United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
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 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.
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).
“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
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.
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).
Court takes eligibility and entitlement in turn.
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).
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