Grand Canyon Trust v. Zinke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GRAND CANYON TRUST,

Plaintiff,
Civil Action No. 17-849 (BAH)
v.
Chief Judge Beryl A. Howell
RYAN ZINKE, in his official capacity as
Secretary of the Interior, et al.,

Defendants.

MEMORANDUM OPINION

The plaintiff, Grand Canyon Trust, seeks attorney’s fees and costs, pursuant to the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), arising from the plaintiff’s

underlying FOIA requests to defendants, the Department of the Interior’s Office of the Secretary

(“DOI-OS”) and Bureau of Land Management (“BLM”), for documents regarding an order issued

by the Secretary of the Interior concerning the Federal Coal Program, see Compl. ¶ 2, ECF No.

1. Within thirteen months of submitting the FOIA requests and four months of the filing of the

complaint, the defendants disclosed, in whole or in part, 65,353 pages of records, which

disclosures fully discharged the defendants’ obligations under the FOIA. The parties reached a

settlement regarding document production issues but contested the issue of attorney’s fees. For

the reasons set forth below, the plaintiff’s Motion for Attorney Fees and Costs, Pl.’s Mot. Att’y’s

Fees (“Pl.’s Mot.”), ECF No. 17, is denied because the plaintiff is ineligible for a fee award.

I. BACKGROUND

The plaintiff Grand Canyon Trust is “a non-profit corporation with over 3,500 members”

and the mission “to protect and restore the lands, ecosystems, and environment of the Colorado

Plateau, including those federal lands for which the mineral estate is owned or managed by the

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federal government by and through the U.S. Department of the Interior and the Bureau of Land

Management pursuant to the Federal Coal Program.” Compl. ¶ 11. In August 2016, the plaintiff

submitted FOIA requests to the DOI-OS and BLM requesting “[a]ll documents and records

concerning and supporting the development of the January 15, 2016 Secretarial Order 3338” and

“[a]ll documents and records concerning the implementation of the January 15, 2016 Secretarial

Order 3338, specific to Section 5, Pause of the Issuance of New Federal Coal Leases for Thermal

Coal, and Section 6, Exclusions.” Pl.’s Mot., Ex. 1, Decl. of Eric Ames (“Ames Decl.”), Ex. C,

Correspondence between Grand Canyon Trust and DOI-OS (“DOI-OS Correspondence”) at 12,

ECF No. 17-1; see also Ames Decl., Ex. D, Correspondence between Grand Canyon Trust and

BLM (“BLM Correspondence”) at 46, ECF No. 17-1. 1 The two defendants’ responses are

detailed below, followed by a summary of the ensuing litigation.

A. The Plaintiff’s FOIA Request to the Office of the Secretary

The DOI-OS acknowledged receipt of the plaintiff’s August 2, 2016, request on August

16, 2016, and advised that the DOI-OS FOIA Office was “taking a 10-workday extension under

43 C.F.R. § 2.19” and would be “placing your request under the ‘Complex’ processing track.”

DOI-OS Correspondence at 17. Two months later, on October 18, 2016, the plaintiff sent a letter

to the DOI-OS “objecting to the Office of the Secretary’s failure to issue a determination within

the statutory deadlines in the FOIA” and requesting “an estimated completion date.” Compl.

¶ 33; see also DOI-OS Correspondence at 18–19. The DOI-OS responded on October 20, 2016,

explaining that the FOIA office was “continuing to search for records” and would “provide records

to you on a rolling basis as they become available.” DOI-OS Correspondence at 21. The DOI-

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The plaintiff submitted numerous declarations supporting its request for attorney’s fees. Although each
declaration and exhibit has been reviewed, only those exhibits necessary to provide context for resolution of the
instant motion are cited herein.

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OS estimated that the agency’s first response would be sent “on or about November 17, 2016.”

Id. Five days later, the DOI-OS again notified the plaintiff that the request was being processed.

Id. at 22. Although the DOI-OS did not provide any files by November 16, 2016, the agency

provided a “partial response” of 222 pages on December 2, 2016. Id. at 24; see also Compl. ¶ 36.

