to exhaust his
administrative remedies with respect to one of his six
requests. Edelman I, 172 F.Supp.3d at 142-44. It
also agreed with the SEC that most of the SEC's searches
were reasonable and adequate, id. at 144-58, and
that the SEC had lawfully withheld all or portions of six
documents pursuant to FOIA Exemption 5, id. at
158-61. The Court ruled in Edelman's favor, however, on
three issues. The Court first held that the SEC should have
broadly construed one of Edelman's FOIA requests to seek
“consumer complaints, ” and not simply records
reflecting the SEC's responses to those complaints.
Id. at 155-56. Second, the Court held that the SEC
erred in treating attorneys' notes as categorically
beyond the scope of FOIA and, instead, should have determined
on a case-by-case basis whether the notes were exempt from
disclosure. Id. at 147-54. Finally, the Court held
that it could not determine whether one document was properly
redacted pursuant to Exemption 5 and, accordingly, ordered
that the SEC produce an unredacted version of the document to
the Court for in camera review. Id. at 159.
Edelman I, the SEC released 1, 446 pages of consumer
complaints, 71 pages of attorney notes, and (without the need
for further judicial intervention) an unredacted version of
the document that the Court had directed the SEC to submit
for in camera review. Edelman II, 239
F.Supp.3d at 50 n.3. The parties then renewed their
cross-motions for summary judgment. See Dkt. 26;
Dkt. 28. This time, the Court rejected Edelman's
contentions that the SEC had conducted an inadequate search
for “consumer complaints” and that it had
improperly invoked the deliberative process privilege.
Edelman II, 239 F.Supp.3d at 51-54. The Court,
however, was unable to resolve the question whether the SEC
had permissibly redacted the names of seventy individuals who
had filed consumer complaints with the agency because the
existing record lacked “sufficient information for the
Court to conduct the required balancing, and because the SEC
. . . should conduct the relevant balancing in the first
instance.” Id. at 57. The Court, accordingly,
denied both parties' motions for summary judgment with
respect to that one issue. Id.
subsequently disclosed the identities of thirty-four of the
seventy complainants and withheld the names of the remaining
thirty-six complainants. Edelman III, 302 F.Supp.3d
at 424. As the SEC explained, the thirty-four complainants
whose identities were disclosed had, elsewhere, engaged in
public activity relating to the ESRT transaction.
Id. But the remaining thirty-six complainants had
not publicly associated themselves with the issue.
Id. The parties once again moved for summary
judgment. See Dkt. 37; Dkt. 39. The third time
around, the Court ruled in the SEC's favor, holding that
the unidentified complainants had a substantial privacy
interest in nondisclosure and that the public's interest
in disclosure was de minimis. Edelman III,
302 F.Supp.3d at 429. With that decision, Edelman's case
was finally resolved on the merits.
now invokes 5 U.S.C. § 552(a)(4)(E) and requests that
the Court award him $99, 843.75 in attorneys' fees and
$559.22 in costs. Dkt. 49 at 9.
U.S.C. § 552(a)(4)(E)(i), the Court may “assess .
. . reasonable attorney fees and other litigation costs
reasonably incurred” by a FOIA plaintiff who “has
substantially prevailed.” The test for an award of fees
“has two components: eligibility and
entitlement.” Gerhard v. Fed. Bureau of
Prisons, 258 F.Supp.3d 159, 165 (D.D.C. 2017).
“The eligibility prong asks whether a plaintiff has
‘substantially prevailed' and thus ‘may'
receive fees.” Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)
(citation omitted). “If so, the [C]ourt proceeds to the
entitlement prong and considers a variety of factors to
determine whether the plaintiff should receive
fees.” Id. “To obtain attorneys'
fees under FOIA, a plaintiff must satisfy” both prongs
of the test. See McKinley v. Fed. Hous. Fin. Agency,
739 F.3d 707, 710 (D.C. Cir. 2014). Moreover, if the
plaintiff is eligible for and entitled to fees, he must
demonstrate that the award he seeks is
“reasonable.” 5 U.S.C. § 522(a)(4)(E)(i);
see also Elec. Privacy Info. Ctr. v. Dep't of
Homeland Sec., 197 F.Supp.3d 290, 293-94 (D.D.C. 2016).
relevant here, Edelman may establish that he “has
substantially prevailed” by showing that he
“obtained relief through either . . . a judicial order.
