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Aqualliance v. National Oceanic and Atmospheric Administration

United States District Court, District of Columbia

June 12, 2019

AQUALLIANCE, Plaintiff,
v.
NATIONAL OCEANIC AND ATMOSPHERERIC ADMINISTRATION, Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.

         Plaintiff AquAlliance submitted a Freedom of Information Act (“FOIA”) request to the National Oceanic and Atmospheric Administration (“NOAA”) for records related to pollution caused by the failure of California's Oroville Dam in 2017. After some six weeks passed with no response from NOAA, AquAlliance filed suit. In response, NOAA produced over 3000 unredacted and partially redacted documents and withheld 114 documents in full. It also referred 344 documents to other agencies so that they could make their own exemption determinations. Over the course of the next year, the parties narrowed the number of exemptions in dispute. Ultimately, AquAlliance dropped its objections to all but three documents, which NOAA produced. AquAlliance now moves to recover $41, 000 in fees and costs. For the reasons that follow, the Court will deny AquAlliance's motion.

         I. Background

         Plaintiff AquAlliance is a not-for-profit California corporation whose mission is to “defend northern California waters . . . and to challenge threats to the hydrologic health of the northern Sacramento River watershed.” Declaration of Barbara Vlamis (“Vlamis Decl.”), ECF No. 21-1, ¶ 2. On August 25, 2017, AquAlliance filed a FOIA request with NOAA, requesting “any and all records regarding water quality, aquatic species, and asbestos downstream of Oroville Dam from January 1, 2017 to present.” Id. ¶ 3. After waiting roughly six weeks and receiving no response from NOAA, AquAlliance filed suit on October 9, 2017. Id. ¶ 6. Declaration of Matt Kenna (“Kenna Decl.”), ECF No. 21-2, ¶ 4. On October 30, NOAA acknowledged having received the FOIA request. Vlamis Decl. ¶ 6. Two weeks later, NOAA produced to AquAlliance 3134 unredacted documents and 114 partially redacted documents. Declaration of Shawn Martin (“Martin Decl.”), ECF No. 24-1, ¶ 9. Another 344 responsive records originated in five other agencies, so NOAA referred those records to the agencies for a disclosure determination and instructed them to make a direct production to AquAlliance. Id. By the end of January 2018, four of the five agencies-the Bureau of Reclamation, the Fish and Wildlife Service, FERC, and FEMA-had produced records to AquAlliance. Id. ¶¶ 10-11. The fifth and final agency, the Army Corps of Engineers, made its production on March 15, 2018. Id. ¶ 13.

         In the meantime, in February 2018, the parties filed a Joint Status Report, setting out a schedule for resolving their remaining disagreements over NOAA's withholdings, which the Court adopted. Kenna Decl. ¶ 9. Between February and September NOAA provided AquAlliance with a Vaughn index, and the parties progressively narrowed the number of withholdings in dispute. Id. ¶ 15. Ultimately, NOAA agreed to disclose three previously withheld documents, Martin Decl. ¶ 30, making summary judgment proceedings unnecessary. AquAlliance now seeks $41, 421.00 in attorneys' fees and costs under 5 U.S.C. § 552(a)(4)(E).

         II. Legal Standard

         Courts “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred” in any FOIA case where “the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). To recover fees and costs, a FOIA plaintiff must be both (1) eligible for and (2) entitled to such an award. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). A plaintiff can become eligible for an award in one of two ways: either by obtaining relief through a judicial order or by showing that its suit caused “a voluntary or unilateral change in position by the agency, ” resulting in the release of documents. 5 U.S.C. § 552(a)(4)(E)(ii); see also Brayton, 641 F.3d at 525 (“[T]he OPEN Government Act of 2007 . . . revived the possibility of FOIA fee awards in the absence of a court decree.”).

         If the plaintiff is eligible for a fee award, courts proceed to the entitlement prong. Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. (“EPIC”), 999 F.Supp.2d 61, 66-67 (D.D.C. 2013) (quoting Brayton, 641 F.3d at 524). Under the entitlement prong, courts consider “(1) the public benefit derived from the case, (2) the commercial benefit to the requester, (3) the nature of the requester's interest in the information, and (4) the reasonableness of the agency's conduct.” Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013). “In applying this test, ‘[n]o one factor is dispositive.'” EPIC, 999 F.Supp.2d at 67 (quoting Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008)). “The sifting of those criteria over the facts of a case is a matter of district court discretion.” Tax Analysts v. DOJ, 965 F.2d 1092, 1094 (D.C. Cir. 1992).

         Finally, if a FOIA plaintiff is both eligible for and entitled to an award, courts should assess the reasonableness of the requested fees. While precedent can be a helpful guide to a court in conducting its assessment, this analysis is “necessarily somewhat imprecise.” Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1323 (D.C. Cir. 1982). Thus, courts should “exercise their discretion as conscientiously as possible, and state their reasons as clearly as possible.” Copeland v. Marshall, 641 F.2d 880, 893 (D.C. Cir. 1980) (en banc).

         III. Analysis

         The Court takes eligibility and entitlement in turn.

         A. Eligibility

         AquAlliance claims that it is eligible to receive a fee award because it “‘obtained relief' through ‘a voluntary or unilateral change in position by the agency[.]'” Plaintiff's Motion for Attorney Fees and Other Litigation Costs, and Memorandum in Support (“Pl's Mot.”), ECF No. 21, at 7 (quoting 5 U.S.C. § 552(a)(4)(E)). Under this so-called “catalyst theory” of eligibility, “[t]he key question . . . is whether ‘the institution and prosecution of the litigation cause[d] the agency to release the documents obtained during the pendency of the litigation.'” Elec. Privacy Info. Ctr. v. U.S. Dept. of Homeland Sec., (EPIC III), 811 F.Supp.2d 216, 232 (D.D.C. 2011) (quoting Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981)) (emphasis added). The mere filing of a complaint followed by the release of documents, however, is insufficient to establish causation. Id. (citing Weisberg v. DOJ, 745 F.2d 1476, 1496 (D.C. Cir. 1984)). Instead, courts should examine all the circumstances surrounding the release of documents to determine whether the plaintiff's lawsuit or ordinary administrative processing delays actually motivated the agency's response. Compare Conservation Force v. Jewell, 160 F.Supp.3d 194, 206 (D.D.C. 2016) (no causation where agency released documents after lawsuit was filed but agency adhered to its first-in, first-out procedure) with EPIC III, 811 F.Supp.2d at 233 (causation where agency took no steps to process request until lawsuit was filed seven months after initial FOIA request).

         AquAlliance makes two points in support of its claim that its lawsuit served as a catalyst for agency action. First, it says the lawsuit and subsequent negotiations with NOAA caused the agency to produce documents it initially withheld. Pl's Mot. at 8. And second, it maintains that, because NOAA produced responsive records only after AquAlliance ...


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