UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
)
NATIONAL SECURITY COUNSELORS, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-442 (RMC)
)
CENTRAL INTELLIGENCE AGENCY, )
et al., )
)
Defendants. )
______________________________________ )
OPINION
National Security Counselors seeks an award of attorney’s fees after prevailing in
a case against the Central Intelligence Agency and Department of Defense under the Freedom of
Information Act. Defendants oppose the petition, arguing that National Security Counselors
hardly prevailed, seeks exaggerated fees, and is not a separate entity from its lawyer, Kelly B.
McClanahan. The Court agrees that the record does not support Mr. McClanahan’s asserted
attorney-client relationship with National Security Counselors. Of course, a lawyer can submit
FOIA requests and litigate their denial, but he cannot claim fees without a true, independent
client. There is no such client here. Accordingly, the Court will deny the request for costs and
attorney’s fees.
I. FACTS
In 2010, Kelly B. McClanahan submitted four Freedom of Information Act
(FOIA), 5 U.S.C. § 552, requests on behalf of National Security Counselors: two to the Central
Intelligence Agency (CIA), and two to the Defense Intelligence Agency (DIA), a component of
the Department of Defense (DOD) (collectively, Defendants). Mr. McClanahan signed each
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request on National Security Counselors letterhead. See Defs. Opp’n [Dkt. 59], Ex. A (FOIA
Requests) [Dkt. 59-1] at 2–5, 8–10, 12–15, 19–21.
Mr. McClanahan’s first FOIA request was submitted to CIA on April 23, 2010,
requesting “copies of all current Central Intelligence Agency . . . regulations, policy statements,
guidelines, memoranda, training materials, handbooks, manuals, checklists, worksheets,
instructions, and similar documents on the topic of Mandatory Declassification Review . . . .” Id.
at 3. His second FOIA request to CIA was submitted on November 30, 2010, requesting the
“special procedures for the [Mandatory Declassification] [R]eview of information pertaining to
intelligence activities (including special activities), or intelligence sources or methods developed
by the Director of Central Intelligence pursuant to Sections 3.6(e) of Executive Order 12,958 and
3.5(e) of Executive Order 13,292.” Id. at 8.
On December 10, 2010, Mr. McClanahan submitted a third FOIA request to DIA,
seeking records that were responsive to a FOIA request submitted by Michael Ravnitzky in
1997. Id. at 12. On the same day, he submitted a fourth FOIA request, again to DIA. This time,
he requested all records pertaining to the administrative processing of Mr. Ravnitzky’s FOIA
request. Id. at 19.
A. FOIA Processing and Litigation
National Security Counselors filed a Complaint on February 28, 2011, which
included each FOIA request as a separate Count. See Compl. [Dkt. 1] ¶¶ 7–33. Defendants filed
a partial motion to dismiss, arguing, inter alia, that National Security Counselors failed to
exhaust administrative remedies with respect to its claim against twelve “John Doe” agencies,
that is, unidentified agencies that created some of the records at issue in the Complaint. Mot. to
Dismiss [Dkt. 9] at 5–7. On July 12, 2011, National Security Counselors filed an Amended
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Complaint omitting allegations against “John Doe” agencies that had not been administratively
exhausted. See Am. Compl. [Dkt. 18].
One year later, the parties notified the Court that they had settled Count Three of
the Amended Complaint, i.e., Mr. McClanahan’s third FOIA request to DIA. See Joint Status
Report [Dkt. 33] ¶ 4.
On March 8, 2013, Defendants moved for summary judgment on the remaining
Counts, which included Mr. McClanahan’s first and second FOIA requests to CIA and his fourth
FOIA request to DIA. See Mot. for Summ. J. [Dkt. 45]. In their motion, Defendants argued that
(1) CIA conducted a reasonable search and produced documents responsive to the first FOIA
request; (2) Defendants satisfied the second FOIA request because, after conducting reasonable
searches, CIA did not locate any responsive documents; and (3) Defendants properly withheld
certain information pursuant to FOIA exemptions. Id. at 10–35. In a footnote, Defendants noted
that the parties had “settled the substantive issues related to [Mr. McClanahan’s fourth FOIA
request] sent to DIA.” Id. at 6 n.1.