On January 17, 2017, the DOI-OS informed the plaintiff that its search had been completed

and all responsive records located, noting that “the records are exceptionally voluminous—about

8,000 additional pages.” DOI-OS Correspondence at 29. The DOI-OS further stated that although

the office had “many requests that require our work and attention, we continue to work diligently

on yours,” with a final response expected “in early February.” Id. On March 17, 2017, after not

hearing from the DOI-OS in February, the plaintiff inquired about the timing of “a final response

so that we can avoid taking additional steps to secure the public documents.” Id. The DOI-OS

promptly responded that the records were “currently with the Office of the Solicitor for comment,”

which is “the final, routine stage of review,” and that the Office of the Solicitor “has a multitude

of requests that require its attention” but was “working diligently to review the voluminous

records that are responsive to your request.” Id. In addition, the DOI-OS had located “several

thousand additional pages of information” that were still being evaluated. Id. In April 2017, the

DOI-OS informed the plaintiff that letters had been sent to several coal companies, notifying the

companies that certain information submitted by the companies to the DOI-OS was responsive to

the plaintiff’s FOIA request and inviting the companies to submit any objections to the release of

such information. Id. at 30–42.

Finally, on May 1, 2017, the plaintiff requested that the DOI-OS “identify the estimated

completion date and provide a disclosure plan for the release of documents and records no later

than the close of business on May 3, 2017.” Id. at 45. On May 3, 2017, a FOIA Officer from the

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DOI-OS spoke with the plaintiff and stated that “a large portion of the documents were being

reviewed by the Office of the Solicitor” and that “the request would take at least another two

months to finalize.” Defs.’ Answer ¶ 43, ECF No. 18. The plaintiff then filed this lawsuit on

May 9, 2017.

According to the defendants, “as of the date of Plaintiff’s Complaint, the Office of the

Secretary had completed its search for all responsive documents [and] had produced the first

partial response of 222 pages of records to Plaintiff.” Id. ¶ 3. A second partial release of 5,830

pages of records was transmitted to the plaintiff on May 25, 2017, two weeks after the complaint

was filed but without any action by the Court. Id. ¶ 38. On June 13, 2017, approximately one

month after the complaint was filed, the DOI-OS transmitted a final release of 314 pages,

resulting in a total 6,366 pages released to the plaintiff, still without any deadlines imposed by

the Court. See Joint Status Report dated June 28, 2017 (“First JSR”) at 1, ECF No. 12.

B. The Plaintiff’s FOIA Request to BLM

BLM responded to the plaintiff’s August 2, 2016, request two days later and informed the

plaintiff that the request “falls into the complex track,” which “is for requests that can be processed

in twenty-one to sixty workdays.” BLM Correspondence at 49. On October 10, 2016, however,

BLM allegedly informed the plaintiff “that it would require ‘at least a year to compile and

produce the responsive documents.’” Compl. ¶ 54. The plaintiff responded on October 17,

2016, requesting “an explanation for the estimated completion date.” Id. ¶ 55; see also BLM

Correspondence at 50–52. Ten days later, BLM responded that work was underway to “get[ ]

you the responsive records as expeditiously as we can,” with “rolling releases” shortly, and that

the plaintiff would be contacted “no later than Tuesday, November 1 to provide you with either a

timeline or records release schedule.” BLM Correspondence at 53. On November 2, 2016,

BLM informed the plaintiff that “the easiest way to provide you the records would be on a

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monthly basis,” id. at 54, but no records were produced in November 2016, Compl. ¶ 58. The

plaintiff inquired about the promised records on December 1, 2016, and shortly thereafter, BLM

released twelve pages of records. See BLM Correspondence at 54, 56–59; Compl. ¶ 61.

BLM continued reviewing records through January and February 2017. On January 3,

2017, BLM informed the plaintiff that it was “working through a substantial amount of your

records” and “hop[ed] to have your records to you very soon.” BLM Correspondence at 60. On

February 28, 2017, acknowledging that the plaintiff was “looking for hard dates,” BLM informed

the plaintiff that DOI-OS had to finish reviewing “approximately 1,200 pages” of documents.