. . [or] a voluntary or unilateral change in position by the
agency.” 5 U.S.C. § 552(a)(4)(E)(ii). The second
approach-a voluntary change in position-codifies the
so-called “catalyst theory, ” which asks whether
the “litigation substantially caused the requested
records to be released.” N.Y.C. Apparel F.Z.E. v. U.S.
Customs and Border Prot. Bureau, 563 F.Supp.2d 217, 221
(D.D.C. 2008) (citations omitted); see also Brayton,
641 F.3d at 524-25. Under the catalyst theory, a plaintiff
must show that “the action could reasonably be regarded
as necessary to obtain the information” and that
“a causal nexus exists between [the] action and the
agency's surrender of the information.” Harvey
v. Lynch, 178 F.Supp.3d 5, 7 (D.D.C. 2016) (quoting
Church of Scientology of Cal. v. Harris, 653 F.2d
584, 588 (D.C. Cir. 1981)). Eligibility is “largely a
question of causation, ” Church of
Scientology, 653 F.2d at 587, and causation “is
missing when disclosure results not from the suit but from
delayed administrative processing, ” Short v. U.S.
Army Corps of Eng'rs, 613 F.Supp.2d 103, 106 (D.D.C.
claims that he is “[u]nquestionably . . . eligible for
a fee award” because he has substantially prevailed in
two ways. Dkt. 46-1 at 4. He asserts, first, that he obtained
a judicial decision holding that the SEC had “failed to
properly search 113 pages of attorney notes, ” that the
SEC “failed to properly construe [his] request and
search for documents about complaints themselves, ” and
that the SEC “failed to adequately justify a document
withheld pursuant to FOIA Exemption 5.” Id. at
2. Due to the Court's order, Edelman contends, the SEC
“located and released more than a thousand additional
pages of responsive material to plaintiff.”
Id. Following a subsequent decision, moreover, the
SEC “released identifying information about 34 of 70
complainants it had previously withheld.” Id.
at 2-3. Second, he contends that, even before the Court
intervened, his lawsuit served as the catalyst for the
SEC's initial production of more than 2, 000 pages of
records. Id. at 4.
does not dispute Edelman's first argument and, instead,
contends that, because “he did not prevail on most of
[the] issues he briefed, ” Dkt. 48 at 8, he is
“not eligible to receive most of the fees he seeks,
” id. at 9. According to the SEC, the filing
of the lawsuit was not a “catalyst” for its
initial production; it asserts, to the contrary, that it had
already begun “processing Edelman's requests”
when he filed suit. Id. at 8. The delay in
processing Edelman's requests, the SEC explains, stemmed
from the nature of the requests, which “were complex
and required consultation with several other offices, ”
and not from any intransigence on the part of the SEC.
Court agrees that Edelman is eligible for attorneys'
fees. In Edelman I, the Court held that the SEC had
construed his request concerning consumer complaints too
narrowly and ordered the SEC to renew its search for
responsive documents “on the understanding that . . .
the request encompasse[d] not just documents about
the complaints but the complaints themselves.”
172 F.Supp.3d at 156. The Court also held that attorney notes
were not categorically exempt from disclosure and,
accordingly, directed the SEC to review the attorney notes it
had previously withheld and to produce any responsive,
non-exempt records. Id. at 154-55. As a result, the
SEC released more than 1, 500 pages of previously withheld
records. Edelman II, 239 F.Supp.3d at 50. A FOIA
plaintiff “may be considered [a] prevailing
part[y]” for purposes of attorneys' fees “if
they succeed on any significant issue in litigation [that]
achieves some of the benefit [he] sought in bringing the
suit.” Edmonds v. FBI, 417 F.3d 1319, 1326-27
(D.C. Cir. 2005) (quoting Farrar v. Hobby, 506 U.S.
103, 109 (1992)). The Court's “judicial
order” in Edelman I afforded Edelman tangible
“relief” in the form of agency records that he
would not have obtained without filing suit, and Edelman,
accordingly, “has substantially ...