On April 16, 2013, National Security Counselors responded with a Notice of
Voluntary Dismissal, which noted that it was “satisfied with the information provided in
Defendants’ filings.” Notice of Voluntary Dismissal [Dkt. 51] at 1. The Court granted the
Notice of Voluntary Dismissal on April 17, 2013. See April 17, 2013 Minute Order. The instant
fee petition followed thereafter.
B. Mr. McClanahan and National Security Counselors
Mr. McClanahan has focused his legal career on the intersection between national
security law and information and data privacy law. Petition for Costs and Fees [Dkt. 55], Ex. A
(McClanahan Decl.) [Dkt. 55-1] ¶ 2. He obtained a Master of Arts in Security Studies from
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Georgetown University in 2003, received his Juris Doctor from American University in 2007,
and then earned a Master of Laws (LL.M.) in national security law from Georgetown University
Law Center in 2009. Id. From 2007 to 2009, Mr. McClanahan was of counsel to the Law Office
of Mark S. Zaid, P.C., where he specialized in national security law, “including whistleblowers,
security clearances, prepublication review, and FOIA/[Privacy Act] litigation.” Id., Ex. B
(McClanahan Resume) [Dkt. 55-2] at 2. He was of counsel to Kohn, Kohn, & Colapinto, LLP,
from 2009 to 2012, with the same national security specialization. Id. at 1.
The parties agree to all relevant facts concerning National Security Counselors’s
charter and incorporation. On August 6, 2009, Mr. McClanahan chartered National Security
Counselors as an unincorporated association in the Commonwealth of Virginia. Pl. Reply
[Dkt. 61] at 4; Defs. Opp’n at 5. National Security Counselors was incorporated on January 3,
2011, under the name “National Security Counselors, Inc.” Defs. Opp’n at 5; id., Ex. B (NSC
Incorporation Documents) [Dkt. 59-2] at 2.
However, National Security Counselors’s organizational membership is less clear.
Mr. McClanahan describes himself as “Founder, CEO of a non-profit organization dedicated to
educating the public about national security issues, influencing . . . legislation, and providing
assistance . . . in security-related legal or administrative proceedings.” McClanahan Resume at
1. In briefing, he describes National Security Counselors as a “non-profit public interest law
firm,” Petition for Costs and Fees at 3, and opaquely refers to his “partner [and] interns,”
McClanahan Decl. ¶ 7. Thus, at first glance, it is unclear whether any other individuals work
alongside Mr. McClanahan on behalf of National Security Counselors.
The organization’s documents and website do not clarify the issue. On National
Security Counselors’s letterhead, Mr. McClanahan is identified as the Executive Director and
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Bradley Moss as the Deputy Executive Director. See FOIA Requests at 3. According to the
website for National Security Counselors, Mr. Moss received his Juris Doctor from American
University in 2006, and then joined the law firm of Mark S. Zaid, P.C., where he is a practicing
associate. See Board of Directors, NAT’L SECURITY COUNS.,
http://nationalsecuritylaw.org/board_of_directors.html (last visited Feb. 1, 2014). The website
further notes that National Security Counselors’s Board of Directors consists of Mr.
McClanahan, Mr. Moss, and Sean Heare, an “Information Director” who works for SRA
International. See id. Mr. Heare is not mentioned elsewhere as a member of National Security
Counselors. See id.
II. LEGAL STANDARD
Under FOIA, “district courts ‘may’ award attorney’s fees and costs to members of
the public who substantially prevail in FOIA litigation against the government.” Tax Analysts v.
Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992) (quoting 5 U.S.C. § 552(a)(4)(E)). The
decision to award attorney’s fees is committed to the discretion of the district court, which must
consider the facts of the case and the relevant factors. Id. at 1094.
As a threshold matter, an attorney must demonstrate his or her eligibility for
attorney’s fees under the statute. In Kay v. Ehrler, 900 F.2d 967 (6th Cir. 1990), the Sixth
Circuit held that a pro se attorney could not recover attorney’s fees under the fee-shifting
provision of a civil rights statute. In so holding, the Court reasoned that the purpose of fee-
shifting provisions was best served where there was a “filtering of meritless claims by objective
attorneys.” Id. at 971 (citing Falcone, 714 F.2d at 647).
On appeal, a unanimous Supreme Court affirmed, holding that a pro se litigant
who was also an attorney could not be awarded attorney’s fees. Kay v. Ehrler, 499 U.S. 432
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(1991). The Court began with the observation that “the word ‘attorney’ assumes an agency
relationship, and it seems likely that Congress contemplated an attorney-client relationship as the
predicate for an award under [42 U.S.C.] § 1988.” Id. at 435–36. The Court continued with a
policy analysis that extends Kay v. Ehrler beyond the specific statute discussed in that case.