Id. at 61. The FOIA Officer stated that, “[i]f everything goes accordingly with the second set of

documents, you should have them by the end of March” and that “[g]etting the records to you

has become one of my top priorities.” Id. On May 1, 2017, after not receiving any additional

records, the plaintiff sent a letter to BLM requesting “a revised estimated completion date” and

“a disclosure plan for the release of the remaining documents and records no later than the close

of business on May 3, 2017.” Id. at 64. The plaintiff filed this lawsuit on May 9, 2017. After

the complaint was filed, but without any court order directing disclosure, BLM released 569

pages to the plaintiff on June 30, 2017; 1,294 pages on July 28, 2017; and 57,112 pages on

August 31, 2017, for a total of 58,987 pages. Defs.’ Opp’n at 5.

C. Litigation History

The plaintiff filed a complaint on May 9, 2017, seeking declaratory and injunctive relief

under the FOIA. See generally Compl. On June 28, 2017, the parties filed their first Joint Status

Report, in which the DOI-OS indicated that its response to the FOIA request was complete, with

three separate releases of records: “222 pages of records on December 2, 2016; 5,830 pages of

records on May 25, 2017, and 314 pages on June 13, 2017.” First JSR at 1. BLM’s search was

“still underway,” but the agency had “produced twelve responsive pages in December 2016” and

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had agreed, without the Court’s involvement, “to two releases, one on June 30, 2017 and the

final production on August 31, 2017.” Id. at 1–2. These disclosures were timely made, with 569

pages released on June 30, 2017, and 57,112 pages released on August 31, 2017, as well as 1,294

pages released on July 28, 2017. Defs.’ Opp’n at 5. Three months later, the parties informed the

Court that “[n]o document production issues remain.” Joint Status Report dated Sept. 29, 2017

(“Second JSR”) at 1, ECF No. 14. The plaintiff subsequently “indicated that the production

[wa]s satisfactory,” and the parties ultimately settled all claims other than the plaintiff’s claim for

attorney fees and other litigation costs, which motion is now pending before the Court. See Joint

Status Report dated Oct. 27, 2017 (“Third JSR”) at 1, ECF No. 15; Joint Status Report dated

Dec. 8, 2017 (“Fourth JSR”) at 1, ECF No. 16. The plaintiff seeks $68,047.82 in attorney’s fees

and litigation costs. See Pl.’s Reply Supp. Mot. Att’y’s Fees (“Pl.’s Reply”) at 15, ECF No. 19.

II. LEGAL STANDARD

The FOIA authorizes the “assess[ment] against the United States [of] reasonable attorney

fees and other litigation costs reasonably incurred in any case . . . in which the complainant has

substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). This provision “‘was not enacted to provide

a reward for any litigant who successfully forces the government to disclose information it

wished to withhold,’ but instead ‘had a more limited purpose—to remove the incentive for

administrative resistance to disclosure requests based not on the merits of exemption claims, but

on the knowledge that many FOIA plaintiffs do not have the financial resources or economic

incentives to pursue their requests through expensive litigation.’” Davy v. CIA (“Davy II”), 550

F.3d 1155, 1158 (D.C. Cir. 2008) (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d

704, 711 (D.C. Cir. 1977)).

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 The D.C. Circuit recognizes that “[t]he statute contains no express limitation on who

counts as an eligible ‘complainant’ or whose work is compensable by payment of ‘attorney

fees,’” Nat’l Sec. Counselors v. CIA, 811 F.3d 22, 28 (D.C. Cir. 2016) (citation omitted), but this

statutory provision has been interpreted to divide “the attorney-fee inquiry into two prongs,

which our case law has long described as fee ‘eligibility’ and fee ‘entitlement,’” Brayton v.

Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Judicial

Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 368–69 (D.C. Cir. 2006)). Thus, the

plaintiff must demonstrate both eligibility and entitlement to the award. See McKinley v. Fed.

Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014); Weisberg v. U.S. Dep’t of Justice, 745

F.2d 1476, 1495 (D.C. Cir. 1984) (“[E]ligibility alone is not enough. . . . [T]he complainant must

[also] show that he or she is ‘entitled’ to an award.”) (citation omitted). Upon establishing both

eligibility and entitlement, the plaintiff must then show the reasonableness of the fee request.

See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).

To satisfy the eligibility requirement, the plaintiff must show that he or she “substantially

prevailed” in the underlying FOIA litigation by gaining relief from either: “(I) a judicial order, or

an enforceable written agreement or consent decree; or (II) 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).

Under the first prong, the claimant substantially prevails when “‘the order changed the legal

relationship between [the parties],’ and [ ] the plaintiff ‘was awarded some relief on the merits of

his claim.’” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367 (D.C. Cir. 2008) (internal quotation

marks omitted) (quoting Davy v. CIA (“Davy I”), 456 F.3d 162, 165 (D.C. Cir. 2006)). Under

the second prong, or “catalyst theory,” attorney’s fees may be awarded solely due to a change in

an agency’s position, for example, when the plaintiff’s lawsuit “substantially caused the

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government to release the requested documents before final judgment.” Brayton, 641 F.3d at

524–25; Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 216, 232

(D.D.C. 2011) (“The key question under this ‘catalyst theory’ is whether ‘the institution and

prosecution of the litigation cause[d] the agency to release the documents obtained during the

pendency of the litigation.’” (alteration in original) (quoting Church of Scientology of Cal. v.

Harris, 653 F.2d 584, 587 (D.C. Cir. 1981))). 2

If the plaintiff has substantially prevailed, the court proceeds to the entitlement prong.

The D.C. Circuit “has long applied a multi-factor standard for evaluating whether a plaintiff who

is eligible for attorneys’ fees is also entitled to such fees.” McKinley, 739 F.3d at 711. “Four

non-exclusive factors typically govern the entitlement inquiry: ‘(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.”

Id. (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)); see

also Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013). 3 While “[n]o one factor is dispositive,”

“[i]f the Government’s position is correct as a matter of law, that will be dispositive.” Davy II,

550 F.3d at 1159, 1162. “The sifting of those criteria over the facts of a case is a matter of

district court discretion.” Tax Analysts, 965 F.2d at 1094.

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The catalyst theory was utilized by this Circuit until 2001, when the Supreme Court held that “the ‘catalyst
theory’ is not a permissible basis for the award of attorney’s fees.” Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 610 (2001). Congress responded by resurrecting the catalyst theory
for FOIA cases in the Open Government Act of 2007. See Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C.
Cir. 2010). “The purpose and effect of this law, which remains in effect today, was to change the ‘eligibility’ prong
back to its pre-Buckhannon form.” Brayton, 641 F.3d at 525. As a result, “plaintiffs can now qualify as
‘substantially prevail[ing],’ and thus become eligible for attorney fees, without winning court-ordered relief on the
merits of their FOIA claims.” Id. (alteration in original).
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The D.C. Circuit’s four-factor test for assessing a FOIA plaintiff’s entitlement to attorney’s fees has been
criticized for “hav[ing] no basis in the statutory text” and being “arbitrary and inconsistent with the structure and
purposes of FOIA.” Morley, 719 F.3d at 690–91 (Kavanaugh, J., concurring) (recommending that “[w]e should
ditch the four-factor standard”).

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 If the plaintiff has established eligibility and entitlement, the plaintiff must then establish

the reasonableness of the calculation in its fee request. See Covington, 57 F.3d at 1107. The

reasonableness determination involves three parts: “(1) determination of the number of hours

reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or ‘lodestar’;

and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857

F.2d 1516, 1517 (D.C. Cir. 1988) (citation omitted). The plaintiff must submit evidence regarding

“the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and the prevailing

market rates in the relevant community.” Covington, 57 F.3d at 1107. The reasonable hourly

rate is most commonly determined by the Laffey Matrix, which “sets out a general guideline for

awarding attorneys’ fees based on experience . . . adjusted for inflation.” Salazar v. District of

Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015). Provided that the plaintiff has submitted the required

information, the presumption is that the number of hours billed and the hourly rates are reasonable.

