UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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BEN JACOBS, )
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Plaintiff, )
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v. ) Civil Action No. 09-2134 (RLW)
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FEDERAL BUREAU OF PRISONS, )
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Defendant. )
___________________________________ )
MEMORANDUM OPINION
Plaintiff, a federal prisoner, brought this action under the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552, against the Federal Bureau of Prisons (“BOP”), alleging that it
failed to respond to three FOIA requests sent in March 2008 to its Washington, D.C. headquarters
office. The Court granted in part the BOP’s first dispositive motion, see Jacobs v. Fed. Bureau of
Prisons, 725 F. Supp. 2d 85, 91 (D.D.C. 2010), finding that the agency’s search for records
responsive to plaintiff’s requests was adequate. However, because the BOP did not demonstrate
its full compliance with the FOIA in any other respect, its motion was denied in part without
prejudice. See id. at 92.
Now before the Court are the BOP’s renewed motion for summary judgment and plaintiff’s
motion for fees and costs. For the reasons discussed below, the Court will grant the former and
deny the latter.
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I. Plaintiff Failed to File a Timely Opposition to the BOP’s
Renewed Motion for Summary Judgment
The BOP filed a renewed motion for summary judgment on October 1, 2010. On that
same date, the Court issued an Order informing plaintiff of his obligation to respond to the BOP’s
motion and warned him that the Court would treat the motion as conceded if he failed to file a
timely opposition. On plaintiff’s motions, the opposition deadline was extended twice, to January
24, 2011, and most recently to March 23, 2011. To date, plaintiff neither has filed an opposition
nor has requested more time to do so. The Court treats the BOP’s motion as conceded. See
LCvR 7(b).
II. Plaintiff Is Not Entitled to an Award of Fees and Costs
Plaintiff “respectfully requests . . . this Court to order Defendant [to] pay $350.00 in cost
incurred by the Plaintiff in this matter.” Pl.’s Mot. for Fees & Cost at 1. The FOIA permits a
district court to “assess against the United States . . . other litigation costs reasonably incurred in
any case . . . in which the [plaintiff] has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). A
party substantially prevails if he “has obtained relief through either . . . a judicial order, or an
enforceable written agreement or consent decree[,] or . . . 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). The latter provision “essentially codifies the so-called ‘catalyst theory’ for
determining a fee request against the United States, under which a plaintiff is deemed to have
‘substantially prevailed’ for purposes of § 552(a)(4)(E) if the ‘litigation substantially caused the
requested records to be released.’” N.Y.C. Apparel F.Z.E. v. U.S. Customs and Border Protection
Bureau, 563 F. Supp. 2d 217, 221 (D.D.C. 2008) (quoting Chesapeake Bay Found. v. Dep’t of
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Agric., 11 F.3d 211, 216 (D.C. Cir. 1993), abrogated in part on other grounds by Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 601-02 (2001));
see Judicial Watch, Inc. v. FBI, 522 F.3d 364, 345 (D.C. Cir. 2008) (finding that the requester
substantially prevailed when it secured court orders requiring the government to disclose
requested documents). “The catalyst theory assumes that a voluntary or unilateral change in an
agency’s position is induced by the complainant’s lawsuit.” Wildlands CPR v. U.S. Forest Serv.,
558 F. Supp. 2d 1096, 1098 (D. Mont. 2008).
“[A] FOIA plaintiff who substantially prevails becomes eligible for attorney’s fees [and
litigation costs]; whether the plaintiff is actually entitled to a fee award is a separate inquiry that
requires a court to consider a series of factors.” Edmonds v. FBI, 417 F.3d 1319, 1327 (D.C. Cir.
2005) (internal quotation marks, brackets and citations omitted) (emphasis in original). The
decision to award attorneys’ fees and costs is left to the Court’s discretion. See Nationwide Bldg.
Maint., Inc. v. Sampson, 559 F.2d 704, 705-06 (D.C. Cir. 1977) (commenting that the §
552(a)(4)(E) “contemplates a reasoned exercise of the courts’ discretion taking into account all
relevant factors”). In making this decision, 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 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). “No one factor is
dispositive, although the [C]ourt will not assess fees when the agency has demonstrated that it had
a lawful right to withhold disclosure.” Id.
Plaintiff produced certified mail receipts to show that he submitted his FOIA requests to
the BOP in March 2008. The BOP, however, claimed to have received the requests only after this
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litigation commenced. Upon receipt of the requests, the BOP conducted searches for responsive
records and disclosed them to plaintiff approximately three months later. Its response to the
requests reasonably can be considered “a voluntary or unilateral change in position by the agency”
after a lawsuit was filed. 5 U.S.C. § 552(a)(4)(E)(ii). An award of costs is warranted, however,
only if plaintiff’s claim is not “insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii).
The Court presumes, and plaintiff makes no argument to the contrary, that plaintiff filed
this action in order that the BOP release information intended for his personal use only. It does
not appear that plaintiff derives a commercial benefit from the requested records, or that the public
benefits in any way from their release. Moreover, if the BOP had no record of receipt of the
requests, it hardly is surprising that it failed to respond promptly. For these reasons, the Court
concludes that plaintiff’s claim is insubstantial, and his request for fees and costs will be denied.
See Poett v. U.S. Dep’t of Justice, No. 08-0622, 2010 WL 3892249, at *6-7 (D.D.C. Sept. 30,
2010) (denying award of fees and costs to requester where “the lack of a public benefit inherently
illuminates the fact that Plaintiff’s relationship to the disclosed document is of a private and
personal nature”); Contreras v. U.S. Dep’t of Justice, 729 F. Supp. 2d 167, 171 (D.D.C. 2010)
(denying request for fees and costs where requester’s FOIA claim was too broad and . . .
insufficiently identified the requested documents,” and “there was no causal connection between
the suit and the release of documents”); White v. Lappin, 725 F. Supp. 2d 203, 206 (D.D.C. 2010)
(denying request for fees and costs where the BOP had no record of receipt of FOIA request, the
requester sought information for his personal use only and derived no commercial benefit, and
where the BOP promptly arranged for the release of the requested records when it became aware of
the request).
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An Order is issued separately.
________/s/__________________
DATE: April 26, 2011 ROBERT L. WILKINS
United States District Judge
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