Justice Stevens, writing for the Court, observed that “[e]ven a skilled lawyer who represents
himself is at a disadvantage in contested litigation.” Id. at 437. The Court then concluded:
A rule that authorizes awards of counsel fees to pro se litigants—
even if limited to those who are members of the bar—would create
a disincentive to employ counsel whenever such a plaintiff
considered himself competent to litigate on his own behalf. The
statutory policy of furthering the successful prosecution of
meritorious claims [by allowing recovery of attorneys’ fees] is
better served by a rule that creates an incentive to retain counsel in
every such case.
Id. at 438. Thus, the Supreme Court affirmed the Sixth Circuit and its reliance on Falcone v.
IRS.
The analysis in Falcone v. IRS is particularly helpful here. In that case, the Sixth
Circuit explained:
The award of attorney’s fees to successful FOIA plaintiffs was
intended to relieve plaintiffs with legitimate claims of the burden
of legal costs; it was not intended as a reward for successful
claimants or as a penalty against the government. . . . Since the
[pro se lawyer] never assumed the burden [of legal fees] which
Congress intended to ease, an award of fees is inappropriate.
...
A final concern in denying attorney’s fees to pro se plaintiffs is the
fear of creating a “cottage industry” for claimants using the Act
solely as a way to generate fees rather than to vindicate personal
claims. . . . We do not believe that Congress intended to so
subsidize attorneys without clients.
...
Both a client and an attorney are necessary ingredients for an
award of fees in a FOIA case.
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Falcone, 714 F.2d at 647–48.
After Kay v. Ehrler, the D.C. Circuit reversed its prior decision in Cuneo v.
Rumsfeld, 553 F.2d 1360, 1366 (D.C. Cir. 1977), which had held that a pro se attorney could
recover attorney’s fees under FOIA. See Burka v. U.S. Dep’t of Health & Human Servs., 142
F.3d 1286, 1289 (D.C. Cir. 1998) (“It is obvious from the lengthy discussion . . . in Kay that the
Supreme Court intended its ruling to apply beyond section 1988 cases to other similar fee-
shifting statutes, particularly the one in FOIA.”). The D.C. Circuit concluded that “[i]t is, in
short, impossible to conclude otherwise than that pro se litigants who are attorneys are not
entitled to attorney’s fees under FOIA.” Id.
III. ANALYSIS
Mr. McClanahan notes that National Security Counselors was chartered in 2009,
before the organization issued FOIA requests in this case, and received an Employer
Identification Number from the Internal Revenue Service which allegedly denotes that the
organization was a distinct legal entity. Pl. Reply at 4. In addition, this case was filed on
February 28, 2011, nearly two months after National Security Counselors was incorporated on
January 3, 2011. But these facts do not end the inquiry as to whether National Security
Counselors is sufficiently distinct from Mr. McClanahan to establish an attorney-client
relationship.
It is true that this Circuit permits an “organization” to recover attorney’s fees for
its “in-house counsel” where the attorney acts as an agent on behalf of the organization. In
Baker & Hostetler, 473 F.3d 312 (D.C. Cir. 2006), the D.C. Circuit held that members of a law
firm were “sufficiently independent” to represent the firm in a FOIA case, therefore justifying an
award of attorneys’ fees, id. at 325. In dissent, Judge Henderson explained that in Kay v. Ehrler,
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the Supreme Court distinguished between a sole practitioner representing his own firm and a
lawyer who serves as an agent of his or her client and therefore can exercise independent
judgment. Id. at 327–29 (Henderson, J., dissenting). While Judge Henderson’s dissent is not
binding, it further amplifies the distinction between independent agents and pro se attorneys.
The record shows little, if any, distinction between Mr. McClanahan and National
Security Counselors. The organization was not a legal entity distinct from Mr. McClanahan
when he submitted FOIA requests in its name in 2010. Defs. Sur-Reply [Dkt. 66] at 2.