Jackson v. District of Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). The burden then shifts

to the defendant to “provide specific contrary evidence tending to show that a lower rate would

be appropriate.” Covington, 57 F.3d at 1110 (internal quotation marks omitted).

III. DISCUSSION

The plaintiff contends that it substantially prevailed in this litigation and is eligible for

attorney’s fees, based on the catalyst theory, because the defendants “fail[ed] to comply with

FOIA deadlines before the Complaint was filed” and because “[i]t was not until after the Trust

filed suit” on May 9, 2017, “that the agencies complied with their FOIA duties and a series of

deadlines were negotiated for releasing the requested documents.” Pl.’s Mot. at 3–4; Pl.’s Reply

Supp. Mot. Att’y’s Fees (“Pl.’s Reply”) at 1–7, ECF No. 19. The defendants counter that the

plaintiff “is not eligible for an award of attorney fees because it has not substantially prevailed,”

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given that the “the combined backlog of over 180 FOIA requests served as an unavoidable delay

in the agencies’ ability to respond in the expedient time frame requested by the Plaintiff.” Defs.’

Opp’n at 6, 8 (capitalization omitted). For the reasons explained below, the defendants are correct.

To meet the substantially prevailed prong of the eligibility requirement, the plaintiff must

demonstrate that “the institution and prosecution of the litigation cause[d] the agenc[ies] to

release the documents obtained during the pendency of the litigation.” Church of Scientology,

653 F.2d at 587. The law in this Circuit is well established that causation requires more than

correlation. Thus, in the context of FOIA attorney’s fees, “the mere filing of the complaint and

the subsequent release of the documents is insufficient to establish causation.” Weisberg, 745

F.2d at 1496; see also Conservation Force v. Jewell, 160 F. Supp. 3d 194, 205 (D.D.C. 2016).

Although timing is a relevant factor, something “more than post hoc, ergo propter hoc must be

shown.” Pub. Law Educ. Inst. v. U.S. Dep’t of Justice, 744 F.2d 181, 183 (D.C. Cir. 1984);

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (“CREW”), 83 F. Supp. 3d

297, 303 (D.D.C. 2015) (“Although the time between the plaintiff’s initiation of this lawsuit and

the agency’s release of responsive records is indeed a salient factor in the Court’s analysis, it is

by no means dispositive evidence of causation.” (citing Pub. Law Educ. Inst., 744 F.2d at 184

n.5)). Rather, “[t]he sole question” in such cases “is whether the plaintiff’s lawsuit was necessary

for its attainment of the requested documents.” CREW, 83 F. Supp. 3d at 307 (emphasis in

original) (citing Weisberg, 745 F.2d at 1496).

The plaintiff has not met this standard. Rather, the evidence submitted by the plaintiff in

support of its fee motion makes clear that both the DOI-OS and BLM had begun processing the

plaintiff’s request well before this lawsuit was initiated and that both agencies had even made

partial releases to the plaintiff before the complaint was filed. See, e.g., DOI-OS Correspondence

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at 24–28 (transmitting 222 pages to the plaintiff 5 months before complaint was filed); BLM

Correspondence at 53, 56–59 (informing the plaintiff that the agency was “begin[ning] the process

to start sending you rolling releases” and then transmitting 12 pages as a partial release 5 months

before complaint was filed). Both agencies completed their disclosures within four months of

the start of litigation, and these disclosures were satisfactory to the plaintiff. See Second JSR at

1. Based on this timeline and the record in this case, the plaintiff has failed to show that this suit

“cause[d] the agenc[ies] to release the documents.” Church of Scientology, 653 F.2d at 587.

