UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
LARRY W. BRYANT, )
)
Plaintiff, )
)
v. ) Civ. Action No. 09-0940 (EGS)
)
CENTRAL INTELLIGENCE AGENCY, )
et al. )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
This matter is before the Court on plaintiff’s motion for
reconsideration1 of the Court’s denial of his request for
attorneys’ fees. Upon consideration of the motion, the response
and reply thereto, the applicable law, the entire record, and
for the reasons set forth below, the plaintiff’s motion is
DENIED.
I. BACKGROUND
As set forth in this Court’s prior Memorandum Opinion,
plaintiff Larry Bryant “gathers, researches, and publishes
documents and information and analysis concerning Unidentified
1
Plaintiff, though he asks the Court to “reconsider” the
denial of attorneys’ fees, styles his motion as one to alter or
amend the judgment under Federal Rule of Civil Procedure 59(e).
Due to the interlocutory nature of the Court’s earlier ruling,
however, plaintiff’s motion is properly considered under Rule
54(b), not Rule 59.
Flying Objects” as the Director of the Washington D.C. Office of
Citizens Against UFO Secrecy and writes for the monthly
periodical UFO Magazine. Compl. ¶ 4. In 2008, plaintiff sent
the Central Intelligence Agency (“CIA”) a request for
information under the Freedom of Information Act (“FOIA”)
requesting “CIA-received and CIA-generated records as pertain
to . . . cases of airborne UFO encounters reportedly occurring
since Nov. 17, 1986” and records relating to “a 1987 special
meeting at FAA headquarters in Washington D.C. to discuss and
evaluate certain official evidence of the intrusive UFO
encounter experienced on Nov. 17, 1986 by the Japanese flight
crew (No. 1628) of a 747 cargo jet.” Compl. Ex. A. In the same
request, he asked to be granted status as a representative of
the news media and thereby be exempt from certain fees typically
charged for a FOIA request. Compl. Ex. A.
In their response to plaintiff’s FOIA request, the CIA
offered to provide the plaintiff with 2,779 pages of materials
for $267.90 in copying costs, describing the materials as
records already located in response to “numerous previous
request[s]” for information regarding UFOs. Compl. Ex. B.
Plaintiff’s request for a fee waiver was denied on the grounds
that the information sought was “already in the public domain
and its re-release would not likely contribute significantly to
public understanding of the operations and activities of the
2
United States Government.” Compl. Ex. B. Plaintiff appealed
the agency’s decision, including the denial of the request for a
fee waiver. Compl. Ex. C. The CIA again denied the request for
a fee waiver. Compl. Ex. D. In their letter denying the
appeal, the CIA also explained that plaintiff would be charged
the $267.90 in copying costs irrespective of whether he was
placed in the news media fee category. Compl. Ex. D.
Plaintiff commenced this lawsuit on May 20, 2009. On June
23, 2009, the CIA sent a letter to plaintiff informing plaintiff
that, (i) the CIA would reopen his FOIA request, (ii) the CIA
would conduct another search for records in existence through
June 15, 2009, and (iii) the CIA would place the plaintiff in
the news media fee category and only charge him for photocopying
costs. Defs.’ Summ. J. Mot. Ex. E. According to defendants,
new searches were then conducted for responsive information, and
the CIA followed up with another letter dated October 21, 2009.
Defs.’ Summ. J. Mot. Ex. E.
The October 21st letter informed the plaintiff that new
materials responsive to his general request had been located.
Defs.’ Summ. J. Mot. Ex. F. However, because the newly-
identified responsive materials were not “originated by the
CIA,” the request would need to be referred to the originating
agencies. Defs.’ Summ. J. Mot. Ex. F. Plaintiff received
subsequent FOIA response letters from the NSA and the Department
3
of State regarding these additional materials, including five
pages of materials with redactions from the Department of State.
Pl.’s Resp. to Defs.’ Statement of Material Facts ¶ 36.
On September 30, 2010, the Court granted partial summary
judgment to defendants, finding that defendants fulfilled their
FOIA obligations in conducting a reasonably diligent search and
that the second count in the complaint, relating the news media
fee category, was moot. The Court also denied plaintiff’s
request for attorneys’ fees. In the pending motion, plaintiff
seeks reconsideration of this denial of attorneys’ fees.
II. STANDARD OF REVIEW
A district court may revise its own interlocutory rulings
“at any time before the entry of judgment adjudicating all the
claims and all the parties’ rights and liabilities.” Fed. R.