Moreover, every critical leadership role in the organization belongs to Mr. McClanahan: he is
Founder, Executive Director and, while there is some conflicting authority, it appears that he is
also the sole officer of the organization. Compare McClanahan Resume at 1, and FOIA
Requests at 3, with Officers, NAT’L SECURITY COUNS.,
http://nationalsecuritylaw.org/officers.html (listing Jeff Stein, “News Media Counselor,” as the
sole officer of National Security Counselors) (last visited Feb. 1, 2014). Nor does National
Security Counselors hold itself out as a separate entity. Despite its formal incorporation, the
record contains no evidence that National Security Counselors publicly identifies itself as an
incorporated entity, or in any other way distinct from Mr. McClanahan. 1
The proceedings in this case further demonstrate that National Security
Counselors is a one-man operation. Mr. McClanahan acknowledges that he is “both NSC’s
counsel and the Executive Director of NSC, in effect both the counsel and the party.” Defs.
Opp’n, Ex. E (NSC Reply Brief) [Dkt. 59-5] at 4 n.1. He was the requester for all FOIA requests
issued and is the sole attorney on behalf of National Security Counselors here. In fact, Mr.
McClanahan served as both requestor and counsel for the large number of FOIA requests that
1
National Security Counselors is not even identified as an incorporated entity on the docket in
this case. See Nat’l Sec. Counselors v. CIA, Civ. No. 11-442 (D.D.C. filed Feb. 28, 2011).
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National Security Counselors submitted to Defendants in the last year. Id., Ex. C (Lutz Decl.)
[Dkt. 59-3] ¶¶ 4–5; id., Ex. D (Williams Decl.) [Dkt. 59-4] ¶ 3.
In 2013, Mr. Moss filed one pleading in another case in the name of National
Security Counselors, where he identified himself as an associate with Mark S. Zaid P.C. Mr.
McClanahan explains that Mr. Moss has access to the court’s electronic case filing system as an
associate with Mark Zaid, and that Mr. Zaid approved the use of this law firm identification
when filing on behalf of National Security Counselors. Pl. Reply, Ex. C (McClanahan Supp.
Decl.) [Dkt. 61-1] ¶ 8. However, as the only evidence that anyone other than Mr. McClanahan
actually works for National Security Counselors, this is too slim a reed to establish that National
Security Counselors exists as more than Mr. McClanahan as a sole practitioner.
The website for National Security Counselors states:
[National Security Counselors] exists to perform four primary
functions: to lawfully acquire from the government material related
to national security matters and distribute it to the public, to use
this material in the creation of original publications discussing the
respective subjects, to advocate for intelligent reform in the
national security and information and privacy arenas, and to
provide a low-cost alternative to certain deserving clients involved
in security law or information and privacy law-related proceedings.
NAT’L SECURITY COUNS., http://nationalsecuritylaw.org (last visited Feb. 1, 2014). With the
exception of the last purpose, i.e., to represent clients in security or privacy-related proceedings,
none of the organization’s activities involves a traditional attorney-client relationship. In this
case, National Security Counselors is not representing a “deserving client” because the
organization has filed FOIA requests on its own behalf. In short, either National Security
Counselors constitutes the “client” or there is none. On this record, the Court finds that there is
no client separate from Mr. McClanahan. Despite his experience in national security law, his
status as a pro se attorney renders him ineligible for an award of attorney’s fees.
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Finally, the Court notes that Mr. McClanahan has submitted fifty-nine FOIA
requests to CIA in Fiscal Year 2012 alone. 2 Lutz Decl. ¶ 4. There are also five cases pending,
including the instant case, that involve forty-seven FOIA requests from National Security
Counselors to CIA. Id. ¶ 5. If the Court were to award attorney’s fees here, Mr. McClanahan’s
practice could become the “cottage industry” that raised concerns for the Sixth Circuit. See
Falcone, 714 F.2d at 648. It is undeniable that FOIA permits an individual to request disclosure
from government agencies. But without a true client, the Government is under no obligation to
subsidize self-serving activity.
IV. CONCLUSION
Accordingly, Plaintiff’s Petition for Costs and Attorneys’ Fees [Dkt. 55] is
DENIED. A memorializing Order accompanies this Opinion.
Date: February 12, 2014 /s/
ROSEMARY M. COLLYER
United States District Judge
2
This figure includes only requests made by National Security Counselors directly to CIA; it
does not include requests that were referred to CIA from other agencies. This figure is also
limited to FOIA requests and does not include requests for Mandatory Declassification Review
of CIA’s records. As a result, Mr. McClanahan’s submissions to CIA likely exceeded fifty-nine
requests in Fiscal Year 2012. Lutz Decl. ¶ 4 n.1.
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