In addition, the D.C. Circuit repeatedly has acknowledged that if “an unavoidable delay

accompanied by due diligence in the administrative processes was the actual reason for the

agency’s failure to respond to a request,” rather than “the threat of an adverse court order,” then

“it cannot be said that the complainant substantially prevailed in [its] suit.” Id. at 588 (internal

quotation marks omitted). To that end, in order to “prevent plaintiffs from being the beneficiaries

of purely extrinsic factors,” courts must “look at the circumstances surrounding disclosure.

When disclosure is triggered by events unrelated to the pending lawsuit, the causal nexus is

missing and the plaintiff cannot be deemed a ‘prevailing party.’” CREW, 83 F. Supp. 3d at 303

(citing Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Justice, 750 F.2d 117, 119–21

(D.C. Cir. 1984)). Indeed, “Congress did not enact the fee-shifting provision of FOIA to punish

agencies for their slowness in processing FOIA requests, but to reward plaintiffs whose filing of

lawsuits alters the government’s slowness and brings about disclosure.” Terris, Pravlik &

Millian, LLP v. Ctrs. for Medicare & Medicaid Servs., 794 F. Supp. 2d 29, 38 (D.D.C. 2011).

In this case, the defendants have explained that, “[a]t the time Plaintiff submitted its

requests,” both the DOI-OS and BLM had a substantial backlogs in processing FOIA requests.

Defs.’ Opp’n at 2. Specifically, as of September 2016, shortly after the plaintiff’s FOIA request

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was submitted, the DOI-OS and BLM had backlogs of 33 and 153 FOIA requests, respectively,

with the plaintiff’s requests “immediately placed in the queue to be worked on in the order they

were received.” Id.; see also id. at 8 (“[T]he combined backlog of over 180 FOIA requests

served as an unavoidable delay in the agencies’ ability to respond in the expedient time frame

requested by the Plaintiff.”); Defs.’ Answer ¶ 54. The plaintiff’s exhibits in support of its fee

motion reflect the agencies’ preexisting backlog and show that, despite these backlogs, the

agencies’ FOIA offices diligently worked to satisfy the plaintiff’s requests. See, e.g., DOI-OS

Correspondence at 22 (noting that “processing various drafts of the same record requires a line-

by-line analysis, which can be time consuming,” and that “to provide a timely response, we will

work to first respond with all non-draft records that we have located”); id. at 23 (providing a

partial response four months after request was filed and five months before complaint was filed);

id. at 29 (noting that 8,000 additional pages had been located and that although the DOI-OS “ha[s]

many requests that require our work and attention, we continue to work diligently on yours”);

BLM Correspondence at 54 (noting that a second set of documents “is a substantially larger release

of documents, so it make take a couple days longer past” the previously stated deadline); id. at 55

(updating the plaintiff that BLM was “working through a substantial amount of your records and

[was] almost done reviewing them”); id. at 56 (providing an interim release four months after the

plaintiff’s request was filed and five months before complaint was filed). Thus, the plaintiff has

not established that the threat of an adverse court order prompted the disclosures ultimately made

in this case. Instead, the record shows that “an unavoidable delay accompanied by due diligence

in the administrative process was the actual reason for the agency[ies’] failure to respond to [the]

request.” Church of Scientology, 653 F.2d at 588 (internal quotation marks omitted).

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 The plaintiff points to the defendants’ failure to produce “a single declaration or piece of

documentary evidence to support this narrative” of agency backlog, Pl.’s Reply at 2, and argues

that “when the government seeks to rebut evidence presented in a fee motion, ‘it must provide—

just as plaintiff must provide specific evidence in his application for attorney’s fees—equally

specific countervailing evidence,’” id. (internal quotation marks omitted) (quoting Piper v. U.S.