Civ. P. 54(b). Due to the interlocutory nature of the Court’s
earlier ruling, plaintiff’s motion for reconsideration is
governed by Federal Rule of Civil Procedure 54(b), which
“differs from the standards applied to final judgments under
Federal Rules of Civil Procedure 59(e) and 60(b).” Williams v.
Savage, 569 F. Supp. 2d 99, 108 (D.D.C. 2008)(citations
omitted). “In particular, reconsideration of an interlocutory
decision is available under the standard ‘as justice requires.’”
Judicial Watch v. Dep’t of Army, 466 F. Supp. 2d 112, 123
(D.D.C. 2006) (citations omitted).
4
“‘As justice requires’ indicates concrete considerations”
by the court, Williams, 569 F. Supp. 2d at 108, such as “whether
the court patently misunderstood the parties, made a decision
beyond the adversarial issues presented, made an error in
failing to consider controlling decisions or data, or whether a
controlling or significant change in the law has occurred.” Id.
In Def. of Animals v. Nat’l Inst. of Health, 543 F. Supp. 2d 70,
75 (D.D.C. 2008) (internal citation and quotation marks
omitted). “Furthermore, the party moving to reconsider carries
the burden of proving that some harm would accompany a denial of
the motion to reconsider.” Id. at 76. “These considerations
leave a great deal of room for the court’s discretion and,
accordingly, the ‘as justice requires’ standard amounts to
determining ‘whether reconsideration is necessary under the
relevant circumstances.’” Judicial Watch, 466 F. Supp. 2d at
123 (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.
2004)).
Plaintiff asks the Court to reconsider the denial of an
award of attorneys’ fees. Though plaintiff does not explicitly
state so, he appears to base his motion on an argument that the
Court failed to consider controlling precedent. For the reasons
stated below, the Court DENIES plaintiff’s motion for
reconsideration.
5
III. ANALYSIS
In a FOIA action, courts “may assess against the United
States reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section in which the
complainant has substantially prevailed.” 5 U.S.C.
§ 552(a)(4)(E)(i). In determining whether an award of
attorneys’ fees is appropriate, courts employ a two-pronged
analysis. First, “[t]he 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). With respect to this first
prong, the statute defines substantially prevails as relief
obtained either (1) through “a judicial order, or an enforceable
written agreement, or consent decree,” or (2) 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).
If a plaintiff is “eligible” for attorneys fees, the court
proceeds to the second prong, i.e. the “entitlement prong,” and
“considers a variety of factors to determine whether the
plaintiff should receive fees.” Brayton, 641 F.3d at 524.
Specifically, the Court considers, “(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
6
records; and (4) the reasonableness of the agency’s withholding
of the requested documents.” Davy v. CIA, 550 F.3d 1155, 1159
(D.C. Cir. 2008) (citations omitted). The decision to award
attorneys’ fees and costs is left to the Court’s discretion
after consideration of the relevant factors. See Nationwide
Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 705-06 (D.C. Cir.
1977) (stating that § 552(a)(4)(E) “contemplates a reasoned
exercise of the courts’ discretion taking into account all
relevant factors”).
The first factor, the public benefit derived from the case,
“requires consideration of both the effect of the litigation for
which fees are requested and the potential public value of the
information sought.” Davy, 550 F.3d at 1159 (citing Chesapeake
Bay Found. v. USDA, 108 F.3d 375, 377 (D.C. Cir. 1997)). “The
public-benefit prong speaks for an award of attorneys’ fees
where the complainant’s victory is likely to add to the fund of
information that citizens may use in making vital political
choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995).
see also Horsehead Indus. Inc. v. U.S. EPA, 999 F. Supp. 59, 68
(D.D.C. 1998) (“The inquiry is furthered by considering the
likely degree of dissemination and the public impact that can be
expected from a particular disclosure, but it is the benefit
that derives from the litigation not simply the request that is
considered.”) (internal citations omitted).
7
In assessing the public benefit derived from the case, the
Court “evaluate[s] the specific documents at issue in the case
at hand.” Cotton, 63 F.3d at 1120 (emphasis added). The
crucial defect in plaintiff’s request for attorneys’ fees is
that plaintiff, in both the initial request and again in this
motion for reconsideration, fails to provide the Court with any
basis for determining that the specific documents he obtained as
a consequence of this litigation confer some benefit to the
public. It is undisputed that plaintiff obtained, in total,
“two excised documents totaling five pages” from the Department
of State, Pl.’s Statement of Material Facts ¶ 36; all other
materials were offered to plaintiff before he commenced his
lawsuit. Plaintiff, other than making generic assertions that a
public benefit was derived from this case because the CIA
“turned over additional documents,” does not articulate any
reason the public derives any benefit from the particular
information he obtained.