Dep’t of Justice, 339 F. Supp. 2d 13, 24 (D.D.C. 2004)). This argument takes Piper out of

context. While the Piper court concluded that the government must provide “equally specific

countervailing evidence,” Piper, 339 F. Supp. 2d at 24 (internal quotation marks omitted), this

was not for the purpose of showing that the plaintiff is ineligible for fees. Rather, “[w]hen the

Government seeks to rebut a rate or calculation or hours billed, it must provide—just as

plaintiff must provide specific evidence in his application for attorney’s fees—‘equally specific

countervailing evidence.’” Id. (quoting Nat’l Ass’n of Concerned Veterans v. Sec. of Def., 675

F.2d 1319, 1326 (D.C. Cir. 1982)). In this case, neither rates nor calculations nor hours billed is

at issue, given that the plaintiff has failed to establish eligibility for attorney’s fees. Accordingly,

the defendants’ lack of supporting declarations does not warrant an award of fees for the plaintiff.

The other cases relied on by the plaintiff do not suggest a different result. The plaintiff

contends that, “[i]n a similar scenario, a district court found a plaintiff organization was eligible

for fees when the agency ‘failed to inform Plaintiffs of an estimated completion date.’” Pl.’s

Reply at 5 (quoting Sierra Club v. EPA, 75 F. Supp. 3d 1125, 1146 (N.D. Cal. 2014)). In that case,

however, the plaintiff was eligible for attorney’s fees because the court had approved a stipulation

between the parties regarding a briefing schedule, requiring the agency to release records by a

specified date and thereby “chang[ing] the legal relationship between the parties.” Sierra Club,

75 F. Supp. 3d at 1141. Similarly, the plaintiff argues that “an agency’s ‘sudden acceleration’ in

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processing a FOIA request may lead to the conclusion that the lawsuit substantially caused the

agency’s compliance with FOIA.” Pl.’s Mot. at 2 (quoting Elec. Privacy Info. Ctr. v. U.S. Dep’t

of Homeland Sec. (“EPIC”), 218 F. Supp. 3d 27, 41 (D.D.C. 2016)). In EPIC, as in Sierra Club,

the Court held that the plaintiff had “substantially prevailed in this litigation as a result of the

issuance of [a] Scheduling Order” requiring that the government “produce documents by a date

certain,” thereby “chang[ing] the legal relationship between the parties.” EPIC, 218 F. Supp. 3d

at 40. No such scheduling orders have been entered in this case—in fact, the only scheduling

order issued in this case governed briefing for the pending fee motion. See Minute Order (Dec.

8, 2017). Based on the evidence and the record in this case, the plaintiff has failed to establish

that “the institution and prosecution of litigation cause[d] the agenc[ies] to release the documents

obtained during the pendency of the litigation.” Church of Scientology, 653 F.2d at 587.

The plaintiff’s attempt to distinguish the cases relied on by the defendants fares no better.

The plaintiff contends that Calypso Cargo v. U.S. Coast Guard, 850 F. Supp. 2d 1 (D.D.C. 2011),

is distinguishable because the defendant in that case “provided multiple declarations to support

its argument that the suit did not accelerate its document production.” Pl.’s Reply at 6. Although

the defendants produced no declarations in this case, the evidence submitted by the plaintiff

points to the same conclusion. As in Calypso Cargo, the record here makes clear that “multiple

divisions within the [defendant agencies] had already begun coordinating and processing the

plaintiff[’s] request before plaintiff[ ] filed [its] lawsuit.” Calypso Cargo, 850 F. Supp. 2d at 5.

The plaintiff also argues that Church of Scientology is distinguishable because in that case “the

Court of Appeals actually reversed a denial of fees by the district court where documents were

provided after suit was filed, even though the agency had, as here, begun the processing the [sic]

request before suit was filed.” Pl.’s Reply at 6 (citing Church of Scientology, 653 F.2d at 588–

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89). In that case, however, the agency had informed the plaintiff that no responsive records

existed and did not change its position until responding to interrogatories and appearing for

depositions during the litigation. Church of Scientology, 653 F.2d at 585–86. The “critical

point” for the D.C. Circuit was that “but for the institution and prosecution of this suit, the

documents ultimately obtained by [the plaintiff] would never have been identified and therefore

would never have been released.” Id. at 588. By contrast, actual production of records in this

case began five months before the complaint was filed. See DOI-OS Correspondence at 24–28;

BLM Correspondence at 56.