By comparison, the Circuit in Davy concluded, after
evaluating the specific documents obtained by plaintiff in that
case, that:
The information [plaintiff] requested -- about
individuals allegedly involved in President Kennedy’s
assassination -- serves a public benefit. At least
one of the requested documents was not previously
available to the public, and the agency did not
challenge [plaintiff’s] description of the released
documents as providing ‘important new information
8
bearing on the controversy over former [District
Attorney Jim] Garrison’s contention that the CIA was
involved’ in the assassination plot. . . . [S]ome of
the material turned over to [Davy] concerns an event
of national importance and is newly released[.]
Id. (emphasis added). Similarly, in Judicial Watch, Inc. v.
DHS, Civ. No. 08-2133, 2009 U.S. Dist. LEXIS 59148 (D.D.C. 2009)
this Court concluded that there was a public benefit derived
from the case and awarded attorneys’ fees to a plaintiff who
obtained video footage of an incursion by Mexican police
officers into the United States because the footage
“contribut[ed] to the public forum and fund of information from
which citizens may make political choices.” Id.; see also
Campaign for Responsible Transplantation v. FDA, 593 F. Supp. 2d
236, 241 (D.D.C. 2009)(finding a public benefit and awarding
attorneys’ fees because plaintiff was a “nonprofit, public
interest group designed to alert the public of issues associated
with xenotransplantation . . . and the documents released after
the plaintiff initiated this lawsuit furthered this mission.”).
Unlike the cases discussed above, there is no indication in the
instant case, either in the plaintiff’s briefs or his
declarations that the records obtained as a consequence of this
litigation are of any public value. “Where, as here, there was
no public benefit to the litigation, an award of attorneys’ fees
9
and costs is unwarranted.” Chesapeake Bay Found., 108 F.3d at
378.2
Even assuming that the remaining factors — which evaluate
whether plaintiff seeks to gain a commercial or personal benefit
from the requested materials and whether the agency had a
reasonable basis for not disclosing the material – would
otherwise weigh in favor of an award of attorneys’ fees, such a
determination would not overcome the Court’s conclusion here.
“FOIA’s fees provision seeks to promote” activity that would
“ferret out and make public worthwhile, previously unknown
government information[.]” Davy, 550 F.3d at 1160. Plaintiff,
whose motion for attorneys’ fees merely vaguely asserts that the
“[t]he new search turned up documents by the United States
Department of State, and the United States National Security
Agency,” fails to persuade the Court that his victory was “not
2
In support of his position that the public derived a
benefit from his victory, plaintiff cites to National Security
Archive v. CIA, 584 F. Supp. 2d 144 (D.D.C. 2008), claiming it
is relevant to this case because “the CIA’s denial to Plaintiff
of news media representative status . . . came at a time that
the CIA was also wrongfully denying such a status to the
National Security Archive.” Pl.’s Mem. at 5. That opinion,
however, made no mention of attorneys’ fees; rather, it merely
held that the CIA wrongfully denied news media status to a
particular organization. The Court is not persuaded that the
CIA’s wrongful denial of news media status on a prior, unrelated
occasion is relevant to a determination of whether the plaintiff
in the instant case is entitled to attorneys’ fees.
10
insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii)(II).3 The Court
accordingly declines to exercise its discretion to grant an
award of attorneys’ fees.
IV. CONCLUSION
For the foregoing reasons, it is hereby ordered that
plaintiff’s motion for reconsideration is DENIED. An
appropriate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
October 14, 2011
3
Plaintiff also argues that that he is entitled to
attorneys’ fees because the agency changed its position and,
after initially denying his request, ultimately granted his
request to be placed in the news media fee category. The Court
finds this unpersuasive. Not only has plaintiff not persuaded
the Court that any public benefit is derived from such a change
in position, such a change in position provides merely a
personal benefit to plaintiff. Similarly, in Chesapeake Bay
Found., the Circuit held that an award of attorneys’ fees was
not appropriate because the only benefit plaintiff derived from
the litigation “was that the [plaintiff] did not have to pay for
postage . . . which is hardly a significant public benefit.”
108 F.3d at 377. Nor, for the same reasons, is plaintiff’s
assertion that he is entitled to attorneys’ fees simply because
the agency performed an additional search persuasive.
11
Bryant v. Central Intelligence Agency
Combined Opinion