The plaintiff also attempts to distinguish Short v. U.S. Army Corps of Engineers, 613 F.

Supp. 2d 103 (D.D.C. 2009), and Harvey v. Lynch, 178 F. Supp. 3d 5 (D.D.C. 2016), on the

ground that the requests in those cases “had already been completed by the time [the plaintiff]

filed suit,” Pl.’s Reply at 7 (quoting Harvey, 178 F. Supp. 3d at 8). In Short, a preliminary

determination had been made to grant the plaintiff’s request, but the request was misplaced and

the agency was reminded of the request only after the lawsuit was filed, at which point the

agency conducted its search and released the records at issue. Short, 613 F. Supp. 3d at 105.

Even so, the court concluded that the complaint “did not cause the [agency] to change its position”

given the earlier determination. Id. at 107 (internal quotation marks omitted). Likewise, in

Harvey, the agency had not produced any records by the time the complaint was filed, but one

week after filing, the agency sent the plaintiff a satisfactory release. Harvey, 178 F. Supp. 3d at

6. The court concluded that “the bulk of the work to process Harvey’s FOIA request had already

been completed by the time Harvey filed suit” and that, “at most,” the complaint “prompted [the

defendant] . . . to wrap up work that had already been taken almost to completion.” Id. at 7–8.

Similar conclusions can be reached in this case: both agencies made partial releases five months

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prior to the complaint, and by the date of the complaint, the DOI-OS had completed its search.

Answer ¶ 3; see also DOI-OS Correspondence at 24–28; BLM Correspondence at 56. The

plaintiff’s complaint thus did not cause the agencies to change their positions regarding the

plaintiff’s requests.

Finally, the plaintiff seeks to distinguish Mobley v. Department of Homeland Security,

908 F. Supp. 2d 42 (D.D.C. 2012), because in that case “‘the plaintiffs received no documents’

after filing suit.” Pl.’s Reply at 7 (quoting Mobley, 178 F. Supp. 3d at 8). In Mobley, the

government “voluntarily processed the plaintiffs’ request only three weeks after the complaint

was filed,” and the plaintiffs then voluntarily dismissed their complaint. Mobley, 908 F. Supp.

2d at 48. Although the plaintiffs’ fee motion was untimely, the court noted that “voluntary

compliance very early in a FOIA litigation, like the government’s compliance here, should be

encouraged rather than punished” by the imposition of fees. Id. at 49. Indeed, the Senate Judiciary

Committee Report accompanying the FOIA noted that “[i]f the government is forced to pay

attorney’s fees even if it settles a lawsuit without court action . . . then we may well find that the

government is less inclined to settle FOIA lawsuits.” Id. (alterations in original) (quoting S. REP.

NO. 110-59, at 14). The parties in this case likewise were able to resolve all document production

issues without the Court’s involvement, and “[a]lthough it would have been ideal for the defendant

to process the plaintiff[’s] request from the very beginning, the government’s compliance with the

plaintiff[’s] request so early in the litigation is not the sort of agency behavior that Congress

intended to prevent by awarding attorney’s fees.” Id. at 48.

The plaintiff has failed to establish eligibility for attorney’s fees and costs. Accordingly,

the plaintiff’s entitlement to attorney’s fees and the reasonableness of the plaintiff’s request need

not be considered, and the plaintiff’s motion is denied. See Pub. Law Educ. Inst., 744 F.2d at

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184 (“Since [the plaintiff] is not eligible for an award of attorney’s fees and litigation expenses,

we have no occasion to comment on the factors that would bear on [the plaintiff’s] entitlement.”).

IV. CONCLUSION

For the foregoing reasons, the plaintiff is not eligible for attorney’s fees under

§ 552(a)(4)(E) because the plaintiff has not “substantially prevailed” in this litigation.

Accordingly, the plaintiff’s Motion for Attorney’s Fees and Costs, ECF No. 17, is denied. An

appropriate Order accompanies this Memorandum Opinion.

Date: May 24, 2018

__________________________
BERYL A. HOWELL
Chief Judge

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